author: Mercur, J.,

text:
    Wesner versus Stein and Greenawalt.
    1. Where an acknowledgment or admission is relied on, to avoid the bar of the Statute of Limitations, in the absence of an express promise to pay the debt, it must amount to a clear and unambiguous recognition of an existing debt, so distinct and expressive as to preclude hesitation as to the debtor's meaning, and as to the particular debt to which it applies. It must, moreover, be consistent with a promise to pay.
    2. A debt is not destroyed by the running of the Statute of Limitations, but the right of action or remedy is lost. When that is restored, the declaration is still on the original contract, and not upon the acknowledgment or new promise. Such acknowledgment is but a waiver of the statutory defence.
    3. Part payment of a debt, is a sufficient acknowledgment of its existence from which to infer a promise to pay. But such payment, in order to have such effect, must be made to the creditor or his known agent, by the debtor himself, or by some person authorized to act for him.
    4. If such part payment be made, not by the direction of ihe debtor, but in his presence and hearing, without anything on his part indicating that he does not participate in it, this fact may be submitted to the jury, as evidence of a promise on the part of the debtor to pay, so as to-avoid the running of the statute.
    5. The giving of instructions by the surety upon a note, against which as to him-the Statute of Limitations has run, to obtain for him a judgment against the maker of the- note, in order to render him secure in relation thereto, should be submitted to the jury as evidence of an acknowledgment or promise on his part to pay the debt to the holder of the note.

      March 3d 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, of Berks county: Of January Term 1881, No. 72.
    Assumpsit, brought May 2d, 1879, by Willoughby Wesner against Moses Stein and Amos Greenawalt, upon the following promissory note.
    §500. Albany, April 1st 1870.
    One year after date, I promise to pay to the order of Willoughby Wesner Five hundred dollars, with interest, without defalcation, for value received.
    Moses Stein,
    Amos Greenawalt.
    On the back of the note were the following endorsements :
    Pait the interest on this note in ful from April 1870 til April 1871. §30.
    Pait the interest on this note in ful from April 1872 in ful. §30.00.
    Pait the interest on this note in full from April 1st 1873 in full §30.
    April 1, 1874, pait the interest in full for one year §30.00.
    April 1, 1875, pait the interest for one year in full. §30.00.
    April 1, 1876, pait the interest April 1876 in full. §30.00.
    April 2, 1876, pait the interest April 1877 in full. §30.00.
    April 2, 1878, pait the interest §30.
    April 2, 1879, pait the interest fife mont in full.
    It was admitted that Greenawalt signed the note as surety. He pleaded the Statute of Limitations, and upon that issue the case went to the jury. . No judgment was asked against Stein. Greenawalt having died, his administrators were substituted on the record.
    On the trial it was shown that the several payments of interest endorsed on the note, with the exception of the last (dated April 2d 1879) were made by Stein. This last payment was made by Mrs. Greenawalt, wife of Amos Greenawalt, to David Wesner, agent for plaintiff, but the defendants alleged and produced evidence to show that it was Stein’s money which had been left at Greenawalt’s house for the purpose of this payment under the following circumstances: Greenawalt lived midway between Stein and Wesner, and in April 1879, Mrs. Stein, having been to Wesner’s with the money to pay the interest, and finding him absent from home, left word that she would leave the money as matter of convenience with Mrs. Greenawalt, her sister-in-law, where he could get it. David Wesner, at the request of the plaintiff, called the same day at Greenawalt’s house, when five months’ interest was paid to him by Mrs. Greenawalt in the presence of her husband, who, however, was suffering from paralysis. The amount was not sufficient to pay the interest due in full, hut Mrs. Greenawalt said ■that that was all the money that Mrs. Stein had left there. Wesner took the money, and endorsed the receipt for five months’ interest.
    In November 1878, Moses Stein, being in failing circumstances, called a meeting of some of his creditors with a view to confessing judgments for their claims. Amos Greenawalt being confined to ■ the house by illness, directed his son, Amos Greenawalt, Jr., to attend the meeting, arid to ask for a judgment on his claim, and also' to secure him in case he should have to pay the notes on which he was security; and a judgment was then confessed by Stéin to Amos Greenawalt, Sr., for $1511.10, which included the amount of the note in suit. It was stated at the meeting by Amos Greenawalt, Jr., that the only object of including in the judgment the notes on which his father was surety was in case his father should become liable upon them.
    The court submitted to the jury the question o.f face, whether the payment of interest on April 2d 1879, was made by Stein by the hand of Mrs. Greenawalt, or whether it was made by Greenawalt or by his direction. As to the effect of taking the judgment in favor of Greenawalt, to include the amount of the note in suit, the court charged, inter alia, as follows :
    “ The claim on this note is sought to be recovered against Mr. Greenawalt upon a promise that he should have to pay this debt, and that is the very point of this whole case; for, unless there has been a promise made by Greehawalt to pay this note, there can be no recovery against Greenawalt, and such a promise must be clear and explicit. Its terms must be unequivocal and determinate. This is the law, and unless the jury can find that such a promise has been made by Greenawalt himself, there can be no recovery against him in this suit. What is the evidence upon which it is relied .that, there was a promise made'? Without the promise there is no liability. * * * The taking of the judgment alone, if there was nothing else in it than the simple taking of the judgment' alone, would be considered as having been taken to secure himself against any contingent liability that may be had against him by the Wesners. If nothing more was said than that, the simple taking of it, at this meeting of the creditors, from Stein, would not amount to a promise to pay that note and to take it out of the Statute of Limitations.- What authority, first of all, had Amos S. Greenawalt when he went there ? Had he authority to bind his father to any new promise to pay this note ? Is there any evidence in the cause that he had authority to bind his father to the payment of this note? From all the facts and circumstances in this case can'the jury find that he had authority to bind his father to the payment of this note ? * * * If there was no authority, and the jury can find no authority from all the facts and circumstances of this case, which authorized the party to make a promise to pay this note, which was barred by the Statute of Limitations, there can be no recovery. On the other hand, if the jury should find that there was authority to do that thing, was it done ? is the next inquiry. Was there such a promise made by Amos Greenawalt to bind his father to the payment of this note ? * * * First of all, you will inquire whether there was any authority upon the part of Amos S. Greenawalt, the son, to make any obligation of his father to pay this note; whether he was authorized to hind his father to the payment of this note. If he was not, that is the end of this suit. If he was, then what took place there before the Squire at his office ? Did he obligate himself? Did he expressly say, when ho took that judgment, that he would pay those notes ? that his father would pay them ? that ho would give another note for those notes ? This is for the jury to find. The evidence is, so far as my recollection goes, and so far as I have read the testimony, that the judgment was taken before anything was said about it. Does all this amount to a promise to pay ? If it does, the plaintiff would be entitled to a verdict; but if it does not, there is no case for the plaintiff.”
    Verdict and judgment for the defendants. The plaintiff took this writ of error, assigning for error, inter alia, the charge of the court as above quoted.

      Frank R. Schell (H. Y. Kauffman with him), for the plaintiffs in error.
    A barred debt can bo taken out of the Statute of Limitations either by an express acknowledgment of the indebtedness or by a new promise to pay. If such an acknowledgment bo shown, a promise to pay may be inferred. The court erred in instructing the jury, that unless they found an express promise made by the defendant himself, there was no liability. The facts proved were ample evidence of such an acknowledgment, and the jury should have been permitted an opportunity to infer a promise from the evidence.

      Richmond L. Jones and Adam B. Schmehl, for the defendant in error.
   The opinion of the court was delivered by

Mercur, J.,

May 2d 1881.

This action was on a promissory note. Suit was commenced more than six years after the note became due. The plaintiff relied on acts and acknowledgments of the defendant to avoid the bar of the Statute of Limitations. The court charged that nothing less than a olear and explicit promise to pay was sufficient, that its terms must ’be unequivocal and determinate, and the promise must have been made by the defendant himself.

It is settled that the acknowledgment or admission must be a clear and unambiguous recognition of an existing debt, and so distinct and expressive as to preclude hesitation as to the debtor’s meaning, and as to the particular debt to which it applies, and must be consistent with a promise to pay ; but it is not necessary that there be an express promise to pay in order to avoid the bar of the statute. The debt is not destroyed by the Statute of Limitations, but the right of action or remedy is lost. When that is restored, the declaration is still on the original contract, and not on the acknowledgment as a new promise; such acknowledgment is but a. waiver of the statutory defence: Suter v. Sheeler, 10 Harris 310. Part payment of a debt within six years before suit brought is sufficient from which to infer a promise to pay, but the payment must be clearly proved: Burr v. Burr, 2 Casey 284; Yaw v. Kerr, 11 Wright 333; Patton’s Executors v. Hassinger, 19 P. F. Smith 311. It was said by the present chief justice, in Barclay’s Appeal, 14 P. F. Smith 69, there can be no more unequivocal acknowledgment of a present existing debt than a payment on account of it, and, according to all the authorities, this is all that is required to take a case out of the Statute of Limitations.

