text:
    Kountz versus Holthouse.
    1. As a general rule, an action on a contract must be brought in the name of the party having the legal interest therein.
    2. A third party may maintain an action in his own name upon a contract made expressly for his 'benefit where his release would he a sufficient discharge to the promisor, but not where it would leave the promisor liable to an action by the other contracting- party.
    3. An incoming partner may undoubtedly by agreement become liable for debts contracted by the firm previous to his entering it, but the presumption of'law is against any such liability and requires proof to remove it.
    October 11th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 179.
    Assumpsit by A. W. Holthouse, against W. J. Kountz and B. T. Campbell, partners, doing business as B. T. Campbell.
    In May 1868, Bartley T. Campbell and George W. Young, commenced the publication of “The Pittsburgh Evening Mail” as partners, under the firm name of B. T. Campbell, and continued the business as such until about the middle of December 1868, when William J. Kountz bought Young’s interest in said firm. While Young was a member, the firm purchased of the plaintiff, Holthouse (from October 31st 1868, to November 25th 1868) paper amounting to the sum of $194. After Kountz became a partner with Campbell, the firm bought, from the plaintiff, paper amounting to $557.92, of which last amount they paid the plaintiff in cash $22.32, and returned paper to plaintiff amounting to $499.20, for which plaintiff allowed credit, leaving due plaintiff on the bill contracted by the new firm of Campbell & Kountz $36.40. The plaintiff, on July 14th 1872, brought suit against the new firm, composed of B. T. Campbell and William J. Kountz, for the amount of both bills, as well the one contracted by Campbell & Young as the one contracted by Campbell & Kountz. To the suit thus brought, Kountz filed an affidavit of defence to the whole of that portion of plaintiff’s claim contracted by B. T. Campbell and George W. Young, and tendered judgment for the amount due by the new firm, to wit, $36.40, with interest from December 23d 1868.
    At the trial before Ewing, B. J., the defendant, Kountz, presented four points, wherein the court was asked to charge the jury that he, Kountz, could not bo held for any of these items of charge except those contracted after he became a partner; to which the court answered that these points were affirmed if the jury find there was nothing moro than the fact that Kountz bought out the interest of Young in the “ Evening Mail.” But if the jury find that after a part of plaintiff’s bill was incurred, and while the bill was running, Young sold and delivered his interest in the “Evening Mail” to Kountz, and, as a part of the price, Kountz, by consent of .the other partner, Campbell, agreed to take Young’s place in the firm and to be responsible for and pay the debts of the firm in place of Young, and the business was thereafter carried on, under this agreement, by Campbell & Kountz without further change and the balance of the bill was thereafter incurred for the paper, the defendants would be liable for the unpaid portions of the bill.
    The verdict was for the plaintiff for his whole claim. Kountz took this writ, assigning the foregoing answers of this court for error.

      S. H. Geyer, for plaintiff in error.
    — Can Holthouse, in his own name, maintain an action against Campbell and Kountz, for the debt due him by Campbell and Young, on the ground that Kountz, when he purchased Young’s interest in the said firm, agreed with Young, to take his place in the firm, and pay the debts of the firm ? We contend that he cannot, for the reasons, that there was no privity of contract between Holthouse and Kountz, and that Holthouse had no interest in the consideration of the contract, did not participate in it, and was not prejudiced by it. Where the contract is for the benefit of the contracting party and the third person is a stranger to the consideration, the action must be by the promisee : Blymire v. Boistle, 6 Watts 182. The contract between Young and Kountz, was for the benefit and protection of the said Young. Holthouse was a stranger to the contract and its consideration.

      John Barton, for defendant in error.
    — The new firm were responsible for the old firm debts: Story on Partnership, sects. 152,153.
   Mr. Justice Mercur

delivered the opinion of the court, January 7th 1878.

Campbell & Young were associated as partners in the publication of the Evening Mail,” under the name of B. T. Campbell. While thus engaged they became indebted to the defendant in error. Young, by agreement in writing, the precise terms of which are not shown to us, sold his interest in the firm and in its property, to Kountz; the latter assuming and agreeing to pay Young’s indebti edness. Campbell & Kountz continued the publication of the paper, and made other purchases of the defendant in error. He now seeks to recover of Campbell & Kountz, the debt due to him from Campbell & Young. Can he do it ? He was a stranger to the contract between Young and Kountz and to the consideration. He did not agree to release Young, nor to accept Kountz as his debtor. He in no wise participated in the transaction, and had no knowledge of it. The decisions bearing on the liability of Kountz to the defendant in error under such a contract are not in entire harmony, but their difference is more apparent than real. The apparent conflict arises from attempting to apply one rule of law to different statements of facts. The general rule is that an action on a contract, whether express or implied, must be brought in the name of the party in whom the legal interest in such contract was vested : 1 Chit. Plead. 2. Yet many cases are to be found, in which the right of a third person to sue has been sustained, on a promise made to another. Hence, if one pay money to another for the use of a third person, or having money belonging to another, agree with that other to pay it to a third, an action lies by the person beneficially interested. This right of action is not restricted to cases of money only; but extends to an agreement to deliver over any valuable thing, so that such third person is the only party in interest. But when a debt already exists, a promise by a third person to pay such debt, being for the benefit of the original debtor, and to protect him against it, he must necessarily have a right of action against his promisor to secure that protection. If the third person also became liable to the original creditor, he would be subject to two separate actions, at the same time and for the same debt. This would manifestly be unjust: Blymire v. Boistle, 6 Watts 182.

There is nothing in the case before us indicating that the property sold to Kountz was to be delivered over to the defendant in error; nor that it was to be converted into money and the proceeds be paid to him; nor is there any fair inference, as in Townsend v. Long, 27 P. F. Smith 143, that the avails and proceeds of the property and business should pay and discharge the debt due to the defendant in error. In the case of Townsend v. Long, the late cases are cited and the true distinctions pointed out. A reference to them will show that to enable the third person to sustain the action, money or property must have been placed in the hands of the defendant for his use, or he must have become a party to the new agreement.

It was urged that an incoming partner may become liable for debts contracted by the firm previous to his entering it. Undoubtedly ho may so become liable by agreement, but the presumption of law is against any such liability, and requires proof to remove it. Hence it is important to ascertain whether there has subsequently been, with the consent of all the parties, any change or extinguishment of the original contract. Where it is proved that, upon the accession of a new partner, a new promise has been made by the entire new firm, in respect to the payment of the old debt, with the consent of the old partners as well as of the creditor, it will amount to a novation of the debt, and the new firm will be liable: Story on Part., § 153.

Here there is not only an entire absence of evidence that the arrangement was made with the assent of the defendant in error, but it fails to show that Kountz’s agreement to pay was made with the consent or knowledge of Campbell. There is no evidence showing that Campbell and Kountz agreed to be jointly liable for the debt of the old firm. To the present action against them jointly each can answer, I did not so agree with my co-defendant. The assignments are therefore sustained.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Swarswood

license: Public Domain

text:
    Dilworth versus Bradner et al.

