text:
    McClurg’s Appeal.
    1. A husband’s wilful absence from his wife, being in legal acceptation malicious, is sufficient to support a decree for divorce a mensa et thoro and alimony.
    2. It is a question for the coujt below whether offers of a husband to renew cohabitation are made in sincerity and with an intention bonfi, fide to perform his marital duty.
    3. A formal offer cannot always be accepted as a genuine act.
    . 4. One-third of a husband’s annual profits or income is the maximum, of alimony.
    5. Where a portion of the rents of a husband’s land were appropriated to pay debts with which it was encumbered, the alimony allowed was one-third of what remained beyond the appropriation.
    6. The order of alimony is part of the final decree, and when brought up by appeal is, with all the evidence the subject of the jurisdiction of the Supreme Court.
    7. Brenig v. Brenig, 2 Casey 161, distinguished.
    November 2d and 8d 1870.
    Before Thompson, C. J., Read, Agnew, Shaeswood and Williams, JJ.
    Appeal from tbe decree of the Court of Common Pleas of Allegheny county: No. 64, to October and November Term 1869.
    On the 1st of April 1867, Margaret McClurg presented a libel for divorce against Alexander McClurg. The libel set out the marriage of the parties on the 1st of July 1845, their cohabitation as man and wife until July 1st 1864, the desertion of the respondent from that time, and that before that date he had offered such indignities to the person of the libellant as to render her condition intolerable and her life burdensome.

      The prayer was for a divorce from bed and board and alimony.
    The respondent by his answer denied the desertion, but averred desertion by the libellant, that she had not demeaned herself as a dutiful wife, &c., but that he had conducted himself as a faithful husband; denied offering indignities as alleged in the libel, or having given her cause to absent herself from his home; averred that her absence was without just cause, and he offered, as he had theretofore offered since her absence, to receive her and cohabit with her and treat her as he had always done as a good husband should do.
    A very large amount of testimony was taken by the examiner appointed by the court.
    Amongst other evidence were the following letters:—
    “ Pittsburg, January 30th 1865.
    “Mr. McClurg:
    “ The house in which I live has been sold; and as you are the person who should provide me with a home, I wish you to let me know what you intend to do in the matter. Please write to me, as I do not wish to have a personal interview, for it would be painful to me. ' M. McClurg.”
    “ Pittsburg, January 30th 1865.
    “ Madam: I must express much surprise at receiving a note from you of this date stating, ‘ the house you live in was sold, and you wished to know what I intended to do in the matter.’ I can only reply, I have not now, nor have I ever had any intentions in the matter, you took the house without consulting me, and I would think it proper for you to ask further advice, from those you preferred to consult at that time. I went to it at that time, it is true, at your request, and remained in it much.longer than I was welcome, and indeed, I now confess, I am really' surprised at my forbearance, and blame myself for not leaving long before I did, the only excuse I can offer, is the abhorrence I always have had to a public rupture, and the stigma that might attach to the members of my innocent family, if your scandalous stories would be believed. I remained even after you called me ‘ a poor, dirty, mean, lowlifed wretch, more than once,’ and.ordered me out of your house repeatedly, and if I did not leave you would have me put out by force, &c. This, I believe, you thought you could do, and consulted at least one or more than one attorney on the subject, the above and many more reasons for my course I have already given in writing to your sister Mrs. Claise, now in your house, and I presume you have seen them, as I intended you should, and left her at liberty to show them to any one interested, and invited investigation as to the truth of all I said. Since Í wrote that paper, I am informed you told one or more persons, you wished me to go back, and they might tell me so, and on the second instant, colored Adam, the waiter here, was at your house, you questioned him a great deal about me, told him it looked very bad to see me living at a hotel, and you keeping house, that you wished me to go back, and that you spoke very feelingly, and actually with tears in your eyes, &c., &c. I replied, I did not believe it, that your remarks were only feigned, and that the tears of some women were easily brought forth, &c. However, to prove the falsity of his expressions, I went down the same evening, and the moment I went into the parlor you got up and left it. I sat down by Mrs. Claise for a few minutes and promised to bring or send her a paper I had drawn up with my reasons for leaving the house, &c. Some days after I took the paper down, rang the bell and inquired of the girl who came to the door for Mrs. Claise, then for you, she replied to each inquiry, no, no, nor would you or Mrs. Claise be in until dinner time, one o’clock, it was then eleven, a. M. I felt satisfied this was not true, said I could not come down again, and I wanted a book, passed the girl and went up stairs, and in a few minutes came down again and found you. in the hall. You denied having told the girl to say you were not in, but told her to say, if I called, you did not want to see me, you know all this, and I only repeat it to show the deception you practised on poor Adam and the others. I repeated the facts to him, his remark was, ‘is it possible any women could be so deceitful ?’ This he did with uplifted hands, and added, ‘ I thought from what she told me, she wished you to go back, and wanted me to tell you so.’ If Mrs. Claise has not shown you that paper, I now request her to do so. I remain, with all due respect, if any, ' Alexander McClurg.”
    “ Pittsburg, March 8th 1865.
    “ Madam : On the 30th of January last, I answered your note received that day, subsequently it has occurred to me to inform you that I intend residing at the cottage this summer as usual, and expect to go there about the 1st of April, and notwithstanding you took the house you now live in by advice of others, without consulting me or asking my consent, a house in which I never felt at home in, and where you took much pains to make me feel myself a stranger and most uncomfortably situated, and finally calling me by opprobrious names, and ordering me out of your house, and if I did not go you would force me to do so, &c. Yet as you now say, ‘ I am the person who should provide you with a home,’ I think it proper to tell you where and when I am going, and cordially invite you to accompany me. In case you conclude to do so, I shall immediately write to my daughter Mary to come and live with me (if you have no objection); the only condition I make, and that I will insist on, is that Lizzie Guthrie is not to be an inmate in the family. It is necessary for me to know your decision soon as possible, as some arrangements will have to be made. Yours, as before,
    “Alexander McClurg.”

      This letter is the one referred to in the next following.
    “ It is now about eighteen or twenty months since I had the, to me, extremely unpleasant duty to perform, of answering your note sent me through Dennis Breen, to which I have never received any reply. However, as I had the opportunity this week of hearing the marriage ceremony repeated, I asked myself, have I done all my duty ? And if my wife, who came under the same solemn obligations and vows to live together until death, has not performed hers, is there sufficient excuse for me ? The result has been, if it is an error, to err on the safe side, and make another effort of conciliation, and lay all feeling aside," however aggravated. My son Trevor was married on Wednesday, 26th inst., and would be pleased if I would take up house again, and he and his wife live with me. They have gone on a visit to St. Paul, Minn., to see his sister Caroline, and will return in about two weeks, as it is their intention to stop in Chicago a few days with Alexander. In the meantime, I would endeavor to get a house, in case you see proper to embrace the opportunity of the invitation to come to live with us, as from all accounts that come to my knowledge, you are now, or soon will be tired of keeping a boarding-house merely for the support of, and having your niece Lizzie G. living with you. I shall expect an answer to this as soon as possible.
    “Yours, &c., Alexander McClurg.”
    The facts of the ease are found in the condensed statement of testimony in the opinion of Mr. Justice Agnew.
    The Court of Common Pleas decreed as follows : — ■
    “ And now, March 3d, a. d. 1869, the court having heard this cause on libel, answer and testimony, and having fully considered and proceeded to determine the same, as to law and justice appertain, do grant unto the said Margaret McClurg, the libellant, a divorce from the bed and board of the said Alexander McClurg, the respondent; and having fully considered the circumstances of the said Alexander McClurg, the court allows to the said Margaret McClurg, the annual sum of twelve hundred dollars; her alimony to be paid by the said Alexander McClurg, in monthly payments of one hundred dollars on the 1st day of each month, and that the said Alexander McClurg give security, to he approved by this court, for the payment of said allowance.
    “ And it is further ordered that the said Alexander McClurg pay the costs of this proceeding.” h

    The respondent appealed to the Supreme Court and assigned for error:—

      1. Decreeing to the libellant a divorce from the bed and board of the respondent.
    2. Allowing to the said Margaret McClurg the annual sum of $1200 for her alimony.

      R. B. Roberts and B. F. Lucas (with whom was A. G. Lucas), for appellant.
    — Desertion is actual abandonment of matrimonial cohabitation with intent to desert: Ingersoll v. Ingersoll, 13 Wright 249. The husband has the right to designate the residence of himself and wife: Bishop on Marr. & Div. 788. Separation by consent is not desertion: 2 Id. 671. The wife’s refusal of the husband’s offer to renew cohabitation was desertion by her : 1 Id. 787. He had a right to prohibit the visits of the wife’s friends: 1 Id. 758. To constitute cruelty there must be actual violence or a reasonable apprehension of it: 1 Id. 717; Lockwood v. Lockwood, 2 Curtis 281; Tomkins v. Tomkins, 1 Swab. & T. 168; Richards v. Richards, 1 Grant 389; S. c. 1 Wright 225.

