text:
    Whiting & Co. versus Lake.
    1. "W. went into possession of certain premises under H., and held over after the termination of the lease of H. Held, that under the provisions of the Act of March 21st 1772, the goods of W. were liable to distress for rent due by H., before as well as after the termination of the lease, unless such possession was continued under the authority of the owner of the property.
    2. It is not competent to prove an agent’s authority by the declarations of the agent. Nor are his acts done without the knowledge or authority of his principal, any evidence of his agency.
    October 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. G-reen, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 4.
    Replevin by N. Whiting & Co. against Bennett Lake, bailiff of Mrs. Simpson, wife of Bishop Simpson, for certain goods levied on by Lake, for rent of a property on Penn street, Pittsburgh.
    The building is connected with another four-storied building, the upper rooms being reached by a staircase common to both houses. The two lower rooms are occupied as stores. One of the buildings belongs to Mrs. Morrison, a sister of Mrs. Simpson, who had employed Dr. Pennington, as agent. Mrs. Simpson also authorized Dr. Pennington to rent the rooms on the second and fourth floors of her building, but retained control of the store-room herself. By a written lease, in which her husband joined, she let the storeroom to Henkle & Brother, for a term of one year, from April 1st 1873, with the privilege of three years, and they occupied the premises until the spring of 1875. Some time after the first of January,*-1875, Henkle & Bro. discontinued business, and N. Whiting & Co. took possession of the premises under them.
    At the time plaintiffs took possession of the premises, there was posted in the window of the store-room, “ To Let. Inquire at 177 Penn avenue, or of D. E. Pennington, room 7, up stairs.” Plaintiffs, desiring to continue auction sales on the premises during the first and second weeks in April, called, on the 30th of March as directed in the “To Let” notice, on James Yernor, a brother of. Mrs. Simpson, at No. 177 Penn avenue, one of the parties to whom they were, directed by the said notice. He declined to rent the store in the way proposed, but told plaintiffs to see Dr. Pennington, who might make the arrangement. They saw Dr. Pennington, and, after agreeing to vacate in the event a yearly tenant was procured, it was arranged he should rent to plaintiffs, for one or two weeks of April, at $20 per week. Dr. Pennington occupied a room up stairs, and had on the door of the hallway a tin sign, marked “ D. E. Pennington, Agent for this building.” On the evening of the 1st of April, the plaintiffs’ goods were distrained for rent, due by Henkle & Brother, April 1st 1876, amounting to $500. Plaintiffs thereupon issued this writ of replevin.
    The following assignments of error will show the questions raised in the court below, and the action of the court, Bailey, J., thereon:
    The court erred in affirming plaintiffs’ first point, with the qualification : that the relation of landlord and tenant must exist to entitle the former to a distress. Affirmed by adding “ or must have existed.”
    2d. In refusing plaintiffs’ second point. That plaintiffs’ goods were not liable for payment of rent due and in arrears by the prior tenant, and the verdict should be for the plaintiffs.
    3d. In refusing plaintiffs’ third point. That if the lease from Simpson and wife to Henkle & Brother had ended and determined prior to the distress on plaintiffs’ goods for arrearages due by Henkle & Brother, and the goods distrained were plaintiffs’ property, then the distress was illegal, and plaintiffs are entitled to a verdict in this case.
    4th. In refusing plaintiffs’ fourth point. That if the jury believe that the landlord authorized the posting of the notice “ To Let. Inquire of No. 177 Penn avenue, or of D. E. Pennington, room No. 7, 198 Penn street, up stairs,” or knew that such notice was posted in the window of the premises, and permitted the same to remain; and plaintiffs, on the strength of such notice, dealt in good faith with the parties to whom by said notice they were referred, then the landlord is estopped, the distress is illegal, and plaintiffs are entitled to a verdict.
    5th. In refusing plaintiffs’ fifth point. That if the parties referred to in said “ To Let” notice, acted without authority, or beyond the scope of their authority, then the relation of landlord and tenant did¡not exist, andffhe distress was illegal, and plaintiffs are entitled to a verdict.
    6th. In refusing plaintiffs’ sixth point. That if the court should regard the possession of the plaintiffs to be a holding over by Henlde & Brother under their expired lease, then the plaintiffs’ goods would not be liable for distress for arrears of rent for the previous term.
    7th. In refusing plaintiffs’ seventh point. That under the law and evidence, plaintiffs are entitled to a verdict.
    8th. In submitting the case to the jury, and after the jury had retired and returned to court with a verdict for plaintiffs, in refusing to receive the verdict, and instructing the jury to find a verdict for the defendant.
    Verdict for defendant, when plaintiffs took this writ and alleged that the court erred as set forth above.

      Samuel C. Schoyer, for plaintiffs in error.
    The first point of plaintiffs’ should have been affirmed without qualification.
    So also the second, third, fifth and sixth points should have been affirmed. The goods distrained on were plaintiffs’ property exclusively, in which the prior tenants, Henkle & Brother, had no interest at the time of the distress or at any time. The lease to Henkle & Brother had determined, and ths landlord knew they had quit possession.
    Even had the goods belonged to the prior tenant, and been sold to plaintiffs fairly, they could not have been distrained for rent due by the prior tenant. The distress should have been during the possession of the prior tenant: Clifford v. Beems, 3 Watts 247; Beltzhoover v. Waltman, 1 W. & S. 417.

      Slagle & Wiley, for defendant in error.
    The goods of a stranger found on the demised premises are liable to distress: Kessler v. McConachy, 1 Rawle 435; Price v. McCallister, 3 Grant 248. If so, they must, under the terms of the Act of 1772, be liable after the determination of the lease “in the same manner” as if such lease had not been ended. In Moss’s Appeal, 11 Casey 162, the court held that such distress would be valid so long as goods remain upon the premises liable to distress, and in that case sustained the claim of the landlord against the property of an assignee of the term over three vears after the determination of the tenancy. See also Rosenoerger v. Hallowell, 11 Casey 369. The words, meaning and purpose of the Act of March 21st 1772, sect. 14, Purd. Dig. 87 6, pl. 1, are sustained by holding that so long as property remains on the premises liable to distress, if the lease had not been ended, it continues liable, even though the lease be ended; any other rule would be inconsistent with the decisions in Moss’s Appeal and Rosenberger v. Hallowell. It cannot be seriously contended that a sub-tenant or' assignee of the lease holding over, does not place himself in the same position as the person under whom he entered into possession.
    October 27th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The plaintiffs’ goods on the premises were distrained for three months’ rent, due April 1st 1875, under the lease from Bishop Simpson and wife to Henkle & Bro. No question was raised as to the amount of rent in arrear or the regularity of the proceedings, nor was it claimed that the goods were such as are exempt from distress in the interest of trade, &c.; but the contention, on the part of the plaintiffs, was that they were not liable to distress: 1st, Because the lease to Henkle & Brother, under which the rent accrued, having expired, and the relation of landlord and tenant as between them and the lessor having ceased, the latter had no right to distrain the goods of a stranger on the premises; and 2d, Because the plaintiffs were in possession under a lease from the owner of the premises, and therefore their goods were not liable to distress for rent due by the former tenants, Henkle & Brother. These propositions embrace everything that was urged in answer to the defendant’s avowry.

The first proposition is based on a misapprehension of the Landlord and Tenant Law. The Act of March 21st 1772 provides, that “ it shall be lawful for any person having rent in arrear or due upon any lease for life or lives, or for one or more years or at will, ended or determined, to distrain for such arrears, after the determination of their respective leases, in the same manner as they might have done, if such lease or leases had not been ended or determined; provided, that such distress shall be made during the .continuance of such lessor’s title or interest.” The Statute of Anne, from which ours is copied, limited the landlord’s right of distress to six months after the determination of the lease; but our act authorizes it whenever there is rent in arrear and the landlord retains the title.

