author: Mr. Justice Sharswood

text:
    Morgan et al. versus Tener et al.

    1. A collection agency employed to collect a claim, who place said claim in the hands of an attorney, through whose misconduct it is lost, are liable therefor in the absence of an express stipulation to the contrary in their receipt given for the claim.
    2. where a claim was lost through the misconduct or fraud of an attorney with whom a collection agency had entrusted it for collection, and the replies of the agency to inquiries made were calculated to throw the claimants off their guard, the Statute of Limitations only begins to run against the claimants from the time of their discovery of the fraud.
    January 18th 1877.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to tbe Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1875, No. 243.
    This was assumpsit, brought by Morgan & Stidfole against Tener & Davis, to recover the amount of three promissory notes left with defendants for collection.
    The defendants pleaded the general issue and the Statute of Limitations. The replications were, ilAssumpserunt infra sex amos” and fraud, upon which issue was joined.
    It appeared at the trial before Briggs, J., that in September 1857, the plaintiffs, who were merchants in Philadelphia, placed in the hands of defendants, who were collection agents, three promissory notes, taking from them the following receipt:—
    “ Tener & Davis. Collections made in all parts of tbe United States and Canada.
    No. 491. Philadelphia, Sept. 28th 1857.
    Received of Messrs. Morgan & Stidfole the claim below described, to be forwarded by us for collection, by suit or otherwise, at our discretion:—
    Note of T. Nuttle, September 30th 1856, six months, $1505.03. Note of T. Nuttle, April 21st 1857, three months, $603.20. Note of T. Nuttle, April 20th 1857, one day, $580.92.
    (Signed) Tener & Davis.”
    The greater portion of the collection business of the firm was entrusted to.the defendants, and this claim was given to them as usual, without any particuar instructions.
    Defendants placed the notes in the hands of George M. Russum, a lawyer in Denton, Maryland, for collection, and he in turn, it is alleged, without the knowledge of defendants, placed them in the hands of Joseph T. Atkinson, an attorney in Baltimore. Atkinson, at the request of Russum, appeared for plaintiffs, and in April 1858 brought suit in the United States Circuit Court for Maryland, and obtained judgment against Nuttle for $2998.05 on the 5th April 1859. About the time of commencing suit, plaintiffs paid to defendants fifty dollars for costs, and were afterwards informed by defendants that judgment had been obtained. They also communicated to plaintiffs an offer of compromise, which was refused, and in frequent interviews plaintiffs never received any further information of the claim or suit, except that it was uncollectible.

    In an annual statement rendered in 1866 by defendants to plaintiffs’ successors in the business, was contained the following reference to the plaintiffs’ claim :—
    “ No. 491. Tilghman Nuttle, Caroline Co., Maryland. (M. & S. claim.) Judgment uncollectible.”
    It appeared that Russum compromised the claim with Nuttle for twenty cents on the dollar, and directed Atkinson to satisfy the judgment, which he did September 28th 1859, not receiving the money in settlement, but obeying the instructions of Russum. No part of the money was ever received by plaintiffs.
    These facts first came to the knowledge of plaintiffs in 1869, when they heard that a claim against Nuttle would be good. They communicated this information to defendants, Avho then, for the first time, disclosed the name of their agent, and, at the suggestion of plaintiffs, gave an order, in writing, to an attorney in Maryland, to take charge of the claim. His reply revealed the fraud of Russum.
    In October 1869 plaintiffs brought this suit to recover the amount of the claim.
    The court entered a nonsuit, which the court in banc refused to take off, Briggs, J., in an opinion holding that there being no evidence of fraud on the part of'defendants, the only question was whether the claim against defendants was barred by the Statute of Limitations, and said :—
    “All of the authorities show that the statute begins to run at the time the defendant becomes liable to answer or pay: Campbell’s Administrator v. Boggs, 12 Wright 524; Rhine’s Administrators v. Evans, 16 P. F. Smith 192. That time was, viewed most favorably for the plaintiffs, on the 28th day of September 1859, when Russum had the judgment satisfied. And unless the defendants have done something to stop the running of the statute, it effectually bars the plaintiffs’ right of recovery. But the plaintiffs allege that the defendants took the case out of the statute by reporting to the jdaintiffs, responsive to their inquiries, that the judgment was ‘uncollectible.’ While such reply would be unanswerable, had the defendants undertaken to collect, as was done in Bradstreet v. Everson, 22 P. F. Smith 127, it has not such force or effect where the obligation is to forward for collection.
    “ This relation clearly indicated to the plaintiffs that the defendants were not themselves to collect; and in the absence of negligence on their part in the selection of Russum, or that they knew the answer that the judgment was uncollectible was untrue, they should not be made liable for merely reporting to the plaintiffs what Russum communicated to them. To hold more than this would convert the defendants from forwarders into insurers. This can in no sense be inferred from an undertaking to forward, and to report information received.”
    The plaintiffs took this writ and assigned for error the entry of judgment on the nonsuit.

      Charles JS. Morgan, Jr., and Robert H. MeGh'ath, for plaintiffs in error.
    — We submit that jthe rule in Pennsylvania is, that the statute did not run against plaintiffs until they knerv or ought to have known of the receipt of the money, and if they applied to their attorneys and received false or evasive answers, or were misled by their answers, the running of the statute is arrested. It will not begin to run until the facts imputed as fraud are discovered: Derrickson v. Cady, 7 Barr 31; McDowell v. Potter, 8 Id. 190; Riddle v. Murphy, 7 S. & R. 235; Rush v. Barr, 1 Watts 120.
    Whether or not there was fraud or fraudulent concealment, or the plaintiffs had exercised due diligence in making inquiries about their claim, and were put off their guard by the answers and written reports thereon made by defendants, were properly questions for the jury, and should have been submitted to them.
    Had the defendants been, as they claimed, “ mere forwarders” for collection, the fraud of their agent was clear, and it was incumbent upon them to show that he was of good reputation. The defendants, however, were not “mere forwarders,” but “ collectors,” and we contend that their liability is fixed by the following authorities : Bradstreet v. Everson, 22 P. F. Smith 134; Krause v. Dorrance, 10 Barr 462.

      Grustavus RemaJc, for defendants in error,
    who relied on tire opinion of the court below, and contended for the views embraced therein.
   Mr. Justice Sharswood

delivered the opinion of the court, January 29th 1877.

Had the defendants been merely forwarders of the notes for collection, as the learned judge below thought, the nonsuit might be sustained. Their duty would then have been performed when they had transmitted them to Bussum, their correspondent. Bus-sum would have been the attorney of the plaintiffs, and they would have been bound to make inquiry and inform themselves of the state of the proceedings on the claim in his hands. We are of opinion, however, that this was not the true construction of the contract as evidenced by the receipt. Its terms are, “to be forwarded by us for collection by suit or otherwise, at our discretion.” The defendants were to have the control and direction of the attorney to whom the notes should be forwarded. The proceeding was to be by suit or otherwise at their discretion. In the margin of the receipt, after the names and address of the defendants, is the advertisement,“ Collections made in all parts of the United States and Canada.” They recognised that the notes were still in their hands for collection after they had been forwarded by their return to the plaintiffs or their agents, the firm which had succeeded them in business. It is headed, “Annual statement of claims in hands of Tener and .Davis, belonging to Charles E. Morgan & Co.,” in which is comprehended the claim against Nuttle, marked as “M.- and S.’s claim,” to show that it belonged to the plaintiffs. The defendants were attorneys to collect, though of necessity it had to be by forwarding to another for collection. The receipt only expressed what was necessarily implied from the nature of the business. That an attorney employed to collect a claim who places it in the hands of another is liable in the absence of an express stipulation to the contrary on the receipt of it, for misconduct by such other, is assumed as undoubted law in Krause v. Dorrance, 10 Barr 462, and is shown to be applicable to collecting agencies, where the necessity of employing attorneys at a distance is apparent, in the well-considered judgment of this court in Bradstreet v. Everson, 22 P. F. Smith 133.

The defendants then being liable on the receipt of the money by Russum, and his unauthorized satisfaction of the judgment, when did the Statute of Limitations commence to run against the plaintiffs ? This question was fully considered in Rhines v. Evans, 16 P. F. Smith 195, and the law clearly and concisely stated as deduced from an examination of all the authorities by the'present chief justice of this court. “ The right of action accrues and- the statute begins to run from the time of the attorney’s receipt of the money, even though he gives no notice of its collection, the law deeming it gross negligence on the- part of the ci’editor to neglect to make inquiry for six years, unless the attorney has been guilty of concealment or some act to put his client off his guard.” It was in evidence in this case that the clients had made frequent inquiries of the defendants as to their claim, and were informed both verbally and in writing, that it had been prosecuted to judgment and was “uncollectible.” This certainly was well calculated to put the plaintiffs off their guard. If, as we have seen, the defendants were liable when Russum satisfied the judgment for his misconduct or fraud, it is not material whether they made this answer to the plaintiffs innocently and in good faith or otherwise. It was sufficient to put them off their guard, and is therefore a good defence on their part to the plea of the statute, which began to run against them only from the time of their discovery of the fraud.

