author: Read, J.

text:
    The Jones and Nimick Manufacturing Company versus Commonwealth.
    1. Dividends are not “ net earnings or income,” as used in the 2d section of Act of April 30th 1864.
    2. A corporation was required to pay a bonus of 2J per cent on its capital in lieu of tax on dividends; this did not relieve it from tax on net earnings under Act of April 30th 1864.
    3. The right to tax is never presumed to be surrendered except by clear words and for what the legislature deems an adequate consideration. Per Pearson, P. J.
    4. A release of right to tax by charter since the amendment of the Constitution, would not bind a succeeding legislature. Id.

    May 16th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1871, No. 11.
    The accounting officers of the Commonwealth, on the 23d of July 1869, settled an account against The Jones and Nimiek Manufacturing Company, for tax on net earnings for the years ending November 1st 1864,1866 and 1867; the amount found due to the Commonwealth was $685.73.
    The Jones and Nimiek Manufacturing Company was incorporated by Act of April 1st 1863; by the 4th section of which it is provided that dividends may be declared, and paid, whenever the directors deem it advisable, but said dividends shall in no case exceed the amount of actual net profits acquired by the corporation ; “ and the said company shall pay into the treasury of the state a bonus of two and a half per centum on the capital stock hereby authorized, or any increase of the same in three equal annual instalments, in lieu of any tax on dividends, the first whereof shall he paid within one year from the date of the issue of letters patent, herein- provided for.”
    The company paid to the Commonwealth the sum of §2500, being the two and a half per cent, on its capital of §100,000. The company have never declared a dividend. The law under which the tax was imposed is the 2d section of the Act of April 30th 1864 (Pamph. L. 218), which provides, that all companies and corporations (except certain classes specified in the first section of' the same act, to which the appellants do not belong), not paying to the state a tax upon dividends under existing laws, shall report annually to the auditor-general the amount of their net earnings, and pay a tax of three per centum thereon.
    The cause was tried May 4th 1870, before Pearson, P. J., when the settlement was given in evidence by the Commonwealth. The defendants showed their charter and the payment of the bonus.
    The court charged:“ * * * It is said that this (payment of two and a half per cent, bonus) precludes the recovery of tax on the net earnings or income, under the second section .of the act of April 30th 1864. [The tax demanded is not on ‘ dividends,’ but on net earnings, one of altogether a different character. Even if the company compounds for the tax on dividends, it did not preclude the state from imposing other taxes on this corporation. It could tax its property, real or personal, its net or gross earnings, its sales or any other taxes deemed proper.] The right to levy and collect taxes is a necessary incident of every government — essential to its very existence, and is never presumed to have been surrendered or abandoned except by clear words, and for what is deemed, at the time, by the law-making power, an adequate consideration. The surrender cannot be extended by implication, and if one tax is expressed it cannot be presumed to extend to others. No power to tax need be reserved; it exists and remains unless expressly yielded. Besides, if the release had been general, and not merely a particular tax, it would not bind a succeeding legislature, as this charter was granted since the amendment of the Constitution, in 1857, which gives full power over' such instruments. It was held in the case of The Iron City Bank v. The City of Pittsburg, 1 Wright 340, and in the Commonwealth v. Fayette Co. Railroad Co., 5 P. F. Smith 452, where the companies had obtained their charters under laws giving no stronger power of revocation than is contained in The Constitution, that the legislature could impose taxes from which they had been specially exempted as a portion of their charter privileges. [This act was passed after the date of the charter, and the tax is a legal charge.] You are therefore instructed to find a verdict in favor of the Commonwealth for §685.73, the amount found due by tbe department, with interest at the rate of twelve per cent, per annum, after two months from the date of settlement.”
    The verdict was for the Commonwealth for $735.92,
    The defendants removed the ease to the Supreme Court, and assigned for error the portions of the charge in brackets.

      Miller & Winston, for plaintiffs in error,
    cited Commonwealth v. Ocean Oil Company, 9 P. F. Smith 61; Phœnix Iron Company v. Commonwealth, 9 Id. 108; Lehigh Crane Iron Company v. Commonwealth, 5 Id. 452.

      J. M. McClure and F. Carroll Brewster, Attorney-General, for Commonwealth,
    cited Binghamton Bridge, 3 Wall. 51; Bank of Penna. v. Commonwealth, 7 Harris 144; Academy of Fine Arts v. Philadelphia, 10 Id. 497; Baltimore v. Railroad Co., 6 Gill 288; Morris and Essex Railroad v. Miller, 31 N. J. Law Rep. 521; State v. Jersey City, 2 Vroom 580; Commonwealth v. Fayette County Railroad Co., 5 P. F. Smith 452.
   The opinion of the court was delivered, October 9th 1871, by

Read, J.

Dividends are not net earnings or income as used in the second section of the Act of 30th April 1864, P. L. 218, for individuals are included in the persons taxed, who neither pay nor declare dividends. A manufacturing company, not paying a tax to the state upon dividends under existing laws, pays a tax upon its annual net earnings or income, and this description includes the plaintiffs in error. The fourth section of their charter provides: “ That the company shall pay into the treasury of the state a bonus of two and a half per cent, on the capital stock, hereby authorized, or any increase of the same, in three equal annual instalments, in lieu of any tax on dividends. Net earnings or income are the products of the business, deducting the expenses only,” (Commonwealth v. Penn Gas Coal Co., 12 P. F. Smith 242); and the tax upon them is not a tax of dividends; and if it were, and if they were exempted by the fourth sectión as contended, still, under the decisions of this court in The Iron City Bank v. The City of Pittsburg, 1 Wright 340, and in The Commonwealth v. Fayette County Railroad Co., 5 P. F. Smith 452, it is impossible to hold that the tax is not a legal charge. The learned judge’s charge is perfectly correct.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    The Union Improvement Company versus The Commonwealth.
    1. It was provided by a supplemental act in 1862, that the “ capital stock and dividends ” of an improvement corporation should not be taxable. By the Act of May 1st 1868, “ the capital stock of all companies whatever incorporated under any law of this Commonwealth, &c., except banks, &c., shall be subject to pay a tax annually at the rate,” &c. 'Held, that the Act of 1862 was repealed by the Act of 1868, and the corporation was liable to taxation under the Act of 1868.
    2. In the original act of incorporation, the legislature reserved the right to alter, &o., the charter, at any time thereafter. This conferred power to impose the tax.
    3. Commonwealth v. Fayette Co. Railroad, 5 P. F. Smith 452; Iron City Bank v. Pittsburg, 1 Wright 340, adopted.
    May 16th 1871.

    Before Read, Asnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1871, No. 94.
    The ease came into the court below'on an appeal by the Union Improvement Company, filed January 31st 18fl, from a settlement against them by the accounting officers of the Commonwealth. The following is the settlement: —
    “ Eor tax on capital stock, per Act of May 1st 1868, for the years ending first Monday of November 1868, 1869 and 1870, as per report herewith filed.
    1868. Dividend, 4J per ct. on $711,550. Tax 2J mills $1600 98
    Add 10 per ct. per Act May 1st 1868 160 09
    1869. Dividend, 9J per ct. on $711,550. Tax 4f mills • 3379 86
    Add 10 per ct. per Act May 1st 1868 337 98
    1870. Dividend, 9 per ct. on $711,550. Tax 4J mills 3201 67
    Due Commonwealth $8680 88
    The specifications of appeal against the settlement, were: — ■
    1. Because there is no law of the Commonwealth of Pennsylvania, authorizing the settlement of such a tax on the appellants.
    2. Because it is claimed to be settled against the appellants, under the Act of May 1st 1869, when they are not taxable upon their capital stock under said act, because the second section of the said act requires the president and treasurer, only of companies “who are taxable under the laws of this state,” to report the dividends declared and appraise the stock. The appellants being expressly exempted from all taxation on capital stock by the Act of April 11th 1862, supplemental to their act of incorporation, and by the fourth proviso of the fourth section of an “ Act to incorporate the Ransch Creek Company,” approved April 2d 1860, they were not taxable under the laws of this state, and consequently not required to report their dividends or appraise the stock, or pay the tax provided for by the fourth section of said act.
    3. Because it is in violation of the first clause of the tenth section of the first article of the Constitution of the United States, which provides, “ That no state shall pass any law impairing the obligation of contracts,” the said settlement being in violation of the vested rights of, and the contract with, the appellants, under the supplement to their act of incorporation, and the fourth proviso of the fourth section of the act incorporating the Ransch Creek Company.
    The 2d section of the appellant’s act of incorporation (Pamph. L. of 1856, p. 175), is:
    “ The legislature reserves the right to alter, amend and annul this charter at any time hereafter: Provided, That no injustice be done to the incorporators: Provided further, That the said company shall pay a bonus to the state for the privileges above granted, of one-half of one per cent, on its capital stock paid in, payable in four equal annual instalments after the creation of said capital stock.”
    The 1st section of the supplement (Pamph. L., of 1862, p. 446) is:—
    “ That the Union Improvement Company be and the same is hereby invested with all and singular the powers, privileges, and immunities conferred by, and subject to all the restrictions and provisos contained in “ An Act to incorporate the Ransch Creek Company.”
    The 4th section of the act incorporating the Ransch Creek Improvement Company (Pamph. L. 1860, p. 591), contains these provisos :
    “ The capital stock and dividends of the said company shall not be taxable: And, That nothing herein contained shall be so construed as to exempt the lands which may be held by the said company from taxation.”
    The tax was imposed under the fourth section of the Act of May 1st 1868 (Pamph. L. 108) which is as follows:—

