author: Mr. Justice Mercur

text:
    Appeal of the Overseers of the Poor of White Deer Township.
    The claim of §300 exemption, under the Act of 1849, is a personal privilege and may be withdrawn at any time by the claimant. He is not precluded from withdrawing his claim because he is a pauper and a charge upon a township.
    June 15th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Union county: Of May Term 1880, No. 206.
    Appeal of the Overseers of the Poor of White Deer township from the decree of the court confirming the report of the auditor appointed to distribute the proceeds of the sale of the real estate of Gabriel Huntingdon, a pauper.
    The facts found by the auditor, S. D. McDonald, Esq., were substantially as follows: The fund for distribution was the proceeds of the real estate of Huntingdon, sold on the 8th of August 1879. At that time there were on the records of the Court of Common Pleas of Union county six judgments, which were a lien on this real estate. All these judgments were without any waiver of exemption. A fieri facias issued on the judgment of Philip Stahl, which execution was received by the sheriff on April 18th 1879.
    The defendant had no personal property, and on the 1st of May 1879 the sheriff levied on defendant’s real estate. He claimed $300 exemption, and on the 13th of May 1879 the sheriff summoned three men to appraise the real estate. On the same day the said appraisers found that it could not be divided. On May 19th 1879 defendant again claimed $300 out of the proceeds of the sale of the real estate, under Act 9th April 1849. On May 19th 1879 defendant’s real estate was condemned. A venditioni exponas issued, and the real estate was sold on the 8th of August 1879. On return of the vend. ex. the sheriff, by leave, paid the money into court. At the return of the writ, September 22d 1879, a paper was filed withdrawing the claim for exemption in the following words:
    “ I, Gabriel Huntingdon, defendant in this case, do hereby withdraw my claim for exemption under the Act of 9th April 1819, and agree that the sheriff pay out the said money as if no such claim had been made.
    “ Signed in the presence of “John Criswell, “ J. Merrill Linn.
    Gabriel Huntingdon
    The auditor found that there was no consideration given for said release of exemption, save the pre-existing debts in the form of the judgments. He also found that on the 17th of April 1879 Huntingdon applied to two justices for an order of relief for himself and wife, on the ground that they were poor and unable to provide for themselves, and on said day, an order of relief was granted, which order was directed to the Overseers of the Poor for the district of White Deer township, Union county, Pa.; that under said order the overseers took charge of Huntingdon, and he has from that time remained as a charge upon the township as a pauper.
    The auditor reported: “ Did the $300 exemption vest in Gabriel Huntingdon when he made his claim on the 19th day of May 1879 ? If it vested in him, did it eo instanti vest in the Overseers of White Deer township ? Or did he still have such dominion and control over the fund or over his claim as would enable him to withdraw his claim to exemption and allow the fund to be distributed as though no such claim had been made ?
    “It is admitted by the counsel for the overseers that if the defendant had failed to make the claim the fund would have gone to the judgment-creditors, but it is maintained that when he made the claim an interest vested in the overseers of which he could not afterwards divest them.
    “ The thirty-third section of the Act 13th June 1836 provides as follows:
    “ ‘ It shall be lawful for the directors of the poor of any county, and for the overseers of any district, as the case may be, in which any person shall have become chargeable, to sue for and recover any real or personal estate belonging to such person, and to sell or otherwise dispose of the personal property, and to collect and receive the rents and profits of the real estate, and to apply the proceeds, or so much thereof as may be necessary, to defray the expenses incurred in the support and funeral of such person; and if any balance shall remain the same shall be paid over to the legal representatives of such person after his death, upon demand made and security being given to indemnify such directors or overseers from the claims of all other persons.’
    “ This act is taken from the Act of 29th March 1819, with some alterations suggested for the purpose of defining more clearly the authority of overseers in the subject-matter: 4 Report of the Commrs. to revise the Civil Code, p. 89.
    “ It does not appear that prior to the Act of 29th March 1819, there was any means by which the overseers could apply the property of a pauper to his support except by withholding relief.
    “ The Act of 13th June 1836, sect. 33, is a remedial statute, made to supply a defect in the common law. The object of the act was clearly to give the overseers a right which they did not have before, not to deprive the pauper of any right which he already had. The old law was defective. The mischief was, that a pauper receiving support might still retain his goods and chattels or neglect to enforce rights in action which might be made available for his support. And the remedy was to give the overseers the right to confiscate the property which he already had in possession, and to use legal remedies for the recovery of his rights in action.
    " The Act of 13th June 1836 does not deprive the pauper of all control over his property. It was not made for this purpose. It merely gives the overseers the right to sue for and recover any real or personal estate belonging 'to such person, and to sell or otherwise dispose of the personal property.’ If they neglect to do this or to take possession of his property, it cannot be denied that the property and the right of action remain in the pauper.
    " No man is to be stripped of his inherent rights without special words to that effect.
    " So long as the property remains in the possession of the pauper, unappropriated by the overseers, it would be absurd to say that he could not in good faith apply it to the discharge of bona fide debts by the contraction of which he had been enabled to keep himself without assistance from the overseers. It is clear, then, that the Act of 13th June 1836 does not divest the pauper of all rights in or to his property. It merely gives the overseers of the poor an authority over his property which, when exercised, is superior to his.
    " Applying these principles to the case in hand, it is clear that the Act of 13th June 1836 did not divest Gabriel Huntingdon of all his rights in the proceeds of the sale of his real estate and vest them in the overseers of the poor. If this were the case, then the defendant was incapable of making the claim for exemption, and if he was incapable of making the claim,, then the fund would go to the judgment-creditors.
    " If he was capable of making the claim he was also capable of withdrawing the claim, which he did, and the fund is to be distributed as though no claim had been made: Kyle and Dunlap’s Appeal, 9 Wright 353. The right to exemption is a personal privilege of the defendant, and over which he himself has absolute control: Kyle and Dunlap’s Appeal, supra.

    " It is also clear that no property in the $300 ever vested in Gabriel Huntingdon, and therefore it could not vest in the Overseers of White Deer township. By his claim for exemption he merely obtained an inchoate right or chose in action liable to be rejected by the sheriff, or defeated or released before actual possession was obtained. This was what actually took place. Gabriel Huntingdon released or withdrew his claim to exemption. This he had a right to do : Kyle and Dunlap’s Appeal, supra. And it is to be remembered that he did not do this in bad faith, but in favor of bona fide judgment-creditors, whose advancements to him had been his means of sustenance, and whose leniency had saved him from becoming a charge on the township long before. Their claim to his property was at least as equitable as that of the overseers of the poor, and their legal status is certainly superior.
    “ The auditor is therefore of the opinion that the claims of the overseers of the Poor of White Deer township to $300 out of the fund for distribution ought not to be allowed, but that the said fund should be distributed among the judgment-creditors in the order of their priority.” • -
    The township excepted, and the court overruled the exceptions and confirmed the report, adopting the opinion of the auditor. From this decree this appeal was taken.

      Wolfe & Wilson, for appellants.
    The real estate of Hunting-don being converted into personalty by the sheriff’s sale, the $300 of the proceeds vested in the overseers upon the election of Huntingdon, who was then a charge on the township, to retain the sum out of the proceeds, and said property being so vested Hunting-don could not deprive the township thereof by withdrawing his claim for exemption. The withdrawal was voluntary and in fraud of the rights of the township. Whatever rights Huntingdon had passed irrevocably to the township. Whatever property a man has when he becomes a pauper passes ipso facto to the overseers : Act of June 13th 1836, sect. 33, Purd. Dig. 1160, pl. 39. If Huntingdon had failed to claim the benefit of the exemption then it would have gone to his creditors; but having claimed it, it vested in him, and that moment became th.e property of the overseers: Jester v. Overseers of Jefferson Twp., 1 Jones 540; Ripple et al. v. Ripple et al., 1 Rawle 386.

