author: Mr. Justice Gordon delivered

text:
    Pusey versus City of Allegheny.
    1. Under the provisions of Article XVT. section 8 of the Constitution of Pennsylvania corporations vested with the right of eminent domain are made liable to all consequential damages resulting to private property from the construction, use or alteration of their works, ways or other improvements.
    2. Where a municipality causes its streets to be opened it is bound to give compensation, not only to those whose property is actually taken for the construction of the streets but also to those whose property is injured or destroyed by the opening thereof.
    3. Where a property owner through whose land a street has been run is injured, both by reason of the taking of part of his land for the construction of the street-and also by reason of the cutting and grading thereof, he must, in. proceedings to recover damages, submit his whole claim to the viewers and the court. If he neglects to submit any part thereof he will be deemed to have waived his right to recover that part, and no second process can be had for its recovery.
    4. Seinble, that where the grading occurs as a separate act of the public authorities and so long after the opening of the street that the assessment of the damages at the time of the appropriation cannot include those resulting from the grading, the latter may by ascertained by a second view.
    5. The Supreme Court will not, on error to a judgment in an appeal under the Act of June 13th 1874 (Pamph. L. 283), from the report of viewers appointed to assess damages resulting- from the opening and grading of a street, take notice of the fact that such grading was done subsequently to the filing of the report appealed from, where nothing to that effect appears on the record.

      October 11th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 263.
    Feigned issue, between Mrs. Jane Pusey, widow of William B. Pusey, deceased, plaintiff, and the city of Allegheny, defendant, to determine the right of the plaintiff to damages for property taken and injured by said city in the opening, grading and construction of Charles street. The issue was founded upon a record certified from the Court of Quarter Sessions of Allegheny county, which showed the following facts :
    On March 12th 1874, the councils of the city of Allegheny enacted an ordinance authorizing the opening of Charles street. This street, as located and opened pursuant to said ordinance, passed through the plaintiff’s land a distance of nearly half a mile. To the final report of the viewers to assess damages, filed September 11th 1875, William B. Pusey and Jane, his wife, in her right, filed exceptions and demanded a trial by jury; and on October 9 th 1875, the record was ordered to be certified to the Court of Common Pleas No. 2, for that purpose. Afterwards, on motion of the city solicitor, a rule was granted to show cause why this order should not be vacated, which was made absolute. The Supreme Court, however, on certiorari, reversed the decree of vacation, reinstated the former order of October 9th 1875, and awarded a procedendo to the Common Pleas. (See Pusey’s Appeal, 2 Norris 67).
    The record was accordingly certified to the Common Pleas. In the order of the Common Pleas framing the issue, the plaintiffs were directed to file a narr. averring their damages. The narr. filed in pursuance of this direction claimed damages not only for the taking of three acres seventeen perches of land for the said street, but also for injuries done to the plaintiff’s farm of the following character : damage to grass, crops, trees, fences, etc.; damage arising from excavations, embankments, walls, culverts, obstruction of ingress and egress to and from the public road; the removal of a barn to another site; the quarrying and carrying away of stone and gravel, and obstructing the stone quarry by a permanent embankment; and general damage produced by running the street through the farm, thereby dividing it into two distinct parts. William B. Pusey died before trial, and his death was suggested of record.
    On the trial, before Kirkpatrick, J., the defendant objected to all evidence offered by the plaintiff to prove damages other than those resulting from the location and appropriation of the ground actually taken for said street. The court overruled the objection, reserving the same as a question of law; and, at the suggestion of the court, the following special verdict was submitted to, and found by the jury:
    “ We find the damages resulting to the plaintiff over and above all advantages resulting from the opening of Charles street, and the appropriation of the necessary ground therefor and as taken by the city of Allegheny, defendant, and resulting from this, and' this alone, to be $5,458.
    “We find the damages resulting to the plaintiff over and above all advantages resulting from the opening of Charles street, and the appropriation of the necessary ground therefor and as taken by the city of Allegheny, defendant, and also and i/n addition thereto resulting from the construction of the said street, its grades, cuts, fils, slopes, walls, c&c., to be $12,500. For which amount of $12,500 we render a verdict for the plaintiff and against the defendant, subject to the opinion of the court upon the question of law reserved, viz.:
    “ W liether or not there can be a recovery in this action over and above the actual value of the ground taken by defendant for the use of said street, and the location and opening of the same; and if the court should be of the opinion that there can be no recovery over and above the damages resulting from the location and appropriation of the ground actually taken for said street, then judgment to be entered for the smaller amount, viz.: the, sum of $5,458, non obstante veredicto.”
    The court afterwards entered the following judgment:— “And now, June 10th 1881, after argument and upon consideration of the special verdict, the court is of the opinion that judgment should be entered for the plaintiff, for the lesser sum found by the jury, viz.: The damage resulting from the opening of the street in question ; and it is ordered that upon payment of the verdict fee judgment be entered on the verdict in favor of the plaintiff, for the sum of $5,458.”
    The plaintiff took this writ of error and filed the following assignment of errors:—
    “ 1. The court erred in holding and ruling upon the question of law reserved, that there can be no recovexy in this action over and above the damages resulting from the location and appropriation of the ground of the plaintiff actually taken by the defendaixt for the opening of Charles stx-eet.
    “ 2. The court exu-ed in x-efusing to enter judgment on the verdict for $12,500, the amouxxt of damages for which the juxy i’endered a verdict in favor of the plaintiff and against the defendaixt.”

      Thomas M. Marshall (J. S. and A. P. Morrison with him), for the plaintiff in error.
    Under the provisions of the eighth section of the sixteenth article of the constitution, we claim that the plaintiff is entitled not only to compensation for property actually taken, but also to compensation for property injured by the defendant in the construction of said highway. That article and section expressly provides, that “ municipal corporations invested with the privilege of taking private property for public use, shall make just compensation;” not “for property taken” alone, but also for property “ injured . . by the construction or enlargement of their works, highways or improvements.” Also provided in the article and section above cited, that “ The General Assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers or otherwise.” And, further, that “ the amount of damages in all cases of appeal shall, on the demand of either party, be determined by a jury according to the course of the common law.”
    It has been decided by this court in Pusey’s Appeal, 2 Norris 67, that the plaintiff in error was entitled to an appeal and trial by jury as matter of right, under the‘provisions of the constitution above cited, arid the Act of June 13th 1874, passed to give force and effect thereto.
    Such trial was intended to determine the amount of consequential damages arising from the construction of the street as well as the direct damages for the land taken. The same question was ruled in Williams v. City of Pittsburg, 2 Norris 71; Pachler’s Appeal, 9 Norris 209 ; and City of Reading v. Alt-house, 12 Norris, 400.

      W. B. Rogers, for the defendant in error.
    —Admitting, for argument’s sake, that since the new constitution damages may be recovered for the injury or destruction of private property by a municipal corporation, we contend that this proceeding is not one in which that principle can be administered. The ordinance of March 12th 1874, authorized solely the opening of Charles street, and viewers were appointed to assess damages arising from such opening. There is a clear distinction between a proceeding for opening and one for grading a street. In this case, no grade had been ñxed, no ordinance passed for the grading; the viewers had nothing to do with the grading. The report was simply on the opening. Had the viewers included damages for grading, their report would have been quashed by the court: In re Ridge street, city of Allegheny, 5 Casey 391. The appeal from the report under the Act of 1874 and demand of a jury trial raised the single issue of damages for opening. Besides, the verdict and judgment in a street-opening case is not a jndgment quod recuperet, but it must be certified back with the record to the Quarter Sessions to have the damages and benefits assessed. The remedy for damages by reason of grade is a distinct and specific proceeding under the Act of May 1st 1876 (Pamph. L. 86), under which benefits as well as damages may be equitably assessed.
    November 7th 1881.
   Mr. Justice Gordon delivered

the opinion of the court,

Under the 8th section of the 16th article of the constitution of this Commonwealth, municipal, as well as other corporations, in whom are vested the right of eminent domain, are required to make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements. This is an advance upon the limitation of the right of eminent domain, as found in the bill of rights both of the present constitution and that of 1838. Corporations in whom the legislature has vested this right, are, by this section, made liable for damages resulting to private property, from the construction, use or alteration of their works, ways or other improvements ; in other words to such damages as are ordinarily called consequential. This being now tire supreme law of the land, it znust govern the case under consideration, and it is idle to. recur to decisions and legislation, the authority of which, as to all present and futuz’e cases, is, by this pz’ovision, annulled. The report of viewers from which the appeal in this case was taken, was filed, as we are informed by the statement of the plaintiff in error1, on the lltlz of September 1875, and the ordinance for the opening of Charles street bears date March 12th 1874 Whether the cutting and grading complained of were done between these dates, or subsequently to the former’, we do not know, as we have nothing in the shape of a record from which to inform ourselves. Neither, for the same reason, do we know the amount of damages awarded by the viewers, or how they were made up. It is for this reason that we cannot entertain the allegation of the counsel for the defence that there had been no grading done until after the report of viewers, nor his argument, based on this hypothesis, that it was improper for the jury to consider what the viewers could not have passed upon. No such question appears to have been raised in the court below, and we cannot agree to discuss what is not before us.