The original indebtedness must be established, then a clear, distinct and unequivocal acknowledgment of the existence of the debt, made within six years before the commencement of the suit, is sufficient to remove the bar of the statute.: Watson’s Executors v. Stem, 26 P. F. Smith 121. In the carefully considered case of Palmer v. Gillespie, 9 W. N. C. 535, decided at Pittsburgh last fall, we reviewed the authorities relating to an express promise, and held it was not necessary if the other essential ingredients are sufficiently proved.. The acknowledgment must be made to the creditor or his known agent, and by the debtor himself, or by some one authorized to act for him. The second and fifth assignments are sustained.

The plaintiff relies on acts and declarations of the defendant and in his presence, all of which transpired within six months before suit brought. The note in suit was on its face joint and several, but in fact, as between the signers thereof, the defendant was surety. He had also signed one other note with Stein in like manner to Jonas Wesner; Stein, the principal debtor, became embarrassed. A meeting was appointed for him and certain of his creditors, to be held at the office of a justice, for the purpose of giving some 'security to his creditors. The defendant was ill and unable to attend. His son, Amos S., had a claim against Stein, and was going to the meeting to look after it. The defendant testified, “I told my son that he should ask for a judgment to secure me, in case I should have to pay the notes on which I was bail.” The son testified his father said to him “that I should take a judgment for him.” Again, “my father said the Wesners won’t take a judgment, and you would (had) better take a judgment for the bail also.” lie further testified that he attended the meeting in company with several other creditors; that he took for his father of Stein a judgment of $1511.10, which was made up by the claim of his father, and the two claims on which his father was bail. Afterwards, on the same day, he informed his father that he had “taken a judgment, and — the bail; and his father said yes, or that it was all right.” This and other judgment obligations given at the same time were left with the justice, at whose office they were executed, under an agreement that they should all bo entered at the same time, and they were so entered of record.

As evidence of further recognition of the debt, a payment was made on the note equal to the interest due, and indorsed thereon on the 2d April 1879. It was paid at the house of the defendant and in his presence, to the agent of the plaintiif, who had the note with him, and presented it. The defendant was afflicted with paralysis, and his wife handed the money to the agent. The latter swears, at the request of either the defendant or his wife, he there endorsed the payment. The contention in regard to this payment is, whether it was made by the defendant, or whether it was with money left by Stein with the wife and she merely handed it over for him. If it was paid by the husband’s directions, it was evidence for the jury whether it was sufficient recognition of an existing indebtedness of his to create the presumption of a promise to pay. It was therefore error in the court to say to the jury, as in the tenth assignment, that if the son was not authorized to bind the father to the payment of the note “ that is the end of this suit.”

If this payment was not made by the directions of the defendant, but in his presence and hearing, without anything on his part indicating that he did not participate in it, the transaction, as well as his former directions to his son to take the judgment to secure him, were evidence to be submitted to the jury under proper instructions.

We discover no error in the first, sixth and thirteenth assignments. In so far as the remaining assignments are in conflict with this opinion, they are sustained.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Runkle versus Commonwealth ex rel. Keppelman.
    1. Where a person or body is clothed with judicial, deliberative or discretionary powers, and he or it has exercised such powers, according to his or its discretion, mandamus will not lie to compel a revision or modification of the decision resulting from vhe exercise of such discretion, though, in fact, the decision may have been wrong.
    2. Under the Act of May 23d 1874, Pamph. L. 230, a city controller is vested with deliberative and discretionary powers, and-is not liable to be controlled in his judgment, within the scope of his authority, by any court, through the agency of a writ of mandamus or otherwise.
    3. Where the question, as to who is the incumbent of a municipal office, is pending in the Supreme Court, on error to a quo warranto proceeding in the Common Pleas, the city controller will not be forced by mandamus to countersign warrants for salary, drawn upon the city treasury by one of the claimants of the contested office.
    March 4th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1880, No. 114.
    This was a writ of error to a judgment of the said court, awarding a writ of peremptory mandamus in favor of the Commonwealth, ex rel. John H. Keppelman against William A. Runkle, city controller of the city of Reading, commanding him to countersign certain warrants drawn upon the city treasurer in favor of said Keppelman, for salary as city clerk, and as secretary of the water board of the city of Reading.
    The case was heard in the court below upon demurrer to the respondent’s return to the petition and writ of alternative mandamus. The facts, as they appeared by the petition and the return, were as follows:
    On April 7th 1879, John H. Keppelman was elected clerk of select council of the city of Reading, and the oath of office was administered to and subscribed by him. By an ordinance of the select and common councils of the city of Reading, approved December 24th 1875, it is ordained that “the clerk of the select council shall" be ex officio city clerk, and secretary of the joint standing and special committees of councilsand by an Act of Assembly, approved March 21st 1865, it is enacted that the clerk of the select council of the city o.f Reading shall be ex officio secretary of the board of commissioners of water. When Keppelman attempted to enter upon his duties, and to hold and exercise the said offices, he was obstructed and prevented by one Edward A. Howell, the former incumbent, upon the ground that Keppelman’s bond and sureties had not been approved by councils. Keppelman, thereupon, instituted proceedings by quo .warranto against Howell in the Common Pleas of Berks county, and on June 18th 1879, the said court entered judgment of ouster against Howell, and Keppelman was thereupon installed in his said offices, and has since continued to perform the duties thereof. Howell sued out a writ of error to remove the proceedings in said quo warranto suit to the Supreme Court, to July Term 1879, No. 65 (see post, p. 328), which writ was pending and undetermined at the lime of these proceedings in the court below. Howell had exercised the duties of the offices until he w-as ousted on June 18th 1879, and the salary for the month of April 1879, had been paid to him. Keppelman presented to the city controller warrants for his salary as city clerk, and secretary of the water board, for the months of April and May 1879, which the controller refused to countersign upon the following grounds : 1. Because Howell, and not Runkle, had performed the duties of the said offices during the said months. 2. Because the salary for the month of April had been paid to Howell as city clerk, and secretary of the water board, upon warrants countersigned by the controller, whereby the appropriation for said salary for April 1879, was exhausted; and it was provided by Act of Assembly of May 23d 1874, sect. 85, that “no money shall be drawn from the treasury of the city unless the same shall have been previously appropriated by councils to the .purpose for which it is drawn.” 3. Because he was advised that the salary of the said offices follows the legal title to the same, and that so long as the title is in dispute, pending the determination of the writ of error to the quo warranto, the city of Reading is not indebted to Keppelman. 4. Because the .controller is, by the Act of Assembly creating his office, an officer elected by the people, invested with discretionary and judicial powers, which discretion he has exercised in regard to the relator’s claim by refusing to countersign the warrants. 5. Because mandamus is not the proper remedy in this case.
    The court, after argument, entered judgment on the demurrer in favor of the relator, and awarded a writ of peremptory mandamus against the said Runkle, city controller, commanding him to countersign the said warrants. Runkle thereupon took this writ of error, assigning for error the said judgment.

      C. H. Huhl, City Solicitor, for the plaintiff’ in error.
    The office of city controller for the city of Reading is created by sect. 39 of an act entitled “An act dividing the cities of this state into three classes, &c.,” approved May 23d 1874, Pamph. L. 251, which provides, inter alia, “he shall countersign all warrants on the city treasurer, and shall not suffer any appropriations made by the city councils or school board to lie overdrawn. * * * Whenever a warrant on the city shall be presented to him to be countersigned, the person presenting the same shall, if the controller require, produce evidence- — first, That the amount expressed-in the warrant is due to the person in whose favor it is drawn; second, That the supplies, or the services for the payment of which the Warrant is drawn, have been furnished or performed; third, He shall have authority to administer oaths or affirmations in verification of demands made for his signature. * * * Pie shall perform all the duties now enjoined on the county auditors by the laws of this state, and shall scrutinize, audit and settle all accounts whatever in which the city is concerned, either as debtor or creditor, where provision for the settlement thereof is made by law.”
    The controller is thus an officer invested with judicial discretion, which he is required to exercise in the settlement of municipal accounts. His acts are not simply ministerial. He is required to guard the city treasury, and prevent the payment of all claims which he may, in his judgment, consider improper, and may refuse to countersign warrants for payment thereof. He is the agent of the city; and no creditor of the city can, by proceedings against him, directly compel the exercise of his discretion in any particular manner: Com. v. The Judges, 3 Binn. 275; United States v. Lawrence, 3 Dall. 42; Com. v. Hultz, 6 Barr 469; United States v. Guthrie, 17 How. 304.
    The title to the office of the relator had not been finally determined; the judgment in the quo warranto case had been removed to the Supreme Court on error, and -was pending and undetermined. The relator’s right therefore being doubtful, could not he enforced by mandamus. He had an ample remedy by action at law for his salary, even if his right to the office were undoubted.

