text:
    Hartupee versus The City of Pittsburgh.
    3. Where a plaintiff sues on a written contract to recover the stipulated price for work agreed to tie done, the burden of proof is upon him to show a substantial performance of his contract, or a waiver by the defendant. Where the contract provides that the materials used shall be of the best quality, the me tais to be of a certain composition and tensile strength, the plaintiff must show affirmatively that the materials were of the required standard.
    2. The fact that the work was inspected during its progress by a mechanical engineer, appointed by the defendant in pursuance of a provision in the contract, who reported from time to time that the work was progressing satisfactorily, and on whose certificates the plaintiff received large sums on account, does not constitute a waiver by the defendant of defects in quality, which were not apparent upon mere inspection.
    3. Where the contract provided for the erection of extensive waterworks on the land of a municipal corporation, the hostile taking of possession by the corporation of the works in a substantially completed condition, and the subsequent successful use of tho same for the purpose for which they were intended, docs not relieve the plaintiff from the necessity of proving that the quality of the materials was in accordance with the contract.
    4. A distinction exists between a permanent work erected on the land of the defendant and a portable article that may be returned to the maker, with respect to the right of the defendant to take possession, without waiving any rights.
    5. In the case of a contract made on behalf of a municipal corporation, an implied waiver of terms of the contract will not be favored.
    6. Where a contract provides that any dispute touching the quantity, quality or value of work should be referred to an arbiter, whose decision should be final, the contractor cannot maintain an action for the price, unless he shows that the dispute had been so referred, or that he had offered so to do.
    7. H. contracted with the city of Pittsburgh to erect, on land belonging to the city, certain pumping engines to supply the city with water. The contract provided, among other things, that the materials used should be of the very best, the iron and other metáis to be of a certain character, capable of sustaining given tensile strains. It also contained an agreement to refer any dispute as to the quality or value of the work to the decision of a mechanical engineer. H., in an action on the contract for a balance of the price, showed that he built the engines, that the city took forcible possession of them when substantially completed, and had used them successfully for a year and a half, for the purpose for which they were intended; but he omitted to prove that the materials were according to the specifications, or that the matter in dispute had been referred by him to the engineer. Held, that the court below properly entered a nonsuit.
    January 22d 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1880, No. 260.
    Assumpsit, by Andrew Hartupee against the City of Pittsburgh. Pleas, non assumpsit, payment with leave, &c.
    The plaintiff sought to recover a balance alleged to be due him by the defendant on two contracts,.dated respectively August 22d 1872 and September 14th 1873, entered into, by virtue of an ordinance of the city of Pittsburgh, between the board of water commissioners and the plaintiff, for the erection of certain pumping engines to supply the city of Pittsburgh with water. The total consideration named in said contracts was $798,500, in addition to which the plaintiff claimed $100,000 for extra work; and he admitted payments to the amount of $593,206.84, leaving a balance due of $305,393.16, which he claimed to recover in this suit.
    The material portions of the contracts (which were identical in form) were as follows :
    “ This agreement, made, &c., Witnesseth : That in consideration of the premises hereinafter mentioned, the said party of the second part agrees to furnish all labor and materials, construct, deliver and set up, at the proper engine-house, and upon the proper foundations to he erected on the grounds belonging to the city, on the Allegheny river, immediately above the mouth of Negley’s run, two graduating double cylinder plunger pumping engines, each of the dimensions, designs and materials explained and exhibited in the accompanying specifications, and in the drawings to which they refer, with the attachments and appurtenances therein described. The specifications hereto attached, and signed by the parties, together with the drawings signed also by the parties, are hereby declared to form a part of this agreement, the same as if embodied herein.
    “ The two pumping engines shall be in all respects completed and ready for the service required of them, on or before the 15th day of November, A. D. 1874. The party of the first part agreeing to furnish sufficient foundations, in accordance with the requirements of the above-mentioned plans, on or before the 1st day of July, A. d. 1874.
    “ After the complete and satisfactory erection of each of the required pumping engines, with all the appurtenances, in accordance with the terms of the specifications, and after the acceptable and faithful fulfilment of the required tests, the party of the second part shall maintain them in good working order and repair during the twelve months following. Each engine, during the said twelve months, delivering that portion of the regular supply of water to the city, which the circumstances and the directions of the proper superintendent of the waterworks may require of them. During the probation of twelve months, the said party of the secondr,part shall have the right to select a person who shall, at all times, have the right to go upon the premises and inspect the working of the said engines.
    “ The party of the second part agrees to guarantee the strength, as well as the quality of the workmanship and materials of all the parts supplied by him, including the secure and rigid connection to the proper walls or foundations, and to make good at his cost all outlays and injuries caused from defects in the same, during the first twelve months of the working of the engines.
    “ At the termination of the time of probation, the required test having been in the meantime satisfied, the machinery, if found to be in good and satisfactory working order, shall then be certified to as such, by the mechanical engineer of said commission; and the responsibility of the party of the second part shall then cease; the contract being thereby fulfilled on their part.
    “ On condition of the true and faithful performance of all the requirements of this agreement and the specifications hereto annexed, the said party of the first part hereby agrees to pay to the said party of the second part, the sum of three hundred and seventy-five thousand dollars, in full payment of all the work, labor, materials and supplies in this contract and the specifications hereto annexed, embracing the perfect and satisfactory construction of the machinery.

      “ And it is further agreed by the parties to this contract, that the mechanical engineer of the board of water commissioners, shall make approximate monthly estimates for all iron work or composition work completed, and that payments shall be made of eighty (80) per cent, only of the amount of said monthly estimates : Provided, That such monthly payments on account shall at no time exceed in the aggregate the amount of the bond given by the said party of the second part, and the said engineer shall, at the same time, certify that the work is progressing faithfully and to his satisfaction.
    “ After the faithful erection of the engines to the satisfaction of the engineer, and after their satisfactory action, and their accomplishments of the conditions required, the party of the second part, on the certificate of the said engineer, shall be paid the balance due on this contract, with the exception of tén (10) per cent., which shall be retained until after the term of probation already mentioned.
    “ At the end of said term, on the certificate of said engineer of the faithful completion of this contract, the said party of the second part shall be paid whatever balance may be owing them.
    “ All materials, of whatever description, upon which advances may have been made, shall become thereby, so far as acceptable in other respects, the exclusive property of the said party of the first part; but this right of property, as a gauge for such advances, shall not be construed as binding the said party of the first part to receive and admit of the application of all such materials to the machinery, if any of them should afterward be found objectionable or imperfect.

