text:
    McCreary’s Appeal.
    1. A fi. fa. was issued on a judgment and land levied on, the defendant waiving an inquisition and making no claim for exemption; fi. fas. were issued afterwards on two other judgments, levies made and exemption claimed : writs of vend. ex. were issued in each case, and the land sold under the three at the same time. Held, that each execution was as much the instrument of the sale as the others and the defendant was entitled to his exemption.
    2. The first fi. fa. was on a judgment subsequent to the judgment of the second fi. fa., and the third fi. fa. on a judgment subsequent to both ; Held, that the defendant was entitled to his exemption only as against the third judgment, his omission to claim under the second judgment precluding him from any claim against the first.
    3. Line’s Appeal, 2 Grant 197, distinguished.
    May 28th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from, the Court of Common Pleas of Adams county: No. 82, of May Term 1873.
    In the distribution of the proceeds of sheriff’s sale of the real estate of Samuel McCreary, William McCreary, Sarah McCreary and Martha McCreary.
    The four McCrearys, being owners of a farm as tenants in common, John Barnitz, on the 10th of November 1852, recovered against them a judgment for $586.57. On the 10th of December 1865, Samuel and William became the owners of a tract of woodland, and on the 1st of April 1867, Abraham Keagy recovered a judgment against Samuel, William and Martha for $780. Barnitz’s judgment was revived July 31st 1862, and again July 20th 1867. John Runkel recovered a judgment against the four McCrearys, August 31st 1863, for $600, revived August 24th 1868, and Andrew Rudisil recovered a judgment against the four McCrearys, April 11th 1868, for $500, and another subsequently in the same month for $625. The liens of the foregoing judgments were continued by revivals in the same order, at the sheriff’s .sale, from which the fund for distribution arose.
    Therefore, then, Barnitz had the first lien on the farm, and the .second on the woodland.
    Keagy had the second lien on three-fourths of the farm, and the first on the woodland.
    Runkel had the second lien on a fourth of the farm, the third -lien on the three-fourths of the farm and on the woodland.
    Rudisil’s lien was the last, and covered the farm and woodland.
    On the 5th of January 1871, to August Term 1868, Runkel issued a fi. fa. on his judgment. The sheriff levied on the farm, but .did not levy on the woodland. The defendants waived an .inquisition. There was no claim under this writ by the defendants for exemption.
    On .the 11th March 1872, to April Term 1872, Rudisil issued a fi: fa. .on his first judgment. Under this writ the sheriff levied on .the farm and woodland. The defendants claimed their exemption and demanded an appraisement. The sheriff returned that an appraisement had been made, finding that the land could not be divided.
    On the 30th of March 1872, to April Term 1872, Keagy issued a fi. fa. on his judgment, the sheriff levied upon the interest (three-fourths) of the defendants in his judgment, in the farm and on the woodland. The defendants claimed their exemption, and the sheriff made the same return as under Rudisil’s writ.
    Writs of venditioni exponas were issued by Runkel, Rudisil and Keagy, and both tracts sold under them June 8th 1872. The farm sold for $2451; the woodland for $350.50.
    The fund being brought into court, M. W. Jacobs, Esq., was appointed auditor to report distribution.
    ' The only contested question before him arose on the claims of the defendants for $300 each under the exemption laws.
    The auditor allowed to William and Samuel the proceeds of the woodland, it not having been levied on under Runkel’s execution, and they having made their claims under the first execution under which it was levied on.
    These claims having exhausted the proceeds of the sale of that land, the distribution was confined to the proceeds of the farm.
    As to that the auditor reported :—
    * * * “ The second point affects the farm-fund and is the position advanced in behalf of the defendants generally, viz.: that a distinction must be taken between an actual waiver of the benefit of the exemption law, aid a mere omission to claim it; that, whilst the former is in contravention of the spirit of the law, which was intended for the personal benefit of the unfortunate debtor, and the comfort of his family, and not to give to one creditor any undue advantage over another, the latter, resulting most frequently from the ignorance or misfortune of the debtor, is not to be so harshly construed; that the defendants, not having actually waived the benefit of the exemption, as against Runkel, but merely having omitted to claim it, against his writ, whilst they are not entitled to take anything from this fund, as against Runkel, are entitled to take as against the other lien creditors. * * * But, however, well founded this distinction might be in theory, or in its application to other cases, your auditor fails to perceive how it can affect this distribution. The fund arising from the sale of the farm came into court on the Runkel execution] as well as on the writs of Rudisil and Keagy. The defendants made no claim to the benefit of the exemption law against that execution, and consequently can have no claims upon the fund. In Line’s Appeal, 2 Grant’s Oases 197, the15 Supreme Court say, per Strong, J.: ‘ The statutory privilege not being an exemption, but a right to obtain one, in a designated manner, if the debtor would secure it he must comply with the conditions, and one of them is that the appraisement shall be requested under the execution, which is the direct instrument of sale.’
    “ Here Runkel’s execution was the direct instrument of sale, and the defendants under that execution did not even, as appears from the sheriff’s return, claim the benefit of the exemption, much less demand an appraisement.”
    The auditor, after citing several cases, proceeded:—
    “Applying the doctrine contained in the above cases, your auditor is compelled to disallow entirely the claims of Martha and Sarah McCreary to exemption out of the funds in court, and to disallow the claims of William and Samuel McCreary, so far as they concern the fund arising from the sale of the farm.”
    He then reported a distribution, allowing Barnitz’s, Keagy’s and Runkel’s claims in full, and appropriating the balance of the funds, $165.08, to Rudisil’s first judgment.
    After exceptions, the court (Fisher, P. J.) confirmed the report of the auditor, and the McCrearys appealed to the Supreme Court, assigning the decree of confirmation for error.

      R. Cr. McCreary, for appellants. —
    A waiver of a claim for the exemption by omission has not the same effect as an express waiver: Bower’s Appeal, 18 P. F. Smith 126.

      McClean ¿-Woods and R. Wills, for Runkel and Keagy, appellees. —
    A debtor must make his election at the time of the levy: Hammer v. Freese, 7 Harris 255. Waiving the inquisition without claiming the exemption, waives the right: Bowyer’s Appeal, 9 Harris 212; Brant’s Appeal, 8 Id. 141. The claim must be made in the case which is the instrument for effecting the sale: McAfoose’s Appeal, 8 Casey 276. The claim must be against every execution: Strouse v. Becker, 2 Wright 190; Dodson’s Appeal, 1 Casey 232; Line’s Appeal, 2 Grant 197; Weaver’s Appeal, 6 Harris 307.
    There was no paper-book for Rudisil.
   The opinion of the court was delivered, July 2d 1873, by

Williams, J. —

If the sale had been made on Runkel’s execution alone, there would be nothing to distinguish this case from Line’s Appeal, 2 Grant’s Cases 197; but it wras not. It was made on the executions of Keagy and Rudisil, as well as that of Runkel. The lien of Keagy’s judgment was prior to that of Runkel, and his execution was first issued. Runkel’s execution, therefore, was not the direct instrument of sale. If it had not been issued, the property would have been sold on the other executions. In this respect the case is distinguishable from Line’s Appeal. In that case there was no claim for the benefit of the Exemption Law, and no appraisement was demanded on the execution on which the sale was made. But here the benefit of the exemption was claimed, and appraisement was made on two out of the three executions on which the property was sold. As against Runkel, the appellants are not entitled to the exemption by their failure to demand it. But as between Runkel and Keagy, the latter is entitled to have his judgment first satisfied out of the proceeds of sale, and his right to satisfaction cannot be postponed or defeated by the appellants’ waiver of exemption in favor of the former. The appellants,' therefore, are not entitled to any portion of the proceeds as against either. But why are they not entitled to the exemption as against Rudisil, whose judgment is subsequent to Keagy’s and Runkel’s? They claimed it as against Rudisil. Their failure to claim it as against Runkel did Rudisil no harm. It placed him in no worse position than if they had demanded its benefit as against Runkel. If the sale had been made only upon the executions of Keagy and Rudisil, there can be no doubt that, as against the latter, the appellants would be entitled to the exemption. Why should their failure to demand appraisement on Runkel’s execution deprive them of a right which they would otherwise have had ? What equity has Rudisil to claim that the failure shall inure to his benefit ? It did him no harm. As against him the appellants were guilty of no laches in making their claim. Why, then, should it not be allowed ? It seems to us that their failure to demand appraisement as against Runkel did not work a forfeiture of their right to demand it as against Rudisil, and therefore they are entitled to the exemption as against him. But they can only come on the residue of the fund after paying the prior judgments, and as it is not sufficient to satisfy the claims of all the appellants, how shall it be distributed ? Manifestly Sarah McCreary is in equity entitled to the whole of it; the interests of the other appellants in the proceeds of sale having been exhausted in paying the prior judgments. The residue of the fund must therefore be appropriated to the claim made by Sarah McCreary to the exemption to which she is entitled under the law.