      S. Schoyer and T. M. Marshall, for appellee.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— In the year 1845, Alexander McClurg, an old man, a widower, and the father of a large grown-up family, married Margaret Caskey, a maid not young, yet of only half his years. The fruits of this ill-assorted match soon ripened, like Dead Sea apples, into ashes. Losses from unfortunate business connections, and crushing embarrassments, 'soured his temper and made him close and penurious. The means of .display withheld, and disappointed hopes, augmented by disagreements with his family, made. her unhappy and discontented. Disputes and bitterness ensued, followed by harshness, unkindness, and want of sympathy on his part, and all that unholy train of evils which mark an unequal marriage. As time sped on matters grew worse, and finally in June 1864,- Alexander McClurg separated from his wife, and has since continued apart from her. On the 9th of February 1867, Mrs. McClurg filed her libel for a divorce from bed and board, .and for alimony, on the grounds of a wilful and malicious desertion, without reasonable cause; and of such indignities offered to her person as rendered her condition intolerable and her life burdensome. After a full hearing, the court below granted the divorce, and decreed alimony to Mrs. McClurg in the sum of $1200. From this decree Alexander McClurg has appealed. The testimony is very voluminous; yet after a careful study of it, we cannot say that the court below committed any plain error. The desertion and its continuance are clearly proved, and so far as we can discover was without sufficient legal reasonable cause for it; while on the contrary he appears to have been actuated by perverse feelings, leaving the conclusion that his absence was wilful, and, in legal acceptation, malicious. This single ground is sufficient to support the decree, and it is ' therefore unnecessary to determine how far the conduct and • course of treatment pursued by him toward her are sufficient to establish the second ground of the libel, that he had offered such indignities to her person as to render her condition intolerable, and her life burdensome.

But it will be necessary to refer to the evidence on this point, in order to determine what weight,should be given to his offers to receive and provide a home for her, one of which was made before the proceeding for a divorce was begun, and ’the other during its proceeding. The evidence shows, that before her marriage Mrs. McClurg was a lively, pleasant, amiable and happy lady. She did not continue so many months after her union with Mr. McClurg. Her married life soon became full of trouble and discontent, her temper disturbed, and she was often found in tears. Taking the evidence as a whole, it would seem that he was unkind, spoke harshly at times, and uttered language to her in the presence of strangers, and even at the public table, calculate to wound and degrade a shrinking, sensitive mind, or to rouse one of a different temper to angry passion. A chief source of trouble between them was money. He accused her of extravagance, and she considered him penurious and stingy. He had been wealthy, but doubtless his circumstances for years demanded economy. But unless we conclude that she was base and dishonest beyond comparison, she did not receive sufficient means from him to provide for his large family and herself, while she expended all her own patrimony. The evidence is indubitable, that in her father’s lifetime she frequently came-to him, with tears in her eyes, entreating him for market money to supply the table; and-after his death her own fortune was expended in part, at least, in the endeavor to live. That she had a very ample estate, which diminished and finally vanished altogether under the incessant inroads made on her purse, is beyond denial. The attempt to show her extravagance by the bills, procured from the various persons with whom Mr. McClurg kept accounts, is only partially successful. . An examination of them, and of the testimony adduced-with- them, shows that many were general for the whole family,- while others show a separation between her accounts and his, plainly indicating that he suffered her to pay them herself, and evincing his own unwillingness to be charged with them; altogether corresponding well with the proof that she' expended her own estate largely in her own maintenance. The testimony of Dr. Fleming and Chas. H. Paulson, especially, exhibits not only an unwillingness of McClurg to pay debts for her of a proper kind, but a feeling also toward her very repulsive and calculated to wound and annoy. On many occasions his conduct was severe and unkind, especially at a time when death had entered the household and taken away her children, and was accompanied with a roughness evincing no sympathy or just appreciation of her relation to him. If the testimony of servants can be relied on, when her hoy was born, she was left quite alone, with no attention from his family, without the presence and countenance of her husband so much looked and longed for by a wife at such a time, and without a supply of little comforts which are the solace of sickness. From the same source we learn that her entertainments were few, and that she was but little the mistress of a house wSere his daughter more than shared her empire. If her sisters are credible, he was overbearing and penurious, denying her necessary comforts, disagreeing with her about her religion, refusing her relations permission to visit her, and shutting the door against them (with a single exception) while her boy was on a bed of long and languishing sickness. For four years she nursed him, often denied (they say) the delicacies necessary for his comfort, until he died a patient little sufferer; and even then the painful reminiscenses did not cease with death, but followed him to the cemetery, the sale of the cemetery lot and the removal of his remains. ' Doubtless many of these things had palliating causes, and some resulted from her own state of mind ; yet, when all are bound together into a single fagot of proof, they show that he was habitually unkind, and made her home uncomfortable and unhappy. This state of things, and this condition of feeling, must, therefore, be taken into the account in considering his offers to provide a home for her: May v. May, 12 P. F. Smith 212.

The offer contained in his letter of March 8th 1865, on its face refers to Mrs. McOlurg’s note of January 30th 1865, asking him his intention as to providing her a home. Plis reply of the same day (January 30th) displays a feeling on his part not adapted to invite her return to the same roof with him. Indeed he says in so many words: “ I have not, nor have I ever had, any intentions in the matter.” This is followed by the formal offer of the 8th of March 1865, in which he prefaces his. offer with a recital of grievances calculated rather to repel than to attract her. That was followed by another without date, but purporting to be written some eighteen or twenty months afterwards. The tone of this letter is rather kind, and displays much better feeling, and. had it not been both preceded and followed by bitterness and ill feeling, more weight would have been due to it. The next letter is the one signed by the counsel of Mr. McClurg, and dated August 10th 1868, during the pendency of the proceeding. It is, however, evidently the mere formality of legal instruction, and is combated by his own conduct too strongly to be looked upo» as a cordial and sincere invitation to a home. Just one week afterward, Mrs. McClurg, in company with S. McLain, Jr., called to see Mr. McClurg on the subject. Conversation had proceeded but a few minutes until he said something sharp to her, which brought her out also. A controversy arose, and in it he charged her with a want of truth, and he said he could expose her if he would. He went so far as to say that her sisters, Mrs. Irvin and Mrs. Jones, had sworn lies; that she herself and the Rev. Thomas Guthrie, L>. D., had told lies, and asked McLain if he knew that she was a church member, and then said she played cards on Sunday. His manner of talking, says the witness, was abusive of her and her connections, and he expressed the belief, in answer to a question, that they could not live harmoniously together. About this time, on the examination of a Mr. Murtrie, a witness, who testified that McClurg had said Mrs. McClurg was not honest and her word not reliable, McClurg interrupted him, saying, “ Yes, I said that, and I repeat it now.”

In view of all these facts we are not able to say that the court below erred in disregarding these offers to return. It was a question for the court, whether the offers were made in all due sincerity, and with an intention bond, fide to perform his marital duty. An unmeaning formality cannot always be accepted as a genuine act, It may have the hand of Esau, and yet betray the voice of Jacob. It must be remembered that the desertion was on his part, not hers, and was fully proved. Her right to a divorce from bed and board and a maintenance had been fully established, and it was not to be arrested by a merely formal offer of reconciliation, contradicted by all the evidence as to its motive and its good faith. If the court believed it to be insincere, as they evidently did, it was due to Mrs. McClurg to give her the benefit of the decree to which she was entitled, leaving the defendant to his remedy under the Act of 26th February 1817, by petition or libel to offer to receive and cohabit with her again, and to use her as a good husband ought to do. Then the case would be brought fully within the power of the court, and justice could be done to both parties. It would be subversive of all just administration of justice, if when a case is clearly made out against the respondent, entitling the plaintiff to a decree, he could avoid it by the mere magic of a few words, without evidence of their frankness, and of his intention to remove the cause of complaint in truth and sincerity of purpose. Analogies may be found in the following cases: Kinsey v. Kinsey, 1 Yeates 78; Hollister v. Hollister, 6 Barr 452; Breinig v. Breinig, 2 Casey 161; May v. May, 12 P. F. Smith 206.

' In respect to the alimony, however, we think the decree of the court below is not supported by the testimony. In view of McClurg’s present circumstances, the sum seems to be excessive. It is fully shown that he is the owner of valuable property held in the names of others, but it is also proved that the rentals of a large proportion are appropriated to the payment of creditors whose claims are fixed upon the estate. It would seem, taking all the evidence, that the annual profits or income of the property available to him lies between $2500 and $3000, the rest being appropriated to his debts. The Act of 1817 allows but one-third of the husband’s annual profits or income from his estate or his labor, as the maximum of alimony. Taking $2700 as the probable average income, one-third of that sum is $900, and is all that can therefore be allowed under the act at the present time. There is nothing to prevent a greater allowance hereafter, as his income shall be increased by the payment of the debts charged upon his estate, and to which his equitable title is subordinate, if an increase should be found to be necessary for Mrs. McOlurg. This can be effected by the terms of the decree itself. Breinig v. Breinig, 2 Casey 161, is not opposed to the exercise of this power. That was an appeal taken upon a trial before a jury, and the question in this court arose upon exceptions to the ruling of the court on the trial, the orders made during the progress of the proceeding, and the decree founded upon the result of the trial. When, in discussing the exceptions to the alimony and expenses allowed, Black, J., remarked: “ If there be error in this, we have no authority to correct it,” he did not mean to deny the power of the' court to correct an error on this subject in a proper case. He evidently referred only to the state of the case itself, for he immediately added, “ There is nothing on this record, by which we can know whether the alimony was too much or too little.” It is to the expenses of litigation he referred afterward, when he said the amount is a question for the discretion of the court. The orders -which a court makes of expenses to be allowed to a wife, during the proceeding, are in their nature interlocutory and often made upon the hearing of oral testimony, and as a general rule are purely within the sound discretion of the court. An abuse of this 'discretion might be reached in order to effectuate justice. But the order for alimony is part of the final decree, and when brought up by appeal, with all the evidence, is necessarily the subject of the jurisdiction of this court. The Acts of 22d April 1822, and 16th June 1836 (Brightly’s Purd. 928), give express jurisdiction “ to examine and correct any and all manner of error of the justices, magistrates and courts of this Commonwealth in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas and proceedings, and thereupon to reverse, modify or affirm such judgments, decrees and proceedings, as the law doth or shall direct.” This authority cannot be taken away except by express terms or irresistible implication, note a, Brightly’s Purd. 928. And the act giving the appeal in divorce cases, says it shall be prosecuted in the usual manner, which is de novo on the testimony taken in the cause. The only exception is where a fact has been found by a jury trial according to the act, when this court will not re-try the fact: Andrews v. Andrews, 5 S. & E. 374. The evidence being ^before us on the appeal, we are hound to exercise the jurisdiction given to us, and to correct any error brought to our notice for review. Therefore the decree of the court below is affirmed, excepting as to the alimony allowed to the plaintiff, which is reduced to the annual sum of $900, with leave to move the Court of Common Pleas hereafter to increase the same upon sufficient cause to be shown, and the costs are ordered to be paid by the appellant.

