text:
    Mansfield Coal and Coke Co. versus McEnery,
    1. The measure of damages in cases arising under the Acts of April 15th 1851 and April 26th 1855, authorizing the widow and children of a decedent, whose death has been caused by negligence, to recover damages, from the person or persons whose negligence was the cause of the death, is the pecuniary loss suffered by the parties entitled to the sum recovered, with-l out any solatium, for distress of mind; and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession, during the residue of his lifetime, and which would have gone for the benefit of his children, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure. Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 335, followed.
    2. It was error in the court to charge the jury that in estimating such damages “ they might also consider the opportunities of acquiring wealth or fortune by change of circumstances in life.”
    3. Where the deceased lost his life by the fall of defendants’ bridge, the defendants are not liable if they show they exercised ordinary care in selecting an experienced builder to construct the bridge, and that the builder had the supervision and control of the work, unless it appears that the defendants had knowledge of the defects from which the accident arose, and neglected to repainthe same.
    4. It seems, it is of no consequence that the builder was employed by the day, as the manner of his compensation does not affect the question.
    5. The bridge was unsafe and dangerous for months prior to the accident; there was no evidence that the defendants knew of its condition, and the deceased, although he must have known its condition, did not notify them, and continued in their employment. Held, that he was guilty of contributory negligence, and plaintiffs could not recover.
    6. It was offered to be shown that the deceased was careless as a driver; but the evidence did not refer to a tima near the accident. Held, that this, evidence was properly rejected.

      October 7th 1879.
    Before Sharswood, C.'J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 66.
    Case by Mary McEnery and children, the widow and children of John McEnery, deceased, against the Mansfield Coal and Coke Company, to recover damages under the Acts of April 15th 1851, Pamph. L. 674, and April 26th 1855, Pamph. L. 309, for the death of said John McEnery, which it was alleged was caused by the negligence of said defendants.
    At the trial it appeared that the deceased was employed by the company to drive a mule drawing coal cars. In the performance of this duty he daily crossed several times a bridge of defendants and while thus passing over it in 1877, it fell and the deceased was killed. The plaintiffs contended that the defendants were liable, because the accident was caused by defects arising from the original construction of the bridge. It was shown that it was built in 1874 by Henry Willard, a carpenter and experienced bridge-builder, who was employed by the company to construct the bridge, and the construction of which was under his supervision and control, and and that he was paid by the day. There was no evidence that the company did not exercise care in his selection,, neither was there any evidence to show that the company knew of the dangerous character of the bridge, or that the deceased had ever notified them that it was dangerous. On behalf of the plaintiffs, several witnesses testified that the bridge was unsafe and dangerous for several months prior to the accident; that it vibrated and shook whenever a wagon passed over it; that it swayed at one time at least two feet; the bridge swagged; it shook so that horses were afraid to cross it; it waved up and down the stream; caused the horses trouble to keep their feet. Plaintiffs also gave evidence to show that the foundations were not sufficiently strong and that the bridge was otherwise defectively constructed.
    For the defence it was offered to be shown that deceased was a fast and careless driver, which the court rejected.
    The following were among the points submitted by the plaintiffs with the answers of the court, Kirkpatrick, J.
    3d. If the jury believe, from the evidence in the cause that the death of John McEnery was the result of an imperfect or insufficient foundation for the erection of the structure on which the defendant company had located their railway, it is such negligence as would entitle the plaintiffs to recover in this action, unless the jury should find from the evidence that the deceased, by negligence, contributed to his own death.
    Ans. “ Affirmed.”
    5th. The damages which may be allowed in this action may be summed up, as the pecuniary value of the life of John McEnery to his family, including wages and all such service as a father could render of pecuniary value to the wife and children, whilst the jury are at liberty to take into consideration questions of health, liability to accident or death; they may also consider the opportunities of acquiring wealth or fortune by change of circumstances in life.
    Ans. “Affirmed.”
    Among the points submitted by the defendants were the following, which were refused:
    1st. The undisputed evidence in this case, showing that the bridge or trestle was built under the supervision and direction of Henry Willard, without the intervention of any officer of the company, and there being no evidence to show any want of care in the selection of said Willard, the plaintiffs cannot recover.
    14th. If the jury find that the bridge was constructed under the supervision and inspection of Willard, and that he was a competent bridge-builder, then even should they also find that the bridge shook and swayed in going over it, and that it became dangerous .to go upon it with loaded coal wagons, this would not entitle the plaintiffs to recover unless knowledge was brought home to the proper officers of the defendant company of this fact, and the company neglected to repair the same.
    The verdict was for plaintiffs for $50.00, and after judgment defendants took this writ and alleged that the court erred (9th assignment), in the exclusion of the above testimony (1st and 5th assignments), the affirmance of plaintiffs’ points, and (2d and 3d assignments), the refusal of defendants’ points.

      J. G. MacConnell and D. T. Watson, for plaintiffs in error.
    The court should have given definite instructions to the jury as to the true measure of damages, which is the pecuniary value of the deceased’s life: Pennsylvania Railroad v. Vandever, 12 Casey 304. By affirming the 5th point of plaintiffs the court laid down a rule which is boundless and at variance with the decisions of this court: Pennsylvania Railroad Co. v. Zebe, 9 Casey 330; Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 338; Pennsylvania Railroad Co. v. Keller, 17 Id. 308; Pennsylvania Railroad Co. v. Henderson, 1 Id. 323; Huntingdon & Broad Top Railroad Co. v. Decker, 3 Norris 419. If the company exercised ordinary care in the selection of a person to build the bridge they are not liable for any negligence on his part.
    The burden of proof was not on the company to show they had exercised due care and skill in the selection of the contractor or bridge-builder to erect the bridge, but it was obligatory upon the plaintiffs to show want of due care in the selection. This they might have done by showing the incompetence of the bridge-builder: Painter v. Pittsburgh, 10 Wright 221; Ardesco Oil Co.
      v. Gilson, 18 P. F. Smith 150; Butler v. Hunter, 7 Hurlst. & N. 826; Wonder v. Baltimore and Ohio Railroad Co., 32 Md. 418 Albro v. Agawam Canal Co., 6 Cushing 77; Gilman v. Eastern Railroad Co., 10 Allen 233; Wright v. New York Central Railroad Co. 25 N. Y. 562; Pittsburgh, Fort Wayne & Chicago Railway Co. v. Ruby, 38 Ind. 311; Feltham v. England, 2 Q. B. 33; Frazier v. Pennsylvania Railroad Co., 2 Wright 110. See also Sizer v. Syracuse, Binghampton & New York Railroad Co., 7 Lansing 67 ; Union Pacific Railway Co. v. Young, 8 Kans.,658; Harper v. Indianapolis & St. Louis Railroad Co., 47 Mo. 567.
    It was competent for the defence to show that the deceased was a fast and careless driver: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 343.

      E. Edgar Galbreth, R. M. Gibson and Thomas M. Marshall, for defendants in error.
    Whilst the accidents and possibilities of the future might lessen or depreciate the pecuniary estimate of the value of McEnery’s life, and were proper subjects for the consideration of the jury, the possibility and the probability of an active,, intelligent and industrious young man of twenty-seven years of age bettering his condition was not beyond the just range of inquiry. That we were right appears to us free from doubt. We fail to find a line or letter in any decision upon this. statute which debars this inquiry. If the “uncertainties”«of the future are to be weighed and “cast into the balance” against the widow and orphan, in the estimate of the pecuniary value of the deceased husband and father, surely the possibility of that improvement in condition of life which is the natural and ordinary progress of the industrious, energetic and frugal, may finally be considered in the estimate of the pecuniary value of human life: Pennsylvania Railroad Co. v. Butler, supra; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396; Pennsylvania Railroad Co. v. Dale, 26 Id. 49; Catawissa Railroad Co. v. Armstrong, 2 Id. 286.
    If the company had employed a “well-known and reputable bridge-builder,” and proved the fact, it would have raised the question which is now set up. But they did not. Willard was neither “a well-known” nor reputable bridge-builder — he made no pretence of the kind. There was no evidence of his knowledge or experience, or that he knew or pretended to know the weight of the coal and cars to be carried over the bridge. Willard was under the control of the superintendent of the company. The knowledge of the superintendent was the knowledge of the company.
    If the offer to prove that McEnery was a careless driver had been to prove his general reputation or the “ established habit” of the man, it would have had the grace of seeming like evidence, but the offer that in a single employment he had been a fast and careless driver, is certainly incompetent.