      “ The capital stock of all companies whatever, incorporated by or under any law of this_ Commonwealth, or incorporated by any other state and lawfully doing business in this Commonwealth, or that may hereafter be incorporated, except banks and savings institutions and foreign insurance companies, licensed in pursuance of the general acts in relation thereto, shall be subject to pay a tax into the treasury of the Commonwealth annually, at the rate of one half-mill for each one per cent, of dividend made or declared by such company, and in case of a dividend being made or declared by such company then three mills upon a valuation of the capital stock of the same, made in accordance with the provisions of the second section of this act.”
    On the 22d of March 1871, the case was tried before Pearson, P. J. /
    The Commonwealth put in evidence the settlement and rested.
    The defendants gave in evidence their act of incorporation and its supplements, and proved that they had paid the bonus to the Commonwealth.
    The court directed a verdict for the Commonwealth for $8680.88, the amount found due by the settlement, with interest at 12 per cent., and 5 per cent, penalty, the claim having to be collected by law.
    The defendants took a writ of error, assigning for error the instruction of the court.-

      L. W. Smith and G. W. Woodward, for plaintiffs in error.—
    The Act of 1868 does not repeal the special exemption granted to this company, it having no repealing clause and no negative words: Sedgwick on Stat. Law 123, 127, 128; Williams v. Pritchard, 4 D. & E. 2; 2 Dwarris on Stat. 514, 532; Williams v. Williams, 4 Seld. 526; D’Arcey’s Case, Cro. Eliz. 512; Paget v. Foley, 2 Bing. N. C. 679; Rex v. Pugh, 1 Doug. 179; Brown v. County Commissioners, 9 Harris 43; New York & Erie Railroad v. Sabin, 2 Cas. 242; Commonwealth v. Fayette County Railroad, 5 P. F. Smith 452; Iron City Bank v. Pittsburg, 1 Wright 340.

      J. M. McClure and F. Carroll Brewster, Attorney-General, for the Commonwealth.
    This taxation does not impair the obligation of the contract: Maltby v. The Reading and Columbia Railroad Company, 2 P. F. Smith 149; Commonwealth v. Fayette County Railroad, 5 Id. 454; Jersey City and Bergen Railroad Co. v. Mayor, &c., of Jersey City, 2 Vroom 580; Morris and Essex Railroad Co. v. Miller, Id. 521.
    A contract must have a valuable consideration : Charles River Bridge v. Warren Bridge, 11 Peters 420; Providence Bank v. Pittman, 4 Id. 561.
    As to the repeal by the Act of 1868 of former restrictions upon taxation: Commonwealth v. Pittsburg, 10 Casey 523; Brown v. County Commissioners, 9 Harris 42; Brewster v. Hough, 10 N. H. R. 138; Adams v. Ashby, 2 Bibb 96.
   The opinion of the court was delivered, May 25th 1871, by

Williams, J.

It is clear that if the company is embraced in the provisions of the Act of May 1st 1868, Pamph. L. 108, it is liable to the tax charged on its capital stock; but it is insisted that it is exempted from its provisions by the supplement to its charter, approved the 11th of April 1862, Pamph..L. 446, which declares that the capital stock and dividends of the company shall not be taxable. It is conceded that the legislature, under the right expressly reserved in the act of incorporation, had the power to alter or amend the charter of the company, by imposing a tax on its capital stock; and under the decisions of this court in The Iron City Bank v. The City of Pittsburg, 1 Wright 340, and The Commonwealth v. The Fayette County Railroad Co., 5 P. F. Smith 452, the power to impose such a tax could not be successfully controverted or denied. The only question, therefore, for our determination is, whether the supplement to the charter exempting the capital stock of the company from taxation is repealed by the Act of May 1st 1868, under which the taxes in this case were assessed. This depends on the intention of the legislature as expressed in the terms and provisions of the act. The fourth section declares that “ the capital stock of all companies whatever, incorporated by or under any law of this Commonwealth, or incorporated by any other state, and lawfully doing business in this Commonwealth, or that may hereafter be incorporated, except banks and savings institutions and foreign insurance companies licensed in'pursuance of the general acts in relation thereto, shall be subject to and pay a tax into the treasury of the Commonwealth, annually, at the rate of one half-mill for each one per cent, of dividend made or declared by such company; and in case of no dividend being made or declared by such company, then three mills upon a valuation of the capital stock of the same, &c.” It seems to us that the language of this act is too plain to admit of any doubt as to its meaning. It expressly declares that the capital stock of all corporations whatever, doing business in this Commonwealth, except banks, savings institutions and foreign insurance companies, shall be subject to taxation, whether dividends are made or declared by such corporations or not. Why then should we not give to the language of the act its plain and obvious meaning ? It is true that this company was exempted from taxation by a special act, but this is wholly immaterial, if it was the intention of the legislature to repeal the exemption by the Act of 1868. If no such repeal was intended, why did the legislature declare that the stock of all companies whatever, except banks, savings institutions and foreign insurance companies, should be subject to the tax imposed by the act ? The exemption of these three classes of corporations from the operation of the act, conclusively shows that the legislature intended to- include within its provisions all other corporations whatever, whether they had been previously exempted from taxation or not. If such was not their intention, why were they not included within the saving provisions of the act ? But the language o<f the act is too plain to ¡require further argument. It is evident that the legislature intended to impose a tax on the capital stock of all corporations not expressly excepted from the operation of the act; and in thus deciding, we adhere to the well settled cardinal rule, that the intention of the law-making power as expressed in the statute is to be our guide in its interpretation. The court below was therefore clearly right in instructing the jury that this company is taxable under the Act of 1868, and liable for the amount assessed by the department.

Judgment affirmed.