Williams, J., dissented.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Ardesco Oil Co. versus North American Oil and Mining Co.
    1. A lessee, from a lessor whose premises were subject to forfeiture for non-payment of a coal royalty and other debts, much being in arrear, in consideration of the lease covenanted to pay the royalty in arrear and accruing rent and the other debts. Suit was brought on his covenant, he could not set off debts due by the lessor to him.
    2. A party may debar himself by agreement express or implied from pleading a set-off.
    3. A covenant being under seal an action upon it can be brought only in the name of the covenantee.
    4. Such suit may be for the use of those beneficially interested; the court will control the execution, so that the money shall be appropriated as agreed on.
    5. The sums to be paid to others were not rent, but were payable immediately or within a reasonable time, being the consideration, of the grant.
    6. The lessee by the covenant as between him and the lessor became the principal debtor and the lessor the surety.
    7. As soon as a surety’s obligation becomes absolute he may require the principal to exonerate him, although the creditor may not have demanded payment.
    8. Vesting a separate equity jurisdiction in the courts has not changed the rule that equity is part of the law of Pennsylvania and may be administered by common-law forms.
    9. The obligee in a bond to indemnify against claims may sue as soon as a claim is made, without waiting for judgment or even till a suit be commenced.
    10. A corporation unless expressly restrained by law has an unlimited power over its property and may dispose of it as fully as a natural person.
    11. An insolvent corporation may make an assignment for the benefit of creditors; the power may be exercised by its directors.
    12. Omne majus continet in se minus, applied.
    13. Reed v. Penrose, 12 Casey 214, remarked on.
    November 8d 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, XX

      Error to the District Court of Allegheny county: No. 63, to October and November Term 1869.
    On the 30th of May 1868, The North American Oil and Mining Company, for the use of Francis H. Macy, trustee of Josiah Macy’s sons, brought an action of covenant against The Ardesco Oil Company. The defendants pleaded non est factum, covenants performed absque hoc, set-off, payment with leave, and an additional plea denying the validity of the transfer by the legal to the equitable plaintiff of the lease sued on. '
    The facts of the case are as follows:—
    On the 13th of January 1858, E. F. Denny leased to J. F. Johnston, for fifteen years, a coal-right under a tract of land in Armstrong county, he to pay every six months one-third of a cent per bushel for the coal mined, and if the rent should be unpaid for thirty days after demand, the lessor might enter and the lease be forfeited. On the 1st of July 1859, the North American Company accepted the lease from Johnston “ subject to all conditions.” On the 11th of April 1866, the North American Company mortgaged the premises to Francis H. Macy, in trust for Josiah Macy’s sons, to secure a bond in the penalty of $150,000, conditioned for the payment of $25,000, with interest payable semiannually, and for all such further advancements as Macy’s sons should make to the company, with interest,, in the aggregate amounting to $75,000, with proviso that in default of payment of any instalment of interest for thirty days, the mortgage might be sued out.
    On the 1st of July 1867, the North American Company leased the premises to the defendants for two years:—
    “In consideration whereof the said Ardesco Oil Company agrees to pay and discharge all arrears of interest due and owing on a certain mortgage for $25,000, held by Josiah Macy’s sons against the party of the first part, together with all interest that shall accrue during the term of their lease. Also to pay and discharge all cash advanced by said Macys for insurance on the premises. Also to pay all arrearages of taxes due on the demised premises as well as all taxes that shall be assessed during the term of this lease. Also to pay all rents due on the demised premises to Mrs. Elizabeth F. Denny, and such as shall become due and payable on the same during the term of this lease. Also to pay whatever sums, if any, shall be due persons for labor on the premises. Also to keep the premises insured to a reasonable amount in some responsible insurance company during the lease.” * * *
    On the 9th of March 1868, the North American Company assigned all their interest in this lease to Francis II. Macy, trustee for J. Macy’s sons.
    The case was tried before Kirkpatrick, J.
    The plaintiffs gave evidence that “the consideration of the transfer of the lease to Macy was: the North American Oil and Mining Company were indebted to the Macys for money paid, and the mortgage spoken of, for interest due and unpaid, for insurance-money advanced by them and unpaid to them by the North American Oil and Mining Company. These formed the consideration of the transfer of the lease to the Macys. They were to credit the money received under the lease on the mortgage and other advances.”
    They gave evidence that the coal-rent due to Mrs. Denny, for coal on the 1st of January 1868, was $1026.74; that the defendants had paid no coal-rent; also that the president of the defendants knew of the mortgage, of the interest in arrear, of unpaid taxes, insurance advances, and Mrs. Denny’s rent; the North American Company had been frequently called on for taxes.
    They gave in evidence the amounts in detail of interest due on the mortgage, of taxes, of insurance and Mrs. Denny’s rent.
    The defendants offered in evidence, as set-off, a number .of notes due by the North American Company to third persons amounting to about $10,000, endorsed to the defendants, with proof that they owned them before the commencement of the suit; some of them before the assignment of the lease to Macy. The offer was rejected and a bill of exceptions sealed.
    They renewed the offer, with the additional offer that the North American Company was insolvent at the trial and when the suit was brought. This was rejected and a bill of exceptions sealed.
    The plaintiffs submitted these points which were affirmed :—
    3. Under the covenant of .the defendants to pay and discharge all arrears of interest due and owing on the mortgage, and all interest that shall accrue during the terms of the lease, they assumed the same liability which rested upon the North American Oil and Mining Company to Macy; that is to say, to pay within a reasonable time, or on demand, the arrears of interest and the accruing interest, according to the terms of the mortgage, and the defendants having failed and neglected to pay, have violated their covenant, and plaintiffs are entitled to recover all interest due and unpaid at the commencement of this action.
    ' 5. Under the covenant to pay the taxes, it was defendants’ duty to pay within a reasonable time, and if the jury believe the evidence of Joseph Myers and others, defendants have violated their covenant in this respect, and plaintiffs are entitled to recover all taxes unpaid at the date' of the lease of July 1st 1867, and all assessed since that date, and prior to the bringing of this action.
    6. The plaintiffs are entitled to recover the amount of the rent unpaid to Mrs. Denny at the bringing of this action, together with interest thereon.
    The defendants submitted these points which were refused:—

      2. The payments to be made by defendants are in the nature of rent, and no time having been fixed for the payment thereof, there was nothing due from the lessee to the lessor before the expiration of at least one year of the term. Accordingly, this suit having been brought prior to that time, plaintiffs cannot recover.
    3. If the last point be declined, then the covenants by defendants, the breaches of which are declared- on, were in the nature of agreements to indemnify the plaintiffs fro tanto. And the plaintiffs having given no evidence that they had been called on since the date of the lease to make payment, and there being no evidence or claim that they have paid the respective amounts against which they were thus indemnified, have failed to show special damages, and cannot in this suit recover more than nominal damages for the breach of said covenants.
    4. The equitable plaintiffs held the lease subject, to all equities between the legal plaintiffs and defendants at the time of bx’inging this suit.
    5. No sufficient authority has been shown for the execution of the lease in evidence, and the said lease as a deed was null and void. The only rights arising to the plaintiffs would be for the use and occupation of the premises by the defendants.
    6. The board of directors of the North American Oil Company had no power or authority to make the lease, upon which this suit is brought.
    7. The plaintiffs cannot in this suit recover more than nominal damages for breach of the covenants to pay the rent due Mrs. Denny or the interest due Macy.
    The verdict was for the plaintiffs for $9202.61.
    The defendants removed the case to the Supreme Court, and assigned for error:—
    1 and 2. The rejection of their offers of evidence.
    3-8. The refusal of the defendants’ points.
    9-11. The affirmance of the plaintiffs’ points.

      H. Burgwin, for plaintiffs in error.
    — The payments to be made to Mrs. Denny and the Macys, under the lease to the defendant, were rent: Raed v. Knox, 1 Am. Law Jour. 635. No time being fixed for its payment, it was payable yearly: Menough’s Appeal, 5 W. & S. 432 ; Boyd v. McOombs, 4 Barr 148. At most, the lease was a contract of indemnity, but the Macys and Mrs. Denny had not proceeded, and there was no damage incurred: Sedgwick on Damages 311. If the company could not become owner of the notes, this coxxld not be taken advantage of against the notes : Coil v. Pitts. Eem. College, 4 Wright 439; Goundie v. Northampton Water Co., 7 Barr 233: McFarlan v. Triton Ins. Co., 4 Denio 392; Farmers’ Loan & F. Co. v. Perry, 3 Sandf. Ch. 339; Barker v. Michigan Ins. Co., 3 Wend. 94; New York Ins. Co. v. Sturges, 2 Cowen 664 ; Potter v. Bank, 5 Hill 490; Angell & Ames on Corp. § 261-271.