      November 17th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The question of the measure of damages in cases arising under the Acts of 15th April 1851, Pamph. L. 674, and of the 26th April 1855, Pamph. L. 309, authorizing the widow and children of a decedent whose death has been caused by negligence, to recover from the person or persons whose negligence was the cause of such death, damages therefor, is not free from- difficulty. The plain object of the act was to provide a mode by which the family of one who has lost his life under such circumstances might recover a reasonable compensation for the pecuniary loss sustained. It was not intended to make families suddenly rich by the loss of their head nor to bring about an equal division of property-. In itself the act was right and proper, and if enforced in a spirit of impartial justice to all concerned cannot fail to prove highly beneficial.

It was early held that in such an action, exemplary damages could not be recovered, but that they must be compensatory only. See Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 315, and Same v. Keller, 17 Id. 300. Nor can the damages be enhanced by any consideration of pain to the deceased or anguish to the survivors: Id. It is therefore a mere question of compensasion. What compensation may be recovered under such circumstances ? The Act of 4th April 1868, Pamph. L. 58, says such compensation only as the evidence shall clearly prove to have been pecuniarily suffered or sustained. I know of no more accurate rule for the measure of damages than the one laid down by the present chief justice in Pennsylvania Railroad Co. v. Butler, 7 P. F.' Smith 335: “ After an attentive examination and review of all the cases which have heretofore been decided, we are of opinion that the proper measure of damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered without any solatium for distress of mind, and that loss is what the deceased would have probably earned by his intellectural or bodily labor in his business or profession during the residue of his lifetime and which would have gone for the benefit of his children, 'taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure.” Any rule that judicial research and experience may suggest must necessarily be more or less vague, and leave much to the sound discretion of the jury. The character of many of the verdicts rendered in such cases admonishes us that it would be unwise to enlarge the rule as above stated in Railroad Co. v. Butler.

In his answer to the plaintiffs’ fifth point the learned judge went beyond any of the cases cited. In the point referred to the court was asked to instruct the jury that “ the damages which may be allowed in this action may be summed up, as the pecuniary value of the life of John McEnery to his family, including wages and all such service as a father could render of pecuniary value to the wife and children, whilst the jury are at liberty to take into consideration questions of health, liability to accident or death. They may also consider the opportunities of acquiring wealth or fortune by change of circumstances in life.” This point the learned judge affirmed without qualification. No fault is found with the first sentence of the point, but the affirmance of that portion I have italicised gave the jury a license that was practically without limit. It was substituting for the ordinary, reasonable and probable incidents of life, that which was speculative and unusual. What are “ the opportunities of acquiring wealth or fortune by change of circumstances in life,” and how can a jury measure them ? A laborer toiling in the mines may by chance pick up a nugget of gold worth a fortune. Industry, thrift and sagacity have enabled some, poor men to become millionaires. These cases however are exceptional. They are only the possibilities of life. Looking at mere possibilities, this unfortunate mule driver, had he lived might have become President of the United States. Yet to estimate the damages to his family by his death upon the basis of a president’s salary would be worse than a burlesque upon the administration of the law. Such a principle, carried to its logical conclusion, might bankrupt any person, firm or corporation engaged in a business which involved the use of an element of danger. The point in question was probably framed by way of set-off- to the defendant’s eighth point, in which the court was requested to instruct the jury that in arriving at the value of the deceased’s life they should consider “ the uncertainty of life, the uncertainty of health, the uncertainty of constant employment, and should also consider how much it would have cost to board and clothe the decedent.” This point was properly affirmed. The incidents to which it refers are such as are usual in the course of a man’s life. Nothing is more certain than that life, health and constant employment are uncertain. It is reasonable, therefore, that these elements should be considered by a jury in estimating the value of a man’s life to his family. There is a degree of uncertainty about them, it is true, which makes it difficult for any jury to arrive at a strictly accurate conclusion. This renders it the more necessary that to those admitted elements of uncertainty, there shall not be added others which are purely speculative. There was error in affirming the italicised portion of plaintiff’s fifth point.

Error is also assigned to the refusal of the court below to affirm the defendant’s first point, which was as follows: “ The only duty the defendant company owed to John McEnery, deceased, was ordinary skill and care in the selection of employees to erect and construct the machinery and appliances used in connection with its bridge. The undisputed evidence in this case, showing that the bridge or trestle-work was built under the supervision and direction of Henry Willard, without the intervention of any officer of the company, and there being no evidence to show any want of care in the selection of the said Willard, the plaintiffs cannot recover.” The court affirmed the first sentence of the point, but denied the concluding sentence. It is only .that we have to consider.

The deceased having lost his life by the giving way of the defendants’ bridge, over which he was passing at the time with a mule team, it was a necessary part of the plaintiffs’ case to show that the bridge had not been properly constructed. The defence was that the defendants had exercised ordinary skill and care in the selection of employees to construct it. This defence is ample if made out. It was said in Ardesco Oil Co. v. Gilson, 13 P. F. Smith 146, that “ If a person employs mechanics or contractors in an independent business, and they are of good character, and there was no want of care in choosing them, he is not liable for injuries to others, from their negligence or want of skill.” To the same point are Painter v. Pittsburgh, 10 Wright 213, and Butler v. Hunter, 7 H. & N. 826. The principle is too familiar to need elaboration.

The defendants showed and it was not disputed, that they employed Henry Willard to construct this bridge, and that he was a carpenter and bridge-builder of experience. It is not enough for the plaintiffs to show that his work was unskilfully done or that he was incompetent. It must appear that the defendants were guilty of negligence in selecting him; that they either knew he was incompetent or with proper diligence might and ought to have known it. The law presumes they exercised ordinary care and skill in making the selection. The defendants are as much entitled to this presumption as the plaintiffs are to the presumption that the deceased exercised ordinary care in crossing the bridge. It will not do to have all the presumptions on one side. It follows that the burden of proof of showing that the defendants did not exercise ordinary care and skill'iti the employment of Mr. Willard, rests upon those who assert it. This principle is sustained by respectable authority. In Wonder v. The Baltimore and Ohio Railroad Co., 32 Md. 418, the Supreme Court of that state said: “ If, therefore, the defect in the brake that caused the injury, existed by reason of the neglect or want of care on the part df such employees of the defendant, the latter cannot be held liable, unless there has been negligence in the selection of those servants, and the onus of proof of such negligence is on the plaintiff.” In the Pittsburgh, Ft. Wayne and Chicago Railroad Co. v. Ruby, 38 Ind. 311, it was held that the plaintiff must show “that the defendant had not exercised ordinary care and prudence in the employment of such person.” The Supreme Court of Massachusetts and the Court of Errors and Appeals of New York have laid down a similar rule: Albro v. The Agawam Canal Co., 6 Cush. 77 ; Gilman v. Eastern Railroad Co., 10 Allen 239; Wright v. New York Central Railroad Co., 25 N. Y. 566. The same doctrine is recognised in Feltham v. England, Law Rep., 2 Q. B. 33, and in our own case of Frazier v. The Pennsylvania Railroad Co., 2 Wright 104.

There was no evidence that the. defendants did not exercise ordinary care and prudence in the selection of their bridge-builder. It was alleged, however, that Willard was only employed by the day, and that he was under the control of Robert Bell, the superintendent of the defendant company. It is of no consequence that Willard was employed by the day. The manner of his compensation does not affect the question under discussion. Willard says in his testimony that he had been a carpenter for twenty years and was experienced in bridge-building. He also says distinctly that he had control and supervision of the construction of the bridge in question. There is no substantial contradiction of this testimony. It is true one witness for the plaintiffs (Henry Kerb) does attempt to give a different version of it in his examination in chief, but practically took it all back in his cross-examination by admitting that Willard had charge of the construction of the bridge, and that Mr. Bell in no instance interfered with him or changed his plans. As superintendent of the company Bell paid the men, and consulted with them when necessary about the work. Had it been done under a special contract, it would have been his duty as superintendent to have done all that he did do in this case.

As therefore the defendant company owed no duty to the deceased except that of ordinary care in the selection of a builder to construct the bridge: as there is no substantial dispute that they did select Henry Willard for that purpose, and as there is no proof of the absence of ordinary care and skill in selecting him, the defendants’ first point ought to have been affirmed.

