author: Agnew, J.

text:
    Kirkpatrick & Lyons versus Bonsall.
    1. In consideration, of '$1000, the defendants, November 10th 1870, agreed to deliver to plaintiff 5000 barrels of oil at any time within the first six months of 1871. “ If this oil is called for, this call becomes a contract, ten days’ notice shall be given, and (the plaintiff) or his assigns agree to receive and pay for the same cash on delivery, at 10J cents per gallon,” &e. Held, not to be on its face a gambling contract.
    2. A bargain for such an option may be legitimate, but its character may be weighed in connection with other evidence, on the question whether the transaction was a gambling scheme.
    3. The plaintiff was not a refiner nor a purchaser for his own consumption, and gave notice of his option before he had sold; he had not intended to call, if the oil had gone below the price in the contract. Held, that it was proper to ask plaintiff what contracts he had, when he entered into this contract, maturing prior to 1st of January 1871, tobe followed by evidence of his financial inability to take and pay for the amount of oil specified in said •contracts.
    October 16th 1872.
    Before Thompson, G. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1872, No. 115.
    Sterling Bonsall, on the 30th of June 1871, commenced an action of assumpsit against Joseph Kirkpatrick and James Lyons, trading as Kirkpatrick & Lyons, for breach of a contract by the defendants to sell the plaintiff 5000 barrels of petroleum.

      The case was tried April 2d 1872, before Collier, J. The plaintiff gave in evidence the contract, viz.:—
    “For and in consideration of the sum of $1000 to us in hand paid by Sterling Bonsall, Esq., the receipt of which is hereby acknowledged, we hereby bind and obligate ourselves to deliver to said Sterling Bonsall, or his assigns, should he, or they, call upon us to do so at any time during the first six months of 1871, five thousand barrels of good green merchantable crude petroleum, forty gallons to the barrel, gravity 40° to 46°, at a temperature of 60° Fahrenheit, either in bulk cars or hulk boats, at Pittsburg, Pa. If delivered by A. V. R. R., or W. P. R. R., buyers may designate any point of delivery on line of said roads, or any good landing on the Allegheny river, near Pittsburg, if delivered by bulk boats. If said oil is called for, this call becomes a contract, ten days’ notice shall be given, and said Sterling Bonsall, or his assigns, hereby agree to receive and pay for same, cash on delivery, at the rate of ten and a half cents per gallon on lots as gauged and delivered.
    “ One-half per cent, brokerage whether oil is delivered or not.
    Kirkpatrick & Lyons.
    Nov. 15th 1870.”
    Also notice as follows:—
    June 8th 1871.
    “ Messrs. Kirkpatrick & Lyons:
    “ Gentlemen: — Please take notice that I hold a contract with you, to deliver to me five thousand barrels of good green merchantable crude petroleum, forty gallons to the barrel, gravity 40° to 46° degrees Fahrenheit, which you have by contract, dated November 15th 1870, agreed to deliver to me if called upon by me to do so, at any time during the first six months of 1871; either in bulk cars or bulk boats, at Pittsburg, Pa. I by this call upon you to deliver to me the said oil on the twenty-sixth day of June, A. d. 1871, according to your contract, a copy of which I annex to this call.
    “ I will pay you cash for said oil on delivery.
    Respectfully yours, Sterling Bonsall.”
    Plaintiff gave evidence of a tender on the 26th of June 1871, by him to Lyons, one of the defendants, of $21,000, for 5000 barrels of oil at 10J cents per gallon, a demand for delivery of the oil and refusal by defendants to deliver.
    The defendants then called the plaintiff, who testified:—
    “ Am plaintiff; was not a refiner when I entered into this contract; had no other contract at this time; had five call contracts for 5000 barrels of oil during this period. Had buyer’s option contract. All my contracts would amount to 40,000 barrels. It would require $168,000 to pay the oil. All my contracts matured from the 13th to the last of June. I had the $168,000 within my control, but not in cash. Had not sold the oil when I made up my mind to call. Not in the refining business, but am in the producing business. The Messrs. Gallagher Avere my agents here. Some of the .tenders I made myself. $42,000 in cash I had here. I would not have called them if the market price had not been below ten cents, unless after I made the call — then I Avould have taken them at any price.”
    The defendants proposed to ask the witness what contracts he had at the time he entered into this contract, maturing prior to 1st of January 1871; for the purpose of showing the magnitude of the plaintiff’s undertaking, in Avay of purchase of oil, to be followed by evidence of his financial inability to take and pay for the amount of oil specified in said contracts.
    This was objected to by the plaintiff, as not of the time of the transaction, and can throw no light on the issue.
    The offer was rejected and a bill of exceptions sealed.
    On cross-examination he said:—
    “ Am a dealer and producer of oil; been since 1864; did not settle any differences; was prepared to take the 25,000 barrels in June, and pay for them ; there wa3 no agreement to settle on differences, there certainly was none on mine. I bought the oil, and intended and expected, when I made the calls, to get the oil and not the differences. I made arrangements for $105,000 Avith the bank here. The buyer’s option contracts had been already refused, and I needed no money for them.”
    The evidence being closed, the defendants’ counsel requested the court to charge the jury, that the plaintiff could not recover upon the contract sued upon.
    This the court refused, and charged that the plaintiff was entitled to recover.
    The verdict was for the plaintiff for $5492.37.
    The defendants removed the record to the Supreme Court and there assigned for error, the refusal of their offer of evidence and the instruction to the jury.

      S. SoTioyer, Jr., for plaintiffs in error.
    — The contract on its face was wagering. The $1000 was a premium as for insuring plaintiff the oil in a given time, and there was no insurable interest: Paterson v. Powell, 9 Bing. 320; Pritchet v. Insurance Co., 3 Yeates 464; Hall v. Berger, 19 Barb. 122; Brua’s Appeal, 5 P. F. Smith 294.

      D. W. Sellers (with whom was T. J. Keenan), for defendant in error,
    cited Smith v. Bouvier, 20 P. F. Smith 325.

      October 21st 1872,
   The opinion of the court was delivered, by

Agnew, J.

— We cannot pronounce this agreement a gambling contract on the face of the writing. A bargain for an option, such as it presents, may be legitimate, and for a proper business object. We can imagine such cases. But it is evident such agreements can be readily prostituted to the worst kind of gambling ventures, and therefore its character may be weighed by a jury in connection with other facts in considering whether the bargain was a mere scheme to gamble upon the chance of prices. The form of the venture when aided by evidence may clearly indicate a purpose to wager upon a rise or fall in the price of oil at a future day, and not to deal in the article as men usually do in that business. We must not confound gambling, whether it be in corporation stocks or merchandise, with what is commonly termed speculation. Merchants speculate upon the future prices of that in which they deal, and buy and sell accordingly. In other words they think of and weigh, that is speculate upon, the probabilities of the coming market, and act upon this lookout into the future, in their business transactions; and in this they often exhibit high mental grasp, and great knowledge of business, and of the affairs of the world. Their speculations display talent and forecast, but they act upon their conclusions and buy or sell in a boná fide way. Such speculation cannot be denounced. But when ventures are made upon the turn of prices alone, with no boná fide intent to deal in the article, but merely to risk the difference between the rise and fall of the price at a given time, the case is changed. The purpose then is not to deal in the article, but to stake upon the rise or fall of its price. No money or capital is invested in the purchase, but so much only is required as will cover the difference — a margin, as it is figuratively termed. Then the bargain represents not a transfer of property, but a mere stake or wager upon its future price. The difference requires the ownership of only a few hundreds or thousands of dollars, while the capital to complete an actual purchase or sale may be hundreds of thousands or millions. Hence ventures upon prices invite men of small means to enter into transactions far beyond their capital, which they do not intend to fulfil, and thus the apparent business in the particular trade is inflated and unreal, and like a bubble needs only to be pricked to disappear; often carrying down the boná fide dealer in its collapse. Worse even than this, it tempts men of large capital to make bargains of stupendous proportions, and then to manipulate the market to produce the desired price. This, in the language of gambling speculation, is making a corner — that is to say, the article is so engrossed or manipulated as to make it scarce or plenty in the market at the will of the gamblers, and then to place its price within their power. Such transactions are destructive of good morals and fair dealing, and of the best interests of the community. If the article be stocks, corporations are crushed and innocent stockholders ruined to enable the gambler in its price to accomplish his ends. If it be merchandise, e. g. grain, the poor are robbed, and misery engendered.

These remarks perhaps contain nothing new, but they are made to show how a contract, legal on its face, may become an instrument of illegal and ruinous schemes, injurious to the community and contrary to the highest policy of the state. The illegal purpose is therefore a fact falling within the province of the jury, and when found by them, brings the contract under the ban of the law. If this purpose or intent be nothing but to wager on the rise or fall in the price of an article, and not to deal in it bond fide, the law must pronounce the bai’gain a gambling contract. This brings us to consider the defendants’ offer of evidence which the court refused.