      E. S. Golden and J. K. Kerr, for the defendants in error.
    After the assignment the defendants could not purchase claims against the North American Co.:. Struthers v. Brown, 8 Wright 469; Blair v. Mathiott, 10 Id. 262. The offer was properly rejected as a whole: Sennett v. Johnson, 9 Barr 335. The defendants had no power to purchase the notes : Penna. Railroad v. Canal Commissioners, 9 Harris 9. They were precluded, by the terms of the lease, from purchasing the notes: Steamship Co. v. Heron, 2 P. F. Smith 282; Abbott on Corp. 418, pl. 11. The possession of the notes at the trial is no evidence when they were purchased: Smith v. Myler, 10 Harris 36; Speer v. Sterrett, 5 Casey 194. An action could be brought before the person indemnified had been sued or paid the money: Miller v. Howry, 2 Penna R. 374; Bank v. Douglass, 4 Watts 95. The defendants having enjoyed the benefits of the lease, cannot deny the power of the lessor tmake it: Howard v. Murphy, 11 Harris 173.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— The 1st and 2d errors assigned are to the rulings of the learned judge below in excluding the offer of the defendants to prove a set-off, consisting of promissory notes of the plaintiffs, past due and originally drawn in favor of third persons, and by them endorsed to the defendants. Waiving the consideration of other objections made to the admission of this evidence, we think that it was rightly rejected because clearly precluded by' the terms of the lease sued upon. That a party may be debarred from availing himself of the Act of Assembly about defalcation by an agreement not to plead it, either express or implied, has been adjudged by this court in Henniss v. Page, 3 Whart. 275; Bank of the United States v. Macalister, 9 Barr 475; Reed v. Penrose, 12 Casey 214. So far as this question is concerned, the court in the case last cited may be stated to have been unanimous, for, although Mr. Justice Strong thought that the contract in that case did not, by implication, prevent the defendant garnishee from setting up his claims against the company as an answer to the attachment of another of their creditors laid upon the money in his hands, yet he admitted, in clear and distinct terms, the general principle as stated. “This right of defalcation,” said he, “is a legal right, secured to a defendant in all cases where he holds demands against a plaintiff, due in the same right and due at the time when the suit was commenced against him. I agree that he may, by express contract, preclude himself from pleading -a set-off. Such a contract, founded on consideration,- would bind'him. This I understand to he the principle of Henniss v. Page, 3 Whart. 275, and, I think, a defendant may also debar himself from using a set-off by a contract not express. Thus, if he receives money delivered to him for his application to a particular use, his receipt may amount to an agreement not to apply it to any other use, and, of course, not to his own, by pleading a set-off.” The example thus stated of an agreement necessarily implied is in effect the very case now before us. The defendants bound themselves to apply the consideration they were to pay for the grant of the lease to a particular use, and they cannot apply it to any other use, and, of course, not to their own in payment of the promissory notes which they have bought up and hold. The covenant contained 'in the lease was that the consideration should be paid to certain creditors of the lessors who held encumbrances upon the leased premises. It was for the purpose of relieving it from these liens. Had a. clause been added that it should not be applied to any other debts, it would not have been stronger by such express agreement than that which was thus necessarily implied. The covenant being under seal, the action could only be brought in the name of the covenantees, as was held in De Bollé v. The Penna. Ins. Co., 4 Whart. 68; yet it may be sued and recovered upon to the use of the parties to whom the money was to be paid, and the court will so control the execution upon the judgment as that it shall be eventually appropriated as agreed upon.

The 3d error assigned is to the refusal of the learned judge to charge as requested in the defendants’ 2d point, that this suit had been prematurely brought, because the obligation to pay by the defendants did not accrue and become due until the expiration of the term granted by the lease. This proposition proceeds upon the idea that the payments stipulated to be made were in the nature of rent, and no time being expressly fixed were not payable until the land had been enjoyed. But it is very evident that the covenant to pay these debts was an immediate one, for they were then already due, and the very object of the stipulation was to save the property from being proceeded against and thus lost to the lessors. The covenant was the consideration for the grant of the lease and not for the enjoyment of the property. When a lease is granted with the reservation of only a pepper-corn or nominal rent or with no rent at all, the consideration may lawfully be and usually is a sum of money paid in cash. There is nothing to prevent it from being to be paid at a certain time in the future, or as here without any time, which is either that it shall be paid forthwith or in a reasonable time — it matters not which, so far as this case is concerned. It was not reserved as rent, and it is very plain that the parties did not so intend it.

The 4th, 8th, 9th, 10th and 11th assignments of error may be considered together. They are all grounded upon the position that the covenant sued upon was one of indemnity merely, and the plaintiffs not having shown that the encumbrances had been enforced against the property or that they had been compelled to pay them, they had suffered no actual damage, and therefore could recover at most but a nominal sum. The answer to this position is twofold. The covenant in its terms was a direct and absolute engagement to pay at once or within a reasonable time, and the^ lessees not having done so it was broken, and the covenantees as the legal plaintiffs could recover the whole amount to the use of the creditors to whom the amount had been specially appropriated by the agreement. But even supposing it to be an indemnity merely, we must regard the lessees by their absolute engagement to pay as assuming the place of principals while the plaintiffs became sureties merely. Though as to the creditors the plaintiffs remained principals, as between them and the defendants they were sureties. Then it is well settled that as soon as the surety’s obligation to pay becomes absolute he is entitled in equity to require the principal debtor to exonerate him, and he may at once file a bill to compel an exoneration, although the creditor has not demanded payment from him: Beaver v. Beaver, 11 Harris 167. Equity is part of the law of Pennsylvania, and is administered through common-law forms; for the greater period of her history could only be so administered. The vesting of separate equity jurisdiction in the courts has not changed the law in this respect. Hence on a bond or covenant to indemnify against claims the obligee is entitled to sue as soon as a claim is made and need not wait until judgment is recovered against him or even until an action is commenced: Miller v. Howry, 3 Penna. R. 374; Bank v. Douglass, 4 Watts 95; Stroh v. Kimmel, 8 Watts 157; Leber v. Kauffelt, 5 W. & S. 440; Carman v. Noble, 9 Barr 366.

The 5th assignment of error complains of the refusal of, the court to affirm the defendants’ 4th point, which was “ that the equitable plaintiffs held the lease subject to all equities between the legal plaintiffs and defendants at the time of bringing this suit.” In the abstract this proposition was certainly true, but it was entirely irrelevant to any question before the jury. No evidence had been given of any equities, unless the defendants considered their alleged set-off to be. such, and that as we have seen was no equity at all; for the defendants had precluded themselves by their own agreement from setting it up against the legal plaintiffs.

The remaining errors complained of in the 6th and 7th assignments may be considered together: namely, that the directors of the corporation, plaintiffs, had no power to make the lease sued on. It is supposed that a company chartered for the purpose of manufacturing and refining oil cannot lease its entire property and so defeat the very purpose for which its charter was granted. But corporations, unless expressly restrained by the act which establishes -them or some other Act of Assembly, have and always have had an unlimited power over their respective properties, and may alienate and dispose of the same as fully as any individual may do in respect to his own property. Hence an insolvent corporation may make a general assignment for the benefit of its creditors, and this power may be exercised by the directors, unless special provision to the contrary is made in the charter : Dana v. The Bank of the United States, 5 W. & S. 223. If they can alienate absolutely, they may lease, which is but a partial or temporary alienation. Omne majus continet in se minus.

Judgment affirmed.


author: Read, J.

text:
    Ewing and Wife versus Thompson, Administrator.
    1. An action may be maintained for breach of a parol contract for the sale of land, but the measure of damages is the actual consideration passing between the parties.
    2. If the consideration be services, they are to be compensated according to their value; if money, the amount with interest.
    3. The value of a parol bargain for the sale of land is not the measure of damages for its breach.
    4. In an action for'breach of a parol contract to give land, the whole contract may be proved, but not the value of the land.
    November 3d 1870.
    Before Thompson, O. J., Read, Asnew, Sharswood and Williams, JJ.
    Error to the’District Court of Allegheny county: No. 120, to October and November Term 1869.
    This was an action 'of assumpsit brought, January 7th 1868, by John M. Ewing and Sarah his wife in her right, against Alexander B. Thompson, administrator, &c., of Daniel Morgan, deceased. The declaration alleged a special contract between Mrs. Ewing and the decedent in his lifetime, that if she would keep house for him and nurse him during his life, he would leave her the farm on which he lived, and averred performance on her part; the breach was that he did not leave her his farm. The declaration did not contain the common counts.
    On the trial, June 2d 1869, before Kirkpatrick, J., the plaintiffs made the following offers of evidence:—
    1. To prove that Daniel Morgan in his lifetime made a contract with plaintiff Sarah Ewing, by which he stipulated and agreed that if said Sarah would come to his house and live with him, nurse him, care for him during his lifetime, as a compensation for her services he would give her the farm on which he then resided, and that in pursuance of said contract, with the assent of her husband, they, Ewing and wife, moved to the house and farm of Morgan, nursed, cared for him and provided for him during his lifetime, and in all things fulfilled and performed the contract on their part up to the time of his, Morgan’s, death: for the purpose of shoioing the value of the contract and consideration thereof on which the services were rendered by plaintiff.