The third assignment alleges error in not affirming the defendants’ fourteenth point. Said point is as follows: “If the jury find that the bridge was constructed under the supervision and inspection of Willard, and that he was a competent bridge-builder, then even should they also find that the bridge shook and swayed in going over it, and that it became dangerous to go upon it with loaded coal wagons, this would not entitle the plaintiffs to recover unless knowledge was brought home to the proper officers of the defendant company of this fact, and the company neglected to repair the same.”

In considering this point it is important to understand just how the case stood before the jury at the time the instruction was asked for. The bridge in question was erected in 1874. The accident occurred in March 1877. The plaintiffs had called several witnesses to prove that months prior thereto the bridge was unsafe and dangerous; that it vibrated and shook whenever a loaded wagon passed over it. J. Harvey Robb says, “ it vibrated, it shook wonderfully.” The witness crossed it in November 1876, on the rear car of a coal train. In his cross-examination he says it swayed at least two feet. Frederick Wagner crossed it with a two-horse wagon loaded with a thousand feet of hemlock lumber. lie said “ the bridge swagged; I couldn’t just say how much; it shook that way that the horses were afraid tq go across it; I had to whip them across.” J. H. Phillips said he hauled a wagon-load of lumber over the bridge in February 1877, and that “ the shaking of the bridge alarmed me; 'the bridge shook more or less one way and-another; waved backward and forward; it appeared to wave up and down the stream; it shook horizontally; caused the horses some trouble to keep their feet.” John Allen said that when a train of coal passed over the bridge “it jarred it around considerably.” John Bennett said “ it swagged on the side like.” John McDermot said “it would shake considerably up and down the run.

There was also a large amount of testimony offered by the plaintiffs to show that the foundations of the bridge were insufficient and that its original construction was defective. The case was tried upon the theory that it was improperly constructed and that the defendant company was the builder thereof, and therefore responsible for such defects. The pleadings, the evidence and the points submitted all show that the plaintiffs relied upon the defects in the original construction of the bridge, and upon that alone. In the printed argument of the plaintiffs, referring to this assignment of error, it is said: “ This, assignment falls to the ground, the defective construction being the act of the company. Notice was neither necessary nor material to the case. The law fixes the responsibility upon the neglect of the builder.”

As a further circumstance bearing upon this point we have the fact that John McEnery, the deceased, was in the employ of the defendant _ company at the time of his death, and had been for months previously; that it was his daily duty to drive a mule-team drawing several cars loaded with coal over this bridge, and that so far as the evidence in the case shows, neither John McEnery, nor any other person, ever gave notice to the defendant company of the dangerous condition of the bridge. Nor is there a word of evidence to show that the company knew it.

I have endeavored to show in the discussion of the plaintiffs’ first point (2d assignment), that if the defendants exercised ordinary care and skill in the selection of employees to construct the bridge they would not be responsible for defects resulting from its original construction. If, however, the defendants had knowledge of such defects, more especially if notice had been given to them thereof, and they had neglected to make the necessary repairs, they would be responsible not only to strangers, but even to one of their employees, provided he was not chargeable with concurring negligence or want of proper care, or neglect of duty on his part. This brings us to the important point in this branch of the ease. It has been repeatedly held, in fact there is no conflict of authority upon this question, that where an employee has knowledge of machinery being defective and dangerous, and in the course of his employment continues to use it, without notifying his employer of such defect and asking him to repair, he voluntarily accepts the risk, and cannot, in case of injury from such cause, recover damages therefor. The rule is thus stated by Cockburn, C. J., in Clark v. Holmes, 7 Hurlst. & N. 937 : “Where a servant is employed on machinery from the use of which danger may arise, it is the duty of the master to take due care, and to use all reasonable means to guard against and prevent any defects from which increased and unnecessary danger may occur. No doubt when a servant enters on an employment, from its nature necessarily hazardous, he accepts the service with the risks incidental to it; or if he thinks proper to accept an employment on machinery defective in its construction, or from the want of proper repair, and with knowledge of the facts enters on the service, the master cannot be held liable for injury to the servant within the scope of the danger which both the contracting parties contemplated as incidental to the employment.” It is said in Whart. on Ev., sect. 212, that “A railroad or other employer is not required to exercise that exquisite and exhaustive care in the constant examination and overhauling of its machinery and works which would be incompatible with the proper furtherance of business. And if in such case the employee knew of the particular defect, he is precluded from recovering on the ground above stated. The only basis, indeed, on which he can be entitled to recover * * * is that not knowing as to the special defect through which he was injured, he had a right to presume that the structure had the proper appliances to enable him properly to do his work.” In Mad River and Lake Erie Railroad Co. v. Barber, 5 Ohio St. 541, the action was brought by a conductor against the company, on whose trains he was running, to recover damages for injuries received, on the ground that the injury was the result of the insufficiency of the cars, and defects in the machinery of the train. It was held by the court that “ if he (the conductor) knew of the defects and insufficiency of the cars or machinery, and without taking the necessary and proper precaution to guard against danger, continued to use them, he took upon himself the risk, and waived his right as against the company.” In Priestley v. Fowler, 3 M. & W. 1, it is said: “ The mere relation of the master and servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant in the course of his employment, to the best of his information, judgment and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself; and in most of the cases in which damage may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master.” If he has such knowledge, he is negligent in disregarding it, and takes the risk: Whart. Neg., § 217. It was accordingly held in Seymour v. Maddox, 16 Q. B. N. S. 326, that where there was a hole in the floor over which the plaintiff had to pass in the dark, and it was not lighted or guarded, and he knew its condition but chose to pass in the dark, he did so at his own risk. Frazier v. The Pennsylvania Railroad Co., supra, was an action brought by a brakes-man for injuries resulting from the negligence of the conductor of the train, the allegation being that the company knew of the incompetency of the conductor and yet continued him in their employ. It was held, Lowrie, C. J., delivering the opinion of the court, that “ If the plaintiff knew that his conductor was habitually careless, and chose to continue in service with him, and did not inform the company of his known acts of carelessness, and refuse to serve with him, he can have no claim against the company for injuries suffered from further carelessness, even if the company did also know.” And see authorities there cited, and also in foot-note at sect. 214, of Whart. on Neg. In this country the rule has been so far modified as to hold that a servant does not by remaining in his master’s employ, with knowledge of defects in the machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified his employer of such defects, or protested against them, in such way as to induce a confidence that they will be remedied: Whart. Neg., § 221, citing Kroy v. Chicago, R. I. & P. Railroad Co., 32 Iowa 357; Greenleaf v. Dubuque & Sioux City Railroad Co., 33 Id. 52; Snow v. Housatanic Railroad Co., 8 Allen 411.

It remains but to apply these well-settled principles of law. It was not a controverted fact that John McEnery, the deceased, had been using this bridge constantly for some months prior to his death; that he drove a mule team of loaded coal cars over it daily, if not several times each day. The plaintiffs proved that the bridge was in an exceedingly dangerous condition; that it swayed from side to side as the teams passed over it, so that the horses could scarcely keep their feet. The unsafe condition of the bridge therefore was patent; it must have been known to the deceased; it could not have been otherwise; yet with such knowledge he voluntarily continued in the service, and gave no notice to his employers of its dangerous condition, nor did he make any protest against being subjected to such perils. If the plaintiffs’ testimony be true, and we must assume it for the purposes of this point, by their own showing, John McEnery, the deceased, was guilty of gross negligence in exposing himself upon such a structure, and took upon himself the risk of injury from such cause. The defendants’ fourteenth point ought to have been affirmed.

There was also error in affirming the plaintiffs’ third point. Said point affirms their right to recover by reason of the insufficient foundations of the bridge, if the jury believe them to be so, without regard to the question as to whether the defendant company or Mr. Willard was responsible for any alleged defects of construction.

