author: Mr. Justice Trunkey

text:
    Dilworth's Appeal,
    1. Where a' storehouse becomes neccessary for keeping a dangerous explosive, the utmost care should be taken in selecting the site, and in its construction, with reference to safety of persons and rights of property. Places of storage of such substances must not be multiplied beyond the business requirements of the neighborhood.
    2. When consumption of the explosive article is large, to give or limit the right of storage to a single material or artificial person would impose a heavy burden on consumers for the benefit of the favored party, a wrong a court will not do but for the most urgent reason.
    3. It often becomes a grave question whether so great an injury would not be done to the community by enjoining a business that the complaining party should be left to his remedy at law.
    4. The circumstances of this case not sufficient to restrain the erection and maintainance of a powder magazine.-
    October 9th 1879.
    Before Sharswoob, C. J., Mercur, Gorbon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.

      Appeal from the Court of Common Pleas, No. 2, oí Allegheny county: Of October and November Term 1878, No. 278. In Equity.
    Rill in equity, filed by Crawford Robinson and forty-seven others, against C. R. Dilworth and others, to restrain said Dilworth from erecting a powder magazine upon his lot of ground in Penn township, Allegheny county. The case was referred to a master, who recommended that an injunction should be refused and the bill dismissed. The facts are set forth in the opinion of this court.
    The court below, Ewing, P. J., issued an injunction pro forma, in an opinion, inter alia, saying:—
    “ That gunpowder is dangerous, not only to those handling it, but to all who may be in its vicinity, cannot be denied. It is, however, a commodity essential to some of the most important industries of this county and the surrounding country.
    “ In permitting its manufacture, transportation and storage, it is impossible to protect absolutely the persons or property that may be either permanently or casually in its vicinity. The legal requirements should be so strict as to compel extreme and constant care, and yet they should not be so burdensome as to be impracticable, and thus render them virtually inoperative.
    u Where so large a quantity of powder is required as there is in this community, a refusal to permit its storage in carefully constructed magazines, reasonably accessible as points of distribution, would almost necessarily result in the clandestine storage and transportation, where the liability to explosion and the destruction thereby will be greatly increased.
    “ So far as we are informed, in addition to this one, there are but three powder magazines in Allegheny county, all located in the city of Pittsburgh, to wit: the magazine at the United States Arsenal, and the two magazines referred to in the testimony as belonging to the agency of ‘ The Dupont Powder Co.’ All these have been long established. No explosion has ever occurred at any of them. In the immediate vicinity property has increased in value, and population has settled around them, in apparent disregard of any danger from explosion.
    “ The master finds, and the testimony fully supports the finding, that this magazine has been carefully located, so as to endanger as few persons and as little property as possible, and yet be reasonably accessible as a point of supply and distribution. We doubt whether any better location could be made in the territory of Allegheny county, which wmuld be reasonably practicable as a point of supply and distribution, and at the same time endanger fewer persons or less property.
    “ It is in a locality which, for the vicinity of a city, is sparsely settled. Land near it has not been, nor is it likely to be for some years, in demand for building purposes, notwithstanding it is near the terminus of one of our ‘magnificent rural avenues.’
    “ The great danger of explosions of powder is from handling it when the packages have been broken. The actual danger of an explosion of a well-cared-for powder magazine appears rather remote, probably much less than of an explosion of the steam boilers in any of our large manufactories. But the effects of the explosion of a powder magazine when it occurs are so sudden and appalling that persons living near one may well dread the consequences of an explosion on life and property. Some of the complainants, as we have found, are in a situation to entertain reasonable fears of sericfcis injury to their property in case of an explosion. Were it not for the ruling of the Supreme Court in Wier’s Appeal, 24 P. F. Smith 230, we would hold that this danger to a fewr persons would not entitle the complainants to an injunction; that these risks, under the circumstances of this case, would be such as have to be run by thousands of equally innocent persons by the transportation of large quantities of powder by rail through cities; by the operation of steam-engines, and various other risks necessarily run by permitting many legitimate operations, which are necessary to the prosperity of great communities. To enjoin the defendant is, in effect, to grant a monopoly of the powder business of Pittsburgh to the Dupont Co. In our opinion, the public interest would be sub-served by refusing the injunction; but, as we understand Wier’s Appeal, it goes beyond any of the preceding cases on that subject, and its rulings require us to grant the injunction prayed for. There are several minor points mentioned in that case which are different from the facts in the present case, but in all not sufficient, in our judgment, to permit us to distinguish between the two cases. If we have mistaken the scope of the rulings in Wier’s Appeal, the Supreme Court will correct our error by reversing our decree for an injunction.
    “ Controlled by the rulings in the case of Wier’s Appeal, we will enter a decree for an injunction pro forma. An appeal can be taken to the Supreme Court, and heard at the ensuing October Term. We will not enforce the decree until the defendant has had an opportunity to be heard in the Supreme Court.
    “And now, September 21st 1878, this cause came on for final hearing on bill and answer and replication, and on the report of the master, with exceptions thereto, and arguments of counsel; and, upon consideration thereof, it is ordered, adjudged and decreed that Charles R. Dilworth be and he is hereby perpetually enjoined and restrained from maintaining a powder magazine, or from storing gunpowder in the building or on the lot,” &c.
    Kirkpatrick, J., dissented.
    From this decree this appeal was taken.

      M. W. Acheson and Bruce & Negley, for appellants.
    The question in this case is not one of locality, but of monopoly in the business. At Pittsburgh, on account of mining operations and other industries, the consumption of gunpowder is unusually great, and the article is one of absolute necessity. The Act of April 22d 1850, Pamph. L. 538, recognises the necessity and lawfulness of said magazines in said city and vicinity. If this business is, therefore, necessary and lawful, is this case so clear that a court of equity will make a decree that will drive the appellants out of the business, and grant a monopoly of the trade to one company ? This case, in its circumstances, is essentially different from Wier’s Appeal, 24 P. F. Smith 230.

      Barton & Sons, for appellees.
    November 17th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

Adhering to the principles, in the fulness of their spirit, so well expressed in Wier’s Appeal, 24 P. F. Smith 230, they need not be repeated in the same or different phrase. Nor will we quote at length from the opinions in Richards’s Appeal, 7 Id. 105; Rhodes v. Dunbar, Id. 274, and Huckenstine’s Appeal, 20 Id. 102, to show the many things a chancellor must consider when called on to strike down a lawful business, necessary to be carried on for the public weal. Ut often becomes a grave question whether so great an injury would not be done to the community by enjoining the business, that the complaining party should be left to his remedy at law. 3 When a storehouse becomes necessary for keeping a dangerous explosive, the utmost care should be taken in selecting the site, and in its construction, with reference to safety of persons and rights of property. Places of storage of such substances must not be multiplied beyond the business requirements of the neighborhood. When consumption of the article is large, to give or limit the right of storage to a single natural or artificial person, would impose a heavy burden on consumers for the benefit of the favored party — a wrong a court will not do, but for the most urgent reason.

The circumstances of this case are so similar to those in Wier’s Appeal, that the plaintiffs rely on that as decisive for them. It was there said, by the present Chief Justice, that, “ The great difficulty in all cases of this character is not in the ascertainment of the true rule of equity, but in the application of that rule to the facts. While it may be easy to draw the line between what is and what is not a nuisance, which equity ought to enjoin, it is by no means so easy to determine whether the circumstances of any particular case ought to place it on one side or the other of that line. It is rare that any number of men will be found to agree upon such a question.” The truth of this observation was illustrated in the cáse itself; for the court below, following the master’s recommendation, dismissed the bill, and two of the five judges, then constituting this court, upon the facts, not the law, dissented from the decree. Manifestly, the authority of that decision does not compel an injunction where the complainants do not present a state of facts of at least equal strength. Then it is material to learn what were the facts as viewed by the majority of the court; and this can best be done from the clear statement of them in the opinion — “ Perhaps the immediate neighborhood is not so densely filled up — in connection with the evidence in the case of the careful construction and location of the building to guard against the worst probablé consequences of an explosion — as would justify the court in.ordering its removal. But, as we have shown, this is not the case. The neighborhood is not thickly settled, but is fast filling up. Land is in demand for small buildings, villas and country residences, and its market value before this structure was contemplated was at a high figure. It is evident that it must sensibly affect that value and the growth of the distriet. This might not, however, be sufficient of itself. The borough of Sharpsburg is a thriving surburban village of this great western metropolis, where already many persons engaged in professional, mercantile or manufacturing business, have purchased sites, erected houses, and permanently reside, in order to escape from the smoke, soot and noise of the city. The distance of the structure complained of from the line of the borough is about half a mile. * * * But besides all this, a public turnpike-road runs very near the building. As the master reports, 1 from the centre thereof to the magazine, the distance is one hundred and fifteen feet, or ninety-five feet from the inner edge.’ It is peculiarly exposed to danger, for the magazine is constructed in a ravine, funnel-shaped, opening out towards the road. It presents, with its rocky bed and sides, a huge mortar aimed directly at the turnpike.” That turnpike was one of the principal roads leading from Sharps-burg into the adjacent townships.' The court doubted if the neighborhood of the magazine was so densely filled up as to justify • ordering its removal; said it was fast filling up and land was in demand for dwellings, doubting if that would be sufficient; remarked its proximity to Sharpsburg, and laid stress upon its situation to the public thoroughfare.