      “ And it is hereby expressly understood and agreed, by and between the parties to this contract, that the board of water commissioners of the city of Pittsburgh, as agents of the party of the first part, reserves to itself the power to suspend the execution of this contract, and to annul the same, whenever the other contracting party hereto fails to comply with the terms, or any of the terms, of this contract, or with the proper directions of the said board in relation thereto; and that such suspension or annulment shall not affect the right of the city to recover any damage from such failure.
    “ In case of forfeiture of this contract, under any of the instances above mentioned, or in case of failure to perform and satisfy the other conditions and obligations of this contract, due notice shall be given to the said party of the second part accordingly, by the mechanical engineer of said commission, and the contract and agreement may then be declared null and void ; and the said party of the first part may in such case, at their discretion, contract with other parties for the delivery or completion of all or any part of the work left uncompleted by the said party of the second part, or for the correction of the whole or any part thereof.
    “ It is hereby understood that, with the exception of such corrections as the engineer under the provisions of this contract is authorized to make, and shall make in writing, the terms and conditions of this instrument, or any one of them cannot be dispensed with, altered or rendered in any sense null and void, without the written consent of the said party of the first part attached to, or endorsed on, this agreement, specifying what modifications may have been agreed upon.
    “ It is hereby further agreed, that in case any question, or dispute between the parties shall arise under this contract or touching the quantity, quality, or value of a.ny work done thereunder, the same shall be referred to the mechanical engineer, whose decision shall be final and conclusive. And the said party of the second part hereby waives and releases all right of action and suit at law under or by virtue of this contract.”
    The specifications which, by the terms of the contracts, were made part thereof contained the following : ■
    “ Character, oe Material.- — All of the material used in the construction of the machinery to be of the very best. The iron castings to be sound and perfect, and made of iron that will sustain a tensile strain of twenty-five thousand (25,000) pounds to the square inch. All the wrought-iron forgings for shafts, connecting-rods, cam-rods, wrists, stretchers and bolts, to be made of the best scrap or Juniata iron, that will sustain a tensile strain of sixty thousand (60,000) pounds to the square inch, the shafts to be forged of billets or slabs, and the connecting-rods from bars of iron two (2) inches square. All the composition castings required for pillow-block boxes, slides, connecting-rod boxes, glands, pump valves, and packing for piston heads, to be eight (8) parts now copper and one (1) of new tin. Two (2) small projections to be cast on all castings, both composition and cast-iron, to bo placed where the mechanical engineer may direct. The said projections not to be taken off except by directions of mechanical engineer; they are for the purpose of testing the quality of metal used. All castings to be made in brick or dry sand, excepting those the mechanical engineer may otherwise direct.
    “Detailed Drawings of all the principal parts of the machinery will be furnished to the contractor by the mechanical engineer in charge of the work.”
    The plaintiff’s declaration claimed substantial compliance with his part of the contract, and a waiver by the city of all conditions not so complied with.
    The evidence produced by the.plaintiff was to the following effect: Soon after the execution of the first contract the plaintiff began work on the first pair of engines, and after the making of the second contract the work for both pairs of engines was carried on together. From month to month the mechanical engineer appointed by the city, Joseph L. Lowry, reported to the water committee that the plaintiff’s work was progressing satisfactorily, and the plaintiff received numerous payments on account, as fixed by the engineer’s estimates, and approved by the water committee. Owing to delay on the part of the city in preparing the foundations, furnishing plans, &c., for which the plaintiff was not responsible, it was not until July 23d 1878, that the first pair of engines were tried. On the first trial a serious accident happened to one of the engines, caused partly by admitting suddenly a high pressure of steam, and partly by a defect in the machinery. In the report of Mr. Lowry to the water committee on the subject of the accident, dated July 27th 1878, he said:
    “ In conclusion, will say that the cost to the contractor of replacing all the defective work so far discovered on both pair of engines will not amount to one per cent, of their contract price, viz., $8000, and the time required for repairing the engine broken on the 23d inst. should not exceed three months. In the meantime, the engine not injured can be put into operation, thus causing no delay to the city. The opportunity is here taken of saying that from the statements given me by my assistant Mr. Schenneller, and other practical engineers who were present during the running of the engines, increased the confidence of your engineer in the final success of the engines. When it is taken into consideration the speed as well as the conditions under which they were run, viz., the throwing of the loaded plungers back and forth without any resistance in the pump barrels, the only wonder is that the engines were not ruined. While deprecating the manner of the trial at the time it was proposed to be made, yet the result has given me increased confidence in the ability of the machinery to do the work intended.”
    On December 23d 1878, the plaintiff notified Mr. Lowry in writing that the second pair of engines were completed, and they were successfully operated on December 25th 1878, January 7th, 8th and 9th 1879. The following correspondence then took place:
    Pittsburgh, January 11th 1879.
    A. Hartupee, Esq.
    Sir: Your letter of the 23d of December received, wherein you notify me that the second pair of engines are ready to pump to the reservoir. I have, therefore, secured the services of Mr. Henry Atkinson (engineer of the Bedford avenue works) and Mr. James Murdock (one of your workmen, and who is recommended to me by your foreman, Mr. Magill) to run the engines. They will be at the works on Monday morning to operate the machinery. This has been done in, consequence of your complaint to the committee, of the expense you were under In paying engineers; and, also, from the fact of my being informed by your foreman, Mr. Magill, that he had been instructed by you not to start the engines. Yours of January-6th received and contents noted.
    Very respectfully, Joseph L. Lowry.
    Pittsburgh, January 13th 1879.
    Mr. Joseph L. Lowry,
    Mechanical Engineer of New Water Works.
    Sir: Yours of January 11th received, in which you state that you have employed engineers to run the compound engines which are now ready for use, and have been since December 18th. I claim the right to control the engines until they have been formally accepted by the city, and a final estimate made of the amount due upon the contract and for extra work duly authorized. You can readily see that if you are permitted to use the engines before acceptance, the term of probation would be thereby extended beyond the time provided in the contract, and instead of my being bound for their successful operation for one year, as provided by the contract, the time of trial would be extended indefinitely at your will. The injustice of talcing and using the engines without paying for them, according to contract, is too apparent to suppose that you desire to do it, or that council would permit it to bo done. My objection to your taking the engines is not on account of the expense, as intimated in your letter, but principally because of the injustice of your taking them without acceptance and payment.
    I therefore protest against your interference with the engines until you have formally accepted them; and in case you do take possession of them, I will assume that you have accepted them as satisfactorily completed, and demand that you at once make out a final estimate, in order that I may receive payment of the amount due upon the contract and for extra work.
    Yours respectfully, A. IIartupee.
    On February 7th 1879, the mechanical engineer, with the chief of police of the city, came up to the works and demanded their surrender, which was refused by the men in charge, under the employ of Mr. IIartupee. On the same day, the mayor of the city, with his police, put Mr. Iiartupee’s men out of the works and took possession in the name of the city. The evidence as to such taking possession, given by the plaintiff’s superintendent, was:

      “By the Court: Gro on and give a narrative of all that was said and done by the mayor and his police officers, or those with him at the time, and what you said and did.
    “ Ans. In the first place, the chief of police, with five or six officers, arrived there about 8 o’clock; the chief read a letter to me signed by the city attorney, notifying mo to discharge the men, as the city had forfeited the contract, and leave the premises in possession of the city. I told him I had no orders from my employer, no official notification to that effect, and refused to do so. The mechanical" engineer arrived there, I think, after the chief of police with his officers, and was anxious, apparently, to get possession of the premises. Things went on that way until about 10 o’clock, when Mayor Liddell arrived, and he took this same note, or a copy of it, and read to me, and asked me to peaceably discharge the men and leave the premises; I refused to do so. He read it over two or three times, and finally he told me he was justified, or thought he was justified, in discharging the men himself. He went around, him and the chief of police and one or two officers, to each individual man, and told them to leave the works. One or two men they took hold of, as they refused to leave instantly, and told them to get out of the way; and, as a matter of course, about twenty minutes past eleven, the city had possession; and at half past eleven, they started up the compound engines. The engines were running when I left there and came to the city.
    “ Q. If I understand you, ten minutes after they took possession they started the engines and ran ? Who had charge of them ?
    “ Ans. I can’t say; the mechanical engineer and assistant, Mr. Schenneller, were there, and the mayor, Mayor Liddell, and several officers.

      “ Q. Do you recollect whether or not Schenneller asked you anything about the engines, whether they could be run or not ?

      “ Ans. I believe he asked me if everything was correct, and I told him they were.