If the plaintiffs went into possession under Henkle & Brother, and are holding over after the termination of their lease, or if they were in without authority from any one, it cannot be doubted that their goods, on the premises, were liable to distress for rent due by Henkle & Brother. As a general rule, to which there are some exceptions, in the interest of trade, &c., the goods of a stranger, on the demised premises, are liable to distress for rent: Kessler v. McConachy, 1 Rawle 435; Price v. McCallister, 3 Grant 248; Beltzhoover v. Waltman, 1 W. & S. 416, and Karns v. McKinney, 24 P. F. Smith, 387. This being so, they must, under the very terms of the act, be liable after, as well as before, the determination of the lease, in the same manner as if the lease were still in force: Moss’s Appeal, 11 Casey 162; Rosenberger v. Hallowell, Id. 369. Any other construction would be a virtual repeal of the Act of 1772. The learned judge was therefore right in qualifying, as he did, the plaintiffs’ first point, and in refusing their second, third and sixth points. This disposes of the assignments designated by the same numbers.

If the allegations of fact embodied in the second proposition were true, they would-be a complete answer to the avowry. If, at the time of the distress, the plaintiffs were in possession under a lease to them from the owner of the property, the relation of landlord and tenant thus existing between them,‘would forbid that their goods should be seized to satisfy rent due by the former tenants: Clifford v. Beems, 3 Watts 246; Beltzhoover v. Waltman, supra. But, was there any proof of such relation? The court below thought there was not, and in the end gave binding instructions to the jury to find for the defendant, and ascertain the amount of rent due. If there was any testimony from which the jury might reasonably have found that the plaintiffs had leased the premises from the owner or an authorized agent, it should have been submitted to them. It was not pretended that they leased directly from Mrs. Simpson, the owner, or that they ever had any personal communication with either her or her husband on the subject. They claimed to have leased from Doctor Pennington, who, as they alleged, was the agent of Mrs. Simpson, and offered testimony for the purpose of showing that they remained in possession after the termination of Henkle & Brother’s lease, under an agreement with hirú to pay a weekly rent for the short time they wished to occupy the premises; but they utterly failed to show that Pennington was ever authorized to lease the premises, or that the owner had done or omitted to do anything that would have the effect of estopping her from denying his agency. It was not competent to prove Pennington’s authority by his declarations. Nor were his acts, done without her knowledge or authority, any evidence of his agency. It was shown that he had authority to lease rooms on the second and fourth stories of the building, and collect the rents thereof, for which he held a power of attorney, defining and limiting his authority to that particular matter. If the plaintiffs had examined this they would have seen that it did not authorize him to lease the premises in question. The only semblance of authority that he had was testified to by Bishop Simpson. In view of Henkle & Brother vacating the premises, Mrs. Simpson had proposed to give Pennington $100 if he would find her an approved tenant for one year at $2000; but the same witness testified that “ neither he nor any other person was authorized to lease the property in any shape or form, but simply to give her information, in case he could find a tenant;” and he further said that the reason of this was that Mrs. Simpson was unwilling that the store-room should be occupied by any one that she did not first approve. The testimony on this subject is most pointed and emphatic that the proposition to find a tenant for a year “ did not embrace the right in anybody to make a lease, but simply to find a tenant and report.” Outside of Pennington’s declarations, which were not evidence, the testimony entirely fails to show that he had any authority to lease the premises in question. The state of the evidence was such that it would have been the duty of the court below to set aside a verdict in favor of the plaintiffs. This being the ease, there was no error in giving binding instructions to the jury to find for the defendant; but it would have been more orderly to have so instructed them in the first instance. The assignments of error are not sustained.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In re Opening Beech and Page Streets. Reymer’s Appeal.
    1. A judgment was entered in the Court of Common Pleas upon the verdict of a jury in an issue certified from the Quarter Sessions to determine the question of damages done to a property owner by the opening of a street under an ordinance of councils of the City of Allegheny. Held, that such judgment was not conclusive, and the Quarter Sessions could quash the whole proceedings in regard to the opening of said street.
    2. An ordinance of said city providing for the extension of two streets, so as to make one continuous street, with an offset at their place of meeting, is invalid.
    3. Under the provisions of the act of April 1st 1870, and its supplement of May 12th 1871, in case of an appeal from the action of councils in opening streets, the Court of Quarter Sessions may quash the whole proceedings.
    October 17th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1879, No. 284.
    Appeal of Philip Reymer from the order of the court in the matter of opening Beech and Page streets, in the city of Allegheny.
    On the 28th of June 1876, the councils of the city of Allegheny adopted an ordinance as follows: “ An Ordinance authorizing the Opening of a Street from Allegheny Avenue to Fulton Street, of a width of fifty [50] feet.”

      Sect. 1. Be it ordained and enacted by the select and common councils of the city of Allegheny, and it is hereby enacted by authority of the same, that a street be and is hereby opened of a width of fifty [50] feet from Allegheny avenue to Eulton street, as per accompanying plan; said street from Allegheny avenue to Bidwell street to be called Beech street, and from Bidwell street to Eulton street to be called Page street, and that Robert H. Knox, John B. Ingham and Jonathan Gallagher, freeholders, be, and they are hereby appointed viewers to view the premises, appraise the damages and make assessments of benefits, as provided by Act of Assembly approved the 1st day of April 1870, entitled “An Act relative to Streets in the City of Allegheny.”
    Prior to this time, Page street was opened from Eulton street westwardly, and Beech street from Allegheny avenue eastwardly. The accompanying plan showed the new street extended on a line with Page street, and at Allegheny avenue the line was not exactly with Beech street, but showed an off-set.
    The viewers assessed the damages at about $30,000, and assessed benefits to a like amount on the contiguous property. They awarded to Reymer $14,500 as the damages suffered by him. Reymer appealed to the Quarter Sessions, and upon his demand an issue was certified to the Common Pleas, so that the amount of damages might be determined by a jury. The jury in said court assessed Reymer’s damages at $18,980, and a motion for a new trial having been overruled, judgment was entered against the city for that amount, and the record was certified back to the Quarter Sessions. On March 23d 1878, upon the petition of Reymer, viewers were appointed by the Quarter Séssions “ to appraise and assess the damages caused by the opening of Beech and Page streets, so far as the same have not been ascertained by jury, on the issue formed and tried in the Court of Common Pleas, and to assess the amounts so ascertained and found by jury as aforesaid, upon property benefited, and make a report to this court in accordance with law.”
    The report of these viewers fixed the entire damages by the opening of the street at $32,179, including for P. Reymer $18,980, and assessed benefits to the amount of $27,438.50, and reported that they had not found property benefited to the extent of the damages, there being a deficit of $4740.50.
    When Reymer appealed to the Quarter Sessions, a number of property holders against whom benefits had been assessed also appealed from the action of councils to the Quarter Sessions, and when the report of viewers was returned to that court, as set forth above, these property owners moved the court to quash the proceedings, for the following among other reasons : 1. The ordinance purports to authorize the opening of a single street from Allegheny avenue to Eulton street; while as a matter of fact it provides for the extension of Beech street from Allegheny avenue to Bidwell street, thus providing by a single ordinance and one board of viewers, for the extension of two entirely distinct streets located many hundred feet distant from each other. 2. The assessments of benefits and appraisements of damages upon the proposed extension of these two distinct streets has been made without distinction as to how much is for the one street and how much is for the other. 3. The costs and damages necessarily attending the proposed improvements greatly exceed th.e benefits which are likely to result therefrom; thus making the improvements impossible without imposing illegal assessments upon property not benefited nor likely to be benefited thereby.
    The Court of Quarter Sessions entered a decree that “ the whole of the proceedings in this case are quashed and set aside.” Erom this decree Reymer took this appeal.