It was not error to reject the.offer of evidence embraced in thé ninth assignment. The offer was vague in this, that it* fixed no time during which it was proposed to inquire into the habits of deceased as to carelessness. Eor anything that appears in the offer it might have been ten years prior to his death. Had the offer been confined to a short time before, it would have been competent under the authority of Pennsylvania Railroad Co. v. Books, 7 P. E. Smith 339, where it was held that “ where a habit of intoxication in a conductor is shown, it raises, in the case of an accident, a presumption of negligence, which stands until it is rebutted.” This language was applied to habits existing at the time of the accident.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Hyatt versus Johnston.
    Since the scintilla doctrine has been exploded, both in England and in this country, the preliminary question of law for the court is, not whether there is literally no evidence, or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted ; if not, it should be withdrawn from the jury.
    October 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 211.
    Assumpsit by Thaddeus Hyatt, on a book-account and accepted draft, against Ross Johnston, impleaded with E. K. Chamberlin and S. Crawford.
    At the trial it appeared that Thaddeus Hyatt, who carried on business in the city of New York through an agent, Theodore Hyatt, sold and delivered, in the fall of 1872 and up to January 11th 1873, a bill of merchandise amounting to some $4000, to the firm of Crawford, Chamberlin & Co., of Chicago, of which Ross Johnston, the defendant, was then a member. On or about February 18th 1873, Crawford, Chamberlin & Co., who had already made some small payments on account, remitted to Hyatt $1000 in cash and two drafts, both dated February 18th 1873, and drawn on and accepted by themselves, for the balance. Hyatt received this remittance, and credited it on their account on February 21st, after charging them with the interest or discount on the drafts. One of these drafts, for some $1400, was not paid at maturity, and was thereupon duly protested. Subsequently Hyatt brought this suit, declaring both upon the draft and the book-account.
    About the time these drafts were accepted and remitted, Johnston withdrew from the firm of Crawford, Chamberlin & Co., and his former partners, Crawford and Chamberlin, having taken in a new partner, continued the business under’the same firm name. Johnston, who alone was served, pleaded payment, &c., claiming that the draft in suit was the acceptance of this new firm, and that the plaintiff received it as absolute payment. At the trial of the cause, Theodore Hyatt testified that they received the draft as the acceptance of their debtors, the old firm; and, although admitting that he was aware of the withdrawal of Johnston, denied having any intention of discharging him from his liability as a member of the old firm, or of receiving an acceptance of the new firm as absolute payment.
    The only evidence offered by the defendant in support of his plea of payment, were four letters, three of them dated respectively, March 1st, March 22d and April 1st 1873, from the plaintiff to Crawford, Chamberlin & Co., and the fourth dated March 26th 1873, from this firm to the plaintiff, in reply to his letter of March 22d, and another of March 18th, not in evidence.
    . The plaintiff objected to the admission of three of these letters, viz.: those of March 1st, March 22d and April 1st, contending that they referred to a different and subsequent transaction, and were wholly irrelevant. Their admission was the ground of the first and second specifications of error.
    The fourth letter, dated March 26th 1873, from the firm to the plaintiff, was admitted without objection. The material portions of these letters were as follows:
    “New York, March 1st 1873.
    Messrs. Crawford, Chamberlin & Co.,
    Gentlemen: Enclosed please find statement of account to date, for amount of which you will do me the favor to send check or draft, as you may elect, on the terms agreed upon by us. * * * Thaddeus Hyatt, per Theodore Hyatt.”
    “New York, March 22d 1873.
    Messrs. Crawford, Chamberlin & Co.,
    Gentlemen: * * * On the 18th inst., I mailed to you for acceptance and the endorsement of your Mr. Charles B. Brown, a sixty-day draft for amount due me, as per statement of 1st inst., which you will please have properly executed and returned by earliest mail, as I wish to use it at once.
    Thaddeus Hyatt, per Theodore Hyatt.”
    “ Chicago, March 26th 1873.
    T. Hyatt, Esq., New York City,
    Dear Sir: Your favors of the 18th and 22d insts., arrived in due time. We have not returned you the draft sent for endorsement, because of the dissolution of this firm, which took place on the 23d inst., the copartnership having expired by limitation on that day.
    Both Mr. Brown and Mr. Johnston, who comprise the Co., being wealthy men, insure to all creditors payment of paper at maturity, as well as guaranteeing the entire indebtedness of the concern. Neither of the above-named gentlemen desire to continue the business, and we are consequently, taking steps toward closing it up.
    We have on hand at this time quite a stock of your goods, * * * which we would be pleased to either return to you (at our expense for freight charges), also turn them over to the Younglove Company, or whoever you choose as your representatives in this city. The business is without doubt an exceedingly profitable one, and will well repay any persons who work it. This copartnership is not continued longer, simply because both our Messrs. Brown and Johnston have so much larger interests in other directions. * * *
    Crawford, Chamberlin & Co.”
    “New York, April 1st 1873.
    Messrs. Crawford, Chamberlin & Co.,
    Gentlemen: Your favor of 26th inst. is at hand, and I regret not receiving the draft accepted by you, as requested in my last.
    Enclosed you will please find statement of account to date, for amount of which I would like either check or sixty-day draft.
    In regard to the stock on hand that you refer to, I have to say that it was all settled for in your acceptances I now hold, and you are at liberty to dispose of it as you think best. * * *
    You will do me the favor to inform me by early mail how and when my account will be settled.
    Thaddeus Hyatt, per Theodore Hyatt.”
    The plaintiff submitted, inter alia, the following points, to which are appended the answers of the court, Collier, J.:
    2. That the burden of proving that the plaintiff took an acceptance of the new firm as absolute payment is on the defendant; and that the defendant has given no evidence from which the jury would be warranted in finding that the plaintiff' agreed to take the said acceptance as absolute payment.
    Ans. “ Refused.”
    3. If the second prayer is refused, then the court is requested; to charge that, even if the acceptance was made by the new firm, and the plaintiff knew that fact, yet, if the plaintiff took it on account of a pre-existing debt, and did not agree to take it.in absolute payment, the presumption of law is that the plaintiff took the draft only as conditional payment [and, as the said acceptance has been dishonored and remains unpaid, the plaintiff is entitled to recover].
    Ans. “Affirmed, except the part in brackets, which is refused.”
    Verdict for defendant, and after judgment plaintiff took this writ, alleging that the court erred in admitting the above letters, and in the answers to the foregoing points.

      John B. Herron, Jr., and George Shiras, Jr., for plaintiff in error.
    The merchandise, for a balance of the price of which this suit was brought, was sold and delivered to Crawford, Chamberlin & Co., prior and up to January 11th 1873 ; and the draft in suit, dated February 18th 1873, was received by the plaintiff, credited on their account, and the account closed, on February 21st 1873.
    The court erred in admitting the letters of March 1st, 22d, and April 1st. The two former relate to a transaction wholly independent of and subsequent to the one in suit, and were clearly irrelevant. The drawers of the draft in suit, or the intention of the parties thereto, are in no way disclosed by these letters. While the letter of April 1st does contain an allusion to the acceptances of February 18th, this letter, taken in connection with that of March 26th, to which it is a reply, was no evidence that these acceptances were those of the new firm, or that the plaintiff had received them in absolute payment. In his use of the word “ settled,” Hyatt simply meant that the goods had been included in an account stated, which had been agreed to, and closed in the manner indicated: Houser v. Irvine, 3 W. & S. 345; Bevan v. Cullen, 7 Barr 281; Scott v. Strawn, 4 Norris 471; Parsons on Part. 284; Collyer on Part., 4th Am. ed., sect. 373, note 1; Lindley on Part., 646.

      H. & G. C. Burgwin, for defendant in error.
    The plaintiff admitted that he knew at the time of the dissolution of the original firm, by the withdrawal of Johnston and entry of Brown, and that the new firm assumed all the liabilities of the old. The old firm name was adopted by the new, and on February 18th 1873 the draft was accepted by Crawford, Chamberlin & Co. But plaintiff, on the trial, raised the question as to whether this acceptance was not by the old firm in liquidation. To remove all doubt on this point, we introduced the plaintiff’s letters of March 1st, March 22d and April 1st, addressed to Crawford, Chamberlin & Co., showing that business accounts were carried on between them at that time; that consequently these letters were addressed to the new firm, and that when in that of April 1st, plaintiff wrote to Crawford, Chamberlin & Co. that the stock to which they referred in theirs of 26th March, “was all settled for in your acceptances I now hold,” one of Avhich Avas that in suit, he showed beyond all controversy that it was the acceptance of his then correspondents, viz.: the new firm, and not that of the old firm in liquidation.
    October 20th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

While it was conceded 'by the defendant that the first firm of CraAvford, Chamberlin & Co., of Avhich he was a member, was indebted to plaintiff for merchandise, .in a larger sum than that claimed in this suit, it was contended that acceptances of the second firm Avere taken by the plaintiff, in absolute payment of that indebtedness, and the defendant was thus released therefrom. The plaintiff, therefore, had a clear prima facie case, and the burden was on the defendant of proving that the draft in suit was the acceptance of the second firm, and that it was received by the plaintiff in absolute payment of the original debt.