The third point of the defendant developes the material subject of controversy, and is as follows: “ That the measure of damages is the difference between the value of the property as a whole, with the street located thereon, and the property as it was before tbe street was located, without regard to grades after-wards made.”

This point was refused, and we think, for the reasons already given, it was properly refused. But to this decision the court did notoadhere. A special verdict was directed, and the jury found that the damages, resulting over the above all advantages, from the appropriation of the land alone, were $5,548 ; that the damages to the remainder of the property, consequent upon the construction of the street, its grades, cuts, fills, slopes and walls, and including the value of the land, were equivalent to the sum of $12,500. Upon this verdict the court entered judgment for the amount first named, and rejected the larger amount which included consequential damages. This judgment was erroneous. As we have seen, the constitution in positive terms requires compensation to be made, not only for the private property that a corporation may appropriate to its own use, but also for such as it may injure or destroy. Hence the plaintiff was entitled to recover whatever damages she had suffered at the hands of the city, whether direct or consequential, and the contention that she must divide her claim, and recover for the property appropriated for the street, under the Act of 1870,' and for the injury resulting from the cutting and grading by a different process under the Act of 1876, cannot be sustained. Such a method of splitting up damages resulting from a single transaction, and thus multiplying suits, is contrary to all legal policy; neither can it be supported by the Act cited. Under this statute, where the grading occurs as a separate act of the public authorities, and so long after the opening of the street that the assessment of the damages at the time of the appropriation cannot include those resulting from the grading, the latter may be ascertained by a second view, but not so where both can be assessed at one and the same time. The taking and the injury to the remaining land form but a single subject of complaint, and for them there can be but one assessment.

From this it follows, that the property owner not only may, but must, submit his whole claim to the viewers and to the court, and that part thereof which he neglects so to submit must be taken to have been waived, and no second process can be had for its recovery.

The judgment of the court below is now reversed, and it is ordered that judgment be entered for the plaintiff in the sum of $12,500, the full amount of the special verdict, with interest and costs.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Kaiser versus Fendrick and Young.
    1. Where, under a rule of court, an affidavit of claim is filed disclosing a good cause of action, and subsequently an affidavit of defence is filed denying the truth of certain portions of the affidavit of claim material to the plaintiff’s case, it is error to permit those portions of such affidavit thus denied to be read in evidence on the trial.
    2. A. and B. brought suit against C. on a promissory note signed by A. & Co. drawn to C.’s order and by him indorsed. The affidavit of claim set out that the note was given by one D., a member of the firm of A. & Co., -whereof the plaintiffs were the remaining members, without the plaintiff's knowledge or consent. That said note had been given by D. in order to take up an old note of the firm of E. & Co. whereof he had been a member, which old note was in the hands of C., having been given to him in payment for a horse furnished to the firm of E. & Co. for which neither the firm of A. & Co. nor the plaintiffs were liable. Said affidavit then further stated that C. had indorsed the note in suit before maturity to a bona fide holder, who had collected from the plaintiffs the amount of the same. The defendant filed an affidavit of defence setting out, inter alia, that he had given a full consideration for the note in suit which had been received by A. & Go. and became part of the assets of the said firm. On the trial, the affidavit of claim was offered in evidence and was read under objection. Held, that it was error to allow such material parts of the affidavit of claim as wore’traversed or denied by the affidavit of defence to be thus put in evidence. Held, further, that without other and competent evidence to prove the facts on which the plaintiff's case hinged, it was error to admit in evidence the note upon which suit was brought.
    3. In the above case the defendant offered to show that at the time of receiving the note in suit, he was informed by D. that the firm of A. & Co. had agreed to assume the debts of the firm of E. & Co. Held, that as this constituted no proof that A. & Co. had so agreed, the offer was rightly rejected.
    4. Defendant also offered, in order to show that A. & Co. had consented to assume the debts of E. & Co., to prove that the horse for which the original note to E. & Co. was given had been taken and used by A. & Co. Held, that as this constituted no proof of such assent on the part of A. & Co., the offer was rightly rejected.
    5. Defendant also offered, to prove that he took the note in suit without knowledge that any objection was raised thereto by A. and B. Held, that this offer was irrelevant and was rightly rejected. It was the duty of defendant, before taking the note, to ascertain affirmatively that all the members of the firm of A. & Go. assented to its issue.
    6. Defendant also offered to prove that he had sold a horse to A. & Co., receiving the note in suit as payment. Held, that though this offer was inconsistent with the other ones, yet nevertheless it must be presumed to have been made in good faith, and since, if proved, it would have constituted a sufficient defense, it was error to reject it.

      October 12th 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, Jj.
    Error to the Court of Common Pleas No. 2, of Allegheny cov/nty: Of October and. November Term 1881, No. 193.
    Assumpsit, by Charles B. Fendriek and Peter Young against F. Kaiser, on a promissory note for $135, signed “ Miller, Fendriek <& Co.” to the order of F. Kaiser and by him indorsed. The plaintiffs filed an affidavit of claim, wherein they averred that said note was given by John Miller, a' copartner with plaintiffs, in the firm of Miller, Fendriek & Co., without their knowledge or consent, for an antecedent debt of said Miller and others, formerly copartners, trading as Bardoe, Fried & Miller; that the note in suit was given by said Miller not on account of the business of the firm of Miller, Fendriek & Co., but for and in place of a note previously given by Bardoe, Fried & Miller, for the price of a horse sold by said Kaiser to Bardoe, Fried & Miller, for which neither the firm of Miller, Fendriek & Co. nor the said plaintiffs, members thereof, were liable; that Kaiser indorsed the note in suit for value before maturity to one Enrick, who, on nonpayment thereof at maturity, brought, suit thereon, whereupon the plaintiffs, by reason of the wrongful acts of the defendant, were compelled to and did pay the amount ■thereof to said Enrick who delivered the same to the plaintiffs.
    The defendant, in his affidavit of defence, averred, inter alia, “that for said note a full and valuable consideration was given by said defendant to said makers, which consideration was received by said firm of Miller, Fendriek & Co., and became assets of said firm.” A rule for judgment for want of a sufficient affidavit of defence was discharged by the court.
    On the trial, before Kirkpatrick, J., the plaintiff’s counsel proposed to read, as admitted under the rule of the court, the material portions of the jfiaintiffs’ affidavit of claim. Objected to, because “all of the material averments in the affidavit of claim are denied in defendant’s affidavit of defence.” Objection overruled, and evidence admitted; exception. (1st assignment of error.)
    The court admitted in evidence, under objection by defendant, the note sued on. (2d assignment.)
    Defendant’s counsel proposed to show “ that Mr. Kaiser sold to the firm of Bardoe, Fried & Miller, a horse for $135, and that he received from said firm of Bardoe, Fried & Miller, a promissory note therefor; that before maturity of said note, the firm of Bardoe, Fried & Miller was dissolved, Mr. Miller forming a copartnership with the plaintiffs in this case; that by agreement between Miller and Mr. Kaiser, the firm of Miller, Fendriek & Company were to assume the indebtedness originally contracted by Bardoe, Fried & Miller, and -this, as Mr. Kaiser was informed by Mr. Miller, by the consent of the firm of Miller, Fendrick & Company. Further, that the horse mentioned was taken by the firm of Miller, Fendrick & Company and used by them in their business ; that he received this note upon which suit is brought from Mr. Miller, without knowledge that any objection was raised thereto by the remaining members of the partnership of Miller, Fendrick & Company, and that he indorsed the same without such knowledge for value.” Objected to ; objection sustained. (3d assignment.)
    Defendant’s counsel then proposed to prove “ that the defendant sold to Miller, Fendrick & Company a horse, and that he received the firm note of Miller, Fendrick & Company in payment for it; that he indorsed the note so received before maturity and without knowledge that the same was not given in the course of partnership business.” Objected to; objection sustained. (éth assignment.)
    The defendant requested the court to charge “that under the pleadings and evidence the plaintiff is not entitled to recover.” The court refused the point, and instructed the jury, “if you believe the testimony of the plaintiff, which is uncontradicted, you must render a verdict for the plaintiffs.”
    Verdict for the plaintiffs for $139.95, and judgment thereon. The defendant took this writ, assigning for error the rulings on evidence and the instruction of the court as above.