Every offer of testimony is to be judged of by the court upon the state of the evidence already in, or of that with which the offer is proposed to be followed. How then did this case stand when the offer was made ? The plaintiff had given, in evidence a written agreement; not illegal, it is true, on its face, but of that kind used in gambling ventures. The defendants had shown by the plaintiff’s own testimony that he was not a refiner of oil, or one who would buy for his own consumption — that he had not sold the oil when he made use of his call or option, and therefore had no contract of his own to fulfil — and also that he did not intend to call for the oil if the market price had gone below the price fixed in the agreement. What intent would reasonably be inferred from these circumstances? Certainly the belief induced that there was not an intent to bargain for oil for a real business purpose. Now if besides this contract it could be shown that many others of a similar kind were entered into by the same man, at and about the same time, certainly it would strenghten the conviction that the plaintiff was not a bond, fide contractor in a legitimate business; and if we then add to this the fact that he was financially unahle to take and pay for the total amount of oil he had contracted for, that conviction would become more firm, and that the real nature of his contracts was a wager on the rise and fall of the price of oil. The offer went therefore to the very question whether he was gambling in the price of oil. The objection to the offer that it was not of the time of the transaction is not tenable, for this agreement bears date the 15th of November 1870, and the contracts offered to be shown were those to mature on or prior to the 1st day of January 1871. They were therefore not too distant in time to have no bearing upon the character of the contract in question. The objection that these contracts would throw no light on the issue is plainly not valid, for the similarity of the contracts and the proximity of time considered with the financial inability of the plaintiff to fulfil them all, are not slight evidence merely of the wagering intent. It is no good answer that the plaintiff had stated his ability to control the means of performing his contract, for the defendants were not bound by his statement. According to the second section of the Act of 15th April 1869 (Brightly’s Purd. 1566, pl. 2), a party to the record in a civil proceeding may be examined as if under cross-examination, at the instance of 'the adverse party, who is not to be concluded thereby but may rebut by counter testimony. Had the evidence been received, and the jury been satisfied of the truth of it, the case presents that of a man not engaged in the oil business proper, bargaining for an immense quantity of oil far beyond his ability to pay for, with no intent to consume, use or sell it, entering into a similar contract precisely adapted to a wager on the price, and with no intent to call for a delivery of the oil unless the chances of the price fell out in his favor. This presented a question of fact for the jury, and not merely the legal interpretation of the paper on its face, as a wagering contract. The rejection of the offer was therefore error.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Thompson versus Sheplar.
    1. An action lies on a parol contract for the sale of land.
    2. In the absence of fraud, the measure of damages is the money paid and expenses incurred on the faith of the bargain. If no consideration has been paid or expenses incurred, the damages are nominal.
    3. Where there has been fraud in the sale, damages are recoverable for the value of the bargain.
    4. The defendant agreed to purchase plaintiffs land which was to be sold at sheriff's sale, and reconvey to plaintiff if paid the purchase-money and interest in a year. In an action for damages for refusal to convey, the court charged that if defendant “ in bad faith refused to perform his agreement to reconvey,” &c., the measure of damages would be the difference between the value of the land and price paid for it by defendant. Held, to be error.
    October 16th 1872.
    Before Thompson, O. J., Read, .Agnew, Shaeswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 96, to October and November Term 1871.
    This was an action on the case brought April 1st 1865, by Philip Sheplar against Moses B. Thompson.
    Pending the suit the plaintiff died and M. Gr. Sheplar, his administrator, was substituted as plaintiff.
    The declaration was that Philip Sheplar being the owner of a tract of land of the value of $12,000, it was taken in execution by the sheriff, and advertised to be sold on the 28th of July 1862 ; the defendant promised the plaintiff that he, the defendant, would bid for the land at the sheriff’s sale, and if he purchased it, would convey it to the plaintiff on his paying him the amount for which it should be sold to him, within one year from the purchase, “ with ten per cent, interest thereonthat in pursuance of the agreeT ment the defendant purchased the land for $2500, which was much below its value, and that within a year after the purchase, the plaintiff tendered to the defendant the sum of $2500, with ten per cent, interest, and demanded a conveyance; that the defendant “ fraudulently intending to injure,” &c., the plaintiff would not receive the said sum and interest, nor convey the land to the plaintiff, &c.
    The case was tried December 24th 1870, before Stowe, J. The land was sold, on the 28th of July 1862, by the sheriff to defendant for $2500, under an execution at the suit of S. B. W. Grill.
    For the plaintiff, J. H. Hopkins, Esq., testified that shortly previous to the sale there were some negotiations for the purpose of preventing the sheriff’s sale of the plaintiff’s property ; that it w'as finally agreed that the sale should go on, the defendant to become the purchaser, and give Sheplar one year within which to redeem the property by paying the'.purchase-money and ten per cent, interest. Mr. Hopkins proved the tender about the 21st of July 1863, by Sheplar to Thompson, of the amount of the purchase-money and interest at ten per cent., and demand of a conveyance of the land to Sheplar.
    Henry Sheplar, a brother of Philip Sheplar, was offered as a witness. He had, on the 14th of June 1867, recovered a judgment for $977 against Martin Gr. Sheplar, administrator of Philip Sheplar, deceased: on the 21st of December 1870 he assigned this judgment to John P. Sheplar “without recourse.” He testified on his voir dire that besides this judgment he had an interest under his father’s will, by which a farm was devised to Philip Sheplar, subject (amongst other things) to the payment of $400 to witness, which is unpaid.
    The defendant objected to the admission of Sheplar as a witness “on the ground of interest and because he is an assignor of a claim in action.” He was admitted and a bill of exceptions sealed for defendant.
    He testified that shortly before the sheriff’s sale, Philip Sheplar told Thompson that if he would pay the amount of the judgment, he -would redeem the property within twelve months; would pay the money back with ten per cent, interest; if he did not, the property, was to be Thompson’s; the property was to be sold by the sheriff and Thompson was to bid it off. On the day of the sale, Thompson, in answer to a question of witness, said he would adhere to the contract; the property was struck off to Thompson for $2500. Witness also testified that he was at the sheriff’s sale, and was prevented from bidding by Thompson’s promise, but for which he would have bid $3500.
    There was other evidence to the same effect as that above given; including evidence that other persons would have interfered to stop the sale, except for Thompson’s promise to buy the property for Sheplar.
    There was evidence also that Thompson was requested to put the agreement into writing but declined; and that after the sale he denied that there had been any such agreement. There was evidence also that when Thompson was spoken to before the sale, he expressed friendship for Sheplar and a desire to aid him: also that after the sale he had said that if Sheplar redeemed the place in a year by paying the purchase-money and ten per cent, interest, it was to be reconveyed to him: also that when Sheplar had spoken to him, in June 1863, after the sale, in relation to his agreement to reconvey, he said he could not remember the contract ; he said “ if you have got gold, the contract will be lived up togold at that time was at a premium of 148 per cent.
    There was evidence also as to the value of the property, and that Thompson took and held possession.
    There were a number of rulings by the court below on questions of evidence, to which exceptions were taken.
    The plaintiff’s points which were affirmed, were :—
    1. If the jury are satisfied, from the evidence, that Thompson, in bad faith, refused to perform his agreement to reconvey the land to Philip Sheplar, when tendered within the year, the $2500 he had paid and ten per cent, interest, the plaintiff will be entitled to damages, and the measure of damages he will be entitled to recover will be the difference between the value of the land when the tender was made and the $2500 paid by Thompson, with interest upon that difference from the date of the tender to this time.
    2. If Thompson, at the time he agreed with Sheplar to buy the land at sheriff’s sale, and give Sheplar a year to redeem it, fraudulently intended not to perform the agreement, and to take an undue advantage of Sheplar, the plaintiff will be entitled to recover damages for the breach of the agreement, and the measure of damages will be the difference between the value of the land when . the tender was made and the money paid by Thompson, and also to interest on that difference to this time.
    The defendant’s 8th and 9th points, which were refused, were:—
    8. If the jury are satisfied, from the evidence, both that the alleged agreement to reconvey was, in point of fact, made by defendant, and that the arrangement was not fraudulently designed by Sheplar to cheat his creditors, and should find a verdict for the plaintiff, they must fix the amount of said verdict by the amount of actual expenses incurred by the said Sheplar in endeavoring to have the contract carried . out, and that they are not to include in their verdict any allowance for the supposed loss of a bargain.
    9. Under the pleadings and evidence, the plaintiff cannot recover any supposed or alleged difference between the value of the land at the time of the tender and the amount tendered unto defendant, but can only recover the actual expenses to which Sheplar may have been put by Thompson’s failure to comply with his alleged agreement, and that as the plaintiff has failed to prove any such expenses, he can recover, if at all, only nominal damages.
    The defendant’s 10th and 11th points were:—
    10. The mere failure of the defendant, though without any good reason or though not prevented by any cause beyond his own control, to comply with his parol contract, is not, of itself, such an act of fraud as would subject him to any higher standard of damages than that indicated in said 8th and 9th points, to wit, the actual expenses incurred by Sheplar.
    11. The fraud that would authorize the application of any other measure of damages than that indicated in said 8th and 9th points must have been fraud meditated and designed at the time of the purchase by Thompson, and must be indicated by what took place before and at the sale, and cannot be found or presumed by the jury upon the mere fact of the promise alleged, and its subsequent non-performance ; and that there is no such evidence in the ease as would justify the jury in finding any design or intent upon Mr. Thompson’s part, at the time of said purchase, to defraud said Sheplar.
    The answers to these points were:—
    “ 10. This point is refused, if you believe the amount paid at the sheriff’s sale was not a fair and reasonable price for the land at the time of sale, or as it was at the time it should have been reconveyed to plaintiff, Philip Sheplar. In other words, if you believe the land was bought by défendant for a price actually and substantially less than its fair value, and defendant, influenced by the fact that the land was worth more than the amount to be paid for its reconveyance, refused to convey when tender was made, or if you believe that the land was worth more, and known to be so by defendant, than the amount of the tender at the time it was made, and for that reason defendant refused to reconvey, the plaintiff is entitled to recover the difference between the value of the land at the time of the tender and the amount paid by defendant, with ten per cent, added, to wit, $2750. But if you believe that the land was not actually and substantially worth more than the amount paid by defendant, and had not become decidedly of more value before the time of tender, then this point is affirmed.
    “ A man’s neglect or refusal to perform a contract to convey lands, as a general rule is no ground, without something more showing a fraudulent intent, to justify a jury in giving more than the actual damage sustained by the party complaining of the breach of such contract. But where there is actual fraud in the inception — at and preceding the actual agreement of the contract, which must be sufficiently shown by the evidence in the case showing an actual intent existing in the minds of the party at the time to act dishonestly or fraudulently, the rule is different and larger damages may be recovered.