For the purpose of proving these facts, the letters referred to in the bills of exception, were offered and admitted. The plaintiff insisted that they were insufficient, and requested the court to instruct the jury, “ That the burden of proving that the plaintiff took an acceptance of the new firm, as absolute payment, is on the defendant, and that the defendant has given no evidence from which the jury would be warranted in finding that the plaintiff agreed to take the said acceptance in absolute payment.” This was a controlling point in the case, and the refusal of the learned judge to charge as therein requested is assigned for error.

An examination of the testimony bearing on this proposition, leads us to the conclusion that it should have been affirmed. Viewing the testimony in its most favorable light, there was no evidence from Avhich the jury was justified in finding that plaintiff agreed to take the acceptance as absolute payment and thus release defendant from an acknowledged liability. When it' is claimed that a creditor has agreed to accept the note or obligation of another, and in consideration thereof release his debtor, the proof of such novation should be at least clear and satisfactory. In this case it can scarcely be said that there was even a scintilla of evidence to show that the acceptance was taken in absolute payment. Since the scintilla doctrine has been exploded, both in England and in this country, the preliminary question of la.AV for the court is, not whether there is literally no evidence, or a mere scintilla, hut whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is evidence from which the jury can properly find the question for the party on whom the burden of proof rests, it should be submitted; if not, it should be withdrawn from the jury : Ryder v. Wombwell, Law Rep., 4 Exch. 39.

The letter of April 1st 1873, was offered for the purpose of showing “ the kind of transactions carried on between the plaintiff and the” second firm, and also, to show that the goods, purchased by the first firm, were paid by the acceptances, one of which is the draft in suit. Standing alone, as it did when offered to the court, the letter would appear to be relevant, and perhaps material, but when read in connection with that of March 26th 1873, to which it is a reply, it contains nothing to justify the inference sought to be drawn from it. In the last-mentioned letter, Crawford, Chamberlin & Co., after referring to the dissolution of the firm, say: Both Mr. Brown and Mr. Johnston, who compose the Co., being wealthy men, insure to all creditors the payment of paper at maturity, as well as guaranteeing the entire indebtedness of the concern.” There is not the slightest intimation here that defendant was released; on the contrary, his continued liability is distinctly recognised. They then refer to the stock purchased from plaintiff, out of which the indebtedness to him arose, and propose to return a portion of it. It was in reply to this proposition that plaintiff wrote, “ it was all settled for in your acceptances I now hold.” Even if this could be. regarded as an admission that the acceptances were those of the second firm, it surely cannot be construed to mean that they were taken in absolute payment. The language of the letter, especially when considered in connection with the one to which it is a reply, does not justify such an inference.

The letters of March 1st and 22d 1873, offered to show, among other things, that plaintiff was negotiating with the second firm for the closing of the old account, knowing that defendant was not a member of that firm, &c., were wholly irrelevant for that purpose. It is quite clear-that neither of these letters refers to the old account on which plaintiff’s claim is based, nor to the acceptances by which that account was balanced on his books. They evidently relate to subsequent transactions having no connection with plaintiff’s claim-against the first firm.

If there was an agreement to take the second firm for the debt of the first, and release defendant from all liability, it was somewhat singular that none of the parties were called to prove the fact. The plaintiff’s testimony was distinct and positive that no such transaction occurred, and there is nothing in the correspondence, given in evidence, to contradict him. He says he drew on the first firm, by whom the debt was contracted, for a sum sufficient to cover their indebtedness, and when he received their acceptances he credited them and thus balanced the account. There is nothing in the.testimony, when properly considered, that is inconsistent with the continued liability of the defendant.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    City of Pittsburgh versus McKnight et al.
    1. Under no form of action, and much less in a scire facias upon a municipal lien for grading and paving a street, can a city be called upon to adjust the equities between the contractor and a property holder.
    2. In such a proceeding on a municipal lien, the jury, under instructions from the court, found a verdict for the city for the amount of her claim, and also, under instructions found certain facts in the nature of a special verdict, by which it appeared that the defendant had a set-off, as against the contractor, in excess of the amount of the claim of the city, and on this verdict judgment was entered generally. Held, that the city could not complain, as the judgment was_ for her claim in full, and that the remainder of the verdict was surplusage.
    October 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 190.
    Scire facias sur municipal lien, issued by the City of Pittsburgh, against Robert McKnight and others, executors of Mrs. Elizabeth E. Denny, deceased, for the sum of $938.26, the assessment on certain property of defendant, fronting on Ridge Avenue, in the city of Pittsburgh, and which was levied for the payment of the cost of grading, paving and curbing said avenue.'
    At the trial of the case, the defendant claimed that she should not be compelled to pay the assessment, on the ground, that during the progress of the work, Johnson, the contractor, had purchased gravel from her, and that she had done hauling for him, for the work on the street, with the verbal understanding or agreement with him that he would pay her, or that she would be allowed a credit for the amount of such materials and work, on the assessments against her property. This agreement was.not put in writing, nor- was any notice of it given to the city, until after the assessment had been made. The plaintiff objected to evidence for the purpose of proving these facts being admitted, as being irrelevant in this case, and also as an attempt to set off against the .claim of the city, a debt owing to the defendant by a third person, not a party, to the action. The court, White, J., overruled the objections and admitted the testimony. The court also admitted, against the objections of the plaintiff, evidence on the part of the defendant, going to show that during the progress of the work, Johnson, the contractor, had assigned all his interest in the contract, and all money coming to him under it, to one M. A. Sanner, in order to obtain money to complete the contract, and that Sanner had afterwards assigned the same to W. W. Patrick, who, after the assignment to him, had advanced all the money to complete the work, and that Sanner had taken the assignment, subject to Johnson’s agreement with Mrs. Denny.
    The seventh point of the plaintiff, with the answer of the court, was as follows:

      That under the pleadings in this case, the jury cannot ascertain or determine the equities between the defendant and the contractor, or M. A. Sanner or' W. W. Patrick, who are not parties to this action, and their verdict must be for the whole amount of the claim of the city, without qualification or condition as to the distribution of the amount of the verdict.
    Ans. “ Refused, because all the parties named are in court, and have been fully heard in the trial; in fact, these questions were the real matters at issue in the trial.”
    In the general charge the court, inter alia, said:
    “ Where, as in this case, the city, the contractor and the party assessed, are in court and fully heard, we can do equity and justice to all. The city is entitled to a verdict and judgment for the amount of the lien, and the jury can find what amount of money coming to the contractor is due the defendant. The judgment will be satisfied by the defendant paying the difference; the city will credit the street account with the amount of' the verdict, and charge the contractor with the amount found by the jury against him. * * *
    “ But we have another party in court, claiming the money under an assignment from the contractor. The city is in court rather as a stakeholder of the money, or as an agent collecting the money for the party legally entitled to it. The city has no claim against the contractor, admits that the money is due him on the contract, and has no reason for paying it to one claimant, rather than the other. Even if the money were paid into the city treasury, the same controversy would arise, and would have to be settled as to which of these parties is entitled to the money. For I take it that after due notice from two parties claiming the fund, under assignment from the contractor, the city could not safely pay it to either claimant before their respective claims were judicially settled. It can be as well settled now; Mr. Patrick claims the fund as against Mrs. Denny, and is here to substantiate his claim by his counsel and witnesses, and has been fully heard. * * *
    “ But if you find from the evidence, that a portion of the money he (Patrick) claims was paid by him to Sanner, when he took the assignments from Sanner, and exceeds the amount coming to Mrs. Denny ; and if you further find, that Sanner made an agreement with Johnson that the bill of Mrs. Denny should be paid out of the money coming on the contract, and took the assignments expressly subject to such payment, then Mrs. Denny will have priority, and should be paid before Mr. Patrick'. In that event your verdict should be for the plaintiff for the amount o.f the assessment with interest and you should also find that Mrs. Denny is entitled to have the amount of her bill with interest, paid out of the moneys coming to Johnson or be credited on account of her assessments.”
    Under instructions the jury found the verdict “for the plaintiff in the sum of $1022.98, and further that M. A. Sanner, when he took the assignment from S. A. Johnson, expressly agreed that the bill of Mrs. Denny for gravel, stone, hauling, &e., on the street, should be credited on her assessment or paid out of the contract price and took the assignment expressly subject to that claim, and that more than the amount of her bill is included in the claim of W. W. Patrick for money paid by him to M. A. Sanner on the assignment made by Sanner to Patrick, and that the bill of Mrs. Denny, with interest thereon from the time the lien was filed in this case is $1188.27, for which she is entitled to credit on the assessment against her property on this street, the same to be a credit to the city of Pittsburgh on the contract of S. A., Johnson.”
    The court entered judgment on this verdict as rendered, when plaintiff took this writ and alleged that the court erred, inter alia, in admitting the above evidence, in refusing the foregoing point, and in charging as set forth above.

