author: Mr. Justice Mercur

text:
    Kensinger versus Smith, to use of McClain.
    1. A deed from A. to B. recited that the land was conveyed subject to the payment of a balance of purchase-money “ for which a judgment had been entered in the name of 0.,” and in the habendum it was declared to be subject to the payment of the said sum “ as aforesaid.” Held, that O. could maintain ejectment either'in his own name, or in the name of A. to his use, to enforce the payment of said sum.
    2. In a conditional verdict and judgment in ejectment where there was an omission to fix a time for the payment of the sum upon which the verdict was to be released, the Supreme Court, on error, amended the judgment by inserting a date before which payment should be made.
    May 11th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterreect, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas, of Bedford county: Of May Term 1880, No. 82.
    Ejectment by Esther Smith, for the use of Samuel McClain, against Samuel Kensinger and Nancy Kensinger, his wife, to recover two tracts of land in Bedford county.
    Jacob K. Smith died seised of the land in controversy. By order of the Orphans’ Court for the payment of debts, his administrator sold this real estate, and by deed, dated December 30th 1872, conveyed the same to Esther Smith, the widow, the purchaser, for the consideration of $2216.69. At the time of the sale there was paid by Nancy Kensinger, the mother of Esther Smith, the sum of $1400, of which she borrowed from Samuel McClain $350. The deed to Esther Smith from the administrator was never delivered till payment of the balance of the purchase-money, November 12th 1873. On the 30th of October 1873, Esther Smith, by articles of agreement, agreed to sell and convey to the said Nancy Kensinger the land in controversy, she to pay to the said Esther Smith “ the sum of $2214, in manner following, to wit: $1515 in cash, and the balance the said Nancy Kensinger to pay to the administrator of Jacob Smith; to get the deed which is made to the said Esther Smith by the administrator of Jacob Smith, deceased, when the said Esther Smith will make the same over to the said Nancy Kensinger.” The same day Esther Smith receipted for $1515 to Nancy Kensinger.
    On November 12th 1873, Nancy Kensinger borrowed from Samuel McClain the further sum of $773.41, and, with $100 she had herself, paid off the balance of the purchase-money due from Esther Smith to Jacob K. Smith’s administrator, when the said administrator delivered the deed to Esther Smith. On the same day, Esther Smith executed a conveyance for the same land to Nancy Kensinger, in pursuance of the agreement before mentioned. A statement ór settlement of the transactions between Samuel McClain and Nancy Kensinger was then drawn up, and for borrowed money to make payments on this land, for two years’ interest in advance, for four per cent, excess in interest, and for the expenses and trouble of the said McClain, it appeared there was due him $1378.09, for which he took her individual judgment-note, and the same day had judgment thereon entered against her. The consideration mentioned in the last deed from Esther Smith to Nancy Kensinger was $1108.35. This deed was in the usual form, and, after the description of the land, contained this clause: “The said real estate is conveyed subject to the payment of the sum of one thousand three hundred and seventy-eight dollars and nine cents, being the balance of purchase-money due, from which a judgment has been entered in the name of Samuel McClain. * * * Habendum, etc., * ‡ * subject, nevertheless, to the payment of the sum of one thousand three hundred and seventy-eight dollars and nine cents, as aforesaid.”
    After the bringing of this action, on the first day of December 1879, the said Esther Smith filed her petition in the Court of Common Pleas, praying for a rule on Samuel McClain, for whose use and at whose instance the action of ejectment was brought, to show cause why the use of her name as legal plaintiff' should not be prohibited and the same stricken from the record, she alleging that Samuel McClain was not a party in any particular to the deed of conveyance from her to Nancy Kensinger, that the purchase-money was all paid to her, and all claims she ever had against the grantee were fully satisfied. This application was decided in the trial of the case.
    At the trial, before Hall, P. J., the defendant presented the following points, all of which the court refused :
    1. That the action of ejectment, in its present form, cannot under all the evidence in this case be sustained.
    2. That no action of ejectment by Samuel McClain, for his use, can, against the consent of Esther Smith, the legal plaintiff, be maintained under the evidence in this cause.
    3. That Esther Smith, the grantor, having parted with all her right, title and interest in this land, by conveyance to Nancy Kensinger, the grantee, and all of the purchase-money due her or her predecessors in title having been paid, the said Samuel McClain is a stranger to the deed and to the title, and therefore has no such title or right at law as would enable him to recover in this form of action.
    4. That the undisputed evidence in this case being that the purchase-money due Esther Smith and her predecessors in title was all paid when ’the conveyance was made to Nancy Kensinger, she stood in no other relation to him than a debtor for the amount advanced by McClain to satisfy the purchase-money owing by Nancy Kensinger on the conveyance to her, and upon a breach of the conditions in said deed to Nancy Kensinger, Samuel McClain has no right of entry for condition broken, nor right to enforce the performance of the condition by this action of ejectment.
    The court then directed the jury, under all the evidence in the case, to render a verdict for the plaintiff for the land in dispute, to be released on payment of $1573.30. Verdict accordingly, and after judgment thereon, defendant took this writ, and alleged that the court erred in the refusal of the defendant’s points, and in the above direction to the jury..

      John Cessna and J. M. Reynolds, for plaintiff in error.—
    The plaintiff must have either a legal or equitable title before he ean sustain an action of ejectment: Westenberger et al. v. Reist et al., 1 Harris 597; Reed v. Murray, 1 Jones 334; Megargel v. Saul, 3 Whart. 13; Thompson v. Adams, 5 P. F. Smith 482; Kenege v. Elliott, 9 Watts 262. There being in this case neither a trust to execute nor a conveyance sought to be enforced, the courts of this state will not, by the instrumentality of a jury, direct a recovery in ejectment: Peeblees v. Reading, 8 S. & R. 491. The farthest that the courts have gone is to decide that parties to deeds of conveyances may, by clear and express words, create liens upon land, either for purchase-money or for the performance of collateral conditions which will be. binding between themselves and their privies: Strauss’s Appeal, 13 Wright 353: Hiester v. Green, 12 Id. 96. But in no case can it be found where a stranger to the deed can create such a lien, or the vendor create it, independent of interest in the conveyance for his benefit. As was said in Baer v. Whisler, 7 Watts 144, whether there was an estate on condition depends on the intention of the parties indicated by the agreement, and the deed which must be taken as one instrument. Here the agreement to sell stipulates an absolute conveyance to the grantee, and the deed actually followed the agreement in this particular. See also the cases of Hepburn v. Snyder et al., 3 Barr 72; Campbell v. Shrum, 3 Watts 60, and Taylor v. Preston, 29 P. F. Smith 436.
    But if this is an estate on condition which the plaintiff seeks to establish, then Samuel McClain, being a stranger to the deed and to the title, he cannot enter for a breach of the condition, nor can the estate be forfeited to him by this action of ejectment. It is a rule of the common law that no one can take advantage of the breach of a condition expressed but parties and privies in right and representative as heirs, executors or administrators of natural persons and the successors of body politic. No assignee or stranger can enter: Crabb on Real Property, Law Lib. 531, 550, 2150, 2189, 2190; Hamilton v. Elliott, 5 S. & R. 385; Cruise Dig., vol. 1, pp. 31. And an actual entry is necessary to sustain the action.

      May 24th 1880
    The plaintiff cannot put herself in position to maintain this action, or to enforce a forfeiture of the estate for breach of a condition by instituting her action : “ Esther Smith for the use of Samuel McClain.” He does not stand in any such relation to the estate, to the grantor or the grantee to do so. The bringing of the action in its present form does not better his condition, and especially as it'is brought against the will and consent of her who conveyed the title and created the condition, as the plaintiff calls it. The verdict of the jury must be set aside because it is not in proper form. -A period should have been stipulated in which payment was to be made in order to release the land under the verdict: Dixon v. Oliver, 5 Watts 512.

      jRussell Longeneeker, G-. S. Spang and R. B. Petriken, for defendant in error.
    The intention of the parties, gathered from their acts and the language of the deed, shows that the land was to be a security to McClain for the payment of his money, and it matters not whether it is called a charge, condition or equitable lien: Bear v. Whistler, 7 Watts 149; Shep. Touch., Preston 120, 121; Wash, on Real Property, 467; Hamilton v. Elliott, 5 S. & R. 381; Westenberger v. Reist, 1 Harris 598 ; Strauss’s Appeal, 13 Wright 353. If a condition, then by the unbroken current of decisions in this court, ejectment will lie to enforce it: Bear v. Whistler, supra; Hamilton v. Elliott, 5 S. & R. 375 ; Perry v. Scott, 1 P. F. Smith 124; Soper v. Guernsey, 21 Id. 223; Watters v. Breden, 20 Id. 235.
    The payment of any lien or charge on land may be enforced by ejectment where there is a clear intent to make the real estate chargeable with the money: Galbraith v. Fenton, 3 W. & S. 361; Ripple v. Ripple, 1 Rawle 386; Simpson v. Ammons, 1 Binn. 175; Smith v. Shuler, 12 S. & R. 243; Kraub v. Essick, 2 Watts 282; Fluck v. Replogle, 1 Harris 406. The court properly overruled the motion made, that the action could not be maintained in the name of Esther Smith against her consent. The suit was brought in the name of the right plaintiff, and her consent was not necessary: 1 Chitty on Pleading 2; Ins. Co. v. Smith, 1 Jones 124; Riley v. Vandyke, 1 Phila. R. 180; Bear v. Whistler, supra; Montgomery v. Cook, 6 Id. 238; Pres. Cong. v. Johnston, 1 W. & S. 9; Campbell v. Galbraith, 5 Watts 423. Any party interested in the performance of the condition may enforce it by ejectment : Strauss’s Appeal, 13 Wright 355.
   Mr. Justice Mercur

delivered the opinion of the court,

A cestui que trust may maintain ejectment in his own name: Kennedy v. Fury, 1 Dall. 76. If entitled to possession he may maintain it against his trustee: Presbyterian Congregation v. Johnston, 1 W. & S. 9. Esther Smith was unnecessarily named as the legal party, but she was powerless to prevent McClain from enforcing his right to the unpaid purchase-money. It is expressly declared in the deed made to the plaintiff in error, and under which she holds, that the land is conveyed “subject to the payment of the sum of one thousand three hundred and seventy-eight dollars and nine cents, being the balance of pur-chase-money due for which a judgment has been entered in the name of Samuel McClain.” In the habendum it is declared she shall hold subject nevertheless to the payment of the said sum “ as aforesaid.”

