text:
    Sinnott versus Mullin.
    1. Plaintiff contracted to build four houses for defendant, and failed to complete the same by reason of the falling of a stone wall on another part of defendant’s lot, whereby the buildings, which were nearly finished, were destroyed. In an action to recover for work done and materials furnished, Held, that it was the duty of defendant to provide a place for the erection of the houses that was reasonably safe, and that the contract itself implied an undertaking on his part that the place chosen was free from danger unless the plaintiff had assumed the risk of danger from the condition of the property.
    2. The fact that the wall, after its destruction, was found to have been defective, would not subject the defendant to liability, if no reasonable means of knowledge were in his reach, but he was bound to exercise ordinary care in the management of the property on which he invited the plaintiff to enter, and if the wall was insufficient it was for the jury to say whether the defect was one against which it would have been the duty of a man of ordinary caution to provide.
    3. If the loss was occasioned by an accident that could have been prevented by reasonable care, skill and expense it should be borne by defendant.
    4. The responsibility and duty were on the defendant to know and see that the wall was reasonably sufficient for the purpose for which it had been built and maintained.
    5. Testimony was offered by plaintiff tending to prove the insufficiency of the wall and to exhibit its character and the particulars wherein it was defective, which the court below rejected. Held, that this testimony should have been submitted to the jury.
    6. It was not competent in this case for an engineer, who was examined as an expert, to swear to his belief as to the original purpose in view in building the wall, which had been standing between twenty and thirty years.
    October 2d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward JJ. Williams, J'., absent.

      Error to the Court of Common Pleas, N°- 2, of Allegheny county. No. 235, October and November Term 1875.
    This was an action of assumpsit, brought by Pierce Sinnott against John Mullin, the plaintiff in his affidavit of claim, alleging that the defendant was indebted to him in the sum of $1953.75 and interest from August 1st 1872, the balance due for work done and materials furnished in and about the construction of certain buildings, tearing down houses, hauling away rubbish, excavation, &c., as charged in a statement annexed.
    In his affidavit of defence, the defendant averred that the only dealings which he had with plaintiff were under a certain agreement in writing, under seal, dated April 17th 1872, wherein Sinnott, a carpenter and builder, contracted to erect and complete, with good materials, four houses, on a lot of Mullin, for which the latter was to pay Sinnott the sum of $3500: $700 when the stone work was done, $1100 when the buildings were under roof, $600 when the buildings were ready for plastering, and $1100 when they were completed. The $700 to be paid when the stone work was finished, defendant alleged he had paid, and then further averred that the plaintiff covenanted to have the buildings finished by August 1872, but that in the latter part of July he did not have them under roof, and that he has not since completed them, and still refuses to complete them in pursuance of the stipulations of the agreement.
    By the permission of the court, the plaintiff filed an amended narr., which set forth the agreement under seal, as disclosed above in the defendant’s affidavit, and continued:—

      “ And the said plaintiff further avers that, on the premises aforesaid, belonging to said defendant, and immediately adjoining or near to the same, to wit, within five feet of the place where said dwellings were to be placed and erected under the contract aforesaid, there was a stone wall, previously constructed by said defendant, which said wall was about forty feet long, twenty-four feet high and about two to four feet thick. And said plaintiff further avers that he entered upon the premises aforesaid and commenced the construction of said dwelling-houses under the contract aforesaid, and had the said contract in part performed, to wit, the brick work was up to the third story, ready for the roof on two of them, and the roof partly on the other two, but was prevented from proceeding further with the construction of said buildings by reason of the said wall falling down and over and on to said tenements, whereby the same were crushed, broken down and .destroyed. And the said plaintiff avers that the falling of said wall was not caused by the fault or neglect of him the said plaintiff, but the same was caused by the defects in said wall by reason of its having been originally defectively constructed, and by the carelessness and negligence of the said defendant in not properly erecting and constructing said wall with proper materials, and in not properly maintaining, repairing and supporting said wall; and that, by reason of the premises, he is entitled to recover, have and receive of and from said defendant the sum of $1953.35, being the amount paid, laid out and expended by him for work, labor and materials, in the construction of said buildings, up to the time they were so destroyed.as aforesaid, to wit, at the county aforesaid.
    “And the said plaintiff also complains of said defendant, and avers that afterwards, to wit, in December 1872, to wit, at the county aforesaid, the said defendant did receive and take, and apply to his own use, the lumber, joists, brick and materials left and there lying, after the destruction of the buildings aforesaid, as mentioned in the preceding count in this declaration, amounting in value to the sum of $1000; by reason whereof said defendant became and is liable to plaintiff for the value of the same, to wit, at the county aforesaid.”
    The plaintiff claimed to recover under the first count of this supplemental narr. on one of two grounds: 1st, that there was an implied covenant or agreement on the part of defendant that the location was a good and safe place for the erection of the buildings; or 2d, that the wall having fallen through a defect in its original construction, the plaintiff was excused from completing his contract, and the defendant became liable to pay for the work and materials.
    The court below (White, A. J.) refused to allow the jury to pass upon the question of negligence, and instructed them, “that the only question for them was under the second count of the supplemental narr.,” which action of the court constituted the fifth assignment of error.
    The plaintiff submitted the following four points, with which are given the answers of the court, which answers constituted the first four assignments of error.
    1. That under the contract between the parties in evidence, the defendant, Mullin, was bound to provide the plaintiff with a reasonably safe and secure place, on which to erect said houses, and said contract is to be taken and construed as a covenant and undertaking on the part of Mullin, the defendant, that said premises were safe and secure from danger or injury from adjoining buildings, wall or erections, around, by and upon the other parts of the premises of said defendant.
    Answer: “ Under some circumstances this might be true, but I do not think it is the law in this case. It is in evidence that the plaintiff, before he entered into the contract, saw the premises and examined them, and that neither he nor the defendant considered 'the wall unsafe. It had stood there for over twenty years, appeared all right and did not look unsafe or dangerous. The plaintiff had as good opportunities of judging of the safety of the location as the defendant, and being an experienced contractor, was, perhaps, better qualified to judge. With his eyes open, and with full knowledge of the situation he entered into the contract. Under the circumstances of this case, therefore, I do not think there was any such implied covenant or agreement on the part of defendant, and I refuse this point.”
    '2. That if the jury are satisfied from the evidence that the wall mentioned fell by reason of insufficiency in the construction of said wall, and that the same was not contributed to in any way by the acts of said plaintiff or his employees, that then the loss and damages caused thereby must fall upon and be borne by Mullin, the owner of the premises, and not by Sinnott, the contractor.
    Answer: “ This point asks me to say, that in law the defendant would be liable for damage occasioned by the fall of the wall in consequence of any insufficiency in its original construction, without regard to the time when, or the purposes for which it was built, how long it had stood, or whether the defendant had any knowledge of any imperfection in it or insufficiency in its construction. It is also based on the idea, that the wall fell from some inherent defect or insufficiency in the wall. The evidence is not sufficient to sustain that position. It is manifest it fell from a heavy slide from the hill above the wall, caused by the heavy rains of the few days previous. In all probability the hill would have slid down if there had been no wall, or even if the wall had stood, the slide would have gone over it, and done the same damage. This point is therefore refused.”
    3. That if the jury are satisfied from the evidence that the wall fell by reason of the water running from the hill, falling and settling behind the wall, and that such flow and settling of the water could have been prevented and guarded against by reasonable care, skill and expense, and that the defendant neglected to so provide for the safety of said wall, that then any loss resulting from the falling of the same must be borne by the owner, the defendant.”
    Answer: “ This point is also based on a supposition of facts not sustained by the testimony, and would make the defendant liable, whether he had any knowledge of the assumed facts or not. The wall had been erected by a prior owner, had stood for twenty or twenty-five years, looked well at the time, and neither the plaintiff nor defendant anticipated any danger from it. There is no evidence that the defendant kneAV or had good reason to believe, there was any defect or imperfection in the wall or any injury from water behind it, or any danger to be apprehended from it. This point is therefore refused.”
    4. That if the jury are satisfied from the evidence, that the wall mentioned, across the rear of the lot, at the base of the hill, was put there by the original owner of the property, and was kept there and maintained by the defendant, after he purchased, for the purpose of protecting the part of the lot below and between the wall and Second avenue, from injury, by reason of the earth, slate and stone from the side of said hill falling or sliding down upon the .samé, that then the responsibility and duty was upon the defendant, to know and see that said wall was reasonably sufficient for the purpose, and if the jury are satisfied from the evidence that said wall was not sufficient for the purpose intended, and fell down and injured the houses then being erected by the plaintiff for the defendant, that the loss occasioned thereby will fall on the defendant, and not on the plaintiff, unless the plaintiff, or his employees, were guilty of contributory negligence.
    Answer: “ This point, like the others, is based upon the jury finding certain facts of which there is no sufficient evidence. There is no evidence as to who built the wall, and no direct evidence for what purpose it was built. The evidence would indicate that it was built for a protection from loose earth and stones falling down, and not as a support to the hill. The hill was mainly rock and needed no support. The evidence, as already stated, would not justify the •jury in finding that the wall fell from any inherent defect or any insufficiency for the purpose intended, but from a heavy slide of the hill above the wall. The wall had stood about twenty or twenty-five years. There is no evidence that the defendant did not know or believe that it was sufficient for the purpose for which it was intended and retained.
    “ If the defendant had knowledge that it was defective or insufficient or had good reason to apprehend any danger, he would doubtless have been bound to repair it and make it safe. His neglect to do so might be negligence on his part. It is only on the footing of negligence that the defendant could be held liable. And, considering the length of time the wall had stood and its apparent condition at the time of the accident, and the absence of all evidence that the defendant knew of any defect, or had any reason to apprehend danger, I cannot see what negligence he has been guilty of, or that the jury would be justified in finding a verdict against him on this point as it stands. It is therefore refused.”
    The sixth assignment was the refusal of the court to permit W. Gr. Smith, an engineer, to testify for what purpose, in his opinion, the wall was put across the back end of the lot, and why it should be thirty feet high if not to support the hill and keep it from coming down on the lot.
    The seventh assignment was in not permitting the same witness to reply to the following question : “In building a wall there, a stone wall, such as has been described here, state what number of headers should be in it, á stone wall on the side of that hill for a retaining wall ?”
    The eighth assignment refusing to permit same witness to answer this question: “ After an old wall has been thrown down, among the debris, could you distinguish the headers and stretchers from other stones there ?”
    With the above proceedings, what is contained in the opinion of this court will make the case clear.
    The verdict was for the defendant, and the plaintiff took this writ, the assignments of error being those heretofore noted.