      Slagle & Wiley, for appellant.
    The powers of the city of Allegheny in opening streets are found in the Act of April 1st 1870, Pamph. L. 751. The law does not authorize the Quarter Sessions to review the question of damages, as fixed by the jury to which it had been referred, or set aside the verdict which the Common Pleas had refused to disturb; nor can it indirectly accomplish the same purpose by quashing the proceedings in which the verdict was obtained. After an award has been made and confirmed, there is no authority to discontinue the proceedings: Beekman Street, New York, 20 Johns. 269; Dover Street, New York, 18 Id. 506; Hawkins v. Rochester, 1 Wend. 53; New York v. Mapes et al., 6 Johns. Ch. 46; People v. Westchester, 4 Barb. 64; People v. Syracuse, 20 How. Pr. 491; Higgins v. Chicago, 18 Ill. 280; Water Commissioners, Jersey City, 31 N. J. 72; State v. Keokuk, 9 Iowa 438.
    The damages found and confirmed, determine the right of the landowner thereto just as completely as any other judgment: Neal v. P. & C. Railroad Co., 7 Casey 19; Darlington v. United States, 1 Norris 382; Philadelphia v. Miskey, 18 P. F. Smith 49; Williams v. Pittsburgh, 30 Id. 71.
    The verdict and judgment in the Common Pleas were of binding force, and the Quarter Sessions had no right to disregard or nullify them by quashing the proceedings. Said court had no control over the judgment other than to provide for its payment by appointing viewers to assess benefits on other property. Under the order of court quashing the proceedings, the ordinance locating the street remains unrepealed, and proceedings to open may be commenced again at any time the councils see proper. The appellant, instead of being an owner in fee-simple of the premises, is a tenant at will of the city. He is deprived of the power to sell, for the reason that he cannot convey the property, but only a claim for damages. He cannot improve, for the reason that under the decision in the matter of the District of Pittsburgh, 2 W. & S. 320, and Forbes Street, 20 P. F. Smith 125, he would not be entitled to damages for improvements put upon the property after the street was located.

      W. B. Rodgers, City Solicitor, for City of Allegheny.
    The court quashed these proceedings under the authority conferred by the Act of April 1st 1870 and its supplement of May 12th 1871. The city does not become the owner until payment be made, and therein this case differs from that of Philadelphia v. Miskey, 18 P. F. Smith 49, and also from cases where property is taken for railroad purposes. Under this and similar acts, a proceeding to condemn real estate for public purposes may be abandoned at any time after the damages are assessed and before final confirmation: Chicago v. Barbian, 80 Ill. 482; Graff v. The Mayor, &c., 10 Md. 551; State v. Graves, 19 Id. 370; Matter of Military Parade Ground, 60 N. Y. 319; Merrick v. Baltimore, 43 Md. 219; Farmer v. Hooskett, 8 Foster (N. H.) 244; Bloomington v. Miller, 84 Ill. 621; Mabon v. Halstead, 39 N. J. Law 640; Dillon on Mun. Corp., sect. 473; Mill on Eminent Domain, sect. 311.
    The proceeding merely fixes the amount to be paid before the property can be'taken; Bloomington v. Miller, 84 Ill. 621; Mabon v. Halstead, supra.

    The owners of the land have no vested interest in the verdict of a jury: Baltimore Railroad Co. v. Nesbit, 10 How. 395; Easley v. Elliott, 43 Mo. 288; Merrick v. Baltimore, 43 Md. 219.
    Then, if no rights vested in Reymer, his argument that the court could not quash the proceedings loses its force. The court has power to take such action in the premises as they may think right and proper, and may quash the proceedings at any stage; and this discretion in the court cannot be reviewed on a certiorari: Fritz’s Appeal, 3 Harris 397. The appellant remains in possession of his property and is not injured.

      D. F. Patterson, for the property owners who had been assessed with benefits, argued:
    By reference to the Act 1st April 1870, “relative to streets in the city of Allegheny,” and the supplement thereto, approved May 12th 1871, it will clearly appear that after an ordinance has been enacted fixing the location of a street, and viewers have made report to councils of “ all their action in the performance of their duties as viewers,” the councils are expressly empowered to do either one of two things, viz.: 1. To send back the report of viewers for further action; or 2. To quash the proceedings. It will appear with equal clearness that in case of appeal to the Quarter Sessions, “ all the papers and proceedings in the case” are removed into that court, and all power over the proceedings which belonged to councils before appeal is transferred to court by means of the appeal, and further power is conferred upon the court, viz.: 1. To take such action in the premises as they may think right and proper (which includes the hearing of testimony through a commissioner or otherwise); and 2. To appoint new viewers, with power, when they have reported, to modify, correct and approve their report, or to quash the proceedings.
    A clear distinction is preserved throughout the acts between the report of viewers, which may be approved, modified, &c., and the proceedings, which may be quashed — the latter manifestly meaning all proceedings from first to last.
    The ascertainment of any particular person’s damage by means of an issue to the Common Pleas, is merely an incident to the general proceeding, just as an issue from the Orphans’ Court or a court of chancery is an incident to the proceeding in which the disputed fact arose. The judgment of the court to which the issue is sent for trial is not a judgment for execution by that court, but is rather the final sentence of that court upon the matter confided to it to determine, viz.: the damage to the property proposed to be taken. When the amount of damage has been finally ascertained, the matter goes back to the court having jurisdiction of the proceeding out of which the collateral issue arose ;• but it does not go back, as suggested by appellant’s counsel, with a mandate “ to provide for payment of the damages awarded;” on the contrary, it goes back simply as an ascertained fact, to be used by the court having jurisdiction of the proceeding, in such manner as it may think “ right and proper,” in the course of its further proceedings.
    This proceeding was not to open a new street, but to extend two old streets, one in an easterly and another in a westerly direction, so as to meet, and causing an offset at the place of meeting, and an appraisement of damages, without distinction as to the two streets, was without authority of law.

      I. N. Patterson, for certain property-owners,
    who were assessed with benefits by the viewers appointed by the court, but not by those appointed by councils, contended that assessments, without notice to the party assessed, was such an irregularity as would justify the court to set aside the report of viewers and quash the whole proceedings.
    October 27th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

The trial by jury to ascertain the damages, and the verdict in favor of Philip Reymer, were not conclusive as to prevent the court from quashing the whole proceedings, under the act of 1871. The court had ample ground for the order they made in the clear invalidity of the ordinance, which provided for the opening of two streets — not one street with two different names, but with an offset at Allegheny avenue, making two distinct streets. We think then that the Court of Quarter Sessions had the power to quash the whole proceedings, and upon the record as presented were entirely right in doing so.

Order affirmed.


author: Chief Justice Sharswood

text:
    Lewis’s Appeal.
    The parties to several suits in equity agreed in writing to refer to three masters the controversies involved in said suits, and all collateral questions the decision of which might be necessary to the determination of said suits and the reports of said masters were to be “ without exception or appeal,” and such agreement was by consent made an order of court in the suits. Held, that one of the parties to said agreement could not revoke his submission, especially where the debtors in the awards were to have the privilege of paying in instalments upon time. Held, further, that under such circumstances an appeal will be quashed and the Supreme Court will not consider the reasons assigned.
    October 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from- the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 3. In equity.
    Bill in equity filed by Samuel Lewis against Lockhart & Frew, David Hostetter, Byers & Co. and W. H. D. Barr, administrator of Arnold Hertz, for an account, the plaintiff claiming that defendants were partners with .him in the Pittsburgh Petroleum Oil Company.
    The material facts will be found in the opinion, of this' court.

