text:
    Young and Wife versus Babilon.
    The wife of B. acquired by descent an undivided interest in a tract of land. B. subsequently purchased the remaining interests from the brothers of his wife. B. died intestate, and his daughter petitioned the Orphans’ Court for partition, the petition setting forth the title of decedent, but containing no recital of the widow’s interest. The widow appeared and consented to the partition, and a purpart was awarded to the daughter, who brought an action to eject the mother therefrom. Held, that the widow was estopped from setting up her title by having approved the order of court making partition, and having agreed that it should be finally confirmed.
    October 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 123.
    Ejectment by Peter Young and Lenah Young, his wife, in right of said Lenah, for a tract of land.
    Ignatius Krabb died intestate, seised of sixty acres of land, and leaving a daughter, Barbara, intermarried with Joseph Babilon, and two sons, Joseph and Philip. Babilon took a deed for thirty-two acres of said tract from the two brothers and died intestate. His daughter Lenah petitioned the Orphans’ Court to partition his land, and recited in said petition the deed from Joseph and Philip as her father’s title to the land. The partition was made. The Krabb family mansion was on the purpart allotted to Lenah Young, and she brought this action against her mother to recover it. In the proceedings in the Orphans’ Court Barbara was named as widow, and her counsel signed an agreement setting forth that she was “ satisfied with the decree,” and that she did “agree that the same be entered, approved and confirmed absolutely.”
    At the trial the verdict was for the plaintiffs, subject to the opinion of the c'ourt whether Barbara was estopped from setting up her title by reason of her action in the partition proceedings. The court, Bailey, J., in an opinion, inter alia, said:
    “We do not think that the facts herein bring this case clearly within any of the three ingredients of estoppel, set forth in Commonwealth v. Moltz, 10 Barr 531, and which we think are applicable here. This plaintiff was the petitioner in the Orphans’ Court for the partition, and as heir-at-law of the decedent she is chargeable with knowledge of the title, or want of title, of her ancestor. The very deed referred to in her petition (which she did not offer here as the foundation of her title), and her knowledge of her mother’s family, were quite enough to put her upon inquiry which would inevitably have led to the correction of the erroneous statement of decedent’s title in her petition. * * *
    “ As was decided in Feather v. Stroehecker, 3 P. & W. 508, ‘if the whole or any less estate of freehold be evicted in all or any part of a particular purpart the parties are remitted to their original rights,’ ‘ and the partition may be avoided in the whole Seaton v. Barry, 4 W. & S. 185; s. p. Strohecker v. Housel, 3 Clark 379.
    “ We, therefore, order that judgment be entered in favor of defendants, notwithstanding the verdict, upon payment by them of the verdict fee.”
    This entry of judgment was assigned for error by plaintiffs, who took this writ.

      Barton & Sons, for plaintiff in error.
    The widow was estopped by matter of record, by the judgment and decree of a court of competent jurisdiction in an action in which she was a party — a judgment and decree entered at her instance and at the request of her counsel in writing.
    The deed in evidence from Joseph Krabb and Philip Krabb to Joseph Babilon, set forth in the petition for partition, reeites that they are the only heirs-at-law of said Ignatius Krabb. And so far as the record title goes the legal title was in Joseph Babilon at the time of his decease. His widow, Barbara, now comes in and denies the allegations in this deed, and says that she was also a daughter and heir of said Ignatius. This fact was certainly known to her at the time she agreed to the decree in partition, and to allow her now to set up this alleged title in herself would be a gross fraud on the other parties.

      Montooth Bros. and C. C. Taylor, for defendants in error.—
    The very deed which Lenah sets forth in her petition shows that her mother had never parted with the title which had descended to her from her father, and- that she still had her interest in her father’s estate. When the widow appeared in the partition proceedings she did so to a proceeding for the partition of Joseph Babilon’s estate, and not that of Ignatius Krabb’s. She had a right to assume that no land but that of which Joseph Babilon died seised was included therein, nor was she or her counsel required to examine the petition to ascertain whether Ignatius Krabb’s property had been embraced in it or not.
    October 27th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

There is not much doubt that the title to at least one-third of the land in controversy was vested in Barbara Babilon, widow of Joseph Babilon, deceased, by descent from her, father, Ignatius Krabb, and if she did nothing whereby, in equity, she ought to be restrained from asserting that title, she was entitled to a verdict. In order to come to a proper conclusion in this inquiry, we must, at least partially, review the facts of the case.

Ignatius Krabb died, about the year 1867, seised in fee of these premises. Joseph Babilon claimed to hold by virtue of a parol agreement with Krabb, according to the terms of which he was to have the land on payment of $300, to one of Krabb’s sons. About the time of or soon after Krabb’s death, he obtained the deed, not only of Philip, the son, to whom he was to pay the $300, but also of his brother Joseph. These, with Barbara, were all of the heirs of Ignatius Krabb. Now, granting that the parol sale was worthless, yet his wife knew, no doubt, that Joseph Babilon did claim the land by virtue of it, a.nd of the deed from her brothers and co-heirs, for it is scarcely credible that the wife would not know how her husband professed to own the premises which for so many years had been their home. Moreover, she certainly knew that her father, in his lifetime, had owned this land and that she was one of his heirs. Her husband died in the year 1872, possessed of the land in dispute, and the writ of partition which forms an important part of this case, was not sued out until 1877, so that if she had any doubt about or was ignorant in any particular concerning her own rights in the premises, she had most ample time for information and inquiry, and if she still remained ignorant, if she was not fully posted in every particular, it was her own fault. This then was her position when the writ of partition was served upon her. She knew her husband had claime,d to own this land; that he died possessed of it; that it was now claimed as part of his estate, and that it was, with other lands, about to be divided among his heirs. Surely if under these circumstances she will now stand by, and without objection permit this process to proceed to a final decree, she ought to be estopped and her previous rights treated as for ever abandoned. She is legally a party to the record, and if she wittingly and willingly allows a solemn decree to be entered against her title, I know not how, in a collateral proceeding, she can after-wards avoid that decree. But not only did she passively allow this process of partition to culminate in a final decree, but she actively engaged in its promotion. She, by her attorneys, endorsed and approved of the order of the court and agreed that it should be finally confirmed.

The result of this was, that not only were the several purparts ascertained and awarded to the accepting heirs, inter alia, the one in suit to Lenah. Young, the plaintiff, the widow’s dower settled, the costs and a mortgage against the premises paid, but also, owelty to a non-accepting heir, ascertained, decreed and in part, if not in whole, paid. Here then is a record which the defendant deliberately helped to make; a record certainly equivalent to her own deed, not only by force of legal intendment, but in fact, for it is endorsed by the sign manual of her own attorneys. How then can she escape from its consequences ?

If, as was said in Chapman v. Chapman, 9 P. F. Smith 214, mere silence will postpone a title, where one knowing his own right suffers his silence to lull to security an innocent purchaser, instead of warning him of danger, much more should a judicial decree asserted to have that effect. ' So it was held in Nass v. Vanswearingen, 10 S. & R. 146, that a party who stands by at a sale of his own property, though under a void authority, and encourages a purchaser to bid, is guilty of a direct fraud, and will be estopped from alleging title against such purchaser. To a like effect is Epley v. Witherow, 7 Watts 165, and Carr v. Wallace, Id. 400.

All these, however, are cases of estoppel in pais, and. hence are less strong than the case in hand, where the estoppel arises from a record, a record deliberately assented to by the defendant herself. Neither do the precedent facts entitle her to special consideration, for the arrangement between her father and her husband, though in strictness of law conferring no title upon the latter, yet having been acquiesced in for so long a time by all parties in interest, she, in all conscience, ought to have been bound by it. Furthermore, we cannot understand why, without this, Joseph Babilon’s title to the two-thirds of the property which he acquired from his wife’s brothers was not perfectly good.

The learned judge of the court below said, on the authority of Feather v. Stroehecker, 3 P. & W. 505, that Lenah having been evicted from her purpart, the partition in whole might be avoided. This might be true in a proper case, but it is certainly not to be avoided in the interest of one who, like the defendant, was active in the production of the decree, and who was the means of imposing upon the parties thereto costs and expenses that cannot be restored to them; for it is not Lenah who seeks to avoid this partition, but Barbara, the defendant. To permit this would be to sanction a great wrong, and one that would result only to the advantage of the wrongdoer, a result which in equity cannot be tolerated.

As we must reverse this ease and enter judgment on the verdict, the question raised upon the character of the notice, necessary in order to recover mesne profits in the action of ejectment, becomes unimportant.