      Richmond L. Jones, for defendant in error.
    It would have been useless for Keppelman to sue the city, for the city did not dispute his right; and if, upon obtaining judgment, we had issued a mandamus, the controller would have arrogated to himself the same supreme jurisdiction to challenge the judgment at law as he has in this case. All the requisites for invoking the high writ of mandamus existed — Keppelman had been duly elected to the office and sworn in; his legal title had been settled by a judgment of the court on quo warranto; the writ of error to that proceeding was not a supersedeas, as no recognisance was filed; and th-e councils had duly appropriated the money to pay the salary. Mandamus is a proper remedy, even though an action at law may lie, if the latter remedy is not adequate to compel payment: McCullough v. The Mayor of Brooklyn, 23 Wend. 458; The People ex rel. Lynch v. The Mayor of New York, 25 Id. 680. The latter case is relied on by the other side, but is really in our favor, as all the elements that were lacking there to entitle Lynch to the writ of mandamus are present in this case.
   Mr. Justice Gordon

delivered the opinion of the court, March 14th 1881.

The court below seems to have regarded the controller of the city of Reading as a merely ministerial officer, otherwise it would not have sustained this writ of mandamus. There is no doubt but that the orders drawn by the relator in his own favor on the city treasurer were properly drawn and countersigned, so far as mere form went; but it by no means follows that he was thereby entitled to the money. Before he was so entitled, the controller must pass upon and approve them, and this, not as a mere ministerial officer, but as one having deliberative and discretionary powers, as the guardian and protector of the city treasury. The Act of 23d of May 1874, clothes him with judicial powers; he must not only countersign warrants drawn on the city treasury, but he is also required to pass upon their rectitude, and for this purpose he may not only make personal inquiry, hut may require the production of evidence. In other words, he must be fully satisfied : 1st. That the warrant is proper and right; that the city has received consideration therefor; and 2d. That a proper appropriation has been made to meet it. Moreover, he has authority “to administer oaths or affirmations, in verification for the demands made for his signature.”

Upon him also is imposed “ all the duties now enjoined on county auditors by the laws of this state, and he shall scrutinize, audit and settle all accounts whatever in which the city is concerned.”

But the powers of county auditors are as full and complete, within their jurisdiction, as are the powers of courts. They may issue subpoenas for parties and witnesses; they may compel the production of books and papers, administer oaths, compel the attendance of witnesses, and punish contempts by attachment. With all this judicial and deliberative power, the controller of the city of Reading is clothed, and of necessity he must be left free to exercise his own judgment. But how can he exercise these important functions if he is to be controlled in his judgment by the Court of Common Pleas, or by any other court ?

In the present case, Controller Runkle, for reasons satisfactory to himself, refused to approve the warrants drawn in favor of Koppelman ; this he had a right to do ; this it was his duty to do, if he believed the interests of the city would be protected by the refusal of such approval, and we know of no power in the Common Picas to substitute its judgment for that of this officer. Had the controller refused to act in the matter at all, the court by its mandamus might have compelled him to act, but this was all it could do, but after ho had acted, and had refused to sanction the warrants, it was a mere piece of usurpation on the part of the court to attempt to compel him to revise his decision, and adopt its judgment in preference to his own.

The rule governing cases of this kind may be stated as follows: Where a person or body is clothed with judicial, deliberative or discretionary powers, and he or it has exercised such powers according to his or its discretion, mandamus will not lie to compel a revision or modification of the decision resulting from the exercise of such discretion, though, in fact, the decision may have been wrong: Griffith v. Cochran, 5 Binn. 87; Commonwealth v. Perkins, 7 Barr 42; Commonwealth v. Mitchell, 1 Norris 343.

But the court was wrong, not only in treating the controller as a mere ministerial officer, but also in treating his act in rejecting the warrants as unsound and improper.

The warrants were drawn for the pay of Keppelman as clerk of the select council; but whether he was so entitled as such clerk, was as yet in abeyance and undetermined.

, Though his title to that office had been adjudged valid by the court below, yet, as the case was still pending in the Supreme Court, it was altogether proper for the controller to refuse the claim of Keppelman until the superior court had rendered its judgment. The judgment is reversed.


author: Mr. Justice Mercur

text:
    Howell versus Commonwealth ex rel. Keppelman.
    An ordinance of the city of Reading, provides that “the clerk of Select Councils, shall give bond * * * with two sufficient sureties, to be approved by councils, conditioned for the faithful performance of his duties, and before he enters upon his office, shall also take and subscribe an oath, etc.” Held, that the giving of the bond with sureties, and having the same approved,are conditions precedent to the right of exercising the duties, and enjoying the emoluments of the office.
    March 4th 1881.
    Before Sharswood. C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Berks county: Of July Term 1879, No. 65.
    Quo warranto by the Commonwealth of Pennsylvania-, ex rel. J. H. Keppelman against Edward A. Howell, commanding him to show by what authority he exercises the office of clerk of select council and ex officio city clerk of the city of Reading. The suggestion of the relator set forth that on April 7th 1879, the relator was duly elected clerk of select council and ex officio city clerk of the city of Reading, and took the oath of office, whereby he was entitled to perform the duties and receive the salary of such office; but that the respondent, his predecessor in office, continued unlawfully to hold and usurp the said office.' The plea of the respondent set forth that by an ordinance of the city of Reading approved December 4th 1875, it was provided as follows: “ Section. 2. The clerk of the select council shall give bond to the city in the sum of ten thousand dollars, with two sufficient sureties, to be approved by councils, conditioned for the faithful performance of his duties; and before he enters upon his office, shall also take and subscribe an oath or affirmation before the president of the select council to support the Constitution of the United States, and of this Commonwealth, and honestly to keep an account of all public moneys and property intrusted to his care, and to discharge the duties of his said office with fidelity.” That the relator’s suggestion for the writ did not set forth that the relator gave the required bond and that it was approved by councils, but that, in fact, ho did present a bond with two sureties, which bond was on April 28th 1879, “rejected” by a majority vote of the select council, and that he has not given any approved bond in lieu thereof. Further, that the respondent being the then lawful incumbent, by law held over in the said office until his successor should be duly qualified.
    Demurrer to plea and joinder therein.
    The court, Sassaman, A. L. J., held that under the ordinance, the duty of the relator to give a bond was a ministerial or official duty, and not a condition precedent to his assuming the office, to which he had been duly elected and sworn in ; that the only duty of councils was to approve or disapprove of the sureties, and that such disapproval was not sufficiently set forth in the plea, which merely stated that the bond was rejected by the council. The court, therefore, on June 18th 1879, entered judgment of ouster against the respondent in favor of the relator.
    The respondent took this writ of error, assigning for error the said decree.
    D. H. Wingard and Chester N. Farr, for the plaintiff in error.
    Quo warranto was not the proper remedy. The clerk of Select Council is an office held at the will of the council, and whore the order of the court on a quo warranto could be rendered nugatory by the council immediately discharging their clerk, the court will not act: Act of May 23d 1874, sect. 5, Pamph. L. 230; Ordinance of City of Reading, February 14th 1876; High’s Extraordinary Legal Remedies, sects. 632, 645; People v. Hills, 1 Lansing 202. Mandamus to select council was the appropriate remedy: State v. Lewis, 10 Ohio St. 128. The office of city clerk is a most important one. It was Howell’s duty, as the lawful incumbent, not to turn over the office until there was a responsible officer who had given bonds-: Dillon on Municipal Oorp. 157, 158. The approval of the bond is a condition precedent to entering upon the duties of the office: Ordinance of December 24th 1875, supra; Commonwealth v. Cluly, 6 P. F. Smith 270. The relator was not aggrieved by the respondent, and the question whether the bond was properly or improperly rejected by select council cannot be raised in this proceeding to which the council is not a party.

      Richmond L. Jones, for the defendant in error.
    The respondent, as clerk of select council, went out of office with the select council whose creature he was. He had no right to hold over to the next council. Ordinances prescribe that certain city officers shall hold over till their successors are elected and qualified, but there is no sueh ordinance as to the clerk of select council. It was not necessary for the clerk of select council to give any bond at all. But as the ordinance makes the clerk of select council ex officio city clerk, the ordinance requires a bond with sureties to be approved by select and common council. The bond was not a condition precedent. It was, as matter of fact, rejected by a single vote, the reason for which appears in the following minute: “ Mr. Stark, after reviewing his career as a democrat, stated that the reason he did not vote for the approval of city clerk Keppelman’s bond was because Keppelman would not give the ninth ward the water clerkship. On motion of J. G-. Young and O. Bauknecht a vote of thanks was tendered to John Stark for this very able explanation.”
    The bond has been in fact since approved and Keppelman installed. The term of office in dispute expired more than a year ago. Keppelman has been re-elected and now holds, and the case ought not to be in this court.
   Mr. Justice Mercur

delivered the opinion of the court May 2d 1881.

The relator sought by this writ of quo warranto to oust the plaintiff in error from the exercise of the office of clerk of the select council of the city of Reading, and virtute officii city clerk in and for said city, and to put him (the relator) therein. The question presented by the plea and demurrer is whether the relator was duly qualified in law to assume the duties.of the office.

