text:
    The Williamsport Water Company versus The Lycoming Gas and Water Company.
    When the W. Water Company was incorporated'the west line of the borough of W. had been fixed, by the Act of 1853 as L. street. In 1862, the borough was enlarged and S. street made the west line. By the Act of 1865, the L. Gas and Wafcer Company was incorporated to supply “ the inhabitants residing within the limits of the plot or territory here described, and parts adjacent thereto, a sufficient supply of pure water,” á part of which territory is bounded by certain lines, the one on the east being the western boundary line of the borough of W., as established in 1853, and the other portions being certain outlying villages and vicinity. The act contained a proviso that the said company shall not extend their pipes into the parts of streets in said borough in which the W. company had laid their pipes previously to the passage of the bill. The L. company was proceeding to lay its pipes into the portion of the borough lying east of L. street, contending that they were authorised to do so by the terms of their charter which allowed them to supply the inhabitants within the limits described in their charter “and parts adjacent thereto,” as well as by the terms of the proviso. In proceedings to restrain them the court sustained the contention of the L. company: Held, that this was error ; that the Act of 1865 vested no right in the L. company to supply water to the inhabitants of that portion of the borough which lies east of L. street; that this territory was covered 'by the charter of the W. company, and it was clear that the legislature intended to confer rights in the charter of the L. company exclusive of interference with, or abridgment of the grants previously made.
    May 31st 1880.
    Before Sharswood, C. J.,Mercur, Gordon, Trunkey, Sterrext and Green, JJ. Paxson, J., absent.
    Appeal from the decree of the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 174. In Equity.
    Bill in equity filed by the Williamsport Water Company against the Lycoming Gas and. Water Company.

      The bill of the plaintiff set forth that said company was incorporated by Act of Assembly approved April 18th 1853, for the purpose of introducing water into the borough of Williamsport; and that the defendant was infringing the chartered rights of the plaintiff by laying pipes with the view of furnishing water within the limits of Williamsport; and praying that she may be restrained from so doing, &c.
    Defendant answered, denying any infringement of the chartered rights of the'plaintiff, and alleging that she was a corporation duly incorporated by Act of Assembly approved March 24th 3 865; and all the acts done by her, complained of by the plaintiff’s bill, and all she intends to do, are within the powers granted to her by said act of incorporation; and that she has done nothing, and intends to do nothing, in violation of the chartered rights of the plaintiff.
    The case was referred to a master, Henry W. Watson, Esq., who found the facts substantially as follows: That the plaintiff was organized on the 30th day of August 1856, and in pursuance of the provisions of its charter proceeded to purchase real estate, erect dams, construct reservoirs and lay water pipes in the borough of Williamsport; and that it was authorized by its charter to introduce water into said borough and lay -the necessary pipes therefor; that at and prior to the time of the incorporation of said company, the western line of the borough of Williamsport was Locust street; that by a borough ordinance of March 24th 1862, the borough was extended in a westerly direction to the Grier line, or Susquehanna street, and along said line to the south side of West Fourth street; thence easterly along the south side of West Fourth street to Park street; thence south along Park street, on line of Reading, Fisher & Co.’s land, to the Susquehanna river. No streets were at that time laid out west of said line ; that prior to March 24th 1865, the Williamsport AVater Company laid water pipes west of Locust street (the western boundary of the borough when the company was incorporated) on several streets to a distance on each street of about seven hundred feet; that the Lycoming Gas and Water Company, was incorporated by an Act of Assembly approved the 24th day of March 1865.
    The seventh section of said act provides as follows:
    “ Section 7. That the said company shall have power to provide, erect and maintain all works and machinery, or engines, necessary( or proper for making, raising and introducing, for the purpose of* supplying the inhabitants residing within the limits of the plot or territory here described, and parts adjacent thereto, a sufficient supply of gas and pure water; the boundaries of the plot or territory described as follows: On the east by the western boundary line of the borough of Williamsport as established prior to the year 1853, on the north by a line formed by extending the northern boundary line of said borough west to Lycoming creek, in a southerly direction, the junction of the said creek with the West Branch of Susquehanna river; thence east along the'bank of said river to the western boundary line of the borough of Williamsport aforesaid, with privilege of introducing the gas and water to supply the inhabitants of the village of Newberry,'Jaysburg and vicinity ; and the company are hereby authorized and empowered to enter upon, take and hold for the purposes of this act, to them and their successors and'assigns, in fee simple, or for any less estate, so much of the waters of any stream within three miles of the mouth of Lycoming creek, or any lands, tenements, or hereditaments to which the water of said stream may be appurtenant, or any real or personal estate, or property which shall be necessary to them, in the prosecution of their works: Provided, The same shall not exceed twenty-five acres, making compensation for the same' as hereinafter provided: Provided further, That the said company shall not extend their pipes into those parts of streets in said borpugh in which the Williamsport Gas or Water Company hare laid their pipes previously to the passage of this bill.” ” - -
    The master found that the said Lycoming Gas and Water Company have laid pipes east of the western line of the borough of Williamsport, as established prior to 1853, and have been and are now supplying the inhabitants with water; that the Williamsport Water Company have not extended their pipes into all of the streets of the borough of Williamsport as it existed in 1853; that a number of the citizens, in order to obtain water by an extension of pipes, were compelled to subscribe for stock of the company and guarantee to the company an income of from 6 to 10 per cent, on the cost of said extension or extensions; that the Lycoming Gas and Water Company furnished water to residents who had previously applied to the Williamsport Water Company, but had not succeeded in procuring water from that company.
    Upon this finding of the facts the master came to the legal conclusion “ that the Williamsport Water Company had the exclusive right to lay pipes and supply water to- the residents of the territory east of the western boundary of the borough as it existed prior to 1853, until the legislature shall have given to some other company the right to lay pipes and supply water in the same territory.
    “ That the Lycoming Gas and Water'Company are not authorized by their charter to lay pipes or supply water to the residents of that part of the city embraced in the borough limits prior to 1853, nor ‘ to extend their pipes into those parts of streets in said borough (meaning the borough as it existed in March 1865) in which the Williamsport Gas or Water Company have laid their pipes previously to the passage of the bill.’ The words ‘part adjacent thereto’ are of so doubtful a meaning that the master can construe them in no other way than that they refer to residents or inhabitants of the township or townships adjacent to the territory described in the Act of March 1865. That the legislature intended by the use of these words to confer the right upon the Lycoming Gas and Water Company to lay pipes in the territory covered by the charter of the Williamsport Water Company cannot be inferred from the wording of the act; on the other hand, the intention of the legislature seems to the master to be in direct conflict with the granting of such a power. ”
    The master, therefore, recommended that a perpetual injunction be decreed against the said Lycoming Gas and Water Company, to restrain them from laying water pipes in or through any of the avenues, streets, lanes or alleys of the city of Williamsport east of the western line of the borough of Williamsport as established prior to the year 1853, and from extending pipes into those parts of the streets of the borough (now city) of Williamsport as constituted or bounded prior to the 24th day of March 1865, in which the Williamsport Water Company had previously laid their pipes, and from supplying with water any of the residents, &c., within said territory.
    •The defendants filed exceptions to the report of the master, both in regard to his findings of' fact and conclusions of law. The court, Mayer, P. J., in ruling upon the exceptions, inter alia, said : “ The principal question involved in the controversy between the plaintiff and defendant, and upon the proper determination of which the rights of the parties litigant depend, is the correct construction to be placed upon the charter of the defendant, and what powers are they authorized to exercise under the provisions of their said charter ?
    “This controversy grows out of the interpretation to be placed-upon the seventh section of the act of incorporation.
    “The defendants claim that the words ‘parts adjacent thereto’ in said section confer upon them the right to introduce water into any portion of the territory of the borough of Williamsport, except in those streets of said borough which had been previously occupied by the Williamsport Water Company in the laying of their pipes. That they are restricted by the terms of the proviso from infringing upon the rights of the plaintiffs in such streets.
    “ The master decided that the words ‘ parts adjacent thereto’ are of so doubtful a meaning that he construes them to refer to residents or inhabitants of the township or townships adjacent to the territory described in the Act of March 1865. He based his conclusion upon that rule of construction which declares that no corporate privileges are granted unless they are expressed in plain and unequivocal words, testifying the intention of the legislature" in a manner too plain to be misunderstood. We are not disposed to controvert this rule, as it has received the sanction of the Supreme Court of the state and has been asserted by it a number of times. But there are other rules of construction that are as well settled and as well sustained by authority. One, of these rules is that'in the construction of a statute effetet is to be given, if possible, to every clause and section of it. ‘ Statutes are to be interpreted so as to give effect to all the words therein, if such interpretation be reasonable and be neither repugnant to the provisions nor inconsistent with the objects of the statute.’ United States v. Bassell, 2 St. 389.
    “ Another of these rules is that in construing a statute creating a private corporation, the whole statute must be taken together and such construction given that the true intention may be effectuated. In ascertaining the meaning of the words employed in the seventh section, ‘parts adjacent thereto,’ and placing the proper construction upon them, aided by these rules of-construction, we must take into consideration what is contained in the proviso, as well as in the body of said seventh section. As was salid by Justice Woodward, in Dugan v. Bridge Company, 3 Casey 309, ‘in measuring corporate rights we are to look at all the 'terms employed in the fundamental law or compact. We can no more cut out some of them or mitigate their legal effect because they are in a proviso, than we could qualify the terms of a private agreement because found in one part of the instrument instead of another. The whole instrument is to be taken together as expressing the final intentions and purposes of the parties.’ ‘ The office of a proviso, generally, is either to except something from the enacting clause or to qualify or restrain its generality, or to exclude some possible ground in its misinterpretation of its extending to cases not intended to be brought within its purview:’ Winis v. United States, 15 Pet. 423.
    “In endeavoring to ascertain what the legislature meant by the use of the words ‘ parts adjacent thereto’ in the said seventh section, we must construe the whole section together, what is contained in the proviso as well as what is expressed in other parts of it. Adopting this rule of construction, we think that the true intention and meaning of the section can be determined. The borough of Williamsport, lying east of the boundary line as established prior to 1853, was just as much ‘ adjacent’ to the territory described in the charter of the Lycoming Gas and Water Company as was the township or townships which the master finds to be included under the description of ‘parts adjacent thereto,’ and that the corporate rights of the Williamsport Water Company might not be infringed upon by the rival company entering such adjacent territory, the prohibition in the proviso was inserted to protect said Williamsport Water Company in the enjoyment of their chartered rights to the extent that they had exercised them, viz. •: by the occupancy of the streets in the said borough in the laying of their pipes; and that it was the intention of the legislature to confer this right upon the Lycoming Gas and Water Company, to enter upon the territory of the Williamsport Water Company, may be inferred from the fact that the latter' company was incorporated-in 1853, was organized in 1856, and up to 1865 had not occupied all the streets in said borough, and had not supplied the residents upon said streets with water. The master was, therefore, in error in concluding as a matter of law that the Lycoming Gas and Water Company are prohibited, by their charter, from entering into the limits of that part of the city embraced in the borough limits as established prior to 1853. As we have already indicated, the master should have decided that the said company was authorized to lay their pipes in those streets of the said borough where the said Williamsport Water Company had not laid their pipes previously to March 24th 1865.
    “ Let an order for an injunction be prepared in accordance with this opinion and under the equity rule.”
    The court made the following decree :
    “That the Lycoming Gas and Water'Company, their officers, agents, servants and employees be, and they are hereby restrained, from laying their water pipes in or through any of the streets, lanes or alleys of the city of Williamsport east of the western line of the borough of Williamsport, as established prior to the year 1853, where the said Williamsport Water Company had laid their pipes prior to the 24th day of -March 1865, and from supplying with water any person or persons within the limits of said territory, who have been heretofore or can be hereafter supplied with water from the pipes laid by said Williamsport Water Company prior to March 24th 1865 ; and from introducing water into any pipe or pipes that may have been laid by the said defendants in any of the streets, lanes or alleys of said territory in which the Williamsport Water Company had laid their pipes prior to March 24tli 1865.
    “ And that the costs of this proceeding be paid by the said ‘ The Lycoming Gas and Water Company.’ ”
    From this decree this appeal was taken by the plaintiff, which alleged that the court erred in the foregoing decree, and that the decree was inadequate and insufficient; that they did not decree that the Williamsport Water Company had the exclusive right as against the defendants to lay pipes and supply water to the residents of the territory of the borough of Williamsport east of the western boundary of said borough as it existed prior to 1853 ; and in that they d'id not decree and enjoin, that the Lycoming Gas and Water Company were not authorized by their charter, to lay pipes or supply water to the residents of that part of the city embraced in the borough limits prior to 1853, nor to extend their pipes into said borough east of the western boundary line thereof as established prior to the year 1853, nor to extend their pipes into such parts of streets west of said boundary line as the Williamsport Water Company have laid their pipes previously to March 24th 1865.