The judgment of the court below is reversed, and it is ordered that judgment be entered on the verdict for the plaintiffs, for the land described in the writ, with six cents damages and costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Atkinson versus Tomlinson.
    1. To the notice of inquisition a sheriff made return, “Having made diligent search and inquiry, and not being able to find the within named defendant, I did, this 15 th day of October 1872, post the within described premises with a true and attested copy of this writ.” Held, that if this return was defective under the Act of June 16th 1836, on the ground that it did not show legal notice to defendant, it was an irregularity which did not render the venditioni exponas issued in pursuance thereof a void process and could not affect the title of the purchaser from the sheriff’s vendee.
    2. An order of court setting aside a condemnation and venditioni exponas, by reason of such an irregularity, is a nullity as to said bona fide purchaser.
    October 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, P^xson, Trunkey and Sterrett, JJ. Green, J., absent.
    . Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 262.
    Ejectment by John H. Atkinson against A. Tomlinson for two lots of ground in the city of Pittsburgh.
    Evans, Dallas & Gilmore obtained a judgment against Atkinson on June 4th 1872, and on the same day issued execution and levied upon the two lots of ground in dispute. The sheriff made return that the lots had been condemned by his jury of inquisition, and also the following return to the notice of inquisition:—
    “ Having made diligent search and inquiry, and not being able to find the within-named defendant, I did, this 15th day of October 1872, post the within described premises with a true and attested copy of this writ.”
    The plaintiff, on October 25th 1872, issued a vend, ex., and on December 2d 1872 the property was sold by the sheriff to John S. Lambie and J. A. McQuade. On December 7th 1872, the sheriff acknowledged a deed to the purchasers, and on the 9th of December they conveyed to Tomlinson. Atkinson Was notified of the sale, and on the 21st of December 1872 petitioned the court to set aside the sale on the ground that no notice was given to defendant, although the plaintiff and the sheriff and his deputies personally knew defendant and his address in West Virginia, and that no notice was served on defendant’s agent, who contracted the debt sued for, although said agent was well known to plaintiff, and resided in Allegheny county. The court granted a rule on Lambie and MoQuade to show cause why the sale should not he set aside. They filed an answer December 26th 1872, denying any knowledge of defendant’s residence or that of his agent, and setting forth their sale to Tomlinson; whereupon the court ordered Tomlinson to he made a party, and directed notice to be given to him.
    On January 10th 1873, Tomlinson filed an answer, in which he averred • that he was a bona fide purchaser, without any notice of any irregularity in the sheriff’s sale, and protesting that the court had no jurisdiction to determine his rights in the premises, and that he was not bound to answer said rule.
    The case was argued on June 22d 1875, and the court allowed the defendant to modify and limit the rule heretofore granted to a rule to set aside the inquisition, condemnation and vend. ex. On the 6th of April 1876, the cause was again argued, and the court made the rule absolute.
    Atkinson then, on April 29th 1876, brought this action of ejectment to repossess himself of his property.
    The cause was regularly put at issue, and came on for trial on the 15th of February 1877. The plaintiff offered in evidence the title in himself, as shown by his abstract, which was admitted; also, the sheriff’s return to show possession of the defendant, and rested.
    The defendant then offered in evidence the sheriff’s deed to him, under the sale of October 1872, on the Evans, Dallas & Gilmore judgment. To this the plaintiff objected, claiming that the defendant, to support his sheriff’s deed, must first show a judgment, execution, levy, inquest, condemnation and vend. ex. The court overruled the objection.
    The defendant then offered the judgment "of Evans, Dallas & Gilmore; also, the fi. fa., showing levy, inquisition and condemnation. Objected to, because the same record showed that the inquisition and condemnation had been set aside.; that the defendant could not offer and use a part of the record without using the whole. The court overruled the objection.
    The defendant also offered his deed from Lambie and McQuade, and rested.
    The plaintiff then offered the remainder of the record not offered by defendant, showing the action of the court in setting aside the inquisition, condemnation and vend, ex., and rested.
    The court, Collier, J., instructed the jury to find for the plaintiff, subject to their opinion on the following questions of law reserved :—
    1. Whether the court had power to make the order entered on vend, ex., setting aside the inquisition, condemnation and vend. ex.
    2. Whether said action of the court impaired or defeated the title of the defendant acquired from the sheriff’s vendee.
    The court subsequently entered judgment for the defendant on these points, when plaintiff took this writ, alleging that the court erred in admitting the sheriff’s deed in evidence and in entering judgment for defendant on the reserved points.

      Barton & Sons, for plaintiff in error.-
    A party wanting-to put in evidence a title acquired under a judicial sale, must show not only a sheriff’s deed, but an authority to the sheriff to make the deed, to wit, a judgment, execution, levy, inquisition, condemnation, vend. ex. and sale. Rut the court below in this case held differently, and permitted the defendant- to give in evidence his sheriff’s deed, and threw upon plaintiff the burden of contradicting the recitals in the deed. The defendant, not altogether relying on the correctness of this, undertook to corroborate it by offering a part of the record, to wit, the ff. fa., levy, inquisition and condemnation, and then rested. It is contended he was bound to offer the whole record. The Act of Assembly of June 16th 1836, Pamph. L. 769, requires that the sheriff should serve this notice of inquisition upon the defendant, if he be found within the county; if not, then to his agent or attorney, if they be known; if not, then to fix a handbill upon the premises.
    In this case the sheriff totally neglected his duty. His return is that he made diligent search and inquiry for the defendant, but could not find him. He therefore posted the premises with a copy of this writ. The law declares he shall give notice by a handbill posted on the premises.
    If the court had the power of setting aside this inquisition, &c., then its order and decree cannot be treated as a nullity in this collateral proceeding: Black v. Aber, 2 Grant 206. Was Tomlinson, who purchased from the sheriff’s vendees, to be visited with this irregularity apparent upon the record, for which the court afterwards set aside the proceedings ?
    A sheriff’s sale of real estate without an inquisition and condemnation is void: Baird v. Lent, 8 Watts 422; and it is not cured by the acknowledgment of the deed: Shoemaker v. Ballard, 3 Harris 92.

      A. M. Brown, for defendant in error.
    The defendant had the notice required by law. The omission to give notice of an inquisition is a mere irregularity, for which the sale might have been set aside; it never was a reason for declaring a purchaser’s title void, after deed made and payment of purchase-money : Meanor v. Hamilton, 3 Casey 137; Spragg v. Shriver, 1 Id. 282 ; McFee v. Harris, Id. 102; Neil v. Tate, 3 Id. 208; Jackson v. Morter, 1 Norris 291; Chadwick v. Patterson, 2 Phila. R. 275; Hope v. Everhart, 20 P. F. Smith 231.
    Where there is nothing on the record to show an execution irregular, the court will not interfere with it.

      October 27th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

The defect in the sheriff’s return, if there was a defect, was an irregularity which did not render the venditioni exponas a void process, and could not affect the title of the purchaser from the sheriff’s vendee. He could not be summarily deprived of his land, which he had bought and paid for. Under notice of the rule to set aside the condemnation and venditioni exponas, he came in and set forth his title as a bona fide purchaser for valuable consideration, and without notice. As to him, the order of the court setting aside the process was a nullity. The court was right in admitting the sheriff’s deed, with the judgment and execution, without regard to the order. The judgment of the court below upon the reserved point was therefore right.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Stewart versus Reed.
    Where there has been a fraud committed in obtaining a sheriff’s sale, and the purchaser at said sale was not a party to it, his vendee will take a good title, although the latter had notice or knowledge of the fraud.
    October 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkex and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of 'October and November Term 1879, No. 235.
    Ejectment by Martin Reed against John K. Stewart, William Weaver and others, for two tracts of land in Allegheny county, in possession of said Weaver as tenant of said Stewart.
    The title to the land was admitted by both parties to have been in Henry Weaver prior to July 19th 1870, at which time he exécuted and delivered to John Little, Jr., a mortgage on the tracts of land in dispute, to secure the payment of $6000. Little assigned the mortgage to Samuel McClurkan, who advanced $5000 on it to Weaver. Weaver failed to pay the interest, and McClurkan foreclosed the mortgage, and obtained judgment, in default of an affidavit of defence, for $5446.77. A levari facias was issued and the property sold by the sheriff. At the sale the property was knocked down to McClurkan for $5000; the judgments which preceded his mortgage, and were entitled to distribution out of the fund realized by the sale, amounting with interest and costs to date of sale to $2770.28.
    His own debt with interest and costs to the day of the sale amounted to $5782.09. At the time of the sale Weaver was insolvent, a number of judgments being entered against him aggregating $20,749.94. Stewart, the defendant, owned two of these judgments. Reed, the plaintiff, owned one. It appeared that Stewart had entered into an arrangement with MeClurkan whereby Stewart was substituted on the sheriff’s books as the purchaser instead of MeClurkan, and the sheriff made his deed directly to Stewart. The latter agreed to pay MeClurkan the whole amount of his claim, and all liens prior to the mortgage. MeClurkan gave Stewart time for the payment of $3120, and took a judgment on the land to insure the payment of it. Emily Weaver, wife of Henry Weaver, had two judgments prior to McOlurkan’s mortgage. Stewart also arranged for payment to her. Reed issued execution on his judgment, and had the two tracts of land levied upon as the property of Henry Weaver. They were sold by the sheriff and bought by Reed, who after he had obtained a deed from the sheriff brought this action against Stewart and his tenant to acquire possession.
    The plaintiff claimed on the trial of the case, that the arrangement made between. Stewart and MeClurkan, by which the deed from the sheriff was made to Stewart instead of MeClurkan, and the agreement between Stewart and Mrs. Emily Weaver, by which Stewart gave her credit on her mortgage held by him, for the amount she should have received on her judgment through the hands of the sheriff, were fraudulent and in violation of the provisions of the statute of 13th Elizabeth, and that the title to the land did not pass to Stewart by the sheriff’s sale, but remained in Henry Weaver until the sale on Reed’s execution, when by virtue of that sale it became vested in Reed.
    It was also claimed by the plaintiff in support of this position, that in a conversation between Reed and Stewart preceding the sheriff’s sale, Stewart stated to Reed that a certain Benjamin Butler held a judgment against Weaver for between $3000 and $4000; that he was deterred from bidding on the property by this statement of Stewart’s, though he made no effort to ascertain the truth of this statement, and had made no effort at any time to ascertain the amount of liens against Weaver’s farm.
    It was also further claimed by the plaintiffs below, that some months before the sheriff’s sale and before MeClurkan had issued his execution, Stewart sought to purchase the Butler judgment; that Stewart and Butler had come to Pittsburgh together to see if it could be transferred to Stewart, and that Stewart had agreed to pay Butler the balance of his judgment in case he bought the Weaver farm, and in case the balance owing on the judgment did not exceed $1000. It was claimed and strongly urged that this promise had reference to a sheriff’s sale, that Butler relied upon it and was misled by it, and did not bid or attend the sale, though in his testimony he stated he was unable to buy the property, and had no intention of bidding on it in any event.