'And now, July 2d 1873, It is ordered, adjudged and decreed that the decree in this case be reversed and set aside as to Andrew Rudisil, and that the balance of the proceeds of sale, amounting to one hundred and sixty-five dollars and eight cents, applied to the payment of his judgment (No. 228, January T. 1868) against the appellants, be appropriated to the claim of Sarah McCreary, one of the appellants, to the exemption to which she is entitled under the law; and it is further ordered that the appeal of the other appellants be dismissed at their costs, and that the costs incurred by the appeal of Sarah McCreary be paid by Andrew Rudisil, the appellee.


source: Caselaw Access Project

author: Williams, J. —

license: Public Domain

text:
    Sheetz et al. versus Wynkoop et al.

    1. An execution was issued against thi-ee on a joint judgment; one being in the army, the court, under the Act of April 18th 1861, stayed the execution as to him, but refused to quash the writ, and allowed the execution to go against the other two: Held to be correct.
    2. The undivided interests of two of the defendants in land held jointly by all were sold under the execntion. Held, that the sale passed a good title to those interests.
    3. The exemption under the Act of 1861 was a personal privilege to the soldier, and not to benefit his co-debtors.
    4. The rule that process to enforce a joint judgment must be joint, being technical, will not be allowed to be used so as to work injustice.
    5. Process forbidden by law is void, and a sale under it conveys no title.
    6. If one of several plaintiffs die after judgment, upon suggestion of the death, execution may be sued out by or against the survivors ; or execution may be sued out by or against the survivors in the names of all, but it can be executed only against the survivors.
    7. Application was made by the defendants under the Stay Law of May 21st 1861, to stay execution on fi. fas. issued against them; no notice was given to the plaintiffs in the judgment under which the land was sold ; the court directed a stay “ on all judgments,” but no entry of the order was made on the docket. The execution was issued before the expiration of the stay. Held, that it was not void, but erroneous, and might have been set aside, but could not be questioned in an ejectment by the defendant for the land.
    8. The Acts of April 18th 1861 and April 22d 1822 (Process against Soldiers), construed.
    9. Cadmus v. Jackson, 2 P. P. Smith 295, distinguished.
    May 29th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Lebanon county: No. 53, to May Term 1873.
    This was an action of ejectment, brought March 12th 1872, in the Court of Common Pleas of Schuylkill county, by Samuel Sheetz and William Frederick Breitenbach, a minor child of William S. Breitenbach, deceased, by his guardian, against John E. Wynkoop and E. W. Wynkoop, Augustus W. Huber, Zacharias Batdorf and the Star Iron Company.
    By virtue of a special Act of Assembly, the case was, on the 10th of June 1872, removed to the Court of Common Pleas of Lebanon county.
    The plaintiffs claimed to recover the undivided two-thirds of a body of land, with iron works and other buildings; being in Schuylkill county and known as “ The Stanhope Furnace Property,” containing 1215 acres. A disclaimer. of Huber to any part of the premises was filed February 3d 1873 ; and disclaimer of Batdorf to “the furnace and tract on which it is erected, not exceeding 200 acres,” was filed February 17th-.
    The defendants in interest were' the Wynkoops.
    The tract had belonged to William S. Breitenbach and John R. Breitenbach and Samuel Sheetz, partners in the manufacture of iron, and by their articles of partnership, it was stipulated that the land should be partnership property.
    The case was tried February 17th 1873, before Pearson, P. J.
    The foregoing was given in evidence or admitted. Under objection and exception the defendants gave in evidence a judgment in the Common Pleas of Schuylkill county, Simon Cameron and others against the Breitenbachs and Sheetz, for $2500, entered February 15th 1860 and assigned October 22d 1860, to Augustus W. ITuber and William A. Huber. A fi. fa. was issued on this judgment to March Term 1861; a large number of executions were issued to the same term on other judgments. • The real estate extended at a rent of $10,000 per annum: at which rent the defendants gave notice that they would retain the property.
    On the 11th of June 18'61, John B. Breitenbach presented his petition to the Court of Common Pleas of Schuylkill county, setting forth the numerous fi. fas. (which he specified, not including Cameron v. Sheets above stated), one being Waterman et al. v. Sheetz et al., had been issued against the firm, and setting forth numerous judgments, including the above-stated judgment of Cameron v. Sheetz and mortgages, that were liens against their property, and that they all amounted to less than $50,000; that the defendants’ personal property had been levied on under the executions, and advertised for sale on the 12th of the same month; that if a sale should be made the personal property would be greatly sacrificed. He further set out that the real estate of the defendants as described in a schedule attached to the petition, was worth at a fair valuation from $70,000 to $80,000. The prayer was that the court would stay or set aside the executions as provided by the Act of May 21st 1861 (Pamph. L. 770). No notice of this application was given to the owners of the Cameron judgment.
    The act provided for a stay of execution for six months, under the circumstances set out in the petition, upon conditions mentioned in the act.
    Upon this petition the court ordered a stay of execution and an adjournment of the sheriff’s sale until the 20th of June, and appointed the 19th for a further hearing of the petition. On that day the court ordered a stay under the provisions of the act, “ and also that execution do stay on the judgments.” The order was endorsed on the petition but no entry of it was made on the docket.
    The rent under the extension not having been paid, a venditioni was issued on the Cameron judgment on the 23d of January 1862.
    On the 3d of March 1862, John B. Breitenbach, one of the defendants in the execution, filed an affidavit averring that he was and had been in the military service of the United States since ■the 27th of August preceding, under a requisition of the President of the United States and an order from the Governor of Pennsylvania, by whom he had been commissioned as captain, &c., and was bound to remain until the end of the war or until honorably discharged.
    Upon this affidavit, J. R. Breitenbach moved the Court of Common Pleas of Schuylkill county under the 4th sect, of the Act of April 1861 (Pamph. L. 409), to quash the venditioni; on the 6th of March the court stayed the writ as to J. R. Breitenbach, “ it appearing that he is an officer in the United States army under a requisition of the government,” and refused to quash the writ. The joint property of W. S. Breitenbach and Sheetz was sold by the sheriff to A. W. & W. A. Huber. The sheriff’s deed, dated March 22d 1862, was for the real estate, without stating it to be for the two-thirds.
    By divers conveyances the title to two undivided thirds came to “The Star Iron Company,” on the 26th oif January 1865.
    On the 26th of March 1867, John R. Breitenbach commenced an ejectment in Schuylkill county against The Star Iron Company fbr the premises, and on the 9th of’February 1872, he obtained a verdict for one-third of the land.
    The plaintiff in rebuttal gave evidence from the record that no affidavit of non-payment of the semi-annual rent was filed before issuing the venditioni.
    The court, stating the facts as above given and referring to the venditioni under which the land was sold, charged:—
    * * * “ The question presented for our decision is, did this sale pass the title of William S. Breitenbach and Samuel Sheetz ? If it did, the plaintiff cannot recover. It is said that where a judgment is joint the execution must follow the judgment and issue against all of the defendants. This may be conceded, yet in the present case the fi. fa. and vend. ex. both issued against all, but on the application of one defendant for a reason peculiar to himself, the court stayed the writ as to him, but refused to quash it. This it is said was a grave error — that the court was bound to quash the writ. This is claimed under the 70th sect, of the Act of 2d of April 1822, 7 Sm. L. 638, 2 Br. Purd. 1061, pi. 182, and it is also contended that the Act of 18th of April 1861, Pamph. L. 409, sect. 4, 2 Br. Purd. 1061, pi. 183, which says that no civil process shall issue or be enforced against any person mustered into the service of the state or United States until thirty days after he shall have been discharged. This latter statute does not require the writ to be quashed, but the court should certainly under its provisions tabee measures to relieve the qoarty in service. This was done here, and as we conceive, the proper remedy was applied. We cannot believe that the legislature ever intended that where many persons are bound in a judgment the process should be stayed or set aside as to all because one was in service. As we would apply the statute, the writ must issue on the judgment against all, the joint or several property of each could be levied on, but the court would relieve the one entitled to a special exemption by forbidding a sale of his interest under the writ.
    “ The legislature of 1861 could not have known of the Act of 1822, or considered it in force, else they would not have enacted a law giving much less relief than the one in existence, passed when there was no apparent occasion for such a provision in a time of profound peace. But as the law never was repealed, we will treat it as in full force, yet like all other statutes it must be construed according to what we conceive was the intention of the legislature ; we must not stick in the letter — quihceret in litera hceretin cortiee. In enacting such statutes the legislature has in view a judgment of one person only, and designs, to relieve his property — did not provide for the case of an obligation against several. It never was intended that because a man was bound in a bond with others that they could not be sued, and the writ be quashed as to him because he ivas in,service, or if a joint judgment was entered against a dozen men, the execution must be quashed because one was in the army. It is quite sufficient when that one is relieved — such is the object and intention of the statute. To relieve all the co-obligors would be going beyond the intention of the legislature. But suppose we are in error as to the proper construction of this law, we cannot correct the errors of the court of Schuylkill county. That court made a decision refusing to quash the writ. We are not the tribunal to review it, nor can we treat it as a nullity; if wrong, the defendants had remedy by writ of error. The process after this decision was not void, it was at most voidable and must be reversed by the Supreme Court. It is said that a great error was done to these defendants by the sheriff proceeding to sell their property on the old advertisement without new notice, and selling as if it was the estate of all when one was discharged. That would look more like doing injustice to the purchaser, though the matter seems to have leen perfectly understood. ’ Taking it for granted that it would be an injury, yet the proper mode of redress was to apply to the court to set aside the sale before the sheriff’s deed was aeknoAvledged. That, in our opinion, cures all irregularities. 'It will not cure the want of a judgment or execution. Here both exist. The party must seek redress at.a proper time and before the proper tribunal.
    “ It is said, hoAvever, that the execution issued here, and the sale was made under it, in violation of the Act of May 21st 1861, relating to the stay of executions.
    “ That statute gives a stay for one year on all judgments then existing on the docket, as also those which shall be afterwards entered. On the 11th of June 1861, John R. Breitenbach by his petition asked for a stay of execution under the provisions of that laAY, setting forth that the personal property was levied on and likely to be sacrificed. He obtained an order suspending the sale on testatum writs and also on judgments, and from the language of the court it probably was intended to apply to all executions which might be issued on all these judgments contained in the list attached to that record. Waiving for the present the necessity of having the order made in each particular case, we understand it that this judgment was not included in the list. They are not all described by number and term, but only by the name of the plaintiffs and when assigned by that of the cestui que use. This one stood for the use of another person and was fora different amount. We have not had the advantage of inspecting the record but as read this one is not embraced. It is said, however, that when such an order is made on the record every judgment-creditor is bound to take notice of it and issue at his peril. We think differently, and that the debtor must apply for his stay of execution and make proof before the court of the value of his property, and show that it comes within the provisions of the statute, or give the security as required by law. That the creditor is entitled to notice of such application to enable him to appear before the court and controvert the facts, and show that it is of less value or the bail insufficient. The order made as to others could not bind this judgment-creditor, it is only obligatory on those notified. * * * So far from John R. Breitenbach claiming a stay of execution on the judgment in this case, on the 7th of June 1861, he gave notice that he elected to take the property at the rental of $10,000 a year as fixed by the inquest, and the same was agreed to by the plaintiffs. On this the defendants obtained the stay until January 7th following, when on affidavit filed that the rental was not paid an execution issued. During all of this time there was no intimation that a stay was claimed under the Act of 1861, but on the contrary the defendants apparently expected to have a much longer stay by paying the annual rental. Under these circumstances we certainly cannot declare the sheriff’s sale void, more especially as no motion was made to set aside the process, or objection taken to the acknowledgment of the sheriff’s deed. It is too late to controvert the sheriff’s sale after ten years and after the property has passed into the hands of innocent holders, so far as shown on this trial at a cost of over $100,000, for two undivided third parts of the premises.
    “ Although as a general rule the fi. fa. and vend. ex. must follow the judgment, where the one is joint the other must be also. Yet in the case of an infant, the court will set aside the process as to him, but permit it to go on as to the others and sell their property. It is a personal privilege conferred on the infant, as this is as to the soldier in service.
    “ Lastly, it is said that the sheriff cannot divide a tract of-land in making a sale. This is true, a levy cannot be made on a part of a tract, yet we are not aware of any decision that the whole of an undivided share cannot be sold, or that the interest of one tenant in common cannot be levied on and a good title made thereof by sheriff’s sale, without disposing of the interest of the other tenants in common.
    “ On the uncontroverted facts in this case we are of the opinion that the title of W. S. Breitenbach and Samuel Sheetz passed by the sheriff’s sale and deed, and therefore they are not entitled to recover, consequently your verdict must be in favor of the defendants.” ■ '
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and in eleven specifications assigned the charge for error.

