author: Mr. Justice Gordon

text:
    Patterson versus Pittsburg and Connellsville Railroad Co.
    1. In an action against a railroad company for injuries to the plaintiff by their negligence, he offered to prove: that he was a conductor of freight trains of defendants, that they had a siding, on which coal-cars were to be run out to empty coal on a platform, and. it was his duty as conductor to run out on the siding the coal-cars brought with his train ; that by reason of the shortness of the curve of the siding and its improper connection with the main road, it was dangerous to run the cars on the siding; that he had notified the superintendent and foreman of the railroad of such danger and they promised to_ repair the road so as to avoid it, and requested the plaintiff to continue till the repair was made ; that nothing was done towards the repair, and while the plaintiff was running his train on the siding, using due care, the front car, by reason of the shortness of the curve, ran off the track, and the plaintiff on the second car was forced by the shock from the car and injured. The court below rejected the offer. Held, that it should have been received.
    2. A master is not responsible for accidents to his servants from the ordinary risks incident to his business ; it being presumed that the contract was made with reference to the risks.
    3. If a master subjects his servant to dangers such as he ought to provide against, he is liable for any accident resulting from them.
    4. The servant’s primary duty is obedience, and if in the discharge of his duties he js damaged through the neglect of the master, the latter is liable i'u. the injury.

      5. The master is bound to furnish and maintain suitable instrumentalities for the duties required of his servants, and if he does not, he is liable for injuries from his neglect.
    6. If the instrumentality by which the servant is to perform his duty is so obviously and immediately dangerous, that a man of common prudence would refuse .to use it, the master is not liable for resulting damages ; the servant being in such case guilty of concurrent negligence.
    7. When the servant, in obedience to the master, incurs the risk of machinery, which though dangerous, is not so much so as to threaten immediate injury, or it is reasonably probable may be used safely by extraordinary caution, the master is liable for a resulting accident.
    8. Where the defect in the machinery, &c., is of such a character or occurs at such a time that the master cannot reasonably be expected to have knowledge of it, it is the duty of the servant to give him notice ; neglect of this relieves the master of responsibility.
    9. In the case of a corporation such notice is to be given to the officer who has the care of the particular department; his negligence is the negligence of the company.
    10. Ordinarily a notice by a servant to a subordinate, however extensive his authority, is not sufficient, he being but a fellow-servant.
    11. Caldwell v. Brown, 3 P. F. Smith 453 ; Frazier v. Pennsylvania Railroad Co., 2 Wright 104, recognised and approved.
    October 5th 1874.
    Before Agnew, 0. J., ¡Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the District Court of Allegheny county: No. 68, to October and November Term 1878.
    This was an action on the case, brought April 26th 1866, by Elijah Patterson against The Pittsburg & Connellsville Railroad Company, for injuries to the plaintiff in consequence of the negligence of the defendants and their servants, as set forth in the offer of evidence by the plaintiff hereafter given.
    After the jury was sworn, the plaintiff, at the request of the court and defendants’ counsel, that he would submit in writing the evidence on which he relied, made the following offer:—
    “Plaintiff proposes to prove by the witness, Elijah Patterson, and other witnesses, that the plaintiff, Elijah Patterson, in June or July 1869, was employed on the Pittsburg and Connellsville Railroad as a conductor of freight trains; that he brought coal-trains down the road with other freight. That defendants had in their use and occupation a switch, siding or branch road, near the Pittsburg depot of said road, on which coal-cars were to be run out, in order that the coal might be emptied on a platform, and that it was the duty of the conductor to run out coal-cars, which he had brought with his train, on said switch, siding or branch, that the same might be emptied on said platform. That, by reason of the shortness of curve on said side road or branch, and the improper construction of the frog, or connection with the main track, it was hazardous and dangerous to run said coal-cars out on said switch or siding, and that the plaintiff had notified the superintendent of the railroad, also the foreman of the road, of the said hazard and danger, and the superintendent and foreman promised to repair the same, so as to avoid the hazard and.danger, requesting the plaintiff to continue his work, observing proper care, until the defects could be remedied. That neither superintendent nor any one else took any steps to repair said defects, and while plaintiff was running a part of his train of coal-cars over said switch, with the brakemen on the train, in June or July 1864, using due care, the front car of the train, in consequence of the shortness of the curve, was forced from the track and fell to the ground.
    “ That the plaintiff, who was on the second car from the fore end of the train, which was also forced from the track, -was, in consequence of the shock to the car in which he was, thrown down from the track, a distance of about twenty feet, and very seriously injured.
    “ That immediately after the accident and injury to the plaintiff, the defendants repaired the defects by lengthening the curve and changing the frog or connection, making the same safe and free from hazard.”
    The defendant’s counsel objected to the foregoing offer as irrelevant and incompetent.
    The offer discloses:—
    “1. That the injuries complained of were received by the plaintiff while employed as a conductor on defendants’ road,- and were incident to his employment as such.
    i! 2. That the plaintiff, being fully aware of the condition of the switch, voluntarily continued to expose himself to the threatened danger, and was thereby guilty of such contributory negligence as will disable him from a recovery.”
    By the Court : “ The questions presented by the offer of the plaintiff are very difficult to determine, there being a number of decisions somewhat conflicting. But, as the case will undoubtedly be taken to the Supreme Court, let us decide as we may, we think we can save time and expense to the parties by sustaining the objections and rejecting the evidence. If the Supreme Court should decide that we have committed an error, one trial will end the case, and if our decision is found to be correct, the case will also be ended.”
    The objections were sustained, the evidence rejected, and this bill of exceptions sealed.
    The verdict was for defendants.
    The plaintiff took a writ of error and assigned for error the rejection of his offer of evidence.

      W. iS. Miller and JR. B. Qarnahan, for plaintiff in error.
    The plaintiff having called attention of the proper officers to the dangerous condition of the switch, and under a promise to repair it and on a request to him to remain till it was done, having continued in the service, the defendants are liable, although he was one of their servants: Clarke v. Holmes, 7 Hurlstone & Norman 937; Snow v. Housatonic Railroad Co., 8 Allen 441. The defendants were bound to use ordinary care: Caldwell v. Brown, 3 P. F. Smith 456; O’Donnell v. Allegheny Valley Railroad Co., 9 Id. 239 ; Weger v. Pennsylvania Railroad Co., 5 Id. 465; Frazier v. Pennsylvania Railroad Co., 2 Wright 111.

      Gf. Shiras, Jr., for defendants in error.
    Where persons are employed in the same general service and one of them is injured through the carelessness of another, the employer is not responsible : Ryan v. The Cumberland Valley Railroad Co., 11 Harris 384; Frazier v. The Pennsylvania Railroad Co., 2 Wright 110; Caldwell v. Brown, 3 P. F. Smith 453; Gilman v. Eastern Railroad Co., 10 Allen 233.
   Mr. Justice Gordon

delivered the opinion of the court, January 11th 1875.