After a careful revision of the master’s report by the court below, the facts found in this case, and which are well sustained by propf, are as follows r^This magazine has been located so as to endanger as few persons and as little property as possible, and yet be reasonably accessible as a point of supply and distribution; it is more remote from population than the magazines generally in use throughout the United States, and it is doubtful if a better location could be made in Allegheny county. It is situated about two miles from East Liberty, the nearest closely built-up district, and is separated therefrom by intervening hills and ravines. It is in a sparsely settled locality, for the vicinity of a city, and land near it has not been, nor is it likely to be for some years, in demand for building purposes. That portion of Lincoln avenue which terminates at a point five hundred feet from the magazine is very little travelled, very few people travel it within considerable distance of its terminus, having no occasion to do so; it was the wildest of the many absurd enterprises undertaken in Pittsburgh to carry city improvements into wild rural regions, expecting population to rapidly follow. The other public road, passing within twenty-two feet of the magazine, has for some time been almost abandoned by the people in the vicinity, and is used by about three farmers. The magazine is so situated that the force of an explosion would be down the ravine and away from the road. The greater distance of this magazine from a borough, or closely built-up district, the absence of demand of land for building purposes, and the unlikelihood of such demand in the vicinity, the little travel on the public road which passes near it, and the ravine opening from the road, are the chief points wherein this case differs from Wier’s Appeal. The dwellings and families near the magazine number about the same in one as the other. (None will deny that the law protects the small and cheap home as it does the large and costly mansion, and the rights of a tenant are as sacred as those of his landlord. But it is equally undeniable that if a tenant hold by lease at will, or by month, and his landlord grants that a lawful and necessary, yet offensive or dangerous factory or magazine may be erected, the tenant has not a right of action for its prevention.^ If such structure were placed near tenant houses occupied by miners, where the mines are likely to be worked for considerable time, it would be a material fact to be weighed with others — almost of like weight as if the houses were owned by the occupants. Here the mine is nearly exhausted, a fact to be considered in reference to the probable increase of population in the neighborhood.

It was urged that the location being only two hundred and fifty-five feet from the boundary line of Pittsburgh, and five hundred feet from the end of Lincoln avenue, is dangerous to life and property in the city. The facts, as we have seen, are that that end of the avenue is very little travelled, and is remote from the population of the city; and, without question, ii? the region of country in which the magazine is located is wild and broken as to its general surface, it is traversed by numerous ravines and hills, and altogether possesses a romantic and secluded aspect.’]] It is the real character of the location, with its surroundings, which determines its fitness, and not a city line two miles from city life, nor the unused and useless part of a graded and paved street extended beyond the visible city.

¡Confessedly, the demand for and consumption of powder in Pittsburgh and vicinity are very great, and it is indispensable in carrying on important branches of industry, and it would be inimical to the business interests of the community to trammel the sale of it with unnecessary restrictions and burdens^ Besides the magazine at the United States Arsenal there are no others in Allegheny county, except those of a single company, and the Dilworth. In view of the whole case the master, and one of the judges of the Common Pleas, thought the injunction should be refused. The majority of the court, in a considerate opinion, concluded that the public interest would be subserved by refusing the injunction, and that the complainants were not entitled to an injunction, but for the ruling in Wier’s Appeal, on the authority of which they felt constrained to grant it. A decree was entered, with direction that it would not be enforced until the defendant could be heard on appeal. We fully agree with the court below, except that we do not think the principles in Wier’s Appeal, applied to the facts in this case, require an injunction to be granted.

Decree reversed, and it is now considered and decreed that the bill be dismissed. The defendant below, Charles It. Dilworth, to pay the costs, including costs of appeal, except plaintiffs’ costs and their witnesses.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Hutchison versus Gill.
    "Where a mortgagor, at the same time that he executes a mortgage, delivers to the mortgagee a writing, certifying that he had no defence, he cannot set up, as against a purchaser of the mortgage, that there was fraud in obtaining the mortgage, or a misappropriation by the mortgagee of the money raised by the sale.
    October 9th 1879.
    Before Sharswood, C. J., Merour, 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. 73.
    Scire facias sur municipal claim, by S. B. W. Gill, for use of Mrs. Eliza Lewis and William W- Lewis, against John Hutchison.
    The defendant filed the following special pleas:—
    “ That the mortgage sued on was given by him to the said Gill, as collateral security for the payment of defendant’s ‘ written obligation’ to said Gill for $8000, and that the said written obligation is not in the possession, ownership or control of these equitable plaintiffs.
    “And further, that the said ‘written obligation,’ and also the mortgage sued on in this case, were given to the said Gill to secure him for a loan which he was to make to this defendant, when required in the future, and this defendant has never yet required him to lend any money; and neither the said Gill, nor any person for him, has ever loaned any money to this defendant, or to any person for him, on account of the said ‘written obligation,’ or on account of the mortgage sued on.”
    It appeared on the trial that on February 5th 1877, Hutchison gave to Gill his promissory note for $8000, and to secure said note executed to Gill the mortgage in suit, on certain property in Allegheny City. He also delivered to Gill, at the same time, a bond and the following certificate of no defence:—
    “I, John Hutchison, hereby certify and acknowledge that a mortgage made by me to S. B. W. Gill, dated February 5th, A. D. 1877, for $8000, payable in two years, with interest payable semiannually, together with the bond of myself accompanying the same, is justly, fully and entirely owing and payable according to the terms and conditions thereof. And I hereby also further certify to' any person or persons who may desire to purchase the same, that I have no drawback, claim, set-off or other defence of any kind whatever to the payment of any part of Said mortgage, either principal, interest or commissions, when due and payable or collectible by the terms and conditions therein recited as aforesaid.
    Witness my hand and seal, this February 27th 1877.
    S. B. W. Gill [seal].
    Attest, W. A. Ridge.’"
    It seems these instruments were given to Gill to enable him to raise money for Hutchison, when needed by the latter. While Hutchison admitted that his signature was attached to the certificate of no defence, he alleged that it was no part of the agreement between himself and Gill that he should execute such a paper; that he had no knowledge of ever having signed it, and that it was obtained from him by fraud. There was no direct evidence to show that a fraud had been practised upon him in obtaining the certificate. It appeared by the testimony of Hutchison that he received no consideration from Gill for these instruments; that they were given to Gill to raise funds to enable Hutchison to carry out a contract, but that Gill never gave him any money whatever therefor.
    Being in possession of these three instruments, Gill, on February 27th 1877, sold the bond and mortgage to the equitable plaintiffs below, Mrs. Eliza Lewis and her son, W. W. Lewis, for the cash consideration of $7360, which they then paid Gill, who thereupon assigned them the bond and mortgage. The assignment of the mortgage was immediately entered upon the record.
    Before the purchase was made or the money paid to Gill, he exhibited to W. W. Lewis, who was acting also for his mother, the certificate of no defence; and after the assignment was made of record, the certificate was delivered to Mr. Lewis.
    Gill also negotiated the $8000'note in the Bank of Commerce of Pittsburgh, and in September 1877 absconded. The bank brought suit against Hutchison on the note and recovered judgment. Hutchison never received anything whatever from Gill for the note.
    The court, White, J., affirmed the following points of plaintiff:—
    1. That if the jury find from the evidence that at or immediately before the assignment of the mortgage in suit to the beneficial plaintiffs, W. W. Lewis paid therefor to Gill the amount of the mortgage, less the discount, and that at the time of such payment Gill had in his possession the mortgage and bond and “no defence” paper, and exhibited them to said Lewis, who, on the faith thereof, paid Gill the money, the equitable plaintiffs are entitled to recover.
    - 2. The defendant has failed successfully to impeach the “no defence” paper, as against the equitable plaintiffs.
    And further charged:—
    “ I do not think the evidence is sufficient to justify the jury in finding the certificate of ‘ no defence’ was obtained from the defendant by fraud; and if the case was submitted to them on that question, and they so found, I should feel constrained to set aside their verdict.”
    Verdict for plaintiff, and after judgment defendant took this writ, and alleged that the court erred in the refusal of the foregoing points and in charging as above.