      John Barton and O. F. McKenna, for plaintiff in error.

      A. M. Brown and John J. Mitchell, for defendant in error.
   Mr. Justice Woodward

delivered the opinion of the court, January 2d 1877.

This cause was tried on the issues tendered by the plaintiff in the two count's of his supplemental declaration. The first of these counts sets forth a sealed agreement executed on the 17 th of April 1872, the terms of which provided for the erection by the plaintiff of four three-story dwelling-houses on a lot of ground belonging to the defendant in the Sixth ward of the city of Pittsburgh, in consideration of $3500, which it was stipulated the defendant was to pay. Part performance of the contract is then averred, and the failure to complete it is alleged to have been caused by the falling of a stone wall, twenty-four feet in height, on another part of the defendant’s lot, whereby the houses which were in the course of construction, in the language of the count, “ were crushed, broken down and destroyed.” The falling of the wall is averred not to have been the result of any fault or neglect of the plaintiffs, “ but the same was caused by defects in said wall by reason of its having been originally defectively constructed, and by the carelessness and negligence of the said defendant in not properly erecting and constructing said wall with proper materials, and in not properly maintaining, repairing and supporting the said wall.” For the work and materials done and furnished in the erection of the buildings thus destroyed, the sum of $1963.35 is claimed by the plaintiff in this action. The second count alleges the appropriation by the defendant of lumber, joists, brick and material left upon the ground after the destruction of the buildings, of the value'of $1000. No objection has been made here to the course of the trial under this last count. The evidence in support of the allegations it contained was submitted to the jury fully and satisfactorily. The methods by which the court below disposed of the questions raised by the evidence given and offered in support of the averments of the first count, are the only subjects of present consideration.

It is unnecessary to recite the points of the plaintiff’s counsel, and the answers of the court in their terms and details. The general grounds on which the claim was pressed were : 1. That it was the duty of the defendant to provide a place for the erection of the houses under the contract that was reasonably secure and safe, and that the contract itself implied an undertaking on his part that the place chosen was free from danger. 2. That he was responsible for ■the fall of the wall on the rear.'of the lot, if the fall was caused by insufficiency in its construction. 3. That the loss resulting from the accident should be borne by him as the owner of the property if the wall fell by reason of the flow and settling against, it of water from the hill behind it, which could have been prevented by reasonable care, skill and expense; and 4. That if the jury should find that the wall had been built by the original owner to protect the part of the lots between itself and Second avenue from the fall of earth, slate and stone, from the side of the hill, it was his duty to know and see that it was reasonably sufficient for the purpose, and if found to be insufficient, he and not the plaintiff should bear the loss.

All the points were refused, mainly, it would seem, upon the ground that the evidence was not. such as to warrant the submission of any question to the jury. Admitting that under some circumstances it might be true that the defendant would be bound to provide a place reasonably secure and safe for the erection of the buildings, the court held it not to be the law of this case. “ It is in evidence,” the judge said, “that the plaintiff, before he entered into the contract, saw the premises, and examined them, and that neither he nor the defendant considered the wall unsafe. It had stood there for over twenty years, appearing all right, and did not look unsafe or dangerous. The plaintiff had as good opportunities of judging of the safety of the location as the defendant, and being an experienced contractor, was perhaps better qualified to judge, and with his eyes open, and with full knowledge of the situation, he entered into the contract.” In answer to the request to charge that the defendant was responsible for the consequences of the fall of the wall if it was insufficiently constructed, the court said that the point was based on the idea that the wall fell from some inherent defect or insufficiency in itself; that the evidence was not sufficient to sustain that position; that it was manifest that it fell from a heavy slide of the hill above it caused by the heavy rains of the few days previous; and that in all probability the hill would have slid down if there had been no wall, or even if the wall had stood, the slide would have gone over it and done the same damage. The court refused to charge that the loss resulting from the accident should be borne by the defendant if it was caused by the settling of water behind the wall, which could have been guarded against by reasonable care, skill and expense. The point was answered in these words: “ This is also based on the supposition of facts not sustained by the testimony, and would make the defendant liable whether he had any knowledge of the assumed facts or not. The wall had been erected by a prior owner, and had stood for twenty or twenty-five years, looked well at the time, and neither the plaintiff nor defendant anticipated any danger from it. There is no evidence that the defendant knew or had good reason to believe that there was any defect or imperfection in the wall or injury from water behind it, or any danger to be apprehended from it.” In answering the last point, the general facts that have been quoted were repeated, and the court added: “ there is no evidence that the defendant did not know or believe that the wall was sufficient for the purpose#for which it was intended. If the defendant had knowledge that it was defective or insufficient, or had good reason to apprehend any danger, he would have been bound to repair it and make it safe. It is only on the footing of negligence that the defendant could be held liable, and considering the length of time the wall had stood, and its apparent condition at the time of the accident, and the absence of all evidence that the defendant knew of any defect, or had any reason to apprehend danger, I cannot see what negligence he has been guilty of, or that the jury would be justified in finding a verdict against him on this point as it stood.”

