text:
    Homan versus Stanley.
    1. An owner who excavates a cellar and carries the excavation to the curbstone for the purpose of constructing a vault under it is bound to have it securely fenced.
    2. An owner about to build, contracted with one to dig the cellar, who employed his own assistants, horses and carts ; with another to do the masonry, the owner finding the stone, lime, &c.; with a third to put up the superstructure. The excavation not being sufficiently guarded the plaintiff fell in and was injured. Held, that the owner and not the contractor was liable.
    3. Where the contract is split up into different contracts and the owner undertakes to supply the materials and no provision is made for the supervision of the work or maintaining guards, the duty is on the owner to protect the public. Per Sterrett, P. J.

      November 8th 1870.
    Before Thompson, C. J., Bead, Aqnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 139, to October and November Term 1870.
    This was an action on the case, to June Term 1869, by Alonzo Stanley against Edward Homan. The cause of action was the negligence of the defendant in not sufficiently guarding a cellar dug by him in the public street, so that the plaintiff, in passing along the street, fell in and was seriously injured.
    The case was tried, February 10th 1870, before Sterrett, P. J. The jury found a verdict for the plaintiff for $1000, subject to the opinion of the court on a reserved question which, with the facts of the case, is stated in the opinion of Judge Sterrett, viz.:
    “ On the 10th of May 1869, in the night-time, the plaintiff fell into an excavation at the corner of Fourteenth and Carson streets, Birmingham, and sustained injuries of a very serious character, for which he seeks to recover damages against the defendant, the owner of the premises, on the ground that he was guilty of negligence in not having a sufficient guard or barrier around the excavation.
    “ It appeared in evidence, and1 was not controverted, that the defendant was the owner of the corner lot; that having determined to improve it, he employed the borough regulator to designate the lines of the foundation and set in the pins; that he contracted with Christian [Homberg to make the excavation for the cellar, and also for a^coal-vault under the side-walk, adjoining on Fourteenth street, at 40 cents per cubic yard; the latter furnishing his own horses and carts, and employing his assistants, and disposing of the earth for his own benefit; that he contracted with Joseph Brown for the masonry at $1 and $1.10 per perch; the defendant finding the materials, viz., stone, lime and sand, and delivering the same on the ground; and that he also contracted with William Kline for the superstructure, including the belt course; that- the defendant, as the excavation and mason work progressed, visited it from time to time, tod on one occasion complained to Homberg that he was not pushing the work of excavation fast enough, and threatened to take it out of his hands and employ some one else to finish it. It also appeared in evidence that the defendant had teams employed delivering the stone at a stipulated price per perch, and the sand and lime by the bushel.
    “ While the excavation and the mason work were both progressing under these contracts, and the former nearly completed, the plaintiff, in the night-time, fell into the excavation and received the injuries complained of.
    “ The grounds of defence, mainly relied upon by the defendant, were:—

      “ 1st. That sufficient guards or barriers were placed around the work by those in charge of it.
    “ 2d. That the plaintiff was a trespasser on defendant’s lot, and fell thence into the excavation.
    “ 3d. That the plaintiff himself was guilty of negligence, which materially contributed to his injury; and
    “ 4th. That under the contracts in evidence, it was the duty of the contractors, and not of the defendant, to erect and maintain a suitable guard or barrier around the excavation.
    “ As to the first three grounds of defence, the facts on which they were based were submitted to the jury, and they have found against the defendant. It is therefore established by the verdict, that the plaintiff’s injury was occasioned by negligence in not having the excavation sufficiently guarded, and that he himself was neither a trespasser, nor guilty of any negligence contributing to the injury.
    “ As to the remaining ground of defence, the jury was instructed pro forma, that there was nothing in the admitted facts as to the contracts with Homberg and others, that would relieve the defendant from the duty of providing and maintaining such guards or barriers as were sufficient to protect the public in the lawful use and enjoyment of the street and side-walk; reserving for the consideration óf the court in banc the question of law raised by these facts.
    “ The question then is, what was the duty of the defendant under the admitted facts ? Was it his duty to see that sufficient guards were placed around the excavation, or was this duty devolved on the contractor or either of them ? If it was the defendant’s duty, then under the other facts of the case, as settled by the verdict, he is liable, and the plaintiff is entitled to judgment on the verdict. In this connection it should be observed that there was no direct testimony as to whether the defendant had a license or permit from the borough authorities to excavate the side-walk for the purpose of constructing a coal-vault. It was not made a question on the trial, and it has been assumed, and we think properly, too, that he had their consent. This may be fairly inferred, from the evidence as to the employment of the borough regulator to mark the lines and set in the pins. Of course, if the defendant caused the side-walk to be excavated without permission of the borough authorities, he could not by any contract evade liability to any one injured by falling into the excavation. But we treat the case as though he had permission •and the work was lawful.
    “ In our leading case, Painter v. The City of Pittsburg, 10 Wright 213, it was held that the city was not responsible for an •injury occasioned by the negligence of her contractors or of their .employees; that the remedy was against the contractors alone. * * * The doctrine of the case has since been recognised with approval in several eases, the latest of which is Allen v. Willard, 7 P. F. Smith 374, in which Mr. Justice Agnew says: ‘ The principle to be extracted from the cases is said to be that a person, natural or artificial, is not bound for the negligence of another, unless the relation of master and servant, or principal or agent exist between them; and that when an injury is done by a person exercising an independent employment, the party employing him is not responsible to the person injured. This doctrine,’ he further says, £is applicable only to causes where the purpose of the contract is entirely lawful, and where the owner of the property on which it is to be executed can lawfully commit its execution to others. There are cases where responsibility cannot be thrown off through the employment of another to execute the work by contract; as where a contractor is employed to dig a trench in a public street without any authority in the employer himself to break ground. Nor does the principle extend to cases where the employer of the contractor has not relinquished his control over the work to be done, and still continues liable for his duty to others in respect to it.’
    “Does the case before us fall within the principle of these adjudicated cases, or is it distinguishable from them ? In the case of Painter v. The City of Pittsburg, the contract embraced the entire work. The city had nothing whatever to do with it, either in furnishing material or otherwise, except to see that the work was done to the satisfaction of the recording regulator. The contract in Allen v. Willard was similar in terms. In the case before us, different parts of the work were let to different persons; to one the excavation; to another the stone work; and to another the superstructure; while the defendant himself had teams employed in delivering stone, lime and sand on the ground. The fact that these materials were delivered at a stipulated price, would not affect the relation of the parties. The defendant still retained control over them.
    “ The question is whether the facts as to the letting of the work by the defendant are sufficient to take it out of his control and cast the responsibility entirely upon the contractors.
    “ In populous cities and towns where the lives of many may be endangered by excavations and improvements, it is of the highest importance, and public policy requires that the duty of providing adequate protection to the public should not be lightly cast upon irresponsible or transient persons. In all cases it is primá facie the duty of the owner of property on which improvements are being made to afford this protection, and the responsibility being thus cast upon him, nothing short of clear and satisfactory proof should permit him to transfer it to others. It should be clearly shown that the control of the work was relinquished by the owner, and by contract committed to others. Where, as in the cases cited, the owner contracts for the entire work, in all its details, it is very manifest that this implies a relinquishment of his control over it, and devolves on the contractor the duty which would otherwise attach to himself. But where the work is split up in different contracts, and the owner undertakes, as in the present case, to supply one of the contractors with materials to be used in the execution of his contract, and no provision is made for the supervision of the work or the erection and maintenance of guards around it, we are justified in drawing the inference that the owner retained the supervision; and that his duty to protect the public has not been devolved on others. There is certainly no hardship in holding the owner to this measure of responsibility, and it appears to us that nothing short of it will satisfy the demands of sound public policy.
    “ In the present case, nothing appears in the contracts as t.o the supervision of the work, or the duty of placing guards around it, and it is not unfair to the defendant to infer that he reserved these to himself. Under the admitted facts we are of opinion that the duty of erecting and maintaining a sufficient barrier around the excavation was not shifted from the defendant to the contractors, or either of them. He had, to a certain extent at least, a control over the work. He had teams employed delivering materials for the mason work, and on one occasion at least, he claimed and threatened to exercise the right of discharging Homberg and employing another in his stead.
    “ Again, it does not appear how the contractors, Homberg and Brown, were to do the work; whether under the direction and control of the defendant or otherwise. As was said by Agnew, J., in Allen v. Willard, the fact that each had a contract with the defendant for his particular work, did not, in itself, separate defendant from its supervision and control. To pay for stone work by the perch, or to do the whole excavation under a contract, does not necessarily destroy the relation of master and servant.
    “ In that case, Allen, who had contracted with the owner for * the erection of the entire building, including excavation, stone work, materials, and everything pertaining to it, sought to evade the responsibility which he had assumed, by showing that he had sub-let the stone work by the perch to one, and the excavation, into which the plaintiff’s husband fell, to another. These subcontracts were very similar in their features to the contracts of Homberg and Brown, in the case before us, and yet the Supreme Court held that the sub-letting of the work was not such as took it out of the control and direction of Allen and cast the responsibility wholly on the sub-contractors. So in this case, we are of opinion that the contracts with Homberg and others did not shift the responsibility from the defendant to the contractors, and that therefore the former is liable.
    “And now, July 23d 1870, it is ordered that judgment be entered on the question of law reserved, in favor of the plaintiff.”
    On the removal of the case to the Supreme Court by the defendant, he assigned for error, entering judgment for the plaintiff.