      Force (with him Powers <& Powers), for the plaintiff in error.

      John G. Bryant (John A. Wilson with him), for the defendants in error.
    October 31st 1881.
   Mr. Justice Sterrett

delivered the opinion of the court

The subject of complaint in the first specification is that certain material averments of fact contained in the affidavit of claim were erroneously received in evidence, and treated as admitted facts, under the rule of court which provides, “ That in' all actions on notes . . . and in all actions founded on contract express or implied, . . . where the debt or damages can be liquidated without the aid of a jury, the plaintiff shall file with or before his declaration, a specification of the items of claim together with a statement of facts necessazy to support it, verified by affidavit, to which the defendant shall . . . file an answer, verified by affidavit; and such items of claim and material averments of fact as are not directly and specifically traversed and denied by the answer shall be taken as admitted Rule 1, § 1. Under this rule the plaintiffs below filed a full affidavit of claim, in which, after averring that the defendant is justly indebted to them in a certain sum, they proceed to state the facts out of which that indebtedness arose. These averments of fact, constituting the body of the affidavit, were received in evidence under the rule above quoted; and assuming them, to be true, it must be conceded they disclose a good cause of action. The most essential of these averments is that Miller, who, with plaintiffs below, composed the firm of Miller, Fendrick & Co., made a note, in the firm name, to the order of defendant below, and delivered the same to him “without the knowledge or consent of the said plaintiffs, and not in any manner for, on account of, or in the course of the business of the firm ; but the same was so made and delivered for a debt of the said Miller and others (not the said plaintiffs) formerly copartners in the name and style of Bardoe, Fried & Miller, to the said defendant,, for the price of a home sold by him to them, for which he held the note of the said Bardoe, Fried & Miller, and for which neither the said firm of Miller, Fendrick & Co. nor the said plaintiffs or either of them ever became or was liable; ‘that the said defendant indorsed and delivered the said note as and for the note of the said firm of Miller, Fendrick & Co. to one John Enrick.”

The substance of the remaining averments is that by the indorsement to Enrick he became a bona fide holder of the note without notice of the fraud committed by Miller against his co-partners, the plaintiffs below, and that after the note was duly protested for non-payment they paid the amount thereof to Enrick and he transferred tire note to them.

It will be observed that the essential allegations of fact, upon which the case of the plaintiffs below hinges, are that the note in question was given by their partner, Miller, in fraud of their rights as members of the firm, and without any consideration therefor passing either to them or to the firm of which he and they were the members. If the averments of which this is the substance were eliminated from the affidavit there would be nothing left out of which to construct a valid claim against the defendant below. His contention is that these essential averments of fact were traversed and denied as required by the rule of court, and therefore they should not have been taken as admitted facts against him without competent proof. In his answer or affidavit of defence, after averring that he has a full just and legal defence to the whole of the plaintiff’s claim, he says: “The note referred to in plaintiff’s affidavit of claim . . . was given to the said defendant by the makers thereof and by the said defendant indorsed to John Enrick before maturity and in the usual course of business, without notice or knowledge that tbe same was not made or given for, on account of, or in the course of the business of the said firm of Miller, Fendrick & Co., and that for said note a full and valuable consideration was given by said defendant to the said makers, which consideration was received by said firm of Miller, Fendrick & Co. and *became assets of said firm.” He further avers “ he is not indebted to said plaintiffs or either of them, or to the firm of Miller, Fendrick & Co. in any sum or form whatsoever.”

While the affidavit of defence, in some of its averments, is lacking in clearness and precision, and may even be regarded as evasive, it contains a positive averment that the defendant below gave the makers, Miller, Fendrick & Co. a full and valuable consideration for the note in question, which consideration was received by them and became assets of their firm. This is substantially a traverse and denial of the most essential allegations of fact contained in the affidavit of claim, and is sufficiently direct and specific to answer the requirements of the rule. It is not necessary that the denial should be in the words of the affidavit of claim. The averment of the defendant below that the makers, Miller, Fendrick & Co. received from him a full and valuable consideration for the note in question is surely a denial of the plaintiffs’ averment that it was given by their partner Miller in fraud of their rights and without any consideration either to the linn or to themselves individually. Some of the material averments were traversed and denied,. and there was therefore error in admitting them as evidence under the rule.

If competent testimony, tending to prove the material allegations of fact upon which the plaintiffs’ case hinged, had been first introduced, there could have been no question as to the admissibility of the note and certificate of protest; but, as we have seen, in considering the first assignment, portions at least of the affidavit of claim were improperly received as evidence of the allegations therein contained, and hence ¡there was no legal ground laid for the introduction of the evidence complained of in the second assignment of error.

The third assignment of error is not sustained. The proposition contains no offer to prove that plaintiffs below, as members of the firm, or in any other capacity, assented to the assumption or payment of the debt originally contracted by Bar-doe, Fried & Miller. Neither the fact that defendant below was informed of their consent by Miller, nor the further fact that the horse was taken and used by the plaintiffs’ firm in their business, would be evidence of their consent. Nor was it a matter of any consequence that the defendant 'below received the note of the firm “from Miller, without knowledge that any objection was raised thereto by the remaining members of the partnership.” He had no.right-to take the note from Miller for the debt of another firm, with which plaintiffs below had no .connection, without first ascertaining that it was given with their consent, lie knew, or ought to have known, that Miller had no right to thus use the name of his firm without the express consent of his partners. It is no answer for him to say he was ignorant of the fact that they had not assented to such use of the firm name, or that he was informed by Miller that they had assented. It was his duty to refuse the note until he knew affirmatively that their consent had been given. If, by his neglect of duty, he assisted Miller in committing a fraud on his partners, he has no just reason to complain if he is compelled to make good their loss.

The subject of complaint in the fourth assignment is the refusal of the court to permit the defendant below to prove the sale of a horse to Miller, Fendrick & Co., and the receipt of the note in controversy, in payment therefor. This state of facts is inconsistent with the offer covered by the third assignment, but that did not justify the rejection of the testimony. It must be presumed that the defendant made the offer in good faith, and that he was prepared to prove the facts therein contained. As we have already seen, he had alleged in his affidavit of defence that Miller, Fendrick & Co., received from him “ a full and valuable consideration ” for their note. The facts which he. offered to prove were therefore strictly in the line of the defence thus disclosed. If the testimony had been received and submitted to the jury and they had found that the note Was given by the firm for a horse purchased by them in the course of their business, the defendant below would have been clearly entitled to their verdict. There was, therefore, error in excluding the testimony embraced in the offer.