      Robert Pollock and Thomas M. Marshall, for plaintiff in error.
    —Hutchison asserted that his signature to the-bond and certificate of no defence was procured by Gill without his knowledge or’ consent, and therefore it was a fraud on him, and should invalidate the instruments. The certificate was not competent evidence unless it was first invested with all the qualities that constituted it an estoppel. The proof of the signature of Hutchison to it was the first step in that direction. But the equitable plaintiffs must go a step further, and show that they relied on it and acted on it. They must show that by reason of the statements contained in it they were induced to pay to Gill the sum agreed on for the mortgage. Unless this certificate, and it alone, produced this force and effect on the mind of W. W. Lewis, the qualities of an estoppel were not imparted to it, and if not, it served no purpose in the trial of the issue, and was irrelevant: Bispham’s Equity, sect. 291; State v. Laies, 52 Mo. 396; Weaver v. Lynch, 1 Casey 449; Eldred v. Hazlett, 9 Id. 307; Wilcox v. Howell, 44 N. Y. 398.

      M. W. Acheson, for defendants in error. —
    The mortgagor having given a certificate that he has no defence, is estopped from setting up a defence against an assignee: Ashton’s Appeal, 23 P. F. Smith 153; McMullen v. Wenner, 16 S. & R. 18; Weaver v. Lynch, supra; Scott v. Sadler, 2 P. F. Smith 211. Accepting Hutchison’s own testimony, the utmost that can he said is that he signed the paper without understanding its contents and without inquiry in respect thereto. But if this be so, upon what just principle can he throw the loss resulting from his misplaced confidence in his unfaithful agent upon the innocent assignees, who invested their money on the faith of the certificate ?
    Where the fraud consists in the misapplication of the proceeds received for the paper, it will not affect it in the hands of the holder, as he is not in any manner bound to look to their application, nor responsible for a misappropriation of them: Gray’s Adm’r v. Bank of Kentucky, 5 Casey 365; Pennsylvania Railroad Co.’s Appeal, 5 Norris 80. (See Robertson v. Hay, ante, p. 242.)
    October 20th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

When a mortgagor, at the same time that he executes a mortgage, delivers to the mortgagee a writing, certifying that he has no defence or defalcation, it is in effect an agreement that the mortgagee shall negotiate the mortgage. It is an acknowledgment that he has received full consideration. It is indeed most usual to execute such writings when no consideration has been received, and the sole object of the mortgage is to raise money by the sale of it. It would be in the highest degree inequitable to allow the mortgagor to set up that there was fraud in obtaining the mortgage, or in a misappropriation by the mortgagee of the money raised by the sale. It is unnecessary to say what would be the effect of actual fraud in procuring the “ no defence” paper. In this case there was no evidence of such fraud.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Pennsylvania Company versus Toomey.
    Where the conductor of a railroad train, acting in the line of his duty, ejects from the platform of a oar.a person who has no right thereon, the company is liable if he has done it in a careless, negligent or reckless manner, but not if he maliciously ejects him therefrom.
    October 10th 1879.
    Before Sharswood, C. J., Mercur, Gokron, 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. 116.

      Case by John Toomey against the Pennsylvania Company, ope-, rating the Pittsburgh and Cleveland Railroad, and Lyman Householder, a conductor on the railroad of said company, to recover damages for injuries alleged to have been received by having been pushed from a train of said company, while in motion, by said conductor. The facts are stated in the opinion of this court. The verdict was for the plaintiff for $500. The defendant took this writ.

      Hampton & Dalzell, for plaintiff in error.
    The company was not responsible for the act of the conductor if it was malicious: Manchester Passenger Railway Co. v. Donahue, 20 P. F. Smith 19.

      A. M. Watson, for defendant in error.
    November 5th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action on the case against the plaintiff in error, and Householder, the conductor of the train, for forcibly ejecting the. defendant in error from the platform of a passenger car of the company. After the latter closed his evidence, the counsel for the defendants below moved for judgment of nonsuit. The court granted the nonsuit as to Householder, but refused it as to the railroad company.

We see no error in the first assignment. Under the conflicting evidence it was right to submit the case to the jury under proper instructions.

The alleged error arises under the second assignment in answer to the, fifth point submitted by the defendant in error. The court was requested, inter alia, to charge the jury that if Toomey was ejected at the time and place in question by Householder, the conductor of the train, carelessly, wilfully or maliciously, using more force than was required, and while the train was in motion, and not at a station or some safe place, “ whereby he received bodily harm and permanent injury, they might award such damages as under the evidence they found he had sustained.” In answer to this point the learned judge said, “ we think the term ‘ malicious’ undesirable in this point, because it might very well be that if Householder was guilty of malice in putting the plaintiff off, it would make it such a wilful thing on his part that the principal would not be responsible for it at all. That is, if it was his design to injure the plaintiff, and he does the act with that design, malir ciously, then under certain - circumstances, his employer would not be liable for his act at all. I do not think that, is this case, how? ever. The defendant company is liable for the conductor’s carelessness and neglect of duty in the course of his employment, and only that. If he chooses to go outside of his employment and .commit, a wilful, deliberate and intended injury to this plaintiff, Without any regard to what he was engaged at, the employer would not be liable. So I do not think the word ‘ malicious’ is desirable in the point, because it goes beyond what the facts in the case would warrant, and in a certain sense would prevent the plaintiff from recovering from the railroad company. If there was anything in the case presented by the plaintiff to show malice, then it would be a question for you to consider whether it was the wilful and intended design of this man to injure the plaintiff, apart from the necessity of getting him off the train. If he did this wilfully, and designedly hurt the plaintiff, the plaintiff could not recover from the company, because the company is not responsible for anything more than the neglect of duty of the conductor in the course of his employment. If he chooses to go outside of his employment, then he is not the agent of the company at all, and the principal cannot be held responsible.” Justice to the court required that we should state this whole answer..

The plaintiff in error does not complain of the judge’s declaration of the law, for what acts of the conductor the company would be liable, and for what it would not be liable. The complaint is that he did not submit to the jury to find whether, under the law as he declared it, the act of the conductor was of such a character that the company was not liable therefor. In view of the opinion expressed by the court as to the effect of “ malicious” conduct of the conductor, it may not have been “desirable” by the defendant in error to have had it submitted to the jury, although his written point did ask for it; yet to the plaintiff in error, it was very desirable. The point having been presented, it matters not by which party, the court was under obligation to answer it, although the effect of the answer may have been such as would prevent a recovery “ from the railroad company.” If such would have been the proper effect of a correct answer the company was entitled to all the protection resulting therefrom. Although the learned judge stated twice that the word “ malicious” was not desirable in the point; yet, nevertheless, it was there, and the court was substantially requested to instruct the jury to find whether the conductor acted maliciously in doing the act which caused the injury. Instead of submitting this question the judge said, “ I do not think that is in this case;” and again, “it goes beyond what the facts in this case would warrant.” If then there was evidence sufficient to have justified a finding that the conductor committed the act in a wanton, Wilful and malicious manner, there was error in the answer. What was the evidence ? It apppears that a train of empty passenger cars was being moved from Manchester to the Union depot, a distance of some two or three miles. It was before daylight in the morning. The cars were locked. The defendant in error was in the employ of the company as a laborer near the Union depot. About the time the train was passing from the Manchester yard on to the main track, and without the knowledge of the conductor, he got on the front car and sat down on the platform. He testified that the conductor came out of the car and said to him “ You get off of here; what took you on this train?” Toomey answered that he was going up to the Union depot to work on the track. The conductor replied, “ I don’t care, you will have to get off the train.” Toomey said to him the train was going too fast to get off. The conductor answered, “Well you have to get off,” following it by an oath and the peremptory order “get off.” Toomey again said he could not, as it was going too fast. The conductor repeated his profane language, and that he “had got to get off,” and then “ he just took hold of me by this arm, and lifted me off my feet, and pushed me right off.”

