text:
    Fair versus City of Philadelphia.
    1. The mere omission of municipal authorities, to provide adequate means to carry off the water which storms and the natural formation of the ground throw on a city lot, will not sustain an action by the owner thereof, against the municipality for damages arising from the accumulation of water on said lot by reason of the construction of a sewer, that was not of sufficient size to carry off the surface drainage.
    2. Where the sewers were not defectively constructed or left out of repair, the municipality canr.ot be made responsible for an error in the judgment of the city authorities, as to the size a sewer should have been constructed.

      January 10th 1879.
    Before Sharswood, 0. J., Merctjr, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1879, No. 33.
    Case by Thomas Pair against the City of Philadelphia, to recover damages alleged to have been sustained by reason of the insufficiency of a public sewer to carry off the surface water which accumulated on the premises of the plaintiff.
    The facts are stated in the opinion of this- court.

      Pavid W. Sellers and Henry McIntyre, for plaintiff in error.—
    While it may be optional with the city to construct sewers, when they have constructed them and citizens rely upon them, it is the duty of the city to keep them unobstructed: Child v. City of Boston, 4 Allen 41. When a citizen has adequate drainage for his premises its destruction- by the muncipality is a good cause of action: Commissioners v. Wood, 10 Barr 93; Munn v. Pittsburgh, 4 Wright 364; Borough of Allentown v. Kramer, 23 P. F. Smith 406.

      O. JE. Morgan, Assistant City Solicitor, and Wm. Nelson West, City Solicitor, for the city.
    The proximate and direct cause of the injuries complained of was, first, the backing of surface water upon plaintiff’s property; and, secondly, the indirect and remote cause was the plan of sewerage adopted by the city, which permitted two sewers to meet at right angles, so that the flow of the contents of one would have the effect of retarding that of the other.
    That a municipality is not liable for damages resulting from a lawful exercise of her discretionary power to plan and construct sewers and other improvements, has been repeatedly decided by this court. Carr v. Northern Liberties, 11 Casey 324; Grant v. Erie, 19 P. F. Smith 420; Borough of Allentown v. Kramer, 23 P. F. Smith 406; Dillon on Corporations, p. 932; Smith v. The Mayor, 66 N. Y. 295.
   Mr. Justice Mercur

delivered the opinion of the court March 10th 1879.

This was an action on the case. The plaintiff claimed to recover damages which he had sustained, by reason of the insufficiency of the public sewer to carry off the surface water which accumulated on his premises. The case was submitted to a referee. He found the facts and stated his conclusions of law. No exceptions were filed as to the correctness of his finding of facts. The exceptions to his conclusions of law, finding the city was not liable for damages, were overruled and judgment entered for the defendant. This presents the alleged error.

It appears that the house of the plaintiff was situate at the corner of Thirteenth and Fitzwater streets. Formerly, the sewer in that vicinity was of sufficient capacity to pass, and did pass, rapidly, not only the water with which it was otherwise charged, but also the surface water which either fell or-flowed on the land of the plaintiff. Afterwards and before the injury complained of the city extended its system of sewerage westerly, thereby causing a larger volume of water to flow through the sewer past the premises of the plaintiff. During violent storms the sewer was so charged with water as to prevent the surface water, which accumulated on the lot of the plaintiff, from flowing into, and through the sewer, thereby causing the injury of which he complains.

The unquestioned finding of facts establishes not only that the whole injury was caused by surface water which accumulated on the premises of the plaintiff', but that none of it was thrown there by reason of the construction of the new sewer. None of the water which passed into that sewer Avas forced back or out of the old seAver so as to flood either the streets or the plaintiff’s property. The surface water causing the injury was none other than that which had been accustomed to Aoav there. The sewers were not defectively constructed. They were not out of repair. No negligent conduct can therefore be imputed to the defendant. It follows then that the right of the plaintiff to recover must rest on the omission of the city to make sewerage of sufficient capacity to receive and pass all the surface water Avhich accumulated along the line of the seAver. Conceding the insufficient capacity, it Avas only an error of judgment in the city authorities as to the size of which the sewer should have been constructed.

The time and manner of draining the streets of the city require the exercise of judgment, deliberation and discretion of the municipal authorities. The duty is therefore one of a judicial character. It involves a consideration of the financial condition -of the city, and of the time and plan of construction. It must, therefore, be left to the municipal authorities to determine the extent and capacity of the seAverago to be constructed, and not to the verdict of a jury to decide at the suit of an owner of property aggrieved. So long as it is the mere omission, as hero, of the authorities, to provide adequate means to carry off’ the water Avhich storms, and the natural formation of the ground, throw on a lot, the OAvner thereof cannot sustain an action against the municipality. This conclusion flows from the sound rule that a municipality is not liable for damages resulting from a lawful exercise of its discretionary poAA’er to plan and construct sewers and other improvements: Mills v. City of Brooklyn, 32 N. Y. 489 ; Smith v. Mayor et al. of New York, 66 Id. 295 ; Carr v. Northern Liberties, 11 Casey 324 ; Grant v. Erie, 19 P. F. Smith 420. The facts of the case before us do not bring it within Child v. City of Boston, 4 Allen 41; Mayor v. Furze, 3 Hill 612; Allentown v. Kramer, 23 P. F. Smith 406. They rest on some neglect of the authorities to repair or keep the improvements in proper condition. While, therefore, we cannot rest the present judgment on the unusual or unprecedented character of the showers, yet for the other reasons stated the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Singerly versus Caldwell.
    By an agreement under seal, A. and B. made a settlement between themselves of certain claims, for cpmmissions due to A. for having effected certain sales of lands, for B., and further “ that A. shall be entitled to a commission of §2100 payable, at the option of B. in any mortgage, or mortgages, aggregating that sum which may be received from C. in settlement for said purchases.” In covenant upon the agreement, A. filed a copy thereof, and judgment was taken for want of an affidavit of defence. Held, affirming the court below, that said agreement was an instrument for the payment of money within the meaning of the Affidavit of Defence Law.
    January 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 112. »
    Covenant by Andrew D. Caldwell against Joseph Singerly, on an agreement under seal, the material portions of which are stated in the opinion of the court below. The plaintiff filed a copy l>f this agreement and judgment was entered for want of an affidavit of defence. On an affidavit filed, which averred that said contract wras not a paper or instrument of writing on which judgment can be entered for want of an affidavit of defence, a rule was granted to show cause why this judgment should not be stricken off, which rule was subsequently discharged, the court delivering the following opinion:
    “By an agreement under seal, dated November 21st 1872, the plaintiff and defendant made a settlement between themselves, of certain claims for commissions due to the plaintiff for having effected certain sales of lands for the defendant. The material part of the agreement, so far as the present question is concerned, is contained in these words: ‘ The said Andrew D. Caldwell shall be entitled to a commission of $2100, payable at the option of the said Joseph Singerly, in any mortgage or mortgages aggregating that sum, which may be received from Harrison Grambo in settlement for said purchases.’ The question argued was, whether this is an instrument for the payment' of money within the meaning of the Affidavit of Defence Law.
    “ It is quite clear from the terms of the agreement that the plaintiff’s commissions had been already earned, and that the object of the agreement was to fix the amount of them. The amount was fixed at $2100, and by the terms of the instrument the defendant agreed to pay that sum. It was in the defendant’s option to pay the plaintiff in mortgages instead of cash if he saw fit to do so. He bound himself to pay so much money, or at his option to pay an equivalent value in mortgages. The indebtedness was adjusted in money, and was primarily payable in money. The defendant had a right, if he saw proper, to tender mortgages instead of money. It was not incumbent upon the plaintiff to make any demand or do anything whatever. The agreement must not be confounded with that class of agreements by which debtors sometimes bind themselves to pay a certain amount in goods or chattels of specified description. Such agreements are not instruments for the payment of money within the meaning of the act (Gould v. llichardson, 83 Legal Intelligencer 158; Cozens v. Thayer, 1 W. N. C. 267), although on failure to deliver the goods the creditor may recover the money. In those cases the agreement, is to deliver goods for a certain value. The agreement here is to pay money with a superadded privilege to the debtor of paying in mortgages if he prefers to discharge the debt in that manner. If this case were before a jury, all that would be necessary for the plaintiff to do in order to entitle himself to a recovery would be to put the agreement in evidence. It would then be for the defendant to discharge himself of the obligation to pay money by showing a tender of mortgages. So here the plaintiff’s cause of action is complete on the face of the instrument filed, and if the defendant had any defence to the payment to which he bound himself he ought to have set it out in an affidavit of defence. The Affidavit of Defence Law is a very ben eficial law. It tends to prevent unjust delays and unnecessary litigation and expense. It has been construed oflate years with increasing liberality both by the Supreme Court and the Courts of Common Pleas. The instrument, a copy of which was filed in this case, is fairly within its terms. Hule discharged.”
    This action of the court was assigned for error by Singerly, who took this writ.