text:
    Schoch’s Administrator versus Garrett.
    1. The relationship between a father-in-law and a son-in-law is not of itself sufficient to overcome the presumption of a promise to pay for services in nursing and taking care of the father-in-law by his daughter, the wife of the son-in-law.
    2. On the death of his wife, a father asked his daughter, the wife of the plaintiff, to keep his house, take care of him, &c., saying she should be well paid. The daughter kept the house for eleven years, until the father’s death. In an action against his administrator by the husband for the wife’s services, the court charged, that if the jury found it to be an entire contract not completed till the father’s death, the statute of limitation would not bar any part of the claim till six years after the death. Held, to be correct.
    May 17th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lebanon county: No. 5, to May Term 1871.
    This was an action of assumpsit brought March 27th 1869, by Frederick Garrett against John Schoch, administrator, &c., of Peter Shoch, deceased, for services rendered by the wife of the plaintiff to the decedent in his lifetime.
    The plaintiff was the husband of a daughter of the decedent; the wife of the decedent died in April 1855; and, about that time the plaintiff and his family, at the request of the decedent, as was alleged, moved into his house. The wife attended to the decedent and nursed him from that time until his death, which occurred in April 1866, he being then about eighty-five years old.
    For the plaintiff the evidence was that the decedent had been in a bad state of health for a long time, with a very offensive disease, on account of which he required more than ordinary attention. The disease increased as he grew older and he required more attention; that he had been faithfully and carefully attended and nursed by the plaintiff’s wife.
    Daniel Gese testified that the decedent said that Mrs. Garrett would never be paid for the trouble she had with him.
    H. Eberly testified that he heard the decedent say in the presence of one of his sons that he would make a will and gi^e a farm to Mrs. Garrett, but she did not want it; that she would never get paid for the trouble she had with him; Mrs. Garrett asked witness what her father had said, and when told, said she did not want a farm, she wanted to be paid for her trouble.
    Sarah Shultz testified that once, after Mrs. Garrett had rendered some attention to her father, required by the offensiveness of his disease, he said to her, “ I will pay you for this.”
    Elizabeth Zeller, a daughter of the plaintiff and granddaughter of decedent, testified: that her grandfather, on the day his wife died, asked his daughters to keep house for him; he asked the others before Mrs. Garrett, and said “ whichever one did it should be well paid for it,” and then Mrs. Garrett promised ; the witness was about eleven years old then. About a year before he died he told Mrs. Garrett “ to get some one to do the outside work, that for the few days he had to live she might stay with him.” Mrs. Garrett did hire help. The decedent wanted to give Mrs. Garrett a farm by will; she said “ she did not want more than was right, he should pay her, the rest divided equally; he said she would, never be paid for the trouble she had with him ; the rest never came and looked after him; mother had to do everything.”
    Sarah Lebo testified: “ I heard him say, if Mrs. Garrett would wait on him well, she should be well satisfied.”
    The plaintiff proposed to ask witness, if any of the defendant’s children came there or gave him any attention. This for the purpose of showing that Mrs. Garrett bestowed on him all the care he needed. The evidence was objected to and admitted “for the purpose offered, not for any other.”
    Plaintiff also proposed to prove by witness that the decedent complained that his sons did not come oftener to visit him, and gave him no attention. ’■ This was objected to by the defendant, but received as an admission of the decedent, to have no other effect than if he had said, “none but his daughter gave him any attention.” Several bills of exception were sealed to the admission of these offers.
    The witness answered that the other children seldom came there, and that the decedent often said that his sons gave Mm no attention.
    Catharine Matthews, a daughter of the decedent, testified, that her father asked her to keep house for him; she declined, he asked another sister who also declined.
    The plaintiff called Amanda Pearson, and proposed to put a case hypothetically as near what the evidence made out in substance as practicable, and to ask the opinion of the witness as to what it would be worth per month or week to take care of the person so situated, this witness not having heard the evidence of the other witnesses. This was objected to by defendant’s counsel.
    The court said: “ We know of no other way of enlightening the jury as to the value of the services in such cases, and therefore, like all other actions of assumpsit for services rendered, an opinion may he given of the value of the services.”
    The question was allowed to be put, and bill of exceptions was sealed.
    The witness said she would not do it for $50 a week: and then testified as to the value of such services. Andrew Strickler was called, and it was proposed to ask him what was usually paid for like services to persons in similar cases.
    The witness answered, “ 1 don’t know what is the ordinary pay for such services; I nursed one man; he was feeble from old ago ; could not help himself; time not so long; much trouble; three months, not quite; had to wash him all over when I physicked him.” The evidence was objected to, and received, because it is conceded there is no custom as to the wages to be paid in such cases in this part of the country; received for what it is worth and a bill of exceptions sealed.'
    The defendant gave evidence that the plaintiff occupied the Souse and farm for eleven years; during the first six years he followed his trade as a blacksmith and his family were supported from the farm; for the remaining five years he farmed to the shares, and used the products of the farm for his family and stock, before dividing.
    The defendant called William Zimmerman, who testified: “ My mother was helpless for about a year; Amanda Pearson waited on her.” It was proposed to show by witness that she got but seven dollars per month for her wages, for the purpose of contradicting the witness and also to show what the services were really worth. This was objected to by plaintiff.
    Court: “ It does not contradict the witness, as she. was not asked a word on the subject, nor did she refer to it in any way. It is no proof of the value of the services as she might not have been half paid.” The evidence was overruled and a bill of exceptions sealed.
    A large amount of testimony was heard on both sides.
    The defendant requested the court to charge:—
    4. That declarations made by the intestate, as testified to by Daniel Geise, that she, Mrs. Garrett, would not be paid for trouble she had with him; by Harrison Eberly, that she would not be paid for the trouble she had with him; by Sarah Shultz, that I will pay you; by Elizabeth Zeller, that my mother will never be paid for trouble she had with him; and by Sarah Lebo, that if she would attend to him well, she should be well paid for it, are not sufficient, taken singly or together to establish an express contract; and that the plaintiff has therefore nothing to rely upon, but an implied contract, and which contract is rebutted and overthrown by the relations subsisting between the parties (the plaintiff being a son-in-law of defendant’s intestate), and the facts as testified to by Harrison Eberly, John Stupp and Emanuel Stoever, showing that the plaintiff lived on farm of said intestate for eight years, and that he and his family together with those employed by him in carrying on said farm, were supported and maintained out of the products and income thereof, and the plaintiff cannot recover. ’
    5. That even if the declaration made by the intestate, as testified to by Sarah Lebo, that if she, Mrs. Garrett, attended to him well, she should be well paid for it, is sufficient to establish an express contract, it relates to the future alone, and the plaintiff can recover only for services rendered thereafter.
    The court answered the points as follows :—
    “ 4. A son-in-law can prima; facie recover for the maintenance of his father-in-law, taking care of and nursing him. But that may be rebutted by showing the circumstances .of his going there and living with his family off the farm. That again may be repelled by the frequent declarations of Peter Schoch, that his daughter, Mrs. Garrett, should be well paid for her services in nursing and taking care of him in sickness.
    “ 5. The law would be so if it stood on that alone. But as the son-in-law was- not bound to render the services to the deceased ■without compensation; it is a circumstance to be taken in connection with the proof of others that Garrett was not to render the services in consideration of the advantages of living with Schoch and using his farm.”
    The court further charged :— * * *
    “ It has been decided in Pennsylvania that where a man goes to live with his son-in-law, the law does not imply that he is to remain there gratuitously, as in the ease of father and son; and by analogy where the son-in-law renders services to the father-in-law, there is no legal implication that’ it is gratuitous; on the contrary, in the absence of any circumstances, it would be presumed that he is to receive compensation. In the present ease the fact that the plaintiff with his whole family moved into the house of Peter Schoch about the year 1855, immediately after the death of Schoch’s wife, and remained there during his whole lifetime, Garrett receiving his support and that of his family mainly from the farm of Mr. Schoch, under a contract to that effect, is relied on to repel the presumption that Garrett was to have compensation for nursing, waiting upon and taking care of the decedent. The jury must judge whether under these circumstances it was understood that Garrett was to be compensated for his trouble with Schoch in addition to the advantages enumerated, or was to perform the labor, or bestow the attention gratuitously, and was to have nothing more than those advantages therefor. If such was the original contract or understanding there can be no compensation, unless there was a new bargain. You will carefully consider all that was said from time to time, as proved by the different witnesses, not merely to establish k contract from that time, but also to rebut any presumption arising from the method of living, and manner of coming together, as the law would imply a contract to pay unless repelled by circumstances. [It appears to be conceded in the argument, and is perhaps satisfactorily proved, that Mr. Schoch invited and urged his daughter and son-in-law to come and live with and keep house for him, the other daughters and sons having declined to come. Was there a contract then made for payment-? The only witness who speaks of it is Elizabeth Zeller, a daughter of the plaintiff, who says that when her grandfather asked her mother to come and keep house for him he said she should he well paid.’ ‘ He asked the other girls first, said whichever one did it should be well paid for it, and then mother promised.’ She states that this was on the day her grandmother died. Can you rely upon this as sufficient evidence of a contract ? You will bear in mind that this lady was then a young girl only about eleven years old, a daughter of the plaintiff. Nothing is said against her general veracity, hut persons of that age have but little judgment, or knowledge of dealings, may readily misunderstand or misremember. Her correctness on this subject is submitted to your careful consideration. It is an important point in the case, as on it the plaintiff relies to show a bargain for payment before he entered on the duty. He also contends that the bargain being so made and carried into full effect on his part by remaining there and keeping house for Schoch during his whole life, it was an entire contract, not completed on part of the plaintiff until the death of the intestate, and therefore the statute of limitation does not bar any part of that claim. Such, we say, is the legal effect of an entire contract. If it is of a character requiring many years to consummate, it is not barred until six years after completion. As if a man should undertake to clear off a large body of land for another under a contract to be paid on completion of the work, and he necessarily spent seven or eight years in its performance, the law would not bar his claim, until six years after it was finished. In like manner if a contract be made to keep house during the lifetime of another, the bargain would not be completed until his death, whilst if compensation was claimed on an implied contract for work and services, all of older date than six years would be barred. The jury must judge whether the .parties meant in this case that the housekeeping should continue during life.’] That you must collect from all of their acts and declarations; leaving out of view what was said as to an original contract, does the evidence of the different witnesses repel the presumption attempted to be raised; that there was to be no other compensation to Garrett than the advantage to himself and family of living on and drawing their subsistence from Schoch’s property. * * * It is very possible that the advantages derived by Mr.
    Garrett from the use of the farm, the dwelling and the support of his family and laborers, would compensate him to a great extent, if not entirely down to that period; but that and the extent of the services and the value thereof are solely for the jury.” * * *
    The verdict was for the plaintiff for $3195.83.
    The defendant removed the case to the Supreme Court and there assigned for error: —
    1-5. The rulings of the court as to the evidence.
    6. The part of the charge in brackets.
    7-8. The answers to the points.

      J. Benson and A. R. Boughter, for plaintiff in error,
    cited Smith v. Milligan, 7 Wright 107; Amey’s Appeal, 13 Id. 126.

      W. M. Derr S; Son, for defendant in error,
    cited Kidder v. Boom Co., 12 Harris 193; Gordner v. Heffley, 13 Wright 163; Smith v. Milligan, supra; Lynn v. Lynn, 5 Casey 369; Neel v. Neel, 9 P. F. Smith 347.
   The opinion of the court was delivered, October 9th 1871, by

Williams, J.

The plaintiff’s wife was the daughter of Peter Schoch, deceased, and this action was brought against the administrator of his estate to recover for the wife’s services in nursing and taking care of her father in his sickness, and keeping house for him from the spring of 1855 until his death in April 1866.