      “ But in a case such as this is claimed to he by plaintiff’s attorney, where a man makes’ a contract with another by which the other gets possession of property for much less than its value, upon the agreement made at the time the arrangement is consummated, to restore the property for the amount paid, or that amount with an additional compensation less than its actual and known value; this is such a case as will justify the jury in giving the difference between the value and the amount to he paid on its restoration.
    “ 11. This point is answered in our answer to the 10th point.
    The court said, also:—
    “ Then do you believe that the contract was made as claimed by plaintiff — that plaintiff Sheplar, and defendant Thompson, agreed together, in view of the position Sheplar’s property was in at the time, that defendant would purchase the land levied upon, at the sheriff’s sale, and give him, Sheplar, the property back, upon the payment of the amount paid, with 10 per cent, added, within a year, and that said amount was duly tendered within the time limited in the agreement; and if you further believe, from the evidence, that this arrangement was the reason Sheplar did not get some other person to release him from the impending loss of his property at the approaching sale, then plaintiff can recover in this suit, and the proper standard of damages has been already indicated in our answer to defendant’s point — to which you will add interest.”
    The verdict was for the plaintiff for $6358.
    The defendant removed the case to the Supreme Court by writ of error, and assigned for error the rulings on questions of evidence, the answers to the points and the charge.
    £r. Shiras (with whom was I>. D. Bruce), for plaintiff in error.
    —As to the admission of H. Sheplar as a witness, cited Haus v. Palmer, 9 Harris 296; Graves v. Griffin, 7 Id. 176; Post v. Avery, 5 W. & S. 509; Karns v. Tanner, 16 P. F. Smith 297.

      B,. Woods and N. P. Petterman, for defendant in error.
    — H. Sheplar’s interest being collateral, the rule in Post v. Avery does not apply: Forrester v. Kline, 14 P. F. Smith 29; Steininger v.
      Hoch, 6 Wright 432 ; Cornell v. Vanartsdalen, 4 Barr 364; Byers v. Mullen, 9 Watts 266 ; Jones v. Brounfield, 2 Barr 55. A creditor may assign and become a witness: Carter v. Trueman, 7 Barr 315; Dutton v. Tilden, 1 Harris 46; Montgomery v. Grant, 7 P. F. Smith 243.
    May 17th 1873,
   The opinion of the court was delivered, by

Williams, J.

— It is well settled law in this state that an action will lie on a verbal agreement for the sale of land, and, in the absence of fraud, that the measure of damage for its breach is compensation for the money paid and expenses incurred on the faith of the bargain. If no consideration has been paid, and no expenses incurred, only nominal damages are recoverable. But where there has been fraud in the sale, a different rule as to the measure of damages obtains. In such cases it has been uniformly held that damages may also be recovered for the loss or value of the bargain. But if no fraud was meditated and designed in making the contract, the refusal to perform it is not such fraud as will enable the vendee to recover compensation for the loss or value of the bargain. If damages for such loss were allowed to be recovered for the breach of the contract, on the ground that the refusal to perform it was in itself a fraud, it would, in most cases of parol sales, operate as a virtual repeal of the Statute of Frauds; for, though the vendee might not recover the land for which he bargained, of what avail would be the statute if he could recover its value in money ? It is obvious that such a recovery would, in almost every case, be equivalent to specific performance. It follows that the court below erred in affirming the plaintiff’s first point, and in the instructions given to the jury in answer to the defendant’s tenth and eleventh points. But there was no error in refusing to charge as requested in the defendant’s eleventh point. If the proposition set out in the first clause -of the point had stood by itself, it should have been affirmed, but taken in connection with the assumption in the later clause, that “there is no such evidence in the case as would justify the jury in finding any design or intent upon Mr. Thompson’s part, at the time of said purchase, to defraud said Sheplar,” it would have been error to affirm it. There was abundant evidence, if believed, to justify the jury in finding that Thompson was a trustee, ex maleficio ; and if so, the plaintiff was entitled to recover as damages the difference between the amount of the tender and the actual value of the land at its date. But as the question of the defendant’s alleged fraud in making the purchase was not submitted to the jury, the judgment must be reversed, and the cause sent back for another trial.

There was no error in the admission of Henry Sheplar as a witness; and there is nothing in the other assignments that requires discussion. The defendant’s second, fifth, sixth, eighth and ninth points were properly refused.

Judgment reversed, and a venire facias de novo awarded.


author: Thompson, O. J.

text:
    Frazier et al. versus Monroe et al.

