author: Mr. Justice Paxson

text:
    Philadelphia, Wilmington and Baltimore Railroad Co. versus Stinger.
    1. Negligence is the absence of care, according to the circumstances.
    2. It is the duty of an engineer approaching a highway, if danger is to ■ be apprehended, to give warning by sounding the whistle, or other sufficient' alarm ; the failure to do so is negligence per se, to be determined by the court.
    3. The court is to decide the question of negligence, where the precise 'duty is determinate and the same under all circumstances.
    4. A wanton, unnecessary sounding of the whistle is negligence.

      5. A railroad company having a chartered right to propel their cara by steam, are not responsible for injuries resulting from the proper use of such agency.
    6. Whether alarming a horse and causing an accident by a rapidly-moving train, or sounding a whistle, will make the company liable for damages, depends upon whether it was from want of proper care in those in charge of the train.
    7. What would be due care in running a train through a sparsely settled rural district might be negligence in approaching a large city.
    8. A train was passing through a city on a railroad which had a number of short curves, so that persons could see the train but for a short distance; it was crossed by several streets and passed over a river on a drawbridge; the rule of the company required that the whistle should be sounded about a certain point, to warn the bridge-tender and persons about to cross at other streets. Held, the use of the whistle at that point in the ordinary manner was not negligence.
    9. If the whistle had not been sounded at such point and one had been injured by reason of the omission, it would have been negligence per se.

    10. One driving an unbroken or vicious horse, or one easily frightened by a locomotive, along a public road running side by side with a railroad, does so at his own peril; the right of the company to move their trains on their road is as high as that of the individual to use the public road.
    11. Rrankford & Bristol Turnpike Co. v. Philadelphia & Trenton Railroad Co., 4 P. R. Smith 345, adopted.
    March 81st 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873, No. 9.
    This was an action on the case, brought to September Term 1871, of the court below, by Daniel Stinger against the Philadelphia, Wilmington and Baltimore Railroad Company.
    The declaration was, that the plaintiff was driving his horse and wagon in which he was riding, on Gray’s Ferry avenue in the city of Philadelphia, alongside of which the defendant’s railroad was located; that the defendant’s servant, in propelling a locomotive on their railroad, “ made such great noise and shrieks by blowing a whistle connected with the locomotive, that by and through the carelessness, negligence and improper conduct of the defendants, by their said servant in that behalf, the plaintiff’s horse was startled and scared, became unmanageable and ran away, and plaintiff was thrown from his wagon under the wheels thereof, and was run over by them was greatly injured, &c.; was hindered from attending to his lousiness, and had to expend a large sum of money in endeavoring to be healed, &c.
    The track of defendant’s road from their depot runs along Washington avenue to a point opposite the United States arsenal, on the west side of the G-ray’s Ferry road, between Twenty-sixth and Twenty-seventh streets; it there turns and runs westwardly, parallel with that road, to the railroad over the Schuylkill river. The road in this space makes a curve at the arsenal, another just east of Twenty-eighth street, a third half a square beyond Thirty-' first street; the curves are so decided that the road can be seen but a short distance beyond them. Between Twenty-eighth street and the river there are four road-crossings over the railroad, one near Thirtieth street, another at Thirtieth street, one at Thirty-second street, one at Newport or Thirty-third street, the bridge being about three squares from Thirty-third street; the bridge and the crossings at Thirty-second and Thirty-third streets cannot he seen until the curve beyond Thirty-first street has been passed. The bridge is a draw-bridge, at each end of which a watchman is stationed to flag the trains, after the whistle has given him notice of their approach.
    . The rule of the company and custom of the engineers were to ring the bell until the engine had passed beyond the thickly-built parts of the city, and afterwards to use the whistle alone to warn persons about crossing the railroad at the before-mentioned streets, and the watchman at the bridge.
    The case was tried February 17th 1878, before Lynd, J.
    The plaintiff testified: “ On the 27th of June 1871, I was returning from market; when opposite the arsenal I stopped to see if any train was coming down the avenue; I thought I could make it home before any engine would come, and kept on; between Thirty and Thirty-first street an engine opened a great blast; it frightened my horse; he started to run away ; I stepped out to get him by the head, and they blew again, and I fell under the wagon between the wheels. It was because the second blast started the horse; if it had not been for the second blast he would have stopped; the engine was going west, the same direction as I was — behind me.”
    Witness then described the extent of his injuries.
    On cross-examination, he said: “ The horse had a fashion of turning sharp around, but was quiet when got by the head. * * * I drove the horse daily for two or three months before ; he was always afraid when the whistle blew. I always got notice of the appi’oach of the train, and got out and stood by his head.”
    Other witnesses of plaintiff who saw the occurrence testified much as the plaintiff had done.
    One witness said the horse started and ran at the first blast of the whistle, which was at Twenty-eighth street, and seemed to be more frightened than any horse he ever had seen; the second blast was at Thirtieth street.
    Another testified that he saw Stinger tumbling out after the first blast, hut could not say how many whistles he heard.
    Another witness testified that the horse was a young horse and afraid of a locomotive.
    For the defendants, the engineer of the train testified that he blew the whistle first at Twentieth street, then at Thirtieth street; it was blown but once after passing Twenty-eighth street. The rules were to blow at Twentieth and Thirtieth streets; when he saw a space where there were no carriages he blew a short whistle, just east of Thirtieth street; he blew when he came to an opening, as was the practice; it was a signal whistle ; he had not blown twice.
    On cross-examination, the witness said that they did not at the time of the trial blow a whistle at Thirtieth street.
    Several of the hands on the train testified that the whistle was blown but once after leaving Twentieth street; the custom was to blow a whistle near Thirtieth street, “ using judgment in regard to carriages.”
    Another witness testified that at the time of the accident there were but few houses in that locality ; since that time the number had much increased; after this increase an order was issued by the defendants that the whistle should not be blown between Twenty-eighth street and the bridge; and the bell only was rung; it is important to give a signal to the bridge; ringing a bell is very inadequate for that; the bridge is at Thirty-sixth street; the whistling was stopped because the traffic has increased.
    The following are points of the defendants, and their answers by the court:—
    2. The defendants, being authorized to use steam-engines upon their railroad alongside Gray’s Ferry road, in the city of Philadelphia, for the purpose of moving their trains, are not responsible for accidents arising from fright to horses occasioned by the noises incident to the employment of such engines.
    Answer : “ Just as that point is worded I cannot affirm it; with a slight alteration I could, in this way: That the defendants being authorized to use steam-engines upon their railroad alongside Gray’s Ferry road, in the city of Philadelphia, for the purpose of moving their trains, are not responsible for accidents arising from fright to horses, occasioned by noises necessarily incident to the careful employment of such engines.
    “You will consider if the blowing of a whistle is a necessary incident of the movement of trains; I leave it to you to say as a question of fact. I do not choose to treat it as a matter of law. You will consider whether the train could have been moved without a steam-whistle, as a matter of fact; the best evidence of that is, that some time since this occurrence, the company has discontinued whistling at that place. Noises must be necessarily incident to the careful movement of trains, but trains make different noises. A long train moving at a rapid rate of speed makes noise if no whistle be used. Still, if it were alleged that a train was moved with great rapidity, more care would be required, and it may well be, if movement of a train rapidly makes much noise, and a horse was started by the noise, that it would be negligent if the train made more noise'than a careful use of the train required.”
    3. Unless the evidence shows that the defendants’ servants, in charge of the engine running upon their track alongside of Gray’s Ferry road, were exercising their right to use and move such engine in an extraordinary way, and without due and reasonable care, no negligence can be imputed to them in this respect, and the defendants are not liable for the accident which happened to the plaintiff.
    Answer: “I affirm that just as it is written, but it still comes back to the starting-point, whether the blowing of the whistle there was not using the engine in an extraordinary way.”
    4. There is no evidence in the case of want of ordinary care on the part of the defendants, and the verdict should, therefore, be for the defendants.
    Answer: “I-decline so to charge you; the question will be for you.”
    6. If the jury believe that the plaintiff drove a horse which, according to his own testimony, became easily frightened at locomotives, it was negligence on his part to drive such horse alongside Gray’s Ferry road in close proximity to the defendants’ railroad; and if the horse, while being so driven, became frightened by an engine,' he cannot recover.
    Answer: “ I decline so to charge you. The law will not banish horses from highways because locomotives cross or traverse them. The effect of a man having a horse liable to fright from a locomotive would be, to require him to use a greater degree of care. It would impose a duty upon him not to bring the horse in contact with an engine unnecessarily; but here there was no other road. The law does not compel a man to go out of his way a mile or more, even to avoid such a danger. He must be more watchful. You must remember what I said about contributory negligence in the management of his own horse. If he approach a railroad with such a horse, he ought to look out for trains. If he saw a train, it would impose the duty on him to keep out of the wayr or, if overtaken on the route, and he should find that the locomotive was upon him, he should get out and hold the horse by his head; but it is not contributory negligence in itself to go there with such a horse. It did impose a greater degree of caution.”
    The court charged also: “ Negligence, among other things, consists in doing that which a man of ordinary caution would not do under the circumstances. I need not further define negligence with a view to your conclusions in this case. [The question in this case is, whether this engineer, in sounding the steam-whistle, under the circumstances, did that which a man of ordinary prudence and consideration for his fellows would not have done.] You will take into view all the circumstances; what a steam-whistle is, what a noise it makes, the alleged nearness of the wagon and [the alleged excited condition of the horse. If the horse was really running away, and the.locomotive was overhauling it, and within fifty feet, and then blew, you will consider if the engineer did what a prudent and careful man would have done when he blew the whistle.] If he did, your verdict should be for the defendants. If an ordinarily careful man would not have done it, your verdict should be for the plaintiff, unless you find the plaintiff guilty of negligence. The plaintiff, to recover, must show that not only the act of the engineer was negligent, assuming his act occasioned the injury, but also that he himself was not negligent in bringing his horse where he was and in his attempts to control him. The law does not permit one to recover if he has been negligent himself. You will consider if the plaintiff, when he jumped out, did as an ordinarily cautious man would have done ; whether a careful man would have stuck to the wagon or not. He says he jumped off voluntarily. If he was knocked off there would be no ground to charge him with negligence; otherwise, if he voluntarily jumped off. The law imposes the obligation to use judgment in such a case; you will, therefore, consider if plaintiff was guilty of negligence. If you find that, no matter how negligent defendants were, your verdict should be for the defendants. * * *
    The verdict was for the plaintiff for $1600.
    The defendants took a writ of error; they assigned for error: — ■
    I, 2. The parts of the charge in brackets.
    3-6. The answers to defendants’ 2d, 3d, 4th and 6th points, respectively.