The instructions complained of in the fifth and sixth assignments legitimately resulted from the admission of the affidavit of claim in evidence, and the rejection of the testimony referred to in the last preceding specification, and were consistent with the ruling of the court on these questions of evidence.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Fuller’s Appeal.
    A., being mentally weak and in straitened circumstances, purchased from B. an interest in a silver mine in Montana, the agreement of sale containing a clause whereby it was provided that the vendee might at the expiration of a year elect to rescind the contract. In order to raise the purchase money A. gave a mortgage upon his homestead farm and paid the proceeds to B. B. did not, however, convey his interest in the mine to A. More than a year afterwards, A. died, expressing no dissatisfaction with his purchase. B. was appointed guardian of his minor children, and moreover, verbally assumed the payment of the mortgage on the homestead farm. Upon the filing of his account as guardian, it was found that B. claimed credit for certain payments of inteiest on the mortgage advanced by him. Exceptions were filed to.those items, and the court disallowed them, surcharging B., moreover, with the amount of the mortgage. Hdd, that the decree was erroneous. If the endeavor to surcharge B. was based purely upon his verbal assumption of tile mortgage, then admitting that the same was not within the prohibition of the Statute of Frauds, the remedy was not in the Orphans’ Court, but in the Common Pleas by means of a common law action instituted by the representatives of A. If the right thus to surcharge was based in addition upon the obligation of B. to repay the purchase money of the silver mine, which obligation was to be regarded as the consideration for the agreement on his part to assume payment of the mortgage, this was a contract which was also clearly not enforceable in the Orphans’ Court. The proper remedy was an action by the representatives of A. against B. to.recover damages for breach of contract in failing to convey to A. the interest in the silver mine purchased by him.
    October 13th 1881. Before Sharswood, C: J., Merour, Gordon, Paxson, Trunket, and Sterrett JJ. Green, J., absent.
    Appeal ‘ of James Fuller from a decree of the Orphans’ Court of Allegheny comity, sustaining exceptions to his account as guardian oi Richard A. and Mary C. Beatty, minor children of Robley D. Beatty, deceased: Of October and November Term 1881, No. 93.
    Robley D. Beatty died August 12th 1876, intestate, leaving surviving a widow and the above named two minor children. Alexander Dempster was appoined administrator, and James Fuller was appointed guardian of the children. On September 25th 1880, Fuller filed his first and final account, and about the same time, on his own petition, he was discharged from his position as guardian, and one Bigelow was appointed his successor. The latter filed exceptions to Fuller’s account, the only one material to this case being to certain credits claimed by the accountant for interest on a mortgage, paid at sundry times by tlie accountant, amounting to $1,890. Testimony was taken, which showed the following facts : — By articles of agreement dated April 29th 1875, Fuller agreed to sell to Eobley D. Beatty four and one-half tenths of the Franklin Silver Lode in Deer Lodge County, Montana, for the sum of $10,000 in cash. The agreement contained the following clause: — “Also, if the said party of the first part, E. D. Beatty, is dissatisfied with his purchase of the said four and one-lialf (4£) tenths of the said ‘Franklin’ Silver Lode, at the expiration of one year from' this date, the said James Fuller and Belle C., his wife, agrees to pay back the full amount, ten thousand (10,000) dollars with interest on the same.”
    On the date of the agreement, Mr. Beatty paid Fuller' $4,000 on account, and on December 11th 1874, the balance in full- $6,000. Mr. Beatty raised the $10,000 by a mortgage of his homestead farm. At the time that Beatty agreed to purchase 4§- tenths of said mine, Fuller held the equitable title to the whole claim, the legal title to which was conveyed to him by deed dated Febuary 1st 1876. Fuller testiSed that he paid $20,000 in cash for this property. Fuller did not convey the legal title to the i-} tenths to Mr. Beatty, who died August 12th 1876 (within one year after the date of the agreement), without having expressed any dissatisfaction with the purchase. The widow and sister of Mr. Beatty testified that for two or three years prior to his death he was not fit to attend to business.
    On behalf of the exceptant, Mr. Dempster, Beatty’s administrator, Mrs. Beatty, the widow, and one or two other witnesses testified to the effect that after the death of Mr. Beatty and within one year from the date of the agreement, Fuller stated that he would assume payment of the said mortgage. It did not appear, however, that the administrator or widow, made any demand for the rescission of the original agreement under the clause above quoted. The witnesses could not remember the language used by Fuller, but concurred in stating that the effect of it was to give them to understand that the estate should not lose by the mortgage and that he would assume its payment. Fuller himself testified that he did not agree to assume the mortgage, but that, the estate being embarrassed, he said he would advance money or would sell the mining property at a sacrifice, if necessary, or would do anything that was in his power to protect the estate, and prevent the loss of the homestead ; and that it was in pursuance of such statements that he advanced the money to pay the interest on the mortgage, for which he claimed credit in his account.
    The court was of the opinion, first, “ that the contract itself was one, which in Mr. Beatty’s mental and financial condition should not have been made j” secondly, that the evidence was sufficient to' establish an assumption by Fuller to pay the mortgage, and that “every consideration of justice and. prudence looked to an election to accept the cash invested instead, of the mining property; and equity will regard that as done which onghtto have been done.” The court therefore entered a decree surcharging the accountant with $11,013.33, the amount of said mortgage, with interest. From this decree, the appellant took this appeal.

      George Shiras, Jr., for appellant.
    The right to rescind was unilateral on the part of Beatty, and'as he died without having exercised it, it died with him. If it had been mutual, there might have been a surviving right to rescind by the widow and heirs. But the evidence showed that the widow did not attempt to exercise such right, and Fuller, who, as guardian, represented the heirs, minors, could not on their behalf exercise a discretion to rescind a contract, to which he, as an individual, was the other party. The test is, could he have rescinded as guardian, if the property had risen in value ?
    But the Orphans’ Court had no jurisdiction, upon the settlement of the guardian’s account, to decree a rescission of the contract, thereby turning a minors’ property in real estate into a mere claim against the guardian.

      Negley (with whom was Bruce), for the appellee.
    Thé finding of fact by the court below that,Fuller had assumed payment of the mortgage will not be disturbed by this court. All the circumstances, attending the inception of the contract, and subsequent matters, including the fact that Fuller made no conveyance of the legal title to Beatty although he himself obtained the legal title to the whole property more than six months before Beatty’s death, indicated an intention by both parties to rescind a contract, which, in the language of the court below, “ in Mr. Beatty’s mental and financial condition never should have been made.”
    November 7th 1881.
   Mr. Justice Gordon

delivered the opinion of the court,

We cannot agree with the court below in its surcharge of the account of the appellant, as guardian of the minor children of Robley D. Beatty, in the sum of $10,000, the balance of the Cassidy mortgage. ITe was charged with this amount on the ground, that, after' Beatty’s death, he assumed, in some conversations which he at different times had with the widow and administrator, to pay this mortgage.

But conceding this assumption to have been clear and distinct, and not within the prohibition of the Act of the 26th of April 1855, yet we cannot see how a contract of this kind can be enforced by a decree of the Orphans’ Court.. There is in this no money or other assets of the wards ; it is at best but an agreement with the representatives of Beatty’s estate, .which must be enforced by ordinary process in the Common Pleas.

But there is an alleged consideration back of this assumption; were it not so the undertaking to pay the mortgage would be altogether worthless. That consideration arises from the agreement between the appellant'and Robley D. Beatty, of the 29th of November 1875, by which the appellant agreed to sell to Beatty four and one-half tenths of the “ Franklin Silver Lode, in Deer Lodge county, Territory of Montana,” and on which Beatty paid to the appellant $10,000.

By the same paper it was agreed that if Beatty became dissatisfied with his purchase, the appellant was, within one year from the date of the agreement, to refund the money so paid by Beatty. It is now alleged that Dr. Fuller, the appellant, somehow became liable to repay this money, and thus arises the consideration for the assumption of the mortgage. Let all this be admitted, and we have but an agreement by Fuller to pay the money due on his contract in a particular manner; that is to say, by the payment of the mortgage which Beatty executed in order to raise the money paid to Fuller. But how was this contract to be enforced ? Certainly not by a decree of the Orphans’ Court, which necessarily presupposes that this claim had passed to the guardian as part of the liquidated assets of his wards, nor even by process in equity to compel him to pay the mortgage, but by an action at law brought by the representatives of Beatty’s estate for the recovery of the damages resulting from a breach of the contract.

We think, therefore, as to this item, the Orphans’ Court exceeded its jurisdiction in attempting to try and dispose of a question involving, at most, only the breach of a contract made ' by the appellant with the decedent, in his lifetime, and wdiich must of necessity pass to, and be disposed of by, the representatives of Beatty’s estate.

The remaining exceptions are dismissed; for though we are not without doubt as to some other of the charges against the appellant, we cannot certainly say that the court erred in allowing them.

The decree of the court is now reversed and set aside as to the surcharge in the appellant’s account of $10,000on account of mortgage on homestead,” and confirmed as to the balance of said account. And it is further ordered that the appellees pay the costs of this appeal.

Sterrett, J., dissents.