Each morning a train of cars was passed from its place of storage to the Union depot. There it would take its departure as a train for the carrying of passengers. Toomey testified that although while thus moving towards the Union depot, it was an empty train on which no fare was collected, yet “ every morning it would be full of men who jumped on the cars.” He further testified that when he was pushed off, the train was running about eight miles an hour; that it was so dark he could not see where he was going, and he fell on a pile of cinders sustaining grievous injury. It is true his evidence in many respects is contradicted by the conductor; yet the question of veracity between them, and the accuracy of memory was for the jury, and not for the court to decide. The circumstances under which the defendant in error was on the car, the speed at which it was running, the darkness of the morning, and the force and violence with which he was removed, should ail be considered in arriving at a correct conclusion. If the conductor was at the time acting in the line of his duty and within the scope of his employment in putting Toomey off, under all the existing circumstances, the company is liable for that act of the conductor, although he may have done it in a careless, negligent' or reckless manner; but for his unauthorized, wilful and wanton or malicious trespass, the company is not liable: Philadelphia, Germantown & Norristown Railroad Co. v. Wilt, 4 Whart. 143; Passenger Railway Co. v. Donahue, 20 P. F. Smith 119. There was sufiicient evidence of malicious conduct of the conductor to have submitted it to the jury, and the second assignment is sustained.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    In re Road in Springdale Township.
    1. Under the provisions of art. 16, sect. 8, of the constitution, and the June 13th 1874, on an appeal from the assessment of the viewers Appointed to locate a road, a jury trial may be had by either party to ascer-. • ll. _ -1 - . _ 1 L — ■. 1. i...! A 1 ■. M M A1 1- A U All IV, tUrt fl,, AVltAV, V A AA1 AV, A A V, A tain the damages, but such trial cannot be had in the Quarter Sessions, and appeal must be made to the Court of Common Pleas, as pointed out by the Act of 1874.
    2. In proceedings to locate a road the report of viewers set forth “ that they met pursuant to legal notice.” Held, to be sufficient, in the absence of any allegation by any property holder, that he had not received notice.
    3. It was not error to send back a report to the viewers for the purpose of noting the improvements more fully.
    4. It is true, as a general rule, that a road cannot be located on another road regularly laid out and opened, yet it may be laid on another, so far as it may be necessary to reach the point of ending.
    5. Where a supplemental report is signed by two of the three original viewers, it is sufficient.
    October 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. . Green, J., absent.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1879, No. 79.
    This was a proceeding to lay out a public road from Springdale Station to Colfax Station, through the village of Springdale, on the West Pennsylvania Railroad, and alongside of said railroad for the distance of about a mile. Viewers were appointed December 11th 1875, who, in March 1876, filed a report in favor of the road. On May 2d 1876, the Pennsylvania Railroad, the íessee of the West Pennsylvania Railroad, filed exceptions to the report, among others, because it .was located upon a part of their right of way. On the 19th of May exceptions were also filed by Joseph Mellon, James Hartrey, A. M. Plilty, and. others, owners of property through which the road was located. They also filed a demand, in writing, for a jury trial, to determine the value of the land taken for public use, as secured to them by art. 16, sect. 8, of the constitution.
    On June 5th 1876, James Hartrey and A. M. Hilty presented an application to the court for an issue to try by jury the value of their lands so taken, and the damages sustained by them by reason of the opening of said road. On July 5th 1876, the court dismissed the exceptions and application, and confirmed the report of viewers. But on August 16th 1876, the court granted an order staying proceedings, and a rule to show cause why the order of confirmation should not be set aside. And on July 11th 1877, the court made an order referring the report back to the same viewers, with instructions “ to note upon the draft the courses and distances thereof,” and “to state whether or not the same have been staked upon the ground,” and “ to make return to the next court.”
    ■On Sentember 6th 1877, two of the viewers, with one J. II. Reno, who had succeeded J. B. Stilley, as county engineer, filed a supplemental report, setting forth that they had noted the courses and distances on the draft, and had staked the road out on the ground. They also, in their report, set forth the fact that the road passed through improved lands, a fact omitted in the former report, but not submitted to them by the order referring the report back.
    To this report the above parties, excepting the Pennsylvania Railroad, renewed their former and filed additional exceptions, and again demanded a jury trial. The case then remained in this position until the 15th of July 1878, when an agreement having been filed between the attorneys of the petitioners and the attorneys of the railroad, agreeing that the exceptions of the railroad should be withdrawn and the road confirmed, on condition that Antes Snyder, the engineer of the railroad, should fix the true line of the railroad or old canal along which the road was to be opened, the railroad withdrew its exceptions. Then on the 30th of November 1878, the court dismissed the exceptions and confirmed the supplemental repoft of the viewers. The court made no order as to the demand for a jury trial, and afterwards, on January 16th 1879, made an order directing the road to be opened! Then on March 6th 1879, the exceptants sued out this writ of certiorari.
    The following assignments of error will show the exceptions in the court below:
    1. The court below erred in dismissing the exceptions, and in confirming the report of the viewers, July 5th 1876. 2. In making the order of November 30th 1878, dismissing the exceptions and confirming the supplemental report of viewers. 3. In not awarding an issue to try by jury the question as to the value of the land of exceptants appropriated for the use qf said road, and the damages sustained by them by reason of the location and opening of the same. 4. In refusing the following application : “ And now;, June 5th 1876, comes James Hartrey and A. M. Hilty, and except to the report of the viewers in this case for the causes assigned in the exceptions already filed by Joseph Mellon, and others, and for the reason that the viewers have not allowed them damages for the land taken for said road. The said James Hartrey alleges that the damages sustained by him, by reason of the premises, is at least the sum of $1000, and the said A. M. Hilty claims that the damages sustained by him, by reason of the premises, amounts at least to the sum of $1000, and they ask that- the same be inquired of by a jury, and that an issue be formed to determine by the verdict of a jury how much damages they or either of them have sustained by reason of the taking of their said land for public use.” 5. In overruling the first exception filed to the first report of viewers, to wit: “ It does not sufficiently appear by said report that they gave notice to the property holders and public interested. The report alleges ‘ that they met pursuant to legal notice.’ ” 6. In overruling the second exception to the first report, viz.: “ The report and the draft are both silent as to the fact whether the lands through which it passes are improved or not.” 7. In overruling the fourth exception to the first report, viz: “ This road is located a part of the way upon a public road already laid out and in use.” 8. In overruling and refusing the request made in the ninth exception filed in the first report of viewers, to wit: “ And the exceptants also demand that the question as to the damages done to their said real estate, by the appropriation of the same for public use as a highway, may be inquired of by a jury, and that the court will form an issue to try the same.” 9. In overruling the first exception filed to the supplemental report of viewers, viz.: “ The same persons who are viewers did not act upon or sign the supplemental report. Mr. Reno was not the artist in the original report.” 10. ■ In overruling the second exception filed to the supplemental report, to wit: “ The viewers gave no notice of the time and place they met to prepare their supplemental report, or when they met on the ground to stake out the same, and the supplemental report does not set forth when and- where they met to discharge their duties.” 11. In refusing and overruling the third exception filed to the second report, to wit: “The said exceptants renew their demand for a jury trial to pass upon and determine the amount of damage done to their respective freeholds by the location and opening of said road.” 12. In overruling the fourth exception filed to -the supplemental report, to wit: “ Exceptants except and object to the agreement filed by Brown & Lambie and Hampton & Halzell, purporting to assent to the fixing of the location of said road by Antes Bnyder, &c. These parties had no right to bind us or other property holders.” 13. The court below erred in confirming the supplemental report of viewers, while the confirmation of the original report still stood in full force and unrescinded. 14. In confirming a road which, in its location, materially interferes with five dwelling houses, located in a country district, without sufficient proof of the necessity of the same*

      John Barton, for plaintiffs in error.
    Under art. 16, sects. 8 and 9, of the new constitution, and the decision of this court in Pusey’s Appeal, 2 Norris 67, we had a right to demand a trial by jury to determine the value of the land appropriated, and the damages caused by the tearing down or removing of the dwellings.
    The fact that notice was given should appear on the face of the report: Boyer’s Road, 1 Wright 257. The report sets forth that the viewers met pursuant to legal notice, but when, or where does not appeal’. The improvements must appear by the report or draft: Potts’s Appeal, 3 Harris 414. Locating a new road on the bed of an old one is error: 6 Casey 165. A county road cannot be laid out through a man’s dwelling without affirmative proof of its necessity: In re Second Street, 11 Harris 346.

      A. M. Brown and John S. Lambie, contra.
    It may be that the plaintiffs in error had a constitutional right of appeal and trial by jury, for the ascertainment of their alleged damages, subject to the regulations prescribed by law — but we deny that they exercised such right, or brought their case within the purview of the constitution and the statute regulating appeals in such cases.
    No appeal was entered or attempted in this case, but there was a demand for an issue in the Quarter Sessions, and a trial there — a proceeding unknown to the law. The report sufficiently sets forth that public notice was given in a legal manner, of the meeting of the viewers, and that the view was had in pursuance thereof: Road in Middle Creek, 9 Barr 69; Boyer’s Road, 1 Wright 257.
    Where viewers omit to note the improvements, a report may be referred back to them for correction: Potts’s Appeal, 3 Harris 414; Towamencin Road, 10 Barr 195; New Hanover Road, 6 Harris 220. The report was sent back simply to supply clerical omissions. A majority of the original viewers signed the supplemental report and their action was sufficient. No part of the new road was located upon an old road.
    November 10th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

It may be that the exceptants below, who are the plaintiffs here, would ‘have been entitled to a trial by jury had they taken the proper steps to obtain it. Their exception was as follows:—

“ And the said exceptants also demand that the question as to the damage done to their real estate by the appropriation of the same for public use as a highway, may be inquired of by a jury, and that the court will form an issue to try the same.”

The 8th sect, of art. 16 of the constitution provides that in all cases of appeal from the assessments of damages made in such cases by viewers or otherwise, the amount of such damages shall, on the demand of either party, be determined by a jury according to the course of the common law. The Act of 13th June 1874, Pamph. L. 283, was intended to give effect to this constitutional provision. By that act an appeal is given to the Court of Common Pleas, to be taken “ within thirty days from the ascertainment of the damr ages or the filing a report thereof in court, pursuant to any general or special act, and not afterwards.” The 2d sect, of said act requires that the appeal shall be signed by the party taking the same, or his agent or attorney; and that it shall be accompanied by an affidavit that it was not intended for delay, &c. None of these requisites was complied with. In fact there was no appeal to the Common Pleas. There was a demand upon the Court of Quarter Sessions to allow a trial by jury, and form an issue to try the same. The Quarter Sessions had no such power under the Act of 1874. It was the duty of the plaintiffs to have entered an appeal to the Common Pleas, as pointed out by the act, if they desired a jury trial upon the question of damages.

