author: Agnew J.

text:
    Zeigler, Baker & Co.’s Appeal. Borlin’s Appeal.
    1. Thomas bought by articles from Gress, paid some purchase-money, went into possession and built; Gress recovered judgment for the unpaid purchase-money, and afterwards conveyed the legal title. Held, in distribution of proceeds of sale upon the judgment, that it was to be preferred to a mechanic’s lien entered for a claim, whose items antedated the judgment.
    2. By a sale on a.judgment for purchase-money, the whole estate legal and equitable passes to the sheriff's vendee and the vendor takes his pur chase-money out of the proceeds before all others, without regard to the date of his judgment.
    3. The judgment of Gress fastened upon the legal estate the instant he conveyed to Thomas.
    4. Any other creditor selling the equitable interest, would sell subject to the vendor’s purchase-money by virtue of his retained legal title.
    ' 5. Had the vendor sold before delivery of the deed, he would have sold the whole estate.
    6. Notice of the deed in this case was immaterial.
    7. Canon v. Campbell, 10 Casey 309; Horbach v. Riley, 7 Barr 81; Love v. Jones, 4 Watts 465; Vierheller’s Appeal, 12 Harris 105; Waters’s Appeal, 11 Casey 523; remarked on.
    October 25th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeals from the Common Pleas of Westmoreland county: Nos, 177 and 178 to October and November Term 1871.
    These were appeals from the decree of the Court of Common Pleas, distributing money arising from sheriff’s sale of real estate of William M. Thomas, and were taken by Zeigler, Baker & Co., and by James Borlin, their assignee in bankruptcy.
    William M. Thomas, having in September 1867, entered into articles of agreement with John Gress, Jr., for the purchase of a lot of land for the sum of $185, of which he then paid $20, went into possession of the lot and built a house thereon, in the erection of which he became indebted to Zeigler, Baker & Co., for material furnished.
    Gress took from Thomas a judgment note for the balance of the purchase-money, which he entered on the 24th of March 1869, and a few days thereafter delivered to Thomas a deed for the lot, which was not recorded.
    On the 22d April 1869, Zeigler, Baker & Co. entered a mechanic’s lien for the material referred to, which was furnished from the 24th October to the 19th November 1868, and on the 27th December 1869,. obtained judgment thereon for $68.72.
    Zeigler, Baker & Co. having been afterwards declared bankrupts, James Borlin was appointed their assignee.
    On the 30th January 1870, the house and lot of Thomas were sold by the sheriff, under an execution issued on the judgment of Gress, and the proceeds brought into court for distribution.
    The auditor to whom the distribution of the fund in court was referred, awarded it, after deducting costs, &c., to the judgment of John Gress, Jr. Exceptions to the report of the auditor were filed on behalf of Zeigler, Baker & Co., and Borlin, the assignee.
    The Court of Common Pleas dismissed the exceptions and confirmed the report of the auditor.
    Zeigler, Baker & Co. and James Borlin, their assignee, appealed, and assigned for error the decree of the court confirming the report of the auditor.

      H. P. Laird and Stewart & Clarke, for appellants,
    referred to Purdon 710, pl. 11; Baker v. Dewey 1 B. & C. 703 (8 E. C. L. R.) Claason’s Appeal, 10 Harris 359; Hill v. Epley, 7 Casey 331.

      John Latta, for appellee,
    referred to Stoner v. Neff, 14 Wright 258, Waters’s Appeal, 11 Casey 523.
   The opinion of the court was delivered October 30th 1871, by

Agnew J.

The appellants rest their claim to the priority of their mechanic’s lien over the judgment of John Gress, the vendor of William M. Thomas, the judgment debtor, on the ground that Gress having conveyed the legal title to Thomas a week or ten days after the entry of Gress’s judgment for the purchase-money without taking a new security, the lien of Gress for the purchase-money is gone, and the record liens must be paid in their order of time. But to reach this result, the argument must deny the well-known effect of a judgment for purchase-money, and a sale of real estate by the vendor under it, as in this case. When the vendor sells for purchase-money, the whole estate, legal as well as equitable, passes to the purchaser at sheriff’s sale, and the vendor takes Ms purchase-money out of the proceeds of sale before all others, no matter in what order of time his judgment may stand on the record. This doctrine, declared in Love v. Jones, 4 Watts 465, was partially unsettled by Wilson v. Stokes, 10 Watts 434, but was returned to in Horbach v. Riley, 7 Barr 81, and reaffirmed in Vierheller’s Appeal, 12 Harris 105; and Canon v. Campbell, 10 Casey 309. In this case, the deed made by the vendor to the vendee after taking the judgment for purchase-money was not recorded. As the case stood apparently, the sale being by the vendor, he sold the whole estate therefor, his own as well as his vendee’s, and he would be entitled to the purchase-money out of the sale. But the legal title being vested in fact by the deed in the vendee, still the whole estate was sold and the vendor should have his purchase-money, unless met by some unbending rule of law to wrest it from his grasp. It is thought that this rule is found in the decisions, that when a vendor delivers his deed without taking a judgment upon the record on the same day, or a mortgage, his lien is gone. If in this case the vendor had had no judgment for his purchase-money, this rule would have barred him. But having a judgment already, the effect of the delivery of the deed was to add to its grasp the legal title, in which the previous equitable title of the vendee became merged. In Waters’s Appeal, 11 Casey 524, Judge Woodward says: “It has been many times decided in Pennsylvania, that a judgment against the equitable estate which a vendee holds under articles of agreement for the sale and purchase of land, attaches to and binds the legal estate the instant it vests in the vendee.” For this he cites numerous cases. In that case it was argued, as here, that the vendor’s lien was gone because he had made a deed to the vendee two days after the entry of a judgment for the purchase-money, but the argument was answered by Justice Woodward by the principle just stated, and he says: “Now, how is Waters to be excluded? Not on the ground that Ms judgment was entered against only the equitable estate of Spencer, for, as we have seen, judgments so entered do attach to the legal estate as soon as it unites with the equitable ; and a vendor’s judgment is as much within the rule as a judgment of a third party. Vendors are usually regarded as the most meritorious creditors, and it would be refining against reason so to apply the rule as to protect other creditors, and cut out vendors.” TMs merit, I may add, has been recognised in various laws, of which I may instance the Exemption Law of 1849, and the law as to mortgages. In the latter instance the lien of the vendor is preserved for sixty days without any recorded deed to give notice of it. In the present case, therefore, the judgment of Gress for the purchase-money fastened upon the legal estate the instant he conveyed to Thomas his vendee. The equitable and legal titles united and merged, and Gress’s security expanded with the enlargement of his vendee’s estate. What harm was done to the mechanics’ lien creditors ? They had a lien only on Thomas’s equitable estate when Gress entered his judgment. Had they, or any other creditor, sold the equitable interest before the legal title was added, they would have sold subject to the vendor’s purchase-money, by virtue of his retained legal title, and the bid at the sheriff’s sale would have been diminished to the same extent, and the vendor could have taken nothing under his judgment. Vierheller’s Appeal, 12 Harris 105. Had the vendor himself sold before the delivery of the deed, he would on the contrary have passed the whole estate by his sale; but then the bid at the sheriff’s sale would have been increased correspondingly, and he would have taken his purchase money out of the advanced bid. Thus the adding of the deed to the vendee’s interest did the appellants neither good nor harm, and certainly ought not to work an injury to the vendor. Stoner v. Neff, 14 Wright 258. It left the parties just where they were; for the legal title being sold by the vendor in either event, it was in the power of the appellants to make it bring a full price, by bidding at the sale, and thus to protect all, the interest they ever had under their mechanics’ claim. Notice of the deed was, therefore, immaterial, the sale being on the vendor’s execution. Now, on what proper principle could the vendor take a second judgment for the same debt ? The debt merged in the judgment, and the vendee could not be sued again. He was not bound to give two judgments for the same thing, nor was he bound to add a mortgage to the judgment, unless his covenant obliged him. He, as well as his vendor, could claim protection of the principle, that the judgment of the vendor opened to receive the legal estate when the equitable merged in it. Upon the whole, we perceive no error in the record, and the decree of the Court of Common Pleas is affirmed, with costs to be paid by the appellants.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Smith & Fleek’s Appeal.
    1. Cutting down timber to the injury of the inheritance, being waste may be restrained in equity.
    2. Smith by a paper signed only by him, agreed to sell to Raydure “ all that piece of land sold by Rose to Smith, Raydure is to have the refusal ten days from date.” Raydure gave verbal notice that he would take the land. Held, that the contract was not within the Statute of Frauds, and specific performance could be enforced.
    3. It is sufficient that a contract be signed by the vendor, and it is not necessary that notice of election to take should be in writing.
    4. The option did not render the contract devoid of mutuality, so as to prevent a decree for specific execution.
    5. The description of the subject of the contract was sufficiently certain, it might be applied to the land by parol evidence.