      J. E. Q-owen (with whom was T. Hart, Jr.), for plaintiffs in error.
    The use of the steam-whistle is not negligence per se: Wharton on Negligence 676, sects. 386, 898; Shearman on Negligence, sect. 486, note 1. A company is not liable for accidents from fright of horses, occasioned by escape of steam, ringing bells, whistling, &c.: Burton v. Phila., W. & B. Railroad, 4 Harrington 252; Bordentown v. Camden & Atlantic Railroad, 2 Harrison 314; King v. Pease, 4 B. & Ad. 30; Railway v. Fullerton, 4 C. B. N. S. 54.

      M. A. Dropsie, for defendant in error.
    The question of negligence is for the jury and not for the court: Huyett v. Phila. & Reading Railroad Co., 11 Harris 374; McCully v. Clarke & Thaw, 4 Wright 408; Lackawanna & Bloomsburg Railroad Co. v. Doak, 2 P. F. Smith 381. Questions of skill, vigilance, care and proper management in any business, are necessarily questions of fact and are to be referred to a jury: Frankford & Bristol Turnpike Co. v. The Philada. & Trenton Railroad Co., 4 Id. 350.
   Mr. Justice Paxson

delivered the opinion of the court, May 10th 1875.

This case presents two questions: The first is whether the engineer of the train was guilty of negligence in blowing the alarm whistle; the second, whether the plaintiff below was chargeable with contributory negligence in driving a horse admitted by him to be afraid of the cars, upon Gray’s Ferry road, alongside of the railroad, at the time in question.

Negligence has been defined to be the absence of care, according to the circumstances: Turnpike Co. v. The Railroad Co., 4 P. F. Smith 845. In some cases, the blowing of the steam-whistle of a locomotive has been held to be negligence; in others, the omission to do so has been treated as negligence. Yet there is no want of harmony between these apparently conflicting decisions. The character of the act depends upon the circumstances accompanying it. Thus, it is clearly the duty of an engineer, when his train approaches a public highway, if danger is to be apprehended, to give warning by sounding the whistle, or other sufficient alarm. The failure to do so would be negligence per se. For while negligence is usually a question of fact for a jury, there are some cases in which a court can determine that omissions constitute negligence. They are those in which the precise measure of duty is determinate ; the same under all circumstances. Where the duty is defined, a failure to perform it is of course negligence, and may be declared by the court: McCully v. Clarke, 4 Wright 406. On the other hand, the wanton and unnecessary sounding of the whistle has been held to be negligence. The Penna. Railroad Co. v. Barnett, 9 P. F. Smith 259, illustrates both of the views suggested. In that case, the engineer of the train, having given no notice of its approach, blew his whistle under a bridge whilst a traveller was passing over it, by means whereof his horse toolt fright, ran off, and injured him. It was held, that the omission to give notice by whistling, or other signal, of the approach of the train to the bridge, as well as the blowing of the whistle while the engine was under the bridge, there being no apparent necessity therefor, was properly left to the jury as evidence of negligence.

The plaintiffs in error, having a right under their charter to propel their cars by the use of steam, are not to be held responsible in damages for injuries resulting from the proper use of such an agency. It was held, in The Turnpike Co. v. The Railroad Co., before cited, that a loss of property adjacent to a railroad from the sparks of a locomotive, apart from misuse, is damnum absque injuria. It was said by the present Chief Justice, in delivering the opinion of the court in that case: “The law in conferring the right to use an element of danger, protects the person using it, except for the abuse of his privilege.” It may, therefore, be safely assumed, that the company are not liable for injuries resulting from the use of their cars where due care is exercised. The noise of a rapidly-moving train, as well as the sound of the whistle, may alarm a horse, and cause an accident; whether such accident imposes a liability upon the company to make compensation in damages, must depend to a great extent upon the fact whether it was the result of a want of proper care on the part of the persons in charge of such train.

What is proper care cannot be determined by any fixed rule of law. It must depend upon the facts of the particular case. That which would be due care in running a train through a sparsely settled rural district, might be negligence, if not actual recklessness, in approaching a large city. The steam-whistle is one of the recognised methods of signalling the approach of a train. Its universal use upon railroads is a strong argument in favor of its efficiency. It is shrill and piercing; can be heard for a great distance, and can be mistaken for nothing else. Yet it has its disadvantages. More than all other sounds, it is a terror to animals unaccustomed to its warning. Where trains are passing through the built-up portions of towns and cities, it is not needed, nor often used. In such cases they move slowly, and the ringing of a bell sufficiently answers the purposes of an alarm, and is not so likely to frighten horses. But where it is necessary to warn crossings or bridges at a distance in advance of the train, no sufficient substitute has yet been found for the whistle. It can be heard in any condition of wind and weather. In the absence of the discovery of any suitable substitute, and in view of its use upon all roads operated by steam, the mere fact of the whistling furnishes no presumption of. negligence. Was the whistle used in such a wanton manner as to amount to negligence ? The learned judge left this question to the jury. And in so far he was right. But he also left it for the jury to decide whether the use of the whistle at all in that particular place, was negligence. The train had passed beyond the closely built-up portions of the city, which ended at Twenty-eighth street, and there were but few houses between that point and Gray’s Ferry bridge. The engineer whistled about Thirtieth street. The plaintiff says he whistled twice; that the first whistle frightened his horse, and it commenced ■to run; that just as he was getting it under control, there was a second “ blast ” from the whistle, and his horse then became unmanageable, threw him out, and the wagon passed over him. Gray’s Ferry road and the railroad at this point are side by side. The train and the plaintiff were going in the same direction, and at the moment when the accident occurred the train had nearly overhauled him. It was a disputed fact whether the whistle was sounded once or twice in this vicinity. The conductor, engineer and fireman of the train, and other witnesses for the company, testify that there was but one whistle west of Twenty-eighth street. Nor is the plaintiff sustained by all of his own witnesses as to the second whistle.

If the court below had left the jury to find negligence from the use of the whistle the second time, if they believed it to have been so used, provided the engineer saw, or with proper care might have seen the plaintiff’s wagon, and that his horse was becoming unmanageable, there would have been no error. But he submitted the case to the jury in such'a way as left them at liberty to find negligence from the use of the whistle once at or about Thirtieth street. It must be borne in mind that the Philadelphia, Wilmington and Baltimore railroad runs along Washington avenue, in this city, until it reaches a point opposite the United States arsenal, situate on the west side of Gray’s Ferry road, between Twenty-sixth and Twenty-seventh streets. It then turns, enters upon the company’s grounds alongside of the Gray’s Ferry road,- and runs parallel with that road a short distance from it, and several feet above its grade, to the bridge over the Schuylkill river. The road makes several curves; one at the arsenal, another just east of Twenty-eighth street, and the third half a square beyond Thirty-first street. These curves are all so decided that the road can be seen for a short distance only beyond them; the Gray’s Ferry bridge and the last two road-crossings being invisible until the last curve has been passed, a point above Thirty-second street. Between Twenty-eighth street and the Schuylkill there are four road-crossings over the railroad, the bridge being about three squares beyond the last crossing. The bridge is a draw-bridge, a watchman being stationed at each end, for the purpose of flagging the trains, upon being warned by the whistle of their approach. It was the daily practice to blow the whistle at Thirtieth street. The rules of the company require it. We have seen that there were several crossings, as well as the bridge-tender, to be warned of the approaching train. They were invisible by reason of the curves. The engineer had the right, under the circumstances, to blow the whistle in the vicinity of Thirtieth street, sufficiently to give notice of the approach of the train. Its use once, in the ordinary manner, was not evidence of negligence, and it ought not to have been submitted to the jury as such. On the contrary, had he omitted to give such warning, and by reason thereof the plaintiff had been struck and injured by the train, we should have been compelled to say, under the authority of our own cases, that such omission was negligence per se.

It was urged that any use of the whistle at this point was unnecessary, and the fact that it has since been abandoned, was stated as strong evidence in support- of this view. The abandonment, however, was doubtless due in a great measure to the changed circumstances. This locality has been much improved since 1871, and there are many more houses there now than formerly. We have held these corporations to a strict line of responsibility for the failure to give sufficient warning of the approach of their trains at road-crossings. It would not be just to them, nor safe to the travelling public, for us now to criticise too closely the precise amount of noise employed in giving the needed warning at such places, or the means of producing it.