      W. W. Thompson, S. H. Geyer and Thomas S. Bigelow, City Solicitor, for plaintiff in error.
    The contractor is not a party to the record; nor was he the agent of the city to collect the assessments, nor authorized by it to allow credits on them, or interfere with them or their collection in any manner. Neither is he a substantial or equitable party to the action. He cannot claim the specific money collected- by the city on the assessments, or that they were collected for his benefit or use. They may be applied by the city to other purposes and the contractor may be paid from other funds in the possession of the Gity. He could not therefore assign or transfer the assessments but only his claims against the city. Neither he nor his assignees could have their rights determined in this action; any questions between the contractor and the city as to the amount due him on his contract can only be settled when he presents his claim against the city for payment, which is the proper time to settle all equities between him and the various assignees of his claim. Neither he nor his assignees can be made parties to the record here, and therefore will not be concluded by the judgment. In addition to this, if the equities between the contractor and his different assignees can be tried in this case, they can also be tried on each assessment along the street, and a different settlement of them made in each ease. Each property owner may, have a private agreement with the contractor as to his assessments, which, under the rulings in this case, would have to be considered by the jury. This cannot be done: Schenley v. Allegheny City, 12 Casey 41, 51, 61; Hutchinson v. Pittsburgh, 22 P. F. Smith 326; Dyer v. Barston, 50 Cal. R. 654; Himmelman v. Spanagel, 36 Id. 392.

      R. B. Carnahan for defendants in error.
    No reason has been assigned why the verdict and judgment should be disturbed in so far as relates to the amount due the city on its municipal claim; the judgment entered is for that amount and so stands now as the judgment of the court below. The finding of the jury that the defendant in error is entitled to credit on the amount of the judgment for so much money has not been acted upon in any way — does not form part of the judgment, but merely informs the conscience of the court as to the equities of the parties, and it is difficult to see how any writ of error will lie to this finding. It is the finding of a jury, after hearing all the parties and all they had to offer, that the defendants have an equity, and is probably notice-to the world of the existence of that equity. It is not a payment, not a set-off, not a defence- of any kind to the recovery of the judgment. The court may, or may not, hereafter deem the finding of the jury sufficient to satisfy its conscience on an application to have a credit allowed, and it is respectfully submitted that if the plaintiff in error is not satisfied with the finding, application should be made to the court below to strike it off.
    [See report of City of Pittsburgh v. Harrison, post 206— Rep.]
    October 27th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

The city of Pittsburgh has, in this case, no ground of complaint, inasmuch as it has judgment for the full amount of its claim. The jury, under the court’s instruction, found for the plaintiff $1022.98, then, in obedience to a like instruction, they proceed to state certain facts, which they also find, and to give certain directions concerning the set-off of Mrs. Denny’s bill against Johnson, the contractor, and its final credit to the city on the contract with Johnson. It, in fact, amounts to a decree, in which an attempt is made to adjust certain supposed equities between Mrs. Denny and Johnson, who is no party to the record, through the medium of the city. But the city had nothing to do with the contracts between Johnson and Mrs. Denny, and therefore under no form of action, and much less the present one, can it be called upon to adjust and pay what may be due upon such contracts. It follows that the judgment entered upon the verdict is for $1022.98; all the remainder of the verdict is surplusage.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    City of Pittsburgh versus Harrison.
    1. The Act of January 6th 1864, which authorizes Councils of the City of Pittsburgh to improve the streets and assess the cost of improvements upon lot-owners, gives no specific property in the assessments to contractors, and in no sense does the statute make the city a stakeholder of unpaid assessments.
    2. Undecided, whether the city is legally bound to pay assignments of parts of money due a contractor who has done work for the city.
    3. A property holder has no set-off against the city’s claim for an assessment, and in a suit for such assessment by the city the equities between the property owner and the contractor cannot be adjusted. See City of Pittsburgh v. -McKnight et al., ante 202.
    October 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 191.
    Scire facias sur municipal claim, issued by the city of Pittsburgh against James Harrison, to recover the amount of an assessment on certain property fronting on Ridge avenue, for grading, curbing and paving said avenue.
    Ridge avenue was graded and paved under the Act of January 6th 1864 (Pamph. L. 1131) and its several supplements, by virtue of an ordinance passed by the city councils, June 25th 1874, in pursuance of the petition of a majority of the property owners along the street, among whom was the defendant. The contract for the work was given to S. R. Johnson on June 5th 1875, and the street was completed on October 25th 1876, and the municipal claim was filed on March 21st 1877.
    The only defence was, that the defendant had received from Johnson, an assignment to himself and his brother of $1900, for work and material furnished in the grading of Ridge avenue, for which the assessment was made, and that “a credit should be given in this claim for defendant’s interest in said sum — being half of said amount.”
    At the trial below, the plaintiff objected to the defendant being allowed to make this defence, as being a transaction between the defendant and third parties, not parties to the action. The court overruled the objections of the plaintiff and admitted the evidence.
    From the evidence thus admitted, it appeared that Johnson, not having sufficient funds to complete the contract, borrowed money for that purpose from one M. A. Sanner, to whom he gave, prior to October 23d 1875, several assignments of money coming to him under his contract. These assignments amounted then to over $9000, and had been filed with the city controller, one of them for $6000, witnessed by John Harrison. On October 23d 1875, having contracted with Harrison Bros., who were partners in the stone business, for the curbstone for the street, he gave them as security for the work and materials to be furnished by them and for other indebtedness of Johnson to them, the following order, viz.:
    “Pittsburgh, October 23d 1875.
    R. M. Snodgrass, controller city of Pittsburgh, pay to the order of John and James Harrison, nineteen ($1919.53) hundred and nineteen dollars and fifth-three cents, and charge the same to me on account of grading, paving and curbing Ridge avenue.
    S. R. Johnson.”
    Afterwards, on April 8th 1876, Johnson assigned all his right and title to the balance of his contract on Ridge avenue to M. A. Sanner, who by different assignments, running from January 10th 1876, to January 5th 1877, transferred all moneys coming to him under these assignments to W. W. Patrick and R. Patrick & Co., who on the strength of these assignments, advanced over $11,000 to Johnson to enable him to complete his contract. It appeared from the evidence that all this money was advanced to Johnson, and that none was paid by Patrick & Co. or W. W. Patrick, to M. A. Sanner. All the money that Sanner received was paid to him by the city from the amounts paid in on assessments. How much he had advanced to Johnson did not appear. The total contract price of the street was $18,081.81, and the cost to the contractor over $20,000.
    The Harrisons refused to complete their contract, and they and Johnson disagreed in their testimony as to the quantity of curbstone furnished by them, and the amount owing by Johnston to them for those furnished.
    About the time of the first assignment to W. W. Patrick, he was informed by Johnson that the order to John and James Harrison was given to them to secure them on their contract for curb-stone, and that he owed them about $400 then on the contract, and that they had refused to furnish any more stone. It was not claimed by either of the Harrisons that either of them had any agreement or understanding with Patrick in reference to Johnson’s order in their favor or as to its payment or allowance. They claimed, however, that they should be allowed credit for the amount of it on tlieir several assessments.
    At the trial before White, J., “ defendants proposed to prove by the witness, W. W. Patrick, that he claimed the funds to be collected in these cases, and all moneys due on the street, amounting to about $9500, by assignment subsequent to October 23d 1875; that before taking his assignment, he went to the office of the controller of the city of Pittsburgh, to see if there was any assignment of S. R. Johnson’s contract, and was told, of assignments to Sanner of between $8000 and $9000, and of the assignment to Harrisons of about $1900, and that witness is the substantial plaintiff in these cases. For the purpose of showing that the city of Pittsburgh recognised and accepted the order of October 23d 1875, and that witness took his assignment subject to the Harrison order.”
    Objected to by plaintiff for the reason that the evidence is immaterial and irrelevant; that, if admitted, it will not prove the facts proposed to be proved; that it would not prove an acceptance by the city; that neither the witness nor S. R. Johnson are parties to the record and questions between the defendant, and either or both of them, cannot be tried under the pleadings.
    The court overruled the objections and admitted the evidence. (1st assignment of error.)
    The fifth point of plaintiff was a.s follows:
    “ That in this case the jury cannot take into consideration any order or assignment by the contractor, and that any such order or assignment is no defence to the action of the plaintiff in this, case.”
    The court answered: “Affirmed. It is no defence, but if it means that the equities between the contestants of the fund cannot be inquired into in these actions, it is refused. The city is merely a stakeholder or agent in collecting the money, and takes no part in the trial. The whole controversy has been between Patrick, as assignee of the contractor, and the defendants claiming a portion of the fund. I doubt not,' that on notice from the city, Patrick could have been compelled to intervene for the protection of his rights. He has appeared and contested the defendant’s claim. I have no doubt he is bound by the result; as assignee he can claim only the actual amount due on Johnson’s contract. The credit allowed in these cases reduces the amount due on the contract, and binds him after notice.”
    In the general charge the court said : “ This case is quite similar to the City of Pittsburgh v. Mrs. Denny, recently tried in this court [see preceding case of City of Pittsburgh v. McKnight et al.— Rep.], and I adopt my charge in that case as an exposition of the legal principles involved in this case.
    “ In these cases also, we have all the parties in interest in court, and they have been fully heard by their evidence and counsel. The city takes no active part in the controversy, because the only question at issue is, who is entitled to the fund? Mr. Patrick claims it all under his assignments from Sanner and Johnson. The defendants claim a part of it to be applied in part payment on their assessments.
    “ It is sufficient in these cases to instruct the jury as follows:
    “ 1st. The order given by Johnson to the defendant, on the city controller, is not such an assignment of that amount of money due on his contract, by Johnson, as to give priority to the assignments of Sanner or Patrick.