      The following were among the points submitted by the plaintiff, both which the court, White, J., affirmed:
    3d. That if the jury are satisfied from the evidence that Reed was misled at the sale and deterred from bidding by reason of a communication made to him by Stewart, as to the amount due on the Butler judgment, and that such representation was false, and was made in pursuance of an arrangement between said defendant and Butler, that then the sale was void in law, a fraud on creditors, and no title passed by the sale to the defendant.
    4th. That if the jury believe from the evidence the property in dispute was sold at the sale to McOlurkan at less than its value, the result of connivance between Stewart, the defendant, and Butler, and Henry Weaver, and the defendant afterwards, by an arrangement with McOlurkan, was substituted as bidder, he, the defendant, would be charged with all the consequences of such unlawful combination, and stand in no better position than if he had been the actual bidder at the sale.
    The verdict was for plaintiff, when defendants took this writ, their third and fourth assignments of error being the affirmance of the above points.

      Fetterman & Johnston, for plaintiffs in error.

      Barton & Sons, for defendant in error.
    November 3d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

Whatever fraud may have been committed in this case it is clear that Samuel McClurkan, the purchaser at the sheriff’s sale, was not a party to it. Hence his title was free from taint, and under all the authorities his vendee would take a good title even though the latter had notice or knowledge of the fraud. This is a familiar rule, and is essential to enable honest purchasers to dispose of property which they have acquired in good faith.

Had the plaintiff in error been the purchaser at the sheriff’s sale, the case might have come within the ruling in Abbey v. Dewey, 1 Casey 413, where it was held that, “ a purchaser at sheriff’s sale who resorts to any trick or device to get the property at an unfair value, and thereby purchases it for less than it would have sold for at a fair sale, renders the title so acquired utterly void. The practical difficulty in the way of applying this principle to this case is that the property in question was sold by the sheriff to McOlurkan. It is true the latter did not take the legal title, as he afterwards sold to Stewart, the plaintiff in error, and the sheriff’s deed was made direct to him. But during this interval McOlurkan held the equitable title, which was as much under the protection of the rule of law above referred to, as was the legal title. McClurkan bought at the sheriff’s sale for his own protection as a lien-creditor. There was no understanding or agreement with Stewart that the latter was to have any advantage of the sale or interest in the property. Stewart had no reason to suppose he could buy of McClurkan upon any better terms than he could of any stranger. He did not even know that he could buy at all. If he schemed for the depreciation of the property, he schemed for the benefit of McClurkan, and any advantage to himself depended upon the mere possibility of his purchasing from him upon advantageous terms. He did succeed in this, and the question now is, can the title in his hands be avoided by reason of his alleged fraud in connection with the sheriff’s, sale ? We are of opinion that this cannot be done. To do so would be in effect to strike down McOlurkan’s equitable title. This might not injure the legal representatives of Mr. McClurkan, but we cannot say so. They are not parties to this proceeding. That they do not complain is therefore without significance. In the absence of any collusion between McClurkan and Stewart, we are clearly of opinion that Stewart is entitled to take shelter behind McClurkan’s equitable title.

The third and fourth assignments of error are sustained. The others do not require discussion.

The judgment is reversed and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Jeffers and Wife versus Gill, for use of Lewis et al.
    1. Where one of two innocent persons must suffer, he must bear the loss whose act or neglect has been the occasion of the suffering.
    2. J. and his wife executed and delivered to G. a bond and mortgage, for $10,000, on the property of the wife] accompanied with a certificate of no defence, and G. assigned them to M. J. and his wife then conveyed a part of the mortgaged premises to Me., and the remainder to the wife of Me., both of whom had knowledge of the assignment to M. Me. and wife reduced the mortgage debt to $3000, which was noted on the mortgage, and Me., at the suggestion of G., gave the latter a negotiable note for that amount, with the agreement that G. should hold the mortgage of J. and wife to secure the payment of the note or its renewal. M. re-a,ssigned the mortgage to G., who, without the knowledge of Me., assigned it to L. The note of Me. was several times renewed, and upon the last renewal G. transferred it to a bank for value, before maturity, which obtained judgment and recovered the amount from Me. L. brought suit on the mortgage and showed that she had paid full value for it, and that she purchased said mortgage without actual notice or knowledge of any agreement between G. and Me., or that the latter had given a note for the same debt. Held (affirming the court below), that Me. having put it in G.'s power to commit the fraud, and having exercised that power by the assignment of the mortgage to L., and at the same time keeping secret the collateral arrangement involving the note, Me. must suffer the loss. . Held, further, that no duty of inquiry rested on L. to ascertain if Me. had a defence to the mortgage, the want of reasonable prudence on the part of the latter having been the cause of the imposition upon her.
    October 13th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 327.
    Scire facias sur mortgage by S. B. W. Gill, for the use of Mrs. Eliza Lewis and Miss Rachel Walker, against C. B. Jeffers and Margaret J., his wife, with notice to Robert McCain terre-tenant.
    On the 6th of April 1874, C. B. Jeffers and Margaret, his wife, executed and delivered to S. B. W. Gill, then a lawyer in large practice, a bond and mortgage on property situated in the city of Allegheny, and belonging to Mrs. Jeffers, which bond and mortgage recited an indebtedness of $10,000.
    By deeds dated the 10th of April 1874, Jeffers and wife conveyed a part of the mortgaged premises to Robert McCain, and the remaining part to Eliza Jane McCain, wife of Robert, by two several deeds of conveyance of that date, and which were recorded on the 25th of September 1874. McCain testified that at the time of the delivery of the Jeffers deeds he knew that the Gill mortgage had been assigned to one McCullough.
    On the 1st of May 1874, Gill, having by an endorsement on the bond and an entry on the margin of the record of the mortgage acknowledged the payment of $4400, assigned and transferred the securities and the remaining $5600 to McCullough.
    The purchase was made by McCain and wife, subject to the said Gill mortgage and certain other liens, th'e payment whereof was assumed by the McCains as part of their purchase-money.
    In each of said deeds was contained the following provision: “This conveyance being made subject to the payment by the party of the second part of all mortgages and record incumbrances at present a charge and lien upon hereinbefore described lot of ground.”
    On the 6th of April 1876, the mortgage to Gill matured, and on that day McCain and wife paid to Gill the sum of $2600, thus reducing the mortgage debt to the sum of $3000, which payment was acknowledged on the mortgage.
    At the suggestion of Gill, McCain then gave him a negotiable' note for said $3000, at four months, to his, Gill’s order, and it was agreed between them that the bond and mortgage of Jeffers and wife to Gill should remain in the hands of the latter to secure the payment of said note, or any renewals'thereof.
    On the 8th of April 1876, the bond and mortgage were re-assigned by McCullough to Gill, who, on the 10th of April 1876, assigned and transferred the said bond and mortgage to Mrs. Eliza Lewis, who, in her turn assigned and transferred an interest in said bond to Rachel Walker.
    On the 4th of August 1876, the note for $3000 given to Grill, matured, and was renewed by another note of like form and amount, and an agreement in writing in the following words and figures was entered into'between Gill and McCain.
    “Received August 4th 1876, of Mr. Robert McCain his promissory note for $3000, payable four months after date, being a renewal of another note for same amount, dated April 1st 1876, for four months ; said first note and this renewal being given in payment and satisfaction of the balance due upon the mortgage of C. B. Jeffers and wife, dated April 1st 1874, and recorded, it being the contract and bargain that said four months’ note is to be renewed from time to time for two years, from April 1st 1876, he, said McCain, to pay the interest and discount on each renewal every four months, and said Gill is to hold said mortgage and bond as a security for the payment of said note and each and every renewal thereof; and when the said debt of $3000 is paid, he is to fully satisfy and discharge said mortgage in due form of law.
    S. B. W. Gill.”
    Under this agreement McCain continued to renew said notes and pay the discount to Gill until August 1877, when he signed the last renewal note at four months. «
    In the fall of that year, Gill secretly left the community, and was not heard of thereafter.
    Some time after Gill’s disappearance, the son of'Mrs. Lewis called on McCain and demanded the payment of interest on the bond and mortgage. This was the first intimation, so McCain testified, that he had of the transfer of the bond and mortgage to Mrs. Lewis. Suspecting nothing wrong, McCain paid the interest demanded.
    Shortly afterwards he received notice from the National Bank of Commerce of Pittsburgh, that said bank claimed to hold the final renewal note for $3000, given to Gill. McCain then, though willing to pay the debt of $3000, declined to recognise the title of one to the exclusion of the other. Accordingly suits were brought, one by the bank as the holder of the note, and one by Mrs. Lewis, on the mortgage. The suit by the bank in the Circuit Court of the United States, resulted in a judgment in favor of the bank as a bona fide holder before maturity of a negotiable note; and this judgment McCain had since partly paid and secured the payment of the balance. ' »
    On the trial of the present action the foregoing facts were made to appear. It was shown that the bank had, from time to time, as they were given, discounted the entire series of these notes for Gill. It was also shown, on behalf of Mrs. Lewis, that she had paid full value for the bond and mortgage, and that she purchased it without knowledge or actual notice of the agreement between Gill and McCain, or that the latter had given a note for the same debt. At the time of her purchase of the securities, a certificate of no defence by Jeffers and wife, of the date of April 10th 1874, was turned over by Gill to Mrs. Lewis, together with the bond and mortgage.
    The second point submitted by plaintiffs, which the court, White, J., affirmed, was as follows: “ That under all the evidence in the case, if the same is believed by the jury, the plaintiffs, Mrs. Eliza Lewis and her assignee Rachel Walker, are entitled to a verdict.”
    This instruction, inter alia, was assigned for error by defendants who took this writ.