The plaintiff made the following offer-of evidence, to wit: That he was employed in June or July 1869, as a conductor of freight trains on the Pittsburg & Connellsville Railroad; “that he brought coal-trains down the road with other freight. That the defendants had in their use and occupation a switch, siding or branch road near the Pittsburg depot of said road, on which coal-cars were to be run out in order that the coal might be emptied on a platform, and that it was the duty of the conductor to run out coal-cars which he had brought down with his train, on said switch, siding or branch, that the same might be emptied on said platform. That by reason of the shortness of curve on said road or branch, and the improper construction of the frog, or connection with thé main track, it was hazardous and dangerous to run said coal-cars out on said switch or siding, and that the plaintiff had notified the superintendent of the railroad, also the foreman of the road, of the said hazard and danger, and the superintendent and foreman promised to repair the same so as to avoid the hazard and danger, requesting the plaintiff to continue his work, observing proper care, until the defects could be remedied. That neither the superintendent nor any one else took any steps to repair said defects, and while plaintiff was running part of his coal-cars over said switch, with brakes-men on the train, in June or July 1869, using due care, the front car of the train, in consequence of the shortness of the curve, was forced from the track and fell to the ground. That the plaintiff, who was on the second car from the fore end of the train, which was also forced from the track, was, in consequence of the shock to the car in which he was, thrown down from the track a distance of about twenty feet, and very seriously injured.”

The defendants’ counsel objected to this offer: 1st. “ Because the injuries complained of were received by the plaintiff while employed as conductor on defendants’ road, and were incident to his employment as such.”

2d. “That the plaintiff, being .fully aware of the condition of the switch, voluntarily continued to expose himself to the threatening danger, and was thereby guilty of such contributory negligence as will disable him from a recovery.” The court sustained the objections and overruled the offer.

We hold this action of the court to be erroneous. It is true the master is not responsible for accidents, occurring to his servant, from the ordinary risks and dangers which are incident to the business in which he is engaged; for in such case, the contract is presumed to be made with reference to such risks. But, on the other hand, where the master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom. In the case of Clarke v. Holmes, 7 Hurlst. & Nor. (Ex.) 937, it was ruled, that where one was employed to oil dangerous machinery, the guard or fence around which was broken, and of the dangerous character of which he had complained, the employer was liable for damages to the employee, arising from the defect complained of. In this case, though there was a statute requiring the fencing of hazardous machinery, the ruling was, nevertheless, put upon the general grounds of the master’s duty not to subject his servant to extraordinary dangers which he ought to foresee and prevent. We have also a case in point, in Snow v. The Railroad, 8 Allen 441, where the company was held liable, to an employee, for an injury caused by the want of proper repairs in its road-bed. In both these cases, the defects, from which the accidents arose, were known to the employees, but as they were injured in the discharge of duties imposed upon them by their employers, such knowledge was adjudged not to raise a presumption of concurrent negligence. This doctrine is obviously just and proper. The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged, through the neglect of the master, it is but meet that he should be recompensed. The general principle, as recognised by our own cases, inter alia, Caldwell v. Brown, 3 P. F. Smith 453, and Frazier v. Penna. Railroad Co., 2 Wright 104, is, that the employer is bound to furnish and maintain suitable instrumentalities for the work or duty which he requires of his employees, and failing in this, he is liable for any damages flowing from such neglect of duty.

In this discussion, however, we are not to forget that the servant is required to exercise ordinary prudence. If the instrumentality by which he is required to perform his service, is so obviously and immediately dangerous, that a man of common prudence would refuse to use it, the master cannot be held liable for the resulting damage. In such case the law adjudges the servant guilty of concurrent negligence, and will refuse him that aid to which he otherwise would be entitled. But where the servant, in obedience to the requirement of the master, incurs the risk of machinery, which though dangerous, is not so much so as to threaten immediate injury, or where it'is reasonably probable it may be safely used by extraordinary caution or skill, the rule is different. In such case the master is liable for a resulting accident. The present case may be used as an example to illustrate what we mean. Let it be considered that the switch in question was dangerous, yet doubtless many trains had passed over it safely, and hence a man of common prudence might well conclude that, though it was more than ordinarily dangerous, yet many more trains might in like manner be passed over it safely. Under such a state of facts the conductor might properly rest upon the judgment of his superiors, who requested him to continue its use, hoping that by extra care and skill he might avert accidents, until the switch was reconstructed or properly repaired. On the other hand, if the defect was so great, that obviously, with the use of the utmost skill and care, the danger was imminent, so much so, that none but a reckless man would incur it, the employer would not be liable.

These, however, are questions which necessarily grow out of the facts of the particular case under consideration, and must therefore be referred to the jury.

Again, where the defect in the machine, or other appliance, from which the danger arises, is of such a character, or occurs at such a time, that the employer cannot reasonably be expected to have knowledge thereof, it is the duty of the employee to give him notice, and the neglect of such duty exempts the employer from responsibility.

The plaintiff’s offer met this requirement. He proposes to prove that he notified the superintendent and foreman of the dangerous character of the switch in question. It is objected, however, that this would not be sufficient, because notice to a subordinate, however extensive his authority, is, after all, but notice to a fellow-servant, and therefore not binding upon the master. In ordinary cases such is undoubtedly the rule, but its strict application, in the case of corporations, such as the defendant, representing a multitude of shareholders, is impracticable. Hence we approve of the doctrine announced in the case of Frazier v. Penna. Railroad Co., already referred to, that it is not the company, but the officer to whose care is committed this particular department of its business, who is expected to use ordinary care in the conduct thereof, and whose negligence therein is the negligence of the company. It is apparent from this authority, that the proper person to notify, of the defect complained of, in the case in hand, was the superintendent of the defendants’ works.

As his powers were plenary he could readily have applied the necessary remedy, and, if he neglected so to do, his default was the default of the company.

As the plaintiff’s offer embraces the proposition of notice to the defendants’ superintendent, it should have been admitted.

The judgment is reversed, and a new venire ordered.