    1. Where a party makes false representations of his solvency to induce credit, although at the time when made he believed them to be true, he is not liable to an action of deceit, and the state of his belief is a question for the jury
    2. It was erroneous for the court to say that the jury must decide whether the party making such representations had reasonable grounds for his belief that they were true.
    October 11th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 229.
    Action on the case for deceit, by Bradner & Hartman, against William Dilworth. The plaintiffs, in their declaration, averred that the defendant had falsely and deceitfully, and for the purpose of defrauding plaintiffs, alleged “ that he was good and solvent, and able to pay for what he bought.”
    Dilworth, the defendant, was for many years extensively engaged in the lumber business. In the year 1875 he was the owner of|large amounts of real estate, situated in different parts of the city of Allegheny, in the counties of Jefferson, Eorest and.Clarion, in West Virginia, and in Michigan. In July of that year he bought a bill . of lumber from Bradner & Hartman, and, in answer to questions put to him by one Willey, plaintiffs’ agent, stated that he was solvent, t and able to pay for the lumber; that he was as good as any of the persons named by Willey as having made bids for the lumber. The lumber was sold to Dilworth on a year’s credit, and he gave a note for the amount. Willey did not demand security, nor did he ask Dilworth whether he was indebted to any one. The sale was consummated on or about the 10th day of July, and on the same day the note in payment was given. On the 17th day of August of the same year, Dilworth filed his voluntary petition in bankruptcy, showing a large indebtedness, and that his real estate was, in most instances, mortgaged. He subsequently offered those of his creditors who were unsecured, including the plaintiffs, twenty-five cents on the dollar. On the trial the plaintiff showed the foregoing facts, and rested.
    The defendant testified, that at the time he bought the lumber he considered himself perfectly solvent; that while he owed largo sums of money, he owned many large and valuable tracts of real estate, which, in his opinion, exceeded in value all that he owed. He also testified that he was compelled to go into bankruptcy unexpectedly, by reason of failing to sell a valuable lot to the Allegheny Gas Company for the sum of $65,000 — a sale that he had fully expected to make, and which would have paid off the mortgage against that lot and given him cash enough to meet certain notes that were about to fall due ; that he was advised to go into bankruptcy, in order to prevent judgments being obtained by some creditors to the detriment of others; that he desired to return the lumber to the plaintiffs, but that his attorney advised him that such a course would not be legal.
    The first point of defendant, which the court, Collier, J., refused, was as follows:—
    Under the pleadings and evidence, the plaintiff's have failed to make out a case of fraudulent intent on the part of the defendant, and the plaintiffs are not entitled to recover.
    His fourth point was :—
    That if the jury believe that the defendant, at the time of using the statements attributed to him, really believed himself to be solvent, then his subsequent bankruptcy and insolvency, as matters of fact, do not avail to make the defendant liable in the present action, and their verdict should be for the defendant.
    To which the court answered: “ Affirmed, with the qualification that if he really believed himself to be solvent upon reasonable grounds, then ho would not be liable.”
    The verdict was for plaintiffs for $6057.81.
    The defendant, after judgment, took this writ and assigned for error, inter alia, the qualification of the court in the answer to his fourth point.

      George Shiras, Jr., for plaintiff' in error.
    — A man who believes what he says is not chargeable with bad faith, and the state of his belief is a fact for the jury. Sincerity of belief, however apparently unfounded, is unmixed matter of fact; and if it were not the test, every recommendation would be a guaranty: Bokee v. Walker, 2 Harris 142; Graham v. Hollinger, 10 Wright 56; McAleer v. McMurray, 8 P. F. Smith 126; Foster v. Charles, 6 Bing. 396; Meyer v. Amidon, 45 New York 169; Haycraft v. Creasy, 2 East 92.

      J. W. Over, for defendants in error.
    — Can a man recklessly represent himself to be solvent and safe to be trusted, and thereby obtain credit, and then when the representations prove to be false, and it is evident that he was in a situation to know and should have known they were false when made, shield himself by saying, I believed I was telling the truth ? Is not the deceit practised on the person relying on the representations as effectual, and the injury he sustains as great as if the party knew the representations were false when made ? The party making the representations being in a situation where it was his duty to know, and where he could have known the truth or falsity of them, should make them good if acted on as in this case. A man who asserts what he does not know is guilty of duplicity, though he happen to assert the truth, and whatever the motive, he is not the less dishonest: Bokee v. Walker, supra; Kerr on Fraud 84.
    It is not, however, necessary in order to constitute fraud that a man who makes a false representation should know it to be false. It is enough that it be false if it be made recklessly, without an honest belief in its truth, or without reasonable grounds for believing it to be true: Kerr on Fraud 53, et seq.

    If the means of information are peculiarly or exclusively within reach of the person making the representations, and he pretends to know the truth of the matter, he must be taken to warrant his knowledge of the fact, and his want of knowledge constitutes a fraud: 2 Addison on Torts, §§ 1175, 1177, 1184.
   Mr. Justice Swarswood

delivered the opinion of the court, October 22d 1877.

We find no error in the refusal of the court below to charge as requested in the defendant’s first point, and the error in the charge is not properly assigned.

But we are of opinion that the defendant was entitled to an unqualified affirmance of his fourth point, and that the qualifica tion added by the learned judge was erroneous, and the second assignment of error must therefore be sustained.

This was an action to recover damages for a false and fraudulent representation by the defendant of his circumstances, by which the plaintiff had been induced to give him credit. The rule which must govern in such an action has been stated with great precision by Chief Justice Gibson in Bokee v. Walker, 2 Harris 139. That was the case o'f a representation of the circumstances of a third person, but there is no distinction between such a case and this, as to the rule of decision, though of course the jury may be expected to make a difference. A man knows his own circumstances better than those of his friend or neighbor, and if hopelessly insolvent it will not always be easy to convince a jury that he believed himself to be solvent. They will more narrowly scrutinize his conduct to arrive at a conclusion as to the sincerity of his belief. But men often are very unreasonable in the estimate they form of the value of their property, and yet are very honest in their opinion. It would introduce a new and very dangerous element into the question to say that the jurv must decide whether the defendant had reasonable grounds for his belief. “In an action for deceit,” says Chief Justice Gibson, “the jury have to deal with a question of good faith, and if they are satisfied that the defendant believed his own story, it is their duty to find in his favor.” “ A man who believes what he says is not chargeable with bad faith, and the state of his belief is a fact for the jury.” “ Sincerity of belief, however apparently unfounded, is unmixed matter of fact; and, if it were not the test, every recommendation would be a guaranty.” We have been referred to no subsequent case which at all qualifies the principle thus announced. On the contrary, in Graham v. Hollinger, 10 Wright 55, wdiere it would seem the defendant had suppressed the fact that he held himself a judgment bond against the person recommended, Mr. Justice Strong said: “If the representations made were false and yet were honestly believed to be true, and if the existence of the judgment bond was not mentioned from thoughtlessness and without intention to deceive, the liability of the defendant for damages was not made out.” “It maybe that the defendant could hardly have been mistaken, but whether he w'as or not was for the jury.”

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Blackburn et al., Executors, versus Watson.
    1. The plea of pendency of a former action cannot bo sustained where in the one case the action is against a firm, on a joint or firm endorsement, and in the other is against one of the firm alone, and upon a several liability in which the partnership has no interest and which can involve it in no responsibility.
    2. The plea in abatement is a dilatory plea, and the defendant can have no other judgment than that the writ be quashed.
    October 12th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 151.
    Assumpsit by Harriet Blackburn and James Bonbright, executors of Oliver Blackburn, deceased, against James Watson, for the recovery of §7885.50, being, as alleged in the narr., the aggregate amount of six promissory notes made by Oliver Ormsby to the order of R. & J. Watson, and purporting to be endorsed by said R. & J. Watson, Avhich notes James Watson, the defendant, fraudulently and deceitfully passed to Oliver Blackburn, as bearing the genuine and bona fide endorsement of the firm of R. & J. Watson, Avdieroas, in fact, the said James Watson had fraudulently endorsed and used the name of said firm, without its knoAvledge or consent, for his individual purpose, and thereby deceived and defrauded the plaintiffs.
    In answer to the plaintiffs’ declaration, the defendant filed a plea, wherein he prayed judgment of the said writ and declaration, because before the suing out of said writ and filing of said declaration, to wit, on the 12th day of April 1865, at No. 75 of June Term 1865, in the Court of Common Pleas of Allegheny county, the said plaintiff impleaded the said defendant, and exhibited his certain declaration against him in a certain plea of trespass on the case upon and for the not performing of the very same identical promises and undertakings in the said declaration in this present suit mentioned, as by the record and proceedings thereof remaining in the said court, aforesaid, more fully appeal’s. And the said defendant further saith that the parties in this and said former suit are the same, and not other and different persons (except that one John Watson and one Robert Watson, impleaded as defendants in the said former suit, are not impleaded in the present suit), and that the said former suit so brought and prosecuted against the said defendant by the plaintiffs as aforesaid is still depending in the said Court of Common Pleas of Allegheny county, and this the said defendant is ready to verify. Wherefore he prays judgment of the said writ and declaration in this suit, and that the same may be quashed, &c.
    The plaintiffs replied:—
    1. That their said writ and declaration ought not to be quashed, because they say that the said several promises were not, nor were any of them, made by the said defendant jointly with the said John Watson and Robert Watson, in manner and form as the said defend-' ant has in his said plea alleged, and this the plaintiffs pray may be inquired of by the country, &c.
    2. And for further replication in this behalf, the said plaintiffs say that notwithstanding anything by the said defendant in his said plea alleged, the said defendant ought to be compelled to answer the writ and declaration aforesaid, because they say that they issued their said writ and declared thereon, not for the cause of action in the said plea mentioned, but for another and different cause of action in the said declaration mentioned, being other and different promises than those in said plea, and this the plaintiffs are ready ' to verify ; wherefore they pray judgment, &c.
    The case being on the trial list, came on for trial May 8th 1874, when the court, it appearing to them that the only plea was that of abatement, ordered that the case be stricken off and placed on the argument list, for argument on that plea.
    After argument judgment was entered for defendant;
    The plaintiffs then took this writ, assigning for error the entering of this judgment and the striking the case off the trial list.