      J. C. McCombs and George Shiras, Jr., for plaintiffs in error.—
    Gill, as mortgagee, could not maintain this action. Having negotiated McCain’s note he could not bring the action on the mortgage until he had taken up the note: Small v. Jones, 8 Watts 265. As the note was paid by McCain to the Bank of Commerce, the mortgage, so far as Gill was concerned, was paid, and McCain was entitled to demand its satisfaction. Did payment to Gill, prior to the assignment to Mrs. Lewis, avail as a payment as against her ? Could Gill confer upon his assignee a better title than he had himself? It is settled law that the assignee of a mortgage takes it subject to the equities against his assignor: Hodgdon v. Naglee, 5 W. & S. 217; Davies v. Austen, 1 Vesey 247; Kamena v. Haildig, 8 Green (N. J.) 78.
    It is contended, on behalf of the defendants in error,' that the equities to which the assignee of a mortgage is subject are the equities between the mortgagor and the mortgagee, and not those existing between the mortgagor and third persons. This, as a proposition of law, must be regarded as extremely doubtful. While there are some Pennsylvania cases that assert such a rule, it will be found, on examination, that those cases proceeded upon a decision to that effect made by Chancellor Kent, in Clute v. Robinson, 2 Johns. Rep. 612. But this decision, having been carefully reviewed in several subsequent cases, was finally deliberately overruled by the Court of Appeals of the state of New York — see Trustees of Union College v. Wheeler, 61 N. Y. 88, and Greene v. Warnick, 64 Id. 220, and the reasoning of the latter cases seems satisfactory.
    But, however the law may be in that regard, the proposition invoked does not apply to the facts of the present case. This is a case in which the equities exist between Jeffers and wife, as the original obligors of the mortgage and bond, and Gill, as the mortgagee, as well as between the latter and McCain. The bond of Jeffers was and still is outstanding. McCain and wife had covenanted, by purchasing subject expressly to the payment of this bond and mortgage, to pay and extinguish them. Hence, if Mrs. Lewis, when she undertook to invest in the bond and mortgage of Jeffers and wife, had gone to them, she would have learned the truth: that the land had been sold; that new parties had stipulated to pay and exonerate them, and that, in point of fact, the debt had already been paid by the delivery of McCain’s negotiable note.
    The effect, as notice, of the possession of the mortgaged premises, is also to be considered.

      M. W. Acheson, for defendants in error.
    The mortgagors make no defence: The defence is made by the terre-tenants, Robert McCain and wife. Mrs. Lewis was a bona fide purchaser for value of the mortgage in question and accompanying bond. She found the mortgage and bond, with the certificate of no defence, in Gill’s hands, with nothing appearing thereon to show the alleged agreement between Gill and McCain; and, in fact, she was wholly ignorant thereof.
    At the time of her purchase of the mortgage and the assignment thereof to her, she had not actual knowledge of the conveyance by Jeffers and wife to the McCains. In examining the mortgage title she was not bound to search for conveyances from the mortgagors subsequent to the date of the mortgage. The Jeffers deeds did not lie in the pathway of her search, and therefore she was not visited with constructive notice : Keller v. Nutz, 5 S. & R. 246 ; Woods v. Farmere, 7 Watts 382; Lightner v. Mooney, 10 Id. 407; Taylor v. Maris, 5 Rawle 51; Hetherington v. Clark, 6 Casey 393.
    The assignment by Gill to Mrs. Lewis was promptly entered of record. She was guilty of no laches. Throughout the whole transaction she acted with commendable prudence. But McCain was guilty of gross laches. His alleged agreement with Gill was made, and the original $3000 note given on April 1st 1876, when McCullough was still the owner of the mortgage and bond. He did not place his agreement of record; nor did he have it noted upon the securities. He renewed his note four times without examination of the record to see whether the mortgage had been assigned, and without inquiry as to whether Gill still held the securities. He permitted the mortgage and bond and certificate of no defence to remain in Gill’s hands, in a condition which enabled Gill to obtain the money of an innocent purchaser, and should suffer for his wrongful act. Where one of two innocent persons is to suffer for the tortious acts of a third, he who gave the aggressor the means of doing the wrong must alone bear the consequences of the act: Pennsylvania Railroad Co.’s Appeal, 5 Norris 80; Wethrill’s Appeal, 3 Grant 288; Fisher v. Knox, 1 Harris 626.
    The assignee of a mortgage takes it subject to the equities of the mortgagor, but not to the latent equities of third parties; Mott v. Clark, 9 Barr 399; Pryor v. Wood, 7 Casey 142; Wetherill’s Appeal, supra; McMasters v. Wilhelm, 4 Norris 218; Davis v. Barr, 9 S. & R. 137; Commonwealth v. Councils of Pittsburgh, 10 Casey 496; Taylor v. Gitt, 10 Barr 428; Fisher v. Knox, supra; Hendrickson’s Appeal, 12 Harris 363.
    October 27th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

“ Where one of two innocent persons must suffer, he must bear the loss whose act or neglect has been the occasion of the suffering:” Wethrill’s Appeal, 3 Grant 281. Judged by this rule, McCain’s defence fails. He it was who put it into Gill’s power to commit the fraud which has produced the result complained of; from first to last he has been grossly negligent. He gave his note for the balance due fipon the mortgage, when it was yet in the hands of McCullough, and when it did come into Gill’s possession he took no steps to have the arrangement endorsed either upon the papers or upon the record. The mortgage, bond and certificate of no defence were left in Gill’s possession as security for the note; in other words, they were to be of full force until the note was paid. Thus was Gill left with power to dispose of the mortgage as he might see proper, and he, having exercised this power, by assigning to Mrs. Lewis, at the same time keeping secret the collateral arrangement involving the note, I cannot see how, in justice, she is to be made to suffer. But the carelessness of McCain is further manifested in this: when the note was renewed, in August 1876, he neglected to examine the record, or to demand sight of the papers, by either of which he might have informed himself of the assignment, and in this manner he let slip the opportunity to secure himself Furthermore, he renewed this paper from time to time until Gill ran off and left him to pay it to his endorsee. McCain having thus neglected to exercise the most ordinary prudence, having, though it may be, inadvertently, helped a rogue' to set a trap for the unwary and innocent, he cannot be heard to complain if he himself has experienced the misfortune to be caught -in it.

It has been urged that the duty of inquiry rested upon Mrs. Lewis; that she ought to have gone to McCain, the vendee of Jeffers, and ascertained if he had any defence. Saying nothing about her want of knowledge of the transfer of the mortgaged premises to McCain, or of the effect of the certificate of no defence executed by Jeffers, this might be true had McCain exercised a reasonable degree of prudence, but as the want of such prudence was the cause of the imposition upon Mrs. Lewis, she owed him no duty of any kind. Had he not been negligent, she would not have paid her money, and he cannot now impose the fruits of that negligence upon her, by insisting upon a duty which was due him only when acting in an ordinarily prudent and careful manner.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Ruple, to use of Lewis, versus Bindley,
    1. An assignment for a valuable consideration of 'demands, having at the no actual existence, but which rest in expectancy only, is valid in equity as an agreement, and takes effect as an assignment, when the demands intended to be assigned are subsequently brought into existence. East Lewisburg Lumber and Manufacturing Company v. Marsh, ante, p. 96, followed.
    2. Undecided whether assignments of parts of a demand to different persons, to secure payments to them of specific sums, in succession, are valid in Pennsylvania.
    3. The form of the assignment is immaterial, so that there be a clearly expressed intention of an immediate transfer of the right to the assignee.
    4. Jermyn v. Moffit, 25 P. F. Smith 400, distinguished.
    October 13th 1879.
    Before Sharswood, C. J., Mbrcur, 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 1879, No. 168.
    Assumpsit by James L. Ruple, for use of Amos Lewis, against John C._ Bindley.
    The facts were these: James L. Ruple was a stair-builder; Amos Lewis was the proprietor of a planing-mill and lumber yard in the city of Pittsburgh; John C. Bindley was a builder and contractor. In June 1877, Bindley was erecting a building in Pittsburgh, and Ruple made a bid to Bindley to put up the stairs for him. Bindley agreed to accept his bid at $133, provided Ruple would allow credit .for $28.12, the amount of a hardware bill, which Ruple owed to England & Bindley, balance to be paid when the stairs were finished. Ruple, not having the means to provide the materials and support himself while he was doing the job, applied to Amos Lewis to assist him. Lewis then agreed to furnish to Ruple the necessary materials and advance money, as the work proceeded, to the amount of $104.85, the balance of the contract price for the stairs, after deducting the England & Bindley bill for hardware, which balance it was agreed should be paid to Lewis, and to secure Lewis an order was drawn up and signed by Ruple, in the following words, viz.:
    “ Pittsburgh, June 18th 1877.
    Mr. John C. Bindley :
    Pay to Amos Lewis the sum of $104.85, and charge to my account. This order payable when I finish stairs at Congress Hall, on Webster street.
    Jas. L. Ruple.”