      6. Time was of essence of the contract as related to the option, but not as to the performance.
    7. The land was held by Smith under articles with Rose; Smith agreed that the deed should be made directly to Raydure, on paying the purchase-money due Rose. Rose so made the deed, Smith could be restrained from cutting timber on the land.
    8. Under a bill by Raydure to restrain cutting timber, the court might award' an issue to ascertain the facts.'
    October 20th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Crawford county: In Equity: No. 169, to October and November Term 1870.
    The bill in this ease was filed July 14th 1868, by Stafford Raydure, D. C. Raydure and W. S. Raydure, against Thomas F. Smith and Porter Fleek. The plaintiffs averred—
    2 and 8. They entered into the following contract with the defendants:—
    “Little Cooley, May 6th 1868.
    “For and in consideration of Five Dollars, lawful money, paid this day, we agree to sell to S. Raydure and Sons, the Rose pine tract of land for the sum of .Six Thousand Dollars, viz.: Four thousand to be paid at the time deed is made to said Raydure, and Two thousand in one year. Said land is all that piece bought of Rose by Thomas Smith and Porter Fleek.
    “ Said Raydure is to have the refusal ten days from date.
    “ Porter Fleek,
    “ Thomas F. Smith.”
    4, 5 and 6. The plaintiffs on the 12th of May informed the defendants of their intention to take the land on the terms of the contract; the defendants informed the plaintiffs that they would meet the plaintiffs at the office of Mr. Rose, Meadville, on the 18th of May, and receive the purchase-money under the articles, and on the 6th and 12th of May, agreed that Rose should make the deed directly to the plaintiffs, Rose to receive from the plaintiffs what should be due him by the defendants.
    7 and 8. The plaintiffs on 18th were at Meadville, the defendants not being present, and paid the balance due him from defendants to Rose, w'ho executed to the plaintiffs a deed for the land, paid the balance of the $4000 into the bank at Meadville, forwarded a certificate of deposit to the defendants, and also a bond for the unpaid $2000.
    9, 10 and 11. The plaintiffs took possession of the land and began to cut timber, about a week afterwards the defendants interfered with the plaintiffs; they and defendants made complaints against each other fo'r unlawfully cutting timber; both complaints being then pending in the Quarter Sessions.

      12. The defendants were still cutting timber on the premises, in violation of plaintiffs’ rights. The prayers were that the defendants might be restrained from entering on the premises, interfering with the timber or cutting and removing it, and for general relief. Attached to the bill as an exhibit, was a notice dated May 18th 1868, from plaintiffs to defendants, saying that up to 3 o’clock of that day, they had waited for the defendants at Meadville; that they had paid to Mr. Rose the money due to him and received his deed, had deposited the balance due defendants in the Meadville Bank, and enclosed in their letter a bond for $>2000.
    The defendants demurred to the bill, because it did not exhibit a case entitling the plaintiffs to relief; the subject was not within the jurisdiction of a court of equity; the agreement of May 6th having been varied by parol was within the Statute of Frauds, plaintiffs derived no title to the land; and the plaintiffs had a complete remedy at law.
    The court (Johnson, P. J.) overruled the demurrer and granted a preliminary injunction.
    The defendants then filed an answer; in which they averred that the plaintiffs did not on the 12th of May 1868, “ signify in writing” their intention to take the land, but that one of them informed the defendants on that day, that they would take the land, and notified the defendants to come to Meadville on the 18th of May, and they would make arrangments about the land; they denied that they told the plaintiffs that they would meet them and Mr. Rose in Meadville, on the 18th of May, and receive pay for the land; or that they agreed that Mr. Rose should make the deed to the plaintiffs, or that they should pay to Mr. Rose the balance due to him; that in accordance with a previous arrangement, Fleek, one of the defendants, came to Meadville, and at 11 o’clock on that day gave to the cashier of the Meadville Bank a notice to be given to the plaintiffs, that the time for their acceptance of the land had expired on the 16th May, and that the defendants were “ discharged from any arrangement concerning the sale of the said land in consequence of non-compliance ” by the plaintiffs; and (in their belief) that the plaintiffs received the notice at 2| o’clock p. m. of that day; that the letter of plaintiffs enclosing the certificate of deposit and the bond, reached defendants’ post-office, a day or two afterwards, and that Smith, one of defendants, refused to receive it from the postmaster and the letter with its enclosures was returned to the plaintiffs; they denied the right of Rose to receive balance of the purchase-money from the plaintiffs, he having received no order from the defendants to do so; and the balance not being due until June 18th; they averred that the agreement between them and the plaintiffs was that unless the purchase-money should be paid before ten days from May 6th, the agreement of that date was to be null and void.
    An examiner was appointed, who heard testimony, and on the coming in of his report the case was heard on bill, answer and testimony.
    After the hearing the court directed an issue to ascertain the facts in the following questions:—
    1. Whether the defendants agreed with the plaintiffs on the 12th of May 1868, to meet them at Meadville on the 18th to receive payment on the contract and otherwise consummate it ?
    2. Whether either on the 6th or 12th of May, the defendants agreed that the plaintiffs might pay Eose the balance due him, and that the deed should be made from Eose directly to the plaintiffs?
    3. Whether the plaintiffs have performed their part of the contract or tendered performance ?
    On the trial of the issue the finding was for the plaintiffs on all the points.
    The court then decreed that the preliminary injunction should be made perpetual, and that “ the defendants be restrained from cutting and removing any timber upon and from the premises described in the plaintiff’s bill, or in any way interfering with their possession.”
    The defendants appealed to the Supreme Court.
    They assigned for error:—
    1. Overruling the demurrer and awarding a preliminary injunction.
    2. Directing the issue.
    3. Making the injunction perpetual.

      T. R. Kennedy and J). DerricJcson (with whom was W. R. Bole), for appellants.
    There must be a clear necessity in the light of inability to compensate, to authorize an injunction: N. Boston Coal Co. v. Pottsville Water Co., 4 P. F. Smith 164; Mammoth Vein Coal Co.’s Appeal, Id. 183. The right of plaintiffs must be admitted or established at law before granting an injunction: Rhea v. Forsyth, 1 Wright 503; White v. Booth, 7 Vermont 171; Shields v. Arndt, 3 Green’s Ch. 234; Caldwell v. Knott, 10 Yerg. 209; Hart v. Albany, 3 Paige 313; Reid v. Gifford, 6 Johns. Ch. Rep. 19; Biddle v. Ash, 2 Ash. 211; N. Penna. Coal Co. v. Snowden, 6 Wright 488. An injunction to stay waste will not be granted against one in possession claiming by adverse title: Lansing v. North, 7 Johns. Ch. 164; Smith v. Collyer, 8 Vesey 89; Pillsworth v. Hopton, 6 Id. 51; Stone v. Mann, 4 Johns. Ch. 21; Bogey v. Shute, 4 Johns. Eq. 174; Stewart v. Chew, 3 Bland 440. The contract here being optional, specific performance will not be decreed: Parkhurst v. Van Cortland, 1 Johns. Ch. Rep. 281; Wilson v. Clarke, 1 W. & S. 554; Bodine v. Glading, 5 Harris 53. The contract, if not wholly in writing, is within the Statute of Frauds; here the contract was altered by parol: Soles v. Hickman, 8 Harris 180; Parkhurst v. Van Cortland, 1 Johns. Ch. R. 173; Seitzinger v. Ridgway, 4 W. & S. 472; Parrish v. Koons, 1 Pars. 79; Patton v. Develin, 2 Philada. Rep. 123; Holland v. Eyer, 2 Simons & Stuart 194. A contract may be defeated for fraud or mistake, but cannot, after varying it by parol, have a decree for specific performance: Jordan v. Sawkins, 3 Bro. 388, Rich v. Jackson, 4 Id. 514; Clinan v. Cook, 1 Schoales & Lefroy 92; Woollam v. Hearn, 7 Ves. 211; Higginson v. Clowes, 15 Id. 516; Dwight v. Pomeroy, 17 Mass. 303; Osborn v. Phelps, 19 Conn. 63 ; Att’y-Gen. v. Sitwell, 1 Younge & Coll. 559. When writing is necessary, the contract cannot be varied by parol; Espy v. Anderson, 2 Harris 308; Cravener v. Bowser, 4 Barr 259.