      Thomas M. Marshall and A. M. Brown for plaintiffs in error.—
    The record in this case exhibits not only a denial of right, but the infliction of positive injustice upon the plaintiffs. Denied, in the first instance, their constitutional right of trial by jury, and subsequently subjected to a summary judgment, entered by the court, without previous trial or verdict upon the issue raised by the pleading, the plaintiffs yet fail to perceive any grounds for the proceedings or practice by which this determination of the case was reached.
    It was claimed by the defendant below that the issues raised on the plea and replications were to the court, and not for trial by jury. The replications traversed all the material allegations of the plea, and raised questions of fact which could only be properly tried by a jury.

      Alexander M. Watson and George Shiras, Jr., for defendant in error.
    — It is plain that the plaintiffs’ replication to the plea in abatement was, in effect, an allegation of nut tiel record. This issue was determined, as of right it should have been, by the court on inspection of the record: Comyn’s Digest, Abatement, L. Upon a plea in abatement of the pendency of another action for the same cause, concluding with a prout patet per recordum, it is sufficient to satisfy the plea if the writ bo produced: Commonwealth v. Churchill, 5 Mass. 174. But the judgment of the court may be sustained on grounds independent of the issue of nul tiel record. The declaration discloses no cause of action. The endorsement alleged was an accommodation endorsement, and known to have been such by the plaintiffs when they procured the endorsement to be made, and no consideration is averred to have existed, either as between the endorser and the maker of the notes, or as between the plaintiffs and the endorsers.
    Moreover, no legal damage is averred to have been suffered by the plaintiffs by reason of the alleged action of James Watson in professing to have been authorized to use the firm name in an accommodation endorsement.
   Mr. Justice Gordon

delivered the opinion of the court, November ‘5th 1877.

The former suit, the pendency of which was pleaded in abatement of the one now being tided, was by Oliver Blackburn against Robert Watson, James Watson and John Watson, partners, doing business as R. & J. Watson. This firm, by the pleadings, is charged as endorser of certain promissory notes passed by it to the plaintiff. The suit, now before us, is against James Watson alone, and the declaration charges his liability, on these same notes, as arising from his having, fraudulently and without authority, endorsed the firm name thereon and so passed them to the plaintiff.

It was said in Cornelius v. Vanarsdallen’s Adm’r., 3 Barr 434, that to sustain the plea of the pendency of a prior action it is necessary, not only that the cause of action, but the parties also be the same. Tried by this rule and the plaintiff below has no standing under his plea, since an inspection of the records in the two cases at once reveals the fact that the parties defendant are not the same. In the one case the action is against a firm — on a joint or firm endorsement; in the other the action is against James Watson alone, and upon a several liability in which the partnership had no interest, and which can involve it in no responsibility. It is, hence, apparent that the judgment of the court below, on the plea in abatement, was erroneous.

It has been urged that there are other grounds, apparent in the pleadings, on which the judgment should be sustained. But this is not so, for the plea in abatement is a dilatory plea and the defendant can have no other judgment than that the writ- be quashed; hence, it is manifest, however apparent it may be from the plaintiff’s narr., that he has no good cause of action, yet a general judgment cannot, for such cause, be entered against him in the issue now pending. If the declaration is faulty advantage thereof may be taken on demurrer, but of this we can take no notice, for, as the matter now stands, we examine the records only so far as is necessary to determine the questions raised by the plea in abatement.

Judgment reversed, and a procedendo awarded.


author: Mr. Justice Paxson

text:
    League versus Waring & Co.
    Where the draft of a third party is received by a creditor from his debtor for a pre-existing debt, the presumption is that it was received as a conditional payment, unless there was an agreement that it was to be an absolute payment, and the burthen of proving such an agreement is upon the debtor-
    October 13th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 158.
    Assumpsit by William League against E. J. Waring & Co.
    On the 8th of December 1873, League entered into a written contract with E. J. Waring & Co., to deliver to them 12,000 oil barrels during the year 1874. The barrels were to be delivered at the rate of 500 barrels during the first and last half of each month. Payments were to be made on each 500-barrel lot as delivered, with thirty-day paper drawn on Waring Bros. & Co., Philadelphia.

      League received from E. J. Waring & Co., for barrels delivered under the contract in the month of November, the draft of Waring Brothers on Waring, Bros. & Co., of Philadelphia, accepted by them, dated November 5th 1874, payable ninety days after date, for $2440. On the 4th day of January 1875, and before this draft matured, both Waring Brothers, and Waring Bros. & Co., failed, and went into bankruptcy. The draft was protested for non-payment, and this suit was afterwards brought to recover from E. J. Waring & Co., on the contract, the price of the barrels so delivered. E. J. Waxing composed the firm of E. J. Waring & Co., and had his office in the same room, on Fifth avenue, Pittsburgh, with Waring Brothers. 11. J. Waring and O. S. Waring, brothers of E. J. Waring, were the members of the firms of Waring Brothers, and of Waring Bros. & Co., of Philadelphia.
    All the drafts received by League for barrels were delivered to him by E. J. Waring, at his office and the office of Waring Brothers, on Fifth avenue.
    The drafts were negotiated by League as soon as received, and he was not aware that E. J. Waring & Co. were not liable on the drafts, until after the failure of Waring Bros, and Waring Bros. & Co. He did not know that E. J. Waring was not a member of these firms, and was never informed by him that he was not liable on the drafts. The drafts were made out by the direction of E. J. Waring, and wore delivered by him.
    It was contended, on behalf of the plaintiff, that under the contract, payments were to be made with the paper of E. J. Waring & Co., drawn on Waring Bros. & Co., of Philadelphia; that the debt was incurred when the contract was made, December 8th 1873, and that the acceptance by League of the draft of Waring Brothers on Waring Bros. & Co., on the 5th of November 1874, operated only as a conditional payment of the debt, it being payment of a pre-existing debt with the draft of a third party, and that it should be left to the jury to find, from the evidence in the case, whether or not the draft was accepted as absolute payment.
    The plaintiff’s first point, which the court, Stowe, P. J., refused, will be found in the opinion of this court.
    His second point, which the court also refused, was as follows: That the presumption is that the drafts received by League wore received only as conditional payment, and the burden of proof is on the defendant to satisfy the jury, by the weight of evidence, that it was the intention of the parties, or the agreement or understanding between them, that the drafts were received as absolute payment.
    The verdict was for the defendants, and plaintiff took this writ, assigning for error the refusal of his points.

      J. W. Over, for plaintiff in error.
    — The receipt of a third person’s check is not payment, unless expressly so received: McIntyre v. Kennedy, Childs & Co., 5 Casey 448; 2 Parsons on Notes and Bills 153; Tyson v. Pollock, 1 P. & W. 376; Vail v. Foster, 4 Comstock 312. The presumption that the note of a third party is payment of a debt, only arises when received at the time of contracting the debt, and even then the question should be left to the jury to determine, from all the evidence, whether the note was received as actual payment or not: Crawford v. Berry, 6 Gill & Johnson 71; Johnson v. Weed, 9 Johns. 310; 2 Daniels on Negotiable Instruments 265.

      W. S. Purviance, for defendants in error.
    — On the question of presumption as to whether the note of a third party is taken as absolute or conditional payment, cited, 1 Smith’s Leading Cases 595, 636; Christie v. Craige, 8 Harris 430; Gibson v. Tobey et al., 46 N. Y. Court of Appeals 637; Darnal v. Morehouse, 45 N. Y. Appeals 64.
   Mr. Justice Paxson

delivered the opinion of the court, November 19th 1878.