author: Mr. Justice Paxson

text:
    Pittsburgh National Bank of Commerce versus McMurray.
    1. Where one person deposits money with another for investment faith' the understanding that the recipient is to pay interest on the amount until invested, the relation established between the parties is that of debtor ,and creditor, not that of trustee and cestui que trust.
    2. A. sent $1,300 to B. for investment with the understanding that B. was to pay interest thereon until invested. B. deposited the amount in-bank, and afterwards becoming insolvent, absconded'. A. demanded pay»-, ment from the bank of the. $1,300, which was refused, and on the same day, the money was paid by the bank to the sheritf by virtue of a writ of i sequestration directed against B. In a suit by A. against the bank to re; cover the amount of the deposit, Meld, that the agreement to pay interest on the fund until invested, constituted B. the debtor of A., and not his trustee, that hence the sumdeposited in bank was the money of 13., not of A.; and that, therefore, the plaintiff was not entitled to recover.
    3. Where the court below negatives a point of law presented by counsel in which the facts are stated hypothetically, the Supreme Court will, on error, assume that the jury would have found the facts as stated in the. point.
    October 13th 1881. Before Sharswood, O. -J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ'. Green, J., absent.
    Error to the Court of Common Pleas No. 1, of •Allegheny county : Of October and November Term 1881, No. 9.
    Assumpsit, by George W. and William McMurray against the Pittsburgh National Bank of Commerce, to recover the sum of $1,300. '
    On the trial, before Collier, J., the following facts appeared : The plaintiffs, who lived in Nobiestown, had been in the habit for several years of sending money to S. B. W. Gill, an attorney-at-law in Pittsburgh, as their argentand attorney, for the purpose of investment, on the understanding that Gill was to pay interest on the money from the time he received it until he invested it. On September 17th 1S77, the plaintiffs sent the sum of $1,300 to Gill’s office, with a message that it was for investment. Mr. Gill was absent from the city, and the money was left with his son and business assistant, who gave the following receipt:—
    “Received, Pittsburgh, September 17th 1877, of George W. and W. McMurray, the sum of thirteen hundred dollars, to be invested by me for them. S. B. W. Gill,
    II. B. Gill.”
    The standing arrangement that Gill was to pay interest on such funds until invested was not countermanded or alluded to. H. B. Gill, on 'the same day, deposited this sum in the defendant bank, to the credit of his father’s general private account. Subsequently he drew from the bank,' on blank checks left with him and signed by his father, sums exceeding $1,300.
    Two mouths afterwards, it being currently rumored that S. B. W. Gill was a defaulter and had absconded, the plaintiffs demanded the sum of $1,300 from the bank, on the-ground that it was trust money belonging to them. At this time the balance to Gill’s credit was $1,951. The bank refused the demand. On the same day a writ of sequestration, issued from the Orphans’ Court, was served upon the bank, and the said balance standing to Gill’s credit, was paid to the sheriff, who afterwards, under an order of the Orphans’ Court, paid the same to Gill’s assignee in bankruptcy. The plaintiffs afterwards brought this suit.
    The bank alleged that they had an agreement with Gill that he was to keep a large balance on deposit to secure a line of discounts; that they received the $1,300 as Gill’s money, without notice of any trust; and that, in fact, the transaction between the plaintiffs and Gill was a loan and not a trust.
    The defendant presented, inter alia, the following point: (5) If the jury find that the money in question was sent to S. B. W. Gill for investment under the same arrangement as he had before that time received other moneys from plaintiffs for investment, to wit, under an arrangement that he (Gill) was to pay interest to the plaintiffs until the money should be invested, then the verdict should be for the defendant. And if the fact was as stated by Win. MeMurray, one of the plaintiffs, that such arrangement was not countermanded when they sent the money claimed in this case to Gill, the presumption would be that the same arrangement was to continue in respect to said money as had been agreed upon before that time in respect to other moneys placed by plaintiffs in Gill’s hands for investment.” Refused. Exception.
    Verdict and judgment for the plaintiffs. The defendant took this, writ, assigning for error, inter alia, the refusal of the above point.

      Thomas C. Lazear, for the plaintiffs in error.
    Until notified by the plaintiffs the bank could safely pay out Gill’s deposits on his checks : Farmers & Mechanics’ Nat. Bank v. King, 7 P. F. Smith 202; Frazier v. Erie Bank, 8 W. & S. 18; Bank of Northern Lib. v. Jones, 6 Wr. 536.
    The plaintiffs’ fund was mixed up with Gill’s money in the bank, and Gill’s son, in fact, drew out more than $1,300 before the plaintiffs gave their notice. Gill agreed to pay interest until the money was invested; therefore he had a right in the meantime to use it as his own, and the bank had a right, under their agreement with Gill, to retain it as security for discounts.
    ' T. Walter Day, for the defendant in error.
    When a bank receives deposits, it becomes debtor to the depositor, and may pay the debt in answer to his checks, in absence of interference by his principals to whom it belongs ; but when the principals assert their right to the money before its repayment, the right of the agent or trustee ceases: Farmers & Mechanics’ Nat. Bank v. Ring, 7 P. F. Smith 202.
    No paper was discounted for Gill on the strength of this money deposited by the son after he left: Stair v. York Nat. Bank, 5 P. F. Smith 364; First Nat. Bank of Wellsborough v. Bache, 21 P. F. Smith 213.
    October 24th 1881.
   Mr. Justice Paxson

delivered the opinion of the court,

The defendant’s fifth point ought to have been affirmed. If, as was alleged, the money was placed in Gill’s hands for investment, with an understanding or agreement that until he could find a satisfactory mortgage he should pay interest thereon, the plaintiffs below cannot hold him as a trustee, nor follow his deposit in the bank as trust money. As the court below negatived the point, we must assume the jury would have found the facts as stated therein. The plaintiffs cannot treat Gill in the dual character of trustee and debtor. Undoubtedly the receipt by him of the money for investment^ ]vjtb.QUÍ ijnwe, 'vyould have made him^/tuugtee. The money would have been trust money, and if misapplied, could have been followed until it reached the hands of an innocent holder for value. But the agreement to pay interest necessarily implied the rightjo use the money. Interest is the price or consideration for Jfhte ruse of money. It-follows that Gill became the nmreMsSSjgy or debtor .of the plaintiffs, subject to the duty of investing Ri^-money iaa mortgage when a suitable opportunity should oe¿UB?v^nU|tlfe mean time he had the right to use it in any way liig convenience or necessities required. When deposited in the bank, it was the money of Gill, not of the plaintiffs, if the facts be as stated in the point.

The remaining assignments are without merit.

Judgment reversed, and a venire facias de novo awarded.


text:
    Zuck & Henry versus McClure & Co.
    1. A defendant in a suit is not entitled to set off against the plaintiff damages for a breach of contract between them, unless said breach was complete at the time of suit brought. /
    ■ 2. Where such breach became complete after suit brought, but before! trial. Held, that the defendant was not entitled to set off against the pi. tifftlie damages resulting therefrom!......
    S. A mere notice of an intended breach of contract is not of itself breach of the contract, though it may become so if accepted and acted cu by the other party.
    4. A notice of an intention not to perform a contract, if not accepted by the other party as a present breach, remains only a matter of intention and may be withdrawn at any time before the performance is in fact due.
    5. A promisee may treat a notice of intention not to perform a contract as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance. Butin that case he keeps the contract aiive for the benefit of the other party as well as his own, and enables the other party not only to complete the contract if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it.
    6. A. contracted to deliver to B. a specified amount of coke in October of a certain year and performed his contract. On November 11th following, he contracted with the same party to deliver other coke on December 1st. On November 19th, A. wrote to B. stating that he was unable to perform his contract. To this letter B. made no reply. On November 29th A. sued B. for the price of the coke furnished in October. On December 4th, B. wrote to A. stating that he was then prepared to receive the coke contracted for on November 11th, and that if shipments were not made at once he would consider the contract of that date as being broken. A., however, failed to deliver any coke to B. under said contract. On the trial of the suit by A. against B. for the price of the coke furnished in October, B. attempted to set off his damages for breach of the contract of November 11th. Held, that said breach was not complete at the time of suit brought, and that defendant could not therefore set off the damages resulting therefrom.
    October 13th 1881. Before Sharswood, C. J., Mergur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny cotmiy: Of October and November Term 1881, No. 105.
    Assumpsit, by Zuck & Henry against G. T. Rafferty et al., trading as McClure & C.o. The action was brought November 2üth’1879, the writ served andmarr. filed the same day, to recover $1,500 due plaintiffs for coke delivered to the defendants during tlie month of October, 1879, under a written contract. The fact of delivery and the price was not disputed.
    On' the trial, before Collier, J., the defendants claimed to set off damages sustained by them by reason of the failure of the plaintiffs to" comply with a subsequent contract for the delivery of coke from and after December 1st 1879, at a stipulated price. The last mentioned contract was consummated by correspondence November 11th 1879, performance to begin December 1st 1879. The plaintiff objected to the admission of any evidence relating to the second contract, upon the ground that the time of its performance did not commence until after the. bringing of this action, and that consequently damages arising from any breach thereof could not be set off in this action. The court, however, admitted the evidence, which showed the existence of said second contract, and notice given on November 19th 1879, by plaintiffs to the defendants that they could not comply with the same, to which notice the defendants replied in the following letter:
    Pittsburgh, December 4th 1879.
    Messrs. Zuck & Henry, Conriellsville, Pa.