    1. Monroe sold a mill to Frazier, leaving stock in it temporarily; he assigned policies on the mill and stock to Frazier, who agreed in case the mill and stock should he burned, to give Monroe $3000 he might receive from the insurance: afterwards the mill and Monroe’s stock in it were burned; Frazier received $493 for stock, $4137 for mill. Held, that he was liable to Monroe for $2500, the value of his stock.
    2. A contract so ambiguous as to require interpretation, may be considered in the light of the circumstances at the time to ascertain the parties’ meaning.
    3. Words or sentences not in the contract cannot be considered as there.
    4. This can be done only under the equitable head of fraud, accident or mistake ; this is reformation, not interpretation.
    October 10th 1872.
    Before Thompson, C. J., Read, Aonew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 108, to October and November Term 1871.
    This was an action of assumpsit brought January 5th 1870, by Robert Monroe and William Monroe, partners as R. Monroe & Co., against John Erazier and others, partners as Frazier Brothers.
    The plaintiffs on the 15th of April 1869, sold to the defendants the “ Star Planing Mill,” in Allegheny City, the plaintiffs leaving in the mill temporarily a stock of lumber and some finished and unfinished work; the plaintiffs assigned to the defendants some policies of insurance against loss by fire on the real estate^and alsp on the stock.
    The defendants afterwards signed this paper:—
    “Allegheny City, April 24th 1869.
    We hereby agree to give R. Monroe & Co. (in case of fire taking place at the Star Planing Mill, and that their stock now in the mill should be burned or damaged) the sum of three thousand dollars, that we may receive from the several insurance companies, which was transferred by them to us on April 15th 1869.
    Frazier Brothers.”
    On the 24th of June 1869, the mill was burned, together with the stock then in it belonging to the plaintiff. The plaintiffs’ affidavit of claim averred the agreement and the burning: that their stock burned was of the value of $5000, and that the defendants had received $7000 on the policies from the insurances.
    The affidavit of defence amongst other things averred that at the time of signing the agreement, it was expressly understood that the lumber, &c., was to be removed by the plaintiffs from the mill in fifteen days ; that before the fire the policies which were assigned had expired so far as plaintiffs’ interest was concerned, and that the defendants were no longer carrying any risk for the plaintiffs.
    The case was tried January 30th 1871, before Collier, J.
    The plaintiffs gave evidence to sustain the allegation in their aflidavit of claim; also, that they had transferred to defendants, policies of insurance on stock and real ■ estate in a number of companies, amounting to $12,500, with evidence of the value of the stock burned.
    The defendants gave evidence that the plaintiffs had transferred to them two policies in the Lycoming Insurance Company which they changed into one, for $5000. Of this -$500 only were on personal property; they received $4137. on account of the insurance, $413 was for personal property, the remainder for mill and machinery. The assessments which had accrued on the policies were deducted from the $5000 due on the policies. On their objecting to sign the agreement, plaintiffs said it did not matter much, they would have their stock out in a few days, that the defendants would not be responsible longer than May, and with that understanding the paper was signed: they wrote to the plaintiffs that all their insurances were out, plaintiffs said they would run the risk themselves. Defendants gave evidence also of the value of the stock burned, tending to show that it was of less value than plaintiffs alleged.
    The defendants submitted the following points which were refused :—
    2. The paper on which suit is brought amounts to nothing more than an agreement by defendants to pay plaintiffs any money which they might receive for loss of plaintiffs’ stock in the mill by a burning, on or before the defendants would be assessed, and as the uncontradicted evidence shows that the burning took place on the 29th June 1869, after the assessment made upon plaintiffs had run out, the plaintiffs are not entitled to recover.
    4. By the paper in question the Messrs. Frazier could only be reached by an action for money had and received, and that to the extent only of the money, if any, received by them for and on account of insurance upon plaintiffs’ stock.
    5. The uncontradieted evidence shows that at the time of the fire there was but one insurance policy alive which applied or could apply to the plaintiffs’ stock, to wit, that issued by the Lycoming Co. for $5000, of which $500 was applicable to the stock, all the other policies covering plaintiffs’ stock, and which were in life at the time defendants gave the paper on which this suit is founded, having expired before the fire took place ; and as it was not incumbent on the defendants to keep alive the policies which had so expired, whether covering mill or stock, it matters not for the purposes of this case what the actual loss of plaintiffs at the fire was, provided it was five hundred dollars and upwards, as in no event can the plaintiffs (if entitled under the facts to recover at all) recover more than $500, with interest from the date of the fire.
    The court charged also :—
    “If the jury should find for the plaintiffs, the defendants would be liable to the extent of the loss sustained, which they would be bound to pay out of any moneys received by them on the policies transferred, whether the same was received from insurance on stock, or real estate.”
    The verdict was for the plaintiffs for $2500. The defendants took a writ of error, and assigned for error the refusal of their points and the charge.

      O. Robb and S. A. Purviance, for plaintiffs in error.
    — In the view which the court took of the writing, it was a matter of no importance whether the insurances covering the stock had run out or not, nor was the remissness of the Monroes, in paying assessments to keep the policies alive, of any account. The evidence of the Fraziers and others, that the Monroes were to take the stock away before the fire occurred, was also wholly ignored by the court. Of all the moneys received by the Messrs. Frazier, only $413 was received on stock from the Lycoming Insurance Company. The plainest implication here takes the place of the writing, and supplies the ellipsis and makes the contract read, burned or damaged to the extent of three thousand dollars.
    As a general assignment of the policies had been made, the Monroes only desired something to show that the policy covering stock was reserved, and a paper stating that the assignment of the policies was not to include that which covered stock, would have more fully expressed the meaning and intention of the parties.

      M. W. Acheson and Miller $ McBride, for defendants in error.
    — The language employed by the parties in the paper is unambiguous. In express terms the writing embraces all the transferred policies, without exception or distinction. To the extent of $3000 Monroe & Co. were to be protected.
    A contract is to be construed by the words in which it is written : White v. Smith, 9 Casey 186.
    The words of a contract are to be taken most strongly against the party using them.
    But were the agreement unreasonable, it is nevertheless to be enforced according to.the intention of the parties, as clearly and plainly expressed in the writing: Nelson v. Von Bonnhorst, 5 Casey 352.

      October 17th 1872,
   The opinion of the court was delivered, by

Thompson, O. J.

— An express contract between parties so ambiguous in its terms as to require interpretation, may, in order to arrive at what they meant, be considered in the light of the surrounding circumstances at the time. This often enables courts to declare the meaning of contracts, but they are not allowed to add words, or to consider words and sentences to be in, that are not there. This can only be done on the principle of reforming contracts on account of omissions or improper insertions, under the equitable head of fraud, accident or mistake. That is not interpretation, it is reformation. Where nothing is alleged to be omitted or too much is not alleged to be embraced, it is a pure ease of interpretation, and that is to be done under well-defined rules of law. In the case before us the contract is plain as to the point under consideration. It is that if the plaintiff’s lumber, on which he had about $2000 insurance, was destroyed by fire, the defendants were to pay him out of all the policies assigned to them by plaintiff on the transfer of the mill, amounting to some nine or ten thousand dollars, the agreed sum of $3000. The argument is that this is an unreasonable construction. It may be so, and would have been so undoubtedly if the destruction of the property could have been foreseen. But it was not, and it is not unlikely that the defendants were liberal or careless in these premises in view of the supposed remoteness of the contingency in which they were made, happening. However this may have been, we see not how the court below could have given any other interpretation to the contract than it did.

Judgment affirmed.


author: Sharswood, J.

text:
    The Pittsburg, Allegheny and Manchester Railway Co. versus Pearson and Wife.
    1. If parents permit a child, of tender years to run at large without a protector, in a city traversed by cars and other vehicles, they are guilty of contributory negligence, in case of injury to the child. .
    2. If the ease is barely such, negligence is a conclusion of law, and should not be submitted to the jury.
    3. A child eighteen months old had usually been under charge of a sister thirteen years old, who was away from the child for a short time, and escaped from the house whilst the mother, to enable her to scrub the floor, had removed a barrier against the child’s escape; within a few minutes the child was run over by a'car and killed. Held, in an action by the parents, that the question of contributory negligence by the parents was for the jury.
    October 17tb 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 150, to October and November Term 1871.

      John Pearson and Mary his wife, to November Term 1870, brought an action on the case against The Pittsburg, Allegheny and Manchester Passenger Railway Company, for causing the death of their son by running over him by one of their cars.
    The only question considered by the Supreme Court was whether the negligence of the plaintiffs contributed to the death of the child.
    The child was but eighteen months old; being upon the street on which the railroad was located, one of the cars struck him, threw him down and passed over him: by reason of the hurt he died in four days after receiving it.
    The case was tried May 18th 1871, before Kirkpatrick, J.
    The testimony of Mrs. Pearson was that the child was in his father’s house; there was a board at the door of the house to prevent the child from getting out; he was under the charge of a sister about thirteen years old; she was sent on an errand; whilst this child was absent the mother being about to scrub the floor, took the board from the door and the child thus got out of the house; the mother told an older son to go for him; the boy went out and came back saying that he was in company with Lizzie Orr, a child about eight years old; the mother then supposed he was safe; the child left Lizzie Orr and in a very short time, about three minutes, after he had escaped from the house, the disaster happened. The mother was not in the habit of permitting the child to go out by itself; the sister “was always with him.”
    This statement, with the defendants’ points and the opinion of the Supreme Court, will sufficiently exhibit the case.
    The defendants’ points and their answers are as follows:—
    2. If they find, from the evidence, that William Pearson, aged eighteen months, son of plaintiffs, was permitted to leave the house and presence of his parents, and go upon the public highway, and across the track of defendant’s railway, without a protector, and in consequence thereof the child’s arm was passed over and injured by one of the wheels of a passing car, the plaintiffs were guilty of contributing negligence, and cannot recover in this action.
    Answer: “Affirmed.”
    8. If the jury find that plaintiffs allowed their child, aged eighteen months, to go upon Rebecca street, a public highway, and upon and across the track of defendants’ railway, without a protector, and that the child, whilst alone and unguarded, was injured by a car passing in the usual manner upon said track, the plaintiff cannot recover in this action, even if the defendant or their employees were also guilty of negligence which contributed to the accident and injury complained of, and the verdict of the jury should be for the defendants.
    Answer: “Affirmed.” But is there any evidence that the child was {allowed ’ to go upon Rebecca street, the public highway ? We leave it for you. to say, from all the evidence in the case, was or was not, the permitting it to go out upon the alley, permitting it to go as claimed in this point? We leave it to you. If you find that it was, or if you conclude, from all the facts in evidence, that plaintiffs allowed the child to go, as claimed in this point, as already stated, the point is affirmed. Everything as to the law claimed by the point, depends upon the facts as claimed, and which you are to find. We leave their finding without any intimation from the court to you, as jurors, from all the evidence in the case.”
    4. The fact that the child of plaintiffs was found alone and unprotected on a public street, in Allegheny City, at the side of the track of defendants’ railway, at the time and place where it is alleged the injuries were sustained, is presumptive evidence of the contributory negligence of plaintiffs, and he cannot recover.
    Answer: “ Refused. We leave it to the jury to say w'hat was contributory negligence, under all the evidence and circumstances in the case.”
    The verdict was for the plaintiffs for $900.
    The defendants on the removal of the record to the Supreme Court assigned for error the answers of the court to their points.