There was also error in the answer of the learned judge to the defendant's sixth point. It is true, the law will not banish horses from the highways. It is equally clear that the plaintiff had a right to drive the horse referred to, or any other horse, however vicious, upon the Gray’s Eerry road, at this particular point of danger. We are not dealing with the absolute rights of the parties. The question here is one of prudence and care. When a man drives an unbroken or vicious horse, or one that is easily frightened by a locomotive, along a public road running side by side with a railroad, and liable to be met or overtaken by a train, he does so at his own risk. It is an act amounting to recklessness. That there was no other road for the plaintiff to use, does not matter. There were other horses which he might have procured for use in such a dangerous locality. Duties and obligations are mutual. The railroad company had as high a right to move their trains upon their road as the plaintiff had to drive his horse along Gray’s Eerry road. Both were bound to the exercise of care in accordance with the circumstances of the case.

We do not lose sight of the fact that, in such questions as this, the interests of other parties are concerned. The right of a man to risk his own life, and that of his horse, may be conceded; but not the right, by an act of negligence, if not of recklessness, to place in peril the lives of hundreds of others who may happen to be travelling in a. train of cars.

What we have said, disposes of the third and sixth assignments of error. The remaining assignments are carved out of the two just mentioned, and do not need more specific notice.

The judgment is reversed, and a v.enire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Lucas et al. versus Government National Bank of Pottsville.
    1. A national bank retaining more interest than is allowed by the 30th section of the Act of Congress of June 3d 1864, forfeits the entire interest on the loan.
    2. In an action by a national bank the defendant may set-off the amount of usurious discounts on the other transactions.
    3. The interest paid by defendant beyond that authorized by the Act of Congress, belongs to the defendant, and the bank can hold it only for his use.
    4. In an action in a state court to recover back usurious interest charged by a national bank, the Pennsylvania Act of March 28th 1858, which limits the bringing of the suit to six months, does not operate. The suit may be brought at any time within six years.
    5. Brown v. Second National Bank of Erie, 22 P. P. Smith 209 ; Thomas v. Shoemaker, 6 W. & S. 179, followed.

      March 31st 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1874, No. 171.
    This was an action of assumpsit, brought May 21st 1873, by The Government National Bank of Pottsville, against John Lucas and J. D. Jones, trading as John Lucas & Co. Thé suit was for the recovery of the amount of a check for $3000, dated October 8th 1872, drawn by George J. Richardson in favor of defendants and by them endorsed and payable at The Mechanics’ National Bank of Philadelphia, on the 1st of November 1872; also a note of Richardson for $2500, dated July 5th 1872, payable in four months to the defendants and by them endorsed ; also a note of Richardson for $4000, dated September 28th 1872, payable in four months to the defendants and by them endorsed.
    The defendants filed an affidavit of defence, June 24th 1873:
    “ That the said notes and check were sold to said plaintiffs at a discount of from 18 to 24 per cent, per annum, and defendants received from the plaintiffs the amount of said notes and check, less said rate of discount. In addition to the above, the said plaintiff has received from said George J. Richardson, on his notes, within the past two years, the sum of not less than $3000 in excess of the legal rate of interest, the same having been purchased by the said plaintiff at about the rate of 21 to 24 per cent, per annum discount from said defendants, and said defendants claim from plaintiffs double the aforesaid amount, as provided by the Act of Congress.”
    Subsequently, June 24th, by leave of the court, defendants filed a supplemental affidavit of defence, setting out that through an oversight they had stated in the original affidavit that the discounts, amounting to $3000, had been paid by Richardson, and averred that the discounts had been paid by themselves.
    On motion of the attorney of the plaintiffs, the court (Walker, J.) entered judgment against the defendant for $9466.81, the whole amount of the claim, less interest at the rate of 18 per cent, per annum from the maturity of the paper; the court holding that the claim as to the $3000 was in the nature of a penalty, and could not be the subject of a set-off; and that under the Pennsylvania Act of Assembly of March 28th 1858, sect. 2, Pamph. L. 622, 1 Br. Purd. 803, pi. 2, such excessive interest could not be recovered except suit were brought for it within six months.
    The defendants took out a writ of error and assigned for error: entering judgment in favor of the plaintiff for $9466.81, and holding that the affidavits of defence were insufficient.

      JD. A. Jones and J. W. J. Ryon, for plaintiffs in error.—
    The 30th sect, of the Act of Congress of June 3d 1864, under which plaintiff was organized, authorizes national banks to reserve or charge on any loan or discount made on any note or other evidence of debt, interest at the rate allowed by the laws of the state where the bank is located; and knowingly reserving or charging a greater rate of interest, shall be a forfeiture of the entire interest on the note, &c., and if a greater rate of interest has been paid, the person paying the same may recover back in any action of debt twice the amount of the interest from the bank receiving the same ; provided that such action be commenced within two years from the time the usurious transaction occurred.
    The affidavit showed that the plaintiffs retained more than 6 per cent., Pennsylvania rate, and therefore the court should have deducted the whole interest: Brown v. Second National Bank of Erie, 22 P. F. Smith 209; Hartman v. Danner, 24 Id. 36; Youngman v. Walter, 23 Id. 134. Usurious interest may be recovered back in an action for money had and received: Thomas v. Shoemaker, 6 W. & S. 179, and is not under the limitation of the Pennsylvania Act of 1858. The offence of taking usury is that it is taken on the footing of a contract: Fitzsimmons v. Baum, 8 Wright 40; Heath v. Page, 13 P. F. Smith 121; s. c., 12 Wright 146 ; Beaver Co. v. Amstrong, 8 Id. 63; Campbell v. Sloan, 12 P. F. Smith 481; Bosler v. Rheem, 22 Id. 54 ; Chamberlain v. McClurg, 8 W. & S. 35. Unliquidated cross-demands arising out of a distinct contract may be set-off: Nickle v. Baldwin, 4 W. & S. 290; Phillips v. Lawrence, 6 Id. 150; Ellmaker v. Ins. Co., Id. 439 ; Hunt v. Gilmore, 9 P. F. Smith 450. A defendant may set-off usurious interest taken by plaintiff on other loans : Thomas v. Shoemaker, supra; 2 Starkie Ev. 92; Lowry v. Bourdieu, Doug. 451; Williams v. Hedley, 8 East 378 ; Philanthropic Building Association v. McKnight, 11 Casey 470; Kupfert v. Guttenburg Association, 6 Id. 465; Lloyd v. Scott, 4 Peters 205; Tyler on Usury, ch. 32, p. 421. The 30th sect, as to usury is remedial and is to be liberally expounded: 1 Bl. Com. 88, and notes; Taylor v. United States, 3 Howard 352.

      Gr. JR. JKaercher, for defendant in error.
    “ From 18 to 24 per cent.,” is too indefinite: Love v. Brown, 2 Wright 309. Averments in affidavits of defence are to be taken most favorably for the plaintiff: Ogden v. Offerman, 2 Miles 40. Jurisdiction of the question of forfeiture in this case was exclusively in the United States courts: 1 Kent’s Com. 401-408, and therefore the defendant could not plead set-off in a state court: Waterman on Set-off 29. Congress cannot compel a state court to entertain jurisdiction: Hintermister v. Bank, 10 New York R. (S. C.) 345 ; Tiffany v. National Bank of Missouri, 18 Wallace 410. The forfeiture is a penalty and cannot be the subject of set-off: Bank of Chambersburg v. Commonwealth, 2 Grant 385. A right of action for tort cannot be assigned: Bullard v. Raynor, 30 New York 197; Waterman on Set-off 102, 148, 149, 154 ; Gogel v. Jacoby, 5 S. & R. 117; Fairman v. Fluck, 5 Watts 516; Wilson v. McElroy, 8 Casey 82 ; First National Bank of Mt. Joy v. Gish, 22 P. F. Smith 13.
   Mr. Justice Gordon

delivered the opinion of the court, October 11th 1875.

This was an action brought by the Government National Bank of Pottsville against John Lucas & Co., on two certain notes and one check, all of which were drawn by George J. Richardson to the defendants, and by them endorsed to the plaintiff. John Lucas, on the part of the defendants, filed an affidavit of defence, setting forth, “ That the said John Lucas & Co. were the payees on the notes and check upon which suit is founded, and that George J. Richardson was the maker. That said notes and check were' sold to the said plaintiff at a discount of from 18 to 24 per cent, per annum, and that the defendants received from the plaintiff the amount of said notes and check, less said rate of discount. In addition to the above, said plaintiff has received from said George J. Richardson (corrected by a supplemental affidavit to read ! defendants,’ instead of ‘ George J. Richardson ’) on his (their) notes, not less than $3000 in excess of the legal rate of interest, the same having been purchased by the plaintiff at about the rate of 21 to 24 per cent, per annum discount from the said defendants; and said defendants claim from the plaintiffs, double the amount of interest under the Act of Congress.” On the 7th day of July 1873, on motion of the plaintiff’s counsel, the court entered judgment against the defendants for the whole amount of the plaintiff’s claim, with interest from and after the maturity of the paper, striking out and disallowing, however, 18 per cent., the amount of discount. This judgment is erroneous in that it includes interest on the paper in suit from the time it fell due. The Act of Congress speaks in this wise: “And knowingly taking, receiving or charging a rate of interest greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon:” Rev. Stat. sec. 5198.