      George P. Hamilton and D. S. Wilson, for appellant.
    A submission to arbitration is revocable at any time before it is executed, although in terms irrevocable: Watson on Arbitration, 59 Law Library 36. A revocation by one of several parties to a submission, by his express act or by his death or otherwise, is a revocation in toto : Id. 40.
    The exceptions to these are two, that is to say, where the submission provides that it shall be made a rule of court or it may be inferred that such was the intention of the parties; or where it is in the nature of a contract on a sufficient consideration.
    There is no express provision in the submission that it shall be made a rule of court, and no manifest implied intention to that effect.
    The intention will be implied where the submission recites the Act of Assembly under which it is made or the question at issue in a pending cause and nothing beyond it is referred: McAdam’s Ex’r v. Stillwell, 1 Harris 90; Stokely v. Robinson, 10 Casey 315; and that is as far as the courts have gone.
    The agreement of reference must be confined to the matters in variance in the suit: Summy v. Hiestand, 15 P. F. Smith 300. The agreement in this case is not confined to matters in variance in the equity suits.
    The Act of 1836 does not authorize the submission of a case pending in equity. Section 6, which relates to pending suits, is confined to actions at common law: Cotton & Smith v. Babcock, 14 P. F. Smith 462. A common-law judgment on, the equity side of the court is incongruous and irregular : Id.
    D. T. Watson, John H. Hampton and George Shiras, Jr., for appellees.
    The cases on the subject of the effect to be given to agreements, waiving right of exceptions and appeal, are found cited in McCahan v. Reamey, 9 Casey 535; Graham v. Graham, 9 Barr 254.
    How can it be claimed that a defendant in an equity case, can, by a mere notice, revoke powers delegated to a master, as well by the order of the court as by the agreement of the parties ?
    January 5th 1880.
   Chief Justice Sharswood

delivered the opinion of the court,

This is an appeal from a decree in equity in the court below, and a motion is now made on behalf of the appellee to quash the appeal on the ground that the appellant is precluded by his agreement from taking it. That a party may so he precluded is settled beyond all controversy. McCahan v. Reamey, 9 Casey 535, and the eases there cited in the opinion of the court. We are only then to determine whether it appears by the record that the appellant did make such an agreement which is binding on him.

There were three equity cases pending, besides several suits at law in consequence of differences which had arisen as to the settlement of the partnership affairs of the firm known by the name of The Pittsburgh Petroleum Oil Company. A master had been appointed in each of the equity cases, and they were in the course of the discharge of their duties, when all the parties came together through the intervention of a friend, and by an informal agreement consented that all their differences should be referred to the final decision of the three masters, it being agreed that a more formal instrument should be drawn up by them. This was accordingly done, and the agreement dated March 30th 1875, was prepared and signed by all the parties, this appellant included. After reciting the facts of the suits and differences, and that the parties were desirous of compromising and finally settling all differences between them, either as firms or individuals in the premises, it was witnessed that they had agreed and by that agreement did agree “ to refer unto J. H. Miller, E. M. Magee and J. E. Slagle, as arbitrators and referees, for their joint arbitrament and decision all controversies of whatsoever kind or nature which have arisen or which may arise, by reason of the premises, as well as all collateral controversies“ and the said parties hereby further agree to submit to the award of said arbitrators, or a majority of them, without exception or appeal, hereby respectively binding themselves, their heirs, executors and administrators, each to the other, for the faithful observance of the terms of this agreement.” “ The award, in the three equity proceedings, hereinbefore mentioned, when filed of record, to operate and be as effective as a final decree in each of said cases respectively. Judgment to be entered thereon without exception or appeal.” There were several other provisions not material to the question now before us, except a stipulation that “ the debtors in the award, made under the provisions of this agreement, to have the privilege of paying into court or to the parties,' the amounts found against them, in three equal payments, at sixty days, ninety days and four months from the date of the award, with interest.” This agreement was presented to the court in each of the equity cases, and on April 9th 1875, the orders referring the cases to masters were modified so as to appoint Messrs. Miller, Magee and Slagel masters in each of the cases to examine and report “ under and in pursuance of the agreement herewith filed.” This was in effect making the agreement a part of the order referring the cases to the masters which, so far as regards matters not arising under the bills and answers, the court could not have done, without the consent of the counsel of all the parties in open court, which it appears by the record was given. There can be no reason to question that under this order the masters were invested with all the jurisdiction given to them by the agreement, and that without exception or appeal.

The masters proceeded to hear the testimony and examine the accounts, all which were very voluminous, and the examination very protracted. After hearing at great length the counsel of all the parties, they were about to file their report, having determined to give notice of their intention to do so on the 25th July 1877, and to invite’exceptions thereto, and actually did give such notice on the 12th July 1877. On the day before, July 11th 1877, the appellant notified the masters that he annulled and revoked the reference, for reasons not necessary to be'here adverted to, and he contends now that he had a right so to revoke.

Had this been a common-law reference it is plain that he could not have revoked it. A naked submission may be revoked at any time before the award is delivered, but not so when it is made under an agreement founded on sufficient consideration. It is very evident that tbe agreement of reference here was founded on sufficient consideration. The stipulation above recited for the postponement of payment of the awards to the parties respectively to whom money should be found due, was a consideration between the parties, for the making the agreement, an advantage to those found to be debtors, which, independent of such a stipulation, they did not possess. Paist v. Caldwell, 25 P. F. Smith 161.

But this was not a reference at common law, or under any Act of Assembly: Cotton v. Babcock, 14 P. F. Smith 462. As we have seen, it was approved and adopted by the court, and with the consent of the counsel of all the parties, made a part of its order referring the pending cases in equity to the referees as masters in chancery. It cannot be pretended with any show of reason or authority that the appellant could revoke his consent to this order of the court, and he must accordingly be held bound by it to submit to whatever decree the court might make upon the report of the masters, without exception or appeal.

In the petition presented by the appellant in the court below, he urged several grounds for setting aside the reports of the masters, which were duly considered by the court, and the rule which he had obtained for that purpose was discharged. It is not necessary to consider these reasons, because by his agreement the appellant has precluded himself from any appeal to this court. Indeed, the only real question is, whether the court below had power, with the consent of all the parties, to make the order of April 9th 1875, referring the cases to the three masters under and in pursuance of the agreement.” Of their power to do so there cannot be any reasonable doubt.” If there ever was a case in which the maxim interest reipublicce ut sit finis litium was applicable, it surely is this case. , Appeal quashed.


author: Mr. Justice Mercur

text:
    Potter versus Warner.
    1. Where a physician or surgeon takes the charge of a patient, he assumes an implied, obligation to treat the case with reasonable diligence, carefulness and skill.
    2. The measure of professional skill which a physician is bound to exercise does not depend on whether or not he refused the proffered assistance of other medical men.
    3. It is the duty of the patient to submit to the treatment prescribed, and to follow the directions given, provided they be such as a physician of ordinary skill would adopt or sanction.
    4. If the contributory negligence of the patient united in producing the injuries complained of, the physician is not liable in damages therefor, and this rule applies to unnecessary pain and protracted illness as well as to a permanent deformity of a limb.
    5. If the parents of the patient, who also were in charge of and nursed him did not obey the directions of the physician in regard to his treatment and care, and thereby contributed to the injuries, the patient cannot recover