      “ Q. And then they started them, did they ?
    “ Ans. Yes, sir.”
    The engineer of the waterworks testified that from February 1879, when the city took forcible possession, until the time of trial, September 1880, the Hiland reservoir had been supplied to its full capacity by the plaintiff’s engines.
    The plaintiff further proved that during the progress of constructing the engines the work was inspected daily by Mr. Lowry and his assistant, also that during a portion of the time the city had employed a mechanic to stay at the plaintiff’s works and inspect the machinery as it was made. These men, however, did not test the castings for tensile strength, or to ascertain the quality of the metal. There was no direct evidence that the castings or forgings were so tested, nor whether the metal used was or was not up to the standard required by the contracts and specifications-
    At the close of the plaintiff’s case the defendant moved for a compulsory nonsuit, on the grounds, inter alia :
    1st. That by the terms of the contract the plaintiff is not entitled to recover without the production of a certificate of the mechanical engineer of his satisfaction with the work. Such certificate is a necessary condition precedent to payment. It was not produced.
    2d. The plaintiff can only recover on an award by the mechanical engineer, who is the final arbiter of any dispute under the contract. No such award wTas made.
    3d. That under the contract between the parties, it is incumbent on the plaintiff to affirmatively show performance by him of his part of said contract; but he has failed so to do, especially as to the time within which the work was to be done, and as to the strength and quality of the materials used.
    The court granted the nonsuit, and subsequently refused to take it off. The plaintiff thereupon took this writ of error, assigning for error the action of the court.

      Slagle and Dalzell (with them Wiley, John Barton & Son, and Hampton), for the plaintiff in error.
    The question is whether the court should have submitted the evidence to the jury. It is sufficient for us to show that the plaintiff made out a prima facie case. It is settled that where the plaintiff, suing for services performed under a written contract, acted with a bona fide intention of fulfilling his contract, and the other party received the fruit of his labor as performed, he may recover, even though he failed in slight particulars of his contract: Preston v. Finney, 2 W. & S. 53; Chambers v. Jaynes, 4 Barr 39-43; Hall v. Rupley, 10 Id. 232; Buffington v. Quantin, 5 Harris 310; Haywood v. Leonard, 7 Pick. 181. In Danville Bridge Co. v. Pomroy, 3 Harris 151, a case very similar to this, the court held that where the defendants took hostile possession of the bridge, received the tolls, and reduced it to use in the manner it was constructed by plaintiffs, the latter could recover, subject only to such reduction as was sufficient to compensate for defective execution of the contract. The court there said: “Where a thing is so far perfected as to answer the intended purpose, and it is taken possession of and turned to that purpose by the party for whom it is constructed, no mere imperfection or omission, which does not virtually affect its usefulness, can be interposed to prevent a recovery, subject to a deduction fot damages, consequent upon the imperfection complained of.”
    If these cases be law, the case should have been submitted to the jury, as the evidence made out at least a prima facie case. It is argued, that the engineer’s certificate and award is a pre-requisite to recovery. But we contend, that the present dispute is not within his cognisance; and if it were, he has virtually refused to act as arbiter, and it has been waived by the plaintiff’s conduct.

      George Shiras, Jr. and D. T. Watson (Thomas S. Bigelow with them), for defendants in error.
    It was part of the plaintiff's case in chief, to show substantial compliance with his contract, especially in such particulars as were solely within his own knowledge, e. g., that the strength and quality of the materials were in accordance with the specifications. Such proof is not waived by reason of the taking possession by the city of the imperfect or unfinished work constructed on her own land: Monro v. Butt, 8 Ellis & Black. 750; Bryant v. Stilwell, 12 Harris 314; Bird v. Smith, 12 Ad. & E. (N. S.) 678; Glacius v. Black, 50 N. Y. Court of Appeals 145.
    The plaintiff was bound to show* in his case in chief, that he had complied with the stipulations respecting the certificate of the engineer, and the reference to him of ‘‘ any question or dispute touching the quantity, quality or value ” of the work: Monongahela Nav. Co. v. Fenlon, 4 W. & S. 208; North Lebanon Railroad Co. v. McGrann, 9 Casey 533; Howard v. Allegheny Valley Railroad Co., 19 P. F. Smith 489; Reynolds v. Caldwell, 1 Id. 306; O’Reilly v. Kerns, 2 Id. 214; Quigley v. De Haas, 1 Norris 274.

      In first contract, $423,500.

   Mr. Justice Mercur

delivered the opinion of the court, May 2d 1881.

This contention may be considered under turn main propositions. The one, whether the plaintiff proved a substantial fulfilment of his contracts; the other, whether the questions in dispute should have been submitted to the mechanical engineer for final decision.

1. Thé agreements were in writing and under seal. The first was executed in August 1872; the latter in September 1873. In each contract, the plaintiff agreed to furnish the labor and materials, and construct, deliver and set up in all respects, complete and ready for the service required of them, on specified grounds of the city, two graduating double cylinder plunger pumping engines, each of the dimensions, designs and materials explained and exhibited in accompanying specifications and drawings, which were declared to form a part of the agreement, the same as if embodied therein. The specifications, inter alia, declared “ all of the material used in the construction of the machinery to be of the very best. The iron castings to be sound and perfect, and-made of iron that will sustain a tensile strain of twenty-five thousand pounds to the square inch. All the wrought-iron forgings for shafts, connecting-rods, cam-rods, wrists, stretchers and bolts, to be made of the best scrap or Juniata iron, that will sustain a tensile strain of sixty thousand pounds to the square inch.” The form of each contract was substantially in the same terms. The pair mentioned in the first contract ivas to be completed by the 15th November 1873; the other pair by the 15th November 1874. After the execution of the second agreement, the work for both pairs of engines Avas prosecuted together. The sum which the plaintiff was to receive under both contracts, was $798,500; but be claimed the additional sum of §100,000 for extras. He has been paid §593,206.84, leaving a balance of over §300,000 still claimed by him.

In July 1878, the first pair of engines was tested and found to he defective, although one of them was occasionally used thereafter. In December following, the other pair was so far advanced as to admit, of its being used to some extent in pumping water, but was not fully completed.

The contracts specified that approximate monthly estimates of work completed should be made by the mechanical engineer of the board of water commissioners, and eighty per cent, thereof paid. After the faithful erection of the engines to the satisfaction of the engineer, and after their working was found satisfactory, all the residue was to he paid, except ten per cent., which was to be retained until the expiration of twelve months thereafter. During this time of probation, the contractor was to maintain them in good working order and repair. The contracts further declared, “ On condition of the true and faithful performance of all the requirements of the agreements and the specifications hereto annexed,” the city agreed to pay the gross sum named.

It was authorized for certain causes specified, to declare the contracts forfeited; and then in a subsequent clause it was declared, in case of a forfeiture for any of the causes mentioned, or in case of failure to perform and satisfy the other conditions and obligations of the contracts on due notice given to the plaintiff by the mechanical engineer, the contract might be declared null and void, and the city might contract with other parties for the completion of the work.

In February 1879, after due notice to the plaintiff and demand of possession, the city, under claim of forfeiture, took possession of the works in their unfinished condition, and refused to pay the price stipulated in the written agreements. Thereupon the plaintiff brought this action, alleging substantial performance, and waiver. The plea denied the averments. After the plaintiff closed his evidence, the court ordered a compulsory nonsuit, and refused to take it off. These are the errors assigned.