Observe, it is the entire interest which the bill or note carries with it that is forfeited, and not merely that which the party borrowing may agree to pay. The illegal act destroys the interest bearing power of the obligation, and as there can be no point in the history of such paper at which it is freed from the taint of illegality, so it follows there can be no point of time from which it can bear interest. The plaintiff was entitled to recover the face of the note and check, and no more: Brown v. Second National Bank of Erie, 22 P. F. Smith 209.

Technically, the latter part of the affidavit of defence is bad, for it claims, as a set-off, that which the Act of Congress imposes as a penalty on the usurious transaction, to wit, double the amount of the interest paid. In this, defendants had no such interest as would enable them to use it by way of defalcation, for it could be acquired only through an action of debt under the statute, and until the forfeiture was pronounced in their favor, by judgment of the court, they had nothing therein which would be the subject of set off. But, as we hold, that the defendants are entitled to defalk the amount of the usurious discounts, which they paid the plaintiffs on previous transac-. tions, we are disposed to treat the affidavit as faulty only in form, rather than substance. The money paid to the plaintiff, over and above that which the Act of Congress authorized it to receive, belonged to the defendants, and the bank could hold it only for their use. This, very point was raised and decided in Thomas v. Shoemaker, 6 W. & S. 179. That case ruled that usurious interest paid might might be recovered back in an action for money had and received, and that it was not' questionable, but that such interest secured on previous transactions, might be defalked against the plaintiff’s claim in the suit then pending. This decision was made under the Act, 1|23, then in force, by which, where more than legal interest was received, the money or other things lent was wholly forfeited.

The reason lying at the foundation of this and all similar decisions is very obvious. The receiving of such.excessive interest, is treated by the supreme power in the state, as a public evil, and as such, prohibited; consequently, when taken against the statutory prohibition, it is acquired without right and no title thereto vests in the taker. In such case he is to be held as one wrongfully in possession of his neighbor’s property.

This reason applies a fortiori to the case in hand, for these national banks are the mere creatures of the Act of Congress. From it they derive all the powers they possess; when, therefore, they act contrary to its express provisions and mandates, they usurp powers that do not belong to them, and such act is clearly ultra vires and void. In the case now in hand, if the affidavit of John Lucas be true, this bank has taken from the defendants some $3000, which the Act of Congress has not only, in express terms, declared it should not take, but imposed a penalty upon it for taking.

By no right, then, does the plaintiff hold this money; it has no property therein, and its possession thereof is but that of a trustee or bailee of the defendants.

Another error into which the court fell, was in supposing that the case came within the provision of our Act of March 28th 1858, which provides, that where the debt and excessive interest have been paid, no action to recover back such excess can be maintained but within six months after such payment. But this case does not comes under that act, but as we have seen, under the Act of Congress, which operates upon a .subject of its own creation, and over which it has supreme control; hence our act cannot be made to supplement the national statute with a limitation not found in it. As the only limitation found in the Act of Congress applies alone to the action for the'penalty, it follows that the claim of the defendants can only be barred by a failure to sue for the same within the period of six years after it accrued.

The judgment is reversed and a procedendo awarded.


text:
    Corn Exchange National Bank versus National Bank of the Republic.
    1. A forged check was deposited on Saturday with the defendant bank and on Monday it was delivered to the plaintiff, the drawee bank, in the exchanges through the Clearing House ; the depositor drew against the deposit on Monday after the exchanges were “made. On Tuesday the plaintiff notified the defendant of the forgery, and demanded repayment, which was refused. Held, that there was no negligence in the time of the notice and demand.
    2. The right of the plaintiff to recover back the money did not depend on the right or ability of the defendant to recover from the forger.
    3. The Act of April 5th 1849, is not merely declaratory of the law as it then stood; it gives a clear right to’ the plaintiff to recover the money paid by him to a previous holder.
    4. The Clearing House rules required that notice as to paper specified should be given within a certain time ; forged paper was not amongst that specified. In an action to recover the amount of forged paper paid by the plaintiff to defendant, the rules of the Clearing House were not evidence for defendant.
    5. All the facts in this case not sufficient to go to the jury on the question of negligence.
    6. Levy v. Bank U. S., 1 Binn. 27, not law. Tradesmens’ Bank v. Third National Bank, 16 P. B. Smith 435, compared.
    April 1st 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term • 1873, No. 145.
    This was an amicable action, entered July 20th 1872, by the Corn Exchange National Bank against The National Bank of the Republic. The action was for the recovery of the amount of a forged cheek on the plaintiff paid by them to the defendant. The check purported to have been drawn by W. A. Simpson & Son, and was for $2000.
    The cause was tried May 29th 1873, before Mitchell, J.
    The evidence was, that the check was brought to the defendant bank on Saturday, June 1st 1872, by T. M. Simpson, a son of William A. Simpson, one of the firm; Simpson said he desired to open an account in that bank; he deposited the check in controversy and it was passed to his credit in an account then opened. The check was passed in the regular way through the exchanges of the Clearing House, and received by the plaintiff on Monday, the 3d of June. On the afternoon of that day T. M. Simpson, by his own check, drew from the defendant $1800. On the 4th, about twelve o’clock, the plaintiff notified the defendant that the check was a forgery, and demanded payment, which was refused. Both plaintiff and defendant are members of the Clearing House. The banks meet at the Clearing House at half-past eight in the morning, and deliver to each other the checks received on the preceding day. The plaintiff gave evidence further, by the paying teller, that the checks from the Clearing House come sealed to the bank, and are opened at the paying teller’s desk, examined and passed to the book-keeper. The account of W. A. Simpson & Son was good for the amount of the check; the teller did not then discover that it was a forgery; on the 4th of June, W. A. Simpson informed the plaintiff that their firm had reason to believe that a forgery had been committed on them for $2000 or $2500; the teller then examined the check in question, hut was not able to say, from examination, that it was a forgery.
    On cross-examination, the witness said: that the checks of W. A. Simpson & Son were drawn from a check-book, such as was furnished by the plaintiff to all depositors; the check in question was not from such book; the customary checks of Simpson & Son were blue, the one in question was red; knew of no instructions not to pay checks unless perforated or stamped ; there was nothing to show this different from other checks issued; the signature was like that of the firm.
    Eor the defendant, W. A. Simpson testified: that the check was not like any drawn by their firm; they never drew any check that was not taken from the book furnished them by the hank ; they gave the bank instructions not to pay any check unless perforated. The signature was not like that of the firm ; perhaps four or five checks might have been given without perforation, but special orders were given, in each case, to pay them.
    Under objection and exception, the defendant gave in evidence the rules of the Clearing House; one rule was, that cheeks received in the morning exchanges, when not found good or were informal, might be returned to the bank before twelve o’clock of the same day; other rules fixed the times at which notice should be given to the members of the Clearing House as to irregularities which were specified in the rules; none of those specified, were as to forged checks, &c.
    The plaintiff, in rebuttal, gave evidence by their paying-teller that it was very common to give and pay checks not perforated or stamped; he did not recollect any instructions to pay only on one kind of check; they depended little on signatures, chiefly on knowledge of the parties presenting the checks; coming through the Clearing House is a guaranty to every bank ; the stamp of Simpson & Son was not peculiar; it was used by thousands of firms.
    By the Act of April 5th 1849, sect. 10, Pamph. L. 426, 1 Br. Purd. 159, sect. 5, it is enacted, That wherever any value shall be received as a consideration for or in payment of any bill of exchange, draft, check, promissory note, or other negotiable instrument, by the holder thereof, from the endorsee or payer of the same, and the signature of any person represented to he a party thereto, whether as drawer, acceptor or endorser, shall have been forged thereon, and such value by reason thereof erroneously given or paid, such endorsee or payer respectively shall be entitled to recover back from the person previously holding or negotiating the same, the amount so as aforesaid given or paid by such endorsee or payer to such person, with lawful interest thereon from the time of demand of re-payment.
    The court charged:—
    “This is an unfortunate case in which, by another person’s wrongdoing, one of these two parties, both innocent, must suffer. The rule of law is well settled, that in such a case that person must bear the loss whose negligence or whose want of active diligence has caused the loss. The law gives to an active, attentive and diligent person the advantage which his conduct entitles him to.
    “ The rule of the law formerly was, that a bank was bound to know the signatures of its depositors. So strict was this rule, that if the bank, through its receiving-teller, took a forged check on deposit and entered it in the depositor’s bank-book, the hank was bound by the entry, and could not refuse to pay the amount so credited to the depositor, although the depositor had not lost anything or changed his condition in any way by reason of the entry of the deposit. To change this rule, the legislature passed the Act of 1849, that you have heard read. But this act does not take away the necessity of notice, with due diligence, to the party from whom it was received, nor does it relieve parties from the consequences of negligence.
    “ There appears to have been no delay in notifying defendant as soon as the forgery was discovered. [And therefore, under the Act of 1849, the plaintiff is entitled to recover, unless there has been negligence on its part, and through that negligence the defendant has been put in a position to lose by paying this money to plaintiff.]”
    [“ The defendant claims that there has been such negligence, and that is the question you have to consider.]