Judgment reversed, and procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Clarke versus Adams.
    P. & M. agreed with A., the plaintiff, who was their partner, to buy out his interest in the firm, and to give him an obligation of indemnity against any unpaid debts of the firm. The agreement and the indemnity were separately reduced to writing and signed on the same day. At an earlier hour on the same day, at M.’s request, C., the defendant, without having seen the indemnity, signed a writing guaranteeing to A. the “ faithful performance of the covenants and agreements of P. & M. in the foregoing agreement set forth.” These three papers when delivered were separate, but were afterwards fastened together by the plaintiff. A. was afterwards obliged to pay an old debt of the firm ana brought this action on the guaranty against 0., alleging that it applied to the indemnity: Held, that evidence was admissible on behalf of 0. as to what took place when the guaranty was signed, in order to show to -what it referred.
    January 18th 1877.
    Before Agnbw, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 110.
    Covenant 'by Robert H. Adams against E. Bradford Clarke on an alleged guaranty of the covenants contained in an indemnity bond given to Adams in the dissolution of a partnership between Adams, Percival and Morrison. The pleas were “non est factum”' and “non infregit eonventionem.” The facts are sufficiently set forth in the opinion of the court. There was a verdict for the plaintiff; the defendant, after judgment thereon, took this writ of error, assign-, ing for error the rejection of his testimony; as shown in the opinion of the court.

      W. J. Budd, for the plaintiff in error.
    — There were two agreements made between Percival and Morrison and Adams; Clarke’s guaranty was of.the “covenants in the foregoing agreement set forth.” Clarke should .have been allowed to explain which agreement he referred to.
    It was not a case of varying a writing by parol evidence.

      W. Ernst, for the defendant in error.
   Mr. Justice Woodward

delivered the opinion of the court, February 5th 1877.

Robert H. Adams, the plaintiff below, A. F. Percival and R. A. Morrison were partners composing the firm of Percival, Morrison & Co. on the 27th of February 1872. As the result of previous negotiations, the firm was that day dissolved. A written agreement was executed by the partners, stipulating that the plaintiff should sell his interest in the business to Percival and Morrison for $10.500, for which they should pay in eight promissory notes, to be signed by them and endorsed by Joseph F. Tobias. The agreement contained a provision that a settlement under it should be made by the first of March, and provided also that Percival and Morrison should “ execute an obligation to Adams to save and keep him harmless from all claim, demand, suit or charge for or by reason of any debt due, or to grow due, in or out of the business.” A bill of sale of his interest was made and delivered by the plaintiff to Percival and Morrison, and they executed the obligation of indemnity which the agreement required. With the other papers handed to the plaintiff was the instrument on which this suit was brought. It was executed under seal by E. Bradford Clarke, and was in these words: “For a valuable consideration to me in hand paid by Robert H. Adams, I do hereby guarantee the faithful performance of the covenants and agreements on the part of A. E. Percival and R. A. Morrison in the foregoing agreement set forth.” All the papers were dated the 27th of February 1872, and were delivered respectively to the parties in the afternoon of that day. When the agreement, the obligation of indemnity and the guaranty were delivered, however, they were detached and separate instruments, and were fastened together afterwards by the plaintiff’s counsel in his office. In 1873 a judgment was recovered against the plaintiff for the amount of a debt due by the former partnership, and having paid it, he brought this action on the guaranty of the defendant.

On the trial the defendant proposed to show “ what took place at the execution by him of the guaranty, what it was he was to guarantee, and the conversation that took place between him and R. A. Morrison.” While the precise facts it was sought to establish were not specifically set out, the purpose of the offer is indicated by the testimony contained in the bill of exceptions, and especially by the testimony of Mr. Johnson. The general allegation was that Morrison called on the defendant in the afternoon .of the 26th or on the morning of the 27th of February, showed him the agreement for the sale of' the plaintiff’s interest in the firm, and requested him to sign the guaranty upon the assurance that it provided for nothing more than the performance by Percival and Morrison by the first day of March of the stipulations of the agreement. It was denied on his behalf that he had any knowledge of the existence of the obligation to indemnify the plaintiff, or that he undertook to bind himself to any duty which that obligation involved. The offer of the testimony was rejected, and the single inquiry here is, whether the ruling was accurate or erroneous.

That some foundation of fact existed for the theory of the defence was indicated by the letter of Mr. Johnson, written on the day when the transaction was closed, in which the defendant was told that Percival and Morrison had complied with the contract entered into with Adams, that the guaranty had been met and discharged, and that no further obligation rested upon him. So far as the circumstances of the case were disclosed, no imputation of bad faith can be made against either of these parties. It did not appear that the plaintiff had any knowledge of what occurred between Morrison and the defendant when the guaranty was executed, and there is no reason to doubt that he supposed himself entitled to receive and hold it for his security. But the mere act of signing the instrument bound the defendant to nothing except the duty which the exhibition of the contract of sale and the explanation of Morrison disclosed. The stipulation for the obligation of indemnity did not contain a provision for a surety, and there was nothing on the face of the contract to show the possibility that the guaranty could be put to any ulterior use. If the defendant became answerable for the stipulations of the obligation of indemnity, therefore, it must be on some ground of negligence or estoppel that could only be shown after his evidence had been heard. He undertook to guaranty the faithful performance of the covenants in what was called “ the foregoing agreement.” He had the right to show what that agreement was, for the fact of execution, standing alone, made him the guarantor of that and of nothing else.

There is no foundation for the objection that the admission of the testimony would have been to permit a parol contradiction of a written instrument. The guaranty was signed while it was detached from all other papers. It did not describe the “ foregoing agreement” to which it referred. By its own terms it was insensible, and to give it vitality and application required extrinsic proof. There is ample authority to warrant the reception of such evidence. In Aldridge v. Eshleman, 10 Wright 420, where an agreement had been made to become “responsible for merchandise bought,” parol evidence was admitted to show that both past and future sales had been comprehended in the agreement. In Wagner’s Appeal, 7 Wright 102, parol evidence was allowed to determine a question of doubt as to who was a legatee, and to show that a name had been inserted by mistake. In McCullough v. Wainright, 2 Harris 171, it was said that where a writing possesses an ambiguity arising from reference to extrinsic objects, it may be explained by parol testimony relative to the nature, situation and circumstances of those objects at the time of the contract. The same rule was illustrated in Doe v. Burt, 1 Term Rep. 701; Bertsch v. The Lehigh Coal and Navigation Company, 4 Rawle 130, and Barnhart v. Riddle, 5 Casey 92.

Upon his theory of the case, the defendant became bound by the paper he signed just as he would have been bound if the paper had been attached to the agreement for the sale by the plaintiff to his partners. All that he asked in the rejected offers was to prove the extent and limit of his original undertaking. He was certainly entitled, in the first, instance, to give this evidence. Its eventual effect might possibly be controlled by considerations which it would be unwise now to anticipate. Whether, with the facts fairly developed, there would be room for the application of the principle that where a loss must fall on one of two innocent parties, it must be borne by Mm whose act has caused it; and whether there was fault or negligence in the act of the defendant in signing the detached guaranty, or fault or negligence in the act of the plaintiff in accepting the three instruments in their detached form, are questions which this record does not raise.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Appeal of the Pennsylvania Company for Insurances on Lives and Granting Annuities. Hilsee’s Estate.
    1. Testator devised and bequeathed all his estate to his executors to divide the same into four parts, one to go to his son Charles, and the remaining three to be invested, one for his son J., and the other two for his daughters. H. and S. respectively, each to have the interest and income of these several shares during life, and upon the death of either, the share of the decedent was bequeathed to his or her surviving children. But if either should die without leaving surviving children or the issue of a deceased child or children, then he directed the interest or income of the share of the decedent to be divided among the survivor or survivors of them, the said J., II., and S., and the issue of such as may be dead. Held, that it was the intention of the testator, that his grandchildren, if any such there might be, should take the corpora of these funds after the death of their parents, but should there be no grandchildren, then the parent was to be substituted and take the corpus of the bequest.
    2. The bequest of the “ interest and income” of a share was a bequest of the share itself.
    January 19th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term, 1876, No. 154.
    This appeal was from the decree of the court sur exceptions to the adjudication of the account of the executors of Joel 0. Hilsee, deceased.
    Hilsee by his will, dated May 29th 1856, devised and bequeathed all his estate, real and personal, to his executors. The Pennsylvania Company for Insurances on Lives and Granting Annuities, in trust to sell the same at either public or private sale, and after payment of debts and a legacy to his wife, to divide the residue into 'four equal parts and pay one to his son Charles, and the remaining three, to invest, one for his son Joseph, one for his daughter Hannah B., ■and the other for his daughter Sarah T., each to have and enjoy the interest and income of his or her share during life, and, upon the death of either, he bequeathed the share of the decedent to his or her surviving children. But if either should die without leaving surviving children, or the issue of a deceased child or children, then he directed the interest and income of the share of the decedent to be divided among the survivor or survivors of them, the said Joseph T., Hannah R., and Sarah T., and the issue of such as may be dead, leaving issue.
    The testator’s daughter, Sarah T., died without issue on the 11th of July 1867. His son, Joseph T. Hilsee, died, leaving no children surviving him, on the 15th of September 1867, and his daughter Hannah R. Kaufman died September 19th 1873, leaving one son, Leon Kaufman, surviving, who is now of full age.
    The executors and trustees, upon the decease of Hannah R. Kaufman, filed their account. The auditing judge, Hanna, J., in the adjudication of the account, after finding the facts as above, said—
    “ Leon Kaufman claims in his own right the entire estate in the hands of the accountants, the trust having ended by the death of Mrs. Kaufman.
    “ Under the third item of testator’s will, a trust was created for each of his said three children during their natural lives. But the trust ceased upon the death of either, leaving surviving child or children, the latter inheriting the parent’s share in fee.
    “ Leon Kaufman is, therefore, entitled to his mother’s one-third part of the estate.
    “ But the question arises, what disposition is to be made of the two remaining shares ?
    “ After the death of her sister and brother, Mrs. Kaufman became entitled to enjoy the interest and income of their shares; thus of the income of the entire estate. And the same was paid to her by accountants.
    “ But the testator failed to dispose of the remainder in the shares of her brother and sister, after the death of Mrs. Kaufman. He therefore died intestate as to these two. shares.
    “The balance in the hands of accountants will, therefore, be awarded, one-third to Leon Kaufman, and two-thirds to an administrator d. b. n. of the testator, when appointed.”
    Exceptions were filed by the executors, which the court dis- , ■'missed, and from this decree this appeal was taken.