      October 17th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trtjnkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 115.
    This was an action on the ease, brought by John Warner, a minor, by his next friend, Albert Warner, against Dr. J. D. Potter, for alleged negligence and want of skill on the part of the defendant, a physician and surgeon, in the treatment of an injury received by the plaintiff.
    The plaintiff, on November 21st 1872, when about the age of eight years, while playing about the track of a coal company in the city of Pittsburgh, was knocked down and run over by a coal car, the wheel of which passed over his left leg, crossing to the outside, about the ankle, and passed up the outside of the leg until it reached the knee, where it passed in and cut the tendons, muscles and ligaments on the outside of the knee.
    The declaration first alleged a fracture of the bone near the knee, which was- treated by the defendant as a flesh wound; after-wards an additional count was filed, by leave of court, alleging that there was a dislocation treated as a flesh wound; and afterwards, at the close of the trial, an additional count was filed, alleging carelessness and want of skill, by -which a permanent injury was produced.
    The evidence of the man pushing the car at the time of the accident was that the upper and lower leg moved past each other sideways at the knee, when the boy attempted to stand up. The testimony of the defendant was that there was no dislocation; that he examined for dislocation, and was able to decide positively, because the wound was an open one.
    There was no other testimony relating to the question of dislocation, except that of some of the experts produced by the plaintiff, who, on an examination six years after the accident, testified that there was a partial dislocation of the knee-joint at the time of the accident.
    The experts produced by the defendant were as positive that there was no dislocation then, and was hone at the trial, but that the present deformity was the gradual result of a drawing by the anterior and internal muscles of the leg, without the counter-action of the external and posterior muscles and tendons which were destroyed by the accident, and by constitutional trouble weakening the joint and delaying the healing process, and had been increased by the weight of the boy’s body on the leg for several years..
    The plaintiff’s witnesses agreed that the leg, when the defendant was discharged from the case, was about straight and in a natural position, but that the deformity has been increasing daily since then.
    There was no testimony to show that there had been an increase of pain and suffering during the attendance of the defendant, or that his treatment was improper, if this wound was what he claimed it to be, a flesh wound, and not a dislocation.
    There was testimony tending to show carelessness and a failure to comply with the directions of the defendant on the part of the parents of the boy, and also showing a careless use of the limb by the boy after he commenced to walk.
    At the trial, before White, J., the plaintiff submitted the following points, to which are appended the answers of the court:—
    1. That if they believe from the evidence that the plaintiff, John Warner, after the reception of his injury, and having received from the defendant, Dr. Potter, medical attendance for said injury for a period of fourteen or sixteen weeks, was himself or through his parents, directed to leave his bed and go out on crutches without any splinters or apparatus to maintain the leg in a straight position, then the defendant would be liable for unskilful treatment, if the testimony of the medical experts is to be believed.
    Ans. “ This point is affirmed, if the jury find from all the evidence that the permanent deformity resulted directly from going out on crutches without supports to the limb.”
    2. That if they believe there was, at the time Dr. Potter was called to attend plaintiff’s injury, a dislocation, either total or partial, of the knee-joint, then the plaintiff would be liable for unskilful treatment.
    Ans. “Affirmed.”
    3. That if the jury believe the defendant refused the proffer of plaintiff’s parents of the assistance of other medical men in the treatment of plaintiff’s injury, then he is liable for any damage that may have resulted to the plaintiff, by reason of his want of skill, if any such want there was.
    Ans. “Affirmed.”
    Defendant’s fifth point was as follows:
    That if the jury believe that the parents of the plaintiff were in charge of and nursed the plaintiff during his sickness, and did not obey the directions of the defendant in relation to the care and treatment of the plaintiff during his illness, but on the contrary, disregarded his said directions, and that this contributed to the present condition of plaintiff’s leg, then that their verdict must be for defendant.
    Ans. “ Affirmed as to the permanent injury to the leg.”
    In the general charge the court, inter alia, said :
    “ A professional man is responsible for any lack of proper knowledge, care and attention on his part, in the performance of his duty, the same as a mechanic is responsible for negligence in the performance of his duty. If you take your horse to a regular blacksmith to be shod, and the horse is injured by the carelessness and lack of skill and knowledge on the part of the blacksmith, you have an action against him for the injury done to the horse. A professional man, doctor or lawyer is responsible in the same way. * * *
    “Yon will probably be satisfied from the evidence that some one is at fault. I believe all of the physicians and surgeons who were examined, testified that the limb might have been saved as a straight one. Who is to blame that it was not ? * * *
    “ As I understand tlie narr., the claim in this caséis for damages the boy sustained from pain and suffering, in consequence of the unskilful treatment on the part of the doctor, and also for the permanent injury in the deformity of the limb. A doctor is responsible for unnecessary pain that the patient may suffer, and for the protracted illness resulting from the want of skill and care on the part of the physician. * * *
    “ You will probably, as I say, be satisfied from the evidence that this boy’s limb might have been saved a straight limb. * * *
    “ If the boy suffered unnecessary pain or a protracted illness, or a permanent injury from the want of such knowledge, skill, care or attention on the' part of the defendant, then he is liable in damages to the plaintiff. * * *
    “ The doctrine of contributory negligence, if it is properly applied to this case, does not control it. .The defendant is charged with unskilfulness and negligence in his professional treatment of the plaintiff. If he was guilty of unskilfulness or negligence which directly caused any injury to the plaintiff, he is responsible for such injury to the plaintiff. But of course he is not responsible for any injury resulting from any other causes. For instance, the permanent deformity of the limb may have resulted from the fault of the boy or his parents, for which the defendant could not be responsible. Yet, if the boy suffered unnecessary pain or a protracted illness from the fault of the defendant, he would be responsible for that. * * *

      “ If you find that the negligence and unskilfulness of the defendant caused the boy unnecessary pain and protracted illness, that is a matter of damages for you to estimate. He is entitled to compensation for the pain that he may have suffered, even if the doctor is not responsible for the permanent deformity of the limb. If his want of skill and neglect caused pain and unnecessarily protracted illness, and also caused deformity of the limb, then you will give damages for the whole.”
    Verdict for plaintiff for $500, and after judgment defendant took this writ and alleged that the court erred in the answers to the foregoing points and the portions of the charge noted above.

      Knox & Reed and W. D. Moore, for plaintiff in error.

      J. McF. Carpenter, C. W. McCord and J. K. P. Duff, for defendant in error.

      November 10th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action on the case against the plaintiff in error, a physician and surgeon, for malpractice in treating the defendant in error. When about eight years of age the latter was run over by a coal car. The wheel passed over his leg near the ankle, thence up the outside of the leg cutting the tendons, muscles and ligaments at the knee. The evidence was conflicting as to whether the joint was dislocated or the bone fractured.

When a physician or surgeon takes the charge of a patient, he assumes an implied obligation to treat the case with reasonable diligence, carefulness and skill. It is, however, the duty of the patient to submit to the treatment prescribed, and to follow the directions given, provided they be such as a physician of ordinary skill would adopt or sanction; Having assumed the charge of the boy Warner, the measure of professional skill which the plaintiff in error was bound to exercise, did not depend on whether or not he refused the proffered assistance of other medical men. His refusal was no more than an implied declaration of his ability to treat the case properly. By assuming and continuing the charge of the patient, he was under an obligation to exercise a degree of skill which was neither increased nor diminished by such refusal. Hence the affirmance of the fourth point submitted by the defendant in error was calculated to mislead the jury, by conveying the idea that the refusal of such assistance imposed on the plaintiff the exercise of a higher degree of skill than would otherwise be required of him.

The claim was to recover damages for unnecessary pain suffered, protracted illness, and permanent injury to the leg.

In addition to evidence of the exercise of proper attention and skill on the part of the plaintiff in error, he also gave evidence tending to prove that all the causes of complaint were produced by a neglect and refusal of the defendant in error to follow the reasonable directions given by the plaintiff in error. It was therefore claimed that if the defendant in error was guilty of contributory negligence in producing the injuries complained of he could not recover. The court, however, said to the jury the doctrine of contributory negligence, if it is properly applied to this case, does not control it. The defendant is charged with unskilfulness and negligence in his professional treatment of the plaintiff. If he was guilty of unskilfulness or negligence which directly caused any injury to the plaintiff, he is responsible for such injury to the plaintiff ; but of course he is not responsible for any injury resulting from any other cause. For instance, the permanent deformity of the limb may have resulted from the fault of the boy or his parents, for which the defendant could not be responsible; yet. if the boy suffered unnecessary pain or a protracted illness from the fault of the defendant, he would be responsible for that.”

