text:
    Stephen’s and Wife’s Appeal.
    1. L., a married woman, entered into a verbal agreement with E., for the mutual exchange of certain properties which they respectively owned, and this contract was subsequently executed. The property conveyed by E. to L. was subject to a mortgage, and the latter alleged that its existence was fraudulently withheld from her, although it was duly recorded. Throughout all the negotiations the husband of L. acted as her agent. L. having instituted proceedings to compel a re-conveyance: Held, that the record of the mortgage was constructive notice to her, equally as effective as actual notice. Held further, that notice to the husband while acting as her agent was notice to her. Held further, that nothing less than clearly-established fraud, mistake or turpitude of consideration or circumstances entitling L. to relief, on the principle of quia timet, would justify the court in ordering the rescission of this executed contract.
    2. Bishop v. Reed, 3 W. & S. 261, and Heacock v. Fly, 2 Harris 540, distinguished.
    May 23d 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas of Lebanon county: Of May Term 1878, No. 64. In Equity.
    Bill in equity, filed by John Stephen and Louisa his wife, against Henry Emerick and Susanna his wife and Stephen Boltz, assignee of said Henry Emerick, to compel a re-conveyance to Mrs. Stephen of a certain farm which she and her husband had conveyed to said Henry Emerick.
    The bill alleged:
    1. That Louisa Stephen, one of the plaintiffs, inherited from her father about ninety-two acres of land in Lebanon county, subject to a dower, during her mother’s lifetime, of $1334.
    2. That on April 10th 1873, after the title to the same had vested in the said Louisa, a verbal contract was entered into with Henry Emerick, one of the defendants, to exchange the above real estate for what was known as the Maulfair Mill property, containing about six acres, clear of all encumbrances, except as hereinafter mentioned; and that afterward conveyances were respectively executed and delivered.
    3. That at the' time this verbal contract was made, and afterward, when the conveyances were executed and delivered, a mortgage executed by Emerick for the payment of $4100, was resting upon said Maulfair Mill property, and tract of about forty-seven acres of land, of which the said Louisa obtained nearly seven acres, with the mill thereon erected, the whole being together and constituting one tract, which mortgage, held by Amos Long, had been duly recorded; of which mortgage the said Louisa, however, had no knowledge, but her husband had.
    4. That said verbal agreement required the said Henry Emerick to make a good title, clear of all encumbrances, to said Maulfair Mill property, containing six acres, to the said Louisa, her heirs and assigns, except the sum of $1334, which was to remain on the property as a set-off to the dower which rested on the property of the said Louisa during the lifetime of Louisa’s mother; that John Stephen, the husband of Louisa, knew of the existence of this mortgage, and also that it was not removed when the conveyances were made, but Emerick had promised him that he would do so as soon as he had the title to Louisa’s property; that he would'then be better able to do so, because he could give the property-thus acquired as additional security; that Stephen believed Emerick would do this, except the sum of $1334, which was to remain thereon as a lien as aforesaid, otherwise he would have informed his wife of this lien, and refused to make title to said Emerick.
    5. That after said conveyances were'executed and delivered, said Emerick did not remove any part of said mortgage.
    6. That Amos Long, the mortgagor, has commenced proceedings to foreclose his mortgage, and that the plaintiffs believe it will take the whole property mortgaged to pay said mortgage, with interest and costs.
    7 and 8. That the said Henry Emerick and wife, while the former still held the title to the property conveyed to him by the said Louisa and her husband, to wit, on the 9th day of April 1874, did execute a voluntary deed of assignment for the benefit of creditors of all his property, real and personal, to Stephen W. Boltz, which was duly accepted by him; that said assignor is wholly insolvent, and that said deed of trust was duly recorded.
    The bill prayed: 1. That the court will order and decree that the said defendants, on receiving a reconveyance of the title of the plaintiffs to the property which the said Louisa acquired by the aforesaid conveyance, shall reconvey to her and her heirs and assigns the property which the plaintiffs conveyed to the. said Henry Emerick, so that the said Louisa may hold her estate as she held and enjoyed it before the plaintiffs made said conveyance, and that said contract of exchange under which the conveyances were made be wholly cancelled and annulled. 2. For a preliminary injunction to restrain said Stephen W. Boltz, assignee, &c., from disposing of the property until this proceeding is disposed of. 3. 'Greneral relief.
    The answer set forth:
    1 and 2. That the parties entered into the said contract of exchange in December 1871; that the $1334 dower-money charged on the land conveyed by the plaintiffs to the defendant Emerick was to be paid by Louisa and applied towards the payment of the Long mortgage aforesaid, which was a lien on the Maulfair Mill property, and other land of said Emerick, as stated in plaintiffs’ bill; that the balance of said tract not conveyed to the said Louisa, the said Henry Emerick afterwards conveyed to Daniel Emerick, who was to assume the payment of $2000 of said mortgage, and the balance thereof, to wit, $760, the said Henry Emerick agreed to pay. That said verbal contract was entered into in December 1871, and that a short time thereafter said Emerick met the said plaintiffs, when such verbal contract was fully explained to her, and that she assented and agreed thereto, and soon afterwards entered into the possession of said mill property, and that they still occupy the same.
    3. That said verbal contract for the exchange of properties was entered into in December 1871, and possession taken of the properties exchanged in the spring of 1872, and that the conveyances consummating said exchanges were made and delivered on the 10th of April 1873; that said Emerick did execute a mortgage, to wit, on the 10th day of April 1870, to Amos Long, for the payment of $4100, which was entered of record, and rested upon the said forty-seven acres of land, of which part was conveyed to the said Louisa as aforesaid; that the same was to be paid and satisfied, as hereinbefore stated, of-all of which the said Emerick believes the complainants were both fully cognisant.
    4. That it was agreed that the Long mortgage should be paid off or satisfied in such a way as to relieve the Maulfair Mill property and the land thereto belonging from the lien thereof; that to do this, it was expressly understood that the said Louisa should pay $1334, which was to be applied in the manner hereinbefore stated; that the plaintiffs having neglected and refused to pay said sum, the arrangements to remove said mortgage from the mill property failed; that if that sum had been paid by plaintiffs it would have been removed; that the defendant, Emerick, never agreed to remove said mortgage in any other way, and that it was the plaintiffs’ fault that it never was removed.
    The bill and answer were referred to a master, who, after reporting the facts, concluded as follows :
    “ I am clearly of the opinion that Louisa knew nothing of the encumbrance on the mill property at the time the contract was made and the deeds were executed and delivered, and that neither Emerick, nor her husband, disclosed to her the fact of such encumbrance on the mill property, but that the fact was concealed from her in order to get her to execute the deed; that the failure on the part of the defendant to disclose the fact of the existence of the mortgage and concealment thereof, by and through which she exchanged her farm for the mill property, was a fraud upon her, and under all the circumstances and facts connected with the case, the conveyance made to defendant should be rescinded. I am also of opinion that she executed and delivered the deed through a misapprehension of the facts, she being under the impression that she was getting a clear title to the mill property for her farm, excepting the third charged on the same, and all that was required of her was to give a mortgage to secure the payment of the third, and after the death of her mother one-half of which belonged to her, when in truth and fact she got nothing for her farm.”
    He then recommended that the conveyance be rescinded, and that Emerick and wife and Boltz, the assignee, be compelled to reconvey the property to Louisa Stephen.
    The court, Henderson, A. L. J., on exceptions filed to this report, set aside the same, and dismissed the bill in an opinion, inter alia, saying, “ The master erred—
    “ 1. In finding that Mrs. Stephen knew nothing of the mortgage. She had by the record constructive notice. Her husband had knowledge and notice direct and unequivocal. He was her agent. This was actual notice, to every intent and purpose of the law.
    “ 2. In finding that the fact of the encumbrance ‘ was concealed’ from her ‘by Emerick,’ or by ‘both him and Stephen.’”
    The language of this court, on this finding, appears in the opinion of this court.
    From the decree dismissing the bill, this appeal was taken.

      Josiah Funck, for appellant.
    Emerick having unequivocally promised to remove this mortgage from the property conveyed to Louisa Stephen, except $1334, which was to counterbalance the dower on the tract which he got from the appellants when the conveyances were exchanged, and Stephen having relied upon this promise (for he says without it he would not have made title to Emerick), his failure to keep it, whereby the appellants lost their property, was a fraud, which, in equity, entitles them to a rescission of the contract: 1 Story’s Eq. Jur. 187; Bright. Eq. Jur. 70 ; Gale v. Gale, 19 Barb. 251; Story v. Nor. & Wor. Railroad Co., 24 Conn. 114; 1 Fonbl. Eq. B., ch. 2, § 3, note 2; Chesterfield v. Janssen, 2 Ves. Sr. 155-6.
    The utter failure of consideration resulting from the defective title of Emerick, known at the time, and which he promised to make good before the conveyances were exchanged, but failed to do so afterwards, whereby the appellants subsequently lost their property, entitles the latter to the relief sought: Babcock v. Case, 11 P. F. Smith 430; Heacock v. Fly, 2 Harris 540 ; Bishop v. Reed, 3 W. & S. 261; Quick v. Stuyvesant, 2 Paige Ch. 84.

      A. R. Boughter, for appellees.
    The mortgage was duly recorded, and Mrs. Stephen had constructive notice thereof: Evans v. Jones, 1 Yeates 173; Kuhn’s Appeal, 2 Barr 264; Duncan’s Lessee v. Curry, 3 Binn. 14. And she also had actual notice of it as her husband had knowledge of its existence. There is in this case no evidence of fraud or mistake, and without clear and positive proof of one or the other of these, the court is unwarranted in rescinding an executed contract: Graham v. Pancoast, 6 Casey 89; Nace v. Boyer, 6 Id. 109; Delamater’s Estate, 1 Whart. 373; Taylor v. Fleet, 4 Barb. 95.