In this state ejectment is an equitable action : Russell et al. v. Baughman et al., post, p. 400, and cases there cited. It lies to enforce unpaid purchase-money clearly shown-in the conveyance to he a part of the consideration on which the deed is made and declared to be subject to its payment.

The fact that a judgment note recited in the deed to be for the same purchase-money, was also given, will not defeat ejectment, which would otherwise lie, brought to enforce payment of the purchase-money. We think the remedies are cumulative and either may be pursued. The only error we discover is an omission to fix a time for the payment of the sum found to be due. We therefore amend the judgment so that it shall read judgment in favor of the plaintiff below for the land in dispute to be released on payment of the sum of fifteen hundred and seventy-three dollars and thirty-seven cents, with interest thereon from the 22d December 1879, and costs, on or before the 15th November 1880, and thus amended

. Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Colvin versus Beaver.
    1. The special Act of April 8th 1867, which provides that all persons residing on certain lands therein named, situate in the township of Napier, are attached to the borough of Sehellsburg for school purposes and shall pay their school taxes, and be entitled to all school privileges, including the right to vote for and serve as school directors in said borough, was not in violation of the Constitution of 1838, nor is it of art. 3, sect. "8, of the Constitution of 1874, which provides that electors shall reside in the election district in which they vote.
    2. The general Act of April 13th 1867, provides, that when the land of a resident of a township or borough shall be .annexed under the provisions of said act to another township or borough, the applicant shall pay his school taxes and be included within the school district to which it is so annexed for educational purposes and remain connected with the district or township of his residence for all other purposes. Held, that said act manifestly uses the more comprehensive words “ for educational purposes” with the view of expressing in fewer words the same rights and obligations imposed by the Act of April 8th 1867.
    3. A school district is not strictly a municipal corporation.

      May 11th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, O. J., and Green, J., absent.
    Certiorari to the Quarter Sessions of Bedford county: Of May Term 1880, No. 199.
    The petition of more than twenty-five of the qualified electors, who voted at an election held on the 17th of February, in Schellsburg borough, set forth that the return of J. E. Colvin as school director was undue and illegal, and that W. H. Beaver was duly elected, and not J. E. Colvin.
    They alleged the following facts : 1. That of the votes actually received and counted, J. E. Colvin had forty-four votes, and William H. Beaver forty-three votes. 2. That John J. Hughes, Patrick Hughes and William Otto were qualified electors entitled to vote for school directors at said election by reason of their residing on lands in the township of Napier, annexed to Schellsburg borough for educational purposes by a decree • of the court under the provisions of the general Act of 13th of April 1867, Purd. Dig., vol. 1, p. 237, which provides as follows: “-The several Courts of Quarter Sessions of this Commonwealth shall have authority, within their respective counties, to annex the land or part thereof of persons resident in one township or borough to another township or borough, for school purposes, so that when so annexed the applicant shall pay his school tax and be included within the school district to which it is so annexed, for educational purposes, and remain connected with the district or township of his residence for all other purposes; and.the said court shall, upon the petition of any one desiring such change, proceed by views and reviews, in the manner and under the restrictions provided under the Act of General Assembly, approved April 15th 1834, with its supplements, in regard to the alteration of the lines of any two or more adjoining townships: Provided, that all the costs of such proceedings shall he paid by the person or persons applying for such change.” 3. That George W. Bowser, Jacob Manges, Jacob Spiker and William Hull were qualified electors and entitled to vote at said election by virtue of a special Act pf Assembly, approved April 8th 1867, Pamph. L. 1867, pp. 934-5, providing that all persons residing on certain lands therein named are attached to Schellsburg borough for school purposes, and shall pay their school taxes and be entitled to all school privileges, including the right to vote for and serve as school directors in the said borough.
    The first section of said act provides as follows: “ That the following named lands and tenements, situate in Napier township, Bedford county, near the borough of Schellsburg, are hereby attached to said borough, for school purposes, to wit: The farms of Charles W. Colvin, the one known as the Riley farm, and the other as the Hillegas farm; also the farm of George W. Bowser and that of Reuben Colvin, all in Napier township; and that all persons who now, or may hereafter, reside on said farms and properties, shall pay their school taxes to and be entitled to all school privileges, including the right to vote for and serve as school directors in said borough. Provided, that said persons. shall not be liable to taxation for any purposes except school tax in said borough.”
    The answer of Colvin admitted the facts as set forth in the petition, but denied the right of the persons embraced in the said two classes to vote at said election for school directors for the following reasons:
    1. That the general Act of 13th of April 1867, authorizing the court to annex, does not contemplate annexation for any other purpose than that of paying, taxes and sending children, to school in the borough school district, and does not confer the right to vote for school directors therein.
    2. That the special Act of April 8th 1867, which does expressly give the right to vote for school directors, is unconstitutional, in that it contravenes the provision of the Constitution requiring that electors shall reside in the election district in which they offer to vote.
    The court, Hall, P. J., after argument, delivered an opinion, in which they, inter alia, said:
    “But we are of opinion that the second position cannot be maintained. The special Act of 1867 has never been repealed, nor is it repugnant to any portion .of the Constitution of 1838, whioh was in force at the period of its enactment, nor to the- new Constitution of 1874.
    “The Constitution of 1874 provides in article 8th, relating to the qualifications of a voter, that he shall reside in the election district in which he offers to vote at least two months immediately preceding the election. The Constitution of 1838 contains a similar provision requiring residence in the election district for ten days. Yet in independent school districts formed out of two or more adjoining townships under the provisions of the statute of 8th of May 1855, Purd. Big., vol. 1, p. 237, &c., the school district becomes an election district for school purposes, and directors are elected by all the electors of the school district, some of whom, of course, vote outside of the municipal election district in which they reside.
    “ The position of the respondent is that the legislature did not have power under the Constitution of 1838 to erect a school district into a special election district for school purposes by any other bounds than the lines of some municipal election district— that is, an election belonging to the municipal divisions of township, borough, city or ward. No one seems ever heretofore to have questioned the constitutionality of independent districts or the power of the legislature under the Constitution of 1838, by express words to enlarge a school election district by attaching adjoining farms and allowing all resident qualified electors to vote for school directors. It is true, doubtless, that the legislature may not authorize an elector to vote, except in the election district in which he resides. But for school purposes the school district is the election district.
    “ Under the Constitution of 1874, the legislature is prohibited from passing any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts: art. 3, sect. 7. But this prohibition is entirely prospective. The same section gives power to repeal local and special acts, and strongly indicates the intent that such acts should remain in force until repealed by legislative enactment.

      “ There being no clause in the new Constitution expressly repealing the act, nor any clause to which it is positively repugnant and thus repealed by implication, and it never having been.repealed by legislative enactment, it is, as we view it, in full force. It follows, therefore, that Mr. Beaver, who is but one vote behind Mr. Colvin in the returns as made up, was only elected by the votes of George W. Bowser, Jacob Manges, Jacob Spiker and William Hull, who were qualified electors, and entitled to vote by the special Act of 8th of April 1867, and that their votes ought to have been received and counted.
    “ It is therefore not necessary to the decision of this case, that we shall determine the question raised by the first point, to wit : Whether the phrase ‘ for educational purposes,’ unlimited and unrestricted, confers a right to vote for and serve as school director.”
    Colvin took this writ, alleging that the court erred in deciding that' the Act of April 8th 1867 was constitutional, and that the court should have decided that the 1st section of .the Act of 13th April 1867, does not confer on persons residing on lands which may be annexed by the courts, the right to vote for school directors in the township or borough to which they are annexed.

      "Russell &¡ Longenecker, for plaintiff in error.
    So much of the act as sought to confer the right to vote in Schellsburg borough, on electors who did not reside in the election district of the borough was void, because in direct conflict with sect. 1, art. 3, of the Constitution of 3838, which required that the elector should have resided in the election district where he offered to vote, ten days immediately preceding such election. The Constitution, as amended in 1874, contains a similar provision, sect. 1, art. 8, but enlarges the period of residence to two months. It was not in the power of the legislature to so enlarge the rights of these voters as to permit them to cast their ballots in an election district in which they had no residence. No constitutional qualification of a voter can be ■ altered or added to by legislation : Page v. Allen, 8 P. F. Smith 338.
    The territorial limits of an election district do not enlarge for one purpose and contract for another, but are precisely the same for all purposes. If an elector may exercise the privilege of voting outside of the municipal election district in which he resides, and with which he is identified by registration and the other prerequisites for school director, why not for other purposes ? It would not be pretended that he could go to any other poll in his legislative or congressional district and vote for those offices: McDaniel’s Case, Brightly’s Election Cases 238, 242; Williams v. Whiting, Id. 107-9.
    The law contemplates that an elector shall vote but once on the same day, and in but one election district, and the Constitution has made residence, within the election district, the test which shall identify him with the poll at which he may vote. And this is intended “ not only to identify the elector, but to prevent fraud in elections: Fry’s Case, 21 P. F. Smith 308.