      2. To prove the contract under which-plaintiff entered into the service of Daniel Morgan, deceased, and the services rendered under that contract, the situation of plaintiff at the time of the making of the contract; the sacrifices she made to fulfil the same: for the purpose of enabling the jury to ascertain the value of plaintiff’s services to Daniel Morgan, deceased, and the damage sustained by the plaintiff, by the non-fulfilment of the contract.
    3. To prove the contract between plaintiffs and decedent, as declared on; performance on part of plaintiff; breach on part of defendant.
    This for the purpose of showing thetplaintiffs’ cause of action.
    All the offers were rejected and several bills of exceptions sealed.
    The court then directed a nonsuit to be entered.
    The plaintiffs, on a writ of error by them, assigned for error the rejection of their offers, and entering the nonsuit,

      N. P. Fetterman (with whom was T. B. Hamilton), for plaintiffs in error.
    — The Act of Assembly does not make a parol agreement, for the sale of land, void; an action will lie to recover damages for the breach of it: Bell v. Andrews, 4 Da-11.152; Ewing v. Tees, 1 Binney 450; George v. Bartoner, 7 Watts 530 ; Allen’s Estate, 1 W. & S. ’383; Thurston v. Franklin College, 4 Harris 154; Moore v. Small, 7 Id. 467; Hastings v. Eckley, 8 Barr 194; Dumars v. Miller, 10 Casey 319; McNair v. Compton, 11 Id. 23 ; Bender v. Bender, 1 Wright 420; Jack v. McKee, 9 Barr 235; Bash v. Bash, Id. 260.

      B. Woods, for defendant in error.
    — The plaintiff had the right to recover for her services, but had no right to show to the jury that she had lost a good bargain as to land, to induce them to give more than her services were worth: Graham v. Graham, 10 Casey 475; Dumars v. Miller, 10 Id. 319; Burlingame v. Burlingame, 7 Cow. 92; King v. Brown, 2 Hill 485; Hertzog v. Hertzog, 10 Casey 432.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— It is much to be regretted, that the 5th section of the act for the greater certainty of title, and more secure enjoyment of real estate, passed the 22d of April 1856, was repealed by the Act of 13th of May 1857. A state with three millions and. a half inhabitants, with railroads connecting her most distant points, and a common school system pervading the whole Commonwealtb, is certainly prepared to require that all contracts for the sale of land shall be in writing, In allowing actions for damages, on verbal contracts, for the sale of lands, we differ not only with the law of England, but I believe with the law of every other state in the Union. A policy thus universal must be right, and we thought so for one yéar.

By our law such an action may be sustained, but the measure of damages is the actual consideration passing between the parties. If the consideration were services rendered, they are to be compensated according to their value — if moneys, received, they are to be returned with interest. But the value of the bargain is not the measure: McNair v. Compton, 11 Casey 23.

This question was the subject of so thorough and exhaustive an examination, by Woodward, J., in his opinion in Malaun’s Administrator v. Ammon, reported in 1 Grant’s Cases 123, and also in 10 Casey 423, the principles of which were adopted by the Supreme Court in Hertzog v. Hertzog’s Administrator, 10 Casey 418, that it is unnecessary to enter into them. This case was followed by Dumars v. Miller, 10 Casey 319 ; Graham v. Graham’s Executors, Id. 475, Strong, J., delivering the opinion, and McNair v. Compton, 11 Casey 23, and is the settled law of the state.

It was therefore open to the plaintiffs to prove the contract between Daniel Morgan and Sarah Ewing, and of course all its terms. The value of the land was irrelevant, as it did not enter into the question of damges, the measure of damages being the value of the services rendered by her.

The court were therefore clearly in error in rejecting the 3d offer to prove the contract between the parties. The proof of the contract cannot in any manner affect the measure of damages, which is settled by the law of the land.

The plaintiff should not have been nonsuited.

Judgment reversed, and a venire de novo awarded.


author: Williams, J.

text:
    Heastings versus McGee.
    1. When the vendor of personal property makes fraudulent representations or is'otherwise guilty of fraud in the contract, the vendee may stand to the bargain and recover damages or may rescind the contract and recover the money paid.
    2. Where there is an actual disaffirmance by the vendee the title to the property is revested in the vendor.
    3. In cases of fraud the vendee alone has the right to disaffirm the contract.
    4. An affirmance of a contract with knowledge of the fraud of the vendor, merely extinguishes his right to rescind the sale.
    5. Á count for damages for the fraud and one for a rescission of the-contract are repugnant.

      6. The vendee bought a horse which was fatally diseased, the vendor knowing it. In an action for deceit it was not necessary to prove an offer to return the horse.
    November 3d 1870.
    Before Thompson, O. J., Read, Agnew, Shaeswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 128, to October and November Term 1870.
    This was an action on the case for deceit, commenced November 20th 1868, by Joseph Heastings against John McGee.
    The declaration contained but one count, viz., “that the defendant was the owner and possessor of one horse, which, if sound, was of the value of $100, but which said horse had a dangerous, contagious, incurable disease called glanders, which the said defendant then and there we'll knew, and which said disease rendered ^valueless and unfit for sale, and a dangerous common nuisance; and the said defendant, craftily and subtlely, contriving and intending to cheat and defraud the said plaintiff in that behalf, did offer said horse to the said plaintiff for sale, and by deceitfully, fraudulently and unlawfully concealing the fact that said animal had said disease, and fraudulently representing to said plaintiff, and inducing him to believe that said animal was of usual and ordinary health and soundness, induced said plaintiff to buy said horse, and for the same then and there, by the means aforesaid, procured from said plaintiff the sum of $100 as the price and value of the horse aforesaid, &c., to the damage of the plaintiff,” &c.
    The plaintiff gave evidence, to show that the horse had the glanders incurably, that the disease was contagious, and that after keeping him some days he had him killed.
    There was no offer to return the horse.
    The defendant requested the court to instruct the jury that the plaintiff having failed or neglected to offer to return the horse to the defendant, but on the contrary having retained and destroyed the animal without having made any such offer, cannot maintain this action for the purchase-money.
    The court (Hampton, P. J.) reserved the point, and charged the jury “ that if they believe the horse in question was fatally diseased at the time of the sale, and that the defendant knew it, then the plaintiff is entitled to recover the amount paid for the same, with interest from the time of sale; and if they find for the * plaintiff they will so find, subject to the opinion of the court on the question of law reserved.”
    The jury found for the plaintiff $103.50.
    The court in banc afterwards entered judgment for the defendant on the point reserved non obstante veredicto.

      J. Barton, for plaintiff in error.
    — The action was for deceit in the sale; a return was not necessary: Borrekins v. Bevan, 3 Rawle 23; Fraley v. Bispham, 10 Barr 320; Carson v. Baillie, 7 Harris 375; Lord v. Grow, 3 Wright 88.

      A. M. Brown, for defendant in error,
    cited Pearsoll v. Chapin, 8 Wright 9; Turnpike Co. v. Comm’rs, 2 Watts 433; Staines v. Shore, 4 Harris 200; Dewey v. Erie, 2 Id. 211; Roth v. Crissy, 6 Casey 145; Summers v. Ritchie, Id. 147 in note; Hilliard on Sales 317, 319; Hopkins v. Appleby, 1 Stark. 477.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— This was an action on the case for deceit in the sale of a horse. The jury found, under instructions of the court, that the horse was fatally diseased at the time of the sale, and that the defendant knew it, and assessed the plaintiff’s damages at $103.50, subject to the opinion of the court on the question of law reserved, viz., Whether the plaintiff;* having failed or neglected to offer to return the horse to the defendant, but on the contrary having retained and destroyed the animal without having made any such offer, can maintain this action for purchase-money ? On the hearing of the reserved question, the court directed judgment to be entered in favor of the defendant non obstante veredicto, which is the error assigned here. Where the vendor of personal property makes fraudulent representations in regard to its value, or is otherwise guilty of fraud in making or performing the contract, the vendee has his election of remedies for the injury; he may stand to the bargain, even after he has discovered the fraud, and recover damages on account of it, or he may rescind the contract and recover back what he has paid: Sedg. Dam. 296; 2 Kent’s Com. 480 note a; Westin v. Donnes, Douglass 23; Torrers v. Barrett, 1 Term R. 133; Boorman v. Jenkins, 12 Wend. 566; Waring v. Mason, 18 Id. 425; Whitney v. Allaire, 4 Denio 554. In the case last cited, Jewett, J., says: “ A return of the property to the vendor, or an offer to return, is in no case necessary, except to enable the vendee to withhold or recover back the price. When there is an actual disaffirmance of the contract, the title to the property is revested in the vendor. In all cases of fraud, the vendee, who alone has the right of disaffirmance, may remain silent, and bring his action to recover ^damages for the fraud, or may rely on it by way of defence to the actio® ,of the vendor, although there has been a full acceptance ;foy him, with knowledge of the defects in the property. An affirmance of the contract by the vendee, with such knowledge, merely .extinguishes his right to rescind the sale. His other remedies remain unimpaired. The vendor can never complain that the .vendee has not rescinded. The distinction between these two forms of .action, as a remedy for the fraud, is recognised in JPg.arsoll v, .Qhanin. .8 Wright 9, the case mainly relied on by the court below to sustain its ruling of the reserved question. There the action was assumpsit to recover back the price paid for the land, and it was held that the vendee must first tender a reconveyance. And why ? Because his action was in disaffirmance of the contract, and ‘he must show that he had rescinded it by doing all that was necessary and reasonably possible to restore the parties to the condition in which they were before the contract.’ ” If he has done this, he may waive his action of tort for the fraud, and sue in assumpsit for the money which he paid on the contract. But “he who sues for damages for the fraud,” say the court, “ affirms the validity of the contract: 2 Ship. 364; 4 Denio 554; or who knowingly accepts and retains any benefit under it: 7 S. & R. 63; 7 W. & S. 125; 23 Mo. 168; or who uses the property as his own after the discovery of the fraud: 13 B. Mon. 172; 22 Ala. 249.” And therefore it is, that a count for damages for the fraud, and one for a rescission of the contract, are repugnant. Here the declaration is not in assumpsit to recover back the price paid for the horse, but in case to recover damages for the alleged deceit, and, as the authorities show, the plaintiff was not bound to offer to return the horse before he could maintain the action. The court therefore fell into an error in deciding that he .was not entitled to recover because he had not offered to return the horse. The attention of the learned judge does not seem to have been directed to the pleadings, and he was doubtless led into the error of treating the case as an action of assumpsit to recover back the price paid for the horse by the form in which the point was presented and the question reserved. The judgment must therefore be reversed, and the cause sent back to be tried on the issue formed by the pleadings.