      J. T. Fredericks and Wm. H. Armstrong, for appellant.
    It is clear that the defendant company have no .rights east of Locust street unless they 'be in the second proviso in sect. 7, or are contained in the words “ adjacent thereto.” The fair interpretation of the proviso is that it was prohibitory of’the right of the defendant company to extend their pipes into those parts of the streets of the borough within the defined territory of their charter, but into which the plaintiff company had already extended its pipes. To attempt to extend the express grant of the charter beyond its clearly defined limits is to invade the equally indisputable limits of another and older company. All grants to corporate bodies must be strictly construed: Pennsylvania Railroad Co. v. Canal Commissioners, 9 Harris 22; Kerr on Injunctions 542; Packer v. Sunbury and Erie Railroad Co., 7 Harris 216. It is clear the power claimed is not within the express grant, and if it exists can be derived only by implication.' Where an injunction is sought by a company having admitted rights against one claiming to act under a subsequent charter, it is for the company claiming such adverse rights to show their power clear of all doubts, or they will be restrained.
    The words “ adjacent thereto” apply only-to such inhabitants as reside in parts adjacent to the defendant’s territory not included within the charter limits of the plaintiff. The construction contended for by defendant would in part nullify the charter of the plaintiff. Under such a construction the defendant would have no territorial boundary and could invade every street in which the plaintiff had not laid pipes in the old borough limits. In every legislative grant it is implied that it is not to injure others: Commonwealth v. Pennsylvania Canal. Co., 16 P. F. Smith 42; Pittsburgh and Connellsville Railroad Co. v. Southwest Pennsylvania Railway Co., 27 Id. 186.

      B. S. Bentley, Jr., and J. O. Parker, for appellee.
    The plaintiff had not the exclusive right within the old borough limits. The legislature had the power to charter a second company within the same limits. All the provisions of the charter must be construed together. We rely upon the express words of the charter in the earlier and affirmative portion of the section, granting to the company the right tó lay pipe and furnish water in a certain specified territory and in “ parts adjacent thereto and then, if any doubt could remain as to what is intended by the words “parts adjacent thereto,” we turn to the proviso as giving full interpretation of the meaning of the legislature; “ * * * said company shall not extend their pipes into those parts of streets in said borough in which the Williamsport Water Company-have laid their pipes previously to the passage of this bill.” The sole purpose of the proviso is to protect the Williamsport Water Company where she has exercised her rights within her specific territory. Manifestly the proviso has no meaning otherwise. The Lycoming Gas and Water Company is not permitted to lay pipe “ in those parts of streets in said borough.” What borough? Why, necessarily, the borough which has been referred to previously in the same section, the borough “as established prior to the year 1858.”
    June 22d 1880.
    While it is true that the charter of a private corporation is to be strictly construed against the corporation, it is to be liberally construed in favor of the public. Applying this principle to the case at bar, is it not manifest that the best interests of the citizens of Williamsport demanded in 1869, as they demand now, the construction which the court below gives to the charter of the defendant ?
   Mr. Justice Trunkey

delivered the opinion of the court,

When the Williamsport Water Company was incorporated the west line of the borough had been fixed by the Act of April 14th 1853, on which line is Locust street. In 1862 the borough was enlarged, and the location of Susquehanna street was made the west line. Prior to March 24th 1865, the plaintiff had laid water pipes on some of the streets in the borough west of Locust street.

By Act of March 24th 1865, the Lycoming Gas and Water Company was incorporated, with power to provide the means and supply “ the inhabitants residing within the limits of the plot or territory here described, and parts adjacent thereto, a sufficient supply of gas and pure water,” a part of which territory is bounded by certain lines, the one on the east being the western boundary line of the borough of Williamsport, as established prior to 1853 ; and the other part being “the villages of Newberry, Jaysburg and vicinity :” Provided, “ That the said company shall not extend their pipes into those parts of streets in said borough in which the Williamsport Gas and Water Company have laid their pipes prer viously to the passage of this bill. Provided, also, That the company shall not take water from the stream occupied or taken by the Williamsport Water Company, or Lycoming creek and tributaries.” A large territory is embraced in the description, which includes two villages of indefinite extent and all that part of the borough west of Locust street, in some of the streets of which the Williams-port Water Company had laid pipes. Here is a grant of right to supply water in all the territory of the borough and much outside, which was not within the borough lines as established at the time of the grant to the plaintiff, with two provisoes prohibiting interference with property of the latter. Not a word or clause gives authority to defendant to go within the limits of the borough as they existed in 1853, and it has none, unless it be implied in the phrase “parts adjacent.” There is no line of division east of Locust street, and, if the defendant can go beyond it at all, the court was right in deciding, and accordingly decreeing, “ that the said company was authorized to lay their pipes in those streets of the said borough where the said Williamsport Water Company had not laid their pipes, previously to March 24th 1865.”

All parties agree as to the application of two cardinal rules of construction, 1. That no corporate privileges are granted unless they are expressed in plain and unequivocal words, or by necessary implication; 2. That a statute is to be interpreted so as to give effect to all the words therein, if such interpretation be reasonable, and be neither repugnant to its provisions nor inconsistent with its objects; giving effect, if possible, to every clause and section of it. Manifestly, the main object in the defendant’s charter is provision for a supply of water and gas to the inhabitants in the territory described. West of the portion included in the certain bounds are two villages as uncertain in extent as their future growth, and here effect may be given to the words “parts adjacent,” though a similar meaning must be given to the word vicinity. Whether they are empty words with respect to all the designated landmarks, is not a point in the case; but the question is whether they embrace the territory of another corporation which is only mentioned in defendant’s charter to exclude inference that the defendant may, take any of its property. If it was the intention to give the defendant a right to supply water in all unoccupied parts of the borough, a very few words would have covered the ground,and reserved to the plaintiff its pipes previously laid. Nothing could be more absurd than to define a line of division, if it was not the intendment to make one. Such line is sharply defined in the seventh section, and the grant is clearly expressed, with a proviso that the pipes of the plaintiff then laid shall not be disturbed. That proviso plainly relates to the grant; the grant was within a certain limit which included the new part of the borough, and its generality is restrained by the proviso excluding the parts of streets already occupied by the older company. The whole instrument must be taken together, the affirmative grant and negative proviso — one gives, the other withholds — the office of the one is to except out a part of what is embraced in the general terms of the other. The word borough in the proviso is defined by the context and limited to the part within the grant; to give it its ordinary meaning would be inconsistent with the object of the statute and also repugnant to the express provisions bounding the territory of the defendant.

