author: Chief Justice Agnew

text:
    Schenck versus Uber & Tees.
    1. The engine, machinery and cage constituting an elevator are realty, when put in by the owner as a part of his-building.
    2. A. mechanic’s lien may be created for an elevator by the owner or a principal contractor.
    3. Levan contracted with the defendant to put an entire elevator into his store; Levan contracted with the plaintiffs to furnish the cage, part of the elevator. Held, that the plaintiffs had no mechanics’ lien against defendants’ building.
    4. The Mechanics’ Lien Law does not confine the construction of a building to a single contractor, the owner may commit its main divisions to different contractors with power to each in his department to bind the building with a lien.
    5. Levan was not a contractor for a primary division of the building having the power of the owner to bind the building; his contract was minor and auxiliary.
    6. Duff v. Hoffman, 13 P. P. Smith 192; Harlan v. Rand, 3 Casey 511; Singerly v. Doerr, 12 P. P. Smith 9, distinguished.
    February 3d 1876.
    Before Agnew, C J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Philadelphia: Of January Term 1874, No. 265.
    This was a scire facias, issued June 15th 1872, by Peter H. Uber and Milton Tees, trading as Uber & Tees, against Joseph H. Schenck, owner, &c., and W. B. Levan and George H. Ball, contractors, on a mechanics’ lien, entered March 14th 1872.
    The claim was for $450, against a building and lot, on the northeast corner of Sixth and Arch streets, in the city of Philadelphia, “ being a debt contracted for mill-work, viz.: cage for elevator, furnished at the request of the said W. Barnet Levan and George H. Ball, by the said Uber & Tees, continuously, within six months last past, for and towards the erection and construction of, and on the credit of the said building, at the times and in the quantities in the annexed bill of particulars mentioned, to wit: from the 18th.day of September A. d. 1871, to the 19th day of September A. D. 1871, which bill said complainants pray may be taken and considered as part of this lien against said building of which the said Joseph H. Schenck then was and now is the owner, or reputed owner, and W. Barnet Levan and George H. Ball, contractors for the erection of said building, with whom the said contract was made; and the said Uber & Tees claim to have a lien on said building and curtilage appurtenant thereto, for the amount of the said claim. * * *
    “ Philadelphia, September 19th 1871.
    Messrs. W. Barnet Levan & Co.,
    To Uber & Tees, Dr.
    To cage for elevator for J. H. Schenck’s building, northeast corner of Sixth and Arch streets, as per contract, $450.00”
    On the 5th of June 1871, W. B. Levan & Co. entered into a contract with the defendant, Joseph H. Schenck, for a “ passenger and goods elevator,” in the building against which the lien was entered. One of the specifications for the passenger elevator was a car to seat four persons, to be finished as set out in the specification ; the whole cost of this elevator to be $2800; the goods elevator was to cost $1700 ; two-thirds of the purchase-money to be paid as the work progressed, and the remainder at its completion. The car or “ cage” was furnished by the plaintiffs upon the order of Levan & Co. .
    The case was tried March 12th 1873, before Peirce, J.
    Tees, one of the plaintiffs, testified that the cage was furnished by them on a contract with Levan & Co., and charged to them on plaintiffs’ books. Under objection and exception, witness testified that they furnished it on the credit of the defendant’s building, and had made it according to the specifications, except in a few particulars, which were dispensed with. Plaintiffs had not been paid for the cage.
    For the defendant, Levan testified that the car was delivered by the plaintiffs on the order and account of Levan & Co., and not on the credit of defendant’s building; plaintiffs were sub-contractors to Levan & Co. for that part of the machine. The elevator was not a success. Defendant had paid $8500 on account of the contract. The plaintiffs rendered their bill for the car to Levan & Co., and sued them for it. The car, by the contract of Levan & Co. with the plaintiffs, was to be delivered at the building; it was part of the material furnished under the contract of Levan & Co. with defendant. The car was not a failure.

      The defendant offered to prove that the elevator was not put up according to defendant’s contract with Levan & Co., and that it was dangerous and unfit for use; that defendant was obliged to have it altered at a cost of $1600; it being admitted that the defect was not in consequence of the car being improperly made.
    The court rejected the offer, and sealed a bill of exceptions.
    The following are points of plaintiffs, with their answers:—
    1. Barnet Levan & Co. were'such contractors, with Dr. Schenck the owner, for the erection of such part or portion of the building at the northeast corner of Sixth and Arch streets, viz.: for the passenger and goods elevators and machinery ; that a pei’son supplying them with materials for the construction of said elevators and machinery, can have a lien, as material-men, against said premises.
    2. Uber & Tees, the plaintiffs, having furnished the wooden cage for such elevator upon the credit of said building, and upon the order and direction of Barnet Levan & Co., the contractors with Dr. Schenck, are entitled to a lien against said premises.
    These points were affirmed without qualification.
    3. The wooden cage furnished by said plaintiffs to said building, and now being held and claimed as his own by the said Dr. Schenck, and used by him in his said building at the corner of Sixth and Arch streets, the plaintiffs are entitled to recover in this action.
    Answer: “ That is so, if you believe that the work was furnished there upon the credit of the building, but not otherwise.”
    4. The verdict of the jury should be for the plaintiffs.
    Answer: “ It is a question for the jury on the evidence, and as instructed in the law.”
    6. The plaintiffs can show by parol, that materials were furnished to the credit of the building, even if the building is not mentioned on the book of charges.
    This point was affirmed without qualification.
    The defendant’s point, which was refused, was:—
    If W. Barnet Levan & Co. contracted with J. II. Schenck to construct the elevator complete, furnishing the work and materials necessary for that purpose, including the cage, the plaintiffs, who made the cage for W. Barnet Levan & Co., are not entitled to maintain this action against J. H. Schenck, owner of the building in which the elevator was put up.
    The verdict was for the plaintiffs for $489.90.
    The defendant took a writ of error, and assigned for error:—
    1. Rejecting his offer of evidence.
    2-6. The answers to plaintiffs’ points.
    7. The answer to defendant’s point.

      W. Price, for plaintiff in error.
    — A contractor for the erection of an elevator is not entitled to a lien against the building: Kitson v. Crump, 1 Weekly Notes 164. A sub-contractor has no authority to charge a building for materials or work : Harlan v. Rand, 3 Casey 511; Duff v. Hoffman, 13 P. F. Smith 191; Singerly v. Doerr, 12 Id. 9.

      B. P. Wilson (with whom was J. 8. Price), for defendants in error.
    — By the contract with Leván & Co., the defendant made them contractors to erect part of the building, and therefore had authority to bind' the building for materials furnished: Duff v. Hoffman, 13 P. F. Smith 192; Derrickson v. Nagle, 2 Phila. 120; Young v. Elliott, Id. 352; Singerly v. Doerr, 12 P. F. Smith 9. This elevator was part of the building, and therefore the subject of a lien. Its method of construction makes it part of the realty, and it would be waste to remove it: Wademan v. Thorp, 5 Watts 116; Summerville v. Wann, 1 Wright 186; Singerly v. Doerr, supra; Morgan v. Arthurs, 3 Watts 141; Gray v. Holdship, 17 S. & R. 413; Witmer’s Appeal, 9 Wright 462; Heaton v. Findley, 2 Jones 304; Harlan v. Harlan, 3 Harris 513; Hoskin v. Woodward, 9 Wright 44; Oves v. Ogelsby, 7 Watts 106 ; Pyle v. Pennock, 2 W. & S. 390; Voorhis v. Freeman, 2 Id. 119. It was competent to show by parol that the cage was furnished on the credit of the building: Presb. Church v. Allison, 10 Barr 414; Kelly v. Brown, 8 Harris 447 ; Church v. Davis, 9 Watts 304 ; Wolf v. Batchelder, 6 P. F. Smith 87 ; Singerly v. Doerr, supra.