As the agreement of the city was to pay only “ on condition” of performance of all the obligations assumed by the plaintiff, as an entire contract, he was bound to prove its substantial fulfilment. The character, quality and tensile strength of the iron were of vital importance, and, as we have shown, were stated in the agreement in clear and unmistakable language. On the trial, the plaintiff gave no direct evidence that any of the iron or materials were of the kind and quality stipulated; nor that the city expressly waived any obligation relating thereto. He relied on the action of the mechanical engineer, and his monthly certificates during the progress of the work; and the possession taken by the city and its subsequent use thereof, to show assent to the kind used or waiver of the kind required. It is true, it has been held in some eases, where the work is done under the supervision of the engineer of the owner, that changes in the agreed manner of doing the work may be assumed to have been assented to by him, and bind his principal: Danville Bridge Co. v. Pomroy and Colony, 3 Harris 151. Yet in a suit brought on a written contract to furnish materials and build a canal-boat, the fact that the person for whom it was being built, was present when the contractor made changes from the specifications in the contract, creates no presumption that the owner waived a performance of the written contract: Young v. White, 5 Watts 460. This contract in writing being in behalf of a municipal corporation, a due regard to public rights furnishes a strong reason for holding, that no implied waiver of the terms of the contract shall be presumed from the presence of the mechanical engineer. His monthly estimates and certificates had reference only to the apparent value of the work done, and not to the quality, to him unknown, of the iron used. In none of his reports does he refer to the quality of the metal in the castings, or in the wrought-iron work. No certificate declares the materials were of the quality specified in the contract.

A clear distinction exists between the form and manner in which the work was done, and the quality of the material used therein. The former may readily be visible to the eye, and a presumption of assent thereto might arise, when no assent as to the quality of the material could be presumed. In the present case, the latter could only be ascertained by a test, which the engineer was not authorized to make and did not attempt to make. The iron was so put in place, that much of it was either covered or concealed from view. Its quality and tensile strength could not thereafter be ascertained. They were known to the plaintiff. If they filled the contract, he could have testified to the fact or proved it by others.

Thus it has been shown there was no waiver of the quality of the material during the progress of the work. It is contended the city waived it by taking possession and using it. In support of this view the cases of Preston v. Phinney, 2 W. & S. 53; Wilhelm v. Caul, Id. 26; Chambers v. Jaynes, 4 Barr 39, and others, were cited. The rule recognised by these cases is not applicable to the facts of the present case.

An engine erected on the land of the city is not like a portable article that might have been thrown back on the hands of the manufacturer. Having become attached to the land of the formey it became the property of the city. No right was waived by taking possession and using them to a limited extent: Monro v. Butt, 8 Ellis & Black. 737; Bryant v. Stillwell, 12 Harris 314. This conclusion is strengthened by the terms of the contract. They substantially declare that all materials on which advances may have been made shall thereby become, as far as acceptable in other respects, the exclusive- property of the city, “ but this right of property, as a gauge of such advances, shall not be construed as binding the city to receive or admit of the application of such materials if they should afterwards be found objectionable or imperfect.” Thus in view of the large advances made by the city it had a right of property and of possession which it might assert without waiving any of its rights, and without any presumption that it thereby released the plaintiff from the fulfilment of his obligations specified in his contract. A very substantial part of that obligation was to' furnish iron of the quality and strength stipulated. The burden was on him to prove he had furnished such. This he wholly failed to do. Still further the written agreement declared “it is hereby understood that with the exception of such corrections as the engineer under the provisions of this contract is authorized to make, and shall make in vmting, the terms and conditions of this instrument, or any one of them, cannot be dispensed with, altered or rendered in any sense null and void without the written consent of (the city) attached to or endorsed on this agreement, specifying what modifications may have been agreed upon.” This language is clear and specific; and was manifestly intended to protect the city against all such implied or presumptive changes or waivers as are now attempted to be sustained. If the plaintiff disregarded these provisions of the contract, whereby he was damaged, the city is not responsible therefor.

2. The contract declares “ it is further agreed that in case any question or dispute between the parties shall arise under this contract or touching the quantity, qtiality, or value of any work done thereunder, the same shall he referred to the mechanical engineer whose decision shall be final and conclusive. And the said (plaintiff) hereby waives and releases all right of action and suit at law under or by virtue of this contract.” It will be observed that all the questions or disputes are stated disjunctively. If either one arises it shall he referred as there stated. It may arise under the contract or touching any one of the things therein stated. It is very manifest from what has been said, and by the bringing of this suit, that questions and disputes have arisen under this contract, and also touching the quality and value of the work done thereunder, yet the plaintiff did not offer to refer any of them to the engineer. That effect shall be given to an agreement to refer matters of dispute to an engineer named, has often been held. As to questions covered by the agreement, the party cannot maintain a common-law action without a previous arbitrament of the engineer or an offer by one and a refusal by the other to so refer: Monongahela Navigation Co. v. Fenlon, 4 W. & S. 210; Lauman v. Young, 7 Casey 308; Reynolds v. Caldwell, 1 P. F. Smith 298; O’Reilly v. Kerns, 2 Id. 214; Howard v. Allegheny Valley Railroad Co., 19 Id. 489.

We deem it unnecessary to further consider the facts in detail. Under all the evidence we see no error in the judgment of the court.

Judgment affirmed.

Sharswood, C. J. and Gordon, J. dissented.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Lanigan, to use of Stichter, versus Kille.
    1. Where a lessee is evicted during his term by the holder of a paramount title, without fraud on the part of the lessor, his measure of damages against the lessor, under the implied covenant for quiet enjoyment arising from the words “ demise and let," is the consideration paid by him. If he has paid only the rent, during the time of his possession, he is entitled to only nominal damages.
    2. In such ease, the lessee is not entitled to recover the value of improvements for the prosecution of the business, some of which were erected in pursuance of a covenant made by him to that effect in the lease, and all of which he had, by the terms of the lease, the right to take down and remove at the end of the term.
    3. In such case, the fact that the lessor, in an action against him by the paramount owner for mesne profits, had set off and received credit for the value of the improvements affixed to the freehold, is immaterial.
    4. K. leased to L., for fifteen years, in consideration of a royalty, certain ore lands, L. covenanting to erect forthwith good and approved machinery to take out the .ore, and K. covenanting that the lessee should have full privilege to erect all buildings necessary to working the ore, and that at the end of the term, he should have the right to take down and remove all buildings put up by him. The lease contained the usual words, “demise and let,” hut no express covenant for title or quiet enjoyment. L. was subsequently evicted in an ejectment suit against K., founded on a paramount title. In an action by L. against It. to recover damages for the eviction: Held (affirming the judgment of the court below), that the measure of damages was the consideration paid, and that the damages in this case, therefore, could only be nominal.
    5. The plaintiff offered to show the value of machinery erected by him and standing at the time of eviction, as a portion of the damages he was entitled to; and in order to fix the value thereof, offered to show that, in an action for mesne profits brought against the defendant, he had fixed the value of said improvements at $9600, and reduced the verdict by that amount. Held (affirming the ruling of the court below), that the evidence was inadmissible.
    January 24th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1880, No. 28.