      (I. ITeide Norris and E. Spencer Miller, for plaintiff in error.—
    This paper was not an instrument of writing for the payment of money within the meaning of the Act of Assembly. The court below admits that if this had been an agreement to pay in goods, it would not have been an instrument for the payment of money. Singerly had a right to pay in mortgages; it was not therefore an absolute agreement to pay money, any more than an agreement to pay in goods.
    In both a sum is ascertained; in both an option of paying a commodity is reserved; in both, if payment be not made in the commodity, the verdict must be for money; and wo contend that in both, the creditor in trying the cause could put in evidence the contract and throw on the defendant the burden of proving the payment or offer to pay in the commodity.
    It has often been held that an instrument on which a summary judgment may be taken, must be certain and not on condition. This agreement, so far as the payment of money is concerned, is uncertain and conditional. Money is not to be paid if the debtor has mortgages and desires to use them to discharge his debt.

      23. 22unn, Jr., for defendant in error.
    This instrument is for a sum certain, payable not on any “ condition” but at the debtor’s “ option,” “ in any mortgage or mortgages which may be received, &c.” It is payable in money absolutely, unless the option is exercised. The burden was on the debtor to exercise the option and produce ,the mortgage or mortgages, otherwise it might not be payable at all, in case said mortgage or mortgages should never be received.
    It is a fallacious argument, to say an optionaof paying in a commodity is reserved. In this case the promise is to pay in money, with an option to pay in another manner, while in the cases alluded to by plaintiff in error the promise is to pay, not in money but in goods. If this agreement had promised to pay so much money in mortgages, the argument of plaintiff in error would have some •force. •
    No affidavit was filed before judgment that the debtor had any such mortgage or mortgages ; and in attempting to open the judgment, no such affidavit was filed nor any excuse for not having filed an affidavit in time. No tender of mortgage or mortgages was made.
   ' The judgment of the‘Supreme Court was entered, January 27th 1879,

Per Curiam.

We affirm this judgment upon the opinion of the learned court below.

Judgment affirmed.


author: Pur Curiam.

text:
    City of Philadelphia, to use of O’Rourke, versus Philadelphia and Reading Railroad Co.
    A city ordinance of December 30th 1873, authorized the department of highways, to contract with a competent person who should bo selected by a majority of the owners of property fronting on Lehigh Avenue, to pave said avenue between certain points, the cost to be collected by the contractor from the owners of the property fronting on said avenue. On October 2d 1873, previous to the passage of this ordinance, a majority of the owners on said avenue signed a paper selecting plaintiff as paver. Subsequently, on January 7th 1874, a number of those who had signed this paper, formally withdrew their assent thereto, and gave notice to the highway department. That department, notwithstanding, awai'ded the contract to plaintiff, who proceeded with, and finished the work, and who issued a scire facias to recover the portion of the cost due by defendants, Held, that it was competent for the property owners who had signed the paper selecting plaintiff to do the work, to revoke that selection, and that their revocation, and notice to the highway department, were a bar to plaintiff’s recovery, Held, further, that the highway department had no authority to enter into a contract with any, one who was not selected by a majority of owners.
    January 10th 1879.
    Before Siiarswood, C. J-, Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1877, No. 127.
    Scire facias sur municipal claim by the city of Philadelphia, to the use of Michael O’Rourke, against the Philadelphia and Reading Railroad Company.
    The facts and proceedings in the court below are sufficiently stated in the opinion of Thayer, P. J.
    The verdict was for the plaintiff for $978.20, subject to the opinion of the court on certain points reserved.
    The court subsequently entered judgment for the defendants, non obstante veredicto, on the first point reserved, and filed the following opinion :
    “ This was a scire facias on a claim for paving in front of defendant’s property. The facts in evidence were as follows: A city ordinance, passed December 30th 1873, authorized the department of highways ‘ to enter into a contract with a competent paver, who shall he selected by a majority of owners of property fronting on Lehigh avenue, between Richmond street and Frankford road, for the paving of market plots on the said street, between the points named. The conditions of which contract shall be, that the contractor shall collect the cost of said paving from the owners of property respectively fronting on said street: Provided, that the contractor indemnify the city against the payment of any part of the cost of paving said market plots.’
    “ The whole number of owners of property upon Lehigh avenue, between the points named in the ordinance, was ninety-seven, and the plaintiff, O’Rourke, had obtained forty-nine of these, who signed a paper dated October 22d 1873, selecting him as paver.
    “ An ordinance passed December 31st 1862, provides that before any contract for paving shall be entered into by the highway department, ‘ the person applying for such contract shall give notice of such application in two daily papers, sotting forth: 1. The name of the contractor. 2. The locality of the spaces intended to be paved. 3. 'The name and residence of each person signing for the contractor. 4. To such notice shall be added an invitation to the owners of property on such street to moot at the department of highways, at a certain hour, on a given day, to show cause, if'any, why such contract should not he awarded to the applicant.’
    “ The plaintiff gave notice in two daily papers that he would make application to the department of highways on the 14th of January 1874, at 12 o’clock, for a contract for this paving, at which time all persons interested were required, to attend, to show cause why the contract should not be awarded to him. This notice omitted to state the residences of the property owners who had signed for the plaintiff. In the meantime, viz., on January 7th 1874, seventeen of the forty-nine persons who had signed the paper of October 22d 1873, selecting the plaintiff as paver, signed another paper, formally revoking their selection of the plaintiff, and declaring that they do not consent that the contract shall be awarded to the plaintiff, and therefore that he is not the choice of the majority of the owners of property. In this paper they further authorize counsel to appear on their behalf before the department of highways, to oppose the awarding of the contract to the plaintiff. Accordingly, at the time indicated in the plaintiff’s published notice, viz., on January 14th 1874, the plaintiff appeared at the department of highways with the original paper of October 22d 1873, and at the same time counsel appeared for the seventeen property owners who had retracted their consent, presented the paper containing their formal retraction, and opposed the awarding of the contract to the plaintiff. Notwithstanding this, the contract was awarded to the plaintiff on January 16th 1874. Refore he had entered upon the work, however, the present defendants, by their counsel, served upon him a written notice that the defendants denied. the authority of the highway department to award the contract to him, that they would contest his authority,' and refuse to pay any part of the cost. Nevertheless, the plaintiff went on with the work.
    “ On the trial, the court directed a verdict for the plaintiff, reserving the following points of law: Whether it was competent for the property owners, who signed the paper of October 22d 1873, selecting the plaintiff to do the work, to revoke that selection, and if so, whether their revocation of the same by the paper of January 7th 1874, and their notices to that effect to the highway department and the plaintiff, are a bar to the plaintiff s recovery ? Whether the omission of the residences of the signei’s of the paper of October 22d 1873, from the public notice given by the plaintiff, is fatal to his recovery ?
    “It seems quite clear that under the ordinance'of December 30th 1873, the department of highways had no authority to enter into a contract with any person who was not selected by a majority of owners. The authority given by the ordinance is expressly so restricted, and the department could not lawfully exceed the authority delegated to them by the councils. The written consent of the property owners contained in the paper of October 22d 1873, would seem to have been the inducement for the passage of the ordinance of December 30th 1873. Indeed, it is stated in the body of the paper, that it is signed ‘ to procure the passage of a resolution by the city authorizing the work to be done,’ There is no reason to suppose that the ordinance would have been passed except for that paper. It is necessary for the security of the city that its heads of departments and agents be strictly confined within the letter of authority under which they act.
    “ In lleiliy v. The City, 10 P. F. Smith 467, it was decided that under a similar ordinance, the claimant could not recover unless he first proved that he had been selected by a majority of the owners. ‘ It is clear,’ says Williams, J., in that ease, ‘ that under the provisions of the ordinance the equitable plaintiif had no authority to pave the street unless a majority of the lot owners selected him, and the department of highways contracted with him to do the work. Ris selection by a majority of lot owners, and his engagement by the department of highways, are essential requisites, in order to give him authority to do the work and the right to collect the cost from the owners. Under the provisions of the ordinance, a contract with the department of highways would give no authority to pave the street and to collect the cost from the lot owners, unless he was selected by them to do the work. The department had no authority to enter into a contract with him, unless he was selected by a majority of the lot owners.’ In The City v. Stewart, 1 W. N. C. 242, the Supreme Court reaffirmed the ruling in lleiliy v. The City, and the point must now be regarded as settled.
    “ Was it competent, then, for the property owners who signed the paper of October 22d 187-3, to revoke their selection? This question cannot now be considered an open one, for it was expressly ruled by the Supreme Court in Dickerson v. Peters, 21 P. F. Smith 53, where it was decided that the proceeding is in fieri until the contract is awarded, and until that time the selection by the majority is revocable. ‘ Why,’ says Sharswood, J., in that case, ‘ should the owners be absolutely bound by their first nomination ? It is evident that the whole proceeding was in fieri until the contract was actually awarded. It is clear that they could not award the contract to any person not selected. The nomination was essentially a revocable act, while the proceeding was in fieri, and before the contract was actually awarded. The owners ought not to be bound by a hasty or unwise selection, nor to be required to assign a sufficient cause for revoking it, if they see fit to do so.’
    “ The revocation before the contract was awarded, by the seventeen property owners out of the forty-nine who had originally signed for the plaintiff, was therefore the exercise of a power which the highest authority has decided justly and lawfully belonged to them. It left the plaintiff in a large minority, for, after the revocation, he had only twenty-two names out of the ninety-seven. Notwithstanding this, in the face of full notice, and against the w'ritten protest of those who had revoked their selection, the highway department awarded the contract to the plaintiff. In so doing they acted contrary to law. By such unlawful proceeding the plaintiff could acquire no right of action against the defendant or the other property owners; nor has he now any just cause to complain. He was a mere volunteer. He had written notice before he commenced the work that the action of the department was unlawful, and that the defendant would not.be bound by it. He chose to take the risk of proceeding, and must abide the result. Volenti non fit injuria. If a person says, ‘ there are spring-guns in the wood,’ and another then takes it upon himself to go into the wood, knowing that he is in hazard of meeting with the injury which the guns are calculated to produce, he does so at his own peril, and must take the consequences of his own act. 1 Saund. 848, n. d.; Ilott v. Wilks, 3 B. & Aid. 311.
    “ The determination of the first point reserved being adverse to the plaintiff, and going to the root of the whole case, it is unnecessary to consume time on the consideration of the other point.
    “ Rule for a new trial discharged, and judgment for the defendant on the first point reserved non obstante veredicto.”