      A. M. Brown, for plaintiff in error.
    — If one contracts with another to do work, and a third person is injured by the negligence of the contractor, he, not the employer, is liable : Painter v. Pitts-burg, 10 Wright 213; Allen v. Willard, 7 P. F. Smith 374; Hunt v. Penna. Railroad Co., 1 Id. 475; Shearman & Redfield on Negligence, §§ 77, 80.

      Miller & McBride, for defendant in error,
    cited Allen v. Willard, supra; Shearman & Redfield on Negligence, § 83; Buffalo v. Halloway, 7 N. Y. 493 ; Storrs v. Utica, 17 Id. 104; Congreve v. Smith, 18 Id. 79; Creed v. Hartman, 29 Id. 26; Chicago v. Robbins, 2 Black 418.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— This was an action against an owner of premises on which he was building a house, for negligence in leaving an excavation or cellar without a sufficient guard or barrier to prevent plaintiff from falling therein.

The jury found, 1st, that sufficient guards or barriers were not 'placed around the work by those.in charge of it; 2d, that the plaintiff was not a trespasser on defendant’s lot, and fell thence into the excavation; and, 3d, that the plaintiff himself was not guilty of any negligence which contributed to his injury. This left but one question, which was referred by the court, whether, under the admitted facts, the defendant was liable for the injury.

The facts on this point were stated by the court: “ These facts in regard to the contracts are admitted, and by consent of counsel wre will reserve the question of defendant’s liability arising from these facts, and for the present instruct you, pro forma, that there is nothing in these facts as to the contracts for excavation and mason work, that will exempt the defendant from liability in this case.”

Whether the reservation is in the best form is now immaterial, as it was done by consent of counsel, and no objection was suggested here. The learned judge, in a very able opinion which renders unnecessary any further exposition, holding the defendant liable, ordered judgment in favor of the plaintiff and against the defendant for the amount found by the jury.

The owner is undoubtedly, legally and' morally, liable for such negligence, unless he can shift the responsibility clearly upon some one else, and this is necessary for the safety of our fellow-citizens, particularly in populous places. In the present ease he has not shifted the responsibility, and he is therefore liable.

An owner who excavates a cellar, and carries the excavation to the curbstone for the purpose of constructing a coal-vault under the sidewalk, is bound by his duty to the public to have it securely fenced. This is the more necessary, as the excavation for the coal-vault is in the public street.

Judgment affirmed.


source: Caselaw Access Project

author: Shakswood, J.

license: Public Domain

text:
    Borland’s Appeal.
    1. An auditor to distribute the proceeds of a sheriff’s sale cannot go behind a judgment to inquire into its regularity or its merits.
    2. An auditor may receive testimony to show that a judgment has been paid or otherwise satisfied.
    3. H. became security for A.’s rent, $700 per annum for four years, and received a bond from A. in $2000 conditioned that in default of any payment of rent, H. might immediately issue execution on the judgment to be entered on the bond “ for the whole amount of said obligation.” Held, that H. had no right to execution for more than was necessary for his indemnity.
    4. A. having made default in the second quarter’s rent, H. issued execution for the whole penalty; he purchased the leasehold at the sheriff’s sale, and the landlord was paid all the rent then due out of the proceeds of sale. Held, that H. was not entitled to any part of the proceeds of the sale.
    5. By his purchase II. became liable for the subsequently accruing rent so long as he continued assignee.
    6. H. might be relieved at any time by assigning to another.
    7. H.’s liability arose from privity of estate, not privity of contract.
    8. The right to a thing personal once suspended is gone.
    November 8th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the District Court of Allegheny county distributing the proceeds of the sheriff’s sale of the personal property of Alpert & Kohler, No. 190, to October and November Term 1870.
    The fund for distribution arose from the sale of the defendant’s personal property, under an execution at the suit of John Huckenstein and Jacob Eisenbeis; the fund having been paid into court was referred to J. IT. Baldwin, Esq., as auditor, to report distribution. He found the facts as follows:—
    On the 1st of July 1869, Alpert & Kohler leased of Walter’s heirs the premises No. 38 Market street, for the term of four years and nine months at the annual rent of $700, payable quarterly. For the payment of this rent, and the performance of the other conditions of the lease, John Huckenstein and Jacob Eisenbeis became sureties, and to protect themselves took from the defendants a judgment-bond, dated July 13th 1869, in the penal sum of $2000, conditioned “ that if Alpert & Kohler shall pay, &c., to the heirs of P. Walter, deceased, the annual rent of $700, payable quarterly on the first days of October, January, April and July of each year, as stipulated and agreed in their lease, &c., and in default of any quarterly payment of said rent, the said Huckenstein and Eisenbeis may immediately issue execution for the whole amount of this obligation.”
    On the 1st of January 1870, one quarter’s rent, amounting to $175, became due; on this the defendants had paid only about $30, and the plaintiffs on the 17th of January 1870, entered judgment on their bond, and issued execution for the penalty of $2000, attorney’s commissions, &c.
    To January Term 1870, Borland had brought suit against the defendants, for a claim amounting to $612.08; the defendants filed an affidavit of defence to $247.20 of this claim, averring that goods to that amount had been received from Borland to be sold on commission and remained unsold. Borland took judgment for the balance on the 25th of January, and issued execution. The plaintiffs’ writ and Borland’s came to the sheriff’s hands on the same day. The sheriff levied on the leasehold, together with the fixtures and stock of the defendants; Borland gave notice tc the sheriff that he claimed the goods^held by the defendants on commission; a rule to interplead was entered, when the parties agreed that these 'goods should be sold with the defendants’ other property, and the proceeds of the whole distributed as the court should direct. At the sheriff’s sale, the plaintiffs purchased the leasehold for $5. The landlords claimed and received the rent “ to the day of sale,” out of the proceeds.
    After finding these facts, the auditor further reported:—
    “ What then was the effect of the purchase of the lease by the plaintiffs? Under ordinary circumstances, such a purchase would be equivalent to a declaration, that they considered the lease worth the rent reserved, and a bonus of five dollars besides, and I cannot see that the fact that they were sureties on this lease, and therefore may ultimately become liable to some loss or damage if they failed to purchase it, varies the condition or effect of the purchase. They chose to become the purchasers under all the conditions of the lease, knowing that thereby they became sureties of themselves and liable to the landlord directly for the performance of all the stipulations in the lease contained. It may be, as was proven, that rents on Market street are now going down. It may also be that before this lease expires, they will go much higher. In either event it seems to me that the plaintiffs, by purchasing this lease, have assumed the risks, and the question is not now open for discussion. But it is said this view of the case cannot be maintained, because it is questioning the validity of the judgment under which the fund is de* rived. But I apprehend that where it can he gleaned from the record itself that there is nothing due upon the judgment, and that the parties have, by their own acts, established such relations as will for ever preclude anything from becoming due and payable thereon; it will not be considered an attack upon the judgment to pronounce it virtually satisfied and to award the fund to the unpaid claimants.
    “ It is also claimed on the part of Mr. Borland, that he is entitled to the proceeds of the second sale, made under the agreement of counsel as recited — to wit: the sum of $102.75 — as the owner of the goods sold. If I am right in supposing that the purchase of the lease by the plaintiffs, and the payment of the rent due, from the proceeds of the salé by the sheriff, work an extinguishment of the plaintiffs’ claim, the only parties interested in this question are the claimant and the defendants; and as between these parties, it may at once be said that the defendants have no right to question what themselves have sworn to be the case, viz.: that these goods belonged to Borland, having been received by them on commission and remaining unsold, and that Borland is entitled to this part of the fund on that ground.” * * *
    The auditor, after deducting costs and expenses from the fund in court ($428.25), made the following distribution of the balance:—
    To Borland, proceds of sale of goods claimed by him, less its share of expenses ...... $82.75
    To same, on account of his execution ■ . . . 255.50
    The plaintiffs excepted to the whole distribution made by the auditor. The court sustained the exceptions, and decreed the whole sum, $388.75, to the plaintiffs.
    Borland appealed to the Supreme Court, and assigned this decree for error.

      S. O. Schoyer, for appellant.

      J. Mellon, for appellees.
    — The plaintiffs’ bond being for indemnity he had the right to its fruits: McCann v. Earley, 2 Casey 173. The auditor had no jurisdiction over the judgment: Horner v. Hower, 3 Wright 126; Housekeeper’s- Appeal, 13 Id. 141; Dyott’s Appeal, 2 W. & S. 557; Lowber’s Appeal, 8 Id. 387; Kelly v. Eichman, 3 Wharton 422.
   The opinion of the court was delivered, January 3d 1871, by

Shakswood, J.