      Covenant, by James Lanigan to the use of Henry P. Stiohter, against John T. Kille. The facts were as follows: By indenture of lease, dated August 1st 1871, the defendant did “ demise and let unto the said lessee (the plaintiff Lanigan), the sole and exclusive right and privilege of mining and taking out the iron ore from a certain tract of land situate in Dickinson township, Cumberland county, Pennsylvania, * * * for the term of fifteen years, at the rental or royalty of fifty cents per ton” for each ton mined from the said tract. The lease contained, inter alia, the following covenants : “ The said lessee hereby covenants and agrees to and with the said lessor, that he will forthwith procure and set up good and approved machinery to take out and work said ore, and that he will work and mine the same in a good, workmanlike manner, and as an open bank, and that he will mine and take away not less than four thousand tons of ore in each and every year during the term of this agreement.”
    “ The said lessor covenants and agrees to and with the said lessee that he shall have the full privilege of building houses and erecting all necessary machinery for developing, working and taking out the ore upon said tract, and that, at the expiration of the hereby demised term, or in ease ore shall not be found in sufficient quantity upon the said tract, he shall have the right to take down and remove all buildings and machinery so put up or erected.”
    The lease contained no express covenant for title or quiet enjoyment. The plaintiff went into possession, put up valuable improvements and mined a large quantity of ore, on which he paid the royalty as agreed on. Within four years of his taking possession, an action of ejectment was brought against Kille, the lessor, upon a paramount title (see Kille v. Ege, 29 P. F. Smith 15), in which judgment was recovered; and the lessee was on October 26th 1874, deprived of his possession under a writ of habere facias possessionem. (See Ege v. Kille, 3 Norris 339.) Lanigan, on November 14th 1874, assigned his interest in the lease to Henry P. Stiohter. Subsequently, in an action for the mesne profits, brought by the successful parties in the said ejectment against Kille, the latter set off against said claim the value of the said improvements, erected by Lanigan, amounting to the sum of $9600, and received credit therefor. (See Kille v. Ege, 1 Norris 102.)
    The plaintiff' thereupon brought this suit, averring in his narr., the above facts, the performance of his covenants, the loss of his term and improvements, and claimed to recover compensatory damages therefor, arising from the breach of the implied covenant for quiet enjoyment.
    On the trial, before Mitchell, J., the defendant admitted the eviction. The plaintiff offered to prove : (1.) The value of the improvements affixed to the freehold erected by the plaintiff upon the land, under his lease from the defendant, at the time of the eviction. Objected to, as irrelevant; objection sustained; exception. (First assignment of error.) (2.) That the defendant, in the said action against him for mesne profits, fixed the value of said improvements at the sum of $9600, and was allowed the same as a set-off. Objected to; objection sustained; exception. (Second assignment of error.)
    ■ There was no other evidence, and the court instructed the jury to find for plaintiff nominal damages of $6. Exception. (Third assignment of error.)
    Verdict accordingly for plaintiff, for $6. A rule for a new trial having been discharged, judgment was entered on the verdict. The’ plaintiff took this writ of error, assigning for error the exclusion of his offers of evidence, and the instruction of the court to the jury to find a nominal-verdict for the plaintiff.

      S. E. Cavin and F. Carroll Brewster (with whom was Francis E. Brewster), for the plaintiff in error.
    Two questions arise in this case, viz.: what is the effect of the implied covenant for quiet enjoyment under the words “demise and let;” and what is the measure of damages for its breach. (1.) The implied covenant is general and unlimited, extending to the acts of parties holding a paramount title, unless expressly restricted to the acts of the lessor. It extends to the entire term, without regard to the real title of the lessor. The leasehold is a chattel interest, not real estate, and the principal right of the tenant under the implied covenant, is the quiet enjoyment of the possession of the real estate during the term, or indemnity if evicted: Noke’s Case, 4 Rep. 80 b; Spencer’s Case, 5 Rep. 17 a; Merrill v. Frame, 4 Taunt. 329; Line v. Stephenson, 5 Bing. N. C. 183 (35 Eng. Com. Law Rep. 106); Smith’s Landlord and Tenant 262, 263; Rawle on Covenants for Title, 4th ed., 464, 468; Hemphill v. Eckfeldt, 5 Whart. 278; Maule v. Ashmead, 8 Harris 482; Schuylkill and Dauphin Imp. and Railroad Co. v. Schmole, 7 P. F. Smith 271, 273; Williams on Real Property 397.
    (2.) The rule of damages should be the same in this as in other cases of contracts relating to personal property, the amount of loss sustained by breach of the contract. The covenant of the lessee to erect improvements, is part of the consideration of the lease; and upon breach of the landlord’s reciprocal covenant for quiet enjoyment, the value of such improvements should be included in the lessee’s measure of damages. Especially should this be so in this case, where the landlord appropriated the lessee’s property to pay' mesne profits due by him. The rule of damages, in the case of breach of an agreement to sell real estate, by reason of the vendor being incapable of making a good title, viz.: that the purchaser is not entitled to recover damages for the loss of his bargain, but only the amount of the deposit paid, has never been applied in Pennsylvania to the ease of leases. On the contrary, the rule here contended for, is supported both by reason and authority. In the case of a sale of real estate, the rule caveat emptor applies; the purchaser of the equitable title is not bound to improve, if he does, it is at his own risk, and he can stop at any moment on receiving notice of an outstanding title.
    In the case of a lease, caveat, emptor does not apply; the lessee has nothing to do with title; he depends upon his contract for possession; and, having contracted to improve, he is bound to perform his covenant, no matter what danger shall threaten his landlord’s title. In the case of vendor and vendee, it would be inequitable to hold the former accountable for expenditures which he did not authorize and could not foresee; but in the case of an improvement lease, the improvements being stipulated for as an inducement to the contract, the lessor should be held to indemnify the lessee for all damages suffered by reason of the lessor’s failure to assure quiet enjoyment. The lessee has a still stronger equity, where, as in this case, the improvements by the terms of the contract were to be removed by him at the end of the term, but the lessor, during the term, has appropriated them to his beneficial use.
    The cases relied upon by the other side, viz.: Bender v. Fromberger, 4 Dallas 436; Flureau v. Thornhill, 2 Wm. Black. 1078; Bain v. Fothergill, Law Rep., 7 Eng. & Ir. App. 158, and other English authorities, were cases between vendor and vendee. No case in Pennsylvania applies the same rule to leases, but several authorities in Pennsylvania, in Massachusetts and in other states, rule, that the measure of damages is the amount of the loss sustained at the time of the eviction.
    Our damages should bo, therefore, the value of the unexpired portion of the term including the use of the improvements, less the rent, and plus the value of the right to remove the improvements at the end of the term, or to sell them in place : Hemphill v. Eckfeldt, 5 Whart. 278; Maule v. Ashmead, 8 Harris 482; Schuylkill and Dauphin Imp. and Railroad Co. v. Schmoele, 7 P. F. Smith 271; Kille v. Ege, 1 Norris 102; Mack v. Patchin, 42 N. Y. 175; Rawle on Covenants for Title 251; Sedgwick on Measure of Damages 169, 180; Taylor on Landlord and Tenant 240; Mayne on Damages 107; Dexter v. Manly, 4 Cush. 14.