The learned judge failed to give due legal effect to contributory negligence of the defendant in error. It is true the plaintiff in error was charged with negligence and unskilfulness. Although guilty thereof, yet it did not necessarily follow that he was liable in damages therefor. If the contributory negligence of the defendant in error united in producing the injuries complained of he was not so liable. This rule applies to the unnecessary pain and protracted illness as well as to the permanent deformity of the limb. The evidence is amply sufficient to submit to the jury the question of contributory negligence on the part of the defendant in error. If they find the parents of the boy were in charge of and nursed him during his sickness, and that they did not obey the directions of the plaintiff in error in regard to the treatment and care of their son during such time, but disregarded the same and thereby contributed to the several injuries of which he complains, he cannot recover therefor. If the injuries were the result of mutual and concurring negligence of the parties, no action to recover damages therefor will lie. A person cannot recover from another for consequences attributable in part to his own wrong. Nor is it necessary that the negligence of each party be equal, to defeat a recovery: Catawissa Railroad Co. v. Armstrong, 13 Wright 186. It was well said in Railroad v. Norton, 12 Harris 465, “ the law has no scales to determine in such cases whose wrongdoing weighed most in the compound that occasioned the mischief.'” 1 It follows that in so far as the several assignments of error are in conflict with this opinion they are sustained. Beyond that we discover no error.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Trunkey

text:
    L. H. Culver versus The Reno Real Estate Co. and C. V. Culver.
    1. Under the provisions of the Act of April 28th 1873, a real estate company issued first preferred stock, with the right to the holder to dividends not exceeding five per centum semi-annually, as the profits of the company-might warrant, payable out of the net earnings of the company, and the company was bound at all times to apply any funds in its treasury or resulting from the sale of real estate, to the redemption at par of any portion of the stock upon demand of the holder. Held, that no holder of stock had a right to its redemption out of any specific assets other than proceeds of sale of real estate, nor out of money in the treasury, if it would work injustice to the creditors or stockholders of the company by interrupting or crippling the business of the company.
    2. Where it appeared that there was no money in the treasury of said company in excess of the requirements of the current business or arising from the sale of real estate, a contract to pay the debt of one of its officers by the company could not be based on an agreement not to demand redemption of stock.
    3. Where no consideration passed to said company it was not liable as principal, and its officers had no authority to bind it as surety.
    4. Where it appeared that a creditor knew that he was lending money to an officer of the company for his individual use, and that said company received no consideration therefor, the equities between the creditor and shareholders of the company must be determined against the creditor.
    October 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1878, No. 65.
    Case by Lucien H. Culver against The Reno Real Estate Company and C. V. Culver.
    The Reno Real Estate Company was incorporated under the provisions of the Act of 21st April 1854, authorizing joint owners, tenants in common and joint tenants of mineral lands to organize corporations, and under the provisions of the Acts of 3d April 1872, Pamph. L. 37, and 28th April 1873, Pamph. L. 79, issued first preferred stock to the amount of $500,000, and in the issue thereof provided that it should at all times be bound to apply any funds remaining in the treasury of the company, or resulting from the sales of real estate, to the redemption at par of any of that stock upon the demand of the holder thereof. The principal business of the company was producing and selling oil, and it was so engaged on the 24th of September 1873, when it and C. Y. Culver entered into a contract with the plaintiff, Lucien H. Culver, in which the following facts were recited, to wit:—
    “ C. Y. Culver, being the holder of more than twenty-five thousand dollars of the first preferred stock of The Reno Real Estate Company, and by virtue of its terms being entitled to demand payment of the same out of any moneys remaining in the treasury of the company; but it being convenient for their operations that such stock should not now be presented and' paid as aforesaid, and C. V. Culver requiring for his own use a large amount; therefore, for the purpose of obviating the necessity on the part of O. V. Culver of demanding from The Reno Real Estate Company present payment of said first preferred stock, the said Lucien H. Culver has, at the joint request of the said C. Y. Culver and of The Reno Real Estate Company, agreed to loan to the said O. Y. Culver the sum of twenty thousand dollars ($20,000), for which the said C. Y. Culver has executed his promissory note bearing even date herewith, and being due the first day of February 1871, and has transferred to the said Lucien H. Culver, as collateral security therefor, first preferred stock of The Reno Real Estate Company to the amount of twenty-five thousand dollars ($25,000), at its par value.”
    The contract provided that, as inducement for making the loan, and in consideration of the same, the plaintiff might at any time before maturity of the note elect to receive payment of the same in oil, at the market price at the time of such election and place of delivery, and thereupon the said note should be liquidated and cancelled, and C. Y. Culver and The. Reno Real Estate Company should thereupon be jointly and severally bound to deliver to the plain'tiff the number of barrels of oil into which the amount of the note should be so liquidated. It was further provided that The Reno Real Estate Company should not be bound to hold in stock any oil to meet the demand of the plaintiff, but that they should be bound to deliver all the oil they might have on hand at the time of the demand, and thereafter all their production, as fast as the same should be produced until the full amount should be delivered, and that from time to time, as any payments should be made on the note or deliveries of oil- be made under the contract, proportionate amounts of the stock collateral should be surrendered. And it was agreed between C. Y. Culver and The Reno Real Estate Company that in case the company should furnish any oil to the plaintiff pursuant to the contract, it should be entitled to receive first preferred stock from the plaintiff, the par value of which should equal the value of the. oil so delivered.
    On the 8th of November 1873, the plaintiff elected to receive payment of the note in oil, and thereupon a supplemental agreement was executed whereby the note was “liquidated and can-celled, and in lieu thereof C. Y. Culver and The Reno Real Estate Company, each for themselves, agree to deliver to the said Lucien H. Culver, according to the terms of said contract, twenty-two thousand two hundred and twenty-two barrels of merchantable crude oil.”
    In the following March, 1874, The Reno Real Estate Company declared a dividend of 5 cent, upon its preferred stock, and the plaintiff demanded the amount due him, $1250, on the stock held by him as collateral. His right to receive it was questioned, and after some discussion the matter was settled, by the company agreeing to deliver to him twelve hundred barrels of oil on the contract within a short time in lieu of, the cash*. a.nd he giving them an acquittance against the dividend.
    No part <?f the oil having been delivered, not even the twelve hundred barrels which were to have been delivered in lieu of the dividend, the parties entered into a new contract on the 13th of March 1875, by which, after reciting the obligation of the defendants to deliver to the plaintiff twenty-two thousand two hundred and twenty-two barrels of oil, and that the plaintiff held two hundred and fifty shares of the first preferred stock of The Reno Real Estate Company (par value $>25,000) as collateral security for such obligation, the plaintiff surrendered the stock collateral, and it was agreed, among other things :

      1. That the defendants should deliver to plaintiff five thousand barrels of oil on or before the 30th of April 1875.
    2. That if such delivery should be made plaintiff should not be entitled to demand any further deliveries until the 15th of June 1875, but that at any time thereafter he might call upon the defendants for the whole or any part of the remainder of the oil due him, and thereupon the defendants should either make deliveries 6r, at their option, “ liquidate the same in money at the highest price which such oil or pipe-line certificates shall bear on the day when such call was made, and execute to him the promissory note of The Reno Real Estate Company for the amount of such liquidation payable thirty days thereafter.”
    As collateral security for the performance of this contract the defendants transferred to the plaintiff one thousand shares of the preferred stock of another company, viz.: The Reno Company, not Reno Real Estate Company.
    The certificate of the two hundred and fifty shares of first preferred stock of The Reno Real Estate Company was assigned by the plaintiff to that company: plaintiff testified that he surrendered the stock to the company, delivering the certificate with his assignment endorsed upon it, to the president of the company, while the defendant, C. V. Culver, testified that the surrender was made to him.
    There were frequent interviews between the parties about the delivery of the oil, and none having been delivered, plaintiff made formal demand therefor on the 16th of June 1876, which not having been complied with this suit was brought.
    At the trial before Trunkey, P. J., the plaintiff submitted the following point, to which is appended the answer of the court.
    “ If the contract of September 24th 1873, was fully executed by and on behalf of L. H. Culver, and The Reno Real Estate Company had reaped all the advantages to it contemjfiated in and by said contracts, and afterwards, to wit, in March 1874, the said L. H. Culver released the said company from the payment of a dividend amounting to $1250 on the $25,000 of preferred stock mentioned in said contract, upon the said company agreeing to deliver twelve hundred barrels of oil on account of said contract within a short time thereafter, and afterwards, to wit, at the making of the contract of March 13th 1875,. the said L. H. Culver in part consideration thereof, assigned and surrendered to the said company the said $25,000 of preferred stock, such several transactions constituted a good consideration for the said contract of March 13th 1875, and it is too late now for said company to deny the legality thereof.”
    Ans. “ Refused, for in its application to the facts of the case the plaintiff is not entitled to recover as against The Reno Real Estate Company.”
    The court affirmed the following point of defendant:

      “ The agreement of March 13th 1875, taken in connection with the agreements of November 8th 1873, and of September 24th 1873, to which it was supplemental, was, so far as The Reno Real Estate Company was concerned, an attempt to guarantee or secure the individual indebtedness of C. V. Culver to L. H. Culver, and was beyond the power of the directors to make, and was not binding on said company.”
    The court also charged:

      “ The amount of claim for damages against C. Y. Culver you will determine from the evidence. It would be the actual value of the oil at the time it was demanded, with interest thereon from that day to the present time, which you will calculate. The gross amount will be ydur verdict. Remember there was a credit of $5000. The jury will remember that as the case is submitted to you, all you have to do is to fix the amount. One party claims the price was at a date they claimed the demand Was made, and the other party the price of oil at a different date when they claim the demand was made. Your verdict will be against C. Y. Culver. All you need say is how much you find.” *
    The verdict was, “ the jury find for plaintiff, and against’ O. Y. Culver in the sum of $35,012.79, and they find verdict for The Reno Real Estate Company.”
    The plaintiff took this writ and alleged that the court erred in their answer to the above points. This case was twice argued before the Supreme Court.

      J. H. Osmer and C. Heydrick, for plaintiff in error.
    The first preferred stock was a legal obligation, and when the company issued to C. Y. Culver two hundred and fifty shares of the par value of $100 each, it contracted, with the express .sanction of the law, to pay to him upon demand every dollar it should have in its treasury up to $25,000. The plain import of the recital in the contract of 24th September 1873, is that the company then had in its treasury not less than $20,000.
    Certainly it would have been within the letter and spirit of the law, and of the contract made in pursuance of it, to have redeemed the stock — paid to the holder the par value thereof. And how does it transcend the powers of a corporation to agree to do 'in futuro what it may and is threatened otherwise to be obliged to do in prcesenti ?

    Now, while it is true that so far as the plaintiff was concerned, security for the loan was the principal object of the contract, The Reno Real Estate Company was no more a surety than it would have been if the stock had been pledged without a contract on his part. A present obligation to redeem the stock was admitted, in respect to which the company was a principal obligor, and it simply undertook to discharge that obligation 'by delivery of oil if the plaintiff should elect to receive such delivery within a specified time.
    The company reaped all the advantages which it was contemplated would spring from the several contracts, and it is too late now to assume that the contracts were ultra vires: Oil Creek and Allegheny Valley Railroad Co. v. Pennsylvania Transportation Co., 2 Norris 160.

      Dodd & Lee, for defendants in error.
    If there is any import in the recital in the contract of 24th September 1873, that the ’company had $20,000 in its treasury, it is just as plainly imported that it was needed to pay debts, and for such future operations of the company as were necessary to secure net earnings and pay dividends. To deplete its treasury at the demand of its vice-president for the redemption of his stock, would be gross injustice to creditors and other stockholders, and a pledge of future earnings for the same purpose would be equally in violation of law.
    An agreement by a corporation to pay annual premiums to preferred stockholders, without reference to ability to pay them from earnings, is void as opposed to public policy: Lockhart v. Van Alstyne, 14 Am. Law Reg. (N. S.) 180.
    Payments of interest on preferred stock can only be made out of profits bona fide earned, for a corporation has no power to contract for the payment of interest on dividends on its capital stock in excess of the earnings of the company: P. & C. Railroad Co. v. Allegheny County, 13 P. F. Smith 126.
    The agreement if it was, as plaintiff claims, one by which the stock of O. V. Culver was to be redeemed by the application of the future production of the company, was clearly illegal and void. It was equally so, if, as we claim, it was a contract to guarantee a loan to C. V. Culver.
    This company had no power conferred upon it by any act to become surety for the debt of another. If it needed money to meet legitimate demands it was empowered to borrow as provided by the acts creating it.
    We claim this contract could not be held valid, because the superior equities are in favor of the stockholders and not the plaintiff. Whether all contracts ultra vires are against the policy of the law and void, matters not. This contract undoubtedly is. A contract of suretyship by a corporation “is a lesion in its very nature.” AfortioH one made by and to secure the debt of a director. It is certainly as much against the policy of the law for directors to'bind a company by contract to pay the debt of one of their number, as it is for a trustee to purchase at his own sale.
    January 5th 1880.
   Mr. Justice Trunkey

delivered the opinion of the court,

The Reno Real Estate Company was incorporated June 21st 1872, under the Act of April 21st 1854 and its supplements, with the .expressed object of doing everything allowed by the Acts of Assembly relating to mining companies. By Act of 1872, Pamph. L. 37, corporations are authorized to issue preferred stock, on which the holders may receive prescribed dividends, not exceeding 12 per cent., payable out of the net earnings of the company; and the Act of 1873, Pamph. L. 79, authorizes the issue of such preferred stock in classes, with preference in the rates, and in the order of payment, of dividends, or in the redemption of principal; with right to redeem on terms prescribed in the issue; and the company may specifically appropriate for payment of dividends, or for redemption of the principal, the revenues from any specific department of its business, or the proceeds of any specified portion of its assets or property : “ provided that no injustice shall thereby be done to the existing rights of other stockholders or creditors of the company.”

First preferred stock, limited to five thousand shares of .$100 each, was directed to be issued by The Reno Real Estate Company, with right to the holder to dividends not exceeding 5 per cent, semi-annually, as the profits of the company may warrant, payable out of the net earnings of the company, and the company Was bound at all'times to apply any funds remaining in its treasury, or resulting from sale of real estate, to the redemption at par of any portion of the stock upon demand of the holder.

On September 24th 1873, the plaintiff loaned the sum of $20,000 to O. V. Culver, who was vice-president and a director of The Reno Real Estate Company. An agreement was made between the company, C. V. Culver and L. H. Culver, reciting that C. V. Culver is the holder of more than $25,000 of the first preferred stock, and by its terms he is entitled to demand payment of the same; that it is inconvenient for the operations of the company that said stock should be now presented and paid, and C. V. Culver wants a large amount of money; that for the purpose of obviating demand and present payment of said stock, L. H. Culver, at the joint request of O. V. Culver and the company, agreed to loan to C. V. Culver $20,000, for which C. V. Culver has executed his promissory note, and transferred to L. II. Culver, as collateral security therefor, $25,000 of said stock ; and as inducement for making said loan, and in consideration of the same, the said C. V. Culver and the company each agree that L. II. Oulver may, at any time before the maturity of the note, elect to receive payment of the same in oil, and thereupon the note shall be cancelled and C. Y. Culver and the company shall be bound, jointly and severally, to deliver to L. H. Cuflver the number of barrels of oil into which the amount of the note shall have been liquidated, the delivery to be completed within ninety days from the time they are notified of the readiness of L. PI. Culver to receive the same. From time to time, as any payments are made on the note, or oil delivered under the contract, proportionate amounts of the stock collateral shall be surrendered. C. V. Culver and the company agreed, L. H. Culver not a party thereto, that if the company shall furnish any oil to L. H. Culver, it shall be entitled to receive from him stock at par to value of the oil so delivered.

By a supplemental contract, dated November 8th 1873, said note was cancelled, and in lieu thereof O. Y. Culver and the company, each for themselves, agreed to deliver to L. H. Culver twenty-two thousand two hundred and twenty-two barrels of oil, according to the terms of the contract of September 24th 1873.

