author: Read, J.

text:
    McClurkan versus Thompson et al.

    1. C. being much in debt, gave to B. a mortgage, to be sold and his creditors paid at 50 per cent. The mortgage could not be sold, and with the consent of the creditors it was assigned to S. their attorney for their use. The land bound was sold under the mortgage, bought by S. for the same use and rented by him. He then sold to T., one of the creditors, the consideration being the payment of a preferred claim against 0., T.’s own d'ebt in full, and the balance in three notes of T., payable in one, two and three years, with an agreement by deed with T. that he would reconvey to S. in one year upon payment of the above consideration. T. received the rent, made no improvements nor exercised any other act of ownership, nor paid his notes.
    Ten years afterwards S. sold the land to M. to hold in trust for the creditors of C. In ejectment by M. against T., the court below held the transaction between S. and T. a conditional sale, and nonsuited M. Held, to be error; the facts raising the question for the jury whether the transaction was a mortgage.
    2. The deed to T. and his agreement under the facts, were but one instrument, and under the general rule would constitute a mortgage.
    3. If considered as a conditional sale, the facts of the deferred payments, and the continued receipt of the rent showing that the reconveyance was not limited to one year would produce the same result.
    October 3d and 4th 1871.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 4-6, of October and November Term 1870.

      This was an action of ejectment for a lot of ground fronting on the “Diamond,” in the city of Pittsburg, brought March 13th 1868, by Samuel McClurkan against Moses B. Thompson and others.
    The premises were originally the property of one McGonigle and by him sold to Cyrus Black, part of the purchase-money remaining unpaid and secured on the premises. There were after-wards judgments recovered against Cyrus Black, one May 20th 1851, by James Wells, for $1818.24; and another January 14th 1852, by Marcus Black his brother, for $16,000. George S. Selden, Esq., an attorney at law, was employed to collect a number of claims against Cyrus Black, one of these claims belonging to Thompson the defendant. Other creditors were pressing Black, and to these he confessed judgments before Mr. Selden had obtained judgment for his clients. Selden then threatened to attack Marcus Black’s judgment for fraud. This brought about negotiations by which Cyrus Black proposed to pay fifty cents in the dollar on the claims of Mr. Selden’s clients. The proposition was accepted, and in order to effectuate the arrangement, Cyrus Black executed a mortgage on the premises to Marcus Black, for $11,800.
    This mortgage was assigned to Selden for the creditors, but failing to sell it, he borrowed money from Kramer & Rahm to pay the McGonigle and Wells liens, and took an assignment of these liens to himself. He then had the land sold under the mortgage and bought it himself for the creditors, for $7000. Being unable to sell.tne land without sacrifice, and after some negotiation with Thompson, he agreed that the property should be struck down at auction to Thompson for $4000 — Thompson to pay the amount due Kramer & Rahm, to have his own debt paid in full and to give three notes, payable in one, two and three years, amounting in all to $559.88, with the understanding that Selden should have the privilege of having a reconveyance of the property for the creditors in one year, upon paying $4897, the aggregate amount with interest which was the consideration for the conveyance to Thompson. In pursuance of this arrangement Selden on the 20th May 1857, conveyed to 'Thompson, $4000 being the consideration stated in the deed, and on the 28th Thompson and Selden entered into an agreement:
    “ That the said Thompson hath and by these presents doth grant, bargain and sell to said George S. Selden, his heirs and assigns, that certain lot of ground at the corner of the Diamond, &c., * * * being property late of C. Black, for $4897 in one year from this date without interest, and two hundred more provided he shall realize that sum on and above the above $4897 on a re-sale to be made within one year, said Thompson to execute and deliver deed in fee simple therefor upon the payment of said sums or giving satisfactory security therefor, of which said Thompson is'to be the judge, and said Thompson agrees to receive his own paper in payment, whether due or not.”
    On the 20th of December 1867, Selden conveyed the premises to the plaintiff, the consideration stated in the deed being $500. Both the deeds to the defendant and the plaintiff were ordinary deeds of bargain and sale with special warranty. Nothing appeared in them showing that there was any trust or that they were defeasible. The plaintiff claimed under the deed to him as standing in the place of Selden as trustee for Cyrus Black’s creditors, alleging that the deed to the defendant with the agreement was a mortgage, and, having tendered the amount mentioned in the agreement to the defendant, he claimed that he was entitled to recover in ejectment.
    The other facts in the case are so fully stated in the opinion of Mr. Justice Read, that no further reference to them is necessary.
    After the plaintiff’s evidence had been received, the court (Kirkpatrick, J.) ordered a nonsuit.
    The plaintiff removed the record to the Supreme Court and assigned this order for error.
    N. P. Fetterman and S. A. Purviance, for plaintiff in error.—
    If a deed and defeasance bear even date, or are agreed upon at the same time, they constitute a mortgage: Reitenbaugh v. Ludwick, 7 Casey 131; Wilson v. Shoenberger, Id. 295; Kerr v. Gilmore, 6 Watts 405; Brown v. Nickle, 6 Barr 390; Houser v. Lamont, 5 P. F. Smith 311. It is only when the deed and defeasance are executed and delivered at different times, that it becomes the subject of inquiry, whether it is a resale. An express and positive stipulation against its being a mortgage will not make it so : Colwell v. Woods, 3 Watts 188 ; Kerr v. Gilmore, 6 Id. 405. An equity of redemption cannot be destroyed, being against the policy of the law: Rankin v. Mortimere, 7 Watts 372; Hiester v. Maderia, 3 W. & S. 384; Colwell v. Woods, 3 Watts 188; Harper’s Appeal, 14 P. F. Smith 315. The court should have left it to the jury to determine its character: Hiester v. Maderia, 3 W. & S. 384; Kunkle v. Wolfersberger, 6 Watts 130; Wharf v. Howell, 5 Binn. 499.

      S. H. Greyer and G. Shiras, Jr., for defendant in error.
    It is competent for parties to agree upon a conditional sale. The relation of the parties must be that of borrower and lender to constitute a mortgage. There should be a surviving debt or obligation, as between the parties, which the alleged mortgagee could have enforced. The rule preventing the conversion of a security into a sale is for the protection of the needy debtor against the rapacity of a merciless creditor. This never can be the case where the transaction partakes not of the character of a loan, and the sale is for a fair price: Spering’s Appeal, 10 P. F. Smith 210; Williams v. Owen, 4 Mylne & Craig 303; Turner v. Kerr, 44 Missouri 429; Conway v. Alexander, 7 Cranch 218; Flagg v. Mann, 14 Pick. 467; Holmes v. Fish, 9 Missouri 205; Mann v. Moody, 26 Mississippi 184; Glover v. Payne, 19 Wendell 518; Todd v. Campbell, 8 Casey 250.
   The opinion of the court was delivered, May 13th 1872, by

Read, J.

Cyrus Black was largely indebted to several persons, amongst others to parties who were represented by George S.' Selden, and proposed to pay fifty cents in the dollar in full of the claims Selden was employed to collect, and of other creditors who would accept of it, which was agreed to, and Black, on the 1st July 1853, executed and delivered to Marcus Black, his brother, a mortgage for $11,800 with prospective interest, on the property in dispute in this case. The mortgage to be sold and the proceeds applied to the_ payment in full of the Wells judgment, and a balance of the purchase-money on the property due McGonigle’s heirs; fifty per cent, in full of the claims of the creditors that agreed to accept, and the balance to Selden for his services. Kramer & Rahm, with whom negotiations had been entered into to buy the mortgage, declined purchasing it, and Cyrus Black then proposed, if the creditor’s would take the mortgage as payment, in the same proportion, in full of their claims, he would have it assigned to them. The proposition was accepted, and Marcus Black, mortgagee, at the instance of Cyrus Black, on the 8th August 1853 assigned the mortgage to George S. Selden in trust for said creditors. Selden failed to sell it, and brought suit in trust for creditors, obtained judgment, and on the 24th July 1854 had the property sold on a levari facias, and purchased it for $7000 at the sheriffs sale for the benefit of creditors, and a sheriff’s deed was executed and delivered to him. Selden had, before the sale, borrowed money from Kramer & Rahm, with which he had paid the Wells judgment and McGonigle’s claim, and had them assigned to himself.