    February 14th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

The precise question in this case must be distinguished from others seemingly akin to it. It is not whether the engine, machinery and cage constituting a hoisting machine or elevator are realty. Certainly they are when put in by the owner as a part of his building. Such machines have become essential to the convenient use of large stores, factories, hotels and the like; and constituting a part of the construction of the building, pass with it. The question is not whether a lien may be created by the owner, or a principal contractor for the erection of the building. Undoubtedly, as for any other part of the construction of a building necessary for its use, according to its kind, a lien may be created for it by the owner or a principal contractor. The true question before us is, whether the contract under which the lien is attempted to be fastened upon the building is such a contract as confers on the contractor the power of the owner to bind the building by a lien for the work and materials furnished. Were Levan & Co. such contractors here ? It is thought they were, and Singerly v. Doerr, 12 P. F. Smith 9, and Duff v. Hoffman, 13 Id. 192, are relied on as authorities. But they are not authority for the position, unless we overlook what was said in the cases themselves, and the true intent of the Mechanics’ Lien law. To do so would be to confound all contracts relating to useful fixtures, or minor parts of the building with a contract for the erection and construction of the building itself. In the case of Harlan v. Rand, 3 Casey 511, following the letter of the Act of the 16th June 1836, it was said that the 12th section of the act distributes the parties to the work into three classes, according to their several functions, viz.: the owner, the contractor, called also the architect and builder, and the workmen and material-men. The law establishes one link and one only (says the opinion) between the owner on the one hand, and the workmen and material-men on the other. It requires the lien to be founded on contract, and it recognises no one as having power to contract, so as to make a lien against the building, except the owner and the contractor or architect. It is evident the writer of that opinion had in view the simple' letter of the statute, and therefore a single contractor for the whole building. But when the case of Singerly v. Doerr arose, we saw that too close an adherence to the letter would frustrate the purpose of the act. Many changes in business had taken place after the passage of the act, and many new subjects were added to those for which a lien was^ given. Besides, the law having originated in the necessities of Philadelphia, but having been finally extended over the whole Commonwealth, it was seen that the customs of this city were not always the same as in other places, especially in the country. In many instances the owner himself performed the functions of the architect or builder, and made contracts with different persons for the leading divisions of his building. That with one he would contract for the cellar and rough masonry, with another for the brick or frame work, and a third for the wood work, these all being leading parts in the constitution of the whole. Now, the main intent of the law being to secure the workmen and material-men whose labor and material enter into the construction of the building, and constitute its chief value, it was seen that to confine the power to bind the building to a single contractor, would emasculate the statute, whenever two or more persons were separate contractors for the principal parts of the building. In fact it would put it into the power of the owner always to defeat the main purpose of the statute, by simply dividing the construction of the building into separate contracts. Hence it was decided that the law does not confine the erection and construction of the building to a single contractor, but the owner may commit the main or leading divisions of the building to different contractors with power to each in his department to bind the building with a lien. The same question again arose in Duff v. Hoffman, 13 P. F. Smith 192, where the reasons were given more at large, and the limits of the power to bind the building under contract more distinctly defined. It was said, “ such contractor, however, must be one within the contemplation of the statute, to wit: a person employed to erect or construct the building. It is the contract for erection which communicates the owner’s power, and places the contractor alongside of the architect or builder. But there is a palpable distinction between a contract to erect and a contract to furnish toward the erection, whether it be work or material. One who contracts to put up a building, or one of its leading divisions, as its brick work or its wood work, is not a mere workman or a mere material-man. He is employed to erect and construct, not merely to work. Hence, we held in that case, that a lumber dealer employed merely to furnish lumber is not a contractor for the erection of the building or any division of it. He is a material-man merely, and not having a contract to erect, cannot bind the building for lumber furnished to him by another. Now this is the very point in this case. Levan & Co, were not contractors for any leading division in the erection of the building, but were merely machinists employed to put into the building two hoisting machines for goods and passengers. They employed Uber & Tees to make the movable cage or car.

Now, unless Levan & Go. were contractors for the erection of a primary division,of the building, they did not, according to the principles in Singerly v. Doerr, and Duff v. Hoffman, possess the power of the owner to bind his building. That they were not such contractors is very clear. Their contract was simply minor and auxiliary. They did not even contract to construct that part of the building called the well, in which elevators move up and down. They contracted to put into the building the engines, drums, cages and their necessary attachments, guides and steam pipes. Now it is evident this was not a contract for the erection Qr construction of any primary or main division of the building, but one merely for certain useful, or it may be necessary machinery, for the'convenient use of the building. Granting that when put in, it became part of the realty and as a necessary fixture it would pass with the building, yet'being put in by one not employed in the erection of any main division of the building, his contract was not such as communicated to him the power of the owner to bind the building with a lien for work and materials. Had the contractor for the wood work of the house been authorized, as a part of bis contract, to put in these machines, we -would perceive that being engaged in the actual erection and construction of one of the primary divisions of the building, and these being a part of his contract for construction, he had the owner’s authority to fix liens upon the building for this part- of the work. ’ But if we extend the doctrine of lien to every one employed in furnishing toward the building things which are convenient, useful or even necessary for the enjoyment of the property, but which do not constitute a part of the contract for the erection and construction of any primary division in the building, we abandon the very idea of Singerly v. Doerr, and Duff v. Hoffman, which simply extended the power of the owner to the contractors of leading parts of the building in order to reach the true intent of the Act of 1836'. In avoiding Seylla, we founder in Charybdis. To hold that a minor contractor, who undertakes to put in fixtures or conveniences, may bind the building for the work and materials furnished to him by others, would expose the owner to untold claims, and sink his building in costs. The multiplication of liens by such means would become an evil so great, legislation would have to remove it. But so long as we hold that the power of the owner can be communicated only to a principal contractor for the whole, or for some major and essential division in the erection of the building itself, we reach the spirit of the law, and protect those engaged in the process of erection under him, and at the same time save the owner from an indefinite multiplication of liens. This limit is clear and reasonable, and in the language of the opinion in Harlan v. Rand, “ it leaves to the owner a reasonable control in relation to the liens with which the house may be encumbered, and prevents their indefinite multiplication by others who are under no contract relation with him, for, I may add, a contract that is not for the construction of a leading division in the work of erection, is no contract within the meaning of the Act of 1836.” To cite Singerly v. Doerr, and Duff v. Hoffman, for any other doctrine; is contrary to the express words of the opinion before quoted. In a general sense all fixtures and useful conveniences that pass with the building are a part of it, but contracts to construct and put them in are not necessarily such contracts for erection and construction as the Act of 1836 contemplates. It may be said, however, that there will be cases where it is difficult to determine whether the contract is one for erection and construction of a leading or primary division of the building. This may occur, but the only consequence is that the fact must be decided by the jury on the testimony of those who are familiar and skilled in the business of building, under the guidance of the court as to the true principles applicable to the case. This is not novel, such inquiries being of frequent occurrence, especially in relation to alterations and additions to old buildings, before the act, giving a lien for repairs and alterations.

* In the present case it is clear that the contract for the engines, drums, cages and attachments of these hoisting machines, is not a contract for any leading or primary division of the building in the process of its erection, but is one for fixtures merely, useful, convenient and necessary, in the use of the building. Levan & Co., therefore, had no power to bind the building with a lien for the cages put in by the plaintiffs below.

