text:
    Neiler & Warren versus Kelley.
    1. Trover will not lie for a “share of stock/’ but may be maintained for the certificate.
    2. A declaration of a single countin trover was for seventy shares of stock of the value of §100 each, and for four bonds of §1000 each. The declaration was defective as to the stock, but not as to the bonds, and a demurrer to the whole declaration was properly overruled.
    3. In trover the goods ought to be set out with some degree of certainty of description, but the same certainty is not required as in detinue and. replevin, damages being recovered in trover, the very articles in detinue'and replevin.
    4. If some counts are good and others bad, and the defendant demurs to the whole declaration, the plaintiff will have judgment.
    5. In general the measure of damages in trover, is the value of the goods at the time of the taking with interest; if there be circumstances of outrage jury may give more.
    6. When there is a duty on a party to deliver stocks or securities at a particular time, which duty has not been fulfilled; he is liable for the highest price in the market between that time and the trial.
    7. Kelley pledged to Neiler stocks as collateral for debt; the debt being due and unpaid, Neiler sold the stocks without notice to Kelley, he having neither demanded them nor tendered payment. In trover against Neiler, Held that the measure of damages was the market value of the stock at the time of sale with interest. '•v;
    8. In trover for wrongful conversation of a pledge, a tender of the debt is not necessary, but it may be recouped by the jury from the damages.
    October 16th and 17th 1871.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of JErie county: No. 76, to October and November Term 1870.
    William Kelley on the 27th of March 1867, brought an action of trover against William 0. Warren and Samuel E. Neiler, partners as Neiler & Warren.
    The plaintiff’s declaration was that he “was possessed of 70 shares of the stock of the Sunbury and Erie Railroad Company of the par value of $100 each, 43/^j shares of the Alton, Terre Haute and St. Louis Railroad Company, of the par value of $100 each; 4 bonds of the Philadelphia and Erie Railroad Company, of $1000 each; 4 bonds made by the Philadelphia and Erie Railroad Company, guarantied by the Pennsylvania Railroad Company, of $1000 each, of great value, to wit, of the value of $16,000;” and the plaintiff having lost them, they came into the possession of the defendants by finding, &c.
    The defendants demurred to the declaration and assigned as causes of demurrer:—
    1. That the declaration did not show the description of the 70 shares of the Sunbury and Erie stock, whether they were issued, nor when or in how many certificates, nor what were their numbers, dates or amounts, nor in whose name or where issued, nor where the record of the same may he found.
    2. Similar causes as to the Alton, &c., stock.
    8 and 4. Similar causes as to the Philadelphia and Erie bonds; nor when or to whom they were made payable.
    The court overruled the demurrer. The defendants pleaded “ not guilty.”
    On the trial, January 28th 1870, before Vincent, A. J., the following appeared to be the facts in the case: — ■
    Kelley the plaintiff had been a member of the firm of King, Brown & Co., contractors on the Sunbury and Erie Railroad, and had become indebted largely to Neiler & Warren, the defendants, who were bankers in Erie, they holding stocks, &e., belonging to him, as collateral security. The plaintiff moved to Sarnia, Canada, the debt being unpaid. Whilst there, on the 17th of April 1861, they made a settlement, by which it appeared that the indebtedness of the plaintiff to the defendants, with interest to March 1st 1861, was $7236; that the defendants had received a certificate of indebtedness from the Sunbury and Erie Railroad Co., for $5053.05, his share of the amount due King, Brown & Co., from the railroad company, which with interest, exchange, &c., left a balance of $2000 against him, for which he gave his note, dated March 1st 1861, and payable in two months.
    At this time, the defendants held as collateral 43/0*0 shares of the stock of the Alton and Terre Haute Railroad Company, of the par value of $4375. Subsequently the defendants received from the Sunbury and Erie Company, in discharge of the certificate of indebtedness, 70 shares of that company’s stock, of the par value of $7000, and $4000 of the bonds of that company, but taken at less than their par value, and $1143.69 in cash.
    Plaintiff’s indebtedness being unpaid, the defendants publicly advertised for sale, on the 7th of February 1863, at the Market House, in Erie, Penna., $7000 of the stock of the Philadelphia and Erie (late Sunbury and Erie) Railroad Company; $4000 of the bonds of that company, and $4375 of the Alton, &c., Railroad Company, “ to satisfy an indebtedness for which the said bonds and stocks were assigned to the subscribers as collateral security. Neiler & Warren.”
    On the 31st of January 1863, the defendants enclosed a notice to the plaintiff directed to Sarnia, Canada, which, as he testified, he “received only one or two days before the sale.”
    In the mean time other creditors of the plaintiff had attached his property and effects in the hands of the defendants. By arrangement with the attaching creditors, the stocks and bonds were struck down at the sale at Erie to the defendants at a nominal price, with the understanding that they should be resold at Philadelphia and New York. By direction of the defendants, the Alton, &e., Railroad Company’s stock was afterwards sold at the board of brokers, New York, and the Philadelphia and Erie stock and bonds at the board of brokers at Philadelphia. These sales produced $1134.25 more than discharged the indebtedness of the plaintiff to the defendants. This balance of $1134.25, by leave of the court, was paid into court and distributed by an auditor amongst the attaching creditors, giving them a dividend of 27 per cent.
    The plaintiff alleged that the sale in Erie was without his consent, and the sales at the brokers’ boards were without his consent or knowledge.
    The defendants’ points were:—
    1. If the jury believe the evidence to the effect that the stocks and bonds claimed in this case to have been, by the defendants, converted to their own use, were placed in the hands of the defendants by the plaintiff as collateral security for the payment of a debt due by plaintiff to defendants, the plaintiff cannot, under the evidence in this case, recover without showing that he has paid, or offered to pay, the debt for the payment of which the stocks and bonds were pledged.
    2. If the jury believe the evidence to the effect that the defendants gave the plaintiff notice that the stocks and bonds would be sold at the Market House in Erie, on the 7th day of February 1863, for the purpose of paying the indebtedness of the plaintiff to them, in time for him to have been present, and he was not present, and the defendants then bought in the stocks, &c., there being no.other bidders, with the intent to sell them in Philadelphia and New York for the benefit of the plaintiff and his attaching creditors, and did, in good faith, so sell them for the highest prices that they could then obtain, and paid into court the balance of the proceeds of such sale for the benefit of the plaintiff and his creditors, who had attached these collaterals in defendants’ hands, all the balance beyond the debt due by plaintiff to them, plaintiff cannot recover.
    3. Notice having been given to the plaintiff by the defendants of the intended sale at the Market House in Erie, it was sufficient, and no second notice was required, particularly as plaintiff admits that he got the notice in time to have been present at the sale.
    Judge Vincent in his charge said: * * * “ It is admitted by defendants that the sale in Erie was but a formal one, made to enable them to carry out the agreement made between the defendants and certain attaching creditors, to have them resold in New York and Philadelphia, but, as defendants contend, with the consent of the plaintiff’s attorneys. The purchase of the securities by the defendants at the sale at Erie, did not change the character of the securities in their hands. They still remained the trustees of the plaintiff for the securities, still held them as collateral to the payment of the debt he owed them, and they had no better right to sell at New York or Philadelphia without his authority, or without legal notice to him of such sale, than they had before the sale at Erie. If the plaintiff, through his attorneys, consented that such sale might be made, he is bound by it. If neither he, nor his attorneys for him, consented, he is not bound by the sales so made, and can recover in this case, the highest price said securities, so sold without his consent, bore between the time they were sold in 1863 and the bringing of this suit in 1867; and you have a right to allow them interest on the balance you may find due, after deducting from the price of such securities at the highest point, the amount of debt and interest due the defendants at the time of sale in February 1863; but we think they ought not to have interest before the time in 1864 at which you find the said securities brought the highest price. * * *
    “We answer defendants’ points as follows:—
    “1. We answer this in the negative or affirmative, as you believe testimony as to notice or consent, as referred to in our general charge; but if you find for plaintiff, defendants are entitled to have the amount due them from plaintiff at time of sale deducted.
    “ 3. We answer this in the negative, referring to our general charge.”
    The verdict was for the plaintiff for $7706.99.
    The defendants took out a writ of error/rom the Supreme Court.
    His assignments of error were:—
    1. Overruling defendants’ demurrer to plaintiff’s declaration.
    7. The charge as to the measure of damage, as applicable to the evidence in the case.

      J. R. Thompson, B. Grant and E. Babbitt, for plaintiffs in error.
    The bonds and certificates of stocks are not sufficiently described to enable the court or jury to select them from other bonds or certificates of’ stocks similar in appearance; nor could they be successfully pleaded in bar by way of a former recovery: Fox v. Reed, 3 Grant 81; Irwin v. Potter, 3 Watts 271; Gogel v. Jacoby, 5 S. & R. 117; 1 Chitty’s Pl. 562.

      J. C. Marshall (with whom was F. F. Marshall), for defendant in error.
    The bonds and stock are sufficiently described in the narr.: 1 Chit. Pl. 378; Heddy v. Fuller, 1 Blachford 51; Taylor v. Morgan, 3 Watts 333.
   The opinion of the court was delivered, October 23d 1871, by

Sharswood, J.

This was an action of trover to recover damages for the conversion of certain railroad stocks and bonds alleged to have been held by the defendants below, as a pledge or collateral security for the payment of a debt or debts owing by the plaintiff to them.