      October 7th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This bill was filed to compel a reconveyance to Mrs. Stephen of a certain farm which she and her husband.had conveyed to the appellee Emerick. The conveyance had been made on an exchange of lands between the parties. On the farm conveyed by the appellant was charged a right of dower, amounting to $1334. On a large body of lands of which the mill property, conveyed by Emerick to Mrs. Stephen, formed a part, he had previously given to one Long a mortgage for $4100. In the exchange the appellants were to either give Long a mortgage for the $1334 or pay him that sum, so as to secure Emerick against the payment of the same, and Emerick was to remove the residue of said mortgage. Neither party fulfilled the contract in relation to the mortgage. Long proceeded on his mortgage and sold not only the mill property conveyed to Mrs. Stephen, but also the other lands which it covered, retained by Emerick. Having thus lost the mill property which she acquired from Emerick, she now seeks to enforce a reconveyance of the farm which she conveyed to him. -

The master to whom the case wTas referred was of the opinion that Emerick fraudulently withheld from her a knowledge of the existence of this mortgage lien on the mill property. On exceptions filed the court below1 reversed that finding and say : “ There is not a line in the whole testimony that will justify the inference of any concealment, either by word or act, on the part of Emerick. There is nothing said or done by him to mislead and calculated to lull her into security as to the title. There is not the shade of evidence to justify the slightest suspicion of collusion between him and her husband. We hold that up until the execution and delivery of the deeds the evidence warrants the conclusion that everything was open and fair, and understood by the one side and by the other.”

A careful examination of the evidence-fails to convince us that the learned judge erred in his conclusion in regard to the facts.

The controlling facts are uncontradicted.

1. The mortgage was duly recorded. This record was constructive notice to her, equally as effective as actual notice: Evans v. Jones, 1 Yeates 172; Kuhn’s Appeal, 2 Barr 264.

2. Her husband acted as her agent in the whole transaction. He had express and direct notice of the mortgage. He acquired it while acting as her agent in making the exchange of lands. With his actual knowledge of it thus obtained from Emerick, the bargain was closed and the deeds were executed. She ratified and confirmed the contract of her husband and agent. This w'as again constructive notice to her. His act became her act. Notice to him in the particular transaction was notice to her.

3. She failed to fulfil her contract. She did not pay the $1334 on the mortgage, nor did she in any manner discharge either the mill property or the residue of Emerick’s land from so much of the mortgage. Through the omission of each party to perform his and her contract respectively, the lands of both parties were sold.

We therefore discover no sufficient equity in her case, to give her a right to compel a reconveyance of the farm which she had conveyed to Emerick. No fraud or mistake, or turpitude of consideration and circumstances entitling her to relief on the principle of quia timet, are proven. Nothing less than one of these clearly established would justify the court in ordering the rescission of an executed contract: Brightly’s Eq., § 238; Delamater’s Estate 1 Whart. 362; Yard v. Patton, 1 Harris 278.

It is not necessary now to determine whether Emerick would have protected her mill property from the other part of the mortgage, in case she had paid or discharged the part she had assumed to discharge. It is sufficient to say that she did not execute the contract through any mistake of facts ; that Emerick was guilty of no fraud; that she failed to fulfil her contract, and cannot reinstate him in his former rights: Flynn v. Allen, 7 P. F. Smith 482; Babcock v. Case, 11 Id. 427.

The cases of Bishop v. Reed, 3 W. & S. 261, and Heacock v. Fly, 2 Harris 540, were cited on the argument in support of the bill. Neither one is applicable to the facts of the present case. In the former, the consideration for the conveyance of the land had wholly failed, through no fault of the party asking to rescind the contract; the latter was where the obligation given for the conveyance was void, and each party could be restored to his former rights. In the case at bar, there was not, at the time of the exchange, any defect in the title to the mill property; but merely a pecuniary encumbrance on it: Tiernan et al. v. Roland et al., 3 Id. 441. The appellants had no right to ask for a rescission on the ground of encumbrance, unless they first discharged, or showed a willingness to discharge, that portion of the encumbrance obligatory on them to discharge: Irvin v. Bleakley, 17 P. F. Smith 24. The learned judge was right in dismissing the bill.

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


source: Caselaw Access Project

author: Mr. Justice Trúnkey

license: Public Domain

text:
    Rosenberger, Light & Co. versus Washington Mutual Fire Insurance Co.
    1. In a mutual insurance company the corporate rights of the assured may be subject to the control of the corporation, but his rights as a party insured rest on the contract. Assurer and insured alike are bound by the charter, and neither can do what it does not authorize.
    2. Assessments in such companies must be limited to the objects declared in their charters and by-laws. The managers may exercise a reasonable discretion in fixing the amount to he raised, having in view the losses and the practical working of the company, but if these reasonable limits are transcended, the assessment is illegal and void.
    3. An assessment was laid on a policy of insurance issued by defendants, a mutual company, to plaintiffs. It was admitted that notice of the assessment was duly received and its payment neglected by plaintiffs. Subsequently the property covered by the insurance was destroyed by fire, and immediately thereafter the plaintiffs offered to pay the assessment, but the company declined to receive it. The plaintiffs then brought suit to recover the amount of the policy. The assessment yielded a sum equal to twice the amount of the indebtedness of the company. At the trial the plaintiffs called a witness who testified that this excess was so assessed in anticipation of future losses. The plaintiffs contended that this assessment was invalid and that their policy was not forfeited nor suspended by their neglect to pay it. The court took an opposite view and directed a verdict for the defendants. Held, that this was error.
    May 23d 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lebanon county: Of May Term 1878, No. 127.
    Debt by Rosenberger, Light & Co. against the Washington Mutual Fire Insurance Company, to recover the amount of a policy of insurance in said company.
    The defendant company was incorporated by Act of Assembly of April 2d 1860: Pamph. L. 770. The first section of this-act authorizes the company to make by-laws for the management and regulation of its affairs. Sect. 4 provides that all persons insured shall be members in accordance with its by-laws during the period for which they shall remain insured. By sect. 5 all corporate powers are vested in and shall be exercised by a board of thirteen managers; and sect. 8 is as follow's: “ That in case of loss by fire the managers shall have power to levy and assess the amount of said loss upon the persons insured in this corporation, pro rata, according to the amount or value of property insured by each respectively.”
    The plaintiffs made application for insurance in this company on the 4th of April 1868, and on the same day a policy of insurance was issued to them for the sum of $5250, covering their foundry and other property, as specified in the application and policy. The application contained the following agreement signed by the plaintiffs:—
    “For value received, and in consideration of a policy of insurance to be issued by the Washington Mutual Insurance Company, at Lebanon, upon the approval of my application for insurance in said company of this date, I promise to pay the said company such sum or sums of money, and at such time or times, as the board of managers of said company may, for the purpose of paying losses by fire and the necessary expenses of the said company require; payable within sixty days after notice and demand.”

      An assessment, known as No. 5, was laid, to pay losses, on the 29th day of April 1871. Notice of this assessment was given to the members of the company'. It was admitted by the plaintiffs that this notice was received by them and that they neglected to pay the assessment.
    The property insured was destroyed by fire on 17th January 1872. This was on Saturday. On the Monday following the plaintiffs offered to pay the assessment. The company refused to receive it, and declined to pay the loss, on the ground that the policy was forfeited or suspended.
    The actual liability or indebtedness of the company on the 29th April 1871, when the said assessment was laid, 'was $2305.48, and it appears that this assessment yielded $4950.34.
    On the part of the plaintiffs it was alleged, and not controverted, that the loss was entire, and that under the charter, if they recovered they were entitled to the full amount of the insurance. It was further contended, on their behalf, that assessment No. 5 so far exceeded the amount required to meet the proper and legitimate expenses, indebtedness and losses of the company, as to render it illegal and void, and that therefore its non-payment did not of itself prevent a recovery in this case.
    The plaintiffs submitted several points embracing this proposition, and the court, Henderson, A. L. J., in answer thereto, inter alia, said, “ This question is a serious one, and for the present we instruct you, pro forma, that the neglect or failure to pay the said assessment, does not defeat the plaintiff’s right to sustain this suit. But we shall reserve the question for future consideration, so that we may enter judgment as we shall hereafter determine the law to be, notwithstanding the verdict.”
    The verdict was for the plaintiff for $6992.12. Subsequently the court, in an opinion on the reserved point, inter alia, said, l' We are of the opinion that assessment No. 5, was a legal and valid assessment, acquiesced in by the members of the company, not questioned even by the plaintiffs, at any time prior to their loss, and only subsequently, it would seem, as an afterthought, the case having been twice tried before any allegation was made of the invalidity of the assessment. The conduct of the plaintiffs, in this respect, is palpably inexcusable and without justification, and cannot and should not shield them from the consequences of their own default and neglect. They were members of a mutual company whose board of managers made an'excessive assessment; surely they had a remedy; it was their duty to have it corrected, to prevent its collection from their fellow members, at least to have spoken. Can it now be said, in equity or in fair dealing, when their company, by their representatives have collected it from their fellow members and appropriated it, without objection or complaint, in the face of an accepted legal notice and demand? We think not.

      “We therefore decline to enter judgment on the verdict. And judgment is entered for the defendant on the reserved question non obstante veredicto.”

    The plaintiffs took this writ and assigned this action for error.