— It is certainly true that an auditor appointed to distribute the proceeds of a sheriff’s sale cannot go behind the judgment of a court of competent jurisdiction either to inquire into its regularity or its merits; but it is equally true that he is not precluded from receiving testimony to show that since its rendition, it has been paid or otherwise satisfied: Estate of J. B. & C. W. Dyott, 2 W. & S. 557. It must be conceded that the judgment entered in favor of Huckenstein and Eisenbeis, upon Alpert & Kohler’s bond conditioned “ that in default of any quarterly payment of rent the said Huckenstein and Eisenbeis may immediately issue execution for the whole amount of the said obligation,” upon the forfeiture of the bond became a security to indemnify them, and that they were entitled to all the indemnity such an instrument could legally afford them. They had no right, however, to take execution for more than was necessary to their indemnity: McCann v. Farley, 2 Casey 175. At the time they sued out execution they may have had a right to collect the full amount of the penalty of the bond and hold it as security to indemnify them from the claim of the landlord for the accruing rents up to the time of the expiration of the lease. No question has been made a-s to that here. But if at the time of the report of the auditor and award of distribution it appears that all liability, as sureties, for the rent is ended — for example,'that the lessor has accepted a surrender of the lease — surely they have no claim upon the fund; they cannot prevent it from going to other creditors of the tenant. Now such is the case here, as it appears from the facts found by the auditor. The arrears of rent up to the day of sale were paid out of the fund. At the sale Huckenstein and Eisenbeis purchased the leasehold, they became assignees of the term, and liable as such assignees for the subsequently accruing rent. They had possession and enjoyment, or what is the same thing, the right to possess and enjoy the demised premises: 4 Kent Com. 96, 97; Woodfall’s Landl. and Ten. 166, 167. It' is true that this liability will continue only so long as they continue assignees. They may get rid of it at any time hereafter by an assignment to another, even to a beggar. It is founded not upon privity of contract but upon privity of estate, and lasts only so long as that lasts: Ibid. This seems to be the point upon which this controversy hinges. Huckenstein and Eisenbeis maintain that the rental value of the premises may hereafter fall, and they may thus be subjected to a loss ultimately for which they are entitled to indemnity. It must be agreed, however, that there is no legal liability now either in presentí or futuro. As long as things continue as they now are Huckenstein and Eisenbeis can never, call upon Alpert & Kohler to indemnify them for any payment of rent they may be compelled to make. In consideration of the assignment of the lease, they have taken that upon themselves as principals. Waiving the consideration of the question whether upon an assignment of the lease by them hereafter, the only mode in which they can shake off this liability, their claim to indemnity would, revive — which would seem contrary to the maxim that a right to a thing personal once suspended is gone for ever — yet surely it is not equity to put an indefinite amount of money belonging to the debtors, and rightfully to he paid to their other creditors, into the hands of Huckenstein and Eisenbeis to hold as indemnity against so remote a contingency.

We are of the opinion that the distribution reported by the auditor was right, and the exceptions ought to have been dismissed and a decree made conformably thereto. It is a case, however, in which we think the costs of this appeal should be paid from the fund.

Decree reversed, and record remitted to the court below that a decree may be there made in conformity with this opinion.


author: Read, J.

text:
    Crum’s Appeal.
    An oil company was formed, with $4000 capital in shares, which was not to be increased without the consent of a majority of the stockholders, no authority was given to the managers to borrow money. The president bought a lot for oil operations and he and others borrowed money for its payment, on their individual credit; the managers passed a resolution ratifying the transaction, money was paid by the individuals borrowing it. Held, that the managers having no authority to' borrow money, or to increase the capital, their ratification was ineffectual and the other stockholders were not bound to contribute to the payment of the money.
    October 28th 1871.
    Before Thompson, O. J., Read, Agnew, Shabswood and Williams, JJ.
    Appeal from the Court of Common Pleas of Cambria county: In Equity: No. 40, of October and November Term 1370.
    On the 26th of August 1867, Ephraim Crum and Aaron Sherbine filed a bill against S. M. Kern, A. Thompson, H. A.llenbaugh, Gr. W. Kerby, James M. Cooper, and 28 others, which set out—
    1. The formation in August 1868, of an association under the name of The Perseverance Oil Company.
    2. The election of the five defendants named and the plaintiffs managers of the company; the purchase by the managers of an acre of land and the le'ase of another for nine years in Muskingum eounty, Ohio, having two oil-wells sunk in them, with engine, &c., for working.
    3. The entering of the company upon the lots, and after sinking other wells and working for some time, the abandonment of the enterprise as impracticable.
    4. Eor the purpose of raising money to purchase the lease, engine, &c., at the request of the association, E. Crum (plaintiff), Gh W. Kerby and H. Allenbaugh (defendants), gave their note to one J. Miller for $619.50, which had since been paid by the plaintiff, and for the same purposes Orum, Kerby, Thompson and Allenbaugh gave their obligation to one Mary Patton for $600, and under an execution on a judgment recovered on it, Kerby’s personal property was sold for $265.45, and Crum’s for $71, and the balance continued a lien on his real estate.
    5. Crum, at the request of the company, went to Muskingum county, Ohio, on their business, in which he incurred $38 expenses.
    7. There had been no settlement of the partnership accounts, the plaintiffs had frequently asked for a settlement, which the defendants refused.
    The prayer was that the partnership be declared void; that an account be taken, and that the defendants be decreed to pay the several sums of $1219.50 and $38 with interest, and for general relief.
    The answer admitted the formation of the association, denied that the managers were authorized to purchase or lease any oil territory, as averred in the bill, or that they were authorized to borrow the sums named in the bill from Miller and Patton, but if borrowed at all, it was “ by the persons borrowing the same on their own motion”; and denied knowledge of the plaintiff’s having expended $38 on behalf of the company. No replication was filed. William H. Sechler, Esq., was appointed examiner and master.
    The following were articles of agreement for the association:—
    “ Article 2. Capital stock of the company shall consist of four hundred shares, at ten dollars each, or $4000 — which shall not be increased without the consent of the majority of the stockholders.
    “ Article 3. Assessments may be made on the shares for boring and other purposes. But said assessments shall not exceed $2 per share without consent of majority of stockholders.”
    The' managers elected were Gr. W. Kerby, S. M. Kern, S. B.. Cooper, E. Crum, A. Sherbine, A. Thompson,-PI. Allenbaugh.
    The minutes of the company show as follows:—
    “ A meeting of the stockholders was held Octoher 1st 1866, in pursuance of notice given by the president, at which it was resolved to increase the capital stock of the company to an amount not to exceed two hundred shares at $10 each, for the purpose of purchasing engine and fixtures for pumping, and additional territory.

      “ It was further resolved, that whatever additional stock should be taken pursuant to this resolution, be received on an equal footing with the original stock subscribed, by paying one dollar assessment on each share so subscribed, and one-half the subscription cash, and the balance in thirty days from this date.
    “ Octoher 22d 1866. Directors met at the call of the president, full board being present. * * *

      “ On motion it was -resolved, that the $1200 borrowed by Messrs. Gr. W. Kerby, A. Thompson, H. Allenbaugh and E. Crum, and invested in the purchase of engine and fixtures, and additional oil territory, be legalized and assumed by this company.”
    The master reported that $4000 in stock had been subscribed and more than half paid in, and that the company bought “ Lot No. 58” for $4000, subsequently another lot, “No. 9,” in the same territory, with its engine and fixtures was offered for sale, this lot, &c., were purchased by Gr. W. Kerby, the president, for $1200, on the 11th of October 1866. On the 10th of October, Crum, Kerby and Allenbaugh received from Miller $600, for which and the discount ($19.50), they gave to Miller their note of the same 'date,' payable in three months, for $619.50; the note was paid by the plaintiffs. Mrs. Patton on the 7th of October 1866, lent to Kerby, Crum, Allenbaugh and Thompson $600, and took their judgment-note, payable in two months, which was entered, and a sale of Kerby’s and Crum’s goods made as set out in the bill. On the 11th, Kerby as president paid $1200 for lot No. 9 and fixtures; the $1200 thus received were expended in the purchase of lot No. 9, fixtures, &c.
    The master further found that Kerby had no authority to purchase lot No. 9, &c.; that the managers had no authority to borrow money, and that their resolution of October 22d 1866, assuming to ratify the transaction, had no validity. He reported against a decree for the payment of the $1200, but recommended that the plaintiff, Crum, have a decree for the payment of the $38 expended by him.
    The plaintiffs filed exceptions to the report; the defendants also filed exceptions to the part of the master recommending the payment of $38 to the plaintiff for expenses-
    The court dismissed the bill, with costs.
    The plaintiffs appealed to the Supreme Court, and assigned the decree of dismissal for error.

      Cf. M. Heade, for appellants.

      M. L. Johnston, for appellees.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— This is a suit growing out of a voluntary association of individuals under the name of The Perseverance Oil Company, entered into during the months of August and September 1866, for the purpose of prosecuting the oil business. This bill was filed by the plaintiffs to which the defendants filed an answer. A master was appointed, who filed a clear and able report which was sustained by the court except in one unimportant particular, and the bill dismissed at the costs of the complainants.

The plaintiffs and individuals connected with them purchased lot No' 9 as shown on the plan of the lots of the Ohio Salt Creek Company, and that the price paid for said lot with engine and fixtures on it was $1200, the time of the purchase, the 11th October 1866. This was without any authority, and the money was borrowed and paid for it without any authority, it being simply an individual purchase in which the company or association had ^either lot nor part.

These facts are distinctly found by the master. This disposes' of the claim for $1200 upon which this bill is based.

The only other matter is a small claim of one of the plaintiffs of $38 for travelling expenses, which if correct should' be recovered before a justice of the peace, and not made a peg to hang a suit in equity on, with all its cumbrous and expensive proceedings.