      Gents: — We beg to draw your attention to contract between us by which you agree to furnish us the product of the Eldorado Coke Works [forty ovens); also, product of ovens that may be built during the continuance of the contract from December 1st 1879, to May 31st 1880, inclusive, and to advise you that we have been and are now prepared to receive the coke'under said contract. If shipments on our account are not at once commenced we will go into the market and buy an equal amount of coke which you fail to deliver us, and will hold you responsible for any difference in price which we may have to pay, and will retain the balance which we now have in our hands to secure us against any loss or damage which we may sustain from your failure to comply with contract.
    Tours most respectfully,
    McClure & Co.
    , The defendants then proved, under objection, the failure of the plaintiffs to deliver coke under the second contract, and the purchase by the defendants of coke in the market atan advanced price, whereby they suffered damages largely exceeding in amount the plaintiffs’ claim, for which they asked a verdict and certifícate in their favor against the plaintiffs.
    The plaintiffs presented, inter alia, the following point:
    “ 8. A notice oE an intended breach of contract will operate as a breach only if accepted and acted upon by the other party, who may, if he pleases, disregard the notice and insist upon performance according to the contract, and if he does so insist upon performance he cannot afterwards rely upon such notice as a breach.
    “ The defendants’ letter of December 4th 1879 (Exhibit 12), shows that defendants did insist upon performance by plaintiffs according to the contract. No cause of action therefore accrued to the defendants until after the suit was brought, and the defendants are not entitled to set off the damage in the action for that reason.

      Answer. — As a whole, this point is refused.”
    The court charged the jury, in substance, that the defendants were entitled to set off damages sustained by reason of the plaintiff’s breach of the second contract, and that the damages were to be measured by the difference between the price at which the plaintiffs agreed to deliver the coke and the market price during the period 'of the contract.
    The jury found a verdict for the defendants and certified a balance in their favor of $36,150.12, and judgment was entered thereon. The plaintiff thereupon took this writ of error, assigning for error the refusal of the above point.

      J. S. Cook (I. P. Hays with him), for the plaintiffs in error.
    —The plea of set off is a substitute for a cross action and with respect to it, the defendant is to be considered as plaintiff. As such plaintiffs, the defendants in this case had no cause of action on November 29th 1879 (when this suit was brought) upon the contract performance of which was to begin on December 1st 1879. Damages sustained by them under that contract could not arise until after that date, and, therefore, cannot be set off in this action, which was brought prior to that date: Pennell v. Grubb, 1 Harris 552 ; Huling v. Hugg, 1 W. & S. 418 ; Carpenter v. Butterfield, 3 Johns. Cas. 145 ; Morrison v. Moreland, 15 S. & R. 63.
    The fact that the plaintiffs notified the defendants prior to the bringing of this suit of their intended breach of such subsequent contract, would not constitute an actual breach in advance of the date of performance, unless affirmatively accepted as such by the defendants. But the defendants not only did not affirm such breach, but, by their letter of December 4th 1879, expressly refused to do so ; waived any breach which may have occurred between December 1st and 4th ; and insisted upon an immediate performance of the contract. The contract was thereby kept alive, and the plaintiff’s eighth point should, therefore, have been affirmed : Leake on Contracts, p. 873.

      Welty McCullough, for the defendant in error.
    The writ in this case was issued November 29th 18 7, returnable the first Monday in December. The plaintiff cannot claim on any cause of action after suit brought. The defendant, however, is not in court until the return day, and he can set up any defence that he had on that day. The set off was, therefore, properly allowed. We contend, moreover, that the defendants, by their acts, did, immediately upon the receipt of the notice of intended breach, accept and affirm such notice as an actual breach, from the effects of which action they could not relieve themselves by subsequently, after the date fixed for the performance of the contract, insisting upon its performance. . The terms of the original contract, which was in evidence, provided “ settlements to be made on or about the 20th of each month for all coke shipped in the preceding month.” The notice of the intended breach was dated November 19th ; payment for the October deliveries was due and refused by the plaintiffs on the following day. This was immediate action upon the notice of intended breach. The plaintiff’s eighth point was made up partly of law and partly of alleged facts, and the court properly refused it “ as a whole.”
    November 7th 1881.
   Mr. Justice Paxson

delivered the opinion of the court,

This action was commenced in the court below on the 29th day of November 1879, and was to recover about $1,500 for coke delivered'by the plaintiffs to the defendants during the. previous October. There was no serious dispute as to either the delivery of the coke or the amount; but the defendants set up as a defence the breach of a contract on the part of the plaintiffs for future deliveries of coke. To state sai’d contract briefly, the plaintiffs had agreed to sell and deliver to the defendants the entire product of their Eldorado works, comprising forty ovens, at a fixed price per ton, and also the product of all other ovens built by them during the continuance of the contract. This contract plainly appears by the correspondence between the parties, and was finally closed on November 11th 1879. On the 19th of the same month the plaintiffs notified the defendants in writing that they would not deliver the coke. On the 4th of December, four days after the delivery was to have commenced under the contract, the defendants wrote to the plaintiffs as follows: “We beg to draw your attention to contract between us by which you agree to furnish us the product of the Eldorado Coke works (forty ovens); also product of ovens that may be built during the continuance of the contract from December 1st 1879 to May 31st 1880, inclusive, and to advise you that we have been and are now prepared to receive the said coke under said contract. If shipments on our account are not at once commenced we will go into the market and buy an. equal amount of coke which you fail to deliver us, and will hold you responsible for any difference in price which we may have to pay, and will retain the balance which we now have in our hands to secure us against any loss or damage which we may sustain from your failure to comply with contract.” •

The defendants upon the trial below were allowed to set off their damages by reason of the breach of the above contract, and the jury found a verdict in their favor for $36,150. The single specification of error raises the question whether there was any breach at the time the suit was commenced.

A mere notice of an intended breach is not of itself a breach of the contract. It may become so if accepted and acted on by the other party. If the defendants had accepted the plaintiffs’' notice of breach contained in their letter of November 19th aud acted upon it, there would plainly have been a breach of the contract. The plaintiffs in such case could not have relieved themselves by commencing to deliver the coke on December 1st, but must have been held to all the legal consequences of the breach. The defendants, however, on December 4th, still insist upon compliance. They say i‘they are now prepared to receive said coke under said contract.” This certainly kept the contract alive as to both parties. The plaintiffs could have gone on and delivered the coke on December 4th, in which case there would have been no breach and no damages. The notice of an intention not to perform the contract, if not accepted by the other party as a present breach, remains only a matter of intention, and may be withdrawn at any time before the performance is in fact due : but if not in fact withdrawn it is evidence of; a continued intention to refuse performance down to and inclu-‘ sive of the time appointed for performance: Ripley v. McClure, 4 Ex. 345 ; Leake on the Law of Contracts. 873. The promisee may treat the notice of intention as inoperative and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance. But in that case he keeps the contract alive for the benefit of the other party as well as his own ; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it: Leake on Contracts, supra.

It follows from the foregoing principles that oh November 29th when the action was commenced below, there was no breach of the contract which the defendants could set up as a sel off to the plaintiffs’ claim. Nor does it help the defendants that when the cause was tried the breach was complete. The date of the commencement of the suit is the obvious test in such cases : Morrison v. Moreland, 15 S. & R. 61; Carpenter v. Butterfield, 3 Johns. Cases 144.

There was error in not affirming the plaintiffs’ eighth point. Judgment reversed and a venire facias de novo awarded.


author: Chief Justice Sharswood

text:
    Phelps’s Appeal.
    1. The holder of an incumbrance upon several tracts of land, cannot be controlled as to the order in which the several tracts subject to his lien shall be sold under his execution, in any other manner than that provided by the act of April 22d 1856, § 9, Pampli. L. 534. The remedy afforded by said act to the owners of the several tracts is exclusive, and completely superseded any course of proceeding in equity, previously pursued in such cases.
    2. Arna’s Appeal, 15 P. F. Smith 27, approved and followed, Roddy’s Appeal, 22 P. F. Smith 98, distinguished.
    3. Petitions for relief under the said act must comply strictly with all the requirements thereof. They must, therefore, distinctly admit that the petitioner’s property is subject to the lien of the incumbrance in question.
    4. The provisions of the said act are not unconstitutional as applied to all proceedings after its passage, even- though the rights which it is sought to enforce in said proceedings accrued prior to said passage. The act merely modified an existing remedy and did not take away rights of property.
    October 14th 1881. Before Shakswood, C. J., Mercue, Gordon, Paxson, Trbnkey and Steerett, JJ. Geeen, J., alisen t.
    Certroraei to and ajipeal from the Court of Common Pleas No. 1, of Allegheny eomvty: Of October and November Term 1881, No. 187.
    This was an appeal by Thomas H. Phelps from an order of the said court directing the sheriff to sell certain lands, taken in execution under a writ of levari facias, in separate lots and in a specified order.
    The material facts of the case were as follows: Abraham Horback, Jr., conveyed a tract of land, subject to the lien of a recognizance in partition, to Henry Eeis, who executed to Horbach a mortgage to secure the purchase-money including the amount of said recognizance in partition, dated March 31st 185Í, duly recorded.
    Henry Eeis subsequently divided this land into seven large lots, which ho sold to purchasers subject to the said mortgage in the following order:
    1851, April 1, Lot E.
    “ “ 1. “ F.
    “ “ 11, “ ^
    “ “