The legal title is thus traced into Mr. Selden, who was simply a trustee for creditors, according to the terms of the assignment to him by Marcus Black. Kramer & Rahm’s interest in it consisted of the moneys lent Selden to pay off the two preferences. In March 1855 Selden leased the property to James Mills for one year, and afterwards tried to sell it, and Mills’s offer of $10,500, $500 cash and $1000 per year, he declined, because he required a cash payment sufficient to pay Kramer & Rahm the money they had advanced and interest. In 1857, Kramer & Rahm notified him they must have their money, and in the spring of that year Selden, with the consent of creditors, offered the property for sale at public auction, and M. B. Thompson, the defendant in error, was present, but the bidding was not satisfactory, and it was again advertised for sale by order of trustee (Selden), on Tuesday evening, May 19th, at public auction, in pursuance of adjournment. M. B. Thompson bid $4000, and wanted Selden to let him have it at that price, but Selden refused, and informed him that he could not let the property be sacrificed at that, and that he could not, in justice to the creditors, let it be knocked down for less than $7000, unless some arrangement could be made by which he, Selden, could have the privilege of paying him his money with interest within a year, and receive a conveyance of the property. With that understanding the property was knocked down to Thompson for $4000.

Selden prepared the deed from himself and wife to Thompson, which was dated May 20th 1857, and acknowledged the 23d May, and also the agreement between him and Thompson, dated the 28th May 1857, and the deed to Thompson, and the agreement by Thompson to reconvey, were mutually delivered on the same day. The sum of $4897, mentioned in the agreement to be paid in one year, with interest, was made up of cash advanced to pay Kramer & Rahm with 10 per cent, interest'for one year, and of Thompson’s claim in full, and the three notes amounting to $559.88, which were never paid by Thompson.

“ Shortly after this,” says Selden, “ Mills, who had been all along the tenant, called on me with reference to whom he should pay his rent. I communicated to him in general terms my arrangements, and told him to pay the rent to Mr. Thompson, and Thompson and I would settle that. Then’ one day I met Thompson, and we talked about that rent. I said he could collect that rent, and we could settle that without any difficulty.” “ The rents to he collected by Mr. Thompson were to be settled between him and myself, as a credit on this agreement.”

Mr. Mills paid the rents regularly to Mr. Thompson from 1st June 1857 to 1869, amounting to $9981.25. Mr. Selden left Pittsburg in 1861, and on the 20th December 1867 he and his wife executed and delivered a deed for this property to Samuel McClurkan, acknowledged the same day in Philadelphia, and on the 23d of the same month the agreement of the 28th December 1857 was proved and recorded in Allegheny county. “ At the time , of the conveyance to McClurkan,” says Selden, “ and before I informed him of the character in which I held the property; that I held it in trust for creditors, of whom I furnished him a list, same as already given in evidence, and he agreed to carry out the trust, which I informed him I held in the property. I was not living here, and could not attend to it myself, and was therefore desirous of transferring the trust to other hands.” Being cross-examined, he said: “ It was my understanding and agreement with McClurkan to substitute him in my stead, in that property in the Diamond, of which the paper of May 28th is the evidence;” and being recalled, he said: “The paper of May 28th 1857, I regarded as the evidence of my title as trustee of that property.” McClurkan was the owner of Pennock Mitchell & Co.’s claim.

In February 1868, McClurkan tendered $4550 and Thompson’s three notes to Thompson, and demanded a deed for the property to himself. Thompson refused to receive the money and notes, and to execute any conveyance. “ He told me,” says McClurkan, “he would not give up the property, and would law until I was tired.”

From these facts, it is clear that the deed to Thompson of the 20th May, and the defeasance of the 28th May, were parts of one transaction, and the same rule is to be applied to them as if both had been dated and executed at the same time as well as delivered on the same day. The deed and defeasance make in fact but one instrument, and the general rule undoubtedly is that it is a mortgage. “Whenever there is' in fact an advance of money to be returned within a specified time, upon the security of an absolute conveyance, the law converts it into a mortgage, whatever may be the form adopted, or whatever may be the understanding of the parties. This is grounded on a policy of long standing in courts of equity, and in this state, of law acting upon principles of equity:” per Sharswood, J., 14 P. F. Smith 320.

Selden was a trustee for creditors, and Thompson knew it and all the facts and circumstances relating to his title, being one of the creditors who had accepted the 50 per cent, of his claim. The real consideration of the deed was the advance of money to pay Kramer & Rahm, being the cash payment with 10 per cent, interest for one year, the payment of Thompson’s claim in full, and three notes payable in' one, two and three years. Thompson was to receive the rents to be credited by Thompson on the $4987 on the agreement. The property, by the witnesses, was said to be worth $7000 in 1857.

Mr. Thompson received the rents, but never improved the property, never offered it for sale, or exercised any other act of ownership over it, and in 1867 was paid in full by the application of the rents according to law..

It presents certainly a very strong case for considering this a mortgage, and if it was, then the plaintiff was entitled to recover, having tendered the full amount of the mortgage-money with the three notes, and supposing the rents only to have paid the interest as it fell due. If the rents paid the full amount of principal and interest, it is not intended to say the tender of the principal was necessary.

We -'are inclined to consider it a mortgage, and it is certain this question should have been submitted to the jury.

If considered as a conditional sale, as my brother Agnew suggests, this sa-me state of facts would produce the same result as the deferred payments of one, two and three years, and the continued receipts of the rents show the reconveyance was not limited to one year.

Judgment reversed, and venire de novo awarded.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    Patton’s Executor versus Hassinger.
    1. A son over age, and working for himself, made the plaintiff’s house his home; he was taken sick, and whilst living with plaintiff, the father declared that whoever would take care of his son should be well paid; this was communicated to plaintiff, who continued to take care of the son : the plaintiff demanded payment from the father who promised to pay : this was sufficient for the jury to infer the acceptance of the offer by the plaintiff.
    2. Compliance with a proposition, especially where no notice of acceptance is required, is the most significant evidence of its acceptance.
    3. The promise was not one to pay the son’s debt, bSt an independent undertaking of the father, and therefore was not required to be in writing.
    4. The original promise and the death of the son, were more than six years before suit. Within six years of the suit and before six years after the services had expired, the father said that the plaintiff had asked him to pay for the services, specifying them, and that he had told plaintiff as soon as he got so much money he would pay him. This was evidence to take the case out of the Statute of Limitations.
    5. The recognition of a debt or of the instrument or circumstances of indebtedness accompanied by a promise to pay or such an acknowledgment as is consistent with such promise, when the statute has not run will prevent the bar of the statute in an appropriate case.
    6. Taw v. Kerr, 11 Wright 333, Suter v. Sheeler, 10 Harris 308, recognised.
    October 5th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 57, to October and November Term 1870.
    This was an action of assumpsit, brought March 30th 1869, by George Hassinger against Robert Hardy, executor of Benjamin Patton, deceased.
    The declaration was that the decedent in his lifetime, on the 1st of June 1859, in- consideration that the plaintiff at his request would supply John Patton, the decedent’s son, with boarding, attendance, &c., promised to pay the plaintiff therefor whatever they should be worth, and also on the 1st of June 1861 promised to repay the plaintiff the funeral expenses of his said son. The pleas were, “ Non assumpsit,” “ Non assumpsit infra sex annos,” &e.
    The case was tried February 2d 1870, before Collier, J.
    David Ingram testified : That John, the son of decedent, died at the house of the plaintiff in June 1861, he had been in ill health more than a year, was not able to work, died of consumption, had been cut in the knee in June 1860, the decedent told witness that whoever would take care of John should be well paid for it, if he did not pay in his lifetime, they should have John’s share, which would be twenty-five acres of land. John was then at the plaintiff’s ; witness told this to the plaintiff: “ The old man was then apprehensive that John would never get well, and having no money past him said he would pay Hassinger or any one else who would take care of him. John was fifty years old when he died.” The decedent died in the winter of 1867-1868.
    Plaintiff gave evidence that he had paid John’s funeral expenses.
    Benjamin Hassinger testified that the decedent told the plaintiff to take care of John and give him whatever he needed, and he should be well paid for it. The plaintiff said he would take care of him, &e.
    John Patton testified that in May or June 1863, the plaintiff asked witness to tell decedent to come to plaintiff’s; witness told decedent plaintiff wanted to see him, but did not tell him for what; decedent went to plaintiff’s house; when he came back he told witness that the plaintiff wanted him “ to pay John’s funeral expenses, and the trouble he had had with him while he was there sick; ” he said he had told plaintiff that as soon as he got as much money he would go back and pay him; ” he said he could not tell how much it would be, as he had not asked plaintiff; “ he allowed it would be a good bit, for when there was death and sickness, there was always a good deal of trouble and expense.”
    There was other evidence of defendant’s promise to pay for keeping John; also that the decedent in 1864 and afterwards previously to his death, received $1100 and upwards from the sale of land. John had of his own but $3.50, a watch and a gun.
    The defendant’s points, which were all refused, were:—
    1. If the jury believe that John Patton was over fifty years of age, and had been for many years prior to his death working and managing for himself, and had for a long period of years made the plaintiff’s house his home, and had been there until June 1860, without any contract or agreement between the plaintiff and Benjamin Patton; that the declarations of Benjamin Patton to David Ingram, “that whoever took care of John should be well paid for it, if he did not pay him while he lived, they should have John’s share, which would be twenty-five acres of land,” even if told to Hassinger does not entitle the plaintiff to recover, there being no evidence that the plaintiff agreed to said offer.
    2. If the jury believe that John Patton worked for himself, and made his home at plaintiff’s, as stated in the foregoing point, and so continued to make his home at the plaintiff’s until a few weeks before his death, without any express contract between plaintiff and Benjamin Patton, that Benjamin Patton would pay him for John Patton’s boarding, &c., then the statement of Benjamin Patton to plaintiff “ to take good care of John, and whatever he wanted or needed to give it to him, and he should be well paid for it,” does not give the plaintiff a right to recover for anything prior to that date.
    3. Plaintiff’s claim in this case being for the debt of John Patton, he cannot recover, Benjamin Patton never having, in writing, promised or agreed to pay the same, and this rule under evidence applies not only to the claim prior to the conversation a few weeks prior to John’s death, but also to the small part of it which accrued subsequently to that date, as there is no evidence to show that for that short period, the plaintiff'relieved John and looked to the father for payment; it was still John’s debt, and not the debt of the father, and a promise to pay the same should have been in writing.
    4. If Benjamin Patton was liable, the claim is barred by the Statute of Limitations, there being no evidence in the case sufficient to take the case out of the statute.
    5. Under all the evidence in the case, the plaintiff is not entitled to recover.
    The verdict was for the plaintiffs for $495.52.
    The defendant took a writ of error, and assigned the refusal of his points for error.