March 13th 1875, the parties made another agreement, reciting that said company and C. Y. Culver are bound by written contract to deliver to L. H. Culver twenty-two thousand two hundred and twenty-two barrels of oil, and that he holds as collateral security for the performance of the said contract two hundred and fifty shares of said first preferred stock, and at request of the company and C. Y. Culver the said L. H. Culver surrenders the said collateral security, waives present right of demanding the oil, and the parties contract anew for delivering of the full amount of said twenty-two thousand two hundred and twenty-two barrels of oil at times and on calls particularly set forth; or they may pay in money the highest price of the oil at the date of a call, the parties of the first part being jointly and severally liable, and notice to one shall be notice to both; and as collateral security for their performance the said first parties transferred to L. H. Culver one thousand shares of the preferred stock of The Reno Company. At the date of this contract, as appears by their minutes, the executive committee authorized its execution; and April 10th 1875, the directors, as shown by their minutes, approved the action of the executive committee. C. V. Culver was one of the committee, also a director, and was present when said authority was given, and at its approval. J. P. Brinton, as president, executed each contract for the company.

The several contracts — successive links of a chain — in their natural order, have been brought into view, as from the whole the true character of the transaction is plain. The consideration of the first is a loan to C. Y. Culver — the company received nothing. The second states the number of barrels of oil that shall be delivered in payment of that loan. The last refers to the existing contract for delivery of the oil, and binds anew for delivery of the same quantity of oil, without any new consideration of value to the company; but the contract is made to look more as if the debt was owing by the company than by C. Y. Culver. To take the last alone is to shut the eyes against the fact that the company was merely surety for payment of the debt.

It is not recited in the agreement of March 13th 1875, that the stock held as collateral was surrendered to the company, and no legitimate construction would make it a surrender to any one but its owner. As collateral security the company gave one thousand shares of stock in The Reno Company, and this appears to have been done without reference to the stock surrendered to Culver. It is unnecessary to say whether the property of a corporation may be given away by recitals in such contracts, for it is noticeable that Brinton, with the vice-president, director and borrower in the person of C. V. Culver at his side, did not recite that any money was in the treasury of the company applicable to redemption of said preferred stock, and did recite that it would be inconvenient for its .operations that said stock should be paid. The writings do not show a present duty of the company to redeem said stock, nor that it was surrendered to it. By the Act of 1873 the clause in the issue of first preferred stock must be interpreted, and, therefore, no holder had right to its redemption out of any specific assets other than proceeds of sales of real estate, nor out of moneys in the treasury when such payments would work injustice to creditors and stockholders. No argument or authority is required to prove the gross injustice to creditors and stockholders that must inevitably ensue, if preferred stock is allowed to take all the money from the treasury, and thereby cripple or break down the business of the corporation. If light were needed it may be found in the opinion in Lockhart v. Van Alstyne, 14 Am. Law Reg., N. S. 180. Though that case arose out of a claim for dividends, the reasoning is suggestive of the ruin of a corporation, and injury to its creditors and shareholders, in case preferred stockholders exhaust the funds necessary to carry on its ordinary operations. The statute authorizes no such thing; and the phrase, “ any funds remaining in the treasury,” aside from moneys received on sales of real estate, can only mean such funds as are not necessary for the usual, current and proper business of the company. The contracts show no money in the treasury of the company in excess of the requirements for its current business, or arising from sale of real estate; and a consideration cannot be based on the agreement not to demand redemption of the stock.

Coming to the testimony adduced by the plaintiff, is it sufficient, in connection with the contract and minutes, to establish his case ? If so, it should have been submitted; for the court, in directing a verdict for the company, could not consider the disputed testimony offered in its behalf. Ogelvie testifies that certificate No. 68, issued to L. H. Culver, was presented to the office of the Union Trust Company in New York city, for transfer by C. V. Culver, who made the transfer to The Reno Real Estate Company, and a new certificate for a larger amount, but embracing that of No. 68, was made to The Reno Real Estate Company, and delivered to C. Y. Culver in person. L. Ii. Culver was a witness in his own behalf, and a careful one. He does not know who owned the stock mentioned in the contract of September 24th 1873, but remembers that he returned the certificate for it to the company, and procured the one in his own name, which he held till March 13th 1875, when he surrendered it to the company. He says: “ I surrendered that certificate to Col. Brinton in exchange for one thousand shares of Reno stock.” “ Q. This one thousand shares of stock of The Reno Company was the property of The Reno Real Estate Company ? A. I so understood it; yes, sir. Q. Then The Reno Real Estate Company paid you a thousand shares in the old company for this $25,000 of stock ? A. I so understood it. Q. That is what you meant by surrender ? A. Certainly; I do not mean to be understood I gave it up for nothing; I exchanged it. Q. They bought it; paid for it? A. Yes, sir.” Thus he testified, in chief and in cross-examination. He was recalled in his own behalf, and said he “ did not mean that the sole consideration of surrendering this Reno real estate first preferred stock was the Reno stock; but, that in accordance with that contract, it was all one thing.” While he held C. V. Culver’s stock as collateral, a dividend was declared which both claimed, and he agreed to forego the dividends, on Brinton’s and O. V. Culver’s promise to deliver one thousand two hundred barrels of oil on the contract. He says: “ I accordingly receipted against the dividend.” “ I waived the dividend. I never got it.” The oil was not delivered. It was argued that the dividend entered into the consideration of the contract, but neither writing nor witness proves this. There is no evidence that the company was released from payment thereof to the owner of the stock. If released, it would be only $1250 which passed to the company, and to that extent it might be answerable, but not for the whole debt, many times larger.

Literally there is no evidence of any money of the company which was applicable to redemption of the preferred stock, nor of acquiescence of the stockholders in the contracts, nor that it was usual for the company to agree to pay the private debts of its officers. L. H. Culver is presumed to know the law. He did not deny knowledge that his brother was vice president and director, although he was on the witness stand after Brinton had testified to this fact. He knew he was lending the money to C. Y. Culver for his individual use, and that the corporation received neither money nor other valuable thing for its undertaking.

It was not contended by the plaintiff’s counsel that the officers had power to bind the company as surety for another’s debt. That a contract for that purpose is wholly beyond the powers of the corporation, expressly granted, or implied, by the statutes relating to mining companies, is so clear as not to be gainsaid. The attempt was to show that the corporation executed the contracts as a prin cipal, discharging its own obligation as a principal debtor represented by its preferred stock, and no right of subrogation would or could exist. That the lender and borrower designed to put the surety in that position may be quite certain, but the writings show the relation of the parties to each other, and, without comment on the other testimony, we think it insufficient to warrant a finding that the company had received such consideration as would make it liable for the debt. Even on the strong ground taken by Com-stock, C. J., in Bissell v. Railroad Cos., 22 N. Y. 258, in his opinion, not the court’s, the plaintiff cannot recover, for he allows the plea of ultra vires to avail in many cases, tie says : “ And I do not deny the validity of this excuse in many bases, I may say in all cases where it can be received without doing greater injustice to others. If the person dealing with the corporation knows of the wrong done or contemplated, and he cannot show the acquiescence of the shareholders, he ought not to complain if he cannot enforce the contract. Aside from the law of corporations, agreements which involve or propose a violation of trust will not be enforced by the courts where no greater equities demand it.”

The expressed consideration of the contract, dated March 13th 1875, was the obligation of the one then existing, of prior date, which, not having been performed, was continued. Whether the invalidity of the contract be put on the ground of illegality, or of want of power merely, the case of Swan v. Scott, 11 S. & R. 164, and others which adopt its ruling, do not apply. In Swan v. Scott, the suit was “ on a bond, the consideration of which was the judgment,” which had been satisfied by the bond; and, of course, the defendant could not prove the illegal contract on which the judgment was obtained. Here the contracts have all been executory, none executed, between same parties, and on same consideration.

I am instructed to say that we are agreed that no error was committed in the answers to the points submitted.

Judgment affirmed.