      “ May 12,
    1854, Aug. 10,
    Some of the said lots were subdivided into smaller lots and sold to other parties, and several of the lots were sold at sheriff’s sales under judgments obtained against the terre-tenants.
    The above mentioned mortgage given by Rice to Ilorbach was subsequently assigned to Thomas EL. Phelps, and the interest and principal thereof being in default, for more than a year and a day, the said Phelps, in 1881, issued a scire facias thereon against Henry Reis, the mortgagor, obtained judgment thereon, and issued a levari facias, under which the entire mortgaged property was advertised for sheriff’s sale on Monday June 6th 1881, but was adjourned until June 10th. On June 8th, Henry E. Stotler et ah, owners of parts of lots A, B, D, É and G, presented petitions to the court, setting forth their respective titles, averring that by virtue of certain conveyances, mortgages and judicial sales, the lien of said mortgage had been discharged or postponed as to the several lots owned by the petitioners, and praying for an order restraining the sheriff from selling any of the petitioners’ property, until lots C and I) shall have been sold and their value exhausted in payment of the mortgage; and in case it shall be necessary to sell any of the property owned by the petitioners, that the same shall be sold in separate lots and in the inverse order in which they were sold and conveyed by the said Henry Reis.
    The petitioners did not expressly admit that the lots owned by them respectively remained subject to the lien of the said mortgage; on the contrary, certain of the petitioners claimed that their lots had been discharged from the lien of the said mortgage by virtue of the judicial and other sales above referred to. None of the petitioners averred that the amount of the plaintiff’s judgment had been tendered to him or that he had been requested to assign his judgment in the mode provided by the ninth section of the Act of April 22d 18'56 (Purd. Dig. 827, pi. 40).
    Thomas EL. Phelps filed an answer to the said petitions, denying the rights claimed by the petitioners. The owners of lots G and D were not made parties to the proceedings.

      The court, after argument, entered the following order:
    “ And now, this 8th day of June 1881, the petition of Henry B. Stotler et ah, being presented in open court, the said court, in compliance with the prayer therein contained, hereby order and direct the said plaintiff and Thomas H. Hunter, sheriff, to offer and sell the land in separate lots or divisions according to the Reis plan thereof, and in the following order:
    1st. Lot C of said plan.
    2d. Lot D “ “
    3d. Lot G “ “
    4th. Lot B “ “
    5th. Lot A “ “
    6th. Lots E and E “ “
    “ And not to offer or sell any succeeding lot in said list or Any part thereof until the proceeds of the lot or lots directed to be sold earlier prove insufficient to satisfy the claim under said Reis mortgage. Provided that this order shall not affect the right of plaintiff to sell any property included within his levy not owned by petitioners here represented, in such order as he may deem proper.”
    Thomas H. Phelps thereupon took this appeal, assigning for error the said order of the court.

      George W. Guthrie (with him F. M. Magee), for the appellant.
    Since the passage of the Act of April 22d .1856, the mode therein provided, whereby execution may be enforced of several lots of land, subject to a common incumbrance and aliened at successive dates, is exclusive: Arna’s Appeal, 15 P. E. Smith J2; Roddy’s Appeal, 22 P. E. Smith 98; Act of March 21st 1806, § 13, Purd. Dig. 58, pi. 5. But this Act was not followed in this case. The plaintiff was not given the option of accepting his money and assigning his claim. The petitioners do not bring themselves within the terms of the Act by admitting the plaintiff’s lien ; on the contrary, they deny the existence of the lien as to certain of the lots. It is argued that the order of the court as made will not injure the plaintjff, as it merely prescribes an order of sale and does not exempt any part of the mortgaged property. This does not follow. Lots C and D, directed to be first sold, happen to be the very two lots, the owners of which have an ostensible defence; if the plaintiff, fearing to risk the title, lets them go at sheriff’s sale at a nominal price, he may find when the-last lots are sold that the fund is insufficient to satisfy his debt. The equity of the petitioners, whatever it may be, is an equity between themselves, and it is inequitable to throw upon the plaintiff the responsibility of passing upon the different defences raised by the several owners. It is argued that the terre-tenants have had no day in court, but they should have applied to have our judgment against the mortgagor opened to let them into a defence.

      J. F. Slagle and William P. Elliott (with them Hampton and Dalzell), for the defendants in error.
    The successive conveyances, out of which the equities spring, were all made prior to the passage of the Act of 1856. Upon each conveyance for a full consideration, the purchaser acquired a fixed right to have the properties still remaining in the mortgagor’s hands primarily liable for the whole of the mortgage debt. Hence the rule, that the purchasers of several lots subject to a common incumbrance are chargeable in the order inverse to the date of their several titles. The Act of 1856 cannot therefore operate retrospectively to modify or take away the purchasers’ rights. Therefore, the order of the court below was properly made in accordance with the established rule: Amanda Martin’s Appeal, 1 Out. 85; Mevey’s Appeal, 4 Barr 80 ; Taylor v. Mitchell, 7 P. F. Smith 211; Neff’s Appeal, 9 Harris 247; Becker’s Appeal, 3 Casey 55; Seamans v. Carter, 15 Wis. 548 ; Cowden’s Estate, 1 Barr 277, overruling Presbyterian Church v. Wallace, 3 Rawle 165 ; Nailer v. Stanley, 10 S. & R. 456 ; Carpenter v. Koons, 8 Harris 226 ; Clowes v. Dickenson, 5 John. Ch. 235; Dash v. Van Kleeck, 7 John. 505 ; Sedgwick on the Construction of Statutes 161; Dwarns on Statutes, 162. In Arna’s Appeal, supra, and Roddy’s .Appeal, supra, the rights accrued after the Act of April 22d 1856, was in force. In Arna’s Appeal, there was a judgment against the terre-tenants; here the plaintiff did not make the terre-tenants parties to the sci. fa., but seeks, under a judgment against the mortgagor, to throw on them, without their having a day in court, the burden of defending their titles against the purchasers at sheriff’s sale. The plaintiff’s onl’y right is to got his-money ; and that right is not affected by the order in which the properties may be sold in execution.
    October 24th 1881.
   Chief Justice Sharswood

delivered the opinion of the court,

In Arna’s Appeal, 15 P. F. Smith 72, the question was on a motion to quash the appeal, which was not by the plaintiff in the execution but by the terre-tenant whose land the court below had ordered to be first sold. The plaintiff below was permitted to intervene and make the motion to quash, offering to accept his debt and assign his judgment to either of th.e terre-tenants. The point here made was directly raised, and this court held that the ninth section of the act of April 22d 1856, Pamph. L. 534, entirely superseded any course of proceeding in equity which had been pursued before. It is not easy to see how the decision could have been otherwise. Not only would it be in the teeth of the act of March 21st 1806, § 13,4 Smith’s Laws, 332, which provides that where a remedy is given or any thing directed to be done by an Act of Assembly, the directions of the act shall be strictly followed, but it is abundantly evident that td sustain the old proceeding, without regard to the limitation or qualification contained in the act of 1856, would be practically to repeal the act in toto. The legislature has seen fit to enact, in order to secure the rights of the judgment creditor and to prevent any delay or embarrassment to him, that he shall have the option offered to him of accepting 1ns debt and assigning his judgment before he can be controlled in the order in which the different tracts of land subject to his lien shall be sold under his execution. It is not for us to question the mandate of the legislature, even if we thought it un just or oppressive to the terre-tenant. . The authority of Arna’s Appeal is not in the least shaken by Roddy’s Appeal, 22 P. F. Smith 95. The order in that case simply discharged the rule. It seems the attention of the court below had not been called to the Act of 1856, and it was said in the opinion of the court: “ As the court below declined to exercise their powrer at all or to make any order in the case, their order discharging the rule must be reversed.” The case -was therefore remanded to be reheard and decided according to the Act of 1856.

It is proper to remark that the petitions upon which the order was made in this case are all fatally defective in not distinctly averring that the plaintiff’s judgment or the mortgage upon which it is founded is a lien on their lands. Indeed, some of the petitioners expressly reserve the right to contest that point. But the words of the Act confine the remedy to the real estate of persons which is subject to a common lien. Without such lien, the petitioners had no equity to interpose and arrest the proceeding of the plaintiff to recover his debt. In that case no harm can be done to them. Their title will not be disturbed or affected by the sale, and it is open to them in an ejectment by the sheriff’s vendee to contest his title.