It is contended on behalf of defendant, that the intendment of its charter is to vest the right to lay pipes and furnish water to the inhabitants of that part of the old borough lying between Hepburn and Locust streets, because of the plaintiff’s bad treatment of said ithabitants. If this be doubtful, the doubt is certain against the right. Neither master nor court found a limit at Hepburn street, and it is a mistake to say that either the opinion of the court or decree stops there. Starting on the premise that the words “ parts adjacent” give the defendant a'right to cross the west line of the borough as it existed in 1853, the conclusion of the learned judge is logical and inevitable, that the east line of the borough is the limit; and if that be repugnant to the obvious sense of the statute, the error is in the premise and not in the reasoning. It may be that it would have been wise and beneficial to the inhabitants to have placed the district between Hepburn and Locust streets within the grant to the new company, but the legislature was not convinced of that, for had they been, Hepburn street would have been made the dividing line instead of Locust.

We are of opinion that the statute vests no right in defendant to provide means and supply water to the inhabitants of the territory which constituted the borough of Williamsport in 1853, and which lies east of the western boundary of the borough as established prior to said date. That. territory is covered by the plaintiff’s charter, and it is clear that the legislature intended to cpnfer rights in the defendant’s charter, exclusive of interference with, or abridgment of, the grants previously made.

This action was commenced in 1869, and the bill charges that the defendant has done and intends to do acts without authority of law, and in violation of the plaintiff’s chartered rights. It was sufficient notice to defendant that if it exceeded its authority, to the plaintiff’s injury, it would be at its peril. Either party could have urged the cause to an earlier hearing, and the delay is as little benefit or prejudice to the one as the other. A preliminary injunction settles no question of right, and when not necessary for the preservation of property, pending the suit, the plaintiff may well await final decision. That the plaintiff may have violated its charter in trespassing on territory of defendant, is not a question in this issue, nor is the act of such nature as defeats its right to demand redress for the alleged injuries. These parties are corporations, with no other rights than is granted by their respective charters, with no privity, or contract relations, between them, and either may demand protection in what the statute gives, without denial, because of the maxim that, who does iniquity shall not have equity.

This cause having been argued by counsel, upon consideration thereof, the decree is reversed; and it is now adjudged, ordered and decreed:

1. That the Lycoming Gas and Water Company, their successors, officers, agents and servants be, and hereby are enjoined from laying water pipes in any part of the city of Williamsport east of the western line of the borough of Williamsport, as established prior to the year 1853; and also from'extending their pipes into those parts of the streets in said borough, now city, west of said line, in which the Williamsport Water Company had laid their pipes, previously to March 24th 1865.
2. That said company defendant, their successors, officers and employees, be and are enjoined from supplying any place, or any person or persons, or any association, or any corporation, in the territory east of the said western line of the borough, as described in the preceding paragraph, with water, from and after the 1st day of October A. D. 1880.
3. That the costs, including costs of appeal, be paid by defendant.
4. That the record be remitted for the execution of this decree.


source: Caselaw Access Project

author: Mr. Justice Green

license: Public Domain

text:
    Girard Fire and Marine Insurance Company versus Hebard & Forsman.
    1. A policy of insurance required that before the property covered by the policy should be transferred or conveyed or the policy assigned, the consent of the company endorsed thereon in writing should be obtained: Held, that if said condition was not complied with the policy fell. A mere notice of the transfer was not sufficient, nor was it necessary for the company to give notice of its disapproval.
    2. The court below held that upon receiving notice of the assignment the company had the right to disapprove it and declare the policy forfeited, and if they did this it was their duty to notify the insui’ed of their action in this respect, and further that if the company failed to give notice to the insured of their disapproval of the transfer and of cancelling the policy these omissions were evidence of waiver of the condition of the policy : Held, to be error.

      3. A waiver to be effective must be intentional, and such intention cannot be predicated upon acts such as a refusal tq consent to the transfer, and an immediate notice of said refusal to the persons from whom the application for consent was received. '
    4. A clause in a policy provided, “ or if the property be sold or transferx-ed or any change takes place in the title or possession, * * * by voluntary transfer or conveyance, * * * or if the interest of the insured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated,” &e.: Held, that the. word “ property” applied both to real and personal property.
    May 31st 1880.
    Before Sharswood, C..J., Mercur, Gordon, Trunkey, Sterrett and Green, JJ. - Paxson, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1880, No. 133.
    Assumpsit by Charles Hebard, Robert M. Forsman and Dexter Smith, trading as Hebard, Forsman & Smith, for the use of Charles Hebard and Dexter Smith, trading as Hebard & Smith, against the Girard Eire and Marine Insurance Company upon a policy of insurance.
    The defendant pleaded non assumpsit, payment, payment with leave and set off.
    The facts set forth in the opinion of this court, together with the following points and portions of the charge, sufficiently state the case.
    The plaintiffs submitted the following points, to which are subjoined the answers of the court, Cummin, P. J.:
    2. That even if such an assignment and the consent or ratification of the company thereto were necessary under the terms of the policy, it is a question of fact for the jury, under all the evidence in the cause, whether or not the company after notice of the change in the ownership of the property, waived that condition in the policy; and if they did so waive it, said change of ownership is no défence in this action.
    Ans. “ This point we answer in the affirmative. We think that is the law, and it is for you to decide that question.” (Sixth assignment of error.)
    4. That the acts of the company in not objecting to the change of ownership, and failing to give any notice of disapproval of the same, and the marking of the policy cancelled and not making any objection in the letters given in evidence to the carrying of the risk on account of the change in the ownership, are evidences of a waiver in the conditions of the policy.
    Ans. “ We say that these are matters for your consideration. The point we therefore affirm. What weight' they are to have is for you to determine.” (Seventh assignment.)
    5. That the failure of the company to respond to the letter of May 9th 1876, notifying them of the loss, was prejudicial to the interests of the insured, unless the policy is valid, and is a proper circumstance to be considered by the jury.
    Ans. “ This point, like the one preceding, is a matter for your consideration. What weight it shall have is for you to determine.” (Eighth assignment.)
    The defendant requested the court to charge “that upon the whole of the evidence the plaintiffs are not entitled to,recover,” which the court refused. (Eifth assignment.)
    In the general charge the court, inter alia, said:
    “ It became necessary, therefore, under the terms of this contract, that the company insurers should have notice of this change in the ownership of the property insured, that they might say whether or not they would consent to continue this policy to the benefit of the new firm. To this'end the assignment was endorsed upon the policy, and it was sent to the company. When they received this policy and had knowledge of the acts and desires of the insured, it was their duty then to act upon it, and we think under these clauses of the policy that they could, if they chose, have declared the policy forfeited and void. They could have refused to approve the assignment, and for that reason could have declared it void and forfeited. The matter was one for them to act upon. If they had approved the 'assignment it cannot be doubted that the plaintiffs would be entitled to recover. Did they disapprove of it, or did they declare .the'policy forfeited and void for any cause ? If they did, it was their duty to notify the insured of their election in this respect. This, perhaps, may be the first question that you will have to consider. Now, nothing of this kind appears to be in the endorsement upon the policy. There is no mark here of disapproval, nor is there any mark of its being declared forfeited or void. * * * Iff they have not done so, then the next question for you to consider will be whether or not they have waived their right to declare it forfeited. This is the next question which you will have to decide, and which, perhaps, is the main question in the cause, and will be probably more particularly stated by us when* we come to answer the points which have been submitted by counsel. We may here say, however, that we think the company could waive their right to declare this policy forfeited for the cause assigned. Whether they did or not waive this right will be for you to decide.
    “If you should find in the case thatjthe company did not disapprove of this assignment, and for that or any other reason declared the policy forfeited, and that they have by their acts or their words or their silence waived their rights in this respect, then the next matter for you to consider will be the question of cancellation.”
    The above portions of the charge, constituted the third and fourth assignments of error.
    The verdict was for the plaintiff for $2949.13, and after judgment thereon, the defendant took this writ and, inter alia, alleged that the court erred as set forth in the above assignments of error.