We think the court below erred in refusing the plaintiff’s first point. The learned judge was asked to say “that under the agreement between William League and E. J. Waring & Co., they, E. J. Waring & Co., were to be the makers or drawers of the paper therein mentioned, and therefore the drafts of Waring Bros, on Waring Bros. & Co., which were accepted by League, would be only conditional payment of E. J. Waring & Co.’s indebtedness to League, unless there was an agreement or understanding between League and E. J. Waring & Co., that they were to be received by League as absolute payment; and if the jury believe from the evidence that there was no such agreement or understanding between the parties, and that the drafts were duly presented, protested and not paid, their verdict should be for the plaintiff.” The agreement referred to was in writing; hence it was the duty of the court to place a construction upon it when called upon to do so. By the terms of said agreement E. J. Waring & Co., bought of William League 12,000 oil barrels at stipulated prices, to be deli- . vered at the rate of 1000 barrels per month, in lots of 500 each, “ payment to be made on each 500-barrels lot as delivered, with thirty-day paper, drawn on Waring Bros. & Co., Philadelphia.” Here was a distinct agreement for payment by drafts on Waring Bros. & Co. But whose drafts ? Clearly the drafts of E. J. Waring & Co. They were the contracting parties. League could not have been compelled, under the agreement, to accept the drafts of any other person or firm. By taking the drafts of E. J. Waring & Có. he would hold the firm with whom he was dealing. The drafts of Waring Bros., a firm of which E. J. Waring was not a member, on Waring Bros. & Oo., given for a pre-existing debt, ■would only be conditional payment, unless there was an agreement that they were to be absolute payment. The burden of proving such an agreement was upon the defendants. The plaintiffs’ first and second points should have been affirmed.

The judgment is reversed, and a venire facias de novo awarded.


text:
    City of Erie versus Caulkins.
    1. Where an injury occurs to a passenger through an obstruction in the public street, placed there by the negligence of a contractor exorcising an independent employment, a municipality is not responsible therefor unless by the terms of her contract the contractor is under her management.
    2. A stipulation in her contract that her engineer shall have power to direct changes in the time and manner of conducting the work, is not such a reservation of power as will make her liable for the injury occasioned by the negligence of the contractor.
    3. No additional liability is incurred by the municipality by reason of her taking a bond to indemnify her against any loss or damage resulting from a failure of the contractor to perform his duty.
    4. Painter v. Mayor of Pittsburgh, 10 Wright 213; Reed v. City of Allegheny, 29 P. F. Smith 300, followed.
    October 15th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 40.
    Case by Harriet J. Caulkins against the city of Erie to recover damages for injuries received from falling over an obstruction in the street and partially into a sewer then in process of construction. In the fall of 1872, the city of Erie entered into a contract with Peter Grant to construct a sewer in State street in said city. While being constructed, the plaintiff in passing across said street fell over an obstruction into said sewer injuring her wrist and arm. It appeared that the night was dark at the time of the accident and there was no light hung near the excavation to give passengers warning.
    Among the general specifications in the contract between the city and Grant were the following :—
    “ The contractor will be required to guard the public effectually from liability to fall into the trenches or from upsetting their vehicles against the earth thrown from them, during the whole progress of the work, both by night and by day; and will be held responsible for any damages the city may have to pay in consequence of neglecting the necessary precautions.
    “ The contractor will be required to dismiss from his employment all incompetent or unfaithful persons; also, to keep in perfect repair, for six months after its completion, the whole of his work, except in cases where the repairs may he rendered necessary by causes clearly beyond his control.
    “ All the work to be commenced and carried on at such times and in such places and in such a manner as the engineer shall direct, he being aided by his assistants and inspectors. No work will be paid for unless accepted by the engineer or some other person appointed by the said street committee for the purpose. ‘ The contractor will not be allowed to open up more than one hundred feet of said State street at a time without the consent of the city engineer, and he is to keep clean the street after him so as not to interfere with travel any more than can be helped.’ ”
    Grant was also required to and gave a bond to idemnify the city from any loss arising from failure on his part to perform his duty.
    •At the trial before Yincent, P. J., the following points were submitted by the plaintiff, all of which the court affirmed.
    1. That the defendant at all times is under legal obligations to the public to keep its streets and sidewalks in such condition and repair as will enable all persons and the public to pass along, upon and over them with safety; and if the jury believe, from the evidence, that the injury to the plaintiff was caused by the dangerous and unsafe condition of the street or crosswalk, at the southeast corner of State and Seventh streets, without any contributory negligence on her part, their verdict should be for the plaintiff.
    2. That the city of Erie, defendant, having expressly reserved the right of public travel upon and along said State street, in its contract and specifications with Grant for construction of a sewer in State street, and having taken a bond of indemnity from said contractor to save and keep harmless the said city from all loss and damage on account of all such claims as presented in the case at bar, and having expressly reserved, by the terms of said contract and specifications, the right and power to direct and control the work; “ the work to be commenced and carried on at such times and in such places and in such a manner as the engineer shall direct, he being aided by his assistants and inspectors,” being the language of the contract, therefore the rule, as stated in the case of Painter v. The Mayor, &c., of Pittsburgh, 10 Wright 213, cannot apply in this case.
    3. That if the jury believe from the evidence that the injury to the plaintiff was caused by the negligence of the city of Erie, through its officers, agents and employees, in not placing around the excavation (at or near the corner of Seventh and State streets, where the injury occurred), the necessary and proper barricades, lights, &c., without any contributory negligence on part of plaintiff, their verdict should be for the plaintiff.
    The following points of defendant were all negatived by the court:—
    1. The city of Erie is not liable for the acts or negligence of another, unless the relation of master and servant or principal and agent exist between them. If the injury sustained by plain tiff was caused by the negligence of a third person, not in the employ of the city, the plaintiff cannot recover in this case.
    2. If the excavation, into which the plaintiff fell, was made by a contractor for said work, in accordance with the Act of Assembly and ordinances of the city of Erie, and not by regular officers of said city, such contractor is not an agent of said city, for whose negligence or the negligence of whose workmen the city would be liable, and the plaintiff cannot recover.
    3. That the defendant, having by contract given to Peter Grant the construction of the sewer, is not responsible to the plaintiff for any injury she may have sustained through the negligence of the contractor or any of his agents or servants.
    6. The taking of the bond from the contractor, in connection with the contract, does not increase or change the liability of the city to plaintiff in this case.
    In their general charge the court said:—
    “We have no means, except negatively, of knowing the exact terms of the contract referred to in 10 Wright 213, but we may, we think, fairly infer that the city of Pittsburgh reserved no power to control the manner in which the work should be carried on, no right to use the street during the progress of the work, no power over the men employed by the contractor, and took no indemnity against any damages it might have to pay arising from the neglect or carelessness of the contractor in doing his work.
    “ In the case before us the city of Erie made all these reservations, and, having made them, we think we are bound to conclude that the defendant did not intend to relieve herself from her general responsibility to those who might bo injured in consequence of the carrying on of this work, and that the reservation of the control the contract gave them over the workmen employed by the contractor made them its agents, and it their superior, oven if the reservation of the right to continue the use of the street did not.
    “We intend to defer fully to the authority of the Supreme Court, as is our duty by the rules of law, as well as due and proper courtesy from an inferior court to that of last resort.
    “ But it is also our duty to decide upon the applicability of the decisions to the case in hand; and we are of the opinion that the cases cited by counsel for the defendant are based upon a state of facts so different from the case before us as to make them inapplicable, and we therefore charge you that the defendant is liable to the plaintiff for the injuries she has sustained if there be no other reason why she ought not to recover.”
    Verdict for plaintiff for §1275, and after judgment defendant took this writ, assigning for error the foregoing answers to points and the portion of the charge noted.