Judgment reversed.


source: Caselaw Access Project

author: Per Cdriam.

license: Public Domain

text:
    Smith versus Philadelphia.
    1. Water-mains were laid by the authorities of Philadelphia in the street in front of houses of Smith ; he connected with the main water-pipes to the houses; he paid the city for laying the main ; also the water rents for two years. The water froze in the main, and in consequence the connections bursted ; Smith’s tenants refused to pay rent, and his houses were without tenants, &c. Alleging that 'the freezing occurred by the negligence of the city in laying the main too near the surface, he brought an action against the city to recover damages. Held, that he could recover back the water-rents but not for the other matters.
    2. Introducing water by the city into private houses is not a contract, but a license which is paid for.
    February — 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to tbe District Court of Philadelphia: Of January Term 1874, No. 261.
    This was an action on the case, brought March 26th 1876, by Jacob K. Smith against the city of Philadelphia.
    The declaration was, that the plaintiff was the owner of certain houses in Silver street, Philadelphia; that he paid the defendant for laying the water-main in that street in front of the houses, and also for permits to introduce the water; that the defendant had negligently laid the main too near the surface of the ground, so that it was frozen during two winters, and there was no water communicated to the houses ; the attachments and water-pipes bursted, whereby the plaintiff lost his tenants and the rents of the houses and the benefit of his payment for the main, permits, &c., and expended large sums of money in repairs, &c.
    The case was tried November 21st 1873, before Thayer, J.
    The plaintiff gave evidence that the water-pipes leading from the main had bursted by reason of the water being frozen; that he lost his rents in consequence; and generally in support of the allegations of his declaration.
    The defendant gave no evidence. The court charged that the plaintiff could not recover for the loss of rents, but only the water-rents paid for the time during which the supply was deficient.
    The jury found for the plaintiff for $128. He took a writ of error, and assigned the instruction of the court for error.

      J. W. Ilunsieker, for plaintiff in error.
    — A municipal corporation is liable for negligence to the same extent as an individual: Shearman & Redfield on Negligence, sects. 120, 137, pp. 139,163. Such corporation is liable for injury resulting from the improper performance of work which it was its duty to perform: Mersey Docks v. Peirce, 11 H. of L. Cases 686; West. Sav. Fund v. Philadelphia, 7 Casey 185; Baily v. New York, 3 Hill 538; Addison on Torts 731; Lacour v. New York, 3 Duer’s R. 406; Pittsburg v. Grier, 10 Harris 54; Pottstown Gas Co. v. Murphy, 8 Wright 263.

      JR. W. Willson (with whom was O. H. T. Gollis, City Solicitor), for defendant in error.
    — It is discretionary with the city whether she will extend facilities for furnishing water, and therefore she is liable only for injuries resulting directly from negligence, hut not whére the circumstances producing the injury are the same as if the work had not been undertaken: Wharton on Negligence, sect. 264; Carr v. Northern Liberties, 11 Casey 324; Grant v. Erie, 19 P. F. Smith 420; Atchinson v. Challis, 9 Kansas 603; Mills v. Brooklyn, 32 New York 489. The act of the city was not the proximate cause: Penna. Railroad v. Kerr, 12 P. F. Smith 353.
    February 7th 1876,
   Judgment was entered in the Supreme Court

Per Cdriam.

The claim here is not for damages arising from the bursting of the water-pipes laid by the city, but for the loss of the water caused by the bursting of the pipes leading to the plaintiff’s houses, from the action of frost. The real claim is for the' loss of the water, and this will not implicate the city in any loss beyond the consideration paid for its use, viz., the water-rents, and these were allowed. The introduction of water by the city into private houses is not on the footing of a contract, but of a license which is paid for.

Judgment affirmed.


author: Mr. Justice Sharswood,

text:
    Hubert versus Horter.
    1. A debtor was adjudged a bankrupt; whilst the proceedings in bankruptcy were pending he was arrested as a fraudulent debtor under the Act of July 12th 1842 and gave bond to apply to the Court of Common Pleas for the benefit of the insolvent laws. He made his application, which was dismissed because of the pending bankrupt proceedings. In an action on the bond, Held, that the dismissal of the application was a defence to the action.
    2. In the action on the bond, defendant pleaded that it had been obtained in a proceeding which was exclusively cognisable in the United States Bankrupt Court, the debtor having been previously adjudicated a bankrupt. The plaintiffs replied that the cause was not exclusively within the jurisdiction of the United States court and averred that the District Court of Philadelphia where the action was brought had jurisdiction and put themselves on the country. Held, the replication raised an issue of law and was to be treated as a demurrer, and defendant was entitled to judgment.
    3. The effect of the plea was to assert that the action was for a debt'for which the debtor would be discharged under the Bankrupt Law; if this were not so, he should have so replied.
    4. The defendant pleaded also “non est factum” and “nil debet;” the verdict was for the p'aintiffs; it was to be considered as rendered on these two pleas, as raising issues of fact; the judgment entered on the verdict was necessarily on the whole record and therefore erroneous.

      5. Under the Bankrupt Laws a debtor can be proceeded against for a debt created by fraud, embezzlement, defalcation as a public officer, or while acting in a fiduciary capacity ; unless the debtor had been arrested for one of these causes, the bond was discharged by his adjudication as a bankrupt.
    6. Barber v. Rodgers, 21 P. F. Smith 362, followed.
    February 4th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Cordon, Paxsoñ and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No. 266.
    This was an action of debt commenced December 30th 1872, by Washington Horter and Philip Belsinger; trading as W. Horter & Co., against John P. Harlan, Littleton Hubert and Thomas McBride; Hubert only was served.
    The declaration averred that “ the defendants, by their bond, dated July 20th 1872, acknowledged themselves to be jointly and severally held and firmly bound unto the said plaintiffs in the sum of five thousand five hundred/ dollars, * * * which said bond or writing obligatory was and is subject to a condition thereunder written, whereby, after reciting as follows, to wit: “ whereas, the above-mentioned and bounden John P. Harlan hath been arrested under a warrant of arrest issued out of the District Court, &c., and, upon the thirteenth day of July, a. d. 1872, committed at the suit of the said Washington Horter and Philip Belsinger for the sum of two thousand seven hundred and fifty dollars, besides costs; therefore the condition of the said obligation was such that if the said John P. Harlan should, within thirty days from the date thereof, apply by petition, to the Court of Common Pleas of Philadelphia county, or to a judge thereof, * * * for the benefit of the insolvent laws of the Commonwealth, * * * and if he failed in obtaining his discharge as an insolvent debtor, that he should, on the day of his so failing, surrender himself to the jail of the said county, then said obligation to be void, &c. Nevertheless, the said plaintiffs say that after the making of the said writing obligatory, and th-e delivery thereof to the said plaintiffs, the said John P. Harlan did not comply with all the requisitions of the said insolvent laws, and did not obtain his discharge as an insolvent debtor, but wholly failed so to do, and that he did not, on the day of his so failing, surrender himself to the jail of the said county. By means of which said breaches the said writing obligatory became forfeited, and an action hath accrued to the said plaintiffs to have and demand of the said Littleton Hubert the said sum of money in said bond mentioned.”
    Hubert pleaded “non est factum,” “nil debet;” and a special plea, viz:
    “ That the obligation and condition set forth in the plaintiffs’ declaration was obtained from him in a proceeding against the egtate and person of the said John P. Harlan, in the District Court of the city and county of Philadelphia, of and concerning a cause of action, which was exclusively cognizable by the District Court of the United States for the Eastern District of Pennsylvania in Bankruptcy. The said Harlan having been at the time of the institution of the said proceedings in the said District Court of the city and county of Philadelphia, theretofore adjudicated a bankrupt, &c. By reason whereof the said District Court of the city and county _ of- Philadelphia had no jurisdiction to require of the said Harlan the execution of the said obligation. And this the defendant is ready to verify,” &c.
    The plaintiffs replied:—
    “ 1. The obligation is defendant’s deed, &c.
    “ 2. The defendant is indebted, &c.
    “3. That the said cause of action was not exclusively cognizable by the District Court of the United States in Bankruptcy, and that the said District Court of the city and,county of Philadelphia had jurisdiction to require of the said Harlan the execution of th.e said obligation, absque hoc, that said last-mentioned court had no jurisdiction. Of which the said plaintiffs put themselves-on the country.”
    - Defendant rejoined “similiter and issue.”
    The case was tried on the 14th of November 1873, and a verdict rendered for the plaintiffs for $3046.10; judgment was entered on the verdict December 31st 1873. The defendant ’ Hubert removed the record to the Supreme Court by writ of error. The record showed nothing further.
    The history of the case by plaintiff in error, which was not denied by defendants in error, stated as follows:—
    “Upon 17th August 1872 the said Harlan, in the Court of Common Pleas of Philadelphia, obtained leave to file his petition for the benefit of the insolvent laws of Pennsylvania, and upon the same day the petition was filed. Upon 9th November 1872,-publication was duly made of notice of the application to the creditors of Harlan; and upon 26th November 1872 the petition rvas heard before the Court of Common Pleas, * * * and decree made 29th November 1872, as follows:—
    “ ‘In the matter of John P. Harlan, an insolvent debtor: And noAv, November 29th 1872, the matter of the petition coming on to be heard on the insolvent debtor’s petition for a discharge, and said insolvent being present in court, and by his counsel requesting to be heard upon said petition, the matter was duly argued by counsel for and against the said application, and it appearing to the court, by said insolvent debtor’s petition, that he had previously hereto been adjudged a bankrupt by the District Court of the United States, and that said bankruptcy is still pending and undetermined, it is hereby ordered that said petition be dismissed for that reason.’ ”