      W. M. Derr and Thompson (with whom was J. JR. Breitenbach), for plaintiffs in error. —
    In a joint judgment the execution must follow the judgment: Grenell v. Sharp, 4 Whart. 344; Shaffer v. Watkins, 7 W. & S. 219; Bartlett v. Pentland, 1 B. & Ad. 703. The venditioni exponas was void, under the Act of April 18th 1861, there being no authority to issue it: Cadmus v. Jackson, 2 P. F. Smith 306. The sheriff cannot sell an interest different from that levied on: Grubb v. Guilford, 4 Watts 223; Hoffman v. Danner, 2 Harris 25. A sheriff’s sale to plaintiff in the execution, where there has been no advertisement, confers no title to him: Gibbs v. Neely, 7 Watts 305. The whole interests of the defendants in the execution in one tract must be levied on: Carpenter v. Cameron, 7 Watts 60. The sale' of two undivided interests was void, and no title passed: Mitchell v. St. Maxent, 4 Wallace 242.

      W. JR. Smith and B. W. JHJughes (with whom was J. Bunch), for defendants in error. —
    The Act of 1822 applies to a drafted soldier: Breitenbach v. Bush, 8 Wright 313. A second stay could not be granted: Billmeyer v. Evans, 4 Wright 324.
   The opinion of the court was delivered, January 2d 1873, by

Williams, J. —

If the plaintiff’s title to the land in controversy was divested by the sheriff’s sale, under which the defendants claim the ownership, they were not entitled to recover; and the court below was right in giving a binding direction to the jury to find for the defendants. The execution, on which the sale was made, followed the judgment. It was issued against all the defendants. The court refused to quash the writ, but ordered it to be stayed, so far as regards John B. Breitenbach, “ it appearing to the court that he is an officer in the United States army under a requisition of the government.” Thereupon the sheriff sold the interests of the other defendants in the land levied on, and acknowledged and delivered a deed therefor to the purchaser.

If the execution was void, the sale was a nullity. But if it was not void, the sale divested the plaintiff’s title. Though the writ may have been erroneously issued, if it was not absolutely void, the error was cured by the acknowledgment of the deed, and the purchaser took a valid title under it. There was nothing on the face of the record showing that the plaintiffs in the judgment had no right to issue the writ. It may be conceded that it was void as against John R. Breitenbaeh, because forbidden by the 4th section of the Act of 18th April 1861 (Pamph. L. 409), which declares that “ no civil process shall issue or be enforced against any person mustered into the service of this state, or of the United States, during the term for which he shall be engaged in such service, nor until thirty days after he shall be discharged therefrom.” But if it was void as to him, was it void as against his co-defendants? It was not forbidden as against them, either in express terms or by necessary implication. The act must have a reasonable construction; and in order to ascertain its meaning, regard must be had to the purpose and intent of the legislature in its enactment. Manifestly it was int <■ led for the relief and protection of persons mustered into the service of the state or of the United States, for the purpose of aiding in suppressing the rebellion and maintaining the Union; and it was not intended for the benefit of any other class of persons. Its sole object was to exempt them from civil process while engaged in such service, and for thirty days after their discharge. It was intended to prevent their rights and property from being sacrificed while absent from home in the service of the government; but it was no purpose of the act to exempt their co-obligors or joint debtors from liability to process in the meantime. The exemption was intended as a personal privilege of the soldier. Why, then, should the co-defendants of John R. Breitenbaeh take any benefit or advantage from the provision ? If the execution was forbidden, as against him because he was in the military service of the government, what is that to them, if it was not forbidden as against them ? It is clear that they are not within the letter of the act, for they were not mustered into the service of the state, or of the United States; nor are they within its spirit, for its sole purpose was the protection of the rights and property of the soldier. If the execution was forbidden and void as against the one defendant, it does not follow that it was illegally issued and void as against the others. The rule, that when the judgment is joint the process to enforce it must be also joint, is technical, and has more of form than substance in it; and the court, from which the process issues, will take care that it be not used so as to work injustice: Mortland v. Himes, 8 Barr 265. If the judgment had been against John R. 'Breitenbach alone, it would unquestionably have been the duty of the court to set aside or quash the execution. But if the court had simply stayed the writ, none bnt the defendant could have complained or taken advantage of the error. And if the plaintiffs in the judgment had the right to sue out execution as against the other defendants, the court was not bound to quash the writ as regards them, and no injustice was done to John B. Breitenbach by the order staying the execution as to him, and refusing to quash it. This case is clearly distinguishable from Cadmus v. Jackson, 2 P. F. Smith 295, upon which the plaintiffs in error rely. There the judgment was not joint but several; and the execution, on which the land was sold, issued after the defendant’s death without any warning to his personal representatives. It was held that the execution was void, because forbidden by the 33d section of the Act of 24th February 1834, and consequently that the purchaser took no title under it. The principle upon which the decision rests is this: process forbidden by law is void, and a sale under it conveys no title. But the principle has no application in this case. If the execution as against John B. Breitenbach was void because forbidden by the Act of 1861, his interest in the land levied on was not sold, and, therefore, the question, whether a sale under it would have divested his title, does not arise. The question here is, whether the execution as against the other defendants was void and the sale a nullity. If the judgment in Cadmus v. Jackson had been a joint judgment, and the writ had been stayed as to the deceased defendant, can there be a doubt that the sale of the surviving defendants’ interest in the land would have been good, and that their title would have vested in the purchaser on the acknowledgment and delivery of the sheriff’s deed ? Where there are several plaintiffs and defendants, and some of them die after final judgment and before execution, upon suggesting the death upon the roll, execution may he sued out by or against the survivors by name; or execution may be sued out by or against the survivors in the names of all, but it cannot be executed as against the survivors only : 2 Arch. Pr. 294-300; 2 Saund. 72 K.