      J. M. Reynolds, for defendant in error.
    The legislature possesses the power under the Constitution, if it saw proper to do so, to pass special acts annexing a borough and township or two or more townships together, and forming them into single districts, and providing that the voting shall be done in either the borough or the township. If it can do this, then the Act of April 8th 1867, is not in conflict with any constitutional prohibition. That the legislature has done this, in the case of independent school districts, cannot be denied. If, therefore, this special act is unconstitutional, then the whole law upon the subject of independent districts acquiesced in by the people of the state for twenty-five years is unconstitutional also.
    With reference to school districts generally, we say it "was in the power of the legislature to fix any boundaries it saw proper; to provide by whom the elections should be held, and in what manner; to fix any place they saw fit, and in these particulars were not bound to follow the requirements of the Constitution relative to the election of purely municipal officers. School directors are not municipal officers, and the provisions of the Constitution are not applicable to their election: Wharton v. Directors of Cass Township, 6 Wright 363. They are territorial divisions for the purposes of the common school law. The school system is a system peculiar to itself. The people in the districts exercise certain powers in certain ways especially adapted to that system, for the purpose of providing for a general system of education, and the election of those who are to represent the district in the transaction of its business, is not necessarily controlled by nor subject to any provision in the Constitution relative to elections by the citizens generally. When annexed for school purposes, they form a part of a school district for every purpose of the school system, which necessarily includes the right of voting for school directors.
    May 24th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This contention is as to the effect to be given to the special Act of 8th April 1867, Pamph. L. 934, and the general Act of 13th April 1867, Purd. Dig. 237. The former declares that all persons residing on certain lands therein named, situate in the township of Napier, are attached to the borough of Schellsburg for school purposes, and shall pay their school taxes and be entitled to all school privileges, including the right to vote for and serve as school directors in said borough. The general act declares that when the land of the resident of a township or borough shall he so' annexed to another township or borough, the applicant shall pay his school taxes and be included within the school district to which it is so annexed for educational purposes, and remain connected with the district or township of his residence for all other purposes.

The language in the general act shows a slight change from -that used in the prior special act: yet we think the substantial purpose and intent are the same. The later act manifestly uses the more comprehensive words “for educational purposes,” with the view of expressing in fewer words the same rights and obligations given and imposed in the previous act. A person residing on the land thus annexed is brought within the school district for all purposes for which it is formed. There he pays his taxes towards the support of its schools and the erection of its school houses. There he sends his children, and there he resides for all “ educational purposes.” It is clearly within the true intent and spirit of the statute, that where a person assumes those obligations and enjoys those benefits, there he shall have a voice in the election of school directors, and, if possessing the other necessary qualifications, be eligible as a director. It is not the design of the act that he should be denied the exercise of those rights and privileges in the only place where he has such a direct interest. It would be an anomaly in the law to hold that he can exercise such rights in another school district where he pays no school taxes, can derive no special benefit from the schools, and within the bounds of which, for educational purposes, he does not reside. He does remain connected with his township or former district “for all other purposes,” so as to give due effect to that clause in the statute. There he must continue to pay all his other municipal taxes, and there he retains all his other rights as a resident and an elector.

A school district is not strictly a municipal corporation : Wharton et al. v. School Directors, 6 Wright 358; Commonwealth v. Beamish, 81 P. F. Smith 389. There was no constitutional prohibition against such a school district when it was formed. There is none now against forming such by a general law. Like independent school districts they may wholly disregard township lines.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Akers, Receiver, versus Hite et al.
    1. A policy of insurance and the premium note given therefor constitute a contract between the insurance company and the insured, and the parties usually have the same power to rescind it by mutual agreement as they had to make it.
    2. The right of the company to cancel policies and thus terminate the contract, for various acts of the insured, though such right be not expressly reserved, has constantly been recognised. ,
    3. An agreement in good faith between the parties to a contract of insurance, to annul said contract, is valid.
    4. Whore the insured surrenders his policy, and it is agreed by the company that it shall be cancelled, the insured, from that time, ceases to be a member, and although liable to assessments, which accrued while he was a member, is not liable for debts contracted after the surrender of his policy.
    May 11th 1880.
    Before Mercur, Gordon, Paxson, Trtjnkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1880, No. 105.
    These were three actions of debt brought by J. C. Akers, receiver of the Union Plorse Insurance Company, of Blair county, against Albert Hite, Joseph Brunner and John Dicken, for the recovery of two assessments on premium notes, made for the purpose of paying off the indebtedness of the company. One assessment of three per cent, on premium notes in the hands of the company was made by the directors January 1st 1878, and one of fifteen per cent, was made by the receiver of said company March 29th 1878. The company was chartered June 17th 1872,. by the Court of Common Pleas of Blair county,' under the Act of Assembly of March 26th 1867, and conducted its business on the mutual plan. The value of each animal insured was considered capital stock, and was, in case of loss, subject to assessment.
    On the 5th of November 1874, John Dicken insured four horses for the period of five years, to the value of $525, and deposited his note with the company, whereby he agreed to pay within ten days next, after notice to the said company, or order, all taxes which may be assessed on the above-named, insured horses, for making good, and to satisfy all losses which may occur between the 5th November 1874, and the 5th November 1879. Joseph M. Brunner insured two horses to the amount of $275 for five years, from the 6th October 1874, and Albert Hite insured two horses to the amount of $200 for five years, from the 6th October 1874. Both gave the same kind of deposit notes as Dicken. In 1876 and 1877 the company, from numerous and severe losses, became heavily involved, and judgments to a large amount were entered against it. A great many members became dissatisfied with the management of the company, and the directors, on the 20th of October 1876, passed a resolution “ to allow all dissatisfied me.mbers to withdraw from the company after paying all assessments or dues if their policies are handed to the directors.” And again on April 3d 1877, passed another resolution : “ In accordance with the resolution passed on the ‘20th of October 1876,’ that the officers of the company shall cancel all policies of persons who have paid all their just dues to the company, or shall pay them within thirty days after due notice has been given to them, provided such persons wish to withdraw from the company, in all cases when a'policy is cancelled, the secretary shall return the application on which the policy was granted, with as little delay as possible, to the person who made the application.” Numerous parties availed themselves of this opportunity, surrendered their policies to the company, and had them cancelled. These three defendants, Hite, Dicken and Brunner, handed their policies to Samuel Whip, one -of the directors, with the request to have them returned to the company. Whip -gave them to the secretary of the company, J. Z. Smith, who accepted them and told Whip if everything was right he would lay them before the board, and, if cancelled, would send defendants their premium notes. On investigation, the secretary discovered that, on previous assessments made, Hite was owing to the company $1.50, Dicken $4.58; and these three policies were not cancelled by the company, but treated in the books of the company as still in force ; and, in January 1878, when the secretary made out the assessment lists he assessed these three parties and charged them with the amount of their assessment. Meanwhile the company became more and more involved, judgment-creditors issued execution, and, after due process of law, J. C. Akers was appointed receiver of the company, the officers of the company surrendering to him on request all goods and chattels and all the assets consisting of premium notes. Not having any cash assets wherewith to pay the debts, and not being able to ascertain the indebtedness of the company or the amount of premium notes which were still in force and uncancelled, the receiver, by direction-of the Court of Common Pleas of Blair county, laid an assessment of fifteen per cent, on all premium notes in his possession and was directed to collect this amount, and also an assessment of three per cent., laid by the directors January 1878, but still uncollected.

      The indebtedness of the company was, in April 1877, so large that it would have required an assessment on all premium notes of 12 per cent, to cancel all liabilities. These three cases, by direction of the Court of Common Pleas of Bedford county, being of a like character, were directed to be tried together, and the jury found a special verdict, which set forth, substantially, the above facts, and concluded as follows:
    “ That the jury are ignorant, in point of law, upon which side they might, upon these facts, find the 'issue. That if, upon the whole matter, the court shall be of opinion that the issue is found for the plaintiffs, they find for the plaintiffs accordingly, and assess the damages in favor of the plaintiffs against the defendants. Albert Hite, $24; J. M. Brunner, $33; John Dicken, $69. But if the court is of a contrary opinion, then they find vice versa.”

    After argument, the court entered judgment for the defendants on the special verdict, when the receiver took this writ and assigned this action for error.

      Frederick Jaekel and J. M. Reynolds, for plaintiff in error.—
    The board of directors of a mutual insurance company have no authority to pass a resolution to cancel the policies of dissatisfied members without paying existing debts: Maine Mutual Ins. Co., 66 Me. 130. As long as the insured are members to the extent of their notes they are liable to pay a pro rata share of the losses: Rhinehart v. Allegheny County Mutual Ins. Co., 1 Barr 59. Neither the surrender, cancellation nor the expiration of the policy nor the insolvency of the company, releases the holder of a policy from his liability to assessments for losses which occur during his membership: May on Ins. 691; Wilson v. Trumbull Ins. Co., 7 Harris 372; Sterling v. Mercantile Mutual Ins. Co., 8 Casey 75. The mere handing of a policy by a member of a mutual insurance company to one of the directors, with the request to have it can-celled, is not such an action as would, in the eyes of the law, justify the surrender of the premium notes. While in the sense of the contract the company and each member stand to each other in the relation of insurer and insured, both parties had to agree as to a cancellation of a contract entered into. As defendants did not tender their dues the directors were justified in not cancelling their policies. They are not relieved from paying their pro rata of the losses until the company cancels their policies and surrenders their notes. Their membership is not terminated by a notice to the agent of the company: Buckley v. Columbia Ins. Co., 2 Norris 294. Each member is liable to assessment while his policy remains un can celled, although he has no right to recover thereunder: Upton v. Hornbraugh, 3 Bissell 417; Ins. Co. v. Connor, 5 Harris 136. The receiver was legally appointed; is the officer of the court; is appointed for the benefit of all parties concerned, and is bound- by the charter of the company to the same extent as the directors : Daniel’s Chancery Practice 1714; Sulfield v. People, 85 Ill. 558; Yeager v. Wallace 8 Wright 294; Singerly v. Fox, 25 P. F. Smith 112.