      John G. Johnson, for appellant.
    — It may be argued, 1. There was an intestacy as to each share, which fell in, prior to Hannah’s decease, upon the deaths of Sarah and Joseph respectively. 2. The shares of those dying intestate, not only those originally given, but those accrued, went over.
    Was there an intestacy ? It is true that, upon the death of either child, without leaving surviving children, it was only the “ interest and income” of the share which Ayas directed to be divided; but it Avould be a Avaste of time to cite authorities for the elementary position that the bequest of the income of a fund is a bequest of the fund itself. Had there been an intestacy, the distribution should have been to the next of kin of Joel C. Hilsee.
    Did all the shares accrue until the death of the last survivor, in. case of no prior leaving of children, and then pass in aggregate to his or her issue ? No authority can be cited to sustain this position. There is no aggregate fund. Each share is directed to be held separately, for the life of each child. There is no intention manifested to keep the distribution of the whole open until the death of the last survivor. The period fixed for distribution is, in each case, . the death of the life-tenant of the particular share. Can there be any doubt of the meaning of the words used, leaving out the “interest and income of,” which is surplusage? In case of the death of either life-tenant of a share, “ then he directed the share of the decedent to be divided among the survivor or survivors of the said Joseph, Sarah and Hannah, and the issue of such as may be dead.” Where is the warrant for the claim that the survivors took only a life-estate in the share so distributed ?
    No counsel appeared for appellees.
   Mr. Justice Gordon

delivered the opinion of the court, January 29th 1877.

Joel 0. Hilsee, by his will, dated May 29th 1856, proved at Philadelphia, June 9th 1856, devised and bequeathed all his estate, real and personal, to his executor, the appellant, upon trust to sell the same, and, after payment of his debts and a legacy to his wife, to divide the residue into four equal shares, and pay one to his son Charles; the remaining three he directed to be invested, one for his son Jos.eph, one for his daughter Hannah R., and the other for his daughter Sarah T.; each to have and enjoy the interest and income of his or her share during life, and, upon the death of either, he bequeathed the share of the decedent to his or her surviving children. But if either should die without leaving surviving children, or the issue of a deceased child or children; then lie directed the interest and income of the share of the decedent to be divided among the survivor or survivors of them, the said Joseph T., Hannah R. and Sarah T., and the issue of such as may be dead, leaving issue.

We think it manifest the testator intended to dispose of the whole of these several funds, thus created for the -benefit of his three children. That he intended that his grandchildren, if any such there might be, should take the corpora of these funds, after the death-of their parents, is not doubtful. In case, however, either of his children should die without leaving issue living, at the time of his or her death, the survivor or survivors were to take the share of such decedent. What is this but a substitution of the parents for the children, on the happening of the contingency of there being no children to take the corpus of the bequest ? The use of the words “interest and income” before the word “share,” does not alter the matter, for, were it necessary to fulfil the intent of the testator, they might be disregarded. But that by “interest and income” he really meant not only the products, but also the body of the share is obvious in this, that he makes the issue of such as may be dead co-legatees with the survivors of the interest and income of the share of the deceased. He thus puts the surviving, beneficiaries and the issue of such as may be dead in the same class, so that the estate which any one takes in the share thus falling to them, must bo similar to that of any other. We presume, however, that it will hardly be contended, that the estate which the issue of the deceased child or children would have taken, had there been any such, would have been other than absolute, and of the body of the bequest. Again, the testator directed that that part of his estate which he intended for Joseph, Hannah and Sarah, should be divided into three distinct and equal shares, and one allotted to each, to be enjoyed by him or her severally for life and then over to his or her child or children; therefore, when he directs that, in case either should die, without leaving surviving issue, the interest and income of his or her share shall be divided among the survivors, where are the words of qualification to be found, designed to restrain the extent and duration of such interest and income ? But if there be no such Avords, then the gift is of the produce of the fund in perpetuity, and hence a gift of the fund itself: Hellman v. Hellman, 4 Rawle 450. We cannot, therefore, agree Avith the learned judge of the Orphans' Court, that Joel C. Hilsee died intestate as to the body of either of said shares.

And now, January 29th 1877, it is ordered, adjudged and decreed that the decree of the Orphans’ Court be reversed and set aside; that the costs of this appeal be paid out of moneys of the estate of Joel C. Hilsee in the hands of the executor, appellant; that the fund for distribution, after payment of said costs and reasonable expenses of said executor, accountant, be divided and paid out as follows, viz.: one-sixth part thereof to the administrator of the estate of Joseph T. Hilsee; three-sixths parts thereof to the administrator of the estate of Hannah R. Kaufman, and the remaining two-sixths to Leon Kaufman.


text:
    Brown versus The Camden and Atlantic Railroad Company.
    1. The Act of 11th April 1867 (regulating the carriage of baggage) does not apply where baggage is carried by a foreign corporation in another state.
    2. It is well settled that the place of the performance of a contract gives the law of its performance.
    3. B. bought a ticket from Philadelphia to Atlantic City, New Jersey, from the C. & A. Bailroad Company, a New Jersey corporation operating a railroad between those two places, and delivered his trunk to the company at Philadelphia to be taken to Atlantic City; the trunk was lost by the company, but it did not appear where the loss occurred. Held, in an action by B. to recover the value of the trunk and its contents, that as the contract was to be performed in New Jersey, by a New Jersey corporation, the Act of 11th April 1867 did not apply. Held, that the negligence of which the defendant was guilty was in the exercise of its franchise as a New Jersey corporation, and that its liability was to be determined by the law of that state. Held, also, that it made no difference that the undertaking was, in part, to carry the baggage across the Delaware river, as the inhabitants of both states have equal rights of navigation and passage on that stream.
    4. A person who sends baggage by a common carrier is not bound to declare its value unless required to do so, and in the absence of proof to the contrary this will be presumed, in an action in the courts of this state, to be the rule of law in New Jersey.
    5. Per Shaeswood, J. — A different rule would perhaps be adopted, had the plaintiff attempted to carry merchandise under the guise of luggage.
    January 22d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1875, No. 148.
    This was an action on the case by Alexander Brown against the Camden & Atlantic Railroad Company, a corporation chartered under the laws of New Jersey, to recover from it as a common carrier the value of his trunk and its contents, alleged to have been lost by the defendant. These facts appeared at the trial: On August 9th 1873, the plaintiff purchased from the defendant, at its office in Philadelphia, a ticket to Atlantic City; at the same time and place the company received his trunk and checked it to the same destination. The trunk was lost while in the possession of the defendant and no trace could be found of it, except that one Kates, the defendant’s baggage agent, testified that he saw it at the time it was checked. There was no evidence as to where the loss occurred.
    The defendant gave in evidence the New Jersey Act of 16th March 1853 (Acts of N. J., p. 396), limiting the responsibility of railroad companies, as carriers of baggage, to flOO for every one hundred pounds of baggage, in eases where notice to that effect is given, by beirig placed in a “conspicuous place in the receiving office for baggage” of the company and “inserted in the tickets given to the passengers.” There was evidence that such a notice had been posted in the company’s office, but there was no evidence of a notice being printed on the plaintiff’s ticket.'
    The defendant also read in evidence the Act of Assembly of 11th April 1867 (Pamph. L. 69), entitled “ An Act to regulate the carriage of baggage by railways,” &c., which provides, that “no railroad company shall, under any circumstances, be liable for loss or damage to any baggage or property belonging to any passenger beyond the sum of $300, unless the excess in value was declared at the time,” &c.
    There was no evidence as to whether, under the rule of law in New Jersey, the plaintiff was bound to declare the value of the goods in his trunk to the defendant when it was checked.
    At the trial the defendant’s counsel was willing to concede that the case fell under Pennsylvania law, there being no evidence that the trunk was lost in New Jersey.
    The court below directed the jury to find for the plaintiff, subject to these questions of law:—
    1. Does the Pennsylvania statute of 1867 apply to a foreign corporation doing business in Pennsylvania ?
    2. If that statute does so apply, is the defendant’s liability limited to $300 ?
    The verdict was for the plaintiff in $1300. Afterwards, on motion, the court gave judgment on the reserved points for the defendant, and reduced the verdict to $300. The plaintiff below took this writ of error, assigning the judgment for error.