      Wayne Mac Veagh and Josiah Funk, for plaintiffs in error.—
    The objects for which this company can levy assessments are clearly defined by law. It can only make them to meet legitimate expenses, and cover losses which have occurred, but cannot levy them in anticipation of losses. The plaintiffs agreed to pay assessments to pay losses, but under the express terms of the agreement. Such assessments were to be made only after the losses had occurred. This contract is binding on the company: Bliss on Life Insurance pl. 463; Insurance Co. v. Conner, 5 Harris 136; Columbia Ins. Co. v. Cooper, 14 Wright 840; Cumberland Valley Mutual Protection Co. v. Schell, 5 Casey 37; American Insurance Co. v. Schmidt, 19 Iowa 502; Flanders on Fire Insurance 18; May on Insurance, pl. 552.
    Assessment No. 5 was illegal and void on the ground of its gross excessiveness. In Buckley & Co. v. Columbia Insurance Co., 2 Norris 303, Judge Mercur says: “ If the insured can show fraud, or clear mistake in making the assessment, it will constitute a defence, and refers to the following cases as illustrating the principle : Jones v. Sisson, 6 Gray 288: Peoples’ Equitable Mutual Fire Ins. Co. v. Babbitt, 7 Allen 235; Traders’ Mutual Fire Ins. Co. v. Stone, 9 Id. 483; Hummel & Co.’s Appeal, 28 P. F. Smith 320; York County Mutual Fire Ins. Co. v. Bowden, 57 Maine 286. In Sinnissippi Insurance Co. v. Taft, 26 Ind. 240, also a mutual company, the liabilities of the company amounted to $34,540.74. It had $17,755.91 available assets in hand. The indebtedness exceeded the assets by $16,724.83. An assessment was made, amounting in the aggregate to $22,521.26, overlapping the liabilities, after the assets on hand were deducted, only $5636.43; yet the court held the assessment to be illegal, and that the right of the company to make assessments was limited by the losses sustained and unpaid at the time of making the assessments. In the following cases the same principle was applied: Sands, Receiver, &c., v. Boutwell, 26 N. Y. 283; Bangs, Receiver, &c., v. Gray et al., 12 Id. 477. May on Insurance, pl. 557-8-9, lays down the same rule.
    “In an action for an assessment it must affirmatively appear, not only that losses have occurred, but that the assessment has been legally made Bliss on Life Insurance, pl. 466 ; The American Ins. Co. v. Schmidt, 19 Iowa 502.; Atlantic Mutual Fire Ins. Co. v. Fitzpatrick, 2 Gray 279 ; Marblehead Mutual Fire Ins. Co. v. Hayward, 3 Id. 208 ; Savage v. Medbury, 19 N. Y. 36; Bangs v. Gray, 12 Id. 477 ; Thomas v. Whallon, 31 Barb. Id. 177; Herkimer Co. Mutual Fire Ins. Co. v. Fuller, 14 Id. 373 ; Jackson v. Roberts, 31 N. Y. 310; Kelly v. Troy Fire Ins. Co., 3 Wis. 254.

      A. JR. BougTiter, O. JP. Miller and William M. JDerr, for defendants in error.
    An act of excessive assessment, without fraud or gross mistake evidencing hishonesty or collusion in the managers in the manner in performing their duties, does not make an assessment illegal or void. If an error in judgment as to the probable amount a certain rate of assessment may net, which depends upon so many unforeseen circumstances that no man can foretell; and there is no evidence of fraud, or gross mistake amounting to fraud, then the assessment is valid and binding upon all its members. An assessment may be made in anticipation of losses, as otherwise great delay would be experienced in adjusting and paying them: Kelley v. Troy Fire Ins. Co., 3 Wis. 254. The fraud or gross mistake intended by this court, in Hummel & Co.’s Appeal, 28 P. F. Smith 320, as also the words fraud and clear mistake in Buckley v. Columbia Ins. Co., 2 Norris 293, are to be understood as having relation, not to excessiveness of assessment, but to fraud or collusion among' the directors, or gross mistake in the performance of their duties in making the assessment.
    The cases cited by plaintiffs in error are decisions based upon particular statutes, which are totally different from our own, operating upon corporations unlike in their operations.
    June 10th 1878.
   Mr. Justice Trúnkey

delivered, the opinion of the court,

The plaintiffs, by taking the policy, became members of the corporation. Sect. 8, of the act of incorporation, Pamph. L. 1860, p. 770, declares, “That in case of loss by fire the managers shall have power to levy and assess the amount of said loss upon the persons insured in this corporation, pro rata, according to the amount or value of property insured by each respectively.” Art. 14 of the by-laws directs that, “in all cases of loss or damage by fire to any member of this company, after the damage is ascertained, an equal and just assessment shall be laid upon every member of the company in proportion to the amount insured sufficient to cover said loss.” The assured agreed “to pay the said company such sum or sums of money, and at such time or times as the board of managers of said company may, for the purposes of paying losses by fire and the necessary expenses of the said company, require, within sixty days after notice and demand.”

Nothing can be more certain than that the managers had no authority to make assessments in anticipation of losses. The words of the charter and by-law need no interpretation; they are too explicit to admit of doubt, and the contract being consistent therewith is governed by them. Indeed the latter contains no more than is necessarily implied in the former, for the expenses of the company must be borne by its members. They are, as members, subject to liabilities and entitled to privileges. A member may participate in its benefits, is presumed to know its rules and regulations, its books are evidence against him, and he shall bear his proportion of burdens. His corporate rights may be subject to the control of the corporation, but his rights as a party insured rest on the contract. Assurer and insured alike are bound by the charter, and neither can do what it does not authorize; nor can either change a by-law so as to modify the contract without the other’s consent: Insurance Co. v. Conner, 5 Harris 136.

Assessments must be limited to the objects declared in the charter and by-laws. The managers may exercise a reasonable discretion in fixing the amount to be raised, for the charter must be construed in reference to its practical working. The actual sum required can be ascertained; but as expense must be incurred in the collection and loss be sustained in consequence of insolvency of members, proper allowances may be made for failures likely to result from these and other causes, and if the allowances are reasonable in amount and consistent with good faith on the part of the managers, they will not vitiate the assessment. But if these reasonable limits are disregarded and transcended, purposely or by culpable carelessness, the assessment is illegal and void: Jones v. Sissor, 6 Gray 288; Peoples’ Eq. M. Fire Ins. Co. v. Babbitt, 7 Allen 235. In the latter case and in Traders’ M. Fire Ins. Co. v. Stone, 9 Allen 483, it was held that an addition to the debts and reasonable allowance, of one hundred per centum, was so unreasonable as to make the assessment void. In those cases there was no evidence tending to justify so large an addition or excess; and, in the absence of such evidence, so large an excess, in most cases, would be prima facie proof of fraud or gross negligence.

By the terms of the charter the plaintiffs submitted themselves to the acts of the managers as representatives of all the members. They were bound by the assessment, unless they can show fraud or gross mistake. The presumption is that it was properly made : Hummel & Co. ’s Appeal, 28 P. F. Smith 320. To overcome that presumption, the plaintiffs called J. H. Miller, who testified that assessment No. 5 realized, after deducting expenses of collection, $4950.34; that the liability of the company at the time it was ordered was $2305.48; and that the difference, $2644.86, was in anticipation of future losses that might occur. That testimony should have been submitted to the jury, with instructions that if they found the addition to the sum actually needed, was levied by the managers for the purpose of accumulating a fund for payment of future losses, they exceeded their authority and no member was bound to pay the assessment. Were there no direct proof of actual intent to violate the charter, the evidence showing the large sum netted, beyond that required and authorized, should have been submitted with proper instructions. A positive intent to violate is a fraud; and heedlessly levying a large and unreasonable sum in violation of the charter is a gross mistake, affecting the members as if a fraud. It is no part of the contract that members shall pay pro rata, into a fund for payment of losses when they shall occur, and which may not occur till after their membership ceases. The assured contracted to pay assessments for losses after they occur. Simple excess arising from error of judgment, where the managers acted honestly and prudently, wmuld not vitiate the assessment. To neglect payment of a fair assessment suspends the policy. If the assessment was invalid, the policy was not forfeited or suspended by neglect or refusal to pay it: Peoples’ M. F. Ins. Co., Petitioners, 9 Allen 319.

From the foregoing it follow's that there was error in entering judgment in favor of defendant, non obstante veredicto, on the reserved question; and, also, in the reservation itself. Had Miller’s statements been admitted by defendant, judgment could now be rendered for plaintiffs upon the verdict. His testimony was uncontradieted and no reason appears for doubting it; yet without an admission, by a party, of its truth, oral testimony against him cannot be taken from the jury in a reserved point that rules the case.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Schriver versus Eckenrode.
    An action on the case for a deceit in falsely representing that a farm contained a certain number of acres, is not a bar to an action of assumpsit upon a guaranty that the farm contained that number of acres.
    May 22d 1878.
    Before Asnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunket, JJ. Siiarswood, J., absent.
    Error to the Court of Common Pleas of Adams county: Of May Term 1878, No. 10.
    Assumpsit by George I. Schriver against Elijah Eckenrode, to recover the value of the difference between the actual and the represented quantity of a certain tract of land.
    The facts are sufficiently stated in the opinion of this court.

      It. Gi. McQreary, for plaintiff in error. —
    The cause of action in the former suit was not either in form or substance the same as in the present. It was in form ex delicto and the claim in it was for unliquidated damages in tort, involving nothing in the nature of contract. The present suit is assumpsit, to recover a sum of money claimed under a contract of guaranty, and the amount ascertainable by calculation.
    To support the former action, proof of wilful deceit was the essential matter. In this suit the right to recover depends on evidence of a contract.
    A former verdict and judgment, to operate as an estoppel, must have been for the same cause of action; the same fact must have been at issue,, and the test by which the identity is to be established is when the same evidence will support both actions: 1 Starkie Ev. 262; 1 Greenleaf Ev., §528; Connery v. Brooke, 23 P. F. Smith 80.
    The former judgment is not conclusive of anything not directly» decided by it, or that was not material to the decision. The precise question' sought to be established in the latter suit must have been the basis of the former adjudication, and not incidentally or collaterally brought into it: Tams v. Lewis, 6 Wright 402, 410; Hibshman v. Dulleban, 4 Watts 183, 190; Kelsey v. Murphy, 2 Casey 78, 83; Finley v. Hanbest, 6 Id. 190; Carmony v. Hoober, 5 Barr 305.