      John Cessna, Alexander King and J. B. Cessna, for defendants in error.
    The facts as found in the special verdict, in law amounted to a cancellation of defendant’s policies, by virtue of which their membership w'as dissolved, and the defendants released from further claims, both for past and future losses, the same being an adjustment of mutual claims. It is clear, that the plaintiff’s company authorized the cancellation of policies of dissatisfied members upon certain conditions, and that those conditions were complied with on the part of the defendants. By the resolutions of the company, the defendants were required to pay only their just dues or assessments. This they did. Two of them had been assessed upon horses which died or were sold more than a year previous. This was illegal, as is fully established : Wilson v. Trumbull Mutual Ins. Co., 7 Harris 372; Columbia Ins. Co. v. Buckley, 2 Norris 372; Finley v. Lycoming Ins. Co., 6 Casey 311. These assessments being illegal, were not just.
    The agreement to cancel policies and surrender notes to defendants was a legal contract so far consummated on part of defendants as to discharge their liability upon their notes. It was in law a cancellation: May on Insurance, 690-1; Roland v. Whitman, Receiver Mutual Ins. Co., 33 Ind. 64; Sands, Receiver, v. Hill, 55 N. Y. (reversing 42 Barb. 651); Columbia Insurance Company v. Masonheimer, 26 P. F. Smith 138; Cumberland Valley Mutual Protection Company v. Herbert, 2 W. N. C. 155; Campbell, Receiver, v. Adams, 38 Barb. 132; Hyde v. Snyder, 4 N. Y. 387; Woodworth v. Davis, Receiver, 13 Ohio 123. The company retaining the policies and the money, the defendants had a right to suppose that their policies were cancelled. The plaintiff’s company having accepted the payment made by them, promised to cancel their policies without any conditions or reservations. If there was any mistake or legal objection to the cancellation, it was the duty of plaintiff to so notify the defendants. This they did not do, and retaining the money and policies upon promise to cancel waived all objections if any existed. If defendants had sustained a loss, they would soon have been told, “ you have surrendered your policy. It is cancelled. We will pay you nothing.”
    The directors had ample power to make the contract, which they did. What they did by virtue of the charter itself is binding on all the members of said company. Their action in passing the resolutions referred to, comes within the management of the affairs and business of the company, and is therefore binding on all its members. The appointment of the receiver only passed to him the assets of the corporation, not its franchises. Not having the power to do any corporate act, his attempted assessments are'void, and therefore cannot be recovered: Schimpf v. Lehigh Valley Mutual Insurance Co., 5 Norris 373. These principles are clearly established by the decision of Judge Blodgett, United States District Court, Cincinnati, delivered December 24th 1879, in case of Cook, assignee of the Protective Life Insurance Company.
    May 31st 1880.
   Mr. Justice Trunkey

delivered the opinion of the court,

The business of an insurance company, whether conducted on the mutual or stock plan, is managed by its officers and agents, and the corporators are bound by the acts of such agents in all matters properly done within the .scope of the powers committed to them. A policy of insurance and the premium note given therefor, constitute a contract between the company and the insured, and the parties .usually have the same power to rescind it by mutual agree^ ment as they had to make it. Such a power on the part of the company seems essentially necessary to the safe and proper transaction of its business: Roland v. Whitman, Receiver, 33 Ind. 64; Woodwarth v. Davis, Receiver, 13 Ohio St. 123. Most mutual companies insert stipulations in their policies that they shall become void, either ipso facto, or at the option of the company, for certain acts of omission or commission by the insured, and when avoided, the rights and liabilities of the member are ended, except his liability for debts already incurred: Columbia Ins. Co. v. Masonheimer, 26 P. F. Smith 138; Wilson v. Trumbull Ins. Co., 7 Harris 372. The right of the company to cancel policies and thus terminate the contract, for various acts of the insured, though such right be not expressly reserved, has constantly been recognised, and it would be strange if it could not agree with the insured to abrogate the contract when deemed expedient or advantageous.

It is contended by plaintiff that it is not competent for the directors of a mutual insurance company to surrender the premium notes and relieve the insured from the obligations of his contract, unless the latter has paid -his full proportion of all debts existing at the time of the surrender : citing Maine Mutual Ins. Co. v. Pickering, 66 Me. 130. In that case the note was given in pursuance of a section of the charter of the company, for security of those, concerned, and is not like the case of a note given in the contract of insurance. In one sense the latter is a security, but.it may be given up for good consideration. Thus, when the assured surrendered his policy and received from the secretary of the company bis deposit note, there being contested claims which were subsequently established and on which he paid nothing, and after-wards a receiver was appointed who made an assessment on the said assured for payment of said losses, it was held that the matter had been adjusted between the company and the assured, and the receiver could not impeach or disaffirm the lawful acts of the corporation : Hyde, Receiver of the Chenango Mutual Ins. Co., v. Snyder, 4 N. Y. 387. After the filing of a petition by a mutual insurance company, but before publication of the appointment of a receiver, the maker of a premium note paid an assessment thereon and surrendered his policy, under an agreement with an authorized agent of the company that such payment and surrender should be in full of said note, which was agreed to be given up, but was not; the note was extinguished and the receiver could not maintain an action thereon: Sands, Receiver of the Columbia Ins. Co., v. Hill, 55 N. Y. 18. A good faith agreement, between the parties in a contract of insurance, to annul it, is valid.

Every person insured in the Union Horse Insurance Company of Blair county became a member of the corporation, entitled to the rights and subject to the liabilities of a stockholder. The value of the property insured was the amount of his capital stock, and he was liable to assessment for payment of losses' occurring during the time of his membership. When, for any cause, he ceased to be a member, he would not be liable for future debts, but-could afterwards be assessed for payment of debts made while he was a member, unless he had duly settled with the company. Section 8 of the charter provides, that all affairs of the company shall be managed and controlled by a board of directors. The verdict shows that in pursuance of resolutions of the board, the defendants paid all their just dues, as assessed against them, and handed their policies to one of the directors to return to the company to be cancelled; that they were so returned, and said board promised to cancel them and return the stock notes as soon as the secretary had time; that the assessment laid by the directors, being the. just dues so paid by defendants, was insufficient to pay the liabilities then existing; that said policies were not in fact cancelled, and said notes came into the hands of the receiver who laid the assessments in suit; and that under said resolutions the directors cancelled the principal part of the capital stock.

It is plain that the parties agreed to rescind the contract of insurance, and, according^, the defendants paid their money and surrendered their policies. They were bound by this agreement as if the policies had been marked cancelled and the notes given up. From thence the defendants had no insurance, they were not members, nor were they liable on the notes. The plaintiff has no more right to collect assessments on these notes than on those which had been actually returned on like terms. This case must be disposed of on the facts in the verdict, not outside. Whether there are facts which would make all, who were once members, liable to assessment for indebtedness created before the cancellation of their contracts, does not appear — they are not in the verdict. For aught that is found the directors acted in good faith, and did what they deemed for the interest of the company. It would be as just to assess the large number who got back their notes, as the few to whom the secretary neglected to return their notes, as the directors promised he should do.

Judgment affirmed.


text:
    Russell et al. versus Baughman et al.
    1. Ejectment in Pennsylvania is an equitable action, and when brought to enforce the execution of an agreement to convey is a substitute for a bill in equity.
    2. Where a party seeks to enforce specific performance of such a contract he must show that he himself has been ready, prompt and desirous of performance on his part. If he has been guilty of gross laches and unreasonable delay with regard to his rights, and by conduct long persisted in, conveyed the idea he has abandoned them, he cannot after there has been a-material change of circumstances affecting the rights, interests and obligation of the parties move a court of equity to decree specific performance.
    3. While the rule is not held so strictly against one who is in possession defending, yet it is generally by reason of his equities, and where these are so weak as to present no substantial grounds for protection they must yield to the general rule.
    May 11th 1880.
    Before Mercur, Gordon, Paxson, TrunkeY and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    • Error to the Court of Common Pleas of Bedford county: Of May Term 1880, No. 85.
    Ejectment by Jeremiah Baughman and Jacob J. Barndollar against Samuel L. Russell, Thomas A. Scott, Jonathan II. Seymour, Reese D. Fell and Ella G. Fell, his wife, Harry S. Gratz, Lewis C. Gratz and Walter Gratz, the said Ella, Harry S., Lewis C. and Walter being heirs at law of Robert H. Gratz, deceased, being minors, and having for their guardian, Henry A. Stiles— and the Kemble Coal and Iron Company, to recover a tract of land, including the iron, ore and minerals upon and under it, with the exclusive right to mine, take and carry away the same. The material facts were these: On the 8th of February 1856, Frederick Mench, being the owner of a tract of two hundred and twenty-two acres of land in West Providence Township, Bedford county, executed an agreement with S. H. Tate and W. P. Schell, conveying to said parties “ the right and privilege to dig, take and carry away all such iron, ore and other minerals as may be on, in and under that part of the tract of land owned by said Mench. * * * “In consideration whereof, the said parties of the second part do hereby agree to pay unto said Mench at the rate of one dollar and fifty cents for the ore and mineral right of each and every acre of land described above, in manner following, viz. : One-fourth in hand, one-fourth in one year, one-fourth in two years, and the remaining one-fourth in three years from the date hereof, the expenses of the survey to be paid by said Tate and Schell. The said Mench is to make a deed to S. H. Tate and W. P. Schell, and their heirs and assigns, for the said iron ore and other mineral right on or before the 1st May, A. d. 1856, at which time the hand-money is to be paid in full.” * * *
    In accordance with the agreement, twenty dollars were paid to Munch by Tate and Schell on February 8th 1856. The agreement was not recorded until September 7th 1865. The title of Tate and Schell, by a series of conveyances, became vested in the defendants.
    On the 4th of Nov. 1871, Mench and his wife sold the two hundred and twenty-two acres to the plaintiffs, Baughman and Barn-dollar, for $4400. The deed contained no reference to the mining rights conveyed to Tate and Schell. The lands subsequently increasing in value, Mench applied to and obtained from the plaintiffs, on November 27th 1871, a release to said Mench, releasing him, “ his heirs and assigns from all obligation or responsibility to them or their heirs or assigns on account of the clause of general warranty contained in said deed, so far as the same applies to any damage or loss they, Baughman and Barndollar, might sustain on account of the ore or mineral lease to Tate and Schell.”
    On the 30th of May 1872, the defendants leased several tracts of land to the Kemble Coal and Iron Company for a period of eleven years from April 1st 1872, and included in said lease was the tract of land in dispute. This lease was delivered and recorded July 13th 1872. In June 1872, the plaintiffs notified the iron and coal company that they owned the iron ore in the Mench tract, and on March 6th 1873 they executed an agreement with said company, allowing it to mine on said tract. This agreement was acknowledged by Baughman and Barndollar, and on the 13th of April 1873 was duly recorded.
    In September 1872, the Kemble Company commenced mining. They worked about a year — expended nearly $5000 — ceased operations, and notified their landlords accordingly. No money was expended upon, nor any ore taken from, the Mench tract.
    In November 1878 Baughman and Barndollar applied to the Kemble Coal and Iron company for a revocation of the license granted them by the agreement of April 6th 1873. More than five years had elapsed and nothing was being done. They were receiving no rent from the Kemble Company — the latter having abandoned their leases and so notified their landlords. The contract was rescinded by the Kemble Iron and Coal Company, and subsequently this action of ejectment was brought.