Decree affirmed at the costs of the appellant.


author: Williams, J.

text:
    Graham’s Executors versus Graham.
    1. A testator gave to his executors land in trust, to permit his son Stafford, “his wife and children, to reside upon it” so long as he “and his wife or either of them shall live” and after their deaths to his son’s children. He gave other land in the same manner for other sons. He gave the residue to his executors to receive the income, &e., and “semi-annually divide (it) into three equal shares, one of which shall be paid into the hands of each of my said sons * * * for the support, &e., of themselves, their wives and children, and in case of the death of any (son) during the continuance or existence of this trust, the share payable to him shall be paid one-third to his widow and two-thirds to his children,” &c. Stafford died in the testator’s life, eaving a widow but no'children. Held, that the widow took an interest in ohe residue directly from the will and not through her husband.
    2: The wives were as direct objects of testator’s bounty as the sons.
    3. The trust was to continue during the life of the wife and therefore for her use.
    November 9th 1870.
    Before Thompson, C. J., Read, Agnew, Shabswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1870, No. 212.
    This was an amicable action and case stated, in which Annie Graham was plaintiff, and William Roseburg, John D. McCord, and John B. Herron, executors of John Graham, deceased, defendants. To June Term 1870.
    The case exhibited the following facts:—
    On the 20th day of March 1866, John Graham, defendants’ testator, made his will, by which, amongst other things, he devised:—
    “ 3d. To my executors and trustees hereinafter named, and the survivor or survivors of them, &c., I give and devise, in fee simple in trust, for the purposes hereinafter mentioned, 400 acres of land, &c., in Shelby county in the state of Missouri, being the same on which my son, Stafford Graham, now resides; to have and to hold the same for and upon the purposes, uses and trusts following, viz., that my said trustees shall and will permit my said son, Stafford Graham, and his wife and children, to reside upon and use and occupy the said 400 acres of land, with the improvements and appertenances, free of rent (he, his wife and children paying the taxes assessed thereon), so long as my said son Stafford and his wife, or either of them, shall live, and that after the death of my said son Stafford and his wife, my said trustees shall and will grant and convey the said land and appertenances, in fee simple to the children of my said son Stafford then living, and the issue of any of them then deceased, in equal shares, giving to the issue of a deceased child the same share he or she would have taken if then alive.”
    He made precisely similar devises of other real estate for his sons Alexander and Lewis, their wives and children.
    “ 8th. As to all the rest and residue of my estate, &c., I give, &c., the same to my said executors and trustees, to be held by them and their successors for and upon the following purposes, uses and trusts, viz., that they will receive and collect the rents, profits and dividends, and income of my said residuary estate, with power and authority to sell the same or any part thereof, &c. * * * I further direct that my said executors and trustees and their successors shall use and apply the income yielded by my said residuary estate as follows, viz., They shall semi-annually divide said yearly income into three equal parts or shares, one of which shall be paid by them into the hands of each of my said sons, Stafford, Alexander R. and John, to be used for the support, maintenance and education of themselves, their wives and children, and for no other purpose; and in case of the death of any of my said sons, during the continuance and existence of this trust, in regard to said residuary estate, the share payable to him semi-annually for the purposes aforesaid shall be paid, one-third thereof to his widow and two-thirds thereof to his children; but if he shall have left no widow, then the whole shall be paid to his children and issue of deceased children, if such there be ; but if he have left no children or issue of children, then it shall be paid to the children of my other sons then living, and the issue of such as may be deceased, in equal shares, in the manner héreinbefore provided, the issue of deceased children in all cases taking together the same share as the deceased child would have taken if alive.
    “ 9th. I further direct that this residuary trust shall cease and terminate when all my said sons and their present wives, Martha, Annie and Cecilia, shall have died; and I direct that my then acting trustees shall then, viz., after the death of all of my said sons and their said wives, divide and distribute the said residuary trust estate among the children of my said sons then living, and the issue of such of them as may be then deceased, equally in the manner ■ hereinbefore directed; that is to say, the issue of a deceased child taking the same share as the parent would have taken if alive at that time, and to execute all such deeds of conveyance or other instruments of writing as may be necessary for the purpose of making said division and distribution.”
    Stafford Graham died on the 29th day of December 1868, leaving a widow, Annie Graham, the plaintiff, but no children; and on the 11th day of February 1869 John Graham, the testator, died. “ If the court should be of opinion that the plaintiff has an interest in the testator’s residuary estate., then judgment to be entered in favor of plaintiff for the sum of $1469.84, with interest thereon from September 16th 1869, the amount of the first semi-annual payment to be made to the plaintiff, as residuary legatee, if she be such under the said will; but if the court shall be of opinion that, under the facts as above stated, the plaintiff is no.t entitled to recover, then judgment to be entered in favor of the defendants.”
    July 5th 1870 the court ordered “that judgment be entered in favor of the plaintiff, on the case stated, for $1538.39, with costs.”
    This judgment was assigned for error on the removal of the case to the Supreme Court by the defendants.

      J. S. Morrison (with whom was A. P. Morrison), for the plaintiffs in error.
    — The devise to Stafford lapsed by his death in the testator’s life: Weishaupt .v. Brehman, 5 Binn. 115; Comfort v. Mather, 2 W. & S. 450; Acts of April 8th 1833, § 12, Pamph. L. 250; May 6th 1854, § 2, Pamph. L. 565; Purd. 1017, pi. 14, 15. Stafford died before the trust came into existence, therefore not during “its continuance or existence;” and the contingency on which his widow was to take an interest never occurred.
    G. Shiras, Jr., for defendant in error.
    — The plaintiff does not take as the widow of the devisee, but as a legatee designated in the will. The inclination of courts is to save a lapse: 2 Redfield on Wills 492.
   The opinion of the court was delivered, January 3d 1870, by

Williams, J.

— We have no doubt, under the facts agreed on by the parties in the ease stated for the opinion of the court, that Annie Graham, the plaintiff below, has an interest in the residuary estate of the testator. It is apparent from all the dispositions which the testator made of his estate that his sons’ wives were as much the direct objects of his bounty as his sons themselves, and that he intended to make no distinction between his sons and their wives in the provisions which he made for their support. The real estate which he specifically devised to his executors and trustees, for the separate use of each of his three sons, is expressly declared to be in trust and for the use of such son and his wife so long as they or either of them shall live. And the same provident care is shown for the wives as for the sons in the provisions which the testator made for the support of both out of the annual income arising from his residuary estate. Let us see what these provisions are, for on them the question in this case turns. The residue of the testator’s real and personal estate is devised and bequeathed to his executors and trustees in trust, that they shall receive and collect the yearly income arising therefrom, and then the will proceeds in these words: “ They shall, semi-annually, divide said yearly income into three equal parts or shares, one of which shall be paid by them into the hands of each of my said sons, Stafford, Alexander R. and John, to be used for the support, maintenance and education of themselves, their wives and children, and for no other purpose; and in case of the death of any of my said sons during the continuance and existence of this trust, in regard to said residuary estate, the share payable to him, semi-annually, for the purposes aforesaid, shall be paid, one-third thereof to his widow, and two-thirds thereof to his children, &c. *******j further direct, that this residuary trust shall cease and terminate when all my said sons and their present wives, Martha, Annie and Cecilia, shall have died; and I direct that my then acting trustees shall then, viz.: after the death of all my said sons and their said wives, divide and distribute the said residuary] trust-estate among the children of my said sons, then living, and the issue of them as may be then deceased, equally, in the manner hereinbefore directed.” It is true that the will makes no express provision for the contingency which has occurred by the death of the plaintiff’s husband, Stafford, in the lifetime of the testator. But his death, though it may not have been anticipated and provided for, cannot defeat the manifest intention of the testator to provide for the support and maintenance of the plaintiff during life out of the income annually arising from his residuary estate. The trust is to continue by the express provisions of the will so long as the plaintiff shall live. But why should the testator provide for the continuance of the trust during her lifetime unless he intended that it should be for her use? We" must then construe this will so as not to defeat or set aside the clearly expressed intention of the testator, and it is manifest that he did not intend that the legacy should lapse if his son died in his lifetime but, that it should go to his wife and children, if he left any, in the proportions specified in the will, whenever his death might occur. The plaintiff’s right to the legacy is not derived from or through her husband, but from the will of the testator and the provisions which he made for her support and maintenance.