      W. Ernst and Gr. W. Dedrick, for the plaintiff in error,
    argued the question of the application of the Act of 1867.

      S. Dickson and J. O. Bullitt, for the defendant in error.
    — As the contract was made in Pennsylvania, and the loss presumably happened here, the case is governed by the law of this state: Wharton’s Conflict of Laws, §§ 471-3; P. & O. Nav. Co. v. Shand, 11 Jur. N. S. 771; s. c. 3 Moore P. C. N. S. 272; Dike v. Erie Railway Co., 53 N. Y.
    The carrier has a right to he informed of the value of packages delivered to him, and any concealment or misrepresentation will bar the right of recovery: Gibbon v. Paynton, 4 Burr. 2298; Relf v. Rapp, 3 W. & S. 21; Batson v. Donovan, 4 B. & Ald. 21.
    Counsel also argued the question of the constitutionality of the Act of 1867.
   Mr. Justice Sharswood

delivered the opinion of the court, February 5th 1877.

It will not be necessary to decide whether the Act of Assembly of April 11th 1867, Pamph. L. 69, is or is not constitutional, nor whether that act has any application to foreign railroad corporations making contracts for the carriage of passengers and their baggage in this state. The charter of' the defendants, which was in evidence in the court below, showed that they derived their existence and privileges from the state of New Jersey, and the contract was made at their wharf in Philadelphia to carry the plaintiff and his baggage to Atlantic City, over a road lying entirely in the state of New Jersey.

It is perfectly well settled by a host of authorities, which it would be an affectation of learning to cite,'that it is the law of the place of performance by which the mode of fulfilling a contract and the measure of liability for its breach must be determined: Wharton on Confl., sect. 401; Story on Confl., § 233. Without looking further it is sufficient to refer to Mullen v. Morris, 2 Barr 85, where it was held that the endorser of a bill of exchange drawn on the city of New York and payable there Avas liable for interest according to the legal rate of that state. See, also, Allshouse v. Ramsay, 6 Whart. 331.

As the contract relied on in this case as the ground of the liability of the defendants was to be performed in the state of New Jersey, Ave must look to the law of that state to determine the extent of that liability. It is no answer to say that part of the undertaking was to carry the plaintiff and his baggage across the Delaware to Camden, and so in part within the limits of Pennsylvania. That river is conterminous between Pennsylvania and New Jersey, and the inhabitants of both have equal rights of navigation and passage. By the compact between the tAvo states of .April 26th 1783, confirmed and ratified by the Act of September 20th 1783, 2 Sm. Laws 77, it was declared that “ it is and shall continue to be and remain a common highway equally free and open for the use, benefit and advantage of the said contracting parties.” It Avas by virtue of their franchise as a corporation derived from the state of New Jersey that the defendants made the contract. Nor Avould it make any difference if it appeared that the trunk was stolen or lost at the Avharf in Philadelphia, of Avhich, hoAvever., there Ayas no evidence. The negligence of Avhich the defendants are presumed to have been guilty was in the course of the exercise of their franchises as a NeAV Jersey corporation, and the extent of their liability is therefore to be determined by the larv of that state.

A statute of New Jersey on the subject Avas given in evidence, on the trial in the court belorv, but the defendants did not bring themselves within its provisions, by showing, besides a general notice posted in the railway office, such a notice to have been inserted in the ticket delivered to the plaintiff. The defendants, therefore, did not rely on this statute. Nor Avas any evidence given to sIioav that the law of NeAV Jersey independent of statute was not the same as the common laAV settled in this state. That law is, that the party Avho sends goods by a common carrier is not bound to declare their value unless required so to do: Relf v. Rapp, 3 W. & S. 26 ; Camden & Amboy Railroad Co. v. Baldaux, 4 Harris 67. The defendants did not question the plaintiff’s statement of the value of the trunk, which consisted entirely of wearing apparel. A different rule would be adopted, perhaps, had the plaintiff attempted to carry merchandise under the guise of luggage. As we think the Act of 1867 was not applicable to this contract, it follows that the learned court below was in error in limiting the liability of defendants to $300, and reducing the verdict to that amount in entering judgment on the reserved point.

Judgment reversed, and now judgment for the plaintiff on the reserved point for the full amount found by the jin7-


author: Per Curiam. Per Curiam.

text:
    Boyd et al. versus Wilson et al.

    A sale by sample, in the absence of fraud or circumstances to indicate that the sample was to be taken as a standard of quality, is not an implied warranty of the quality of the goods sold. The sample under such circumstances becomes a guarantee only that the articles to be delivered shall follow its kind, and be simply merchantable.
    January 24th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 260.
    Assumpsit by Samuel, Daniel and James Boyd, trading as Samuel Boyd & Co., against 0. Howard Wilson and James Stewart, Jr., trading as Wilson & Stewart, on a promissory note of defendants to the order of plaintiffs for $2720, payable three months after date.
    Defendants pleaded non-assumpserunt, payment with leave, &c.
    At the trial, on the 25th of February 1876, the following were the material facts disclosed:—
    On the 24th of December 1874, Henry F. Neiman, a merchandise broker, who was commissioned by the plaintiffs to sell a lot of 850 cases of canned corn, “ King’s brand,” called upon the defendants for the purpose of effecting a sale, and exhibited to them a can of corn. Defendants requested two more' cans to take ^home and try, and two cans were furnished them, which, after trial, they pronounced “ good, sweet, white corn, sound in .every respect.” The defendants then offered $1.60 per dozen for the whole lot, in a note in ninety days, which the plaintiffs accepted. The defendants received the first delivery of corn on the 29th of December 1874, and other portions of it at different times until they had received 768 cases. In January the firm commenced to sell the corn to the trade, and shortly thereafter it began to be returned to them with complaints about its quality, when it was discovered that some of the com was not like the sample, and the sale of it was stopped 'in consequence. Several parties had returned the corn, and when opened some cans corresponded with the sample while others were bad, and when cooked the corn was found to be sour, greasy and unfit for food. The defendants complained about the quality of the corn, and asked the plaintiffs to take back the balance remaining on hand, which they refused to do. All but 82 cases of the original 850 had been delivered to defendants, and this balance, after the protest of the note, plaintiffs forwarded to defendants, but they declined to receive it. It appeared that “ King’s” brand of corn was not the best in the market and did not command so high a price as some other brands. It was in evidence, also, that there is no indication or test whereby bad corn can be detected other than by the cans being-swollen by fermentation, and it was not shown that these were.
    Samuel Boyd, one of the defendants, testified, “ the broker said all the bad corn was to be taken back and the money returned,” but the broker himself testified, “ I did not say to defendants all the bad corn was to be taken back and the money refunded; there was no representation or guarantee as to the corn. I told defendants if there were any swelled cans they could be made good; aside from that I made no representation or statement. * * * I am certain I did not say that if there was any Had corn it would be made good, because I never use that expression; I always say ‘ swelled heads will be made good.’ ” There ivas no other evidence of fraud or warranty. It was attempted to be, but not satisfactorily, shown that it was the custom of the trade to return defective corn and to have the money refunded.
    The following are portions of the charge of the court (Briggs, J.) to the jury :—
    “ [I do not see in the case anywhere any evidence of warranty as to quality, or any evidence as to fraud on the part of the plaintiffs. I say I do not perceive any evidence, anywhere in the case that would justify me in submitting those propositions, viz.: of warranty or fraud to you.] I do not discover a,ny evidence of warranty, or any evidence of fraud, unless the proposition as contended for by Mr. White be correct, that the goods being sold by sample, amounts in itself to warranty. With regard to that, in order that the case may be put squarely arid fairly, so as to protect the rights of both parties — and I have got to meet the question emphatically on the one side or the other — [I say to you that sale by sample is not a warranty.] Now, I cannot put it more squarely or more fairly than that. I will give you the reason that has led me to the conclusion that I have just enunciated, and I will take as the best and most fitting illustration the very case that we have before us. There áre eight hundred and more cases of corn, sealed beyond the power of human vision to determine the quality of the contents of the cans, except the heads be bulged by fermentation of gas, or burstedby swelling. A broker, approaches a dealer and announces the fact that he has these eight hundred cases of corn for sale. The dealer says, “Give me a can.” It is brought; it is opened; it proves to be good. The dealer says, “ Send me two others, one that I may take home to my family and the other that I may give to my brother. ” The broker does so; and the dealer takes them home and the quality proves satisfactory. Now, this, as I understand, was all that was done in this case. That is what is called a sample. Was there any fraud in the selection of these three cans? Were they taken from the eight hundred cases, not selected expressly with a view to the fair presentment that would be exhibited to the eye when opened, but selected — if I may use the expression here — haphazard — selected by chance. No studied effort to get these three, but picked indiscriminately out of the cases — the eight hundred cases. If they were thus selected, then there was no fraud in the selection. It was fair; and because there was no fraud, and because it was fair, the transaction of the parties is legal. How did the broker know ? How did the parties who desired the broker to sell know, if the heads were not bulged, that the corn was not good ? There is no fraud where the purchaser has the same means of ascertaining the contents of a thing that the seller has. Both stand exactly upon the same level, upon the same equality. And why should one man, in view of such circumstances, or one party to a transaction have an advantage over that of another in the transaction ? This is the reason that leads me to the legal proposition that I have already enunciated. And henee I will say to you that this sale by sample is not'in itself a warranty.
    “ If, to illustrate, there were two lots of this corn of the same brand, or bearing the trade mark or impress of the same maker, one was inferior to the other; or, if you please, of the same grade, I don’t care if they were of different lots, the broker was bound, and the principal whom he represented was bound to send, in filling the order of purchase, the balance of the cans from which the samples were taken. He would not be justified in going into the other lot. [Suppose that one lot was inferior to the other, and was known to be such, the selection of a can for a sample from the good lot, and then to fill the contract from the bad, would be fraud; and that would create a'liability in such a contingency.]
    “ I have used this as a mere figure for illustration. [There is no evidence in the case that there were two lots.] I have used it simply for the purpose of. illustrating a case where fraud might come in. There is no evidence in the case, that I perceive, of warranty or fraud.
    “Well, it is said that there is a custom prevailing amongst dealers in canned fruits, that if the fruit proves defective or of inferior quality, that then the purchaser, by force of that custom, is not bound to pay for it. It may be returned and the money obtained, or a sound commodity substituted in its place. Now, in order to make a custom good, it must be reasonable; it must be certain; it must be universal, so far as the given department of business is concerned; and it must be continuous, and so thoroughly established, that every man in the trade, possessing ordinary prudence and intelligence, knows of it. And if it does not come up to this standard it is not a good custom, and amounts to nothing. [Now this is the definition of a custom that you are to apply to the testimony in this case: If it is positive; certain; continuous; known to all the trade; uncontradicted, then it is a good custom, and the defence to this extent would avail. If it does not come up to this standard, then it fails, and would not amount to a defence. Whether there is a custom, in view of this testimony, you have got to work out yourselves.] Suppose, therefore, you do find that this is the custom, then you will pass to the consideration of ascertaining from the evidence, as best you can, what proportion of these cans is bad; that you have got to ascertain, because, according to the custom that is alleged here, the plaintiffs are only to take back the bad ones or substitute in their place good ones. Hence you see the difficulty in discussing this question. Here are sealed goods, the quality of which cannot be determined until they are opened. I have no doubt, the regard that men generally have for their reputation as dealers, would compel them, rather than lose a customer, to take back the goods; I have no doubt of that. But that does not create a legal liability; it is a gratuitous as well as a generous piece of conduct on the part of the dealer, rather than lose a customer.
    “ [If you find, as I said before, the custom to be a good custom, in view of what I have said, the defendant would be entitled to a rebate, or a deduction, to the extent of the value of the bad cans ; and he must show the extent of the defect. As he undertakes to show they are bad, the evidence, somewhere in the case, must give you a standard of calculation by which you can reach the result or aggregate in dollars and cents.”]
    . In reply to a request to charge the jury “ that the verdict should be for the plaintiffs,” the court said:—
    .“[That I decline for this reason: There are two witnesses that testify one against the other. A witness for the plaintiff said, at the time the broker sold these goods, he stated he would take back the defective cans. The broker himself takes the witness stand, and he testifies that he made no such representation. If he did, then, independent of the question of warranty, the plaintiff would be bound to take them back, because it would be an element running right into the contract itself. It would be in the contract; and hence I cannot affirm this point. If you find that he did so agree to take them back, he would be bound to take them back. ' If lie did not, then he is not bound to take them back, except for the consideration that I have alluded to; that is, the custom.”]
    The verdict was for the plaintiffs for $2874.32, upon which judgment was entered.
    The defendants took this writ and the errors assigned, inter alia, were the foregoing portions of the charge in brackets.