      At the trial the defendants tendered plaintiffs the balance of the purchase-money, $325, with interest in full, but the tender was refused.
    The defendants submitted, inter alia, the following points, both of which the„court, Hall, P. J., refused.
    5. That if the jury believe that Tate and Schell paid Mench part of the purchase-money; that Schell went to Mench with a deed prepared to be signed by Mench and wife, and to pay to him the purchase-money then owing, which he refused; that after-wards Tate and Schell went on the ground and expended money in opening a shaft and searching for ore therein, and that Mench had knowledge of that fact; that the vendees of Tate and Schell subsequéntly exercised acts of ownership by leasing said property-to the Kemble Coal and Iron Company, of which Baughman and Barndollar had notice; that Barndollar and Baughman sold ten acres of ground to said lessees and stood by when money was being laid out and expended by said lessees in attempting to open the ores in said ground, then they are estopped from setting up claim to the land, and the verdict can only be for the plaintiffs, the land in dispute to be released upon the payment of the unpaid purchase-money owing by defendants on the articles of agreement between Mench and Tate and Schell.
    6. That an action of ejectment is a possessory action and by it possession is conceded in the defendant, that Tate and Schell having paid part of the purchase-money and taken possession, which is conceded by this action, their vendees, the defendants, are entitled to hold the land upon payment of the balance of the purchase-money, and the verdict must be for the plaintiffs for the land in dispute, to be released upon the payment of the balance of said purchase-money.
    In the general charge, the court, inter alia,’ said :
    “If a party seeking a specific performance has been guilty of gross laches, or if in the intermediate period there has been a material change of circumstances affecting the rights, interests and obligation of the parties a court of equity will refuse a decree.
    “An ejectment is a substitute for a bill in equity to enforce a performance. A party cannot call upon a court of equity to enforce a specific performance unless he has shown himself ready, desirous, prompt and eager.”
    Verdict for plaintiffs, and after judgment thereon defendants took this writ and alleged, inter alia, that the court erred in the answers to the above points.

      Russell Longeneeher. and W. H. Koontz, for plaintiffs in error.
    The defendants are estopped from denying the validity of the lease. They stood by and permitted the company to expend large sums of money under the lease, and afterwards ratified the same by their agreement to annul the same: Troxell v. Lehigh Crane Iron Co., 6 Wright 513.
    The contract between Tate and Schell of the one part and Meneh of the other, was an executory one, but the covenants were mutual, and it was as much the duty of Mench to have performed his part, by making a deed and demanding the balance of the purchase-money, as it was the duty of Tate and Schell to pay. “Where the acts to be done by the parties are mutual and.to be performed at the same time, it is only necessary for the plaintiff to aver that he was ready and willing to perform his part: ” Williams v. Bentley, 3 Casey 301.
    Then, too, the. defendants below were in possession of the minerals under said land. This is conceded by the form of action which is a possessory action and admits the possession in the defendants; arid being in possession and having paid part of the purchase-money, and being ready and willing to pay the balance, we were entitled to have specific performance of the contract decreed: Dixon v. Oliver, 5 Watts 509; Caldwell v. Fulton, 7 Casey 480.

      John Cessna, for defendants in error.
    Plaintiffs cannot allege that there was ever any actual possession taken by Tate and Schell or those claiming under them. This part of their . case they rest upon the technical plea that by bringing ejectment we concede that they are in possession. Our writ was issued November 15th 1878. When we rescinded the contract with the Kemble Company it was expressly declared that this was done in order to enable us to institute proceedings at law to try our rights and settle the title. We fail to see how the fact that our election, on the 15th day of November 1878, to consider ourselves out, and our adversaries in possession, in order to bring ejectment could possibly be any evidence that our adversaries had been in possession since 1856. It is hardly necessary to argue that the paper of Mench to Tate and Schell, dated February 8th 1856, was merely executory. One of its clauses provided for the making of a deed at a future time named therein. The same time was fixed for payment of the balance of the hand money. Without doubt such a contract was executory — did not vest title in the purchasers nor give them constructive possession: Stewart v. Lang et al., 1 Wright 201; DuBois v. Baum, 10 Id. 537. “ It is the business of the vendee to move; the vendor may hold still, not so the vendee, he must be vigilant:” Miller v. Henlan, 1 P. F. Smith 265; Cadwalader’s Appeal, 7 Id. 158.
    It is too late to claim a specific performance : Porter v. Dougherty, 1 Casey 405; Callen v. Ferguson, 5 Id. 247; Churcher v. Guernsey, 3 Wright 84; Alley v. Deschamps, 13 Vesey 225; Merritt v. Brown, 4 C. E. Green 186; Kirby v. Harrison, 2 Ohio St 326; Roby v. Oossitt, 78 Illinois 638; Peters v. Delaplaine, 49 N. Y. 362.
    May 24th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

Ejectment in' Pennsylvania is an equitable action : Peebles v. Reading, 8 S. & R. 484. When brought to enforce the execution of an agreement to convey, it is a substitute for a bill in equity. When a party calls upon a court of equity to enforce specific performance he must show that he has himself been ready, prompt and desirous of performing on his part. If he has been guilty of gross laches and unreasonable delay, if he has slept on his rights, and by conduct, long persisted in, conveyed the idea that he had abandoned them, he cannot, after there has been a material change of circumstances affecting' the rights, interests and obligations of the parties, move a chancellor to decree specific performance: Parrish v. Koons, 1 Pars. 79; Patterson v. Martz, 8 Watts 374; Callen v. Ferguson, 5 Casey 247; DuBois v. Baum, 10 Wright 537; Miller v. Henlan, 1 P. F. Smith 265; Oadwalader’s Appeal, 7 Id. 158. It is true the rule is not held so strictly against one who is in possession defending. It is, however, generally by reason of his equities. When they are so weak as to present no substantial grounds for protection they must yield to the general rule. If possession be taken, and improvements be made, and expenditures be incurred, they will create a substantial equity.