The first assignment of error is, that the court below erred in overruling the demurrer to the declaration. This declaration was undoubtedly, as to part of it, defective in substance, and had that part of it alone been demurred to, it must either have been amended, or judgment entered for the defendants for so much of the plaintiff’s demand. It alleged the conversion of “ 70 shares of the Sun-bury and Erie Railway Company of the par value of $100 each; 43 and j^-¶ shares of the Alton, Terre Haute and St. Louis Railroad Company of the par value of $100 each.” It was decided by this court in Sewall v. The Lancaster Bank, 17 S. & R. 285, that trover does not lie to recover damages for shares of bank stock, and the same principle, of course, applies to all other corporation stocks. Mr. Justice Huston said: “ Though trover might lie for a certificate of stock as it does for a bond or a deed, yet it will not lie for 100 shares of bank stock any more than it would for a debt or a right of entry.” A share of stock is an incorporeal intangible thing. It is a right to a certain proportion of the capital stock of a corporation — never realized except upon the dissolution and winding up of the corporation — with the right to receive, in the mean time, such profits as may be made and declared in the shape of dividends. Trover can no more be maintained for a share of the capital stock of a corporation than it can for the interest of a partner in a commercial firm. The two cases are precisely analogous. But the document or writing which is the evidence of ownership is a tangible corporeal thing— the subject not only of property but of possession — the right to which is essential in trover. Thus a bond or promissory note may be the subject of the action but not the debt of which it is the evidence. The other things mentioned in the declaration do not fall within this objection. “ Four bonds made by the Philadelphia and Erie Railroad Company, of $1000 each; four bonds made by the Philadelphia and Erie Railroad Co., guarantied by the Pennsylvania Central Railroad Company, of $1000 each.” One of the causes of demurrer assigned was, that neither the shares of stock nor the bonds were described with sufficient certainty — their numbers, dates, in whose names issued, and other particulars, are not given. It is true that in all actions for taking away or injuring personal property, the goods ought to be set forth with some degree of certainty — stating the kind, number and value — all of which are here given, but it is settled that less certainty is required in trover than in detinue and replevin, because in trover damages only are recovered, but in detinue and replevin the things themselves: 1 Chitty on PL 363. We think, therefore, that the description was sufficiently certain.

Had there been several counts in this declaration, one for the shares of stock and another for the bonds, it would have been the duty of the court — upon a demurrer to the former count — to have entered judgment for the defendants, if no amendment had been moved. A demurrer is either to the whole or part of a declaration, and if there be several counts, some good and others bad, if the defendant demurs to the whole declaration the court must give judgment for the plaintiff, and this rule applies equally to one count, part of which is sufficient and the residue not, when the matters are divisible in their nature. Thus, if a plaintiff declares for taking his money and also for certain goods, without showing that the goods were his property, the count will be good as to the money, and if the defendant demurs generally to the whole, the plaintiff will have judgment: 1 Chitty on Pl. 643. The court below, therefore, committed no error in overruling the demurrer.

The 2d, 3d, 4th, 5th and 6th assignments of error are clearly not secundum regulam, Rule VII., 6 Harris 578 ; Burkholder v. Stahl, 8 P. F. Smith 371; and are therefore to be holden for none. We may say in regard to the fifth and sixth assignments, that, as no copy of the letter of Kelley, dated January 17th 1863, to which a reference is made in the charge, is printed in either of the paper-books, and which seems to be very material, no opinion could safely be hazarded upon the question attempted to be raised by these specifications.

The 7th assignment of error, however, is substantially in compliance with the rule. It complains of the charge of the learned judge in regard to the measure of damages, as applicable to the evidence in the case, “ that it was the highest price the securities bore between their sale and the bringing of this suit.” In this we think there was error.

The general rule as to the measure of damages in an action of trover, undoubtedly is well settled to be the value of the goods at the time of the conversion, to which may be added interest up to the time of the trial, unless there were some circumstances of outrage in the case, when the jury may give more: Jacoby v. Laussatt, 6 S. & R. 300; Dennis v. Barber, Id. 420; Berry v. Vantries, 12 S. & R. 89; Taylor v. Morgan, 3 Watts 333; Harger v. McMains, 4 Watts 418. This rule may be considered to have been, to some extent, modified as to stocks, railroad bonds and other securities of a similar nature, by the cases of The Bank of Montgomery v. Reese, 2 Casey 143; Reitenbaugh v. Ludwick, 7 Id. 131; Persch v. Quiggle, 7 P. F. Smith 247, and perhaps others. The rule, however, is not changed but only modified to this extent, that wherever there is a duty or obligation devolved upon a defendant to deliver such stocks or securities at a particular time, and that duty or obligation has not been fulfilled, then the plaintiff is entitled to recover the highest price in the market between that time and the time of the trial. The grounds of this exception are that such securities are limited in quantity — are not always to be obtained at any price, and are of a very fluctuating value. These are supposed to constitute suflicient reasons for the distinction. But it is plain that it has no application to the evidence in this case. The defendants below were at no time under any obligation to deliver these stocks and bonds specifically to the plaintiff. He never had put himself in a position to demand them before the bringing the suit or up to the time of trial, by tendering or offering to pay the amount of his indebtedness to the defendants. Had the action been detinue or replevin, he must have failed entirely. We agree that in trover, where there has been actual conversion by a wrongful sale of the pledge, there is no necessity for a tender of the debt, but its amount may be recouped by the jury from the damages — the value at the time of conversion — but where a plaintiff seeks to fasten a responsibility for more than the usual measure of damages, he must also fasten upon the defendants the duty or obligation to deliver specifically the stock or securities at some particular time, and their refusal to fulfil that duty. Non eonstat that upon a demand and tender the defendants would not have been able to deliver to the plaintiff similar stocks and securities, as according to Gilpin v. Howell, 5 Barr 41, they might well do. There was no pretence in this ease of any outrage which should be allowed to inflame the damages. The defendants acted in the sale of the stocks and bonds, in the belief that they had a right to sell them, and with perfect fairness and good faith to all interested. There was nothing, therefore,! in the evidence in the case to take it out of the ordinary rule that! the measure of damages was the market value of the stocks and | securities at the time of the sale or conversion — with interest up| the time of the trial — from which the jury should deduct the amount of the plaintiff’s indebtedness to the defendants, and such ought to have been the instruction to the jury.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Agnew, J. Agnew, J.