source: Caselaw Access Project

author: Mr. Justice Williams

license: Public Domain

text:
    Barr & Son versus Duncan.
    1. A rule of court provided, in actions on bills, notes, bonds or other instruments of writing for payment of money, book accounts, and contracts for loan or advance of money, scire facias on mortgages and mechanics’ liens, debt or scire facias on recognisances, judgments or other records, that if the plaintiff file an affidavit stating the amount due him, and specification of his claim, &e., “ he shall have judgment unless the defendant shall file an affidavit of defence setting forth specifically the nature and character of his defence.” Held, that under this rule judgment cannot be taken for want of an affidavit of defence in an action by a guest against an innkeeper for money lost by the latter’s negligence.
    2. The plaintiff’s right to judgment for want of an affidavit of defence does not depend upon the form of action but the cause of action.
    3. Judgment cannot be entered for want of an affidavit of defence, in an action on an implied, contract to pay money.
    4. 'VVoodwell v. Bluff Mining Company, 1 Casey 365, recognised.
    October 6th 1874.
    Before Agnew, 0. J., Sharswood, Williams, Mbrcur and Gordon, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1874, No. 52.
    This was an action on the case, commenced December 9th 1873, by Samuel Duncan against J. G. Barr et al., trading as J. G. Barr & Son.
    The affidavit of claim was:—
    “ S. A. Duncan, being duly sworn, says that J. G. Barr & Son, proprietors of the Central Hotel, Pittsburg, are indebted to him in the sum of $141, with interest thereon from November 6th 1873, which said indebtedness arises as follows, viz.: On the night of November 5-6, affiant was a guest at said hotel of plaintiffs, and as such occupied a room therein; that upon retiring affiant locked the door of his said room, the bolt provided for said door being useless by reason of the absence of the hasp or socket by which the bolt is made to fasten the door; that on the morning of November 6th deponent, upon awaking, found that the door of his room had been unlocked, and some bank-notes and a watch, chain and locket stolen therefrom; that said watch was the ordinary time-keeper carried by affiant upon his person, and said chain and locket were attached thereto. That said J. G. Barr & Son have paid to affiant the money thus stolen or taken from him, but refuse to pa,y to him the value of said watch, chain and locket; that said watch, chain and locket were worth the said sum of $141.”
    The affidavit of defence was:—
    “ J. Gh Barr, one of the above-named defendants, being duly-sworn according to law, says that the defendants above named have a full, just and legal defence against the whole of the plaintiff’s claim, the nature of which is as follows, viz.: The defendants’ are innkeepers of the city of Pittsburg, county aforesaid; that the plaintiff was, as they believe, a guest at - their hotel or house, at the time stated by him in his affidavit of claim; that they had at the time, and for a long period before that time and since,' a good, sufficient and secure safe in the office of their said house or hotel, for the safe-keeping of any money, goods, jewelry and valuables belonging to their guests; that they had at that time a notice placed in the lodging-rooms, parlor and public hall of their said hotel, in conspicuous places, stating the fact that they had such a safe provided for the purpose of depositing goods, money, jewelry and valuables belonging to their guests, and that they, the said proprietors, would not be responsible for said money, goods, jewelry and valuables, unless deposited in said safe; and that said notice was posted in the room occupied by said plaintiff on the night- he alleges the loss of his said watch, chain and locket, and that there was also a notice posted in said room, according to the Act of Assembly, in such case made and provided, requiring guests to lock and bolt their doors, and when leaving the room to leave the key at the office; that the said room had good, substantial and serviceable fastenings for both doors and windows, which, if properly used by said plaintiff, would have fully protected him from the said loss ; and therefore the said defendants say they have a full and good defence to the whole of said plaintiff’s claim.”
    Rule 65 of the District Court of Allegheny provides, in actions on hills, notes, bonds or other instruments of writing for the payment of money, book-accounts and contracts for the loan or advance of money; of scire facias on mortgages and liens of mechanics and material-men; of debt or scire facias on recognisances, judgments or other records, “ that if the plaintiff shall file an affidavit, stating the amount he verily believes to be due from the defendant, with a statement or specification of the same (his claim), if the same be not in writing, then the plaintiff shall have judgment, unless the defendant shall file an affidavit of defence setting forth specifically and at length the nature and character of his defence.” ' *
    The court (White, J.) entered judgment for want of a sufficient affidavit of defence.
    The defendants took a writ of error, a.nd assigned for error the entering of the judgment.

      (x. W. De damp, for plaintiffs in error.

      S. A. Medlung, for defendant in error.
   Mr. Justice Williams

delivered the opinion of the court, November 19th 1874.

This case does not come within the rule of the District Court (Reg. 65, sect. 2) authorizing the entry of a judgment by default, at any time after the return-day and ten days service of the writ, unless the defendant should have previously filed an affidavit of defence stating therein, specifically and at length, the nature and character of the same. By its very terms the rule applies only to actions on bills, notes, bonds or other instruments of writing for the payment of money, book accounts and contracts for the loan or advance of money; to actions of scire facias on mortgages and liens of mechanics and- material-men, under the Act of March 17th 1836, and its supplements, and to actions of debt or scire facias on recognisances, judgments or other records. The action in this case was brought to recover the value of a gold watch, chain and locket alleged to have been stolen from the room occupied by the plaintiff as a guest in the Central Hotel, in the city of Pittsburg, of which the defendants below were the proprietors. The affidavit of claim sets out the circumstances under which the articles were stolen, and avers that they were worth one hundred and forty-one dollars. It is clear that the cause of action is not embraced in any of the specifications in the rule. The action was not instituted on any instrument of writing for the payment of money, or on a book account or contract for the loan or advance of money; nor was it an action of scire facias of any description, or of debt on a recognisance, judgment or other record. It is im material whether the action is assumpsit or case. The plaintiff’s right to a judgment by default, for want of a sufficient affidavit of defence, does not depend on the form of the action, but upon the cause for which the suit was brought. Undoubtedly the defendants are liable for the value of the articles if they were lost or stolen by their negligence, because it was their duty to keep them safely. But the plaintiff is not entitled to a judgment under the rule, even if the law implies a promise or undertaking on their part to pay the plaintiff their value. In Woodwell v. The Bluff Mining Company, 1 Casey 365, this court decided that under the rule in question no judgment can be entered for want of an affidavit of defence in an action upon on imp>lied contract to pay money. The defendant in that case was the owner of stock in the company upon which the directors, in pursuance' of the by-laws, had made various assessments, and the action was brought to recover the amount. The District Court entered judgment for the plaintiff for want of a sufficient affidavit of defence. This court reversed the judgment, saying at the outset of the opinion: It is unnecessary to consider me sufficiency of the affidavit, for this was not a case in which an affidavit of defence was legally required.” Nor is the case within the first section of the rule which provides that in all actions of debt or assumpsit, and covenant for a sum certain, when the plaintiff shall file with his praecipe an affidavit stating the amount verily believed to be due from the defendant, he shall be entitled to judgment, or for want of appearance, unless defendant shall file an affidavit of defence with his appearance. This rule, as is obvious, does not require the defendant to file a specific, but only a general affidavit of defence, in default of which the plaintiff is entitled to judgment, or for want of appearance. Under this rule no judgment can be rendered by default for want of a specific affidavit of defence, and the question of the sufficiency of the affidavit cannot be raised if it avers that the defendant has a good and valid defence to the plaintiff’s claim. Nor has the second section of the fifth rule any application to this case. It was not intended to authorize the entry of a judgment in default either of a general or specific affidavit of defence. Its sole purpose was to dispense with the necessity of proving the items specified in the plaintiff’s claim, when not directly traversed by the affidavit of defence. It admits the sufficiency of a general affidavit in such case, but declares that it shall be deemed and taken as a confession of the plaintiff’s cause of action, or so much thereof as is not traversed, and a claim that the defendant has a just defence by way of avoidance thereof.

If, then, the judgment entered in this case was not authorized by any rule of the District Court, it is unnecessary to consider whether the facts set out in the affidavit of defence would, if true, be a defence to the plaintiff’s action.

Judgment reversed, and a procedendo awarded.


author: Chief Justice Agnew

text:
    Schell et al. versus Stein.
    1. The recorder of deeds is not required to keep a general index of all the deed and mortgage books in his office.
    2. The duty of searches is that of the officer and not of parties, and he must see to it that he makes no mistake.
    3. By the Act of March 29th 1827, no more is required of the recorder than to keep an index for each book.
    4. If a recorder keeps a general index and omits to index a deed in it, and thereby overlooks a deed regularly recorded and indexed in the proper book, his certificate renders him liable.
    5. A person who has his deed acknowledged, recorded in the proper book and certified by the recorder, has done all the law requires.
    6. Whether a person’s title can be taken from him by the omission to enter the record of his deed in the particular index, not decided.