The gist of the action is the alleged fraud and deceit of the defendant in inducing the plaintiff to buy the horse, believing him to be of usual and ordinary health and soundness, and the plaintiff’s right to recover turns on the question whether the defendant was guilty of the fraud and deceit with which he is charged. If he was not, the plaintiff is not entitled to recover, though the defendant may have known that the horse was fatally diseased at the time of the sale.

Judgment reversed, and a venire facias de novo awarded.


author: Agnew, J.

text:
    Tilton versus Miller & Co.
    1. The difference in the result produced by a model and its imitation is corroborative of a difference between them.
    2. The rule is especially applicable to things known only to experts.
    3. A fact which directly proves the truth of an assertion may be adduced to corroborate and confirm it.

      4. Where the question is, was an article made according to a model, its want of power to produce the same result is evidence that it was not so made.
    November 4th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 94, to October and November Term 1869.
    This was an action of assumpsit, brought July 3d 1868, by Edward Miller & Co. against J. U Tilton.
    The declaration was that the plaintiffs, on the 7th of February 1867, contracted to make for the defendant 1000 dozens No. 0 gas generating burners, as per sample shown by the defendant, at' the rate of $2 per dozen, and tools for No. 1 burners at the regular prices — No. 0 to he delivered in part by March then next, the others April 1st — charges to be made as then agreed upon; that the plaintiffs had always been ready to deliver the articles according to the contract, and had delivered part; the defendant refused to pay for them.
    The defence was that the burners were not according to the sample and would not generate gas, &c.
    The case was tided February 15th 1869, before Kirkpatrick, J.
    The plaintiffs gave in evidence the following letter :—
    “February 7th 1867.
    “ Messrs. E. Miller & Co.
    “ 'Gents: Please make the following named goods at the price named :
    “ 1000 doz. 0 gas generators, as per sample, at $2 per dozen.
    “ Also, tools for No. 1 gas generator burner, as per sample shown, at regular prices for making tools. Changes to be made as this day agreed upon. The No. 0 to he delivered in part by the 1st of March, and the No. 1 about the 1st of April.
    “J. C. Tilton.”
    They then gave evidence by J. J. Marcey that a sample had been sent them; the defendant was at their works and suggested some should be made of brass ; that afterwards defendant wrote, under date of February 16th Í867, “ the model burner which you sent by express came to hand to-day. I have just examined it, and am pleased with it; with a little alteration, it will answer the purpose, just as I want itand, after specifying the alterations, proceeded, “ I do hope you will make the generators on the above plan, instead of the way we were talking,” &c.
    Witness testified that defendant’s agent, sent by him for the purpose, had tested the burner and found it right, and told the plaintiffs to go on. They manufactured 1000 dozens. All the alterations were made at the defendant’s suggestion. They shipped 117 dozens up to April 18th. On the 23d they received a telegram to “ ship no more.” They continued to ship till May 31st, the amount then being 746 dozens, of which 100 dozens were afterwards returned. The plaintiffs’ claim, as filed, was for $1292. The plaintiffs gave in evidence a number of letters from defendant, for the purpose of showing that alterations to the sample had been directed by the defendant, and evidence that the burners had been made according to the directions.
    The defendant called M. M. Tilton, and proposed to ask him, “ whether the burners sent by plaintiffs to defendant worked as well and produced the same results as to burning as the sample of January 2d 1867, contract sample;” also to prove by him, “ that those burners, made by the plaintiffs and sued for in this action, would not generate gas, and that the sample would; for the purpose of showing that the plaintiffs have failed to fulfil their contract.” Also, “ that he personally knows the sample sent January 2d 1867, being the same mentioned in the contract of February 7th 1867; that the same was made by the Whiting Co., of New York; that it worked well; that it was one of many thousands made by said Whiting Co., all of which worked well.
    “ To be followed by evidence that the generators made by plaintiffs sued for in this case did not correspond with the sample in manner or form, and did not produce the results which the contract sample did.”
    These offers were rejected, and several bills of exception sealed.
    The defendant exhibited samples of the different burners, and the witness pointed out the difference in them; testified that the Miller burner was tin — the Whiting, brass; the Whiting was bell-mouthed — the other, not so; the chimneys different in size and mode of fastening; wick tubes different from the sample; he stated and exhibited many other particulars in which the burners differed.
    There was other evidence by both parties.
    A number of points not necessary to particularize were submitted on both sides.
    The judge, in his general charge, said: — ■

      * * * “ The questions involved are two—
    “ 1. What, from all the evidence in the case, was the sample ?

      “ 2. Did the plaintiffs manufacture and deliver to the defend ant, in accordance with the terms of the contract, generators which were counterparts or fac similes of the sample so delivered ?
    “ If they did, they are entitled to recover the whole amount of their claim, as you, from all the evidence submitted to you, may find it to be. If they did not, they are not entitled to recover the whole or any part of their claim, and your verdict must be for the defendant.
    “ Such, we instruct you, is the rule of law by which you will determine a verdict, from all the facts in the case, as .you may find them.
    “ In determining what was the sample, you must, as already intimated by us, take all the evidence in the case. Whether you will find it'in the sample simply, as originally sent, or in that sample modified and changed by subsequent action of the defendant or his agent, by personal suggestion, or by letters, we leave you to determine. You will take all the testimony, and no fragmentary part or parcel of it, in arriving at this important and controlling conclusion.
    “ Having thus, by the test or rule we have just laid down, discovered, to your satisfaction, what the 11 contract sample ’ — for so, for the sake of simplicity, we may call it — really was, your next and equally important inquiry will be :
    “ Did the plaintiffs manufacture and deliver to the defendant a counterpart, a fac simile, an article corresponding, in all respects and particulars, with that which you may have found the ‘ contract sample’ to have been ? If they did, as already stated, they are entitled to recover; and if not, they are not, and your verdict must be for the defendant.
    “ It is possibly enough for us to lay down these rules to you for your guidance, without more by way of explanation, being answerable elsewhere for our errors, if any we commit in so doing.
    ' “We will, however, add that these rules so submitted by us are founded as well upon authority as upon reason and common sense.” * * *
    The judge then referred in detail to a number of authorities, in support of his instructions.
    The verdict was for the plaintiffs for $1417.97.
    The defendant took out a writ of error.
    He assigned sixteen errors to the answers of the court to the points and to portions of the general charge.
    The 12th was, “Reading to the jury the quotations from authorities set forth in the charge, and applying them to the case.on trial.”
    The 15th, 16th and 17th were respectively to the rejection of his offers of evidence.

      T. Schoyer and C. B. M. Smith, for plaintiff in error.

      J. H. Hampton (with whom was A. H. Miller), for defendants in error,
    cited on the 17th error: Addison on Contracts 231; Ollivant v. Bayley, 5 Ad. & Ellis, N. S. 288; Chanter v. Hopkins, 4 M. & W. 399; Carnac v. Warriner, 1 O. B. 356; Mason v. Chappel, 15 Grattan 72; Misneru. Granger, 4 Gilman 69; Getty v. Rountree, 2 Chandler 28; Brown v. Murphee, 31 Miss. 91; Kellogg v. Denslow, 11 Conn. 411.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— A careful examination of the sixteen errors assigned to the charge of the learned judge of the District Court, and his answers to the points, brings to light no material error in his instruction to the jury. An elaboration of authorities to a jury is not useful, and sometimes tends to confuse, but here the judge so clearly stated the points for the attention and examination of the jury, it does not seem probable they .could have been misled by the detailed reference to authorities. It is not necessary that a judge should encumber his charge with a discussion of the law, but rather to give definite instructions to the jury; the Act of Assembly allowing him to furnish his reasons, which he may always subjoin if explanation be necessary.

This was a contract to make 1000 dozens of gas generators as per sample at $2 per dozen. The judge was therefore clearly right in instructing the jury to ascertain first what was the contract sample. There was evidence tending to show that alterations had been made in the sample at the request of the defendant. He was therefore right also in directing the jury to ascertain from the evidence whether the sample was so altered, and if so, what the alterations were, and thus to arrive at the- true contract sample — the model by which the plaintiffs were to make the gas generators called for by their contract. He was right in directing them to determine upon the evidence whether the gas generators made by them for the defendant corresponded with the sample, and if they did, the plaintiffs thereby fulfilled their contract and were not responsible for the result — that is for the operation of the generator. They did not contract to make an * article which would produce a certain result, but only to make one to correspond exactly with the proposed model. If this were done fully and fairly their whole duty was performed, and they had a right to recover for so many as they had made and delivered according to their contract.