      S. N. Pettis (with whom was M. P. Davis), for appellee.—
    Equity had jurisdiction: Act of June 13th 1836, § 13, Pamph. L. 789, Purd. 401, pl. 3; Hunter’s Appeal, 4 Wright 194 ; Bancord v. Kuhn, 12 Casey 383; Denny v. Brunson, 5 Id. 382; Brightly’s Eq. § 2, 82; Stockdale v. Ullery, 1 Wright 487; Wesley Church v. Moore, 10 Barr 273; Kirkpatrick v. McDonald, 1 Jones 387; Yard v. Patton, 1 Harris 272; Lyon’s Appeal, 11 P. F. Smith 5; Big Mountain Imp. Co.’s Appeal, 4 P. F. Smith 361. The court could direct the issue : Baker v. Williamson, 2 Barr 116 ; Dale v. Roosevelt, 6 Johns. Ch. 257; McCallum v. Germantown Water Co., 4 P. F. Smith 40; Ward v. Hill, 4 Gray 595; Tappan v. Evans, 11 N. H. 311; Black v. Lamb, 1 Beasley (N. J.), Ch. 113; Bassel v. Johnson, 2 Green Ch. R. 417; 2 Daniels’ Ch. P. 1086. The deed of the land was properly made by Rose to the Raydures: Myers v. Myers, 1 Casey 100. Actual occupancy was not necessary to perfect Raydure’s title, for it was uncultivated land: Harlan v. Harlan, 3 Harris 507; Wright v. Guier, 9 Watts 172; Elliott v. Powell, 10 Id. 453; Dech’s Appeal, 7 P. F. Smith 467; Hilliard on Injunction 294; Livingston v. Penn. Iron Co., 9 Wendell 511. As to jurisdiction they cited 3 Daniels’ Ch. Pr. 186, 188, 189, 2 Eden on Injunction 215, 216 ; Willard’s Eq. 369. The court will enjoin removal of the timber : Hilliard on Injunction 290 ; Clark’s Appeal, 12 P. F. Smith 447. The contract giving an option of ten days, the plaintiffs were bound when they gave notice of their election : Corson v. Mulvany, 13 Wright 88. A contract is sustained although not signed by the vendee if he accepts : Tallmann v. Franklin, 5 Kernan 584; Pickey v. Hagadon, 1 Duer 89. As to Statute of Frauds in relation to the writing being signed but by vendor : Lowry v. Mehaffy, 10 Watts 387 : 1 Sugden on Vendors 84, 85, 87; Owenu. Davis, 1 Ves. Sr. 82; Coleman v. Upcot, 5 Viner Ab. 527; Coles v. Trecothick, 9 Ves. 234; Blagden
      v. Bradbear, 12 Id. 466; Buckhouse v. Crosby, 2 Eq. Cases Ab. 32, 44; Shofstal v. Adams, 2 Grant 212; Simpson v. Breckenridge, 8 Casey 287. In relation to description of land: Ferguson v. Staver, 9 Casey 411. The time of performance can be enlarged by parol: Erwin v. Saunders, 1 Cowan 250; Dearborn v. Cross, 7 Id. 49; Davis v. Talcott, 14 Barb. 611; Flynn v. McKean, 6 Duer 203. The contract may be varied by parol: Brown on Frauds, §§ 422, 423; 1 Greenl. Ey. §§ 304, 424, 425 ; Adams’s Eq., § 88, p. 252; Myers v. Myers, 1 Casey 100. “ Though a contract for lands be verbal, yet if fair, and the price paid and the vendee has received the title from a third person in whom it vested, chancery will not interfere to relieve"^ vendor Fletcher v. Fortunatus, 2 A. K. Marshall 546.
    An incomplete written contract may be completed by parol: Musselman v. Stoner, 7 Casey 270.
   The opinion of the Court was delivered, January 9th 1872, by

Williams, J.

This was a bill for an injunction to restrain the defendants from cutting timber on a tract of land which they had sold the plaintiffs. The bill alleged that the land had been conveyed to them by the holder of the legal title, in pursuance of the contract of sale, and that they had taken possession of it prior to the commission of the acts complained of. Upon the filing of the bill, .the court awarded a preliminary injunction, which was made perpetual on final hearing. The defendants have appealed from the decree, and ask its reversal on two grounds:—

1st. That the complainants’ case is not within the equitable jurisdiction of the court, but their remedy, if any, is by an action at law.

2d. That the contract under which they claim title is within the Statute of Frauds, and equity will not enforce its specific execution.

These questions will be considered in their order. Is, then, the plaintiffs’ cause of complaint within the equitable jurisdiction of the court ? Cutting down timber to the prejudice of the inheritance is undoubtedly waste, and may be restrained under the equity power conferred on the courts, by the Acts of the 16th June 1836, and 14th February 1857, for the “prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.” It was so decided in Denny v. Brunson, 5 Casey 382, where the lessee of a tenant at will, upon a bill filed by the owner, was restrained by injunction from cutting down timber and ornamental trees to the prejudice of the owner’s reversionary interest. It cannot be doubted that the complainants’ case is within the chancery jurisdiction of the court if they had such right or title to the land as would enable them to invoke its exercise for the prevention of the acts complained of. Whether they had such title, or not, is the main question presented by the record. If the contract, on which their title depends, is within the Statute of Frauds, they had no right to the remedy invoked, and’ their bill should have been dismissed. But if the contract is not within the statute, and equity would enforce its specific execution, they were clearly entitled to the injunction prayed for. The defendants insist that the contract is within the statute, because it was not signed by the plaintiffs, and because the notice of their election to take the land, under the option contained in the contract, was not given in writing. But the statute, while it requires the contract to be in writing, does not require it to be signed by both parties. It is sufficient if it be signed by the vendor — the party to be charged — if the vendee has accepted it: Lowry v. Mehaffy, 10 Watts 387; McFarson’s Appeal, 1 Jones 503; Shofstall v. Adams, 2 Grant 209; Simpson v. Breckenridge, 8 Casey 287. Nor was it necessary that notice of the plaintiffs’ election to take the land, under the option given in the contract, should be in writing. By the express terms of the contract the defendants agreed to sell the land to the plaintiffs for $6000, the plaintiffs “ to have the refusal ten days from date.” It is by no means certain that the contract would not have been binding on the defendants if the plaintiffs had given no notice whatever of their election to take the land in accordance with its terms. If it would have been binding on the plaintiffs if they had remained silent, apd had given no notice of their refusal, why should it not be binding on the defendants? But whether binding on them without notice of the plaintiffs’ election or not, there is nothing in the terms of the contract or the provisions of the statute which requires that the notice should be in writing. The verbal notice given by the plaintiffs was sufficient, and their election to take the land, like the happening of any other contingency on which performance of the agreement rests, rendered the contract as absolute and binding as if no option had been given to the plaintiffs. Nor is it so devoid of mutuality, on account of the option, as to prevent a court of equity from decreeing its specific execution. This question is so satisfactorily discussed in Corson v. Mulvany, 13 Wright 88, where the agreement for the purchase of the land was at the option of the vendee, that we need do no more than refer to the opinion without repeating or attempting to supplement the argument. Equally unfounded is the objection that the contract is incomplete in its terms. It sets out the parties and the consideration, and sufficiently describes the subject-matter— said land is all that piece bought of Rose by Thomas Smith and Porter Fleek” — oertum est quod certum reddipotest. If the subject of the contract is described, parol evidence is admissible to apply the description to the land: Ferguson v. Staver, 9 Casey 411. But it is further objected that the plaintiffs are not entitled to specific execution of the contract, because they did not tender performance within the time limited by the agreement. It is a sufficient answer to the objection that by the terms of the contract no time is fixed for its performance. The agreement provides that four thousand dollars of the purchase-money shall be paid at the time the deed is made, and two thousand in one year. But no time is fixed for the making of the deed, and therefore the law implies that it was to be made within a reasonable time. Can there be a doubt that if the defendants had tendered the plaintiffs a deed within a reasonable time after notice of their election, they would have been bound to accept it, and pay the purchase-money in accordance with the terms of the agreement, though more than ten days had elapsed from its date ? If so, is it not equally clear that they would have been bound to make the plaintiffs a deed on tender of performance of the contract on their part? It is evident that time was not intended to be of the essence of the contract as respects its performance; it is only material as it respects the option given for its refusal, and, therefore, the plaintiffs were not bound to perform, or offer to perform it within ten days after its date, on pain of its forfeiture. Nor was tender of performance absolutely essential to the maintenance of a bill for the specific execution of the agreement by the defendants. It would be sufficient to aver the plaintiffs’ willingness and readiness to perform. It is clear that the plaintiffs would he entitled to a decree for the specific execution of the contract, if they had not obtained the legal title from Rose, and if they had filed a bill for the purpose, the court would have awarded an injunction, pendente Hie, restraining the defendants from cutting timber or committing other acts of waste to the prejudice of the estate, and made it perpetual on final hearing. But even if the parties were bound to perform the contract within ten days from its date it was competent for them to extend the time by a verbal agreement, and to fix such subsequent time for its performance as might suit their convenience. If then “ the defendants did agree with the plaintiffs, on the 12th of May 1868, to meet them in Meadville on the 18th of the same month, to receive payment on their contract with the plaintiffs, dated May 6th 1868, and otherwise consummate the trade specified in said contract; and did agree that the plaintiffs might pay to Peter Rose whatever balance was due from the defeAdants to him for the land in question, and that a deed should then be made directly by the said Rose to the plaintiffs for the land, and if the plaintiffs have performed or tendered performance of the contract and agreement between the parties,” as shown by the evidence, and as the jury have found, then the plaintiffs under their deed from Rose, have not only the legal title to the land, hut the equitable title of the defendants. Having then the whole title to the land, and having taken possession of it under their contract with the defendants, the plaintiffs were entitled to maintain their bill for an injunction to restrain the defendants from committing the acts of waste complained of.