    7. Lueh’s Appeal, 8 Wright 519; Speer v. Evans, Id. 141, remarked on.

      October 7th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 138, of October and November Term 1873.
    This was an action of ejectment, for a lot of ground in Lower St. Clair township, commenced October 16th 1872, by Joseph Schell and John Shuck against Andrew Stein.
    The case was tried April 25th 1873, before Stowe, J. The title of the premises in question was, on June 6th 1856, in Andrew Stein, the defendant. On the 2d of January 1871, he mortgaged them to the plaintiffs. To December Term of the Court of Common Pleas, the mortgagees issued a scire facias on the mortgage, on which judgment ivas recovered. A levari facias issued to March Term 1872, under which the premises were sold to the plaintiffs, and the sheriff’s deed acknoAvledged April 27th 1872.
    The plaintiffs gave the foregoing in evidence; also that the defendant had been in possession of the premises sixteen years ; was in possession at the commencement of the suit and at the trial. They then rested.
    The defendant gave in evidence deed for the premises, dated January 4th 1856, from himself to Caspar Stein, acknowledged same day, with certificate of the recorder of deeds, dated January 5th 1856, endorsed, certifying that it had been recorded in the recorder’s office “in deed book vol. 121, page 182.”
    The plaintiffs, in rebuttal, gave in evidence the certificate of the recorder of deeds of Allegheny county, dated October 14th 1872, that “ he had made search in the General Index Book in recorder’s office, and finds no conveyance from Andrew Stein to Caspar Stein from January 1st 1850 to October 14th 1872.”
    The defendant then gave in evidence deed book vol. 121, page 182, showing record of the deed, dated January 4th 1856, AndreAv Stein to Caspar Stein, recorded January 5th; also the index to that volume under letter “S,” as follows: “Andrew Stein el ux. to Caspar Stein, 182.”
    The court charged :—
    “ We instruct you pro forma that under the evidence, if you believe that this deed was not entered upon the Index docket at the time search was made, as shown by the evidence, your verdict should be for the plaintiff.
    “ There is no question, under the evidence, as to the fact that Caspar Stein purchased this property long before this mortgage, under which plaintiffs claim, was made by defendant, and that the deed, although duly recorded and indexed in the same volume, could not be found indexed upon the Index docket kept in the recorder’s office. Our object now is to raise the question whether, when a party has purchased property and obtained a deed, and left it for record in the recorder’s office, and where it has actually been entered of record in the deed book, and indexed therein, and also duly certified upon the deed itself, as in this case, the neglect, oversight or rascality of the recorder in not entering the same upon the regular Index docket, will give another, who purchases in good faith and without actual notice of' the first conveyance, title as against the first purchaser, so as to enable him to take the property. Wo instruct .as we do pro forma, simply to raise this question, so that it may be in a shape to be formally determined by the Supreme Court, without the further intervention of the jury, and therefore we ask you to render your verdict for plaintiff, subject to the opinion of the court upon this question, which we will reserve for further consideration.”
    The jury found for the plaintiffs.
    The court afterwards entered judgment for the defendant on the reserved point, non obstante veredicto.,
    The plaintiffs removed the record to the Supreme Court by writ of error, and assigned for error the entering judgment for the defendant on the reserved point.

      J. H. Miller (with whom was A. McBride), for plaintiffs' in error.
    The Act of March 29th 1827, sect. 5, 2 Br. Purd. 1249, pl. 7, provides that “for each and every of the books” belonging to the recorder’s office, “ in which deeds and mortgages may be recorded,” there shall he “two indexes,” one in which the names of the grantors and mortgagors, and the other the names of the grantees and mortgagees “ shall be so arranged as to afford an easy and ready reference to the matters in said books.” This deed not being duly indexed, was not notice: Speer v. Evans, 11 Wright 141; Goepp v. Gartiser, 11 Casey 130; Magaw v. Garrett, 1 Id. 319; Bolton v. Johns, 5 Barr 149. Indexing in the book where the deed is recorded is not in accordance with the act, which means the general index, and therefore was not notice: Luch’s Appeal, 8 Wright 519; Price on Limitation of Lien 348.
    <7. B. M. Smith (with whom was S. M. B,aymond), for defendant in error,
    referred to Acts of May 28th 1715, March 18th 1775, sect. 1, 1 Smith L. 94, 422, 2 Br. Purd. 458, pl. 1, et seq., 472, pi. 76; Act of 1827, supra; Luch’s Appeal, 8 Wright 519.
   Chief Justice Agnew

delivered the opinion of the court, November 9th 1874.

The question presented by the record in this case is, whether a deed regularly acknowledged or proved, and recorded in the proper book, and indexed in the separate index appropriated to the book, but not in the general index of all the deed books, is not defectively recorded. If it be, the conceded principle is, that a deed defectively registered is a nullity as to subsequent purchasers or mortgagees. There is no law which requires the recorder to keep a general index to all the deed or mortgage books in his office. That it is a great convenience, and in the populous counties of the state has become a necessity, is evident, but it is the province of the legislature, and not of this court, to make this convenience or the necessity the subject of law. The registration of deeds is purely a system of legal institution, and not of common right or abstract justice. At common law in England, there was no system of registration, and the rule between claimants of the same title was found in the maxim, “prior in tempore potior est in jure.” In this state the system has been o'ne of growth. The original Act of 1715 did not even require the record to be a book. The recorder was to provide parchment or good large books, and his certificate was to give the number of the book or roll. No provision was made for indexing until the Act of 1827, which was applicable to other offices as well as that of the recorder. But so early as 1775, the law required a bond of the recorder with sufficient sureties, which was to be held for the use of “ parties that shall be damnified or aggrieved ” in the same manner as sheriff’s bonds. The duty of searches is that of the officer, not of parties, and he must see to it that no mistakes are made in searching. The Act of 1827 imposed no duties as to indexes, except to have one for each and every book. If greater convenience induces the recorder to keep a general index, to save the handling of different books, and he omits to index a deed in it; and thereby overlooks a deed regularly recorded and duly indexed in the proper book, his certificate makes him liable to the party who is injured by it. But surely the one who has had his deed duly acknowledged or proved, recorded in the proper book, and certified under the hand and seal of office of the recorder in due form, has done all the law requires of him. On what principle of law or sound reason shall he be required to supervise the officer’s gratuitous indexing of deeds in an index not required by law ? He is not to be presumed to be familiar, and as a fact, nine out of ten persons are not familiar with the system of the office. All the citizen can be bound to know, is the law, and he is warned by no law that there must be kept a general index. Whether his title cam be taken from him, by the omission to enter his recorded and certified deed in the particular index, may admit of question, but we give-no opinion on this point.

Luch’s Appeal, 8 Wright 519, has no bearing upon this case. That was a very peculiar case, where a most unusual instrument was recorded in a book of miscellanies, and then sought to be supported as a recorded mortgage. In Northampton county there was an actual and customary division of record books into several kinds, one being devoted specially to mortgages, and it was held that the anomalous paper in the book of miscellanies was not sufficient as the record of a mortgage. In that case, the authority of which it is not intended to deny, Justice Read went into a discussion to show the necessity of a division of the record books according to the leading kinds of recordable deeds. In a populous city such as that of Philadelphia or Allentown, a custom so proper may be considered as having ripened into law, without questioning the custom in the more rural districts, of recording all kinds together, asserted to be the legal rule, -by Chief Justice Gibson in McLanahan v. Reeside, 9 Watts 511. But a division of the different kinds of deeds by recording them.in different and appropriate books, whereby every one is led to confine his search to the books in which the kind he is searching for is contained, is no ground for holding that a title shall be lost to an owner whose deed is recorded and indexed in the proper book, merely because the recorder has not gratuitously indexed it in a general index of all the books.