      W. H. Armstrong, for plaintiff in error.
    The company has the right to choose the parties with whom they will contract. ' The “moral risk” is one of great consequence, and one always most carefully considered. The transfer by Forsman dissolved the partnership, and Hebard & Smith were a new party, as distinct from the old as if they were entire strangers. It was not competent for these parties to impose upon the company without their consent, either new parties or a new contract or a modification of the old. The party insured had ceased to exist, and before their assignees could take their place the company must agree to accept them, and this by an affirmative act, which, by the terms of the contract, is to be evidenced in only one way — that is, in writing endorsed upon the policy and signed by the president or secretary. No mere silence or want of action can be substituted for this express provision of the contract. It was as to these parties the law of the case: Finley v. Lycoming Mutual Ins. Co., 6 Casey 311; Buckley v. Garrett, 11 Wright 204 ; Ins. Co. v. Ross, 23 Md. 179; Ferree v. Ins. Co., 17 P. F. Smith 373; Carpenter v. Ins. Co., 16 Pet. 496; Dix v. Ins. Co., 22 Ill. 272. The policy became void at the instant of the unauthorized assignment, and could not be revived by notice of any kind : Trask v. Ins. Co., 5 Casey 198; Ins. Co. v. Sennett, 1 Wright 208. A waiver must be intentional, and that must be shown clearly and satisfactorily either by acts or declarations : Desilver v. Ins. Co., 2 Wright 134.
    June 14th 1880.

      H. C. Parsons, H. W. Watson and H. C. McCormich, for defendants in error.
    The first condition of the policy, we contend, is applicable only to real estate. A mere change of interest among partners where no stranger is introduced, and no addition made to the number of the insured, when there is no change in the condition or situation of property or risk, a mere assignment of his interest by one partner to the other, is obviously not within the principle or motives on which the condition is provided: Pierce v. Nashua Fire Ins. Co., 50 N. H. 297 ; West v. Citizens’ Ins. Co., 27 Ohio 205. The decision in Finley v. Ins. Co., supra, was only intended to apply to members of mutual insurance companies, and should be so limited. In Buckley v. Garrett, supra, the risk insured was real property, and the case does not apply to personal property. But under the facts in this case the company is estopped from setting up this condition as a defence. The alleged breaches were waived by the acts and declarations of its agents. Waiver may be inferred from the acts of the insurer, or even from their denial of obligation exclusively for other reasons: Inland Ins. Co. v. Stauffer, 9 Casey 397. The conduct of the company misled the insured, and so operated as a waiver; May on Ins., sect. 508 ; State Ins. Co. of Missouri v. Todd, 2 Norris 272. The company was bound either to endorse consent upon the policy or cancel it, and failing to do either, it will be treated as having assented thereto : Wood on Ins., p. 838; Ins. Co. v. Taylor, 23 P. F. Smith 352; Hadley v. N. H. Ins. Co., 55 N. H. 110; Westlake v. St. Lawrence, &c., Ins. Co., 14 Barb. (N. Y.) 406; Dayton Ins. Co. v. Kelly, 24 Ohio St. Rep. 345.
   Mr. Justice Green

delivered the opinion of the court,

This was an action by Hebard, Foreman & Smith, for the use of Hebard & Smith, on a policy of fire insurance for $2500, issued June 1st 1875, to expire June 1st 1876. The subject of insurance was a stock of lumber, lath, shingles and pickets at Williamsport, Pennsylvania. On the 29th of April 1876, Forsman sold his interest in the firm to the other members, who thereafter composed the firm called Hebard & Smith. On the same day, the policy in suit was assigned by the old firm to the new, by writing of that date. The assignment was endorsed upon the policy which was then handed by Hebard to Thompson & Olinger, who had been agents of the company until March 1st 1876, to be sent to the company for the purpose of obtaining its consent to the assignment, and having the same endorsed upon the policy, and it was so sent on the same day, April 29th 1876. On May 1st 1876, the secretary of the company replied by the following letter:—

Philadelphia, May 1st 1876.

Messrs. Thompson & Olinger, Williamsport, Pa.

Gents: — Yours of the 29th ult. is at hand, enclosing policy No. 84,271, H., F. & Smith, for approval of transfer. We prefer to cancel policy, and will return the premium pro rata. Please signify your assent to this and I will send you a check for the amount.

Truly yours,

James B. Alvosrd Sec’y.

There was a reply to this letter from Thompson & Olinger which was lost and not given in evidence, and on May 8th 1876, the secretary sent by mail to Thompson & Olinger a check for the return premium $4.17, which was subsequently returned. The fire occurred on the 6th of May 1876, and notice thereof was sent to the company on the 9th. They took no notice of it and refused to pay the loss.

On the trial, the company made defence on the ground that two conditions of the policy had been broken, and that it had thereby become void. They are as follows :— -

Condition 1. “ If the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial'decree, or voluntary transfer .or» conveyance, or if this policy shall be assigned before a loss without the consent of the company endorsed hereon, * * * then and in every such case this policy shall be void.”

Condition 12. “ No assignment of this policy shall be valid unless notice thereof be immediately given the company, and said assignment be approved by the endorsement and approval of the president or secretary prior to any loss. The company reserves the right to approve the transfer or not.”

“And it is hereby mutually understood and agreed by and between this company and the assured that this policy is made and accepted in reference to the foregoing terms' and conditions * * * which are declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, * * * and that no condition, stipulation, covenant or clause hereinbefore contained, shall be altered, annulled or waived, nor any clause added to these presents except by writing endorsed hereon or annexed hereto by the president or secretary with their signatures affixed thereto.” There were printed blanks on the policy, one for expressing the consent of the company to the assignment of the policy, and another for the assignment itself. The latter was filled up and signed and constituted the assignment heretofore mentioned. The other was never filled out or signed at all. In point of fact, the company did not approve of, or consent to the assignment, and of course no such consent was endorsed upon the policy.

The court below held that upon receiving notice of the assignment, the company had the right to disapprove of it and declare the policy forfeited, and if they did this, it was their duty to notify the insured of their election in this respect.” They further held, in answer to the plaintiff’s fourth point, that if the company failed to give notice to the insured of their disapproval of the transfer and of cancelling the policy, these omissions were evidences of waiver of the conditions of the policy, and left the question of waiver on these grounds to the jury. In all this there was error. The express terms of the contract avoided the policy if either the property insured was transferred or the policy assigned, without the consent of the company endorsed upon the policy. It is not enough that notice of the transfer in the one case or the assignment in the other be given to the company. The contract requires that in addition to the notice, the consent of the company must be obtained and must be endorsed on the policy. The duty of procuring these things to be done rests with the assured. If he fails in his efforts or neglects to comply with the whole of the requirements, the contract is at an end by force of its own terms. The court below held that a right of forfeiture by a positive act accrued to the company after receiving notice, and that without such an act and notice of it to the insurer, the avoidance of the contract did not transpire. Rut such is not the agreement of the parties. In the present case there was no notice of the transfer of Eorsman’s interest in the firm other than as it was to be implied from the notice of the assignment of the policy. But that is not a sufficient compliance with the provisions of Condition 1. It is argued that the property referred to in the pertinent clause of Condition 1 is real estate. A reading of the whole text of this condition, as well as of this particular part of it, demonstrates beyond all question that in the use of the word property, it was intended to include any and all kinds of property, whether real or personal, which constituted the subject of insurance.' It is a printed condition, and we find it in a policy insuring personal estate. It would be equally applicable to a policy on buildings. The language is carefully framed so as to refer to property of either class. The portion of the clause in question is as follows : “ Or if the property be sold or transferred, or any change takes place in title or possession, whether by legal process or judicial decree or voluntary transfer or conveyance, * * * or if the interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated,” &c. The mere exhibition of the words is sufficient to show that the word property throughout is intended to refer to the property insured', whether it be real or personal. We hold that no proper notice of the transfer of Forsman’s interest in the property insured by the policy in suit was given to the company, and that the consent of the company was not obtained or endorsed on the policy, either to the transfer of Forsman’s interest or to the assignment of the policy, and hence the contract was at an end, and there was no right of recovery. No act of forfeiture by the company was necessary to accomplish this result, nor was the omission of such an act any evidence of waiver of its rights. A waiver, to be effective, must be intentional, and it would be impossible to predicate such a purpose of any act or omission of the defendant in this case. The positive act done was a refusal to consent, and an immediate notice of such refusal to the persons from whom the application for consent was received. To construe such an act, and the omission to do something further which the contract did not require, into a voluntary waiver of the contract rights of the company, would be a perversion of justice. The principles controlling this case have been so frequently announced by this court, that an extended citation or review of the authorities is entirely unnecessary. The following amongst others are quite conclusive : Finley v. Lycoming Mutual Ins. Co., 6 Casey 311; Buckley v. Garrett, 11 Wright 204; Ferree v. Ins. Co., 17 P. F. Smith 373; Carpenter v. Ins. Co., 16 Pet. 496; Trask v. Ins. Co., 5 Casey 198; Desilver v. Ins. Co., 2 Wright 134. The third, fourth, fifth, sixth, seventh and eighth errors are sustained.