The jury have found that there was an express contract between the parties for the payment of the services rendered by the wife, and that it was entire. If, then, the case was submitted to the jury with proper instructions, and upon sufficient evidence, there was no error in the charge. The relationship between the parties was not of itself sufficient to overcome the legal presumption of a promise to pay what the services were reasonably worth; Amey’s Appeal, 13 Wright 126; and the facts in aid of the relationship, which were relied on to rebut the presumption, were fairly sub» mitted to the jury. The court said: “ It has been decided in Pennsylvania that where a man goes to live with his son-in-law the law does not imply that he is to remain there gratuitously, as in the ease of father and son: Smith v. Milligan, 7 Wright 107; and by analogy, where the son-in-law renders services to the father-in-law, there is no legal implication that it is gratuitous ; on the contrary, in the absence of any circumstances, it would be presumed that he is to receive compensation. In the present case the fact that the plaintiff, with his whole family, moved into the house of Peter Schoch about the year 1855, immediately after the death of Schoch’s wife, and remained there during his whole lifetime, receiving his support and that of his family mainly from the farm of Mr. Schoch, under a contract to that effect, is relied on to repel the presumption that he was to have compensation for nursing, waiting upon and taking care of the decedent. The jury must judge whether under these circumstances it was understood that Garrett was to be compensated for his trouble with Schoch, in addition to the advantages enumerated, or was to perform the labor, or bestow the attention gratuitously, and was to have nothing more than those advantages therefor. If such was the original contract or understanding, there can be no compensation unless there was a new bargain.”

With the same fairness the court submitted to the jury the question whether, or not, there was an express contract between the parties for the payment of the services. The court said: “ The only witness who speaks of it is Elizabeth Zeller, a daughter of the plaintiff, who says that when her grandfather asked her mother to come and keep house for him, he said, she should be well paid. He asked the other girls first; said whichever one did it should be well paid for it, and then mother promised.’ She states that this was on the day her grandmother died. Can you rely upon this as sufficient evidence of a contract ? You will bear in min'd that this lady was then a young girl, only about eleven years old, a daughter of the plaintiff. Nothing is said against her general veracity; but persons of that age have but little judgment, or knowledge of dealings — may readily misunderstand or misremomber. Her correctness is submitted to your careful consideration. It is an important point in the case, as on it the plaintiff relies to show a bargain for payment before he entered on the duty.” We see nothing in these instructions of which the plaintiff in error has any reason to complain. If the testimony of the witness was sufficient to establish an express contract, if believed, its credibility was left to the jury with proper cautions.

And so, if the jury should find that there was an express contract, the court fairly left it to them to determine from all the evidence whether the contract was entire or not. Nor were the decedent’s declarations, as recited in the defendant’s 4th and 5th points, the only evidence of the entirety of the contract. Besides these declarations, the testimony of Elizabeth Zeller, already referred to, which need not be -repeated here, has a direct bearing on the question. If the jury were satisfied from her testimony that there was an express contract for the payment of the services, could they have any doubt it was understood and intended to be entire, and that it was to continue until it was dissolved by the decedent’s death ? The court rightly instructed the jury that if they found the contract was entire, then the Statute of Limitations did not form any bar to the plaintiff’s claim.

Nor has the plaintiff any reason to complain of the instructions of the court as to the measure of compensation to which he was entitled, for the services rendered by his wife; nor of the manner in which the question was submitted to the jury. Whether the compensation should he limited and restricted to the support of the plaintiff and his family, or whether it should exceed the support drawn from the decedent’s farm, was left to the determination of the jury, under all the evidence in the cause, with the instruction, that if it was understood between the parties, that there was to be no compensation beyond the advantages derived from the farm, the jury could allow nothing, and their verdict must be in favor of the defendant.

From what we have already said, it is manifest that the evidence given by the plaintiff, was sufficient to justify the court in submitting to the jury the questions: whether there was an express contract for the payment of the services rendered by the plaintiff’s wife; whether it was understood and intended to be a continuing contract, dissolvable only by the decedent’s death; and whether the compensation was limited by, or was to exceed the support derived from the decedent’s farm ? If the wife was not to receive extra compensation for the very disagreeable services she performed for the decedent in his sickness, as the plaintiff in error contends, what mean his repeated declarations and assurances that he “would pay her for this ” — that “ she should be well satisfied,” &e. ? If the plaintiff was to receive only a.living for himself and family, then the obligation to make compensation for the wife’s services was discharged as soon as it was incurred, and her services were paid for as soon as they were rendered.

There was no error in admitting the testimony embraced in the 1st, 2d, 3d and 4th bills of exception, for the purposes for which it was received; and we discover no such error in rejecting the offer contained in the 5th bill of exception as calls for a reversal of' the judgment. The case was carefully tried by the learned judge'who presided at the trial, and for the reasons given the judgment must be affirmed.

Judgment affirmed.


text:
    Mifflintown versus Jacobs.
    1. Stocks in a corporation are not taxable for borough purposes under the Borough Act of April 3d 1851.
    2. “ All property ” in that act refers to property subject to manual occupation.
    3. Goepp v. Bethlehem, 4 Casey 249, affirmed.
    May 17th 1871,
    before Read, Agnew, Sharswood and Williams, JJ..
    Error to the Court of Common Pleas of Juniata county: No. 75, to May Term 1871.
    This was an amicable action, in which the borough of Mifflintown was plaintiff, and George Jacobs defendant.

      In a case stated, the parties agreed to the following facts:
    “ The borough of Mifflintown was originally incorporated by the legislature on the 6th day of March 1838, and afterwards, by application to the Court of Quarter Sessions of Juniata county, in December 1869, was decreed to be subject to the restrictions and possess the powers and privileges of the Genera! Borough Act of the 3d of April 1851.
    “ The defendant, George Jacobs, is the owner of a number of shares of the stock in a company incorporated for erecting a bridge over the Juniata river, at the town of Mifflin. The stock of said defendant was duly assessed by the assessor of the borough of Mifflintown for the year 1870, for state and county taxes, at the sum in the aggregate of $1750, and the plaintiff laid an assessment of one-half per cent, on the said sum of $1750, as a borough tax for the repairs of the streets, &c., in said borough for 1870, making a tax of $8.75 on said stock.
    “ The question for the court is, whether under the provisions of the several tax laws of Pennsylvania bridge stock is taxable for borough purposes or not; if the court should be of opinion that it is, judgment to be entered in favor of the plaintiff for the sum of $8.75; but if the court should be of opinion that it is not so taxable, judgment to be entered in favor of the defendant for costs.”
    The court (Graham, P. J.) entered judgment for the defendant, which, on the removal of the case to the Supreme Court by the defendant, was assigned for error.

      E. S. Doty, for plaintiff in error,
    argued that the defendant was liable for the tax under the following Acts of Assembly, viz. : The Act of 29th April 1844, § 32, Pamph. L. 497, which provides that “ all shares or stock in any institution or company, now or hereafter incorporated by or in pursuance of any law of this Commonwealth........shall be valued and assessed and subject to taxation for the purposes in this act mentioned, and for all state and county purposes whatsoever.” The Act of 3d April 1851, § 2 Pamph. L. 322, which enacts that every borough thereunder shall have power to “levy and collect annually for borough purposes any tax not exceeding one half-cent. on the dollar on the valuation assessed for county purposes as now is or. may be provided by law; all property, offices, professions and persons made taxable by the laws of this Commonwealth for county rates and levies, shall be taxable after the same manner for borough purposes.” The Act of April 25th 1850, Pamph. L. 572, which exempted money at interest for borough purposes.

      W. H Miller, for defendant in error,
    cited Goepp v. Bethlehem, 4 Cas. 249.
   The opinion of the court was delivered, October 9th 1871, by

Williams, J.

This case was well decided by the court below in favor of the defendant on the authority of Goepp v. Borough of (Bethlehem, 4 Casey 249. The question in that case was, whether, under the taxing power given by the Act of the 3d of April 1851, Pamph. L. 322, moneys, stocks and bonds are taxable for borough purposes; and it was held that the words “ all property,” in the sentence giving the power of taxation, refer solely to such an estate or interest as one may have in lands or goods subject to manual occupation, and consequently that moneys, &c., are not taxable. The very question presented by the record in this case was, therefore, decided in that, though it is true that the liability of stocks to taxation for borough purposes was not specially discussed by the judge who delivered the opinion. But the judgment entered in the ease shows that stocks were regarded by the court as equally exempt from taxation as moneys or bonds. We need not repeat the argument in support of the construction given to the words “ all property ” as found in the act. It is sufficient to say that it must have expressed the legislative intention, and the will of the people, or the act as thus interpreted, would not have remained unchanged for so long á period. The construction given to it has become fixed and settled, and it is now too late to attempt to change it.