The first point should have been affirmed subject to the qualification that the plaintiff was barred of all right to a verdict if he had taken upon himself the risk of danger from the condition of the defendant’s property. The wall was on the ground on which the houses were to be built, but on a part of it over which he had no rights. The case stands as if the injury had resulted from the fall of a structure on adjoining property belonging to the defendant. The relations of the parties Avere created by the contract, and for the purposes of this question, they do not essentially differ from the relations towards each other which exist betAveen master and servant in the ordinary contract for the employment of labor. The plaintiff had the right to require that the place where his. work Avas to be done should, in the language of the point, “be reasonably safe and secure,” and such a place it was the duty of the defendant to afford. Against manifest and patent danger, the plaintiff would be held to take his chance. It was for the jury to say whether the danger was manifest and patent here. Was this wall reasonably safe and secure ? If not, were the defects in its construction latent? And were they such defects as the defendant was bound to know ? “ Without entering on the perilous regions of implied warranty, it is sufficient for the purpose of justice to assert, that it is the duty of the employer to advise the employee of all defects which the employee ought to know, and that the employer, if he fail in performing his duty, is liable to the employee for injury the latter may thereby receive :” Whart. on Negligence, § 209. Further than this, the employer is not only liable for injury sustained from extraneous latent dangers if he withholds from the employee .notice of them (Baxter v. Roberts 44 Cal. 187), but he is liable also for injury caused by defects of Avhich the employer may not have been cognisant, but which it was his duty to have searched for and remedied.: Whart. on Neg., § 211. Where a servant is employed on machinery, .from the use of which danger may arise, it is the duty of the master to take due care and to use all reasonable means to guard against and prevent any defects from which increased and unnecessary danger may occur. The risks necessarily involved in the service must not be aggravated by any omission on.the part of the master to keep the machinery in the condition in which, from the terms of the contract or the nature of the employment, the servant had the right to expect it would be kept: Cockburn, C. J., in Clark v. Holmes, 7 Hurlst. & N. 937. There was evidence that the attention of the plaintiff was called to the condition of the wall while’ negotiations for the contract were going no. But whether he satisfied himself as to its safety, and assumed any risk which his work in its neighborhood might involve, or relied on the assurances of the defendant, and concluded his contract in ignorance of latent dangers, it was the province of the jury to decide.

In answering the three other points, the court assumed that there was no evidence to support a verdict for the plaintiff. Several witnesses testified to facts tending to prove the insufficiency of the wall. The plaintiff himself swore that, although it appeared all right upon its face, yet after it fell, it could be seen that it had been built with small stones, and had little or no mortar. Martin Corcoran said: “ My opinion was certainly that it was not capable of holding up that bank. The wall was not thick enough in the first place, and the stone not heavy enough for a wall of that size.” John McMahon swore that “there had been long stretchers-in it of stone, and no binders to keep the wall at all. The balance of the stone in the back of it were all small stone mixed with shaly stuff and mortar or cement. I found the foundation to be about six inches in the ground; had to use crowbars to take the stone out. It was solid; it had not been disturbed at all — the foundation. It had broken about three or four feet above the foundation.” In their answers to 'the third and fourth points, the court said there was no evidence of any knowledge on the part of the defendant that the wall was defective, or that any reason existed why danger from it should be apprehended. But facts were testified to which it would have been the duty of the jury to consider in deciding the question of the defendant’s knowledge, if that question had become material. McMahon said: “ It appeared there was a leakage come through the wall; all through from the back of the wall. There were eighteen inches, about, of material between that wall and the solid hill, and it caused the drainage to come down through the wall.” Upon the same subject John Rice testified: “It looked old, like as if the water had settled behind the wall and run through it; streams kept coming down about the middle.” The eventual effect of a stream of water through the middle of such a structure as this could not be doubtful, and the statements of the witnesses that the passage of the water was constantly visible in wet weather, were certainly some evidence from which the defendant’s knowledge of the defects and insecurity of the wall could have been implied.

The defendant was responsible for the neglect of ordinary care in the management of the property on which he invited the plaintiff to enter; and this is all, except, perhaps, in the second point, that the court were asked to charge. In the first point, “ a reasonably safe and secure place” for the erection of the houses was insisted on. In the thii’d point, “ reasonable care, skill and expense,” in guardr ing against danger, were stated as the measure of*the defendant’s duty. The fourth point asked that the jury should be told that “ the responsibility and duty were upon the defendant to know and see that the wall was reasonably sufficient for the purpose for which it had been built and maintained.” The defendant would not be responsible for the consequences from accident produced by causes which ordinary sagacity could not foresee, and ordinary prudence could not control. No claim for absolute protection was asserted on behalf of the plaintiff. To thé extent to which they defined the defendant’s duty, the first, third and fourth points should have been affirmed. The second point was too broadly stated. The fact that the wall was found, after its destruction, to have been defective, if no reasonable means of knowledge were in the defendant’s reach, would not subject him to liability. He was bound to exercise ordinary care. It was for the jury to say, if the wall was insufficient, whether the defect was one against which it would have been the . duty of a man of ordinary caution to provide.

The offers specified in the seventh and eighth assignments of error were to show facts similar in kind to much of the testimony which the court received. The proposition was to exhibit the character of the wall, and the particulars in respect of which it was defective. The offers tended to support this proposition, and should have been received. The sixth assignment is unfounded. Mr. Smith was an engineer, and his opinion as an expert would have been admissible in a proper case. But it was not competent for him to swear to his belief as to the original purpose in view in building a wall which had been standing between twenty and thirty years.

In the course of the trial objection was made to the form of the action. The plaintiff sued in assumpsit. The original agreement between the parties was under seal. The theory of the plaintiff is founded on the principle that where a contract creates a duty, the neglect to perform that duty as well as the negligent performance of it, is a ground of action for tort, and it is at the election of the party injured to sue either on the contract or the tort: Addison on Torts 913; Ferguson v. Earl of Kinnoul, 9 Cl. & Fin. 289. And it is contended that the fact that the action on the contract would be covenant is immaterial. In some cases where the breach of a covenant is a misfeasance, the party has an election to proceed by action of covenant or by action on the case for the tort: 1 Chit, Plead. 109. The right to an •action on the case being assumed, the further right .is asserted to waive the tort and bring assumpsit, and Pearsoll v. Chapin, 8 Wright 9, is relied on to support this claim. This seems a circuitous process to the result the plaintiff seeks to reach, but the question is not legitimately in this record. The court below sustained the declaration. Whether the suit can be supported as it stands, or the form of action ought to be changed, must be remitted for decision to the Common Pleas.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Commonwealth, ex rel. Snyder et al., versus Mitchell et al.