license: Public Domain

text:
    Noble et al. versus The Thompson Oil Co. to use, &c.
    1. Thompson recovered judgment against Wright, Noble became bail in error for Wright on the removal of the case to the Supreme Court. Thompson assigned the judgment to Marshall and afterwards a foreign attachment was issued by Woods in New York against Thompson, in which the judgment against Wright was attached, and judgment in the attachment was rendered against Thompson. The judgment against Wright was afterwards affirmed by the Supreme Court and suit brought against the bail in error. The bail pleaded the attachment in abatement. Held, the bail not being parties to the attachment the plea was not good.
    2. The bail were liable for the debt and costs, which could-be recovered only by Thompson.
    3. If judgment be given for the attaching creditors against Wright as garnishee, the bail can protect himself only by coming into Pennsylvania and claiming payment by substitution to Thompson in this suit.
    4. Neither the assignee of Thompson nor the bail are legal plaintiffs; they must claim the intervention of the court on the fund, and may pay the money into court, where the right may be determined between the assignee and attaching creditor.
    5. To the plea of the attachment, the plaintiff replied, the assignment of the judgment before the attachment, and that Woods had commenced a suit against Thompson in the Supreme Court of Pennsylvania, for the same cause of action, which was still pending. The defendant demurred; the demurrer was overruled and the defendant ordered to answer over; he made no answer; the case was tried, he protesting. KM, that the trial was without an issuable plea, and the judgment was reversed.
    6. On the second trial, the defendant pleaded specially that there had been a recovery in the attachment against Wright as garnishee for the amount of the debt recovered by Thompson, which judgment had been satisfied. The court below struck off the plea and gave judgment for want of a plea. KelA to be error.
    7. A payment of the debt by Wright as garnishee in the attachment, if rightfully made, would discharge the bail.
    October 16th 1871.
    Before Thompson, C: J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1870, No. 71.
    This was an action of debt on recognisance of bail in error, by The Thompson Oil Company to the use of S. A. Davenport, John H. Walker, James C. Marshall and Francis F. Marshall, against Orange Noble, L. L. Lamb, Ambrose Snow and Theodore Wright. The writ was issued to December Term 1868, and returned “ summoned” as to Orange Noble and L. L. Lamb, and “nihil” as to Ambrose Snow and Theodore Wright.
    In the Court of Common Pleas of Erie county, on the 27th of September 1867, a verdict for $26,723.50 was rendered against Ambrose Snow, Joseph S. Burgess, Theodore Wright and W. S. Woods, in favor of the Thompson Oil Company. The defendants removed the record to the Supreme Court, Noble and Lamb being sureties in the recognisance in error. The judgment was affirmed by the Supreme Court, November 18th 1868. This suit having been brought on the recognisance on the 8th of February 1869, Noble and Lamb, the only defendants summoned, pleaded that the debt recovered had been attached in the hands of the defendants in that suit by process out of the Supreme Court of the city of New York, at the suit of The Woods and Wright Oil Company, and Snow and others, the defendants in the Erie county suit, were made garnishees, in which attachment judgment was rendered against The Thompson Oil Company for $56,251.88; that under the laws of New York this judgment was a lien on the debt due by Snow and the other defendants in the Erie county suit; that execution was issued on the judgment in the attachment, and the debt due by Snow and others, and also their individual property levied on; that on the service of the attachment, on the 1st of February 1868, the garnishees being then ignorant of any assignment of the judgment which had been recovered against them in Erie county, gave notice to the Thompson Oil Company of the attachment; that after the execution on the judgment in the attachment had been issued and levied on their property, and before the suit on the recognisance had been commenced, and before further proceedings had been had in New York, the garnishees gave notice to the Thompson Oil Company and to Conrad Brown, J. C. & F. F. Marshall, John H. Walker & Son, who claimed to be assignees of the original judgment in the Erie Common Pleas, of the proceedings in the New York Supreme Court, and to appear in that court and take such proceedings as might be necessary to protect the garnishees, &c.; that neither the Thompson Oil Company nor their assignees had taken any steps to protect the garnishees; that the garnishees gave the New York court to understand that the debt had been assigned to Brown, the Marshalls and the Walkers, by assignments alleged to have been issued before the attachment; the plaintiffs in the attachment denied that any such assignments had been bond fide made, so as to prevail against an attaching creditor. Thereupon the Supreme Court of New York made a decree appointing W. M. Tweed, Jr., receiver of the fund attached, and restraining the garnishees from parting with the fund until the further order of the court; and ordered that a feigned issue be framed between the receiver and the garnishees, to try whether the assignments were good against the attaching creditors, which issue is pending, and in which judgment may be rendered, that the garnishees and the defendants as their sureties in this action on the recognisance, may be compelled to pay the claim recovered in the original suit in Erie county. They therefore prayed judgment, “ whether they ought to be compelled to answer further until said attachment be determined.”
    To this plea the plaintiffs replied:—
    1. That the debt recovered in the suit in Erie county had, on the 27th of November 1867, and before the issuing of the attachment, been assigned for a full consideration to the Marshalls, Walker and Brown, and that the Thompson Oil Company had no interest in the said debt.
    2. That the Woods & Wright Oil Creek Company had commenced a suit in the Supreme Court of Pennsylvania, which is for the same debt, &c., upon which the attachment was issued, and that the action was still pending in the Supreme Court of Pennsylvania, at the time of the commencement of the attachment suit in New York. The replication concluded to the country.
    The defendants demurred to the replication. The court entered judgment for the plaintiffs on the demurrer, and ordered that the defendants answer over in twenty days. No answer was made, and the plaintiffs obtained a rule to show cause why judgment should not be entered against the defendants for “want of an answer.” This rule, with consent of the plaintiff, was discharged on the 2d of December 1869.
    On the 7th of April 1870, a jury was called, defendants protesting that there was no issue of fact" triable by a jury; the protest being overruled, the defendants took no part in the trial. The jury rendered a verdict for “$54,000, real debt $30,884.81.”
    Judgment being entered on the verdict, the defendants removed the record to the Supreme Court, and assigned for error:—
    1. Ordering the defendants to answer over.
    2. Not entering judgment for the defendants on the demurrer.
    3. Ordering a jury trial without further disposition of the demurrer, or any other issue appearing on the record than the issue of law.
    4. Entering judgment on the verdict.

      G. Shiras, Jr. (with whom was B. Grant), for plaintiffs in error.

      J. O. Marshall and J. H. Walker (with whom was F. F. Marshall), for defendants in error.
   The opinion of the court was delivered, October 23d 1871, by

Agnew, J.

Noble and Lamb, the defendants below, were sued by the Thompson Oil Company, in debt, on a recognisance of bail in error for Snow, Burgess, Wright and Woods, defendants, in a judgment obtained against them by the Thompson Oil Company. Before this suit an attachment had been issued out of the Supreme Court of New York, by certain creditors of the Thompson Oil Company, and served on Snow, Burgess et al., the original defendants, to attach the debt, in the judgment recovered by the Thompson Oil Company, against them. That attachment has been pleaded in abatement to suspend the present suit on the recognisance of the bail in error, and is resisted by Messrs. Brown, Marshall and Walker, claiming as assignees of the debt before the attachment in New York.

But, clearly, the plea of attachment can have no such effect, for the present defendants are not parties to the attachment; were not served, and cannot J)e affected by any judgment which the court of New York shall give in the attachment. They are liable, at all events, for the debt and costs secured by their recognisance, which can be recovered from them only in the name of •the Thompson Oil Company. The attaching creditors cannot sue them, and if judgment be given for those attaching creditors against the original defendants as garnishees, they can protect themselves only by coming into the Pennsylvania court and claiming payment by substitution to the Thompson Oil Company in this suit. These defendants, Noble and Lamb, are not concerned in the contest for the money between the assignees and the attaching creditors; neither are legal plaintiffs, but must claim the intervention of the court upon the fund itself. That is a question of distribution as to whom the fund shall be paid after it is collected. These defendants can protect themselves by payment into court, and an issue between the assignees 'and attaching creditors will determine the right to the fund. As between them there possibly may be a suspension of judgment until the attachment in New York be determined, but on this point we give no opinion. To implicate these defendants in the attachment proceedings, they must have been served with the writ, so that the jurisdiction and judgment of the Supreme Court of New York could be made effective against them by its process.

It is said the debt, however, has been attached and, therefore, they are implicated. This is a mistake, their debt has never been attached. The debt they owe is the penal sum in their recognisance, which has not been attached. The recognisance, it is true, is conditioned for the payment of the debt of the original defendants, with costs, upon their failure to prosecute their writ of error with effect. But that debt and costs are the measure only of the liability of these defendants, and are not the debts of these defendants, who can become fixed for the penalty of their recognisance only on showing the non-performance of its conditions.

The recognisance is, therefore, a distinct ground or cause of action, which must be attached, with service on them to make a plea of attachment available either in abatement or in bar.

And even had they been served the plea would be bad according the opinion of Justice Strong in Brown v. Scott, 1 P. F. Smith 862 : It neither abates nor bars an action (he says), and pleading it can have no other effect than giving notice of the claim of the attaching creditor, and to enable the court to mould the judgment and protect the rights of the parties.”

But this judgment must be reversed on the ground of a mistrial. When the court overruled the demurrer of the defendants to the replication of the plaintiffs to their plea of the pending foreign attachment, it left the cause standing upon immaterial issues. The plea in abatement, we have seen, was itself bad, and the replication to it, that the debt had been assigned by the plaintiff to Messrs. Brown et al, was not material to the cause.

Nor was it a material issue to the defendants that the New York attaching creditors of the Thompson Oil Company had commenced a previous suit in Pennsylvania for their debts. The result was that the case was tried without any issuable plea on the part of these defendants; and as it was tried against their protest, entered upon the record, no presumption of waiver or acquiesence can be made against them, while the issues presented by the plaintiff’s double replication were immaterial to the case. The judgment is therefore reversed, the plea and replication thereto are stricken from the record, and a procedendo awarded.

On the return of the record by a remittitur from the Supreme Court, the plaintiffs on the 31st of October 1871, took a rule 'on the defendants to plead in fifteen days or judgment. November 10th, the defendants pleaded, “ nil debet and payment, &c.” November 29th, on leave, the defendants withdrew their plea. On the same day the defendants Noble and Lamb pleaded the attachment, &c., substantially the same plea as that pleaded before the reversal. On the 2d of January 1872, this plea was stricken off; the plea “nil debet and payment, &c.,” was same day entered by the court; and Theodore Wright, one of the defendants not served, asked to enter his appearance in the case; February 27th, leave granted to “ Wright to appear without prejudice to the rights of either party and without any right to continuance by reason of said appearance, and said defendant required to plead during this day.” On the same day the court struck off the plea of “nil debet and payment, &c.,” without consent of defendants’ attorneys. Same day Wright filed a special plea, averring that the debt had been attached by process from the Supreme Court of New York, &c., as set out in former special plea; and that in the issue directed between Tweed the receiver and the garnishees, the plaintiffs recovered a judgment of $30,334.11 against the garnishees; on which judgment and execution was issued,“by means whereof the said judgment became and was entirely satisfied.” On the same day the plea .was stricken off by the court. The case being on the trial list, March 5th 1872, judgment was on motion entered against Noble, Lamb and Wright for want of a plea, the defendants’ counsel protesting; the judgment was liquidated at “ $54,000, real debt $33,894.66.”

The defendants took out a writ of error and assigned for error:

1. Striking off the plea.

2. Entering judgment for want of a plea.

The case was heard by the Supreme Court, October 26th 1872, before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

G. Shiras, Jr., and G. W. Biddle, for plaintiffs in error.

J. C. Marshall and J. H. Walker, for defendants in error.

The opinion of the court was delivered, November 4th 1872, by

Agnew, J.