      J. Merrill Linn, for appellees.
    The $300 never vested in Huntingdon, and could not until paid to him. The claim of the exemption, even if it did vest the property in him, would not ipso facto give the overseers any right to it. Even if vested in him, property exempted could not be claimed by the overseers, although he was then a charge and received support. The overseers have no other nor better rights than any other creditor. It was not in fraud of their rights he withdrew his claim to exemption, as he used it to pay his pre-existing debts. A pauper can claim the benefit of the exemption, even against the overseers of the poor, and can claim or release his claim to exemption at his own pleasure: Kyle and Dunlap’s Appeal, 9 Wright 353. The debtor has no vested right in the property itself before appropriation or distribution, or it is reduced to possession. And he has a right to waive it up to that time notwithstanding it will make a change in the distribution.

      October 4th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This contention is for a fund produced by a sheriff’s sale of the real estate of one Gabriel Huntingdon. It arises between his lien creditors and the overseers of the poor. It presents a question of' the power of Huntingdon, after he had become a charge on the poor district, to make and to withdraw, a claim for the $300 worth of property under the Act of April 9th 1849.

After the judgments on which the money is claimed had attached as liens to the land, and after a fi. fa. had issued on one of them, but before the return day thereof, Huntingdon applied for relief. An order therefor was duly granted. Under this order the overseers took charge of Huntingdon, and have continued to provide for him. Several days thereafter the fi. fa.'was levied on the land. About a month after the order'of relief was procured, Huntingdon made claim to the $300 exemption. The appraisers found that the land could not be divided without spoiling the whole, and Huntingdon then claimed the $300 out of the proceeds of sale. The land was sold on a writ of vend. ex. Afterwards by writing duly executed by Huntingdon, he withdrew his claim for exemption, and agreed “ that the sheriff pay out the said money as if no such claim had been made.” This writing was returned with the writ on the return day thereof. The sheriff thereupon asked leave to pay the money into court, and it was so paid.

The Act of 1849, allowing the exemption, does not force it on a debtor. He may or may not claim it at his option. It is a personal privilege which he may release. It is a contingent right which is lpst by an omission to claim it at the proper time. In case he does duly claim it, he may withdraw the claim at any time before the property is set off or money decreed to him: Kyle and Dunlap’s Appeal, 9 Wright 333. Conceding this power to exist in one who is sui juris, it is contended that Huntingdon could not withdraw the claim. The Act of June 13th 1836, authorizes the overseers of the district in which a person has become chargeableto sue for and recover any real or personal estate belonging to him, and to collect and receive the profits of his real estate, and to sell and dispose of his personal property. It does not, however, divest nor impair any liens on his property existing before he became chargeable on the district. When Huntingdon became chargeable he had no right of property. He had not taken the first step towards acquiring it. He never did acquire it. He was under no more disability at the time he withdrew the claim than when he made it. He did not make it in behalf of the overseers but in his own right. He could not have been compelled to claim it to the prejudice of his lien creditors, either for the benefit of himself or his other creditors. Before any order or decree giving him the money was made, and before his claim was considered and determined, he withdrew it. He was as competent to withdraw the claim.as he was to make it. The withdrawal was no fraud on any of his creditors. It was not in conflict with any principle of equity, nor with the policy of the law. No fact is shown tending to put the appellants on higher ground than that occupied by the judgment lien creditors. The learned judge was right in decreeing the money to the latter.

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


source: Caselaw Access Project

author: Mr. Justice Green

license: Public Domain

text:
    Leonard’s Appeal.
    To surcharge a guardian with a certain fund on the ground that in not collecting it he was guilty of negligence, it must be shown not only that he had the legal right, but was subject to the legal duty to collect it in' his official capacity.
    June loth 1880
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Steureti and Green, JJ.
    Appeal from the Orphans’ Court of Clearfield county: Of May Term 1880, No. 160.
    Appeal by J. T. Leonard from the decree of the court confirming the report of the auditor appointed to report upon the exceptions filed to the account of appellant, as guardian of Kate E. Moore.
    The facts as found by the auditor Wm. M. McCullough, Esq., were as follows:
    “ William L. Moore died in 1864, and James A. Moore, his son, and Hannah Moore, his widow, became his administrators on 22d July 1864. Kate Moore, and her sister Mary, were the only children not of age, and on December 4th 1866, James T. Leonard, who was a brother of Hannah Moore, the widow, became their guardian by an appointment which directed a bond to be filed, in each case, in $12,000.
    “ The real estate of the decedent consisted of a tract of timber land which was sold in 1868 (the interest of the minors being divested by a sale, made by their guardian under authority of the Orphans’ Court), and a number of lots of land in the borough of Clearfield, and pieces of land adjoining and in the vicinity of the borough. On June 22d 1868, a petition for partition, signed by the heirs of age and the guardian for the two minors, was presented to the court, and, in accordance hvith its prayer, certain persons were appointed to make partition. These persons, by a report which was confirmed September 80th 1868, divided the property into certain purparts, and appraised the same at $12,420. On June 25th 1869, James T. Leonard, as guardian, petitioned the court for an order authorizing him to make private sale of his wards’ interests in the real estate appraised, setting forth that the said real estate was unproductive, and that it was to the interests of the wards to sell it, and that it would sell for a better price at a private than public sale, upon which the court ordered the guardian to sell either at public or private sale as he might deem most advantageous, and to give a bond in $8000 with security. On October 4th 1869, the bond of James T. Leonard, with James A. Moore as surety, was filed, the condition of which reads: ‘ That James T. Leonard, guardian of gsfesdra: Moore and Mary Moore, minor children of W. L. Moore, shall faithfully appropriate the proceeds of sale,’ etc., the name of Catharine Mocre being erased as shown here. On September 80th 1869, return of sale to James A. Moore and Hannah Moore of the interest of Mary Moore, being one fifth, for $2000, confirmed by the court. The order of sale made on 25th June 1869, directed that the purchase-money be secured by bond and mortgage and bear interest from the day of’sale. The guardian having learned that Kate Moore, one of his wards, arrived at full age, stated to the administrator’, James A. Moore, that she could join in the deed with her elder sisters, Mrs. McCullough and Mrs. Showers; accordingly a deed, which bears date the 19th June 1869, was executed by them making over their interest to the administrator, James A. Moore and Hannah Moore. Kate Moore became of age on March 21st 1869. She testifies that the deed was brought to her .by her brother, James A. Moore, he stating that Judge Leonard said she should sign it. She says she knew there were some business being transacted relative to the property, but did not know that she had anything to do with it until then. The guardian denies that he gave any direction that she should execute the deed, but did say to James A. Moore that she could join with the others, when he learned she was of age. She testifies that the deed was not opened in full, but only two folds of it, so that she could sign it. The purchase-money was settled by James A. Moore giving his note payable to the two older sisters and to ‘ Jas. T. Leonard for Kate Moore,’ each in $2000. These notes, Moore testifies, were drawn up in this way with the knowledge and consent, and, he thinks, by the direction of James T. Leonard, and the time for payment was fixed to suit him. The notes were drawn in Leonard’s bank, is the recollection of Moore, and Leonard says he thinks they were drawn in his office. When filled out and signed they were taken by Moore to Leonard, who enclosed the notes of Mrs. Showers and Mrs. McCullough, and took the note of Kate Moore. He states that he objected to taking it, but this is denied by Moore, who states that he took it without objection, and it is not alleged by Leonard that he ever showed this note to Kate Moore, or that she ever knew-that any note had been taken for her interest, until about the time this proceeding began. On the other hand she testifies that she always supposed she was getting what her two sisters.older than herself got, and it was shown that they were paid within a few months after the sale, by Leonard. James A. Moore testifies that after delivering the note to Leonard he told Kate Moore that Leonard had her money, and never knew or was told that he did not intend to pay it until ■ about the time this proceeding began, and after he had made over to Leonard all his title to his real estate. James A. Moore testifies that the purchase of this real estate was made after frequent consultations with Leonard, and that Leonard had agreed to pay the purchase-money to these heirs. Leonard denies that he was consulted about the purchase, hut states that he told James A. Moore the price was too high, and admits that he did agree to pay Mrs. Showers and Mrs. McCullough’s notes. It appears by Leonard’s testimony that James A. Moore owed him largely in 1869, and up to the present time has continued in his debt, although he admits that no liens were against Moore until about March 1877. By deed of 24th June 1878, Leonard acquired title to all of James A. Moore’s real estate, being the real estate purchased by him of Kate Moore and others in 1869. Besides this, it appears that the guardian had advanced $3000 to James A. Moore, which had been expended in improving this property by clearing a portion and building houses. It was not proven and not even alleged that Kate Moore was ever informed by the guardian of the situation of her estate, or of his dealings in relation to it. On the contrary, the latest payments to her by her guardian were the largest, and the payments seem to have all stopped suddenly. The only intimation proven in the testimony of the guardian was that, when she (the ward) came for money, he told her that there was no more money coming to her, that ‘ Jim had her money.’ ' The testimony shows that the guardian and the administrator, James A. Moore, were on close terms, and that the latter’s circumstances were best known, and probably only known, by the guardian. The guardian continued to act as guardian after the ward came of age. Indeed, his account shows , that all the payments made to her by him were after she attained her majority, and the guardian’s account as kept in h-is books shows the $1000 purchase-money for the timber land credited to her on December 22d 1869, nine months after she came of age, and his own testimony is, that that was the time he received the money. As to the $2000 for the other real estate, it was taken by him after she was of age, payable to him for her, and the existence of.the note was not made known to her.”
    The auditor then reported:

      “ From this state of facts, your auditor is at a loss to know why the guardian should not be held to pay the Kate Moore note. It is a most singular circumstance, incompatible with the plainest duty and most sacred obligation of a guardian to his ward, that he should make himself liable for two notes payable, to parties in whom he had no interest, and permit the estate of his ward to be frittered away to an irresponsible party, taking a note therefor that he swears is not worth the paper it is written on. • No matter whether she was of age or not. He knew all about her estate and all about the parties buying it. He had never been discharged as her guardian by settling up her estate and handing it over to her, and while she looked to him and trusted in him as her guardian, it was his plain •duty to protect her interest. The facts before stated show that the title to the very land for which this note in dispute was given, in a few years vested in James T. Leonard. Thus we have the singular business transaction of a guardian permitting the estate of his ward to pass into the hands of an irresponsible party, for worthless paper, and then entering liens against the purchaser and acquiring the title h'imself. The policy of the law as well as the plainest dictates of humanity, demand that guardians be held to a strict accountability for the honest performance of their duties and faithful discharge of the sacred trust committed to them. r
    “As a matter of law it was contended by the counsel for the guardian that Kate Moore, having- arrived at her majority before the deed was made, and having signed it herself, her guardian was in no way liable for the payment of this note. On the other hand it was maintained by the counsel for the exceptant that the guardian, having continued to act in that capacity for his ward, after her majority, and never having filed his final account of his ward’s estate and got his discharge from the court, that therefore he was liable, and numerous cases, both in this country and in England, were cited in support of this position, which it is unnecessary for your auditor particularly to refer to. It is sufficient to say that after a careful consideration of all the authorities, and under the facts in this case, he is well satisfied of the correctness' of this position.
    “The exceptions to the account are therefore sustained.”
    Leonard filed exceptions to this report, but the court overruled them and confirmed the i*eport. From this decree this appeal was taken.

      McEnally & McCurdy, for appellant.
    If a .guardian acts for his ward in transactions arising after the ward is of age it is not by virtue of his office of guardian but by virtue of the authority given him to do so by his former ward. Such a transaction is no guardianship matter, but is to be treated in the same way as any other transaction under the same circumstances between parties who are legally competent to act for themselves. Transactions between guardian and ward which arise or originate during the ward’s minority, or which belong to such transactions, are alone subjects of settlement in a guardianship account.
    If Leonard is liable on the $2000 note it must be on the ground, that, having received it he did not collect it. Leonard denies his liability. The whole transaction is on and after the 19th of June 1869, after the relation of guardian and ward was at an end. It does not belong to his guardianship account. The question of his liability cannot properly be tried here. On that question he is entitled to a hearing and trial in the ordinary course of legal proceedings.
    October 4th 1880.

      Murray & Gordon, for appellee.
    The proposition we rely on is, that where a guardian neglects to settle with his ward, and fails to inform her of the situation of her estate in his hands, and continues to act negligently as guardian, after she comes of age, he is liable to account as such for the whole time.. This is so from the nature of the relation, .and the very necessity of the case. After age, the relation of confidence continues as before, enabling the guardian to profit thereby, and the deprivation of the information and knowledge respecting the ward’s estate, which if possessed by her might awaken information and jealousy on her part, continue as before.' So also the loss of the benefit which might accrue from the control and use of her property.
   Mr. Justice Green

delivered the opinion of the court,

The only question in this case is, whether the appellant should be surcharged as guardian of Catharine E. Moore, with a particular sum of money, for which the auditor and the court below held him liable to account. The plain facts were that the ward, after she attained her majority, sold her interest in certain real estate of which she was a tenant in common with her sisters and brother, for $2000, and executed a deed therefor to the purchasers, who were her mother and brother. With this sale the guardian had nothing to do. The ward being examined, testified as follows:

My brother James brought the deed for me to sign about ten years ago. I was twenty-one years of age at that time. * * * Judge Leonard had never spoken to me about signing the deed. Leonard was not there at the time it was signed. It was signed at my home; no one present but my brother and myself. Judge Leonard never mentioned the deed to me since. He never talked to me about my interest in the estate. He never mentioned the deed to me before I signed it — at the time, or afterwards. I never took any advice from any one about signing the deed except my brother, James A. Moore. I simply want to say that I took advice from no person.” Judge Leonard testified : “ I was not present when the deed was made from Kate to her brother James, and knew nothing about it. She never consulted me about making such deed, nor any of the others. I never advised her to make such a deed.” The purchase-money was not paid in cash. One of the purchasers, the brothei’, drew up and signed a note for $2000, which he made payable “ to the order of James T. Leonard, for Kate Moore, for her interest, as per deed given for the real estate of her father.” The note was taken by Moore to Leonard, who testified: “ I did’nt know how they were settling. Kate’s note was brought to me afterwards, on the same day, by James A. Moore. No one else came to me in regard to that matter. Don’t know exactly what he said or what I said; but I told him I would not take the note, that it was not worth the paper it was written on. He said, £ then take it and keep it.’ I said I would do that awhile. He never came back for it, nor any one else. He never asked me to pay it, and I never agreed to pay it.”

James A. Moore testified when examined in chief, that Leonard promised to pay the purchase-money which the several notes represented, but on cross-examination said that Leonard left the impression on his mind that he would pay this note — ££ said he would hold it or take care of it: don’t mind the words.” The notes given to Kate’s sisters, were endorsed by Leonard, and delivered by Moore to them, and were subsequently paid by Leonard. The note for Kate’s share of the purchase-money Leonard refused to endorse. Whether in this state of facts Leonard became liable, in his individual capacity, to pay this note or the money it represented, either on the ground that in receiving and holding the note he was acting as his ward’s agent, and- was guilty of negligence in not collecting it, or on the ground of his alleged promise to pay it, is a question which is not before us, and which, therefore, it is not necessary to decide. But whether he is liable in his capacity as guardian, to be surcharged with this amount, is an entirely different question, and one which, in our opinion, is quite free of difficulty. It is, as it must be, asked, to charge him with the money, on the ground that he ought to have collected it and did nor, in other words, that he was guilty of negligence in not performing his official duty in respect to this fund. The position would be well taken if he had the legal right, or was subject to a legal duty, to collect the money in his official capacity. But it is too plain for argument that he never had such a right, and was never subject to such a duty. He did not sell the land as guardian or in any other capacity. The purchase-money was never due to him as guardian, and he could never have maintained any action or proceeding, at law or in equity, to collect the money in that capacity. Nor was he subject to any kind of duty as guardian to collect it. Now the very essence of the application to surcharge is official negligence. But there can be no such negligence where there is no official duty. How can a guardian be held liable for not doing that which he could not lawfully do at all ? He could never have brought an action on this note in his capacity as guardian. The transaction in which the note was given originated after the relation had ceased. Moreover, it was made with the ward herself after she had become sui juris. She was then chargeable with the duty of looking after, and caring for, her own interests. It was her duty and right to receive the purchase-money, or an equivalent security, when she delivered the deed, and the omission to do so was her negligence and not the appellant’s. To visit the consequences of that negligence upon one who was subject to no duty and had no legal right in the premises, would be doing gross injustice to him, and we cannot sanction such a proceeding. The cases cited for the appellee have no application to the facts of this case. Of course if a guardian actually receives money of his ward after the majority of the latter, and in the assumed capacity of guardian and before accounting, he must account for it in his subsequent settlement. But that is not this case. Neither does the fact that he received and paid over money due on the note for $1000 taken from A. K. Wright after the relation ceased, at all affect the case. That note was given to the appellant as guardian during the pendency of the relation and for property of the ward sold by him under an order of court. He was liable for it, and whether he received the money during or'after the pendency of the relation was immaterial, as. he was bound to and did account for it. Neither does the guardian’s long delay in filing his account at all affect the present question. Such delay can not operate to subject him to charges to which he is neither legally nor equitably liable.