    1. The word “ responsible” in the 6th sect., of the Act of 23d of May 1874 has a broader meaning than is involved in the pecuniary ability to make a good contract by security for its faithful performance, and where the term is applied .to contracts, requiring for their execution, not only pecuniary ability, but also judgment and skill, the statute imposes not merely a ministerial duty upon the city authorities, but also duties and powers which are deliberative and discretionary, and therefore, where these authorities have exercised a discretion, mandamus will not lie to compel them to modify their decision, even though their action was erroneous, in the absence of clear proof of fraud or bad faith.
    2. One who sues for the writ of mandamus must have some well-defined right to enforce, which is specific, complete and legal, and for which there is no other specific legal remedy, and the right which he claims must be independent of that which he holds in common with the public at large; and where a party made a bid for certain municipal work, under the provisions of the 6th sect, of the Act of 23d of May 1874, and his bid, although the lowest, was refused, mandamus would not lie to compel the city authorities to award the contract to him.
    October 2d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, Allegheny county: No. 192, of October and November Term 1876.
    This was an application by the Commonwealth, ex rel. N. Snyder, Frank Havelock, Michael Ryan and John A. Jacobs, partners, doing businéss under the firm name of N. Snyder & Co., for a writ of mandamus to compel the water committee of the councils of the city of Pittsburgh and the councils of said city to award to said N. Snyder & Co., the contract for manufacturing, delivering and completing the “ wrought-iron forcing mains” for the water-works of the city, the relators alleging that they had made the lowest bid for the contract and that it had improperly and illegally been awarded to higher bidders.
    In their petition the relators represented in substance : That they were citizens and property owners of the city of Pittsburgh; that the water committee of councils having in charge the construction of water-works, in pursuance of the provisions of the 6th sect, of the Act of 23d of May 1874, Pamph. L. 230, invited sealed proposals for “ wrought-iron forcing mains” conformably to certain specifications and plans; that the relators being expert and responsible “ iron workers,” competent and able tó execute the contract, made proposals in good faith and in conformity with all requirements, for these “ wrought-iron forcing mains,” which proposals' were $5000 lower than any other bid made, and that their bid was accompanied with a good and sufficient bond with two responsible persons as security ; that it was the duty of said water committee and of councils to award to the petitioners the contract, they being the lowest responsible bidders, but that they have unjustly and illegally declared their intention of awarding the same to other and higher bidders, to wit, the firm of Jared M. Brush & Co., who are no more responsible than petitioners; and having no adequate or specific legal remedy except the writ of mandamus, the petitioners therefore pray that a writ of mandamus may issue commanding the water committee and councils not to award the contract to any individuals or firm whose bid is higher than that of petitioners, and to award the contract to the lowest responsible bidders, the petitioners, who are such conformably to the plans and under the regulations prescribed for the execution of the contract, or that a rule upon the water committee and councils may be granted, requiring them to show cause why a writ of mandamus should not be issued for the purposes aforesaid, &c.
    The court granted the rule to show cause, and the mayor of the city of Pittsburgh, the chairman of the water committee, Thomas S. Mitchell, and the presidents of select and common councils, filed an answer, in which they admitted the facts set forth by petitioners, but denied the responsibility and competency of the firm of Snyder & Co.; the 4th and 5th paragraphs of the answer being as follows:— ■
    “ 4. It is denied that the water committee were bound to award the contract to the petitioners, for the reason that they were not' the lowest responsible bidders; and it is denied that they are responsible bidders, for the following reasons, viz.:—
    “ That it was within the knowledge and the full belief of said committee, that N. Snyder & Co., by some means or other, attempted and did perpetrate a gross deceit and wrong upon.said committee, in surreptitiously departing from the specifications for a certain contract for the construction of boilers for the new waterworks, by striking therefrom, without the knowledge or consent of said committee, the words ‘mud drums,’ whereby said committee have suffered considerable ’vexation and annoyance, and whereby the said city will, in all probability, be compelled to litigate with the said N. Snyder & Co., resulting in considerable loss to the city; that it was within the knowledge of some, if not all of the members of the water committee, that N. Snyder, the senior member of said firm of N. Snyder & Co., was a man of intemperate habits, whose character for sobriety was not .such as would warrant the committee in giving said firm such a responsible contract; that said N. Snyder also had attempted to bribe the mechanical engineer of the water-Avorks, Avho was, by virtue of his office, the inspecting officer of said contract; and that N. Snyder & Co. were otherwise disqualified for the proper fulfilment of the requirements of the proposed contract.
    “ 5. That it is true that the water committee did refuse, and still do refuse, to aAvard the said contract to N. Snyder & Co.; and it is averred that the said committee, acting under the discretion given to them as well by said ordinance as by the provisions of the 6th section of an Act of Assembly regulating the powers and classifying the several cities of the CommonAvéalth, approved May 23d 1874, and which was reserved, under said regulations to reject any and all bids, after due deliberation and careful consideration of the said several proposals, as well the bonds of the said parties as of all other requirements which go to make a skilful, reliable, trustworthy and responsible contractor, rejected the bid of said N. Snyder & ■ Co., and awarded the contract to J. M. Brush & Co., as being, in the judgment of the committee, the loAvest, best and most responsible bidders; that it is true that the select and common councils of said city did approve the said contract entered into by the water committee .thereof, with J. M. Brush & Co., as they were and are still advised and believe, that they acted and are still acting strictly in accordance Avith the law in such case made and provided. It is denied that any wrong or injury Avhatever has been done to the said N. Snyder & Co. by the said defendants.”
    The relators joined issue on the facts alleged in this answer, and the court appointed a commissioner to take testimony. His report having been filed, by agreement of counsel the cause was submitted to the court beloAV, under the 27th section, 5th article of the Constitution and the Act of Assembly of April 22d 1874, passed in accordance thereAvith, entitled “An Act to provide for the submission of civil causes to the decision of the court, and to dispense with trial by jury,” with right to writ of error, &c.
    The court (StoAve A. L. J.), in an opinion filed, found that the facts set forth in the petition were true, and continued: “But recurring to the second question, Avhich was the great ground of controversy under the evidence, and upon argument, we find it is not denied, and very clearly proven, that plaintiffs were the lowest bidders ; and Ave are of opinion that, in a mere pecuniary sense, they were ‘ responsibleand we are further of opinion that the evidence does not sustain the allegation that e it was Avithin the knowledge of the defendants that N. Snyder & Co., by some means or other, attempted and did perpetrate a gross deceit and wrong upon said committee, in surreptitiously departing from the specification for a certain contract for the construction of boilers,’ &c., or that ‘N. Snyder was a man of intemperate habits, whose character for sobriety was not such as would warrant the committee in giving said firm such a responsible contract,’ or that ‘N. Snyder had attempted to bribe tlie mechanical engineer of the water-works,’ &c., as alleged in the fourth paragraph of defendants’ answer; but we are of opinion, as alleged by defendants, that said committee and councils were of the full belief that such facts were true. Then the question arises whether the city -had a right to look beyond the mere pecuniary responsibility of a bidder in the case in hand, and if so, what effect a mistake, honestly made, will have upon the question before us.
    “ Without entering into an argumént.to support our position, we think that the word responsible in the Act of Assembly, in regard to contracts, such as require skill, integrity and care, as well as a pecuniary ability to indemnify the city against all failures of performance, and to compensate for damages of nonfeasance and misfeasance of the contractor and his employees, has a much broader meaning than such as is directly involved in pecuniary ability to make good a contract by security for its faithful performance. In cases where a mere pecuniary liability is involved, as in becoming security for the payment of a debt, or even bail for the performance of a contract, the construction would be different, because all that is involved in that case is the pecuniary responsibility of the security; but where more is required of the party asking the contract, common reason requires a broader interpretation, and we therefore think the city had a right. to look beyond the mere pecuniary responsibility of plaintiffs and the sufficiency of their bail. But we have found under the evidence in the cause, that the plaintiffs were responsible in all points in which the city had a right to inquire, and now the question arises (assuming for the present that it was the duty of the water committee to give the contract to the lowest responsible bidder), can this court by mandamus compel the defendants to give it to plaintiffs ? In determining that, the word responsible involves in cases like the present an inquiry into matters other than such as are mere matters of pecuniary calculation, and that it properly includes the examination into moral qualities, which necessarily go to make up the character of a man, who is a proper person to have such a contract in view of an honest and expeditious performance of his agreement, the case is brought directly within the line of the well-settled law, which determines that wherever the act required to be done involves investigation, and the exercise of discretion and judgment, it cannot be reached by mandamus, at least in the absence of clear proof of fraud and bad faith. In this view of the case, we think the water committee ought to have given the contract (if to any of the bidders) to the plaintiffs, but we see no evidence of fraud on their part, and are therefore compelled to refuse the mandamus as prayed for.”
    The court thereupon ordered judgment to be entered for the defendants.
    The relators excepted to the conclusions of law contained in this decision of the court, which exceptions the court overruled, and this action was assigned as error.