The court below erred in striking off the plea in this case. In effect the plea alleged a legal recovery and satisfaction of the debt, for which the recognisors in this case were liable on their recognisance as bail in error. If Wright, the principal in the recognisance, with Snow and other defendants in the original judgments for which Noble and Lamb became liable as bail in error, paid that judgment as garnishees in an attachment of plaintiff’s debt, clearly the payment is so far a defence to the bail in error. This being the substantial averment of .the plea which the court struck off, they were precluded from any defence arising out of the alleged satisfaction of the debt for which they were liable. This is a very different thing from pleading the pending attachment in abatement or suspension of the suit against themselves before payment of the debt. As we stated when this case was here last year, the remedy of Noble and others, the only defendants in this action, ivas to pay the money into court and leave the controversy between the attaching creditors and the persons claiming by assignment prior to the service of the attachment, to be pursued between themselves. It was a contract in which Noble and Lamb then had no interest. But the subsequent payment of the debt by their principals, the defendants in the original judgment, operates as a discharge, if rightfully made. If their principals have paid it, they should not be called on to pay it a second time. The court, therefore, ought not to have stricken off the plea, but to have put the plaintiffs to their replication, in which they had a right to set up an assignment of the debt before attachment and notice thereof, to show that the payment was made by the garnishees in their own wrong. This would have raised the real question in the cause as to the effect of the judicial proceedings in New York upon the assignors, who were citizens of Pennsylvania, a question upon which it would be improper now even to intimate an opinion.

The order of the court below striking off the special pleas of Wright and the other defendants is reversed, the plea restored and procedendo awarded.


author: Read, J.

text:
    Bissell versus The First National Bank of Franklin.
    1. An advertisement was “ Bissell & Co., Bankers, R. L. Irwin, Cashier,” &c. Irwin was asked at the banking-house to discount a draft, payable to Bissell & Co.’s order, not being able to do it, at his request on the street after bank hours the cashier of a bank discounted it, Irwin endorsing it, “R. L. Irwin, Cashier.” Irwin had actual charge of B. & Co.’s business; signed his name as cashier in their business transactions, &c. Held, under the circumstances, that B. & Co. were bound by Irwin’s endorsement.
    2. The cashier of an incorporated bank is the general executive officer to manage its concerns in all things not peculiarly committed to the directors ; he is agent of the corporation not of the directors.
    October 17b 1871.
    Eefore Thompson, C. J., Read, Ahnew, Sharswood and Williams, JJ.
    . Error to tbe Court of Common Pleas of Venango county: To October and November Term 1870, No. 43.
    This was an action of assumpsit, brought to April Term 1869, by The First National Rank of Franklin against George H. Rissell, James Rishop, James A. Williamson and James R. Geggie, partners as George H. Rissell & Co.
    The. defendants were sued as endorsers on the following protested drafts:—
    “$4000. _ _ “ Oil City, 17th July 1868.
    _ _ “ One day sight with exchange, pay to the order of George H. Rissell & Co., Four Thousand Dollars, value received, and charge the same to account of
    “E. W. Mercer.
    “ To C. W. Everett, Esq., Cleveland, 0.
    “Endorsed — Pay R. L. Cochran, Cash’r., or order.
    “ R. L. Irwin, Cash’r.”
    “ $2838. “ Oil City, 18th July 1868.
    “ One day sight with exchange, pay to the order of George H. Rissell & Co., Twenty-Eight Hundred and Thirty-Eight Dollars, value received, and charge the same to account of
    Tí T/V" TV/Ttsur cin?
    « To C. W. Everett, Esq., Cleveland, O.
    “ Endorsed — Pay R. L. Cochran, Cash’r., or order.
    “ R. L. Irwin, Cash’r.”
    On the trial, November 9th 1869, the following facts appeared :—
    George H. Rissell & Co. were private bankers; the partners, except Geggie, resided in New York; Geggie resided in Oil City; they had two offices, one at Oil City and the other at Petroleum Centre.
    Their business card, by direction of Mr. Rissell, was published about June 1868, in a public newspaper «in Yenango county; it is found at large in Judge Read’s opinion.
    R. L. Cochran, the cashier of the plaintiffs, testified that on the 17th of July 1868, R. L. Irwin, the defendants’ cashier, asked witness in the street in Franklin, after bank hours, if he would cash the $4000 draft for him; he said it was the “ draft of a customer of his payable to their order; I said I know nothing of the parties, that if he would agree in case the paper was not paid promptly to take it up, I would discount it, if the teller of the bank would open it and give him the money; he said he wanted to accommodate this customer.” On the evening of the 18th the witness met Irwin again in the street of Franklin, and asked him to cash the $2838 draft, that he was anxious to accommodate “ this customer.” After some hesitation, the witness said he would take the draft on the same terms as the other, if he would take it up. Irwin then endorsed the draft and directed witness to remit to James Bishop & Co. to credit of George H. Bissell & Co.; the plaintiff’s draft was sent and paid by the plaintiff’s correspondent in New York. The teller of plaintiff proved that he had paid to Irwin the proceeds of the $4000 draft after the bank had closed.
    Mercer the drawer testified, that in 1867 and 1868, he had been engaged in buying and selling oil, and had business transactions with the defendants; Irwin was acting as their cashier during that time, and he and a clerk made the entries in the book of witness; Irwin “passed upon” the drafts; the proceeds were passed to the credit of witness with the defendants, and his checks drawn against it were honored; he had drawn a number of other drafts of a similar kind on Cleveland, which had been cashed by the defendants, he giving them railway bills of lading as collateral security. When he applied to have the drafts discounted, Irwin told him he had no currency, but would try to get them'discounted at Franklin; witness took the drafts to George H. Bissell & Co., and got the proceeds less the discount.
    The plaintiffs gave in evidence Mercer’s bank-book with the defendants; showing a large number of entries to his credit, apparently discounts. S. T. Everett, one of the firm, drawees of the draft, testified that his firm, who were bankers, had business transactions with the defendants; the two firms making collections for each other; the drafts received by witness’s firm were endorsed by Irwin as cashier. .Witness produced a letter to his firm, dated July 18th 1868. It had a printed head, viz.: “George B. Bissell & Co., Bankers, Oil City, Penna.” The letter said that a bill of lading sent in it, “should have gone with the $4000 draft sent by R. L. Cochran, cashier.” This letter was signed, “R. L. Irwin, cashier.”
    Also another letter in same form, date July 20th, enclosing “two bills of lading which should have been attached to Mercer on Everett, $2838, endorsed by me and sent you by R. L. Cochran, cashier,” signed “R. L. Irwin, cashier.”
    A number of witnesses testified that, in private banking-houses, where they have a cashier, the business of buying and selling drafts is usually done by the cashiers; bankers usually accommodate each other before or after banking hours. Others who had been doing business with the defendants, addressed their communications to R. L. Irwin, cashier; all the drafts which came to them were signed “ R. L. Irwin, cashier.” Amongst others E. E. Anderson, cashier of Lamberton’s Bank, said, “ I have had business as a banker with Greo. H. Bissell & Co.; R. L. Irwin acted as cashier; all the business papers were signed ‘ R. L. Irwin, cashier.’ ”
    Irwin for defendants testified, that the drafts were taken by the plaintiff at the discount defendants were to receive, and defendants did not charge Mercer anything more, nor make any profit on the drafts; that he endorsed the drafts in order to negotiate them. He also said on cross-examination, that he did all the business of the defendants; sometimes endorsed drafts in the firm name, and sometimes “R. L. Irwin, cashier.”
    Greggie, one of the firm, said, “ Irwin had actual charge of the business.”
    The points of the parties with their answers and the portion of the charge of Trunkey, P. J., objected to, are found in the specification of errors.
    The verdict was for the plaintiffs for $7376.69.
    The defendants took out a writ of error. Their specifications of error were as follows:—
    The court erred :
    1. In their answer to plaintiff’s 2d point, viz.:—

      “ Buying and selling drafts, time drafts and other commercial paper is within the scope of the business of private bankers.”
    2. In their answer to plaintiff’s 3d point, viz:—
    “ If the jury believe, from the evidence, that the defendants were private bankers, carrying on that business at Oil City, and employed R. L. Irwin as their agent and cashier to take charge of and manage their said business, his endorsements of the drafts in question in this case bound his principals, in like manner as if the said drafts had been endorsed by a member of said firm with the firm name.”
    Both these points were affirmed.
    3. In their answer to plaintiffs’ 4th point, viz.:—
    “ The endorsement made on said drafts by said R. L. Irwin, cashier, was the endorsement of the payees named therein, passed the legal title thereof to the plaintiffs, and rendered the endorsers liable as such, unless there was a mutual understanding between the endorsers and endorsee, at the time of the making of the endorsement and the delivery of the drafts, that said endorsers were not to be so liable.”
    “ Answered in the affirmative — provided it was done in the usual course of defendants’ banking business.”
    4. In charging the jury as follows, to wit:—
    “ If Mercer obtained the money from the defendants, on arrangements made with them by their agent, Irwin, and the defendants by tbeir same agent obtained and received tbe money for themselves and on their own responsibility, to be taken up by them if not paid by the drawer at maturity, and on such arrangements endorsed the drafts, they are liable on the endorsement.”
    5. In their answer to defendants’ 1st point, viz.:—
    “ The plaintiff have shown no sufficient authority in said cashier to make said endorsement.”
    This point was denied.

      0. Eeydriek (with whom were Taylor Markey), for plaintiffs in error.

      J. jK. Kerr (with whom was S. P. McOalmont), for defendants in error.
   The opinion of the court was delivered, November 13th 1871, by

Read, J.