If the plaintiffs in the judgment might have sued out execution against the other defendants upon suggesting the fact that John B. Breitenbach was an officer in the United States army, as doubtless they might, the execution was not void as to them. If it erroneously issued against all the defendants, because one of them was exempt from process, the error was cured by the order staying the writ as to him, and by the acknowledgment of the sheriff’s deed; and the validity of the proceedings cannot be collaterally questioned in this action. The execution, therefore, was not void under the Act of 18th April 1861; nor was it void under the prior Act of 2d April 1822, if this act was not superseded and supplied by the Act of 1861. There is nothing on the record showing that John B. Breitenbach was called into actual service, as an officer or private of the militia, under a requisition of the President of the United States, or in pursuance of the orders of the governor of this Commonwealth. On the contrary, the record shows that he was not an officer or private of the militia, but an officer of the United States army; and if so, he was not within the provisions of the act. But if he was within its provisions, and entitled to the exemption from execution and other process for which it provides, it is clear that his co-defendants were not, and there is nothing in the act to prevent execution from issuing on the judgment as against them; and they cannot complain that the court stayed the writ as against their co-defendant not liable to process, if it might lawfully issue as against them. The execution, then, was not void under either act, and if it was voidable because forbidden as against one of the defendants, the plaintiffs in this action can take no advantage of the error.

But it is contended that the execution was void because the defendants had obtained an order staying execution on the judgment under the Act of 21st May 1861 (Pamph. L. 770), and the execution was issued before the expiration of the stay. But there is nothing on the face of the record showing that the defendants had obtained any such order. On the contrary the record shows that the defendants had elected to retain the property levied on at the annual valuation fixed upon it by the inquest, and that the plaintiffs were entitled to execution, when the writ was issued, in default of payment of the half-yearly instalment for more than thirty days after it fell due. It is true that in the case of Waterman, Young & Co. v. Breitenbach, Sheetz & Co., the defendants applied for an order staying sundry executions against them, of which a list is given, and to which is also appended a list of the judgments which were liens on their real estate, including the judgment upon which the land in question was sold; and upon the hearing of the application the court ordered and directed “ that all the writs of fi. fa. issued out of the Common Pleas of Schuylkill county against the said defendants be stayed under the provision of the Act of Assembly of May 21st 1861. * * * And also that execution do stay on the judgments.” Whether the order was intended to embrace all the judgments which were liens on the defendants’ real estate, or only those upon which executions were issued, does not clearly appear. No notice of the application for stay was given to the plaintiffs in the judgment upon which the sale was made, and the defendants did not move the court to set aside the execution on the ground that the judgment was embraced in the order and the stay had not expired. If the order was intended to embrace the judgment, the plaintiffs should have had notice of the application ; and the order should have been made part of the record, or some note or memorandum of it should have been entered on the docket. In the absence of any such entry there was nothing on the record showing that the plaintiffs were not entitled to sue out execution. But if the order of stay was intended to embrace the judgment, the execution was not void. If the writ issued before the stay expired, it was erroneously issued, and would have been set aside by the court on the defendants’ application, but it does not follow that it was a nullity. The most that can be said against it is that it was irregular and erroneous, but if it was, its validity cannot be questioned in this action. Until set aside or reversed it must be regarded and treated as valid: Stewart v. Stocker, 13 S. & R. 199; s. c. 1 Watts 135; Lowber’s Appeal, 8 W. & S. 387; Wilson v. Howser, 2 Jones 107. There is then, as we have seen, nothing on the record showing that the execution was prematurely issued, and if it did appear that the defendants were entitled to a stay, the validity of the writ cannot be collaterally questioned in this action. As said by Kennedy, J., in Lowber’s Appeal: Where the objection extends no further than that the judgment, upon which the execution has been issued, has been erroneously entered or obtained; or the execution erroneously issued thereon, no other person than the defendant therein or his legal representatives will be permitted to make it. Nor will they be permitted to do so in a collateral action or other manner than by suing out a writ of error or by making a direct application to the court in which the judgment is entered, or from which the execution has been issued, to vacate or set the same aside. This course is settled by a train of authority in this state which cannot be contested or resisted.” As the execution was not a nullity, it follows that the court rightly instructed the jury that the plaintiffs are not entitled to recover, and consequently their verdict must be in favor of the defendants.

Judgment affirmed.