Nor have the defendants any reason to complain that the court, instead of dismissing the plaintiffs’ bill and compelling them to bring ejectment, awarded an issue for the trial of the facts in dispute between the parties. Substantially the same questions were submitted to the finding of the jury in the issue directed by the court as would have arisen on the trial of the ejectment. The burden of proof was on the plaintiffs, and the defendants were deprived of no right or advantage that they would have had in the trial of an ejectment. It is not alleged that the court committed any error in its rulings in the trial of the issue, or that the verdict of the jury is against the evidence. If, then, the plaintiffs have both the legal and equitable title to the land, under the facts found by the jury, why should not the decree restraining the defendants from cutting and removing the timber thereon be allowed to stand ?

Decree affirmed at the costs of the appellants.


author: Agnew, J.

text:
    Commonwealth versus Birdsall.
    1. The first count of an indictment charged the defendant with breaking and entering the storehouse of Stewart, with intent to steal his goods ; the second count, with stealing the goods (naming them) of Stewart. The defendant was found guilty generally and the court imposed a distinct sentence on each count. Both sentences were affirmed by the Supreme Court.
    2. Identity as to the acts in the two counts is not to be presumed; if the record showed the identity but one sentence could be sustained.
    3. Joinder of different offences in the same indictment; considered in this case and authorities cited.
    October 30th 1871.
    Before Thompson, C. J., Read, Asnew, Sharswood and Williams, JJ.
    Error to the Court of Quarter Sessions of Allegheny county: No. 219, to October and'November Term 1871.
    At fhe March Sessions 1868, an indictment containing two counts was found against James Birdsall; the first that he did feloniously break and enter the storehouse of Seth T. Stewart, “ with intent the goods and chattels of the said Seth T. Stewart, then and there being to steal,” &c.; the second, that “ on the day and year aforesaid,” he stole a large number of different articles, naming them in detail, “ the goods and chattels of Seth T. Stewart.” On the 5th of March 1868, the defendant was found guilty generally, and on the 1st of April sentenced on the first count, “ to restore the property stolen, &c., and undergo an imprisonment in Western Penitentiary, &e., for four years.” On the second count, “ to restore the property stolen, &e., and undergo an imprisonment in the Western Penitentiary, &c., for one year and six months,” &c.
    The defendant having obtained a writ of error assigned for error:—
    1. Sentencing him on the second count after having sentenced him on the first.
    2. A general verdict of guilty authorized a sentence only on the first count.

      A. G. Cochran (with whom was It. 8. Morrison), for plaintiff in error.
    Where a criminal act has been committed, every part of which may be alleged in a single count in an indictment, and-proved under it, the act cannot be split into several distinct crimes and a separate indictment sustained upon each. And wherever there has been a conviction for one part, it will operate as a bar to any subsequent proceedings as to the residue: State v. Benham, 7 Conn. R. 414. Burglary and larceny can both be included in a single count, when they are a part of the same act: Commonwealth v. Tuck, 20 Pickering R. 356; Commonwealth v. Hope, 22 Id. 1; 2 Russell on Crimes 40; Wharton’s Criminal Law 383; Rex v. Witnal, 1 Leach 102; Josslyn v. Commonwealth, 6 Metc. 236; Larned v. Commonwealth, 12 Id. 244.

      L. B. Dnffi, for Commonwealth.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

The indictment in this case contains two counts the first for wilfully and maliciously breaking and entering a storehouse or shop, with intent feloniously to steal, take and carry away goods and chattels. This count is framed upon the second section of the Act of 22d April 1863, Pamph. L. 531, and specifies no particular goods. The second count was for simple larceny, enumerating the goods in detail. The defendant was found guilty under both counts, and on the first was sentenced to pay a fine of six cents, and to imprisonment by separate and solitary confinement in the Western Penitentiary for four years ; and on the second was sentenced to pay a fine of six cents, and to imprisonment by separate and solitary confinement in the Western Penitentiary for one year and six months to be computed from and after the termination of the first sentence. It is alleged that the conviction and sentence under both counts are erroneous. But the very excellent argument for the plaintiff in error has failed to convince us. The authorities in support of the conviction are to be found collected in Mr. Wharton’s Am. C. L-> ed. 1868, §§ 415, 416, 417, 421. It cannot be objected in error (he says), that two or more offences of the same nature on which the same or a similar judgment may be given, are contained in different counts of the same indictment; nor can such objection be maintained either on demurrer or in arrest: § 415. In § 421, he says, where a prisoner is found guilty generally under an indictment containing two counts, neither of which is defective, it is no ground of objection to the verdict that it does not state upon which count it was found. In our own state the authorities are no less forcible. In The Commonwealth v. Gillespie, 7 S. & R. 469, where an indictment containing nine counts charged two distinct offences, and in two of the counts several defendants, Justice Duncan said, “ These several charges as laid in the indictment are different modes of laying the same offence. But if the offences were different, separate offences, it is no objection either on demurrer or in arrest of judgment, that separate offences of the same nature are joined against the same defendant. Even in case of a felony, though it be true that no more than one offence should regularly be charged in one indictment; and that the court would quash the indictment before plea, or if on the trial the court should think it might confound the prisoner, they may exercise a discretion in compelling the prosecutor to elect on which charge he will proceed, yet even in felonies, there is no objection to the insertion of several distinct offences of the same degree, though committed at different times, in the same indictment against the same offender; and it is no ground of demurrer or in arrest of judgment; and counts where offences are of the same nature, at common law and on a statute may be joined.” In Harman v. Commonwealth, 12 S. & R. 69, it was said, at the close of the opinion, that where two offences are charged in separate counts, if the defendant can make it appear that this mode of proceeding will embarrass his trial, the court can protect him by quashing or by compelling the prosecutor to elect.

The case of The Commonwealth v. Sylvester, Brightly’s Rep. 881, is directly in point. There this court, on an indictment removed from the Mayor’s Court of Philadelphia, containing two counts, one setting forth a statutory offence, and the other an offence at common law, and a conviction on both counts, held that there was no misjoinder and sentenced the defendant to pay a fine of $200, the statutory punishment, on the first count, and to pay a fine at common law on the second. Henwood v. Commonwealth, 2 P. F. Smith 424, is a recent case in which the subject of joinder and misjoinder is considered. There the defendants were convicted on the first and third counts of an indictment charging a larceny in the first, larceny as bailees in the second, and a conspiracy to defraud in the third count. In that case the conviction was sustained, this court remarking that neither the interests of justice nor the rights of the defendants are perilled by the joinder. The plea and the number of challenges are the same, and the punishment the same in kind, to wit, separate and solitary confinement at labor. The difference in the degree, that is between the maximum in one and the maximum in the other, it is settled, makes no difference.

It has been contended for the plaintiff in error that the larceny and the breaking and entering charged in the separate counts of this indictment were done at one and the same time, and therefore cannot be punished as separate offences. If this* had appeared in the record, the point would be well taken. But no presumption of identity exists. When, says Mr. Wharton, an indictment charges in one count a breaking and entering a building with intent to steal, and in another count a stealing in the same building on the same day, and the defendant is found guilty generally; the sentence, whether that which is proper for the burglary only, or for the burglary and larceny also, cannot be reversed on error because the record does not show whether one offence only or two were proved at the trial; and as this must be known by the judge who tried the cause, the sentence will be presumed to have been according to the law that was applicable to the facts proved : Am. C. L., ed. 1868, § 417. For this he cites two eases from 11 Metcalf 575 and 58l. There can be no doubt the Court of Quarter Sessions had good reasons for passing the sentence on each count of this indictment; and so the defendant or his counsel must have thought or he would not have suffered three years to run, and when the facts were likely to be forgotten, before taking out a writ of error.