Judgment affirmed.


author: Agnew, J.

text:
    Craig versus Brendel.
    1. Craig purchased land at sheriff’s sale under a judgment against Brendel, the title being in Brendel’s wife. Craig alleging the land belonged to Brendel, brought ejectment for it against Brendel, and died before the trial. Brendel was a competent witness to prove that his wife purchased with her own money.
    2. Brendel was not a party in interest, and was called to testify to no thing, contract or transaction, to which he and Craig were parties.
    3. Not being called to testify against his wife, he was not disqualified by the Act of April 15th 1869.
    4. Karns v. Tanner, 16 P. F. Smith 297, distinguished.
    May 17th 1871.
    Before Bead, Agnew, Sharswood and Williams, JJ.'
    Error to the Court of Common Pleas of Lebanon county: No. 83, to May Term 1871.
    This was an action of ejectment, commenced November 2d 1869, by John W. Craig against Frederick L. Brendel, for a tract of five acres of land, &e. The defendant pleaded “not guilty.”
    On the 14th of November 1870, the death of the plaintiff was suggested, and J. Watson Craig and others, his devisees, substituted.
    On the trial, January 9th 1871, before Pearson, P. J., the following facts were proved.

      On the 23d of May 1866, John W. Craig recovered a judgment against Brendel for $1785, on which he issued an execution and levied on the land in dispute, which was sold by the sheriff to the plaintiff and the deed acknowledged November 5th 1868.
    The defence was that the property belonged to Elizabeth Brendel, the wife of the defendant, having been conveyed to her March 21st 1866.
    In order to establish that the purchase-money of the property was the wife’s, it was proposed to examine the defendant, her husband, as a witness. He was objected to by the plantiffs as incompetent and not made competent by the Act of April 15th 1869.
    The witness was admitted and a bill of exceptions sealed. The defendant testified as to the ownership of the purchase-money by his wife, and gave other evidence on the same point.
    The verdict was for the defendant.
    The plaintiffs removed the case to the Supreme Court. The only error assigned there was, admitting the defendant to testify.

      A. R. Boughter and J. McD. Sharpe, for plaintiffs in error,
    cited Seip v. Storch, 2 P. F. Smith 210; Act of April 15th 1869, Pamph. L. 30 Purd. 1560; Act of April 9th 1870, Pamph. L. 44, Purd. 1605.

      J. Funck, for defendant in error, referred to Act of 1869.
   The opinion of the court was delivered, October 9th 1871, by

Agnew, J.

In the case of S. D. Karns v. F. E. Tanner et al, 16 P. F. Smith 297, we had occasion to consider the meaning of the proviso to the Act of 15th April 1869, allowing parties in interest to be witnesses, which excepts actions by and against executors, administrators and guardians, and those where the assignor of the thing or contract in action is dead. The conclusion of the reasoning in the opinion was in these words: “ The true spirit of the proviso then seems to be, that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or by that of the law, to another who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in.the lifetime of the adverse party, whose lips are now closed.” Though that case was unknown to the counsel of the plaintiff in error here, their argument runs in the current of its reasonings. But the cases themselves are dissimilar and distinguishable. Karns v. Tanner, &c., was the case of a lease of oil territory from E. Parker to James P. Tanner, with a provision for forfeiture in case of an abandonment or of a want of diligence in prosecuting operations. Parker, believing the lease to be forfeited, leased again to Earns & Co., who took possession. Tanner brought ejectment against Parker and Karns & Co., but having died, his title to the lease was sold at sheriff’s sale and bought by Mrs. Frances E. Tanner, who was substituted as plaintiff. The question at the trial was on the forfeiture, and Parker, one of the defendants, was called as a witness to prove facts concerning the alleged abandonment occurring in the lifetime of Tanner, his lessee, and the assignor in law of Mrs. F. S. Tanner. The subject in controversy being the title of Tanner under the lease from Parker, it was held that Parker was incompetent to testify as to matters relating to the lease happening in Tanner’s lifetime. It will he observed that there Parker and Tanner stood in the relation of opposite parties in the same matter or contract of lease, and also in relation to the thing itself which was the subject of their contract or lease. Parker therefore occupied a vantage ground when called to testify to matters which might be known only to Tanner and himself, and which Mrs. Tanner, the assignee of the title, could not know, so as to testify to them. Death had sealed Tanner’s lips, and Parker could testify without contradiction. But the present case is essentially different. While it may be considered as true that John Craig, the devisor of the plaintiffs, is their assignor in law, according to Tanner v. Karns; yet Frederick L. Brendel, the defendant here, who was offered as the witness, does not stand as the party opposite to them in the thing or transaction which is the subject of the controversy in this'suit. The opposite party here is Mrs. Brendel, who claims in her own right, and not by any privity with Frederick L., her husband. John Craig bought Frederick L. Brendel’s title at sheriff’s sale. In this suit F. L. Brendel does not dispute the sheriff’s sale or the title of John Craig. He sets up no title in or for himself. It is the title of Mrs. Brendel that is the subject of the contest, and this is wholly adverse to any title of F. L. Brendel, her husband. She bought the property, and, as she alleges, paid for it with her own money, and the deed was made to her. It is obvious F. L. Brendel is called to testify to no thing, contract or transaction to which he and the deceased John Craig were parties. He is not asked to speak of things pertaining to their affairs, which might be known to Craig and himself, and as to which Craig, if alive, might contradict him. He is called to testify to matters to which he himself was no party in interest, and as to which he would have to testify as a stranger to the transaction. The only relation he bears to the case is that of husband of the contestant, the owner of the alleged title. But that relation is not within the proviso of the Act of 1869, for he is not called to testify against his wife. He is not disqualified as a husband; and being no party to the thing or contract in action, which is the subject of the contest, he is not within the proviso which excludes the living party to that thing or subject, when the opposite party to it is dead.

The judgment is therefore affirmed.


text:
    First National Bank of Bellefonte versus McManigle and Brown.
    1. In a suit by a bank against endorsers on a discounted note, tlie defendants gave evidence that the maker had remitted money by mail directed to the cashier of the bank, in part payment of a note, of which this was a renewal. If the bank had authorized the sending by mail at its risk, this would be primá facie, and if not rebutted, sufficient evidence of payment.
    2. The bank not having requested the money to be sent by mail, the maker took the risk of so sending it.
    3. The evidence was that the money was put into an envelope directed to the cashier, the envelope was then enclosed in a registered envelope and directed to the postmaster at Bellefonte, where the bank was located, and sent by mail. There was no evidence that the letter had been received by the postmaster at Bellefonte; the cashier was a witness for plaintiff and was not asked whether the money had been received. Held, not sufficient evidence of payment to submit to the jury.
    4. The two postmasters were the agents of the maker for the transmission of the money.
    5. The note in suit and a previous note in' renewal wore of the same ámount as the original note on which the payment was alleged to have been made; this was an admission by the parties that the money remitted had not been received by the bank.
    6. The first note fell due April 8 th, the note in suit was dated in July; the maker testified that there was no intermediate renewal: the cashier testified that there had been a renewal April 8th, to fall due July 9th. On that day the maker wrote to the cashier, enclosing the note in suit, saying he could not reduce it, and promising to pay all when the note sent fell due. This was evidence as part of res gesta to show renewal of first note, and that the note in suit was a renewal of the latter.
    7. There is no presumption of law, that a letter mailed to one at the place he usually receives his letters, was received by him.
    8. Tanner v. Hughes, 3 P. F. Smith 289, remarked on.
    May 17th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Mifflin county: Of May Term 1871, No. 102.
    The First National Bank of Bellefonte, on the 22d of March 1869, brought an action of debt against William A. McManigle and James M. Brown as endorsers of a note drawn by A. F. Alexander, for $500, dated July 9th 1868, and payable in 90 days: the note had been discounted by the plaintiff, who was the holder.
    On the trial before Woods, P. J., January 5th 1870, the plaintiff gave the note and protest in evidence and rested.
    The defendants then offered to prove that a note of $500 was given by A. F. Alexander, endorsed by defendants and discounted at the bank of plaintiff. That before this note matured A. F. Alexander and plaintiff made an arrangement for its renewal. That the cashier sent by mail a letter to A. F. Alexander, the principal debtor, enclosing in it a blank note for $200, with instructions to get that note executed and returned on or before the maturity of the note, to wit, April 8th 1868, with instructions to remit the $300, as a part payment of the note, which at that time would mature, together with the discount. A. F. Alexander, on receipt of the letter, signed it and got it endorsed as requested, and enclosed it, together with the discount and $200 in money, directed to the plaintiff, pursuant to the instructions given him by a registered letter, mailed at Milroy for the purpose. That after-wards, under a mistaken idea that he had no defence, and pursuant to the advice of counsel that he had no defence so far as the $300 is concerned, renewed the note by this note for which this suit is brought.
    This offered for the purpose of showing payment and set-off.
    The plaintiff objected to the offer: it was admitted and a bill of exceptions sealed.
    A. F. Alexander testified: “ Mr. Humes told me he could discount a note for me with these endorsers. I went to Bellefonte with the defendants as endorsers, and the bank discounted it. Just before the note became due I wrote to see if they would renew the note. I got an answer by mail, dated April 4th 1868.” (This letter read.) “ I had the note enclosed in the letter executed. On the 7th of April 1868, I took the note executed and $306.37 to the post-office at Milroy to Mr. Coplin the postmaster. He put the money and note in a registered package envelope, directed to the postmaster at Bellefonte. I done this in pursuance of the instructions I received in the letter. The money and note was sent to Mr. Harris, cashier.”
    W. V. B. Coplin testified :—
    “ On the 7th April 1868, Mr. Alexander gave me $306.37, together with a note of $200 to be sent to J. P. Harris, cashier First National Bank, Bellefonte. I enclosed the'money and note in an ordinary envelope and directed it to J. P. Harris, cashier First National Bank, Bellefonte. I then enclosed that in a registered envelope directed to the postmaster at Bellefonte. I was at that time the postmaster at Milroy. I placed it in the mail-bag for Bellefonte.”
    A. F. Alexander further testified:—