      “ First. As to the difference between this check and those ordinarily used by Wm. A. Simpson & Son. Their checks are taken from a book, and are blue in color, and are punched or perforated by a stamp before presentation. Simpson says he gave special orders not to pay checks unless in this usual form. Plaintiff, on the contrary, says there were no such orders from Simpson, and it is so common for parties to draw checks not from their regular checkbooks, and to omit punching, that it is no negligence not to have discovered this. This is a question for you to decide.
    [“ The defendant was bound to wait a reasonable time to see if the check was good; having waited a reasonable time without notice of anything wrong, it was entitled to consider the check all right and to pay out money on its credit.]
    [“The rules of the Clearing House do not apply to forged checks, but may be considered by the jury as some indication of what reasonable time would be.]
    “ If you believe the plaintiff was negligent in taking the check, and defendant waited a reasonable time before paying out the money, then you will find for the smaller amount, admitted by defendant to be due; but if plaintiff was not negligent or defendant did not wait a reasonable time, then you will find a verdict for plaintiff for the whole $2000, with interest.”
    The verdict was for the plaintiff for $211.87.
    The plaintiff took a writ of error and assigned for error.
    1. The admission of the rules of the Clearing House in evidence.
    2-5. The parts of the charge in brackets.

      3. Piehson (with whom was J. .0. Bullitt), for plaintiff in error,
    referred to and applied the Act of 1849: Tradesmen’s Bank v. Third National Bank, 16 P. F. Smith 435. Money paid under mistake of fact may be recovered back notwithstanding negligence, delay in giving notice or change of position of the receiver: Kelly v. Solari, 9 M. & W. 54; Townsend v. Crowdy, 8 C. B. N. S. 98. The facts in this case furnished no evidence of negligence for the jury : Howard Express Co. v. Wile, 14 P. F. Smith 201. It was for the court to say whether the delay in giving notice was unreasonable: Leaming v. Wise, 23 P. F. Smith 173.

      Q. S. Pancoast, for defendant in error.
    The Act of 1849 was merely to correct the hardship from the particular point decided in Levy v. United States Bank, 1 Binn. 37, but gave no higher quality than any other right to recover; such right would be affected by general and well settled principles of law: Roth v. Crissy, 6 Casey 145. What is reasonable for performance or rescission, where the contract is silent, maybe collected from facts proved by parol: Ellis v. Thompson, 3 M. & W. 445; Cocker v. Henk, 3 Sumner 530.
   Mr. Justice Paxson

delivered the opinion of the court, May 10th 1875.

An effort has been made to distinguish this case from that of the Tradesmen’s Bank v. Third National Bank, 16 P. F. Smith 435, but we think without success. The remark of the late Chief Justice Read in the concluding paragraph of his opinion in that case has no application to the present one. There, it was alleged that the defendants were not liable because they were merely agents for another bank. The court said if the fact were so it made no difference, as the money had not been paid over by the bank to its principal. There is no allegation here that the defendants are the agents of another bank. They became the owners of the forged check; passed it upon the plaintiffs, and received value therefor. Whether the defendants gave cash or a credit for the check when they received it, does not concern the plaintiffs. Their right to recover back the money they paid does not depend upon the right or the ability of the defendants to recover from the person who forged the check, and passed it upon them. The Act of 1849 was not merely declaratory of the law as it then stood. It gives a clear right to the holder of forged paper to recover the money paid by him to a previous holder. Upon this right the act imposes no qualification.

It was contended, however, upon the trial in the court below, that the plaintiffs were not protected by the Act of 1849, because they had been guilty of negligence. It is not necessary for us to express an opinion as to how far negligence is a defence under this act, for the reason that there was not sufficient evidence upon this point to justify the learned judge of the District Court in submitting it to the jury. There must be something more than a scintilla of evidence to entitle it to go to the jury. Howard Express Company v. Wile, 14 P. F. Smith 201. In this case the forged check was received by the plaintiffs through the Clearing House on Monday, the 3d day of June, and the next day the defendants were notified of the forgery. It is said the plaintiffs should have discovered the forgery earlier; in fact should have detected it when the check was first received through their exchanges; that it was of a different color from the checks usually drawn by the firm, and the signature was not a close imitation. If Levy v. U. S. Bank, 1 Binn. 27, were still the law, there would have been more force in the latter suggestion. In that case it was held that the bank was bound to know the signature of its depositors, and having received a forged check on deposit and entered it as cash in the holder’s bank book was not entitled to recover it back. A case could hardly arise of the payment of money upon a forged check in which a plausible charge of negligence could not be made. To hold that a failure to detect the forgery when such a check was presented for payment, amounts to such negligence as would prevent a recovery under the Act of 1849, would he to fritter away the act, and render it practically useless. The fact that the check was of a different color from those usually drawn by the firm, and was not perforated, .if evidence at all of negligence, was so unimportant as not to jnstify the submission of the question to the jury.

There was also error in admitting the rules of the Clearing House in evidence. They did not apply to forged checks, and may have misled the jury.

Judgment reversed and a venire facias de novo awarded.


text:
    Passmore versus Western Union Telegraph Co.
    1. On the printed blanks of a telegraph company was a condition that the company would charge extra for repeating a message, and would not be responsible for any error, &c., in transmitting an unrepeated message, &c. The plaintiff knowing the rule delivered a message to the company without requiring it to be repeated; there was an error in the transmission. Held, that the company was not responsible. Per Hare, P. J.
    2. The maxim qailibet potest renunciare juri pro se introducto does not apply to breach of a duty in relation to a right conferred on an individual for his protection and for the common good. Id.

    3. Telegraph companies are public agents, and as such bound to exact diligence ; and liable to every one injured by a want of due care on their part or that of their agents. Id.

    4. Such company may prescribe rules to insure safety and diminish loss in case of accident, and may declare that if they are not observed the party injured shall be precluded, on the doctrine of contributory negligence; such rules must be reasonable. Id.

    5. One sending a message and not asking it to be repeated is taken to have acquiesced, in the conditions prescribed by the rules, and cannot object to a precaution which he has waived. Id.

    April 2d 1876.
    Before Aqnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873,-No. 138.
    This was an action on the case, brought to the September Term of the court below, by George Y. Passmore against The Western Union Telegraph Company.
    The declaration set out, that the plaintiff, on the 14th of March 1865, offered to defendants, at their office in Parkersburg, West Virginia, a message to be transmitted to P. Edwards, 423 Walnut Street, Philadelphia, in the following words, “ I hold, the Tibbs tract for you; all will be right';” that defendants accepted the message and undertook to transmit it to Philadelphia and deliver it to Edwards for a reward then paid by the plaintiff, but the defendants fraudulently intending to deceive and injure the plaintiff, “ erroneously, untruly, negligently and carelessly,” sent and delivered to Edwards a message, viz.: “ I sold the Tibbs tract for you,” &c., the message delivered by the plaintiff referring to a tract of land which plaintiff had bought on the undertaking of Edwards to repurchase it or procure purchasers for it atan advance, and that Edwards, trusting to the correctness of the message as received, would not repurchase the tract or procure purchasers therefor, and that thereby the plaintiff lost the agreed advance, was for a long time unable to sell the land, that it depreciated in value, that plaintiff lost the use of the money he had paid for it, was put to great expense in endeavoring to sell it, and had to sell it at a large loss.
    The plea was, “Not Guilty.”
    The case was tried before Hare, P. J., on the 30th of November 1872.
    The plaintiff, in support of the allegations in his declaration, gave in evidence correspondence between himself and Edwards by letter and telegraph in relation to the purchase of the land by Edwards, &o.
    One of the latest telegraphs was from Edwards to plaintiff; it was dated Philadelphia March 10th 1865. “ Can we have first payment April 1st;” the reply of plaintiff same day was “Will let you know positively on Tuesday next.”
    The plaintiff then testified : “ I next telegraphed March 14th. I went to Parkersburg, the telegraph office there; there were usually telegraphic blanks at the telegraph office. Don’t know whether I wrote on one of the company’s blanks or not; handed the written message to the operator at the window ; gave him sufficient time to read it; asked him if he understood it; he^said he did ; I wrote the message ‘ I hold the Tibbs tract for you, all will be right.’ ” About May 24th 1865 plaintiffs called at the telegraph office in Baltimore, and got there a copy of his last message ; it was :
    “Parkersburg, W. Va., March 14th 1865.
    P. Edwards, 423 Walnut street, Philadelphia. — I sold the Tibbs tract for you, all will be right.
    G. W. Passmore.”
    In the same month he went to the Parkersburg office and asked to see his message, saying there had been a mistake and he wished to see who was in fault; it could not be found ; made another inquiry eighteen months afterwards and it still could not be found ; it had"hever been found.
    The blanks for messages kept at the telegraph office contain the following:—
    “ Terms and conditions on which this and all messages are received by this company.
    “ In order to guard against and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should be repeated, by being sent back from the station at which it is to be received to the station from which it is originally sent. Half the usual price will be charged for repeating the message, and while this company in good faith will endeavor to send messages correctly and promptly, it will not be responsible for errors or delay in the transmission or delivery, nor for the non-delivery of repeated messages, beyond two hundred times the sum paid for sending the message, unless a special agreement for insurance be made in writing, and the amount of risk specified on this agreement, and paid for at the time of sending the message. Nor will the company be responsible for any error or delay in the transmission or delivery or for the non-delivery of any unrepeated message beyond the amount paid for sending the same, unless in like manner specially insured, and the amount of risk stated herein and paid for at the time.” * * *
    There was evidence also that the plaintiff had bought the land and that Edwards had agreed to buy it from him, &c.; that in consequence of the mistake in the telegraphic message, Edwards had refused to buy, and that the plaintiff had to sell the property at a great loss.
    ' The court reserved the following questions:—
    1. Whether the defendants are liable in this case, the plaintiff not having insured the message, nor directed the message to be repeated.
    2. Whether the form in which the telegram was transmitted by the defendants and received by Edwards discharged Edwards from his liability as a purchaser under his contract with plaintiff, and whether, therefore, the damages sustained by plaintiff were the necessary or legal consequence of a legal default of the telegraph company.
    The verdict was for the plaintiff for $4000.
    The court afterwards entered judgment on the reserved points for the defendants non obstante veredicto.