      R. & S. Woods, for plaintiff in error.

      Hopkins & Lazear, for defendant in error.
   The opinion of the court was delivered, October 23d 1871, by

Thompson, C. J.

The plaintiff below declared upon a contract with the decedent for furnishing his son John Patton, an invalid, with meat, drink, washing, lodging, attendance and other necessaries, and on a promise to pay him for the funeral expenses by him incurred in burying his said son. There were several pleas put in to the narr. by the executor, such as non assumpsit — non assumpsit infra sex annos, payment with leave, &c. So far as these pleas were a traverse of the cause of action of the plaintiff, the jury have found them all against the defendant below. The only question for us, therefore, is, whether this was the result of improper instructions to the jury, as is the allegation of the plaintiff in error here.

The defendant below, in his first point, asked the court to charge, that as John Patton was a man of fifty years of age and hale, before the occasion had arisen which gave rise to the alleged promise by the testator, in his declaration to David Ingram, “that whoever took care of John should be well paid for it, if he (the testator) did not pay him while he lived, they should have John’s share, which would be twenty-five acres of land,” “even if told to Hassinger does not entitle the plaintiffs to recover, there being no evidence that the plaintiff agreed to said offer.” This instruction the court refused.

There was testimony to show that this promise was communicated to the plaintiff, and that in fact he did take-care of the said John. This, together with the plaintiff’s demand for pay, and the testator’s declarations afterwards to the effect that he would pay when he got the money, were abundantly sufficient to authorize the inference by the jury, that the proposition was accepted. That it was performed there is- no dispute. There is nothing more significant of the acceptance of a proposition than compliance with it, especially where notice of acceptance is not required. The idea that because John had made the plaintiff’s house his home for years, when he was at all times able to pay his board and lodging, was not a sufficient circumstance to negative performance by plaintiff, on the foot of a contract, at a time when he was unable to work, and had no means otherwise to maintain himself. The court under the circumstances of the case, we think, was entirely right in refusing the point.

2. The next point was also rightly refused. It assumed the great question of the case on part of the defendant, namely, that there was no contract to pay on part of the defendant’s testator. The court in the last above-mentioned point refused it because, as the judge thought, there was evidence on this very point. Our remarks upon that point is sufficient for this. We also think there was no error here.

3. It would have been a great mistake to have charged as requested in the defendant’s third point, that because the promises therein mentioned were not in writing, they were hot binding on the defendant’s testator. The promises were not to pay John’s debt. It was an independent undertaking and contract of the father for himself, on a sufficient consideration, viz., to take care of, board and lodge his sick son, who was unable to take care of and pay for himself. The consideration was both legal and moral. The Statute of Frauds had nothing whatever to do with it.

4. The next point called for a charge that the debt was barred by the Statute of Limitations, and that there was no evidence in the case to take it out of the statute. This was rightly refused, we think. , This point was predicated of the idea that there had been no original promise, and of this we have already expressed the opinion, that if the testimony was believed, there was.

The testimony to take it out of the statute, or rather to prevent the running of the statute, were the declarations of the testator. It was proved, and not contradicted, that he said after having been to see the plaintiff at the latter’s request, on being inquired of, what the plaintiff “ wanted him for, he said he wanted him to pay John’s funeral expenses and the trouble he had had with him while sick; I asked him,” says the witness, “if he had done it, and he said he had not; he said he told George (the plaintiff) that as soon as he got so much money he would go back and pay for it.” “I asked him,” says the witness, “how much it would be ? He said he could not tell, as he had not asked him; he said he would get the money in a few days, and then he would go back and pay it; he allowed it would be a good bit, for where there was death and sickness, there was always a good deal of trouble and expense.”

This was what the testator declared he had told the plaintiff, and there was nothing in the testimony to impeach the witness, a son of the testator, or impugn his veracity. By the same witness we are informed that his father had said in substance the same thing a year before. Thus was there proof that the parties were face to face when the acknowledgment and new promise were made. This, says the witness, was in May or June 1863; and this suit was brought, the record shows, March 30th 1869, less than six years thereafter, if the witness was accurate as to the time of the acknowledgment.

What debt was referred to, is described in the promise proved. It referred expressly to the debt due for keeping the testator’s son John in his sickness, under the proposition and offer of 1860, superadded to which was an assumption of the debt incurred and paid by the plaintiff in his funeral. As already said, there was a sufficient consideration for this.

The rule deducible from Suter v. Sheeler, 10 Harris 308, and other cases, seems to be, that if the evidence prove a recognition of a debt, or of the instrument or circumstances of indebtedness, accompanied by a promise to pay, or such an acknowledgment as is consistent with a promise to pay when the statute has not run, either will prevent the bar of the statute in an appropriate case. There is in such a case identification and promise both. In Yaw v. Kerr, 11 Wright 333, identification by reference to a note in a third party’s hands, was held sufficient to sustain and make applicable the promise, which took the ease out of the statute. Here the only question is the identification of the claim acknowledged and promised to be paid. The testimony was sufficient for that, and that being so, the amount was ascertainable by the jury. We do not intend to relax the rules of law on this subject in the least, and if there is any appearance of that in this opinion, it arises out of the peculiarity of the facts of the case, and not in any change of the law. As to the Statute of Limitations, the facts were left to the jury under proper instructions.

It was proved and found by the jury, that the testator in his lifetime was able to pay the indebtedness which he had assumed, on the condition of being possessed of a sufficiency of money for that purpose. The instructions on this point were unexceptionable.

I ought further to say that the decedent left no share of land to John, and that John had neither land nor money except a trifle.