      David Wills, for defendant in error.
    The subject-matter of both suits is the deficiency in land, and this is not a collateral question in either suit, but is the basis of both. The judgment recovered in the first case is evidence because the cause of action is the same, although the form of the second action is different from the first: Broom’s Leg. Max. *327, and cases cited. It does not depend on the form of the suit; for the inquiry in every case is, whether the former recovery was for the same thing, or whether the grounds of controversy in the two actions are the same. When a party has several remedies for an injury, the adoption of one of them and a recovery or satisfaction in it, will be a bar to a recovery in any other form of action: Gilchrist v. Bale, 8 Watts 355; Garvin v. Dawson, 13 S. & R. 246; Finley v. Hanbest, 6 Casey 190 ; Rice v. King, 7 Johns. 20.
    June 17th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The plaintiff alleges that the court below erred in entering judgment for the defendant upon the plea of former recovery. The action here is assumpsit. The plaintiff declared upon a contract of guaranty — the guaranty being that a certain tract of land purchased by the plaintiff from the defendant, contained one hundred and forty-four acres, while, as the narr. alleges, it contained but one hundred and thirty-two acres and one hundred and twenty-six perches. The damages claimed were $350, being the value of the eleven acres and thirty-four perches alleged to be deficient.

The former suit was an action on the case for deceit. The declaration set forth “ that the said defendant then and there well knowing the premises, and that the said farm contained but one hundred and thirty-two acres and one hundred and twmnty-six perches of land, and that the said plaintiff was ignorant of the fact, and contriving and intending to deceive and defraud the plaintiff in this regard, wilfully, falsely and covinously stated and declared to the said plaintiff that said farm contained one hundred and forty-four acres, and by means of said wilful, false and covinous statements and declarations then and there deceived the said plaintiff, and caused him to believe that said farm did contain one hundred and forty-four acres,” and then goes on to' aver that the plaintiff was induced to buy the farm by means of said false statements, and claims damages in the sum of $600. In this action the court instructed the jury that the gist of the action was the deceit, and if the defendant at the time believed his representations to be true, the plaintiff could not recover. The verdict was for the defendant.

We have thus presented the single question, whether the verdict and judgment in the action of deceit was a bar to the present action of assumpsit on the guaranty.

The case does not require us to review the authorities. They all lead us to the familiar rule laid down by Chief Justice DeGrey in the Duchess of Kingston’s Case, in 11 State Trials 261, that “the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or as evidence conclusive between the same parties, in the same matter, directly in question in another court,” and the principle, as recognised in the leading text books, that “a former verdict and judgment, to operate as an estoppel, must have been for the same cause of action; the same fact must have been at issue, and the test by which the identity is to be established is when the same evidence will support both actions:” 1 Stark, on Ev. 262 ; 1 Greenl. on Ev., § 528. Applying these principles to the case in hand we find that the former suit was a special action on the case for a deceit practised by the defendant in falsely representing that the farm contained one hundred and forty-four acres, and inducing the plaintiff to pay for that quantity of land, when, in fact, the farm contained but one hundred and thirty-two acres and one hundred and twenty-six perches. The plea there was not guilty, a simple denial of the fraud. The issue thus made up involved no liability by means of any contract, express or implied. The one essential fact to be proved was the deceit; it was a question of fraud and nothing else. The damages recoverable in such action were not measured by the deficiency in'the land; the jury might have gone further and punished the defendant as well as compensated the plaintiff. The guaranty was not essential in the action of deceit. The evidence of it might have been wholly omitted, and if introduced would not of itself justify a recovery. It would have been merely collateral, and the rule is “that neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter ■which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognisable:” Duchess of Kingston’s Case, supra; Hibsman v. Dulleban, 4 Watts 183; Martin v. Gernandt, 7 Harris 124.

The case in hand is assumpsit upon a guaranty that the farm contained one hundred and forty-four acres. The plaintiff must recover upon his contract and nothing else. The deceit, if proved, would not help him. It will thus be s.een that the evidence to sustain the two actions is essentially different. The measure of damages is also different. In the action of assumpsit the plaintiff would be restricted to the value of the eleven acres and thirty-four perches of land alleged to be deficient. What has been said we think sufficient to show that the cause of action is not identical. That it grows out of the same transaction is not material. We are of opinion that the failure to obtain satisfaction in the first case for the alleged deceit is no bar to the action of assumpsit upon the guaranty.

The judgment is reversed, and judgment is now entered for the plaintiff upon the special plea.

Mercur, J., dissents.


author: Per Curiam.

text:
    City of Harrisburg versus Saylor.
    1. By an ordinance the councils of the city of Harrisburg directed the construction of new waterworks. It was provided therein that a committee should be appointed, who should advertise for proposals, make contracts subject to the approval of councils, and employ an engineer, to prepare the necessary plans and specifications. The engineer, with the authority of the committee, but without the approval of councils, entered into a parol contract with a company to make certain connections in the pipes. In the performance of this contract, through defective machinery and negligent work, on the part of the company, an explosion occurred, whereby S. was injured and died. Held, that the city was responsible.
    2. The question of contributory negligence is a mixed question of law and fact. When the facts are undisputed the court should declare the law thereon, hut where the evidence of contributory negligence is conflicting, or the facts on which a light to recover are rested are controverted, a jury should pass upon that evidence and upon those facts.
    May 24th 1878.
    Before Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Agnew, O. J., and Sharswood, J., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1878, No. 51.
    Case by Mary A. Saylor against the city of Harrisburg, to recover damages for the death of her husband, which the plaintiff alleged' was occasioned by the use of defective machinery in the construction of the city waterworks, upon which the deceased was engaged at work at the time of his death.

      At the trial it appeared, that on the 8th of March 1871, the city by ordinance directed the construction of new waterworks and a reservoir, and authorized the appointment of a committee, who were specially charged with the duty of advertising for proposals, making contracts, employing an engineer to prepare plans, &c. All contracts, however, were to be made subject to the approval of councils. The committee employed H. P. M. Birkenbine, as engineer, and made contracts for the work, awarding to the Harrisburg Foundry and Machine Company, the contract for two pumping-engines and for the erection of the stand-pipe, and to Heikel, Opperman & Co., that for making the foundations for the engines, engine-house, boilers, &c. During the progress of the work, in order to keep the city supplied with water, it became necessary to connect .the stand-pipe with the old reservoir. It was decided to connect the sixteen-inch main with the twenty-four inch forcing-pipe, leading from the stand-pipe toward what was called the low-pressure engine, not then in place, by bringing the sixteen-inch pipe from Front street, around the stand-pipe, and connecting it by means of a Y with the twenty-four inch forcing-main, between the place for the low-pressure engine and the stand-pipe. The contract for the work was, as above set forth, given by the water committee, through Mr. Birkenbine, to the Harrisburg Foundry and Machine Company, without the previous sanction, or subsequent ratification of councils. By the terms of that contract, which was in parol, the company was to cast the pipe according to drawings furnished by the engineer, Birkenbine, furnish all the material and labor, put the pipe in place, and make the connections, and to be paid for the same what the work and material were reasonably worth.
    The drawings for the Y casting furnished by the engineer, had on them what are called lugs, or projections for clamps, or stirrups, and the Y was cast with these lugs for clamps upon it.'
    On or about the 28th of November 1874, the Y was put in place, and the connection made by the company, under the parol contract before mentioned, and left incomplete. The clamps or stirrups, were not put on the Y, as indicated by the drawing supplied by the engineer, so as to make it secure. The pipes were only soldered together by a plumber, in the employ of the company. The city was thus supplied with water for about twenty days, when it was arranged to pump the water, into the new reservoir. On the morning when the attempt was made, it was found that the engine was being run carelessly by the superintendent of the Machine Company, who was in person driving and directing its running. Saylor, the deceased, wTas at work with other employees of Heikel, Opperman & Co., in a pit separated by a board partition from the engine, preparing the foundations for the second engine. A leak was sprung in the pipe near to the Y, the water from which ran into the pit where Saylor and the others were working. Some of them noticed it and observed that the water increased with every thump of the engine. The attention of one of the firm of Heilcel, Offerman & Co., being called to this, he directed his employees to come out of the pit, which they did. After being out, Saylor, with others, went back into the pit to get their coats. On his way out again, the pressure from the engine having been increased, the Y blew off, tearing away a wall in front of it, scattering debris in all directions and dropping itself down into the pit, injuring Saylor, from the effects of which he died within about forty-eight hours.
    It appeared that the cause of the accident was the rapidity with which the engine was run, and the neglect to clamp or stirrup the Y connection. There was a conflict of testimony as to whether the return of Saylor for his coat contributed to his death. The evidence was also conflicting as to whether the connection was made by the direction and under the supervision of the engineer, Birkenbine, or whether the company was exercising an independent employment in making the same. The workmen were paid by the company, who charged their wages in their account with the city.
    In the general charge, the court, Henderson, A. L. J., inter alia, said:
    [“ Here we instruct you, that if David Saylor was guilty of contributory negligence, the plaintiff cannot recover. If his injury and death resulted from his own recklessness, in going back into the pit, after warned of his danger, the plaintiff cannot recover. You will consider whether he acted with recklessness, or in a rash manner, thereby contributing to his own injury and death.]
    * * * “We instruct you, that if the Harrisburg Foundry and Machine Company undertook and agreed to furnish the castings and make the connections and complete the work, they were bound to do so in a full, conplete and proper manner. They were not the servants of the city, nor should they be so considered; and if they failed to complete the work and make it satisfactory, the city would not be responsible.
    [“ On the other hand, if they were employed by the city, by Mr. Birkenbine, to do this work under his instructions and personal direction as to the manner of work, the city would be responsible for anything resulting therefrom by reason of negligence or defective work. So you will weigh the matter and examine the evidence touching upon this with some care, and determine whether the contract was made between the Harrisburg Foundry and Machine Company and Mr. Birkenbine to do this work and make this connection and furnish the castings from the plans furnished by Mr. Birkenbine, but at the same time to do it as a work of their own; or were they employed by Mr. Birkenbine, simply to do it with their hands, under his direction ? If in the former way, then the city would not be responsible. If under the direction of Mr. Birkonbine, the agent of the city, the engineer of the works — if he had the management and control of those hands — gave directions how the work was to be done, then the city would be responsible. Then it was Mr. Birkenbine’s duty to have seen to the putting on of the clamps at the proper time, before pumping water through these pipes, as it was intended.]
    * * * “Was Mr. Birkenbine the proper person to control the engine there, or was it some other person ? As to him and the other witnesses, you will recollect the testimony. He says he was there engaged in testing the engine, and that at this time the engine was not working properly, by reason of the obstructions coming into it; that they were pumping with but one side; that the knocking and thumping and the hammering was equal to a strain of about eight hundred tons, I think Mr. Birkenbine said, and that that was the cause of the separation of those pipes. [If you determine that the city had control of the engine at that time, and that it caused the separation, it was their negligence.] But if under the control of the Harrisburg Foundry and Machine Company, and they, by an improper use of that engine, whilst they were there and having it under their control, and without directions or instructions from the city, used it in that way, so as to contribute to that accident, it would relieve the city from responsibility, or its consequences.”
    The verdict was for plaintiff for $3850, one-third of which was remitted when judgment was entered thereon.
    The city then took this writ, assigning for error, inter alia, the foregoing portions of the charge noted in brackets.