The 5th and 10th assignments of error relate to the question of notice. It was not alleged that the property holders had no notice of the meeting of the viewers, but that such notice does not sufficiently appear by the report. The report sets forth “ that they met pursuant to legal notice.” This is not as full as it might and ought to have been, yet we think it sufficient, in the absence of an allegation by any property holder that he had not received notice. The question of notice is one of fact, and we may well presume the court below decided it correctly. In the tenth assignment, which refers to the supplemental report, the averment is made directly that in point of fact no notice was given by the viewers of the time and place of meeting to prepare their supplemental report. There was no necessity of giving notice as to that, and it is referred to merely to show that the omission of such an averment in the exception to the original report was not an accident. The report was referred back to correct clerical errors and omissions. That this may be done is well settled: Boyer’s Road, 1 Wright 257.

The improvements appear to be sufficiently noted in the supplemental report. The report was sent back to the jury partly for that purpose. This was regular under Potts’s Appeal, 3 Harris 414. There is nothing before us to show that any buildings are interfered with.

That the road occupies a street already opened for a distance of five hundred and ninety-four feet, we do not regard as material. This was manifestly to reach the terminus at Springdale Station. While it is true, as a general rule, that a road cannot be located on another, regularly laid out and opened, yet it may be laid on another so far as it may be necessary to reach the point of ending called for in the order: Reserve Township Road, 30 P. F. Smith 165; Road from West Chester, Road to Chester, and Germantown Road, 2 Rawle 421; Hess Mile Road, 9 Harris 217; Southampton Road, Id. 356.

. There is no force in the exception (see 9th assignment) that “the same persons who are viewers did not act upon or sign the supplemental report.” The supplemental report was signed by two of the three viewers who signed the original. The third viewer, J. B Stilley, was the county engineer, and prior to the supplemental report had been succeeded in office by J. H. Reno. The Act of Assembly of February 24th 1845, Pamph. L. 52, provides that the number of .road and bridge viewers in Allegheny county shall be three, one of whom shall be a surveyor, if deemed necessary, and a majority of whom shall concur in the report. It is asserted in the paper-book of defendants that a later Act of Assembly requires that the county engineer shall be the surveyor in all cases. This may be so, but I have been unable to find it after a protracted search. It was not referred to in the paper-book by either its title, the date of its passage, or the Pamphlet Laws, and it is alluded to now merely to express our disapprobation of this 'mode of citing an Act of Assembly. If material, it should be cited in such manner as to be found without a search • through thirty volumes of the Pamphlet Laws; if not material, it should not be cited at all. We do not regard the act in question as essential, as the supplemental report was signed by a majority of the viewers, which is all the Act of 1845 requires.

The alleged agreement between the petitioners and the- railroad company, referred to in the 12th assignment, does not appear upon the record. Any comment thereon is unnecessary.

What has been said substantially covers the numerous assignments of error. While the record is somewhat ragged, we are unable to see such serious error as would make it our duty to reverse. The proceedings, therefore, are Affirmed.


author: Mr. Justice Sterrett

text:
    Hay’s Appeal. Freyvogel versus Anderson.
    1. The plaintiff in an equity proceeding was examined in chief before a master and his testimony reduced to writing. An opportunity was afforded defendant to cross-examine, but he did not avail himself of it, arid before doing so died. A motion was made to strike out the evidence ; Held, that it was competent and properly admitted.
    2. One of the partners of a firm that had dissolved undertook to settle the affairs of one branch of the business, and taking the stock thereof, without an appraisement, carried o-n the business for his own benefit. Held, that he should be charged with what the stock was fairly worth at the time of the dissolution, and not with the amount realized by him or his representatives three years thereafter.
    3. One of two partners purchased real estate and paid for the same with a note of the firm. The expenses of the purchase, the discount on the original note, the renewals thereof, and the taxes on the lot, were charged to his individual account by the direction of the other partner. Held, that the property was purchased on individual account, and the profits arising from a sale of the real estate went to the partner and not to the firm.
    October 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 10. In Equity.
    Bill in equity, filed by Henry A. Freyvogel, against William J. Anderson, for a partnership account. During the pendency of the proceedings, John O’Keefe, assignee in bankruptcy of Henry A. Ereyvogel, was substituted for said Ereyvogel, and Malcolm Hay, administrator of William J. Anderson, for said decedent.
    The case was referred to two masters, and from the facts, as found by said masters, it appeared that from 1864 until 1868 Ereyvogel and Anderson were partners, under the firm name of William J. Anderson & Co. In this copartnership Anderson had a five-eighths and Ereyvogel a three-eighths interest.
    On September 23d 1868, one Millinger conveyed a lot in South Pittsburgh to Anderson for $20,000, which amount was raised on a note of the firm. The expenses of this purchase, the discounts on this note and its renewals, and the taxes on the lot were charged to Anderson’s individual account on the books of the firm. Some-of these entries were made by Ereyvogel himself, and the rest at his instance. About two years after the purchase, Anderson sold the lot at a profit of $6637.35; and when, fourteen months thereafter, the partners divided their business, Ereyvogel caused an account to be opened called the South Pittsburgh lot- account, into, which the above entries were carried, and either partner credited with one-half of the profit from the sale of the lot. Anderson objected to this account when he discovered it, but whether to the •whole of the account or to the proportions allotted to each, did not clearly appear.
    In January 1871, the firm purchased for $40,000 the lease, machinery, &e., of S. S. Eowler’s assignee, William Yankirk, where they carried on business under the firm name of Anderson & Ereyvogel, Anderson having charge of th'e new works and Ereyvogel of the old. In 1872 the firm dissolved, and it was agreed that An-, derson should adjust the business of the new and Ereyvogel of the. old firm, and a mutual settlement was then to be made. In September 1872, the clerk of Anderson made an inventory of-the stock on hand in the new works, which contained an itemized statement, of the machinery and articles purchased in January 1871 from Yankirk; without giving the separate valuations of each, and at the-end of the list made this memorandum: “All the foregoing articles, machinery, &c., were purchased from William Vankirk, assignee, for $40,000.” When the firm dissolved, Stark,- McMahon & Co. were indebted to William J. Anderson-& Co. in the sum of $6014.57, and shortly thereafter the latter firm sold out to McMahon & Campbell, taking their notes for the purchase-money, which being in amount about the sum due to William J. Anderson & Co., they endorsed them to said firm. Ereyvogel had these notes discounted, b.ut was obliged to lift them, as neither of the above firms paid them. One of these notes Ereyvogel made no entry of; one he. charged to the account of Stark, McMahon & Co., when he discounted it, but made no counter charge when he lifted it; and another he charged to the account, claiming that it was discounted “to lift a note of James Wood & Co. that Stark, McMahon & Co. owed;” but there was no evidence to show how or why they were liable. He also charged the account with $2443.33, the amount of the note discounted to lift the third note alluded to above. The indebtedness of Stark, McMahon & Co. to William J. Anderson & Co. thus appeared by these entries to have been increased to $8786.69, without any new transactions.
    Two years after the firm had dissolved Freyvogel filed this bill for an account.
    Upon hearing before the master, Freyvogel was offered as a witness in his own behalf, and pending his examination in chief, the defendant, Anderson, died. At the next meeting after the appointment of Anderson’s administrator, motion was made by defendant to strike out said testimony of Freyvogel, which motion was refused by the master, because, as was stated by him, “at the time it was given and reduced to writing it was legitimate testimony, and because the defence had sufficient time and opportunity to cross-examine the plaintiff, and have the testimony of the defendant taken;” and for the further reason that since the death of Anderson, Freyvogel had been declared a bankrupt, and his assignee substituted as plaintiff in the case.
    The first master charged Anderson with $40,000, being for the leasehold, machinery, &c., of the machine-shop and foundry of Anderson & Freyvogel, which passed into Anderson’s hands at the time of the dissolution of said partnership, and which remained in his hands at the time of his death, and was after-wards sold by his administrator at public sale, after repeated efforts, under agreement with the plaintiff, Freyvogel, for the sum of $16,000.
    He also reported that the South Pittsburgh lot was the individual property of Anderson. He also reduced the Stark, McMahon & Co. account to $6014.57. The second master, to whom the case was again referred to take further testimony, agreed with the first master in charging Anderson with the $40,000; but found that the purchase of the South Pittsburgh lot was a firm, transaction, and that’Freyvogel was entitled to three-eighths of the profits of the sale. He also reported that Anderson, should be charged with five-eighths of the apparent balance of the Stark, McMahon & Co. account, instead of the balance at the time of the dissolution. The balance he found due to Freyvogel was $6985.55, on which he allowed interest from the dissolution of the firm, which interest amounted to $2417. The court sustained this report, except the charge of interest, when the administrator of Anderson, Malcolm Hay, Esq., took this appeal, and alleged that the court erred,
    1. In sustaining the action of the masters in admitting as evidence the testimony of Freyvogel, the plaintiff; Anderson, the defendant, 'having died before the completion of Freyvogel’s examination in chief. 2. In confirming the report of the master charging Anderson with $40,000 for the lease, machinery, &c., of Anderson & Freyvogel on hand at the date of dissolution of that firm. 3. In confirming the report of the second master, reversing the finding of the first master as to the ownership of the South Pittsburgh lot, and crediting to Freyvogel three-eighths of the profits of the sale thereof, to wit, $2542.25. 4. In confirming the report of the second master, reversing the' finding of the first master, correcting the Stark, McMahon & Co. account, and giving Freyvogel credit as for a lost debt of $8738.69, instead of $6322.15, a difference of $2414.54. 5. In entering the decree ordering the payment by appellant to appellee of $6985.55, and directing such payment to be made by appellant as administrator and receiver. 6. In entering the decree in favor of appellee.