      “ This note is a renewal of the original note for the whole amount. This is the first renewal of the note due 1st April 1868. I do not remember of any other renewal.”
    The defendants closed.
    James P. Harris testified for the plaintiff:—
    “I was cashier of the First National Bank, Bellefonte, in January 1868. We discounted a note in January for Mr. Alexander at 90 days — fell due April 8th 1868. I received this letter from Mr. Alexander, dated April 2d 1868.” [Letter read, but not given in paper-hook.]
    “ I enclosed him a note in pursuance of the request in this letter. The note went to protest April 9th 1868. On June 2d I received a note from Mr. Alexander, ante-dated to April 8th 1868, which matured July 9th 1868. This was to relieve the one falling due April 8th 1868. On July 9th, I received this letter, dated July 9th 1868, from Mr. Alexander.”
    The plaintiff offered to read the letter, viz.:
    “Milroy, July 9th 1868.
    “ Mr. Harris: Dear Sir: — I am compelled to send you my note, which is now due, with but the discount. I have made every effort to raise 20 per cent., but could not make it. I have money out but cannot get it now. Please renew, and at the expiration of 90 days I will try and pay the whole amount. By so doing you will very much oblige. A. E. Alexander.”
    The defendants objected to the offer; it was rejected and a bill of exceptions sealed.
    Witness said: “I received the note in suit to relieve the note falling due the 10th July 1868.”
    The plaintiff’s points were:—
    1. Defendants have showed no payment of this note in suit or any part thereof, and plaintiff is entitled to the verdict for the whole amount claimed.
    4. If the jury believe that the money was sent, as testified to, yet there is no evidence it came to hands of plaintiff, and plaintiff is entitled to recover.
    5. There is no evidence that any money was directed or sent to the plaintiff at any time.
    'The court charged: * * *
    “ The defendants allege that the drawer, Mr. Alexander, had sent to the bank by mail from Milroy $300, which should have been credited on the note for which this one was given as a renewal. To establish this allegation they have called Mr. Alexander, the drawer, and Mr. Coplin, the postmaster, who both testify this money was sent in a registered letter in the usual way. The plaintiff never gave credit for this amount to Mr. Alexander, and his endorsers now ask for this credit. The plaintiff resists this credit, alleging that if the money was sent as alleged, it was never received by the bank. [None of the officers of the bank have been called to show whether it was or was not received. Neither has the postmaster at Bellefonte been examined to show whether it ever came to that office or not. If the bank did not actually receive this money the defendants would not be entitled to credit for it in this action. When money is sent by mail it is always at the risk of the sender unless his creditor has directed him to send it in this manner. The money was sent by mail to the bank. Was it received ? If it was, the defendants would be entitled to this credit. If it was not received, then the plaintiff would be entitled to a verdict for the whole amount of the claim. This is the only question to be submitted to you.”]
    The court answered the plaintiff’s points thus:—
    “ 1. This is so, unless the bank did actually receive the money sent by mail.
    “ 4. There is no positive evidence that the bank received the money so sent. There is evidence that it was put in the mail, at Milroy, in a registered envelope, for the plaintiff. Whether it was actually received by the bank we submit as a question of fact for you to find.
    “ 5. There was evidence that the money was sent in a registered letter in the usual way.”
    The verdict was for the plaintiff for $206.90.
    The plaintiff took a writ of error and assigned for error—
    1, 2. The rulings as to the evidence.
    3, 4, 5. The answers to the points.
    6. The part of the charge in brackets.

      JElder and Reed, for plaintiff in error.

      Alexander and Woods, for defendants in error.
   The opinion of .the court was delivered, October 30th 1871, by

Williams, J.

Under the defence set up in this case, the bur-then of showing that the note in suit was given in renewal of a previous note for the same amount, on which the maker had paid three hundred dollars, was on the defendants. If the bank authorized the maker 'to send the money by mail at its risk, then proof that it was enclosed in a letter properly directed and put into the post-office would be primfi facie, and, if not rebutted, sufficient evidence of payment. But if the bank did not request or authorize it to be sent by post, then the maker, in sending it by mail, took upon himself the risk of its loss by the way, and if it was not received by the bank, its deposit in the post-office was no payment. We have not been furnished with a. copy of the cashier’s letter of the 4th of April 1868, authorizing a renewal of the note for the residue on payment of a part thereof, but from the answers of the court to the plaintiff’s second and third points, we are perhaps bound to presume that it did not authorize the maker to remit the money by mail at the risk of the bank. If so, was proof that the money was enclosed by the postmaster at Milroy in an envelope directed to the cashier of the bank at Bellefonte, and then enclosed in a registered envelope directed to the postmaster of Bellefonte,' and deposited in the mail-bag for that place, sufficient evidence to justify the jury in finding that the bank had received it ? There is no presumption of law that a letter, mailed to one at the place he usually receives his letters, was received by him. A strong probability of its receipt may arise, as was said in Tanner v. Hughes, 8 P. F. Smith 289, and the fact of its deposit in the mail-hag in connection with other circumstances may be sufficient to warrant the court in referring the question of its receipt to the determination of the jury. The only other possible circumstance in this case tending to show that the bank received the money, is the fact that the cashier, who was examined as a witness on behalf of the hank, was not asked whether he had received it or not. But if the evidence given by the defendants did not make out a primá facie case of payment, the plaintiff was not bound to prove a negative. If the letter enclosing the money had been mailed directly to the cashier, the jury might possibly have been warranted in finding that it was received by the bank. But it was not mailed directly to the cashier, but to the postmaster at Bellefonte, and it could not have been received by the bank, except at the hands of the postmaster or one of his deputies ; and, under the regulations of the post-office department, it would not have been received by the bank without the receipt of the cashier in a book provided by the department, and kept by the postmaster for that purpose. If then the bank received the money, the defendants had it in their power to show its receipt not only by the postmaster at Bellefonte, but by the production of the cashier’s receipt: and they were bound to give the best evidence in their power, and not leave to conjecture a fact which, if true, was susceptible of direct and positive proof. Under the circumstances, it is clear that the evidence of the bank’s receipt of the money was not sufficient to justify the court in submitting the question to the jury. The maker of the note virtually constituted the postmaster at Milroy and the postmaster at Bellefonte his agents for the transmission of the money, and he was bound to call and examine the latter before he had the right to ask the jury to find that the hank had received it. As it was, the jury were left to infer from the deposit of the registered letter at Milroy, in the mail-bag for Bellefonte, its receipt by the postmaster of that place, and his delivery of the letter enclosed in the registered envelope to the cashier of the bank to whom it was addressed. They were allowed to make this double inference, and to find that the bank had received the money not only without any direct proof of the fact, when tHe means of positive proof were in the defendant’s power, but in the face of the fact that the maker had subsequently given, and the defendants had endorsed two notes of the same amount in renewal of the note on which the money sent by mail was to be applied. The giving of the renewed notes was tantamount to an admission that the money had not been received by the bank, and there was no evidence tending to rebut the admission. The court was therefore in error in submitting the question of its receipt to the determination of the jury. The evidence embraced in the first offer-was properly received. It was a link in the chain of evidence showing payment. But Alexander’s letter to the cashier of the 9th of July 1868, referred to in the second assignment, was improperly rejected. It ought to have been received in connection with the testimony of the cashier as a part of the res gestee, and to show that the note in suit was not the first renewal of the note which fell due on the 9th of April Í868, as testified to by Mr. Alexander on his cross-examination. The learned judge seems to have misapprehended the purpose of the offer. It was not offered for the purpose of showing that Alexander gave the note of the 9th of July, but to show that the note which fell due on the 9th of April was renewed by another note of that date, in renewal of which the note of the 9th of July was given.