      Lewis then went on and furnished to Ruple the necessary materials for the stairs, and supplied him with money every Saturday evening, while he was working at the stairs, to the amount of $104.85.
    Shortly after the work was commenced, Bindley was informed of this transaction, and the order was presented to him for acceptance. Bindley refused to accept the order in writing, but said it was all right, provided Ruple finished the stairs, and he would accept when the stairs were finished. Ruple finished the stairs according to contract, and notwithstanding his promise, Bindley refused to accept or pay the order; and afterwards, on the 8th of December 1877, as he claimed, he settled with Ruple, and took his receipt for $138, in full. Lewis then brought this suit in the name of Ruple, for his use, treating the order and notice of the same as an equitable assignment of the claim by Ruple to him, Lewis.
    The plaintiff declared upon the order, and the promise of Bindley to pay it when the work was finished, averring the completion of the work, and also added common counts. Defendant pleaded nonassumpsit, payment with leave, &c.
    On the trial the plaintiff proved the contract between himself and Ruple, the notice to Bindley, the drawing of the order, the presentation of the same to Bindley and his promise to pay it when the work was completed; also proved the completion of the stairs by Ruple, that plaintiff furnished the materials and money to Ruple as the work progressed, offered the order and rested. The defendant then claimed that he never agreed to pay the order at any time, and produced the receipt of Ruple, dated December 8th 1877, and alleged that he had settled with Ruple in full.
    The following points were presented by the plaintiff, both of which the court refused:—
    1. That the order held by the plaintiff, drawn by Ruple on the defendant, operated as an equitable assignment of the debt (if any) due by Bindley to Ruple, and if Bindley, after notice of this order, paid the money to Ruple, he paid it in his own wrong, and is still liable to the plaintiff.
    2. That if the jury find from the evidence that defendant promised to pay the order in evidence as soon as the work to be done by Ruple W’as finished, and that on the strength of Said promise the plaintiff advanced money and material to Ruple to build said stairs, to the amount of said order, and that Ruple finished the stairs, that then' said defendant is liable for the amount of said order.
    The first and third points of defendant were as follows, both of which the court affirmed:—
    1. That the promise to pay Lewis, alleged to have been made by Bindley, the defendant, if made at all, was without consideration, and was void as a nudum pactum, and there can be no recovery in this suit on such promise.
    3. That the plaintiff in this action can recover only such sum as the 'defendant owed Ruple at the time the action was commenced, and if the jury believe that prior thereto Ruple had been paid in full, their verdict must be for the defendant.
    In the general charge, the court, Stowe, P. J., inter alia, said:
    “ There is nothing in the evidence, under the pleadings in this case, which will justify a recovery in this suit.”
    Verdict for defendant accordingly, when plaintiff took this writ, and alleged that the court erred, 1. In the instruction above; 2 and 3. In the refusal of plaintiff’s points; and 4 and 5. In the affirmance of defendant’s.

      Barton & Sons, for plaintiff in error.
    This case is ruled by Caldwell v. Hartupee, 20 P. F. Smith 74. If one man delivers goods to another upon the request of a third party, and upon the promise to pay for the same at a particular time, or upon the happening of a certain event, when the conditions are performed by both, he is bound by his promise. It is not a promise to pay the debt of another, but a debt created upon the faith and strength of the promise.

      Chris. Magee, for defendant in error.
    In Caldwell v. Hartupee, supra, the money had been earned or was due and coming to Hartupee before the order was given, and therefore in that case the court held that Hartupee had a right to assign it, and that an order given by him with notice of the order, was an equitable assignment that would take the money.
    The third specification of error simply asserts that if Bindley promised Lewis that he would pay the order when Ruple finished the stairs, and. Ruple did so, that then Bindley must pay the debt which he owed Ruple to Lewis, as the assignee of the claim, and that question is not affected by the fact of money and material being advanced by Lewis to Ruple on the strength of the promise.
    In Jermyn v. Moffit, 25 P. F. Smith 400, this court held “ that an assignment of' wages not yet earned, although followed by notice of the assignment, is insufficient to make a valid transfer of the debt without acceptance.”
    October 27th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The evidence was amply sufficient to warrant a jury in finding that Ruple contracted to build a flight of stairs for Bindley for $133, Bindley' to first pay out of said sum $28.15 which Ruple owed -to England & Bindley; that the order for $104.85 was given for the balance of the contract price, in consideration that Lewis would furnish Ruple with material and money to enable him to do the work, and they were so furnished; that Bindley had notice of the order about the time the work was commenced and before he had paid anything to Ruple; and that Bindley paid $82 to Boyd on an order given after said notice, and to Ruple the balance of the contract price. The jury were instructed that there was nothing in the evidence to justify the plaintiff’s recovery. If it were material to the plaintiff’s case that Bindley agreed to pay the order, on completion of the work, though he refused a written acceptance, the conflicting testimony on this question should have been submitted.

An assignment, for a valuable consideration, of demands having at the time no actual existence, but which rest in expectancy only, is valid in equity as an agreement, and takes effect as an assignment, when the demands intended to be assigned are subsequently brought into existence: Field v. City of New York, 6 N. Y. 179; East Lewisburg Lumber & Manuf. Co. v. Marsh, Dunkel et al., ante, p. 96. In Field v. The City, it was held that assignments of parts of a demand to different persons, to secure payments to them of specific sums, in succession, are good and will be enforced in equity. Whether such assignments are valid in Pennsylvania need not now be said; for the order covered the whole, after deducting the sum to be paid, by the terms of the contract, to England & Bindley.

The form is immaterial so that there be a clearly expressed intention of an immediate transfer of, the right to the assignee. Where one was indebted to a number of persons and remitted a sum of money to B., with orders to give specific parts to certain creditors, it was held that B. became a trustee for those creditors, and that they, thereupon, acquired such an interest in the trust fund as could not be divested by an attachment against the debtor, though some of the creditors had no notice of the trust before the service of the attachment: Sharpless v. Welsh, 4 Dall. 279. An order to the drawer’s attorney, to pay to W. the amount of a note on H. when collected, is an assignment of the fund, by the agreement of the parties, and cannot be revoked, even if the draft was not accepted by the drawee: Nesmith v. Drum, 8 W. & S. 9. In Caldwell v. Hartupee & Co., 20 P. F. Smith 74, an order for part of a fund was held to be a .valid equitable assignment. Caldwell was to receive money for use of Hartupee & Co., who were indebted .to a firm of which Caldwell was a partner. Hartupee & Co., gave an order to Cuthbert for $1500, out of proceeds of the last note coming to them, which, on presentation, Caldwell refused to accept, saying, Hartupee & Co. owed them money and he was going to apply it on their book account.” At the time of said refusal Caldwell had in his hands only about $30, but afterwards received more than enough to pay the order. On the trial Caldwell’s defence of set-off was rejected as to the amount of the order, and allowed for the balance in his hands.

The defendant seems to rely on Jermyn v. Moffitt, 25 P. F. Smith 400, where it was held that a transfer of “ a debt to arise for wages not yet earned, against any person by whom the assignor may afterwards be employed, although followed by a subsequent notice of the assignment to such an employer, is insufficient, without acceptance, to make a valid transfer of the debt against the employer.” The soundness of this principle is unquestioned, and was strictly applicable to the facts of that case. Jermyn’s name was not in the instrument; Leslie, the assignor, had no contract with him, was not then in -his employ, and, consequently, there was neither a present nor expectant fund on which the assignment could attach. On the trial, the point that an assignment can only be made of moneys due or owing, and not in futuro of moneys to be earned,” was refused, with answer that “a party is competent to assign wages to come due if the vested rights of third parties are in nowise prejudiced thereby;” and this court said there was no error in that.

We are of opinion that the order by Ruple to Lewis was an equitable assignment; and, in connection with the facts which the jury might well have found, had the evidence been submitted, the plaintiff was entitled to recover. Eor the present inquiry such facts must be considered as existing. The first, second, third and fifth assignments of error are sustained.

It may be presumed that if the case had been given to the jury, the matter contained in the fourth assignment would have been properly explained. This suit is not on the alleged promise of Bindley to pay Lewis, but on the contract assigned by Ruple.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Kronk and Wife, for use, versus Birmingham Fire Insurance Company.
    1. A policy of fire insurance contained a condition “that if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy shall be void.” Certain personal property was insured thereunder. Held, that the condition was not avoided by the fact that the assured executed, either prior or subsequent to the date of the policy, a bill of sale to a third party, to secure money advanced to the assured, it being agreed that the assured should retain possession of the property: Hill v. Cumberland Mutual Protection Co., 9 P. F. Smith 474; Insurance Co. v. Wilgus, 7 Norris 107, followed.
    2. The bill of sale was dated prior to the issue of the policy, but the time of its delivery was disputed. The court instructed the jury that the plaintiff could not recover. Held, that this was error, and the evidence should have been submitted to the jury.

      October 13th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunicey and Sterrbtt, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 172.
    Covenant on a policy of fire insurance by John F. Kronk and C. Conway, for use of Caroline Kronk, for use of Adam Bonscheiner, against The Birmingham Fire Insurance Company.
    At the trial before Bailey, J., it appeared that on the 13th of April 1875, said company issued a policy of insurance to O. Kronk, wife of John F. Kronk, and O. Conway, to indemnify them against loss or damage by fire to the amount of $1250, on merchandise and household goods in a certain hotel, kept by said parties.
    Said policy contained, inter alia, the following condition : “ If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company, and so represented in the written part of this policy, otherwise the policy shall be void.”
    On April 20th of the same year, Conway, with the approval of the insurance company, assigned his interest in said policy to Mrs. Kronk — thus vesting in her the sole ownership of the policy.
    The money with which Mrs. Kronk had made purchase of the property insured had been loaned to her by one Adam Bonscheiner, the equitable plaintiff. To secure its repayment it was agreed that a bill of sale of the goods should be made to Bonscheiner by Mrs. Kronk and her husband, the latter, however, to retain the custody and use of the goods as though no such document had been signed. A bill of sale was accordingly made, and the schedule thereto attached signed by Kronk and wife. It was -then delivered to Bonscheiner. Whether this bill was executed and delivered before or after the policy was issued was not clear. It was dated April 3d, and John F. Kronk testified it was made at that time. The evidence, however, was conflicting.
    On December 13th Í875, the insured property was entirely con- ' sumed by fire. The company refused to pay the loss on the ground that the condition in the policy was avoided by reason of the bill of sale to Bonscheiner.
    In charging the jury the court, inter alia, said: “ My view of the law is that the bill of sale had the effect of conveying such title to Adam Bonscheiner, and such property in the goods and chattels that the sole, entire and unconditional ownership of the property was not in Mrs. C. Kronk on the 13th of April 1875, the date of the policy of insurance.” And in answer to defendant’s third point charged, “ That under all the evidence in the case the plaintiffs are not entitled to recover.”
    Verdict for defendant, when plaintiffs took this writ and alleged that the court erred in charging as above.