      The assignments of error were:—
    “1. Because the record shows that the verdict and'judgment in this case were against the plaintiff in error, as surety upon an insolvent bond executed by said John P. Harlan as principal; and that at the time of the institution of the proceedings in which said insolvent bond was given, the said Harlan had been theretofore adjudged a bankrupt, and said proceedings in bankruptcy were then still pending and undetermined ; therefore said judgment is null and void.
    “ 2. Said judgment is null and void because the Bankrupt Act of 2d March 1867 superseded all state insolvent laws, among ■which is the Act of General Assembly of 12th July 1842, under which said Harlan was arrested, and gave the said bond to take the benefit of the Act of General Assembly of Í6th June 1836.
    i|c
    “ 5. That the District Court of the United States in and for the Eastern District of Pennsylvania in Bankruptcy had the exclusive jurisdiction of the estate and. property and person of the said John P. Harlan, of and concerning which the said proceedings-in the District Court of the city and county of Philadelphia were instituted, therefore the said judgment is void for want of jurisdiction of said latter court.
    “ 6. Because the court below had not jurisdiction at the time of the rendition of the verdict and the entry of judgment in the above case.
    “ 7. Because the pleadings show no legal cause of action in the above case.”
    Cr. T. Bispham and A. Thompson (with whom was B. E. Qheyney), for plaintiff in error.
    — During existence of bankrupt law all state insolvent laws are suspended: Glaser’s Case, 1 L. T. B. Rep. 57 ; Perry v. Langley, Id. 34; Thornhill v. Bank of Louisiana, Id. 156 ; Commonwealth v. O'Hara, 6 Phila. R. 402; Griswold v. Pratt, 9 Metcalf 16 ; 1 Kent’s Com. 518, note (d) 390 (edition 1873); Eames’ Case, 2 Story’s Rep. 322; Sturges v. Crowninshield, 4 Wheat. 122. Proceedings in bankruptcy having been commenced the insolvent bond was void: Barber v. Rodgers, 21 P. F. Smith 362; Bishop v. Lewen, 1 Penna. L. J. 368; Nesbit v. Greaves, 6 W. & S. 120.
    6r. Bull, for defendants in error.
    — Congress has provided a general system of bankruptcy, but in doing so has excluded from the operation of the Act “ debts created by the fraud or embezzlement of the bankrupt,” (section 33), showing that it was not intended to be exclusive of all state remedies. It left the fraudulent debtor exactly where he was before. He can have no relief in bankruptcy, and is liable to civil or criminal process in the state court: Valk’s Case, 3 Bank. R. 73; Kimball’s Case, 2 Id. 74, 114; Black v. Bininger, 3 Nat. Bank. R. 518; Davis’ Case, 8 Id. 174 ; Cook v. Waters, 9 Id. 162; Chandler v. Siddle, 10 Bank. R. 236; Bertheton v. Betts, 4 Hill 577 ; Shepardson’s Appeal, 36 Conn. 23 ; Winternitz’s Case, 4 Bank. R. 127.
    February 21st 1876.
   Mr. Justice Sharswood,

delivered the opinion of the court,

The declaration below was upon a bond executed by the defendants on a hearing under proceedings upon a warrant of arrest, issued in pursuance of the Act of Assembly of July 12th 1842, “An Act to abolish imprisonment for debt, and to punish fraudulent debtors,” (Pamph. L. 334), conditioned that John P. Horter, the party arrested, should apply to the Court of Common Pleas of Philadelphia county, for the insolvent laws, and alleging a breach of the condition. To this the defendant, Hubert, the only one served with process, pleaded non est factum, nil debet, and a special plea — that the bond was obtained from him in a proceeding of and concerning a cause of action exclusively cognizable by the District Court of the United States for the Eastern District of Pennsylvania, in Bankruptcy, the said Horter having been theretofore adjudicated a bankrupt in the said court. The plaintiff replied, taking issue upon the first two pleas, and by a special replication denied that the cause of action was exclusively cognizable by the District Court of the United States, and averred that the District Court for the city and county of Philadelphia had jurisdiction to require of the said Horter the execution of the said obligation, and of this the plaintiffs put themselves on the country. It is very clear that the issue raised by the replication was an issue'of law and not of fact. It admitted the facts averred in the plea, but denied the inference of law. It admitted that Horter had been theretofore adjudicated a bankrupt. It can be regarded only as an informal demurrer. It must be considered, then, that the verdict rendered was upon the two other issues of fact. When, however, judgment was entered by the court below, it was necessarily upon the whole record. We think the judgment was erroneous, and that upon the whole record the defendant was entitled to judgment.

The plea demurred to in averring that the cause of action was exclusively cognizable in the Bankruptcy Court, in effect asserted that it was for a debt or cause of action from which Horter would have been entitled to his discharge under the bankrupt law. If it had not been so, the plaintiff should have replied that fact. Under the bankrupt laws, parties can still be sued and proceeded against for any “ debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character:” Revised Statutes U. S., sec. 5117, Unless the warrant of arrest was for one or other of these causes, Horter having been adjudicated a bankrupt, the condition of the bond was discharged: Barber v. Rodgers, 21 P. F. Smith 362. It has been stated in the paper-book of the plaintiff in error, and not denied in.the counter-statement, that the petition in the Court of Common Pleas, for the benefit of the insolvent laws, was dismissed by that court for the reason that he had previously been adjudged a bankrupt. Such a dismissal on that ground, whether right or wrong, would have been, if pleaded, a conclusive answer to the declaration on the bond.