      A. M. Brown, for plaintiffs in error,
    cited Pitts. and C. Railroad Co. v. McClurg, 6 P. F. Smith 294; Penna. Railroad Co. v. Goodman, 12 Id. 329; Glassey v. Hestonville Pass. Railway, 7 Id. 172; Penna. Railroad v. Ogier, 11 Casey 60 ; N. Penna. Railroad v. Heileman, 13 Wright 60; Callahan v. Bean, 9 Allen 401.

      5. M. Raymond, for defendants in error.
    — The question of negligence was for the jury: Johnson v. Bruner, 15 P. F. Smith 269.
    October 21st 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— The only question raised by these assignments of error, which, it is deemed necessary to discuss is, whether under the' evidence, the plaintiffs below — the parents of the child who was run over and killed by the railroad ear of the defendants— were guilty of culpable negligence in permitting him to run abroad in the street without a competent protector. It was undoubtedly settled very properly in Glassey v. Hestonville Passenger Railway Co., 7 P. F. Smith 172, that if the parents permit a child of tender years to run at large without a protector in a city traversed constantly by cars and other vehicles, they fail in the performance of their duties, and are guilty of such negligence as precludes them from a recovery of damages for any injury resulting therefrom. If the case is barely such, the negligence is á conclusion of law, and ought not to be submitted to the determination of the jury. But in this case there was evidence that the child was not permifcted to run at large without a protector, and it was a question for the jury whether the accident was to be attributed to the negligence of the parents. These parents were careful parents. A board at the door prevented the child from leaving the house of his own accord. When abroad he was in charge of an older sister between twelve and thirteen years of age. It so happened, however, that the board was removed temporarily for the purpose of scrubbing the floor. The child watched his opportunity and escaped. He was immediately missed and his brother at once sent after him. He returned and said that he was playing in the alley with Lizzie Orr, a little girl of the neighborhood, between seven and eight years old, who was in the habit of playing with him. The parents were satisfied that he was safe with her. In the caprice of childhood the little boy ran away from her — down the alley to Rebecca street where the railway was — ran across the track, and in the course of a very few minutes uras run over. Now, whether Lizzie Orr was a competent protector, whether the parents ought to have been satisfied when informed that he was Avith her, were questions for the jury. Children of that age — more especially girls — are often sufficiently prudent and thoughtful to be intrusted Avith the care of young children. Persons in the condition of life of these parents cannot afford to employ servants to look after their children. Their necessary domestic duties prevent them from being constantly on the Avatch themselves. We agree that “to say it is negligence to permit a child to go out and play without it is accompanied by a grown attendant, would be to hold that free air and exercise should only be enjoyed by the wealthy, who are able to employ such attendance, and would, amount to a denial of these blessings to the poor:” O’Flaherty v. Union R. R. Co., 5 Am. Law Times 42. Mr. Justice Agnew has made a similar observation in Kay v. The Pennsylvania Railroad Co., 15 P. F. Smith 277: “Here a mother, toiling for daily bread arid having done the best she could, in the midst of her necessary employment, loses sight of her child for an instant, and it strays upon the track. With no means to provide a servant for her child, Avhy should the necessities of her position in life attach to the child and cover it with blame?” That indeed was an action by the child, in Avhich the negligence of the parent Avould perhaps be no defence; but we may ask Avith equal propriety, why should the necessities of the parents’ position cover them with blame if they have done all in their circumstances they could do ?

Judgment affirmed.


text:
    Union Petroleum Co. versus Bliven Petroleum Co.
    1. An agreement was to lease “ the exclusive right and privilege of boring for oil, &e., upon the farm, upon which the first party now resides, with the right of access to and from such places as may be selected by the party of the second part * * * said boring to be done so as to do the least possible injury to the farmthe consideration was $150 and one-third of product, the holes to be sunk to satisfy the parties as to practicability and profit for oil. This was incorporeal hereditament only. ’

    2. The only possession the grantee had was such as was necessary to the exercise of the right.
    3. The remedy for disturbance of the right was case; ejectment could not be maintained.
    4. An ejectment was brought for the land on which wells had been sunk by persons claiming under the grant, at the suit of persons claiming title to the land under the same grantor, served on persons in possession, a verdict for plaintiffs and they put into possession by an habere. Held, not to be conclusive in an action for disturbance against persons claiming under the plaintiffs in the ejectment.
    5. There being but one verdict it was not conclusive of the title ; it was persuasive evidence only.
    6. The possession of the land is not necessary to enable the owner of an incorporeal hereditament to maintain an action for its disturbance.
    7. The court below was right in refusing to permit a record given in evidence, and containing depositions, &c., to go out with the jury.
    October 22d 1872.
    Before Thompson, C. J., Bead, Asnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Venango county: No. 26, to October and November Term 1871.
    This was an action on the case commenced, September 3d 1869, by the Bliven Petroleum Company against the Union Petroleum Company.
    The declaration was that the plaintiffs were the owners in fee of “ certain incorporeal hereditaments, to wit, the right and privilege of digging and boring for salt, oil and minerals, upon certain lots, parts of a tract of land known as the John McClintock farm, * * * with the right of ingress and egress, * * * for the purpose of digging for said salt, oil and minerals, * * * giving to John McClintock one-third part thereof. Yet the defendants * * * entered on said lots * * * and into the possession of certain oil-wells which the plaintiffs had thereon and excluded the plaintiffs therefrom and from the enjoyment of their said right and privilege and obtained and collected large quantities of oil * * * which the plaintiffs could have collected for their own use.”
    The defendants pleaded “Not guilty.”
    The cause was tried before Trunkey, P. J., November 8th 1870.
    By the plaintiffs’ evidence it appeared that the land upon which the wells were, belonged to John McClintock and was situated in Cornplanter township, Venango county.
    On the 26th of September 1859, an agreement was entered into between John McClintock of the first part, and Bradford R. Alden and Cornelius S. Chase of the second part, as follows :—
    “ That the said party of the first part, for himself, &c., agrees to and with the said second party, their heirs, &c., to lease, and by these presents has leased, unto the said second party, &c., the exclusive right and privilege of boring for salt, oil or minerals upon his farm, situate in Cornplanter township, &c., and upon which the said first party now resides, being two hundred acres, more or less, with the right of access to and from such places as may be selected by the party of the second part for the purposes aforesaid, and the right to build such houses and buildings as shall be necessary to carry on the work’comfortably ; said boring to be done so as to do the least possible injury to the farm.
    “ And the said party of the second part, for themselves, &c., agrees to and with the said party of the first part, that they will give to the said first party for the privileges hereinbefore granted, the sum of one hundred and fifty dollars, and the just and full one-third part of all the oil and minerals raised and the salt made from and upon the premises aforesaid, and that the work shall be commenced on or before the first day of June, eighteen hundred and sixty, and that the holes shall be sunk to a suitable depth to satisfy the parties as to their practicability and profit for oil. And it is agreed that this lease shall continue until the parties, their heirs or assigns, shall mutually agree to annul it. * * * It is further understood, that the obligations to bore, of this lease, on the part of the party of the second part, shall be fulfilled when they have made one boring of sufficient depth to be profitable to them for oil, or when they shall have made one boring of seventy feet depth, if practicable, and shall pay to the party of the first part the sum of seventy-five dollars, and the same obligations to bore shall be fulfilled at any time by the payment to the party of the first part of the sum of one hundred dollars.”
    By a partition subsequently the title became vested in Alden alone. On the 28th of January 1865, Alden conveyed to the Bliven Petroleum Company, the plaintiff.
    The plaintiffs gave evidence also, that the defendants had occupied by their agents, a portion of the land leased to Alden and Chase, had worked the wells put down by Alden, and excluded the plaintiffs from occupying it; — also of the quantity and value of the oil raised and appropriated by the defendants. They gave evidence also as to the lines of the land included in their lease. There was evidence also, that Allen Wright had a lease from Alden and Chase, afterwards passed to the “Allen Wright Oil Co.,” and sunk wells known as No. 81 and No. 84, on what was claimed to be covered by the lease to Alden and Chase, The defendants claimed the wells to be on their lands : — this suit is brought for the disturbance of the plaintiffs’ rights and privileges in these wells.