The several sentences in this case are therefore affirmed.


text:
    Huston’s Appeal.
    1. S. had a judgment against A. and F. his surety. H. held the next lien against F., C. as surety for F. had paid a judgment against F. and himself. F.s land was sold and S. paid by the sheriff from the proceeds, he assigned his judgment to H. F. assigned to 0. his interest as surety of A. iu the judgment of S. Reid, that H. was entitled to be subrogated to the judgment of S. in preference to 0.
    2. Where one creditor has a judgment against principal and surety, and another has a judgment against the surety, if the creditor of the two collect his judgment from the surety the other creditor is entitled to his judgment.
    3. II. having a lien on the land of F., which was taken to pay S., would be entitled to be subrogated to the judgment of S.
    4. H. was entitled to subrogation so soon as F/s land paid the judgment of S., and F. could not assign his interest in the judgment to the prejudice of H.
    5. Harrisburg Bank v. German, 3 Barr 300, overruled; Gearhart v. Jordan, 1 Jones 325, Lloyd v. Galbraith, 8 Casey 103, Neff v. Miller, 8 Barr 347, recognised.

      October 30th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Indiana, county: In Equity: No. 224, to October and November Term 1871.
    On the 7th of May 1868, a judgment by confession upon warrant of attorney for $271.67, was entered in favor of Conrad Sylvis against Adam Titterington and F. Hollen, Hollen being surety for Titterington. On the 17th of October 1868, Harvey J. Huston and Samuel M. Huston obtained a judgment against Hollen for $2235.00. At the same time R. R. Clawson was endorser on a note for Hollen to the First National Bank of Indiana; the note being unpaid and protested, the bank recovered judgment against Clawson to April Term 1869, for about $1200, and his property was levied on in satisfaction of the judgment. On the 2d of April 1869, Hollen’s real estate was sold by the sheriff. Out of the proceeds of the judgment, the sheriff on the 17 th of April paid to Stewart & Clark, the attorneys of Sylvis, $302.79 in full of his judgment and interest.
    The Hustons received but $1425 of their judgment.
    Sylvis then gave them the following paper:—
    “I, Conrad Sylvis, do hereby acknowledge to have received from Stewart & Clark three hundred and two dollars and seventy-nine cents, the amount in full received by them, and as F. Hollen was the surety of A. Titterington in this judgment and entitled to subrogation in this case, and as Samuel M. and Harvey J. Huston are the first lien-creditors against the said Hollen, I do hereby transfer, assign and set over this judgment to them, without recourse to me, so that the same may stand for their use against Adam Titterington. April 22d 1869.
    “Conrad Sylvis.”
    - Hollen filed the following paper, with the records of the judgment Sylvis v. Titterington and Iiollens :—
    “For value received, I do hereby assign and transfer unto Richard R. Clawson all my right and interest in the above-stated judgment arising from the facts that I am bail in the same, and that the same was paid to the said plaintiff out of money ma.de out of my real estate, and direct that the said Richard R. Clawson be subrogated to my rights in the same, and whatever money the said Clawson may receive by virtue of the assignment is to be a credit on my note in the First National Bank of Indiana, Pa., upon which said Clawson is an endorser, and for which the said bank has procured a judgment against him, and issued an execution.
    “June 3d 1869,
    ■ F. Hollen.”

      ' On the 15th of June 1869, Clawson presented a petition to the court setting forth the foregoing facts so far as they related to his interest, and prayed the court to grant a rule on Titterington to show cause why Clawson should not be subrogated to the rights of Sylvis in the judgment, and be authorized to issue an execution against Titterington.
    On the 28th of September the Hustons were permitted to become parties to the proceedings under the rule, and on the same day they filed an answer setting forth the facts, showing their' interest, and prayed the court to dismiss Clawson’s application, and subrogate them to the rights of Sylvis in the judgment.
    On the 81st of July 1871, the court made the rule of Clawson absolute, and subrogated him to the judgment of Sylvis.
    Hustons- appealed and assigned the order of the court for error.

      Stewart & Clark, for appellants.
    If one creditor has a right to go upon two funds, and another creditor upon one only, having both the same debtor, the former creditor shall take payment from that fund to which he can resort exclusively: Story’s Eq., § 643; Brightly’s Eq. 183; Lloyd et al. v. Galbraith, 8 Casey 103; unless some supervening equity changes or modifies his rights: Story’s Eq., § 645. Where it appears that B. has an equitable claim upon A. for payment of the debt, then the principle applies with the same force as in cases where the double fund is owned by the same person: Brightly’s Eq., § 185; Story’s Eq., § 643-644; Sterling v. Brightbill, 5 Watts 229; Ebenhardt’s Appeal, 8 W. & S. 327; Neff v. Miller, 8 Barr 347; Gearhart v. Jordan, 1 Jones 325.

      H. W. Weir (with whom were A. W. Taylor and J. M. Coleman), for appellee.
    Hollen’s assignment followed by his application to the court on the 15th of June 1869, vested in him a full and complete right to subrogation which cannot be interfered with: Harrisburg Bank v. German, 3 Barr 300; Fink v. Mehaffy, 8 Watts 384; McGinnis’s Appeal, 4 Harris 445; Lloyd v. Galbraith, 8 Casey 103.
   The opinion of the. court was delivered, January 9th 1872, by

Williams, J.

It is clear that Hollen was entitled to be subrogated to the judgment of Sylvis as against Titterington for whom he was surety. And if his right of subrogation was merely a personal one, it passed to Clawson by the assignment, and the appellants were not entitled to be subrogated to the judgment as against him. But if they were entitled to subrogation as against Hollen, then they were entitled to subrogation as against Clawson, the appellee. The court below decided the question in favor of the appellee on the authority of The Harrisburg Bank v. German, 3 Barr 303. That case is in all respects like the present, and, if it is to be regarded as authority, is decisive of the appellee’s right to subrogation under the assignment. But the decision there, as it seems to us, was not only modified by the subsequent cases of Neff v. Miller, 8 Barr 347, and Gearhart v. Jordan, 1 Jones 325, but virtually overruled. The doctrine of these latter cases was subsequently recognised in Lloyd v. Galbraith, 8 Casey 103, where it was said, subrogation may indeed be admitted in some cases where the two funds belong to different persons, if the fund not taken be the one in equity primarily liable. Thus, where one creditor has a judgment against principal and surety, and another has a judgment against the surety alone; if in such a case, the creditor of the two collect his debt from the surety, the other creditor is entitled to the use of his judgment. It is true that the case of The Harrisburg Bank v. German was not directly overruled in either of the cases cited, and it differs from them in the fact that there the debtor had assigned his right of substitution to a judgment-creditor other than the one who claimed to be subrogated. But this, as it would seem, is an immaterial circumstance, for if the surety’s right of subrogation is a personal one, then his judgment-creditors are not entitled to be substituted to it on any principle of equity, and can only claim the right in virtue of an express assignment or transfer. If then the case of The Harrisburg Bank v. German has not been directly overruled, the doctrine of that cáse has been so far shaken by the subsequent decisions to which we have referred,.that the question arising here must be regarded as an open one, which we are at liberty to determine on principles of equity and justice, unembarrassed by the decision in that case. Why then were not the appellants entitled to be subrogated to the equitable rights of Hollen under the judgment for which he was surety ? The proceeds of his real estate on which their judgment was a lien, were appropriated to its payment, and as against their judgment-debtor, the appellants were clearly entitled to the proceeds thus applied, and would have received them but for the superior legal right of Sylvis under the prior lien of his judgment. It is true that the appellants’ right of subrogation depends on the equity of Hollen, hut, as between them, their equity is superior to his. If then the fund which they would otherwise have received, has been applied to the payment of the judgment for which he was surety, on what principle of equity or justice could he claim subrogation to the judgment which has taken the fund to the prejudice of the appellants, and he allowed to pocket its fruits, leaving their judgment against him unpaid ? If they had had no lien on the fund applied to the payment of the judgment, then they would have had no equity to be substituted to the rights of the surety under it. But having a lien on the fund, they would be entitled to subrogation as against Hollen on the plainest principles of equity, and to decree otherwise would shock all sense of justice.