We are of opinion that the auditor and court below were in error in surcharging the appellant with the sum of $2000, the amount of the note of James A. Moore, dated June 1st 1869, and the interest thereon, and the decree of the court below, is therefore reversed.

Decree reversed, with direction to the Orphans’ Court to correct the report of the auditor by striking therefrom the charge of $2000 for the note of James A. Moore, and all interest allowed thereon, and also by striking out the item of $87.60 costs, charged to James P. Leonard. The costs of this appeal to be paid by the appellee.


author: Mr. Justice Trunkey

text:
    Dubois versus Bigler, Young & Co.
    1. B., Y. & Co. agreed in writing with D. to construct two engines and put them in place and working order, so that when said engines and fixtures were set up they 11 shall constitute everything necessary to make them complete, both as to appearance and capacity.” They furnished their drawings and guarantied that the materials and working of the engines should be first class and satisfactory to D. On his part D. was to prepare a good foundation fit for the machinery. In an action by B., Y. & Co. to recover the contract price of the engines D. defended on the ground that there was some defect in the engines and that he was unable to use them, and was compelled to procure another engine. The plaintiffs contended that the defect was in the foundation and not in the machinery. The defendant offered to prove that at the time of making the contract defendant-had proposed a different kind of foundation, when one of plaintiffs’ firm insisted upon the kind which was built, and it was constructed accordingly. Held, that this evidence should have been admitted.
    2. The defendant also proposed to prove that after the removal of the engines built by plaintiffs another engine which produced a greater strain upon the foundation was successfully used. Held, that this evidence should have been admitted.
    3. Parol evidence of conversations between the parties at the time of making the contract, with the negotiations leading thereto, was admissible, to show the uses for which the engines- were intended and the place where they were to work, when the proposed proof contradicted nothing in the writing and called for no conversation other than necessary to establish the intended use of the machines.
    4. As the contract stipulated that the drawings for the engines were to be furnished by plaintiffs and they guarantied the materials, workmanship and working of the engines, including everything necessary to make them complete, they thereby also guaranteed the success of the plan, unless it was hindered or prevented by the act or default of the defendant.
    5. D. sued in the Common Pleas of Lycoming county to recover damages on the above contract. The action was referred under the Compulsory Arbitration Act, and the arbitrators filed an award of no cause of action, from which plaintiff appealed. When the cafise came' to trial, after the jury were sworn, in open court, the plaintiff suffered a voluntary nonsuit and judgment accordingly. Held, that thereby the award was defeated. McKennan v. Henderson, 4 W. & S. 370, followed.
    June 16th 1886.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkby, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Clearfield county: Of May Term 1879, No. 107.
    Debt by Bigler, Young & Co. against John Dubois, to recover the contract price for two engines built under a contract, the material portions of which were as follows :—
    “Articles of agreement, made this 24th day of December 1872, by and between Bigler, Young & Co., of the borough of Clearfield, Pa., of the first part, and John Dubois, of the city of Williamsport, Pa., of the second part, witnesseth, that the parties of the first part agree to construct and have ready for delivery, on or before the 1st day of July next, to the said party of the second part, at their shops in Clearfield, Pa., two finished engines, to be placed as shown in a set of drawings furnished by said party of the first part, at an angle of forty-five (45°) degrees, and to be connected to one and the saniR crank. (Here follows a description of the parts of the engines and the materials of which they were to be made.)
    Engines to be set up by parties of the first part, upon the foundation prepared. The materials, workmanship and working of said engines and fixtures all guaranteed by said parties of the first part, in every respect as of first-class and satisfactory to party of the second part. All water-pipes and fixtures necessary to carry the water from the reservoir through the pump and heater to the mud-drum to be furnished and put in place by the party of the first part, and to be paid for by the party of the second part at manufacturer’s prices.
    The said engines, with their fixtures and attachments to be designed and constructed, to be made at a working speed of one hundred (100) revolutions per minute ; all to be put up in place and in working order by parties of the first part, as soon as said engines and materials and fixtures shall have been delivered to the site and foundations prepared by the party of the second part; a wagon sufficiently strong to carry the engines from Clearfield to mill site to be furnished by the parties of the first part, free of charge. Said engines and fixtures, when set up, shall constitute everything necessary to make them complete, both as to appearance and capacity, from the steam-drum to the mud-drum. They further agree to furnish the party of the second part with all the pulleys for the mill for which the above-named engines are designed, furnished with wrought-iron bushing and cast-iron nuts for fastening to their shafts, according to plans and drawings to be furnished by parties of the second part, for price or sum of eight (8) cents per pound, finished.
    In consideration for which, the party of the second part agrees to pay unto the parties of the first part, for the engines and supporting frames, fixtures and attachments complete, including steam-pipe and connections and fixtures set up and completed, the sum of four thousand, two hundred and fifty dollars ($4250). And for the water-pipe and fixtures as before named, put up and complete, manufacturer’s price; for the pulleys finished as above named eight (8) cents per pound. No part of said consideration payable or due before July 1st 1873.
    In witness whereof, we have set our hands and seals, at Williamsport, Pa., on the day and year first above written.
    Bigler, Young & Co., [seal] John Dubois, [seal]”
    The defence was that the engines were so defectively constructed that under the contract there could be no recovery therefor.