Judgment reversed, and now judgment for the defendant below. February 28th 1876. It is ordered that the . judgment heretofore entered February 21st 1876, in favor of the defendant below, be vacated and set aside, and that a venire facias de novo be awarded.


author: Mr. Justice Gordon

text:
    Hey versus Philadelphia.
    1. Roads and bridges are made for ordinary travel; if they fulfil such purpose they are sufficient and those in charge of them are not responsible for extraordinary accidents occurring on them.
    2. If a road is so dangerous by reason of its proximity to a precipice, or any other cause, that common prudence'requires extra precaution in order to insure safety to travellers, the municipal authorities are bound to use such precaution.
    3. If the immediate cause of damage from-an imperfect highway be the effect of a precedent cause arising from a neglect of duty by a municipality, it is liable for it.
    4. In this case the plaintiff was driving on aroad in the city park ; his horse became frightened by a locomotive and turned and upset the carriage, and there being no barrier on the road, fell with the carriage into the river arid was drowned. The circumstances in this case evidence of negligence in the city in not putting up a barrier.
    5. Lower Macungie v. Merkhoffer, 21 P. P. Smith 276; Newlin v. Davis, 27 P. P. Smith 317; Pittsburg v. Grier, 10 Harris 54 ; Scott v. Hunter, 10 Wright 194, compared.
    February 4th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January-Term 1874, No. 267.
    This was an action on the case by Michael Hey, against the city of Philadelphia, brought to March Term 1872 of the court below for negligence in not sufficiently guarding one of the roads in the park, by reason of which the plaintiff’s horse fell into the river Schuylkill and was drowned, and the carriage and harness injured.
    The case was tried before Hare, P. J.
    The plaintiff testified that he was driving home through Fairmount Park with two daughters; he proceeded: “I crossed the Reading Railroad, and- was approaching the Connecting Railroad bridge. Just as I came around the bend a train on the other side approached the bridge. The bridge is very high overhead where it crosses the road. My horse began to get restive. There were high rocks on one side of the road; on the other side there was a steep bank faced with rough stonés, at the bottom of which was the river. A horse could not get to the left because of the high rocks, and if he went to the right there was nothing but this hank and the river. I was afraid on account of my daughters. I got out and held my horse facing the rocks. I held him by the head facing the rocks. I got out because I was afraid my horse might back over the bank. There was no fence, and I was afraid for my daughters. My horse backed me, and my foot slipped on a rock at the side of the road, and I fell. The horse got away from me; he turned short round and upset the wagon, and when I got up the horse and wagon were in the river. I saw only the wheel. I did not see them go over, but when I got up they were in the river. * * * There was no fence and no barrier between the road and the river. * * * The road was a good smooth road, about as wide as Sixth street. There was a foot-way between road-bed and the river. It was raised about usual height and curbed. ' It was about six inches higher than the middle part of the road. My horse was very gentle. He was not afraid of trains or locomotives. I was in the habit of driving close by railroads; could drive him close up to a train in motion, and he never shyed. Train on bridge was high overhead; would be likely to frighten any horse.”
    Caroline Hey, a daughter, testified : “ When we came round the bend of the road the horse became restive and uneasy. A train was just coming on the bridge. We could not see until we came round the turn, because of the rocks. My father got out and held the-horse by the head. He turned him away from the bank, and faced him close up to the rocks on other side. The horse pushed my father backwards. He got upon a large stone or rock and slipped and fell. Then the horse turned short, the wagon upset; and my sister and I were thrown out, and when we got up the horse and wagon were in the river, and my father was halloaing. * * * The rocks on one side were very high, so that there was no passage in that direction. On the other side the bank was'very steep down to the river. The face was rough, covered with rough stone. If a horse and carriage got over it could not stop until it got into the river. I drove often with my father. The. horse was very quiet and gentle, never shyed at locomotives; have often seen him driven close to trains and locomotives, both standing still and when in motion; he never showed any fear or uneasiness.”
    Other witnesses testified substantially in the same manner and also to the value of the horse, &e.
    Another.witness testified: “I know place where accident happened; approaching it you can’t see bridge till you come round curve; the trains run very high over head, and it is a place where even quiet horses are apt to shy and back. A great many pleasure carriages pass there all the time. Horses do frighten there; my own has taken fright and shyed and backed there, and he is a very quiet horse and fearless of locomotives. Under such circumstances some drivers would think it best to get out and hold the horse, and some would sit in wagon and trust to reins. If I .was alone I would risk it; if I had women in the carriage I would get out. I knew Mr. Hey’s horse; he was very gentle and quiet; not apt to shy at locomotives.”
    The court submitted the question of negligence to the jury reserving the following points:—
    1. Was there any evidence of negligence on the part of the city in the construction of the road?
    2. Was there any evidence that the damage to the plaintiff was the result of negligence on the part of the city ?
    The jury found a verdict for the plaintiff for $505; subject to the reserved points. The court subsequently entered a verdict for the defendant non obstante veredicto, Judge Hare delivering the following opinion:—
    “The plaintiff was returning to the city from a drive in the East Park. A turn in the road brought him to the margin of the Schuylkill, and in full view of the bridge of the connecting railway. He had the stream on one side, and a high bank of rocks or earth on the other. The road was wide and level, but there was a sharp declivity towards the river, with no guard or protection except a sidewalk raised some six inches above the road. A train was passing over the bridge, and the plaintiff’s horse took fright. He got out, took the animal by the head and turned it towards the bank. The horse continuing restive, the plaintiff got on a rock to obtain a better hold, but lost his footing and fell between the fore feet of the horse. The animal, freed from all restraint, turned short round, overset the wagon, sprang across the sidewalk into' the river, and was drowned. The plaintiff contended that the city was guilty of negligence in not erecting a guard between the road and the stream, and that the accident was atti’ibutable to that cause. The question was left as one of fact to the jury, and the law reserved for the consideration of the court.
    “ The question may be considered under two heads: First, is there evidence of negligence in the construction of the road; and next, did that negligence occasion the loss. I have found it exceedingly difficult to arrive at a satisfactory conclusion on either point. That the city is responsible for maintaining her highways in a 'safe condition, and that the question whether a particular highway is safe, must ordinarily be left to the jury, are propositions which no one is likely to dispute. It is also clear under the authorities, that when the road is steep or narrow, with a river, ravine or ditch, at the side, a fence or barrier should be erected of sufficient height to prevent vehicles from being forced off the road by any sudden or ungovernable movement of the animals by which they are drawn. But I am not prepared to admit that this precaution must be observed where the way is level, and there is no reason to suppose that an accident will occur with horses that are obedient to the whip and rein. One who drives a horse which cannot be controlled under ordinary circumstances, and where there is no peculiar cause of alarm, takes the risk, and cannot justly ask compensation if an accident.occurs. If this were the whole case, I should incline to think that the question should have been withdrawn from the jury. But there are other circumstances which require consideration. At the point where the accident occurred, the road crosses one railroad track at grade, and then passes almost immediately under another. There are sights and sounds which may excite or alarm a horse that is ordinarily quiet and well broken. There is no other convenient means of access to a park which has been laid out for the health and recreation of the citizens. It was, therefore, the duty of the Park Commissioners to anticipate the danger arising from the proximity of the tracks, and take more than ordinary precautions against the accidents w'hich the situation was.calculated to produce..
    “We have still to consider whether the negligence of the defendant was a proximate and efficient cause of the injury for which the plaintiff seeks to recover. The accident originated in causes over which the city had no control, and for which she is not answerable. These were: first, the passage of the railway train ; next, the ungovernable temper of the horse ; and finally, the plaintiff’s fall, which left the animal without a master. Up to this point there is certainly nothing for which the city can justly be held answerable.
    “ Does any responsibility attach for what ensued ? A horse which breaks loose from its driver and runs away, under the impulse of fear, becomes, for the time being, a blind brute force. His course is less susceptible of calculation than that of the winds or waves, or of the melting snows on a mountain. Whether he receives or occasions injury, the presumption is, that no one is answerable. To entitle the owner to compensation from the public purse, it should distinctly appear, not only that the authorities were negligent in the construction of the highway, but that the injury would not have been sustained but for their default. This can hardly be alleged in the present instance. In view of what might- have happened, we may regard the actual result as fortunate. It is contended, that if the side of the road had been guarded by a fence, the horse would not have been drowned. The soundness of this inference is questionable, because a creature in such a state of terror might have surmounted any ordinary harrier. If accepted as just, it would not aid the plaintiff. The horse would, in all probability, have sped down the road and been brought into collision with the archway of the bridge, or spme passing vehicle. Nor is this all; in such a crowded thoroughfare, human life might have been sacrificed. If it he said that this is speculative, and that the inquiry, whether the want of a safeguard was an efficient and concurrent cause, was one of fact for the jury; the answer is, that guessing is no part of the judicial function, by whomsoever exercised. The plaintiff must present some ground on which the mind can proceed with certainty to judgment. If he fails in this* he is not entitled to a verdict. This may sometimes be unfortunate ; but the evil would be greater if the jury were permitted to draw inferences at random.
    “ It is established, in Maine and Massachusetts, that no recovery can be had for an accident occasioned by a frightened or vicious horse, although it might not have occurred but for a defect in the highway at the point where the horse is injured, or the carriage broken: Davis v. Dudley, 4 Allen 557 ; Titus v. Northbridge, 97 Mass. 258; Eogg v. Nahant, 98 Id. 578; Moulton v. Sanford, 51 Maine 127; Moore v. Abbott, 32 Id. 66. Agreeably to' these authorities, if the horse was unmanageable when the accident occurred, it is immaterial, so far as the public-liability is concerned, that the driver kept his seat and the reins, and might have regained his control over the animal. I incline to think that as long as the struggle between the human and brute will continues, and there is a possibility that the man may prevail, he is entitled to protection against any default tending, although incidentally, to turn the scales. See Lower Macungie Township v. Merkhoffer, 21 P. P. Smith 276. But the point does not arise in this instance, where the occupants of the carriage were all precipitated to the ground before the horse made the plunge which led to his death.”
    The plaintiff took a writ of error and assigned for error the entering of judgment on the reserved points.