Hollen’s right to subrogation as against the appellants can be maintained only on the ground that it is a personal right which he may dispose of as he sees fit. But it is not a mere personal right, if his judgment-creditors are entitled to be subrogated to it, as ruled in Neff v. Miller. If it is a mere personal right, which he may waive or assign at will, then his judgment-creditors could only claim it by assignment or transfer. But the cases cited clearly show that they are entitled to it on principles of equity and good conscience. And if so, the right to subrogation attached the instant that the proceeds of the sale of IioIIen’s real estate were applied to the payment of the judgment against him as surety, and could not be defeated or set aside by his subsequent assignment. His equity was subordinate to the equity of the appellants, and therefore the assignment of his right of subrogation to the appellee was of no avail as against the superior equity of the appellants. It is evident that the court below would have so decided if the question had been regarded as an open one.

Decree reversed at the costs of the appellee, and record remitted, with instructions to enter decree in favor of the appellants.

Agnew, J., dissented.


author: Read, J.

text:
    Howard versus The Allegheny Valley Railroad Co.
    1. Howard contracted to construct portions of a railroad; by the contract, the engineer was to make an estimate of the quality, character and value of the work; and in case of dispute, the engineer’s decision was to be final and conclusive. Held, that by these covenants both parties were debarred from a suit at law.
    2. A rule of court provided that upon a claim with affidavit being filed; items not denied by affidavit of- defence should be taken, as admitted. The plaintiff in covenant on his contract, filed a claim containing items for work, &e., also items for loss by having been stopped by the company, and copy of the contract. The rule did not apply to such case.
    3. O’Reilly v. Kerns, 2 P. F. Smith 214, Reynolds v. Caldwell, 1 Id. 298, adopted.
    October 30th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1870, No. 89.
    This was an action of covenant, brought February 22d 1869, by Robert Henderson, Robert Hosie and Cyrus Howard, partners, as 0. Howard & Co., to the use of C. Howard, against the Allegheny Valley Railroad Company.

      Rule 5, of the Court of Common Pleas of Allegheny county, provides: “ If the plaintiff should file with his precipe a specification of the items of his claim and statement of facts necessary to support it verified by affidavit, such items of the claim and material averments of fact as are not directly traversed or denied by the affidavit of defence, shall be taken as admitted.”
    The plaintiff Howard filed his claim under this rule for 110,262.57. He averred, by his affidavit, that on the 22d of December 1866, the plaintiffs made contracts under seal with the defendants to do certain work in constructing their railroad; copies of the contract being annexed to the affidavit; the plaintiffs did a part of the work and were ready to do the whole, but were improperly prevented by the defendants, by which the plaintiffs sustained great loss. Before October 5th 1868, the partnership of the plaintiffs was dissolved, and the affiant thereupon became entitled in severalty to the amount due on the contracts, his partners compromised their claims for the balance due the firm; in January 1869, the affiant and his partners entered into an agreement, and shortly afterwards he made a demand of the president of the defendants, accompanied by a bill of particulars of his claim. Copies of the agreement of the partners, the demand and the bill were annexed to the affidavit. Upon asking for an answer to his demand at the defendants’ office, he was told by their president that no further answer to his demand or decision would be given than that already given; and none other had been given; that on the 10th of February 1869, he executed a release, tendered it to the defendants’ treasurer, and demanded the balance due him, but the treasurer refused to pay him anything, and nothing had been paid; the affiant further averred “that no full, fair and honest final estimates were ever made” of the work done by the plaintiffs under the agreements; but such estimates as had been made “were grossly incorrect, and were founded either upon guess-work, without actual measurement, or upon such negligent and careless measurement as amounted in law to a fraud upon the rights of the plaintiffs.”
    The demand and agreement between the partners were as follows:—
    “ Pittsburg, February 4th 1869. “Mr. Wm. Phillips, President Allegheny Valley R. R.:
    “ SlR: — I hereby annex a copy of agreement between Robert Henderson, Robert Hosey and myself; also the claim of the late firm of C. Howard & Co. against your company, one-third of which claim is now owned by me under the terms of said agreement with Henderson and Hosey, the other two-thirds having been settled or compromised by you with the other partners, as therein set forth. If any items pi the said claims are disputed by your company, you will please furnish me, within forty-eight hours of this time, the decision, in writing, of the proper referee, stating the ground of his decision as to the respective items not admitted, and showing also the amount which he decides to be now due me, as the owner of one-third of the claim of C. Howard & Co. Yours truly,
    “ C. Howard.”
    “Agreement made this 14th day of January, A. d. 1869, between Cyrus Howard, Eobert Henderson and Eobert Hosey, as follows: — ■ «
    “ Whereas, said parties have been doing business as equal partners under the name of C. Howard & Co.,,in the execution of certain work with the Allegheny Yalley Eailroad Co., and they, the said Henderson and Hosey, having settled the interest due them from said company, leaving the interest of said Howard with said company unsettled, now the said Henderson and Hosey agree with said Howard that he may hold his interest against said company in severalty, without interference from us, so that he may sue for and collect his interest owing from said company, or settle or compromise the same, as he may think proper, without control from uá; and said Henderson and Hosey hereby agree to pay their part of any legal claims which may heretofore be presented and proven against said C. Howard & Co.
    “ Eobert Henderson, “Eobert Hosev.”
    The account contained a large number of items, many of them being for loss by reason of the plaintiffs having been prevented by defendants from going on with the work, and amounting in the ‘ aggregate to $14,085.
    The affiant’s claim was for one-third of the balance, $30,787.70, appearing on his bill of particulars.
    The contracts contained, amongst others stipulations that
    ’“ The line of the road and the gradients may be changed if the engineer shall consider it necessary or expedient; and for any considerable alteration affecting the value of the work, the advantage or disadvantage to the contractor will be estimated, and such deduction or addition made as the engineer may deem just and equitable; but no claim for an increase of prices on the part of the contractors will be allowed or considered, unless made in writing before the work on that part where such alteration has been made shall have been commenced. The engineer may also, on the conditions just recited, increase or diminish the length of any section, and otherwise modify the grades, during the progress of the work, for the purpose of equalizing the excavations and embankments.” * * *
    “ No charge shall be made by contractors for hindrances or delay from any cause, but it may entitle him to an extension of time allowed for completing tbe work, sufficient to compensate for the detention, to be determined by the chief engineer, provided immediate notice of the cause shall be given to the engineer in charge of the division, in writing.” * * *
    “ If at any time any contractor or person under him, shall have performed, or be in the act of performing any part of the work contrary to the specifications or directions given, the said engineer shall have full authority to order all further prosecution of such work to be stopped, which order the contractor, or any person employed under him, shall be bound to obey.” * * *
    “ On or about the first day of each month during the progress of this work, an estimate shall be made of the relative value of the work done, to be judged of by the associate engineer; and upon his certificate of the amount being presented to the treasurer of the railroad company, or such disbursing agent as the railroad company may appoint, eighty-five per cent, of the amount of said estimate shall be paid to the party of the first part, at such time and place as the treasurer or disbursing agent may designate; and when all the work embraced in this contract is completed, agreeably to the specifications, and in accordance with the directions and to the satisfaction and acceptance of the engineer, there shall be a final estimate made by the chief or associate engineer, of the quality, character and value of said work, agreeably to the terms of this agreement, when the balance appearing due to said party of the first part shall be paid to them upon their giving a release, under seal, to the said railroad company, from all claims or demands whatsoever against said second party, growing in any manner out of agreement.’’ * * *
    “ The said engineer may, at his discretion, for the failure to prosecute the work with adequate force, for non-compliance with his directions in regard to the manner of constructing it, or for any omission or neglect of the requirements of this agreément and specifications on the part of the party of the first part, declare this contract, or any portion or section embraced in it, forfeited; which declaration and forfeiture shall exonerate the said Allegheny Yalley Railroad Company from any and all obligations and liabilities arising under this contract, the same as if this agreement had never been made; and the reserved percentage of fifteen per cent, upon any work done by the party of the first part may be retained for ever by the said railroad company. And it is mutually agreed and distinctly understood, that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement, relative to or touching the same; and each and every of said parties do hereby waive any right of action, suit or suits, or other remedy in law or otherwise, by virtue of said covenants, so that the decision of said engineer shall, in the nature of an award, be final and conclusive on the rights and claims of said parties.”