    This action of the court was assigned for error by the plaintiff ■who took this writ.

      David W. Sellers, for plaintiff in error.
    The selection of O’Rourke was coupled with an interest, and without cause it was irrevocable for all the purposes for which, as a contract, it was made. Why should the'highway department be disabled from awarding a contract which the owners had expressly agreed should be secured to O’Rourke. Where the action of damages is cumbrous, and will not provide a safe and adequate remedy, enforcement will he adjudged: McGowin v. Remington, 2 Jones 56; Evans’s Appeal, 27 P. F. Smith 227.
    What sort of action would O’Rourke have here ? Would it be several or joint? Would the measure of damages be the loss of profits or expenditure incurred? Surely the object of the contract with the owners was to secure the contract for the paving. Why was not this unimpairable, and why have the owners any legal right of complaint, if, in accordance with their agreement, O’Rourke “ secured the contract for the paving ?”

      Thomas Bart, Jr., for defendant in error.
    If Michael O’Rourke was not “ selected by a majority of the owners of property fronting on Lehigh avenue,” the contract made with him by the highway department was not valid, and he cannot recover. The department had no authority under the ordinance of December 30th 1873, to make a contract with any other person than one so selected.
    The case of Reilly v. City of Philadelphia, 10 P. F. Smith 467, settled the law that in a suit of this kind, under a like ordinance, the plaintiff must prove affirmatively upon the trial that he was selected by a majority of the property owners. This case was afterwards, notwithstanding the effort of the same learned counsel appearing for the plaintiff here, to have the same reviewed, affirmed, and the same principle applied. See City, to use, v. Stewart, 1 W. N. C. 242. There can be no question of the application of Reilly v. City, to this case.
   The judgment of the Supreme Court was entered, January 27th 1879,

Pur Curiam.

Nothing we think can be added to the opinion of Judge Thayer, upon the point reserved in the court below and upon that opinion.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Carman versus Beam, to use, &c.
    1. Where the plaintiff in an action of ejectment had acquired, the legal title and was in actual possession of the premises before trial, he had nevertheless the right to recover the mesne profits for the previous unlawful possession ; but to justify a recovery it was necessary for him to establish his right to the possession at the time the suit was brought, as fully as if ho were prosecuting his action of ejectment for the sole purpose of obtaining possession.
    2. In an action for mesne profits the plaintiff cannot recover the amount „ of a mortgage which was placed on the property subsequent to the time when the plaintiff showed title to be in himself: to permit a recovery of any part of the mortgage would be to introduce an entirely new element of damages in an action for mesne profits.
    January 13th 1879.
    Before Sharswood, C. J., Mercer, Gordon, Paxson, Woodward. Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 124.
    Ejectment by Jacob S. Beam, to the use of Samuel S. Kelly, against Charles C. Carman, for a house and lot in the city of Philadelphia. Defendants pleaded “Not guilty.” Before the trial the equitable plaintiff obtained possession of the premises as hereinafter stated, and then gave defendant notice of his claim for mesne profits.
    It appeared at the trial that Beam and Carman entered into an agreement in writing, dated September 18th 1867, wherein Beam agreed to furnish all the materials, and to glaze and paint thirty-two houses, then being erected by Carman, and that in payment therefor he was to receive §12,500, to be paid §5000 in cash as the work progressed, and §7500 in real estate, consisting of two of the houses on which the work was to be done, and of which the house in suit was one. This latter Beam agreed in writing to sell to Kelly for §8000, §4000 in cash, and subject to a mortgage debt for a like amount. On February 14th 1868, at the request of Beam and Kelly, Carman executed a deed in escrow to Beam, and the latter one to Kelly, and both were left with a conveyancer with instructions to deliver the deed to Beam on Carman’s order whenever the work on his contract warranted it, and at the same time to deliver Beam’s deed to Kelly. On the -same day Beam, Carman, and one Wilbur, gave to Kelly a bond of indemnity against liens, which also contained a condition that the houses should be finished by June 1868. Kelly advanced to Beam the full amount of the purchase-money; The houses not being completed at the time named, on the 9th of September 1868, ■ Beam, with the assent of Kelly and Carman, assigned his interest in the contract to Wilbur, part of the consideration being that Wilbur should give Kelly a mortgage for $4000 on other premises, and then Kelly was to assign his interest in the house to Wilbur. The latter failed to give the mortgage to Kelly, and in April 1873, Kelly brought this action of ejectment.
    In the meantime Mr. Wilbur had gone on and finished the painting contract, and claimed this house from Carman,, and Carman, on the 21st of August 1873, at the request of Wilbur, made a deed to S. S. Pearson for the premises in question. Before doing so, however, he took from Pearson a bond to indemnify him against any loss by reason of this ejectment suit which was then pending. He also gave to Wilbur, a second mortgage for $2500, which was ‘then on the house unsatisfied, but which Carman had paid off. The original $4000 mortgage on the premises, in the meantime, had been reduced to $3500. This conveyance to Wilbur, and assignment of mortgage, were in full of all claims and demands which he had against Carman. On the 15th April 1876, S. S. Pearson, who then held the title for Wilbur, conveyed the premises in question to S. S. Kelly, the plaintiff, subject to the two mortgages, one for $3500 and one for $2500.
    The plaintiff then gave notice, “ that on the trial a claim would be made for the mesne profits of the premises described in the writ, > and also for the amount of $2500, secured by the defendant by virtue of a mortgage secured on the premises while he was the mere custodian of the title.”
    * The defendant, among others, presented the following points, all of which the court, Piare, P. J. refused:—
    5. That if Beam, after the execution of the deed in escrow, with the knowledge and consent of Kelly, assigned all his interest in the contract with Carman, and all money due and to become due thereon, to Horace P. Wilbur, whom defendant accepted to do the work, then Carman became liable under the contract to said Wilbur instead of to Beam, and the plaintiff cannot recover.
    6. That Carman was liable to Kelly only through his contract with Beam, and that as Beam, with the consent of Kelly, by the writing endorsed on the contract dated September 9th 1868, released Carman from every claim and demand for or by reason of the said contract, then the plaintiff cannot recover.
    8. That even though Wilbur subsequently failed to keep a portion of said agreement with Kelly, yet Kelly having accepted said agreement and released Carman, there was a sufficient consideration for the release to Carman, and plaintiff cannot recover.
    12. That as the plaintiff took the title to the premises in question, expressly under and subject to the mortgage for §2500, he is thereby estopped from making any claim for the amount of the said mortgage.
    The court, inter alia, charged:
    “ For the purposes of this particular house and the rights of Mr. Kelly, the agreement of February 1868, and the making of these deeds, and delivery of them to Yardley, changed the order of payment entirely from what it was in the contract originally between Mr. Beam and Mr. Carman, and gave Mr. Kelly the right to have the first §4000 worth of work applied to his benefit by securing to him the title to this house.
    “ Now, the first question of fact which you have to consider, and it is the turning point of the whole case, is whether or not Mr. Beam did §4000 worth of work upon this contract. If the §4000 worth of work was done then Mr. Kelly has the right to recover, lie had the right to have the first §4000 worth of work done applied to his benefit to give him title. * * * The plaintiff’s case was, that he was to have had the property in 1868, subject to a §4000 mortgage, and in point of fact he did not get it until 1876, and when he did get it, it was subject to mortgages of §6000. For this difference, and including the profits the defendant had made out of the property in the meantime, your verdict should be for the plaintiff, if you so find.”
    Verdict for plaintiff' for §3500, and after judgment thereon, defendant took this writ and inter alia, assigned for error the answers to the above points, and the portions of the charge noted.