Judgment affirmed.


author: Agnew, J.

text:
    Ross versus Espy.
    1. The only witness for the plaintiff was objected to as incompetent, admitted by the court “ reserving the right to exclude the testimony.” The testimony proved the plaintiff’s case; the court without excluding the testimony, directed the jury to find for the defendant. Held, to be error although the. witness was incompetent.
    2. The court should have charged directly on the competency of the witness.
    3. Evidence is admissible to show that at the time of an endorsement of a note, the first and second endorsers agreed that in case of loss they should bear it jointly.
    4. The contract of endorsement is implied by law from the blank endorsement and can be qualified by proof of a different agreement.
    5. The contract of endorsement is not subject to the rule which excludes proof to vary the terms of an express contract.
    November 9th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 172, of October and November Term 1869.
    This was a feigned issue in which Joseph Ross was plaintiff, and William Espy was defendant, directed at January term 1866 under the following circumstances :—
    On the 12th of April 1861, John Smithley drew a note for his own accommodation for $400, payable to the plaintiff at four months; the note was endorsed by the plaintiff and then by the defendant. It was discounted at a Pittsburg bank, was unpaid at maturity and protested; the bank recovered separate judgments for the amount of the note against each endorser. The defendant paid the amount recovered by the bank, and took an assignment of the judgment against Ross, who paid one-half the amount into court, alleging that although he was the payee and first endorser, yet at the time of the transaction, it was agreed between the endorsers and Smithley that they would both endorse for his accommodation, and in case of his failure to pay, they would be jointly liable. The issue was on a wager in the usual form to try whether the plaintiff was liable for the remaining half of the note.
    The plaintiff called Smithley who was objected to by the defendant as incompetent. He was admitted by the court, “ reserving the right to exclude the testimony.”

      He testified that at the time the note was drawn he asked the defendant to endorse, he said he would if the plaintiff would; plaintiff and defendant and witness met together, when plaintiff and defendant agreed, that if it should not he paid by witness they would “ divide the loss equally.” The note was for the benefit of the witness; the agreement was not in writing, but was made at the time of the endorsement.
    The case was tried March 15th 1869.
    The court (Kirkpatrick, J.) directed the jury to find for the defendant.
    The plaintiff removed the case to the Supreme Court, and assigned the charge for error.

      R. S. Woods, for plaintiff in error.

      N. P. & C. S. Fetterman, for defendant in error.
    — Smithley was not competent: Saurman v. Bodey, 6 Wright 476; Pierce v. Butler, 14 Mass. 308-312; 1 Green. Ev., § 401. The undertaking testified to by Smithley was to pay the debt of another, and should have been in writing: Act of April 26th 1855, § 1, Pamph. L. 308, Purd. 497, pi. 4. It could be proved only by a writing: Miller v. Eichthorn, 7 Casey 252; Jack v. Morrison, 12 Wright 113.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— A note was drawn by Smithley to order of Ross, and by him endorsed; then endorsed by Espy, and discounted at the Iron City Bank. Payment failing, the bank got separate judgments against the endorsers Ross and Espy. Espy paid the bank, and claimed the right to control the judgment against Ross. Ross alleged an agreement at the time the note was drawn and endorsed (all the parties being together) that he and Espy should endorse for the accommodation of Smithley, and in the event of his failure to pay, that he and Espy should contribute equally. This was a feigned issue to try the fact as to contribution. Smithley was offered as a witness, and objected to as a party to the note and incompetent, the trial being on the 15th of March 1869, and was received by the court subject to the right to exclude his testimony afterwards, and no exception taken by the defendant to his admission. The trial being a month before the Act of 15th April 1869, making interest and policy of law no longer a ground of incompetency, Smithley was then incompetent: Saurman’s Ex’rs v. Bodey, 6 Wright 476; Barton v. Fetherolf, 3 Id. 279. But the judge who tried the cause gave no instruction to the jury to exclude the testimony of Smithley, and charged them peremptorily, as a matter of law, that under all the evidence in the case the plaintiff cannot recover, and their verdict must be for the defendant.” Whether the learned judge had in his mind the whole evidence excluding the testimony of Smithley (which is quite possible), we cannot tell from the charge sent up to us. But the evidence having been received without exception, in order to reserve the question, it was the duty of the court to have charged expressly on the competency of the witness if they believed him incompetent, in order that the plaintiff might have the benefit of an exception if he conceived himself aggrieved by the decision. As the evidence stood before the jury, the agreement proved by Smithley was a flat bar to Espy’s right to recover more than the one-half of the money he advanced in payment of the note. Whatever objection there might have existed to the competency of the channel through which the evidence came, tlm evidence itself was entirely competent. The contract of endorsement is one implied by the law from the blank endorsement, and can be qualified by express proof of a different agreement between the parties, and is not subject to the rule which excludes the' proof to alter or vary the terms of an express agreement. This is well settled: Susquehanna Bridge and Bank Co. v. Evans, 4 Wall. C. C. R. 480; Barclay v. Weaver, 7 Harris 396. The very point now before us was decided in Hill v. Ely, 5 S. & R. 363, and Patterson v. Todd, 6 Harris 426; and analogous decisions will be found in Bank v. Fordyce, 9 Barr 276, and Miller v. Henderson, 10 S. & R. 290. The agreement to contribute equally between the endorsers modified the implied contract of Boss by his endorsement to pay Espy; and being made at the very time when they both endorsed for the accommodation of Smithley, the court ought so to have informed the jury, unless they had previously excluded the testimony of Smithley.

Judgment reversed, and a venire facias de novo awarded.


author: Sharswood, J.

text:
    Eaton’s Appeal. Cree’s Appeal.
    1. A bill for account between partners averred that the plaintiff and two defendants had equal interests; one defendant answered that he had four-ninths, the plaintiff two-ninths and the other partner three-ninths; the answer was responsive.
    2. When the plaintiff calls on the defendant to answer the allegations of the bill, he makes defendant a witness for that purpose but for no other.
    3. The defendant is bound to set out whatever constitutes a part of the facts stated in the hill.
    4. The defendant cannot make himself by his answer a witness generally and introduce other facts either in avoidance or defence.
    5. A test as to the answer being responsive is, whether the respondent could on cross-examination as a witness at law, be examined as to the matter he states in anticipation of his defence.

      6. The defendant must answer every material allegation in the bill whether specially interrogated thereto or not.
    7. Part of a fact or contract is not the truth; nor if the terms of a contract are diiferent.
    8. Another subsequent, independent, and distinct fact not stated in the bill is not responsive.
    9. If the whole allegation in the answer might have been left out it is not responsive to the bill.
    10. If the omission of some statement would furnish ground of exception to the answer, the statement to the extent to which io is required, whether negative or affirmative, is responsive.
    11. Partners dissolved having an unexpired lease, two of them continued in the business, occupied part of the leased premises and sub-let the remainder; the rental value increased. Held, that in a settlement they were chargeable with the increased value and not merely with what the unexpired term was worth at the dissolution.
    12. In stating an account between a plaintiff partner and two defendants, the master should find not only what was due the plaintiff, but also state an account between the defendants.
    13. The decree on a bill for settlement of a partnership account should make an end of the whole matter.
    November 9th 1870.
    Before Thompson, O. J., Read, Askew, Sharswood and Williams, JJ.
    Appeals from the Court of Common Pleas of Allegheny county: In Equity: Of October and November Term 1869, No. 196 and 197.
    In the court below James W. Cree, on the 15th of September 1865, filed a bill against Franklin H. Eaton and Nathaniel G. Macrum. The bill set out: — ■
    1, 2 & 3. About September 1858, the plaintiff and defendants formed a partnership in the trimming business, in which they had equal interests of one-third each; and it continued until the 1st of February 1861, when it was dissolved by mutual consent.
    4. The defendants, on the dissolution, took charge and possession of the property and assets of the firm, and undertook the settlement of its business.
    5. Charles Brewer, on the 14th of February 1859, leased to the firm a storehouse, &c., on Fifth street, Pittsburg, in which the business was conducted till the dissolution; the defendants after-wards occupied part of it for their own business, and became chargeable with the value of the rent for such part; they underlet the remainder and received the rent from it, and there was a surplus in their hands after paying Brewer, the landlord ; the unexpired portion of the'term is valuable, and if sold would realize a large profit.
    7 and 8. There has been no settlement, and the defendants refuse to settle; on a settlement there would be a balance due complainant.
    The prayers were that the defendants answer the charges in the bill; that an account be taken of the partnership transactions, and that the defendants be decreed to pay the plaintiff what may be due him; that it be decreed that the unexpired portion of the lease from Brewer, and the net profits, be divided between the plaintiffs and defendants, and for general relief.
    The answer of Eaton denied that the “ partners held equal one-third interests in said firm, its business and profits; hut the interest of the complainant was solely and only an interest of two-ninths in the profits of the business; that the interest of this defendant was four-ninths of the profits, and that of N. Gr. Macrum was three-ninths of the profits; and that the entire capital of the concern was put in and owned by the said defendants.” It admitted the lease from Brewer, and averred “ that the firm, during its continuance, occupied a portion of said building and rented other portions, and such has been the case since the dissolution of the firm; that during the first five years of said lease, the rent paid to landlord had reference to the cost of the building, included expense of repairs and insurance as part of the rent, and amounted probably in all to $2900 per annum; that since April 1st 1864 the rent paid consisted of a money-rent of $3200, and insurance and repairs, making a total of about $3400; that during the continuance of the firm, the rents paid the firm by the sub-lessees amounted to $2160, and the amounts received since the dissolution from tenants have amounted to $8710.” It averred that the complainant was largely in debt to the firm, and had refused to pay it; respondent has always been ready and willing to settle. The other allegations of the hill were admitted. Macrum answered amongst other things, that he “was the owner of one-third of the capital stock, and entitled to one-third of the profits of said copartnership. That the plaintiff did not furnish any of the capital stock of said copartnership, and the defendant does not know from his own knowledge what interest the plaintiff had in the profits ; but he was informed by F. H. Eaton, with whom the plaintiff made the arrangement, that his interest in said profits was two-ninths.”
    The other parts of his answer were substantially the same as Eaton’s.
    A replication was filed January 18th 1866. On the 20th, on motion of the plaintiff, it was decreed that an account be taken of “ the copartnership dealing and transactions of said parties.” Thomas O. Lazear, Esq., was appointed examiner and master. The facts of the case necessary to be referred to are found in his report. He reported:— * * *
    “ There appeared to be no dispute between the parties as to the accounts between them, as exhibited on the firm books.
    “ The only matters which seemed to be in controversy before the master, and to which all the evidence adduced before him had relation, resolved themselves into two questions—
    “ 1. As to the extent of the plaintiff’s interest in said firm; and