In the case of Speer v. Evans, 11 Wright 141, there had been a total omission to index the mortgage according to the requirement of the Act of 1827. That case is entirely distinguishable from this, and renders it unnecessary that we should either affirm or deny the opinion expressed by Chief Justice Woodward as to the omission to index the deed at all.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Dollar Savings Bank versus Bennett.
    — 1. A mere naked verbal agreement by a purchaser at sheriff’s sale with his own money, that he will hold the premises in trust for the defendant, neither vests any estate in the defendant under the statute prohibiting parol declarations of trust, so that he has any claim to the money under the common count, nor being nudum pactum, gives any ground for an action.
    2. The plaintiff alleged that, owing a bank a debt secured by mortgage, the bank agreed with him to sell the land at sheriff’s sale, under the bond secured by the mortgage, and purchase it, and then sell as much as would pay the debt, repay-him any surplus and reconvey to him any unsold land; the bank so bought and sold part for more than enough to pay the debt, and did not give him the surplus, or reconvey the residue of the land. In an action of assumpsit to recover the surplus money and the value of the land sold, the court charged that if the jury found, that if it was understood by the parties that the sheriff’s sale was to be merely a process of increasing the security of the bank, or to enable plaintiff through the bank to make title to the land, or to enable the bank to sell part and pay the debt; or if it was the understanding the debt should survive the sheriff’s sale, the sheriff’s deed was only a mortgage and plaintiff might recover. Held to be error, no consideration for the alleged promise being adverted to in the instructions.
    3. The mortgagee had a right to proceed on the bond and become purchaser at the sale if he was the highest and best bidder.
    4. Boynton v. Housler, 23 P. F. Smith 458 ; Danzeisen’s Appeal, Id. 65; •Sweetzer’s Appeal, 21 Id. 264, distinguished.

      October 7th 1874.
    Before Agnew, 0. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 146, to October and November Term 1873.
    This was an action of assumpsit, brought July 30th 1872, by John F. Bennett against The Dollar Savings Bank.
    The declaration, in the first count, set out that the plaintiff was indebted to the defendant in $16,000, with interest at 8 per cent, per annum, for which the defendant held a judgment-bond, dated January 29th 1864, and secured by mortgage of the same date on lands and coal property owned by the plaintiff in Allegheny county, worth $230,000; that it was agreed between the plaintiff and defendant that the defendant should issue execution on the judgment entered on the bond, and procure the lands, &c., to be sold by the sheriff, and that the defendant should purchase the lands at the sale for their actual and reasonable value, and in consideration thereof the defendant agreed that the plaintiff should have the privilege of redeeming the lands upon paying, within a reasonable time, the debt and interest, and the expenses, &c., incurred by the defendant; that if the plaintiff should not redeem the lands, &c., within a reasonable time, then a sufiicient part to pay the debt, interest, costs, &c., should be sold by the defendant, with the consent of the plaintiff, or by the plaintiff, with the consent of the defendant; and in case of such sales, the defendant to pay over to the plaintiff, or the plaintiff to retain — as the case might be — any surplus, after payment of the debt, interest, costs, expenses, &c., and the defendant to reconvey to the plaintiff any part of the land remaining unsold; that, in pursuance of the agreement, the defendant procured the land to be sold by the sheriff, and, the plaintiff not interfering, the defendant purchased all the lands, &c., at the sale, at the nominal sum of $5300, their actual value being $238,000; that after the sale the plaintiff, in pursuance of the agreement, retained the possession, paid the. taxes and made valuable improvements; that afterwards the defendant, without the consent of the plaintiff, conveyed all the coal underlying the lands and other coal mentioned in the mortgage, for $47,050, a sum far below its market value, which was $110,000. The declaration charged that, by reason of these facts and of the agreement, the defendant was liable to pay to plaintiff $85,000, being the difference between the debt, interest, costs, expenses, &c., and the sum of $110,000, which was the market value of the land as aforesaid.
    The second count averred that the defendant, in violation of the agreement, and without the consent of the plaintiff, conveyed the whole of the remainder of the lands, &e., purchased by the defendant to trustees for the defendant and others, not the plaintiff, for the nominal consideration of one dollar, the lands being of the value of $128,000; and that, by reason thereof, the defendant became liable to pay the plaintiff “the actual and reasonable value of said lands, to wit, the sum of $128,000.”
    There was also a count for $213,000, money had and received by the defendant for use of the plaintiff.
    The cause was tried May 9th 1873, before Stowe, J.
    The plaintiff testified that the interest on his debt being unpaid in January 1866, and the hank having instructed their solicitor, Mr. Burgwin, to collect it, the plaintiff went to Mr. Burgwin’s office to have the collection put off; Mr. Burgwin advised him to let the bank sell the property under their mortgage, the bank to obtain the title, and the plaintiff could, through the bank, make a good title to any part of the property he should sell; the hank would hold the property as security for their debt; and if in the meantime plaintiff could sell any and pay them off, they would restore the remainder, and failing in that, they should, with his consent, sell the property, pay themselves, and pay plaintiff the remainder, after taking out their debt, costs, &c. He afterwards went to the bank and saw Mr. Coulton, who was treasurer and a trustee; he was “ the head man, the only man, excepting the president, the only official of any rank.” Plaintiff told Mr. Coulton his conversation with Mr. Burgwin, and asked him whether the bank would agree to, the conditions contemplated by Mr. Burgwin and himself. Coulton said the bank would. Coulton then stated to plaintiff many instances in which similar arrangements had been made with debtors of the bank. Persuaded by these conversations and promises, plaintiff allowed Mr. Burgwin to sell his property at sheriff’s sale. It was sold for $5300. Plaintiff testified further as to acts of the bank after the sale, tending to show that the hank still recognised his ownership of the land on the terms of the agreement. He gave other evidence also, for the purpose of sustaining the allegations in his declaration.
    The defendant gave evidence in answer to plaintiff’s case.
    The plaintiff submitted these points:—
    1st. If you find from all the evidence in this case that the sheriff’s sale, whereby the title to the property described in the mortgage of plaintiff to defendant, dated January 29th, A. D. 1864, was vested in defendant, was understood and intended by the parties as being merely a process for the purpose of increasing the security of the bank, or to enable the plaintiff, through the bank, to make title to any portion of the mortgaged' property he might sell, or to enable the bank to sell a sufficient amount of the mortgaged premises to pay off the mortgage-debt, interest and costs ; the sheriff’s deeds, although absolute on their face, are, in law, merely a mortgage, and it is your duty to find for the plaintiff in this case.
    2d. If you find from the evidence that it was the understanding of the parties at the time of the sheriff’s sales, that the pre-existing mortgage-debt should survive the sheriff’s sales and deeds, then the sheriff’s deeds are but a mortgage, and your verdict should be for the plaintiff.
    The court, after reading the points, charged:—
    “ These two points are affirmed pro forma, and if you believe the evidence of the plaintiff in this case, and that the facts suggested in the points are sufficiently shown by all the testimony in the cause, you should find for the plaintiff the difference between the sum the bank was entitled to have for the debt, interest and costs, as well as such other incidental expenses as they were to be paid for, and the fair value of the coal at the time it was sold by the bank, subject to the opinion of the court upon the question of law arising under said finding of facts by the jury.
    “ In speaking, of the parties in suit, we of course mean the plaintiff, John F. Bennett, and The Dollar Savings Bank in its corporate capacity. In respect to the latter,- it is only bound by the acts of parties having a power to' act for it at the time, or whose acts were subsequently accepted and acted upon by the bank.
    “ In this case an arrangement of the solicitor, such as alleged here, could not bind the bank, nor could that of the treasurer, without more. But if they did make the agreement alleged by plaintiff, and under it the property was sold in the manner it was, at sheriff’s sale, and title vested in defendant and the bank, through the executive committee of the bank or such other officer as was allowed to control or manage its affairs at any time before the sheriff’s sale, or afterwards, and before the sale of coal, with a knowledge of the arrangement, recognised it as an obligation the bank would carry out, the bank is bound by it.