There is no doubt that if the two drafts in favor of George H. Bissell & Co. had been endorsed by all or any of the four defendants under the same circumstances, the firm would be liable, and this judgment would be correct; and the question is, whether the endorsement by their cashier, R. L. Irwin, should not have the same effect. The firm in June 1868 published in the Venango Spectator, a weekly newspaper in the city of Franklin, the following business card:—

“GEORGE H. BISSELL & CO.,
Bankers,
Oil City, Pa., Richard L. Irwin, Cashier.
Petroleum Centre, Pa., John E. Ray, Cashier.
Buy and sell exchange and government securities, make collections, and do a general banking business.”

Three of the firm lived in New York, the other, Mr. Geggie, resided at Oil City. The advertisement, of course, implied that the authority, of Irwin and Ray was equally extensive, and it is clear that Ray must have had the power to bind the firm in a case like the present, or the business of banking at Petroleum Centre by the firm could not have been carried on at all. Mr. Geggie says, “ Irwin had actual charge of the businessand the evidence shows this to have been the case.

An incorporated bank has a president, cashier and a board of directors, and the cashier is the general executive officer to manage its concerns in all things not peculiarly committed, to the directors by the charter, and he is the agent of the corporation, and not of the directors. In the case of a private bank there is no president and no board of directors, and the business may be and usually is transacted before and after as well as during the usual banking hours.

The evidence clearly proves the large powers of the cashier of a private banking firm, and that they were exercised by Mr. Irwin. One witness, the cashier of Lamberton’s Bank, says, “ I have had business as banker with George H. Bissell & Co., R. L. Irwin acted as cashier; all the business papers were R. L. Irwin, cashier. I think the partners lived in New York. Irwin did aÚ the business so far as I know.”

E. W. Mercer was engaged in the business of buying and selling and shipping of oil, and resided in Oil City in 1867 and 1868, and had an account with the defendants. He had, from the 3d July 1868 to the 20th, various drafts discounted by the firm, all accompanied by railway bills of lading, including the two drafts in suit, the proceeds of which he drew out by cheeks. The whole transaction of this business was conducted by Mr. Irwin as cashier.

It is clear, therefore, that as regarded the plaintiffs, the endorsement by the cashier was the endorsement of the firm.

Judgment aifirmed.


author: Sharswood, J.

text:
    Grant versus The City of Erie.
    1. An Act of Assembly empowered a city to make a sufficient number of reservoirs “ to supply water in case of fire.” The council constructed reservoirs, but suffered one to dilapidate so that it would not hold water. A fire occurred near this reservoir and no water could be obtained from it, the buildings were burned. The owner claimed damages, alleging negligence on the part of the city. Held, that it was discretionary with the city to construct the reservoirs and they were not liable.
    2. The city having in pursuance of the act constructed the reservoir, was not therefore bound to maintain it.
    3. Carr v. N. Liberties, 11 Casey 324, recognised.
    October 18th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Brie county: Of October and November Term 1870, No. 116.
    This was an action on the case commenced April 17th 1868, by Benjamin Grant against the City of Erie.
    The plaintiff’s action was based on the following circumstances :—
    He was the owner of valuable buildings in Erie, which, on the night of February 1st 1868, were destroyed by fire.
    By the 9th section of an act, passed April 8th 1833 (Pamph. L. 279), the borough of Erie was authorized “to provide for the conveyance and distribution of a sufficient quantity of good and wholesome water through the borough, and for its permanent continuance, and to make and establish a sufficient number of reservoirs to supply water in case of fire.”

      The borough, many years before the fire, had constructed reservoirs for the purpose mentioned in the act. One was located near the plaintiff’s buildings. In 1867, in arranging their sewerage, part of this reservoir was removed, and it was not afterwards repaired so as to retain a sufficient supply of water. At the time of the burning of plaintiff ’s buildings water could not be obtained from the reservoir, and in consequence, as the plaintiff alleged, his buildings were destroyed.
    A number of points predicated of these facts were submitted to the court, on the trial of the case, February 18th 1870.
    The points raised are sufficiently indicated by the portion of the charge of Yincent, J., here given:—
    * * * “ We are not prepared to assent to the proposition that the discretion vested in the city authorities, by the act of incorporation, became an imperative obligation to maintain a full supply of water for fire purposes ever after by the means of these reservoirs, for if that were so the authorities were under obligations, after building one, at once to build all the reservoirs required by the wants of the people, if they had the means, or could by reasonable diligence procure them, and the failure to do so and they have not done so, has rendered the city liable for every loss by fire caused by such failure.
    “We are of the opinion that the city was under not any greater obligations to keep those reservoirs supplied with water at all times after their construction, than it was to construct them in the first place.
    “ It could abandon or remove them or fill them up with earth at its pleasure, without incurring any liabilities to any citizen therefor. If, in the course of construction of any other city improvement it was found necessary to remove or destroy one of those reservoirs, the city had a perfect right to do so, and had it been left in such condition that it would not hold any water, in our opinion the city would have incurred no responsibility to any one for that reason.
    “We are also of the opinion that this injury was too remote to fix any liability on the city.
    “ Had this reservoir been left open by the authorities, and in consequence some one had fallen in and received personal injuries thereby, the city would have been liable; or had it made the walls of the reservoir so weak that it had burst by the weight of water in it, and flooded the cellars in the neighborhood, the city would have been liable, for the injury would have been the direct -result of the neglect of the city authorities.
    “ In every case referred to by the counsel for the plaintiff, in which a municipality was held liable, it was for an injury which its neglect caused directly. In this case it was neither the reservoir nor the amount of water in it that caused the fire. It was caused by something else than that, and whether the ultimate loss was caused by the want of water leads us too far into the region of possibility and conjecture to enable any one to say, with any certainty, that such loss can be traced directly to the want of water.
    “ Unless the loss can be traced to the alleged cause, as the natural and expected result, then that cause cannot be recognised as the cause of the loss. We have therefore come to the conclusion that the alleged cause of loss in this case is too remote to render the city liable to the plaintiff, even if we were of the opinion that it was bound to keep this reservoir supplied with water, which we are not.” * * *
    The verdict was for the defendants; and the ruling of the court as above given, was assigned for error by the plaintiff, on the removal of the record to the Supreme Court.

      J. R. Thompson and C. H. Curtis, for plaintiff in error,
    cited Powell v. Salisbury, 2 Younge & Jervis 391; Conrad v. Ithaca, 16 New York Rep. 159; Hudson v. N. York, 9 Id. 163 ; Shearman & Redfield on Negligence 157, § 130; Rochester White Lead Co. v. Rochester, 4 Comstock’s Rep. 468; Furze v. New York, 3 Hill 612; People v. Albany, 11 Wend. 543 ; McCombs v. Akron, 15 Ohio Rep. 567; Scott v. Hunter, 10 Wright 192; Davenport v. Ruckman, 37 N. York Rep. 568.

      E. Babbitt, for defendant in error,
    cited Carr v. N. Liberties, 11 Casey 324; Fowle v. Alexandria, 3 Pet. Rep. 398; Ryan v. New York Central Railroad, 35 New York Rep. 210; Penna. Railroad v. Kerr, 12 P. F. Smith 353.
   The opinion of the court was delivered, October 30th 1871, by

Sharswood, J.

We consider the principles involved in these assignments of error to have been authoritatively ruled in Carr v. The Northern Liberties, 11 Casey 324, and unless that decision is to be overruled the judgment below must be affirmed. In that case a power was conferred by its charter upon a municipal corporation “ to build and erect from time to time, as might become necessary, sufficient close culverts in and over the common sewers established in the district.” The municipality did proceed to build culverts in exercise of the power granted by the act of incorporation. The plaintiff alleged, and gave evidence tending to prove, that the culverts were not sufficient to carry off the water falling in a heavy rain; that in consequence his store had been overflowed, and his stock of goods therein damaged. Chief Justice Lowrie, before whom the cause was tried in the Court of Nisi Prius, at Philadelphia, without hearing any evidence for the defendants, entered a judgment of nonsuit and the judgment was affirmed by this court. The same learned judge before whom the case had been tried, in delivering the opinion affirming the judgment, said: “We do not admit that the grant of authority to the corporation to construct sewers amounts to an imposition of a duty to do it. Where any person has a right to demand the exercise of a public function, and there is an officer, or set of officers, authorized to exercise that function, there, the right and the authority give rise to the duty; but when the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed.” It is not easy to perceive any ground for a distinction between the facts of that case and of those presented upon this record.

By the ninth section of the Act of April 8th 1833, incorporating the borough of Erie, the burgess and councils of the said borough were, among other things, authorized and' empowered “ to make and establish a sufficient number of reservoirs to supply water in case of fire.” In pursuance of this authority, they did make and establish a number of reservoirs, among them the one in question, at the intersection of French and Fifth streets. This reservoir was allowed to fall into decay — was never repaired and became so leaky that it .was insufficient for the purpose for which it was constructed. The plaintiff alleges that in consequence, a valuable block of buildings, which he owned in the neighborhood, having taken fire was entirely consumed, there being no water in the reservoir to extinguish it. To what extent, if the water had been there, it might have succeeded in arresting the fire, and preventing the entire damage which he suffered, is a matter of conjecture only, but it may be admitted that it would to some extent. But the same reason existed in. the case of the insufficient culvert. To some extent it probably would have prevented the injury to the plaintiff if it had been sufficient. We do not say, because it is not necessary to say, whether if a duty had been imposed upon the municipality, and not a mere discretionary authority conferred upon them, that their negligence in the premises would not have constituted a good cause of action. It may be doubted whether it would be a case to which the maxim Oausa próxima non remota speetatur has any application. The purpose of the reservoir being to extinguish fires, and the fire having been shown not to have been extinguished in consequence of the non-performance of the duty imposed, it would' be no answer, perhaps, to say that the proximate cause of the injury was the fire, and the want of water only the remote cause. If it were made the duty of a municipality to station a police officer at a particular corner, to protect the foot-passengers from being run over by passing vehicles, it may be doubted whether it would be an answer to an action, to say that the cause of the injury was the horse and wagon and not the absence of the officer. But if the municipality were vested with the authority to employ and keep on foot a sufficient police, no one can surely pretend that a foot-passenger run over by a wagon could sue the corporation for damages, even though he should be able to show that they had formerly kept an officer at that place for that purpose and had withdrawn him, or that he had been guilty of negligence in the performance of his duties. That would be a case precisely analogous to the one now before us.