What we have said disposes of all the assignments except the fifth, in which we discover no error; but for the errors' in rejecting the letter of the 9th of July 1868, and in submitting the question of the bank’s receipt of the money remitted by mail to the cashier, the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.


text:
    Fehr versus The Schuylkill Navigation Co.
    1. The act of incorporation of the Schuylkill Navigation Oo. provides a mode which must be strictly pursued for the redress of all injuries, direct or remote, from constructing dams or other devices authorized by the act: a common-law action will not lie for such injuries. , •
    2. The company have the right to increase the height of their dams when necessary for improving their navigation.
    3. A common-law remedy will lie for the abuse of their privileges or for a neglect of their duties.
    4. A dam of the company was so filled with material brought into it from above, as to impede its navigation; they put strips on the dam which raised the water, and, as plaintiff alleged, caused it to overflow his land. The injury being from the strips, the plaintiff's remedy was only under the charter.
    5. Where the injury arises from an authorized act necessary to accomplish the purpose of the charter, a common-law action for the injury will not lie, unless it be clearly shown that the injury was superinduced by the gross negligence of the company. Whether such negligence would be a sufficiently proximate cause to ground an action, Quaere?

    6. If the injury should arise directly from the company negligently permitting the material to accumulate in the dam, the plaintiff would have a cause of action.
    7. _ The company could not raise the dam so as to injure the land from motives of economy, unless the expense of cleaning it were excessive and unreasonable, when they might raise the dam, paying damages under their charter for the injury. Per Peárson, P. J.
    8. Schuylkill Nav. Co. v. McDonough, 9 Casey 73, distinguished.

      May 18th 1871.
    Before Read, A&new, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lebanon county: Of May Term 1871, No. 35.
    This was an action on the case commenced in Schuylkill county, December 28th 1864, by Morgan Eehr against The President, &c., of the Schuylkill Navigation Company.
    The declaration contained three counts.
    The first charged that the defendants, by a dam or causeway, did so obstruct and raise the water of the Schuylkill river as to overflow a tract of land of the plaintiff lying near the river as to injure the land and the crops growing on it.
    The second charged, that the defendants had theretofore built a dam across the river, for the purpose of using the water for artificial navigation, and that they so negligently and carelessly kept the dam “ as to cause the coal-dirt, earth, sand, stones and other debris and materials which from time.to time were flooded, washed and carried down said river to lodge and stay in the river and clog up ” its natural channel, and thus obstructed the natural flow of the water, that was greatly raised above the natural channel and original bed of the river, so that the water overflowed the plaintiff’s land, soaked through its soil and destroyed the crops growing on it.
    The third charged, that the defendants obstructed the flow of the water of the river and caused the bed of the river to fill up with earth and other debris, and suffered the earth, &c., to remain and continue in the channel and thereby caused the water of the river to rise above its natural banks and flood the plaintiff’s land and spoil it, &c.
    By the Act of March 8th 1815, incorporating the Schuylkill Navigation Company and its supplements, they were authorized to make a slack-water navigation in the Schuylkill river, and for that purpose to enlarge or deepen the river in any place and to set up any dam or “ other device whatsoever, * * * so as to admit a safe and easy passage for loaded boats,” &c. If the owners of land injured by the works could not agree as to the amount of damage sustained or upon persons to assess it, the Court of Common Pleas of the proper county were to award a venire of disinterested men to ascertain and report to the court the damages sustained, with the right to either party to appeal to the court within thirty days after filing the report.
    On the 12th of February 1869, the defendants removed the ease into the Court of Common Pleas of Lebanon county, under the Act of April 14th 1834. It was there tried before Pearson, P. J., November 14th 1870.
    Plaintiff testified, that his land' was near the canal, separated from it by a road under which is a culvert (with which the defendants had nothing to do), intended to drain his land into the river near a dam built by tbe company for tbe purposes of their navigation; much coal-dirt, sand, stones, &c., were carried into the dam from higher up the river, so that during the years 1860, 3861, 1862, there was not left depth sufficient to float the boats. In order to increase the depth of the channel so as to float the boats, the company put strips called “splash-boards,” from 6 to 10 inches high on the breast of the dam, which caused the water to flow back through the culvert on to the plaintiff’s land and did him much damage; when there is a rise in the river the strips are taken off. The witness said, “ The back flow of the water occasioned by putting on the strips is what I complain of as injuring my property.”
    He called a number of witnesses who testified to the same effect. He and his witnesses testified also that the dam was cleaned regularly ; that the filling would generally occur after high freshets, and they cleaned it as soon as they could afterwards.
    The defendants gave evidence that the plaintiff’s land was overflowed only in high freshets; that the wetness of his land arose from springs on it, and that the water would have flowed off if the culvert under the road had been kept open. They gave evidence that they cleaned the dam whenever it was necessary ; they kept five dredging-machines for the purpose, and had from twenty to fifty men employed from early in the spring until late in the fall; the dirt, which came from mines above the head of navigation, had much increased of latter years; they had every year to increase the labor on the canal to keep it in order; the labor was more than double what it was in 1850; the machines were usually worked in the spring, but were ready at all times to use when necessary.
    Points of the respective parties with their answers : —
    Plaintiff’s points:
    2. It was the duty of the Schuylkill Navigation Company to keep their dam No. 11 clear for the purposes of a canal and slack-water navigation, and this duty is implied in the grant of their franchise; and thereupon any damages resulting from such neglect cannot be regarded as legitimately resulting from the construction of the dam, but from neglect and improper management after the same had been constructed.
    Answer: “It is the duty of the canal company to keep its dams and canal clear of dirt and debris as far as practicable, and if through neglect so to do the land of plaintiff was overflowed and injured, the company would be responsible therefor. But it must appear from the evidence that plaintiff’s land was injured from that cause.”
    3. The defendant had no right to raise its dam No. 11 by means of strips or otherwise for the purpose of making the same navigable, if such raising became necessary in part or in whole by the neglect of the defendant to keep the said dam clear and free from coal-dirt and debris, and therefore any damage occasioned thereby to plaintiff resulting from thus increasing the height of the water in the dam and causing the same to flow into, upon and through the land of plaintiff may be recovered in this suit.
    Answer: “ There is no complaint in the plaintiff’s narr. of any injury done to the land described by reason of putting on the strips or splash-boards, and thereby increasing the height of the dam, and if so complained of this is not the proper remedy, but the party injured must proceed, under the statute. The complaint urged is that in consequence of negligently suffering the dam- to be filled up the defendant was obliged to raise the dam. But the injury from the debris is too remote, it is the causa causata, and furnishes no ground of action; the injury being the raising of the water by the splash-boards, or strips, not from the debris.”
    Defendant’s points :—
    1. If the defendant in consequence of increased mining operations carried on above their dam, found it impossible to keep it clear of sand, coal-dust and other debris, washed into it, by every rise of water, for navigable purposes, it had a right under its charter to put on strips on the breast of the dam, and the plaintiff, if injured thereby, has his remedy under the statute, and the common-law action resorted to, does not lie.
    2. If the defendant, in consequence of increased mining operations carried on above its dam during the last fifteen years, found it inconvenient to keep the dam clear of coal-dust, sand and other debris, for navigable purposes continually washed into it by every rise of water, it had a right under its charter to put on the strips spoken of on the breast of the dam, and the remedy of the plaintiff if injured thereby, lies under the statute, and this form of action does not lie. '
    Answer: “ These points may he answered together. If it was found ‘ impossible ’ to keep the debris out of defendant’s dam it had a right to increase the height thereof permanently or temporarily, so as to keep open the navigation at all times, as it was required to do by its charter. If merely ‘inconvenient ’ we would doubt it having such right, unless the Acts of Assembly leave it to the discretion of the corporation to change the form of the structure on account of ‘ inconvenience.’ As a general rule such accumulations, when possible to be removed, should be taken away rather than unnecessarily impede the navigation, or injure the riparian owners.”
    8. If the defendant, for reasons beyond its control during the last fifteen years, found that their dam was filling up with coal-dust, sand and other debris so as to impede the navigation, and it found as a matter of economy that it was more advantageous to the •company to appropriate an additional water privilege under its charter rather than keep many men employed in cleaning it all the time, it had the right to do so, and the plaintiff must resort to his statutory remedy to recover whatever damages he may have sustained, if any, and this form of action cannot be sustained; and under the evidence it does appear that this .water privilege was appropriated.
    Answer: “ If by reason of matters entirely beyond the defendant’s control the dam filled up with debris which could not be removed so quickly after the numerous freshets as to keep the navigation in order, we think that it had the right to raise its dam permanently or temporarily to meet the exigency. It could not from mere motives of economy, unless the increased expense was unreasonable. If great and excessive and unreasonable it might raise the dam, and thereby occupy an additional portion of the public domain, paying damages under its charter to all persons injured in their property or rights. We conceive that the statutory remedy is the only legal and proper one for an injury caused by an increase of the height of the dam, and that a common-law action will not lie in such cases where the right exercised comes within its charter power.”
    The- court charged: “ * * * [As we understand the evidence the defendant permanently raised its dam during the whole boating season by means of strips, and if any injury was done to plaintiff’s land it was by reason of such increased structure, also from the increased height of the towing-path, neither of which acts are complained of in the narr. Probably they could not be with success, as for such increase in the height of the dam the plaintiff had ample remedy by proceeding under the Act of Assembly to have his damage assessed.] [For every increase in the height of the dam, or elevation of the water in the canal, a new petition for damages can be presented by the property-owner, viewers appointed, and damages awarded in proportion to the injury,] the public at the same time having the benefit of the navigation. But if a common-law action can be sustained, although the injury to the lafid may amount but to a few dollars, yet successive suits may be pursued until the defendant is obliged to reduce the dam, and thereby the public as well as the corporation be -irreparably injured. Redress in damages is all.that should be allowed in such cases, and that should be sought in the mode pointed out by the statute, so long as the company-does not increase its dam beyond what is required, or use its privileges of obstructing the stream for purposes not contemplated or authorized by the law. [We do not see that the second and third counts of the narr. are sustained by any evidence in the case], and the first is sufficiently met by the authority conferred on the corporation by law. There is no complaint of the water being raised by the strips or splash-boards, and if complained of, it would be sufficiently met by showing, as has been done, that they were necessary at all times of low water, whether the dam had any debris in it or not; were kept on at all times, except in high water; and are that kind of permanent increase to the dam that redress would have to be sought under the statute. [The increase by the strips cannot support this suit, because not complained of in the narr., and in our opinion would not furnish a remedy by a common-law action had they been described. It is argued that the debris coming in superinduces the necessity for the strips on the dam, as it sometimes raises six inches or more in the channel. As it does not raise the water, which is done by the strips, the injury from the debris is too remote; it is the cause of the cause.~\ But all of the witnesses agree that the debris cannot be kept out, and the almost undisputed evidence is that it is removed as fast as it can be done by the company. This, with the answers to the points, will meet and cover every legal question in the case.”
    The verdict was for the defendants.
    Having removed the record to the Supreme Court, the plaintiff assigned for error:
    1-4. The parts of the charge in brackets.
    5. Not submitting to the jury the question as to the cause of the injury.
    6-8. The answers to the plaintiff’s 2d and 8d ■ and the defendant’s 1st and 2d points.
    No error was assigned to the defendant’s 3d point. '