There is nothing in the remaining two points which requires notice, and the judgment must be Affirmed.


author: Sharswood, J.

text:
    Duff versus Wilson.
    1. Smethers owning land subject to a mortgage, sold an undivided half clear of encumbrances, to Duff who leased his moiety to Smethers ; Wilson became surety for Smethers’s performance of the covenants in the lease. In a suit against Wilson as surety on Smethers’s breach of his covenants, the court below rejected evidence that the land had been sold under the mortgage, and Smethers evicted by the sheriff’s vendee. Held, to be error.
    2. On the sale by the sheriff, the relation of landlord and tenant between Smethers and Duff ceased, and the sheriff’s vendee might have affirmed the lease and required the rent to be paid to him.
    3. There being an implied covenant for quiet enjoyment in every lease, whenever the enjoyment ceases by lawful title the rent ceases.
    4. Wilson was surety only that Smethers should pay the rent; compelling Wilson to pay after the eviction, would indirectly be paying for Smethers’s breach of covenant to pay the mortgage, for which he was not surety.
    October 5th 1871.
    Before Thompson, C. J., Read, Ag-new, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 58, to October and November Term 1870.
    This was an action of assumpsit, brought to April Term 1864, by Samuel Duff against Samuel Wilson. The declaration averred that the plaintiff had leased certain property to one Smethers, that the defendant became bound for the covenants in the lease, and that the tenant had failed to pay the .rent.
    On the trial, February 15th 1870, before Kirkpatrick, J., the plaintiff gave in evidence articles of agreement, dated September 10 th 1859, between himself and Philip Smethers, by which he agreed to lease to Smethers for five years the undivided half of certain tracts of land in Clarion county, being the same which had been sold by Smethers to the plaintiff on the 5th of September 1857, with privileges specified in the agreement: — the consideration being the delivery by Smethers to the plaintiff of five pairs of flat-boats, two in each year from 1860 to 1864 inclusive, with other stipulations unimportant to the understanding of the case.
    Attached to the agreement was the undertaking of the defendant as follows:—
    “ September 10th 1859.
    “ I hereby become bound to Samuel Duff for the faithful performance of the covenants and agreements contained in the foregoing agreement on the part of Philip Smethers in case ho fails to perform the same. Samuel Wilson.”
    The plaintiff gave in evidence the lease and the defendant’s undertaking, and proved that Smethers went into possession and continued during the term and neglected to deliver the boats deliverable in the years 1863 and 1864, and proved the value of the boats; he then rested.
    The defendant offered in evidence articles of agreement, dated September 6th 1857, between Smethers and the plaintiff, by which Smethers agreed to sell to the plaintiff the undivided half of the land mentioned in the lease, “ being the same land described in an article between” Smethers and John and Mary B. Lyons by which they agreed to release their interest in the land to Smethers. Smethers agreeing to convey the land to the plaintiff in fee simple clear of all encumbrances, &c., for the purpose of showing that the plaintiff held title to the premises from Smethers; to be followed by evidence, that Smethers claimed an undivided moiety under Mary B. Lyons, and that Smethers and Mrs. Lyons had given a mortgage to Matilda Kifer on which there was a foreclosure and sale of one of the tracts to Henderson, to show that the tenant Smethers was ousted by a prior encumbrance.
    The offer was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed.
    The verdict was for the plaintiff for $3200.
    The defendant took out a writ of error, and assigned for error the rejection of his offer of evidence.

      S. A. Purviance, for plaintiff in error.
    In every lease there is a covenant for quiet enjoyment; if the tenant be evicted by paramount title, he is discharged from the rent: Maule v. Ashmead, 8 Harris 482; Ross v. Dysart, 9 Casey 452; Brown v. Dickerson, 2 Jones 372; Bauders v. Fletcher, 11 S. & R. 419; Elliott v. Smith, 11 Harris 131; Elliott v. Ackla, 9 Barr 42; Rawle on Cov. for Title 264, 265 and notes, 272, 273. A surety is not to be held beyond the precise terms of his contract: Court of Errors, 1805, Ludlow v. Simond, 2 Caines’s Cases 1; Penoyer v. Watson, 16 Johns. 100; Walsh v. Bailie, 10 Johns. 180; Gates v. McKee, 13 N. Y. (3 Kern) 232.

      L. B. Duff and R. Woods, for defendant in error.
    The surety cannot set up a defence which the principal could not: Barr v. Greenawalt, 12 P. F. Smith 172. Smethers conveyed the property to Duff, subject to an encumbrance which Smethers was bound to remove; the land being sold under this encumbrance, Smethers continued bound for the rent, and the surety was liable on his failure.
   The opinion of the court was delivered, October 16th 1871, by

Sharswood, J.

Philip Smethers, being the owner of .a tract of land in Clarion county, subject to a mortgage to Matilda Kifer, conveyed one undivided moiety thereof to Samuel Duff, clear of encumbrances. Duff then leased this moiety to Smethers for the term of hve years at a certain annual rent. The defendant below, Samuel Wilson, by a writing attached to or endorsed on the lease, became bound for the faithful performance of the covenants and agreements to be done and performed on the part of Smethers. This was an action by Duff against Wilson for rent accrued under the lease.

The defendant below offered to show that the mortgage of Matilda Kifer had been sued out, the premises sold by the sheriff, and the tenant evicted by the purchaser at sheriff’s sale before the rent accrued. This was objected to and rejected by the court, and this ruling forms the only assignment of error.

No doubt Smethers the tenant was bound by his covenants to pay off the Kifer mortgage, and it is therefore contended that inasmuch as this eviction was in consequence of his own default, he should not be allowed to take advantage of his own wrong in resisting on that account the payment of the rent; and if he could not, neither can Wilson his surety. There is great plausibility in this argument. But let us examine it a little more closely and see to what consequences it leads. It is not denied that, apart from his covenant to pay the mortgage, the eviction would have suspended the rent. When the title was divested from Duff and vested in the sheriff’s vendee, the relation between Duff and Smethers ceased, as much so as if Duff had himself assigned the reversion to a stranger. It is always competent for a tenant to set up that the title of his landlord has come to an end subsequent to the date of the lease. The purchaser at the sheriff’s sale might have affirmed the lease and required the rent to be paid to him as assignee of the reversion: Farmers’ and Mechanics’ Bank v. Ege, 9 Watts 436; Hemphill v. Tevis, 4 W. & S. 535. Had he done so, it can hardly be pretended that Smethers could have been compelled to pay the rent to Duff as well as the purchaser. In this case he elected to disaffirm the lease and took possession of the premises. Surely, Duff’s right of recovery cannot depend upon the election of the purchaser. This is a reduotio ad ahsurdwm. In every lease there is an implied covenant of quiet enjoyment. Whenever the enjoyment ceases by lawful title, rent, which is the recompense of enjoyment, also ceases. Duff had a right of action against Smethers for his violation of his covenant to keep him indemnified against the mortgage. In that action hé could recover such damages as the law awards in such a case. If, however, he can still proceed and recover the rent accruing from time to time under the lease, as if it were still existing for the whole period which the lease may have to run, he will evidently obtain much more than such damage. Even if Smethers could plead payment of rent, subsequently to the eviction as a set-off against Duff’s claim on the covenant, and it is not easy to see on what principle he could do this, how does this matter stand as regards the surety Wilson ? He guarantied not Smethers’s performance of his covenant to pay the mortgage, but his covenant to pay rent. Why then should he be compelled to pay what according to this argument will go indirectly to pay for the breach of another and distinct covenant which he did not undertake to guaranty? In point of fact it would seem that Smethers had put Wilson into possession of the premises for his indemnity, and it was Wilson who lost the possession by the eviction. The two claims of Duff for rent under the lease and for damages under the covenant were separate and distinct, and must not be confounded, especially to the injury of a surety. To the action for rent under the lease, the divestiture of the title of the lessor under the sheriff’s sale and the consequent eviction of the tenant was a perfect legal defence. The right of the lessee to occupy and enjoy the premises under the lessor came to an end, and with it his liability to. pay for such enjoyment. He cannot be charged directly or indirectly for the breach of his covenant as to the mortgage, either in part or in whole, in an action on the lease, and á fortiori his surety for the rent, who was in no wise surety for the covenant, shall not. We think, therefore, that the learned judge below committed an error in rejecting the testimony offered by the defendant.

Judgment reversed, and venfre facias de novo awarded.


author: Agnew, J.

text:
    Kelly versus Marshall et al.