Judgment affirmed.


author: Per Curiam.

text:
    Selden versus Merchants’ National Bank of Meadville.
    Mrs. Selden owned a United States bond for $5000, and assigned it to a bank as collateral, for $4700 lent to her husband. The bank attached the difference between the loan and the proceeds of the bond to pay a judgment subsequently recovered against the husband. Reid, that the bond was the wife's and the difference was not liable for the husband’s debt.
    October 17th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Crawford county: No. 175, to October and November Term 1870.
    This case originated in an attachment-execution issued by the Merchants’ National Bank at Meadville against George S. Selden and E. Ellis; to February Term 1867. The following facts in a case stated were agreed to by the parties:—
    “In August 1865, the Merchants’ National Bank of Meadville agreed to lend to George S. Selden $4700 on a $5000 United States 7-80 bond, belonging to his wife, as collateral security. Said bond was payable to his wife, Elizabeth W. Selden, or order, and was her own individual property, but before the loan was made Mrs. Selden endorsed the bond before H. B; Brooks, Esq., a notary public of Meadville, thus making it negotiable under the rules of the Treasury Department.
    “ A margin was purposely left at the time between the bond and the note, because it was feared the price might depreciate, in other words, $4700 was. all the bank was willing to loan at the time on the security.
    “ The note was renewed June 30th 1866, for the same amount, $4700. Since the renewal the bank having obtained judgment against Selden and Dr. E. Ellis, December 15th 1866, for $1500, an attachment was issued thereon to secure the difference between the note and the bond, and the accumulated interest and premium thereon, amounting to $694.12 on April 25th 1867, at which time the bond was sold by consent of Mr. and Mrs. Selden. Plaintiffs claim judgment now for this sum and costs, after liquidation and payment of note of $4700 and interest for which the bond was originally given as collateral security.

      “ If the court should be of opinion that the execution-attachment issued in this case can take the balance of said 7-80 bond, after paying the said $4700 note for which Mrs. Selden consented to pledge it, then judgment to be entered for plaintiff for $694.12, the amount of said balance. But if the court should be of the opinion that the said balance of $694.12 could not be attached or held for the debt of the said George S. Selden, then judgment to be entered for the defendants, with leave to either party to take out a writ of error.”
    The court entered judgment on the case stated for the plaintiffs for $694.12.
    The defendant Selden took out a writ of error and assigned the entry of the judgment for error.

      J. B. Brawley, for plaintiffs in error,
    referred to Married Woman’s Act of 1848: Rush v. Vought, 5 P. F. Smith 437.

      A. B. Richmond (with whom was R. Reisinger), for defendant in error.
   Judgment in the Supreme Court was entered October 23d 1871.

Per Curiam.

The court below were manifestly in error in entering judgment on the case stated in this case, in favor of the plaintiffs below. The case stated admits in words, that the plaintiffs “loaned to George S. Selden $4700 on a $5000 United States 7-30 bond belonging to his wife, as collateral security; said bond was payable to his wife, Elizabeth W. Selden, or order, and was her own individual property; but before the loan was made Mrs. Selden endorsed the bond, before H. B. Brooks, a notary public of Meadville; thus making it negotiable under the rules of the Treasury department.”

The bank would loan no more on the security of the bond, and the balance was left as a margin lest the bond might depreciate, and the whole be required as security. Such was not the case, however. After paying the loan a balance remained of the proceeds of the bond. Beyond a doubt this belonged to Mrs. Selden. She parted with the bond to secure the bank for the loan— that paid, she was entitled to the balance, else the Act of 1848, relative to the property of married women, is a nullity. Her general endorsement was for a special purpose, and this the bank knew; not as a gift to her husband, or her husband’s creditors. The bank held the residue after paying the note in trust for Mrs. Selden. The judgment below is therefore reversed, and judgment on the special verdict is now entered for the defendants with costs.


author: Williams, J.

text:
    Kelsey versus The National Bank of Crawford Co.
    1. The maxim Omnis ratihabitio retrotrahiiw et mandato cequiparatur applies as well to corporations as to natural persons, and is equally to be presumed from the absence of dissent.
    2. A principal not promptly disavowing an act of his agent, who has transcended his authority, makes the act his own.
    3. Upon the discovery of the robbery of a bank, a minority of the directora and the cashier met with a detective in the bank; the cashier with the advice of those directors offered a reward for the money and the thief, and sent to different places telegrams containing the offer; all the directors lived in the same place; they did not disavow the cashier’s act; the detective arrested the thief and obtained the money. Held to be evidence of ratification by the bank.
    4. It was not necessary, in order to bind the bank by acquiescence, th'at notice of the cashier’s act should be given to the directors when acting officially. If personally cognisant of it, they should have assembled the board and disavowed the cashier’s act, if unwilling to be bound by it.
    5. The robbery and offer were whilst the bank was a state institution ; the suit for the reward was brought after becoming a National Bank under the Enabling Act, August 22d 1864: Held, that the action was properly brought, the National Bank being responsible for all the liabilities of the state bank.
    6. Objection not having been made in the court below to a defective but amendable declaration; the Supreme Court will allow the amendment as if made below.
    October 17tb 1871.
    Before Thompson, 0. J., Rjsad, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Orawford county: Of October and November Term 1870, No. 99.
    This was an action of assumpsit, brought June 4th 1867, by Joseph Kelsey against The National Bank of Crawford County.
    The plaintiff’s declaration was as follows:—
    “For that whereas, on the 26th day of January 1865, the said bank was robbed by some person, then unknown, of about one hundred thousand dollars, and did, on said day, offer a reward of five thousand dollars for the arrest of the thief; said sum of money to be paid by the said bank to the person arresting the thief. Now, the plaintiff, knowing the promise, and for the purpose of obtaining said reward, did hunt and make search for said thief, and did succeed in said search in capturing and arresting one Charles H. Dyer, and turning him over to the proper authorities to be dealt with according to law; and in consequence of said arrest the said Charles H. Dyer was tried for stealing from said bank the said sum of money above mentioned, and was duly convicted thereof in the Court of Quarter Sessions of the county of Crawford, and pursuant to said conviction was sentenced by said court, on the 17th day of February 1865, to the proper penitentiary for the term of four years. And the said bank, well knowing the arrest and conviction of the said Charles H. Dyer, for stealing said sum of money from said bank, did then and there, viz., on the 17th day of February 1865, promise and agree to pay to the said Joseph Kelsey the said sum of five thousand dollars when thereto requested.”
    At the time of the robbery the bank was a state institution, known as the Bank of Crawford County, and under the Enabling Act of 1864, afterwards became a National Bank, under the name in which it was sued.
    At the time of the robbery Joshua Douglass was the president, William Davis, Jr., and eight others were directors, and S. P. Officer was the cashier. Five directors made a quorum.
    The cause was tried, April 18th 1870, before Vincent, J.
    The plaintiff, who was a detective in Meadville, where the bank was located, testified that about 6 o’clock P. M., of 26th of January 1865, on learning that the bank had been robbed, he went to the bank. A number of persons went into the back room of the bank; amongst them were three directors, the cashier and Dyer, a clerk in the bank; the cashier said they had lost $150,000. A telegram was prepared and signed by the cashier, offering a reward of $5000. Afterwards the plaintiff saw the president and all the directors but Davis, and talked the matter over with them.
    The telegram was as follow's:—
    “ Meadville, Penna., January 26th 1865.
    “ Police Headquarters, Cleveland, Erie and Pittsburg.
    “ The Bank of Crawford County was robbed this evening of a box containing government securities to a large amount. The bank will pay a reward of five thousand dollars ($5000) for the detection of the thieves.”
    Plaintiff offered to prove that the cashier of the bank offered a reward of $5000 for the detection of the felon or the recovery of the stolen property, which offer was made in the presence of some of the directors of the bank; that the plaintiff, in pursuance of said offer, undertook the detection of the thief and the recovery of the stolen property; and that other directors, more than a majority if not all of them, with full knowledge of the offered reward, sanctioned and approved the effort of the plaintiff to recover the property and capture the thief.
    The offer was objected to and rejected, and a bill of exceptions sealed.
    The plaintiff testified, that shortly after the robbery he told the president and cashier that Dyer, the clerk, was the thief, and wished to arrest him; the officers were not willing. He after-wards arrested Dyer, and found $25,000 of bonds and money in his boots, which plaintiff delivered to the officers of the bank, and he lodged Dyer in jail. Two of the directors, who were present at the bank on the evening of the robbery, advised the cashier to offer $5000 reward, saying if lie had no power to do so, no doubt the board would sustain him. Nearly all the money was recovered.
    The plaintiff gave evidence further, that all the directors of the bank except one, lived in Meadville; a majority could have been got together soon.
    The plaintiff gave other evidence of his efforts in discovering the robbery and the thief.
    The defendants moved a nonsuit, which was ordered, upon the following opinion:—
    “We are of opinion that this suit cannot be maintained against the defendant on the present pleadings. Even if the defendant can be made originally liable for a debt of the Bank of Crawford County, of which the defendant is the successor under thp Enabling Act of April 17th 1864, we think the defendant ought to show that the claim is on an alleged liability of the original corporation, and that the narr. in this case does not show.
    “ We are also of opinion that the plaintiff cannot maintain his action, because his own evidence shows that the reward was offered subject to the approval of the board of directors of the bank, which approval was never given. Kelsey knew all this, and therefore undertook his task under that condition.
    “ The approval referred to meant an official approval as a board, not as individual directors but in convention as a board; and even if all the directors had, one by one, approved out of the proper meeting of the board, it would not have bound the bank. Nor was the act of offering a reward such an one as the cashier could legally do without the sanction of the board of directors either before or after the act.”
    The plaintiff took out a writ of error, and for error. assigned the rejection of his offer of evidence, and ordering the nonsuit.
    The Enabling Act of August 22d 1864, Pamph. L. 977, Purd. 1315, provides:—
    Section 1. “Every such bank shall be continued a body corporate for the term of three years after the time of such surrender for the purpose of prosecuting and defending suits by and against it, and of enabling it to close its concerns and dispose of and convey its property, but not for the purpose of continuing under the laws of this Commonwealth the business for which it was established.”
    Section 12. “ Where the charter of said bank shall be surrendered to the Commonwealth, under the provisions of this act, all the assets real and personal of the said bank shall immediately, by act of law, and without any conveyance or transfer, be vested in and become the property of the said association for carrying on the business of banking as aforesaid.”
    Section 13. “ Nothing in this act shall be construed as relieving such association from its obligations to pay and discharge all the liabilities incurred by the bank before becoming such association.”