      Thomas 8. Hargest and L. W. Hall, for plaintiff in error. —
    It was beyond the scope of the authority of the engineer or the water committee to make a contract with the company without first having advertised for proposals and obtained the sanction of councils.
    If there was no power or authority in the water committee, nor in the engineer, to make the contract, “arrangement,” or “employment,” out of which the action arose, those who did the work were mere volunteers, and they, not the city, would be liable for the injury. Whatever power was vested in the committee on new waterworks to make contracts was delegated to them by the city, under the restrictions contained in the ordinance, not to the engineer or other person; and that power could not be sub-delegated. It was incumbent upon the plaintiff to show by affirmative' proof the authority for making the contract. It was, therefore, error in the court below to assume, in the face of indubitable proof to the contrary, that the engineer “had ample power” to make the contract out of which the action arose. Though a private agent, acting in violation of specific instructions, yet within the scope of a general authority, may bind his principal, the rule as to the effect of a like act of a public agent, or the officers or agents of a municipal corporation, is otherwise: Mayor, &c., of Baltimore v. Eschbach, 18 Md. 276. City officials cannot bind the city by unauthorized acts: Burns v. Mayor of New York, 5 N. Y. 471; Anthony v. Adams, 1 Metc. 284; Seibrecht v. New Orleans, 12 La. Ann. 496. The court should have instructed the jury, as matter of law, on the facts in this case, that the engineer had no such authority as was claimed.
    It was contributory negligence in Saylor to go back into the pit. It was undisputed that he went back on his own motive, after he had received notice of the danger, and had for that reason left the pit, and was safely out of harm’s way. He went back subsequently, not for us, or by our order. There was, therefore, no room -for the judge to put the question, “Was it contributory negligence in going back into the pit?” Whether a given state of undisputed facts constitute negligence, is a question of law. There is nothing for a jury to do — the facts being conceded or not denied — but to apply the law as' it is declared from the bench. If there was any question on this branch of this case for the jury at all, it was, “Did the deceased’s going back into the pit contribute to his injury and death?” The court nowhere, either in the general charge, or in answer to the points, put on both sides, touch that, the real point, if the question was to go to the jury at all.' If the deceased had warning or opportunities of knowledge of danger, he should have been charged with it, and the court should have so instructed the jury: Pennsylvania Railroad Co. v. Henderson, 7 Wright 449 ; Pittsburgh and Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 294; McKee v. Bidwell, 24 Id. 218; Central Railroad Co. of New Jersey v. Feller, 3 Norris 226; Boys v. Pennsylvania Railroad Co., 2 Id. 198. The company was exercising an independent employment in making the connection, and was in charge of the engine.

      J. O. McAlarney and J. W. Simonton, for defendant in error.—
    Whether the foundry and machine company were the servants of the city was a question of fact under the evidence, as the employment was by parol, and as such was properly submitted to the jury. What is negligence is always a question for the jury, when the measure of duty is ordinary and reasonable care, and where the standard of the degree of care shifts with circumstances: West Chester and Philadelphia Railroad Co. v. McElwee, 17 P. F. Smith 311; Johnson v. West Chester and Philadelphia Railroad Co., 20 Id. 357 ; Pittsburgh, Allegheny and Manchester Railroad Co. v. Pearson, 22 Id. 169; McKee v. Bidwell, 24 Id. 223 ; Crissey v. Hestonville, Mantua and Fairmount Passenger Railway Co., 25 Id. 83. Where there is conflicting evidence, the question of concurrent negligence is for the jury: McCully v. Clark, 4 Wright 399; Pennsylvania Railroad Co. v. McTighe, 10 Id. 316; Oakland Railroad Co. v. Fielding, 12 Id. 320; Johnson v. Bruner, 11 P. F. Smith 58; Philadelphia and Reading Railroad Co. v. Long, 25 Id. 257; Pennsylvania Canal Co. v. Bentley, 16 Id. 30. Where there are controverted facts, the question of negligence is for the jury: Pennsylvania Railroad Co. v. Ogier, 11 Casey 60.
    June 10th 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

A careful examination of the record in this case, discloses no sufficient ground for reversal. The question of contributory negligence is a mixed question of law and fact. It is true when the facts are undisputed the court should declare the law thereon. Inasmuch, however, as the measure of duty is generally ordinary and reasonable care, the standard of the degree of care required, shifts w'ith the circumstances: McKee v. Bidwell, 24 P. F. Smith 218; Crissey v. Hestonville Railway Co., 25 Id. 83. When the evidence of concurrent negligence is conflicting, or the facts on which a right to recover are rested are controverted, a jury should pass upon that evidence, and upon those facts. The controlling facts in this case were controverted, the evidence ivas conflicting. It was therefore right to submit them to the jury, as the court did, with a clear and correct statement of the law.

Judgment affirmed.

Immediately after this judgment was entered the counsel for plaintiif in error moved for a re-argument, alleging as a principal reason therefor that only one assignment of error had been considered by the court.

On the 17th of June 1878, Mr. Justice Mercur delivered the following opinion:—

Although our decision mentions and seems to relate to but one assignment of error — that of contributory negligence — yet we considered all the questions raised in the case, so fully and ably argued. both in the paper-book and at the bar.

Motion for re-argument overruled.


author: Mr. Justice Gordon

text:
    Hoffer versus The Pennsylvania Canal Co.
    The Act of February 19th 1849, in terms authorizes compensation for damages purely consequential, and in estimating under said act the damages arising to a landowner from the construction, through his land, of an improvement by a railroad or canal company, the consequential damages resulting necessarily from the construction of said improvement are to be considered and not only those which are direct and immediate.
    May 25th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodavard and Trunkeat, JJ. Sharsavood, J., absent

      Error to the Court of Common Pleas of Dauphin county: Of May Term 1878, No. 183.
    These were proceedings instituted by the Pennsylvania Canal Company, under the Acts of February 19th 1849, and March 17th 1869, for the appointment of viewers to assess the damages done by enlarging and deepening its canal through the land of Joseph Hoffer.
    Hoffer has, for many years, been the owner of a farm containing about one hundred and forty-three acres, and lying about five miles south of Harrisburg. Running through the entire length of this farm, in parallel lines, are the Middletown turnpike, the Pennsylvania canal and the Pennsylvania railroad. The western boundary line of said farm is the Susquehanna river, running parallel with the aforesaid highways. The buildings belonging to this farm are situate along the line of the turnpike, and with the large portion of the farm, lie east of the canal. Between the canal and railroad is a strip of land from forty to eighty feet wide, and beyond the railroad and between it and the river, are lying about eight acres of good farming land. To afford access to these smaller tracts of land from the main body of the farm, a farm bridge was constructed by the state across the canal when originally built. There were fences along both sides of the canal, and on the west, or towing-path side, Hoffer planted, on his own lands, a line of nearly half a mile of willow' trees.
    In 1871 the Pennsylvania Canal Company, then and now the owners of said canal, by virtue of the Act of March 17th 1869, proceeded to widen, deepen and enlarge this part of their works. In the enlargement of their works the company took some of Iloffer’s land. The embankments of the canal being raised and the volume of water in the canal increased, his lands along the tow-path were damaged by water percolating through the banks and resting on the lands. Willow trees were cut down and carried awray by the company; the fences were destroyed and carried off; and the farm bridge was raised by the company about eighteen inches or two feet, thus increasing the difBculty of access to the lands beyond the canal. Mr. Hoffer then brought an action of trespass, whereupon these proceedings were commenced by the company.
    At the trial, the defendant proposed to ask a witness “if by reason of deepening and raising the banks of the canal and the water therein, there had not been an increase of water on the defendant’s land by the percolation and the water seeping through and resting on the land by which it was more injured than before.”
    The court overruled this offer, saying, “ The Canal Company is only answerable for talcing the land, not for injury caused indirectly by percolation through the banks.”
    In the general charge, the court, Pearson, P. J., inter alia, said: “We come now to that which is principally complained of, the raising of the bridge and construction of the road leading therefrom.”
    “ The state had originally built what is known as a farm bridge at this place. The owner of the land had a field across the canal from his residence, and a bridge was necessary to reach it; on raising the canal as stated the witnesses say that it was necessary to increase the height of the bridge to enable the boats to pass under. The company was authorized by law to deepen and if necessary to raise the canal. If you are satisfied that it was necessary to increase the height of the bridge, and it was done properly, and to no more elevation than was necessary for good safe navigation, then we instruct you it was not illegal but authorized by law. A road led from this bridge down to the railroad, about fifty yards distant, and in the direction of the defendant’s field. This road was made under plaintiff’s direction. Its engineer states that it started on a level with the floor of the bridge, and ran by a regular grade to the edge of the railroad, which, owing to the increased height of the bridge, was steeper than the former road at that place. . Was the grade any greater than was necessary at the point? The road could not be carried over the railroad with earth in the manner such roads are ordinarily made. Was the canal company bound to carry this road at such an elevation as would cross the railroad above the reach of locomotive chimneys, and the tops of cars ? If not, was the road made in a skilful and proper manner and with no steeper grade than was necessary at that place ? If the jury is satisfied that under the circumstances the road was judiciously and properly built, the plaintiff is not responsible for the inconvenience to which the defendant may be put by reason of some trouble in locking his wagon wheels in going down the road to reach his field, or the inability to haul so large a load when coming from it. The plaintiff says that this is not a taking of defendant’s property for which it is liable. That may be, the case, but for the present you may treat it as if there was responsibility, and judge whether the bridge was necessarily raised and the road properly and judiciously graded, and if satisfied that both points are with the plaintiff, the defendant can recover no damages on that account. Besides, the injury must in such cases be direct and immediate — not remote and consequential. You will in your verdict state all of the subjects for which you allow damages, and how much for each, and make the maps in evidence part of your verdict, to show precisely what land was taken.”
    The viewers in their report had awarded Hoffer $775, in damages. The yerdict at the trial was for only $200.46, when he took this writ and assigned for error, the rejection of his offer of testimony and the portions of the charge noted.