      “2. As to the liability of the defendants to account with the plaintiff for the value of the lease aforesaid, and the rents received from the sub-lessees of the said demised premises since the date of said dissolution.
    “ As regards the question of plaintiff’s interest in the firm, the answers of both defendants are responsive to the allegations of the bill in that particular, and the master is of opinion that those answers have not been overcome by sufficient evidence to justify him in finding to the contrary thereof. The only direct evidence offered for that purpose was the testimony of Thomas K. Cree, in connection with which the plaintiff’s counsel relied upon the legal presumption of an equality of interest arising between all partners in the ahsence of any agreement to the contrary, and also upon the fact that nothing appeared upon the books of the firm inconsistent with this legal presumption; and upon the further fact, that after the retirement of the plaintiff from the firm, a new firm was immediately formed between the defendants and one James I). Carlisle, at the same stand, and in the same business, in which all shared equally in the profits, notwithstanding the incoming partner contributed no cash capital to the concern. Now the testimony of witness Cree, on that point, merely relates to a conversation between him and Mr. Eaton, one of the defendants, in which he says that the latter admitted that the plaintiff and the defendants were equally interested in the firm, except that the defendants had put capital into it, and the former had not. This testimony of course varies from what Mr. Eaton says in his answer to the bill, but the master thinks that not much reliance should be placed upon admissions of parties in ordinary conversation, in opposition to their solemn denial under oath. And in regard to the other facts referred to as corroborative of the testimony of this witness (Cree), including the ahsence of any agreement between the parties, defining their respective interests in the firm, and the usual presumption in such cases, it is perhaps enough to say that they are not, by any means, irreconcilable with the answers of the defendants denying the inference which might otherwise be drawn from those facts, and are therefore not contradictory to their answers in that respect.
    “ The master accordingly finds that tl}e interest of the plaintiff in said firm was not the one-third part, but only the two-ninths therein.

      “ And as there is no dispute between the defendants as to their respective interest in said firm, he further finds, in accordance with their answers, that the interest of E. H. Eaton, in said firm, was the four-ninths, and of N. Gr. Maerum the three-ninths therein.
    “ But the question of greater difficulty with the master is the one referred to respecting the lease aforesaid. The facts bearing upon this question appeared from the evidence to be as follows:
    “ Upon the dissolution of the said partnership between the plaintiff and defendants (which then and for some time before had been carried on under the name and style of Eaton, Cree & Macrum), it was agreed between said parties, that the business of said firm should be settled by the defendants. The defendants accordingly undertook the settlement thereof, but (as before stated) they immediately thereafter entered again into copartnership with one James C. Carlisle, in the same business and at the same stand, the style of said new firm being Eaton, Macrum & Co. The portion of the Brewer building (the said demised premises), which this new firm occupied (and being the same which had previously been occupied by Eaton, Cree & Macrum) consisted of the first and second stories, together with the cellar of the stand known as No. 17, and also the second story of No. 19.” * * *
    The master then stated the sub-lettings, &c., by the defendants.
    “ On the 1st of July 1865 the said firm of Eaton, Macrum & Co. also dissolved partnership, and a new firm was then formed between N. O. Macrum (one of the defendants) and the said James C. Carlisle, under the style of Macrum & Carlisle, and F. H. Eaton (the other of said defendants) went into business alone, but all continued to occupy the said Brewer building, the firm of Macrum & Carlisle taking possession of the first and second stories with the cellar of No. 19, and also the second story of No. 17, except a small passage-^ay fifteen feet in width on the second floor of No. 17; and F. H. Eaton taking possession of the first floor, with cellar of No. 17 and the small passage-way referred to. These parties (Macrum & Carlisle and F. H. Eaton) have ever since been in possession of said premises, respectively, down to the present time.
    “ The firm of Eaton, Macrum & Co., during its existence, collected all the rents from said sub-lessees as the same accrued from time to time, and also paid what became due to the estate of Charles Brewer, deceased, under the lease aforesaid; and after the dissolution of said firm, Macrum & Carlisle and F. H. Eaton, have each received the one-half of the rents owing’by said sub-lessees and paid the one-half of the rents due to the Brewer estate.
    “ The lease aforesaid of said Brewer building was never put up at auction, nor is there any evidence that the defendants, after the dissolution of the firm of Eaton, Cree & Macrum, ever adver tised the same for sale or otherwise endeavored to procure a bonus for it. It merely passed into the possession of Eaton, Macrum, & Co. almost immediately after the dissolution of Eaton, Cree & Macrum, without any written or formal transfer thereof, and without even a special mention of it among the assets purchased by Eaton, Macrum & Co. from the defendants, as liquidating members of the old firm; nor was any consideration whatever given for it, although Mr. Carlisle, the incoming partner, says that this lease was held out to him as an inducement for going into the new firm, and was part of the assets transferred to it.
    “ It was claimed by the counsel for the defendants that inasmuch as the weight of evidence showed that the lease in question would not have brought a bonus, if offered for sale in 1861, they should therefore not be required to account for any increase which may have happened in the value thereof afterward. In other words, they maintained, that the question of the defendants’ liability thus to account with the plaintiff for said lease must be determined in reference to the time of the dissolution of the firm of JEaton, Cree Macrum, and as then the lease (as they contended) had no marketable value, they had a right to transfer it, along in the other property, to the new firm of Eaton, Macrum & Co. without demanding payment of compensation for it, and that they are, therefore, not bound now to account with the plaintiff for any subsequent increase in the value thereof.
    “ The master, however, cannot concur in this view of the law, but is of opinion that as the defendants made no attempt to sell the lease, except to the new firm, of which they themselves were members (and which was rather a transfer than a sale, if entitled to be called by either name), nor used any effort, by advertisement or otherwise, to ascertain if it even had a marketable value, they must now be accountable for all the profits and advantages they have since derived from it, especially as the plaintiff was never in any way indemnified by them for any loss he might be put to by reason of his continued liability on said lease.” * * *
    After stating other facts as to the amounts received by defendants for rent, &c., he found that the amount of the firm assets was $24,685.20; that the amounts due to the partners, respectively, after charging them with what they had already drawn from the firm assets, were:—
    To Cree........$ 1095.41
    To Eaton........ 10,267.15
    To Macrum ........ 6287.44
    He further said in his report: “ Possibly the account stated by him, as between them, is defective in not stating in what proportions they should pay the balance which the master has found in his report to be due from them to the plaintiff. This omission can readily be supplied. For as the shares or interests of the defendants in said firm were as follows: Eaton the four-ninths and Macrum the three-ninths, their proportions of said indebtedness should therefore be as follows : Eaton, four-sevenths thereof, or $625.95; and Macrum, the three-sevenths thereof, or $469.46.”

      The plaintiff Cree excepted to the report, that the master should have found that his interest in the partnership was one-third, and that the defendants should have been charged with more rent.
    Eaton excepted that the master reported the lease as part of the assets of the partnership; that the amount charged as the value of the lease was too large; that he did not report “ an account between all the parties. The master should state and report an account between the two defendants. The account now settled should include the entire account between each partner and the firm, and between the respective partners.”
    The court confirmed the master’s report, and decreed that the defendants pay the plaintiff $1095.42, in the following proportions, to wit, that said F. H. Eaton shall pay the sum of $625.95, and that said N. G. Macrum shall pay the sum of $369.47.”
    Cree and Eaton appealed from the decree.
    Cree assigned for error the confirmation of the master’s report, specifically that part which found that his interest was but two-ninths.
    Eaton assigned for error the confirmation of the master’s report in finding that the lease was part of the assets of the partnership ; in the value at which he charged the lease and his mode of ascertaining its value, and that he did not state an account between the defendants.

      H. Reed and G. Shiras, Jr., for Eaton,
    referred to 3 Greenl. Ev. § 28, 29 and note.

      M. W. Acheson, for Cree.
    — Partners are presumably entitled to equal shares: Collyer on Part. § 167 and note; 3 Kent’s Com. 28, 29; Story on Part. § 24 and notes; Pars, on Part. 258, et seq. Where the presumption is in favor of one party, the other must disprove it: 2 Danl. Ch. Pr. 848. Circumstances may be sufficient to overcome a denial in the answer: Id. 840; Brightly’s Eq. § 722; 3 Greenl. Ev. § 289; Clark v. Van Riemsdyk, 9 Cranch 153; Baker v. Williamson, 4 Barr 468. The defendants were not interrogated as to their interests, and therefore the answer was not responsive: 2 Danl. Ch. Pr. 840 ; Jones v. Best, 2 Gill 106. A lease to a firm is assets : Collyer on Part. § 136 ; Parsons on Part. § 386.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— These are appeals by different parties from the same decree. It was a bill in equity for an account of the transactions of a partnership in which there were three members. The plaintiff alleged that each partner had an equal interest. The answer of one of the defendants denied this positively, and averred that the interest of the plaintiff was only two-ninths, the other partner three-ninths, and his own interest four-ninths. The first and most important question in the cause is, whether this answer is responsive to the bill, and entitled therefore to the weight assigned to it by the well-settled rule of evidence in equity, that an answer responsive to the bill can only be overcome by the testimony of two witnesses, or of one witness corroborated by circumstances elsewhere in evidence. We must lay aside the answer of the other defendant, because, as to this point, he does not speak of his own knowledge, but from information and belief only. Such an answer is not evidence even; it is pleading merely, and puts in issue the fact in dispute.