      Thomas J. Diehl and J. O. Ferguson, for plaintiff in error.—
    The instruction was given to the jury without regard to the time when the possession of Carman became unlawful; mesne profits can only be recovered against an unlawful withholding of the possession: Heckart v. Zerbe, 6 Watts 260; Zimmerman v. Eshbach, 3 Harris 419. Whore a person takes the title to a property expressly under and subject to an encumbrance, ho thereby assumes the payment of that encumbrance. For the purposes of this case, Peai*son, who was the defendant’s grantee, and who conveyed the title to the plaintiff, was considered as the defendant; and when he conveyed to the plaintiff the title to the premises1 in question, expressly under and subject to this mortgage, and the defendant so accepted to it, he certainly was estopped in an action for mesne profits, from claiming from the defendant the amount, of this mortgage : Campbell v. Shrum, 3 Watts 60; Blank v. Gorman, 5 W. & S. 36; Hoff’s Appeal, 12 Harris 200; Woodward’s Appeal, 2 Wright 322.

      David W. Sellers, for defendant in error.
    By the agreement of 1868, Kelly was to have a new house. The deprivation of possession from September 1868 to 1876, was attended by deterioration, while in the occupation of defendant and those claiming under him. To determine the measure of damages in mesne profits, the necessary expenditure to put it “in ordinary tena,ntable condition,” when possession was received, was certainly allowable: Huston v. Wickersham, 2 W. & S. 308; Kille v. Ege, 1 Norris 112. When plaintiff received the house, it was encumbered with an additional mortgage of $2500, and it was certainly damaged to that amount, and the plaintiff was entitled to recover it.
   Mr. Justice Sterrett

delivered the opinion of the court, February 3d 1879.

The issue, first formed by the pleading, was solely as to the right of the plaintiff below to the possession of the premises described in the writ. Before the trial he obtained possession by virtue of the deed from Pearson, to whom the defendant had conveyed after suit was brought. He then gave notice “ that on the trial a claim would be made for mesne profits, and also for the amount of $2500, secured by the defendant by virtue of a mortgage on the premises, while he wras the mere custodian of the title.”

However it may be elsewhere, in this state it has been decided that in our statutory action of ejectment, mesne profits may be recovered by giving notice of the claim when suit is brought, or after-wards, within a reasonable time before trial: Dawson v. McGill, 4 Whart. 230; Cook v. Nicholas, 2 W. & S. 27. Notwithstanding the plaintiff had acquired the legal title and was in actual possession of the premises before trial, he had the right to claim mesne profits for the previous unlawful detention of the possession; but to justify a recovery, it was necessary for him to establish his right to the possession at the time' suit was brought in 1873, as fully as if he were prosecuting his action of ejectment for the sole purpose of obtaining possession. Accordingly, he undertook to do this by giving in evidence the original contract with Carman and the subsequent agreement and transactions by which it was modified. The main question of fact raised by the testimony was whether a sufficient amount of work had been done under the contact to entitle Beam to .the deed which had been left in escrow with Yardley. The right of the plaintiff to recover hinged upon this question. The learned judge, after calling attention to the original and subsequent agreements and the testimony as to what had taken place between the parties, instructed the jury, in substance, that the first question of fact for their consideration, and the turning point of the case, was whether the necessary amount of work had boon done by Beam under the contract. The view taken by the court of the contract and subsequent agreement of the parties was substantially correct. The questions raised by the testimony wore fairly submitted to the jury with full and appropriate instructions; and the verdict established the fact that the necessary amount of work had been done as claimed by the plaintiff; that he was entitled to the deed, and consequently to the possession of the premises in controversy. We discover no error in the rulings of the court, touching the right of the plaintiff to recover mesne profits.

We think, however, there was error in the instructions as to the measure of damages, especially in regard to the $2500 mortgage. The plaintiff, after bringing suit, accepted the conveyance from Pearson, expressly subject to both mortgages, amounting to $6000. In addition to this he agreed to pay one-half the delinquent taxes and three months’ interest on the mortgages, $269.79. This was a voluntary act on his part, and he had no right, in the present form of action, to call upon Carman to make good the difference between $4000 and the amount of the encumbrances subject to which he took the legal title. It would be introducing an entirely new element of damages in an action or claim for mesne profits to permit a recovery of any part of the mortgage in question. There is nothing in the circumstances of the case to justify a departure from the general rule which sanctions a recovery for the rent or fair annual value of the premises, and for injury, if any, done thereto. A claim for mesne profits, in an action of ejectment, is governed by the same general rules that are applicable to ordinary actions of trespass. When a plaintiff has recovered his possession, by ejectment or otherwise, that possession by operation of law relates back to the time when he was excluded, and hence all acts done on the premises, by those who have kept him out, are to be regarded as ordinary intrusions on his possession.

There is nothing in any of the assignments of error that appears to require further notice.

Judgment reversed, and a venire de novo awarded.


author: Mr. Justice Gordon

text:
    Sausser et al. versus Steinmetz.
    Plaintiff made a parol contract with defendant to lease certain premises for five years, at a fixed rent. Defendant refused to take the premises at the f.jini> agreed upon, and they remained untenanted for a year, when plaintiff an action to recover damages therefor, Held, that the action would (lie; but as the proposed lease was within the Statute of Frauds, and hence the parol agreement could give it no force, the damages recovered could be only those which arose directly from the breach; and reversing the court below, that the rent agreed upon could not be used as a measure of damages, nor could the plaintiff recover for the time the premises were idle, in the absence of proof that he was prevented from renting them by reason of the agreement with the defendant.
    January 13th 1879,
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1877, No. 183.
    • Assumpsit by Daniel Steinmetz against B. E. Sausser and others, trading'as B. E. Sausser & Co.
    In the fall of 1871, defendants made a parol contract with plaintiff to lease from him, for five years, certain premises. The lease was to commence on January 1st 1872, $2000 to be paid for the first year, and $1750 per year thereafter. The plaintiff was to make certain alterations in the building. He commenced these alterations, and in December 1871, defendants presented him with a lease which he refused to sign, on the ground that it contained conditions which had not been agreed upon. The defendants then refused to take the property unless this lease was signed. The plaintiff proceeded with the alterations, and when finished, on December 30th, tendered the keys of the building to defendants, who refused them. Immediately after January 1st 1872, plaintiff put a bill on the premises “ To Let;” but a year elapsed before he secured a tenant, and then at only $1800 a year. The narr. contained an averment of refusal by defendants to have and take possession of the premises and pay the rent and that the premises remained idle, unoccupied and unproductive.
    At the trial before Biddle, J., the plaintiff requested the court to charge as follows, which was refused.
    “ The plaintiff, not claiming damages by reason of the alterations and improvements mentioned, and there being no evidence of any other specific damages sustained, should your verdict be for the plaintiff, the damages to be assessed can only be nominal damages.”
    In the general charge the court said:
    “ Now in this case a gentleman had leased his property for $2000, and by the violation of the contract he did not receive a dollar, and you might consider that the $2000 represents the amount of injury that he sustained, if, as he tells you, he advertised and was only able to rent his place at the end of the year, and you may take that as a measure of damages, if you wish.”

      The court also refused to charge at the request of defendants as follows:
    “ The tender of the keys without an accompanying lease duly executed and sufficient in law to assure upon the conditions and for the term agreed upon the possession of the premises to the defendants, was not such a compliance with the alleged agreement to enter into a lease as under the testimony would entitle the plaintiff to recover in this action and your verdict should be for the defendants.”
    The verdict was for 82448.58, for plaintiff, and judgment was entered thereon, when defendants took this writ, among the assignments of error being the refusal of the above points and the portion of the charge noted.

      B. F. Fisher, for plaintiffs in error.
    The measure of damages for the breach of a contract to lease is the same as for the breach of a contract to sell land: McClowry v. Croghan’s Admr’s, 7 Casey 23; Bowser v. Cessna, 12 P. F. Smith 148. Nothing can be recovered for the loss of a parol bargain for the sale of land except when there is fraud, beyond compensation for the loss actually sustained, and not for the value of the bargain : Harris v. Harris, 20 P. F. Smith 170 ; Dumars v. Miller, 10 Casey 319; Hertzog v. Hertzog, Id. 418; Thompson v. Sheplar, 22 P. F. Smith 160; Meason v. Kaine, 17 Id. 131; Ewing v. Thompson, 16 Id. 383; Bender v. Bender, 1 Wright 419; Haines v. O'Conner, 10 Walts 320 ; McNair v. Compton, 11 Casey 23 ; Sands v. Arthur, 3 Norris 479.
    The plaintiff having sustained no special damage he is only entitled to recover the difference between the rent contracted to be paid and a fair rent of the property at the time when it should have been delivered: Newburgh v. Walker, 8 Gratt. (Va.) 16; Trull v. Granger, 8 N. Y. 115; Wolf v. Studebaker, 15 P. F. Smith 460.
    The tender of the keys without a lease would not give possession of a term within the Statute of Frauds: Brown v. Metz, 5 Watts 164; Smith v. Webster, 2 Id. 478 ; Huber v. Burke, 11 S. & R. 238 ; Sutherland v. Purry, 2 P. & W. 145.