      Thomas E. Franklin and Elias Hollinger, for plaintiff in error.
    —We contend that the rule established in the Monongahela Navigation Co. v. Coons, 6 W. & S. 101, applies only when there is no taking, and when the damages are purely and entirely speculative and consequential. But where there is a. taking, as in this case, then we say the proper rule is the one laid down in the case of the Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 422, or in East Brandywine Road v. Ranck, 28 P. F. Smith 454, in which Judge Paxson says : “ It is the settled rule that the measure of damages in such cases is the difference between the value of the property, as a whole, before the opening of the road and its value as affected by the- road.” Where property is taken, the owner is entitled to compensation for that which is taken, and the depreciation of what remains: Watson v. Pittsburgh and Connellsville Railroad Co., 1 Wright 469; Western Pennsylvania Railroad Co. v. Hill, 6 P. F. Smith 460 ; P., F. W. & C. Railway Co. v. Gilleland, Id. 445.
    The damage arising from the raising of the bridge is less remote than that arising from the percolation of the water, and the foregoing rule for the measurement of damages applies with much greater force to this item of damage.

      Hall Jordan, for defendant in error.
    The court below was clearly right in ruling that any damage done by the percolation was consequential, and is within a class of cases from Monongahela Navigation Co., supra, to Canal Co. v. Mulliner, 18 P. F. Smith 357. The allowance of damages for the raising of the bridge is covered by the latter case.
    June 10th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

Under the Act of February 19th 1849, the viewers, appointed for the purpose of assessing the damages resulting to the owner whose land has been appropriated for the use and purpose of a canal or railroad company, are required, first, to determine, the quantity, quality and value of the lands taken and occupied. If the matter stopped at this point, we would at once agree with the learned judge of the Common Pleas that consequential damages, resulting necessarily from the construction of the improvement, could not be considered. But it does not; for the viewers are required, after having made a fair and just comparison of the advantages and disadvantages, resulting from the construction of the railroad or canal, to estimate what amount of damages has been or may be sustained and to whom payable. As the damages, here spoken of, cannot have reference to the land actually appropriated since, as to it, its price is a full compensation, it follows, that we must construe this statutory direction to mean an estimation of the depreciation, resulting to the remaining lands of the proprietor, from the construction of the works. In other words, the statute does, in terms, authorize compensation for damages purely consequential. Hence, it has been held that the legislature intended the assessment of all such damages as are the direct and immediate consequences of the construction of the road, to the whole tract through which it may pass; for the injury done to the tract as a whole, of whatsoever components that injury may consist: Watson v. The Pittsburgh and Connellsville Railroad Co., 1 Wright 469. And, further, that the measure of damages, to a landowner, caused by the construction of a railroad through his land, is the difference between what the property would have sold for before and after the road was built: Harvey v. The Lackawanna and Bloomsburg Railroad Co., 11 Wright 428. This rule covers everything which tends to cheapen the land through which the road passes, and must, necessarily, include, not only damages which are direct, but, also, those which are indirect. So it was said by Mr. Justice Agnew, in the case of the Pittsburgh, Fort Wayne and Chicago Railway Co. v. Grilleland, 6 P. F. Smith 445, that all the probable consequences of the works in producing injury must be allowed for, such as would fairly arise to the mind of an intelligent viewer in considering the effect of such works. Following in the line of this same doctrine, it has been ruled that it was proper for viewers to take into consideration the loss of business to a mill, the proximity of the railroad rendering it an unsafe place for horses: Western Pennsylvania Railroad Co. v. Hill, 6 P. F. Smith 460. Again it was said, by Mr. Justice Agnew (Wilmington and Reading Railroad Co. v. Stauffer, 10 P. F. Smith 374), that injury arising from the location of the works, in relation to the peculiar features of the premises, proximity to the buildings, interruption of their ordinary use, and of the avenues of passage; inconvenience caused by embankments and deep cuts, and matters of this nature, have always been held to be proper subjects of consideration in estimating the depreciation of the property as a whole. Many other authorities might be adduced in proof of what is above written, but enough has been shown to exhibit the error into which the learned judge fell, when he instructed the jury that the only injury to the premises of Hoffer, which could properly be considered, was such as was direct and immediate and not such as was consequential. This, of course, limited the compensation to the value of the land taken and the property directly damaged. Following this rule, all injuries, arising from the increased percolations of the water caused by the raising of the canal banks, as well as those resulting from the elevation of the bridge, were excluded from consideration. This ruling cannot be supported, inasmuch as compensation was denied for damages resulting from the nature and character of the new work. The new banks, for the enlarged work, may have been as well constructed as possible for human skill and yet the amount of water thrown upon Hoffer’s land, by the increased percolations, may have seriously injured it; and so the raising of the bridge may have added greatly to the inconvenience of passing from one part of his farm to the other, though the grades to and from that structure may have been as low as the nature of the ground and surrounding circumstances would admit of, and one or both these causes combined may have largely reduced the value of his property. To deny the landowner compensation for these injuries accords neither with the Act of Assembly nor the rulings of this court. The attempt to assimilate this case with that of the Monongahela Navigation Co. v. Coon, and others of that type, fails in this, that those were common-law actions on the case for consequential damages, unconnected with any taking of property, whilst the present is a case falling within the purview of a statute regulating the manner in which corporations may take the lands of private persons for their own use, and prescribing the damages the owners may recover for such taking. As we have already said, if this act had only provided for compensation for the land actually taken, the ruling of the court below would have been unobjectionable; no compensation could have been recovered for injuries to the adjacent property resulting from the construction and use of the improvement, but it was just in this the mistake was made, the act does provide for such damages and the jury should have been permitted to consider them.

The judgment is reversed and a new venire is awarded.


text:
    Lorenz versus Orlady, Garnishee of Yenter.
    After an assignment for the benefit of creditors, the debtor acquired a fund which was attached in his counsel’s hands. The court dissolved the attachment upon a rule to show cause, and directed the fund to be paid to the assignee. Held, to be error, because:
    (1.) The rights of the parties could not be disposed of in so summary a manner : the defendant and garnishee could appear-, plead and have a trial by jury: and
    (2.) The fund having been acquired after the assignment, the assignee had no right to it, even if he had been in court as a claimant.
    May 28th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Siiarswood, J., absent.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1878, No. 133.
    This was an attachment-execution issued upon a judgment against Zachariah Yenter in favor of Herman Lorenz, and in which George B. Orlady, the counsel of Yenter, was summoned as garnishee.
    On January 19th 1877 six judgments were entered against Yenter, the last two being in favor respectively of Samuel Hemphill and the plaintiff, Lorenz. Executions were issued on the same day and Yenter’s personal property was sold, producing a sum sufficient to pay the first four judgments in full and a portion of that in favor of Hemphill. After the issuing of the executions, viz., on January 24th, Yenter made an assignment for the benefit of creditors to John O. Miller. After some time it appeared that the costs charged by the sheriff upon the writs of execution were in excess of the legal fees, and Yenter having, on June 29th, procured from Hemphill an assignment of his interest in such excess, the sheriff, on July 6th paid to George B. Orlady, Yenter’s counsel, the sum of $131.50, which, without the assignment, would have been applied upon Hemphill’s judgment. On the same day Lorenz issued this attachment, which was served upon Orlady and Yenter. On August 20th, upon the application of Yenter, a rule was granted upon Lorenz to show cause why the attachment should not be dissolved, which the court (Dean, P. J.,) afterwards, on February 20th 1878, made absolute, at the same time directing the fund “to be paid to assignee of insolvent debtor, Z. Yenter, less his reasonable counsel fees.”
    To this order Lorenz took this writ, assigning for error the dissolution of the attachment, and the order directing the fund to be paid to the assignee.

      JPetriJcin and McNeil, for plaintiff in error.
    The court had no power to dissolve the attachment in a summary way; defendant could appear, plead and have a trial: Neff v. Love, 2 Miles 128; Pleasants v. Cowden, 7 W. & S. 379.
    The assignee had no right to the fund. He was not in court, and even if he had been a claimant the fund was acquired after the assignment and did not pass to him.
    No counsel appeared for defendant in error, and there was no paper-book.
    June 17th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

We think the court below erred in dissolving the attachment upon a rule to show cause. The rights of the parties could not be disposed of in this summary manner. Much more was it error to award the fund in the hands of the garnishee to the assignee of the insolvent debtor. The assignee had made no claim to the fund, was not in court nor represented by counsel. He had no right to the fund, for the plain reason that it had been acquired by Tenter several months after the assignment. It could not, therefore, have passed to his assignee. Whether the money in the hands of Orlady, the garnishee, and who was also Yenter’s counsel, is liable to attachment, is a question that must be settled in the usual manner. The attachment was dissolved upon the petition of Yenter, the defendant. He has a right to appear and plead to the attachment, and by his plea to have all such matters of fact put in issue so that they may be tried by a jury: Pleasants v. Cowden, 7 W. & S. 379. The garnishee also has the right to have a jury pass upon disputed questions of fact, if there be any. It was not the right of either the defendant or the garnishee to have the attachment dissolved in a summary manner.