      R. P. White, for plaintiff in error.
    — A traveller has a right to presume that a highway in use is safe, and even if he 'knows of defect in it, he is only bound to use ordinary care in avoiding the danger: Shearman & Redfield on Negligence 413, 414, and cases cited; Humphreys v. County of Armstrong, 6 P. F. Smith 204. A town bound to provide for the safety of travellers ought particularly to guard against happening of accidents at railroad crossings : Orcut v. Kittery Point Bridge Co., 53 Maine 500. They are not ordinarily bound to fence roads, but are bound to fenc.e at places otherwise unsafe for travellers exercising ordinary care : Collis v. Dorchester, 6 Cush. 396. Whether fence is necessary is a question for the jury ; Booker v. Anderson, 35 Ill. 65; Hyatt v. Rondout, 44 Barb. 385 ; Norris v. Litchfield, 35 N. H. 271; Macungie Township v. Merkhoffer, 21 P. F. Smith 476. This was one of the ordinary incidents and dangers of travel which the city was bound to guard against by every reasonable means in their power: Scott v. Hunter, 10 Wright 194; Lund v. Tyngsboro’, 11 Cush. 563; Pittsburg v. Grier, 10 Harris 54. It was a question of - fact for the jury whether the want of a safeguard was an efficient and concurrent cause of the injury,' and there was ample evidence for them to pass upon it: Allen v. Willard, 7 P. F. Smith 378; Hays v. Gallagher, 22 Id. 136; McKee v. Bidwell, 24 Id. 218.
    . H. IF. Willson (with whom was O. H. T. Oollis, City Solicitor), for defendant in error.
    — The city claims that she is not bound to put or keep any or all of her highways in a condition which will insure or promote safety to horses which have broken away from, and are not under the control of their drivers, for the reason that the use of a highway by such an uncontrolled animal is not an ordinary, natural and legitimate use: Davis v. Dudley, 4 Allen 557 ; Titus v. Northbridge, 97 Mass. 258; Fogg v. Nahant, 98 Id. 578; Moulton v. Sanford, 51 Me. 127; Linton v. Chester, 1 Weekly Notes 192.
    March 13th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

The jury found that the city authorities were derelict in duty in not placing proper guards or barriers along the river side of this very-dangerous piece of road, and that this neglect was the proximate cause of the loss complained of by the plaintiff. The court on the other hand, regarded the fright and breaking away of the horse as the immediate cause of the disaster,'and hence entered judgment for the defendant, non obstante veredicto. Herein we think the court erred. It is true that ordinarily provision is not to be made against contingencies so rare as runaway horses. Roads and bridges ate constructed for the purpose of ordinary travel, and if- they fulfil such purposes they are sufficient, and those who have them in care are not chargeable with the results of extradrdinary accidents that may occur upon them.

These things must, however, be governed by common reason and observation. A road may be perfectly safe under some circumstances and very unsafe under others. A way of ten feet in width, in the open country, may be as secure as one of ten times that width, but along the brow of a precipice such a way would be very insecure. Perhaps, indeed, a steady, sure-footed team, handled by a cool and skilful driver, may pass over it as securely as over the former, but drivers of only ordinary nerve, with fractious teams are unsafe upon it, and it is just for this reason that such a road should be provided Avith guards Avhich, under ordinary circumstances, Avould not be essential. As..was said, per euriam, in the case of Lower Macungie Tsp. v. Merkhoffer, 21 P. F. Smith 276, “ a highway must he kept in such .repairs that even skittish animals may be employed without risk or danger on it.” So we have held that where a horse frightened and backed off a bridge, the township was responsible for the loss resulting therefrom because of the neglect of the supervisors in not providing side railings, by which notAvithstanding the fright of the horse, the accident might have been prevented. Newlin Tsp. v. Davis, 27 P. F. Smith 317. Had this accident happened upon an open and unrailed bridge, under circumstances similar to those exhibited by the evidence now under consideration, there could be hut one opinion as to the liability of the city. In such case the proximate cause of the disaster would be so obvious that no one could avoid its observance. Given secure side guards, and the driver is under no apprehension of immediate danger, Avbether his horse attempts to run or back; in either, case he retains his seat and the lines, and has a reasonable chance to save himself and his property — remove the guards, and he is at once surrounded by circumstances of extreme danger, calculated to appal an ordinary person, and it may, indeed, be the best thing he can do to abandon horse and carriage to their fate and endeavor, as best he may, to save his OAvn life. Here the circumstances created by the.neglect of the public authorities, are such as to render the accident not only possible but probable, and it is against such probabilities that they are hound to provide, and the want of such provision is negligence per se. There is, however, no reasoning which applies to a bridge that does not also apply to a road, for a bridge is but part of a road. If the road is so dangerous, by reason of its proximity to a precipice, or any other cause, that common prudence requires extra precaution, in order to insure the safety of the travelling public, why shall not the authorities be bound to such precaution.