      Malcolm Hay and George W. Guthrie, for appellant.

      Barton & Sons, for appellee.
    January 5th 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

_ It is claimed in the 1st assignment of error that the testimony pf the plaintiff below should have been stricken out, because the defendant died pending the proceedings before the master and before the witness was cross-examined.

It appears that on February 1st 1875, the plaintiff Freyvogel was sworn as a witness in his own behalf, and his examination-in-chief was continued at the next- meeting. ' The hearing was then adjourned for a week, and again until the 18th of the same month, at which time, the defendant being absent, his counsel declined to cross-examine. The examination-in-chief was then resumed, but nothing important was elicited. A meeting appointed for March 25th was adjourned until the 29th of the same month. In the meantime, on March 27th, the defendant Anderson died, and proceedings were suspended until his personal representative, was substituted. At the next meeting thereafter the administrator appeared, and moved to strike out the testimony of Freyvogel for the reasons above stated. The motion was denied, and at the next meeting the plaintiff presented himself for cross-examination, but defendant, resting on his objection to the competency of plaintiff’s testimony, declined to cross-examine.

When the plajntiff testified he was undoubtedly a competent witness, and nothing that occurred thereafter would have justified the court or master in excluding his testimony. Under the circumstances, we think it was rightly retained and considered in connection with other' testimony in the cause. It was not the fault of the plaintiff that defendant, by reason of sickness, was prevented from being present in person to cross-examine, or to testify in his own behalf. During the lifetime of the original parties, they were both competent witnesses, and either had a right to testify or have his testimony perpetuated, so that it might be used in the event of sickness or death. After plaintiff was first examined in chief, and before the decease of defendant, an opportunity was given to cross-examine, but it was waived by counsel then present, representing the defendant. The most that could be done by plaintiff, after defendant’s death, was done. He presented himself for cross-examination, but the administrator declined to avail himself of thé óffer. The right of cross-examination was thus waived by counsel before, and by the administrator after, the decease of the defendant; We think the master and court were clearly right in refusing to strike out the testimony.

The next subject of complaint is that defendant is charged with $40,000 for the lease, machinery, &c., of Anderson & Freyvogel, on hand at the time of the dissolution. This charge is mainly based on a memorandum contained in the book or schedule entitled “Inventory of stock, tools, machinery, &c., of Anderson & Freyvogel, September 1st 1872,” which contains an itemized statement Of the machinery and other articles purchased in January 1871 from Vankirk, without giving the separate valuations of each. At the end of the list the bookkeeper of the firm made this memorandum: “All the foregoing articles, machinery, &c., was purchased from William Vankirk, assignee, for $40,000.” There is nothing in this to indicate that it was a valuation, as of that date, by which Anderson was to be charged. On the contrary, it appears to be merely a statement of the property purchased nearly two years before, and its value, or rather the price then paid for it. The items of furniture, stock, - &c., that follow in the schedule, are extended with separate valuations affixed to each. Mr. Hay, the bookkeeper who made the schedule, says nothing in his testimony of any appraisement. He testifies that when he placed the amount $40,000 in the inventory, he “ put down the old figures taken from the bill of sale from Vankirk.” The schedule was footed up by Mr. Kirkpatrick, who was employed to assist the master. He testifies that the $40,000 item was charged to Anderson’s account by him; that he did it because he found these figures in the inventory, and was told by the plaintiff Freyvogel that it' was all right, and he had nothing to do but add it up. He also testifies that he had no knowledge of the matter except what he derived from the inventory and Freyvogel, and says: “ I observed the $40,000 item was put there as a memorandum of the original cost of the purchase from Vankirk, and not as an appraisement.” It would be difficult indeed to draw any other conclusion from the memorandum, and yet this and Freyvogel’s declaration that it wás all right appears to be the only warrant he had for making the charge as he did. The testimony is wholly insufficient to show that the items composing fhe charge of $40,000 against Anderson were appraised at the time of the dissolution, or that he agreed to take them at that or any other fixed valuation; nor does the bill aver that any valuation or' appraisement was ever made. In the seventh paragraph it is alleged that in pursuance of the agreement of dissolution the plaintiff took charge of the assets of William J. Anderson & Co., and took a regular inventory and account of the samethat Anderson took charge of the property and assets of Anderson & Ereyvogel, but it is not alleged that any appraisement of the latter was made then or at any other time. If an appraisement had ever been made or a valuation agreed upon by which Anderson was to be charged on settlement, it is not at all probable that the plaintiff would have failed to aver the fact in his bill. In addition to this, the plaintiff, after Anderson’s death, claimed possession of the property as surviving partner of Anderson & Ereyvogel, and threatened to restrain the administrator from exercising any control over it — a position utterly inconsistent and irreconcilable with that afterwards assumed by him, that Anderson was to be charged with the lease and property purchased from Yankirk at original cost.

The plaintiff’s demand on the administrator for possession resulted in the agreement of April 30th 1875, in which it is provided that the administrator shall proceed and sell the lease, fixtures and machinery at public sale, upon the terms therein named, and hold the proceeds until it is determined whether the whole or any part of the same belongs to the plaintiff as surviving partner of Anderson & Ereyvogel, or to the said administrator, when said fund shall be applied by said administrator as directed by the court by final decree in this case.” Pursuant to this agreement, the property was sold by the administrator, on February 3d 1876, for $16,000. In the absence of qualifying circumstances, this would be the amount at which it should be charged in settlement of the partnership accounts; but while we find that Anderson did not take the property at the valuation claimed by the plaintiff, or at any other fixed sum, it is very clear that he retained and used it in the prosecution of his individual business after the' dissolution. Having done so, we think he should be charged with what it was fairly worth at that time, and not at the amount realized by the administrator more than three years thereafter. The testimony shows that it had depreciated from eight to twelve thousand dollars beeween the date of its purchase by the firm and the dissolution, and the result of the administrator’s sale shows a still greater depreciation afterwards.

The testimony as to the value of the property at the date of the dissolution is somewhat indefinite, but as nearly as can be determined, it was then worth $32,000, or $8000 less than is charged in tbe account stated by tbe master. Three-eighths of this difference, $3000, should be borne by the plaintiff, and consequently that amount should be charged back to him.

The 3d assignment relates to the ownership of the South Pittsburgh lot. The first master found that it belonged to Anderson individually; the second master found it was purchased in trust for the firm, and that the net profits realized in the transaction should be treated as partnership assets.

While the testimony shows that the lot was purchased with the view of occupying it for the business of the firm, it is very evident from the title papers and entries made in the books at the time and as they stood for more than a year after the lot was sold, that the purchase was made by Anderson in his own right, and not in trust for the firm; and it should require something more than is furnished by the testimony in this case to convert the property or the proceeds thereof into partnership assets. The conveyance was to Anderson, and in March 1871, he and his wife conveyed the lot to the South Pittsburgh Planing-Mill Co., ata net profit of $6779.35. It is true the funds with which to pay the purchase-money in part were raised on the note of the firm discounted by the .Exchange National Bank, but the discount on the first note, as well as the several renewals thereof, and taxes, were charged on the books of the firm to the individual account of Anderson. Some of these entries are in the handwriting of Freyvogel, and others are made by the book-keeper under his direction. They are entirely consistent with a purchase by Anderson in his own right, and at the same time irreconcilable with the allegation that it was a partnership purchase. In one of the entries made by Ffeyvogel the discount is charged as paid on “ his (Anderson’s) note in the Exchange Bank.” When the note was reduced by payment of $2000 thereon, this amount was charged to the individual account of Anderson. In like manner the expenses incident to placing a mortgage on the property and interest paid on the mortgage debt, were charged to him personally. All this is not easily reconciled with the claim that has since been set up. We think it very evident that Anderson purchased in his own right, and that the credit of the firm was loaned to enable him to pay part of the consideration-money, and that the idea of its being a partnership transaction was an after thought. If the lot had been sold at a loss' instead of a net profit, it is not at all probable that it ever would have been heard of as partnership property. More than a year after it was sold, Freyvogel directed a new account to be opened in the firm books called the “ South Pittsburgh lot account,” to which he transferred all the items of discount, expenses, &c,, previously charged to Anderson individually, and credited himself with one-half of the net profits. One witness says that when Anderson saw this new account he objected and said it should not be there. Another, who was present at the same interview, testifies that the ground of his objection was the manner in which the profits were divided. Be this as it may, the testimony is wholly insufficient to justify the master in finding that the lot was purchased by the firm or in trust for the firm. The manner in which the conveyance was made, and the entries in the books contemporaneously with each step in the transaction, show satisfactorily that such was not the case. The correction of this error makes a difference of $2542.25 against the plaintiff, and requires that amount to be charged back.