The agreement under which the plaintiffs claim was executed in Eebruary 1856. It was for a mineral right, in consideration of $150, to be paid therefor. One-fourth of the purchase-money was to be paid by the first of May following, when the deed was to be executed, and the residue in three annual instalments thereafter. Twenty dollars, part of the first instalment, were paid at the execution of the agreement, and nothing more was ever paid. There was evidence indicating a willingness on the part of the vendor to convey on payment according to the contract; but no subsequent payment was made nor deed demanded. Neither the vendee nor those claiming under him took, any visible possession of the premises, they made no expenditure on them, they took no ore from them. After a lapse of nearly fifteen years, the defendants in error elected to consider the plaintiffs in error in the constructive possession, and brought this action of ejectment. In the meantime the lands had become of very great value, and the plaintiffs in error sought to revive equities which they had suffered to sleep for so many years. It was too late. The time to assert them had passed.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Miller et al. versus Irvine.
    1. A. and B. confessed a judgment to C. to secure his own debt and those of certain other creditors. An execution issued thereon, and C. purchased the personal property of the debtors. C. afterwards agreed with A. and B. to leave the property in their possession, in order to sell the same, and pay the proceeds to the creditors. Subsequently another creditor seized the property as the property of A. and B. under a judgment against them. In a feigned issue to try the title, Held, that the sheriff’s sale passed a good title to the property to 0., and that it was equally clear that he had a right to leave it with the defendants in the execution; that C. was á trustee as to the other creditors, and that the agreement with A. and B. was a bailment and not a sale.
    ' 2. The defendants in the execution became the agents of O. as trustee, and no interest passed to them under the agreement which could be affected by a subsequent execution against them.
    May 12th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, O. J., and Green, J., absent.
    Error to the Court of Common Pleas of Perry county: Of May Term 1880, No. 141.
    This was a feigned issue wherein Catharine Miller, Mary Miller and Elizabeth Miller were plaintiffs and J. H. Irvine, cashier, defendant, to try the title to certain personal property levied on by the sheriff as the property of Michael and Theophilus Miller, the defendants in an execution, and claimed by the plaintiffs.
    The jury found the following special verdict: That Catharine Miller is the mother of Theophilus and Michael Miller, and that Mary and Elizabeth Miller are the respective wives of the said Theophilus and Michael Miller. That the latter were partners in the manufacture of crockery-ware near Newport, .Perry county, in 1877. That as partners they owe their mother, Catharine Miller, $600. That they owed their wives jointly the sum of $900. That the brothers found themselves in failing circumstances in December 1877, and that they owed David Kline $803; and that Abraham Horting was liable as their endorser for $100, and that they owed Charles Meyers $300, and Jacob Frank $200; and that they were involved and owed other parties, such as the present defendant, considerable sums of money, and were utterly insolvent. That in order to prefer David Kline, Abraham Horting, Myers, Jacob C. Frank, their own mother and their wives, the brothers confessed, on the 22d day of December 1877, a judgment to the said David Kline for the sum of $2923.50, which was entered in the Court of Common Pleas of Perry county to No. 280, October term 1877: and by the terms of this judgment it was to secure Kline, Horting, Myers, Frank, their mother and their. respective wives, without giving any of the parties secured a preference so that one should be paid to the exclusion of the other. The judgment thus stood as a security for all named therein. That an execution issued on said judgment to Kline to No. 89, January term 1878, a levy was made on the personal property of the Muller brothers, consisting of crockery-war-e, horses, wagons, &c., including the property involved in the issue now trying ; a sale was made of these goods levied on, on the 31st day of December 1877 by the sheriff, and the bulk thereof was purchased by David Kline, the plaintiff in the said execution, for about $1337.69. That after Kline thus became' the purchaser of said property, he did not remove the same from the possession of the said defendants (Miller brothers) in the execution, but entered into the following agreement, to wit:
    “ It was agreed that the Miller brothers should keep possession of the property, sell it, and pay i'n full the sum of $800 to Kline; next pay $100 to or for Horting, and what balance remained to be taken for the mother and the wives of the' Miller brothers ; that is to say Kline was to be paid in full, Horting was to be paid in full, and the mother and wives would take the residue. That afterwards ware came down some and they (the mother and wives) agreed with the Miller brothers to take the rest in property; if it was sold for gain it was their gain, and if there was a loss it was their loss.”
    That the Miller brothers did thus retain, the property, used it and did sell sufficient in amount to pay Kline between $600 and $700, or in the neighborhood of $600 or $700, so that Kline is not yet paid in full. No money has been paid to Myers, and none has been paid to Horting. That the property in dispute is a part of the property sold under the Kline judgment and execution bought by Kline, and left with the defendants in the writ, the Miller brothers, under the agreement, terms and conditions specified in this verdict, and was levied on by the defendant on his execution No. 37, October term 1878. We find that the debts claimed by Kline, Myers, Horting, Frank, the mother and the wives of the Miller brothers were just, due and owing. That under these facts we are ignorant whether, the arrangements, made between Kline, the purchaser of the property, and the Miller brothers, as set out in this verdict was in law a bailment, which would protect the same from levy and sale on a subsequent execution, or a sale which reinvested the Miller brothers with the title thereto, and thus make it liable to subsequent levy and sale; if a bailment, we find for the plaintiffs, and if a sale, we find for the defendant.
    The court entered judgment for the defendant, when plaintiffs took this writ and assigned this action of the court for error.

      A. M. Maricel and Charles A. Barnett, for plaintiffs in error.—
    The agreement between Kline and the Miller brothers passed no title; it was not a sale, but simply a bailment: Mavnes v. Atwater, 7 Norris 496; Benjamin on Sales, 2d ed., 1; Williamson v. Berry, 8 How. 544; Wait’s Actions and Defences, vol. 5, 527; Clark v. Jack, 7 Watts 375; McCullough v. Porter, 4 W. & S. 177; Becker v. Smith, 9 P. F. Smith 469. There was no sale in law, because nothing was to be paid to Kline as the owner of.the goods. In point of fact he was not the owner of the goods. He was the trustee in the judgment and execution for himself and the other creditors named. The debt of the judgment did not all, nor for the most part, belong to him. He purchased the goods at the sheriff’s sale as such trustee plaintiff. The goods so bought became the property of himself and the others for whom he was trustee. Only upon paying the others out in full would the goods have become his individually. But he did not so pay. The beneficial ownership of the goods was in all the beneficial owners of the judgment.
    June 19th 1880.

      W. A. Sponsler, for defendant in error.
    A bailment is always the subject of return or under the direction or control of the bailor: Crist v. Keeler, 29 P. F. Smith 290. Dick v. Cooper, 12 Harris 217, is analogous to the case at bar. Whenever a contract is made whereby the person delivering the property into hands of persons against whom the execution of creditors goes out is'precluded from reclaiming them, or directing their disposition, the principle of bailment ceases to exist and the contract is a sale. A right to demand the price of the goods is no title to the goods themselves : Heitzman v. Divil, 1 Jones 264.
   Mr. Justice Paxson

delivered the opinion of the court,

The single assignment of error here is that the court below •erred'in entering judgment for the defendant upon the special verdict.

It is not disputed that the sheriff’s sale passed a good title to the personal property in controversy to Kline, the purchaser at said sale. His right to leave it with the defendants in the execution is equally clear: Myers v. Harvey, 2 P. & W. 478; Craig’s Appeal, 27 P. F. Smith 448, and Maynes v. Atwater, 7 Norris 496. The judgment upon which the property was sold was confessed to Kline to secure his own debt, and sundry other debts due by the Miller Brothers, the defendants in said judgment. Kline bought the property to protect himself and the others. As to them he was a trustee. After selling a part of the property he moved out of the county and left the remainder in the hands of the Miller Brothers, under an agreement that they should sell the same'and apply the proceeds first to the payment of Kline’s claim; second to the claim of Horting, and lastly to the claim of the mother and the wives of Miller Brothers. The special verdict finds the further fact “ That afterwards ware came down some,- and they (the mother and wives) agreed with the Miller Brothers to take the rest in property; if it was sold for gain, it was their gain; and if there was a loss, it was their loss.

The effect of this arrangement was to make Miller Brothers the agents of Kline, the trustee, to sell the property and apply the proceeds in accordance with the trust. It passed no title to Miller Brothers. They could sell and deliver, and in doing so make good title, but it was the title of Kline, the trustee, for whom they acted as agent. There was no interest or profit reserved to them in the transaction, in which respect the case differs essentially from Dick v. Cooper, 12 Harris 217, relied upon by the court below. Nor is Heitzman v. Divil, 1 Jones 264, in point. There property of a perishable character was left with the defendant in the execution for his consumption, to be returned in kind, and not the same property. Here no portion of the property was to be retained by Miller Brothers. They had no interest in it whatever. The balance, after paying the claims of Kline and Horting, was to go to the mother and wives. We need not discuss the position assumed by the court below, that Miller Brothers could not sell the property to their wives for the reason that such a transaction would be against public policy. No such point is involved in the case. The property in controversy did not belong to them, but to Kline, the trustee. As his agent, Miller Brothers had the right to turn over the property to their wives as creditors under the trust.

We are of opinion that the agreement between Kline and Miller Brothers was a bailment, and that it was error to enter judgment below for the defendant.

The judgment is reversed, and judgment is now entered for the plaintiff upon the special verdict.


author: Per Curiam.