    1. Kelly being drafted, paid $300 commutation-money; an Act of Assembly required school directors to levy a tax and repay him. The township had offered no bounty. The payment by Kelly was personal and for his own, not for the public relief; the act was therefore inoperative, and the directors could not be compelled to repay him.
    2. Hilbish v. Catherman, 14 P. F. Smith 154, remarked on.
    October 5th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 60, to October and November Term 1870.
    On the 24th of February 1870, James Kelly presented a petition to the Court of Common Pleas, setting out that he resided in Hampton township in July 1864, he had been drafted into the service of the United States, and having reported to the provost-marshal was mustered into the army on the 21st of July 1864; that on the same day he paid to the collector of internal revenue $300 commutation-money; that on the 2d of April 1869, the legislature of Pennsylvania passed a law authorizing and requiring the board of school directors of Hampton township to levy and collect a tax sufficient to pay him the sum of $300 with interest from the time he paid that sum to the collector of internal revenue for commutation when he was drafted, “the township authorities having for said draft filled the quota thereof by means of a tax levied and collected for that purpose except as to one man, and the said Kelly having been drafted to fill that deficiency ” — that the act further required the school directors to make the payment “ out of any surplus bounty funds unappropriated, but if there are no such funds, then they shall levy and-collect a special tax for that purpose.” The petitioner averred that he, after the passage of the act, had given the school directors notice of his claim and of the Act of Assembly, but they had refused to pay him or to levy and collect a tax for the purpose. The prayer was that a mandamus issue to James Marshall and others, the school directors of Hampton township, commanding them to pay the $300 with interest as directed by the Act of Assembly.
    A rule was accordingly granted on the school board to show cause why a peremptory mandamus should not issue to them to make the payment.
    The school directors, March 12th 1870, in answer to the rule, averred amongst other things that the Act of Assembly was unconstitutional and void.
    On the same day the court (Stowe, J.) awarded a peremptory mandamus, saying:—

      “ While we are of the opinion that the Act of Assembly is unconstitutional, we think that the question under the circumstances of this case should be determined by the Supreme Court, and not by us.”
    The respondents removed the case to the Supreme Court and assigned the judgment of the Court o'f Common Pleas for error.

      A. M. Brown, for plaintiff in error,
    cited Baggs’s Appeal, 7 Wright 512; Norman v. Heist, 5 W. & S. 171; Tyson v. Halifax Township, 1 P. F. Smith 9.

      A. M. Watson, for defendant in error.
   The opinion of the court was delivered, October 16th 1871, by

Agnew, J.

The farthest point reached by this court on the subject of military bounties is to be found in Hilbish v. Cather-man, 14 P. F. Smith 154. We there held that an excess of $150 over $400 per man allowed by law to be paid to procure enlistments in relief of the public from the draft, could be required by the legislature and authorized to be refunded to the subscribers; the money having been paid in ease of the district, and for a public useful purpose. Taxes being the revenue collected from the people for objects in which they are interested and conducive to their welfare, in principle there cannot be a difference between a precedent authority to pay for . such a public object, and a subsequent recognition of the same thing. But we said that could we Took upon taxation to pay bounties to volunteers to relieve the township from a draft as the application of public moneys to private ends, we would agree that the principles decided in Norman v. Heist and like cases, would forbid the application of the revenue to the payments in the case of Hilbish v. Catherman. We said that it could not be doubted that the legislature cannot take the property of one man and give it to another; it cannot tax the public to give the revenue to a wholly private object, nor tax a few to perform a general public work. This is the distinction which we think must govern the case now before us. The township of Hampton offered no bounty, and the petitioner paid none. He was duly drafted, accepted, and ordered to be mustered into service and paid a commutation under the Act of Congress for exemption from service. The whole affair was personal to himself, and for his own relief. He but performed an individual duty which fell upon himself. He owed the service by reason of the draft and order to muster in, and simply commuted it with money. It was not a measure of public relief, but a private exchange of one thing for another. He acted not under the state law, but accepted an alternative offered him by the federal law, and did nothing and offered nothing for the benefit of the community beyond the line of his legal duty. The order of the court below is therefore reversed, and the petition for mandamus dismissed at the cost of James Kelly the petitioner.

Judgment accordingly.


text:
    Sumner versus Stewart.
    1. S. gave orders to R. in the employ of W., a broker in Pittsburg, to buy five hundred barrels of oil, on terms, &c., specified; the order was telegraphed to WVs house in Philadelphia, who telegraphed in reply “we have bought subject- to immediate confirmation, five hundred barrels,” &c., on the terms of the order. R., not knowing the name of the seller, immediately replied: “We hereby confirm purchase,” &c., signing S.'s name, having had no further communication with S. Next day R. received the name, and told S., who, not being satisfied with the seller’s standing, refused him, and W.’s guaranty, and refused to sign a contract or accept the oil. The custom of oil dealers is’that the contract with the name of the seller must be submitted to the principal for confirmation. When names are given and rejected, the sale fails. Held, that there was no evidence of a contract on which the seller could recover from S. I

    2. The broker could not bind his principal except in the manner recognised by the custom, and ft.’s confirmation was without authority.
    October 5th and 6th 1871.
    Before Thompson, C. J., Read, Agnew, .Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 62, to October and November Term 1870.
    This was an action of assumpsit to March Term 1869, by John L. Stewart against Eli C. Clark and A. A. Sumner, trading as Clark & Sumner; Sumner only was summoned.
    The plaintiff declared that on the 6th of August 1868, the defendants had bought from him 500 barrels of oil at 34J cents per gallon to be delivered in bonded warehouses in Philadelphia during the last half of August 1868, at buyer’s option, giving ten days’ notice to sellers previously to delivery, and the defendants promised to accept the oil, but although the plaintiff, at the time in the contract mentioned, was ready to deliver the oil in Philadelphia, of which the defendants had notice, and the same was tendered, the defendants would not receive and pay for it, and the plaintiff was compelled to sell it at a loss of $1000.
    Under their pleas the defendants gave notice of special matter, viz.: That he had made no such contract. On the 6th of August 1868, Waring & King, general oil brokers, reported to A. A. Sumner the purchase of 500 barrels of oil from persons unknown to him; on the 8th of August, Waring & King reported to Sumner that John L. Stewart was the vendor, and presented a form of contract for Sumner’s acceptance; that not being acquainted with Stewart, and finding from information Stewart’s standing not satisfactory to him, Sumner refused to accept the contract for himself or for Clark & Sumner ; that the contract alleged was never offered to Sumner or Clark & Sumner, nor ever entered into by them nor by any person authorized by them.
    The case was tried, March 1st 1870, before Collier, J., when the following facts appeared by the evidence:—
    W. P. Richardson was a broker in the oil business in the employ of Waring & King, of Pittsburg, who had a house under the name of Waring, King & Co., in Philadelphia; on the 6th of August 1868, they were authorized by Clark & Sumner to buy 500 barrels of oil at 34| per gallon, buyer’s option last half of August; if the oil was wanted before the last day of August, the buyer was to give ten days’ notice; the place of delivery was Philadelphia. Richardson, on the 6th, transmitted the terms of the contract to Philadelphia by this telegram :—

      “ Pittsburg, August 6th 1868.
    “ To Waring, King & Co.:
    “ You may buy 500 barrels oil last half August, at 34$ cents. “ Clark & Sumner.”
    On the same day he received this telegram from Waring, King & Co. ;—
    “ Is Clark & Sumner’s offer for August still good ?”
    Another message was received by Richardson from Waring, King & Co., as follows:—
    “Philadelphia, August 6th 1868.
    “We have bought, subject to immediate confirmation, 500, buyer last of August, 34$ for account of Clark & Sumner.”
    The reply sent to this was :—
    “ Pittsburg, August 6th 1868.
    “We hereby confirm purchase 500 buyer’s last half of August, 34$ for Clark & Sumner. “ W. T. Richardson.”
    During the mutual transmissions of the telegrams, Richardson did not see Sumner. On the 7th or 8th he saw Sumner and told him that he had bought 500 barrels of oil at his price, but did not give him the name of the seller, not knowing it himself; on the next day he told Sumner that Stewart was the seller. Sumner neither accepted nor refused, but asked who Stewart was; after looking at Bradstreet’s or Dun’s Registry, Sumner said he was not satisfied with Stewart’s rating. On the 10th Sumner refused Stewart because he did not consider him financially strong. Waring & King offered to guaranty Stewart, but the offer was not accepted by Clark & Sumner.
    Collymore, an oil broker in Philadelphia, knowing that Stewart wished to sell oil, went to Waring, King & Go., who offered 34$ per gallon, which Stewart accepted. On the same day, August 6th, having learned by telegram from Pittsburg that Clark & Sumner were the purchasers, he prepared a contract, viz.: “ Bought of John L. Stewart for account of Clark & Sumner, through Waring, King & Co., 500 barrels” of oil, &c. This contract was signed by Collymore, and “Accepted, John L. Stewart.” The contract embodied that which Waring, King & Co. were authorized by Clark & Sumner to make: it was sent to Clark & Sumner, they denied buying oil of Stewart.
    It was in evidence by Waring, one of the partners of Waring, King & Go., and a witness for plaintiff, that “ when a broker makes a contract for the purchase or sale of oil it is customary to submit it to the principal and have it confirmed by him. Until so confirmed it is not binding on either party. If the principal fails to confirm it the contract fails. Names are often given which are rejected, and in such case the purchase or sale fails.’