      Dubois was the owner of a saw-mill in Clearfield county, with a capacity for sawing 50,000 feet of lumber per ,day. The engines were to propel the machinery of this mill. They were delivered in February 1874, but by reason of some defect, failed to do their work. Several efforts were made to remedy the defect, but without avail. In January 1876, the engines were removed and another substituted, which the defendant alleged did the work successfully.
    At the trial, before Mayer, P. J., the defendant made the following offers of evidence:—
    First offer. As the contract provides that the working of the engine shall be satisfactory to the party of the second part, and nothing in the contract shows what work it was to be employed in, defendant proposes to prove the conversation between the parties at the time of making the contract, with the negotiations leading thereto, to show the purposes, uses and requirements the engine was to satisfy.
    Objected to as irrelevant and improper, the contract being without ambiguity and there being no allegation of fraud or mistake, and because the proposed evidence would substitute a conversation for the written contract, and tend to mislead the court and jury.
    Objection sustained. (First assignment of error.)
    Second offer: Defendant proposes to prove what work the engine was intended to do and where it was intended to -work by conversation of the parties at the time of making the contract.
    Objected to as irrelevant and improper. And because it is an additional offer to get in verbal communications to control or affect the contract, and that on matters that are not of any account and need no such explanation.
    Objection sustained. (Second assignment.)
    The plaintiffs alleged that the defectwas in the foundation for the engines which was constructed by Dubois. The contract, as will be observed, provided that defendant should furnish the foundation, but was silent as to what plan was to be adopted or by whose direction it was to be built. There was a conflict of evidence as to the character of the soil on which the foundation was placed. In regard to this foundation the defendant made the following offer:
    Third offer: To prove by John Dubois, the defendant, that at the time of making the contract defendant proposed a different kind of foundation from that finally builtand Mr. Young, a member of plaintiff’s firm, insisted upon the kind which was built, giving his reasons therefor; and in accordance with that demand of plaintiffs, the foundation was constructed accordingly. This offer was for the following purposes: 1. To show by and under whose direction the foundation was built. 2. To explain the ambiguity of the contract in this respect. 3. To contradict Mr. Young’s testimony relating to the construction of the foundation.
    Plaintiffs objected that the evidence was directly in contradiction of the written contract as to two express clauses; that the declarations of the parties could not be received , for such purposes, as the contract itself was the only evidence thereof; that the testimony of Mr. Young was upon cross-examination, and not proper, and that the evidence is irrelevant and improper.
    . Objection sustained. (Third assignment.)
    Also fourth offer: “ Defendant proposed to prove — to establish the solidity of the foundation — that an engine of greater power, operating in a direction which produced greater strain on the foundation, with pillow block the same height as the one in dispute, within six months afterwards began to operate on the same foundation, and there has not been any trembling or change in the foundation. This engine was placed on the oundation in April 1876.”
    Objected to as irrelevant ^njl improper. I already appears in evidence that another engine of different kind and construction has since been put on the foundation whch defendant had changed, to which state of things the present offer relates., laintiffs further objecting that they are not to bo affected, and are not here prepared to discuss the acts and things done by defendant since this suit was brought, to which they are not parties and for which they are not responsible. It would be unjust to plaintiffs and against the rules of evidence.
    . Objection sustained. (Fourth assignment.)
    Also, defendant proposed to prove by actual tests and exhibits of material the character of the substance on which the foundation stands, by tests on each side, varying in distance from the foundation from thirty feet to within a foot on each side.
    Plaintiffs object to proof as to what the soil was at so great a distance as thirty feet from the foundation; the only test is at the foundation. The proof offered is irrelevant and incompetent.
    Objections sustained. (Fifth assignment.)
    Plaintiffs offered record of suit No. 145, January Term 1876, in the Court-of Common Pleas of Lycoming county, Pa., which suit was an action of covenant brought by John Dubois against Bigler, Young & Co. (who are now plaintiffs in this case), to recover damages for the non-performance, of the written contract of December 24th 1872, upon which this suit is in part founded. This offer for the purpose of showing that said suit was by said Dubois ruled out and arbitrated, and an award duly rendered against him of no cause of action; and that said Dubois afterwards in said case suffered a voluntary nonsuit, and that judgment was entered accordingly. This being offered to show that the claim of damages made against the present plaintiffs by said Dubois for the non-performance of said contract under seal was adjudicated; and that the said Dubois is bound by the same, and is not entitled to recover in this suit for the matters adjudicated by the suit and the award referred to. And also, for all purposes for which the said record may be evidence — on the question of damages :and in answer to defendant’s claim for damages in this suit.
    Objected to by defendant, and objection overruled. (Sixth assignment.)
    The first and second points of defendant which the court refused were as follows:—
    1. As plaintiffs, by their contract, guaranteed the materials, workmanship and working of the engines and fixtures, including everything necessary to make them complete, both as to appearance and capacity, they thereby guaranteed the success of the plan, as well as the materials and workmanship, unless that success was prevented or hindered by the act or default of the defendant after the making of the contract.
    2. As the contract provides that'the drawings for the engines were to be furnished by the plaintiffs, the % guaranty included the success of the plan as well as of the materials and workmanship, unless that success was hindered or prevented by the act or default of defendant.
    The refusal of these points constituted the tenth and eleventh assignments of error.
    Verdict for plaintiffs for $3172.74. A, motion for a new trial was overruled and judgment entered on the verdict. The defendant then took this writ and alleged that the court erred, inter alia, as set forth in the above assignments of error.

      George A. Genies and Murray & Gordon, for plaintiff in error.
    —The evidence offered was “ in aid of the interpretation of the language of the contract” (2 Parsons'on Contracts 547) and “not inconsistent therewith, but admissible to apply such instrument to its subject” (2 Parsons on Contracts 563; citing Noonan v. Lee, 2 Black 499); Case v. Cushman, 3 W. & S. 544; Barnhart v. Riddle, 5 Casey 93; Aldridge v. Eshleman, 10 Wright 420. The offer under the third assignment was admissible. There was nothing therein contradictory of the contract. The record of the prior suit should not have been admitted: McKennan v. Henderson, 5 W. & S. 370.- The terms of the contract imposed the highest degree of responsibility upon the plaintiffs and warranted the construction of the contract in' the points submitted.

      McEnally & McCurdy and Wallace & Krebs, for defendants in error.
    Respecting the third assignment, if there had been such talk between Young and Dubois at the time of making the contract, as is therein referred to, still it would not have shown, or tended to show, that the building of the foundation was under the control of Bigler, Young & Co., or that they were responsible for its defects. There was no ambiguity in the contract to be explained by such evidence, and it could not contradict Mr. Young’s testimony in anything material or relevant, and was not admissible for that purpose.
    October 4th 1880.
    If the new engine did work well, it would not prove that the foundation furnished for the double engine was sufficient. . It simply proved a collateral and irrelevant issue. The record of the former suit was properly admitted.
    The award had the effect of a judgment against Dubois until reversed on appeal or satisfied according to law. Such are the provisions of the Act of June 16th 1836, Purd. Dig. 84, which in this respect follows the Act of 1810. According to the decisions of our courts, suffering a voluntary nonsuit neither reverses nor satisfies the award, but is a relinquishment of the appeal, leaving the award remain in full force: King v. Sloans, 1 S. & R. 77; Hostetter v. Kaufman, 11 Id. 146; Girard Bank v. Schuylkill Bank, 8 W. & S. 242.
   Mr. Justice Trunkey

delivered the opinion of the court,

Bigler, Young & Co. agreed to construct two engines, furnish all pipes, connections and other necessary fixtures, and put the same in place and working .order, so that “said engines and fixtures, when set up, shall constitute everything necessary to make them complete, both as to appearance and capacity.” They furnished the drawings themselves and guaranteed that the materials, workmanship and working of said engines should be first class and satisfactory to Dubois. On his part Dubois was bound to prepare a good foundation, fit for the machinery, and convey the machinery from the shops to his mill site. The contract does not set forth the location' of the site, nor kind of mill, but the parties understood the use to which the engines were to be put, and they were placed on the foundation prepared by Dubois. One party alleges the engines were entirely right and the foundation a complete failure; the other, that the foundation was perfect and the engines wholly unfit for the purpose of their construction. Both agree that the engines, on that foundation, were useless.

From the'whole case, as it is presented, the main question is, whether the defect was in the foundation or engines. Upon this a large amount of testimony was taken, mostly as to the character of the foundation, and painfully conflicting. It is represented on one hand that the foundation was firm as if standing on a rock; on the' other, that it was unstable as if resting on fen-land. Young, one of the plaintiffs, testified that such a double engine as that would require a more substantial foundation than one that stood horizontal, because the heavy working parts are so far from the top of the foundation — so much further than an ordinary engine — it requires a very strong, substantial foundation. Certainly it was reasonable that the constructor of the engines, which required an unusually strong foundation, should give some directions respecting the building of it, and if he did it was competent to prove what they were, and that it was built accordingly. Such proof does not alter the written agreement, which only expresses that the defendant was to prepare the foundation’; but it is consistent with his obligation to prepare a good one, and not place it on spongy earth or other unfit substance. Had the directions been given and not followed, it would be pertinent evidence for the plaintiffs in a dispute concerning the strength of the ground-work, and if followed, it is equally competent for the defendant. The plaintiffs agreed to furnish and set up described engines, with a warranty, and if the kind of foundation was stipulated, but omitted in the writing, it was a part of the contract which the defendant had no right to violate. If well built in the manner they directed, and placed on fit substance, he performed his part. The .defendant’s third offer should have been received.