    The plaintiff took a writ of error and assigned for error ; entering judgment for the defendants on the reserved points non obstante veredicto.

    Hare, P. J., delivered the opinion of the District Court, viz. :—
    “ This is an action against the Western Union Telegraph Company, to recover damages for a mistake committed by their servants in the transmission of a telegraphic message from Parkersburg, in West Virginia, to Philadelphia. The telegram as originally written by the plaintiff was as follows :
    ‘ Parkersburg, April 14th 1865.
    To P. Edwards, 423 Walnut Street, Philadelphia.
    I hold the.Tibbs tract for you, all will be right.’

      “ Unfortunately, through some unexplained mistake or accident, an s tvas substituted for an h, so that the message when delivered in this city read, ‘ I sold the Tibbs tract, &c.’ Edwards thereupon broke off the contract into which he had entered for the purchase of the land. The mistake was not discovered until the 2d or 3d of May, when the plaintiff came to Philadelphia, and had an interview with Edwards, who said that supposing the telegram to be correct, he had made other arrangements.
    “The jury found a verdict for the plaintiff, subject to the opinion of the court on the following points:—
    “ 1. Whether the defendants are liable in this case, the plaintiff not having insured the message nor directed it to he repeated; and
    “ 2. That the form in which the telegram was transmitted by the defendants and received by Edwards, did not discharge Edwards from his liability as a purchaser under his contract with the plaintiff, and therefore, that the damages sustained by the plaintiff were not a necessary or legal consequence of the default of the telegraph company.
    “It being agreed that judgment should be entered for the defendants if the court in banc were of opinion with them on either point.
    . “ The first point grows out of the terms and conditions prescribed by the company for the receipt and transmission of all messages. These were, inter alia:

    “ ‘ In order to guard against and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should be repeated, by being sent back from the station at which it is to be received to the station from which it is originally sent. Half the usual price will be charged for repeating the message, and while this company in good faith will endeavor to send messages correctly and promptly, it will not be responsible for errors or delays in the transmission or delivery, nor for the non-delivery of repeated messages beyond two hundred times the sum paid for sending the message, unless a special agreement for insurance be made in writing, and the amount of risk specified on this agreement and paid for at the time of sending the message. Nor will the company be responsible for any error or delay in the transmission or delivery, or for the non-delivery of an unrepeated message, beyond the amount paid for sending the same, unless in like manner specially insured, and amount of risk stated thereon, and paid for at the time.’
    “ If this regulation is valid, there is obviously an end of the plaintiff’s ease. It is conceded that he knew of the rule, and did not require the message to be repeated. He cannot, therefore, make the defendants answerable in damages consistently with the terms to which he tacitly agreed. It is a general principle that a man who seeks to enforce a contract, shall not recover more than the contract gives. It is for him to consider, in entering into the obligation, what shall be the limit of the liability on the other side. If he assents to a provision that the opposite party shall not be answerable in a given case, or unless certain conditions are fulfilled, he cannot rely on the disadvantageous result of the bargain as a reason for relief. \'
    “ This consideration might be conclusive, if the action were ex contractu, or founded solely on the agreement between the plaintiff' and defendants. Such, however, is not the case. It is an action ex delicto for the breach of a duty which the defendants owe to every man, to receive the messages which he may wish to send, and transmit them to their destination. This obligation was anterior to the contract, and is not necessarily susceptible of being modified by it. Having its foundation in a rule of law, it cannot be varied or restricted, except in subordination to the principles on which the rule depends. The maxim quilibet potest renunciare juri pro se introducto, does not apply when the right in question is conferred on the individual with a view to his protection and for the common good.
    “ The plaintiff calls for the application of this doctrine to the case in hand. The condition against liability for unrepeated messages, is in his eyes, one which the defendants could not legally impose. It is, as he contends, virtually a stipulation for immunity against the consequences of their own negligence, and therefore invalid.
    “ If such be the nature of the regulation, it cannot operate as a defence. The defendants are public agents, and as such bound to the exact diligence which is the condition precedent of all faithful service. Their charter was not conferred upon them merely as a means whereby gain might accrue without the risk incident to individual responsibility. It is a great and beneficial franchise confided to their hands for the better attainment of an object in which the community at large are interested. They are, therefore, not less than a railway .company or a corporation organized to supply gas or water, under an obligation to exercise their peculiar function in away to obtain the end proposed, and must respond in damages to every one who is injured by a want of due care on their part, or on that of the agents whom they employ. This, as the case of The Telegraph Co. v. Dryburg, 35 Penna. 298, indicates, is true, not only as it regards those who contract with them, but of third persons, who having entered into no relation of contract, are yet injured by their negligence.
    “ The fundamental truth of the plaintiff’s contention, is therefore undeniable; but like most truths, it is limited by other and collateral principles. \A ^railway, telegraph or other company charged with a duty which concerns the public interest, cannot screen themselves from liability for negligence, but they may prescribe rules calculated to insure safety, and diminish the loss in the event of accident, and declare that if these are not observed, the injured party shall be considered as in default, and precluded by the doctrine of contributory negligence^ The rule must, however, be such, as that reason, which is said to be the life of the law, can approve; or at the least, such as it need not condemn. By no device can a body corporate avoid liability for fraud, for wilful wrong, or for the gross negligence which, if it does not intend to occasion injury, is reckless of consequences, and transcends the bounds of right with full knowledge that mischief may ensue. Nor, as I am inclined to think, will any stipulation against liability be valid, which has the pecuniary interest of the corporation as its sole object, and takes a safeguard from the public without giving anything in return. But a rule, which, in marking out a path plain and easily accessible, as that in which the company guarantees that every one shall be secure, declares that if any man prefers to walk outside of it, they will accompany him, will do their best to secure and protect him, but will hot be insurei’s, will not consent to be responsible for accidents arising from fortuitous and unexpected causes, or even from a want of care and watchfulness on the part of their agents, may be a reasonable rule, and as such upheld by the courts.
    “ Applying this test to the case in hand, does the evidence disclose any sufficient ground for overruling a defence which is primfi facie valid? '\lhe burden of proof is on the plaintiff. It is for him to show in what respect a regulation which he tacitly accepted, is so far hostile to the interests of the community, or of that portion of it which uses telegraphy as a means of communication, that the law should not suffer it to stanc\ Unless this is so clear as to be legally indisputable, the judiciary should obviously refrain from interfering with the contract as framed by the parties, and refer the subject to the legislature, who can at any time regulate the whole by statute.
    “We are fully aware of the importance of the question, and have no desire to relax the just measure of accountability in cases of this description. Telegraphy, like the other powerful instruments -which science has placed at the disposal of man, is capable of being a source of injury instead of benefit. That the intelligence which it conveys is prompt, will serve no good purpose if mistakes occur during the process of transmission. The difficulty of avoiding them is, notwithstanding, greater than might at first appear. The function of the telegraph differs from that of the post-office in this, that while the latter is not concerned with the contents of the missive, and merely agrees to forward it to its address, the former undertakes the much more difficult task of transcribing a message written according to one method of notation, in characters which are entirely different, with all the liability to error necessarily incident to such a process. Nor is this all. The telegraph operator is separated by a distance of many miles from the paper on which he writes, so that his.eye cannot discern and correct the mistakes committed by his hand. It was also contended during the argument, that the electric fluid which is used as the medium of communicatipn, is liable to perturbations arising from thunder-storms, and other natural causes. It is, therefore, obvious that entire accuracy cannot always be obtained by the greatest care, and that the only method of avoiding error is to compare the copy with the original, or in other words, that the operator to whom the message is sent should telegraph it back to the station whence it came.

      “ So far the inquiry is plain; but here a question of some difficulty presents itself. Should every message be repeated, or only those which are of sufficient importance to make such a precaution requisite? In answering this question it must be remembered that the repetition of a message necessarily involves delay and expense. The mail may transmit any number of letters simultaneously, but a telegram has exclusive possession of the wires during its passage over the line. While one message is repeated, others are delayed, which may at times be of serious consequence. There is, moreover, an increase of cost, which, though trivial in each instance, would be formidable in the aggregate, *>and necessarily augment the rate of charging in a ratio which has been roughly calculated at one-half. . Such must be the result, if every one who wishes to engage rooms at an hotel, or put a question of friendly interest, must submit to the expense and possible delay of repetition.
    “ On the other hand, the convenience of the opposite course is not less manifest. Instead of passing every message twice over the line, those only are to be repeated which from their importance, demand peculiar care. And as the company cannot know what telegrams fall within this category, the question is referred to the person chiefly interested. Obviously he who sends a communication is best qualified to judge whether it should be returned for correction. If he asks the company to repeat the message, and they fail to comply, they will clearly be answerable for any injury that may result from the omission. If he does not make such a request, he may well be taken to have acquiesced in the conditions which they prescribe, and at all events cannot object to the want of a precaution he has virtually waived. It is not a just ground of complaint that the power to choose is coupled with an obligation to pay an additional sum to cover the cost of repetición. If it were not, the company would in all probability be called on to repeat every message, with the inevitable result of putting the public to an increased expense, without any corresponding gain.