author: Agnew, J. —

text:
    Watterson versus The Allegheny Valley Railroad Company.
    1. A landowner for $1 released to a railroad company the rigiit of way, &c., through his land, and sold them a lot on which to erect a depot. In an action against the company for not erecting the depot, parol evidence that its erection was the consideration for the release, was admissible.
    2. The agreement for erecting the depot being executory, it did not conflict with the release.
    3. The court charged that the evidence to establish the contract “ must be strong, clear and indubitable.” Held to be error, the ordinary measure would be sufficient under the evidence.
    4. If the contract were established the measure of damage for its breach would be the additional value that would have accrued to plaintiff’s land had the depot been erected.
    5. Profits of business could not be considered; but the increased value of the property as a place of business could.
    October 6th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Allegheny'county: No. 204, to October and November Term 1873.
    This was an action on the case, brought May 26th 1869, by James Watterson against The Allegheny Yalley Railroad Company. ,
    The plaintiff, by his declaration, averred that the defendants, in consideration of his granting and conveying to them a right of way for a double railroad track over his land, for the nominal consideration of one dollar, promised him that they would locate on his land a railroad station and depot for freight and passengers, and thereby promote the business at the place, the plaintiff being a forwarder and warehouseman there; that the defendants also promised him that they would remove the blacksmith shop, warehouse and buildings of the plaintiff, and erect the same at other convenient.places on his land, and build a stone wall on his land along the line of the railroad, for the safety and preservation of his land and premises. Plaintiff further averred that, relying on these promises, “he did, for the consideration aforesaid,” make to the defendants a grant of the right of way, “ expressing in the deed the nominal consideration of one dollar, which was never in fact paid;” but that the defendants did not establish on the plaintiff’s land “ a railroad station and depot for freight and passengers,” and did not remove the blacksmith shop, warehouse and buildings, and did not construct a stone wall along the railroad; “ whereby the plaintiff hath been and is deprived of great gains and. profits, which he could and otherwise would have acquired and gained as a warehouseman and forwarding merchant, at the place aforesaid, by the location, and establishment of the said railroad station and depot; and hath also been deprived of and lost the great profit, advantages and gain 'which he could and otherwise would have acquired and gained by the enhanced and increased price and value of his said land, &c., by and through the establishment of said railroad station and depot, and the transaction and promotion of business thereby; and also by means thereof the plaintiff was prevented from selling divers lots, pieces and portions of his said land at and for large sums of money, &c., which he could and otherwise would have acquired and gained; and also by means of the premises, and for want of the said stone wall, which the defendant so as aforesaid undertook and promised to construct and build, the plaintiff’s land and premises have been and are greatly injured and'damaged and depreciated in value, &c.; and also by means of the premises and by reason of the construction of said railroad in, upon and through the land aforesaid of the plaintiff, the said land, blacksmith-shop, warehouse and buildings have been greatly injured, wasted and depreciated in value, &c.; and also by means of the premises the plaintiff hath been and is greatly hindered, interrupted and delayed in his business and in the use, occupancy and enjoyment of his said land and premises, to the damage of the plaintiff twenty thousand dollars, and therefore he-brings suit, &c.” • .
    The case was tried September 19th 1871, before Collier, J.
    The plaintiff gave in evidence his release to the defendants for damages for the right of way of their railroad through his land.
    He then testified that William Phillips, the president of the defendants, and William McCullough, the vice-president, were at his house when he signed the release; the road had not then been made to his place; they came with the instrument drawn up. “ They induced me to sign it by agreeing to move my building: they wrere to build a stone wall back of my house; and a bridge across the run. They were to build a freight and passenger depot on a piece of ground I deeded to them the same day. I wanted them to give it to me in writing, as it was not in the deed. Mr. Phillips said he would give it to me any time, as he had not time then ; he had to go away. He said it was not necessary, but he would give it any time. They said they would give their word of honor that they would do everything they had promised. This was before I signed the release. I would not have signed the release if I had not believed them. They said it would make my property worth double to have the depot there. They were there about an hour; maybe not so long. They went oif immediately after I signed the deed of release. They had been there several times before that day on the same business. McCullough was there some three or four times, and Mr. Phillips, I think, twice. I think the second time they came, they left the deed for the ground forme to examine. The right of way was embodied in that deed at first — both the ground for the depot lot and the right of way. I refused to sign it. He said it was not drawn up according to orders at all. The solicitor had drawn it up, he said. The next time they had both deeds with them. I then executed them, after an alteration being made in the deed for the ground. They talked over this matter before I signed the release at several interviews. They never did what they said. * * * I told Mr. McCullough that there was a report out that they were going to take the depot to Phillipsburg. He assured me they would go on and put it up, just as they had agreed to. They never put the building up. * * * Phillips said if I did not let it go on my ground, he would have to put it further up, and that would injure my property. I told him I would let him have about an acre to put a depot on for a thousand dollars, and would give him the right of way rather than it should go below. Didn’t tell Col. Phillips I would take a thousand dollars and make him a release and deed. I would not have taken $2000 at that time for that lot for any other purpose. * * * I told him I would give him an acre to put the depot on for one thousand dollars, and they were not to use it for anything else. I was paid the one thousand dollars. The terms agreed upon about the right of way were, ‘ that they were to take the buildings down and build the roads.’ He, Phillips, did agree to build a depot on the lot that he gave $1000 for. They pledged their honor that they would do these things. The promises were made as to both bargains. I did not ask Col. Phillips to put in the $1000 deed a covenant in regard to the freight and passenger depot. My wife would not sign the deed till the covenant about taverns, &c., was inserted. I requested that it be put in writing as agreed, and they said it was not at all necessary. Col. Phillips said he would put a general freight and passenger depot to supply that part of the country. I say positively that part of-the conversation about the buildings, &c., was before the papers were signed by me.”
    Plaintiff proposed to testify how much more his property would have been worth at any time after defendants could have built their freight and passenger depots, as agreed on, if they had built them, up till the time of bringing this suit, than it was worth during that period, without the depots.
    Defendant objected to the offer, for.the reason that the evidence is speculative and uncertain as to the damages alleged to have been sustained, &e.
    The court rejected the offer and sealed a bill of exceptions.
    Mary A. Watterson, wife of plaintiff, testified: — “Recollect Col. Philips and Mr. McCullough coming to our house about the right of way. Recollect signing the deed for the depot lot. They were there three times, I think. Their first errand was the right of way. The second time they came they proposed to buy the acre of ground for a freight and passenger depot, and what an advantage it would be to our property — that it would double it. Col. Phillips and Mr. McCuilough came the day we signed the deed. They sent for me to come and sign the paper. I was not willing to do it unless Col. Phillips would give it ‘ in writing’ all that he intended and promised to do. Mr. Phillips said the property would be worth double. I said I could not see it. I said, how would it be if our living was taken away from us ? We were then getting our living by store and freight. He said Watterson could make more money after they got their buildings up by selling salt; that business would be ‘ brisker ’ than at present. I wanted it put in writing, or put on the deed I signed. They said they had not room, or had not time, but would give me papers to that effect if I would sign it. Phillips said if we would give them the right of way the property would be worth so much more. I insisted on their doing what they said. I said I would not have a tavern or restaurant on the lot. Phillips said to McCullough that it did not amount to much, they could put that in. They were to have the right of way for one dollar, if they would go on and put up the building, that is, if I understand the writings. This was all before the papers were’signed. After the papers were signed they both left. I was out several times and was waiting for Phillips and McCullough to give-us in writing what they agreed to do. They sent for me again. Mr. Phillips said it was not necessary, and they had not time at present; that he would give me his word and honor that he would do all he agreed to. Then I took the deed and signed it, but told the justice of the peace that I did not do it with a good will, without they would give us the writings. Had no further talk, only Mr. Phillips told me not to be uneasy, that they would do all they agreed to do. * * *
    “ Col. Phillips said $1000 was too much. He said we ought to give him the right of way and the ground for less, as putting the buildings on would double the property. He said the railroad would make our property double what it was. He used that as an argument. Phillips first asked for the acre of ground. The right of way was not then mentioned. Phillips came back and said he would give the thousand dollars, and that was the bargain for that lot. They were to have the right of way for $1 if they would do what they said. This was with Col. Phillips. He said he would put up the buildings and make that the main point for Clarion county.”
    Esq. Hull testified: “ I was sent for to acknowledge some papers. Col. Phillips and McCullough were there. Mrs. Watterson said she would not sign the deed till it was put in, that no tavern or eating-house should be erected on the premises. After this was inserted, Mrs. Watterson said ‘she would like to have the writings, that you are going to put the depot here,’ or words to that effect. Mr. Phillips said they had not time to do it that day, but they would do it any other time. Mrs. W. then picked up the deed, went into the dining-room and signed it with a very good will. After taking Mrs. W.’s acknowledgment, I took the acknowledgment of Mr. W. to the right of way. He signed and acknowledged it. T then went away. I think I did not hear her insist on anything else going in the deed except what I have stated. * * *
    “Mrs. Watterson objected to signing the deed till the.condition about the tavern and restaurant were inserted. This was all she demanded to go in the deed.”
    There was other evidence in corroboration of the testimony of the plaintiff and Mrs. Watterson, and very much evidence as to the damage sustained by the plaintiff by reason of the location of the road and the failure to erect the depot, &c.
    For the defendants, Wm. Phillips, president, testified: “ I went up in company with Mr. McCullough and Mr. Wright. Met Mr. Watterson, walked with me around the premises. I asked him what he would take for a certain piece of ground near his house, containing about an acre. * * * I asked him what he would take for it. He said $1000. I told him I thought it too much. I went to Watterson and offered if he would give me that piece of ground and the right of way for $10001 would close with him. He agreed to take it. We were to make a stone wall, move his stable, or pay for a school-house. If the warehouse should have to be moved, we were to do it. I told Mr. Watterson that we wanted to build a freight and passenger depot on the lot, but it was never spoken of as a part of the consideration. That was the agreement we made. Mr. Gulden made out the deed, and in it he embodied the right of way. When the paper was presented to me I stated it was not drawn in the manner I would like to have. I preferred to have it divided — put in the $1000 for the lot and for the deed of right of way. I wanted the consideration for right of way to be put in as one dollar. About three weeks after I had the deed prepared, as agreed upon with Mr. Watterson, we had the deed of release, and went to Mr. Watterson. Presented the deeds to Watterson. He looked over them. Watterson read over the papers, then went into an adjoining room and talked to Mrs.’ Watterson. Came out and remarked Mrs. Watterson did not feel willing to sign the deed for this acre of ground. I asked what the objection was. He said she was not willing to sign it unless we were willing to insert the provision about the tavern or restaurant. I told Mr. Watterson that I thought it was entirely unnecessary to insert that, for our charter prohibited us from embarking in tavern-keeping business.' He still insisted, and I turned to Mr. McCullough and directed him to put it in. It was put in, then handed it to Mr. Watterson, who took the pen and signed it. His wife was in the room at the time. . Mrs. Watterson took the deed into another room, Esq. Hall accompanying her. She signed the deed. Release was signed at the same time. Both were acknowledged by Esq. Hall. Nothing was said that day except what I have told you. * * * Neither Mr. nor Mrs. Watterson ever asked me to even build a depot. They asked me to put in writing the building of a stone wall, or pay him for doing it — to take down, or pay him for it, the wash-house, school-house, stable and blacksmith-shop, and we were to pay for the stable. I told him that that was not necessary, and pledged him that it should be carried out precisely as agreed upon, for we were going right on. Neither Mr. or Mrs. Watterson asked me to put in writing that we would build a depot on the lot we bought. I paid the thousand dollars, built the stone wall, two hundred feet long, four feet at top.” * * *
    This witness testified, also, as to the damage sustained by plaintiff. There was evidence for the defendants corroborating Phillips’s testimony.
    The plaintiff submitted the following points, which were refused:—
    “ 1. If the jury believe that tie plaintiff delivered to the defendant’s agents a release of the right of way .through his land in Clarion county, and which defendant adopted and located its road thereon; and that the consideration for such release was the parol agreement, on the part of the defendant, to erect a stone wall on the north side of its road, past his buildings — remove plaintiff’s out-buildings to another site or pay for the removal thereof, and to build a freight and passenger depot on the land conveyed by plaintiff to defendant — that the release of such right of way is a valuable and sufficient consideration to support the premises made on behalf of defendant.
    “ 3. If the jury find from the evidence that the defendant violated said contract, then the measure of damages which the plaintiff is entitled to recover in this action is the value of his contract; that is, what it would have been worth to him if defendant had performed its contract.
    “ 4. If the jury believe that defendant procured said right of way in consideration of the promises of its agents that it would build a stone wall past his buildings, remove his out-buildings to another site and erect a freight and passenger depot on the land bought from him, and that defendant afterwards refused to perform this agreement, then that would constitute such a fraud on part of defendant as would entitle the plaintiff to the largest measure of damages for the loss of his bargain, with interest thereon.”
    The plaintiff-’s fifth point was affirmed. It was:—
    “The plaintiff is entitled to recover the difference in value between what his property was worth before the railroad was located through it and after it was completed, with interest on .such amount.”
    The defendant’s first point, which was affirmed, was:—