We are also of opinion that the offer set forth in the fourth assignment was admissible. The jury would consider whether the foundation had been so changed as to affect its solidity, also if it was affected by the settling of the earth around it, also if the strain was equal to or greater than before, and thus determine the weight, if any, to be given to the proposed evidence. Whether the foundation had been changed was disputed; and so was the allegation that the engine caused as great a strain as did those furnished by the plaintiffs. But the grave question was, whether the foundation oscillated at all. Young testified that he saw it rock, swing backwards and forwards, lifting first one end and then the other; Dubois, that he never could discover that it moved, and never had an idea that it was possible for it to move; and each produced adminicular witnesses. If in a few months thereafter, when subjected to as severe a strain, that foundation neither moved nor trembled, the fact is pertinent in an effort to ascertain the truth.

The fifth assignment is not well taken. No objection was made to proof of the substance where the foundation stands, but to that thirty feet distant. There is no ground for the defendant to complain of restraint in his proof of tests, of the character of the substance under and near the foundation, and of exhibiting specimens to the jury.

In their history of the case the plaintiffs .admit that their contract with defendant was “ for a double engine for a large saw-mill that he intended to build in Brady township, Clearfield county.” To that subject the contract relates, and it is necessary to know the subject in order to intelligently decide whether the working of the engines and fixtures was satisfactory. Had the admission been made below as it is here, in absence of pretence that the mill differed from their understanding of what it should be, there would have been no need of parol evidence of the matter in defendant’s second offer, but it was not, and it was error to reject the offer: Barnhart v. Riddle, 5 Casey 92; Clarke v. Adams, 2 Norris 309. The proposed proof contradicted nothing in the writing, and called for no conversation other than necessary to establish the intended use of the machinery.

The defendant’s first and second points should have been affirmed. The engines and fixtures were for a particular purpose, to be made and placed by plaintiffs according to their drawings and specifications, the working of which was guaranteed to be first class and satisfactory. Materials, workmanship and plan were embraced in the engines and fixtures, which were warranted to do good work as the motive power for a large saw-mill. Their working ought to have been reasonably satisfactory, and if it was not because of a defect in the plan, or workmanship, or materials, there was a breach of the warranty. The plaintiffs contracted for the successful working of the machinery and are liable for its failure, unless success was prevented or hindered by the act or .default of the defendant.

Dubois sued Bigler, Young & Co. in the Common Pleas of Lycoming county, to recover damages on the contract of December 24th 1872. That action was referred under the compulsory arbitration law, and the arbitrators filed an award of no cause of action, from which the plaintiff appealed. When the cause came to trial, after the jury were sworn, in open court, the plaintiff suffered a voluntary nonsuit, and judgment accordingly. Section 25, Act 1836, Pamph. L. 722, provides, “ That the court may, after appeal, allow the plaintiff to suffer a nonsuit, with like effect as if the cause had not been referred as aforesaid, if the special circumstances of the case shall appear to require it.” What special circumstances moved the court to allow the nonsuit do not appear, and it would be immaterial now if they did. It is enough that it was allowed. The record is in these words : “ Plaintiff suffers a voluntary non-suit. Judgment accordingly, per cur.” This judgment unmistakably refers to the plaintiff’s act and can mean but one thing, namely, that his act was by leave of the court. The acts of the plaintiff and of the court were at the same time and in agreement. It follows that the award was defeated : McKennan v. Henderson, 5 W. & S. 370. In Girard Bank v. Schuylkill Bank, 8 W. & S. 242, the opinion relates to the consideration of a motion for leave to enter a nonsuit, and does not touch a case where it has been suffered and allowed by the judgment of the court. The sixth assignment must be sustained.

It is unnecessary to remark on any of the remaining assignments, in which we discover no error.

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


author: Chief Justice Sharswood

text:
    Baker et al. versus Allegheny Valley Railroad Co.
    1. The duty which a master owes to his servant is to provide him with safe tools and machinery. When he does this he does not however engage that they will always continue in the same condition. Any defect which may become apparent in their use it is the duty of the servant to observe and report to his employer.
    2. It is not negligence in the master if the tool or machine breaks, whether from an internal original fault, not apparent when the tool or machine was at first provided, or for an’ external apparent one produced by time and use, not brought to the master’s knowledge.
    3. A different rule, however, prevails where the tool or machinery is perishable. The master is bound to know that such tool or machinery will only last a limited time, and it is his duty to renew instruments of this character at proper intervals.
    4. Declarations of an agent of the master made after an accident will not bind the master unless they are of such a character as to show that he had previous knowledge of the defect in the machinery.
    5. An employee of a railroad company was killed while at work by the breaking of a rope on a derrick in use and belonging to the company. It was shown that the rope externally appeared sound, but had been in use for two or three years, and continually exposed to the weather, and there was evidence that it was actually rotten when the break occurred. There was evidence also that such a rope, after exposure for a year or more, becomes unsound, although this one betrayed no outward sign of decay. Held, that there was evidence for the jury upon the question whether such a rope was a sound one, and if not the railroad company would be liable for one injured by reason of such unsoundness.
    June 16th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkby, Sterrett. and Green, JJ.
    Error to the Court of Common Pleas of Clearfield county: Of May Term 1880, No. 151.
    Trespass on the case by Bridget Baker and others, the wife and infant children of Bartley Baker, deceased, against the Allegheny Yalley Railroad Company, to recover damages for the death of said Bartley Baker, alleged to have been caused by the negligence of defendant. Plea, “ not guilty.”
    Baker was one of a gang of men working on a gravel train, and, at the time he was killed, in 1876, was engaged along with others in hoisting heavy stones upon the cars of the train.
    In loading the stones, the men used a derrick, which consisted of an upright -wooden mast, about twelve inches in diameter at the ground, and about fifty feet in height, and held in place by four guy ropes attached to the top of the mast, and the other end of the ropes anchored to posts in the ground. To the mast of the derrick was attached a crane with pulley-blocks, tackle, &c

      On the morning the accident happened the men had loaded two or three stones. Baker was standing on one of the cars, in the act of obeying an order of the man in charge of the work, and a heavy stone was being raised, when one of the guy_nc>pes gave way on account of the rottenness of the rope, and the mast of the derrick fell with great forceTstriking Baker across the breast, from the effects of which he died within an hour after.
    At the time Baker was injured, he was working under the direction of Daniel Nolan, who then had, under the defendant company, the exclusive charge and direction of the gravel train, and men connected with it, and had authority from the company to hire and discharge the men who worked in his gang.
    William McGregor was superintendent of the work where Baker was killed.
    The derrick was furnished by the defendant company, and had not been used for a long time previous to the day Baker was killed. It was an old structure, erected in 1872 or 1873, and it was in evidence the guy ropes had been exposed constantly to the weather, without change, for a long time; were old, decayed and rotten, and were unsafe and unfit for the purposes for which the derrick was used at the time it fell.
    There was also testimony of experts, to the effect that such ropes, after being exposed to the weather for a year, were unsafe and unfit to sustain a heavy weight.
    The plaintiffs proposed to prove that Daniel Nolan, the superintendent of the gravel train, a few minutes before the accident happened, said to the witness, or in his hearing, that one part of the men should go to one side of the derrick, as it was not safe; this order not being given to Bartley Baker, or in his hearing, to the witness’ knowledge. Objected to, because the offer is immaterial and irrelevant; because no order there given by Nolan could affect defendants or make the company liable in damages, he being a co-employee; and because such order may have been given and the witness not have heard it; and the testimony does not show such order was not given to Baker, if it was material to prove that it was not. Objections sustained.
    Plaintiffs’ second offer was as follows: What did Mr. McGregor say, if anything, at the time the rope was examined, immediately at the time of the accident, as to its cause ?
    Defendants objected to the question because it was immaterial and irrelevant under the proof in the stage of the cause ; and because the plaintiffs had not shown that McGregor held such a relation to the defendants as would make his declarations admissible to affect the defendants. Objections sustained.
    When the plaintiffs closed their case the court, on motion of defendants, entered a compulsory nonsuit, and the court in banc subsequently refused to take it off. The plaintiffs then took this writ, alleging that the court erred in rejecting the foregoing offers of evidence, and refusing to take off the nonsuit.