      J. B. Bhoads, for defendant in error.
    The refusal to accept the premises by defendant relieved plaintiff from the necessity of tendering a lease : Sugden on Vendors 261; Tinney v. Ashley, 15 Pick. 546 ; Weaver v. Zimmerman, 3 W. N. C. 56; Hampton v. Speckenagle, 9 S. & R. 222. The court laid down the proper measure of damages: Feigel v. Latour, 1 W. N. C. 335.
   Mr. Justice Gordon

delivered the opinion of the court, January 27th 1879.

It would appear from the evidence in this case that some time in the fall of 1871 B. F. Sausser, representing himself and his copartners, made a parol agreement with Daniel Steinmetz, the plaintiff below, to lease for the term of five years, from the 1st of January then next following, certain premises on north Fifth street, in the city of Philadelphia, Steinmetz agreed to make certain alterations in the premises, required and deemed necessary by Sausser, in order properly to fit them for the business the defendants proposed to carry on therein. According to the finding of the jury, the plaintiff performed his part of the agreement, but the defendants were in default, in that they refused to execute the lease. For the breach of this • oral contract this suit was brought, and, in discussing the measure of damages to which the plaintiff was entitled, the learned court below charged,, “ Now in this case a gentleman had leased his property for $2000, and by the violation of the contract he did not receive a dollar, and you might consider that the $2000 represents the amount of injury that he sustained, if, as he tells you, he advertised and was only able to rent his place at the end of the year, and you may take that as a measure of damages if you will.”

The serious fault in this instruction is that it is based on a false premise; the plaintiff had not leased his property. The proposed lease was within the Statute of Frauds; hence, the parol agreement to léase could give it no force, and to predicate anything whatever of that intended lease was error. Either party had the right to refuse its execution, and the defendants were guilty of no fraud in availing themselves of such right. Neither party could plead ignorance of the statute, and hence both are presumed to have known that either might take advantage of its terms, and that the defendants did avail themselves of that privilege cannot be regarded as a fraud on the plaintiff: Harris v. Harris, 20 P. F. Smith 170. What these parties had was but an agreement to lease, and, although for the breach of such an agreement, according to Weaver v. Wood, 9 Barr 220, an action will lie, yet, necessarily, the damages recoverable are such only as result directly from such breach. What, then, is the true measure of damages in this case ? Not the amount of the proposed rent, for that, by the statute, the plaintiff is not entitled to, neither can it be used for such measure, for the lease itself, being for a greater term than three years, is void, and so cannot be used for any purpose whatever. He could not recover for the loss of his bargain, for, on authority, this is not allowable: Dumars v. Miller, 10 Casey 319. It does not appear that in consequence of the agreement with the defendants Steinmetz was prevented from leasing to some other party, for at that time he had no other offer, and so it would seem that unless be was induced by his contract with the defendants to so alter the premises as to unfit them for ordinary purposes, or to put work upon them which was unnecessary for their improvement or repair, he has suffered no injury from the breach complained of, and his damages are but nominal.

If the rule submitted by the court to the jury is to obtain, then may a contract, void by the statute, be specifically enforced. Says the learned judge, you may measure the damages by the amount of the proposed rent; the premises, notwithstanding the efforts of the landlord to get a tenant, have remained unoccupied for one year, so you may assess damages at one year’s rent, but, of course, the same rule must apply had the premises, under like conditions, remained unoccupied for the whole term of five years. But this was all there was of the parol contract; when the rent is paid, the contract is fulfilled on part of the lessees, and therefore there is a specific execution of it. By the same rule you might enforce a parol contract for the sale of land, and so annul the Statute of Frauds and Perjuries all together; a result not allowable either in reason or on authority: McClowry v. Croghan’s Adm’r, 7 Casey 22; Wilson v. Clarke, 1 W. & S. 554.

It follows, that as tho case stood in the court below, the defendant’s first point should have been affirmed, since the plaintiff, having proved no actual damage resulting from the breach of the contract to lease, was entitled only to a judgment for nominal damages.

The disposition of the eighth specification renders comment on the remaining exceptions unnecessary.

Judgment reversed, and a new venire ordered.


text:
    Pennsylvania Railroad Co. versus White.
    1. Negligence is always a question for the jury, when there is reasonable doubt as to the facts, or as to tho inferences to be drawn from them. Where the measure of duty is ordinary and reasonable care and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury.
    2. W. took passage on a local train, for “ Penn Valley.” After leaving the first station east of his destination, the brakeman, as was the custom of the road, announced “ The next station will be Penn Valley.” Shortly after the train slowed-up and stopped opposite a platform and station-house marked] “ Penn Valley Station.” W. stepped off the car on the left side, for the pur-r pose of crossing the track to reach the platform, and was struck by a passing express train and instantly killed. It appeared that the train had stopped! in compliance with a rule of the company, that tho local trains should give the preference to express trains at stations, and that the regular platform for local passengers to alight was on the right and some distance beyond where the train had stopped. Held, that the question of contributory negligence was properly submitted to the jury.
    3. The rule, that it is the duty of a person about to cross a railroad track to stop, look and listen, is not always applicable to passengers leaving a train and crossing the track, to reach the depot at tho point of destination.
    January 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 138.
    Case by Phoebe White and her children, the widow and children of John W. White, against the Pennsylvania Railroad Company, to recover damages for the death of said John W. White, which it was alleged was caused by the negligence of the defendant.
    At the trial, it appeared that the deceased and a companion took passage on a local train of defendant, at Trenton, on the 17th of April 1876, to go to Penn Yalley, for the purpose of hunting. After leaving the first station east of their destination, the brakeman, in pursuance of a custom or regulation of the company, announced that the next station would be Penn Yalley. Shortly thereafter the train “slowed up” and stopped in front of a platform and station-house, on which was painted over the door “Penn Yalley Station.” This platform and station-house were on the leftside of the road, and in order to reach them it was necessary to cross the other track. As soon as the cars stopped the deceased, somewhat encumbered with his dog and gun, started from the car on the left side with the purpose of crossing the track and reaching the platform. As he alighted from the car the east bound express train for New York came along, at a rapid rate of speed, and struck and instantly killed him. It also appeared that on the opposite, or right side of the track, a short distance westerly from the point of accident, there was another platform, which was intended for way-passengers, and where they were regularly received and discharged. It did not appear, however, that White knew of this platform or that the train had stopped, before reaching the regular platform, which it was required to do by the regulations of the company, in order to give the express train a clear track at that point.
    Tlie court (Elcock, J.) charged, inter alia, as follows:—
    [“ The question here is, which of the two parties to this controversy was negligent — that is, whether Mr. White, the decedent (and the father and husband of the plaintiffs), or the Pennsylvania Railroad Company, by its agents or servants, on this particular occasion ?]
    “ There does not appear to be much contest in the evidence as to wThat pi’oduced the death. Mr. White got upon the train at Trenton, bound for Penn Yalley. At the next station north of Penn Yalley the announcement was made by the agent on the train that the-next station would be Penn Yalley.
    “ Under the rules of the company defendants, a local train was bound to give way to the fast express, which was approaching on the other track, and the local train was not allowed to arrive at the station if the express was approaching, and the fast train was not allowed to pass the station if the local train had arrived at it.
    “ The accident occurred by reason of the train stopping at a particular point, and Mr. White getting off and crossing the track upon which the express train was running, and which struck and killed him, in the manner detailed by the witnesses.
    “A passenger on a railroad train is bound to observe all the reasonable rules and regulations of the company, which are for his care and protection. He is obliged to keep his seat until he arrives at the station, and get off on the platform provided; and he is bound to use due care in leaving the train.
    “ The company are bound to provide good cars, competent conductors, a good roadway, and good platforms upon which he can be landed.
    “If the proximate cause of the injury complained of resulted from a non-compliance with any of these rules by either party, the act would- be negligence in the party so acting.
    “ If the passenger or traveller is guilty of negligence he cannot recover.
    “ If both parties are negligent, the plaintiff cannot recover, because the law does not stop to inquire, in such cases, the degree of negligence.
    “ The main question is, whether the decedent was guilty of negligence in attempting to land or leave the train at the point and in the manner which he did. Ordinarily, it would be negligence in a man attempting to leave a train and cross a track, unless he had stopped, looked and listened for an approaching train. It has been very truly said, that this rule of law originated and was applied to cases where people travelled with teams, &c., on highways which crossed railroads at grade, and whore common prudence would forbid any one to cross without what has been determined ordinary caution. That rule should be applied in this case, unless the rule of the company avoided its application. The local train upon which the decedent was travelling under the rules of the company, could not arrive at the station when the express was approaching it, because, if it had gone on to the proper stopping points, it would have reached it probably at the same moment as the express, and have been a breach of the rules of the company, and consequently negligence.
    |_“ But, in conformity with the rules, the train upon which decedent was, stopped at a point north of Penn Valley station, on what is termed the Philadelphia track — that is, north of the platform upon which the passengers should be landed, and opposite to another station on an adjoining track, which was known as the Penn Valley station, which had the sign over the door ‘Penn Valley Station.’ Mr. White was, therefore, in this position : he had got on the train bound for Penn Valley, and the train had gone to a point near the platform upon which lie was to land and at the point at which he saw ‘ Penn Valley Station,’ and the train stopped. The question arises, and is for your determination solely, whether a reasonable, cautious and prudent man would, at that point, have attempted to land in the manner in which he did. If you find that a reasonable, cautious, prudent man, under all the circumstances, would have got off at that point, in the manner in which he did, then he would not be negligent.]
    [“ There may- be a question, whether he was induced by reason of any invitation in the conduct of the company to land at this peculiar point. You must say, if a careful, reasonable, prudent and cautious man, from the circumstance of arriving at that particular point, would be justified in landing there as his place of destination. You must also, in this connection, determine whether he was or not bound to look to the right and left to find a platform, to ascertain whether they were going forward, whether there was a platform upon that track where he could land, and whether he should not, in any event, have got off on the other side of the car. What was prudent for him to do ? Should he have landed there, or was he, in all views of the case and under all the circumstances, justified in acting as he did ? Had he a right to presume that he had reached the end of his journey, and would be justified in getting off the car?]
    [“ In this connection, if Mr. White had reason to presume fairly from defendant’s conduct that he had got to the end of his journey and had arrived at the station, he had a right to rely upon the rule of the company which would forbid another train from passing the station while his train remained there; and, therefore, the obligation to look beyond the point at which his train had stopped was avoided. The rule must work as well in his favor if the defendant’s conduct led him to fairly presume he had reached the proper station. It was a strange position for a man to be placed in. It occupied but a moment of time, and the whole question in the case after all is, would a reasonable and- prudent- man have attempted to get off the train and cross the track as he did, under all the circumstances ?]
    “ If he had notice or knowledge that that was not the station, the plaintiff cannot recover.
    “ It is, therefore, very important that you should inquire into the testimony which has been offered here upon the part of the defendants, first, that of the brakesman, who was acting as baggage-master and was attending to the fire, as to whether he had told Mr. White or Mr. Allen to get off at the right hand side. [If they heard that, or he had spoken in such a loud voice that it could be heard, they were bound to observe the direction and get off in the manner directed, because he was the agent of the company for that purpose.”]
    The defendant’s second, third and fifth points, with the answers of the court thereto, were as follows:
    2. If the company provided a platform for the exit of passengers at Penn Valley station, to which the deceased was bound, it was his duty as a passenger to leave the train by the means provided by the company, unless a departure from the observance of this duty was justified by the most pressing exigencies, and the necessity for such departure, if it existed, must be shown by the plaintiff, by clear and satisfactory testimony.
    Ans. “ That I affirm with the instruction I have already given, that if he fairly had the right to presume the station he attempted to get out at was the station to which he was bound, why then it is a question for you to determine whether ho, in the exercise of prudence and care and a reliance upon the rules of the company, got off in a proper manner and at a proper time.”
    8. If the deceased undertook to cross the defendant’s track, it was his duty, before so doing, to stop, look and listen, and this duty was the more imperative if he alighted on the opposite side to that provided by the company.
    Ans. “ That I affirm as an abstract proposition.”
    5. The evidence showing that the deceased left the train on the wrong side, and there being no evidence of any such paramount necessity for his so doing, the plaintiff is not entitled to recover.
    Ans. “ That I affirm, with what I have already stated, as to whether you can find evidence in the case from which the plaintiff would fairly infer that he had arrived at Penn Yalley station, for which point he was destined. In regard to that, as I said before, you must look to the question as to whether he was not bound to look for the platform, and for approaching danger of any kind.”
    Yerdict for plaintiffs for $5000, and judgment thereon. The defendant took this writ, assigning for error the above portions of the charge in brackets and the foregoing answers to points.