      The defendants gave in evidence the records of the Circuit Court of the United States for the Western District of Pennsylvania, in an action of ejectment, in which the Union Petroleum Company, a citizen and corporation of the state of New York, were plaintiffs, and George King, S. A. Lyon and R. Green, citizens of Pennsylvania, were defendants. The record showed as follows :
    The marshal returned the writ served on the defendants, and also on D. F. Myer, George Crippin and Samuel Davidson.
    The premises described in the writ were “a strip of land in Cornplanter township, Venango county, containing 6 acres; being 160 perches long by 6 perches and 2-10 wide; bounded on the north by the Rynd farm, on the east by other land of this plaintiff, on the south by the Buchanan farm and on the west by land known as the McClintock farm.”
    October 6th 1865, a rule was taken on the defendants to appear in six weeks. The marshal returned that the rule had been duly served upon King, Lyon and Green.
    An affidavit of defence was made by Allen Wright, a director of the Allen Wright Oil Company, “which has the lease, management and control of the land and property from which the plaintiffs seek to eject the defendants,” and averred that the defendants had “ a just and legal defence on the merits.”
    This affidavit was filed November 29th 1865.
    On the 5th of March 1866, the defendants pleaded “ Not guilty.” On' the 10th of March 1866, the court appointed William Hilands “to survey the claims of both parties and to ascertain the quantity and interference of each party, and to note such circumstances as may affect or be deemed material to the title of either of-the parties.”
    The jury found for the plaintiffs, “ and fixed the western line of the plaintiffs’ land as the line run by William Hilands, the artist appointed by the court, and marked on his plot by the signature of the clerk of the court, which plot is now filed of record as part of the verdict in the case,” &c.
    A writ of habere facias was issued on the 25th of January 1867, to which the marshal returned:—
    “ And now, this 31st day of January 1867, entered upon the within named premises, ‘ defendants all being absent,’ and placed E. W. Hinds, agent Union Petroleum Company of New York, in full possession of same. No property of the defendants found.”
    The defendants then gave in evidence the map made by Hilands under the direction of the Circuit Court; also deed, dated May 19th 1860, from John McClintock to John Nelson McComber, granting to McComber for the consideration of ¡$1500, a piece of land in Cornplanter township, beginning at a black-oak, the southeast corner of McClintoek’s farm, “ thence north, &c., to the north-east corner thereof, thence west 35 chains and 64 links or far enough so that a line drawn south through said lot shall contain 130 acres, and thence south or to the Buchanan farm, thence east, &c., to the beginning, containing 130 acres.” They then gave evidence, tracing this title to the defendants on the 29th of June 1864. They gave evidence that McClintock had contracted by articles for the sale of this land to Richard Dempsey, who sold his interest to McComber, and the deed made as above stated directly from McClintock to McComber. The evidence was that, at the time of the contract between McClintock and Dempsey, the land was unimproved and in wood, and was so when sold by Dempsey to McComber. Hilands testified that according to the line run by him, well 84 would be within the claim of the defendants, and that the line ran through well 81. There was evidence of a line run by Irvine, which put both wells on the plaintiffs’ claim; and also of acquiescence in that line by McClintock, Dempsey and McComber, predecessors in title to the defendants, and that the plaintiffs had been using the wells until the defendants were put into possession by the habere facias from the Circuit Court of the United States.
    The charge of the court and the defendants’ points and answers following, with the foregoing statement, will sufficiently exhibit the case.
    The court charged:—
    “ This action is for the recovery of damages plaintiffs allege they have suffered by reason of a disturbance or hindrance of their rights to enter and take oil from a tract of land owned by McClintock — I speak of him as the owner, for he contracted as such and so conveyed portions of the tract — and others who were interested with him, subsequently released to his grantees, confirming his respective contracts and conveyances. It is unnecessary to say anything about the title which was vested in John McClintock, for both parties claim under him. The plaintiffs claim under the articles of agreement dated September 26th 1859, with its supplement, made by Alden and Chase. The defendants claim under a deed by McClintock to J. Nelson McComber, dated May 19th 1860. Neither party questions the right of the other under their respective grants. It is not denied that the right of Alden and Chase, so far as relates to this action, have become vested in the plaintiffs, nor that the title of J. Nelson McComber is now vested in defendants. You observe at once, that the contest is not about the plaintiffs’ right to take oil from the land of McClintock, nor as to the validity of' the defendants’ title to the land embraced in the deed to McComber, but is as to the true location of the division line between the part sold to McComber and the balance of the tract.
    “As a rule, known landmarks and adjoiners on the ground bounding a tract of land conveyed, control the courses and distances in the deed; if there is a difference between the description in the deed and the marks on the ground, the latter govern; when there are no marks on the ground, or certain adjoiners, then the description in the deed is conclusive. A conveyance of a certain number of acres off one side of a tract of land, when there is no line of division marked, entitles the grantee to the entire quantity conveyed, as called for in the deed. If there was a survey and the division line distinctly marked on the ground, and the deed apparently made with reference to the survey and line, in the absence of other evidence, the line so marked bounds the land conveyed.
    “ The land in dispute is a piece a few rods wide, extending across the McClintock tract. Prior to October 16th 1866, it seems that the plaintiffs were exercising their alleged right on this land, and had possession of so much of the surface as was necessary to the enjoyment of the grant, their lessees actually operating and producing oil; and McClintock had possession for all other purposes. Since that date the defendants have been in possession, and they claim the right to hold it for all purposes, including operations for producing oil.
    “The plaintiffs allege that defendants have obstructed and hindered them from exercising any right on the land since the fall of 1866. How is this ? for if you are not satisfied from the evidence of such obstruction and hindrance, there can be no recovery. This is not an action of ejectment to recover possession of the land, nor trespass for injury done to plaintiffs’ possession; but case for obstructing and hindering the plaintiffs in the exercise of an alleged right; and if no obstruction or hindrance, your verdict will be for the defendants.
    “ Had McClintock himself interfered with plaintiffs’ right to enter and take oil, the remedy would be the same as that now sought to . be enforced against defendants. If he were asserting and attempting to enforce his rights to the possession of the soil, his remedy would be ejectment or trespass. For an injury done to the owners of an easement or incorporeal hereditament, case is the remedy.
    “ If you find that defendants, having possession of the land since the fall of 1866, have prevented the plaintiffs and their agents from exercising the right to search and obtain oil therefrom, the next inquiry is as to the title of the disputed land. From the evidence, you are likely to find that McClintock in 1857 or 1858, by agreement in writing, contracted to sell and convey unto Richard Dempsey one hundred and thirty acres of land and allowance, off the east end of the tract, and that Dempsey by oral agreement sold his equitable title to MeComber, to whom McClintock made the deed, dated 19th of May 1860, at Dempsey’s request. Before the execution of this deed, McClintock and Dempsey agreed that Irwin should survey the land, and he did so, McClintock and Dempsey’s father being present and assisting. If this survey was not correct, either could have had it resurveyed. Both knew the manner in which it was made, or could have known, Dempsey having employed his father to assist in making it. If the surveyor was acquainted with and knew the distance of the tract line, as measured on the ground, and for this reason only measured one line to ascertain the place to mark the line of division, it was a sufficient survey, and binding if acquiesced in by the parties. Was this survey and the line marked on the ground by Irwin, referred to as the boundary in the deed ? At that time there had been no other survey, no other but the one division line was marked.
    “ The Hilands line was not run until after the dispute and commencement of the suit in the Circuit Court of the United States.

      “ You will remember the testimony of McComber, who testifies that the line was spoken of at the time of the delivery of the deed, and McClintock agreed that if it was not far enough west to include the quantity, it should be changed. Do you find this to be the fact ? If so, the defendants have a right to the quantity, the same as if no line were marked. In determining this question, you judge of the credibility of witnesses, and consider every fact proven that throws any light upon it. The deed gives the distance of each line from corner to corner, and as a part of the description adds that one line should go far enough to include the quantity. If there was no line marked on the ground, or if it was agreed that the marked line should bo changed, if not including the quantity, the defendants have a right to a line that will include it.