      Frank Fielding and George A. Jenks, for plaintiffs in error.
    Nolan had charge of the gravel train and the men; had authority from defendants to hire and discharge these men ; his agency was established by the evidence in the cause, and this agency made his acts and knowledge those of the defendants: Woodwell & Co. v. Brown et al., 8 Wright 121. The declarations of Nolan made a few minutes before the accident occurred, concerning the unsafe condition of the derrick, were, therefore, admissible : Mullan v. Steamship Co., 28 P. F. Smith 25; Hanover Railroad Co. v. Coyle, 5 Id. 396; Wharton on Negligence, sect. 1173. The same rule and authorities will apply to the declarations of McGregor, the superintendent.
    It was the duty of the defendants to furnish Baker with safe instrumentalities with which they required him to work. He had a right to rely upon the soundness and safety of the derrick, without his inspection or examination of it. It was furnished by the company, and should have been made and maintained safe and sufficient1 for the purpose for which it was used.
    Baker is not chargeable with want of ordinary care in not an-anticipating the negligence of the defendants. It does not matter whether the defendants, through their, officers or agents, knew or did not know that the ropes'of the derrick were rotten from exposure to the weather; it was their duty to examine — not to know it, in such case, was gross negligence. The first duty of Baker to his employer was obedience, and it cannot be argued that because he went to work under a derrick, by order of his employer’s agent, where he had not worked before, without first examining the structure, that he thereby waived the duty his employers owed him, and that he assumed all risks of danger, even an extraordinary peril: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 145; Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Caldwell v. Brown, 3 P. F. Smith 453; Fraser v. Pennsylvania Railroad Co., 2 Wright 103 ; Patterson v. Pittsburgh and Connellsville Railroad Co., 26 P. F. Smith 393; O’Donnel v. Allegheny Valley Railroad Co., 9 Id. 248; Mullan v. Steamship Co., supra; Oak Ridge Coal Co. v. Reed, 5 W. N. C. 3; Addison on Torts, sect. 254 and notes; Noyes v. Smith, 28 Vt. 59; Bessex v. Chicago and N. W. Railway Co., 1 Wis. Leg. News 162; Smith v. Railroad Co., 42 Wis. 255; Cooker v. Railroad Co., 36 Id. 657 ; Ryan v. Fowler, 24 N. Y. 410 ; Lansing v. N. Y. Central Railroad Co., 49 Id. 521.
    While Nolan and Baker were working for the same employers they were not such co-servants as would release the defendants for their negligence. Nolan stood in the place of the company towards Baker: Clarke v. Holmes, 7 H. & W. 943; Wedgewood v.
      C. and N. W. Railway Co., 41 Wis. 478 ; Wharton on Negligence, sect. 222; Corcoran v. Holbrook, 59 N. Y. 517; Flike v. Boston and Albany Railway Co., 53 Id. 549.
    October 4th 1880.

      H. T. Beardsley and Wallace & Krebs, for defendants in error.
    —It was not pretended or alleged at the trial that either Nolan or McGregor held the position of superintendent of the company, or that they were doing anything else than working in the common employ of the defendants in the construction and finishing up of the work of building the Bennett’s Branch road. They were in every sense of the word co-employees of Baker, working with him in the same common work, and performing duties and services for the same general purposes. They did occupy a different grade, but it did not change their relation to each other. The ultimate authority of the company was not delegated to either Nolan or McGregor, and, therefore, their declarations could not affect the company: Patton v. Minesinger, 1 Casey 393; Wood’s Law of Master and Servant 809; Lehigh Valley Coal Co. v. Jones, 5 Norris 432. For the same reason this case is distinguishable from Mullan v. Steamship) Co., supra, and kindred cases. The defendants were not bound to warrant that the derrick would always continue to be safe. Baker knew what the derrick was used for, and had more opportunity to know whether or not the guy ropes were defective than the defendants, and if he knew there were defects and gave no information, he must be held to have assumed all the attendant risks: Ryan v. Cumberland Valley Railroad Co., 11 Harris 384 ; Wood on Master and Servant 755, 800; Wharton on Negligence, sects. 212, 217; Mud River and Lake Erie Railroad v. Barber, 5 Ohio 541; Mansfield Coal Co. v. McEnery, 10 Norris 185; Frasier v. Pennsylvania Railroad Co., 2 Wright 104. It would be impossible for a railroad company to exercise such a supervision of its employees and machinery as is here demanded.
   Chief Justice Sharswood

delivered the opinion of the court,

The deceased, to recover damages for whose death this action was instituted in the court below, was a laborer employed by the defendants in hoisting stones upon the cars of a gravel train. Eor this purpose a derrick was used on an upright wooden mast held in place by guy ropes, and while in the act of raising a heavy stone, one of the ropes broke and the mast of the derrick fell with great force on the deceased, inflicting an injury from the effects of which he died within an hour.

Whether the defendants were prima facie liable was the question; in other w'ords, did the evidence adduced by the plaintiffs make out such a case as ought to be submitted to the jury ? The learned judge below thought not, and accordingly nonsuited the plaintiffs.

The facts in regard to the rope may be briefly stated. It was about two inches thick, and there was every reason to believe that it was originally sufficiently strong for the purpose for which it was used. But there was evidence that the derrick was an old structure, and the rope at the time of the accident had been in use two or three years, perhaps more. During this time it had been exposed to the weather. Several witnesses who examined the rope immediately after the accident testified that at the place where it had broken, it was rotten and unsafe, and there was evidence that such was commonly the result of the exposure of such a rope to the weather, for that or a much shorter period oft time.

There is no dispute as to the law applicable to such a case. It has been long and well settled. A servant assumes all the ordinary risks of his employment. He cannot hold the master responsible for an injury which cannot be traced directly to his negligence. If it has resulted from the negligence of a fellow-servant in the same employment, he must look to him and not to the master for redress. The master does not warrant him against such negligence. The duty which the master owes to his servants is to provide them with safe tools and machinery where that is necessary. When he does this, he does not, however, engage that they will always continue in the same condition. Any defect which may become apparent in their use it is the duty of the servant to observe and report to his employer. The servant has the means of discovering any such defect which the master does not possess. It is not negli-i genee in the master if the tool or machine breaks, whether from an' internal original fault, not apparent when the tool or machine was at first provided, or from an external apparent one produced by time and use not brought to the master’s knowledge. These are the ordinary risks of the employment which the servant takes upon himself: Ryan v. The Cumberland Valley Railroad Co., 11 Harris 384.

But do these rules apply to such an instrument as a rope used in a derrick which is employed in raising heavy weights ? No doubt a perfectly new rope and one to all appearances sound may break, and the master would not be responsible for the consequence, having furnished a rope of the proper size for the purpose, to all appearance sound. But there was evidence in this case, sufficient certainly to make a question for the jury, that such a rope after having been used for a year or more, and exposed during that time, as the one in question seems to have been, was no longer a safe rope, even though it did not outwardly exhibit any signs of decay. The master is bound to know that a rope under such circumstances will only last a limited time. It will not do for him to furnish a sound rope and then fold his arms until by actually breaking it is demonstrated to be insecure. It will not do to say that the servant is bound to know this as well as his master, and to warn him that after such a time he ought to procure a new rope. Is the servant bound to notify the master of that which he knows or ought to know himself without such information ? He knows how long the rope has been in use. The servant may not know. In this case the deceased did not know. It appears to have been the first day that he worked on the derrick. There was nothing to attract his notice in the outward appearance to show how long it had been in use. It is the duty of employers to renew instruments of this .character at proper intervals. The expense would certainly not be great, and a due regard to the lives of their servants imperatively demands it.