Judgment reversed.


author: Mr. Justice Sterrett

text:
    Jamison versus Dimock et ux.
    1. H., by a parol contract in 1874, sold a building lot to D., and agreed to a h°us0 thereon, and when completed give her possession and convey pr-'p-rfy †- lr~r for §6000. The purchase-money was fully paid in advanee, and,,upon the completion of the house exclusive possession thereof given in 1875, and retained thereafter. By a deed dated and recorded in 1877 II. and his wife conveyed the property to B., who gave a mortgage for unpaid purchase-money. A scire facias issued thereon, judgment was obtained and the property sold at sheriff’s sale, in 1879, to J., who brought ejectment against D.: Held, that such a parol sale for a money consideration, fully paid according to the contract and possession taken, and continuously held in pursuance thereof, were sufficient to take it out of the Statute of Frauds. Held, further, that J. stood in no better position than H. would have occupied il he had retained the legal title, and was endeavoring to dispossess D. by an action of ejectment.
    2. It is the duty of purchasers of real estate to make inquiry respecting the rights of parties in possession, and failing to do so, they are affected with constructive notice of such facts as would have come to their knowledge in the proper discharge of that duty.
    3. Per Sterrett, J.- — ■“ There was no error in refusing to hold that a parol contract of sale cannot be specifically enforced, unless the vendee can show that-he has made improvements for which he cannot be compensated in damages. There are undoubtedly cases in which the equities of the vendee rest upon other equally available grounds.”
    June 1st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Incoming county: Of May Term 1880, No. 177.
    Ejectment by Mary A. Jamison against Gordon Z. Dimock and Charlotte E. Dimock, his wife, to recover a lot in the city of Williamsport.
    Both parties to the suit claimed title from Peter Herdic. The plaintiff as follows: Deed of Peter Herdic to George P. Barber, dated November 3d 1877. Mortgage, same date, George P. Barber to Peter Herdic to secure the payment of $6000. Assignment of said mortgage by Peter Herdic to Lewis Jamison and Mary A. Jamison, January 15th 1878. Scire facias on above mortgage and judgment thereon to January Term 1879, for $6437. Levari facias to March Term 1879, and property sold to Mary A. Jamison and sheriff’s deed to her, dated March 18th 1879.
    The defendants claimed title by virtue of a parol agreement between the said Herdic and Mrs. Dimock in 1874, by which ITerdic agreed to sell the lot as alleged to Mrs. Dimock, and build a dwelling house thereon for her, the said lot being at the time vacant, for the sum of $6000, and possession taken by the defendants, as alleged by them, in pursuance of the contract, as soon as the house was ready for occupancy, which was about a year after making the contract, and continuous possession thereof up to the time of the trial. The other material facts will be found in the opinion of this court.

      At the trial the plaintiff submitted "the fallowing points, all of which the court refused.
    1. That the contract of sale by parol, in order to take it out of the Statute of Frauds and Perjuries, must be accompanied by the payment of the purchase-money in whole or in part, possession taken in pursuance of the contract, and improvements made by the vendee that cannot be compensated in damages.
    2. That the burden of proof is upon the defendants, and unless they have shown by indubitable proof, that the contract was made, possesssion taken and improvements made that cannot be compensated in damages in an action on the case for a breach of the parol contract, the verdict must be for the plaintiff.
    3. That under all the evidence in this case the plaintiff is entitled to recover.
    Verdict for defendants, when plaintiff took this writ and alleged, that the court erred in refusing the abovejpoints.

      Lloyds and H. C. McCormick, for plaintiff in error.
    There was no such evidence of a parol contract as would justify a decree of specific performance thereof. There was no contract to sell a house for §6000, nor such possession taken as the law requires. It was not taken until a year after the execution of the contract upon the completion of the house. This .contract should not be considered outside the Statute of Frauds and Perjuries. There were not the necessary elements to take the case out of the statute. The court should have taken the case from the jury under the authority of Moore v. Small, 7 Harris 461, and Rankin v. Simpson, Id. 571.

      H. C. Parsons, B. S. Bentley, Jr., and J. O. Parker, for defendants in error.
    The facts were found by the jury, and the simple question is, -whether upon the finding of the jury there is sufficient to take the case out of the statute. Where the purchase-money is paid and full possession taken as found here, it is an executed contract, and does not come within the statute. - Mrs. Jamison had no equity which the court was bound to regard.
    There is a distinction between the case" at bar and nearly, if not all, the cases bearing upon this subject. -Here there was absolutely nothing to be done between the parties except the execution and delivery of the deed by ITerdic; the .contract was, therefore, not executory, but was, on the other hand, finished and completed, and did not come under the rule of enforcing the specific performance of the same, as there was nothing to-enforce in the way of payment of any or all of the purchase-money, of delivering possession, and such like.
    In regard to the contention that there was no actual sale, but simply a loan -with security, it is to be observed that this was one of the vital questions left to the jury.

      October 4th 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

_ Both parties claim under Peter Herdic who, in 1874 and prior thereto, was owmer in fee of the lot in controversy. The plaintiff gave in evidence the deed of Herdic and wife to Barber, dated and recorded in November 1877, and mortgage of same date from Barber to Herdic; also record of the scire facias and judgment thereon, followed by sheriff’s sale and deed of March 1879, thus vesting in her the legal title previously held by Herdic, and prima facie entitling her to a verdict. The defendants, on the other hand, relied on an equitable title in Mrs. Dimock, founded on a parol contract of sale made in 1874, and so far executed by payment of the entire consideration and exclusive possession of the property taken and held in pursuance thereof, &c., as to make it inequitable and unjust to rescind the contract. Their contention is that the equitable title thus acquired under the contract is superior to the plaintiff’s legal title of later date, and should prevail; in other words, that Mrs. Dimock’s equities are such as to move the conscience of a chancellor and justify a decree of specific performance. The defendants’ testimony tended strongly to prove that in December 1874, Herdic contracted with Mrs. Dimock to build for her a dwelling house on the lot in dispute, and when completed, according to the plan selected, give her possession and convey the property to her in fee for the consideration of $>6000; that in pursuance of this contract the house was completed, the consideration money fully paid, and exclusive possession given in October 1875, and retained ever since; that Herdic was repeatedly requested to settle for interest which he agreed to pay on the purchase-money in consideration of having received it in advance of the erection of the building, and to make a' deed for the property, but he neglected to do so and finally executed the deed to Barber and took from him the mortgage on which it was afterwards sold by the sheriff and conveyed to the plaintiff, and that Herdic, shortly after conveying the property to Barber, became insolvent, filed his petition in bankruptcy, and has since obtained his discharge as a bankrupt. This is an outline of the material facts alleged by the defendants and strongly supported by their testimony.

The plaintiff introduced rebutting testimony for the purpose of disproving the allegations of the defendants as to the contract, payment of purchase-money and possession in pursuance thereof, and to show that the money was received by Herdic as a loan and not as the price of the property.

The subject of complaint in the first two assignments of error is the refusal of the court to affirm the plaintiff’s first and second points. In each of these, making “improvements by the vendee, which cannot be compensated in damages,” is declared to be an essential ingredient to take the case out of the Statute of Frauds. While this may be true as to parol gifts of land, in which the expenditure of money and labor in improving the property takes the place of a pecuniary consideration, it is not correct as applied to a case like the present, which is claimed to be a parol sale for a money consideration, fully paid according to the contract, possession taken and continuously held in pursuance thereof. There was no error therefore in refusing to hold that a parol contract of sale cannot be specifically enforced unless the vendee can show that he has made improvements for which he cannot be compensated in damages. There are undoubtedly cases in which the equities of the vendee rest upon other equally available grounds.

The third specification of error is the refusal of the court to charge, “ that under all the evidence in this case the plaintiff is entitled to recover.” This presents the most important question in the case. The learned judge was satisfied that, if the defendants’ version of the transaction was true, the facts were suflicient to take the case out of the Statute of Frauds, and thus entitle the defendants to retain possession; and accordingly, after referring to the testimony and the provisions of the Statute of Frauds, he instructed the jury that if they found there was a contract of sale between Iierdic and Mrs. Dimock, and in pursuance thereof the whole consideration-money was paid, possession taken and retained ever since, in connection with other circumstances surrounding the case as made out by the defendants, they have a good defence. Under this instruction the verdict for the defendants is substantially a finding of the facts in their favor, and the entry of judgment thereon operates as an approval of the finding. The facts thus determined, according to our system of administering equity in common-law actions, are as conclusively established as if they had been found by a master and approved by a judge acting as chancellor. It is doubtless the correct practice for the court to say whether the evidence is sufficient to -raise an equity in the party claiming specific execution of a parol contract or gift, and for the jury to determine whether or not the testimony is true: Miller v. Hartle, 8 P. F. Smith 108. This was the course pursued in the present case. Treating the allegations of the defendants then as true and constituting the controlling facts of the case, was there any error in holding that they were sufficient to take the case out of the Statute of Frauds ? In considering this question it may be premised that the plaintiff stood in no better position than Mr. Herdic would occupy if he had retained the legal title and was endeavoring to dispossess the defendants by an action of ejectment. The admitted possession of the defendants from October 1875 was notice of Mrs. Dimock’s equitable title not only to Herdic’s vendee, but to the assignees of the mortgage as well as the purchaser at sheriff’s sale. It does not appear that inquiry was made by either of them for the purpose of ascertaining by what right defendants were in possession. It was unquestionably tbeir duty to make such inquiry, and having neglected to do so, they were affected with constructive notice of such facts as would have come to their knowledge in the proper discharge of that duty. This principle is applicable to the plaintiff as well as to Mr. Herdic’s vendee: Woods v. Farmere, 7 Watts 382.