      “ But if there was no such agreement, and the survey made and line marked, you may infer that the deed was in reference thereto. In this connection you will consider how the parties claimed and occupied after their making the deed.
    “ The plaintiffs allege that McClintock held possession and occupied up to this line without objection till near the time of the commencement of the suit in the United States Court, and that McComber, and those holding under him, only claimed, cut timber, improved and occupied up to this line for a number of years. Is this allegation true or false ? If true, such acts of the parties will be considered as tending, with other evidence, to show the marked .line was referred to in the deed. If false, there will be the greater reason to credit the testimony of McComber as to what he says of the changing of the line so as to include the quantity. If you find that the survey of Irwin was satisfactory to McClintock and Dempsey, that the deed was made in reference to that survey, :and the line of division marked on the ground, and that McClintock and McComber, and those holding under them, recognised it, occupied .and claimed to it, as the true line, for several years, it ought not to he disturbed, even if it be found that there is not the entire quantity called for embraced in the boundaries. Having made these remarks, that you may better understand the case, the answer to the points will be submitted. .Should you find for the plaintiffs, the remaining question for you is the amount of damages. The damages will not exceed the actual injury done to the plaintiffs. The burden of proof is on the plaintiffs to show the extent of injury done, and you will not allow them more than a fair compensation for such injury ; although it may be difficult to prove, they cannot recover more than is proved.
    “ In estimating the damages you will allow only for the oil taken, which belonged to the plaintiffs, and not for the part belonging to their lessees.”
    The defendants’ points and their answers were :—
    1. The certified copy of the record of the Circuit Court of the United States, in the case of the Union Petroleum Company against George King, L. Lyon, R. Green and others, said record being in evidence and being ejectment and for the land upon which the trespass or disturbance is alleged by the plaintiffs to have been committed, and the said record showing that the plaintiffs, the Union Petroleum Company, recovered said land and were put in possession by the United States marshal, the defendants would be rightfully in possession, and could not be either trespassers or disturbers by reason of said possession, acquired by law and the judgment of a court having jurisdiction of the subject-matter and the parties.
    “ Answer: In reference to the facts in this case, answered in the negative. The judgment in that case is conclusive on all the parties and their privies. Had the plaintiffs, in this case been a party to that action, there could be no recovery in the present action. But the Bliven Petroleum Company, or any one under whom they claim, or their lessees, the Allen Wright Oil Company, are not parties to that suit in ejectment, and are not bound by the judgment. The real owner of the land, or of an interest therein, shall not be defrauded of his title by a suit and recovery whereof he had no legal notice. The owner of the land ought to' be made a party by the service of the writ, or should not be deprived of his right, by any judgment thereon. As to King, Lyon, Green and the other defendants, the return of service does not show they were tenants of the plaintiffs, the Bliven Petroleum Company. But the judgment is conclusive as to them, until reversed or set aside by the proper tribunal. Were they, or those under them, the plaintiffs, there could be no recovery here by anything done by the defendants, up to the Hilands line. That verdict and judgment fixed the western boundary and protected the defendants against the parties, but in no particular as against those who were not parties or privies.”

      2. The service of the writ on the defendants, George King and others, and shown by said record of the Circuit Court of the United States to have been served upon the tenants in possession, is evidence that they were the persons in actual possession.
    6. The plaintiffs cannot recover in this form of action, unless they show to the satisfaction of the jury, that they were in actual possession of the premises, upon which the disturbance is alleged to have occurred; and if the testimony of Allen Wright and Nelson (witnesses called by the plaintiffs) is believed, and it is not contradicted, the Allen Wright Oil Company was in possession at the time the acts complained of took place, and Allen Wright testifies that he and his associates sunk wells No. 81 and 84, pumped them for more than six months, and then transferred their interest and possession to the Allen Wright Oil Company. If this testimony is believed the plaintiff has not been in possession and cannot recover.
    Answered in the negative.
    The defendants proposed to send out with the jury the certified copy of the record in ejectment, in the United States Circuit Court, including as thereto attached, all affidavits, depositions and other copies of papers, to which plaintiffs objected. The court refused to permit the record, with such papers attached, to be sent out with the jury, and at the request of defendants sealed bill of exceptions.
    The jury found a verdict for plaintiffs for $8190.
    The defendants took out a writ of error.
    They assigned for error the answers to the defendants’ points, submitting to the jury the question of damages, there being no evidence of injury to the plaintiffs, and the refusal to allow the record of the Circuit Court to go out with the jury.

      G-. De damp, for plaintiffs in error, cited:
    — As to service on parties in possession, Act of 13th April 1807, sec. 2, 1 Br. Purd. 533, pl. 5; Cooper v. Smith, 9 S. & R. 26; Dietrick v. Mateer, 10 Id. 151; Gratz v. Benner, 13 Id. 110. By an ejectment ’ against tenant in possession, the landlord’s possession would be affected, although his title might not be: Johnson v. Fullerton, 8 Wright 466; Davidson v. Barclay, 13 P. F. Smith 406. The plaintiffs in this case could have sustained ejectment: Karns v. Tanner, 16 P. F. Smith 297; Tidd’s Practice 1213.

      d. Heydrich, for defendants in error.
    — Case is the appropriate remedy for injury to an incorporeal hereditament: Funk v. Haldeman, 3 P. F. Smith 229; Black v. Hepburne, 2 Yeates 331; Cooper v. Smith, 9 S. & R. 26.
    October 28th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— The title of the plaintiffs below, derived under the articles of agreement of September 26th 1859, between Mc-Clintock, the owner of the land, and Alden and Chase, was to the exclusive right and privilege of boring for salt, oil or minerals,” upon the McClintock farm, in Cornplanter township, Venango county, and in that respect was not to be distinguished from that which came under consideration and was passed upon by this court, in Funk v. Haldeman, 8 P. F. Smith 229. It is true that the word exclusive ” was not used in the grant in that case, yet upon the construction of the instrument it was held to be exclusive, and that the grantors had no mining privileges in common with the grantees. There, as here, the right granted was to experiment for oil; if found, to sever it from the land, and to take it, on yielding a third to the landlords as a chattel, not as any part of the realty. And the only possession to which the grantee was admitted was such as was necessary to the exercise of this right. The fact that one hundred and fifty dollars was in this case paid down in cash does not change the character of the grant. It was not, as in Caldwell v. Fulton, 7 Casey 475, a conveyance of the full right, title and privilege of digging and taking away stone-coal to any extent the grantee might think proper, which was held to be a conveyance of the entire ownership of the coal in place. It was, therefore, as in Funk v. Haldeman, the grant of a mere incorporeal hereditament. Indeed, we do not understand this to have been controverted in the court below, nor has it been made a question in this court. It follows that the only remedy which the plaintiffs had for the disturbance of their right was an action on the case. Ejectment they certainly could not have maintained.

What, then, was the legal operation and effect of the verdict and judgment in ejectment recovered by the defendants below in the Circuit Court of the United States ? It certainly could have no other or greater force than a similar proceeding in a court of this state would have had. Giving it all the conclusiveness claimed for it, as it was a recovery of the land, it may well be doubted whether, not being for the same subject-matter now in controversy, it can have any effect whatever, even persuasive, upon the title of a person to what is only an incorporeal hereditament issuing out of, annexed to or exercisable within the land, unless indeed such incorporeal right was derived by grant from the party against whom the recovery was had, as to which no question is raised on this record for our determination. Had McClintock’s title to the farm been set aside in favor of an adverse claimant, then indeed the grant must have fallen with it. But passing by this question, and admitting, for the sake of the argument, that the plaintiffs below were in fact the real parties in the action in the Circuit Court, or that it was a question which, upon the evidence, ought to have been submitted to the jury,.it presented the case of only one verdict and judgment in ejectment, which clearly was inconclusive of the title, even between parties and privies. Such a verdict and judgment are evidence in a subsequent ejectment only as persuasive. It is true that no action could have been maintained against the sheriff or the plaintiffs in the ejectment for the entry on the land hy virtue of the habere facias possessionem ; but it hy no means follows that when the plaintiffs in that proceeding were thus put in possession under that writ, it gave them any right to take the oil which belonged to the plaintiffs below, if indeed their title to it was otherwise established by the evidence, of which no question has been made for our decision upon this record. If it could establish such right, it would give an effect to one verdict and judgment in ejectment, which has never been thus far pretended or thought of, and for ever bar the owners of an incorporeal hereditament from any recovery whatever. It is not material, then, whether the reasons given by the court below for their answer to the first point of the defendants were right or wrong ; the answer in the negative was proper, and the plaintiffs in error have therefore no right to complain of it. Indeed the learned president seems himself to have come to this conclusion; for, in his opinion on the motion for a new trial, printed in the plaintiffs’ paper-book, he says : — “ Perhaps it was error to say that one verdict and judgment would be conclusive on any one in an action like the present, who would have no remedy in any other form, hut, if error, it did no injury to the defendants. Had this point been material and more fully considered, the instruction as to the effect of one judgment might have been different.” It is entirely unnecessary, therefore, in the view which we have taken of the case, to consider the question, which was the principal if not only one discussed before us, whether the plaintiffs below, on the evidence, if believed by the jury, were parties or privies to the action in the Circuit Court of the United States.