      The affidavit of defence averred that the plaintiffs’ bill of particulars was incorrect and did not show the true balance ; that the greater part of the balance is made up of assumed losses and contingent and speculative damages; that the plaintiffs were not entitled under the contract to set up several items of losses and damages in the bill; that the defendants did not unnecessarily and improperly prevent the plaintiffs from work, the work was to be done under the supervision and control of the engineer (setting out the stipulations in the contracts as to alterations, &c.), that the engineer at the request of the plaintiffs estimated and allowed to the plaintiffs “a just compensation for all disadvantages, losses and expenses incurred by them; that a fair final estimate was made by the engineer for all work done under the contract, by which it appeared that $8845.88 was the balance due the plaintiffs; that Henderson and Hosie, two of the parties, on the 20th of October 1868, agreed and accepted as in full two-thirds of that sum, and delivered to the defendants a release of all claims by them against the company; that Howard was not entitled to $10,262.51 claimed by him; that the true amount due Howard is $2948.52 with interest from January 1st 1868, which the defendants were ready and willing to pay upon receiving Howard’s release.
    The case came on for trial, May 16th 1870, before Collier, J.
    The plaintiff gave in evidence parts of the claim filed as not being denied by the affidavit of defence; also the contracts. He then offered in evidence other parts of the claim relating principally to losses, alterations in work, &c. These were rejected and bills of exception sealed. The plaintiff then gave evidence of the work he had done; that he was stopped; of the character of the work that he would have had to do under the contracts ; the profit he would have made, &c. He also gave evidence for the purpose of showing that there had been no final estimate by the engineer.
    The defendants moved the court to direct a nonsuit. The motion was allowed, Judge Collier delivering the following opinion:—

      “ It appears by the terms of the agreements entered into by and between the plaintiffs and defendant, and which are put in evidence by the plaintiffs, that the parties to said agreements expressly waive all right of action and remedy at law in any dispute that may arise between them under their agreements, and mutually agree that the decision of the engineer shall be final and conclusive on the rights and claims of both parties; the plaintiffs are bound by the provisions and stipulations of their agreements, and having failed to prove that defendant prevented the submission of the matters in dispute to the decision of the engineer, they are estopped and precluded from a recovery at law, and cannot maintain this action.”
    The plaintiff took a writ of error and assigned for error,
    1. The rejection of his offers of evidence.
    2. Ordering a nonsuit.

      H. Burgwin, for plaintiffs in error.

      J. S. Morrison, for defendants in error,
    cited Harris v. Liggett, 1 W. & S. 301; Faunce v. Burke, 4 Harris 469; Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205; Reynolds v. Caldwell, 1 P. F. Smith 298; Lauman v. Young, 7 Casey 306; O’Reilly v. Kerns, 2 P. F. Smith 214.
   The opinion of the court was delivered, May 27th 1872, by

Read, J.

There are. two covenants in the articles of agreement, made the 18th day of December 1866, between the legal plaintiffs as partners as 0. Howard & Co., of the first part, and the Allegheny Yalley Railroad Company, copies of which are filed by the equitable plaintiff, and upon which this suit is brought, which, according to the uniform decisions of this court for the last thirty years, govern this case. After providing for monthly estimates by the associate engineer, and the payment of eighty-five per cent, of such monthly estimates, each article provides, “ and when all the work in this contract is completed, agreeably to the specifications, and in accordance with the directions, and to the satisfaction and acceptance of the engineer, there shall be a final estimate made by the chief or associate engineer of the quality, character and value of said work, agreeably to the terms of this agreement, w’hen the balance appearing due to said party of the first part, shall be paid to them upon their giving a release, under seal, to the said railroad company, from all claims or demands whatsoever against said second party, growing in any manner out of agreement.” And at the conclusion of each agreement is this further express covenant: “ And it is mutually agreed and distinctly understood, that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement, relative to or touching the same; and each and every of said parties do hereby waive any right of action, suit’ or suits or other remedy, in law or otherwise, by virtue of said covenants, so that the decision of the said engineer shall in the nature of an award be final and conclusive on the rights and claims of said parties.”

These two covenants, nearly verbatim, were passed upon by this court in Reynolds et al., Executors, v. Caldwell, 1 P. F. Smith 298, which was an action of covenant, and were held to be bind-^ ing upon the parties, and in O’Reilly v. Kerns, 2 Id. 214, the present Chief Justice said, p. 217, “ It is not necessary to cite authorities for what is so well settled as that where a railroad or canal company and its contractors, of in a contract between original and sub-contractors, * * it is agreed that to prevent disputes, the engineer of the work shall in all cases determine the amount or quality of the several kinds of work which are to be paid for under the contract, and decide every question which can or may arise relative to the execution of the contract on the part of the contractor, that his decision has been uniformly held to be final and conclusive.”

It would, therefore, appear that this suit cannot be maintained by all or any of the parties of the first part who are precluded by their own covenants.

By the articles of agreement, the work was to be finished on or before the 1st day of July 1867, and by the evidence of the plaintiff section 26 was completed in August, section 42 in September, and section 85 October 1867, and he charges interest on his claim from the 1st of September in that year. It appeared in the evidence that a final estimate was made of all the work done under these- contracts, showing a balance due the contractors of $8845,58, and that-, Robert Henderson and Robert Ilosie, two of them, on the 20th October 1868, received and accepted from defendant the sum of $5897.05, being the two-thirds of the above-mentioned balance of $8945.58, payable to them as mem-, bers of -the firm of 0. Howard & Co., and did thereupon execute and deliver to the defendant a release under seal, and acquittance in full of all demands whatever which they might then or thereafter have against defendant for or by reason of anything in said contract mentioned, or in anywise growing out of the same relative to the work done by said plaintiff, on sections numbered 22, 35 and 42 as aforesaid.

On the 5th October 1868, C. Howard notified the defendant that he claimed one-third of the whole amount due on said contract, both for work and damage; and on the 4th February 1849, wrote to the defendant, annexing a copy of an agreement dated the 14th January 1869, signed by Robert Henderson and Robert Ilosie, agreeing he may hold his interest of one-third against the company without interference from them, and also sending-the claim of C. Howard & Co., against the company, one-third of which claim is now owned by me (Howard), under the terms of said agreement. “ If any items of said claims are disputed by your company, you will please furnish me within forty-eight hours of this time the decision, in writing, of the proper referee, stating the ground of his decision as to the respective items not admitted, and showing also the amount which he decides to be now due me as the owner of one-third of the claim of C. Howard & Co.”

This suit was then commeneéd and affidavits and bill of particulars and copies of agreements filed. The bill of particulars is dated February 16th 1869, and ends with a balance due of $31,787.70, one-third of which is claimed by the equitable plaintiff — $10,595.23; being $1649.75 more than the whole final estimate upon which his two partners settled.

The papers filed with the affidavits of claim, and making a fundamental part of the equitable plaintiff’s case, show clearly that Rule 5 in page 9 of the Appendix, has no application to the present suit. It is an action of covenant on two articles of agreement,-which were filed and put .in evidence by the equitable plaintiff, containing the two covenants mentioned in the beginning, both of which have been entirely disregarded, both as to the final estimate and the decision of the chief engineer, and therefore the court were right in saying “that the parties to said agreements expressly waive all right of action and remedy at law, in any dispute that may arise between them under their agreements, and mutually agree that the decision of the engineer shall be final, and conclusive on the rights and claims of both parties; the plaintiffs are bound by the provisions of their agreements, and having failed to prove that defendant prevented the submission of the matters in dispute to the decision of the engineer, they are estopped and precluded from a recovery at law, and cannot maintain this action;” arid in entering judgment of compulsory nonsuit against the plaintiffs.

Judgment affirmed.

Agnew and Williams, JJ., dissented.


author: Sharswood, J.

text:
    Allegheny Insurance Co. versus Ransom et al.