According to the facts as established by the verdict, all the terms of the contract were fully complied with except the execution and delivery of the deed by the vendor. ' He built and finished the house and put his vendee in possession according to agreement, and she fully complied with her part of the contract by paying in advance the entire purchase-money. Under these circumstances, would a court of equity permit Herdic, the only party in default, with the price of the property thus in his pocket to dispossess her ? We think not. To do so would be to tolerate the use of the statute by him as an instrument of fraud. If in connection with this we take into consideration the fact that Herdic, by conveying to Barber, put it out of his power to comply with his part of the contract, and the further fact that he has since become a discharged bankrupt, the equities of the defendants are greatly strengthened. If they should be dispossessed, there is nothing in the ascertained facts of the case to show that Mrs. Dimock would not lose the whole or greater part of the purchase-money. The plaintiff, as we have seen, is a mere volunteer with notice of Mrs. Dimock’s equitable right to the possession, and therefore occupies no better position than would Mr. Herdic.

Departures from the strict letter of the Statute of Frauds have been reluctantly sanctioned only on the ground that the statute, enacted for the purpose of preventing fraud and perjury, should not be used as the means of perpetrating fraud: Pugh v. Good, 3 W. & S. 56. If there is anything settled in this state, it is that a parol contract for the sale of land is not to be executed unless it would be unjust to rescind it: Postlethwait v. Freese et al., 7 Casey 472. In the same case it is said, in illustration of the principle, that “ a purchaser may make improvements and family arrangements which do not admit of assessment or compensation; or the insolvency of the vendor may render it impossible that compensation, if assessed, should be paid. In these and other cases that are imaginable, the parol contract could not be rescinded without injustice to the purchaserand the same learned judge, in Moore v. Small, 7 Harris 461, says, “ that when the parol contract is dearly established and has been so far in part executed as to render it unjust to rescind the same, it should be enforced specifically. This is the rule of construction suggested by some of the English cases and adopted by the legislature of this state in providing for proof and specific performance of the parol contracts of decedents ¡under the provisions of the Act of March 10th 1818.”

It is not necessary in this case to carry the doctrine as far as was done in Pugh v. Good, supra, in which Chief Justice Gibson, after reviewing the English statute as well as our own, came to the conclusion that delivery of possession, pursuant to a parol contract for the sale of land, was the test of part performance, and that “ the vendee as well as the vendor may insist on a specific execution of the contract for part performance by delivery of possession alone.” In this case we have the important additional element of complete performance by the vendee, coupled with the insolvency of the vendor and the fact that in violation of his contract, he conveyed the legal title to a stranger, who had notice, however, of the defendant’s equitable title. In Haslet v. Haslet, 6 Watts 464, Judge Greer, then president of the District Court, in charging the jury said, “It is too well settled to be now disputed that where money has been paid and possession given in pursuance of a parol contract for the sale of land, equity will enforce t'he specific execution of the contract on the ground that to suffer a man who has received his money to take both money and land by pleading the Statute of Frauds, would be making the statute itself an instrument of fraud, which it was made to prevent.” This is undoubtedly sound equitable doctrine; and in reviewing the case, this court characterized the charge as “ an accurate exposition of the law throughout.” Other cases, among which are Bassler v. Niesly, 2 S. & R. 352; Stewart v. Stewart, 3 Watts 255, and Billington’s Lessees v. Welsh, 5 Binney 128, might be cited in support of the judgment, but enough has been said to show that upon principle as well as authority, it should be sustained.

A question not directly involved in either of the specifications of error has been made by the plaintiff in regard to the collateral security given by Herdic when he received the $6000 purchase-money, as it has been found to be by the verdict of the jury. The fact that he gave such security for the faithful performance of his contract was proved, but it was not shown what, if anything, the collaterals were worth at the time of the-trial or at any time after they rvere given. Upon the evidence before the court and jury, as well as for want of proper parties before the court, no definite determination could be made in regard to the collaterals. If the legal title is conveyed to the defendant, she will have no further claim on the stocks; but Avho in that event will be entitled to them —whether the assignee in bankruptcy, the party by whom the legal title may be conveyed, or some one else — are questions which do not now properly arise, and are therefore not concluded by this judgment. Judgment affirmed.

Mr. Justice Mercur, dissented.


author: Mr. Justice Gordon

text:
    Early versus Rolfe.
    1. Where a husband transacts the ordinary business of his wife’s estate, such as the receipt of her rents, interest and the like, with her knowledge, her assent may be fairly inferred, and the jury may adopt the presumption that he was acting under her authority and hold her accordingly. Onder such circumstances the wife will be estopped from claiming interest money thus received by the husband.
    2. Undecided whether mere knowledge and want of dissent on the part of the wife would raise a presumption of power in the husband to receive and receipt for the corpus of her personal estate.
    June 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Elk county: Of May Term 1880, No. 102.
    Scire facias sur mortgage by H. M. Rolfe against C. R. Early.
    Mrs. Fannie Wilmarth, wife of Frederick Wilmarth, owned certain real estate which, in October 1874, she conveyed to Early, ,the defendant, who gave her a mortgage on said property for the unpaid purchase-money. On March 26th 1878, Mrs. Wilmarth and her husband assigned the mortgage to Rolfe, the plaintiff. This suit was brought hy Rolfe to recover the balance due on the mortgage. The only subject of dispute between the parties was as to the allowance of three payments made to Mrs. Wilmarth’s husband.
    The defendant pleaded “set off,” “ payment with leave,” &c.
    At the trial, Wilmarth, the husband of the mortgagee, testified that Early had paid him $600, in three different payments, on account of interest due on the mortgage. When asked whether he had authority from his wife to receive this money, he answered, “Yes, sir; to use in the family;” but afterwards, on cross-examination, said, “ I had no special authority, only being her husband, and getting it for her benefit as well as mine. She knew that I got these payments because I told her.” He further testified that the money thus received was used “ for family expenses.”
    The third point of the defendant, with the answer of the court, McDermitt, P. J., of the 85th Judicial District holding a special court, was as follows:
    That, even if the mortgage belonged to Mrs. Wilmarth at the time of the alleged payments to Fred. Wilmarth, a payment to him without her authority would not operate to discharge the mortgage debt.
    Ans. “ There being no evidence of any previous authority having been conferred by Mrs. Wilmarth on her husband, to receive payment, in whole or in part, of the mortgage in suit from the defendant, nor evidence of subsequent ratification by her of his acts in receipting for what he did receive, beyond her mere subsequent knowledge of the fact, the payments so made by the defendant, do not bind her, nor her assignee, the plaintiff. So explained, the point is affirmed.”
    Yerdict for plaintiff, when defendant took this writ and alleged, inter alia, that the court erred in the answer to the above point.

      Rufus Lucore, John G. Sail and C. H. McCauley, for plaintiff in error.
    The husband having assumed to act as the agent of the wife in receiving her money, she was bound to express her dissent when it came to her knowledge, or her acquiescence will be presumed.
    There is another class of cases, however, where the wife, undertaking to recover from her husband’s estate moneys received by him as income of her estate, the courts have seized upon slight circumstances to show her assent to his receipt and use of the money as his own. A fortiori should the debtor who pays the money be protected; for since it is settled by a long line of decisions that a husband receiving money of his wife is presumed to receive it as her agent, it may well be that his estate should be liable for such receipts, where the debtor paying the same should be protected : McGlinsey’s Appeal, 14 S. & R. 65; Husbands on Married Women, p. 105; Martha Mann’s Appeal, 14 Wright 375; Bardsley’s Estate, 7 W. N. C. 49.
    There is neither reason nor authority for- exempting Mrs. Wilmarth from the general rules applicable to principal and agent. An acquiescence in the assumed agency of another, when the acts of the agent are brought to the knowledge of the principal, is equivalent to an express authority: 2 Kent’s Com. 827 ; 2 Greenl. on Ev., sect. 66. Stephens and Wife’s Appeal, 6 Norris 202, decides that a married woman is subject to such general rules, that case holding that notice to a husband, while acting as agent for the wife, is notice to the wife.

      George A. Rathbun, for defendant in error.
    The Act of 1848 prevented the wife’s choses in possession' from becoming the property of her husband, denied his succession to dominion over her choses in action, and debarred him from ownership of the use of her real estate : Bear’s Admr’r v. Bear, 9 Casey 528. The husband could not even act as her agent without being empowered in writing. If she desires to dispose of her estate, real or personal, she may make her husband .the agent for the purpose by an instrument duly acknowledged, separate and apart from him: Rosburgh’s Ex’r v. Sterling’s Heirs, 3 Casey 293; Glyde v. Kiester et ux., 8 Casey 88. All the cases cited by plaintiff in error are those wherein it was held that the receipt and conversion by the husband of the wife’s money, wdth her knowledge and consent, might be construed as evidence of a gift, and recovery denied. The husband has no authority, as husband, to discharge an indebtedness due the wife: Goodyear v. Rumbaugh, 1 Harris 482 ; Trimble v. Reis, 1 Wright 455; McKinney v. Hamilton, 1 P. F. Smith 65. The burden of proof to show authority to the husband was on the defendant: Bachman v. Killinger, 5 P. F. Smith 414; 2 Greenl. on Ev., sect. 66; Hyatt v. Johnson, 10 Norris 196.
    June 21st 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