      Ohapman Biddle, for plaintiff in error.
    There was no evidence that deceased had seen the sign “Penn Yalley Station,” and it was error to state it as a fact in the charge to the jury: Sartwell v. Wilcox, 8 Harris 123. A passenger is bound to inform himself of the regulations of the company governing the conduct of its trains, where are the stopping stations and whore he has the right to alight from the train, and if deceased alighted at a point which was not a regular stopping-place, he did it at his own peril, and it was negligence per se: Dietrich v. Railroad Co., 21 P. F. Smith 436; Railroad Co. v. Zebe, 9 Casey 326; Sullivan v. Philadelphia & Reading Railroad Co., 6 Id. 234. There was no necessity for deceased to leave as he did, and the court erred in its qualification of defendant’s second point. Calling out the name of the next station and the stopping of the train were not an invitation to alight: Railroad Co. v. Aspell, 11 Harris 151; Lewis v. London, Chatham & Dover Railway, L. R. 9 Q. B. 70. It was error to state to the jury, that if deceased had reason to presume that he had reached the end of his journey, he had a right to rely upon the rule of the company forbidding another train from passing the station at the same time. The rule required that the local train should stop, and deceased was hound to know this regulation, or at least, to stop, look and listen before crossing the track, and in not doing so, he was guilty of negligence, per se: Nagle v. Allegheny Valley Railroad, ante, 35.

      R. P. White, for defendants in error.
    [Sharswood, C. J. — What was the alleged negligence of the Railroad Company ?]
    Mr. White. — Notifying passengers that the next station is “Penn Valley,” and when the train stops opposite a station with that name thereon, and a passenger alights, he is killed by a passing train.
    [Sharswood, C. J. — I thought the brakeman only said, “the next station will be Penn Valley.”]
    Mr. White. — So he did.
    [Sharswood, C. J. — Then it is a different thing from saying, the next place we will stop at will be Penn Valley. The train might stop a number of times before reaching that point.]
    Mr. -White. — It would be different if the train had been stopped in an open field; but where the train did stop was directly in front of a place marked as “Penn Valley Station;” there was no evidence on which to submit the question whether White saw this sign. It was displayed at the landing-place for the purpose of being seen. He could not have looked in that direction without seeing it, and he stood on the platform facing it till the car stopped, and then went towards it. He could not have avoided seeing it, and his actions indicated that he did see it and obeyed the intimation it conveyed, that there he was to alight.
    The words of the court could not be misconstrued. No one pretended that White lived long enough to tell what he had seen or heard, and the jury knew and could not help knowing that the court was speaking of the inferences to be drawn from the admitted facts of the case.
    The announcement of the station and the stoppage of the train, were at least evidence of a request to alight, and the question of negligence was properly left to the jury: Rose v. N. E. Railway Co., L. R. 2 Ex. Div. 248 (1876-1877); Bridges v. North London Railway Co., L. R. 7 H. L. 213.
   Mr. Justice Sterrett

delivered the opinion of the court, February 3d 1879.

The facts and circumstances of this case, as disclosed by the testimony, would not have justified the court below in deciding, as matter of law, either that the deceased was chargeable with contributory negligence, or that there was not sufficient evidence of negligence, on the part of the employees of the company defendant, ■to go to the jury. These were controverted questions of fact which it was the province of the jury to determine, and it would have been error to have withdrawn them from their consideration.

Negligence has been defined to be “ the absence of care according to the circumstances,” and is always a question for the jury when there is reasonable doubt as to the facts, or'as to the inferences to be drawn from them. When the measure of duty is ordinary and reasonable care, and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury. There are, however, certain duties of a precise and determinate nature, the neglect of which the law declares negligence per se. Thus it has been repeatedly held that it is the duty of a person about to cross a railroad track to stop, look and listen, and the failure to do is negligence : Pennsylvania Railroad Co. v. Beale, 23 P. F. Smith 504; Nagle v. Allegheny Valley Railroad Co., ante, 35. But this rule is not always applicable to passengers leaving a train and crossing the track to reach the depot at the point of destination. There are duties which spring from the relations existing between the carrier and its passengers. It is the duty of the company to provide for the safe receiving and discharging of passengers. It is bound to exercise the strictest vigilance not only in carrying them to their destination, but also in setting them down safely, if human care a,nd foresight can do so: Railroad Co. v. Aspell, 11 Harris 147. Ordinary prudence and due regard for the safety of passengers alike require that special care should be exercised at public crossings and depots by passing trains. In view of this the company has provided by rule No. 99 of its regulations “ That trains approaching stations, on double track, where a passenger train may be standing, receiving or discharging passengers, must be stopped before reaching the passenger train, and not go forward until the passenger train moves on, or signal is given to come on.”