      W. C. Moreland and Hampton & Dalzell, for plaintiffs in error.
    Even if the transfer of the property insured to Bonscheiner had been absolute, and the policy subject to forfeiture therefor, unless the company’s written consent was produced, the forfeiture was still capable of being waived, and the evidence tending to show a waiver and an estoppel on the company’s part was for the jury: Buckley v. Garrett et al., 11 Wright 208.
    But the contract with Bonscheiner did not amount to an absolute transfer. It was a mortgage merely, changing neither the apparent title nor the possession. It was an executory contract, giving rise to an equity between Kronk and Bonscheiner, to which the insurance company were strangers. They could not set it up, and it had no effect to invalidate the policy: Hill v. Cumberland Mutual Protection Co., 9 P. F. Smith 476-7. The assured still retained the general right of property in the goods, at the time of the fire, as well as their possession. The most that Bonscheiner had was a special or qualified right of property. It has been held by this court that even this qualified right of property, when accompanied by the actual possession thereof, will not sustain a forfeiture of an insurance policy, which provides therefor in case of transfer without the insurer’s consent: Franklin Fire Insurance Co. v. Findlay, 6 Whart. 498.

      Robb & Fitzimmons and Thomas M. Marshall, for defendant in error.
    That the interest of the assured was not, at the time of the issuing of the policy, “entire, unconditional and sole,” was certainly proved.
    October 27th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The policy in suit was issued April 13th 1875, by the Birmingham Fire Insurance Company to Caroline Kronk and O. Conway, indemnifying them against loss or damage by fire to the amount of $1250. One week thereafter, Conway, with the consent of the company, endorsed on the policy, assigned his interest therein to Mrs. Kronk, thus vesting in her the sole ownership of the policy. The property, consisting of merchandise and household goods, was subsequently destroyed by fire, without the fault, so far as appears, of any of the parties interested in the policy.

The plaintiffs introduced testimony, tending to show that preliminary proof of loss was promptly furnished and acceptedtas satisfactory by the officers of the company. Inasmuch as the court ruled in favor of the plaintiffs on that subject and held that the evidence was sufficient to go to the jury, the question is not before us.

The main ground of defence was that Mrs. Kronk had made a bill of sale of the property to A. Bonscheiner, the equitable plantiff, before tbe policy was issued, and hence she was not the entire, unconditional and sole owner at the time the property was insured.

The learned judge, after referring to the testimony bearing on this branch of the defence, said: “ My view of the law is that the bill of sale had the effect of conveying such title to Adam Bonscheiner, and such property in the goods and chattels, that the sole, entire and unconditional ownership of the property was not in Mrs. Kronk on the 13th of April 1875, the date of the policy of insurance.” He also instructed the jury, as requested in defendant’s third point, “ that under all the evidence in the case the plaintiff is not entitled to recover,” and thus relieved the jury from passing on any question of fact. In this we think there was error.

In the first place, there was testimony before the jury from which they would have been warranted in finding that the bill of sale was not delivered to Bonscheiner until after the insurance was effected. It is true that, in the absence of testimony to the contrary, the presumption would be that the paper was delivered on the day it bears date, April 3d 1875, but Mrs. Kronk testified that it was delivered after the policy of insurance was issued, and in this she was to some extent corroborated.. In fact it was after the policy was issued that she acquired Conway’s interest in the goods, and had the policy assigned to her, as above stated. But, however the fact might be, as to whether the so-called bill of sale was delivered before or after the insurance was effected, it was manifestly a question for the jury and not for the court. If they had found, as they might have done, that it was delivered afterwards, the condition as to entire, unconditional and sole ownership would have been inapplicable; and, on the authority of Hill v. Cumberland Yalley Mutual Protection Co., 9 P. F. Smith 474, the policy would not have been avoided by reason of any right acquired by Bonscheiner under the bill of sale. In that case it was held that a contract for the sale of the insured property, and receipt of part of the purchase-money, as between the company and the insured, was not an alienation of the property by him, nor a transfer or change of ownership, and did not avoid the policy under a condition similar to the one now before us. It was there said that “ conditions or clauses in policies, avoiding them in case of alienation, or transfer, or change of ownership, without the assent of the insurers, are but declarations of existing principles of law against insurance without an interest; in other words, gambling policies. * * * But, w'here the interest exists in an undoubted, insurable form in the insured, the objection is technical and not to be favored.”

But, assuming that the bill of sale was delivered before the policy was issued, the latter was not void under the condition as to sole and unconditional ownership. This principle was recently ruled in The Insurance Co. v. Wilgus, 7 Norris 107. In that case Wilgus had purchased property at Orphans’ Court sale, paid one-half of the consideration and was to receive a deed on payment of the residue in one year! He took out policies of insurance, containing a clause like the one under consideration, without specifying the nature or extent of his interest. It was held that his title, though an equitable one, nevertheless vested in him the “ entire, unconditional and sole ownership, subject to the payment of the balance of purchase-money,” and that he was entitled to recover. In delivering the opinion of the court, the present Chief Justice says the balance of purchase-money was practically an encumbrance. It is true the legal title was in the vendors, but they could use it only to enforce payment of the price agreed upon. In this respect it is exactly the case of a mortgage, which vests the legal title in the mortgagee for some purposes.” In this case the testimony clearly shows that the transfer to Bonscheiner was, at most, a mere security, in the nature of a chattel-mortgage. He had advanced money to Mrs. Kronk, and she appears to have been anxious to make him as secure .as possible, and for this purpose executed the paper. She still retained the general property in the goods, as well as the exclusive possession. At most he had but a special or qualified right of property, which, while the general property coupled with possession remained in Mrs. Kronk, was insufficient to avoid the policy.

Judgment reversed and a venire facias de novo awarded.


text:
    Small versus The Commonwealth.
    1. Under what circumstances dying declarations are admissible in evidence.
    2. It seems, that evidence of a man’s natural disposition is not admissible to excuse or mitigate his crime.
    3. Keenan v. Commonwealth, 8 Wright 55, approved.
    October 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Oyer and Terminer of Allegheny county: Of October and November Term 1879, No. 131.
    Indictment of Frank Small for the murder of O. R. Jacoby.
    About one o’clock on the morning of the 16th of January 1879, Jacoby was shot in the street in Pittsburgh. He was immediately removed to his house, and a physician summoned, who found him in a very critical condition. On the afternoon of Saturday, the 18th of January, the deceased was informed by one of his physicians that he could live but a few. hours. In reply “ he remarked he didn’t feel as if he were going to die.” He grew rapidly worse, however, and about two hours after the above conversation, two other attending physicians informed him “ that he was dying, and that it was important, in order that justice should be done to all, that he should make a dying declaration, and state all the facts exactly as they occurred in relation to his death.” The mayor of' the city was then sent for, who testified in regard to what occurred at the house of deceased:—
    “When I went there, from the physician in attendance I understood that he was dying. I asked one physician if they had informed him of his condition. I think he said they had not. I told him he had better do it. He went to Mr. Jacoby and told him that he was rapidly sinking, and if he had any statement to make he had better make it at once. Then I said, ‘ If you think you are dying, and have any statement to make, I will take it. But I want to know first whether you consider yourself as dying ?’ He said, ‘ I am satisfied I am dying.’ Then I took his statement.”
    The declaration was as follows:—
    “I, C. R. Jacoby, having sent for the mayor, in view of approaching death, desire to make a statement or dying declaration. I met with Frank Small on Wednesday night or Thursday morning, at one o’clock A. M., at Keyser’s saloon, on Fifth avenue, near Congress street. I went into the saloon the back way. He, Frank Small, was in there; had been cleaning snow off the pavement, and as it was rather late, concluded to go down to Keyser’s, as I thought my 'wife was there. I went in the back way. I said something to him — don’t remember what — and struck at him. My wife was in the room. He went out of the house at once. I came out of Keyser’s, with my wife, at once. When I struck at Small I missed him; the blow fell short. My wife and I walked down Fifth avenue. Right opposite the foot’of Chestnut street, on Fifth avenue, a man came down Chestnut street, crossed Fifth avenue rapidly, towards myself and wife. The man said something ; think it was God damn you, and placed the pistol close to my side and fired, the ball entering the left side. Í recognised the man as being the same one I had the trouble with in Keyser’s, although I had not seen Frank Small for several years. I am perfectly sure it was Frank Small. I fell, and did not see him after he fired the pistol shot. I had recognised him as Frank Small in Keyser’s. We had taken hold of each other in Keyser’s, but no blows was struck. He went out the front way at Keyser’s, and my wife and myself went out the back way. I saw Keyser and Keyser’s son and Frank Small in Keyser’s saloon; also, another young man, a tallish man with black mustache. At the time Frank Small approached me, I saw this same man that I had met at Keyser’s, on the opposite er upper side of Washington street. I had seen this man before, but do not know his name. I make this statement in view of death, that full justice may be done. In speaking of last Wednesday night or early Thursday morning — I mean the Wednesday and Thursday of the present week, when .Small presented the pistol at me — I saw it, and grabbed for it, but missed it. • I desire to be sworn to this statement, as it has been just read to me.
    O. R. Jacoby.”
    “ Sworn to before me, this eighteenth day of January 1879.
    Robt. Liddell, Mayor.”
    The Commonwealth proved the foregoing facts, and then offered in evidence the above declaration. Counsel for the defence objected on the ground that it contained matter immaterial and not properly the subject of a dying declaration, and that the urgency of impending death was not sufficiently proven under the circumstances.
    The court, Kirkpatrick, J., overruled the objections and admitted the evidence.
    The fourth point of the defendant, with the answer of the court thereto, was as follows:—
    Cooling time, or that space of time which will be deemed sufficient for a man to cool, after a conflict, may differ with different persons, according to the constitution of their nature. No uniform rule can be laid down as to the length of time when a man shall have had cooling time. It is for the jury, under all the evidence, as to the actual condition of the mind of the actor.
    Ans. “ This point, although broader in its suggestions than in our judgment the law warrants, in this, that it introduces into ‘ cooling time’ as an element to be considered by the jury that the prisoner, as well as all other persons standing in his place, are to be judged and considered ‘according to the constitution of their nature,’ still we instruct you that the ‘ conditions of his nature’ must be found by you from the evidence in and circumstances surrounding and arising out of the case. In a word, his ‘ mental condition,’ or, as it is nominated in the point, the ‘condition of his nature,’ can only be ascertained from proof.”
    Verdict murder in the first degree, and after sentence of death defendant took this writ and alleged that the court erred in admitting the above declaration and in the refusal of the defendant’s fourth point.