Now that Hey was surrounded by circumstances calculated to excite alarm in the mind of an ordinary person, no one can Avell deny ; that the unfenced precipice was a dangerous element, Avhich Avould naturally beget such alarm, will no doubt also be conceded, and that he did nothing that a man of prudence ought not to have done the jury have found. Where then was the fault ? Was it not to be found in this unguarded declivity ? But it is said the running away of the horse was the proximate cause of the injury, and had it not gone over-the bank it might have gone farther with the same result in the end. This, however, does not follow, nor is it necessarily to be conceded, for ordinarily a dead horse does not result from a runavvay, and, hence, had there been proper guards at this place, the chances are ten to one the horse, at least, would have been saved. Granting, however, that the runaway was the immediate cause of the whole disaster, still the question remains, what produced the runaway ? In Pittsburg v. Grier, 10 Harris 54, the immediate cause of the sinking of the steamer, was the striking of some heavy body floating in the stream, nevertheless as the causa causans was some piles of pig metal, negligently permitted to lie on the public wharf, thus obliging the boat to occupy a position more dangerous than it otherwise would have occupied, the city was held liable. A like case is that of Scott v. Hunter, 10 Wright 194, in which Pittsburgh v. Grier is approved.

Thus we see that the immediate cause of the damage, may be but the effect of a precedent cause, and if the latter arises from a neglect of duty chargeable upon a municipality, such municipality is liable therefor.

As therefore, the jury, in view of all the circumstances of this case, might legitimately find that the losing of the control of his horse by Hey, resulted from the alarming character of the unfenced precipice, inducing him to jump from his carriage in order to save himself and his children from the threatened danger, we conclude that for this reason, if for none other, the verdict should have been permitted to stand.

We do not regard the cases to which we have been referred by the counsel for the defendant in error as in point. In all of them the immediate cause of the accidents complained of was the running away, or loss of control of the horses, occasioned by accidents unconnected with the condition of the roads over which they were passing. As in the case of Davis v. Dudley, 4 Allen 557, where the bolt, connecting the cross-bar and thills with the sleigh, broke and let them fall on the horse’s heels, thus frightening it and causing it to run. away, and during its flight it broke one of its legs upon a pile of wood lying in the road — it was held that the town was not liable. But if we reverse the case and suppose the fright of the horse to have been occasioned by some prudent endeavor of the driver to escape the danger of an obstruction in the highway, it is probable the decision would have been different. It is, however, only under the latter statement of the case that it becomes similar to that under consideration; hence it and its kindred cases have no applicability to the discussion in hand.

The judgment of the District Court is now reversed, and a judgment for the plaintiff below is entered on the verdict, and the record is directed to be remitted to the court now having jurisdiction of the records of said District Court for execution.

Chief Justice Agnew and Mr. Justice Paxson, dissented.


author: Per Curiam.

text:
    Ashburner versus Parrish et al.

    1. The plaintiff being in the employ of the defendants entered into a eon-tract with the United States, in his own name, for their benefit, and they became his sureties. Held, that the contract was against public policy and void.
    2. The contract was an imposition on the government, which was entitled to a real principal and sureties who were not interested as principals.
    3. The contract being against public policy the plaintiff could not recover from the defendants compensation for his services in procuring it.
    February 7th 1876.
    Before Agínew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No 294.
    This was an action of assumpsit, brought February 8th 1868, by Theophilus A. Ashburner, against George D. Parrish and others, trading as George D. Parrish & Co.
    The declaration was in the common counts; it was filed February 6th 1869 ; the same day a bill of particulars was filed, setting out that the plaintiff claimed the sum of $198,600, received by the defendants for his use on a contract, dated December 3d 1864, between Col. H. Biggs, quarter master, &c., of the United States army and the plaintiff, by which plaintiff agreed to have manufactured and delivered to the United States Arsenal, Philadelphia, on or before April 3d 1865, thirty thousand blankets, according to the quality and on certain conditions and terms specified in the contract, payment to be made by the United States upon delivery, &c. The last specification in the contract was :—
    “ 6. It is further agreed and expressly conditioned that no member of Congress is or shall be admitted to any share or part of this contract or agreement, or to any benefit to arise therefrom; that it is not transferable; that any sale, transfer or assignment of it (except under a process of law) shall and will be considered an abandonment of it, and the said party of the second part, his or their securities be held responsible for all loss, delay or damage to the United States, which may arise from such abandonment.”
    The plaintiff averred that the “ said sum had. been received by defendants from the 27th day of April 1865 to June 8th 1865, both inclusive, on vouchers delivered by the said plaintiff to the said defendants.
    May 1st 1869, the plaintiff’s counsel gave to the defendants’ counsel the following notice:—
    “ Under the common counts, plaintiff will seek to recover a reasonable-compensation for the procurement of the contract, of w'hich a copy was sent you February 6th 1869; that is to say, the sum of five per cent, on the aggregate amount received by the defendants under that contract.”

      On the 3d of April 1873, by leave of the court the plaintiff amended his hill of particulars as follows :—
    “ Under the common counts, plaintiff will seek to recover compensation for the use of his name, and the personal assumption of responsibility in the contract of which formerly notice was given, and for services in regard thereto, which were not within the scope of his employment as salesman of the defendant.” '
    On the trial December 30th 1873, before Briggs, J., the plaintiff offered in evidence the original of the contract hereinbefore set forth: the defendants objected to the offer because the demand of the plaintiff in support of which the evidence was offered, was void as against public policy and the Act of Congress, June 2d 1862.
    The court rejected the offer and sealed a bill of exceptions.
    The plaintiff offering no other evidence, the court directed a non-suit.
    The Act of Congress of June 2d 1862 (2 Brightly’s U. S. Digest, p. 93), provides amongst other things, that government contracts shall be signed by the contracting party; that the officer making the contract shall make affidavit that he has not corruptly allowed any advantage to the contractor or any other person.
    The plaintiff took a writ of error and assigned the rejection of this offer of evidence for error.

      J). W. Sellers and 0. Freeman, for plaintiff in error.
    — The claim was for labor in procuring a contract; this was not a meretricious procurement, but was meritorious. It was therefore not obnoxious to the Act of Congress of July 17th 1862, sect. 14, 2 Brightly’s U. S. Digest 94, pl. 9. This section provides that. “ No contract or order or any interest therein shall be transferred by the party or parties to whom such contract or order may be given to any other party or parties; and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned.” * * *
    The plaintiff did not claim under any transfer. Nor was he seeking to enforce any contract against the United States : Wheeler v. U. S., 6 Nott & Hunt. 504; Wanless v. U. S., 6 Id. 123.

      J. R. Read and J. FI. Growen, for defendants in error.
    — The plaintiff shows by his bill of particulars, that the defendants were the parties in interest; he permitted himself to be used as a pretense or sham, being in the employ of defendants as a salesman, and in so doing he practised a deceit upon the agent of the United States: Tool Co. v. Norris, 2 Wall. 45.
    Any legitimate labor that he performed for his employers touching their business was compensated for by the wages he received as their employee: Carr v. Chartiers Coal Co., 1 Casey 337; Wallace v. Floyd, 5 Id. 184. And if his labor was unlawful and such as was inimical to public policy, then a claim for compensation for it cannot be recognised. They also referred to Act of July 17th 1862, sect. 14, supra.

    February 21st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— It is evident that this case was tried in the court below, entirely upon the claim of thq plaintiff, that the contract was taken by him in behalf of the defendants, who became his sureties for its performance. They were, as he asserted, the real principals instead of the sureties, and he sought to recover from them for his services, both in procuring and executing the contract. This claim is clearly contrary to law and cannot be permitted. It was an imposition upon the United States, who were entitled to a real principal to execute the contract, and to sureties who were not'interested as principals. The Act of Congress and decision in Tool Co. v. Norris, 2 Wall. 45, establish this position. The bill • of exceptions shows the real ground of the decision, and this accords with the admitted nature of the plaintiff’s claim. The rejection of the contract did no injury — no substantial error was committed.