We see no ground to question the constitutionality of the Act of 1856, in its application to all proceedings, after its passage. It is a modification of an existing remedy and in no way infringes any clause in the federal or state constitution.

Order reversed and record remitted.

Mr. Justice. Mercur dissents from the construction given to the Act of 1856, but concurs in the judgment on the other ground.


text:
    Garber versus Conner.
    1. The penalty provided by section 26 of the Fee Bill Act of March 28 th 1814, P. L. 364, upon any officer taking greater or other fees than those hud down by the Act, cannot be imposed upon officers who have no right to charge fees of any kind.
    2. A collector of delinquent taxes in Allegheny county, appointed by virtue of the provisions of the act of May 1st 1861. Pamph. L. 455, is not subject to the penalty prescribed by the said Act of 1814 for taking illegal fees.
    3. Semble, that by virtue of the provisions of the act of April 8th 1864, Píimph. L. 316, such collector of delinquent taxes is entitled to collect as his full compensation ten per cent, over and above the amount of the tax only. Any additional charge of any kind is illegal and void.
    4. Semble, moreover, that said collector has no right to issue a warrant to a constable to collect delinquent taxes. Such a warrant is ultra vires and the constable has no power to execute it.
    October 14th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny county : Of October and November Term 1881, No. 102.
    Debt, by George H. Garber, against John G. Conner, to recover the penalty of $50, prescribed by the 26th section of the the act of March 28th 1814, for taking illegal fees. Plea, nil debet.
    On the trial, before Stowe, P. J., the following facts appeared : — The defendant Conner was, in the year 1880, the collector of delinquent taxes of the eighth ward of the city of Pittsburgh. He issued a warrant against the plaintiff, George H. Garber, for delinquent taxes for the year 1879, due and unpaid by Garber.
    It appeared that in the summer of 1879, the plaintiff had called at the treasurer’s office of Allegheny county for the purpose of paying his county tax for that year, and was there told by the clerks that he was not assessed and had no taxes to pay; at Mr. Garber’s request, the clerks searched again for his name, but overlooked it, because, as was subsequently ascertained, it was written “ Garbe ” instead of Garber.
    Upon service by a constable of the warrant issued by the defendant, the plaintiff tendered the amount of tax due, together with ten per cent, as collector’s compensation, but refused to pay the additional costs demanded. This tender was refused, after which the constable proceeded to Mr. Garber’s house to make a levy on his goods, when Mrs. Garber paid the amount of the demand, viz.: the amount of tax due, ten per cent, for collection, 50 cents for defendant’s service in issuing the constable’s warrant, and $1.10 constable’s costs.
    This action was then brought under the 26th section of the act of March 28th 1814, which reads as follows: — “ If any officer whatsoever shall take greater or other fees than is herein-before expressed and limited, for any service to be done by him, after the first day of September next, in his office, or if any officer shall charge or demand and take any of the fees herein-before ascertained, where the -business for which such fees are chargeable shall not have been actually done and performed, or if any officer shall charge or demand any fee for any service or services other than-those expressly provided for by this act, such officer shall forfeit and pay to the party injured, fifty dollars, to be recovered as debts of the same amount are recoverable.”
    By the 23rd section of “ An act relating to Allegheny county,” approved May 1st 1861, Paraph. L. 455, it is provided, with respect to the collector of delinquent taxes: — “ if any of said taxes shall remain unpaid in any of said districts for a period of four months after the day fixed as aforesaid for the payment in the proper district, the treasurer shall issue his warrant, accompanied by a schedule of all unpaid taxes in each district, and the names of the persons -respectively by whom the same are due, directed to any citizen of the county, authorizing and requiring him to demand and receive from the persons named in the schedule the sums therein charged against them respectively, together with five per centum (increased to ten per cent.) in addition thereto, which shall be in full compensation to such person for the collection thereof.”
    At the conclusion of the plaintiff’s evidence, the defendant moved for a compulsory nonsuit, which the court granted, in accordance with the opinion of the court filed by His Honor, Stowe, P. J., in a similar case, of which the following is an extract:
    “ It is not pretended that the Act of 1814 or any supplement thereto speaks of- tax collectors or fixes their fees, but the contention is that the words of the Act of 1814 cover not only the officers and fees specified in the Act-, but all officers of the Commonwealth and all fees prescribed by any Act of Assembly. With this we cannot concur. We think that the penalty must be limited to illegal charges made by the officers specifically mentioned in the act. This seems so apparent from the act itself that it is difficult to comprehend the force of a suggestion to the contrary. The idea that none but officers mentioned fall within the penalty is indicated by Gibson, C. J., in G-allaglier v. Neal, 3 P. & W. 183, and is specifically stated by Coulter, <T., in Fitzsimmons’ Appeal, 4 Barr 248, in his declaration that ‘ the prohibition in the statute is expressly confined to officers for whom fees are provided.’ ”
    The court having refused a motion to take off the nonsuit, the plaintiff took this writ of error, assigning for error the said action of the court.

      James T. Buchanan, for the plaintiff in error.
    It being admitted that illegal fees were taken by the defendant, we contend that this case is plainly within the words of the Act of 1814, and within the mischief intended to be remedied by it. The rule that penal statutes are to be construed strictly does not mean that a narrow sense must be given to the words, but that the case must come within the manifest import of the words according to their obvious meaning, having reference to the old law, the mischief and the remedy : Heydon’s Case, 2 Rep. 18 ; State v. Powers, 36 Conn. 77; Parkinson v. State. 14 Mary. 184; The Schooner Industry, 1 Gall. 117; U. S. v. Wilson and Porter, 1 Baldwin 101; Rich v. Keyser, 4 P. F. S. 89; Seidonbender v. Charles’ Adm. 4 S. & R. 151; Commonwealth v. Morrisey, 6 W. N. C. 72; U. S. v. Winn, 3 Sumner 209.
    The penal clause of the act of 1814 — differing from the prior act of 1795, winch it superseded — applies to “ any officer whatsoever,'’ who “ shall take greater or other fees ” than are provided by the act; also, to fees demanded for “ any service or services other than those expressly provided for by this act.” The penalty under the old act of 1795 was restricted to the taking only greater fees than were provided for by that act. The clear intention of the legislature in enlarging the words was to impose the penalty upon all transgressing public officers, whether named in the preceding Fee Bill, or entitled to fees fixed by some other Act of Assembly. An inspection of the 25th section of the Act of 1814 shows that when the legislature intended to confine the operation of the Act, it used appropriate language to that effect.

      S. H. Geyer, and R. B. Parkinson, for the defendant in error.
    The act of 1814 is entitled, “An Act to establish.a Fee Bill.” It was intended to be a complete system, designating all the officers of the state, fixing their fees, and imposing a penalty on the officers therein named for taking excessive fees. Officers not mentioned in the act were left unprovided for either in fees or in punishment; and officers provided for in subsequent acts cannot be visited with the penaltj'prescribed by the former Act. When such officers take illegal lees, the injured party has his remedy by action of trespass, or the offender may be indicted for extortion. The general words of the act are as consistent with this construction as with the view .contended for on the other side, and where a penal act is equally capable of two constructions, the stricter one should be adopted. '
    November 21st 1881.
   Mr. Justice Gordon

delivered the opinion of the court

Conner, the collector of delinquent taxes for the 8th ward of the city of Pittsburgh, had no right to charge fees of any kind, hence his case does not come within the Pee Bill. Act of 1814, and consequently not within its penalty. The Act of the 8th of April, 1864, allows him to collect from the delinquent tax-payer ten per centum in addition to the amount of the tax, and this ten per centum is his full compensation, and any additional charge of any kind is illegal and void. Moreover, his warrant to the constable was altogether ultra vires: he had no power to issue such a writ, and the constable had no power to execute it. The only legal warrant was that of the treasurer to Conner; this was his authority tó demand and collect the taxes found in his schedule, and he liad no power to delegate that authority, by his waiTant or otherwise, to some other person. Under tlie act of 1834, he might, with the approbation of the treasurer, employ a suitable person to act for him “ in the execution of his warrant ” ; that is, the warrant issued to him by the treasurer. Hence, his deputy, if he has one, acts under the same power that he does. All this is very plain and obvious to any one who takes the pains to read the provisions of the statute, and how this collector and the constable, to whom he directed his sham warrant, came to pursue the course they did, is a matter hard to understand.

But notwithstanding the illegality of the proceedings of these officers; though they were clearly guilty of extortion and might have been punished therefor, we must agree with the court below that they were not amenable to the penalty prescribed by the 26th section of the Act of the 28th March 1814.

Judgment affirmed.