      Theodore A. Lamb and Davenport & Griffith, for plaintiff in error.
    — An independent contractor is not the agent or servant of the person by whom he is employed. This contract does not contain any reservation of power such as will take this case out of this general rule and make the city liable for the contractor’s negligence: Blake v. Ferris, 1 Selden 48; Reedie v. Northwestern Railroad Co., 4 Exch. 244; Kelly v. The Mayor of New York, 1 Kernan 436. The reservation that the work shall be carried on at such times and places and in such manner as the engineer shall direct, does not make the city liable: Blake v. Ferris, supra; Pack v. Mayor of New York, 4 Selden 222; Kelly v. The Mayor, supra; Reedie v. The Northwestern Railroad Co., supra; Painter v. Pittsburgh, 10 Wright 213; Reed v. Allegheny, 29 P. F. Smith 300; Wray v. Evans, 30 Id. 102.
    We find no case where there is any reference to the taking of a bond for the due compliance with the conditions of the contract; yet it is well known, as a matter of fact, that it is always customary for corporations to require them; and, therefore, it is to be presumed that they were taken in all the cases referred to, even though not mentioned. But we consider it entirely immaterial; the bond is given to secure the due performance of the contract; but if the conditions of the contract favorable to the city do not inure to the benefit of the party injured, the taking of a bond will not assist them in a recovery.

      Allen & Rosenzweig and J. Ross Thompson, for defendant in error.
    — We contend that the city was liable for the following reasons:
    1. The sewer was at least quasi a public improvement. 2. The corporation retained the control of the street for public travel while the sewer was being built. 3. The corporation retained control of the contractor and his workmen as to the time, place and manner of performing the work, including the right to dismiss incompetent men. 4. The unsafe and dangerous condition of the street was the cause of the injury to the plaintiff, by the direct default of the city government in that behalf.
   Mr. Justice Gordon

delivered the opinion of the court, January 7th 1878.

The accident, which is the foundation of the present case, resulted from the negligence of certain workmen who were engaged in the erection or construction of a sewer for the city of Erie. The excavation for this sewer, which was in one of the public streets, having been carelessly left unguarded, the plaintiff, on the night of the 26th of November 1872, without any fault of her own, fell into it, and received the injuries complained of. , The question now before us is, who is the responsible party ? The defendant asked the court to say to the jury that, as the city had contracted with Peter Grant to construct this sewer, it was not responsible to the plaintiff for any injury she might have sustained in consequence of the negligence of Grant, or his agents or servants. The court refused so to charge, and this on the ground that, by the contract, the city reserved the power to use the street during the progress of the- work, and to control the manner in which the work should be carried on; that it retained a power over the men employed by the contractor, and that, by the contract, it had provided for indemnity for any damages that might he recovered from it, arising from the neglect or carelessness of the contractor in doing the work. The first part of this proposition is not found in the contract, except inferentially, from the stipulation therein contained for the protection of the public from the danger of falling into the trenches, and from the upsetting of vehicles on the earth thrown out of them. It is, however, a matter of course that, in all cases of this kind, use shall be had of such parts of the streets as are not occupied by the contractor; but it is also of course, that the contractor shall have the control over such parts thereof as are necessary for the proper execution of his work. Tlxo complaint, however, is not as to such portions of the streets as were in public occupancy, but as to those which, it is conceded, were necessarily occupied by the contractor under his contract. It must not be forgotten that the complaint is not that the street was used in an unlawful or unauthorized manner, but only that there was neglect in' not erecting such guards, or in not maintaining such lights at night, as were necessary to protect the public from injury. Whether, therefore, the city did, or did not, retain the use of the street unoccupied by the work, is of no kind of significance.

The latter part of the court’s proposition is faulty in that the converse thereof was ruled in Wray v. Evans, 30 P. F. Smith 102. In that case there was this provision in the contract: “That all losses, accidents and damages of whatever kind and from whatever cause, which shall at any time happen to the work, or any person or persons whomsoever, shall be wholly borne and made good by the party of the first part.” This provision was certainly as specific as that in the contract under consideration, but because the company in that ease provided against consequences in which it could not be involved, nothing was thereby added to its liability. Just so here, because the city supposed it might be liable for the negligence of its contractor, and so provided for indemnity, that surely did not make it so liable, if it were otherwise exempt from the consequences flowing from his want of care. If, however, the broad statement that the city reserved the power, not only to control and direct the manner in which the work should be done, but, also, the power over the men employed by the contractor, be true, then, indeed, is the city responsible for the negligence of all who were engaged in the construction of the sewer. In such case Grant must be considered but as an agent, over whose acts and conduct, in the prose-ration of the work, the city would have unlimited control, and it must, in that event, be answerable for his negligence. Is this then a correct version of the contract? This question can only be answered by that instrument itself. By the terms of this contract Peter Grant was to furnish all the material and do all the work necessary to build and complete an eighteen-inch sewer, in State street, from the centre of Fifth street to within twenty feet of the north line of Ninth street, according to the plan and specifications then on file in the office of the city engineer, which were made part of the contract. The whole job was to be done in a workmanlike manner, and under the supervision and to the satisfaction of the city engineer. In case of alterations made by the engineer in the specifications he was to decide what change, if any, should be made in the pay of the contractor. An estimate was to be made, not oftener than once every two weeks, when payment was to be made, according to the price fixed per foot for the work, fifteen per cent, being retained until the final estimate and approval of the whole job. So far, then, the whole charge of this work was put into the hands of Grant, and the city had no power o.ver it except to see that it was well done, and, to this end, stipulation was made for supervision by the city engineer, just as was the case in Wray v. Evans and Reed v. Allegheny City, 29 P. F. Smith 300.

Do the specifications so modify and change the body of the contract as to alter the status of the parties, giving the city such general control over the work as to make it the superior who shall be answerable for Grant and his employees ? Let us see. By those specifications the contractor was required to dismiss, from Ms employment, all incompetent or unfaithful persons. In this we may observe, that the statement, that the city had a general power over the men employed by the contractor, is too broad, for the contract is, that he shall dismiss, from his employment, incompetent or unfaithful employees. Herein the fact of his superior and independent control over the workmen is recognised, for if the city retained this power, why contract with Grant for the doing of that which it could, at any time, do itself? Finally, we have this provision: “All work to be commenced and carried on at such times, and in such ¡daces, and in such manner as the engineer shall direct.” The court below laid especial stress upon that clause, in the above specification, which gives the engineer the power of directing the manner in which the work should be done, and, in this, it is supposed to be borne out by an expression made by Judge Strong, in Painter v. The Mayor of Pittsburgh, 10 Wright 213, as follows: “ It is further ruled, that a clause in the 'contract, by which the contractor engaged to conform the work to such further directions as might be given by the street commissioner, did not affect the case; that it only gave the corporation the power to direct the results of the work, without any control over the manner of performing it, which control, alone, furnishes a ground for holding the master or principal for the act of a servant or agent.” But the word manner, in the above quotation, is evidently considered as having a meaning so general as to reduce the contractor to the grade of a mere servant or agent. Manner, must, in such case, mean the power to control the w'ork, not only as to its character, hut also as to the particular means used to accomplish it. This must needs be so, for as we have seen in the case of Reed v. Allegheny, 29 P. F. Smith 300, a stipulation for general supervision of the work does not reduce the contractor to the grade of an agent, although necessarily, in such case, the engineer must, to some extent, control the manner in which the contract is performed. It is quite obvious that the word manner must be construed with reference to the contract in which it is found. By the agreement under consideration, the work was not only to be done in such manner, but at such times and in such places as the engineer shall direct; if this were the whole of the contract the matter would be of easy solution ; but turning to the body of the contract, we find that Grant was bound to begin the work on or before the 25th of October, and to finish it by the 25th of December following, so that the engineer’s directions as to time must be limited by the periods thus expressed. So as to place; that is fixed between certain points on State street, and whilst the engineer might direct that the work should be done on either side or in the middle of that street, as he might think would best subserve the public welfare, his directions that the work should be done on some other street, or even beyond the points indicated on State street, would be utterly nugatory. Just so with reference to the manner in which the work is to be performed; that is carefully prescribed in the specifications, and within these prescriptions the engineer may direct, but not beyond them. If ho does require and direct something which is not found therein he must then act as arbiter between the contracting parties, and fix the rate of compensation for the work thus required, and that rate becomes part of the contract. This, in itself, exhibits two independent contracting parties who have provided themselves with an arbiter to settle their disputes. It is not thus with mere agents or servants, for they themselves are but parts of the means used by the master to accomplish his design, and that he may choose to alter the theory or plan of the work before it is begun or during its progress is of no moment to them. This contract contemplates the accomplishment of a certain result; the means, so far as they are deemed necessary to give the work its proper character, are carefully specified; the province of the engineer was to see that these means were properly applied, in other words, to see that proper materials and methods were used to produce the required result. But in all this the contractor was supreme, for he had but to comply with his contract in delivering to the city a good job-according to the terms of that contract. In doing this he was his own master; the city could not direct where he should get his material, how he should bring it upon the ground or how many men he should employ. The city could not fill up the trenches which he dug in the ground designated for the sewer, neither could it erect barricades which he might not tear down if they obstructed his work; he was in the lawful possession of that part of the street which was necessary for the fulfilment of his undertaking, and the city could not dispossess him. We think, therefore, the principle of master and servant is not to be discovered in the contract between these parties, and that the defendant is not within the rule stated by Mr. Justice Agnew, in Allen v. Willard, 7 P. F. Smith 374, that the liability of the employer of the contractor continues where he has not relinquished his control over the work to be done.