      “ 2d. The leaving of that order with the city controller, and hia making a memorandum thereof, is not an acceptance of the order by the city; nor is all the evidence in this case sufficient to establish an acceptance by the city, so as to bind the city to apply the amount of the order in payment of the assessment of defendant.
    “ 3d. The only ground upon which defendant can claim a portion of the fund as against Patrick, is Patrick’s consent or agreement that they should be first paid. If he took his assignments with knowledge of his claim, and expressly agreed or consented to take the assignments subject to his.claim, or any portion, he cannot now repudiate that arrangement.
    “ He admits he knew of the order, and he admits that he took the assignments, subject to a part of it, and was willing they should receive that part. But there is a dispute as to how much, and that is the only question for the jury. The defendant "contends that $1224.07 of the amount of the order was on account of stone and work on Ridge street, furnished by them. This is denied by Patrick, and he also contends that he consented only to the allowance of a much smaller amount. The jury will take into consideration all the evidence, and determine,
    “ 1st. Whether Patrick agreed to allow the whole amount of the order, or
    “ 2d. Whether he agreed to allow all that was justly coming to them on account of work and materials on thé street, or
    “ 3d. Whether he agreed to allow a specific sum, or not more than a specific amount; and the sum thus ascertained by the jury should be allowed as a credit on the'defendant’s assignments.
    “ The verdict will be for the amount of the city lien with interest, subject to a credit for the amount to be allowed, the same to be charged against the contractor in his contract with the city.”
    The jury rendered the following verdict: “We find for the plaintiff the amount of the liep with interest and attorney’s commissions, to wit, $1235.32, subject to a reduction of $718.08, which is to be credited as part payment thereof, and for the sum thus to be deducted, the city is entitled to a credit on the contract of S. R. Johnson, for the grading, &c., of Ridge avenue.”
    Judgment was entered on this verdict, when the city took this writ, alleging that the court erred in admitting the above evidence, in the answer to plaintiff’s fifth point, and in the charge as above noted.

      W. W. Thomson, T. C. Lazear and Thomas S. Bigelow, City Solicitor, for plaintiff in error.
    The sixth section of the Act of 1864 authorizes the city to grade, pave streets and to levy and collect the cost and expenses thereof by assessments on the property abutting the portions thus improved. The act gives the contractor no claim on nor control over the assessments, and provides no special fund out of which he shall be paid. His claim against the city, for the price of work done under his contract, is the same as any other debt of the city, and may be paid by the city out of any funds it sees proper, whether raised from the assessments or by general taxation. The assessments are provided by the act, as a means whereby the city can reimburse itself for the cost and expense incurred by it in improving the street. Whether the city does or does not collect the cost and expenses from the adjoining property makes no difference between it and the contractor, under the- Act. tie is equally entitled to recover the price for his work from the city. It has been held in many cases similar to this, that the contractor is not a substantial or equitable party to' an action of the city for the collection of street assessments: Schenley v. Allegheny City, 12 Casey 41, 51, 61; Dyer v. Barstow, 50 Cal. 652 ; Himmelmann v. Spanagle, 39 Id. 392; Emery v. San Erancisco Gas Co., 28 Id. 345; Emery v. Bradford, 29 Id. 75; Nolan v. Reese, 32 Id. 484; Himmelmann v. Steiner, 38 Id. 175; Philadelphia v. Brooke, 31 P. F. Smith 25, 26; Fell v. Philadelphia, 31 Id. 73. If the contractor is not a substantial ‘ or equitable party to these proceedings, no one claiming through him can be.
    Such an assessment is a tax, and not the subject of a set-off or counter-claim by the property owner: Commonwealth v. Woods, 8 Wright 115; Washington Avenue, 19 P. F. Smith 352; Himmelmann v. Spanagle, supra; Hutchinson v. Pittsburgh, 22 P. F. Smith 325; Himmelmann v. Hoadley, 44 Cal. 227; Himmelmann v. Reay, 38 Id. 165; Nolan v. Reese, 27 Id. 484; Bidwell v. Pittsburgh, 4 Norris 412; Pennock v. Hoover, 5 Rawle 316-7; Stroud v. Philadelphia, 11 P. F. Smith 257.

      H. C. Campbell and John S. Ferguson, for defendant in error.
    The city is a mere stakeholder. The contractor is claiming no part of the fund, and Patrick, who is claiming it, took his assignment with full knowledge of the fact of the existence of the order. Because it was not in form an assignment under the rulings of the court below, he escaped from accounting to us for $695, to which we were justly entitled. But the jury has found that he agreed to allow us the residue, $1225. Against that sum, it is fair to presume, he has protected himself in taking his assignment, and he is now seeking, through the intervention of the city, to realize it a second time.
    October 27th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The parties to this action are the City of Pittsburgh and James Harrison. Upon a municipal claim, a scire facias was issued, to which the defendant pleaded payment with leave ; and there was the issue. No agreement, no motion, no rule or order, no docket entry shows any other party in court, or that there was another issue to try. All through the trial, the plaintiff continually objecting, evidence was received and questions of fact submitted to the jury, only pertinent to an issue between the defendant and a stranger to the record, resulting in a material reduction of the plaintiff’s claim against which there was no valid defen'ce. How can such a course of action be sustained ?

It was said in the charge of the court, “ In these cases also, we have all the parties in interest in court, and they have been fully heard by their evidence and counsel. The city takes no active part in the controversy, because the only question at issue is, who is entitled to the fund ? Mr. Patrick claims it all under his assignment from Sanner and Johnson. The defendants claim a part of it to be applied in part payment of their assessments.” We do not question the verity of these statements — the plaintiff excepted and assigns them for error — the misfortune is, they are not of record, and there is nothing by which to amend. The record shows an active resistance by the plaintiff, the city, and the assent of nobody, except the defendant. The Act of 1864, which authorizes the councils to improve the streets and assess the costs of improvements upon lot owners, gives no specific property in the assessments to contractors. They are paid by the city; assessments are paid into the city treasury, as are other taxes. In no sense does the statute make the city a stakeholder of uncollected, assessments and taxes, nor is it apparent that one who does work for the city has a right to assign the whole or any part of an unpaid assessment. Whether the city is legally bound to pay assignments of parts of money due a contractor, is a question not now before us. Appeals of Philadelphia, 5 Norris 179. But if the city was a mere stakeholder of the money sued for, and the claimants were in court and heard, the records should support the procedure. When equitable claims are adjudicated they should appear in some form, in the pleadings.

Confessedly the matter proved by the defendant was not a set-off against the plaintiff’s claim. Were it contended otherwise the point has been decided. Hutchinson v. Pittsburgh, 22 P. F. Smith 320. Tested by what appears of record and the statute, the offer, to which the plaintiff objected, was impertinent and irrelevant; and we are compelled to sustain the first assignment of error. Of course no remark need be made in reference to the other assignments; they necessarily follow the first.