      Thomas M. Marshall, E. A. Montooth and Morton Hunter, for plaintiff in error.

      John S. Robb, District Attorney, John Coyle and William Reardon, for the Commonwealth.
    January 5th 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

After a very careful examination of this case, both as to the law and the evidence, we have failed to discover anything whereof the defendant has just right to complain.

That the declarations of Jacoby, the deceased, were properly admitted there is no doubt. That he was dying at the time is admitted; and that he was conscious thereof is testified to by both Doctor Ewer and Mayor Liddell; that he had said to Doctor Purviance, three hours before, that he did not feel as if he were going to die, is of no moment if he was conscious of impending death when his declarations were written down. He was sinking rapidly, and he had been previously informed, by both the physicians above named, that his condition was hopeless; it is, therefore, not only not remarkable, but altogether natural, that his opinion of his own situation should have changed within the short time above stated.

Complaint is made that the defendant’s fourth point was not properly answered, or, as it is said, it was answered with such “ expressions of depreciation as to destroy its value with the jury.” That point reads as follows: “ Cooling time, or that space of time which will be deemed sufficient for a man to cool, after a conflict, may differ with different persons according to the constitution of their nature. No uniform rule can be laid down as to-the length of time when a man shall have had cooling time. It is for the jury, under all the evidence, as to the actual condition of the mind of the actor.” The two last paragraphs of this point had previously been fully and fairly answered in the charge, and the remainder might well have been refused. Nevertheless the learned judge, after remarking that the point was broader in its suggestions than the legal rule warranted, in that it introduced into the question of “ cooling time” the consideration of the constitution of the prisoner’s nature, does answer this point in the affirmative by saying: “ We instruct you that the ‘ conditions of his nature’ must be found by you from the evidence in, and circumstances surrounding and arising out of the case. In a word his mental condition or, as it is nominated in the point, the ‘condition of his nature,’ can only be ascertained from proof.”

Now, if this answer is obscure, it results from an attempt to answer an obscure and ambiguous point. What does the counsel mean by the use of the term according to the “ constitution of their nature?” Does he mean that each individual has a disposition peculiar to himself? That whilst one man is phlegmatic and cool, never acting except with deliberate purpose, another is passionate and irascible, the creature of impulse, inflamed beyond the power of self-control by insult or injury ? If this is, indeed, the meaning of the point, then it fails radically in that there is no evidence to support it. Of Small’s character or disposition we are not informed; he may have been a man of perfect self-control, or he may have been quick-tempered and passionate; he may have been goodnatured or ill-natured, but upon this we have no light except that which springs from the history of the tragedy itself. Neither do we see upon what principle of law such testimony, had it been offered, would have been admissible. Here is a man who, to all appearance, is governed by the ordinary passions and dispositions of his kind; he is neither drunken nor idiotic; how then can we enter into the peculiar idiosyncracies of his mind to detérmine just where and how it may differ from the mind of some other man ? Whether his natural disposition was such that passion would, possibly, control it a moment or two longer than that of ordinary persons? The law has no measures for distinctions so delicate. Neither should it have. Man is largely the creature of education; his character depends principally, if not wholly, upon his own will, and for that character he is legally responsible. Suppose then we admit testimony that the defendant is quick-tempered, violent and revengeful; what then ? Are these an excuse for, or do they even mitigate crime ? Certainly not, for they result from a want of self-discipline ; a neglect of self-culture that is inexcusable. Unless, therefore, we can reach hack into the original constitution of man’s nature, and ascertain just where evil propensities are permanent and ineradicable in that nature, all our attempted investigations amount to nothing, since ordinarily, a bad character, or a bad disposition, is acquired, not natural. We must, therefore, treat the proposition that a man’s evil propensities shall be used to excuse or mitigate his crimes as false, and as inadmissible as a defence. As was well said by Mr. Justice Lowrie, in the case of Keenan v. Commonwealth, 8 Wright 55, “ Stated in its most general form, it amounts to this: that because the mind usually receives provocation Avith an intensity proportioned to its own excitement or excitability, therefore the act of provocation must be measured, not by its own character and ordinary effect, but by the state and habit of the mind that receiyes it. Then, measured by this rule, the crime of a proud, or captious, or selfish or habitually ill-natured man, or one who eats or fasts too much, or of one Avho is habitually quarrelsome, covetous, dishonest or thievish, or who by any sort of indulgence, fault or vice renders himself very easily excitable, or very subject to temptation, are much less criminal than those of a moderate, well-tempered and orderly citizen, because to the former a very small provocation or temptation becomes adequate to excuse or palliate any crime.” It will easily be seen that the adoption of such a rule would result in the encouragement of vicious habits, for it would make evil the palliative of crime, and vice would become an excuse for its OAvn fruits. As yet, in Pennsylvania, a theory so fraught with injury to. the community, finds no place in its criminal jurisprudence, and it is to be hoped it never will.

“All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, * * * shall be deemed murder in the first degree. Such is the language of our criminal code, and that the crime of the defendant comes literally within it there is no doubt. His tussle in Keyser’s saloon with Jacoby was not, in itself, provocation sufficient to excuse even an assault and battery. There was no blow struck, he received no injury however slight. He manifested no unusual excitement; he was in full possession of all his faculties, for it does not even appear that he had been drinking; as he passed out of the saloon he apologised to Kevser for the affray, and in three or four minutes after this time he discovers Jacoby and his wife quietly passing along the street; he crosses that street, confronts his victim, and without a word or act of an irritating or insulting character from that victim, he shoots him down, and the next we hear of him is at Wallace’s, on Penn avenue, about one-half or three-quarters of an hour after the commissio# of this diabolical crime, buying cigars, with all the coolness and unconcern of a man who had performed the ipost ordinary'act of business or pleasure.

Under such circumstances it is'indeed difficult to talk seriously about cooling time, or to apply the technical rulings of a doctrine of this kind in a case where there is no room for their application.

The whole method and manner of this killing shows premeditated and deliberate malice. Had the defendant a pistol in his possession when the scuffle occurred in the saloon ? If so, one of two conclusions result; that he did not consider its use necessary at that time, as a means of self-defence or to avenge the insult, and that the design to kill was formed afterwards; or that the purpose of killing was then formed and deferred to a more fitting opportunity. If, on the other hand, he subsequently procured the pistol, it would, in that event, seem certain that he did so with the preconceived design of waylaying and killing his adversary. In either event there is the most indubitable evidence of a wilful, deliberate and premeditated intent to murder. We think, then, that this case has been well and fairly tried, and if there has been any mistake it has been of a character so purely technical as to have occasioned no injury to the defendant.

The judgment is affirmed.