      Richard P. White, for plaintiffs in error.
    — An analysis of the cases will show that here and in other states, as well as in England, a sale by sample is an engagement upon the part of the vendor to furnish goods corresponding in kind and in quality with the sample shown.
    In Fraley v. Bispham, 10 Barr 320, the case most frequently cited in conflict with this position, it does not appear that there was any evidence of sale by sample, and the real question was whether certain words in a bill of parcel was a warranty of quality, and it was held not to be so, but only of kind. In Carson v. Baillee, 7 Harris 375, the vendee bought upon inspection of the bulk, and it was properly held, that after a purchase on inspection, there was no implied warranty in a bill of parcels.
    Against these cases Ave have the current of authority resting on the Avhole course of commercial usage and on the broad principle, that what a man sells, that he must deliver: Story on Contracts, vol. 2, § 1073, 5th ed.; 1 Parsons on Contracts 584; Chitty on Contracts, 5 Am. ed., 458-463; Bradford v. Manly, 13 Mass. 138; Henshaw v. Robins, 9 Met. 86 ; Gallagher v. Waring, 9 Wend. 20 ; Boorman v. Jenkins, 12 Id. 566; Leonard v. Fowler, 44 N. Y. 289; Merriman v. Chapman, 32 Conn. 146 ; Brantley v. Thomas, 22 Texas 270; Moses v. Mead, 1 Denio 378; Oneida Manufacturing Society v. Lawrence, 4 Cowen 440; Barnard v. Kellogg, 10 Wall. 383.
    In Pennsylvania also the doctrine has been recognised, despite the doubts raised by Fraley v. Bispham, supra ; Dailey v. Green, 3 Harris 125; Maute v. Gross, 6 P. F. Smith 250.
    What the intent of the parties to such a transaction was is a question for the jury. It meant simply that the vendor agreed to sell and the vendee to buy corn, of which the cans shown were fair samples in every respect. The fact that no questions were asked, no allegations made, only goes to show that both parties perfectly understood that they were dealing on this basis. In acting as they did they simply followed the common usage of trade knoAvn and recognised in every commercial community the Avorld over. In Beirne v. Dord, 1 Selden 95, and in Hargous v. Stone, Id. 73, it Avas held that the question of s.ale by sample is for the jury, and that such sale, when made, is an engagement to deliver goods corresponding to the sample.

      Francis E. Brewster, F. Carroll Brewster, Jr., and F. Carroll Brewster, for defendants in error.
    — The Supreme Court of Pennsylvania have adhered to the principles of the common law, and in the absence of an express, will not presume an implied, warranty : Jackson v. Wetherill, 7 S. & R. 480; M’Farland v. Newman, 9 Watts 56; Wetherill v. Neilson, 8 Harris 448; Jennings v. Gratz 3 Rawle 169; Kirk v. Nice, 2 Watts 367; Sands v. Taylor, 5 Johns. 395; Hart v. Wright, 17 Wend. 267; Seixas v. Woods, 2 Caines 48; Holden v. Dakin, 4 Johns. 421; Swett v. Colgate, 20 Id. 196; Coggs v. Bernard, 1 Smith’s Leading Cases 294.
    Ordinarily, the buyer and seller deal with each other at arm’s length; the relation between them is not confidential; and it is hardly possible to conceive fraud without actual falsehood or tacit breach of confidence: Eagan v. Call, 10 Casey 236 ; Paul v. Hadley, 23 Barb. 524; Barnett v. Stanton, 2 Alabama 181; Howell v. Cowles, 6 Grattan 393; Keates v. The Earl of Cadogan, 10 C. B. N. S. 591; Note by Hare and Wallace to Chandelor v. Lopus, 1 Smith’s Lead. Cas. 299.
    There is an implied warranty that the article delivered shall correspond in species with the commodity sold, but not of quality. All gradations in quality are at the hazard of the buyer: Fraley v. Bispham, 10 Barr 320 ; Carson v. Baillie, 7 Harris 378 ; Whitaker v. Eastwick, 25 P. F. Smith 229.
    A man will not be responsible for selling food which is too stale or unsound to be consumed, unless he warrants it expressly or is aware of its condition, and fraudulently conceals it from the purchaser : Goldrich v. Ryan, 3 E. D. Smith 324; Hoe v. Sanborn, 21 N. Y. 552 ; Winsor v. Lombard, 18 Pick. 57 ; Wright v. Hart, 18 Wend. 449; Moses v. Read, 1 Denio 378 ; Hyland v. Sherman, 2 E. D. Smith 234 ; Note by Hare and Wallace to Chandelor v. Lopus, 1 Smith’s Lead. Cas. 299.
   The judgment of the Supreme Court was entered, February 5th 1877,

Per Curiam.