It is impossible to modify this judgment so it may stand. The verdict was for the amount of the claim, subject to a reduction of $718.08. That reduction cannot be rejected as surplusage, though all which follows could.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Mercur.

text:
    Erb versus Commonwealth, ex rel. Morley.
    1. The term of an alderman would have expired in November 1878, but by the 26th section of the schedule of the constitution, he was continued ic office until his successor was duly qualified. Article 8, sect. 3 of the constitution, provides that all elections for ward officers shall be held on the third Tuesday of February. The Act of March 22d 1877, passed in pursuance of this constitutional provision, declares that aldermen whose terms of office under existing laws expire prior to the first Monday of May, shall continue in office from the date at which said term would otherwise expire until the first Monday of May next ensuing thereto. Held, that the term of’ the above aldermen was extended to the first Monday of May 1879, and that an election for a successor held in February 1878, was illegal and void.
    2. No power was given to the legislature to abridge the term for which the alderman had been elected, yet by its failure to provide’ that his successor should be elected and qualified at the expiration of that term, it was thereby extended by virtue of the constitution.
    October 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, J-J. Green, J., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 219. Certified from the Middle District.
    Quo warranto by the Commonwealth, at the relation of II. P. Morley, to show by what authority A. P. Erb held and exercised the office of alderman of the Sixth ward of the city of Harrisburg.
    In his petition the relator averred that William O. McFadden was commissioned to serve as alderman in said ward for five years, from Nov. 7th 1873; that by the 26th sect, of the schedule of the constitution, and pursuant to the provisions of the Act of March 22d 1877, JPamph. L. 12, relative to the election of aldermen, &c., and “fixing the times for the expiration of their offices,” and which provides that on the third Tuesday of February of each year an electien shall be held for aldermen, in such cases only where the term of the commission of any alderman may expire on or before the first Monday of May following such election, no valid or legal election for alderman of said Sixth ward could be held until the third Tuesday of February 1879; that the person then elected would become qualified as the successor of said McFadden, pursuant to the provisions of the said act, on the first Monday of May succeeding such election, to wit: on Monday, the 5th of May 1879, to which time said McFadden is the only legal alderman of said ward, pursuant to his said commission, the Act of Assembly of March 22d 1877, and the said twenty-sixth section of the schedule of the constitution.
    That at the regular election for alderman for said ward, held on the 18th of Feb,, being the third Tuesday of Feb. 1879, relator was elected alderman for said ward, to succeed said McFadden, and having obtained the certificate of his said election, and filed his acceptance thereof as provided by law, he has received from the governor his commission as alderman of said ward, for the term of five years, to be computed from the said first Monday of May 1879, and has been duly qualified and given his official bond.
    Yet, notwithstanding the premises, the said Erb has for the time aforesaid exercised and still does exercise the franchises, privileges and office of alderman of the Sixth ward, claiming the right so to do, by reason of a pretended election to said office held on the third Tuesday of February 1878, at which time there was no vacancy in said office, and said pretended election of said Erb was “ absolutely void ” and conferred no authority, and said Erb usurps and unlawfully holds said office, &c.
    The respondent answered that the term of McFadden expired absolutely on the 7th of November 1878; that in pursuance of sect. 3, ■ art. 8, of the constitution, an election for a successor to said McFadden was held on the third Tuesday of February 1878, and that respondent was duly elected; that in accordance therewith he was commissioned by the governor for five years from November 7th 1878, and that he has been duly qualified and is in lawful possession of said office.
    The court granted a rule to show cause, which they afterwards made absolute, and awarded the quo warranto, Henderson, J., in an opinion adopting the ruling of Pearson, P. J., in Price v. Battes (MSS., Dauphin county.)
    The respondent demurred to the petition, and after joinder the court entered judgment of ouster against the respondent, and decreed that the relator was entitled to the office. The respondent took this writ, and alleged that the court erred in this action.

      Theodore K. Long and Wallace Dewitt, for plaintiff in error. —
    February 1878 was the proper time to elect a successor to McFadden, and not February 1879. Erb having been elected at that time, his election was regular, and entitled him to enjoy the rights and privileges of said office: New Constitution, sect. 13, art. 3, sect. 3, art. 8, and sect. 26 of schedule; Act 22d March 1877, Pamph. L. 12, sect. 1; Brooke v. Commonwealth, 5 Norris 163.
    The constitution never intended to interfere with the tenure of aldermen in office at the time of its adoption, either by'extension or diminution of the same. It proposed to bring about the change from the old to the new order of things by subsequent legislation, which was provided in the Act of 1877.

      J. M. Wiestling, for defendant in error.
    Two objects are apparent in the Act of 1877. The one was to designate the time for the terms of aldermen to begin, and as to that, it is distinctly provided that the terms of office of all aldermen shall “be computed from the first Monday of May succeeding the election.” The other object was to indicate and provide for the particular year for holding the election, having reference, in so doing, to the time of the expiration of the term of the commission of the alderman incumbent, and the time from which the commission of the one to be elected is to be computed; and the intention of the legislature as to this object is as clearly and plainly indicated as to the other.
    It is manifest that the act contemplates the election of an aider-man only in cases where the term of the alderman already in commission expires on or before the first Monday of May following the election of his successor, and when the latter can be commissioned from that date, without, of course, violating the provisions of the Acts of Assembly limiting a ward to one alderman. Under no other circumstances can an alderman be legally or validly elected.
    October 20th 1879.
   Mr. Justice Mercur.

delivered the opinion of the court,

This contention is between persons each claiming to be the successor of McFadden as alderman of the Sixth ward of the city of Harrisburg. He was duly elected in October 1878, and had been commissioned for five years from the 7th of November following. He was therefore holding the office when the constitution of 1874 w-ent into operation. The twenty-sixth section of the schedule declares all persons in office in this Commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the term for which they have been elected or appointed shall expire, and until their successors shall be duly qualified, unless.otherwise provided in this constitution.” There was no provision therein shortening the term of aldermen then in office. The term for which McFadden had been elected did not expire until November 1878. His right to. hold the office continued not only until that time; but also until his successor was duly qualified.

Art. 3, sect. 13 of the constitution declares that no law shall extend the term of any public officer after his election or appointment ; but this does not make inoperative the sixth section of the schedule. No power was given to the legislature to abridge the term for which McFadden had been elected, yet by its failure to provide that his successor should be elected and qualified at the expiration of that term, it was thereby extended by virtue of the constitution.

Art. 8, sect. 3 of the constitution declares that all elections for city, ward, borough and township officers for regular terms of service, shall be held on the third Tuesday of February. Recognising this constitutional provision the Act of 22d March 1877, Pamph. L. 12, was passed. Two main purposes are therein expressed; one to designate the time when the term of office of those thus elected should commence; the other that it should not be very lorig after the election. Hence the 1st section declares that aldermen or justices of the peace thus elected, whose term of office under existing laws expire prior to the first Monday of May, shall continue in office from the date at which said term would otherwise expire, until the first Monday of May next ensuing thereto. The second section makes it the duty of the constable of the proper ward, district, borough or township to give at least twenty days •notice preceding the election to be held in February of each year of the expiration of the term of the commission of any alderman or justice of the peace that may expire on or before the first Monday of May following. Section four declares the governor shall issue commissions to each person so elected alderman or justice of the peace, for the term of five years, to be computed from the first Monday in May succeeding the election.

Thus it appears the constable is authorized to give notice of an election under this act, to be held in February, in those cases only where the commission of the alderman or justice of the peace expires on or before the first Monday of May following. As McFadden’s term did not expire as soon as May 1878, it follows that the notice could not be given for the election of his successsor in February previous. Still further, when an alderman or justice of the peace is duly elected the act requires the governor to commission him for five years from the first Monday of May succeeding his election. As MoFadden’s term confessedly continued long after May 1878, it is manifest that the governor could not issue a commission to a successor for a term to be computed from that time.

It therefore follows that the clear intent of the act was to declare that McFadden should hold the office until the first Monday of May 1879, and the election of his successor should be held in February previous.

This conclusion is not in conflict with the rulings in Brooke v. ( Commonwealth ex rel. Jenkins, 5 Norris 168, but so far as they are applicable, in entire harmony therewith.

Neither the election held in February 1878, under which Erb claims, nor the commission to him professing to take effect from the 7th of November following, was authorized by law. The learned judge was therefore entirely correct in entering judgment in favor of the relator on the demurrer.

Judgment affirmed.