      G. Weidman and G. F. Farquhar, for plaintiff in error.
    The remedies against the company, provided by the act of incorporation, are for injuries arising from the construction of the dam as a part of the navigable highway; and do not exclude the common-law remedies for injuries arising from an abuse of the privileges granted, or for the neglect of its duties: Schuylkill Nav. Co. v. McDonough, 9 Casey 73; Erie v. Schwingle, 10 Harris 388. A cause is not too remote to be looked to merely because it produces the damage by means of an intermediate agency; Pittsburg City v. Grier, 10 Harris 65; Siordet v. Hall, 4 Bingham 607.

      T. R. Bannan (with whom was J. Funde) for defendant in error,
    referred to act of inebrnoration and Schuylkill Nav. Co. v. McDonough, supra.

   The opinion of the court was delivered, July 3d 1872, by

Williams, J.

It is conceded that the company is not responsible in a common-law action, for direct or remote injuries arising' from the construction of dams, locks and other devices which, by the act of incorporation and its supplements, it is authorized to make for the improvement of the navigation of the river. The charter provides a mode for the redress of all such injuries, which must be strictly pursued. Under the powers which it confers, the company has the right not only to construct dams, but to increase their height, when necessary, for the improvement of the navigable highway; and it mpy do this by means of “ strips or splash-boards,” as well as by more permanent structures. The plaintiff then has no remedy in this form of action for the injury complained of, if it was occasioned by the lawful and proper exercise of the powers conferred on the company, in order to enable it “to make a complete slack-water navigation.” But the remedies against the company, provided by the act of incorporation, for injuries occasioned by the construction of its works, do not exclude the common-law remedies for injuries arising from the abuse of its privileges, or from the neglect of its duties; and if the injury in this case arose from the negligence of the company in suffering the pool of the dam to be filled with sand, coal-dirt, &c., as alleged in the second and third counts of the declaration, then the plaintiff may maintain this action and recover the damages he has sustained by such neglect of duty. But, unhappily for the plaintiff, there is no evidence that the injury to his land was occasioned by the deposits of sand, coal-dirt, and other debris in the pool of the dam, as averred in the declaration. On the contrary, the plaintiff, who was examined as a witness in his own behalf, said : “ The back flow of the water, occasioned by putting on the strips, is what I complain of as injuring my property.” But under the powers conferred by its charter the company had the right, as already suggested, to put the strips on the dam for the purpose of increasing its height, if necessary, in order to render the river navigable; and if the plaintiff’s land was injured by the back flow of the water occasioned thereby, his only remedy for the injury is the statutory one provided by the charter. But it is strenuously contended that the company is liable in this form of action for the injury caused by the use of the strips'or splash-boards, because there would have been no necessity or occasion to increase the height of the dam if the company had not been guilty of negligence in suffering the pool to be filled with the deposits of sand and coal-dirt. The court below seems to have thought, that if the company was obliged to raise the dam in consequence of negligently suffering the pool to be filled with the debris brought down by the current, this action could not be maintained, because the negligence in suffering the pool to be filled up was too remote a cause of the injury to furnish any ground of action. But without deciding this question, we are clearly of the opinion that there was no sufficient evidence of any such negligence on the part of the company as would justify the jury in finding that it had exceeded the powers, or abused the privileges conferred by its charter, in making use of the strips or splash-boards to increase the height of the dam in order to render the river navigable when the water is low — and if not, then it is clear that this action will not lie. The evidence shows that sand, coal-dirt and other debris, in greater or less quantities, are brought down and deposited in the pool when the river is high; and that the company employs five dredging-machines, worked by forty of fifty men, which are used every spring before the opening of navigation, and kept ready for use at all times when necessary, for the purpose of keeping the channel open and the pools clear of the obstructions arising from these deposits. In no single instance has it been shown that the company was guilty of negligence in not removing the obstructions as soon as it was reasonably practicable. The mere fact that deposits of dirt are continually made when the river is high, and that they have increased to such an extent within the last ten or fifteen years as to render an increase of the height of the dam necessary for the safe and convenient navigation of the river when the water is low, constitutes no such evidence of negligence in keeping the channel clear as would warrant the jury in finding that the company had abused its powers in making use of the strips or splash-boards for the purpose of raising the dam. Where the injury arises from an act which is authorized by the charter, if necessary to accomplish the purpose for which it was granted, no common-law action can be maintained for its redress, unless it is clearly shown that the necessity for such act was superinduced by the gross negligence of the company, even if such negligence can be regarded as a sufficiently proximate cause of the injury to furnish a ground of action. But if the evidence had shown that the plaintiff’s land was injured by the defendant’s negligence in suffering the sand and coal-dirt to accumulate in the pool and thereby to raise the water so as to overflow the land, as alleged in the declaration, then the plaintiff would have had the right to maintain the action, and so the court in effect charged the jury. In answering the plaintiff’s second point the court said: “ It is the duty of the canal company to keep its dams and canal clear of dirt and debris as far as practicable, and if through neglect so to do the land of the plaintiff was overflowed and injured the company would be responsible therefor. But it must appear from the evidence that plaintiff’s land was injured from that cause.” Though this answer is assigned as error, we see nothing in it of which the plaintiff has any reason to complain ; and, as will be seen from what we have already said, we entirely concur with the learned judge in saying that if it was found impossible to keep the debris out of the defendant’s dam, it had a right to increase permanently or temporarily the height thereof, so as to keep open the navigation at all times as it was required to do by its charter. But if by reason of matters entirely beyond the defendant’s control, the dam filled up with debris which could not be removed so quickly after the numerous freshets as to keep the navigation in order,.it had the right to raise its dam permanently or temporarily to meet the exigency. It could not from mere motives of economy, unless the increased expense was unreasonable. If great and excessive and unreasonable, it might raise the dam, and thereby occupy an additional portion of the public domain, paying damages, under its charter, to all persons injured in their property or rights. We regard this instruction as a correct exposition of the rights and obligations of the company, under its charter, as applicable to the circumstances of this case. There is a wide difference between the present case and that of The Schuylkill Navigation Company v. McDonough, 9 Casey 73, upon which the plaintiff relies in support of this action. There the company had abandoned the use of the pool above the dam, and suffered it to be filled up with coal-dirt, &c., which raised the water of the Schuylkill river and of Mill creek so that it flowed into the cellar of the plaintiff below, rendering it wet and unwholesome. As the company had no right to convert the pool into a mere receptacle of the dirt washed down from the collieries above to the injury of the riparian inhabitants, it was clearly guilty of negligence in not removing it. But here there is no evidence that the injury complained of was caused by the defendant’s negligence. The use of the pool was not abandoned by the company, nor was it suffered to be filled up with dirt so as to raise the water of the river and cause it to overflow the plaintiff’s land. If his land was overflowed, it was the direct result of the defendant’s act in raising the dam. As the company had the undoubted right to raise the dam for the purpose of rendering the river navigable, the remedy provided by the charter is the only legal and proper one for the injury occasioned thereby, and as the case was tried on this principle the judgment must be affirmed.

Judgment affirmed.