      “ But the jury must be careful not to confound an understanding of plaintiff alone, arising out of his actual or supposed knowledge of what the bank had done for others under like circumstances, with an actual agreement of the bank in this particular case, to do what it is alleged by plaintiff it actually agreed to do when it obtained the title to plaintiff’s land at sheriff’s sale.
    “ If both parties did not say or do that which fairly indicated the mutual understanding previous to sheriff’s sale, the case is not sufficiently made out by plaintiff. He must satisfy you before he can recover that it was actually agreed by the parties acting for the bank, that the property, when sold, would be held as plaintiff alleges, or that they (the parties acting for the bank), by what they did and said, fairly gave to plaintiff to understand that the bank did actually agree to do so.”
    The verdict, May 9th 1873, was for the plaintiff for $20,227.97, with interest from April 1st 1870.
    The court, July 12th 1873, ordered judgment to be entered on the verdict for the plaintiff, on the reserved point, for $24,000.46.
    The defendant took a writ of error, and, amongst other specifications, assigned for error the affirmance of plaintiff’s points and entering judgment on the verdict for the plaintiff on the reserved point.

      T. M. Marshall, for plaintiff in error.
    If a promise to purchase land for the benefit of another be broken, the measure of damages is not the price of the land or the value of the contract: Kistler’s Appeal, 23 P. F. Smith 393; nor does an agreement to buy defendant’s property at sheriff’s sale transfer the title after the purchase to the defendant: Fox v. Heffner, 1 W. & S. 372; Kisler v. Kisler, 2 Watts 327; Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 158; Robertson v. Robertson, 9 Watts 32; Haines v. O’Conner, 10 Id. 313; Jackman v. Ringland, 4 W. & S. 149; McNair v. Compton, 11 Casey 23.

      J. W. Kirher (with whom was Samuel Palmer), for defendant in error.
    A deed absolute on its face may be shown by parol to be merely a security for money lent: Sweetzer’s Appeal, 21 P. F. Smith 265; Danzeisen’s Appeal, 23 Id. 65; Harper’s Appeal, 14 Id. 315; Houser v. Lamont, 5 Id. 311; Kunkle v. Wolfsberger, 6 Watts 126; Hiester v. Madeira, 3 W. & S. 384; Beegle v. Wentz, 5 P. F. Smith 369. When one having an interest in land is induced to comply with the verbal promise of another, that he will repurchase for the former at sheriff’s sale, by a purchase claiming for himself, he becomes a trustee ex maleficio: Boynton v. Housler, 23 P. F. Smith 453; Maffitt v. Rynd, 19 Id. 380; Cook v. Cook, Id. 443. Such purchaser is not protected by the Act of April 22d 1856, sect. 4 Pamph. L. 533, 1 Br. Purd. 724, pl. 3; Squire’s Appeal, 20 P. F. Smith 266; Seichrist’s Appeal, 16 Id. 237. That the conveyance was for a pre-existing debt makes no difference: Todd v. Campbell, 8 Casey 250.
   Mr. Justice Sharswood

delivered the opinion of the court, November 9th 1874.

This was an action of assumpsit. The declaration contained two special counts and the common count for money had and received. It is essential to maintain this action that the promise or undertaking of the defendant should be founded upon a sufficient legal consideration — either some benefit to the promissor or some injury to the promissee. Nothing is clearer in principle or better settled by authority than that a mere naked verbal agreement by a purchaser at a sheriff’s sale, with his own money, that he will hold the premises in trust for the defendant — neither vests any equitable estate in the defendant under the statute which prohibits parol declarations of trust — so that no claim to the money could exist in him under the common count — nor does it give any ground for an action, being a mere nudum pactum. The mortgagees had a legal right to proceed on their judgment-bond and to become the purchasers at the sale, if they were the highest and best bidders. There may have been in the-special count a sufficient allegation of consideration, and there may have been evidence of it given upon the trial, which might have been left to the determination of the jury. Upon these questions we do not feel called upon to express any opinion. The learned judge below evidently did not advert to these vital points in the ease in affirming, as he did without qualification, the first two propositions submitted to him by the plaintiff below. No consideration for the alleged promise is adverted to in either of these propositions. Sweetzer’s Appeal, 21 P. F. Smith 264, is not opposed to this, for there Chief Justice Thompson states in his opinion, and it was evidently the turning-point of the case, “ at the time of the sale it was made known to creditors that the property was simply being put in a shape to bring money on mortgage to pay Sweetzer’s debt. The master finds that at the sale the Jiffkins, Sherrerd and Sweetzer all represented that the sale was merely an arrangement for the benefit of Sweetzer.” In Danzeisen’s Appeal, 23 P. F. Smith 65, the conveyance was without consideration upon a parol promise by the grantee to raise money by a mortgage of the land to pay the grantor’s debts, and the present Chief Justice says in the opinion : “Itis very evident that the deed was a mortgage or a trust ex maleficio would arise; for when the deed was delivered no consideration passed. Miller procured the estate without payment of any purchase-money, and therefore stood in no better situation in point of fact than one in whose name a deed is taken by another, who pays the purchase-money.” And again : “ It would be different had the deed been intended to enable Miller (the grantee) to raise money by a sale, for there Danzeisen (the grantor) would intend to pass an absolute estate, and to trust the promise of Miller to apply the proceeds to his use ; a breach of such a promise would not convert Miller into a trustee, and the case in principle would resemble that of Barnet v. Dougherty, 8 Casey 371.” In Boynton v. Housler et al., 23 P. F. Smith 458, the purchaser on the day preceding the sale said, that “if they would not interpose or bid at the sale and have it bid off as low as possible, she (the widow of the party whose estate was sold) should have the homestead.”

These cases, then, upon which the defendant in error mainly relies to support the propositions which the learned judge affirmed, do not sustain his contention. It is unnecessary to consider the other errors assigned.