_ It is certainly not necessary to cite authority in order to prove that since the Act of 1848, the husband cannot dispose of his wife’s choses in action without her consent, and it may be conceded that he cannot, of his own motion, receipt for her money or satisfy her judgments or mortgages. But it by no means follows that with her consent he may not do all these things and even more, appropriate her moneys and assets to his own use. So, it was held in Martha Mann’s Appeal, 14 Wright 375, where a husband had, from time to time, received money from his wife’s debtor in her presence, that it was a proper inference not only that he had rightly received it, but where he had appropriated it to their common benefit, that it was so appropriated with her assent, and that she could not, after his death, recover it from his estate. Indeed, to hold otherwise would be measurably to deprive the married woman of the confidence and agency of her husband in the care and management of her separate property and in the disposition of her business affairs; a deprivation which, in most instances, would be to her very serious and in some cases disastrous. As a rule, married women, in consequence of the character of their education, as well as by reason of the circumstances by which they are ordinarily surrounded, have little of business knowledge or capacity, and if they cannot have the aid of their husbands to collect their rents, receive the interest upon their mortgages, judgments and other obligations without a power of attorney or other formal delegation, they are bad off indeed. The relation of husband and wife is one of the profoundest trust and confidence, and is so regarded by the community at large; hence, where the husband acts for the wife in matters relating to the disposition of her personal property, he is presumed to be so acting with her consent and as her agent. As a rule, people cannot be made to think that in dealing with a husband for his wife, he must be regarded as a stranger, and that he can do no business for her except under her express sanction. They presume, and so ought to presume, that the two are acting in harmony ; that he acts with her assent and for her welfare. It follows that where, in ordinary transactions, as in those above enumerated, the husband receives the moneys of the wife, and the circumstances are such that her assent may be fairly inferred, the jury may adopt the presumption that he was acting under her authority and hold her accordingly. We conclude then that the court below erred in saying to the jury, in answer to the plaintiff’s third point, that there was no evidence of any previous authority having been conferred by Mrs. Wilmarth on her husband to receive payment in whole or in part of the mortgage in suit from the defendant, nor any evidence of a subsequent ratification of the payments so made. We think differently; yre think there was evidence from which such authority might properly be inferred. Wilmarth testifies that he received, on account of this mortgage, some six hundred dollars in three different payments of two hundred dollars each; and when asked whether he had authority from his wife so to do, he answered, “Yes, sir; for the use of the family.” It is true he afterwards qualifies this by saying : “ I had no special authority, only being her husband and getting it for her benefit as wrell as mine.” He also says that she knew of his receipt of these payments because he told her. But the above stated qualification has no effect in the way of altering the plain inference resulting from this testimony. Here is the husband properly doing business for the wife by receiving the interest on her mortgage, not once but thrice ; of this she has full knowledge; she knows that he is receiving this money and applying it to the relief of their joint necessities, and knowing all this she neither objects nor dissents; under such circumstances we do not think it would be a strained inference to presume her assent. It would indeed have been very bad faith in her did she intend to object to the business thus transacted, to allow her debtor to go on paying to her husband when her notice to the contrary would harm at once put a stop to it. As, however, the presumptions are in favor of good faith rather than bad, we may well suppose that Wilmarth had the assent of his wife to receive the money paid :to him by the defendant. Whether mere knowledge and want of dissent on part of the Avife Avould raise a presumption of power in the husband to receive and receipt for the corpus of his wife’s personal estate, as in this case, to receive the money in satisfaction of her mortgage, is something upon which we do not pass, and merely refer to the case of Bardsley’s Estate, 7 W. N. C. 48, where a similar question is fully discussed by Judge Penrose. HoAvever this may be, we repeat such knowledge and AYant of dissent are evidence from which a jury may infer a power to the husband'-from the wife to transact the ordinary business of her estate, such as the receipt of her rents, interest and the like.

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


author: Per Curiam.

text:
    Williamsport Gas Company versus Pinkerton.
    1. The corporation which issues a coupon bond, is in the position of the maker of a promissory note, not of the drawer of a check or bill of exchange. There is no obligation on the holder to present and demand it within a reasonable time.
    2. P. held a coupon bond of the defendant. Suit was brought on a coupon which stated on its face that it was payable at a certain banking hous'e on December 1st 1875. Funds were sent to the bank to pay the interest and all coupons presented were paid, until December 22d 1875, when the bank failed. P. afterwards demanded payment of the corporation and was refused, when he brought the suit against it: Held, he could recover.
    June 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J, absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1880, No. 145.
    Case stated, wherein John J. Pinkerton, was plaintiff, and the Williamsport Gas Company, defendant. •
    The case as stated, was, in substance, as follows :
    In 1868 the Williamsport Gas Company issued bonds to the amount of $30,000, payable to bearer on the 1st of June 1878, at the banking house of Kirk, MacVeagh & Co., West Chester, Pa. To each bond were attached coupons for the payment of the semiannual interest at the rate of eight per cent, per annum, payable to bearer at said .banking house, on the first days of December and June in each year respectively. On the 1st of May 1871, the firm of Kirk, MacVeagh & Co., was dissolved, and a new bank incorporated by the Act of March 15th 1871, as the Bank of Brandy-wine. Erorn the time of its organization, the Bank of Brandywine occupied the same premises previously occupied by the banking house of Kirk, MacVeagh & Co., and in many instances accounts were carried from their books to those of the Bank of Brandywine. The interest-coupons on the bonds of the Williamsport Gas Company, as they matured, were regularly presented to, and paid by, the banking house'of Kirk, MacVeagh & Co., and the Bank of Brandywine, until December 1st 1875, the Williamsport Gas Company providing funds for their payment by deposit. The account was opened in the books of Kirk, MacVeagh & Co., November 30th 1868, in the name of “Interest Williamsport Gas Loan,” and transferred to the books of the Bank of Brandywine on May 1st 1871, where it was opened and continued in the name of “ Williamsport Interest.” The account was credited with “draft,” and charged with the coupons by number when presented and paid.
    On the 29th of November 1875, the Williamsport Gas Company remitted to the Bank of Brandywine a sight draft on New York for $1140, to pay the semi-annual interest coupons due December 1st 1875. The account of “ Williamsport Interest,” on the books of said bank, was credited with $1140 on November 30th 1875. The Bank of Brandywine paid all coupons presented prior to December 22d 1875, and on that day suspended, and made an assignment for the benefit of her creditors. The sum of $524.40 remained, after the suspension, to the credit of the account of “ Williamsport Interest.” Since the assignment of the Bank of Brandywine for the benefit of creditors, the coupons of the Williamsport Gas Company maturing subsequent to December 1st 1875, have been paid through the National Bank of Chester county, at West Chester, Pa.
    The plaintiff residing at West Chester, Pa., was the owner of one of said bonds, and had regularly presented the coupons maturing thereon since May 1st 1871, and prior to December 1st 1875, to the said Bank of Brandywine, by whom they were paid. He now seeks to recover from the Williamsport Gas Company the amount of the coupon maturing December 1st 1875 (of which he was then, and still is, the owner), said coupon not having been presented at the Bank of Brandywine for payment prior to the suspension of said bank, on December 22d 1875. The said coupon is in the words and figures following, to wit:
    “ The Williamsport Gas Company will pay the bearer at the banking house of Kirk, MacVeagh & Co., West Chester, Pa., on the first day of December 1875, twenty dollars, being six months’ interest on bond No. 18.
    “$20. “T. Coryell, Treasurer.”
    After the assignment by the Bank of Brandywine for the benefit of creditors, the plaintiff demanded payment of the above-recited coupon of the,defendant, at the office of defendant, in the city of Williamsport, Pa., and payment having been refused, he brought suit thereon, March 3d 1877, before one of the aldermen of said city, and obtained judgment on the 9th of March 1877, for the sum of $23.12, the amount of said coupon with interest from December 1st 1875. From this judgment the defendant appealed. The question for the court was, whether, under these circumstances, the plaintiff was entitled to recover, and if so, whether to recover interest also, and from what date. The court entered judgment for $23.23, which was the amount of the coupon with interest from March 3d 1877; when the defendant took this writ,, and assigned this action of the court for error.

      Bentley & Parker, for plaintiff in error.
    Coupons payable at a particular time and place are like notes payable at a specified bank: Philadelphia & Baltimore Central Railroad Co. v. Johnson, 4 P. F. Smith 130. From its terms a couppn is a draft upon a particular fund, and in so far it is simply a check, but it is payable at a fixed future date, hence it is analogous to a check in form, payable in futuro, which has been construed to be a note. The analogy between an interest coupon, then, and a check, note or bill being so close; in other words, since the coupon has all the incidents of commercial securities, the same degree of vigilance is imposed upon its holder as is imposed upon the holder of a note or check. It is well settled here and in England that if the maker or drawer provide the funds at the time and place designated to pay his check, note or bill, he is discharged if, through unreasonable delay in presenting the same by the holder, loss occurs by the failure of the bank: Edwards on Bills 396; Conroy v. Warren, 2 Am. Dec. 159; 2 Phila. Rep. 111. The bank was not the agent of the company.
    June 14th 1880,

      H. C. Parsons and Charles K. Greddes, for defendant in error.
    Coupons differ materially from commercial paper. They are secured by mortgage; are under seal. In an action to recover upon other forms of commercial paper, either assumpsit or debt may be brought; in an action upon these’ bonds, debt alone can be sustained. An action upon other commercial paper is barred by delay after six years; while upon the bonds it is not barred until twenty years after maturity. The coupons differ from other commercial paper in precisely the same respects in which the bonds themselves differ, because they are incidental to and form part of the bonds: City v. Lamson, 9 Wallace 477; City v. Butler, 14 Id. 282.
   The judgment of the Supreme Court was entered

Per Curiam.