      A. M. Brown and W. It. ¿f A. N. Sutton, for plaintiffs in error.
    —The popular and received import of words furnishes the general rule for the interpretation of statutes; that which the words declare is the meaning of the instrument, and neither the courts nor the legislature have a right to add or take away from that meaning. The words of the statute, “ lowest responsible bidders,” are a modification of a former statute, which used the words “ lowest and best bidder,” and was intended to confine the meaning of the word “ responsible ” to pecuniary responsibility and not to moral, personal or professional qualifications: Jackson v. Lewis, 17 Johns. 475; Farley v. Day, 6 Foster (N. H.) 527 ; Newall v. The People, 7 N. Y. 9. Councils are public agents created to perform public functions, and in cases where the public interests are concerned and third parties have a claim, the powers vested in these authorities should be exercised as the statute directs, and upon a refusal to perform their plain duty mandamus lies to compel them: Dillon’s Municipal Corp., sect. 62; People v. Flagg, 17 N. Y. 584; Mason v. Fearson, 9. Howard 248; Commonwealth v. Pittsburgh, 8 Am. Law Reg. 286; Commonwealth v. Councils of Pittsburgh, 10 Casey 496; Boren & Guckes, v. Commissioners of Darke County, 21 Ohio St. Rep. 311; Supervisors v. United States, 4 Wall. 435; The People v. Croton Aqueduct Board, 49 Barb. 259; May v. City of Detroit, 12 Am. Law Reg. N. S. 149; Mayor of City of Baltimore v. Marriott, 9 Md. 174; McCarthy v. City of Syracuse, 46 N. Y. 190.

      Slagle Wiley (with whom was Thos. S. Bigelow, City Solicitor), for defendants in error. —
    The question is narrowed to this: Is a municipal corporation, under the Act of May 23d 1874, bound to award contracts to the lowest bidder who may happen to be financially able to answer for his default, without regard -to his character in other respects, though the city authorities know, or which is the same thing, fully believe, that they cannot rely upon his integrity tofaithfully perform his part of the contract. The word responsible certainly implies more than mere pecuniary ability : May v. Detroit, 12 Am. Law Reg. N. S. 149; Fairman v. Commissioners of Darke County, 21 Ohio St. Rep. 311; State v. Commissioners, 18 Id. 386 ; Adams v. Looz, New York Court of Appeals, 2 New York Weekly Dig. 27. The right of relators to the writ' of mandamus is expressly denied in several well considered cases: State v. Fond Du Lac, 24 Wis. 684 ; High on Extraordinary Remedies, sects. 91, 92, and authorities therein cited.
   Mr. Justice Gordon

delivered the opinion of the court, November 6th 1876.

This is a petition by Nicholas Snyder et at, members of the firm of N. Snyder & Co., for a writ of mandamus against the Water-Committee of Councils of the city of Pittsburgh. The petition set forth, inter alia, that the committee, having in charge the erection of water-works for the aforesaid city, did, sometime during the year 1874, invite sealed proposals for the construction and delivery, in place of certain “wrought-iron forcing mains;” that the relators, “expert and responsible iron-workers,’’among others did deliver to the said commissioners, sealed proposals for the manufacture and delivery of the proposed work, and that the bid therein contained was lower by some $5000 than that of any other bidder; that said proposals and bid were accompanied by a bond, in due form, as security for the proper execution of the Avork designated signed by two responsible sureties ; that, notwithstanding these facts, the said water commissioners awarded the contract to the firm of J. M. Brush & Co., at a higher bid than that of the relators, thus unjustly and unlawfully passing by and refusing to accept their bid. The answer of the defendants admits the facts as set forth in the petition, but denies the responsibility of Snyder & Co., and their competency and ability to perform the proposed work and to' fulfil the required contract. It also sets out and specifies the facts on Avhich these allegations are based, as-follows: “That it is within the knowledge and full belief of the said committee that N. Snyder & Co., by some means or other, attempted and did perpetrate a gross deceit and wrong upon said committee, in surreptitiously departing from the specifications for a certain contract for the construction of boilers for the new water-works, by striking therefrom, without the knowledge or consent of said committee, the words ‘ mud drums,’ Avhereby said committee have suffered considerable vexation and annoyance, and whereby said city will, in all probability, be compelled to litigate Avith the said N. Snyder & Go., resulting in considerable loss to said city; that it is within the knowledge of some, if not all of the members of the water committee, that N. Snyder, the senior member of the firm of N. Snyder & Co., was a man of intemperate habits, whose character for sobriety was not such as would warrant the committee in giving said firm such a responsible contract; that said N. Snyder also had attempted to bribe the mechanical engineer of the water-works, Avho was, by virtue of his office, the inspecting officer of said contract; and that said N. Snyder & Co. were otherwise disqualified for the proper fulfilment of the requirements of the proposed contract.” The learned judge who, as the mouth-piece of the court to which this case was submitted, under the provisions of the Act of April 22d 1874, deliv-. ers the opinion, finds that the facts stated in the petition are true, and that the allegations contained in the answer, as above set forth, are wholly without foundation, but' that,- notwithstanding this, the committee fully believed that what was asserted in the answer was true. We must take this opinion of the court as to the belief of the respondents to be correct, not only because we are bound by this finding, as though it were that of a jury, but because we cannot suppose the gentlemen composing the committee would state anything that they did not believe; nevertheless, it does somewhat surprise us, that this body of men, intrusted with so important a duty, should have rested so contentedly under a delusion which a little inquiry in the right direction would have dissipated, and thus saved a handsome sum of money to the city treasury.