      “We are, therefore, inclined to think that the regulation in question, or at least so much of it as has been considered in this opinion, is well calculated to reconcile the economy and dispatch which the mass of the community principally desire, with the security against accident which each individual is entitled to demand. But we limit ourselves to saying that it is not so far contrary to private interest or the public good, as to justify a court of justice in pronouncing it in valid A
    “We have not arrived at this conclusion without a just diffidence arising from the novelty of the subject and the want of any controlling authority in this state. But it is satisfactory to know that the principles set forth above are sustained by the judgment of the Supreme Court of Massachusetts, in Ellis v. The Telegraph Co., 18 Allen 226; and also by that rendered in Camp v. The Telegraph Co., 2 Mete. (Ky.) 164.
    “ We do not think it requisite to notice the second point, beyond saying that it presents a nice question, about which the books do not agree: see Parris’s Case, Law Rep. 7 Chan. App. 587; and the British and American Telegraph Co. v. Colson, Law Rep. 6 Exch. 108. The fair deduction from the authorities seems to be, that although an offer made through the post office becomes binding as soon as the assent of the person to whom it is addressed is signified by mailing a reply, the contract is still subject to this condition, that the letter of acceptance shall reach its destination; and will fail if the opposite party does not receive notice within a reasonable time in that or some other way. The principle is the same, when a telegram is altered in passing over the line, and misleads a purchaser. We do not, however, express any opinion on this head, and leave it for the consideration of the court above. In deciding that the company is not answerable for unrepeated messages, we have in effect disposed of the whole controversy, and judgment is consequently entered for the defendants on the points reserved.
    “ Judgment for defendants.”

      J. 0. Longstreth and L. Myers, for plaintiff in error.
    The liability of telegraph companies is that of common carriers: Shearman & Redfield on Negligence, sect. 554; Parks v. Alta California Tel. Co., 13 Cal. 422; De Rutte v. N. Y., Alb. & Buf. Tel. Co., 1 Daly’s R. 547 ; Telegraph Co. v. Dryburg, 11 Casey 298; Tyler v. W. Union Tel. Co., 60 Ill. 421.

      Gr. L. Graivford and B. TL. Brewster, for defendants in error.—
    The liability of the defendants is not that of common carriers but on the contract only: Playford v. U. K. Tel. Co., Law Rep. 4 Q. B. 707; Leonard & Burton v. N. Y., Alb. & Buf. Tel. Co., 41 N. Y. 554; Birney v. N. Y. & Wash. Tel. Co., 18 Md. 341; Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164; Breeze v. U. S. Tel. Co., 45 Barb. 274; Shields v. U. S. & N. O. Tel. Co., 11 Am. L. J. 311; Ellis v. Am. Tel. Co., 13 Allen 227 ; De Rutte v. N. Y., Alb. & Buf. Tel. Co., 1 Daly 547; W. U. Tel. Co. v. Carew, 15 Mich. 525 ; Graham v. W. U. Tel. Co., 10 Am. Law Rep. N. S. 319.
    The liability of a telegraph results from the general principle that where one is injured in consequence of another neglecting to do that which he ought to have done, the latter is liable for the injury : Smith’s Manual of Common Law 101-2* ; Vandenburgh v. Traux, 4 Denio 464: Rose v. U. S. Tel. Co., 6 Robertson 305.
    Common carriers may, by special contract, limit their liability as insurers, or for any injury except one arising from their own negligence, and when they so do, they cease to be common carriers, and the onus of establishing negligence is upon the plaintiff: Browne on Carriers 117-8, and note (a.) ; Farnham v. C. & A. Railroad Co., 5 P. F. Smith 53; Patterson v. Clyde, 17 Id. 506; Harrison v. Railroad Co., 2 B. & S. 122; White v. Railroad Co., 2 C. B. N. S. 7; York Co. v. Central Railroad Co., 3 Wall. 111; Browne on Carriers 127, 135, 136. The condition as to repetition of message and insurance is reasonable and valid : McAndrew v. Electric Tel. Co., 17 C. B. 3; 33 Eng. Law & Eq. 180; Potts v. Electric Tel. Co., 18 Law Rep. 477 ; Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164; Breeze v. U. S. Tel. Co., 45 Barb. 274; Ellis v. Am. Tel. Co., 13 Allen 235 ; Gildersleeve v. U. S. Tel. Co., How. Pr. 403; 29 Md. 232; Kinghorne v. Montreal Tel. Co., 18 U. C. Rep. 60. If it were even doubtful whether the defendants’ negligence alone caused the injury there can be no recovery: Luxford v. Large, 5 C. & P. 421.
   The judgment was affirmed in the Supreme Court, April —1875-


author: Per Curiam.

text:
    Columbia Coal Company versus Miller et al.

    1. Miller, lessee of a colliery, at a rent per ton of coal mined, agreed with plaintiffs to sell them all the coal mined, they agreeing to pay him all cost of mining expenses, &c.; if plaintiffs should be in default for a time specified, in payment of the cost, expenses, &c., Miller might treat the agreement forfeited. On even date with the agreement Miller mortgaged his leasehold as collateral security for his performance of his covenants in the agreement. The plaintiffs made default in payment of expenses, &c., for the time specified, and Miller gave them notice that he would annul the lease at a time he named; after that time the plaintiffs, alleging that Miller had broken the covenants in his lease, sued out the mortgage. Held, that nothing was due on it, as the agreement had been forfeited for the breach of plaintiffs’ own covenants in it.
    2. Miller had confessed judgment to other persons, and after the breach of plaintiffs’ covenants, and notice to them of the annulling of the agreement, the leasehold was sold under the judgments. Held, that this was not a breach by Miller.
    3. The plaintiffs not having performed their covenants had released Miller and enabled him to treat the mining agreement as at an end.
    March 1st 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon and Paxson, JJ.
    Error to the Court of Common Pleas of Schuylkill county : No. 381, to January Term 1872.
    On the 18th of August 1868, a scire facias was issued by the Columbia Coal Company on the mortgage, hereafter mentioned, against August C. Miller and James C. Neil, terre-tenant.
    On the 16th of March 1869, judgment was entered in it, by confession by virtue of a warrant of attorney, against the defendants for $400,000.
    On the 15th of February 1870, the court made a rule to open the judgment absolute, and directed an issue “ to ascertain the amount due on the judgment for which execution may issue,” the parties to stand plaintiff and defendant in the issue as they did in the scire facias.
    The facts in the case were as follows:—
    On the 1st of March 1866, the plaintiff and August C. Miller entered into an agreement which recited, that on the 6th of Feb. 1863, a lease had been made to Miller of certain coal land in the Shenandoah Valley, Schuylkill county, for fifteen years ; that Miller covenanted in the lease to pay rent for the coal mined at rates specified in the lease; and that there were other stipulations and covenants in the lease, for which reference was made to the lease; that Miller had opened a colliery on the premises and was prepared to mine and send to market from the colliery yearly 50,000 tons of coal and upwards. It was then covenanted that Miller should sell and deliver, as was therein specified, to the plaintiff, all the coal not less than 50,000 tons yearly, which should be mined at that colliery during the remaining part of the term, and as much more as the plaintiff might require, to the full capacity of the colliery. The 5th clause of the covenant was: that Miller, in the most approved and economical manner, would work the colliery to its full capacity, &c., and preserve his lease from forfeiture by his breach or non-performance of its covenants; that the plaintiffs would pay Miller the full cost of mining and preparing the coal for market, including the rent to be paid thereon, the maintenance or removal of the improvements at the mines, and all the covenants of the lease which Miller was bound to keep, and all expenses chargeable to the maintenance and working of the colliery; that there should be transferred to Miller 9375 shares of the plaintiffs’ stock at $100 per share.