_ _ The corporation which issues acoppon bond is in the position of a maker of a promissory, no'te, not of the drawer of a check or bill of exchange. There is no obligation on the holder to present and demand it within a reasonable time. The same rule applies to the coupons as to the bond. In fact he may hold on to the coupons just as long as he can hold on to the bond without requiring payment. The coupon is nothing but an acknowledgment of interest due, and it is but an incident of the principal. It is attached to the bond and may be detached from it for the convenience of the holder. The possession by the corporation is evidence-of its payment. The banking house at which it was made payable were the agents of the corporation, and the holder could not lose in any event by their insolvency.

Judgment affirmed.


author: Chief Justice Sharswood

text:
    Calvert versus Good.
    1. O. was surety for H. on a joint and several note in favor of G. In a suit thereon by G. against O. the latter defended on the ground that the time of payment had been extended by a binding agreement between G. and H., without tlie consent of 0., and that the latter was thereby discharged. It appeared that there was an arrangement between G.. and H. by which H. agreed to pay to G. interest at the rate of ten per cent, per annum, when G. should call on him from time to time, the whole interest to be paid before the maturity of the note or the time to which it was extended. Whether this agreement was mad.e before or after the maturity of the note was contested : Held, that the court properly instructed the jury that if they believed from the evidence that at or about the time the note fell due, G. agreed with H. that the time of payment would be extended for one year, in consideration of the payment of the interest in advance, as the same should be called for by G., and that’this extension was made without the consent of C., such agreement would discharge C. as surety.
    2. Qucere. Where there was evidence of actual payment of interest in advance what would be the effect of such payment without an agreement, whether it would be a partial payment on account, whether usurious or otherwise, or would necessarily imply an agreement to extend the time.
    3. A mere agreement to give time in consideration of the payment of usury after the maturity of the note would not be a valid consideration, such as would discharge the surety. Hartman v. Danner, 24 P. P. Smith 36, followed.
    4. The court instructed the jury that if they “believe by the arrangement spoken of by II., G. reserved the right to proceed to collect the note from II. and C., if notified to do so by 0., it would not be such an agreement as would in law discharge the surety, even if the payment in advance was a valid consideration.” Of this fact there was no evidence: Held, that the case should be reversed for this reason ; that it is error to leave to the jury a fact of which there is no evidence. '
    June 3d 1880.
    Before Sharswood, C. J., Trunkey, Sterrett and Green, JJ. Paxson, J, absent.
    Error to the Court of Common Pleas of Lycominq county: Of May Term 1880, No. 24.
    Assumpsit by John Good, executor of George Good, deceased, against Thomas L. Harinton and Joseph Calvert, on a joint and several promissory note in favor of George Good.
    Before the jury were sworn judgment was entered by consent against Harinton, and the jury were sworn to try the issue against Calvert alone.
    At the trial, before Cummin, P. J., the defendant alleged that while his name appeared on the note as maker, it was not as such that he signed it, and that Good understood, when he took the note, that defendant did not sign as maker, but as surety, and that Harinton alone received the money. He further alleged that, while Good knew of this relation of surety, he had entered into another agreement for the extension of the note without defendant’s knowledge, and that this extension was given for a valuable consideration.

      The note was dated December 4th 1872, and was payable one year thereafter. Before it matured in 1873, as alleged by defendant, the time of payment was extended for one year by Harinton agreeing to pay the interest on said note at the rate of ten per cent, per annum, whenever Good should call on him for payment from time to time, the whole of said interest to be paid before the maturity of the new note. This agreement was made without the knowledge or consent of Calvert. Upon like terms and conditions the note was extended until December 4th 1875; the last payment of interest being made in July 1875. On the 8th of December 1875, the note remaining unpaid, suit was brought thereon by the plaintiff, when defendant claimed to be discharged of liability by reason of the above agreements for extension of time of payment.
    The third point of the plaintiff, with the answer of the court thereto, was as follows :
    That if the jury believe, by the arrangement spoken of by Harinton, Good reserved the right to proceed to collect the note from Harinton and Calvert, if notified so to do by Calvert, it would not be teuch an agreement as would, in law, discharge the surety, even if the payment in advance was a valid consideration.
    Ans. “We say that that is the law, if you find any such facts in the case. If you know of any such evidence, whereby Good reserved the right to sue when he made this agreement, why this would be the law.”
    The only point submitted by the defendant, which the court affirmed, will be found in the opinion of this court.
    Verdict for plaintiff for $1194.16. A motion for a new trial was overruled, and after judgment on the verdict, defendant took this writ, and alleged that the court erred, inter alia, in their answer to the plaintiíTs third point.
    H. T. Ames and Samuel Linn, for plaintiff in error.
    We do not agree with the court below in the instruction given to the jury that the agreement respecting the extension of time must be made before the maturity of the note, if the interest be usurious, and unless so made the plaintiff had a right to recover. We contend that the contract was made upon a good and sufficient consideration, which was the extension of the time of payment for one or more further years, upon the condition that the interest was to be paid in advance and prior to the end of the year. We maintain that such a contract is binding upon the payee of the note, and that the consideration was good and valid, because it gave to the holder of the note interest upon interest, if payments were made according to the terms of the agreement.
    The whole case shows that a large part of the interest, both the legal rate and that which exceeded it, was paid, under this agreement, a considerable time prior to the 4th of December 1875, thus giving to the plaintiff in this note the full payment of six per cent, for a considerable time prior to the time when it could have been recovered except by the agreement of extension. Good demanded the payment of the entire interest on the note prior to the time it was due, and in accordance with the contract of extension. He could not have demanded or recovered it at that date by law save under his agreement.
    June 14th 1880.
    The cases cited by Chief Justice Sharswood, in Hartman v. Danner, 24 P. F. Smith 36, are at variance with the law as cited in Brandt on Suretyship, sect. 309, where it is held, “that if the agreement for extension is not made,until after the debt is due, it will havé the same effect to discharge the surety as if made before.”
    G. W. Youngman and S. L. Youngman, for defendant in error.
    This case is ruled by Hartman v. Danner, 24 P. F. Smith 36. Calvert is a principal, the note is joint. The agreement for an extension of time and prepayment of interest must be taken as a whole. Calvert’s duty, as principal, was to pay at maturity, and as surety to give notice to principal to collect the debt. The loss is the result of his own supineness.
    A usurious contract not being enforceable at law, no act of the parties can remove the taint or make the consideration valid; and a contract not based on a valid consideration will not release a surety : Edwards on Notes and Bills, sect. 572; Rhoads v. Frederick, 7 Watts 448; Hartman v. Danner, supra; Brandt on Sureship, supra.

   Chief Justice Sharswood

delivered the opinion of the court,

This judgment must be reversed on the third assignment. The plaintiff in error was surety for one Harinton on a joint and several note in favor of George Good, and his defence was that the time of payment had been extended by a binding agreement between Good and Harinton without his consent, and he had thereby been discharged. It appears that there was some arrangement between the parties, by which Harinton agreed to pay interest at the rate of ten per centum per annum, whenever Good should call on him, from time to time, the whole interest to be paid before the maturity of the note or the time to which it was extended. When this agreement was made, whether before or after the maturity of the note, was a question of fact contested. The jury were distinctly instructed by the learned judge in affirmance of a point presented by the plaintiff in error “ that if they believe from the evidence that at or about the time when the note in suit fell due, George Good, the plaintiff’s testator, entered into an agreement with Harinton to the effect that the time of payment would be extended for one year, in consideration of the paymont of the interest in advance as the same should be called for by Mr. Good, and that this extension of time was made without the consent of Calvert thereto, such an agreement will discharge Calvert, the surety, and no recovery can be had by the plaintiff.” This was the only point presented by the plaintiff in error, and it was affirmed in the most unqualified manner. There was, indeed, evidence in the case of the actual payment of interest in advance, but no point was put to the learned judge as to what would be the effect of such payment without an agreement, whether it would be a partial' payment on account, whether usurious or otherwise, or would necessarily imply an agreement to extend the time. The learned judge therefore cannot be convicted of error in not charging on that. As to the other questions, the case of Hartman v. Danner, 24 P. F. Smith 36, was followed, and the jury instructed that a mere agreement to give time in consideration of the payment of usury after the maturity of the note would not be a valid consideration — such payment would be no more than what the principal was already bound to pay, namely, the whole principal and interest — and that for the excess paid as usury he would be entitled to a credit as a partial payment on account of principal.

The plaintiff below, however, asked the court to charge “that if the jury believe by the arrangement spoken of by Mr. Harinton, Mr. Good reserved the right to proceed to collect the note from Harinton and Calvert, if notified so to do by Mr. Calvert, it would not be such an agreement as would in law discharge the surety, even if the payment in advance were a valid consideration.” There can be no doubt that the law as presented in this point is correctly stated: Hagey v. Hill, 25 P. F. Smith 108. It was there held by this court that an extension of time by the creditor of the principal debtor will not discharge the surety if there be an agreement between the creditor and the principal that the surety shall not be thereby discharged. The learned judge below affirmed the point, but evidently doubted whether there was such a fact in the case. He left it to the jury to say whether there was any evidence of it. No evidence is to be found on this record. None has been pointed out by the counsel of the defendant in error. To leave a fact to the jury without any evidence is manifest error.

Judgment reversed, and venire facias de novo awarded.