The facts, as above stated, having been found in favor of the relators, we next have to consider the Act of Assembly under which this case arises. It reads thus: “ All stationery, printing, paper and fuel used in the councils and in other departments of the city government, and all work and materials required by the city, shall He furnished and the printing and all other kinds of work to be done for the city, shall be performed under contract to be given to the lowest responsible bidder, under such regulations as shall be prescribed by ordinance.” (Act 23d May 1874, Pamph. L. 280.) Now the court below, though they found, under the evidence, that the relators were responsible in all points in which the city had a right to inquire, yet they held that the word “ responsible,” as employed in the act, when applied to contracts, requiring for their execution, not only pecuniary ability, but also judgment and skill, imposes, not merely a ministerial duty upon the city authorities, such as would result did their powers extend no further than to ascertain whose was the lowest bid, and the pecuniary responsibility of the bidder and his sureties, but also duties and powers which are deliberative and discretionary. • In this we concur with the court below. For it is scarcely open to doubt, but that the word under consideration, as it is used in the statute, means something more than pecuniary ability. In a contract, such as the one in controversy, the work must be promptly, faithfully and well done — it must, or ought to be conscientious work; to do such work requires prompt, skilful and faithful men. A dishonest contractor may impose work upon the city, in spite of the utmost caution of the superintending engineer, apparently good, and even capable of bearing its duty for a time, which in the end may prove to be a total failure and worse than useless. Granted, that from such a contractor pecuniary damages, may be recovered by an action at law; this is, at best but a last resort, that often produces more vexation than profit — a mere patch upon a bad job ; an exceedingly meager compensation, at best, for the delay and incalculable damage resulting to a great city from the want of a competent supply of water. The city requires honest work, not lawsuits. Were we to accept the interpretation insisted upon by the relators, the difference of a single dollar, in a bid for the most important contract, might determine the question in favor of some unskilful rogue as against an upright and skilful mechanic. Again.we know that, as a rule, cheap work and cheap workmen are but convertible terms for poor work and poor workmen, and if the city, for the mere sake of cheapness, must put up with these, it is indeed in a most unfortunate position. It is unnecessary, therefore, to resort to authority for the condemnation of the interpretation, by which the ruling of the court below is sought to be overturned, for it is opposed to the unbiassed judgment of all reflecting men, whether lawyers or laymen, and its adoption would be productive of far more evil than good. Agreeing then, as we do, with the Common Pleas that the duty imposed upon the respondents was deliberative and discretionary, we must also admit the conclusion reached by that court, to wit: that the writ of mandamus will not lie. Eor it is settled beyond controversy, that where the complaint is against a person or body that has a discretionary or deliberative function to exercise, and that person or body has exercised that function, according to the best of his or its judgment, the writ of mandamus will not be granted to compel the undoing of that which has been done: Griffith v. Cochran, 5 Binn. 87; Commonwealth ex rel. Watt v. Perkins, 7 Barr 42.

In the case in hand the respondents have performed their prescribed duty; not indeed in a manner satisfactory to the judge who delivered the opinion of the court below, and whose opinion we fully endorse, nor with much profit to the city treasury, but, nevertheless, not fraudulently or corruptly, and so we must let the matter stand. There is another aspect of this case, and which is quite as fatal to the right of the relators as that just discussed. It is a well-established rule that he who sues for the writ of mandamus, must have some well-defined right to enforce, which is specific, complete and legal, and for which there is no other specific legal remedy, and the right which he claims must be independent of that which he holds in common with the public at large: Heffner v. The Commonwealth, 4 Casey 108. But Snyder & Co. had no such right as above stated. By their bid they proposed to contract for certain work; that bid was not accepted. It was a mere proposal that bound neither party, and as it never was consummated by a contract, the city acquired no right against the relators nor they against the city. Snyder & Co. are wanting in a specific remedy only because they have failed to establish a legal right. The injury, if any, resulting from the rejection of their bid, fell upon the public and not upon them personally. It may be that, if they had obtained the contract, they might have made a profit, but the law takes cognisance of neither speculative contracts nor speculative damages, but only such as are fixed and definite. Where there is no contract there is no law, legem enirn contractus dat.

Judgment affirmed.


text:
    Findley versus City of Pittsburgh.
    The 6th sect, of the Act of Assembly of May 23d 1874, directing that contracts shall he awarded to the “lowest responsible bidder,” imposes duties upon city authorities which are not simply ministerial, but discretionary and deliberative, and courts will not therefore interfere to restrain these authorities from awarding a contract to one who is not the lowest bidder, even though their action has been indiscreet, unless it is shown that they have acted corruptly and in bad faith.
    October 2d 1876;
    Before- Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: No. 234 of October and November Term 1875, in Equity.
    This was an appeal from the decree of the court dismissing a bill in equity, filed by George Findley, a tax-payer, against the authorities of the city of Pittsburgh, to restrain them from awarding a contract for certain “wrought-iron rising mains,” to be usedin connection with the city water-works, to J. M. Brush & Co., whose bid, it was alleged, was $5000 higher than that contained in another proposal for the same work.
    The facts and questions involved are substantially the same as those in the preceding case of Commonwealth v. Mitchell.
    Complainant’s bill set forth, that proposals were advertised, and bids received for the construction of the rising mains; that N. Snyder & Co. were the lowest bidders, and were responsible bidders, but that the city councils have arbitrarily rejected this bid, and awarded the contract to Brush & Co.
    It appeared that the bid of Snyder & Co. amounted to about $125,000, that of Brush & Co. to about $130,000, and the other bids were $140,000, $167,000 and $172,000.
    It was not alleged in the bill that there was any actual intention of fraud on the part of the city councils, nor was there any charge of collusion on the part of Brush & Co. with any city official.
    The answer of Brush & Co. asserted good faith and readiness to perform the contract on their part.
    The answer of the city showed that the superintendence of the erection of the water-works was placed by ordinance in the water committee; admitted that Snyder & Co. were the lowest bidders, but denied that they were responsible bidders, and then set forth the same facts and made the same averments as those contained in the answer in Commonwealth v. Mitchell.
    The case was referred to a master, whose findings were in substance those of the court in Commonwealth v. Mitchell. To this report plaintiff filed a number of exceptions.. In their opinion, reviewing the exceptions to this report, the court, Ewing, P. J., inter alia, said:—
    “We understand the master to find substantially that the allegations contained in the answer are true, except that he finds that the specifications for the boiler contract were not ‘ surreptitiously’ and with fraudulent intent, altered by N. Snyder & Co.
    “We have read the entire testimony with care, and while we are not disposed to set aside the positive findings of the master, we find:—
    “ That, by the express directions of the water commission, approved by their successors, the water committee, ‘mud drums’ were made a part of the specifications for proposals for boilers; that no authority was ever given by either the commission or committee to erase these words; that, either before or after the proposals were received, the words ‘mud drums’ were erased from the specifications on which the bid and contract of N. Snyder & Co. were made. That the committee entered into the contract with N. Snyder & Co. without any notice or knowledge that these words had been erased, and that the committee, at the time they rejected the bid of N. Snyder & Co. for ‘ rising mains,’ believed, and had good cause from investigation to believe, that this erasure had been made fraudulently by N. Snyder & Co., or by collusion with some clerk in the employ of the city.
    “As to the allegation that Snyder & Co. had attempted to bribe the inspecting officer of the water committee, we are unable to see how any but one conclusion can be drawn from the testimony.
    “ Mr. Lowry says he was approached by the senior member of the firm pending the bid, and also after the contract was awarded for the boilers, and on the latter occasion, on shaking hands, money was left in his hand, which he immediately refused and returned. When afterwards charged by Lowry, in presence of a member of the committee, with having attempted to improperly influence him, Snyder is silent. But if there were no testimony but that of Mr. Snyder himself, who is called by the plaintiff in rebuttal, it would be conclusive. He admits -the offer of money substantially as stated by Mr. Lowry. There is no pretence that there was any other relation or business between them than that Lowry, as officer of the committee, was inspector of the work. There was nothing for which money could honestly pass between them. • Snyder says that he did not intend to bribe Lowry, and that is all the explanation.
    “ There are some transactions that neither require nor are capable of explanation. The offer of money by Snyder to Lowry was one of these. Of the same general character, but much more skilfully offered, was the proposal by Snyder to fee and retain Mr. Milligan, a member of the water committee, as additional counsel. The offer, deceived no one. The attempt to bribe, as charged in the answer, is clearly made out. ’
    “With these modifications, the exceptions to the report of the master are dismissedand the court then refused the injunction and dismissed the bill.
    The plaintiff appealed, and assigned this action of the court for error.