We agree with the master in the opinion that the answer of Eaton is responsive. The question is one often very nicely balanced, and the decisions upon the subject are numerous and not harmonious. I will not undertake here an exhaustive examination of them all or even the greater number. But after considerable research and comparison, there are some principles and rules to be deduced from them sufficient to decide satisfactorily the matter now in dispute.

When the plaintiff calls upon the defendant to answer the allegations contained in the bill, he makes him his witness for that purpose only, but for no other. Whatever constitutes in truth a part of the facts stated in the bill, the defendant has a right, and indeed is bound to set out. But he cannot make himself a witness for himself generally, and introduce other facts either in avoidance or defence. It is considered indeed as a test whether, as a witness on examination, he could be cross-examined as to the matter which he states in anticipation of his defence on a trial at law: Dunham v. Gates, 1 Hoffman’s Ch. Rep. 185. Thus if a plaintiff state an act, transaction or contract as the foundation of his* equity, the defendant has a right to state the whole of such act, transaction or contract as in truth it was. Otherwise a plaintiff by giving only part of a contract, if the defendant must admit that part, and cannot go on to describe truly all the parts of it, the grossest injustice might be done. The defendant must answer every material allegation in the bill, whether specially interrogated thereto or not, and unless he states the act' or contract fully, as it truly was, how can he conscientiously swear that the facts in his answer are true ? Half a fact or half a contract is not the truth. Neither is it true if in truth the terms of a contract are different. But another subsequent, independent and distinct fact, not stated in the bill, is not responsive, and therefore not within the rule.'

A few of the many decisions may he referred to in support of these views. One of the earliest is Kirkpatrick v. Love, Ambler 589. There was a decree for a general account, both sides to be examined on interrogatories. Plaintiff admitted the receipt of a parcel of satins, and in the same sentence swore that he had paid for them : in other words, that it was a cash transaction. *' It was held that.the master was right in refusing to charge the plaintiff with the satins. The court put it upon the ground that the charge and discharge was in the same sentence; otherwise it had been if the discharge or avoidance had been in a distinct sentence. In Blount v. Burrow, 4 Bro. Ch. Rep. 75, Lord Hardwicke said: “ If a man admits by his answer that he received several sums at particular times, and in the same answer swears he paid away those sums at other times in discharge, he must prove his discharge, otherwise it would be to allow a man to swear for himself and to be his own witness.” Lord Chancellor Eldon, in Ridgeway v. Darwin, 7 Ves. 404, said, that “if a man admitted he had received certain sums, which sums he had paid, the discharge following immediately in the same sentence, that would do.” And afterwards, more distinctly in Thompson v. Lambe, Id. 588, “ A person charged by his answer cannot by his answer discharge himself; nor even by his examination, unless it is in this way: if the answer or examination states that upon a particular day he received a sum of money and paid it over, that may discharge him; but if he says, that upon a particular day he received a sum of money, and upon a subsequent day he paid it over, that cannot be used in his discharge; for it isa different transaction.” These cases certainly cannot mean that if the defendant includes the fact of payment in the same sentence with the admission of the receipt, that alone will avail unless from the inference to be made — that they were both parts of one and the same transaction. Sir 'William Grant so states it in Robinson v. Scotney, 19 Ves. 582: “ The instance usually put is that he received a sum of money and immediately handed it over.” In Bellows v. Stone, 48 N. Hamp. 435, there is an able and exhaustive opinion by Chief Justice Parker. He declares the true distinction to be between allegations upon those subjects upon which the bill requires an answer, and allegations of new matter not stated or ^inquired of in the bill-, but introduced by the defendant in his defence. Whether the plaintiff calls upon the defendant to make an answer which must directly deny or affirm some statement, or whether he requires him to make a- statement of the facts upon the particular subject-matter, the principle is the same. If the answer which is required involve some statement favorable to the defendant other than matter merely in denial of the plaintiff’s allegation, the defendant, being required to furnish that matter, is entitled to the benefit of it. An answer does not set up a fact “by way of avoidance merely” when it is only a response which the defendant is obliged to make to the bill of the plaintiff. He proceeds to lay down this as a test of the responsiveness of an answer. “If the whole subject-matter of the statement or aliegation in the answer might have been left out, then the allegation in the answer upon that subject is in no way responsive to the bill — the bill requiring no statement upon that point. But if the omission of some statement upon that subject would furnish just ground of exception to the answer, then the statement to the extent to which it is required, and whatever its character, whether affirmative or negative, is but a response to the requisition of the plaintiff.” The same principles will be found further illustrated in Schwarz v. Wendell, Walker’s Chanc. (Mich.) Rep. 267, and Cooper v. Tappan, 9 Wisconsin 361. In Ringgold v. Ringgold, 1 Harris & Gill 11, it is said that if the answer admit liability, there can be no escape from it but by proof, but everything it says with regard to the creation of the liability must be taken together; and in Allen v. Mower, 17 Vermont 61, “it is readily perceived that everything in the answer responsive to the bill as to the creation of the original liability charged must be taken together as part and parcel of one entire transaction.” Accordingly, in Dunham v. Jackson, 6 Wend. 22, where a bill was filed to redeem stock, and it alleged the stock to have been pledged for a certain sum, and the answer stated that it was pledged at the same time for an additional sum, the answer was held to be responsive. Mr. Justice Marcy said: “ Whether he has gone beyond what he was required to do may be tested, I think, by supposing an interrogatory inserted in the bill pointing to the very matter which he has answered,- and he had refused to answer. Would the court have compelled an, answer ? Interrogatories are not a necessary part of the bill, nor are they to be answered unless they are such as are warranted by the premises and allegations of the bill. ' If the respondent had stopped after denying that the stock was pledged for the loan of $500, and refused to answer an interrogatory as to the amount for which it was pledged, because such interrogatory was not warranted by the bill, there would have been, it appears to me, very little difficulty in showing the answer to be insufficient. The defendant is bound to admit or deny the facts stated in the bill with all their material circumstances, without special interrogatories for that purpose.”

Our own cases, as far as they have gone, conform to these principles. In Eberly v. Groff, 9 Harris 251, the bill charged that an assignment was without consideration. The answer denied that it was without consideration, and proceeded to set forth what the consideration was, and it was held to be responsive. There was indeed an interrogatory asking for the consideration, but that, as we have seen, did not make it responsive if in point of fact it was not so. So in Pusey v. Wright, 7 Casey 387, the present Chief Justice said : “ If a contract be set forth, and the defendant be called on to answer it, a denial that it exists, modo et forma, would not be good, according to chancery practice; for this is subject to the implication that it existed in some other form. To avoid this the defendant should state how it existed, and wherein it had no existence.” And, again : “ It is not doubted but that if a different contract had been set up by defendants, which was alleged to have superseded the one charged by plaintiffs, they would have had the affirmative of the issue. The answer there would not have been responsive to the bill — it would have been by way of confession and avoidance, and have required proof. But the answer here admitted the contract and stated its terms, but denied the existence of stipulations in it alleged by the plaintiffs as the foudation of their claim for relief. This did not require the defendants to make proof, if the plaintiffs did not.”

These principles and authorities amply sustain the conclusion of the master. In stating the terms of the contract of partnership the defendants were called on not merely to admit or deny it modo et forma, but to set out what were the terms agreed upon. They could have been asked specially upon an interrogatory based upon the statement of the bill to answer what the terms were, and this shows that the answer, though there was no interrogatory, was strictly responsive.

We are of opinion that the master was also clearly right upon the facts as found and reported by him in charging the defendants with the profits of the leasehold possessed by the firm at the time of the dissolution. It was, undoubtedly a part of their assets. The defendants did not dispose of it for what could then have been obtained for it, as they might have done. They kept and used it, and like any other article of property — a bale of merchandise, for example, if it afterwards increased in value and productiveness, the plaintiff, as joint owner, was entitled to his fair share of all the income and advantage derived therefrom — and the defendants were chargeable with a fair rent for the part used and occupied by them in their business.

But the report of the master is defective, as indeed he in part admits, in not stating the account as between each of the members of the firm. The decree might perhaps be amended from his report in ascertaining the sum due to the plaintiff by each of the defendants. But then it would not be complete. There is no account reported as between the two defendants. Without that it is necessarily incomplete — leaving them to a subsequent suit or proceeding. Between them there may be no dispute or difficulty, and they may, to save further costs, agree upon the amount. The decree on a bill for the settlement of a partnership account ought to make an end of the whole matter. For this reason the decree below must be reversed, and the record remitted for a further reference to the master and other proceedings thereon.