— If we trace the law of this state through the following cases we shall find that a sale of chattels by the production of a sample, but without fraud or circumstances to fix the character of the sample as a standard of quality, is not attended by any implied warranty of the quality. The sample under such circumstances, pure and simple, becomes a guaranty only that the articles to be delivered shall follow its kind, and be simply merchantable. These are the cases referred to: Borrekins v. Bevan, 3 Rawle 23; Jennings v. Gratz, Id. 169; Kirk v. Nice, 2 Watts 367; McFarland v. Newman, 9 Id. 56 ; Fraley v. Bispham, 10 Barr 320; Carson et al. v. Baillie, 7 Harris 378; Wetherill v. Neilson, 8 Id. 448; Eagan v. Call, 10 Casey 236; Weimer v. Clement, 1 Wright 147; Whitaker v. Eastwick, 25 P. F. Smith 229. Such precisely was the state of this case. The broker going on a business round produced a can' of the corn and exhibited it to the defendants, and they afterwards asked to see others, which they opened and examined, and proved by cooking for themselves. On the following day they made an offer for the lot, which 'was accepted. There was no fraud and no warranty of the quality, and no circumstances to show that the parties dealt upon the basis of a quality to be precisely such as the cans exhibited contained. The evidence also showed that such cans are hermetically sealed to preserve the corn and are'thus both bought and sold, and that the only true indication of their being spoiled is the bulging of the cans, produced by fermentation, and the consequent evolution of gases, which swell out the head. It was also shown that these cans were not bulged. The court charged if there were fraud in the selection of the cans, as a means of imposition, or they were of a particular lot and the seller delivered from a different lot, it would be evidence of fraud. But the court saw no evidence in the case of either fraud or warranty, and under these circumstances charged that a sale by sample was not in itself a warranty of the quality of the corn. This language is too broad for all cases, but, under these facts, it seems to us there was no error in the instruction. It was said of a general sale without circumstances. The seller did not agree or say that the remainder should be of the same quality as the sample, and the purchaser did not order the corn to be delivered to be of the same quality as the sample. Nothing was said or done on either side to give character to the sample cans as a standard of the quality. This being the nature of the sale, the sample became a standard only of the kind, and that the goods were simply merchantable. So long as the com-modify is 'saleable its different degrees of quality from good to bad are not the subject of an implied warranty. If it be wholly unmarketable, such as cannot be considered merchantable, probably a different conclusion would be reached, because an unmarketable article is substantially different in kind from one that is sale-able in the market. In such a case it is. not the name merely which governs, but the fact that it is without market value, and cannot reasonably be pronounced of the same kind as the sample. In Jennings v. Gratz, supra, it was held that a moderate degree of adulteration often did not destroy the merchantable character of an article of sale, but the court said: “Adulteration may be carried so far as to destroy the distinctive character of the thing altogether, and in doubtful cases there is perhaps no practical test but that of its being merchantable under the denomination affixed to it by the seller.” Judgment affirmed.

Shauswood, J., dissents.

After the above judgment was entered, the plaintiffs in error petitioned the court for a re-argument, among other reasons therefor assigning the following : That the time allowed for argument (one hour) was too brief; that the decicion was counter to the prevalent understanding among the bar and business community in regard to the law governing sales by sample; that many of the heaviest transactions of commerce in the state, with other states, and foreign countries are conducted through the medium of sales by sample, and without other warranty than that which has been universally understood to be implied by an exhibition of a sample of the goods offered for sale; that sales aré thus effected in commercial exchanges, by brokers, travelling-agents, and foreign merchants through agents in this country, and that all the great interests which they represent will be prejudiced, if this decision is allowed to stand.

Further that, even under the rules enunciated by this court, this case ought to be reversed, inasmuch as the evidence was direct, full and uncontradicted that a large portion of the corn was “ bad,” “ unsaleable,” “ unfit for food” and “ unmarketable,” and that the good and bad being mixed, rendered the whole unsaleable, there being-no means of separating them ; and further, that the court below had given the jury a binding instruction that the plaintiffs in error were bound to keep and pay for the cans proved to have been unfit for food and unmarketable, which, under the opinion in this case, was error.

On the 19th of February 1877, the following additional judgment was entered,

Per Curiam.

— We announced, in this case, the result of a long line of decisions. The motion for a re-argument is simply a demand for a change in the law — for judicial legislation. The law of this state has long been thoroughly settled by its courts, that a sale of chattels without fraud or misrepresentation creates no liability for quality, and that the production of a part of the goods, when not made by the acts or agreements of the parties a standard of the quality, carries with it no implication of a contract of warranty of the quality. Much of the confusion of thought in these cases is engendered by the use of the word “ sample,” the mind implying, from the word, and not the facts of the sale, an intention to make the sample a criterion of quality. When in fact the sample is made the standard of quality, as if the buyer orders goods of the same quality, or the seller engages to deliver them of the same quality, an implication arises. Hence it is always in the power of the buyer to command an article of the same quality. But in the absence of an undertaking for the quality, or of those facts from which it can be assumed, the law leaves the parties just as they were. It never has been the law of this state that a sound price required a sound article, for the, reason that if the quality of an article be the criterion, instead of the bargain or specific intent of both parties, there would be no end to ruinous litigation. Parties axe therefore left to their own judgment and diligence, unless there be fraud or deceit practised by the seller. Peace and good order are thereby promoted, and the parties prompted to proper care and diligence, and to make their bargains so that neither will misunderstand his rights. Take this case as an example. Here is an article enclosed in an air-tight can, the quality of which is unknown to both buyer and seller, and can be ascertained only by opening the can, which is destruction. The article is bought and sold in this condition by wholesale and by retail. If the buyer will not risk the contents, he must require a warranty. But then the seller will demand a higher price to compensate him for the entire risk. Now, if the buyer have made no bargain for quality, on what principle of fair dealing shall he have the advantage of both prise and quality ? Had he said to the seller, “You must deliver me corn of the same quality as in these exhibited cans,” the latter would have said, “ I will do so ; but I must be compensated for this risk, and I require so much more to be added to the price.” It is evident, therefore, that the only just rule, in the absence of fraud or deceit, is to suffer the parties to bargain for themselves as to quality ; otherwise, so long as the article is merchantable, the buyer cannot complain of his own remissness. The real secret of these attempts to raise a warranty by implication is that buyers wish to buy as cheaply as they can, and it is only when they find that they have made bad bargains they complain. If they get a superior article for a low price, they will stoutly insist upon standing on their bargains and paying no more, even if the article be worth double the price paid. The truth is, the argument upon the sample is a petitio prineipii. It assumes a bargain when none is intended. It takes the mere word “sample,” and refuses to look at the evidence which discloses no intent to warrant the quality, and leaves the buyer to his own judgment and diligence in making his bargain.

It is said that in the present state of the commercial world much of the business is done by travelling agents and through mere samples. True, the business of the world has changed greatly, but this is an argument to be addressed to the legislature, not to us. We declare the law, but do not make it. If the law as we find it does not suit the times let it be changed by those who possess legislative power. If the law of England or other states differs from ours, to them let petition be made to assimilate them. When sifted, the whole argument addressed to us is a petition in favor of change, not declarative of the law.

It is alleged as a reason for a re-argument that some of the cans were proved to be bad, unfit for food. But the plaintiffs in error know full well no such point was taken in the court below. They fought the case on the ground of an implied warranty of the whole, because of a sale by sample. No instruction was asked for a verdict for so much as was proved to be not merchantable. It was a battle for all or for nothing. The learned counsel who urges this reason knows well that a court of error does not reverse upon issues not made in the court below. Re-argument refused.

Sharswood, J., dissents.


text:
    In re Opening of Jackson Street. Mitcheson’s Appeal.
    1. Proceedings for the opening of a street located upon the plans of the Board of Survey of the city of Philadelphia must be in pursuance of the provisions of the Act of 21st April 1855, Pamph. L. 266.
    2. While the Act of May 14th 1874, Pamph. L. 164, has established a uniform method throughout the Commonwealth for adjusting damages at the time when, and by the viewers by whom, a road or bridge shall be located, it made no provision for streets already located. Streets on the city plan have been treated as so located throughout the statutes, and therefore whatever effect the enactment of the Act of 1874 may have upon the Act of 1836, Pamph. L. 555, and cognate statutes, it has not withdrawn jurisdiction to open streets already located, from the city councils, under the power conferred by the Act of 1855.
    January 24th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Certiorari to the Court of Quarter Sessions of Philadelphia, county: Of July Term 1875, No. 55.
    This was a proceeding to open Jackson street from Thirteenth street to Movamensing avenue, in the city of Philadelphia. The petition of citizens, filed December 6th 1873, asked the court for a jury to view and lay out said street as laid down by the Board of Survey on the plan of the streets of the city of Philadelphia.
    By the report of the jury, made on the 23d of February 1875, it appeared that their first meeting was held on the 28th of September 1874, at which an adjournment was had to the 5th of October 1874, when, after viewing the ground and hearing the testimony for and against the proposed opening, the jury found that there was a public necessity for the laying out and opening said street as located and laid down on tire plan of the city by'the Board of Survey.
    This report was filed on the 23d of February 1875. A second report was filed on the same day, which set forth, “ that in accordance with the Act of Assembly (Act of 1874) they proceeded in the discharge of the duties required by said act to endeavor to procure from the persons over whose land the said street was located, releases from all claims Avhich might arise by the opening of the same, and failing to secure such releases they proceeded to assess the damages, * * * and, after due consideration, taking into account the advantages accruing by the opening of the street, they are unanimously of the opinion, and so report, that by said opening no damages will be sustained by any of the parties claiming before the jury or by any of the parties over Ayhose ground said street is located.”
    To this report MacGregor J. Mitcheson filed a number of exceptions, among Avhich was the following-
    That the provisions of the Act of May 14th 1874, Pamph. L. 164, are not applicable to this case, and were improperly followed by the 'petitioners and the jury, and that the provisions of said act refer, in'terms, to persons appointed to “ view and review any public road or bridge,” and not to streets in the city of Philadelphia, as to which separate and distinct legislation has been provided.
    The court (Hare, P. J., Mitchell and Pratt, JJ.) dismissed all of the exceptions, and from this decree this appeal was taken.