The order of 20th February 1878, dissolving the attachment and directing the fünd to be paid to the assignee is reversed, and it is now ordered that the attachment be reinstated.


author: Mr. Justice Mbrcur

text:
    Weaver, Executor of Rhodes, versus Rhodes.
    1. A husband, before the Act of 1848, received a legacy due his wife. He subsequently conveyed property to her without consideration, which they afterwards sold, and.the proceeds of which were invested in other land, the title to which was taken in his name. This was also sold, and a note for part of the purchase-money given to them jointly; in a feigned issue to determine the ownership of the note the court submitted the question of her interest, and its extent, to the jury. Held, not to be error.
    2. Whether the husband was entitled to the note by survivorship not decided.
    May 28th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Siiarswood, J., absent.
    Error to the Court of Common Pleas of Blair county. Of May Term 1878, No. 17.
    • Feigned issue, arising out of the following proceedings: George Weaver, executor of Mary Rhodes, brought two actions of assumpsit against Joseph Fitchner upon his promissory notes for $100 and $3487 respectively, the former made to Mary Rhodes alone, and the latter to Mary Rhodes and Abraham Rhodes, her husband, jointly. Affidavits of defence were filed in each case, setting up that the money belonged to Abraham Rhodes alone, and this issue was thereupon framed to determine its ownership in each case, with Abraham Rhodes, as plaintiff, and Mary Rhodes, executor, as defendant. At the trial, on May 2d 1877, before Dean, P. J., the following facts appeared:
    About the year 1834, Abraham and Mary Rhodes were married. She had been previously married, and in the year mentioned she joined with her husband Abraham in a receipt for about $400, and a release to the executor of her first husband’s will. He had personal property of probably the same value, and their subsequent acquisitions were entirely the result of their own labor, and the use of this small capital, She received nothing from any other source than her second husband, and the principal question was whether his acts and declarations established a gift to her of the larger note. (The smaller note was found by the jury to be her property, and has no bearing on the matter in dispute.)
    It appeared from the testimony on both sides that in May 1852 Abraham Rhodes, believing himself to be about to die, conveyed to his wife three parcels of land near Martinsburg for a consideration of $1500, but that she paid no money therefor ; that in February 1864 she and her husband conveyed the same to one Campbell, for a nominal consideration of $2000, the real consideration being that Campbell should maintain them during their joint lives and the life of the survivor; that this arrangement proving unsatisfactory, Campbell re-conveyed to her in March 1864 for $1800, no money being paid in either transaction ; that in March 1864 one of these parcels was conveyed by her husband and herself to Jacob Oesterle for $900, and in June of the same year the other two 'were conveyed to Mary Crissman for $2200. There was no evidence outside the title to show that, in the course of these transactions, she claimed to own the land in her own right. In February 1864, Abraham purchased a farm from Michael Sissler for $3447, paying $1148.67 in hand and giving a mortgage in which his wife joined for the balance. The title of this property was made to him. In April 1872 he sold this land to Henry Shaw, and the money paid by Shaw at that time, viz.: $2887, which was at once loaned to Fichtner, together with other loans to Fichtner theretofore made by Abraham, and for which Abraham individually held Fichtner’s notes, made up the note in dispute. Fichtner testified as follows concerning the conduct and declarations of the parties at the time it was given:
    “ Mr. Rhodes suggested to me that they should be put in one note, so that the interest would fall due at the same time and it would be less troublesome. But about the time that this new note was given, or immediately before it was given — after they had determined to put them into one note, Mrs. Rhodes said to mo, ‘ I want the new note in my name.’ I told Mrs. Rhodes I didn’t like to do that; could .not well do it unless the old gentleman was satisfied. I addressed myself to Mr. Rhodes; he was hard of hearing, and I spoke very loudly, telling him what Mrs. Rhodes had said. He said that the money was his, and that he wanted the note in his name, as it was before. They parleyed a little about it; he commenced to talk then to Mrs. Rhodes and got a little loud on it. I saw that they wouldn’t come to any agreement, and I told them they should settle upon the matter, and whenever they had determined how it was to be drawn I would draw it, and I left the house then. The next day Mrs. Rhodes came up to my house and told me again she wished the new note to be in her name. I told her I didn’t see how I could do it unless he would be satisfied. Either that day or the next day I went down again to see Mr. Rhodes and he again told me that he wouldn’t have the note in any other way but what it was in his name. Mrs. Rhodes was by. After talking awhile to them I proposed to them at last to make the note jointly —to draw the note in favor of Abraham and Mary Rhodes. I don’t remember what Mrs. Rhodes said, if she said anything, but I directed my attention to Mr. Rhodes, and told him what I had proposed, speaking loudly to him. He, rather in an angry tone replied; says he: ‘I don’t care how the note is made, but the money is mine.’ I drew up the note accordingly, in order to get rid of it, and this is the note.”
    There was no testimony in contradiction of Fichtner.
    After defendant had given in evidence the conveyances to and from Campbell, plaintiff offered to show in x-ebuttal that there was no money consideration for either conveyance, to prove that none of Mi’S. Rhodes’s money was invested in the estate. Objected to as iri’elevant. Admitted. Exception for defendant.
    The defendant’s points with the answers of the court thereto were as follows :—
    1. By the deeds in evidence Mary Rhodes was the owner in fee-simple of the three parcels of land in or near Martinsburg.
    Ans. “ This point is affix-med, but the fact is not material to this issue.”
    2. The $900 purchase-money for the ten acres sold by Mary Rhodes and her husband to Jacob Oesterle and the $2200 purchase-money of the land sold by them to Mary Crissman, in all $3100, belonged to Mary Rhodes as her separate estate.
    Ans. “ The answer to this point can have no bearing on this issue.”
    3. If the proceeds of the sale of the Martinsburg property were invested in the purchase of the farm from Sissler, Mary Rhodes, notwithstanding the deed was made by Sissler to Abraham Rhodes, acquired an interest in that farm as her separate estate, proportioned to the amount of her money so invested, and when the farm was sold to Shaw she was entitled to a like proportion of her purchase-money.
    Ans. “ This point is denied.”
    4. If the money of Mary Rhodes was invested in the Sissler farm, and if, when the money was paid by Shaw and loaned to Fichtnex’, Abraham Rhodes refused to permit the note to be made payable to her alone, he did not thereby impair her right to so much of the money as represented her interest in the land. It remained hers notwithstanding such refusal; nor did she by her consent to accept a note to herself and husband jointly.relinquish any right to the full amount of her interest in the purchase-monev ■included in her note.
    Ans. “ The point is denied.”
    5. Even if Mary Rhodes had no equitable title to the purchase-money paid by Shaw, if the jury find from all the evidence that she was in fact the sole owner of the $3400 note they should so find, notwithstanding the name of Abraham Rhodes is written as a joint payee.

      Ans. “ There is no evidence in the case from which you can find that Mary Rhodes was the sole owner of the note.”
    6. In any view of the evidence Mary Rhodes’s executor is entitled to the note of $100, and to one-half of the $3400 note.
    Ans. “ The executor is entitled to a verdict for the $100 note; also, to a verdict for the one-half of the other note, if the weight of evidence shows that Abraham Rhodes made a gift of one-half of it to his wife, as we have already instructed you in our general charge.”
    In the general charge the court also said, inter alia:
    “We instruct you as a matter of law, that there is no evidence here which shows that prior to the 1st April 1872, Mrs. Rhodes had any right to any portion of the proceeds of the sale of the Shaw farm. The whole legal and equitable estate in the land bought from Sissler was in Abraham Rhodes, and he was entitled to receive, after she joined in a deed, the entire consideration-money. * * *
    “ But the evidence is undisputed that they started with a joint capital of six or seven hundred dollars, which, by their joint earnings, was increased up to the time of the purchase of the Martins-burg property (when the title was put in her name), to probably $1500. Of course, if the conveyance was taken in her name, the title was hers, and the assent of the husband to its being hers would be implied and the money from the sale of the Martinsburg land was hers, and if she had chosen to keep it would have been hers to the day of her death; but sKe chose to put it in other property and have the title taken in the name of her husband. There is not a spark of evidence in this case of any coercion or compulsion exercised by the husband to get the money from her, or of any fraud or deception practised upon her in taking the title in his name. This must, therefore, be taken as having been done with her full consent, there being no evidence of dissent on her part, and from the day in 1864 [1872 ?] when the title was taken in his name, that land and the increased value of it was his just as much as the land in Martinsburg, which was taken in her name, was hers. * * *
    “ There is no evidence here that shows the one-half of this $3487 note to be hers, and we instruct you that on the undisputed evidence in the case you must find the one-half of this note belongs to the plaintiff. As to the other half of the note, we instruct you that if the weight of the evidence satisfies you that he made a gift of it to his wife at the time the note was made, it was hers.”
    The eighth point of the plaintiff, which the court reserved, and upon which it afterwards entered judgment for the plaintiff, was as follows:—
    That the note of $3487, being made payable to Abraham and Mary Rhodes — they being husband and wife — Abraham Rhodes the plaintiff, is entitled as survivor, by reason of the legal unity existing between husband and wife, to recover the whole amount of said note, and that the verdict must be for the plaintiff for the amount of that note.
    Verdict for the plaintiff and judgment thereon, to which defendant took this writ, assigning for error the answers to his points, the quoted portions of the charge, and the admission of testimony explanatory.of the conveyance to Campbell. There was no assignment of error in relation to the reserved point.

      S. S. Blair, for plaintiff in error.

      JE. M. Baldridge, for defendant in error.
    October 7th 1878.
   Mr. Justice Mbrcur

delivered the opinion of the court,

This was a feigned issue between Abraham Rhodes of the one part, and the executor of his deceased wife Mary of the other part. It was to try the right to certain money paid into court by Joseph Fichtner, on a note executed by him in 1872, to Abraham and Mary Rhodes. The contention involved an inquiry into the ownership of the property which was the consideration of this note. Evidence was given in relation to their business transactions, covering the whole period of their married lives. They were married in T834. Each party then owned property of the value of a few hundred dollars.