Again,'it is scarcely open to question, but that Grant himself was responsible for the negligence of those whom he employed about this work. He could not plead that he was but an agent, and that as such he employed the workmen, for in this matter, at least, the city could not control him. These were his own servants who must look to him for their pay and direction; they had no claims against the city and could hold it responsible for nothing; even were they negligent and unskilful they could bid the city defiance until Grant chose to discharge them. If so, then, beyond controversy, Grant was, to these employees, the responsible superior and there could be no other. As was said, in Wray v. Evans, there cannot be two superiors severally liable for the acts of subordinate agents. This case, therefore, necessarily drops into that class of cases represented by Painter v. The Mayor, 10 Wright 213; Hunt v. The Pennsylvania Railroad Company, 1 P. F. Smith 475; Allen v. Willard, 7 Id. 374; and Reed v. The City, 29 Id. 300. In several of these cases this whole subject has been very carefully elaborated, and we need not, therefore, undertake to re-discuss the matter.

Judgment reversed. •


text:
    Wilkinson, Carter & Co. versus Stewart et al.

    1. It is not a bar to an action of replevin that the plaintiff’s goods have been commingled with like goods of the defendants by the -wrongful act of a third party.
    2. It seems, however, that if the. character of the goods is so essentially changed by the mixture that one aliquot pari would not be the equivalent for another, the ease would present a different question.
    October 15th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1877, No. 155.
    Replevin by Samuel W. Stewart and Francis Merrick, against Wilkinson, Carter & Co., for 4100 barrels of crude petroleum, valued at $9225.
    In the early part of 1874 Stewart & Merrick stored about 17,000 barrels of crude petroleum in an oil tank of about 20,000 barrels 'capacity, called the “ Caledonia tank,” which they purchased from Johnson & Co. In this tank there were also about 2000 barrels of oil belonging to Johnson & Co., which plaintiffs agreed to store for them.
    The defendants also owned an oil tank, the “Carter” tank, in the vicinity of the one above mentioned, the capacity of which was about 10,000 barrels, in which they had some 8000 barrels of oil stored, and they allowed Johnson & Co. the use of the 2000 barrels of surplus tankage in their tank. Johnson & Co. had an oil refinery in the immediate neighborhood of both these tanks, and had, it appeared, a pipe connecting this refinery with the tanks. In the early part of 1876 the defendants learned that Johnson & Co., without their knowledge or consent, had drawn out of their tank all the oil therein except about 1600 barrels, and upon demand they promised to return all the oil of defendants thus taken, and did replace about 6000, 4100 barrels of which, it appeared from the evidence on behalf of plaintiffs, wore taken from the tank of the latter by means of the pipe connection above alluded to. There was evidence, however, that in addition to the 1900 barrels in plaintiffs’ tank belonging to Johnson & Co., they had replaced 2200 barrels, thus making the 4100 barrels taken. There was also testimony on the part of plaintiffs that Johnson & Co., previous to the time of drawing out the 4100 barrels, had been taking out oil of the plaintiffs and replacing it with worthless fluid, tar and benzine from their refinery ; this to show that their oil had deteriorated in quality, and they therefore contended that the 1900 barrels already in plaintiff’s tank, and the 2200 put there by Johnson & Co. to make good the 4100 run into defendant’s tank, should be applied to make good the quality of plaintiff’s oil. The testimony as to the quantity and quality of the oil thus transferred from the refinery is commented upon with sufficient fulness in the opinion of this court.

      The plaintiff submitted the following point, which the court affirmed:—
    If, without their knowledge of consent, plaintiffs’ oil was taken out of their tank and mingled with defendants’ oil, their title was not thereby lost, and they were entitled to have, out of the common mixture, a quantity equal to that taken from their tank and put into such mixture, and may maintain replevin therefor.
    The defendants submitted the following point, which was refused :—
    If the oil of plaintiffs was taken by Johnson & Co. without-right, and delivered to defendants to supply oil owed them, and defendants, being ignorant of such wrongful taking by Johnson & Co., received the oil and mingled it with other oil of their own, so that its identity was lost, plaintiffs cannot recover in this action.
    In their general charge the court, inter alia, said:—
    “The rights of Johnson & Co. in each tank, for storage of oil, did not divest either plaintiffs or defendants of their oil. The mingling of oil for storage does not defeat the right of each owner to his portion of the common mass. Johnson & Co. had no right to take from either tank more oil than belonged to them. If they wrongfully took oil from the plaintiffs’ tank and placed it in the defendants’, the right of property was not changed. If they took the oil claimed in this action without their knowledge or consent, to replace oil which they had wrongfully abstracted from the defendants’ tank, so long as the oil so taken remained in that tank, though mingled with other oil of the defendants therein, the plaintiffs may maintain replevin therefor. The mixture was by no fault of the plaintiffs. [The property, as manifest from the treatment of all parties, was uninjured by the mixture, and no wrong is done to any one by each taking out his proportion of the common mass.] When such property can be traced into a tank, the owner ought not to lose, nor should the partyin possession, without right, be a gainer because he was not a wrongdoer in the taking and mingling it with his own. The owner has as clear a right to recover his oil as he would have had had it been placed there by his agreement with the owner of the tank for storage with other oil.
    [The oil that is in question, so far as the plaintiffs and defendants are concerned, is the oil that was taken from the plaintiffs’ tank to defendants’ tank. It is alleged, and there is evidence which will likely induce you to believe that there was very serious injury done to the plaintiffs by Johnson & Co., prior to this, in taking oil from them and replacing it with worthless stuff, to keep the tank full. Now, we leave it to you, under the evidence, in case you find any oil was restored at all, to say whether Johnson & Co. restored it in replacing the oil taken to satisfy the plaintiffs’ claim on them. If you so find it was restored for that purpose, then the principles we have stated would apply in reference to its deduction.”]

      The verdict was for the plaintiffs; and after judgment the defendants took this writ, their assignments of error being 1 and 2, the portions of the charge in brackets; 3, the affirmance of plaintiffs’ point; and 4, the refusal of defendants’.

      Dodd & Lee and Neill & Heywang, for plaintiffs in error. —
    The court were clearly wrong in fact, -when they assumed that there was no injury to defendants’ oil by the mixture. But whether wrong or right in their assumption of fact, the court should have left the question to the jury whether the oil of defendants was uninjured by the mixture, and instructed them that even if such was the case, replevin was not the proper remedy: Snyder v. Vaux, 2 Rawle 427. See Musselman v. Railroad Co., 2 W. N. C. 105.
    The court, we contend, also erred in the language in which they submitted to the jury the question as to how such oil had been taken out and returned. The defendants below were innocent of any wrong. They were, in fact, less in fault, and more wronged, than the plaintiffs; and under the circumstances of this case, the only just and correct theory to hold is that the plaintiffs and defendants became joint owners of the mixture in defendants’ tank, according to the value of the respective portions of each; and if so, replevin would not lie: Hilliard on Remedies for Torts 43; Barnes v. Bartlett, 15 Pick. 71.

      T. A. Morrison and C. Heydrick, for defendants in error.—
    Throughout the trial it was not shown that the oil transferred from plaintiffs’ tank to defendants’ was not like the oil in that of the latter at the time of the transfer. There -was no evidence whatever to show any difference in quality. In Pennsylvania, replevin lies wherever one man claims goods in the possession of another, and this, whether the claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession: Harlan v. Harlan, 3 Harris 507. And it seems but another mode of stating the proposition, to affirm that whatever goods a man may lawfully recapture as his rightful possession, he may invoke the process of the court to restore to or put in his possession. It would be an anomaly in jurisprudence to hold that a man may of right do with a strong hand what the ministers of the law are powerless to do for him: Sharswood’s note to 2 Blackstone 405; Wood v. Fales, 12 Harris 246; Tripp v. Riley, 15 Barb. 333; Fobes v. Shattuck, 22 Id. 568; Kimberly v. Patchin, 19 N. Y. 330; Whitehouse et al. v. Frost et al., 12 East 614.
   Mr. Justice Paxson

delivered the opinion of the court, January 7th 1878.