“ Sect. 2 of the ordinance of said city declares ‘ the clerk of the select council shall give bond to the city in the sum of $10,000, with two sufficient sureties, to be approved by councils, conditioned for the faithful pérformance of his duties, and before he enters upon his office shall also take and subscribe an oath or affirmation before the president of the select council to support the Constitution of the United States and of this Commonwealth, and'honestly to keep an account of all public moneys and property intrusted to his care, and to discharge the duties of his said office with fidelity.’ The clerk is elected by the joint action of. the city councils. The ordinance of 14th February 1876, provides that the clerk shall hold his office for the period of one year and until his successor shall have been duly elected and qualified. The plaintiff in error had been duly elected and qualified for the previous year which had expired. The relator had been duly elected, taken the oath of office and presented a bond which was rejected by the select council. After its rejection the relator did not present nor offer to present any other or sufficient bond in lieu thereof. Ho nevertheless claimed a legal right to assume the duties and enjoy the emoluments of the office.”

It is contended on behalf of the relator that the ordinance does not require the bond to be given and approved before he enters on his office. The manifest object of requiring the bond is more fully to protect the public, and to obtain the additional protection given by the sureties against any improper conduct of the clerk. If the bond shall not be given before he enters on the duties of his office, when shall it be given ? It is conceded that it shall be at some time. Shall it be at the middle of his term, or on the last day thereof. When given, shall it relate back to the beginning of his term, and cover past transactions, or shall its protective power be restricted to subsequent acts ? Sound reason requires tho security to extend over the whole term, and to commence with the first act of the officer. Public policy forbids that any security required of a municipal officer should be waived. It should not be postponed until irreparable mischief may have been done.

Looking at tho language of the ordinance, it declares he shall “ also take and subscribe an oath.” The definitions of “ also,” given by Worcester, are “in the same manner,” “likewise,” “too,” “in addition.” The command is not merely that he take the oath alone, but that he shall take it in addition to doing some other act. That other act is to give the bond. If this word “also” did not refer to the bond as well as to the oath it would not only be useless, but senseless. Every reasonable presumption connects the two together; then he shall give the bond and “likewise” take the oath. It is unquestioned that he must take the oath before he enters on the office. If it must he “in the same manner” of time that the bond must be given, then both acts must, in like manner, be performed before he enters on the office. Thus we think a reasonable construction of the language shows it to be in harmony with the true intent and spirit of the ordinance. As, then, the relator had not duly qualified himself to fill the office, it follows he had no right to invoke the aid of this writ to put himself therein. It is no answer to say he had tendered a bond with two sureties. It was not approved by the councils, to whom the sole power of approval was given. They are presumed to have acted justly and prudently in rejecting it. If their conduct was illegal, the remedy of the relator was against them. The motives influencing their action cannot he inquired into in this case, to which they are not a party. The learned judge, therefore, erred in entering judgment in favor of the relator, and the assignments are sustained.

Judgment reversed, and judgment in favor of the plaintiff in error on the demurrer; and it is ordered that the said Edward A. Howell be restored to his office as clerk of select council of the city of Reading, unless his term has expired by its original limitation. It is further ordered that the relator, John H. Keppelman, pay the costs in this court and in the court below.


author: Mr. Justice Trunkey

text:
    Huntzinger versus Commonwealth.
    1. In order to support a judgment of restitution, under the provisions of the Act of March 31st 1860, sect. 179, Pamph. L. 425, the indictment must show that the money or other valuable thing was actually obtained and taken by the defendant. It is not sufficient that the fact appears outside of the record.
    2. A. and B., were indicted for conspiring to defraud C., by falsely representing to him that a certain banking institution whereof they were officers was solvent, whereby C. was induced to deposit money therein, although the said A. and B. knew that said institution was wholly insolvent. Held, on conviction, that as there was no allegation that A. or B. had taken C.’s money, a judgment of restitution under the provisions of the Act of March 31st 1860, sect. 179, Pamph. L. 425, against them was improper, and should be reversed.
    3. An allowance or refusal of a writ of error is not an adjudication that error does or does not exist. Hence when an allocatur in a criminal case is at first refused, but subsequently allowed, the first refusal constitutes no bar to a review of the case upon its merits.
    March 4th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Quarter Sessions of B^erks county: Of January Term 1880, No. 108.
    This was an indictment against Jacob Huntzinger and J. Albert Huntzinger, in the Court of Quarter Sessions of Schuylkill county,' for conspiracy to cheat and defraud, founded upon the oath of Thomas F. Kerns, prosecutor, who was a clerk of the said court. The venue was subsequently changed to Berks county.
    '• The indictment contained two counts. The first charged that the defendants being respectively president and cashier of the Miners’ Trust Company Bank of Pottsville, a corporation, “ did falsely and maliciously combine, conspire, confederate and agree together to cheat and defraud Thomas F. Kerns of a large sum of money, to wit, the sum of twenty-four thousand dollars, by means of falsely and fraudulently representing to the said Thomas F. Kerns that the said The Miners’ Trust Company Bank of Potts-ville was solvent and able to pay all its liabilities, and thereby inducing him to deposit in the said The Miners’ Trust Company Bank of Pottsville, the said sum of twenty-four thousand dollars, whereas .in truth and in fact the said Jacob Huntzinger, president, as aforesaid, and the said J. Albert Iluntzinger, cashier, as aforesaid, well knew, at the time that the representations, as aforesaid, were made, that the said corporation was wholly insolvent and unable to pay its liabilities, to the great prejudice of the said Thomas F. Kerns, contrary to the form of the Act of the General Assembly, in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”
    The second count charged that the defendants “ did falsely and maliciously combine, conspire, confederate and agree together to cheat and defraud Thomas E. Kerns of a large sum of money, to wit, the sum of $24,000, to the great prejudice of the said Thomas F. Kerns, contrary to the form of the act.”
    On the trial, before Hagesmax, P. J., the defendants presented the following point: “ That part of the sentence, in case of conviction under this indictment, must be that the defendants make restitution to the prosecutor. That it is the policy of the law to discourage criminal prosecutions to enforce redress for private injuries, but the true policy of the law is to require parties to seek redress in the civil courts for private wrongs.” The record failed to show whether this point was affirmed or not.
    The court charged the jury, inter alia, as follows :—
    “ This indictment contains two counts. The first alleges not only that the defendants conspired to cheat and defraud the prosecutor, but that they fully executed the conspiracy by the false representations and pretences therein specially mentioned. * * * But the Commonwealth ask for a conviction upon the first count of the indictment with a view to a judgment of restitution, if the defendants are found guilty. In order therefore to find the defendants guilty under this count, the jury must not only find that the defendants conspired to cheat and defraud Thomas F. Kerns, the prosecutor, but they must also find that the conspiracy thus formed was fully carried out, and that Kerns was actually defrauded of the moneys charged in the indictment.”
    Verdict guilty in manner and form as indicted. The following judgment and sentence was subsequently entered:
    “And now, to wit: January 22d 1878, the sentence of the court is, that you, Jacob Iluntzinger and J. Albert Iluntzinger, pay a fine of five hundred dollars ($500) to the Commonwealth for the use of the county of Berks; that you restore and pay to the prosecutor, Thomas F. Kerns, the property of which he was defrauded, to wit, the sum of twenty-four thousand dollars ($24,000), unless you have already done so; that you undergo imprisonment in the Berks county jail by separate and solitary confinement at labor for the period of two years, to be computed from this day; that you pay the costs, and stand committed until this sentence is complied with.”
    Immediately after the sentence was pronounced counsel for the defendants made application to this court for a special allocatur which, on January 28th 1878, was refused, the court filing the following order:
    “ This petition and the accompanying documents having been fully considered by the court, it is thought that no sufficient and substantial error appears to order an allowance of a writ of error.
    “ Allocatur therefore refused.
    “Per Curiam.”
    Subsequently, in vacation, another application for an allocatur was made to Paxson, J., who allowed the same. The defendants thereupon took this writ of error, assigning for error that part of the judgment and sentence which required the defendants to “ restore and pay to the prosecutor, Thomas E. Kerns, the property of which he was defrauded, to wit: The sum of twenty-four thousand dollars, unless you have already done so,” * * * “and stand committed until this sentence is complied with.”