The deceased and his companion took passage on the local train at Trenton for Penn Valley Station, for the purpose of hunting. The testimony tended to prove that after leaving Morrisville, the first station east of their destination, “Penn Valley” was announced as the next station; that shortly afterwards, the train “slowedup” and stopped in front of a platform and station-house on which was painted, over the door, “Penn Valley Station;” that as soon as the cars stopped, the deceased, somewhat encumbered by his dog and gun, left the car, on the left side, for the purpose of crossing the track and thus reaching the platform. Just as he alighted the east bound express for Now York came along at a rapid rate of speed, struck and instantly killed him. It was also shown that on the opposite, or north side of the track, and a short distance westerly, there was another platform and station at which way-passengers were regularly received and discharged; but, it did not clearly appear that the deceased was aware of this, nor of the fact that the way train slowed up and stopped before reaching its regular station, on the right, for the purpose of giving the express train a clear track, to which it was entitled at that point. These and other facts, fairly deducible from the testimony, presented the questions which were properly submitted to the jury. It was claimed by the plaintiffs below, that having been warned that the next station would be “Penn Valley,” and the train having stopped opposite the platform and station bearing that name the deceased had a right not only to assume that he had reached his destination and was expected to leave the cars, but that the rule of the company, as to passing trains, would be observed, and that he could safely cross the intervening track and reach the station. '‘On the other hand it was claimed that the deceased was notified that the train had not reached the proper station and was warned not to alight on the left side. These were all questions of fact for the jury, and in submitting them the learned judge, among other things, said: “The main question is whether the deceased was guilty of negligence in attempting to land or leave the cars at- the point and in the manner he did. Ordinarily it would be negligence in a person attempting to leave a train and cross a track, unless he stopped, looked and listened for an approaching train. It has been very truly said that this rule of law originated and has been applied in cases where persons were travelling with teams, &c., on highways which crossed railroads at grade, and where common prudence would forbid any one to cross without what has been determined ordinary caution. The rule of law should be applied in this case, unless the regulations of the company avoided its application.”

He then suggested to the jury the inquiry whether the deceased “was induced by reason of any invitation in the conduct of the com-, pany to land at this particular point;” and, in that part of his charge covered by the fifth assignment of error, instructed them that if he had reason to presume fairly, from the conduct of those in charge of the train, that he had arrived at the station, he had a right to rely on the observance of the company’s rule, forbidding another train to pass the station while his train remained there. In this there was no error. Whether he knew of the existence of the company’s rule or not, he might reasonably assume under the circumstances that he could safely cross the track and reach the platform without fear of a train passing while his train was there. The testimony, as to the time, place and circumstances, was all proper for the consideration of the jury on the question submitted to them, and it was left to them with instructions which could not be misunderstood. It is true, the learned judge was not strictly accurate in saying that the deceased had reached a point “at which he saw Penn Valley Station.” There was no positive evidence that he saw either the station or its name, but was it not a fair and just inference from the testimony that he did ? This was doubtless all that was meant, and it is not at all probable that the jury were misled by the language employed.

Without noticing in detail those portions of the charge relating to tho conduct of the deceased, and assigned for error, it is sufficient to say that the testimony was all fairly left to the jury, with full and appropriate instructions ; and they must have found that, under the circumstances he was not chargeable with negligence which contributed to his injury and death. In other words, the verdict must have been based on negligence of the company alone.

On this subject the plaintiffs below were not without evidence, some of which has already been incidentally noticed. The testimony was such as to suggest tho inquiries, whether those in charge of the train on which deceased was a passenger, exercised proper care in not stopping before they reached either station, and in stopping opposite a station, where passengers, destined for that point, would naturally suppose they were expected to leave the cars, whether there was or was not neglect of duty in not warning the passengers to keep their seats until the express train passed; and whether the rule of the company requiring approaching trains to stop when a passenger train was standing at the station, was not disregarded. There was testimony, properly before the jury, on which they might base their verdict, and we find nothing in either of the assignments of error that would warrant us in reversing tho judgment.

Judgment affirmed.


text:
    National Oil Refining Co. versus Bush.
    1. A tenant claimed to hold under an old agreement. The landlord denied that the agreement was in force, and notified the tenant that he would eject him in ten days and hold him liable for damages, which notice, three days thereafter, was followed by another notifying him that the landlord considered him a trespasser. The tenant held on for some time thereafter, and then surrendered the premises. In assumpsit for use and occupation, Held, that the question, whether the tenant was or was not a trespasser, was for the consideration of the jury.
    2. Such an action is not necessarily founded upon a specific contract, written or oral, but upon the use of the premises. The occupant may be in fact a trespasser, but the owner may waive the trespass and recover in assumpsit, and it does not lie with the tortfeasor to defeat him by interposing his own wrong. It was error, therefore, to instruct the jury that they must find some new contract between these parties to rebut the presumption arising from these notices, for that presumption might well be rebutted by the subsequent acts of the parties.
    January 13th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1878, No. 135.

      Assumpsit by the National Oil Refining Company against Yan Camp Bush, for the use and occupation of certain premises.
    The plaintiffs in the court below declared in assumpsit, filing two counts for use and occupation of certain premises; the first count being in indebitatus assumpsit and the second on a quantum valebat. To these the defendant pleaded non assumpsit, payment, set-off, and payment with leave, &c., and under his pleas gave notice of special matter: and afterwards, on the trial, withdrew the plea of set-off.
    The case was tried twice. On the first trial, there was a verdict for the plaintiffs for $397.56, followed by a motion for a rule for a new trial. A rule was granted, and was afterwards made absolute. On the second trial before Lynd J., by leave of the court, defendant withdrew both his plea of set-off and notice of special matter, and proceeded merely on the plea of non assumpsit.
    • The facts were these: On December 30th 1873, the plaintiffs made the following offer to defendant:—
    “ I am willing to give you the refusal of the National Oil Refinery (near Norristown, Pa.), until Monday at noon, January 5th 1874, on the following terms and conditions:

      iC You are to put the-works in running order to suit your purposes at your oivn expense, and to be allowed to use whatever material is on the premises for that purpose ; provided that the same can be done without impairing the value or usefulness of the works as they now are. You shall have until April 1st 1874 to experiment, and if on that date you conclude to abandon the enterprise, you are to leave the works in an improved condition, and to pay us one hundred dollars ($100) rent for the occupancy up to that time; but if you wish to continue the business, you shall have the works until January 1st 1875, at a rental of one hundred dollars ($100) per month, with the further privilege of a lease for five years longer, at an annual rent of fifteen hundred dollars from January 1st 1875, payable monthly. You are to have the works insured for the benefit of our company before commencing any work, and to keep them so insured at your expense and cost for five thousand dollars ($5000), and I am to hold the policies; and in case of damage by fire, no rent shall be charged during the rebuilding of the same, provided the business should be interrupted thereby.”
    The defendant remained in possession until after April 1st 1874, when plaintiffs sought to bind him by a written lease, embracing the limitations of the foregoing offer. Bush alleged that one of the clauses of the proposed lease did not express correctly the agreement as to insurance, and he would not give his assent thereto; and then ensued a series of negotiations, which finally culminated in a notice, dated October 16th 1874, the company claiming that defendant was liable under the .terms of the proposed lease. This notice stated that, by virtue of the lease the company had had, since the first of October, the right to notify him that it would not keep him as tenant after January 1st 1875, and that it then gave him that notice, so as to avoid all question. “But,” it added, “if you wish to remain, the company will retain you upon terms to be settled upon now, you to make a proposition first. If you have no proposition to make, the company will propose terms; but this negotiation must not he allowed in any manner to prejudice the position of the company, as refusing to have you for a tenant after January 1st 1875, unless new terms are decided upon.”
    After this notice, negotiations looking to an adjustment still proceeded, hut proved fruitless, and on January 5th 1875, the company, through its attorney, sent the following notice:
    “ I am authorized and requested by the National Oil Refining Company of Philadelphia, to notify you that, having already given you due notice of their intention to repossess themselves of the premises lately occupied by you as their tenant, near Norristown, they give you ten days’ time from the receipt of this letter in which to remove therefrom, and should you have failed to do so at the expiration of this interval named, they will forthwith proceed, by due process of law, to eject you, and will hold you responsible for damages and costs.”
    And on January 8th 1875, the same attorney sent the following letter
    “ My attention has just been called to the fact that you propose running the stills of the National Oil Refining Company, and to have the policies of insurance endorsed with an assent to your action. I hereby notify you that you are but a trespasser on the premises, and that rny clients protest against any action such as you propose, and will hold you in damages therefor.”
    The negotiations were renewed, and on March 23d, Mr. Schick, as the representative of Bush, addressed the company as follows:
    “ It is some time since I promised you that in a few days you should hear from mo in reference to the rent of the National Oil Refinery. I regret that unavoidable circumstances have occasioned this delay, hut I promise that it shall not be much longer. With many thanks for your patience, 1 remain sincerely yours.” '
    Bush had stopped paying the rent. The efforts of the company to agree upon some terms continued until July, when the company brought an action of ejectment against him.
    It had, in April 1875, instituted the action now under review, which was in assumpsit, for compensation for the use and occupation of the properly in the months of January, February and March previous.
    The defence was that the form of the action should have been trespass, and not assumpsit; that, after a notice to quit, a landlord cannot sue for use and occupation of premises held over; and that the notices of October 1874, and January 1875, for ever severed Bush’s relation of tenant to the company.
    The contention of the company, on the other hand, was that, if a landlord permits the tenant to hold over after the time fixed by the notice to quit, in order that he may negotiate with him for a new letting, and does so negotiate with him, the original contract relation subsists, and the tenant is liable thereon.
    In the charge, the court, inter alia, said :
    “The plaintiffs must establish a contract that the defendant should occupy the premises as their tenant. Now in what way have they established their assent that he should remain on the premises as tenant under them ? Surely the assent of the landlord must, in some way, be shown. It certainly in this case cannot arise from the notice to quit, and the two letters which the plaintiffs, by their counsel, sent the defendant. There is nothing in those papers showing an assent to his remaining. These are notices to him that he is staying against their assent, and without right, and I do not understand-that there is any other testimony as to assent or dissent. If, besides the notice to quit, and two letters I speak of, you find there is a difference between the lease they agreed to give, and the one they tendered, and that is now in evidence, then that fact is some evidence to show that they did not intend to hold him as tenant.
    “In this case you find a notice to quit October 16th 1874, and that is followed up by two letters addressing him and regarding him as a trespasser, and there is no evidence that after that the plaintiffs assented to his remaining. If you find then that there is no contract, and that the original contract was rescinded by the notice to quit, followed up by two letters, then the form of action is wrong, and the plaintiffs cannot recover. But it is argued that Mr. Schick’s letter is evidence to indicate a contract. It may be, but it is certainly not satisfactory evidence of a contract. On its face it is not clear and satisfactory that there was an agreement, but it rather looks to a negotiation for a new contract. ■ In the face of the notice to quit October 1874, and the two notes of plaintiffs’ counsel, and of the statement of Mr. Stevenson here on the stand that no new contract had been made, it would be straining a point to say that this letter of Mr. Schick was evidence of a contract. The point is for you as a matter of fact, but in my opinion it would be in conflict with the testimony to hold this letter as evidence of a contract.
    “I say to you that you will remember that Mr. Stevenson has said that negotiations were going on in the time for which compensation is demanded here ; but my recollection of his testimony is that these negotiations were for a new agreement — a new contract for rent. You will remember how this was. If the negotiations were for a new contract, then I say that the fact does not help plaintiffs’ case, because if they were for a new contract it showed that the first one had been abrogated. The notice of October 1874, and the notes of plaintiffs’ counsel to defendant, are in evidence; after these if there were negotiations, it makes no difference unless they ended in an agreement.”
    Verdict for defendant, when plaintiffs took this writ, assigning for error the notice of October 16th 1874, offered by defendant, and the portions of the charge noted above.