    1. A vessel insured on a valued policy for one-third its value was wrecked and the underwriters paid as for a total loss. They were subrogated .to all the rights of the insured, for the purpose of indemnifying themselves.
    2. The insured claiming that they were tenants in common, sued the underwriters in assumpsit and in a special count alleged that the underwriters took possession of the wreck and converted it and thereby became liable to pay the insured their share of its value. Held, that the count was bad: such liability did not result from the facts.
    3. The underwriter’s agent, after examination of the wreck, determined that it was not worth the risk and expense of raising ; they did nothing, nor prevented the insured from raising the wreck. Held, that the underwriters not being bound to look after the interests of the insured and not having received anything from the wreck, were not liable to the insured for any part of its value.
    October 31st 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 193, to October and November Term 1870.
    This was an action of assumpsit, commenced March 14th 1866, by James Ransom and others against The Allegheny Insurance Company.
    The first count of the declaration was that Ransom, on the 22d of September 1859, procured from the defendants' a policy, by which they insured the steamer Indianola for one year for $3500, “by which policy said boat was valued at the sum of $12,500,’’that during the continuance of the policy the steamer was lost by an accident, of which loss the plaintiffs notified the defendants, and the defendants elected to take and did take possession of the steamer under the policy, and converted the wreck of the steamer to their own use; the wreck was of the value of $3500, and the defendants thereby became liable to pay the plaintiffs, “ who were the true and lawful owners of said wreck, a sum of money which bore the same proportion to the whole value of said wreck, which the uninsured portion bore to the agreed valuation,” and the defendants being liable, promised to pay.
    The declaration contained the common counts also. By the policy the insured bound himself in case of misfortune resulting from any peril insured against, to use every practicable effort for the safeguard and recovery of said steamboat, and if recovered, to cause the same forthwith to be repaired, and in case of his neglect to do so, the insurers might recover the boat and repair her for account of the insured, and the insurers to contribute to the cost in the proportion the sum insured bore to the agreed value of the boat; the assured should not abandon until it should be ascertained that the recovery and repair of the boat would be impracticable, nor sell the wreck without the consent of the company; the acts of either party in preserving, &c., shall not be considered a waiver of the abandonment. She was insured also by the Eureka Company for $5000, which that company compromised for $4400, and surrendered their interest in the wreck to the owners. The defendants paid the whole amount for which they had insured, a judgment having been recovered against them in an action on the policy.
    The ease was tried March 15th 1870, before Collier, J. The evidence- for the plaintiffs wrns that the boat sank in the Red river, on the 5th of February 1869, the captain and crew did all they could to save her; the captain immediately gave notice by telegraph to the company, and in a short time Captain Dean, the agent of the insurers, came down; he said the wreck must be turned over to him, and he took charge of it. Dean said he was representing the two offices; everything was given up to him; Dean made an agreement for the sale of the wreck to Ransom for $2900 ; the agreement was afterwards rescinded at Dean’s solicitation ; Captain Haslop offered Dean $3500 for the wreck as she lay; he refused to take it; the wreck was worth that sum; she was raised and afterwards seen in the rebel service; Dean had offered Haslop $2500 to raise the wreck, but after making some effort he abandoned it; Dean said that he had sold her to Captain Greenlee. The defendants gave evidence of payments by them to the owners of the boat and the crew for wages, from the time of the loss, amounting to about $830. Also expenses paid to Captain Dean, amounting to $150.
    Each party submitted a number of points. The plaintiffs’ asserted that abandonment is not to be presumed but is to be proved by unequivocal evidence; that the interest of the owners not having been wholly insured, if they abandoned it was only to the extent of their insurance and they were tenants in common with the insurers; that the Eureka Company having surrendered their interest to the insured, the plaintiffs were entitled to the interest of that company also, and they were entitled to the interest of that company at least; that Dean having taken possession of the wreck, the defendants were liable to the plaintiffs for their proportion of what it was worth, and that it was incumbent on the defendants to show that they did not realize anything from the wreck ; and that without their neglect or carelessness.
    The defendants’ points were, that the insurance having been upon a valued policy; the whole amount of the insurance having been paid and the vessel abandoned as a total loss, the wreck passed to the defendants absolutely; that the recovery on the policy as for a total loss was a bar to the plaintiffs’ recovery in this suit; that claiming as joint owners, the plaintiffs could not recover against the defendants without having the proportionate liability settled, and that the plaintiffs, not having shown that the defendants realized anything from the wreck, they could not recover in this action.
    The court affirmed the plaintiffs’ points and denied the defendants’ ; the verdict was for the plaintiffs for $2604.96.
    The defendants took out a writ of error and assigned the instructions of the court for error.

      J. P. Penney, for plaintiffs in error,
    on the question of abandonment cited Comegys v. Vasse, 1 Peters 193; Chesapeake Ins. Co. v. Stark, 6 Cranch 268; Huston v. Phœnix Ins. Co., 1 Washington C. C. 400; Ins. Co. v. Francia, 9 Barr 390; Cincinnati Ins. Co. v. Bakewell, 4 B. Monro 541.

      C. S. Fetterman and J. Barton, for defendants in error.
    If there had been no abandonment, and the insurers had taken possession of the vessel, and failed to return her properly repaired within a reasonable time, they would thereby render themselves liable as for a total loss: Norton v. The Lexington Ins. Co., 16 Ill. Rep. 251; Copelin v. Ins. Co., 9 Wallace 461. If there was an abandonment of the boat to the Allegheny Insurance Company, though it were absolute and unconditional in form, its effect was to transfer the plaintiffs’ interest in the wreck only so far as the same was covered by the policies of insurance, and as to the interest not covered by the policies, the owners were theeir own insurers, and entitled to a proportionate share of the salvage or proceeds of the wreck: 2 Par. Mar. Ins. 405; 2 Condy’s Marsh. on Ins. 608; 2 Arn. on Ins. 1201; Cincinnati Insurance Co. v. Duffield, 6 Ohio Rep. 200. By the abandonment, the insured and insurers became tenants in common of the wreck: 2 Condy’s Marsh. on Ins. 608. The form of the action is the appropriate one. Trespass will lie against a co-tenant for a destruction of the common property: Critchfield v. Humbert, 3 Wright 427; Gillis v. McKinney, 6 W. & S. 78; Hill v. Hill 7 Wright 521; 1 Pars. on Ship. and Adm. 93, and authorities there cited. There can be but one abandonment; and whether made to one underwriter or to several, it enured to the benefit of all, and alkare joint owners: 1 Pars. Ship, and Adm. 107, note 2.
   Tbe opinion of tbe court was delivered, January 9th 1872, by

Sharswood, J.

Upon tbe principal question raised in the court below and discussed here — which is certainly very important and interesting — two very respectable courts of our sister states have given opposite judgments: Cincinnati Insurance Company v. Bakewell, 4 B. Monr. 541; Cincinnati Insurance Company v. Duffield, 6 Ohio (N. S.) 200. Tbe ruling of the learned judge below, which adopts tbe latter of these two judgments, is certainly sustained by the concurrent opinions of tbe most distinguished of tbe foreign jurists and writers on commercial law. Boulay-Paty lays it down as an uncontroverted point that where tbe assured has bad only a part of bis interest in tbe subject covered by tbe policy, be is only obliged, in order to recover for a total loss, to abandon the proportion so covered, and remains owner of that which was not insured; and be explains very -clearly tbe principles upon w'hich tbe loss and salvage are to be adjusted in such a case: Traite des Ass. tom. 2, ch. 17, s. 13, citing Pothier, Valin, De Laca and Casaregis. See also 2 Arnould on Ins. 1159.

We give no opinion, however, upon this question, because in any view of tbe case tbe plaintiff below showed no title to recover. Conceding fully tbe postulate with which they set out, they were tenants in common with tbe defendants of tbe “Indianola” in certain proportions; nor would tbe case be varied if in point of fact there was no abandonment. They claimed and recovered tbe entire sum insured as for a total loss, and tbe defendants were undoubtedly subrogated to all tbeir rights for tbe purpose of indemnifying themselves. Tbe form of action was assumpsit — ■ special with tbe common money counts. Tbe special count alleged that tbe defendants took possession of and converted tbe wreck, and by reason thereof became liable to pay tbe plaintiffs tbeir share of its value. This count was clearly bad on general demurrer; no such liability resulted in law from the facts upon which a promise could be founded. As to the money counts the plaintiffs did not show that the defendants had ever received one dollar or one dollar’s worth from the wreck. They seem to have gone upon the idea that they had a right to maintain the action for their share of what the defendants might have realized by a sale. But this is founded upon an entire misapprehension of the relation between them. The defendants were not trustees for them. According to their own theory, if there was an abandonment all they ceded to the defendants was so much only as was covered by the insurance. They remained the owners of that for which they stood their own insurers. Of course the defendants had no title to sell more than had been abandoned to them. It may be that when one tenant in common, who is in possession of the joint property, abandons it to inevitable destruction, it would be the same thing as if he had destroyed it himself, which would be a conversion, and entitle his co-tenant to maintain trover and recover the value of his share in damages. The authorities certainly go that length. But that was not this case. The defendants through their agent, after examination and inquiry, thought that the sunk pteamer was not worth the risk and expense] of raising. They did nothing. The plaintiffs themselves might have raised the wreck if they had seen fit. The defendants did nothing to prevent it. It was just as much their right to look after their interests as it was the defendants. No action of trover, therefore, could have been maintained, and certainly without evidence that the defendants had recovered or received anything for which they were liable to account to their co-tenants, assumpsit would not lie: Holliday v. Camsell, 1 T. R. 658; Barnardiston v. Chapman, 4 East 121; Barton v. Williams, 5 B. & Ald. 895; Fennings v. Lord Grenville, 1 Taunt. 241; Martin v. Knowllys, 8 T. R. 145; 3 Steph. N. P. 2672, note a; Gillis v. McKinney, 6 W. & S. 78; Rank v. Rank, 5 Barr 211; Agnew v. Johnson, 5 Harris 373 ; Borrell’s Adm’rs. v. Borrell, 9 Casey 492.

Judgment reversed.