The fourth assignment relates to the credit of $1509.10,'allowed on the Stark, McMahon & Co. account. The first master disallowed this claim, and we see nothing in the additional testimony before the second master to justify his finding. How the firm of •William J. Anderson & Co., was liable on “ a note of James Wood & Co., which the firm of Stark, McMahon & Co. owed,” does not sufficiently appear. There were no facts proven from which such liability would arise. If it was claimed that they were liable as indorsers, or in any other form, the facts necessary to create such liability should have been proved. We think there was error in allowing this credit.

The following sums for which the plaintiff has received credit in the account stated by the second master should be disallowed, viz.:

1st. Three-eighths of $8000 — excess in charge for lease, machinery, &c., . . . . ... . $8000.00

2d. Three-eighths net profits realized, on sale of South Pittsburgh lot, by Anderson, .... 2542.25

3d. Amount erroneously credited to plaintiff on the Stark, McMahon & Co. account, . . . 1509.10

Making in all, ...... $7051.35

Erom which deduct amount found by decree of Common Pleas for plaintiff,..... 6985.55

$65.80

Which leaves balance, $65.80, due to defendant, from which amount there should be a decree in his favor.

To that part of the decree fixing the master’s fees, and directing how they and the costs shall be paid, there is no exception. The court very properly directed that they should be paid by the parties in the proportions of their respective interests in the firms. The appointment of the receiver is not complained of. Whatever may be realized by him, out of assets not embraced in the account stated by the master, will be the subject of distribution by the court hereafter.

The decree of the Court of Common Pleas is reversed, and it is now adjudged and decreed that there is due from the appellee, John O’Keefe, as assignee in bankruptcy of Henry A. Freyvogel, to the appellant Malcolm Hay, Esq., administrator of William J. Anderson, deceased, sixty-five dollars and eighty cents ($65.80), which sum the said appellee is hereby ordered to pay to said administrator out of the assets of said bankrupt in his hands; and it is further ordered and decreed that the master’s fees, as fixed by the Court of Common Pleas, and the costs, including the costs of this appeal, be paid as follows, viz.: Three-eighths (fths) thereof by the said appellee, and the residue by the appellant; and the order of court appointing the receiver is affirmed.


author: Mr. Justice Gordon

text:
    McKnight et al. versus City of Pittsburgh.
    1. Where a city engineer is directed to let a contract for the paving of a street, if there has been no previously established grade, the engineer may himself adopt one.
    2. But where there is a grade already established by ordinance, and the engineer disregards it and adopts another, the city may repudiate the act of the engineer and avoid the contract. If, however, the city adopts such irreJ guiar grade and accepts the work, no third person can intervene to avoid the contract.
    3. The appellant made no objection to the grade or the work as it progressed. The work was undertaken at her instance, among others, and for the benefit of her property, and her agents aided the contractor in hauling and furnishing material. Held, that she was estopped from controverting the acts of the city and its contractor, even though the contract under which the grading was done was void for -want of power in the city to execute it. Bidwell v. City of Pittsburgh, 4 Norris 412, followed. Addis v. City of Pittsburgh, 4 Norris 379, distinguished.
    October 7th 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 1878, No. 197.
    Scire facias sur municipal claim by the City of Pittsburgh against Robert McKnight and William M. Paxton, executors of Mrs. E. F. Denny, for grading and paving Ridge street, in the city of Pittsburgh.
    On the 25th of June 1874, an ordinance was passed directing the grading, paving and curbing of said street, according to the provisions of the Act of Assembly of January 6th 1864, Pamph. L. 1181, and its several supplements. On the 7th of December 1874, the councils of the city of Pittsburgh passed an ordinance fixing the grade of the street. On the 17th of May 1875, the contract for the grading, paving and curbing of Ridge street was let, by the engineer of the city of Pittsburgh, to one Johnson, who did part of the work in the fall of that year, and completed it in the spring and summer of 1876. The work was approved by the city engineer, and by him accepted on October 25th 1876, and an assessment was on the same day ordered by the city councils. The city engineer prepared a plan and profile of the street, indicating the natural surface, and the grade on which the work was let, and Íaccording to which it was finished substantially. That grade was not the grade of the ordinance of the 7th of December 1874. After the work was completed, the councils, by ordinance of 13th November 1876, fixed and established the grade to correspond with /the grade as constructed. The assessments were ordered before, but not actually made till after the passage of this ordinance.
    The court, White, J., instructed the jury that the change of grade from the ordinance of December 7th 1874 was not so irregular as to defeat the right of the city to recover the assessments. This was assigned for error by the executors of Mrs. Denny, who took this writ.

      R. B. Carnahan, for plaintiffs in error.
    This case is ruled by. the Addis v. City of Pittsburgh, 4 Norris 379. The city engineer had no authority to establish a grade wholly different from the natural grade and from that prescribed by the ordinance.

      T. S. Bigelow, W. W. Thomson and S. H. Greyer, for defendant in error.
    Municipal corporations may adopt the unauthorized acts of their agents, and owners of property cannot be allowed to dispute them: City of Philadelphia v. Burgin, 14 Wright 545; City of Philadelphia v. Brooke, 31 P. F. Smith 26; Hutchinson v. City of Pittsburgh, 22 Id. 325; Kelsey v. National Bank of Crawford County, 19 Id. 429; Gordon v. Preston, 1 Watts 385. Addis v. Pittsburgh, supra, is distinguishable from this case.
    October 27th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

It is not open to question but that the rule insisted upon by the counsel for the plaintiffs in error, that a-municipal corporation, in the grading and paving of its streets, must conform strictly .to the power conferred upon it by the legislature,, is correct. This question, however, is not involved in this case, for about the power of the city councils to order the grading and paving of the street, which is the subject of the present controversy, there is not the least doubt. By>the Act of January 6th 1864, they were empowered to grade or regrade, pave or repave or macadamize any street, lane or alley within the city. Their powers are therefore ample, and the time when and the order in which these powers may be exercised rests in their discretion. ' Such being the case, it follows that their order to the city officers to do any particular act, ^hich they themselves ’ are empowered to do, necessarily implies all powers necessary for the proper execution of such order. Hence,7 where the engineer is directed to let a contract for the paving of af street, if there has been no previously established grade, the en^ j gineer may himself adopt one, for ordinarily grading is a precedent; necessity to paving.- In fact, ’at the time of the adoption of the ordinance for the grading and paving of Ridge street, there was no established grade; nevertheless, the city engineer was ordered to advertise for proposals; but as bids could not be intelligently made without surveys, plans and grades for the work proposed, we must presume that the ordinance empowered him to do these things, without which the intended work could not be accomplished. Were there, then, nothing more, this case would present no difficulty, for the act of the city engineer in the adoption of a grade for the street in question must be taken as the act of the councils. The difficulty, however, is found in the fact that between the time of the making of the ordinance and the letting of the contract a grade for Ridge street was adopted by the proper authorities. •Such being the case, the engineer exceeded his authority when he-disregarded that grade and adopted a new one, and the city, at any time before the adoption by it of the work done by the contractor, might have repudiated the act of its engineer and avoided the contract. But it could not do this after, such adoption; for, as in the case of a private person, it having the power to contract, the power ‘ to adopt a contract made for its benefit is necessarily involved in the original power. 1’t is indeed but a question of power that we have to consider; that being determined, all is determined. Hence; we repeat, the city having the undisputed power to establish grades, and to make contracts for paving, the correlative power of adopting grades and contracts, made by its officers for its own benefit, necessarily follows.

In this the case is wholly unlike Addis v. The City of Pittsburgh, 4 Norris 379; for there it was held that neither the city nor its officer had the power which he attempted to exercise, to wit, the power to make an agreement for paving and grading on* the rule of a quantum meruit; hence, such an. agreement was held to be void and not binding upon the city.

In the case in hand, there is no question as to the power of the councils to have made just such a contract as was made. The only irregularity occurred in the adoption by the engineer of a grade different from that ordained by the ordinance of December 7th 1874; everything else was regular, and when the irregular grade was subsequently adopted, and the work which was done under the contract approved and accepted by the city, the party having the full power so to do, we cannot understand how any third person or persons can be permitted to intervene to destroy a contract so made and approved.