The first specification alleges that the court below erred in assuming in its charge to the jury that the oil in defendant’s tank was uninjured by the mixture. This would have been error had any such question of fact been distinctly raised upon the trial. The learned judge says in that portion of the charge: “ The property, as manifest from the treatment of all parties] was uninjured by the mixture, and no wrong is done to any one by each taking out his proportion of the common mass.” This language leaves us no room to doubt that the court was under the impression at least that no question had been seriously made on the trial as to the quality of the oil in defendants’ tank. A careful examination of the evidence leads us to the conclusion that the court was correct in this respect. The evidence of Mr. Sterritt, relied upon by the plaintiffs in error, is not essentially in conflict with this view. He says he examined the Carter tank prior to March 31st 1876, and there was three feet of liquid; one foot of sediment and two feet of what the witness supposed to be good oil. He examined the tank again after it was filled up by oil from the Caledonia tank, on the date last mentioned, and found about eleven feet of liquid, of which two feet eight inches was sediment and the balance good oil. The amount of sediment would seem to bear more upon the question of the quantity than the quality of the oil — the sediment being deducted in estimating quantity, and the superincumbent oil not being essentially affected in quality thereby. The evidence also tends strongly to show that Johnson & Co. practically, exhausted the Carter tank prior to the last run from the Caledonia tank in the latter part of March 1876, from which it would follow that the oil in the Carter tanks, after said run, having been almost if not wholly drawn from the Caledonia tank, must have been of one quality. Hot only does the evidence fail to disclose any serious contention as to the quality of the oil, but the points put to the court by the defendants below make no reference to any such question. Had the oil been so mixed in defendants’ tank as to change its quality in an essential degree, so that one barrel drawn out would not be the equivalent of any other barrel previously put in, it was an important fact to have shown, and would not have escaped the vigilance of counsel either in the examination of the witnesses or the points submitted to the court. We do not think this specification is sustained.

The second specification is not free from difficulty. The learned judge at the conclusion of his charge submitted to the jury as a question of fact, whether the oil restored to the Caledonia tank by Johnson & Co. was placed there in return for the oil which it was conceded they drew out, or whether they put it back to satisfy the claim of the plaintiffs below, for the injury caused by Johnson & Co. in pumping a quantity of worthless stuff from their slop tank into the tank of plaintiffs. I find no evidence in the cause that Johnson & Co. restored any oil for any other purpose than that of replacing the oil taken out by them. There may be therefore technical error in this portion of the charge. We do not think it, however, a sufficient ground of reversal. In any proper view of the case I am unable to see how the defendants below could have been injured by this portion of the charge. The evidence on the part of the plaintiffs as to the quantity of slops pumped into their tank by Johnson & Co. had reference more especially to the'quantity of the oil than to its quality, or to any injury resulting from the mixture. The effect of it was to show that with a given number of feet of fluid in the tank, a certain proportion bf it was tar, benzine, sediment, &c. By deducting the sediment and the ten per cent, of tar and benzine diffused through the oil the amount of the latter fluid could he ascertained with reasonable accuracy. It matters not, therefore, for what purpose Johnson & Co. put back oil into the Caledonia tank. All that had been drawn out by them into the Carter tank and not restored could be followed and replevied by the plaintiffs below. That Johnson & Co. had pumped a given number of barrels of worthless stuff' from thoir slop tank into plaintiffs’ tank was no restoration of the oil drawn out thereof by them. Hence what Johnson & Co. intended to do when they put back oil was of little consequence. The question of how much oil they took out, and how much they returned, was fairly submitted to the jury.

The third and fourth specifications allege error in the answers to points. It was urged that the answer to the plaintiffs’ first point should at least have been qualified; that it refers only to quantity and ignores quality and every other essential element in the case. We have already said that the record fails to disclose any serious contention in regard to the quality of the oil. Under the facts of the case we do not regard either the point or the answer objectionable. The defendants’ first point, which was refused, raised the question of the right of the plaintiffs to maintain replevin where the oil had been mixed without tho act of the defendants. In the recent case of Hutchison v. The Commonwealth, 1 Norris 472, the question of the effect of commingling oil in tanks and pipe lines %vas discussed at some length. It is not necessary to go over the ground again. It is wrell settled as a general principle that, in Pennsylvania, replevin lies wherever one man claims goods in the possession of another, and this whether tho claimant has ever had possession or not, and whether his property in the goods be absolute or qualified, provided he has the right of possession: Harlan v. Harlan, 3 Harris 507, and cases there cited. In this case both the plaintiffs and the defendants had a large oil tank, situated near each other. Johnston & Co. had an oil-refinery near said tanks, and had also the right of storage in each of them to the extent of two thousand barrels. The tank of tho defendants w’as connected with the refinery by means of a pipe, and was used by Johnson & Co. as a supply tank. They drew out oil for the refinery and replaced it in whole or in part from time to time. Finally they connected the two tanks by a pipe, and the plaintiffs’ tank being higher than the defendants’ the oil would flow from the former to the latter. When Johnson & Co. drew oil from defendants’ tank for their refinery they replaced it on several occasions by drawing from the plaintiffs’ tank. They acquired no title to the oil thus unlawfully abstracted. Nor did the defendants acquire any title by having it thus run into their tank by Johnson & Co. to replace the oil taken out by themi*

The plaintiffs had a clear right to follow and reclaim their oil by a writ of replevin, unless prevented by the fact of its mixture with other oil of the defendants. A given number of barrels of plaintiffs’ oil having been unlawfully drawn out of their tank and placed in defendants’ tank, they were entitled to have the same number1 of barrels of oil put back again. Had the character of the oil been so essentially changed by the mixture that one barrel would not be the equivalent for another barrel, the case would have presented a different question — one that we are not now required to pass upon. We are not prepared to say that the defendants are wholly without responsibility for the mixture. They allowed Johnson & Co. to use their tank as a supply or feeder for their refinery; to draw out oil at will, and replace it. This necessarily involved a mixture of the oil. The right of the owner of oil in tanks or pipe lines to take out his aliquot part was distinctly recognised in Hutchison v. The Commonwealth, supra. As bearing upon the same principle, we may refer to Wood v. Fales, 12 Harris 246; Tripp v. Riley, 15 Barb. 333; Fobes v. Shattuck, 22 Id. 568; Kimberly v. Patehin, 19 N. Y. 330. The judgment is affirmed!


author: Mr. Justice Woodward

text:
    Bean versus Howe et al.

    A railroad company in constructing their road appropriated a portion of the bed of a public road, removing a bridge which crossed a stream at the point taken. Upon the failure of the company to rebuild the bridge the road commissioners let the work to a contractor, who commenced the erection of a new bridge, which when nearly completed was torn up by the employees of the company and the contractor driven from the work. There was evidence that the superintendent of the railroad had assented to the location of the new bridge, which he denied. The contractor brought an action of trespass, and the court instructed the jury to find for defendants, on the ground that the contractor had no authority under the contract from the road commissioners to enter on defendant’s premises and construct the bridge. Held, reversing the coui't below, that it was for the jury to decide what was the extent of the authority and agreement of the superintendent, and if such authority and agreement were proved the plaintiff could recover.
    October 15, 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.

      Error to the Court of Common Pleas of Forest county: Of October and November Term 1877. No. 243.
    Trespass vi et armis by Abraham Bean against William Howe and others. Plea “ not guilty.” The facts are stated in the opinion of this court.