      A. Sydney Biddle and George W. Biddle, for the defendant in error.
    The implied covenant for quiet enjoyment contained in the words, “ demise and let,” is a covenant in law, which, in distinction from an express covenant, binds the covenantor only during the existence of his own estate: McClowry v. Croghan, 1 Grant 311; Comvn’s Dig., title Covenant; Rawle on Covenants for Title, 4th ed. 469. As the lessor here never had any estate, by reason of the outstanding paramount title, the implied covenant for quiet enjoyment, has never been broken. The defendant was, therefore, entitled to a verdict. But, if we are wrong in this, the plaintiff was only entitled to nominal damages, the stoppage of rent being an equivalent for the loss of possession.
    The rule of the measure of damages for eviction by paramount title, which applies to. cases of vendor and vendee, applies equally to cases of lease. The rule of caveat emptor applies to leases as well as to sales, although in ordinary short leases, it is neglected, because immaterial. A lessee is a purchaser pro tanto: 2 Sugden’s Vendors and Purchasers, 10th ed., 140, 141, 148; Keech v. Hall, Douglass’ Rep. 21; Waring v. Mackreth, Forrest Rep. 129; White v. Foljambe, 11 Vesey, Jr. 343; Purvis v. Rayer, 9 Price 488. The cases cited by Mr. Rawle (Cov. for Tit. 251—255), relied upon by the other side to sustain a supposed exception, were cases of express covenants, and do not apply to an implied covenant for quiet enjoyment.
    The argument, that the lessor exacted a covenant from the lessee to erect improvements, and when the paramount title succeeded, the lessor availed himself of the lessee’s improvements, so erected,as a set-off against mesne profits, and now refuses to compensate the lessee therefor — is plausible but fallacious. The lessee’s covenant to put up machinery was only to enable him to pay rent, and as a security to the lessor; if he had not put up the machinery, but had paid the rent, the lessor could have recovered only nominal damages for the breach of the covenant to improve. True, the lessee had the right to “ take down and remove” the improvements at the end of the term, but, he claims their value affixed to the freehold, which is infinitely larger than would be the value of the removed debris. In the absence of fraud by the lessor, the lessee’s damages are'to be measured, not by what the lessor received credit for by way of set-off against the paramount owner, but by what the lessee’s loss was, if any, at the time of the eviction. As he had paid no rent in advance, and as he enjoyed the possession with the improvements for a period commensurate with that of the payment of rent, his damages were only nominal: Bender v. Fromberger, 4 Dallas 442; Flureau v. Thornhill, 2 Wm. Blackstone 1078; Rawle on Covenants for Title 235, et seq.; Bain v. Fothergill, Law Rep., 7 Eng. & Ir. App. 158; 4 Kent Com. *474; Statts v. Ten Eyck, 3 Caines N. Y. Rep. 111; Pitcher v. Livingston, 4 Johns 1. See also opinion of Mitchell, J., on rule for new trial in this case: 7 W. N. C. 294.
   Mr. Justice Paxson

delivered the opinion of the court, February 21st 1881.

This was an action of covenant brought by the lessee of certain ore lands in Cumberland county, against the lessor, to recover damages for an eviction from the demised premises. - The lease was for the term of fifteen years, and some time prior to its expiration the lessee was evicted under ejectment proceedings upon a paramount title.

It is settled by abundant authority that the word coneessi or demisi in a lease implies a covenant for quiet enjoyment during the term. It is sufficient to refer to Hemphill v. Eckfeldt, 5 Wharton 274; Maule v. Ashmead, 8 Harris 482; Schuylkill and Dauphin Improvement and Railroad Company v. Schmoele, 7 P. F. Smith 271; Nokes’s Case, 4 Rep. 80 b; Line v. Stephenson, 35 E. C. L. R. 106; Smith’s Landlord and Tenant 263; Rawle’s Covenants for Title 464.

So much is conceded. Nor is it denied that, for a breach of the covenant implied from the use of the word let or demise, an action can be maintained. The only contention is, as to the proper measure of damages. The plaintiff offered to prove in the court below (see first specification), the value of the improvements which he had erected upon the demised premises, as a means of ascertaining the damages which he had sustained by reason of the eviction. The court below ruled out the offer, and instructed the jury to find nominal damages only.

The eviction here, as before stated, was by a paramount title. It is not the case of an eviction by a landlord, in disaffirmance of his own act, or by a fraud perpetrated upon the tenant. It is important. to bear this distinction in mind, as the measure of damages is different in the two classes of cases.

It may be conceded tó be settled law in England that the measure of damages for the breach of an express covenant for quiet enjoyment is the value of the property at the time of the eviction; Williams v. Burrell, 50 E. C. L. R. 401; Lock v. Furze, 115 Id. 94; Rolph v. Crouch, L. R., 3 Exch. 44. These cases hold that the rule in Flureau v. Thornhill, 2 W. Black. 1078, that, where a contract of sale of real estate goes off in consequence of a defect in the vendor’s title, the vendee is not entitled to damages for the loss of the bargain, does not apply to the case of a lease granted by one who has no title to grant it.

In this state it is settled that, as between vendor and vendee, the measure of damages is the consideration paid. Bender v. Fromberger, 4 Dallas 441, which expressly ruled the point, has never been questioned, but, on the contrary, has been followed in a number of later cases, which it is needless to cite. While the contrary doctrine has been asserted in a few of the states, the principle of Bender v. Fromberger has been recognised in a large majority of them, and by the Supreme Court of the United States. The cases will be found collected by Mr. Rawle in his Covenants for Title, p. 235.

The question which immediately concerns us is whether the same rule applies as between lessor and lessee. In England, as we have seen, it does not, and the measure of damages is the value of the property at the time of the eviction. Upon this point the authorities are meagre, and by no means uniform. The true rule, however, would appear to be, that in an action by a lessee against his lessor for an eviction by a paramount title, the measure of damages is the consideration paid, and such mesne profits as he has paid or may be liable for. The consideration for a lease is usually the rent reserved. If the tenant has enjoyed the possession of the demised premises, he has had the precise equivalent for the rent; if he has paid the rent in advance, he is entitled to recover it back in the form of damages for the eviction. This is substantially the rule laid down in Mack v. Patchin, 42 N. Y. 167, where it was said by Earl, O. J.: “ In an action by the lessee against the lessor for breach of covenant for quiet enjoyment, the lessee can ordinarily recover only such rent as he has advanced, and such mesne profits as he is liable to pay over; and in cases where the lessor is sued for a breach of contract to give a lease or to give possession, ordinarily the lessee can recover only nominal damages and some incidental expenses, but nothing for the value of his lease. These rules, however, much they may be criticised, must be regarded as settled in this state.” The learned chief justice then proceeds to say, that, “at an early day, in England and in this country, certain cases were declared to be exceptions to these rules, or, more properly speaking, not to be within them: as, if the vendor is guilty of fraud; or can convey, but will not, either from perverseness or to secure a better bargain ; or if he has covenanted to convey when he knew he had no authority to contract to convey; or where it is in his power to remedy a defect in the title and he refuses or neglects to do so; or when he refuses to incur expenses which would enable him to fulfil his contract; in all these cases, the vendor or lessor is liable to the vendeé or lessee for the loss of the bargain, under rules analogous to those applied in the sale of personal' property.” Mack v. Patchin came within th.e exceptions noted above. The tenant in that casé was evicted under proceedings to foreclose a mortgage upon the demised premises, which •mortgage antedated the lease. The foreclosure was evidently procured by the lessor. The collusion of the latter appears in the report of the facts of the case, in the qpinion of the court, and is specially referred to in the concurring opinion of Mr. Justice Smith, who said, “ the plaintiff (tenant) was clearly evicted from the premises by the act, procurement and fault of the defendant (lessor). He expedited, if he did not instigate, the foreclosure of the mortgage under which the eviction was had. He became a joint purchaser, on the mortgage sale, of the demised premises, and a joint petitioner with Dorsheimer for the writ of assistance under which the plaintiff was evicted from the premises.” Under these circumstances, it is not surprising that the- court permitted the lessee to recover, not nominal damages merely, but the value of the lease, less the rent stipulated to be paid.

The case in hand does not come within either of the exceptions noted. Neither fraud nor bad faith was imputed to the lessor. He demised the premises under the belief that he had a good title. The lessee leased the premises under a similar belief; both were mistaken. The lessor loses what he paid for the property, unless he is protected by apt covenants in his title, and is liable to his lessee to the extent of the consideration paid by the latter. Is he liable beyond this ? The lessee contends, that he is also responsible for the improvements made by said lessee upon the property.