      W. IT. A. N. Sutton, for appellants,
    contended that pecuniary ability was what was implied by the word “ responsible,” and that it had no reference to the habits of the bidder; that the city was only concerned in having the work done skilfully, and it was a matter of no import what were the morals or habits of the contractors, so that they were competent to do the work. ’ The authorities cited in support of this position were in the main those produced in the foregoing case of Commonwealth v. Mitchell.

      Slagle Wiley, and the City Solicitor, Thomas S. Bigelow, for appellee,
    argued that the “responsibility” in the contemplation of the statute was clearly not to be limited to a pecuniary liability, and that if the city councils honestly believed that a bidder was dishonest, they had a right to exercise the discretion they did, and reject his bid, although it was the lowest; and that where this exercise of discretion has not been improperly or corruptly induced, courts have no authority to interfere.
   Mr. Justice Gordon

delivered the opinion of the court, November 6th 1876.

Whilst we are not prepared to take the same view of the facts in this case as did the learned judge of the court below, in that we think the allegations of fraud, charged against N. Snyder & Co. in a former contract with the city, are not sustained, yet we must adopt his final conclusion as the proper one. We have ruled in the case of the Commonwealth ex rel. N. Snyder & Co. v. Mitchell et al. and the City of Pittsburgh, argued at the same time with this case, that the Act of Assembly imposed upon the city authorities duties, in awarding the contract in controversy, which were not merely ministerial, but deliberative and discretionary, and that as a consequence the writ of mandamus would not lie to compel them to award the contract to N. Snyder & Co., who were the lowest bidders; that the city authorities having, perhaps indiscreetly, but not corruptly, proceeded to the performance of the duty with which they were charged by the statute, the matter was put beyond our reach. It is obvious, therefore, that it would be utterly incongruous for us to do in this case what we refused to do in the former one; for it is to be observed tbat the prayers in the petition for the mandamus, and that in the bill in this case, are substantially the same. Were we, under such conditions, to reverse the court below and issue the process prayed for, we would bring about the same result which we refused to permit by the writ of mandamus. Had there been fraud exhibited in the awarding the contract involved in this controversy, we might have come to a different conclusion, but under the circumstances, as they have been presented to us, we must decline to interfere with the action of the Common Pleas.

The decree is affirmed, at the costs of the appellant.


author: Mr. Justice Mercur

text:
    Moeck versus Littell.
    1. In an action against the endorser of a promissory note, the affidavit of defence disclosed a good defence between the maker and payee of the note, and continued “ affiant further avers and expects to be able to prove and show on the trial of this case, that the plaintiff is not the owner and holder for value, and before maturity of the note in suit; but that the same was handed over to him for the purpose of debarring the maker and endorsers thereof from a defence to the same.” Held, to be a good defence.
    2. While the more usual form of an affidavit is that the affiant “ verily believes” the facts which he alleges, yet the affidavit will be sufficient if the facts set forth as constituting the defence are positively averred and with rear sonable precision and distinctness.
    October 4th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1876, No. 3.
    This was an action of assumpsit brought by James Littell against Jacob Moeck, Sr., one of the endorsers on a promissory note, dated January 4th 1875, for $700 made by Jacob Moeck, Jr., to the order of John Rowley, payable at six months, and endorsed by John Rowley, Conrad Moeck, Jacob Moeck and James Littell, and which was protested for non-payment July 7th 1875.
    Peter Moeck for Jacob Moeck, Sr., filed the following affidavit of defence:—
    “ Affiant purchased from John Rowley the lease of tavern No. 31 Diamond Square, Pittsburgh, and certain personal property therein contained, for the sum of $1700; affiant paid the sum of $500 in cash, and gave to said Rowley two notes, one of $500, payable in three months after date, on which suit has been brought and judgment entered, and the note in suit for $700, of which Jacob Moeck, Jr., is the maker; that affiant procured the same to be endorsed by Conrad Moeck and Jacob Moeck, the present defendant, which making and endorsing was for the accommodation of this affiant, and at the same time for the purpose of securing the said John Rowley in his purchase-money, and affiant says that the defendant at the time of the endorsement of said note, was not aware of the amount of the same, nor the real object for which it was given. Affiant further says that a large portion of the consideration of said notes and money was the value of certain personal property alleged to have been on the premises at the time the purchase was made, and which was alleged to have been in good condition by said Rowley'; said Rowley further alleging that the tavern stand which was then established there, and which also constituted a part of the consideration of said notes and money, was a first-class stand, very valuable, and that it was to remain in the condition it was then, at the time of the purchase, about January 4th 1875.; whereas, in fact, the goods, property, &e., alleged to be on said premises at the time, were almost worthless, and the better portion of them Were after the said purchase removed off the premises before its occupation by affiant, by either the said Rowley or some person acting in his behalf, as affiant expects to be able to prove. And whereas, also, the house was not a good or first-class stand, and almost entirely worthless. And the said Rowley, having represented that it would remain in the condition it was then, was also an inducement for affiant to purchase. Yet the same was in a very short time reduced to a condition entirely untenantable, and had to be entirely abandoned, and the defendant avers that the consideration for the note in suit has not only entirely failed, but more than failed, but affiant further avers, expects to be able to prove and show on the trial of this case, that James Littell, the plaintiff above named, is not the owner and holder for value, and before maturity of the note in suit, but the same Avas handed over to him by John Rowley, the payee, for the purpose of debarring the maker and endorsers thereof from a defence to the same.”
    A rule was taken by the plaintiff for Avant of a sufficient affidavit of defence, which rule the court made absolute, and this action of the court was the error assigned.

      Wm. Reardon and T. J. O’Keefe, for plaintiff in error. —
    If the facts in the affidavit are true they constitute a sufficient defence : Bronson v. Silverman, 27 P. F. Smith 94. The facts in the affidavit which are not stated as of the affiant’s personal knowledge he avers, as he believes them to be true, and expects to be able to prove, which under the authorities is sufficient: Bronson v. Silverman, supra; Twitchell v. McMurtrie, 27 P. F. Smith 383. A reasonable intendment is to be made in favor of affidavits of defence, and they should not be subjected to a scrutiny unduly rigid: Twitchell v. McMurtrie, supra.

      Bayne f Magee, for defendant in error,
    did not present a paper-book.
   Mr. Justice Mercur

delivered the opinion of the court, October 30th 1876.

In this case the court below ordered judgment to be entered for want of a sufficient affidavit of defence. The action was against the endorser of a promissory note. The affidavit averred that he endorsed it at the request, and for'the accommodation of Peter Moeck; that the latter delivered it to one John Bowley, in part payment, in the purchase of the lease of a tavern, and a large quantity of personal property thereon. It further asserted the worthlessness of the tavern, and the non-delivery of the most valuable portion of the personal property, and a failure of consideration to the full amount of the note. Neither in the court below, nor here, was it contended that the affidavit did not set forth a good ground of defence between the parties to the contract. As between them, and to the extent of the value of the personal property not' delivered, there was an undoubted failure of consideration. The contention then was, and now is, whether the affidavit avers sufficient facts to let in the evidence against the plaintiff below. The language is “ affiant further avers, expects to be able to prove and show on the trial of this case, that James Littell, the plaintiff above named, is not the owner and holder for value, and before maturity of the note in suit; but that the same was handed over to him by John Bowley the payee, for the purpose of debarring the maker and endorsees thereof from a defence to the same.” This is not only an express averment that the defendant in error is not a purchaser for value of the note, before it matured; but in substance the further averment, that it is still the property of Bowley. If the fact of present ownership in Bowley be proved, undoubtedly the same defence may be made to the note, as if the suit was in his name : Eyre v. Yohe et al, 17 P. F. Smith 477.