      Henry Reed and William W. Wiltbank, for plaintiff in error.—
    The case in 5 W. N. C. 143, between these same parties, for a different portion of the same year, rules this case. This action for use and occupation will lie: Stockton’s Appeal, 14 P. F. Smith 58. The court erred when they said that from tbe date of the letters written by plaintiffs’ counsel and the notice to quit there was no evidence that plaintiffs assented to the defendants remaining, and adding that the notes were direct evidence of the plaintiffs’ refusal. It was also error to express an opinion that the letter of Schick was no evidence of a contract. The instruction was erroneous also in regard to the effect to be given to the negotiations. The court, in substance, said that if a tenant remained in possession of premises until an ultimate agreement was reached he was not liable for such use except in an action of trespass for damages.

      Rudolph M. Schick and George Jicnkin, for defendant in error.
    ■ — The plaintiff in error assumes that this case is decided by Bush v. Oil Company, 5 W. N. C. 143, because that case is for another portion of the same year. In this case, however, there was conclusive evidence of the election of the company to treat Mr. Bush as a trespasser, consisting of the two letters which wore not in evidence in that case. And in that case there was no evidence that the company had made the election to treat Mr. Bush as a trespasser, except the notice to quit of October 16th 1874.
    It appearing, then, by the verdict of the jury, that the landlord has made his election to treat Bush as a trespasser, we submit that they are bound by the election, and cannot afterwards elect to treat him as a tenant and sue in assumpsit: Goddard v. Hall, 55 Maine 579; Featherstonhaugh v. Bradshaw, 1 Wend. 134.
    The language of the learned judge is to be considered with reference to these facts. There is nothing in these facts in common w'ith the case of a tenant remaining over, pending the negotiation of a new agreement. Indeed, the supposition is incompatible with the undisputed condition of affairs. The tenant insists that he is in by his old contract, and the landlord insists that he is in without right, styles him a trespasser, and treats him as such. This state of things continues for two months. The court decides that the tenant has no right to remain. How, then, can a contract be implied. The facts conclusively negative the implication.

      The letter of Mr. Schick, under date of April- 23d 1875, was written three weeks after this suit was brought, and we are unable to see that any other inference can be drawn from it than that there was negotiation with reference to this suit.
   Mr. Justice Gordon

delivered the opinion of the court, February 3d 1879.

Undoubtedly the court below was right in submitting to the consideration of the jury, the question whether Bush was occupying the premises in controversy at the sufferance of the Refining Company or as a trespasser merely. If, indeed, as was said in the case between these same parties, reported in 5 W. N. C. 143, the defendant was’ permitted to remain in the possession of the property, and he did so remain until the plaintiff elected by its writ of ejectment, or otherwise, to regard him as a trespasser, up to that time, it might recover from him the worth of the premises, by the action of assumpsit for use and occupation; but from the time the company made its election to. treat him as a trespasser, it could no longer recover from him on the ground of an implied contract; for, the landlord, having thus determined the status of the occupant, there is no room left to presume a contract. It is true, indeed, that in the first place, the tenant cannot shelter himself under such a plea, for it is not for him, but the landord, to say in what light he shall be regarded, whether as tenant or trespasser; whether the tort shall be waived or not; but when the landlord has once determined this question, the matter is settled, and he must abide by his own decision.. It is upon this ground that the case of Goddard v. Hall, 55 Maine 579, is put. It was there held, that an action for use and occupation could not be maintained against a disseisor, and that a judgment upon a writ of entry negatived the relation of landlord and tenant. Of like force is the case of Featherstonhaugh v. Bradshaw, 1 Wend. 134, which rules that assumpsit will not lie after proceedings to obtain possession, under the statute against a tenant holding over, it appearing by the plaintiff’s afiidavit, that the holding over was without his assent or permission, hence, his assent could not be implied in the face of his oath to the contrary. And it is therein taken as indisputable, per Sutherland, J.', that the action of assumpsit will not lie to recover rent accruing subsequently to the demise laid in a declaration in ejectment. These cases illustrate what we have already said, that the action depends upon the landlord’s assent, express or implied, to the tenant’s use of the premises, and his election to treat the occupant as a disseisor negatives such assent.

When, therefore, the Refining Company, through its agent, following up its two previous notices, informs Bush, on the 8th day of January, liis holding over having then already commenced, that he was but a trespasser, and that he would be held for damages accordingly, there was something to show that the company did not{ assent to his occupancy of the premises, and that it had determimedj to treat him as a disseisor. ILence, we repeat there was something' to submit to the jury; something from which the jury might have found a verdict for the defendant.

Nevertheless, whilst this is so — whilst we agree that the question, as to whether Bush was or was not a trespasser, was one calling for the consideration of a jury, yet we cannot but think that the court was wrong in this, that it charged, inter alia, “But in this case you find a notice to quit of October 16th 1874, and that is followed up by two letters, addressing him, and regarding him as a trespasser; and there is no evidence that after that the plaintiffs’ assented to his remaining.” It does not follow that, notwithstand-, ing the three several notices and the threat to treat him as a trespasser, the company did not, after all, permit him to remain on the l premises pending the negotiations for a new lease. That he did| hold over, and that the plaintiff' did not institute adversary process, j immediately after the last notice, are some evidence that he was ;¡ there holding at sufferance. Then the fact that negotiations for a * new lease were pending between the parties, especially if taken in connection with the letter of Mr. Schick, the attorney of Bush, is well nigh conclusive of the fact that he remained in possession of the property by permission, and not as a disseisor.

Besides it was error to set the jury upon a hunt after a new con- > tract of lease; such contract was not necessary to the maintenance i of the action; it is not necessarily founded upon a specific contract, 1 written or oral, but upon the use of the premises. The occupant ; may be in fact a trespasser, but the owner of the tenement may waive the trespass and recover in assumpsit, and it does not lie with the tortfeasor to defeat him by interposing his own wrong. To tell the jury, therefore, that they must find some new contract between the parties, in order to rebut the presumption arising from the notices, was error, for that presumption might well be rebutted by the subsequent acts of those parties.

- The judgment is reversed, and a venire facias de novo ordered.