      “ That on or before the 10th day of each month estimates of the cost of mining expenses for the last preceding month shall be furnished by said Miller to the Columbia Coal Company, which amount shall then be paid by said company as soon as practicable thereafter; and the said Miller shall then, within five days ■after his pay day for the said preceding month, furnish to said company a detailed statement, showing the disbursements and payments made by him for the expenses of said preceding month, and the said August C. Miller shall further furnish to said company a daily report of the number of cars loaded or filled at the mines for said company, and shall on or before Wednesday of each week, send the -weight scale report of the amount of tonnage sent over regular railroad wéigh scales for the preceding week.
    “ In case the Columbia Coal Company are in default for the period of four consecutive months in the payment of the running and other expenses as aforesaid, the said August C. Miller, his executors or administrators, may sell in the open market, or in such manner as his or their judgment seem best, the coal that may be thereafter mined and taken away from said colliery, until the full amount in arrears as aforesaid, as well as accrued cost of mining coal thus sold shall be fully paid, providing, however, that if the proceeds arising from such sales of coal by the said August C. Miller do not, within the period of four months next ensuing the first period of five months aforesaid, fully reimburse the said August C. Miller, for such arrears and accrued cost of mining, then it shall be optional with the said August C. Miller, his executors or administrators, to treat the contract as forfeited by the said the Columbia Coal Company, and the said August C. Miller shall be under no further obligations or liability to said the Columbia Coal Company in respect thereto, or for any payment or payments theretofore made on account of the same.”
    On the 6th of April 1866, an agreement was entered into between the plaintiffs of the first part and Miller, M. E. Maize and J. 0. Rhoads of the second part. This agreement recited the agreement of March 1st 1866; also, that by a single bill, bearing even date with this agreement, Miller, together with Maize and Rhoads, acknowledged to owe the plaintiffs $400,000 ; also, that by a coal-lease mortgage, bearing even date with this agreement, he had mortgaged his lease to secure the single bill above-mentioned, and had also made his warrant of attorney to E. W. Hughes, Esq., &c., to confess judgment on any writ of scire facias issued on the mortgage for the full amount of the single bill; it was then agreed that the single bill and mortgage had been given as collateral security for the performance by Miller of the covenants, &c., in the agreement between him and the plaintiffs of March 6th 1866; that no scire facias should issue on the mortgage if Miller kept and performed his covenants, &c., in the last-mentioned agreement; that if Miller should not keep these covenants, &c., the plaintiffs might at their option forthwith sue out a scire facias on the mortgage and proceed at once to obtain judgment thereon, and immediately by virtue of the warrant of attorney above-mentioned judgment might be confessed for $400,000 ; that before such judgment should be confessed affidavits of the president, or one of the directors, and the superintendent, general agent or chief clerk of the plaintiffs should be filed in the scire facias, setting forth in detail when, wherein, what manner and to what extent any or all of the conditions, covenants and stipulations in said agreement have been broken or violated by August C. Miller, his executors or administrators, and the actual amount of damages and loss occasioned to said company by the violation as aforesaid of said covenants, conditions and stipulations in said agreement; and also that there be filed therewith in said court, proof of service of a copy or copies of said affidavits upon the said August C. Miller, Michael F. Maize and Jacob O. Rhoads, &c.
    “ If at any time after judgment confessed, and before a sale of the mortgaged premises under and by virtue of an execution issued thereon, the said August C. Miller, Michael F. Maize and Jacob O. Rhoads, &c., shall pay to said company the amount of actual damages sustained as aforesaid, that thereupon the power of said company to issue an execution on said judgment shall cease until the said company shall subsequently suffer damage and loss by reason of the violation of said agreement, when anew execution may issue upon said judgment upon the filing of affidavits and proof of service as aforesaid, which said last-mentioned execution may be stayed in like manner as aforesaid, and before any subsequent executions shall issue similar affidavits and proof of service must be filed, with power on the part of the said Miller, Maize and Rhoads, or either of them, to stay the same as herein before set forth.
    “ It is hereby understood that, * * * neither said sum of $400,000, nor any part thereof, shall or may be collected from the said August C. Miller, Jacob O. Rhoads and Michael F. Maize, or either of them, other than from a sale of the premises described in said mortgage, and that upon the sale of the same, said bill single and judgment upon the mortgage shall be considered paid an satisfied.”
    There was also a separate warrant of attorney, dated April 6th 1866, to Mr. Hughes from Miller, reciting the mortgage and authorizing the attorney in any scire facias, &c., on the mortgage to appear for Miller and confess judgment against him for $400,000.
    After this scire facias was issued affidavits were made by the secretary and one of the directors of the plaintiffs, setting forth, as is provided in the agreement of March 1st 1866, breaches by the defendant of the covenants, &c., in the agreement of April 6th 1866, and averring that the plaintiff had sustained actual loss, &c., to the amount of at least $50,000. Thereupon the judgment on which this issue was framed was entered.

      The case was tried May 11th 1870, before Ryon, P. J.
    The plaintiffs and defendant, under numerous objections, gave in evidence the foregoing facts.
    Under objection and exception, the defendant gave in evidence judgments, entered August 6th 1867, viz.: Hammett & Neil against Miller, Son & Rhoads, by confession for $50,000; and same plaintiff against Miller & Maize, for $25,000, by transcript from the District Court of Philadelphia; also, fi. fas. on these judgments, issued September 3d 1867, under which Miller’s leasehold and fixtures were levied on, and sold December ldth 1867 to E. S. Sillyman — the leasehold for $10,000, and the personal property for $1005.50. The purchase by Sillyman was in trust for himself and other creditors: Neil, the terre-tenant in this case, was afterwards substituted as trustee in place of Sillyman.
    A. C. Miller, defendant, testified that M. Maize and J. O. Rhoads were partners with him in the lease; the firm name was A. 0. Miller & Co. Maize was president of the Columbia Coal Co.. The coal was mined in the'name of A. C. Miller & Co., placed to the credit of the plaintiffs, and shipped to Miller, Son & Co., Philadelphia. Witness complied with the stipulations of the agreement, mined all that he could under the agreement. The coal mined and shipped did not pay expenses; it was so for about twelve months ; at the end of nine months the arrears were about $25,000 ; the plaintiffs had never paid witness anything under the agreement. Witness demanded money from the president often, none having béen furnished; it was in June 1867 that the arrears were $25,000 ; he then told the • president he would annul the agreement at the end of the eight months; he annulled the agreement in November Í867.
    There was evidence also that defendant had given like notice to the secretary and treasurer and directors in New York, where the principal office of plaintiffs was; and had also forwarded there to them monthly statements of the balances against plaintiffs; also, that part of the expenses claimed by defendant was incurred in sinking additional slopes. There was evidence in rebuttal for the purpose of showing fraud in the sheriff’s sale, and that the property had been bought for the benefit of Miller & Co.
    There was much other evidence given on the trial; the facts and evidence above given will sufficiently elucidate the questions decided by the' Supreme Court.
    The court below charged:—
    “ The evidence is that the Columbia Coal Company directed the sinking of the slope, and also it is in evidence that this was necessary to comply with the covenants of the lease and to keep the shipments or production of the colliery to the minimum number of tons required by the lease. There is no contradiction in this testimony. It is quite clear to us that under the agreement of March 1st 1866, the slope expenses are embraced, which would show on the close of December 1867, a very large balance in favor of Miller, due him by the Columbia Coal Company. 'This balance started in December 1866, at $3505.47, and varied through the year, becoming very large at times, and for December 1867, it was $25,299.16 ; more than eight months elapsed successively, and this balance was not paid to Miller, nor has a tender been made. Now, to entitle the plaintiff to recover it must be shown that the company had complied with the covenants in the agreement of March 1st 1866, or show a reason which would discharge the company from such compliance. This issue is substantially the same as if covenant had been brought by the company against Miller on this agreement of March 1st 1866, and a plea of covenants performed absque hoc, &c., &c.

      “ The company did not comply with the 5th clause of the agreement, as appears from all the evidence in the case. There are other questions in the case which may be equally decisive, but as we think this is sufficient to prevent a recovery, we will not notice the other questions.”
    The jury found for the defendant.
    The plaintiffs took a writ of error and assigned fifteen errors. These raised the questions of fraud on the part of the defendant in relation to the sheriff’s sale, the sufficiency of the demand for the expenses and of notice of intention to annul the agreement, and the propriety of the peremptory instructions of the court.

      L. Bartholomew and E. W. Hughes (with whom wras G-. E. Earquhar) for plaintiffs in error.
    — Notice to an individual corporator, not lawfully constituted an organ of communication, is not notice to the corporation: Bank of Pittsburg v. Whitehead, 10 Watts 402; Wilson v. McCullough, 11 Harris 440; Langolf v. Seiberlitch, 2 Parsons 64. Even notice to the proper officer is not binding if he acts for himself in dealing with the corporation as if he had no official relations with it: Angell and Ames on Corp., sect. 308; Winchester v. Baltimore Railroad Co., 4 Md. 231.

      J. W. By on and J. H. Campbell, for defendant in error.
   Judgment was entered in the Supreme Court, March 8th 1875,

Per Curiam.

We cannot discover what many of the matters assigned for error had to do with the issue tried in this case. The single bill and mortgage were given as a security for the performance of the covenants in the agreement for working the mines. The judgment on the mortgage was confessed under the stipulations in the agreement, and upon affidavits setting forth the breaches alleged. The issue was to determine whether anything was due and owing on the mortgage, and. this depended upon the breaches of the covenants assigned. Hence, the real question was, whether the defendant, A. C. Miller, had broken his covenants, or any of them, so as to entitle the plaintiffs to judgment, on the security held for their protection. The evidence was clear and beyond dispute, that plaintiffs broke the covenant to be performed on their part, by omitting for more than the stipulated time, to pay the sums they were bound by the agreement to pay to the defendant, Miller, which, by the terms of the agreement, gave him the right “to treat the contract as forfeited.” This took place long before the sheriff’s sale of Miller’s interest and estate in the colliery, and he not only gave notice to Maize, as the president of the Columbia Coal Company, but to the officers in New York, and forwarded monthly statements of the balances against the company.

Under these circumstances the sheriff’s sale could not be set up as a breach on the part of Miller, who thus had a right to treat the contract as forfeited by reason of the plaintiffs’ precedent breaches, continuing over eight months. And if the plaintiffs relied on the sheriff’s sale as a breach, it is not easy to perceive how the fact of collusion, in effecting it, could affect the issue being tried. The breach then would consist in the fact of the sale, and not in the means of effecting it. If, by collusion or fraud, the force of the sale was destroyed, it might be argued against the plaintiffs, that there being no legal sale, there was no sufficient breach. But in this issue the sale was not really involved, for the clear and uncontradicted evidence was, that the company had not performed its own covenants, and therefore had released the defendant Miller, and enabled him to treat the mining contract as at an end.

Judgment affirmed.