The liability of a lessor under the implied covenant for quiet enjoyment, for improvements made upon the demised premises by the lessee, may depend upon circumstances. A tenant, who, upon his own motion and for his own purposes, erects a building or other improvement upon a leasehold, certainly cannot recover the value thereof from the lessor in event of an eviction. In such case, the rule of eaveat emptor would apply. It was his own folly to build upon another’s land. It was contended that the case in hand does not come within such rule, however, for the reason that the lessee covenanted with the lessor to erect the improvements in question. The lease does contain such a covenant, as to a portion of the improvements. It provides, that the lessee shall “forthwith procure and set up good and approved machinery, to take out and work said ore,” and the lessor “ covenants and agrees, to and with the said lessee, that he shall have the full privilege of building houses and erecting all necessary machinery for developing, working and taking out the ore upon the said tract; and that at the expiration of the hereby demised term, or in case the ore shall not be found in sufficient quantity upon the said tract, he shall have the right to take down and remove all buildings and machinery so put up or erected.”

So far as the improvements which were put up by permission merely of the lessor are concerned there can be no question. There was no obligation to put them up, and there can be no recovery. But it is said, that as to the machinery, there was a covenant to erect it, and therefore the lessee may recover its value in this proceeding. It will be observed that in no event was it to become the property of the lessor. The lessee was expressly authorized to remove it at the close of his term, or sooner, if ore shall not be found in sufficient quantity upon the tract. We are, therefore, unembarrassed with the question that -would arise had the covenant required the improvements to be left upon the premises at the expiration of the term. The improvements were primarily for the use and benefit of the lessee in his business. He leased the premises for the purpose of mining iron ore. This necessarily involved the use of the machinery and appliances usual in such business. Without them, the tenant could not possibly have made the rent which he had covenanted to pay. The lessee having covenanted to mine the ore, the covenant to erect the necessary machinery added nothing to its strength, for the reason that such erection was an essential incident of such mining. He might as well have covenanted to put on the mules, carts, picks and tools ordinarily used in mining. The lessor had neither title nor interest in the machinery. He could not be said to have derived any benefit from it, except incidentally, as it enabled the lessee to pay the rent. The most that can be said is that it increased the lessor’s security for his rent. The payment of the rent upon the days and times stipulated would have been so far an answer to a suit by the lessor against the lessee for a breach of the covenant of the latter to erect the machinery, that nominal damages only could have been recovered. If, then, the machinery was the property of the lessee, was erected for his own convenience in the prosecution of his business, it cannot be said to have been a part of the consideration paid for the lease. Not any more than in the ordinary case of landlord and tenant, when the latter for his own convenience and without a covenant erects a building or puts up machinery for the purposes of trade. In either case, the lessor has increased security for his rent, to the exact amount that property of this description is placed upon the premises.

There was evidently a mutual mistake in regard to the title. Why should the lessee throw the consequences of that mistake wholly upon the lessor? He was neither deceived nor misled by the latter. He probably examined the lessor’s title, at least he might have done so, and the omission of such examination would be negligence under the circumstances. While it may be and doubtless is true, that in ordinary short leases, an examination of title is neither usual nor necessary, the same cannot be said in regard to leases of valuable ore-lands, having fifteen years ,to run, and when from the necessities of the business costly improvements are required. The lessee of a small tenement has little occasion to concern himself about the title. If he is evicted, the rent ceases, and that is the end of it. But in leases of the character of the one we are considering, title is of such supreme importance, that no one but a very careless man would ever think of renting without a careful examination. However careless a man may be as to title in ordinary leases, it is well to understand that, when a lessee seeks to improve demised premises, the rule of caveat emptor applies, and he would do well to see that his lessor has title. And if not satisfied therewith, he may further protect himself by apt words in an express covenant.

There is no case in this state which is in conflict with this'view. Hemphill v. Eckfeldt, 5 Whart. 274, is not in point. The question of the measure of damages in an implied covenant for quiet enjoyment was not before the court. In Maule v. Ashmead, 8 Harris 482, the eviction was not by title paramount, but by the act of the lessor, and comes within the exceptions noted in Mack v. Patchin, supra. In Schuylkill and Dauphin Railroad Co. v. Schmoele, 7 P. F. Smith 271, the measure of damages was not even adverted to. Kille v. Ege, 1 Norris 102, was an action for mesne profits, and raised no such question as the one we are considering. MeClowry v. Croghan’s Adm’rs, 1 Grant 307, is an authority the other -way. That was an action to recover damages for the breach of a contract to renew a lease, and it was held the plaintiff could not recover for the loss of his bargain; that the value of the contract was not the measure of damages for its breach.

We are of opinion the court below committed no error'in excluding the offer to show the value of the improvements referred to in the first specification.

The second specification alleges that the court erred in excluding plaintiff’s offer to prove “ that the defendant, in an action against him for mesne profits, by the claimant in the ejectment suit, fixed the value of said improvements at the sum of $9600, and used the same as a set-off to the claim for mesne profits and was allowed for the same.” There was no error in rejecting this offer. Under no circumstances, as we view the case, would such evidence have been admissible. If avo concede the right of the plaintiff to recover more than nominal damages, it is manifest he could only claim the value of the machinery after its removal, Avhereas the offer is to show its value in place. It is not to the purpose that years after-wards, the defendant, in an action against him for the mesne profits, succeeded in reducing the damages by showing that the value of the property Avas enhanced by the improvements. He would have had the same right, had they been placed there by a stranger or even by a trespasser. His defence in that suit was that the plaintiff had gotten back his property, increased in value; he -was not using Lanigan’s property, nor his own as a set-off, but merely reducing the plaintiff”s claim to what ex aequo et bono he was entitled to recover. Had the suit been against Lanigan for the mesne profits, he could in like manner have set up the value of the improvements as a defence pro tanto. Had there been a verdict against him, I have no doubt, under all the authorities, he could have recovered it back in this proceeding as a part of his damages for the eviction. But he would have been limited to the amount of the verdict, not the verdict plus the improvements by which its amount had been reduced. As, however, the action for the mesne profits was against Kille, Mr. Lanigan has no further concern in that matter, and it- is referred to only by Avay of illustration.

The third specification has been sufficiently answered by Avhat has been already said.

The judgment is affirmed.