      “ The deed granting to the company the right of way for their railroad through the plaintiff’s land is in law a solemn instrument, and cannot, in whole or in part, be altered or changed as to the consideration expressed therein, unless upon the ground of fraud, accident or mistake.”
    The court charged;—
    “ 1. You must be satisfied by clear, strong and indubitable evidence that the agreement set up by plaintiff, as to erecting the freight and passenger depot, was made, and that it was not reduced to writing or put in the deeds, or either of them, because Colonel Phillips represented that it was not necessary, and that he would give the papers at any time, and that he would perform the agreement as he had promised. The burden is upon the plaintiff. The defendant has a right to stand upon its deed, and it can only be contradicted as to the consideration on the ground of fraud, as alleged, by clear, strong and indubitable evidence.
    “ 2. If you are not satisfied that the evidence is clear, strong and convincing on this point, then your verdict should be for the plaintiff for whatever damages he has sustained in removing his buildings; the blacksmith-shop and loss of rent therefor; the lumber of the warehouse destroyed, and what it cost him to complete the stone wall, if that was not built according to the agreement.

      “ 3. [But if you should be satisfied that the evidence is clear, strong and indubitable that there was a contract relative to the freight and passenger depot, and that it was not inserted in the deed of release by reason of the representations of defendant, as alleged, then the measure of damages would be the value of the plaintiff’s property at the time of the taking, deducting the advantages from the building of the railroad, if any, together with any annoyance that would interfere with the enjoyment of his house or property. But you cannot allow damages for the loss of business to the plaintiff occasioned by the railroad diverting the trade from him.]
    “ In either view of the case your verdict must be for the plaintiff.”
    The verdict was-for the plaintiff for $991.25.
    •He took a writ of error, and assigned for error the refusal of his 1st, 3d" and 4th points, and affirming defendant’s point, the part of the charge in brackets and the rejection of his offer of evidence.

      EL. Pollock, for plaintiff in error. —
    The measure of damages was the value of the contract. That was to be ascertained by the business, &c., a depot would attract to the place : Hoy v. Gronoble, 10 Casey 10; Wolf v. Studebaker, 15 P. F. Smith 459; Meason v. Kaine, 17 Id. 126.

      J. EE. EEampton (with whom were J. S. ¿f* A. P. Morrison and J. Pahell), for defendants in error. —
    Whether the depot would have advanced the price of the land was conjecture, and therefore damages on that basis would be speculative: McKnight v. Ratcliff, 8 Wright 169. The affirmance of the plaintiff’s third point would have allowed the alteration of a solemn instrument by parol, which would have been error: Kennedy v. Erie and W. Plankroad, 1 Casey 225; Seitzinger v. Ridgway, 4 W. & S. 472; Sennett v. Johnson, 9 Barr 335; Bertsch v. Lehigh Co., 4 Rawle 130; Snyder v. Snyder, 6 Binn. 483; Beeson v. Hutchison, 4 Watts 442; Stub v. Stub, 3 Barr 255; Woods v. Wallace, 10 Harris 171. To reform a writing on the ground of fraud, the evidence should be clear, precise and unmistakable: Irwin v. Shoemaker, 8 W. & S. 75; Morrison v. Morrison, 6 Id. 516; Markley v. Swartzlander, 8 Id. 177; Cochran v. Perry, Id. 265; Stine v. Sherk, 1 Id. 195. The rule of the court for the measure of damages was correct: Hottenstine v. Railroad Co., 11 Wright 28; Harvey v. Railroad Co., Id. 428; Hornstein v. Atlantic Railroad Co., 1 P. F. Smith 87.
   The opinion of the court was delivered, January 10th 1874, by

Agnew, J. —

This case turns on the alleged agreement made by Mr. Phillips, the president; in behalf of the railroad company, to erect a freight and passenger depot on the one acre of land sold by the plaintiff to the railroad company for the sum of $1000. .The other portions of the agreement relating to the wall and buildings were not denied, and so far as they were not performed, the jury allowed damages. The first question in the case arises on the measure of evidence necessary to establish the agreement for the erection of the depot; and this turns on the release of the right of way given by the plaintiff to the company. This paper is not printed for our inspection, but we presume, as there has been no controversy upon its terms, it was in the ordinary form, giving the right to enter and build the road, and releasing the value of the land occupied, and all damages arising out of its location and use. If the proof of the contract to build a depot on the one-acre lot does not contradict the terms or legal effect of the release, only the ordinary measure of evidence would be required to establish the contract, to wit: so much as would incline the weight of evidence to the side of the plaintiff. But if the evidence contradicts the release or its legal effect, it must possess the measure necessary to prove fraud or plain mistake, to wit, that which is clear and satisfactory.

In what respect does the agreement to erect the depot contradict the release ? We can perceive none. It does not contradict the consideration of one dollar paid by the company: that money might be paid and the contract also be made to build the depot. Indeed, the nominal consideration in the release would lead to a ready inference, that something else was the consideration of a right of way through a mile and a quarter of land. It does not contradict the terms of the release itself. These are all admitted by the plaintiff, and indeed he rests upon them as the reason and consideration of the railroad company’s promise to erect the depot. In no respect can we perceive that the plaintiff gainsays or desires to disprove or alter the release. On the other hand, it does not seem to follow, because the railroad company agreed to pay a nominal consideration of one dollar, that they did not promise to do something else as an equivalent for the right they obtained. The agreement to erect the depot is independent and executory— something to be done in the future; and does not conflict with the release. Both may stand together. The case of Weaver v. Wood, 9 Barr 220, is directly in point on this question. To this may be added Hayden v. Mentzer, 10 S. & R. 323; Strawbridge v. Cutledge, 7 W. & S. 394. The court erred, therefore, in the measure of proof, which, said the court, must be clear, strong and indubitable.

The next question is upon the effect of the agreement. The contract for the depot, when found by the jury, would stand before them with equal effect, as if it had been reduced to writing, and then arises the question of damages. The court below held the measure of damages to be the same as that given to the owner of land taken by the company under a legal proceeding ; that is to say, the difference in the value between what his property was worth before the railroad was located through it, and its value after completion of the road, with interest on such amount. See answer to plaintiff’s fifth point. But if a written agreement to build a depot had been given when the release was delivered, how would the case stand ? Clearly this would have introduced a new element. Whether this would increase or diminish the value to be assessed in a legal proceeding would not now be a question: for this, it is to he presumed, the parties considered when they made the contract. It must he presumed the company considered it better for them to erect the depot, in order to obtain the right of way, than it would be to go to law and take the chances. Such being the effect of the agreement, the terms of the question of damages would be changed. Instead, then, of the question being the difference in value of the land before and after the building of the road, considering all advantages and disadvantages to the owner, the question would be upon the additional value which would accrue to the plaintiff’s land in the event of erecting such a depot as" the contract called for. Under the contract, whatever specific advantages would accrue to the land from the adjacent depot and station, would have to be added to the plaintiff’s claim, for this would be his loss in case of a breach of the contract. While the profits of his business cannot be added to his damages, for these are speculative and uncertain, the business advantages, which constitute the characteristics of the land and give it value, are not to be thrown out of consideration in determining the value of the land. Clearly, if the depot and station would make the plaintiff’s land more valuable as a place of business, by bringing to it business it would not possess without them, they give greater value to the land to the extent of the increase by reason of their being placed there, and therefore, fall within the scope of the contract. They were the thing bargained for, and the consequent loss would 'fall within the damages, to the extent they would have added to the value of the land. The ruling of the court excluded this element of value given by the contract, and confined the measure of damages as if no contract had been made. This was an error. In other respects we perceive nothing requiring comment.