Judgment reversed, and a venire facias de novo awarded.


text:
    Jones versus Woods.
    1. A voluntary service by one to another without a precedent request or subsequent promise forms no ground of action.
    2. A precedent,request may be inferred from the work being done under the defendant’s eye and-for his benefit.
    3. An attorney performed professional services for the benefit of three jointly interested, at the request of two ; in a suit against the third for compensation, the court charged, “ that if the retention and services of counsel were for the benefit of all, and enured to the advantage of all, and all, the defendant included, were aware of the fact, then all are liable and should be made to pay for the services resulting to their general benefit.” Held to be error.
    October 8th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the District Court of Allegheny county: No. 6, to October and November Term 1874.
    This was an action of assumpsit, brought June 5th 1871, by Robert Woods and Stephen Woods, partners, as R. & S. Woods, against Nelson Jones.
    The declaration was, in the first count, for the “sum of $500, the price and value of work, viz., professional services,” &c.; in the second, for $500, money received by defendant for plaintiffs’ use; in the third, for $500, money paid, &c., by plaintiffs for defendant ; in the fourth, for $500, found to be due by defendant to plaintiffs on an account stated. The damages were laid at $1000.
    The case was tried April 19th 1872.
    Robert Woods, one of the plaintiffs, testified that he had been employed, with the late. Judge Hepburn, by Thomas Jones, Nelson Jones and Pressley Jones, in relation to a sale of their property to the Pittsburg & Steubenville Railroad Company; the company having bought their property for $66,000, made a payment of $5000, and failed to pay the balance. The plaintiffs obtained a decree against the company for the money due on the original purchase, and after much litigation the money was obtained, and Nelson Jones, defendant, received his proportion from the railroad company. The witness said: “ During all the time I was attorney for those three parties, I never heard a breath to the contrary from them or any one else.” He further testified as to the amount and character of his services and their value. Thomas Jones was the principal man; the defendant would sometimes meet him and ask him how they were getting along; the parties, except Nelson Jones, paid their share of plaintiffs’ fees.
    On cross-examination he testified:—
    “Mr. (Nelson) Jones spoke to me occasionally and asked me how we were getting along with the suit. Judge Hepburn and I got up the title of the suit, and Nelson Jones signed it. The suit was brought in the name of Thomas Jones, Nelson Jones and Pressley Jones; all signed the bill, and I appeared for them all. At different times, when one would die, I would suggest the death and put the names of the heirs upon the record. Mr. Nelson Jones knew of the proceedings all the time, all the way through; and whenever it was necessary took part in it.” Nelson Jones was at plaintiffs’ office several times in relation to the case; witness entered charges in his book against all three parties for professional services in relation to this business. Thomas Jones called on 'him first in relation to the case; he thought he saw Nelson Jones at that time too. He further said: “ Mr. Nelson Jones certainly was my client as much as any gentleman I ever appeared for, and the idea that he disapproved of that proceeding is entirely new. I 'do not know that I asked him for the money, but I told him he ought to pay me his share of those fees. After he got his money from Stone, the property sold and everything straight, I thought I ought to have some fees from him, although I did not. get any. I dropped his name out of that proceeding, although it enured to his benefit. I knew that he and his brother sometimes were not on very good terms, but Thomas attended to his own business and Nelson’s too. Thomas managed the affairs of the whole estate.”
    There were other witnesses, who testified to the performance of the professional services by the plaintiffs, and as to their value.
    Nelson Jones, the defendant, testified that he had never employed the plaintiffs in the business for the services for which this suit was brought; he never talked with them about it, except to ask how they were getting along; nor authorized them to institute proceedings in his name; he had other counsel; never talked to plaintiffs about his business, or authorized his brother Thomas to commence these proceédings or employ counsel.
    The defendant’s second point with its answer was :—
    2. If the jury believe that Thomas Jones employed the plaintiffs to conduct the case and attend to the business, as testified to by defendant, then the plaintiffs should look to Thomas Jones for payment, and if there is any liability on the part of the defendant in this case, it is to Thomas Jones, for contribution or otherwise, and not to the plaintiffs.
    Answer: “ Affirmed, if the jury believe that the services were for the benefit alone of Thomas Jones. But if they find that the retention and services of counsel were for the benefit of all the heirs, and enured to the advantage of all, and all, the defendant included, were aware of the fact, then all of them are liable, and all should be made to pay for the services so resulting to their general benefit and advantage.”
    The jury, April 19th 1872, found for the plaintiff $1500.
    On the 27th of April 1872, by leave of the court, the plaintiff amended their declaration by making the amount in each court $2000 and the damages $4000,

      The defendant took a writ of error and amongst others, assigned for error the answer to his second point, and allowing plaintiff to amend his declaration.

      A. Blakeley, for plaintiff in error.

      T. M. Mar shall,.ion defendant in error.
   Mr. Justice Sharswood

delivered the opinion of the court, January 4th 1875.

We are of the opinion that the learned court below erred in the answer to the defendant’s second point; not that the defendant was entitled to an absolute and unqualified affirmance of it, for upon the testimony of the plaintiff, the jury might have been justified in finding that Nelson Jones had recognised and ratified the employment of the plaintiff as counsel for himself and his brothers. One of the plaintiffs had testified that the defendant spoke to him occasionally; that the suit was brought in the name of Thomas Jones, Nelson Jones and Pressley Jones; all signed the bill, and he appeared for them all. Mr. Nelson Jones knew of the proceedings all the time, all the way through, and whenever it was necessary took part in it. Mr. Nelson Jones, on the contrary, denied that he had authorized or ratified the employment. Of the affirmanee, however, the plaintiff in error could not have complained, but the court proceeded to qualify and explain it in a way that was well calculated to mislead the jury and turn their attention aside from the true question in the cause. In instructing the jury that if they should find that the retention and services of counsel were for the benefit of all the heirs, and enured to the advantage of all and all, the defendant included, were aware of the fact, then all of them are liable, and all should be made to pay for the services so resulting to their general benefit and advantage, there was manifest error. A voluntary service rendered by one man to another, without any precedent request, or subsequent promise, forms no ground of action. It is true that such precedent request will often be inferred from the work being done under the defendant’s eye and for his benefit. But that is necessarily an inference of fact to be made by the jury from all the evidence. There were circumstances in the case which tended to show that after the sheriff’s sale and the end of the equity case, the plaintiff dropped the name of Nelson Jones from the proceedings and no longer considered himself as his counsel. Yet the learned judge left it to the jury, if they found that the plaintiff’s services resulted in benefit to the defendant, that he was liable to pay without either precedent request expressed or implied, or subsequent promise.

It is unnecessary to consider the remaining assignment of error that the court erred in allowing the damages in the declaration to be increased after verdict.