      There was evidence by the defendant that it was the almost universal rule not to accept a person who is guarantied, just because he is guarantied.
    A number of witnesses testified substantially as above as to the custom of confirming a contract.
    The defendants’ 3d point, which was refused, was: “ Under the evidence in this case, the plaintiff has-failed to make out any contract or agreement on which he is entitled to recover.”
    The verdict was for the plaintiff for ¡¡>1045.45.
    The defendants took out a writ of error and, amongst others, assigned for error the answer to this point.

      B. Woods, for plaintiffs in error.

      J. Hampton, for defendant in error.
    Richardson had authority to purchase the oil. The contract was complete when he sent the telegram accepting it: 1 Pars. on Contracts 407; 1 Story on Contracts, §§ 316, 384; Hamilton v. Lycoming Ins. Co., 5 Barr 339 ; Story on Agency, § 493. A principal who neglects promptly to' disavow an act of his agent who has transcended his authority makes the act his own: Bredin v. Dubarry, 14 S. & R. 30; Porter v. Patterson, 3 Harris 235. When by the offer it is incumbent on a party to express his dissent, or his acts afford an unequivocal presumption, his acceptance will be implied: Train v. Gold, 5 Pick. 380. What is a reasonable time to accept or refuse a contract will, in every case, depend upon its circumstances: Story on Sales, § 126 ; Maclise v. Frith, 6 Wend. 103. The offer of agent to guaranty binds the principal to ratify: 2 Kent’s Com. 855.
   The opinion of the court was delivered, May 23d 1872, by

Read, J.

This action was brought by John B. Stewart against Eli C. Clark and A. A. Sumner, partners as Clark & Sumner, to recover damages for a> breach of a contract for the purchase and sale of 500 barrels of oil at 34| cents per gallon, in August 1868. The defendant, Eli C. Clark, was never summoned, and the suit proceeded against Summer alone. The real question in the case was, whether there was such a contract as was alleged by the plaintiff.

The custom as to the employment and extent of authority of oil brokers was very clearly proved on the trial. “ That the broker must submit the contract to his principal for his acceptance. The custom is, that the broker must report the name of the seller to the principal for his acceptance. There is no contract until both parties accept. This has been the universal rule. In some cases the ability is the main ground upon which the acceptance or nonacceptance is based. The almost universal rule is not to accept a party who is guarantied just because he is guarantied. I don’t know of any sales of oil, unless put in writing: that is the universal custom. The contracts are executed on two papers, each accepted by the other.”

The evidence showed that on Thursday, the 6th August 1868, A. A. Sumner, of the firm of Clark & Sumner, refiners and oil dealers, of the city of Pittsburg, gave Waring & King, oil brokers, of said city, an order to buy for Clark & Sumner 500 barrels of oil, buyer’s option last half of August, price 34-£ cents per gallon, oil to be standard white refined oil, to be delivered in Philadelphia. The- order was given to W. P. Richardson, of Pittsburg, an oil broker, who was a clerk with Waring & King, in their employ, and broker for them. On the 6th August Mr. Richardson telegraphed to Waring, King & Co., of Philadelphia, “You may buy 500 barrels, buyer’s option last half of August, at 34J cents, for Clark & Sumner.” To this was replied, “ Is Clark & Sumner’s offer for August still good ?” The next despatch was :—

“ Philadelphia, August 6th 1868.
“We have bought, subject to immediate confirmation, 500 barrels, buyer last of August, 34J, of account of Clark & Sumner.”
The reply by Mr. Richardson was, “We hereby confirm purchase 500, buyer’s last half of August, 34|, for Clark & Sumner.”

This correspondence was conducted by Richardson and Mr. R. Collymore, oil broker, on behalf of Waring, King & Co., of Philadelphia. The confirmation was without any authority from Clark & Sumner or Sumner, and the name of the seller was not known to Richardson. On Friday, the 7th August, Mr. Richardson received a letter from Philadelphia, giving Mr. Stewart’s name as the purchaser, whom Mr. Sumner did not know, and referring to the Registry — Rradstreet’s or Dun’s — “he was not satisfied with his rating.”

Mr. Richardson wrote to Philadelphia, and told them what had taken place, and having received Waring, King & Co.’s offer to guaranty, called on Sumner on Monday, 10th August, and he refused Mr. Stewart on the ground that he was not financially strong, and also refused the guaranty. The paper signed by Stewart remained in Philadelphia, and whatever paper or contract was presented to Sumner was one for him to sign if he accepted it. This he never signed, but distinctly refused to accept.

The broker was simply a negotiator, with no authority to bind his principal, except in the manner recognised by the custom of the business. When, therefore, Mr. Richardson confirmed the sale he did it without any authority. When on the 7th, or later, he communicated the name of the seller to Mr. Sumner, he certainly did not accept, but really declined it, and so Mr. Richardson thought, for a guaranty was sent him, which he offered to Mr. Sumner on Monday, who refused both.

It is clear, therefore, that there was no contract whatever for a breach of which Sumner could be sued. The court, therefore, should have answered the 3d point submitted to the court by the defendant in the affirmative.

“ That under the evidence in this case the plaintiff has failed to make out any contract or agreement on which he is entitled to recover.”

Judgment reversed, and venire facias de novo awarded.


author: Per Curiam.

text:
    Pier versus Carr.
    1. Carr rented to Sewell; during the term Sewell’s goods were levied on for tax; before the sale he left the premises. The constable delivered the key to Carr, who had a bill, “ To Let ” put on the house, retained the key, had repairs done to the house, and showed it to a person applying to rent it. Held, that these did not discharge Sewell from the rent before the end of the term.
    2. Had the tenant returned during the term he would have had the right to enter.
    3. When a tenant is evicted he is discharged from the rent for the time following, not for that due before eviction. Per Stowe, J., of Common Pleas.

    4. If the acts of the landlord are such an interruption of the tenant’s rights under the lease as interfere with his possession, or amount to taking the property off the tenant’s hands, the rent will be suspended from that time. Id.