      George F. Baer (with whom were G. E. Farquahar and F. W. Hughes), for the plaintiffs in error.
    The Act of March 31st 1860, sect. 179, Purd. Dig. 371, pi. 299, is the act by virtue of which the court assumed to enter judgment and sentence for restitution. It is the only act on the subject and provides as follows:—
    “ On all convictions for robbery, burglary or larceny of any goods, chattels or other property, made the subject of larceny by the laws of this Commonwealth, or for otherwise unlawfully and fraudulently taking or obtaining the same, or of receiving such goods, chattels or other property, knowing the same to be stolen, the defendant shall, in addition to the punishment heretofore prescribed for such offences, be adjudged to restore to the owner the property taken, or to pay the value of the same, or so much thereof as may not be restored. And on all convictions on any indictment for forgery, for uttering, publishing or passing any forged or counterfeit coin, bank-notes, check or writing, or any indictment for fraudulently, by means of false tokens or pretences, or otherwise, cheating and defrauding another of his goods, chattels or other property, the defendant, in addition to the punishment hereinbefore prescribed for such offences, shall be adjudged to make similar restitution, or other compensation, as in case of larceny, to the person defrauded: Provided, That nothing herein shall be so construed as to prevent the party aggrieved, and to whom restitution is to be awarded, from being a competent witness on the trial of the offender.”
    The commissioners to revise the penal code say, p. 37: “ This section is the consolidation, revision and extension of the various Acts of Assembly providing for the restitution of property feloniously or unlawfully taken from the rightful owner. Restitution in cases of forgery, counterfeiting, fraudulent uttering and publishing counterfeit coin or bank-notes, and cheating by false pretences, are additions to existing laws.”
    We contend that this statute does not authorize a sentence of restitution upon a conviction on an indictment for conspiracy. Conspiracy is not mentioned in the recital or definition of crimes mentioned. Being a highly penal statute it must be construed strictly. It was designed to cover larceny and similar crimes where the gist of the offence is the unlawful taking of another’s goods. Conspiracy is a radically different crime- — being the unlawful combination and agreement of two or more persons to do an unlawful (or a- lawful) act. The offence is complete even though no act be done in pursuance of the conspiracy: Sharswood’s Blackstone Com., book 4, p. 13'6. The indictment in this case charges the technical statutory offence of conspiracy only, it does not charge a pursuant act, in fraudulently taking the money of the prosecutor. The prosecutor is left to his civil action to redress the private wrong if his money was actually taken. Restitution cannot apply where the indictment does not charge the taking of goods. If it did, how is the amount to be liquidated ? The verdict was “guilty in manner and form as they stand indicted,” i. e., guilty of an unlawful combination — not guilty of unlawful taking. The Constitution declares an accused cannot be deprived of property unless by the judgment of his peers. No power to fix the value exists by law in the judge. In a civil case the amount could be fixed by a jury..

      A. W. Schalck, District Attorney for Schuylkill county (with him William N. Goodman, District Attorney for Berks county, William B. Mann, Lin Bartholomew, Francis W. Bechtel, H. C. G. Reber, Daniel and James Ermentrout), for the Commonwealth.
    It was perfectly proper to charge in the indictment both the conspiracy and its execution, for it was all one transaction. One charge will often include another, as robbery includes assault and battery, and also larceny.
    [TitUNKEY, J. — Where does the indictment charge that the defendant actually got the money ?]
    The first count of the indictment was intended to charge an executed conspiracy, and it was so treated by the court and the counsel on both sides. Although the language is not very strong it ma,y well be so construed.
    The Act of 1860 was a sweeping consolidation of the criminal law. The language is very broad, and was intended to provide for restitution in all cases where the defendant had obtained property by cheating, embezzlement, conspiracy, &c. The act provides that judgment of restitution shall be “in addition to the punishment heretofore prescribed.” Where the testimony shows the value of the goods, or where the case involves a definite sum of money, named in the indictment and established by the evidence, there is no difficulty in the court fixing the amount to be restored.
   Mr. Justice Trunkey

delivered the opinion of the court, March 28th 1881.

The indictment charges that Jacob Huntzinger, president, and J. Albert Huntzinger, cashier of the Miners’ Trust Company Bank, of Pottsville, a corporation, did conspire to cheat and defraud Thomas E. Kerns of twenty-four thousand dollars by means of falsely and fraudulently representing to said Kerns that said bank was solvent, and able to pay all its liabilities, and thereby inducing him to deposit in said bank the said sum of twenty-four thousand dollars, whereas the said Jacob and J. Albert, president and cashier as aforesaid, well knew said corporation was wholly insolvent, and unable to pay its liabilities. Of this conspiracy the defendants were convicted and sentenced to imprisonment, to pay a fine, to pay the costs, and to restore or pay to Thomas E. Kerns twenty-four thousand dollars. The sole question is, whether the indictment supports a judgment of restitution. It is not now and here gainsaid that the judgment in all other respects was right.

The offence of conspiracy is clearly and sharply set forth in each of the two counts in the indictment. Had Kerns not lost a dollar, on proof of the alleged conspiracy the defendants could have been as well convicted on the first as the second. In the first count only the means for accomplishment of their purpose are stated, namely, false and fraudulent representations to Kerns respecting the solvency of a corporate bank,' thereby inducing him to deposit twenty-four thousand dollars in said bank. It is obvious that the Commonwealth intended to state only th.e means intended to be used by the conspirators. Direct averment is not made that Kerns did deposit said money or that he lost the money. Certainly it cannot be inferred from anything in the indictment that the defendants themselves took or obtained the money, for it is a mere inference from the means they devised by which it may be said that the corporation got the money. If the part charging conspiracy be struck out, no crime or misdemeanor is stated in the indictment.

The conspiracy is complete when the parties have made the unlawful confederacy, and, therefore, it does not include another offence; as burglary is completed before other felony, which the burglar intended, is committed. Unless the crime besides the conspiracy, or the felony besides the burglary, be distinctly charged, there can be no conviction for anything but the alleged offence. These and like cases differ wholly from those where the greater include the less, or where by statute a person indicted for felony may be convicted of a misdemeanor. The Commonwealtlf could have preferred a count, charging the defendants with conspiracy, setting forth the means they used, and averring that with intent to cheat and defraud Kerns, they obtained from him twenty-four thousand dollars. But nothing more than conspiracy by the Iluntzingers is pleaded. They are not charged with having taken or obtained the money from Kerns.

The 179th section of the Crimes Act of 1860 is very broad, requiring in almost every criminal offence, including in its perpetration the obtaining of money or other valuable thing, in addition to the prescribed punishment, that the defendant shall be adjudged to restore to the owner such money or property, or pay him the value thereof. But the indictment must show that property was taken or obtained. It does this, of course, in robbery, larceny, false pretences and other crimes, which are not committed unless property be taken. Forgery is named in said section of the statute, yet one may commit forgery and not succeed in obtaining money or goods of another. Burglary is also named, but it is burglary of property, not burglary with intent to steal or do other felony. Conspiracy to cheat and defraud is not named, and if it is embraced it must only be when it has been executed. In every case, to support a judgment of restitution, the indictment must show that the money or other thing was actually obtained and taken by the defendant. This is as essential as that the indictment must show an offence punishable by a fine or imprisonment to support a judgment that the defendant pay a fine or undergo imprisonment. The record must be self-sustaining. A judgment without indictment or for an offence not charged in the indictment must fall. ■Divers statutes impose increased punishment on second conviction for certain offences, but unless the former conviction be stated in the indictment, the court cannot impose the increased punishment. Rauch v. Commonwealth, 28 P. F. Smith 490. In that case, Agnew, C. J., said: “On every principle of personal security and the due administration of justice, the fact which gives rightfulness to the greater punishment should appear in the record. To leave a judge to determine outside of the record is to subject the defendant to an unconstitutional mode of trial.” And this language is just as apposite, whore judgment of restitution is claimed, if the indictment does not charge the taking or obtaining of the thing asked to be restored.

It is scarcely necessary to remark that this case must be determined by the record. We are not unmindful of the argument on the part of the Commonwealth, but we fail to see how the points submitted by the defendants at the trial, and the charge of the court can have other effect than to induce care in consideration of the points now presented.

Nor is the narrative of the conduct of the Huntzinger family a prop to the judgment. Nor has there been a previous adjudication by this court. An allowance or refusal of a writ of error is not an adjudication that error does or does not exist. If it were, allowance would be equivalent to reversal, and refusal by the court or a judge in vacation, would be an affirmance without a hearing. When the record was presented, within a few days after the sentence, attention was directed to matters that struck at the trial, claimed by defendants as cause for entire reversal and another trial, and the clause of the judgment now assigned for error escaped consideration. When this clause was brought to the attention of Justice Paxson in vacation, and he was convinced the question raised was of so much doubt that it ought to be argued before and considered by the court, he properly .allowed the writ.