text:
    Comp versus The Carlisle Deposit Bank.
    1. Under the charter of a bank the directors were authorized to manage its affairs and appoint its cashier. The bank was in the habit of receiving deposits of bonds for safe keeping for the convenience of its depositors and others, but without any compensation. The cashier of the bank solicited the plaintiff to deposit his bonds in the bank, and he took from the cashier a receipt which stipulated that the bonds should be at the owner’s risk. The cashier had no authority to solicit deposits, or make any representations as to their safe keeping, nor was it shown that the hank authorities had any knowledge of this particular deposit. In a suit for the bonds which were lost or stolen, Reid, that parol evidence of the declarations of the cashier, made when soliciting the deposit, that the bank would as securely keep the plaintiff’s bonds as it would its own, and that they were safe, except in case of fire or burglary, was not sufficient to change the effect of the written receipt so as to affect the bank.
    2. The bank was in the habit of detaching the coupons and collecting the interest for depositors of these bonds. It sent these coupons to city banks, and the proceeds were there placed to the credit of the bank, and upon the fund thus accumulated it would draw drafts and charge a small commission therefor. The interest paid by the city -banks was inconsiderable, and the amount realized therefrom and the commissions on drafts did not compensate for the trouble of forwarding the coupons and paying out the interest. Reid, that these facts did not constitute the bank a bailee for hire.
    3. The bonds thus deposited were placed in a fire-proof safe where the bank kept its ¡own valuable securities, and no one but the cashier and the authorities of the bank had access thereto. The cashier was a man who was highly respected by the community, and had the entire confidence of the directors. Reid, that there was no evidence of such negligence on the part of the bank as to make it liable for .a loss through the dishonesty of the cashier.
    May 13th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Searswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1880, No. 55.
    Assumpsit by Samuel Comp against the Carlisle Deposit Bank, to recover the value of certain United States bonds left with the bank for safe keeping, and which were lost while in its custody.
    At the trial it appeared that the hank was in the habit of receiving the bonds of depositors and others for safe keeping, but that it never took any compensation therefor. The bonds thus received were placed in tin boxes, and were kept in a burglar-proof safe inside of a larger safe, and the latter was placed in the bank vault. The money of the bank was kept in the same burglar-proof safe. It-was usually locked, and no one had access thereto hut the cashier or authorities of the bank. It was the habit of the bank to pay the interest directly to the depositors of the various bonds. The cashier cut off the coupons, and as they became due they would be sent to New York and Philadelphia, to several banks in said cities, and the fund realized from the sale of the coupons was placed to the credit of the defendant bank, which fund the latter used by drawing drafts thereon, and charging the draw’ees a small commission therefor. It was of some advantage to have such a fund to draw on for the accommodation of its customers, but the balances thus kept in the cities were not large, and very little interest was received thereon- The indirect profit thus derived from the fund did not compensate the bank for the trouble and risk it incurred in forwarding the coupons for collection, and distributing the proceeds among the bond depositors. By the charter of the bank the directors had the power to manage the affairs of the bank and appoint its cashier. From 1865 to 1876, one Hassler was cashier. He was well known and regarded by the community as an honest and upright ’man.
    On January 28th 1868, Hassler sent to the Secretary of the Treasury, at Washington, nine letters, which contained $27,250 of June 7-30 bonds, and gave the number -and letter of each bond and the name of the person on whose account the bonds were forwarded, together with the number and denomination of 5-20 July 1867 coupon bonds, to be sent in exchange for them. The authorities of the bank had no knowledge of this transaction, and there was no traoe of the bonds on their books except the copies of the above letters in the letter book. 'On February '8th 1868, the 5-20 bonds were issued in exchange for the 7-30 notes, and on February 10th 1868, they were delivered to the Adams Express Company to be forwarded to the Carlisle Deposit Bank. They were received in Carlisle on February 14th 1868, and were receipted for by Hassler.
    On the 15th of February 1868, Samuel Comp,'the plaintiff, went to the bank, in which he was a depositor, and drew ou-t his deposit. He had with him $2200 in 7-30 United States bonds. Whilst in the bank he asked Hassler, the cashier, if the bank exchanged 5-2® for 7-30 bonds, and was informed that they did. In answer to the inquiry of Hassler as to whether he had any '7-30’s, Comp said that he had, and -at Hassler’s request showed them to him. Hassler said he would exchange the bonds for him, and went to the safe of the bank and brought out 5-20 bonds of a larger denotnination, two >of $1000 and two of $100 each. Comp said he wanted bonds of the same denomination as the 7-30’s, to wit, four $500 and two $100, .as he might want to use them. Hassler then returned to the safe and brought out bonds of the denomination requested (some of those received the day before from Washington), and put them in an envelope and handed them across the counter to Comp, who started to leave the bank. Hassler called him back and asked him what he was going to do with the bonds. Comp replied that he was going to take them home and deposit them in the Bloomfield bank. Hassler said that they could take care of them just as well, and invited Comp around the counter to look at the vault. Comp then consented to leave the bonds, and Hassler then drew up and handed him the following receipt:
    Carlisle Deposit Bank.
    Carlisle, Pa., February 15th 1868.
    Received of Samuel Comp, Esq.:
    For deposit in the vault of this bank at the risk of the depositor, the following bo'nds, packages, &c., to be -delivered on return of this ticket.
    New Bloomeield Perry Co Pa.
    1 U. S. 5.20 bond 145289 .
    1 do do 145288 . 100
    1 do do 78359 . 500
    1 do do 78358 . 500

    1 do do 78360 . 500

    1 do do 78359 . 500

    $2200
    J. P. Hassler, Cashier.
    Interest due July and January.
    Comp testified; “ He handed the receipt over to me; I looked at it, and told him I wouldn’t stand that, that I would take the bonds. I told him if I had to run the risk of the bonds, that I would want the care of them myself. He then picked up the reoeipt; he said you stand no risk without burglars break in and rob the bank, or fire should take place and burn up the bank. He said the bank took as good care of their depositors’ money as they did of their own. He asked me inside of the counter, and I went in and he took me back to the vault, or the safe, and he showed me any amount of envelopes, which he said were all that kind of deposits, and then he said that I had better leave the bonds as a deposit there. His insisting on me, and through his importunity, I agreed that he might keep them. He then folded up the bonds, put them back in the envelope, and handed me the receipt.”
    There was no evidence of any authority given to -Hassler to seek deposits or make any representations as to their safe keeping. There were no entries on the books of the bank to show that these transactions were a part of its business operations. The government redeemed the 5.20 bonds of 1867 in Í870, but,the interest on plaintiff’s bonds, was paid to him regularly every six'months, until January 1877. The payments were made either by the cashier’s or the teller’s check on the bank, all of which Were honored. The amount of these checks was charged on the books of the bank. The teller of the bank, who signed some of the checks, was Louis A. Smith, who was also a man of repute and highly esteemed in the community. Smith died suddenly in September 1876, and Hassler then acknowledged that he had been using the funds of the bank, and by conspiring with Smith, had made fraudulent entries on the books of the bank. Hassler was dismissed, and afterwards prosecuted for embezzlement, when he committed suicide. In January 1877, Comp went to the bank to collect his interest, and was informed by the new cashier that the bank had no such bonds. Plaintiff then produced his receipt, and another search was made, but the bonds could not be found. Hassler, who was then alive, was questioned in regard to them ; but he said if they were not in the envelope in the safe, he could not tell what had become of them. The plaintiff then brought this suit.
    Early .in May 1877, in a corner of the vault under a large pile of books seldom used, and between the lowest books in the pile was found the original envelope of Mr. Comp. It contained the two $100 bonds with coupons on for July 1st 1876.
    These were tendered to and accepted by plaintiff.
    The following were among the points of plaintiff, to which are appended the answers of the court:—
    1. If the jury believe that the officers of the bank were in the habit of receiving government and other bonds, for safe keeping, with the knowledge of the directors, and the plaintiff, Comp, left the bonds in question with the bank for safe keeping at the special instance and request of the cashier, and upon his solicitation, and the officers of the bank were grossly negligent, in the care taken of' said bonds, the plaintiff may recover the value thereof, together with interest thereon from January 1877.
    Ans. “ There being no evidence in the case that the cashier had any authority to make such special request and solicitation as is embraced in this point, and in view- of the peculiar circumstances of the deposit in this case, the point is not affirmed.”
    2. If the plaintiff purchased the bonds from the bank or its cashier, and at the time of purchase told the cashier that he intended to place them for safe keeping in the bank of Bloomfield, Perry county, where the plaintiff resided, and the cashier requested and solicited him to leave the bonds with the bank for safe keeping, stating that the bank would be responsible for the bonds unless in case of burglary of the bank or fire, and relying on these representations, he was induced to leave the bonds with the bank for safe keeping, and they were not lost either by burglary or fire, under these circumstances the plaintiff may recover.
    Ans. “ Any such special engagement on the part of the cashier, as is set out in this point, being, according to the evidence, unauthorized by the bank, and not within the scope of the lawful powers of the cashier, this point is therefore not affirmed.”
    8. It being admitted that the bank was in the habit of receiving bonds for .safe keeping, and proved that its officers received the same with the knowledge and consent of the directors, if the jury believe the plaintiff left his bonds for safe keeping with the bank at the request and solicitation of its cashier, who stated that the bank would not be liable for the loss of the bonds, and then the plaintiff said he would not stand that, that he would take th'e bonds home, that if he had to run the risk of the bonds, he would take care of them himself, and the cashier then said you stand no risk without burglars break in and rob the bank, or fire should burn up the bank, such declarations made at the time of the transaction by the agent are binding upon the corporation, and if the loss of the bonds was not caused by burglary or fire, and the bonds were left' for safe keeping upon the faith of the declarations made by the cashier as aforesaid, the bank is bound by the contract of its agent, and the plaintiff would be entitled to recover.
    Ans. “ The answers given to the plaintiff’s first and second points are the answer to this point.”
    4. If the jury believe that the bonds in controversy were left with the bank for safe keeping on the 15th of February 1868, and were purchased by the United States government in October 1870, and the loss of the bonds was not made known to the plaintiff until January 1877, a period of over six years, during all of which time the bank continued to pay the coupons and premium, these are facts for the consideration of the jury in determining the question of gross negligence.
    Ans. “ There being no evidence showing knowledge on the part of the directors or any officers of the bank, except Hassler, the cashier, and Smith, the teller, of or concerning those four lost or stolen bonds in their use, proper or improper, this point is not affirmed.”
    6. If the bank received the bonds in question with the understanding that they were to collect the coupons in Philadelphia for plaintiff, and did collect them and thus obtained credit in city banks, upon which they sold checks and. drafts at a premium, the bank would not be a bailee without compensation, but if it solicited the deposit for its own special accommodation, it would be responsible for ordinary neglect, and if the jury so believe, they should find for the plaintiff.
    Ans. “ Under the evidence in this case, this point is not affirmed.”
    6. If the jury believe that the ’defendant did not take the.same care of the plaintiff’s bonds as it did of its own, then the defendant is guilty of such negligence as will entitle the plaintiff to recover.