Judgment affirmed.


text:
    Milne’s Appeal.
    1. Defendant laid a foundation extending as a party wall on his neighbor’s lot; he erected a brick wall, also as party wall, on part of the foundation ; he could not by erecting a wall wholly within his own line prevent the erection from being a party wall.
    2. Defendant was bound to make the erection a solid wall; by making openings in it he became- a trespasser.
    3. If a builder starts the foundation as a party wall, thus taking the land of the adjoiner, he must carry it up so as to give the adjoiner all the benefits of a party wall.
    4. Vollmer’.s Appeal, 11 P. F. Smith 118, followed.
    February 7th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Philadelphia: In Equity : No. 288 ; Of January Term 1874.
    The bill in this case was filed December 6th 1872, by James Gordon, against Caleb Milne.
    The plaintiff since the year 1848 had been the owner of three adjoining lots, on the south side of Lombard street, Philadelphia, the easternmost lot commenced one hundred and two feet westward from Eighteenth street,' and the whole extended to the distance of forty-eight feet further west; on each lot was erected a brick dwelling-house; the depth of his lot is eighty-five feet; he resided in the westernmost house. The defendant derived his property from his father, and owned the ground west of the plaintiif’s residence; it is occupied by a cotton and woollen factory. There is a stone party w'all foundation, built by the father, of about nine inches in width, extending partly upon the plaintiff’s and partly on the defendant’s line south from Lombard street and beyond plaintiff’s south line. A brick party wall is built on the stone foundation which runs forty feet south from Lombard street; at the end of these forty feet the brick wall of the defendant’s factory recedes four and a half inches westward, continuing on the stone'foundation ; this portion of the brick wall being wholly on the defendant’s ground; the brick wall thus built extends southwardly for a further distance of thirty-nine feet and one and a half inches, and then advances four and a half inches to the proper party line. Opposite to the receding part of the wall are the back buildings of plaintiff’s residence with a lateral yard about three feet wide leading to a larger yard, south of his dwelling-house, which is opposite the low'er part of the receding wall; the windows of this back building face westward and open towards defendant’s receding wall. In the defendant’s receding wall he has placed four windows, the sills of these windows extend somewhat over the plaintiff’s line.
    The plaintiff’s bill set out these facts and alleged that his family, consisting of his wife and two grown daughters were, in consequence of the proximity of the defendant’s window's, subjected to many indignities and annoyances — which were specified — -from the persons employed in the factory, that their privacy was invaded and the enjoyment of their property almost wholly debarred ; that the tenants occupying plaintiff’s other two dwelling-houses were . subjected to similar annoyances, and threatened to remove unless the nuisance were abated.
    The prayer was: “ that the said defendant may be enjoined and directed to abate the said nuisance, by causing the said windows and the frames thereof to be removed and the spaces built up with bricks, as if the same were in fact and law a division party wall.”
    A special injunction was awarded.
    The defendant demurred to the hill and assigned as reason that the facts set out in the bill did not entitle the plaintiff to the relief prayed for.
    The court overruled the demurrer, on the following opinion opinion, by Judge Paxson :—
    “ This was a demurrer to plaintiff’s bill. The important point to be decided is, whether the wall between the properties of the plaintiff and defendant is a party wall. If it is, then the openings therein under the authority of Vollmer’s Appeal, 11 P. F. Smith 118, are in violation of law, and a nuisance which a court of equity will abate.
    “Defendant is the owner of a lot and factory on the south side of Lombard street, adjoining the lot and dwelling of the plaintiff. Some years ago, the father of the defendant, from whom the latter derived title, erected a wall on the line between his property and that of the plaintiff. The foundation of the entire wall was laid as is usual in the case of party walls, upon the line between the two properties. Upon this foundation a party wall was built from Lombard street, southward forty feet. At this point the said wall for the distance of thirty-nine feet and one and one-half inches southward, recedes westward for the space of four and a half inches, to the line of defendant’s property. So that this portion of the wall, although the foundations thereof are partly upon the plaintiff’s ground, is built entirely upon defendant’s lot, after it rises above the cellar. In this portion of the wall thus set back, have been placed a number of openings or windows which are the cause of the present complaint.
    “ That these openings are a source of very serious annoyance to the plaintiff and his family is apparent from the bill and is conceded by the demurrer. Has the defendant a right to maintain these openings ? It must be conceded that if the defendant or those under whom he claims, had constructed this portion of the wall entirely upon his own property, he would have had the right to leave openings therein. But having used his neighbor’s ground in part for his foundation, can he by receding at any point above to his own line, deprive the adjoining owner of the substantial benefits of a party wall? One of those benefits is the right to build thereto upon making compensation ; another is the right to have a solid wall (without openings) of brick or stone or other incombustible materials. ‘ If the first builder does not comply with the law and make the wall a solid^ne, he becomes a trespasser and wrongdoer.’ In Yollmer’s Appeal, and other cases cited in which the parties had been enjoined from using openings, the walls were admitted party walls their entire length and height. It would seem-, however, as if the present case comes within the reason of the rulings referred to. The character of the wall must be determined in part from its foundation. If the builder starts the latter upon the line and thus takes the land of the adjoining owner, he must carry it up strictly as a party wall or at least in such manner as to give the adjoining owner all the benefits of such a wall. Otherwise the land of the latter would be taken without any corresponding benefit.”
    The defendant then filed an answer.
    He stated the lot on which the factory was erected extended south from Lombard street, one hundred and forty-three feet to Naudain street,, his father became the owner of the lot in 1847, before which time a factory which fronted on Naudain street and extended forty feet northward had been erected; that part of the building in which were the windows complained of was erected about a year afterwards, and that part of the building which adjoined plaintiff’s residence was erected in 1849; two of the windows were put in when the second part was built, about 1847, and had been in adverse use ever since; the wall of that part was raised about the time of filing the bill and two other windows put into the raised portion ; the foundation wall was twenty-one and a half inches thick, of which seventeen inches are on defendant’s own ground; it did not come within six inches of the surface ; the brick Avail Avas entirely within defendant’s line; no part of it projects over the plaintiff’s line. He denied the allegations of annoyance, &c., alleged in the plaintiff’s bill.
    The other allegations of the bill were not denied.
    The case was heard on bill and answer, and on the 31st December 1873, the court, Allison, P. J., made the injunction perpetual, and the defendant was commanded to abate the nuisance, by causing the windoAvs and their frames to be removed, and the spaces built up Avith bricks.
    The defendant appealed to the Supreme Court and assigned the decree of the Court of Common Pleas for error.

      H. 0. Mitchell, for appellant.
    — The foundation of party walls under Acts of 1721 (1 Sm. LaAvs 124) and 1782 (2 Sm. Laws 48), are to he laid equally on the land of each party. Party Avails are those that are used for the benefit of both adjoining estates: Washburn on Easements 454.

      W. 0. McOandless, for appellee.
    February 21st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— The wall mentioned in 'the plaintiff’s bill is clearly a party wall. The defendant could not, by receding upon the foundation of a part of it, carry up that part within his own line, so as to destroy the character of the entire wall, and thus secure to himself the privilege of openings in it inconsistent with its character as a party wall. The case is sufficiently developed in the opinion of the court below.

Decree affirmed with costs and appeal dismissed.