    October 5th 1871.
    Before Thompson, C. J., Read, Asnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1870, No. 96.
    This was an action of covenant by William Carr against R. W. Pier, commenced July 3d 1869, on a covenant of suretyship for the performance of the covenants in a lease from Carr to James Sewell, dated January 10th 1868.
    By the lease Carr rented a tavern-house in Penn Street, Pitts-burg, to Sewell for one year from the 1st of April 1868, at $2000 per annum payable monthly. Pier by an agreement under seal attached to the lease and of the same date stipulated “ to be responsible” to Carr, “for the true and faithful performance of the above contract on the part of James Sewell.”
    In January 1869, a constable levied, on Sewell’s goods for taxes ; the building was then occupied by Sewell’s family; before the sale, which took place February 1st, Sewell and his family left the premises; the constable left the key with the plaintiff. The defendant bought some goods at the constable’s sale. On the day after the sale there was a bill “To Let” put upon the house. The defendant sent in February or March for the goods which he had bought; the messenger went to the plaintiff for the key, one of the persons in plaintiff’s employ went to the premises, with the messenger who got the goods, the employee of plaintiff locked the door and took the key with him. In March 1869, a new tenant leased from plaintiff who then had the key,, opened the house and showed it to the new tenant. After Sewell had left and previously to the expiration of his term, the plaintiff made some repairs to the bar-room.
    The claim was for rent from December 1st 1868 until April 1st 1869, less $50; after suit brought $292 were paid by the defendant.
    The defendant’s 2d point was:—
    “If Carr, the plaintiff, took possession of the premises by receiving and retaining the key, putting a workman or workmen into the house for the purpose of making repairs during the term created by the lease, without the assent of the tenant or his surety, it would be such an entry upon the demised premises as would stop the running of the rent.”
    This was refused.
    The court (Stowe, J.) charged:—
    “ [The simple question here, is, whether the plaintiff took the possession of this house at or about the 1st of February, or subsequently, so as to interfere with the possession of the lessee if he chose to occupy it; in other words, took actual and adverse possession of the property so as to interfere with the lessee or his right under the lease, or to indicate that the landlord took it off the hands of the tenant.] The mere receiving of the key and taking care of it when left by the officer, or putting up a notice that the house was for rent, will not of themselves be such acts as will release the tenant or his security. Nor will a mere entry for the purpose of repairing the floor after the tenant has left, and during the term, in the bar-room five or six feet square, if that was the purpose and effect of the entry, do so. [But if, under all the evidence, you-believe that the acts of plaintiff were such as we have indicated, viz., an actual adverse possession and substantial eviction of the tenant, or an interruption of his rights under the lease such as interfered with his possession, or as satisfies you that plaintiff took the property off his hands, the rent will be suspended from such time, to wit, from the time of such entry, and not for the time which precedes it; in other words, if the entry was on the 20th of March you should allow rent to that date — for the tenant is bound to pay to that time.”]
    The verdict was for the plaintiff for $358.10.
    The defendant took a writ of error, and assigned for error the answer to his point and the parts of the charge in brackets.

      B. F. Lucas (with whom was A. Gr. Lucas), for plaintiff in error,
    cited Vaughan v. Blanchard, 1 Yeates 176; Kessler v. McConachy, 1 Rawle 435 ; Magaw v. Lambert, 3 Barr 444.

      T. B. Patterson (with whom was T. M. Marshall), for defendant in error,
    cited Edgarton v. Page, 6 E. Smith (N. Y.) 284; Briggs v. Thompson, 9 Barr 339; Bennet v. Bittle, 4 Rawle 339; Tiley v. Moyers, 7 Wright 404.
   The judgment of the court was entered October 16th 1871.

Per Curiam.

The questions arising out of the proof in this case were properly left to the jury. Taking care of the key of the house and repairing the floor after the tenant had voluntarily left, were no eviction. ■ He would have been entitled to enter if he had returned — but he did not return. He was neither put out nor sold out by the plaintiff. If the acts of the plaintiff would have been no defence in defendant’s favor, it would not avail the surety, and we are very clear they would not have availed him.

Judgment affirmed.


text:
    Commonwealth to use of Allegheny City versus Marshall.
    1. Allegheny City passed a resolution for grading, &o., a contract made under which, was decided invalid because the resolution had not been, recorded as required by law; a curative law was passed refex-ring in the preamble to the date of the contract as being the date of the resolution, but otherwise identifying the resolution. Held, to be sufficient reference to apply to the resolution.
    2. A preamble makes no part of a law, but can be used to identify the subject matter of the law, to explain the motive or meaning of the legislature.
    3. An act of incorporation declared that ordinances, &c., not recorded within thirty days from their passage should be void. Under an unrecorded ordinance a contract was made which was decided not to be binding ; afterwards an act was passed declaring that the omission to record the ox-dinance should not affect the contract, &c., but that the contract might be enforced and claims under it collected as if the ordinance had been recorded. Held, that the act was constitutional and ratified the unrecorded ordinance.
    4. The failure to record was a technical defect which the legislature might remedy.
    5. 'Power’s of taxation for improvement cm portions of streets considered.
    6. Commonwealth v. Schenley, 12 Casey 29, compared. '
    October 6th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 79, to October and November Term 1870.
    This was a scire facias on a lien filed August 21st 1867, for grading, &c., Ridge street, in Allegheny City, issued September 20th 1867, by the Commonwealth, to the use of the city, against A. Marshall.
    The Act of April 13th 1840, Pamph. L. 307, incorporating Allegheny City, enacted that such “ laws, ordinances, regulations and constitutions” of the city o'f Allegheny as should not be published as councils should direct within fifteen days after -their passage, and recorded within thirty days after their passage, should be “null and void.” The Act of April 15th 1849, authorized the councils by ordinance “ to grade, repair, pave, &c., any street, and to levy a special tax to pay the expenses by an equal assessment on the feet front bounding and abutting on such street,” &c. By the Act of May 1st 1861, the councils were authorized “ to have sewers constructed, and to pay the expenses by an assessment on all property likely to be benefited thereby fairly and equitably, in proportion to the benefit received.”
    On the 5th of November 1863, the councils passed an ordinance to invite proposals for grading specified parts of Ridge street, the expense to be defrayed by a tax assessed on lots bounding on the street in proportion to the feet front.
    On December 1st 1863, they contracted with James Hastings to do the work. Hastings afterwards represented to the councils that prices of labor, &c., had greatly increased since his contract, and asked that the contract price be raised. Accordingly, on the 12th of April 1866 the councils passed a resolution to make a new contract with Hastings at increased rates; the resolution was neither published or recorded as required by the act of incorporation. A contract, dated July 13th 1866, was accordingly entered into with Hastings, under which the work was done, and the proportion payable by the defendant ascertained to be $607.60. After a verdict and judgment in favor of the city in this scire facias, the judgment was, on the 11th of January 1869, reversed by the Supreme Court, on the ground that the resolution altering the. contract was void, because it had not been published and recorded (9 P. E. Smith 455).
    On the 24th of March 1869, the Act of Assembly (Pamph. L. 501), was passed, as follows:—
    “ An Act relative to a certain ordinance of the City of Allegheny.
    “ Whereas, the councils of the City of Allegheny, on the 13th day of July 1866, passed an ordinance authorizing a new or second contract with certain parties for grading Ridge street, in said city, which persons in good faith expended very large sums of money in completing said grading, a large portion of which is due and uncollected:
    “ And -whereas, in a writ of error to the Supreme Court, case of Marshall v. The Commonwealth, No. 97, of October and November Term 1868, the Supreme Court held that the city had the right to make the new contract and collect the whole amount of the claim, but that the resolution of councils of above date, according to the city charter, should have been published and recorded; and the Supreme Court recommended legislative action to cure the omission so to publish and record, in the following language, namely(giving an extract from the opinion of the Supreme Court), and enacted, “ That the omission or failure to publish and record said ordinance shall not impair or in any manner affect said contract, or any assessment, tax, lien or claim for cost of grading done or to be done, in pursuance of or in accordance with the provisions of said ordinance; and the city, or any party interested therein, may proceed to enforce said contracts, and prosecute and collect said assessments, liens or claims, in the same manner and with like effect as they might or could have done if said ordinance had been duly recorded within thirty days after the passage thereof.”
    On the second trial in the District Court, May 2d 1870, before Kirkpatrick, J., the plaintiff having given in evidence the claim, the contract of December 1863, the ordinances of councils prior to April 12th 1866, made the following offers of evidence, which, on objection by the defendant, were all rejected by the court, and bills of exception sealed :—
    Offer A. The agreement dated July 13th 1866, between the councils of Allegheny City and Hastings; in connection with the petition of Hastings to the councils, presented March 8th 1866, the resolution of councils of April 12th 1866, and the above Act of Assembly.
    Offer B. Hasting’s petition, the resolution of the councils, the above Act of Assembly, the contract of July 13th 1866, to he followed by evidence that the grading of Ridge street was completed under the contract of July 13th 1866, the work accepted by the councils, that the cost was assessed on property “ bounding and abutting” on Ridge street; that defendant’s proportion was $607.60; that demand for payment was made before filing the municipal claim; that the city acted in good faith in modifying the original contract; that the price under the second contract was fair and reasonable, and that the contractor proceeded with his work under the first contract with due diligence until obliged to suspend by reason of the great and sudden rise in cost of labor occasioned by the war.
    Offer 0. That the part of Ridge street named in the ordinance of November 5th 1863, was graded as required by the ordinance and accepted by the councils; that the part of the cost under the original contract chargeable to defendant’s lot is $404.49, being the proportion which his lot bears to the entire frontage on that ordered to be graded, tbe assessment having been made only on tbe part ordered to be graded.
    Offer D. That all that part of Ridge street ordered to be graded by tbe ordinance of November 5th 1863, was graded before filing tbe claim in this case; tbe work accepted by the city and tbe whole cost apportioned on tbe property abutting on the same part of Ridge street; that demand was made on tbe defendant for bis proportion ($404.49) of tbe cost, and refused by him, and that all that part of Ridge street not included in tbe ordinance of November 5th 1863, had theretofore been graded, and tbe cost assessed and paid exclusively by tbe property on that portion of Ridge street.
    The plaintiff’s points were:—
    1. Tbe plaintiff is entitled to a verdict for tbe amount of tbe municipal statement or lien,-filed August 31st 1867.
    2. In any aspect of tbe case, plaintiff is entitled to recover defendant’s proportion of the cost of grading that part of Ridge street between tbe points mentioned in tbe ordinance of 5th November 1863, at tbe original contract price of thirty-five cents per cubic yard, the entire cost being apportioned equally upon tbe feet front of lots abutting upon tbe said above-mentioned part of Ridge street.
    Both points were refused.
    The defendant asked tbe court to charge that under tbe evidence in this cause tbe plaintiff is not entitled to recover.
    This was affirmed.
    The verdict was for tbe defendant.
    The plaintiff took out a writ of error. Tbe assignments of error were:—
    1 and 2. Rejecting offers A. and B.
    3 and 4. Rejecting offers C. and D.
    5 and 6. Refusing tbe plaintiff’s points.
    7. Affirming tbe defendant’s point.