      Robert D. Coxe, for appellant.
    — The proceedings were fatally defective from their inception, and Avere instituted and continued under a misconception of the Act of April 21st 1855, Pamph. L. 266, Purd. Dig. 1287, sect. 124, which prescribed the manner in Avhich streets should be opened at the time the jury was appointed. So, also, in the next step, Avherein it was attempted to regulate the proceedings in accordance with the provisions of the .Act of 1874, as-that act, which is a general laAv, defines the duties of vieAvers appointed to report on a petition asking that a bridge or street may be located, and is not applicable to a street or road laid doAvn upon the confirmed plan of the city: Opinion of Allison, P. J., in re Opening of Fifty-second street, Philadelphia, 33 Leg. Int. 72. To bring these proceedings within the provisions of the statute of 1874, it would be necessary for the court to give the statute a retroactive operation.

      William C. Sannis, for petitioners.

      Robert N. Willson and Charles H. T. Collis, for the city.
    — It is conceded that a law operating upon the rights of parties Avill not be construed to have a retrospective effect, but it is contended that this rule has no bearing upon a statute Avhich operates simply upon a remedy: Kenyon v. Stewart, 8 Wright 179. And it is submitted that the statute of May 14th 1874 is purely of the latter character, inasmuch'as it simply provides that Avhen a jury report in favor of opening a street, they may also proceed to assess damages, instead of having a neAV jury appointed for that purpose. This certainly interferes Avith the rights of no one and simply changes the form of a remedy. There is a propriety too in having the same jury to assess damages, and that was illustrated in this case.
    The Act of May 14th 1874, applies to all roads in the Commonwealth. ' A street is a road. The Act of June 6th 1873, which is confined to the opening of streets in the city of Philadelphia, refers to these proceedings as “road cases.”
    The foundation of the opinion of Allison, P. J., supra, is that where streets are placed upon the public plan of the city and confirmed by the Court of Quarter Sessions, they cannot be ordered to be opened upon the report of a jury of view. Can it be that a citizen is deprived of his remedy by a jury of view simply because the board of survey have anticipated events by the location of a street on the public plan ? If in such case he be entitled to a jury of view, then the Act of May 14th 1874 (which is since the adoption of the new Constitution and cannot be a special or local law) is binding upon such jurors.
   Mr. Justice Woodward

delivered the opinion of the court, May 7th 1877.

These proceedings were begun by a petition to the Quarter Sessions “ to appoint proper persons to view and lay out Jackson street from Thirteenth street to Moyamensing avenue, as laid down by the Board of Survey on the plan of streets of the city of Philadelphia.” The viewers appointed pursuant to the petition reported on the 23d of February 1875, that there was “ a public necessity for the laying out and opening of the street;” that they endeavored to procure releases of damages from the owners of lands over which it was located ; that failing in that effort they proceeded to ascertain the damages; and that they were unanimously of opinion that none had been sustained. The report was confirmed, and the record has been brought here by a certiorari issued on behalf of Mr. Mitcheson, one of the landowners from whom damages were withheld.

Previously to the passage of the Act of the 14th of May 1874, the opening of any street laid upon any of the public plans of the city was subject, under the provisions of the seventh section of the Act of the 21st of April 1855, to the order of the city councils, by ordinance, upon giving three months’ notice to the owners of lands included in the lines of the street. Upon such notice the owners were authorized to petition the Court of Quarter Sessions for viewers to assess their damages. On the theory that the Act of 1855 had been supplied, the viewers moulded their proceedings in accordance with the requirements of the Act of 1874. A change in jurisdiction and procedure such as that which was assumed to have been made might produce seriously inconvenient results in the supervision and management of the highway system of Philadelphia, and the question whether the assumption of such a change was well grounded is well worth consideration.

By the first section of the Act of the 14th of May 1874, it was made the duty of all persons appointed “ to view or review any road or bridge,” if they should “ decide in favor of locating said road or bridge,” to endeavor to procure releases of damages from the owners of lands over which the location should be made, and to assess and report the damages where releases could not be obtained. These duties are precisely those which the viewers reported that they had performed. When this petition was presented, Jackson street had become one of the designated highways of the city by the confirmation of the plan of which it formed a part. Ample provision for opening it “ whenever the councils should deem the public exigencies to demand it,” existed in the terms of the Act of 1855 that have been recited. The legislation relating to the location and opening of streets under the supervision of the city authorities, and the legislation relating to the location and opening of streets over territory not embraced in any city plan, stood side by side on the statute books, and were capable of enforcement without conflict or embarrassment. The seventy-sixth section of the revised Act of the 13th of June 1836, authorized petitions to the Court of Quarter Sessions for the laying out or widening of streets, roads or alleys in Philadelphia thirty days before the commencement of each term, the issuing of a venire to the sheriff for a panel of forty-eight jurors to act as viewers, and the drawing of six jurors from the panel in each case. Subsequent acts have modified some of these provisions, but the jurisdiction of the Quarter Sessions over applications for new highways does not appear to have been disturbed, unless, possibly, such an effect might be deduced from the Act of the- 16th of June 1871, prohibiting the adding of any street to any confirmed plan of the city until approved by the Board of Surveyors. Other statutes have established rules for the assessment-of damages by proceedings in the Quarter Sessions for opening streets previously laid, out either on the city plans or by the action of the court. Some of this latter legislation has been intricate, but none of it requires present discussion.

What, then, has been the effect of the Act of 1874 on this general highway system in the city of Philadelphia ? It has manifestly established a uniform method throughout the Commonwealth for adjusting damages at the time when, and by the. viewers by whom a road or bridge shall be located. But it has done nothing more. It made no provision for streets already located, and streets laid on the city plans have been treated as so located throughout the statutes. The land may be appropriated by the councils for the purpose of opening at any moment, and the erection of buildings within the drafted lines must be at the owner’s peril. It was for an original view only that the act was intended to provide. Damages were not to be adjusted or assessed unless the viewers should “ decide in favor of locating the road or bridge.” And this location, as was said by Allison, P. J., in deciding the case of Fifty-second street, was the primary duty imposed by the law of 1874. Whatever effect its enactment may hereafter be found to have had on the Act of 1836, and cognate statutes, it has not withdrawn jurisdiction to open streets already located from the city councils under the power conferred by the Act of 1855.

As the proceeding was wholly unauthorized, it is unnecessary to enter into the question of the retroactive operation of the law, or into an examination of the alleged defects in the record.

The order of the Court of Quarter Sessions confirming the report of the viewers is reversed, the proceedings are quashed, and the petition is dismissed at the costs of the petitioners.


author: Chief Justice Agnew

text:
    Hydraulic Works Company versus Orr et ux.