Decree reversed and record remitted.


text:
    Jones versus Jones.
    1. The treatment which is a ground of divorce a mensa et thoro under the Act of February 26th 1817, is actual personal violence to the wife or reasonable apprehension of it, or such a course of treatment as endangers her life or health and renders cohabitation unsafe.
    2. “Cruel and barbarous treatment” in the Act of May 8th 1854 is to have the same meaning as in the Act of 1817.
    3. Acts of cruelty and barbarous treatment are not, under the Act of 1854, to be limited to those alone which endanger life. '
    4. The Act of 1854 does not require that the treatment to be a ground for divorce, should include “ indignities to the person.”
    5. The treatment to the husband as a ground of divorce is that which renders his “ condition intolerable and his life burdensome/’ which includes those acts that endanger life.
    6. Gordon v. Gordon, 12 Wright 226, criticised.
    November 9th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Allegheny eounty: Of October and November Term 1869, No. 177.
    Jerome Jones filed his libel in divorce against Mary L. Jones, in which he set forth that on the 31st of October 1865, he was married to Mary L. Sweeney, now Jones, the respondent, &c.
    * * “ That the said Mary Jones has, by cruel and barbarous treatment, rendered the condition of the libellant intolerable and life burdensome, having since the 22d February 1866 wholly refused and failed so to conduct and behave herself as to aid in any manner in living in harmony with the libellant without having any just cause or provocation by him offered; that the said Mary has at divers times made threats, saying, that the libellant shall die, threatening to take his life and commit murder ; that his the libellant’s life is not safe at any time; that she has poison in the house, and has frequently so asserted; when threatening his life she has threatened to burn the dwelling-house and home of the libellant, and from her often malicious and repeated threats he is kept in continual jeopardy of life and property, and does not feel safe night or day lest Mary L. shall carry into effect some or all of her said threats. She further has threatened of and concerning the libellant’s aged mother who has lived in his house and family for over eight years, and made her home there, being now about eighty years old; that she (said mother) shall die if libellant-keeps her there; and in consequence of such threats he has been compelled to have his mother remain away from home, fearing lest this threat may be carried into effect. He gave MaryL. Jones full charge.of his house when he brought her home, and desired her to conduct his domestic affairs, but in a short time she, without cause, declined to so conduct the same, and has since that time contributed by various annoyances, wilful and malicious acts and threats, to disturb the peace and happiness of his household, refusing to aid in any way in the business and affairs of the same, except when she interfered with those whom he directs to do the work, plainly showing that her object is to drive peace and happiness away from his home; and that she often ordered libellant to put from their home his children, and as often ordered libellant to drive them away, though they were instructed and disposed to treat her as a mother, and as far as the libellant knows or was informed, did so treat and obey her.” * * *
    The respondent in her answer admitted the marriage, but denied every allegation in the libel, and added:—
    That she did do and perform her duty as a faithful and kind wife towards the said Jerome Jones, but that he treated her with barbarity, cruelty and violence. * * *
    A large amount of testimony was taken tending to prove the allegations in the libel and by the respondent in answer, and also to show the value of the libellant’s estate. The testimony as condensed in the opinion of Judge Agnew, will sufficiently exhibit the case on the facts.
    The proceeding was under the Act of May 8th 1854, § 1, Pamph. L. 644, Purd. 346, pi. 7. The material provision is as follows:— “ In addition to the cases now provided for by law, it shall be lawful for the Courts of Common Pleas of this Commonwealth, to grant divorces in the following cases : * * *
    “ 3. Where the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable, or life burdensome: Provided, that in cases of divorce under this act, if the application shall be made on part of the husband, the court granting such divorce shall allow such support or alimony to the wife, as her husband’s circumstances will admit of, and as the said courts may deem just and proper.”
    On the 17th of February 1869, the court decreed a divorce a vinculo matrimonii: “ And further decreed, that the said libellant, Jerome Jones, do pay to the respondent the sum of $120 per annum, in quarterly payments, from the date-of this decree.”
    The respondent appealed to the Supreme Court and assigned for error:—
    1. Making the decree of divorce a vinculo matrimonii, on .the testimony.
    2. Not allowing the appellant a greater annual “ support or alimony.”

      W. Blakely, for appellant.
    — The facts do not bring the case within the Act of 1854; it does not amount to actual personal violence or a reasonable apprehension of it: Gordon.v. Gordon, 12 Wright 238; Butler v. Butler, 1 Parsons’ Rep. 329.

      A. M. Watson, for appellee.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— Marriage and the family relation lie at the very basis of social life, and the deep stake society has in their sanctity has led courts to be strict in the construction of the causes of divorce. The cruel and barbarous treatment which is a ground of divorce, a mensa et thoro, under the Act of 1817, has been held to be actual personal violence to the wife, or the reasonable apprehension of it; or such a course of treatment as endangers her life or health, and renders cohabitation unsafe: Butler v. Butler, 1 Pars. Eq. Cas. 344. This definition of Judge King has been frequently approved of. Neither the Act of 1815 nor that of 1817 made cruel and barbarous treatment on part of the wife a cause of divorce for the husband. This was first done by the Act of 8th of May 1854, the 3d section of which made it a cause, “ where the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable or life burdensome.” In Gordon v. Gordon, 12 Wright 226, this act came up for interpretation, and it was there held that the words cruel and barbarous treatment, therein stated, are to have the same meaning as the same words in the Act of 1817 had received. This we are disposed to adhere to, not only because it comports well with the true policy of the state in preserving the sanctity of the marriage tie, but because it produces consistency in the administration of the law of divorce, and prevents that confusion which arises by nice distinctions drawn between the words of the different acts. But Justice Strong, in delivering the opinion in Gordon v. Gordon, suggested that perhaps the language of the Act of 1815 solves the interpretation of these words by describing them as such treatment as endangers life, and gives as a reason that otherwise the husband may obtain divorce for a less degree of cruelty than would suffice to entitle the wife to a divorce. This being but a supposition, and not advanced as an opinion, we are at liberty to consider it as no more than a bare impression of that learned and able judge. A careful consideration of the Acts of 1815 or 1817, which in this part is a transcript of the former, and the Act of 1854, will convince us that to limit the acts of cruelty and barbarous treatment in the Act of 1854 to those that endanger life alone, is not consistent with its own language or the entire provision of the Acts of 1815 and 1817. The language of the Act of 1854 is: “ When the wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intoleraable or life burdensome.” The language of the Acts of 1815 and 1817 is : “When any husband shall have, by cruel and barbarous treatment, endangered his wife’s life, or offered such indignities to her person as to render her condition intolerable and life burdensome.” It is evident that the legislature, in the Act of 1854, intended to narrow the causes of divorce in the husband’s case to “ cruel and barbarous treatment,” leaving out the “ indignities to the person,” which are causes of divorce for the wife, under the Act of 1815, in the belief, no doubt, that for the latter the husband needed no protection by a severance of the relation. But by express words the cruelty and barbarous treatment to the husband, given to him as a cause of divorce by the Act of 1854, are extended in their effects to rendering his condition intolerable and his life burdensome. From the nature of the thing, this would also include those acts which endanger his life. And this does not, as Mr. Justice Strong supposed, enlarge the cause of divorce given to the husband beyond that of the wife, for in her case, under the Acts of 1815 and 1817, she is entitled to a divorce not only for cruelty and barbarous treatment endangering her life, but for indignities to her person, such as render her condition intolerable and her life burdensome. Thus both clauses of the Act of 1815, or that of 1817, w'hen taken together, extend her grounds of divorce beyond those contained in the combination of these two clauses into one in the Act of 1854, which restricts the causes of a husband’s divorce to cruelty and barbarous treatment, while it enlarges their effects to a condition of life rendered intolerable and made burdensome by them. Adopting, then, the definition given to the words cruelty and barbarous treatment in Butler v. Butler, supra, and extending their effects to the condition of life described in the Act of 1854, as intolerable and burdensome, the facts of this case can be readily considered and compared with the rule. Thus we find the wife using acts of actual violence to the person of her husband, and endeavoring to prevent his entrance into the room of his sick child, who had been rendered frantic by her barbarous and disturbing noises. By pounding and other acts, as well as by opprobrious epithets, she would also endeavor to disturb, vex and annoy him. By her threats of poison and burning, she kept him in constant fear; and by her whole conduct toward him so affected his mind and health as to cause him to be greatly distressed and to look haggard and pale. She also threatened him with death and his family with danger; would cast things off the cooking-stove, compel the family to withdraw to the wash-house and cook their meals there; threatened to cut down the door of the old grandmother of eighty years of age, who. finally withdrew from the house, and in many different ways vexed and annoyed her husband. Indeed, if half that is told by the witnesses be true,' no life but would become intolerable and burdensome under her constant inflictions. The evidence shows, also, that these threats against life and property were such as carried conviction of danger to his mind, and caused him to keep, watch lest she should execute them. Threats that are both serious and diabolical in their nature and produce alarm and dread are in themselves acts. They are not like mere words of reproach,. or anger, or false imputation, but impress tbe mind with fear and tend directly to endanger health and may even peril life.

In view of all the evidence, we are not able to say the court committed any plain mistake. As to the alimony, we cannot say there is anything in the evidence to show that the circumstances of the plaintiff will admit of any increase.

Decree affirmed.