The part of the judgment in these words, “that you (Jacob Huntzinger and J. Albert Huntzinger) restore and pay to the prosecutor, Thomas F. Kerns, the property of which he was defrauded, to wit, the sum of twenty-four thousand dollars ($24,000), unless you have already done so,” is reversed.


text:
    Green’s Appeal.
    1. In this state the words “first mortgage” have a fixed, definite meaning and imply that the lien of the mortgage is prior that of any other claim.
    2. When any person sells a bond, setting out on its face that it is secured by a first mortgage, or induces another to guarantee it as such, he will, in the absence of any further qualification, be estopped from subsequently setting up a lien as against the guarantor and holders of the bonds.
    March 4th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trtjnkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Berks county: Of January Term 1880, No. 262.
    Appeal of Robert C. Green from a decree distributing the proceeds of a sheriff’s sale of certain real estate, the property of the East Penn Iron Company. The facts of the case, as they were found by the auditor (Frank R. Schell, Esq.), from the evidence adduced before him, were as follows:
    On April 15th 1874, John E. Noble entered into a written agreement to build for the East Penn Iron Co., upon the land of the company, two anthracite coal furnaces. The company agreed to pay him, in all, the sum of $180,000; $30,000 in current funds, $85,000 in first mortgage bonds of the.company, to be guaranteed by the Philadelphia and Reading Railroad Company, and $65,000 in stock of the East Penn Iron Co. The payments were to be made every month before the fifteenth day thereof, subject to monthly returns of the engineer and superintendent of the company. Ten p(er cent, of the contract sum was to be retained until the furnaces were complete.

      On May 19th 1874, Noble broke ground and set about the construction of the furnaces, but as the work went on, the East Penn Iron Co. failed to make the payments to Noble in accordance with their agreement. Noble was, accordingly, unable to pay his subcontractors, and on November 21st 1874, one firm of said sub-contractors, McIntosh, Hemphill & Co., filed a mechanic’s lien against the furnaces for §17,000.
    On December 30th 1874, an agreement was entered into between the East Penn Iron Co. and the Philadelphia and Reading Railroad Co., whereby the latter undertook to guarantee bonds of the former to the amount of §75,000. These bonds were to be deposited with the Safe Deposit Bank of Pottsville, and to be delivered to the East Penn Iron Co. at various stipulated intervals, as the building of the furnaces progressed. They were to be applied wholly to the erection of the furnaces. The guarantors reserved to themselves the right at any time to prohibit a further issue of the bonds.
    These bonds were to be secured by a first mortgage on the real estate of the East Penn Iron Co., to be executed to said Safe Deposit Bank as trustee for the various bondholders. On the same day, the bonds and mortgage were executed, the latter being recorded February 1st 1875. Each bond was headed and endorsed “ First-Mortgage Bond.”
    On February 2d 1875, §25,000 of bonds were issued to Noble, and on February 9th 1875, §23,000 more, making in all §48,000, with the understanding that Noble was to use them, inter alia, foi the discharge of the McIntosh, Hemphill & Co.’s lien. All the bonds thus issued to Noble he negotiated and transferred for value, paying §6000 of them to McIntosh, Hemphill & Co., on account of their mechanic’s lien, and selling the remaining §42,000 to brokers in Philadelphia. He subsequently paid off the McIntosh, Hemphill & Co.’s lion so as to reduce.it to §2070.55.
    The remaining §27,000 of bonds in the custody of the Safe Deposit Bank of Pottsville were never issued, the Philadelphia and Reading Railroad Company forbidding the issue of them on the ground that the East Penn Iron Company and Noble had failed to remove all the liens against the company from the record.
    Noble meantime steadily continued the building of the furnaces, the East Penn Iron Company being constantly in arrear in their payments to him. In July 1875, the furnaces were complete. Noble now made application to the company for the full amount due him, but payment was refused.
    Sub-contractork’ liens to the amount of §8441.71 had already been or were before the following November filed, including the balance still due to McIntosh, Hemphill & Co. On November 3d 1875, Noble himself filed a lien for §51,953.03, the balance he alleged to be still due to him on his contract. On April 11th 1876, Noble assigned this claim to R. C. Green. On November 11th 1876, the East Penn Iron Company confessed judgment upon this claim to the extent of $35,000, which judgment was subsequently opened on application of the Philadelphia and Reading Railroad Company. One Miller afterwards obtained judgment against the East Penn Iron Company, and issued a writ of vend, ex. against the furnaces, which were exposed to sheriíf’s sale and sold on June 9th 1877, for $55,000, which sum was paid into court and was the amount before the auditor for distribution.
    It was admitted that the liens of the sub-contractors and certain labor claims, amounting to $311.65, were entitled to payment in full, out of the fund. The residue was claimed (1) by Green as assignee of Noble’s mechanic’s lien, (2) by the holders of the bonds secured by the mortgage upon the furnaces, on the ground that Noble was estopped from filing any mechanic’s lien to take precedence of the mortgage of December 30th 1874 — (a) Because of his contract with the East Penn Iron Company, whereby he agreed to accept these bonds from the trustees in the mortgage as first mortgage bonds; (b) Because in negotiating said bonds he declared them to be bonds secured by a first lien upon the mortgaged premises, and therefore could not set up a superior lien in himself.
    The auditor, being of opinion that there was no such estoppel, awarded from the fund, after payment of costs and legal expenses, as follows:
    1. The full amount of the sub-contractor’s liens and labor claims.
    2. $34,172.44, the amount he found to be still due on Noble’s claim, to Green.
    3. The residue of the fund pro rata to the bondholders.
    To this report Green filed exceptions, on the ground that the auditor had erred as to the amount due upon his claim. The bondholders also filed exceptions, on the ground, inter alia, that they had been improperly postponed to Noble’s claim. The court, Hagenmak, P. J., (Sassaman, J., did not sit, having been of counsel in the cause), overruled Green’s exceptions and sustained those of the bondholders, and a decree was accordingly entered awarding from the fund, first, the amount of the sub-contractor’s liens and of the labor claims in full; and second, distributing the balance of the fund pro rata among the bondholders. From this decree R. O. Green appealed, assigning for error, inter alia, the postponing of his lien to the bondholders, and the failure to award him the full amount of his lien.
    G. R. Kaercher and James Ryon (with whom were James M. Healy, Horace Roland, S. H. Kaercher and F. W. Hughes), for appellant.
    The amount really remaining due upon the lien filed by Noble was $47,600. The facts of the case will not warrant the application of the doctrine of estoppel. The doctrine is not favored: Waters’s Appeal, 11 Casey 527. Every estoppel must be proved by facts positive or circumstantial: Commonwealth v. Moltz, 10 Barr 533; Sunderland v. Struthers, 11 Wright 422; Rhodes v. Childs, 14 P. F. Smith 25. Noble’s right to file a lien being statutory, can only be taken away by clear evidence of the relinquishment on his part of the right: Miranville v. Silverthorn, 12 Wright 150; Washabaugh v. Entriken, 12 Casey 513. The mere acceptance of the bonds by him as part payment on his contract, cannot preclude his right to file a lien for the balance due him. Nor can the bondholders take advantage of this fact as a ground of estoppel. The Philadelphia & Reading Railroad Company, guarantors, withheld |27,000 of the bonds. They must show performance of their full contract of guarantee before an estoppel can be invoked which will operate in their favor so far as partly to exempt them from liability on their contract of guarantee. Nor can the negotiating of the bonds by Noble be deemed to estop him from claiming priority on his mechanic’s lien. He made no misrepresentations whereby purchasers were deceived. His silence cannot be construed into an estoppel: Knouff v. Thompson, 4 Harris 361; Hill v. Epley, 7 Casey 334. The endorsement and heading “First Mortgage Bunds,” was a declaration of the company and not of Noble. It had reference to the facts existiug at the date of the bonds, and was therefore true, even if intended to mean “first lien,” with reference to claims that might be thereafter filed. Purchasers were bound to take notice of the condition of the real estate, and its liability to subsequent mechanics’ liens : Crest v. Jack, 3 Watts 240; Hepburn v. McDowell, 17 S. & R. 383. Besides “first mortgage,” it must be remembered, does not mean “first lien” in any sense. In every view, Noble’s lien is clearly entitled to priority: Mott v. Clark, 9 Barr 399; Hendrickson’s Appeal, 12 Harris 363; Wethrill’s Appeal, 3 Grant Cas. 281; Taylor v. Gitt, 10 Barr 428; Fisher v. Knox, 1 Harris 623.
    G. F. Baer, for appellees.
    The amount awarded by the auditor to Green was as much as he is entitled to in any view of the ease. The words “first mortgage” are synonymous in our State with “first lien.” That this was the understanding of the guarantors in this case is shown by their demand that the lien already upon the property at the time of the execution of the bonds and mortgages should be discharged out of the proceeds thereof. In this understanding Noble acquiesced. The negotiation then of the bonds by Noble to third parties must be deemed as a waiver on his part of any claim of priority for his mechanic’s claim. The case is fully within the requisites of an estoppel: McCully v. Pittsburgh & Connellsville Railroad Co., 8 Casey 32; Guiterman v. Landis, 1 W. N. C. 622; Cornish v. Abington, 4 H. & N. 556; Carr v. Lond. & N. W. Railroad Co., 10 L. R., C. P. 317; Philhower v. Todd, 11 N. J. Eq. 312; Covert v. Irwin, 3 S. & R. 283; Keeler v. Vantuyle, 6 Barr 250; Maple v. Kussart, 3 P. F. Smith 348; Workman v. Guthrie, 5 Casey 495; Carr v. Wallace, 7 Watts 394; Dean v. Connelly, 6 Barr 239; Brown v. McCormick, 6 Watts 60; Colder v. Chapman, 2 P. F. Smith 360; Clark v. Martin, 13 Wright 303; Ackla v. Ackla, 6 Barr 228; McElrath v. Pittsburgh & Steubenville Railroad Co., 5 P. F. Smith 189; Gregg v. Wells, 10 A. & E. 90.
   Mr. Justice Trunkey

delivered the opinion of the court, March 28th 1881.