Furthermore, there was no objection made by Mrs. Denny or her representatives to the grade, or to the work during its progress. This work was undertaken at her instance, among others, and for the benefit of her property, and her agents actively aided the contractor by hauling for him and furnishing material. Under such circumstances, she was, and consequently her representatives now are, estopped from controverting the acts of the city and its contractor, even though the fact had been that the contract under which the grading and paving was done was void, for want of power in the city to execute it: Bidwell v. The City of Pittsburgh, 4 Norris 412.

The judgment is affirmed.


text:
    Wetmore’s Appeal.
    ’ A mechanic’s claim for wox'k done and materials furnished “in and about the erection, construction, improvement and fitting up of the said buildings, for the use for which they were constructed,” will not sustain a lien for repairs and additions.
    October 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 134.
    Appeal of J. W. Wetmore and the Blair Iron and Steel Company from the decree of the court distributing the proceeds of the sheriff’s sale of the works of said company.
    Thomas S. Blair and wife obtained a judgment against the Blair Iron and Steel Company, and levied on the lease, fixtures, patents and personal property of’ said company, and the same were sold at sheriff’s sale to J. W. Wetmore.
    An auditor was appointed to distribute the fund arising from the sale. Before him there appeared J. W. Wetmore, claiming the fund on the writ of Blair and wife; the Atlas Works claiming upon a mechanics’ lien, and a large number of employees with claims for wages. It was agreed that the fund should be first applied to the payment of these wages.
    The' claim of the Atlas Works set forth, inter alia, that it was “ for the payment of the sum of $6283.99, against all that certain, part four story and part one story, frame and iron-clad building, known and used as a converting-house (used for converting crude ore into iron sponge], having a width or front, &c.; * * * also, a one-story frame and iron-clad building, known and used as a melting-house (used for converting iron sponge into steel ingots), situate, &c.; * * * also, a one-story frame and iron-clad building, known and used as a gas-producing house, &c.; * * * including all the machinery, steam-engines, boilers, pumps, furnaces and other fixtures, * * * known as the Blair Iron and Steel Works, &c. * * *
    “ The sum aforesaid being a debt contracted for work done and materials furnished, namely, for iron castings and machinery made by said claimant, within three months last past, in and about the erection, construction and improvement and fitting up of the said buildings for the use for which they were constructed, to wit, the manufacture of. iron, steel, &c., of which buildings the said the Blair Iron and Steel Company was, and is the owner or reputed owner thereof,- and at whose instance and request the said work was done, materials furnished, and eastings and machinery made, &c.”
    There was evidence that the work done was in the construction of a new furnace, and that other articles were furnished for a steel works which were then in operation.
    In ruling upon the exceptions to the validity of the claim the court, inter alia, said: “ No question has been made as to the propriety of the claim as repairs (so far as a portion of the items is concerned), except, generally, upon the right to claim for repairs, under the language employed in the lien. The lien says that the debt is for work and materials ‘in and about the erection, construction, improvement and fitting up of the buildings for the use for which they were constructedand it is contended that the lien being for ‘ erection,’ and the evidence being that the materials, &c., were for ‘repairs,’ the claim must be disallowed: Rynd v. Bakewell, 6 Norris 640. Taking the whole lien together, it clearly appears therein that the articles furnished, including the furnace, were additional and supplemental to a works already erected, equipped and in operation. We may, therefore, fairly hold that the words ‘improvement and fitting up’ avoid the objection-made.”
    The court dismissed the exceptions to the report of the auditor, and made a decree that the mechanics’ lien, filed by the Atlas Works, was good to the extent of $2202.27, and directed distribution to be made accordingly. From this decree this appeal was taken.

      Barton & Sons, for appellants.
    The Blair Steel Works were erected in 1872 for the purpose of manufacturing steel by a patent process invented by Thomas S. Blair, and put in operation.
    The furnaces.first were known as “Frank” furnaces. In the spring of 1875, Mr. Blair concluded to put in a new furnace, known as the “ Sieman” furnace, and made a contract with the Atlas Works to furnish the castings and iron material for it, which was done, and the furnace put in full and successful operation on April 21st 1875, as found by the auditor in both reports. This furnace was an addition to the furnace already in operation. It was no part of the original building and construction. It was not a repair, but a new furnace. The plaintiff has filed its lien as for erection and construction.
    Although the word improvement is used in the claim, yet take the whole sentence, and it is a claim - filed for iron castings and machinery used in the original construction of the works for the purpose originally designed, viz.: the manufacture of iron and steel.
    The case, therefore, falls within the ruling of Rynd v. Bakewell, 6 Norris 460.

      Robb & McClung and J. Ludewig Koethen, for appellees, the Atlas Works.
    A building erected for a manufacturing purpose, and all machinery, which is necessary to constitute it, and without which it would not be a- manufactory at all, passes with the freehold : Voorhis v. Freeman, 2 W. & S. 116. Lathes, vises, &c., no matter how fastened, are part of the realty: Christian v. Dripps, 4 Casey 271. Rolls of an iron mill are part of machinery, whether in place or detached: Yoorhis v. Freeman, supra. Also, the floor of a bar or iron mill not fastened, but kept down by their own weight: Pyle v. .Pennock, 2 W. & S. 390. Everything put into and forming part of a building or machinery for manufacturing purposes, is part of the freehold: Hoskin v. Woodward, 9 Wright 42; Hill v. Sewald, 3 P. F. Smith 271.
    October 27th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The learned judge was of opinion that, “taking the whole lien together, it clearly appears therein that the articles furnished, including the furnace, were additional and supplemental to a works already erected, equipped and in operationand therefore held that the words “ improvements and fitting up” were equivalent to the words, “ repairs, alterations or additions.” Upon the correctness of this view depends the validity of the lien; for, in fact, the claim is for a new furnace and other articles, furnished for an extensive works, with furnaces, machinery and appliances for the manufacture of steel, which had previously been operated. The claimant, not contending that the lien is valid, unless its language fairly implies that it is for repairs or additions, is content with resting on the briefly expressed conclusion of the court below, as a reply to the objection that that conclusion is unwarrantable from anything in the lien.

Wherein the claim differs from one filed for material furnished in the erection of a building, or in what part it appears that the articles were additional to a works already erected and in operation, we are unable to discover. Such appearance is not visible in the statement of the names of the parties, nor in the description of the buildings and grounds, nor in the bill of particulars. Every claim must set forth “the nature'or kind of the work done, and the kind and amount of materials furnished and here should be shown whether the work and materials were for erection of a new building, or for repairs of an old one, especially when not stated anywhere else that it is for repairs. This claim, in very words, is for work done and materials furnished “ in and about the erection, construction and improvement and fitting up of the said buildings for the use for which they were constructed.” It is a strange rendering to say, the work and materials were for repairs of said buildings and putting an additional furnace therein; and yet unless such interpretation be given, the lien falls. Whether the claim be for original construction or repairs, the words “ improvement and fitting up” are unnecessary, and where, as here, they have direct relation to the erection of the buildings, they neither add nor detract meaning, nor would they if they related to repairs and additions. An old building may be fitted up for its intended use, and so may a new one : the former when being repaired, the latter when being completed. “ Improvement” is not used in the statutes providing for mechanics’ liens, to include anything in or about the erection, alteration or repairs of houses or other buildings ; it is found in some special acts concerning mining and oil-wells and storage and refining of oil. The lien has been extended, by name, to plumbing, gas-fitting and furnishing, erection of grates and furnaces, paper-hanging; and for steam-engines, fixtures or machinery, in and about mills of any kind, and iron or coal works. Not only each of those things for which a lien has been given may properly be called an improvement, but so may everything else which adds to the beauty and usefulness of the premises. The word has no place in the statutes until it is the intention to extend the lien to embrace all work and materials done and furnished for addition or melioration of a tract of land. Nor can it be properly used to signify any particular thing for which a lien may be filed. It points to no specific thing, except with the context; and where other words show that the claim is for erection or for repairs that will relate to them.

“When a special security and remedy are given to a favored class of creditors, it is not asking too much to require them to conform with reasonable accuracy to the provisions of the law designed for their benefit. If this is done, unnecessary complications, involving disinterested parties in litigation and imperilling the rights of creditors and others, may be avoidedSterrett, J., Ely v.Wren, 9 Norris 148. The lien for erection, by statute, shall be preferred to every other which attached to the building or ground subsequently to the commencement of the building; the lien for repairs or additions attaches from their commencement. It conceras owners and others that the nature of the claim appear on its face that they may know when the lien attached.

The principle which ruled Rynd v. Bakewell, 6 Norris 460, applies in this case, and the first and fourth assignments must be sustained.

Decree reversed, and it is considered and decreed that the fund be appropriated to the judgment in favor of Thomas S. Blair and wife. The costs of this appeal to be paid by appellee.