Admitting then the correctness of this instruction, and that the learned judge was right in ruling that correspondence between the article made and the sarhple was the true and only question, and that the maker is not liable for the result expected to be produced, was he right in his rulings on the evidence ? Is there no difference between the liability of the maker for this result, and the evidence which the result affords of a want of correspondence between the thing made and the model ? Clearly there is a marked distinction between the propositions. A result or effect produced may be most convincing corroborative evidence of a difference between the model and the imitation. Especially is this true of those things which lie out of the range of ordinary observation, and -are known only to experts. The expert may be called to prove the actual difference, but when this is done, it does not follow that the legal measure of proof is full. A fact which directly proves the truth of an assertion may undoubtedly be adduced to corroborate and confirm it. If an expert state a fact which cannot be appreciated by ordinary observation, and state it to a body of unskilled men (such as a jury is) the force of his statement depends wholly upon his skill and his credibility, and has nothing in the common sense of the jury to confirm it. When he declares that there is a material and substantial difference between two subjects of comparison, and if one of them will produce a desired and expected effect, and the other will not, why shall not this practical test of the difference, to wit, the result produced by each, be given in evidence to corroborate and confirm his statement ? It is no answer to say that the maker is not liable for the result of an article he makes according to the model, for that is not now the question. The question is, did he make it in conformity to his model, and clearly its power to perform the same result as the model, is evidence tending to show he did so make it, while its want of power to do so, is evidence tending to prove the contrary.

If a delicate piece of mechanism, such as a watch having a certain movement, be the model, and can be shown to run well, and if the imitation watch be proved to differ from the model in certain respects alleged to be essential to its successful operation, why shall the party not be permitte’d to show in corroboration of these departures from the model, that the imitation watch will not keep time, or will not run at all ? Can anything be more corroborative of the skill and truthfulness of the witness who asserts these differences between the watches ? Such is the .precise case before us. Here is a gas generator intended to produce a certain effect upon a subtle fluid, and to convert it into gas by means of heat; an article unknown to the jury; peculiar in its structure, and whose laws of action, even an expert may find it difficult to explain. Why should not the party, after showing departures in form and structure in the imitation from the model, be permitted to show that the model will produce a certain effect which the imitation will not ? Is it not strong evidence that the differences pointed out are real and substantial, and therefore not to be overlooked and disregarded by a jury -who may not, for want' of skill in the particular matter, be able to discern the deviation of the imitation from tbe sample. The defendant below made several offers of evidence to prove by the results the difference between the sample and the generators manufactured by the plaintiffs, all of which were overruled by the court on the general ground of incompetency and irrelevancy. The one set forth in the 17th assignment of error is the only one that need be noticed. The offer was to show by the witness that he knew personally the sample and its successful operation, and then to show that the generators made by the plaintiff did not correspond with the sample in manner or form, and that they did not produce the results which the contract sample did. The court rejected the latter part of this offer. The defendant not only offered but did prove the former part of the offer, by producing a sample and then pointing out the differences in manner and form of that made by the plaintiffs. The Whiting, or sample, is bell-mouthed in the perforated case, the Miller & Co. is not. In one the chimney is movable, and in the other it is not. In one the burner tube is long, in the other it is short. The wick tube of the Miller & Co. did not correspond with the wick tube of the contract sample, one being shorter than the other; and an entire difference in the mode of fastening them on. The witness mentioned other differences also. Now as the jury have found that the generators made by the plaintiffs were made according to the sample, it is evident they either disbelieved this witness, or 'supposed the differences described by him were unsubstantial and immaterial. But suppose the defendants had been permitted to corroborate the testimony of the witness by showing that the Whiting or sample generator would perform well the intended purpose, and that the plaintiffs’ would not, and failed to generate gas for illumination, who can say that this important corroborating fact would not have turned the scale and caused the jury to render a different verdict on this question of fact, whether the generators were really made alike ? This refusal of the court to receive the evidence as offered, was therefore an error, and the judgment is reversed and a venire facias de novo is awarded.


author: Thompson, C. J.

text:
    The Cleveland and Pittsburg Railroad Co. versus Rowan and Wife.
    1. In an action for death by negligence, it is not necessary in the first place to disprove contributory negligence in the deceased.
    2. If negligence appears by the plaintiff's testimony the defendant may rest upon it.
    3. Love of life and the instinct of preservation being the highest motive for care, they will stand for proof of it, until the contrary appear.
    4. The statutory rule since the Act of April 4th 1868 is that exemplary damages cannot be recovered, but only compensation for loss which, has been pecuniarily suffered.
    5. Whether the statute applies to injuries not resulting in death, damages for which are a common-law right, not decided.
    6. Damages for death are exclusively statutory and are capable of restriction and limitation by the legislature.
    7. In an action by a parent for the death of a child, damages may be recovered for nursing, medical expenses before death and funeral expenses.
    November 4th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 131, to October and November Term 1869.
    This was an action on the case commenced, November 24th 1865, by Samuel Rowan and Margaret his wife in her right, against the Cleveland and Pittsburg Railroad Company, John Turner and Robert Chisholm, to recover damages for the death of Henry Halleck, a son, about eighteen years old, of Mrs. Rowan, occasioned as was alleged by the negligence of the defendants.
    At Edgeworth station, about 15 miles west from Pittsburg, the tracks of the Cleveland and Pittsburg Railroad and the Pittsburg, Eort Wayne and Chicago Railway running east and west are parallel and near to each other; they are there crossed at grade by a township road. On the north side of the tracks are two platforms separated by the township road, and on the south side of the track two platforms separated by the same road. In August 1865, Halleck was a passenger in company with Miss Pancake in the Eort Wayne, Pittsburg and Chicago accommodation train from Pittsburg, which reached Edgeworth about 3 o’clock in the afternoon. They left the train at Edgeworth, getting out at the platform on the north side of the railroad and on the east side of the township road; they started along the township road to cross the railroad, and just as they got on the southern track, the Cleveland train going towards Pittsburg came up with great rapidity, struck both of them and so sever'ely injured Halleck that he died about three hours afterwards.
    There was much evidence by the plaintiffs as to the circumstances attending the disaster; that Edgeworth was not the usual place for the trains to pass; that the defendants’ train was moving at a very high rate of speed, &c. There was evidence that when Halleck and his companion got out of the train, he waited till it moved on; that when he started to cross the track he looked down it and then stepped across; there was evidence that the Eort Wayne train threw out much smoke and steam, and prevented persons from seeing down the road in the direction from which the defendants’ train was coming. There was evidence by the defendants for the purpose of showing that Halleck did not exercise proper care in crossing the track. The evidence was conflicting as to sounding the whistle and ringing the bell of the engine of the defendants. There was much evidence by the defendants to show they had not been guilty of negligence.
    The plaintiffs submitted seven, and the defendants ten points.
    The plaintiffs’ 6th point was: — ■
    “If the jury believe from the 'evidence that the defendants’ servants, at the time in question, were guilty of gross negligence in reckless running of the train, and that by reason thereof the deceased was killed, the jury may give exemplary damages.”
    The court answered: — ■
    “ Affirmed — ‘ If they, from the evidence, find that deceased did not contribute to his own death.’ ”
    The court (Kirkpatrick, J.) charged:—
    * * * “We instruct you as matter of law that the burden of proof is upon the plaintiffs, and that to enable them to recover they must make out their case by clear and satisfactory proofs, of the clearness and satisfactory character of which you are the exclusive judges.
    “ That if there was mutual or contributing negligence there can be no recovery.
    “ That if the deceased (Halleck) in any degree contributed to the catastrophe, there can be no recovery.
    “ That it was his duty before attempting to cross these tracks to stop, look and listen, and if he did not do so, and his death was occasioned thereby, the plaintiff cannot recover.
    “ That if you are satisfied from all or any of the testimony in this case, that he, before crossing, did stop, and looked up and down the track, you have a right to presume that he listened, for whilst it is true that he was, as we have instructed you, bound before crossing to have stopped, looked and listened, to prove that he listened is impossible, and can in my judgment be fairly inferred from the fact of his having stopped and looked, if you shall so find.
    “ That the law fixes no length of time during which he should have stopped, looked and listened, and if you should be of opinion under all the circumstances of the case that stopping for a moment even was sufficient, it is enough, for the law makes you the judges of what ordinary care and prudence demanded and the peculiar circumstances of the case required.
    “ That if this injury resulted from a want of ordinary care and prudence upon the part of the defendants and deceased, neither would have a remedy against the other, and the plaintiff cannot recover.
    “ That whether there was or was not the presence or absence of ordinary prudence upon the part of both the deceased and defendants, you Avill determine from all the evidence in the cause, and what would be ordinary care and prudence on the part of either party must be judged of by you by considering the character of the crossing — such as its being at grade, the importance of the station, the likelihood, or the reverse, of persons being on the track, and all the other surroundings and circumstances connected therewith, of all of which both deceased and defendants were bound to take notice.
    “ That when the decased approached the crossing it was his duty, as we have already said, to stop, look and listen for approaching trains, and if he failed to do so, such failure is not merely evidence of neglect, but the law declares it to be negligence, and it will prevent any recovery of damages resulting from his attempting to cross, no matter whether the defendants were guilty of negligence or not, if such failure on the part of the deceased contributed to his death. But if you should find from all the evidence in the case that, in your judgment, he did stop, look and listen for trains in proper manner and for sufiicient time, no matter how short the time of his stoppage may have been, and could neither hear nor see any train approaching, then he was obliged to go upon the track or tracks, and cross the same with all reasonable and proper speed, and if his death resulted in his so doing, the plaintiffs are entitled to recover.
    “ That it was the duty of these defendants, or their employees in charge of this train, on this occasion, upon approaching this public crossing, to give notice by ringing the bell, blowing the whistle, or by some other means sufficient to warn travellers of their approach, at sufficient distance from the crossing to afford time for all parties crossing or approaching, to stop in a place of safety, or if on the track to get out of danger. It was also their duty to look along the track, and if they saw, or might have seen, by the use of due care and caution, the deceased and his companion upon the track, to have checked up their train by the use of every and all means in their power, so as, if possible, to have prevented the accident, and if they failed in any one of these duties, and the death of Halleck resulted therefrom, without any concurring negligence on his part, these defendants are responsible, and your verdict must be for the plaintiffs.
    “You will observe, that I say these defendants were bound, upon their approaching this important station and public crossing, to have given warning sufficient to notify all persons upon the track, or the crossing, at Edgeworth station. I beg your, attention to this, I say, as the Supreme Court has intended me to say, ‘sufficient warning.’ It is not enough that they blew a whistle for this station or public crossing at Leetsdale, or Shield’s Nursery, or six or seven telegraph poles’ distance away. It is not enough that they rang a bell continually from Leetsdale to the Very spot of the catastrophe, if you please; they must go further in this line of their defence, and show not only that they blew their whistle and rang their bell, but they must satisfy you that they did so in such manner and to such extent as to warn these parties, or others, upon the crossing at Edgeworth station, of their approach, provided they had been using ordinary and proper care and prudence to catch or hear the same.
    “ Now, did they do so ? True, they have proven that they blew their whistle, that they rang their bell, and the witnesses have been placed upon this stand who testify, no doubt truly, that they themselves did so. But how ? Was it sufficient for the purposes intended, and the only purposes for which it could have been intended — viz.: warning and notice? If it was, then why was it not heard — if it was not heard by any of those, at or in the vicinity of the station or crossing, for whom was it intended ? If it was not sufficient, if it did not answer the purpose upon persons at the crossing or station, if you should find they were using ordinary and proper care and prudence to catch the note of warning, then it might as well not have been done at all, for the object and purpose of the act was unaccomplished, and the mere fact of their having rung their bell or blown their whistle will avail these defendants nothing in this line and aspect of their defence. It was at the crossing or station, and not upon the train, that the ringing of the bell and blowing of the whistle were intended to be heard. Whether, however, the warning was sufficient, whether it could have served the intended purpose if it had fallen upon properly listening and attentive ears, and whether these ears have been properly and prudently attentive and listening, without expressing any opinion, we leave you to discover from all the evidence in this case.
    “ These defendants had undoubtedly the right to a clear track, and to run their trains at a reasonable and ordinary rate of speed, but where public highways such as this was, cross the track of the railroad, neither they nor the public, the deceased or plaintiffs, have the exclusive right to a clear passage. The rights of both are necessarily restricted by public necessity and convenience, and if they, the defendants, have been guilty of negligence, the plaintiff is entitled to recover, and if both parties are or were guilty of negligence, no recovery can be had.
    “Negligence, we instruct you, consists in the absence of that ordinary care which a party ought to observe under the particular circumstances of the case.
    “ Whether there was such on the part of either or both of the parties here, we leave you to discover from all the evidence in the case, having already informed you what was the duty of each in the premises.
    “ Let us now pass to the consideration of the question of damages.
    “ Should you be of opinion that, under all the circumstances and exigencies in this case, the plaintiffs are entitled to recover, and in regard to this we express no opinion, let us see what damages they are entitled to recover under the law. We instruct you that they are entitled to recover:
    “ 1st. The expenses of care and attention to the deceased during and after injury.
    “ 2d. They are entitled to funeral expenses.
    “ 3d. To medical services, if any.