After the completion of the furnaces, Noble filed a claim under the Mechanics’ Lien Law for $51,953.03. The auditor found the balance due him was $34,172.44. His counsel alleges that the auditor erred in stating ’ the sum due less than it should be, and that the true balance is $47,600. This is'less than the amount of bonds Noble received, and the fund for distribution is not sufficient to cover those bonds after deducting liens of sub-contractors. Then if Noble’s lien is not entitled to priority over the mortgage, it is useless to consider the alleged errors by which his claim was reduced.

Noble agreed to construct the furnaces for the consideration of $180,000, to be paid by the East Penn Iron Company, $65,000 in its stock, $30,000 in current funds, and “eighty-five thousand dollars of first mortgage bonds of said company, principal and interest guaranteed by the Philadelphia and Reading Railroad Company.” Subsequently, the East Penn Iron Company and the Philadelphia and Reading Railroad Company made an agreement, reciting that the former had made one hundred and fifty coupon bonds for five hundred dollars each, and a first mortgage upon their property therein mentioned, to secure the payment thereof, and the latter guaranteed the payment of said coupons and bonds on certain conditions, among which were that the trustee should hold the bonds clear of any control of the East Penn Iron Company, which should not be entitled to receive them until authorized .by the guarantor upon its becoming satisfied with the progress of the construction of said furnaces. Noble was not a party to the agreement between the companies. His contract contains nothing of conditions of guaranty. Before any bonds were authorized to be delivered to the East Penn Iron Company, a mechanic’s lien was filed, and Noble arranged to pay that lien because of the guarantor’s refusal to deliver the bonds while the same remained unsatisfied. From this he knew that the guarantor insisted upon the mortgage remaining what it purported to be by both agreements. And with this knowledge he received all the guaranteed bonds, which were delivered to the East Penn Iron Company— $48,000 ; nor did lie then assert in any way the right of priority in lien.

That Noble could file his claim and hold his lien as against the East Penn Iron Company has not been disputed, but the appellees contend that he is estopped from priority over the mortgage. The appellant denies that Noble either agreed with or represented to any one that the mortgage should have preference to his lien. Conceding, for the present inquiry, that his contract did not preclude the lien, then it dated from the commencement of the work, and was continued by filing the claim within six months after its completion. He bound himself to take less than half the contract price in first mortgage bonds to be guaranteed by a third party. What would the security to the guarantor be worth with a prior lien for the remainder of the price ? Each bond bore on its face the words “ First-Mortgage Bond,” and also the guaranty. Every one that Noble received he sold for just what it purported to be. The guarantor could well infer his agreement to postpone his mechanic’s lien, and the buyer would naturally believe he had done so. If he had a mental reservation to hold his lien against the guarantor and purchasers of the bonds, fortunately the law deals with expressions and acts of parties, rather than their secret intentions.

The Act of April 6th 1830 provides that, when the lien of a mortgage upon real estate shall be prior to all other liens upon the same, the lien of such mortgage shall not be destroyed or affected by sale of the real estate by virtue of any writ of venditioni exponas. That any one who contracts for a first mortgage, or who deals in first-mortgage bonds, does not know the phrase means the mortgage described in that statute, is incredible. This mortgage has long been esteemed the safest and most valuable of all real-estate securities for investments. The holder is not compelled to be ever watchful lest a subsequent creditor may sell at judicial sale and buy the property at a price that saves his debt at the loss of prior lien-creditors. In the business of half a century, a first mortgage has come to be very well understood to be one prior to all other liens. That is the kind of mortgage which was guaranteed, and the bonds thereby secured Noble received on his contract. The learned judge of the Common Pleas well said, “ When the parties covenanted for a first mortgage, it implied it first lien as clearly as if words to that effect had been inserted in the agreement itself. In the plain, ordinary and popular sense, first mortgage means first lien. When railroad bonds are sold in the open market as first-mortgage bonds all persons understand them to be first liens. When we speak of lending money on first' mortgage, no thought of anything but a first lien is entertained.”

This meaning of first mortgage is so thoroughly grounded as to lead to the sequence that a second mortgage is understood to be one without intervening liens between it and the first: Rice’s Appeal, 29 P. F. Smith 168. There, Ahl had a covenant for certain bonds. The able master said, “ The contract was that he should have $80,000 in second-mortgage bonds, which meant that there was to be no intervening encumbrance, and the confessing of the two judgments and then tendering to him the second-mortgage bonds was not a compliance with, the contract.” Agnew, O. J., characterized the act of placing on the property an intervening encumbrance as a breach of good faith; and Paxson, J., said, “ The bonds offered were not such a security as under his agreement he was entitled to receive.”

Appellant’s counsel urge that the endorsement “ First-Mortgage Bonds” is an assertion of the East Penn Iron Company, and not Noble’s. Yet, first of all, Noble covenanted for such bonds. Is it possible that when he sold them he made no assertion ? He sold them as they appeared. At their date Noble’s lien existed, and filing the claim only had the effect to continue it. The bonds gave notice of. the mortgage, and he held out the declaration “ First-Mortgage Bonds.” For such he contracted, as such they were guaranteed, and as such the holders bought them. The court is not simply called on to say whether “mortgage” and “lien” are synonymous. The question is not one of synonyms, nor of technical definitions of words as found in dictionaries. But what does a written contract made in Pennsylvania respecting securities on real estate mean ? When it calls for a first mortgage it means one prior to all other liens. When a party gives such mortgage, or sells a bond secured thereby, showing the facts on its face. <w when he induces its guarantee as such, unless there - be some qualifications expressed, he shall not afterwards set up a lien against the guarantor and holders of the bonds. His plainly-implied contract stands in his way.

Green stands in Noble’s shoes. There is not a scintilla of evidence to give him a better position than his assignor would have had no assignment been made.

Decree affirmed, and appeal dismissed, at the costs of the appellant.