    1. While it is true, in general, that where no duty is owed no liability arises, this rule varies with circumstances, and whore, therefore, an owner has reason to apprehend danger from the peculiar situation of his property and its openness to accident, the question of duty then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossnoss of the act of imputed negligence.
    2. Adjoining the factory of II. was a private alley which communicated with a public street. At the entrance of the alley, where it abutted on the street, was a gate upon which was posted, “Private,” and “ No admittance.” This gate was frequently opei}, although the employees of the factory were instructed to keep it shut. In this alloy was erected a platform to be raised and lowered for the convenience of II. in receiving and shipping goods. When raised, this platform rested against the wall, its slight inclination thereto keeping it in place, as it had no other fastening to hold it up. A child sis years old, while at play, strayed from the street into the alloy and the platform falling down it was killed. Held, that the question of the negligence of II. was properly submitted to the jury.
    January 25th 1877.
    Before Agnew,_C. J.,_Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of P'hiladetpMa county : Of July Term 1875, No. 111.
    This was an action on the case, brought by George R. Orr and-wife against the Philadelphia Hydraulic Works Company, to recover damages for the death of their child, which they alleged resulted from the negligence of the defendants, who pleaded “Not guilty.”
    At the trial before Biddle, J., it appeared that the defendants were the lessees of a factory on Evelina street, below Third street, in Philadelphia. Along this factory, on the west side and between it and an engine house, is a ten-feet-wide alley or cartway, used by defendants and the other occupants of the factory for the purpose of receiving and shipping goods. This alley was not a thoroughfare, and at its entrance were gates, which, were opened and shut as necessity required, and upon which were posted “ Private,” and “No admittance.” Inside of the gate, about twenty-four feet up the alley, is erected, to lean against the engine house wall, a large platform, weighing about eight hundred pounds, which, when in use, falls across the alley or cartway, and when not in use is thrown back against the engine house wall, upon hinges, upon which it moves-, about thirteen inches from the wall. The platform belongs to the defendants, and is used by them to facilitate the loading and unloading of their materials and goods. It had been usual to raise and lower it by means of block and tackle and a rope drawn through a staple in the wall; but at the time of the accident from which this suit arises, there was no fastening, and the platform,, therefore, was only kept in place by its slight inclination against the wall, and was liable to be tilted over whenever touched.
    On the 17th of December 1873, about one o’clock in the day, a son of the plaintiffs, about six years of age, was playing on Evelina street, which is a public street and considerably frequented. He strayed, with several companions about his own age, into the alleyway, the gates of which were open. While at play under it, the platform fell upon the children, all of whom were more or less injured, the son of plaintiffs having his back broken, from which injury he died after an illness of several -weeks. No one saw the accident, and it was first discovered when the outcry of the children was heard, four of whom were found under the platform, which, when let down, descended to within eighteen inches of the ground.
    While it was shown that the defendant had instructed its employees to keep the gates shut, and it was in evidence that they were, on the day in dispute, left open by the driver of a wagon who had brought goods to one of' the sub-tenants of the factory, it nevertheless appeared that the gates were ordinarily more frequently open than shut. »
    The defendant asked the court to instruct the jury, “ That if the jury find that this passage-way was not a thoroughfare, but private property, lawfully used only by those having business with the factory, and that the plaintiffs’ son was a mere trespasser, their verdict should be for the defendant.”
    The court answered that “ a child cannot be treated as a trespasser or wrongdoer.”
    They then asked the court to instruct the jury “ That there was no contract, and no public or private duty on the part of the defendant that their premises should be in a different condition from that in which they were, and the verdict should therefore be for the defendant.”
    The court answered: “ Persons who hold premises opening on public thoroughfares must use them in such a way as to protect those who might accidentally stray upon them.”
    The court then left it to the jury as a question of fact, upon the evidence, to find whether the defendant had been guilty of negligence in respect to the condition or character of the platform, as well as whether the defendant was bound to keep the gate fronting on Evelina street closed.
    The verdict was for the plaintiffs for $1625, and the defendant took this writ, assigning the foregoing instructions of the court for error.

      Samuel JDieJcson and John 0. Bullitt, for plaintiff in error.—
    The questions raised are simply whether the defendant owed any duty to the plaintiffs to keep the entrance to their property closed, and the platform in any different condition from what it was.
    The mere fact that the injury was sustained without fault on the part of parents or child does not establish the liability of the defendant, nor would the fact that the defendant had been guilty of carelessness in keeping the platform in the condition it was make out a right of recovery on the part of the plaintiffs. Negligence, in the legal sense, means a falling short in some duty towards the plaintiff, and that duty can only arise out of some contract obligation, express or implied, in which case it does not extend beyond the parties to the contract; or out of some confidence or trust reposed, as where an express or implied license or invitation has been held out; or out of some general duty towards the public at large, thereby including the individual.
    The numerous cases in which railroad companies have been held liable for injuries to persons on their track rest upon the fact that they had reason to expect that the track might be used as a thoroughfare : Kay v. Railroad Company, 15 P. F. Smith 269; Railroad Company v. Lewis, 29 Id. 33.
    So, too, in the cases where persons have been injured upon the premises of another, there has been the express or implied license to enter, which raised the obligation to inflict no injury: Hargreaves v. Deacon, 25 Mich. 6, cited in Wharton on Negligence, note to sect. 344; Zoebisch v. Tarbell, 10 Allen 385; Frost v. Grand Trunk Railway, Id. 387 ; Coe v. Platt, 5 E. L. & E. 491; Lygo v. Newbold, 24 Id. 507; Southcote v. Stanley, 38 Id. 295.
    To make the owner of a lot adjacent to a highway liable to one falling into a pit or hole on his premises, it must abut on the highway so as to interfere with its lawful use: Barnes v. Ward, 9 C. B. (67 E. C. L.) 392; Hounsell v. Smyth, 7 C. B. N. S. (97 E. C. L.) 731; Gautret v. Egerton, Law Rep. 2 C. P. 371. The platform in question was twenty-four feet back from the street, in the private yard of the defendant. It did not abut on the highway, and no use of the highway as a highway could be interfered with by its existence. No machine in the factory was more entirely private than this platform, and, undisturbed, it was perfectly safe and harmless, and -the owner had a right to assume that no one would trespass upon or meddle with it: Abbott v. Macfie, 2 H. & C. 744; Mangan v. Atterton, Law Rep. 1 Ex. 239.
    The rule that a child of tender years cannot be guilty of contributory negligence has nothing' to do with this question. The verdict of the jury establishes that this child used all the discretion that could be expected of him, but there was no reason to anticipate that he would come into the yard of defendant or put a hand upon the platform. He may not have been to blame for what he did, nor his parents for letting him run as he was used to run, but more is necessary to make the defendant responsible.

      Robert JE. Rattison and John Ooehran, for defendants in error.—
    Was not the defendant guilty of negligence in erecting this platform without putting a fastening thereon ? The alley was broad and opened and abutted upon a public street.
    A jury alone can determine what is negligence and whether it has been proved: McCully v. Clarke, 4 Wright 406; Turnpike Co. v. Railroad Co., 4 P. F. Smith 345; Kay v. Railroad Co., 15 Id. 274; Pennsylvania Railroad Co. v. Lewis, 29 Id. 33.
   Chief Justice Agnew

delivered the opinion of the court, February 5th 1877.

It is true that where no duty is owed no liability arises. If therefore one leaves a stick of timber standing upright against his wall, or an open pit in his private yard to which others have not access, and a person strays in without invitation, or comes in without right, and pulls down the timber upon himself, or falls into the pit, he can have no action against the owner of the yard for the alleged negligence. He had no business there and the owner owed him no duty. But it has been often said, duties arise out of circumstances. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property and its openness to accident, the rule will vary. The question then becomes one for a jury, to be determined upon all its facts of the probability of danger and the grossness of the act of imputed negligence. Such was the nature of this case. This building was a factory in which several kinds of business were carried on in different stories, requiring the use of a hoisting apparatus above and an inclined plane below for the easy carriage of heavy articles, machinery, &c., into and out of the factory. These appliances were approached by means of a private opening or cartway shut in by a gate, which their use required to be often opened for the ingress of wagons and hands engaged in the business. The gate and passage-Avay opened out upon a public and much frequented street, Avhere persons Avere passing and children playing. Unlike an ordinary private alley, this passage was often open, and therefore liable to the incursions of children, and even grown persons, from thoughtlessness, accident or curiosity. Now, the inclined way, which did the injury, was a dangerous trap. It was a heavy platform weighing eight or nine hundred pounds, attached by hinges within eighteen or twenty inches of the wall, and when lowered it fell across the cartway. When not lowered it stood upright against the wall, leaning so little beyond the centre of gravity that a jar or a slight pull would cause it to fall forward. Its fall in this instance caught four children beneath it, one had his back broken, another his hands mashed and two escaped under the cavity. It was held up by no hook or other fastening, but merely rested by its own slight weight beyond the equipoise, ready, therefore, to catch children, like mice beneath a dead-fall. When wagons passed it was often held up by hand, and a witness saw it fall against the wheels. Now, can it be righteously said that the owner of such a dangerous trap, held by no fastening, so liable to drop, so near a public thoroughfare, so often open and exposed to the entries of persons on business, by accident, or from curiosity, owes no duty to those who will be probably there ? The common feeling of mankind, as well as the maxim sic utere tuo, ut alienum non Icedas, must say this cannot bo true — that this spot is not so private and secluded as that a man may keep dangerous pits or deadfalls there without a breach of duty to society. On the contrary, the mind, impelled by the instincts of the heart, sees at once that in such a place, and under these circumstances, he had good reason to expect that one day or other some one, probably a thoughtless boy in the buoyancy of play, would be led there, and injury would follow — especially, too, when prompted by knowledge that a fastening was needed. Perhaps the best monitor in such a case is the conscience of one who feels, in his dreadful recollection, the crushing sense that he had left such an engine of ill to take the life of an innocent child. Such, too, is the humanity of the law, that one may not justifiably, or even excusably, place a dangerous pitfall, a wolf-trap, or a spring-gun, purposely to catch and injure even wilful trespassers poaching upon his grounds. The common feeling of mankind, guided by the second branch of the great law of love, and the common sense of jurors, must be left, in such a case, to pronounce upon the facts. We see no error, therefore, in submitting this case, on its facts, to the verdict of a jury. The verdict, when approved by the court, must be permitted to stand; for we take it no judge who sees manifest injustice done by the verdict will permit it to stand. An upright judge does his duty quite as well when he strikes down a false and unjust verdict, as when he approves of that which he cannot condemn.

Judgment affirmed.

Paxson, J-, dissents.