Judgment reversed, and a venire facias de novo awarded.


author: Mbrcur, J. — Agnew, J. —

text:
    McKee versus Bidwell.
    1. If there be undoubted evidence of clear negligence, the court must so pronounce as matter of law.
    2. If there be no doubt as to the facts, yet if there be substantial doubts as to the inferences to be drawn from them, they are for the jury.
    3. The plaintiff, in going about nightfall into defendant’s building on business, fell through an opening into the cellar. Held, that evidence that the defendant afterwards put a light at the opening was admissible on the question of negligence of defendant.
    4. Evidence in this case for the jury on the question of negligence.
    5. Johnson v. Bruner, 11 P. E. Smith 58 ; Penna. Railroad Co. v. Barnett, 9 P. E. Smith 259 ; Penna. Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. E. Smith 282, recognised; Penna. Railroad Co. v. Henderson, 1 P. E. Smith 315, followed.
    October 9th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1872, No. 139.
    This was an action on the case for negligence, brought February 24th 1870, by Alexander McKee against J. 0. Bidwell.
    The plaintiff was in the employ of John W. Haney & Co., who were engaged in the business of delivering goods arriving in Pitts-burg at the different railroad depots to the consignees of the goods. The defendant was the proprietor of the Pittsburg Plough Works, located on Garrison alley.
    The works of the defendant, as would appear from the statement in the paper-books and the evidence, are situated on the east side of Garrison alley. North of the building is a yard, extending to Duquesne Way, and along Garrison alley to Duquesne Way is a high fence. At the north end of the building is a gateway into the yard, through which vehicles taking goods to the works pass. The office is at the north-west corner of the building fronting on Garrison alley, from which there is an entrance to it by a door and short flight of steps. There are windows in the office on the north side, looking into the yard. At some distance east of the office there is a large door, opening from the yard into the building. At this door goods brought through the gate from Garrison alley are delivered. In reaching it the vehicles pass the whole length of the north side of the office. In the large door there is a small door about three feet wide. On the west side of the doorway, at about the distance of eighteen or twenty inches from the opening of the large door and about five or six feet from the opening of the little door, there is an opening in the floor about six feet square, for an elevator, which is raised from the cellar to the upper stories. Around this elevator there is no railing or other protection. The office on the east side, that next to the doorway, is closely boarded for four or five feet from the floor, and above that it is glass. From the office a door opens into the main body of the building. In order to reach this office-door from the large door where goods are delivered, it is necessary to go directly south, through the building, about thirteen feet, and, turning to the west, reach the inside door of the office, at the distance of eight or nine feet further.
    About five o’clock on the afternoon of the 26th of November 1869, the plaintiff brought on his' dray a load of goods for the defendant. He delivered them at the large door, and, for the purpose of going to the office to get a receipt for their delivery, he turned immediately towards the west to go to the office, and fell into the opening for the elevator. For the injuries received by the fall he brought this suit.
    On the trial of the case, November 24th 1873, the court (Stowe, J.) nonsuited the plaintiff. It is necessary, therefore,'to state the evidence somewhat at large.
    The plaintiff testified that he started, with Henry Perry, from the depot to deliver two boxes and a barrel to the defendant. The goods were marked in a book which he had with him. He entered the yard from Garrison alley with the load, and put the goods on a platform, opposite the door where goods are taken into the building. There was no one there to sign the receipt for the goods. The evening was dark. It was the first time he had been there. “ I looked and saw a light in the office; I started there to get my book signed; I wen.t the nearest way to the office; I made about a second step when I fell down the elevator place; there was no light burning close to the door; none except that in the office; * * * my business was to go with the goods, see the goods taken off, and get the book signed; the driver does the driving; I stand behind; it was raining a little and getting dark; I could not see the place I was going; I could see plainly outside; just going into the house made it pretty dark inside; I could not see very well; I saw a clear way to the office; I could see there was nothing in my way on the floor; I was looking where I was going.”
    Henry Perry, the driver of the dray, testified substantially as the plaintiff. He said also that he had delivered goods there two or three times before, and, upon inquiry at the office, he was directed to take goods to the platform in the yard. He saw no place in Garrison alley for the delivery of freight. 'When they delivered the goods there was no one there to receipt for them. The goods were delivered on the platform, and the door through which the plaintiff entered was the small door in the large door.
    J. W. Haney, the employer of plaintiff, testified : “ The business of McKee was to get his book signed when delivering goods. We cannot deliver goods without getting a receipt in a book of that kind.”

      W. Wilson testified that he had been employed in delivering-goods for Haney, and took the goods into the yard through Garrison alley, delivered them on the platform, got his book signed and “ always went in the building to the office.” The book was sometimes signed at the platform and sometimes in the office. No person ever warned witness not to come in that way. Witness never saw a notice-not to go that way posted at the door. A person in the office could see a team going into the yard.
    Charles Turner, also in the employ of Haney, testified that he frequently delivered goods for defendant at the platform, and sometimes met his clerk at the door and sometimes went through the building to the office. There was no place in Garrison alley to deliver freight. The opening of the elevator is not in front of the large door in the yard where the goods were delivered. Never was notified not to go through the building to the office.
    Henry A. Breed testified: “ 1869 was in service of defendant, clerk in his office; was in office at time plaintiff was hurt. Part of goods from depot were delivered at platform, some at the shed opposite, and some at office-door on alley; it depended very much upon their bulk. The large boxes of bolts were generally delivered at shed; boxes of paints and other things at platform. It depended more upon where they were to be used in the building, than upon the bulk. The greater portion was delivered at some place in the yard, after having gone in the gate. Generally it was light goods that were delivered on alley; the goods from depot were generally taken into yard. It was the business of any of the clerks who happened to be at hand to sign dray-books. Persons in office can see wagon pass the window in the yard. There is a window in wall facing the elevator opening. There was no gas-burner nearer than twenty or twenty-five feet to opening in floor; there was no barricade around opening. There were seventy-five or eighty workmen in this establishment; may have been more. Our men generally took the goods into building after they were left upon the platform. This door at platform was as much a thoroughfare as any door about the building. The first floor is occupied by machinery almost altogether, except at the door. This door is as much a thoroughfare, except it may be the door on alley. The office occupies one corner of the main building, thirty feet by eighteen feet, perhaps. Two doors open into office; there is none from yard into office; the only way to get to office is through the door on Garrison alley or through this door; this door at platform is about eight feet wide; there is a smaller door in it, on left-hand side as you come from the opening, about three feet wide. The opening for elevator is about eighteen or twenty inches from front of large door. This was an elevator used for hoisting things with; one side of elevator was open, next door; the other side was enclosed. * * * There was one door faced the door on Garrison alley; the other was on the side next elevator opening, on side of office which adjoined opening; there was a space'partitioned off, adjoining elevator for a wash and coal room. You passed out this door, went straight forward for eight or nine feet, then turned and went to the left, for perhaps thirteen feet, which would bring you to door opening on platform; the door on Garrison alley has a platform with steps leading up. There is quite a large double door which leads into a small space or entry. There was a sign above it, ‘ Office.’ It is nailed on door-cheek and projects; the letters were probably six or eight inches in size; there is no glass in door, but a large glass above it, perhaps twenty lights of 8 by 10 glass. The sign is above the door. Immediately opposite this door is an opening into the works, and diagonally across entry is a door leading into office. On the door leading into works in the entry, there was a notice, ‘ No admittance without permission from the office.’ The door on Garrison alley is thirty feet from corner. The door into works is generally closed; open when there is any necessity for it. There are windows lookout into alley between door and where you turn into open space. * * * The long way of office is perhaps twenty feet, and that brings you to the elevator. This glass partition is the division between office and elevator; the wall of building makes another side of elevator: this closet partitioned off, and opening into the office formed another side of elevator, and the fourth side next this large door at platform was open ; when the small door at platform was open, the side of it is five or six feet from elevator. One entering there would have to go four if not five paces before he came to opening of elevator; in going from the door in large one to go to office-door you would go directly forward for thirteen or fourteen feet, and about five feet from elevator, as you would go forward you would draw a little to the right; having gone thus far you would go directly to the right; around this partition forming the closet, go forward eight or nine feet to office-door. You could not get into office by going across this elevator, there is no door there. Was on premises before and after accident; there was no obstruction in this passage from small door at platform to office-door; it Avas open ; there Avas a notice at this platform door, ‘No admittance without permission from the office;’ think it-read, ‘ Positively no admittance,’ &c. It was nailed on the cheek of door furthest from gate ; it was-plain.
    “ We received a good deal of freight and shipped a good deal from this large door. There Avas a tAvo-story building across this open space ; there was a door in it opposite the large door. This small door was' used for persons running in and out, for carrying -small packages through, and for running a Avheelbarrow through. This door, which I have described, is as much a thoroughfare as any other; was used by workmen about the building, going in and out building and attending to their work about the yard; that is what I meant by a thoroughfare, that it was used by the men employed about building, as much as any other door; the manufactory was in operation at the time of accident; the fans were in operation; they made quite a large noise — a heavy noise and jarring. The elevator was in use at time of accident. I might say it is in constant use, almost constantly passing from one floor to another, it may seldom stand idle, we use it for moving material from one floor to another; there are five stories in building and a cellar. My recollection is, that it was pretty dark, think it was fifteen or twenty minutes after five that accident occurred; we stop factory one-quarter to six. It was a dark Monday evening; it was nearly night, still twilight to a certain extent, but was rapidly getting on to be dark. Gas was lit in office. We usually light up on such an evening about four or half past four o’clock. * * * The persons who used this door were workmen; and persons who delivered freights there went into that door and went in there. Having entered that door, they would go around to office-door. We generally came out to receive the freight; when persons went in they would go in and around to office-door; sometimes they would come to window and rap; when they did come in, they would go in that way. When loading or unloading elevator, this opening was used; things were carried over it. The sign was legible; it had beep up some time, and bore weather-marks; it faced the entrance, so that a person entering yard could see it; in such a way as this, we could not see it very far.”
    The plaintiff proposed to show that, immediately after the accident, defendant put up a gas-light close to the opening of the elevator at the door. The offer was objected to by defendant, rejected by the court, and a bill of exceptions sealed for the plaintiff.
    The plaintiff having closed his case, the defendant moved the court to order a nonsuit. The court allowed the motion; Judge Stowe saying:—
    “ I am of opinion that the plaintiff has shown a case which, as a matter of law, makes it my duty to declare that the plaintiff was guilty of negligence or want of due care, in attempting to get to defendant’s office in the manner and under the circumstances detailed in the evidence, which contributed to the accident, and therefore am compelled to allow the motion for nonsuit, with leave to move the court in banc to take off the same.”
    The court in banc afterwards refused to take off the nonsuit.
    The plaintiff removed the record to the Supreme Court, and assigned for error that the court erred—
    1. In rejecting his offer of evidence.
    2. In ordering a judgment of nonsuit.