      M. W. Acheson (with whom was W. B. Rodgers), for plaintiff in error.
    Although tbe preamble is no part of a statute, yet it may serve to show the general scope and purport of the act and the inducements which led to its enactment: and it is often the key to tbe statute: 1 Kent 460-1; Jackson v. Gilchrist, 15 Johns. 89. The misrecital of date is cured by other recitals in the preamble: The Southwark Bank v. The Commonwealth, 2 Casey 446; Chalker v. Ives, 5 P. F. Smith 81; Levering v. Railroad Co., 8 W. & S. 459; Jackson v. Collins, 7 Cowen 89; The People v. Utica Ins. Co., 15 Johnson 358. The Act of March 24th 1869 cured the omission to record and publish: Marshall v. The Commonwealth, 9 P. F. Smith 455; Schenley v. The Commonwealth, 12 Casey 29. The public bad an equitable right to reimbursement for the work done, and the curative legislation merely gave a remedy; this is constitutional: Hepburn v. Curts, 7 Watts 300; Magee v. Commonwealth, 10 Wright 358; Marshall v. Commonwealth, 9 P. F. Smith 455.

      S. Schoyer and T. M. Marshall, for defendant in error,
    cited Commonwealth v. Schenley, Commonwealth v. Marshall, supra; 1 Kent 460; Erie and North East Railroad, 2 Casey 323.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

This case was before us on a former writ of error, and is reported in 9 P. F. Smith 455. It was then decided that the resolution of the councils of the City of Allegheny of the 12th of April 1866, authorizing the committee on streets to enter into a new contract with James Hastings, for the grading of Ridge street, was null and void, because the same was not published and recorded as required by the city charter. An 'act to cure this omission was passed on the 24th day of March 1869. The preamble refers to this resolution as dated July 13th 1866, the date of the new contract, taken by the penman of the act by mistake for the date of the ordinance. It is, therefore, contended that the curative act is inefficient and inoperative. Of this opinion was Nthe court below, which we think was an error. Though the preamble of a law, as often said, is no part of the enactment, and, therefore, does not proprio vigore make the law; it is, nevertheless, a part of the law for some purposes. If it be referred to in the enacting clause to identify the subject-matter of the law, or to explain the motive or the meaning of the legislature,'it can be used for this purpose. In this view of its true character, the mistake here, of the date of the contract for the date of the ordinance, is plainly corrected by the remainder of the preamble. Not only does it refer to an ordinance which authorizes a new or second contract for grading Ridge street by name, and the fact of work done upon it in part, and large sums expended in grading; but this very suit is itself referred to, and the writ of error to the Supreme Court by number and term, the decision, and the recommendation of Justice Read in the opinion, that the want of publication and recording of the resolution should be cured by the legislature. This reference makes it perfectly plain that it was this very resolution or ordinance of April 12th 1866, which the legislature intended to validate. There is no other that concerns the case of A. Marshall’.

It is contended that this resolution was incapable of ratification, because it was wholly void, no action having been taken under it within the thirty days allowed for recording it, as was the case in Schenley v. The Commonwealth, 12 Casey 29, and this it is said distinguishes the cases. That fact was stated in Schenley’s case as adding weight, but not as the ground of decision. The reasoning of Justice Strong makes it clear that the principle, or the true ground of the decision, was that the value of the lots was enhanced by the public expenditure — that the city had the benefit of the work — that there was an imperfect or moral obligation to make compensation; and, therefore, that the non-recording of the ordinance was but a formal or technical defect, which the power of the legislature is competent to remedy. When the ordinance fell by the failure to record it, it was essentially dead — null and void, as though it had not been passed. The fact that the contract was entered into while it had a temporary life gave it no greater efficacy, for it also fell dead for want of authority, the moment the ordinance became null and void. The parties to the contract were bound to know the terms of the charter, by virtue of which they had authority to contract, and that the authority was gone the instant the ordinance fell. Besides, a contract is not essential to the lien against the abutting property — that results from the improvement, which might be done by other means. But the lien cannot be created without a valid ordinance, for such is the law, and this was as much wanting in the Schenley case as in this. The decision in that cáse, therefore, rules this on this point.

It was also contended in the court below that the resolution of 12th April 1866, makes no levy or assessment for costs and expenses incurred under the new contract. This was not essential, for that is provided for in the original ordinance of 5th November 1863. The resolution of April 12th 1866, merely changes the terms of doing the work, but did not otherwise change or affect the provision for levying the special tax contained in the ordinance of 1863. It was but a change in an intermediate step, leaving the final step of charging the cost unaffected.

The last question requiring notice is that raised by the objection to the offers C. and D. set forth in the third and fourth specifications of error. This objection was that an assessment for the improvement cannot be made by portions, but must be upon all the properties along the whole length of the street. The court below seems to have sustained this objection. This was an error. The Act of April 5th 1849, authorizes the grading and paving of any street, or parts thereof. It was to be done under that act, on the petition of two-thirds'of the number of the lot-owners of any section, square, or parts of a square, bounding or abutting on such street, and the cost to be paid by an equal assessment on the feet front bounding and abutting as aforesaid. The Act of 8th April 1851, authorized the councils to grade and pave, without the petition, but left the provision for taxation as it stood in the Act of 1849. As the city may grade and pave in parts, as convenience and the wants of the people require, there is no good reason that the exercise of the assessing power should not accompany the power to grade and pave, and this appeared to be the intent of the law. To require the special tax to be collected along the entire length of the street every time a part is paved, would often make the owners of unimproved or sparsely settled lots pay for grading and paving a distant part of the street. It would also largely increase the burthen, by making numerous assessments of the whole, as each part was graded or paved. The argument urged against this view is the inequality of burthen thrown upon the owners along the line of the street, where one section is expensive and another is not so. It is said there are parts of Ridge street excavated to the depth of twenty feet to bring it to grade. There is a seeming force in this objection, were the fact found to be so, and it no doubt seriously impressed the mind of the learned judge below. But the fact of a gross and palpable violation of right has not been found by the jury under any instructions presenting the character of the ordinance for examination. We cannot assume that the ordinance to grade the remainder of Ridge street, and the assessment upon the lots abutting that part, are palpably unreasonable and unjust. Indeed, the contrary would be the inference, for the whole street was to be graded under this ordinance — excepting a small part which had been done before. We must rather presume that the councils have acted in good faith to the people whom they represent, and who can displace them if they do wrong. The question is, therefore, not before us, and indeed cannot be; unless in so plain a case of an abuse of power as will command the assent of the mind to it at once as a palpable violation of the authority conferred upon them by the legislature. Complete equality cannot be produced in either general or special taxation; and something must be left to the sense of justice and sound discretion of'the governing body. The principles of special taxation have been discussed in the case of Washington avenue (postea p. 353), heard at this term; and the opinion there may be referred to for any further expression of our views that may be desired.

Judgment reversed, and a venire facias de novo awarded.