      S. T. Neill and M. J. Heywang, for plaintiff in error.
    — Upon the failure of the railroad company to rebuild the bridge, it was the duty of the road commissioners to rebuild the same, and they had the right to do so 7 Act of 19th February, 1849, Purd. Dig. 1221; Pennsylvania Railroad Company v. Duquesne Borough, 10 Wright 224; Newlin Township v. Davis, 27 P. F. Smith 317: Phoenixville v. Phoenix Iron Company, 9 Wright 135. There was certainly evidence of the assent of the railroad company to the location, and the facts relating thereto should have been submitted to the jury. Bevan v. Ins. Co., 9 W. & S. 187; Wenrich v. Heffner, 2 Wright 207.
    There was no paper book nor argument for defendants in error.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

Throughout the transactions that gave rise to this litigation, and in the trial of the cause, a strange misconception seems to have prevailed in relation to the nature and extent of corporate privileges and corporate obligations. In the years 1866 and 1867, the Warren and Franklin Railroad Company built their railroad along the Allegheny river, through the township of Harmony, in the county of Forest. In doing this the bed of a public road which had been in use for a number of years, was appropriated to the extent of some sixty porches, including a point where it crossed a stream known as Jones’s run, the bridge over which was torn away. Another public road extended from this bridge into the open country back from the river, along the upper bank of the run. A short distance below the bridge, the White Oaks station of the company was erected. When this controversy began nothing had been done towards replacing the road that had been occupied or the bridge that had been destroyed. In the interval, after consolidation with another corporation, this company had become merged in the Oil Creek and Allegheny Valley Railroad Company.

On the trial it was alleged on behalf of the plaintiff that in June 1870, the road commissioners of-the township of Harmony met Mr. Hepburn, the superintendent of the railroad company by appointment, at the station, which by this time had acquired the name of Trunkoyville. A new station-house was then being erected on the lower bank of Jones’s run, and the plaintiff’s evidence tended to show that the superintendent entered into an agreement that the company should build a public road on the upper side of tlieir track, to pass along the rear end of the station-house, and across Jones’s run to the road leading into the country along its upper bank. The same evidence was relied on to prove an agreement made at the same time, that the company should put up a new bridge ov.er the run in place of that which had been taken down. It was asserted by the plaintiff that this work was agreed to be done within three weeks. No steps having been taken within the allotted time to carry the alleged agreement into effect, the road commissioners entered into a contract with the plaintiff for building the bridge at the point selected. He began the work and prosecuted it until it was nearly finished, when the defendants, who were in the service of the railroad company, forced him to abandon it, and destroyed the bridge. Eor this trespass this suit was brought. As the bridge had been erected within the limits of the company’s right of way, the court below held that the defendants, having acted under the corporate authority, were not trespassers, and that the plaintiff could not recover.

Whether the performance of the duty the law has laid on the railroad company can be enforced as the result of the proceedings in this action or not, must depend upon the opinion a jury may form hereafter on controverted facts. At some time, in some proceeding, the law will compel that performance, for there can be no doubt of the existence of the duty itself. By the 13th section of the Act of the 19th of February 1819, it is required that a railroad company, finding “it necessary to change the site of any portion of' any turnpike or public road, shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location, and in as perfect a manner as the original road.” For present purposes, it is to be assumed that the corporate authorities wdiose franchises have become vested in the Oil Creek and Allegheny Valley Railroad Company, appropriated the bed of this highway as a part of their right of way, and took possession of and destroyed the bridge over Jones’s run. The doctrines deducible from the eases of Phoenixville v. The Phoenix Iron Company, 9 Wright 135; The Pennsylvania Railroad Co. v. Duquesne Borough, 10 Wright 223; The Township of Newlin v. Davis, 27 P. F. Smith 317, and The Pennsylvania Railroad Company v. The Borough of Irwin, reported postea, p. 336, would have justified the road commissioners, after notice to the company, in taking any proper steps to replace the road and bridge, and would have entitled them to recover from the company the expense incurred. They have attempted to reach the end in view in another way, and it remains to be ascertained whether the attempt shall be successful.

In the first point presented to the court on behalf of the plaintiff, they were asked to say “ that if the railroad company obstructed the public highway by appropriating tin road-bed and bridge for their track, it was their duty under the Act of Assembly to open and construct forthwith another road and bridge in a convenient location, and if the company failed or neglected to do so after notice and the lapse of a reasonable time, the road commissioners of the proper township had the same right and power that the company liad to appropriate other ground conveniently adjacent for a road and bridge, and it was their duty to do so.” It is not necessary to discuss the question whether the abstract legal principle embodied in this point was or was not accurately stated. It was the duty of the court to answer it, in view of the peculiar facts which the trial had developed. It was an admitted clement in the cause that the bridge the plaintiff was building was within the lines of the land the company had appropriated under their charter for their right of way. Their statutory duty was to reconstruct the public road elsewhere, and under no circumstances could the road commissioners enter upon the land set apart for the purposes of the railroad track without the company’s express consent. An affirmative answer to the point would have been unwarranted under the facts disclosed.

Apart, however, from the rights and duties of the parties under the statute and the legal rules which have been settled in its construction, the claim was made for the plaintiff that he was protected by the agreement alleged to have been made between the road commissioners and the company’s superintendent. His counsel asked the court, in his second point, to charge, “ that if the jury believe, from the evidence, that on the 22d of June 1870, the superintendent of the railroad company met the road commissioners on the ground, to arrange about supplying a new road and bridge in place of the one obstructed, and jointly selected and agreed upon a site for such new road and bridge, and the superintendent then agreed, in behalf of the company, to build the bridge in the location so selected, but the company failed to do so within a reasonable time thereafter, and the road commissioners then went on, advertised for proposals to construct the bridge, and afterwards let the contract therefor to the plaintiff, who proceeded to erect a bridge on said location, in pursuance of said contract, the plaintiff had a right to construct said bridge; and if it was destroyed by the defendants before the same was accepted J)y the road commissioners and taken off plaintiff’s hands, the defendants were trespassers, and the plaintiff is entitled to recover.” The prayer for instruction was unqualified, and assumed the power of the superintendent to bind the company. The fact was disputed, for he had sworn ho possessed no such power, and the question was one for the jury to decide. If the point, therefore, had been simply refused, it would be difficult to find error in the ruling. But the court did more than that. They charged that, “ under the evidence in this case, there was no legal authority in plaintiff, acting under the contract from the road commissioners of Harmony township, to enter on the premises in question and construct the bridge, and hence defendants, acting under the direction of the railroad company, were not trespassers in removing the same.” This instruction was a summary disposition of the whole controversy, irrespective entirely of the alleged agreement, and in disregard of all the evidence that had been submitted. It may or may not be that the authority of the superintendent to bind the company would have been found by the jury. The road had been completed for three years, and was in operation under the superintendent’s general management. Contracts of this character are usually within the scope of the powers of a railroad- official of Mr. Hepburn’s grade, after the functions of the staff of engineers have ceased, and the work of construction has been closed. Whether or not there was direct affirmative evidence of authority, is a question that was not raised on the trial, and one which the record furnishes this court with no material to answer. The superintendent’s own testimony was, of course, not conclusive. The fact could only have been settled by a verdict, and no opportunity was afforded for that, for the cause was determined by the peremptory ruling, of the court. It has been said already that an inquiry into the right of township officers to exercise the general powers of railroad companies in the reconstruction of highways where there has been corporate neglect, would not now be justified. The proviso to the 13th section of the Act of the 19th of February 1849, directs the ascertainment and payment of damages incurred in changing the location of any road, in the same manner as that provided for the location and construction of the company’s own railroad. Grave reasons would stand in the way of the assertion, by municipal authorities, of the company’s right of eminent domain. But there is no room for the introduction of that question here. If an agreement was duly made, the line of the highway and the site of the bridge were dedicated to the public, and became subject to the control of the public officers. The statute had defined the corporate duty to reconstruct the road they had appropriated. The agreement defined its location. It ceased to be exclusive corporate property thenceforth. The company were bound to complete it by erecting the bridge on the site selected. Failing to do so, the public interest required the road commissioners to do the work, on the precise principle that made the municipality liable for a failure to complete a bridge which the railroad company had left unfinished, in The Township of Newlin v. Davis, and that enabled the municipality to recover in The Pennsylvania Railroad Company v. Borough of Irwin, post, p. 336, the cost of a bridge which it was the duty of the company to rebuild. The jury should have been instructed that if Mr. Hepburn was the authorized agent of the company, and such an agreement as that set up by the plaintiff was entered into., the action of the road commissioners in making the contract for the bridge, was fully justified, and the plaintiff had a lawful possession of the premises which it was a trespass on the part of the defendants to disturb.

Judgment reversed, and venire facias de novo awarded.