It is true the more usual form of an affidavit of defence is that the affiant “ verily believes” the facts which he alleges. Here instead of belief he positively avers their actual existence. In its legal effect this form of an affidavit may be no stronger than one in the usual form ; but certainly it is no weaker. It is quite as effective to prevent the taking of judgment.

The facts set forth as constituting the defence, need be averred with reasonable precision and distinctness only : Bronson v. Silverman, 27 P. F. Smith 94. A reasonable intendment should be made in favor of the affidavit: Twitchell v. McMurtrie, Id. 883. We think the controlling facts are averred with sufficient precision and distinctness. An ability to prove those facts is distinctly asserted. The assignments are therefore sustained.

Judgment reversed, and a procedendo awarded.'


author: Mr. Justice Shakswood

text:
    Federal Insurance Co. versus Robinson.
    1. Where the payment of usurious interest was made upon process of execution, and there was no allegation of actual collusion to evade the statute, it was not recoverable in a new suit. The remedy of the defendant was to apply to the court to raen the judgment.
    2. Query. Whether the defendant would be precluded from recovery of usury, voluntarily paid on a judgment, entered on bond and warrant of attorney given for the original loan.
    October 4th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 145.
    This was case, brought by Eccles Robinson against the Federal Insurance Company, to recover usurious interest alleged to have been retained by the defendant company out of a loan made to plaintiff.
    The facts appeared to be these: On July 28th 1873, Robinson gave his judgment bond to S. C. Schoyer to secure the payment of $4500, furnished by the Federal Insurance Company, of which sum plaintiff was to have the use for two years, at the rate of ten per cent, per annum. When the loan was made $360 was withheld, being the difference between.six and ten per cent, on $4500, and it was for this difference this suit was brought.
    Judgment was entered on the bond given to Schoyer, and that judgment assigned to the defendant company, who, upon the failure of Robinson to pay the interest, issued execution thereon, and upon a return of nulla bona, an execution attachment issued, attaching moneys in the hands of James P. Speer and others, garnishees, on which the court granted judgment against the garnishees. Robinson, it appeared, had no notice of this proceeding. Speer took an assignment of the execution attachment and original judgment, and gave to the company the amount of the same.
    Eccles Robinson was a distributee of the estate of William Robinson, Jr., deceased, but, prior to the distribution, assigned his interest therein to one Gray. In the distribution of the estate of Robinson, Jr., Speer was allowed the amount of the judgments he had purchased of the Federal Insurance Company out of the share distributed to the assignee of Robinson, and then satisfied the judgments against the latter.
    This action was brought in April 1875, to recover the $360 above mentioned, usurious interest retained by the Federal Insurance Company on July 28th 1873, the plaintiff alleging that he paid the amount loaned when the assignment was made to Speer.
    On the trial the defendant submitted, among others, the following point:—
    That the usurious interest must have been paid voluntarily to entitle plaintiff to recover.
    The answer of the court was:—

      “As this point, under the evidence, is intended to mean that because the judgment given by plaintiff was paid by compulsion or process of law, plaintiff cannot recover, we are compelled to refuse it. The fact that a party has entered into a usurious contract with another, does not pay it voluntarily, but is compelled to do so by legal process, will not prevent his recovering back the usurious interest if suit is brought within the time limited by law.”
    The verdict was for the plaintiff for $370.80, and judgment was afterwards entered thereon.
    Defendant took this writ, and among other errors assigned, was the refusal to answer the foregoing point.

      Samuel 0. Schoyer, for plaintiff in error. —
    "Was the payment of the debt voluntary ? The bond, the evidence of the debt, had been merged in a judgment. A writ of fieri facias had issued thereon and been returned, and an execution attachment was issued, summoning James P. Speer and others as garnishees, attaching moneys in their hands belonging to said Robinson, and on the answers filed by the garnishees to interrogatories served on them, the court granted judgment, and ordered the garnishees to pay the amount of the judgment, and in default execution to issue. Under stress of this judgment and order, the garnishees paid the judgment, recovering back from Robinson, by subsequent proceedings in the Orphans’ Court, the amount paid by them. In all these proceedings Robinson has been in court, and the money having been made thereunder, it was certainly made by legal constraint and can in no sense be called a voluntary payment, unless that word, as used in the Act of May 22d 1858, Pamph. L. 622, bears the very opposite from its usual signification: Troubat & Haly’s Pr., vol. 2, p. 8. If the garnishees improvidently paid the judgment, Robinson certainly has his remedy.

      W. II. McG-ary, for defendant in error. —
    Whether the contract was completed by' a compulsory process, or voluntarily, matters not, so far as the rights of the borrower are concerned, as he is not required to pay the excess over the legal rate: Philanthropic Building Association v. McKnight, 11 Casey 470; Heath v. Page, 13 P. F. Smith 108. The receiving of excessive interest is a public evil and prohibited: Campbell v. Sloan, 12 P. F. Smith 481; Lucas v. Government National Bank, 28 Id. 232.
   Mr. Justice Shakswood

delivered the opinion of the court, October 10th 1876.

While it is well settled, as a general principle, that money voluntarily paid upon a claim of right cannot be recovered back, an exception has been recognised in the case of usury so paid. The reason of this exception is stated to be that it is money obtained by oppression and by taking advantage of the distresses of others, in violation of a law made for their protection. It is not therefore a voluntary payment; for the parties are not in pari delicto : Thomas v. Shoemaker, 6 W. & S. 183. The Act of Assembly of May 22d 1858, Pamph. L. 622, has not changed this rule, but has put a new period of limitation to an action to reclaim the usury, by providing that “ in all cases where any borrower or debtor shall heretofore or hereafter have voluntarily paid the whole debt or sum loaned, together with the interest exceeding the lawful rate, no action to recover back any such excess shall be sustained in any court of this Commonwealth, unless the same shall have been commenced within six months from and after the time of such payment.” It is evident that the act, by the use of the word “voluntarily,” did not intend to limit the action to cases of voluntary payment; though it may perhaps be argued that the limitation is only applicable to such cases, and not to a payment by duress or unlawful coercion of any kind.

There is another principle, however, which we think is applicable to this case and ought to rule it. Money collected or paid upon lawful process of execution cannot be recovered back, though not justly or lawfully due by the defendant in the execution to the plaintiff. The authorities for this position are many and clear: 1 Selwyn’s N. P. 82; 1 Archbold’s N. P. 267; Rapelje v. Emory, 2 Dall. 51, 231; Herring v. Adams, 5 W. & S. 459; Mann’s Appeal, 1 Barr 29; Boas v. Updegrove, 5 Id. 516. In the case of Rapelje v. Emory, supra, the money was recovered and collected of a garnishee in foreign attachment, in the island of St. Eustathius. It was held that the defendant in the attachment could not recover it of the plaintiff, though he had no notice of the proceeding. The reason is a very obvious one. An execution is the end of the law. To permit money so collected or paid to be reclaimed in a new suit, would lead to indefinite and endless litigation. If such suit could be maintained, then another might be brought to recover the money paid on the judgment and execution in it, and so on ad infinitum. Without saying that a defendant would be precluded from recovery of usury voluntarily paid on a judgment entered on bond and warrant of attorney, given for the original loan, we think the rule must be different where the payment is made upon process of execution, and where there is no allegation of actual collusion to evade the statute. The remedy of the defendant is an application to the court to open the judgment. The duty of the garnishee was to notify him of the attachment, and if he failed in this duty, the defendant must look to him for redress of the injury he has suffered by his neglect.

Judgment reversed.