      D. M. Farrelly (with whom was A. B. Richmond), for plaintiff in error.
    A cashier may do things outside of his routine of business which the silence of the directors sanctions ; he is the agent of the bank not of the directors: Bank of Washington v. Barrington, 2 Penna. R. 27. The ratification by the principal of unauthorized acts of the agent validates them: Bredin v. Dubarry, 14 S. & R. 27. There is no distinction as to ratification by silence between a corporation and other principals: Bank of Penna. v. Reed, 1 W. & S. 101; Gordon v. Preston, 1 Watts 885. One for whose use a promise is made may maintain an action on it: Beers v. Robinson, 9 Barr 229; Hind v. Holdship, 2 Watts 104; Uhland v. Uhland, 17 S. & R. 265; Gray v. Bell, 4 Watts 410; Esling v. Zantsinger, 1 Harris 50; Blymire v. Boistle, 6 Watts 182.

      P. Church and D. Berrickson, for defendant in error,
    cited as to powers of a cashier, Fleckner v. Bank of United States, 8 Wheat. 338; Bank of Penna. v. Reed, 1 W. & S. 101; Harrisburg Bank v. Tyler, 3 W. & S. 373; Bank of United States v. Dunn, 6 Peters 51; United States v. Bank of Columbus, 21 Howard 356. No act could be performed unless in a meeting of the directors: Angell & Ames on Corporations, §§ 232, 307; Bank v. Whitehead, 10 Watts 397 ; Gordon v. Preston, 1 Id. 385.
   The opinion of the court was delivered, October 30th 1871, by

Williams, J.

It is not necessary to decide whether the cashier ex officio had authority to offer the reward in question for the detection of the thieves that robbed the bank. If he had no authority, the bank is liable for the reward if the offer was acquiesced in and ratified by the directors. The law is well settled, that a principal who neglects promptly to disavow an act of his agent, by which the latter has transcended his authority, makes the act his own: Bredin v. Dubarry, 14 S. & R. 30; and the maxim which makes ratification equivalent to a precedent authority, is as much predicable of ratification by a corporation as it is of ratification by any other principal, and it is equally to be presumed from the absence of dissent: Gordon v. Preston, 1 Watts 387.

It was accordingly held in The Bank of Pennsylvania v. Reed, 1 W. & S. 101, that though the authority of the cashier does not extend so far as to justify him in altering the nature of the debt due the bank, or in changing the relation of the bank from that of a creditor to that of an agent of its debtor, yet a subsequent acquiescence of the bank in such an exercise of power would be conclusive upon it. In delivering the opinion of the court, Rogers, J., said: “It is a very clear and salutary rule in relation to agencies, that when the principal, with the knowledge of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterwards to impeach them, under the pretence that they were done without authority, or even contrary to instructions: Omnis ratihabitio mandato cequiparatw. When the principal has been informed of what has been done, he must dissent and give notice of it in a reasonable time; and if he does not, his assent and ratification will be presumed. If then the directors of the bank were informed that the cashier had offered the reward, it was their duty promptly to disavow the act, if they did not intend that the bank should be bound by it. If they had notice of the offer and did not dissent from it, their assent and ratification must be presumed. Nor was it necessary, in order to bind the bank by their acquiescence, that notice should have been given to the directors, when sitting in their official capacity as a Board. If they were personally cognisant of the offer made by the cashier, it was their duty to call a meeting of the board and disavow the act, if they were unwilling that the bank should be bound by it. It would be unjust to permit the plaintiff to spend his time and money for the detection of the thief, on the faith of the promised reward, and then to repudiate the offer, as unauthorized, when he had succeeded in apprehending the thief and restoring to the bank the stolen securities found on his person. The question of the bank’s liability for the reward turns on the fact of notice and acquiescence. If the evidence, tending to show that the directors had notice of the offer and that they acquiesced m it, was sufficient to establish the fact, if believed, the case should have been permitted to go to the jury. We think that the evidence was sufficient, and that it should not have been withheld from them.

It tended directly to show that the cashier offered the reward at the instance of one of the directors, and upon his suggestion that “the directors would bear him out in it,” and that the offer was made in the presence of three of the directors; and that the plaintiff “ separately met all the directors and talked the matter over with them,” with the exception of William Davis, Jr. If so, can there be any doubt that the evidence showing the directors’ knowledge of the offer was sufficient to go to the jury ? In a town like Meadville it could hardly have happened that the bank should have been robbed of so large an amount, and that a reward should have been offered by the cashier for the detection of the thief, and telegraphed to the police headquarters at Cleveland, Erie and Pittsburg, without the .fact being known to almost the entire community. And if so, the directors must have been informed of it. But whether so or not, the evidence touching the question was amply sufficient to go to the jury.

But it is contended that the action will not lie, because it was brought against the wrong corporation. It was the State Bank that was robbed and offered the reward, and the National Bank is the coi’poration sued. But under the provisions of the Act of the 22d August 1864, P. L. 977, “ enabling the banks of this Commonwealth to become associations for the purpose of banking, under the- laws of the United States,” upon the surrender of its charter all the assets of the State Bank were immediately, by act of law, without any conveyance or transfer, vested in the National Bank, and all its liabilities and obligations were devolved upon it. Why then should not the remedy for the liabilities incurred by the former be by action against the latter ? It was admitted on the argument that the National Bank is bound to discharge and satisfy all the obligations and liabilities of the State Bank, but it was insisted that under the proviso of the enabling act, continuing the State Bank a body corporate for the term of three years after the surrender of its charter, for the purpose of prosecuting and defending suits by and against it, that suits to enforce the payment of its obligations and liabilities must be brought against the State, and not against the National, Bank. Undoubtedly an action will lie against the State Bank for any of its liabilities, if brought within the time limited in the proviso; but it does not follow that it will not lie, if brought against the National Bank. Why compel the plaintiff to bring an action against the State Bank when it has no assets to meet and satisfy the demand ? Why not avoid circuity of action by bringing suit in the first instance against the corporation invested by act of law with all the assets, and made responsible for all the engagements of the State Bank. Why bring two suits when one will suffice ? We discover no provision in the act, making it the duty of the plaintiff to proceed in the first instance against the State Bank, and are of the opinion that the action is rightly brought against the National Bank.

But it is objected that the declaration is defective in not setting out the facts, with the necessary averments, on which the liability of the corporation sued arises. And for this reason it is urged that the nonsuit was properly entered. It is admitted that the declaration is defective, but this objection was not made in the court below as one of the grounds for the nonsuit. If it had been, the plaintiff might have amended his declaration, and therefore we will allow him to amend nunc fro tunc, and treat the case as if the amendment had been made in the court below when the motion for the nonsuit was entered.

It follows from what we have said that the plaintiff is entitled to recover if the directors had notice of the offer, and did not promptly disavow it.