      “ 4th. The pecuniary value of his services during his minority, which you will discover and determine from all the evidence in this case.
    “ What it should be, or what it would amount to, is for your determination exclusively. * * *
    “We instruct you, therefore, that the rule of damages is as already laid down by us, and what the damages shall be, under and restricted by this rule, we leave you to discover — as it is your especial province and duty — from all the evidence submitted by the plaintiffs and defendants in this aspect of the case.” * * *
    The verdict was for the plaintiffs for $2372.93. The defendants removed the case to the Supreme Court by writ of error and assigned 15 errors. The 10th was the answer to the plaintiff’s 6th point.

      S. Sohoyer, for plaintiffs in error.
    — One crossing a railroad and not stopping and looking both ways is guilty of negligence: Evans v. P. F. W. & C. R. R. Co., 3 P. E. Smith 250; R. R. Co. v. Heileman, 13 Wright 60; P. R. Co. v. Henderson, 7 Id. 449; R. R. Co. v. Coyle, 5 P. E. Smith 396. He is chargeable with opportunities of knowledge: R. R. Co. v. Henderson, 7 Wright 449. The fault is, primfi facie, that of the person crossing the railroad; he must show, affirmatively, that it was not his fault: Telfe v. Northern R. R. Co. (N. J.) 3 Am. Law Reg. N. S. 670; Evans v. P. E. W. AC. R. R., supra. Compensat'ion’was all the plaintiffs were entitled to: Heil v. Glanding, 6 Wright 499. The damages 'were the profit which the parent might derive from the son’s services, from which are to be deducted his expenses: Penna. R. R. v. Kelly, 7 Casey 381; Same v. Sutler, 7 P. E. Smith 338; Catawissa R. R. v. Armstrong, 2 Id. 286.

      T. M. Marshall and A. M. Watson, for defendants in error,
    cited as to the measure of damages: McCloskey v. Penna. R. R., 11 Harris 530. As to negligence of the company and contributory negligence: N. Penna. R. R. v. Robinson, 8 Wright 175; Reeves v. Railroad, 6 Casey 461.
   The opinion of the.court was delivered, January 3d 1871, by

Thompson, C. J.

— Only two or three of the numerous assignments of error in this case, we think, call for any special notice at the hands of this court. We regard the others as self-vindicated.

It was contended in argument, on part of the plaintiff in error, that the plaintiffs below had the onus of showing affirmatively that the deceased was guilty of no negligence or want of care at the moment of the disaster to him. This is in one sense the rule, but not as broadly as it has been stated. It is true that negligence on his part would defeat the plaintiff’s right of recovery; but to call witnesses to declare the absence of negligence of the kind insisted on, or to prove acts negativing negligence before the defendant is bound to answer, is not required in the first place. It is not a necessary averment in the narr., and is, therefore, not required to be proved until the opposite is set up in defence. It is true, if negligence appear by the plaintiff’s own testimony, the defendant might rest on it as securely as if proved by himself. As the love of life and the instinct of preservation are the highest motive for care in any reasoning being, they will stand for proof of care until the contrary appears: Railroad v. Hagan, 11 Wright 244; Railroad Co. v. Hall, 11 P. F. Smith 361; Allen v. Williard, 7 Id. 374. But there was proof of acts on part of the deceased clearly evincive of care on part of the deceased before he took the fatal step, to wit: looking and apparently listening in the direction of the approaching train. His advance, and that of his companion, a young lady, who was also struck and injured at the same time, corroborated what the witness testified .to, viz : that they took the ordinary precaution to avoid danger by looking and listening before they stepped on the track. This was referred to the jury on the question of care on part of the deceased, and they have found, in accordance therewith, that there was no negligence. There was no error in this, and this assignment is not sustained.

2. But we think there was error in affirming the plaintiff’s 6th point, in regard to exemplary damages. There may be some dicta previous to the Act of 4th April 1868, seeming to favor this idea, but the reasoning of all the cases, when carefully considered, is the other way; but the last-named act settles the law very definitely, if the least doubt existed as to the rule, and this act was in force when this cause was tried. The portion of the act I refer to is as follows: “ In all actions now or hereafter instituted against common carriers, or corporations, * * * to recover for loss of life * * * and for which by law, such carrier or corporation could be held responsible, only such compensation for loss * * * shall be recovered as the evidence shall clearly prove to have been pecuniarly suffered or sustained.” I understand this to have been the rule prior to the passage of the act, notwithstanding a dictum or two to the contrary. It is now-the rule-of this statute, and as such to be obeyed where the action is for the loss of life. __ I say nothing about the cases of “personal injuries” not followed by death. The rights of action in the class of cases mentioned in the act are of different origin. The one is, and ever has been, a common-law right — the other is exclusively statutory, and capable of restriction and limitation by the legislature. Even where exemplary damages may be given, and it cannot be denied there are instances in which they are allowable, they are not given as compensation, but as a punishment for the wantonness or bad conduct of the wrongdoer, — not because the recipient of them has sustained a loss measured by them. In this act there is a stringent prohibition against the recovery of any damage for loss of life not pecuniarily suffered; exemplary damages would therefore directly conflict with this provision of the act, if allowed. This view sustains, beyond controversy, the error assigned, and for this reason the judgment below must be reversed.

There was no error in instructing the jury, that in assessing damages, they might include nursing after the injury and before death, medical expenses if any, and funeral expenses. This we said in the Railroad Co. v. Bantom, 4 P. F. Smith 495, and in other eases which I cannot lay my hands on at this moment. The Act of 1868 does not change this rule.

We discover no error in what was said in relation to the company. The question of negligence on their part, as well as on part of the deceased, was properly left to the jury, with adequate instructions. We have no fault to find with them. But for the reason given, this judgment must be reversed.

Judgment reversed, and venire de novo awarded.