text:
    Appeal of Lynch et al.
    1. A court of equity will not decree the rescission of a contract for the sale of real estate except upon the ground of mutual mistake or misrepresentation and fraud so clearly demonstrated as to leave no room for hesitation or doubt.
    2. Where in such case neither of the parties has dealt fairly with the other a chancellor will not interfere in behalf of either of them, but will leave them to their legal remedies if any such they have.
    3. A., desiring to purchase coal land, went with 15., a duly authorized agent of C., on a tract of land belonging to C., and was then informed by B., who professed to be familiar with coal lands that there was coal upon that land. Subsequently A., professing to wish the land for another purpose, had an interview with 0., in the course of which the latter stated his belief that there was coal on the land and that he had been so informed by a practical miner. The land had never been developed or tested for coal. The interview with O. ended in the purchase of the property by A., under articles of agreement which conferred full mining rights. Subsequently A. discovered that there was no coal on the tract, and thereupon filed a bill against 0., praying a rescission of the articles of agreement: Held, that the case was not a proper one for a decree in accordance with the prayers of the bill.
    4. Fisher v. Worrall, 5 W. & S. 478, and Smith v. Richards, 13 Peters 26, distinguished.
    March 8th 1881.
    Before Sharswood, C. J., Mekcur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Luzerne county. Of January Term 1879, No. 151. In Equity.
    Appeal of I. V. Lynch, J. O. Miles and John W. Miller from a decree of the said court, confirming a master’s report and directing that certain articles of agreement under seal between the appellants and Victor Koch be rescinded. By said articles, dated September 4th 1873, the said Lynch, Miles and Miller agreed to sell to said Koch ‘‘the coal lying in, under and upon ” a certain tract of land situate in the township of Blakely, county of Luzerne, * * * “ with all the privileges of mining and transporting the same, with the full and free right to enter upon said land, sink shafts, &c., if necessary,” in consideration of $6000, of which $500 was to be paid at the execution of the agreement, and the remainder in semi-annual instalments, with interest. Koch made the first payment of $500 as stipulated, and entered into possession. Koch subsequently filed a bill in equity to April Term 1874, against said Lynch, Miles and Miller, alleging that he had been induced to make the said purchase by misrepresentations of the defendants and of one W. H. Stanton, who acted as their agent, to the efiect that- there were at least three veins of coal running through the said tract, all of which were practicably workable. That the plaintiff had since discovered that the only coal in the tract is a little under one corner, which could not be practically worked. The bill prayed the rescission of the agreement, and that the defendants be compelled to repay the plaintiff the amount he had paid under the contract.
    The answer denied the misrepresentations as alleged, and denied the authority of Stanton, as agent of the defendants, to make the representations.
    The cause was referred to a master, who reported substantially that Stanton was agent of the defendants, and visited the premises in company with Koch ; that there had been no development of the land, experimental or otherwise, to test the existence of coal, but that Stanton, claiming to be familiar with coal lands, asserted that there were three underlying veins of. coal, in which statement of opinion Koch put entire faith. On the next day Koch and Stanton went to see the defendants, and on their way arranged between them that Koch should represent that he intended to buy the surface for the purpose of a summer resort; that he was indifferent as to the coal, but would like to purchase the defendants’ interest in the same to avoid the annoyance of parties prospecting for it, under any outstanding mining right. At the first interview no representations were made by defendants as to the existence of coal, but the parties were unable to agree as to the price. Koch offered $4000 and the defendants demanded $6000. The parties again met September 4th 1873. After some discussion “the defendants asserting their belief in the existence of coal, and one of them stating that he had been informed by a practical miner who had seen the property, that there were three veins of coal upon it,” Koch acceded to the defendants terms, and the agreement in question was executed. The master found as a fact that there was only a small quantity of coal in the land in such condition as not to be workable. The master reported that the defendants were bound by Stanton’s representations, which were untrue in fact; that the plaintiff, relying upon them, was induced to enter into the contract; that the defendants were not deceived by the plaintiff’s talk in their first interview about a summer residence.
    On the question of the effect of Stanton’s representations, the master reported as follows: “ It is not every misrepresentation of a fact that will avoid a contract, upon the ground of fraud, if it be of such a nature that the other party had no light to place reliance on it. Row, the master confesses that during the whole progress of the case, his impressions on this point were all against the plaintiff, and with the defendants, and that the rule of caveat emptor applied. This view was strengthened by the language of the present chief justice in the case of Watts v. Cummins, 9 P. F. Smith 91. Perhaps a case more analogous to the present one is that of Fisher v. Worrall, 5 W. & S. 478, where it is held substantially that a misrepresentation by a vendor of an occult quality in land, although made in ignorance of the truth, and although the vendee agrees to run the risk of this, is, in an action to enforce specific performance of the contract of sale, a decisive objection to the plaintiff’s recovery. * * *
    “ Untrammelled by the decisions, the master would hold that the most positive assertion of the existence of coal, where it was apparent to all parties that there was no development of the premises, should be treated as opinion only, and though confidently expressed and relied on by the other party, yet as affording no real ground for relief in equity. He believes, however, that the decisions settle it otherwise, and upon the authority of Fisher v. Worrall, supra, which the master concludes is not overruled or even materially modified by Watts v. Cummins, and must therefore be regarded as still the correct exposition of the law as hold in this state, the master reaches the conclusion, though with much hesitation, that the plaintiff had a right to rely on the statements made by Stanton as to the existence of coal, and that being untrue, it matters not whether the misrepresentation was intentional or otherwise. * * * The plaintiff had a right to rely upon them, and in fact did rely upon them, and purchased, believing them to be true. It follows that the plaintiff is entitled to have his contract with the defendants rescinded, and the master, therefore, in conclusion, reports that, in his opinion, it is proper to decree that, so far as said contract remains unexecuted by the actual payment of the purchase-moneys, the same be rescinded and delivered to be cancelled ; but that the prayer for the repayment of the ^500 be denied.”
    Exceptions filed to this report were, after argument, dismissed by the court, and the decree reported by the master confirmed, whereupon the defendants took this appeal, assigning for error, the dismissal of their objections and the entry of the decree.

      J. Vaughan Darling (with him E. P. Darling, Isaac P. Hand, and J. G. Miller), for the appellants.
    The alleged misrepresentations of Stanton were not such as to authorize a rescission of the contract. They concerned an occult quality in the land, and at best could be matter of opinion only. The master and the court below felt themselves bound by the decision in Fisher v. Worrall, 5 W. & S. 478, but that case was in effect an attempt to enforce specific performance of a contract, and there is a wide difference where the attempt is to induce a chancellor to rescind a contract on the ground of fraud: Graham v. Pancoast, 6 Casey 89; Bispham’s Eq. 203; Coil v. Pitts. F. College, 4 Wright 439; Watts v. Cummins, 9 P. F. Smith 91; Cummings’s Appeal, 17 Id. 404; Clark v. Everhart, 13 Id. 350.

      A. Ricketts, for the appellee.
    The contract was for the sale of “ the coal lying in, under and upon” the tract, with the right to mine it. The master has found that there was no coal in the land which could be mined. The plaintiff was deceived by the misrepresentations of the defendants and their agent Stanton, and was entitled to a rescission of the agreement and to the return of his partial payment of purchase-money.
   Mr. Justice Gordon

delivered the opinion of the court, March 21st 1881.

This is a case where the court below, in the exercise of its equity powers, has undertaken to rescind a contract under seal between the defendants, Lynch, Miles and Miller, of the one part, and the plaintiff, Victor Koch, of the other part, for the sale of all the coal lying under one hundred acres of land therein described. This could be done only on the ground of mutual mistake, or misrepresentation and fraud, and of these the evidence should be so clear as to leave no room for hesitation or doubt in the mind of the court. If there be any such hesitation or doubt the bill ought to be dismissed, and the parties turned over to their legal remedies. Herein it is, that we think both the master and the court below fell into a mistake.

The decree was based on certain representations, alleged to have been made by W. H. Stanton, who, as the master found, was acting as the agent of the defendants in the sale to Koch, but he has not found that these representations were, at that time, known by either Stanton or his principals to be misrepresentation. The master says: Arrived upon the ground, Stanton, claiming to be familiar with coal lands, asserted that there were three underlying veins of coal, though it was apparent there was no development of the land, or evidence of its having been subjected to any test to determine the existence or non-existence of coal. Koch, however, was evidently impressed with Stanton’s sagacity, and put entire faith in the latter’s opinion.”

It'is thus quite obvious that Stanton’s representations were not and did not profess to be of known facts, but were expressions of opinion only. It is true he may have impressed Koch with the idea that he was an expert, and thus may have given to his opinions a weight which they otherwise would not have had, nevertheless they were but opinions, and were not represented as facts. Indeed such could not well be, for Koch was upon the land, and could, and did see for himself, that the land was not developed. He, therefore, knew certainly that Stanton’s representations were merely the expressions of his opinions. Then, when he met with the defendants in person, they dealt with him at arms’ length; they made no representations whatever; they had what they believed to be a coal reservation to sell; to them Koch professed to be utterly indifferent whether it contained coal or not, representing that his object was to acquire their right for the purpose of relieving the surface, which be alleged he was about to buy, from intrusion by those who otherwise might enter to prospect a mine. Under such circumstances as these a chancellor might well hesitate about the rescission of a solemn contract of the parties. It may he admitted that the agent of the defendants did attempt to impose on the plaintiff by representations which he ought to have known to be false, and which he certainly did not know to be true; on the other hand it is an uncontroverted fact, that,the plaintiff'approached the defendants with a falsehood in his mouth in order to conceal his true purpose, and get their claim for as low a price as possible.

Here then is more than doubt; neither of the parties is acting fairly with the other, hence a chancellor will interfere for neither. Under such conditions he wdll interpose neither to execute nor rescind their contract, but will leave them to their legal remedies, if any such they have.

But there is another principle involved in this case which seems to have been overlooked by both master and court, and that is the wide difference between the facts and circumstances necessary to move a chancellor to refuse the execution of a contract, and those necessary to induce him to rescind it. In the one case interposition will be refused on the ground of improvidence, surprise or even mere hardship; in the other a court will act only on the ground of fraud, illegality or mistake; Graham v. Pancoast, 6 Casey 89; Edmonds’s Appeal, 9 P. F. Smith 220; Yard v. Patton, 1 Harris 278; Stewart’s Appeal, 28 P. F. Smith 88; Rockafellow v. Baker, 5 Wright 319.

The master confesses “ that during the whole progress of the case, his impressions on this point were all against the plaintiff, and with the defendants, and that the rule of caveat emptor applied.” He, furthermore says, that he reached the conclusion that the plaintiff had a right to rely on the statements made by Stanton, as to the existence of coal, with much hesitation. This hesitation was overcome by what he supposed the binding authority of Fisher v. Worrall, 5 W. & S. 478, and Smith v. Richards, 13 Pet. 26. But the former was a case of specific execution, and the latter one of plain misrepresentation and fraud, so that neither was in point. On all authority then this very hesitation should have led him to a different result. It might well be, especially if the testimony of Vanhooser is to be believed, that neither a chancellor nor a court and jury would enforce this contract against Koch, but under all the circumstances, especially in view of the fact that Koch himself approached the defendants with falsehood and misrepresentation, though perhaps they were not deceived thereby, yet as it may have induced them to deal with him differently from what they would otherwise have done, a chancellor will refuse his interposition to relieve him by the rescission of his contract.

The decree is reversed, and the bill dismissed at the costs of the appellee.