text:
    Jones et al. versus Gilmore.
    Gr. sold ten barges of coal to B., in June, to be delivered at Memphis, Tennessee, the barges to be returned to Louisville, Kentucky, within sixty days, or within a reasonable time. Two of these barges were not returned in November, and the Mississippi river freezing up in that month they could not be returned. In December, by reason of an extraordinary ice gorge, these two barges were swept away from their moorings at Memphis and lost. Gr. sued B. for the value of the barges, and the court below held, that as B. had not returned them within the specified or reasonable time he was liable in damages for their value. Held, that this was error ; that as the detention of the barges was the remote and not the proximate cause of the loss, and they, had been destroyed by an extraordinary accident that could not be forecast, B. was not responsible.
    October 13th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 104.
    Assumpsit by John Gilmore against William H. Brown and N. M. Jones, trading as Brown & Jones, to recover the value of two empty coal barges.
    The plaintiff declared in assumpsit for the value of two barges, which be alleged the defendants had agreed to return to him from Memphis, Tennessee to Louisville, Kentucky, within not less than thirty nor more than sixty days, in one count, and in another count, for not returning them within a reasonable time, and not returning them at any time, whereby they were wholly lost; to which the defendants pleaded non assumpserunt, with leave to give in evidence special matters in their affidavit of defence, &c., denying that they, as a firm, had so agreed, and alleging that W. H. Brown, individually, had agreed to tow back plaintiff’s barges “ on exchange,” Gilmore having agreed to tow back a like number of barges on that trip for him; and further, that defendants agreed to unload said barges within a reasonable time, considering the ordinary course of business and the stage of water for boating; and that they did unload said barges as fast as the business and water would permit; denying that, as a firm, they had anything to do with returning the barges, and averring that they kept safely and cared for the barges at Memphis in a proper manner, until about the 26th day of December 1872, when these barges and other water-craft were swept away and wrecked, by an extraordinary ice-flood in the Mississippi river.
    At the trial, before Ewing, P. J., it appeared that the two barges in dispute were of a fleet of ten, laden with coal, which Gilmore had sold to Brown & Jones, who were coal merchants, at Memphis, Tennessee. The barges, plaintiff alleged, were to be returned in sixty days or within a reasonable time. The barges and coal were delivered at Memphis, on June 21st 1872, to Brown & Jones, who alleged that there was no specified time at which the barges were to be unloaded or returned. It was further alleged by Gilmore that Brown & Jones agreed to tow these barges back to Louisville “by exchange,” Gilmore, on his return trip from Memphis, having towed back ten empty barges of Brown & Jones. Brown was a large owner and shipper of coal in his own right, and owned a number of tow boats, in which Brown & Jones had no interest. It was contended, therefore, that if there was any contract to tow back empty barges “by exchange,” it should be regarded as the individual contract of Brown, and not binding on the firm. It was further contended that the barges were not delivered until late in the summer when the river was low, and when, as a consequence, the running of the steamers to which the coal was sold was suspended, and that therefore the coal had to remain in the barges until the fall, when navigation again opened; that' as soon as the coal was sold and they could be sent back, the barges were returned. Two of these barges it appeared, however, remained at Memphis until November, when the Mississippi was frozen over for some two hundred miles below Cairo, the season being the most extraordinary in the memory of the oldest inhabitants along the river. It was shown that about the 26th of December 1872, the ice broke and the flood gorged it at and above Memphis, and when the gorge broke in passing Memphis, it swept away all the craft moored along the levee, among which were the two barges in question. The defendants were not charged with a want of care in their custody of the barges.
    In their general charge, the court, inter alia, said:
    “The defendants say there was'no such contract; that there was no time mentioned, and they allege further, that it was understood that they were not to be delivered until they were emptied, and the defendants were to have a reasonable time for that. We do not recollect that the testimony on part of defendants as to time was very definite, further than they deny that the time was limited, and claim that the time of delivery — the time of their being emptied — was well understood to have reference to the course of trade and business of the purchasers. If that be the case, you will have to determine from all the evidence and circumstances of the case, what was a reasonable time for them, in the course of their business to empty these flats, so that they could be taken back to Louisville ; and if a reasonable time would extend it to a period when there was no water and they were then carried away, the defendants are relieved. Of course the want of water to get the barges back would be a sufficient excuse for not returning them. The contract must be considered to have been made in view of all these contingencies, that if there was no water to take them back, they could not be expected to be taken back. Assuming that there was no contract as to time, then if they were not unloaded in a proper time, but held there beyond a reasonable and proper time, then they might and should have been sent away,, the fault was that of the defendants, and they would be responsible for them after that, as we before explained to you. * * *
    “ For instance, let it be conceded that Brown & Jones were to have re-delivered these barges inside of sixty days, and that inside of that time without any unreasonable or improper delay on the part of the defendants in restoring the boats, this same flood had come and swept them away, it would be an answer and a sufficient excuse, on the part of the defendants, for the non-delivery of the boats. It would be a loss not in the contemplation of either party at the time of the contract, and not in the power of either party to prevent, and it would have to fall upon the owner. If therefore the defendants are responsible for the loss, it would be in not having delivered them before the time this ice-flood came. If the defendants had a contract to deliver at a particular time within sixty days, and it was in their power to do so, and they failed to do so, and kept them beyond that time, then after that time had expired they would be kept at the risk of the defendants, and if Swept away by an ice-flood it would be their loss. You will not understand us as stating what the actual facts are, but we are supposing that it was conceded that they were to have been taken back in sixty days, and instead they were kept for five or six months, and then the ice-flood came, the defendants would be responsible for the loss by the ice, because it was their fault in not having them in a place where the ice-flood would not have reached them.”
    Yerdict for plaintiff for $1700, when defendants took this writ, and alleged that the court erred in charging as above.

      Thomas M. Marshall and Alex. M. Watson, for plaintiffs in error.
    The proximate cause of the loss was the extraordinary flood, and defendants were not responsible: Morrison v. Davis, 8 Harris 165; Ela v. French, 11 N. H. 356; Sedgwick’s L. Cases on Measure of Damages 822. Actus dei nemini facit injuriam: McGrew v. Stone, 3 P. F. Smith 441.

      Barton & Sons, for defendant in error.
    The ice-flood was in the Mississippi; it came from the far north. There was no break up and no boats lost in the Ohio. If the -barges had been returned according to contract, in July and August, they would have been up in the third pool, in the Monongahela, under Captain Gilmore’s ooal tipple, reladen and ready to descend by the first rise, and in a place where the ice gorge in the Mississippi would never have touched them.
    January 5th 1880.
   Mr. Justice Trunkey

delivered the opinion of the court,

The learned judge of the Common Pleas so fairly submitted the case to the jury that the plaintiffs in error have no cause of complaint, except to so much of the charge as relates to the liability of defendants below for the value of the boats, if they were not returned within the time fixed by the contract, or if no date was named, then within a reasonable time.

For present purposes, it must be taken as established by the verdict, under the instructions of the court, that the defendants were bound by contract made in June 1872 to return the boats to Louisville, either within sixty days or a reasonable time, which they failed to do; that on December 27th 1872, the boats were swept away by an extraordinary ice-flood, and at that date there was no want of care on part of defendants, and so far as their being carried away at that particular time the loss would be what is known in law as the act of God;” that if there was default on the part of defendants which would entitle thé plaintiff to recover, it was at a time anterior to the ice-flood, and if they are responsible for the loss, it is because they did not deliver the boats before .the flood came. Upon these facts the jury were instructed- that if it was in the defendant’s power to deliver the boats within the sixty days, if that time was stipulated, or if no time named, within a reasonable time which had terminated before the flood, then, after the time had expired, they would be kept at the risk of the defendants, and if swept away by an ice-flood, it would be their loss, * * because it was their fault in not having them in a place where the ice-flood would not have reached them.” In this we think there was error.

At the time of the flood the boats were the property of the plaintiff, and no negligence of the defendants as to their care contributed to the loss. It is not alleged that they did or omitted anything to make them liable for the value of the boats prior to their destruction, and but for the flood they could have returned them at any time, without liability in damages for breach of contract other than caused by the delay. The defendants were bailees of the boats for a specific use, which in nowise was departed from; and the contract did not provide for indemnity against loss by an extraordinary flood, nor did the parties contemplate danger therefrom when making it. By what rule are they liable in damages to the value of the plaintiff’s property which was destroyed by casualty ?

It is an ancient and universal rule, resting upon obvious reason and justice, that a wrongdoer shall be held responsible for the proximate, and not for the remote, consequences of his actions: 2 Pars. Con. 455. After illustrating by example and noting the difficulty in measuring the nearness or remoteness of effects, the learned author suggests a principle as useful, if not decisive, in all cases, namely, that every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen, and was therefore under no moral obligation to take into consideration. The rule is not limited to eases of special damage, but it applies to all damage: 2 Greenl. Ev., sects. 256, 261. In the case of contract the measure of damages is much more strictly confined than in tort, and generally the primary -and immediate result of the breach of contract can alone be looked to: Mayne on Dam. 6. In Morrison v. Davis, 8 Harris 171, a summary of the rule and principle is applied to common carriers, with the remark that in any other ease the question would present no difficulty. In that case the action was against the defendants, as common carriers on the Pennsylvania canal. Their boat was wrecked below Piper’s dam by reason of an extraordinary flood; they started on its voyage with a lame horse, and by reason thereof great delay was occasioned in the transportation of the plaintiff’s goods, and had it not been for this the boat would have passed the point where the accident occurred before the flood came, and would have arrived in time and safety at its destination. The court assumed that the flood was the proximate cause of the disaster, and decided that the .lameness of the horse, which caused delay in the speed of the boat, was too remote to make the defendants responsible for the goods which were lost in the wreck. This case was cited and followed in Denny v. New York C. Railroad Co., 13 Gray (Mass.) 481, where it is said: In that case may be found not only a clear and satisfactory statement of the law upon the subject, but a significant illustration of the rule which the decision recognises and affirms!”

A carrier contracted with a miller to carry for him two pieces of iron forming the broken shaft of a mill, and deliver the same to an artificer as a model for a new one. The shaft was indispensable to the working of the mill, which necessarily remained idle till the new one could be supplied, but of this the carrier was not aware. He did not deliver the pieces of iron within a reasonable time, and was sued by the miller for a breach of his agreement: Held, that the plaintiff could not recover as damages the loss or profits incurred by the stoppage of the mill, and the rule for damages was thus stated: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be either such as may fairly and reasonably be considered as arising naturally, that is, according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.” If the special circumstances were communicated by one party to the other, the damages resulting from the breach of the contract which they would reasonably contemplate, would be the amount of injury which would follow ordinarily from a breach of contract under those special circumstances so known and communicated. But if those circumstances were unknown to the party breaking the contract, he at most could only be supposed to have had in contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract: Hadley v. Baxendale, 26 Eng. Law & Eq. Rep. 398.

Now, in this case there were no special circumstances communicated, or in contemplation of the parties. All that the defendants could foresee by ordinary forecast, as a result of the breach of their contract to return the boats, would be the expense to the plaintiff in taking them himself, and the natural and direct injury resulting from the delay. . They are liable for damages, the primary and immediate result of the breach of their contract, “ and not for those which arise from a conjunction of this fault with other circumstances that are of an extraordinary nature.” Of course, by “ fault” is here meant such as consists solely in breach of a contract, as not returning the boats in time, unnecessary delay in conveying goods to the place of destination, or the like. If fault or negligence in the care of the property concurred with the flood, the case would come within the principle ruled in Scott et al. v. Hunter et al., 10 Wright 192. As the facts appear, the general rule relative to damages applies.

Judgment reversed, and venire facias de novo awarded.