Judgment reversed, and a procedendo awarded.


author: Agnew, J.

text:
    Rogers versus Bemus.
    1. Rogers contracted to build a saw-mill on Bemus’s land, Bemus to prepare the foundation at a specified time, and to furnish means for the erection, with other expenses, to stock the mill until the earnings should pay for stocking, Rogers to have half the profits. Rogers prepared the superstructure, &c. Bemus did not lay the foundation or furnish means, as stipulated, and Rogers was thereby delayed from operating the mill. Held, that evidence of what the mill would have rented for when finished was proper in measuring damages in an action by Rogers on the contract.
    2. Probable profits from the manufacture of lumber, the mill being, unfinished, would be too remote, contingent and speculative.
    3. A party may resort to different means of estimating his damages, to be judged of by the jury.
    October 19tb 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Orawford county: Of October and November Term 1870, No. 121.
    Thomas Rogers, on the 26th of October 1865, brought an action of covenant against Daniel Bemus.
    The covenants for the breach of which the action was brought are in the following agreement, “made this twenty-sixth day of April 1859, between Daniel Bemus, of the first part, and Thomas Rogers, of the second part: The said Bemus agrees to furnish a site, &c., for a saw-mill on his place in Mead township, and build the foundation for a saw-mill, and further to be at one-half of the expense of erecting the superstructure, &c., of a saw-mill upon said foundation, and to furnish all the money necessary to erect said mill, the same to be performed before the expiration of the year 1859, and said Bemus further agrees to furnish the means to stock and run the mill after the same is completed, and until the earnings of the same shall be sufficient to stock and run the same. And further, the said Bemus agrees to let and permit the said Rogers to occupy free of rent the large house and garden attached thereto, situate on said Bemus’s premises, &c., and further, said Bemus agrees at any time that said Rogers may choose to sell his interest in said mil], to purchase the same, and pay said Rogers therefor the amount expended, &c. And the said party of the second part agrees to be at one-half the expense in erecting the superstructure of said mill, and to take charge of the construction of the same, and have it completed by the close of the year 1859, and further said Rogers agrees to take charge of the operating said mill, and be at one-half of the expense of the same, also one-half the expense of stocking the same. It is further agreed that after paying all costs and expenses incurred in erecting and operating the mill, that the net earnings of the same shall be divided equally between the parties. It being expressly understood that whenever there are sales made, after deducting expenses, the proceeds are to be divided equally between the parties. Said Rogers further agrees on his part that at any time when he wishes to sell his interest in said mill, being one-half of the superstructure, &c., that he will sell the same to said Bemus for the amount expended, &c., by him in the erection of the same, less the wear and tear and natural decay. And further, said Rogers agrees to repay said Bemus for any money advanced or expenses incurred over and above one-half the cost of erecting said mill, as above mentioned, out of his, said Rogers’s share of the first earnings of the same, with legal interest, after securing such an amount as may be necessary to support said Rogers and family.”
    The breaches assigned in the declaration were, that the defendant did not lay the foundation or furnish money for the erection of the mill, and did not furnish stock; and by reason thereof the mill could not be operated, and the plaintiffs lost the profits, &c.
    The case was tried June 21st 1870, before Johnson, P. J.
    Daniel Shunk testified, that he laid the foundation of the mill for the defendant, commenced in July 1860, and finished in July 1861; defendant was bad pay; witness was going to quit; plaintiff told him to go on, and he would pay, and did pay him three or four dollars. Defendant paid the rest.
    Other witnesses testified that they had worked at the foundation, and had stopped because they were not paid.
    There was evidence that the plaintiff, who was a carpenter and framed the mill, had the frame-work finished to raise in 1859, but the foundation was not completed till June 1861, when it was raised, and the mill was not in running order until 1862. The plaintiff cut and hauled the timber, sawed the boards, and furnished the shingles ; also the hardware.
    Plaintiff gave notice to defendant more than once to finish the foundation and to furnish money, but he refused; the plaintiff had not money to finish the erection.
    The plaintiff offered to show the rental value of the mill from January 1860 until 1863 :—
    1. By proving what it would have rented for.
    2. What amount of lumber could have been manufactured by plaintiff during that time by the use of reasonable and ordinary diligence, the value of the lumber, cost of manufacturing, the market price at the place where it was to be manufactured: Also to show the amount of lumber the mill would have cut from January 1st 1860 until October 26th 1865, the value of the lumber that could have been sawed, and cost of running, to show the amount of damage sustained by plaintiff.
    The offer was objected to by the defendant, rejected by the court, and a bill of exceptions was sealed.

      The court charged that the plaintiff was entitled to but nominal damages.
    The verdict was for the plaintiff for 6 cents damages.
    The plaintiff took a writ of error, and assigned for error the rejection of his offer of evidence and the instruction to the jury.

      D. M. Farrelly (with whom were H. L. Richmond Son and J. A. McFadden), for plaintiff in error.
    Indirect and consequential damages are recoverable: 2 Bl. Com. 433; Forsyth v. Palmer, 2 Harris 96. Rental value has a certain measure: Dickey v. McCullough, 2 W. & S. 88; Spigelmoyer v. Walter, 3 Id. 540; Weaver v. Wood, 9 Barr 220; Lyon v. Miller, 12 Harris 392; Watson v. O’Hern, 6 Watts 362.

      P. Church and J. B. Brawley, for defendant in error.
    Specifying a day for performance does not of itself make time of the essence of a contract: Adams’s Eq. 88. Profits are not to be estimated in the damages: Schooner Lively, 1 Gallison 314; Blanchard v. Ely, 21 Wend. 242; 1 Evans’ Pothier 91; The Amiable Nancy, 3 Wheat. 546; Chapin v. Horton, 6 McLean 500; Freeman v. Clute, 3 Barb. 424; Thompson v. Shattuck, 2 Metc. 615 ; McKnight v. Ratcliff, 8 Wright 156.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

The assignments of error in this case raise but a single question, to wit, the proper measure of damages. The court below excluded all the plaintiff’s offers on this subject, and finally instructed the jury that the plaintiff could recover only nominal damages. By his contract Bemus was bound to build the foundation for a saw-mill, and to furnish all the money necessary to erect the mill (of which one-half should be at his own expense), all before the expiration of the year 1859 ; and after-wards to furnish the means to stock and run the mill. Rogers was to take charge of the construction of the superstructure (of which he was to pay- one-half of the expense), and complete the entire by the close of the year 1859, and afterwards to run and operate the mill. The parties were to be partners in running and operating the mill, and the expense of the erection of the superstructure and fitting it up and stocking it was to be paid first out of the earnings of the mill. The breaches of Bemus’s covenant, as laid, were the failure to build the foundation in the time specified, and to furnish the money for building the superstructure, and afterward for stocking the mill. It was in clear proof that Rogers had the superstructure ready to put up in the year 1859, and that Bemus had not the foundation finished to receive it until the latter part of the year 1861, and also that Rogers gave Bemus several notices, one in writing in August 1859, to get the foundation ready, and to furnish the money to put up the superstructure and make ready the mill for operation. Under these circumstances the plaintiff, having shown very clearly the breach of Bemus’s covenant to build the foundation, and] furnish the money to erect the mill, then offered, ^as evidence of the damage, to prove what would have been a fair rental for the mill; and other facts which may be summed up as an offer to prove the net profits the mill would have made. We agree with the learned judge that the probable net profits of an unfinished water-sawmill are too remote, contingent and speculative, to be the foundation of a verdict for damages. The business might be profitable or unprofitable, and would depend on so many contingencies of the seasons, stocking, water, manufacture, kinds of lumber and state of the market, the result would be the merest guess work. But this cannot be said of the fair rental such a mill would bring. The rental of the property is entirely distinct from the business to be done upon it. The owner can always rent it for something near its yearly value, and has nothing to do with the results of the business, which belongs to the tenant, who calculates his probability of profit or risk, when he rents. The breach of the covenants of Bemus in this case consists in the delay of performance, not in entire non-performance. The delay therefore was a matter directly within his view when he declined or neglected to perform; and the direct injury in consequence of the delay, was the loss of the use of the mill. This might be fairly measured by the rental such a mill would bring. It is no more uncertain than the standard of damages for the use and occupation of property, where the party has had the use of it. The mill here had itself to show for the thing to be used, so that an estimate of the value of its use was fairly within the range of competent evidence. With a fair rental value of the mill before them, it would have' been competent for the jury, under proper instruction upon the contract, to ascertain how much of this measure for the delay belonged to Rogers, as evidence of the loss he sustained by the delay. The delay of Bemus being the direct result of his neglect or refusal to perform his covenant, the loss of the use of the property fell directly within his view also, and was a consequence therefore for which he must be held accountable to the extent of .Rogers’s proportion of the loss. See this subject discussed in Fleming v. Beck, 12 Wright 309, and Pittsburg Coal Co. v. Foster, 9 P. F. Smith 365.

We think the learned judge erred also in deciding that the plaintiff could recover only nominal damages. Though the chief elements of damages were not proved by the plaintiff, yet there were some in evidence, which would have redeemed the case from an instruction for nominal damages only. For instance, Rogers paid Daniel Shunk on account of building the foundation from three to four dollars. He proved also that his trade was that of a carpenter, that he was delayed in the erection of the superstructure until October 1861, and consequently primfi facie at least lost his time, for which a jury might allow something at the rates of common labor, if not those of skilled work. The case was therefore not wholly barren of elements for a computation of some damage. There is no doubt that a party is not confined to a single mode of measuring or estimating his damages. Where the casé admits of it, he may resort to different means of arriving at the result, and these must be judged of by the jury, with proper instructions if necessary to aid them in reaching the conclusion contemplated by the suit; to wit, the amount of loss sustained in consequence of the injury: Seely v. Alden, 11 P. F. Smith 302; Yeager et al. v. Weaver, 14 P. F. Smith 425.

For these reasons the judgment is reversed, and a venire facias de novo awarded.