      Ans. “If the jury finds that the four missing bonds were lawfully purchased by the plaintiff from Hassler, the cashier, on the 15th of February 1868, and were deposited according to the practice of the defendant corporation, it was not bound to take the same care of them as it did of its own.”
    7. An incorporated bank has a president, cashier and board of directors, and the cashier is the executive officer- to manage its concerns in all things not peculiarly committed to the directors by the charter, and he is the agent of the corporation and not of the directors, and if the jury believe that the contract was made- as testified to by Mr. Comp, the defendant is bound by the contract of the cashier, and the plaintiff is entitled to recover.
    Ans. “ This point is not applicable to the facts of this case or to the issue trying. The first part of this point is offered as a general proposition, but under the charter of the defendant corporation and the facts'of the case, is not applicable. The defendant is bpund by a contract of the cashier under the practice of the bank.”
    8. If Hassler, the cashier, spontaneously and officiously proposed that the bank would keep the bonds of plaintiff, the defendant is responsible in such case for ordinary neglect.
    Ans. “Any such spontaneous and officious act of the cashier being unauthorized by the bank, it is not responsible for ordinary neglect.”
    The following were among the points of the defendant with the answers of the court:
    1. The bonds in this case having been left in the bank- without any consideration for their keeping, the defendant is only liable for such gross negligence as led directly to their loss.
    Ans. “Affirmed.”
    2. No solicitation by Hassler to Mr. Comp to leave his bonds in' the bank, in the absence of all evidence showing any authority to Hassler to make any such solicitation, and in the absence of all evidence of any custom so to do known to and acquiesced in by the directors of the bank, will suffice-to alter or change the terms of the receipt accepted and produced by the plaintiff, which must be taken as the contract of the party.
    Ans. “Affirmed.”
    8. The fact of the coupons of bonds left with the bank as the plaintiff’s were being cut off and sent to the city, sold, and the proceeds of sale, along with other funds passed to the credit of the bank, as a fund for drawing drafts on, does not and cannot imply any consideration for keeping the bonds, especially in the absence of any evidence to show any such understanding or request at the time they were left with Hassler, the cashier, and in the absence of proof that the plaintiff’s coupons were so used.
    Ans. “ Affirmed.”

      5. The un contradicted evidence in this case being that the bonds of the plaintiff never belonged to the bank, that they never entered into its working, and they were kept where the bank kept its money and valuables, repels any presumption of such gross negligence as to render the defendant liable for the plaintiff’s bonds.
    Ans. “If the jury find that the four missing bonds never belonged to the bank, but were the lawful property of the plaintiff, and never entered into the working of the bank, and that they were kept where the bank kept its money and valuables, this would repel any presumption of such gross negligence as to render the defendant liable for such bonds, but the measure of the care is slight diligence.”
    8. There being no evidence in the cause to show gross negligence on the part of the officers of the bank, and the un contradicted testimony being that Hassler was of high standing in the community until the discovery of his fraudulent conduct, and that he had the confidence of the community as well as of the directors of the bank, and the evidence being sufficient to justify his conviction for the theft of these bonds, the verdict of the jury should be for the defendant.
    Ans. “ Affirmed.”
    In the general charge, the court, McClean, P. J., of the Forty-second judicial district, inter alia, charged :
    “The first inquiry of fact to be determined by you is, who had the ownership of the bonds-that Mr. Hassler professed to sell or exchange in the transaction with Mr. Comp on the 15th of February 1868. But the day before Mr. Hassler had received them, the same bonds, as appears from the records of the Treasury Department,' procured in the lot sent for in nine separate orders of and for private parties, men and women, whose records you have heard read. Were they the property of the bank? Were they the property of Mr. Hassler, the cashier ? It is argued that his solicitude and importunity in having Mr. Comp leave the bonds in the bank, is some evidence of a dishonest and fraudulent design on the part of Mr. Hassler in dealing with Mr. Comp in the transaction; that Mr. Hassler had not the right to offer and to appear to pass them to Mr. Comp, if they were the special property of some of the private customers of the bank. The argument of the defendant further is, that the four $500 bonds may have been restored to the • parties, rightfully owning them, and that Mr. Hassler appropriated to himself the 7-30 notes which the plaintiff passed to him. And that the. subsequent acts and conduct of Mr. Hassler in sending the plaintiff the semi-annual returns of the coupons' and gold premium after the four bonds had passed back into the treasury of the United States, and were redeemed as far back as the 20th of October 1870, are convincing evidenc'e of the fraud practised by him on Mr. Comp as well as upon the bank, and that Smith, the teller, was cognizant of and participated in this guilty conduct. * * *
    [“ I must instruct you then, at the threshold of the ease, that if you find the bargain of February 15th 1868, tainted with fraud on the part of Mr. Hassler in disposing of property not his own, nor the bank’s, it is a vicious thing, upon which the defendant cannot be held liable. You need not proceed to make the next inquiry in the case if the first is determined by you against the plaintiff. It is a question of fact, and the testimony would seem to be strong in support of the defendant’s position upon this stage of the case, but the inquiry is to be answered by you from the evidence, and you must not be controlled by any opinion I have expressed or may express upon the facts.] * * * [To conclude, if you. find from the evidence that the transaction of the 15th of February 1868, was a fraud and trick on the part of Hassler, that he had not then the lawful control of the four missing bonds; but that his act was a sham and deception, your verdict will be for the defendant.”]
    Verdict for defendant, and after judgment thereon, plaintiff took this writ, and alleged that the court erred in the answers to the above points, and in the foregoing portions of. the charge included in brackets.

      H. Newsham, W. A. Sponsler and Graham & Son, for plaintiff in error. —
    A bank is liable for the acts and declarations of its cashier -when made in the discharge of an act the cashier is authorized to perform, although he may exceed the limit of his express authority: Lancaster Bank v. Irvine, 3 P. & W. 250; Chestnut Hill Turnpike Co. v. Rutter, 4 S. & R. 11; Steamboat Co. v. McCutcheon, 1 Harris 15; Pennsylvania Railroad Co. v. Titusville Plank Road Co., 21 P. F. Smith 355; Bissell v. First Nat. Bank of Franklin, 19 Id. 419; First Nat. Bank v. Graham, 4 Norris 91, and 8 W. N. C. 361; Gray v. Portland Bank, 3 Mass. 385; Merchants’ Nat. Bank v. State Bank, 10 Wallace 645.
    Parol evidence was admissible to vary the written contract: Thompson v. White, 1 Dall. 447; Irwin v. Shoemaker, 8 W. & S. 75; Overton v. Tracy, 14 S. & R. 311; Hultz v. Wright, 16 Id. 345; Oliver v. Oliver & Bell, 4 Rawle 141; Campbell v. McClenahan, 6 S. & R. 172; Hoeveler v. Mugele, 16 P. F. Smith 350; Kostinbader v. Peters, 30 Id. 438; Graver v. Scott, Id. 88; Chalfant v. Williams, 11 Casey 212; Mundorf v. Wickersham, 13 P. F. Smith 87; Caley v. Philadelphia and Chester Railroad Co., 2 W. N. C. 313; Lippincott v. Whitman, 2 Norris 244; Greenawalt v. Kohne, 4 Id. 369; Filenberger v. Mutual Ins. Co., 8 Id. 464; Spencer v. Colt, Ibid. 314.
    If-the use of the coupons resulted in any appreciable advantage to the bank, it was a bailee for hire and liable for ordinary negligence: Bank v. Graham, 29 P. F. Smith 116. The spontaneous and officious proposal of the cashier of the bank to keep the bonds made the bank liable : Kent’s Com. 564 : Jones on Bailment 54. The cashier cut off and collected the coupons and placed the proceeds to the credit of the plaintiff. The bonds, therefore, entered into the legitimate and proper business of the institution. The proceeds were drawn out upon the cashier’s or teller’s check in favor of Comp.
    May 24th 1880,

      John Says and Lemuel Todd, for defendant in error.
    Admitting that the cashier was the agent of the bank, and he was not, when he gave the printed receipt with the official heading of the bank to Comp, who read it and fully understood it, that receipt, coming as it did from the bank, was notice to Comp upon what terms bonds could be deposited in the vault. It advised him of the power of the person with whom he dealt. He had knowledge of the power committed to the agent with whom he was dealing, and if he trusted to declarations directly contradicting the terms of the paper, the bank is not responsible. The limitation of liability could not extend to cover the gross negligence of the.bailee.
    By the terms of the charter, the cashier was the agent of the directors and not of the corporation, and the qualifications in Bissell v. First National Bank of Franklin, supra, destroy the application of that case to the one at bar.
    The acts of the cashier were not within the scope of his authority and therefore not binding on the bank : Wharton on Agency, sect. 460; Maul and Wife v. Rider, 9 P. F. Smith 167; Speer v. Evans, 11 Wright 141; Insurance Co. v. Robinson, 6 P. F. Smith 256; Butcher v. Yocum, 11 Id. 168; Fehley v. Barr, 16 Id. 196.
    His declarations, if intended to make a different contract from that contained in the receipt, were cleárly beyond his power, and certainly inadmissible to vary its terms. The deposit and the consequent use of the coupons were too inconsiderable a source of profit to make the bank a bailee for hire. There was no evidence of gross negligence. The esteem in which ITassler was held by the community justified the confidence reposed in him.
   The judgment of the Supreme Court was entered

Per Curiam.

When the plaintiff left these bonds he took a receipt therefor, in which it was declared they were received “ for deposit in the vault of this bank at the risk of the depositor.” The parol evidence of the declarations of the cashier was not sufficient to change the effect of the written receipt so as to affect the bank. There was no evidence that it was accustomed to receiving bonds for safe keeping, except at the risk of the owner; nor that the directors had any knowledge that bonds were left at the instance, request or solicitation of the cashier. We are unable to discover any negligence in the manner in which the bank kept the bonds. They were placed in the vault. They were not lost by outside robbery, hut by inside larceny. Whether- kept in paper envelope or small tin-box, in either case, the cashier might readily have had access to them. He was of good repute, and no negligence can be imputed to the directors for retaining him in his position. Having full confidence in his integrity they trusted him with the property of the bank. They had no knowledge of any misconduct on his part. They were not bound to examine packages left on deposit without reward, to see if the contents remained. The bank was a bailee without hire. It is not necessary to consider the assignments in detail. We discover no error.

Judgment affirmed.