The order given Nolan just before the accident was rightly excluded. It did not show that he knew of the defect in question, but was a caution given to the men to keep out of the way of' an accident which might happen to the best rope. He was a competent witness and might have been examined on the part of the plaintiff. As to the declarations of McGregor, it did not sufficiently appear that his relations to the work were such as to make his declarations evidence. As the case goes back to another trial, it can be shown what his office and duties were. Besides, it would appear that the declarations proposed were made after the accident, and were not of such a character as to show that he had previous knowledge of any defect of the rope. After seeing the broken rope, his opinion that it was an unsafe rope, would not be binding on the company more than the declaration of the opinion of any other witness. Unless the declaration was to the effect that he knew before the accident that the rope was unsafe, it could not fall within the cases of Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, and Mullan v. Philadelphia & Southern Mail Steamship Co., 28 Id. 25.

Judgment reversed, and procedendo awarded.


text:
    Bentz versus Bentz and Wife.
    A note was executed by A. to B. and his wife as joint payees. They brought an action thereon in their joint names, and B. offered to set off a debt duo to him by the husband. Held, that the offer was properly rejected.
    June 17th 1880.
    Before Siiarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Cumberland county : Of May Term 1880, No. 202.
    Assumpsit by George Z. Bentz and Jane E. Bentz, his wife, in her own right, against Abner W. Bentz, on the following note:

      “$3000. Carlisle, Pa., January *8th 1872.
    “ For value received I promise to pay to George Z. Bentz and Jane E. Bentz the sum of three thousand dollars, with interest from the 1st of April, A. D. 1872, at the rate of six per cent, annually, during the term of their natural lives, and after their death to their heirs, executors, administrators and assigns.
    “ (Signed) A. W. Bentz.”
    At the trial, before Herman, P. J., the defendant offered to prove “that George Z. Bentz furnished the consideration of the note in suit in this way: He was tenant of the defendant on and after January 13th 1869 of the Bentz House, in Carlisle, Pa., with the right of purchasing the same at the sum of $20,500, and as rental Avas to pay the interest on that sum annually, all the taxes, and for repairs necessary to keep the property in good and complete repair. This arrangement continued for several years, when the said George Z. Bentz claimed that he could not fulfil the same, and alleging that he had put $3000 in repairs upon the property, at his instance the note was given, and he continued to occupy the said property until some time in 1877. During this time the said George Z. Bentz claimed and received credit upon the rent, increased to the interest on $24,000 per annum, taxes and repairs, from and after April 1st 1872, for the interest on the said note, and thus used the interest until 1st October 1876. The defendant became liable for and paid various sums of money for the said George Z. Bentz, as specially set forth .in the bill of particulars filed and in evidence, and which to that extent is made part of this offer as if specially set out. That- these amounts are far in excess of the amount of said note, and considerable portions of this indebtedness originated about the date and prior to the date of the note in suit. That the defendant was unaware of any assignment of the note in suit made to Jane E. Bentz until October 1st 1877, and in this connection the letter of Mrs. Jane E. Bentz to the defendant and his reply to her of October 1st 1877, are also offered. All this is for the purpose of defeating any recovery by the plaintiff in this ease.”
    The plaintiffs objected, and the court rejected the offer.
    The court instructed the jury : “ The plaintiffs are entitled to recover from the defendant'in this action the interest that Avas due and payable on the note at the time of the commencement of the action, and no more. You will observe that the interest is paid in full up to the 1st October 1876, and that at the time the action Avas commenced the only interest that was then due and payable Avas that Avhich had accrued from the 1st October 1876 to the 1st April 1877, to wit; $90; and for this amount your verdict should be rendered in favor of the plaintiffs.”
    Verdict accordingly, and after judgment thereon defendant took this writ, and alleged that the court erred in rejecting the above offer of evidence.

      Fleming & McCarrell and Graham & Graham, for plaintiff in error.
    The name of the wife inserted in the note could not affect the merits of the case. Under the circumstances existing when the note was given, the consideration being furnished by George, who was largely indebted to Abner at that time, George could not assign to his wife to the prejudice of Abner.
    In equity a defendant may set off a debt due to him by one of two joint plaintiffs. In a suit against a surviving partner a debt due by the late firm may be set off. Two defendants sued jointly may set off a debt due by the plaintiff to one of them: Childerston et al. v. Hammon, 9 S. & R. 68; Stewart, for use, v. Coulter et al., 12 Id. 252.
    There can be no doubt in the case in hand that the consideration of the note moved from George Z. Bentz, and that although the form of the note is joint, yet the consideration having been furnished by one of the payees, it is in fact and in substance entire. This would be the law as to a defence of counter-claim set up by the maker of the note, alleging a subsequently contracted indebtedness of the payees. But our case is stronger. Here there was an actually subsisting indebtedness of one of the payees, at the date of the making of the note and a credit given by the maker to him under the belief that one was a fair set off against the other. This credit continued until the indebtedness of this payee aggregated a sum greater than the principal of the note. These being facts reduce this cause to the ordinary case of set off where there is a credit given by one based upon an existing indebtedness to another: Taylor v. Root, 4 Keyes 335.

      S. Hepburn, Jr., and S. Hepburn, for defendants in error.
    Defendant’s liability is measured by the terms of his contract. He made a note by which he promised to pay the interest on $3000, annually, to two persons jointly during their lives, and the principal sum to their children at their death. On the breach of such an agreement the remedy follows the nature of the contract. Of necessity the joint payees became joint plaintiffs; and the defence must be to them jointly. The use for which the suit is brought affects neither the liability, nor the remedy, nor the character of the defence. A contract by one person with two jointly does not comprehend or involve a contract with either of them separately, as is evident from the well-known doctrine that a contract or promise to two, if proved in an action brought by one of them, sustains a plea which denies the existence of the contract: Wetherell v. Langton, 1 Ex. 644. Quoted in Dicey’s Parties to Actions 104. 1 Parsons on Contracts 739; Watson v. Hensel, 7 Watts 344; Archer v. Dunn, 2 W. & S. 361, In the case at bar, the act of Abner W. Bentz created a joint interest in the plaintiffs below, no matter from whom the consideration passed. He, at least, cannot deny the right of Mrs. Bentz to be joined with her husband; and it is well settled that a joint interest in husband and wife cannot be set off by a debt due from the husband alone: 7 Wait’s Actions and Defences 490; Glatzbrook v. Roagland, 8 Gratt. 332; Jamison v. Brady, 6 S. & R. 466; Dicey’s Parties to Actions 185.
    October 4th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This alleged grievance is the denial of a set-off. The suit was on a note made by the plaintiff in error to the defendants in error as joint payees. Suit was brought in their joint names, and the set-off offered was a debt against one of them. The court rejected the offer.

As a general rule, set-off is admissible only where it is in the same right and between the same parties: Milliken & Co. v. Gardner, 1 Wright 456. To this rule there are some exceptions. Among them may be stated, when suit is brought by a surviving partner, a set-off against the late firm is allowable. So defendants sued jointly may set-off a debt due by the plaintiff to one of them: Childerson et al. v. Harmony, 9 S. & R. 68. This may be done unless there be some superior equity in a third person : Stuart et al. v. Coulter, 12 S. & R. 252. But a defendant cannot set off a debt due him by one of several plaintiffs : 1 Pars, on Cont. 739; Henderson v. Lewis, 9 S. & R. 379 ; Watson v. Hensel, 7 Watts 344; Archer v. Dunn, 2 W. & S. 361; Norcross v. Benton, 2 Wright 217. The fact that the defendants in error are husband and wife does not change the rule. She may hold, use and enjoy her separate property to the exclusion of her husband and of all other persons. The note was made to the defendants in error as joint payees. It did not rest on an agreement between them. The plaintiff in error agreed to so pay it to them jointly. No other creditor of the husband complains of the maker having so agreed. He does not offer to prove any fact showing he was induced through fraud or deceit to so make the notfe. He is in no position to gainsay the validity of his agreement. His subsequent disappointed expectations in no manner caused' by her, cannot defeat her vested lights.

Judgment affirmed.