Although numerous errors are assigned, they may all be considered together. The uncontradicted evidence shows the note of Fichtner in contention was given in consideration of other notes against Fichtner, payable to Abraham Rhodes alone, and some money loaned by Abraham to Fichtner at the time the last note was executed. One of the notes was for $2887, and the money, for which this note was given, was obtained by Abraham from one Shaw, on a sale to him in 1872 of a farm, the title to which had been in Abraham from 1864.

The appellant attempted to prove the wife was entitled to a portion of the money paid by Fichtner in two ways. The one by showing her previous ownership of property; the other by the conduct of the parties when the last note was executed.

In support of the first view’, it was shown that in 1834 Abraham and his wife united in giving a receipt for a legacy due to her of about $400; but there was no evidence that she took the money into her possession. At that time the law gave the personal property of the wife to the husband. It was not shown that she had the possession or control of this money at any time thereafter. There vras no proof that she loaned it to him, or that he promised to repay it. There was no understanding that he should invest it for her, and no evidence that he ever did so. He appears to have mingled it with his other funds and treated it as his own property -

It is true, in 1852, he conveyed some lands to her, and this land is claimed by the appellant to be the foundation of her title to the money in controversy. The uncontradicted evidence is, that he made this conveyance to her at a time when he was sick and expected to die; that she neither paid, nor was expected to pay, anything therefor. They had no children, and the deed was made with the supposed view of avoiding a collateral inheritance tax.

The conveyance of the land to Campbell, in consideration of his agreement to support Abraham and wife, and the reconveyance thereof, and the subsequent conveyances to Crissman and Sissler were not accompanied by any agreement between Abraham and his wife, or by declarations of either of them, indicating that she had any equitable interest therein as against him. The fact that when Sissler conveyed the land to Abraham, on the 23d February 1864, the wife of the latter united with him in the mortgage given to secure the payment of a part of the purchase-money, creates no legal presumption that the land was purchased with her funds or on her credit. The title thereto was made to him alone, and remained in him until he conveyed to Shaw, more than eight years thereafter. There is not a particle of evidence tending to show that she had any estate in the land during the intervening time. He was therefore entitled to receive in his own right the whole purchase-money paid by Shaw. Having so received it, the money was his exclusive property. The court was therefore right in saying Mrs. Rhodes had no right to any portion of it.

The other question requires us to consider the acts and declarations of the parties at the time the last note was executed by Fichtner. The former notes and the money, which were the consideration for this note, were the property of Abraham alone. He suggested to Fichtner that they should all be put into one note. After it was so agreed, Mrs. Rhodes said to Fichtner “ I want the new note in my name.” He replied that he could not so make it unless her husband assented, and then informed him of her request. Abraham “said that the money was his, and that he wanted the note in his name, as it was before.” They failed, that day, to agree on the form of the note. On the next day Mrs. Rhodes again expressed a desire to have the new note made payable to her; but as Fichtner swears, Abraham “again told me that he would not have the note in any other way but what it was in his name. Mrs. Rhodes was by.” After talking awhile to them, Fichtner proposed to make the note to them jointly. To this Mrs. Rhodes made no reply; but Abraham, in rather an angry tone said, “I don’t care how the note is made; but the money is mine.” Fichtner then drew the note payable to both of them.

Thus it appears, he clearly asserted his exclusive right of property, and an unwillingness to relinquish the same'or any evidence thereof. She did not deny his right nor assert any claim in opposition thereto. Apparently as a favor, she requested that the note be made payable to her. At the suggestion of the maker, and to him, he reluctantly expressed an indifference as to the form of the note. Yet, to avoid any seeming waiver of his rights, he added: “but the money is mine.” These were his last words in relation to the execution of the note. In view of all this evidence, we cannot see that the appellant has any cause of complaint against the court for having submitted to the jury to find whether he made a gift of one-half of the note to her at the time of its execution. The jury found he did not. This finding disposed of the whole case, and the question reserved became irrelevant. It is therefore not necessary for us to now consider it.

Judgment affirmed.


text:
    Pennsylvania Railroad Co. versus Fries.
    1. Negligence is the absence of care according to the circumstances, and where the circumstances are unusual or an accident occurs, which could not reasonably have been anticipated, common carriers are not bound to make extraordinary provision therefor, and are not responsible for a loss thereby occasioned.
    2. Where the evidence is insufficient to show negligence, it should not be submitted to the jury.
    May 29th 1878.
    Before Askew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Blair county: Of May Term 1878, No. 149.
    Case by Thomas Fries against the Pennsylvania Railroad Company, to recover the value of certain household goods, which were burned in the cars of the company "while in transit on its road.
    When the goods were shipped, the plaintiff gave the company a release as follows: “That the said company shall be and hereby is fully released and discharged from all liability for loss, damage, delay, or otherwise whatsoever to said articles, and it is agreed that no claim or demand whatsoever, shall be made, under any circumstances whatever, on the said company, for or by reason of any damage, loss or delay, and that all such risks are assumed by the shipper.”
    The other material facts are stated in the opinion of this court.
    The defendants asked the court below, Dean, P. J., to instruct the jury that there was no evidence of negligence on their part, which the court refused to do, and submitted the question of negligence on all the facts of the case. The verdict was for plaintiff, and the defendants then took this writ and assigned this action of the court for error.

      I). J. Neff and L. W. Nall, for plaintiffs in error.
    The special contract relieved the company from all liability, unless through negligence, and the burthen was on the shipper, to show such negligence by satisfactory proof. There was no evidence of a want of ordinary care, and there was no evidence from which the jury had a right to infer negligence. What given state of facts constitute negligence is not for the jury, but is a question of law: Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Balt. & Potomac Railroad Co. v. Jones, The Reporter, vol. 5, p. 129; Central Railroad Co. of New Jersey v. Feller, 3 Norris 226. It was error to submit a question to the jury about which there was not sufficient evidence: Sartwell v. Wilcox, 8 Harris 117; Tower v. Clement 1 Casey 63; Silveus’s Exrs. v. Porter, 24 P. F. Smith 448; Adams Express Co. v. Sharpless & Sons, 27 Id. 516. The occasion of the loss was an extraordinary and inevitable accident, which could not be foreseen or provided against, and the company is not responsible: Pittsburgh, Fort Wayne & Chicago Railway Co. v. Grilleland, 6 P. F. Smith 445.

      Alexander §■ Nerr and Samuel S. Blair, for defendant in error.
    June 17th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The assignments of error in this case are so framed that their affirmance would have withdrawn the case from the jury. They were intended to have that effect. They all bear upon the question whether the company were guilty of such negligence as to make them responsible for the loss of plaintiff’s property. The defendants in their seventh point (sixth assignment), asked the court to instruct the jury that upon the whole evidence in the case the defendants were entitled to a verdict. The court declined the instruction prayed for and allowed the jury to pass upon the question of negligence. The jury having found the negligence, the defendants would be concluded if there was sufficient evidence to submit to them. This is the question we are now called upon to determine.

The facts of the case are exceptional in their character. On the 19th of May 1875 the plaintiff below shipped three car loads of goods from Altoona to Houtzdale. The cars arrived at Osceola, a point on the Tyrone and Clearfield Railroad, at half past eleven o’clock on the morning of May 20th. As the train over the branch road to Houtzdale did not leave until the afternoon, the cars were run on the siding, where it was usual to place the freight for Houtzdale, preparatory to being drawn by another locomotive over the Moshannon Branch Railroad to that point. For several days previous to this a. fire had been burning in the woods in the vicinity of Osceola, but it had been so far subdued that no especial anxiety was felt by the citizens of the town for its safety. Between 12 o’clock noon, and 1 P. M. of that day a high wind sprang up which increased rapidly to a tornado, and drove the fire towards the town. It soon reached the outskirts and spread with such rapidity that all efforts to check it were fruitless. In about two hours the town was practically destroyed, some three hundred houses having been consumed by the flames. The property of the citizens was nearly all burned ; very few saved anything, and many had .to fly for their lives. The railroad company lost nearly all their property, including the depot and a large number of cars. The three cars of the plaintiff were burned upon the siding where they had been placed. An effort was made by the employees of the company to get these cars out, but it was not successful. The heat and smoke prevented the men from coupling them. The attempt to do so was accompanied with no inconsiderable amount of danger, as the density of the smoke made it difficult to see the locomotive backing in and out.

It is very clear that the company were not responsible for the fire. The high wind by which it was carried into the town was the. act of God. The cars Avere placed on the siding where it was customary to place cars destined for Houtzdale. That the switch was contiguous to large piles of lumber was not material. The cars were placed on the sAvitch in the usual and proper course of business. The company had no reason to apprehend loss from that cause. The only point seriously pressed was that the company were guilty of negligence in not getting the cars off after the fire commenced. Upon this point there Avas at most but a scintilla of proof. Negligence is the absence of care according to the circumstances. The circumstances here, as has already been said, were unusual. The company were not bound to have an extraordinary force on hand, for they had no reason to anticipate such a disaster. It is too much to expect every man to act with coolness and judgment in the midst of such an appalling scene. It is clear, however, that the employees of the company did all that could be reasonably expected of them to save life and property. A portion of their time was employed in aiding women and children to escape. A large number were taken in the cars to a place of safety. Had they turned their entire attention to plaintiff’s property, neglected all other duties, and left helpless women and children to their fate, it is just possible they might have succeeded in getting the three cars off the siding. They were not obliged, however, to sacrifice every feeling of humanity to the preservation of plaintiff’s property; and had they done so the evidence does not show that it would have been successful. Had the company preserved its own property at the expense of plaintiff’s, there would have been more reason to charge them with negligence.

The release which the plaintiffs below gave the company relieved the latter from all liability except for negligence. Of this there was not sufficient evidence to have submitted to the jury, and they should have had a binding instruction to find for the defendants.

Judgment reversed.