As to the assignment of error that the court erred in answering in the negative the defendants’ sixth point, which was in substance that the plaintiffs could not recover in this form of action unless they had shown to the satisfaction of the jury that they were in actual possession of the premises upon which the disturbance was alleged to have occurred, no authority has been cited in support of it, and it is apprehended that none can be found. On the contrary, it is very clear, from the nature of the case, that possession of the land is not necessary to enable the owner of an incorporeal hereditament to recover damages in this, which is the only form of action to which he can resort. In general he has no right to the possession of any part of the land. The grantee of a rent has no right to such possession, yet, if he is obstructed and prevented from his distress, which is the mode by which he can enjoy or enforce his right if denied, he surely can maintain his action. The grantee of a way over another man’s land has indeed a pedis possesssio while in the actual use of it, but no one has ever supposed that it was necessary that he should be actually walking over the land when the way is stopped up or obstructed, or another who has- no right in common with him uses it unlawfully to his injury. In grants of the right to bore for oil there is indeed usually, as in this case, a right to the possession of so much of the land as is necessary for the exercise of the privilege, but that, like the right of ingress and egress, is but an incident of the incorporeal hereditament. Possession of that might no doubt be gained or lost by ejectment, or enforced by trespass quare clausum fregit. To the latter action actual or constructive possession is necessary in the plaintiff, but never to an action of trespass in the case, as in the common instance of a reversioner suing for a permanent injury to the freehold.

The court below we think were right in not allowing the affidavits and depositions attached to the record of the judgment in the Circuit Court to go out with the jury.

Judgment affirmed.


author: Thompson, C. J.

text:
    Abbott versus Kasson.
    1 Myers owning land, subject to a mortgage to Chase, conveyed to Abbott, who conveyed to Kasson for a gross sum and took from him a mortgage for the whole purchase-money; Kasson paid Chase the amount of his mortgage and took an assignment to Dudley, who assigned to Kasson’s wife. The land was sold by the sheriff to Abbott. In a scire facias by Mrs. Kasson on the first mortgage against Abbott as terre-tenant, Held, that evidence was irrelevant, that when Kasson paid the mortgage to Chase it was agreed between them that its amount should be applied on Kasson’s purchase-money mortgage, Abbott being bound to discharge the Chase mortgage as a prior encumbrance.
    2. The rule that payment by a mortgagor is an extinguishment, does not obtain where the payment is of an encumbrance existing before the conveyance to him.
    October 22d 1872.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to tbe Court of Common Pleas of Orawford county: No. 88, to October and November Term 1871.
    This was a scire facias sur mortgage issued March 4th 1869, by Caroline S. Kasson, late Sterling, and W. M. Kasson her husband in her right, against L. W. Myers, mortgagor, W. H. Abbott and W. M. Kasson terre-tenants. The writ was served on Myers and Abbott, but returned “Nihil” as to Kasson.
    The plaintiffs gave in evidence mortgage dated August 19th 1863, from L. W. Myers to E. H. Chase and Susan A. his wife for $1335, payable in instalments, the last instalment $975 being due August 19th 1867; assignment 26th of January 1866 to James Gr. Dudley; assignment September 7th 1866, to Caroline L. Sterling for the consideration of one dollar. Deed March 23d 1865, L. W. Myers to W. H. Abbott for the land described in the mortgage, the consideration being $10,000. Plaintiffs gave evidence also that Abbott sold the land to W. M. Kasson and took from him a mortgage without bond for the purchase-money : also, deed April 12th 1869, from E. O. Peck, sheriff, to W. H. Abbott for the same land, the consideration being $100. The title of I the premises on which Myers had given the mortgage had been inj Mrs. Chase, who conveyed to Myers. Caroline L. Sterling was married to W. M. Kasson.
    Defendant gave evidence by E. H. Chase, that there had been payments on the mortgage given by Myers which reduced it to $1110 before its assignment to Dudley. Abbott, torre-tenant, then offered to prove by Chase, “ that before 26th January 1866 (date of assignment of Chase to Dudley), and while witness and his wife owned the mortgage not then due, Kasson having bought the land charged by it, and Abbott holding his mortgage against it for $9000, came to the witness to have the first mortgage removed. That the witness for himself and wife entered into an agreement with them to receive and pay for the same, and that if Kasson paid it, or procured it to be paid, the amount should apply as a credit on the mortgage from Kasson to Abbott; that on the 24th of January, 1866, Kasson went to the witness and said he wanted to pay the mortgage in pursuance of their former arrangement, and that under that representation he did pay $1110 in full satisfaction and for that purpose, and that the person who did this was not Jas. Gr. Dudley, but was A. N. Hungerford, a joint owner with Kasson of the land; and further to follow the same by evidence that the plaintiff paid no value for the mortgage.”
    This was objected to by plaintiff, the objection sustained by the court, and a bill of exceptions sealed.
    Abbott offered to prove, “ that A. N. Hungerford was interested in the mortgaged premises, as owner before and at the time of the assignment of the mortgage to Dudley, and that he paid the mortgage for himself and Kasson, and procured the assignment to Dudley for the purpose of defrauding Abbott, a subsequent mortgagee, out of the amount of said mortgage.”
    This was objected to by plaintiff, and the objection sustained and a bill of exceptions sealed.
    The verdict was for the plaintiff for $1368.29.
    Abbott the terre-tenant took a writ of error, and assigned for error the rejection of his offers of evidence.

      B. O. McCoy and F. B. Cfuthrie, for plaintiff in error.

      P. Church, for defendants in error.
    November 4th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

— Had the proposed testimony been admitted, it is evident that the instructions upon it, which the court would have been bound to give, would have left it without effect in the disposition of the case; it was therefore not error to reject it.

Looking at the case in the light of the testimony, and of the offer, which we must, so far as the case is now concerned, regard as true; it appears that Abbott, the plaintiff in error, was bound to satisfy the Chase mortgage, for he sold and made a deed for the property to Kasson for a gross sum, and took a mortgage without bond for the entire purchase-money. He would be bound by the covenants in the deed to clear off the prior encumbrance, which was the Chase mortgage. At all events the security of his own mortgage would require this. If Kasson, or Kasson and Iiungerford, paid off the mortgage, both being interested in the purchase from Abbott, it does not admit of any doubt that they could have set it off against the Kasson mortgage to Abbott. This would be their right by law,- and is just what and no more, the contract between Abbott and Kasson amounted to. The agreement was no concession of anything to Kasson. Had the set-off been made and Kasson had had a credit on his mortgage for the amount, a different question would have arisen. But this was not done. Now the proposed testimony was to show that Kasson and Hungerford, or both, paid the amount due on the Chase mortgage, and procured an assignment of it to be made to Dudley, in violation 'of the agreement or understanding that if they paid it, it should extinguish pro tanto the Kasson mortgage. But as already said, the agreement was only what the law without an agreement permitted, and without there was some consideration for the agreement it was simply nudum pactum and not obligatory. No consideration appears for the agreement and none was offered to be proved. There was therefore nothing wrong on part of Kasson and Hunger-ford on paying to Chase and wife the amount of their mortgage against Abbott, to have it assigned, and then keep it on foot for their own safety and security. No doubt the law is, as stated in Gilkeson v. Snyder, 8 W. & S. 200, and other cases, that payment by a mortgagor is to be regarded as extinguishment. It would be a novelty for a purchaser of land to keep on foot his own mortgage against his own estate. But no such rule exists where the payment is of an encumbrance existing anterior to the purchase. There, as a general thing, a mortgage may be kept on foot as a security to the party paying. That was the case in hand, and we do not see how Abbott is injured, legally speaking. He took the land or ground he sold to Kasson, as security for his purchase-money. He was bound to pay off the prilbr mortgage. It was no part of Kasson’s purchase-money. If he was so bound in order to save his property, wherein is he injured by being obliged to pay it, having become the owner of' the property on which it was a lien ? If the property had been ample security for the mortgage of $9000, Abbott could not have complained at being obliged to discharge the prior mortgage. That it was not, was his mistake or misfortune, but does not change the law which makes the property liable in his hands for that prior mortgage.

In this view of the case we need not inquire whether Dudley paid anything for the assignment, or Miss Sterling, now Mrs. Kasson, paid anything; that concerns only Kasson and Hunger-ford.

There is nothing else in the case requiring notice, and as we see no error in the record the judgment is affirmed.