      ' J. H. Hampton (with whom was J. Dalzett), for plaintiff in error. —
    In cases of controverted facts, whose existence or not maybe presumed to affect the mind, the question of negligence is for the jury: Pennsylvania Railroad v. Ogier, 11 Casey 71; Reeves v. Delaware, Lackawanna and Western Railroad, 6 Id. 454; Pennsylvania Railroad v. Zebe, 9 Id. 318; North Pennsylvania Railroad v. Heileman, 13 Wright 60; Pittsburg and Connellsville Railroad v. McClurg, 6 P. F. Smith 297; Pennsylvania Railroad v. Barnett, 9 Id.; Johnson v. Bruner, 11 Id. 58; Kay v. Pennsylvania Railroad Co., 15 Id. 273. If an owner of property allows others a use of it that tends to produce a belief that the use will not be objected to, he must exercise his rights so as not to mislead others to their injury: Sherman and Redfield on Negligence, § 11; Barrett v. Railway Company, 1 Foster & Finlason 361; Hepburn v. McDowell, 17 S. & R. 384; Indermaur v. Dames, 2 Law Rep. 313. The evidence rejected was admissible: Pennsylvania Railroad v. Henderson, 1 P. F. Smith 315; West Chester and Philadelphia Railroad v. McElwee, 17 Id. 311.

      W. S. Purvianee (with whom was S. A. Purvianee), for defendant in error. —
    The facts here were not controverted. ' It was for the court to determine as to negligence: Catawissa Railroad v. Armstrong, 2 P. F. Smith 286; Pittsburg and Connellsville Railroad v. McClurg, 6 Id. 297. If the plaintiff could see his way, it was his own negligence, if he could not he should not have gone on without a light: 1 Hurlst. & C. 633; Waters v. Wing, 9 P. F. Smith 211.
   The opinion of the court was delivered, November 10th 1873, by

Mbrcur, J. —

It is well settled that in a case of undoubted evidence of clear negligence, it is the duty of the court to pronounce it such as matter of law : Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282; Pittsburg and Connellsville Railroad Co. v. McClurg, 6 Id. 294. If, however, there-is no doubt as to the acts committed, yet if there be substantial doubts as to the inferences to be drawn from these acts, they should be submitted to the jury: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58.

What is and what is not negligence in a particular case, is generally a question for the jury, and not for the court. This arises from the fact that the question of ordinary and reasonable care is generally involved. The degree of care required is changed by the circumstances 'of the case. Some circumstances require a higher and some a lesser degree of care. Hence generally negligence is a mixed question of law and fact. Under proper instructions it should usually be submitted to the jury, to find whether proper care has been exercised under the particular circumstances.

The plaintiff was in the employ of Haney & Co., whose business was to convey goods from the railroad depots to the merchants in the city of Pittsburg, to whom they were consigned. They had, upon several previous occasions, delivered goods to the defendant in the yard and upon the same platform where the goods were delivered at the time of the injury. Henry Perry, who was in company with the plaintiff, and driving the horses, testified that he had delivered goods there two or three times before the injury, and that “ this time the way was open into the yard.” William Wilson and Charles Turner, both employees of Haney & Co., each testified to having delivered goods to the defendant upon the same platform. Wilson swears: “ I got my book signed after I took them off the dray. I always went in the building to the office. The opening stands to the right of the large door. There is a door opening from office to wareroom. This is the only entrance I ever got in. The office is probably twenty-five or thirty feet from the large door. Sometimes the book was signed in the office when I went in, and sometimes was signed at the platform outside. No person ever did admonish or warn me not to come in that way. The person who came out of the office to receipt the book came through the building the same way that I went in.”

Turner swears that he went through the building to the office to have the receipt signed, and “ was never notified not to go into office through the building.”

Henry N. Breed, an employee of the defendant, testified that the door at platform leading into the building “ was as much a thoroughfare as any door about the building.” Subsequently he explained, saying: “I meant by a thoroughfare that i-t was used by the men employed about the building as much as any other door.” Again he says: “the persons who used this door were workmen, and persons who delivered freights there went into that door and went in there.” Having entered that door, they would go around to office-door. “We generally came out to receive freight. When persons went in, they would go in and around to office door; sometimes they would come to window and rap; when they did come in they would go in that way.”

It is true, Breed testified that on the door leading into the building was a notice — “ No admittance without permission from the office.” The plaintiff swears he did not see this notice ; nor does it appear that any of the employees of Haney & Co. ever saw it.

As matter of fact, it appears that the employees of Haney & Co., who delivered goods to the defendant, did, without permission from the office, pass in through that door on their way to the office to get a receipt; and this, so far as is shown, without any objection on the part of the defendant.

At the time of the injury, the plaintiff was in company with the driver of the team, assisting in the delivery of the goods to the defendant. He was further charged with the duty of procuring a receipt therefor. With the receipt-book in his hands, he entered the door on the way to the office, for the purpose of procuring the receipt. In ignorance of the hole, passing along, with the gaslight from the office thrown in his face, but not upon the hole, he fell therein. He had entered the same door through which other employees of Haney & Co. had been accustomed to pass for a like purpose. The plaintiff was at the defendant’s works for a lawful purpose, and upon business which made it proper for him to go to the office. Whether he had a right to enter that particular door which he did enter, for the purpose of passing to the office, and whether, having entered, he was afterwards guilty of negligence, should have been submitted to the jury. We think, therefore, the learned judge erred in directing a nonsuit.

Upon the question of the defendant’s negligence, we think the evidence covered by the first assignment of error will be admissible. Where a person was killed while standing upon a platform between two tracks, by a passing train overlapping a portion of the platform, it wras held admissible to show that the railroad company caused the platform to be removed the day after: Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315. The same principle is affirmed in West Chester and Philadelphia Railroad Co. v. McElwee, 17 P. F. Smith 311.

Judgment reversed, and a venire facias de novo awarded.

Agnew, J. —

I doubt as to the question of concurring negligence on the part of plaintiff, upon the facts in evidence.