Judgment reversed, and a venire facias de novo awarded.


text:
    Adams versus Pittsburg Insurance Co.
    1. In order to prove a custom that the captain of a steamboat has authority to bind the owners by giving a premium-note for insurance, the evidence must be clear, uncontradictory and distinct, so as to leave no doubt as to its nature and character.
    2. Custom is usage so long established and so well known as to have acquired the force of law.
    3. A steamboat captain, under the direction of a part owner, executed a premium-note for insurance on the boat. The evidence in this case Held not to be sufficient to establish a custom under which the other owners would be bound by the note.
    October 10th 1874. Before Agnew, 0. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 73.
    This was an action of assumpsit, commenced March 8th 1873, b.y the Pittsburg Insurance Company against John S. Adams and Adam Jacobs, who survived James Collins, late owners of the steamboat “ Glasgow.” Adams alone was summoned.
    The action was on the following note:—
    “ $600.00. Pittsburg, June 1st 1867. Nine months after date promise to pay to the order of six hundred dollars. Payable at office of Pittsburg Insurance Co., without defalcation, for value received.
    “ For steamer Glasgow and owners,
    “ G. W. Johnston, Capt.”
    The defendants denied the authority of the captain to bind them by such note, and the principal question in the case was whether there was a custom authorizing captains of steamboats thus to bind the owners.
    The case was tried January 16th 1874, before Stowe, J.
    The plaintiffs’ evidence was as follows:—
    James Gordon testified: “ Collins, one of the owners, and G. W. Johnston, captain, effected this insurance. Previous insurances had been effected on this vessel the same way.”
    The plaintiff offered to prove by the witness that the making and delivery of the note in this case by the captain (G. W. Johnston), for the premium of insurance effected on the steamboat “ Glasgow,” for the owners, was done in accordance with the general custom, and in the like manner as to prior insurance on the same boat, made by the captain and James Collins, one of the owners, for all the owners of the said boat.
    The defendant’s counsel objected to the offer.
    The offer was admitted, and a bill of exceptions sealed.
    Witness proceeded: “ Have been interested in twenty-eight steamboats, and tbe rule always was for an owner and tbe captain to insure for owners and give note, signed by captain, as was done in this case; never knew it done otherwise. Saw Collins about this insurance before I went down to boat to deliver policy. Collins and Adams both lived here in city; knew them both.”
    David Ilultz testified: “ It was customary for the captain to give note when there is an insurance of boat, signing captain for steamboat and owners.”
    Captain Atkinson testified: “Been in insurance business since ’64. Know ‘Glasgow.’ The captain almost invariably insures steamboat for boat and owners; gives note at nine months for boat and owners. The insurance on this boat was effected by Johnston as captain from the first for owners. Don’t know whether in all cases the captain has been part owner or not; often they have been. I know of no case where the captain was not directed by the owner.”
    Chas. M. Fairman testified: “ It has been the custom as long as I know for the captain to insure for owners, as in this case, giving nine months’ notice for boat and owners.”
    The plaintiffs then offered the note in evidence; it was objected to, admitted and a bill of exceptions sealed.
    The plaintiffs rested.
    J. S. Adams, defendant, testified: “The first knowledge I had of the note was when sued. I never gave Captain Johnston nor James Collins authority to insure for me; I never authorized Johnston to give this note; I never authorized him at any time to insure for me, and never knew that he had insured.”
    The following were defendant’s points, which were refused:—
    1. The plaintiff has not shown any such custom as warrants the jury in finding that Captain Johnston had implied authority to effect insurance and give a note so as to bind the defendant.
    2. The evidence in this ease of alleged custom is insufficient to charge the defendant with a liability to plaintiff upon the note in suit.
    8. If the jury find from the evidence that the insurance upon the “ Glasgow” was effected and the note in suit given without the knowledge, consent or authority of the defendant, and that he had no knowledge of the same until he was sued in this case, the plaintiff is not entitled to recover.
    The court charged:— * * *
    “ A usage which is to govern a question of right, should be so certain, uniform and notorious, as probably to be known to, and understood by the parties, as entering into their contract. The real question, in this respect, is not whether the defendant actually knew of the custom, if it existed, but was there a custom or usage so common and general as that the defendant probably knew it, and that the parties contracting with him had a right to believe and assume that he actually did know it. That is, Was there a custom, and if so, was its extent and notoriety such, as shown by the evidence, as to induce the jury to believe that defendant probably knew it, and which would justify plaintiff in believing that he actually did know of it, at the time he was acting upon it.”
    The verdict was for the plaintiffs for $807.
    The defendant took a writ of error.
    He assigned for error the admission of the evidence objected to; and the refusal of defendant’s points.

      M. W. Acheson, for plaintiff in error.
    Steamboat owners are not partners: Knox v. Campbell, 1 Barr 366; Hopkins v. Forsyth, 2 Harris 34. A part owner cannot charge the others with the premium for insurance unless they assent: Abbott on Shipping 107 ; Turner v. Burrows, 8 Wend. 144. A local usage must not conflict with the rules of the common law: Coxe v. Heisley, 7 Harris 243; Jones v. Wagner, 16 P. F. Smith 430. ’A custom must be shown to be ancient, uniform, notorious and reasonable: Cope v. Dodd, 1 Harris 33; Dean v. Swoop, 2 Binney 72.

      A. M. Brown, for defendants in error.
    A custom so long persisted in as to be known and practised in a community is the lav of the particular business: McMasters v. Penna. R. R., 19 P. F. Smith 374. In this state a custom is sufficiently ancient, if it has existed long enough to be generally known: Collins v. Hope, 3 W. C. C. R. 149; Snowden v. Warden, 3 Rawle 101; Cope v. Cordova, 1 Rawle 203; Koons v. Miller, 3 W. & S. 271; Gordon v. Little, 8 S. & R. 533; Pittsburg v. O’Neill, 1 Barr 342. Usage or custom may control or curtail the execution of a contract : 1 Hilliard on Contracts 295 ; Eyre v. Insurance Company, 5 W. & S. 116; Helme v. Phila. Life Insurance Co., 11 P. F. Smith 107; Mills v. Bank, 11 Wheat. 431; Chickopee v. Eager, 9 Met. 583; De Forest v. Fulton Insurance Co., 1 Hall 84.
   Mr. Justice Gordon

delivered the opinion of the court, November 16th 1874.

The court below permitted the defendant, part owner of the steamboat Glasgow, to be charged with the amount of a premium-note, executed to the plaintiff by the captain, under the direction of another part owner, for the insurance of the boat. This insurance was made and the note given without the knowledge or consent of the defendant. It is conceded that under ordinary circumstances this could not be done. But the plaintiff was permitted to go to the jury on evidence of a custom or usage of the port of Pittsburg, warranting the captain thus to bind the owners of vessels navigating the Ohio and its tributaries. It is possible that a usage such as this, though derogatory of the rights of such owners, and not required for the advancement of commerce and trade, might he established by proper proof.

But in order to establish such custom, the evidence by which it is proposed to prove it, must be clear, uncontradictory and distinct. Custom is usage so long established and so well known as to have acquired the force of law. It is obvious, therefore, that a custom not only can, but must be so proved as to leave no doubt upon the mind with reference to its nature and character.

Doubt must.be wholly eliminated from the evidence adduced, or the usage is not well proved. In view of these principles, we cannot agree that the evidence in this case was such as the court should have submitted to the jury for the purpose proposed. Four witnesses gave their evidence upon this subject. One testifies that the custom is for an owner and the captain to insure for all the owners; the captain signing the premium-note. Another states simply that it was customary for the captain to execute the note, but whether .under authority of one or all of the owners he does not say. The third, that it was customary for the captain to insure for the boat and owners, but adds upon cross-examination that he knew of no case where the captain was not directed by the owner. The fourth, that it was the custom for the captain to insure for the owners, as in this case. From this testimony it is impossible to say what the custom or usage is, if indeed any such exists. Has the captain power upon his own motion to insure, or does it require the joint action of a part owner and the captain ? May he insure the boat when there is but a single owner, or is he confined to cases where there are several joint owners?

These are questions which are legitimately raised from the evidence ; and as that evidence does not clearly and definitely answer either of them, the court'should notiiave permitted it to go to the jury.

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