author: Mr. Justice Trunkey

text:
    Hoffner and Farrell versus Wynkoop.
    1. An illiterate testator, by an ill-spelt and ungrammatical will, devised and bequeathed his real and personal estate to his wife for life, and left several small bequests to such of his children as were living at the date of his will. He did not mention certain of his grandchildren, issue of a deceased son. Testator indicated no residuary legatee or devisee, named no one as heir or next of kin, and made no disposition of property after the life use above mentioned. He directed that certain real estate might be sold, if his wife and children could agree, but made no provision for its disposition, whether converted or not. Held, that no intent could be inferred from the will to disinherit any of those who were entitled to the last-mentioned piece of real estate at the death of testator's widow, under the intestate law of the Commonwealth, and that, therefore, the descendants of the above-mentioned son, who had died before testator, were entitled to recover a share in said real estate.
    2. Where under the provisions of the Act of February 24th 1834, sect. 15, Pamph. L. 75, a purchaser institutes proceedings in the Orphans’ Court to compel specific performance of a decedents’ contract of sale of real estate, it is necessary, in order to give full force and effect to the decree entered in such proceedings, that the heirs and devisees of such real estate should be made parties to said proceedings; as to such of them who are not made parties, the decree is of no effect.
    January 25th 1881.
    Before Sharswood, C. J., Mercer, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1881, No. 62.
    / This was an action of ejectment by 'Benjamin J. Wynkoop, H. P. Garibedian and Hannah Matilda, his wife, in her right, and Joseph P. Wynkoop and Kate S. Wynkoop, minor children of George H. Wynkoop, deceased, by their next friend Benjamin J. .Wynkoop, against Sarah A. Hoffner and Isaac Farrell, to recover one undivided fifth part of a certain house and tract of land in that part of the city of Philadelphia known as the Neck. Plea, not guilty.
    On the trial, before Elcock, J., both parties claimed title under Abraham Wynkoop. The plaintiffs claimed as heirs-at-law, being children and grandchildren of Joseph P. Wynkoop, a son of Abraham Wynkoop, as hereinafter mentioned, and the defendants claimed by virtue of an agreement of lease, with alleged contract of sale, executed by the .said Abraham Wynkoop in his lifetime, arid subsequently carried into effect by his executors, under a decree of the Orphans’ Court. The plaintiffs denied that they were bound by the said proceedings in the Orphans' Court and deed, and objected to their admission in evidence, because they were minors at the time, and were not made parties to said proceedings nor notified thereof. The court overruled the objection, admitted the deed and proceedings in evidence, and directed the jury to find a verdict for the plaintiffs, reserving the question of law, whether the plaintiffs were concluded by the proceedings in the Orphans’ Court.
    The facts, in detail, were as follows: In 1849, Abraham Wynkoop and his sister Ann Wynkoop, being the owners in fee of the farm in question, leased it to William llorner, with the right to purchase the same during the term at the rate of $160 per acre. Ann Wynkoop soon afterwards died intestate, unmarried and without issue, whereby her title to the said premises became vested m her brother, the said Abraham Wynkoop, who died January 30th 1852, having by his will directed as follows: “To my wife Hannah Wynkoop, I leave and bequeath all my Real Estate and Personal Estate to have and hold during her natural life (if she remains my Widow), she may sell the dwelling-house No. 137 North Eleventh Street, if she think it for the best and the comfort of herself and her children. My proportion of the farm in the Neck may be sold if all can and do agree. My wife, sister Ann, Benjamin my son and Alfred my son, my daughter Almira Ann, Francis A. my son. As I have not much to leave, I do in Remembrance leave to my son, Benjamin Norman Wynkoop, 20 dollars, ditto to my son Alfred Washington Wynkoop 10 ditto. To my dear daughter Almira Ann Wynkoop, my silver watch, my desk and all that is in it, half of my silver spoons, &c. And I hope that her Deare Mother will be kind and affectionate to her and give hor such Bed and Bedding and Clothing as will make our daughter Comfortable and happy. To my son Francis A. Wynkoop Ten Dollars, and now may the Blessing of our own Heavenly Father rest upon you all, Amen.
    “I leave my son Benjamin N. Wynkoop my Executor, and my wife Hannah Wynkoop my Executrix.”
    Abraham Wynkoop had five children, to wit: Joseph P., who died during his father’s lifetime, and Benjamin N., Almira Ann, Alfred and Francis A., who survived their father; the said Joseph P. Wynkoop left surviving him four children, to wit: George IL, Benjamin J., Thomas P., and Hannah M., who married H. P. Garibedian; the said George II. Wynkoop died in 1876, leaving three children, to wit, Joseph, George arid Kate S.; Thomas P. Wynkoop died in 1864, intestate, unmarried and without issue.
    Hannah Wynkoop, widow of Abraham Wynkoop, survived him, and died in December 1878, intestate.
    In 1852, William Horner assigned all his right, title and interest, in said lease, to George Iloffner, who, in January 1853, presented his petition to the Orphans’ Court, praying for a decree of specific performance of the contract of sale contained in the lease. The court issued a citation to Hannah Wynkoop and Benjamin Wynkoop, executors of Abraham Wynkoop, deceased, and to Benjamin N., Almira A., Alfred W., and Francis A. Wynkoop, the children of Abraham Wynkoop named in his will. They joined in a return desiring that the contract might be carried into effect, whereupon the court entered a decree directing the executors, on payment of the purchase-money, to execute a deed to George Hoffner for the premises, which was done January -26th 1853. George Hoffner subsequently died in Juné 1871, having by his will, dated October 28th 1853, devised all his estate to his wife, the defendant Sarah Hoffner, under whom the defendant Isaac Farrell was in possession as tenant.
    The plaintiffs brought this action of ejectment to December Term 1879, and a verdict for plaintiffs having been rendered in accordance with the direction of the court, subject to the point of law reserved, as above set forth, the court, after argument on a motion for a new trial and to enter judgment for defendants non obstante veredicto, dismissed the motion and entered judgment for the plaintiffs upon the point of law reserved.
    The defendants thereupon took this writ of error, assigning for error the entry of judgment for plaintiffs.

      Charles Davis and Charles S. Pancoast (Lewis C. Cassidy with them,) for the plaintiffs in error.
    The proceedings in the Orphans’ Court were in accordance with the provision of the Act of February 24th 1834, section 15 (Pamph. L. 75), and were entirely regular. Notice was given by citation to all the parties named in the will of Abraham Wynkoop as devisees. We submit that the testator .intended to vest in those devisees his entire fee-simple in the premises, subject only to the widow’s life-estate and to the right of the lessee or of the executors to enforce specifically the contract of sale. Why should the petitioner then .travel outside to find who were the heirs of the testator — the children of his deceased son, Joseph P. Wynkoop, who were not mentioned in the will ? Their claim is not under the will, but they claim that there is an intestacy as to the fee. Intestacy will never be presumed where the will may be fairly construed to carry the whole estate, and such” an intention is clearly shown in. this will in favor of the widow for life, and after her death in favor of his children by his second marriage whom he expressly names. No other objects of his bounty are mentioned in the will. Although there is no express devise to them of the fee, the power of sale given to his wife of the Eleventh street property, “ if she thinks it best, and for the comfort of herself and her children” — in connection with the provision for the sale of the farm in question, if his wife and her children (naming them) “ can and do agree” point clearly to the construction that the testator thought he had given, and intended to give, his entire estate in said premises to his wife and her children. In such case the' parties so indicated take as if by express gift: 1 Redfield on Wills; Jarman on Wills, 5 Am. ed. (1880), p. 454, chap. 16 and 17 (note 1); McKeehan v. Wilson, 3 P. F. Smith 74; Jordan v. Fortesque, 10 Beav. 259; Farrer v. St. Cath. College, L. R., 16 Eq. 19; Hall v. Lietch, L. R., 9 Eq. 376; Crockett v. Crockett, 2 Phill. Ch. 553; Shovelton v. Shovelton, 32 Beav. 143.
    The plaintiffs therefore inherited no estate in the premises from their ancestor Abraham Wynkoop ; but if they did, they were concluded by the proceedings in the Orphans’ Court, notwithstanding they were not named as parties therein. By the contract of sale in the lease the testator’s estate was converted into personalty over which his personal representatives had absolute control. In such case notice of proceedings to enforce the contract, under the Act of 1834, need not be given to the heirs: West Hickory Mining Association v. Reed, 30 P. F. Smith 38; Thompson v. Adams, 5 Id. 479.
    But even if the heir is entitled to notice under the act, the want of such notice does not entitle him to recover in ejectment from the purchaser, but only entitles him to a day in court to show, if he can, that the decree enforcing specific performance should not have been made. Otherwise the heir would defeat the purchaser’s equitable as well as his legal title, and he would thus recover a larger estate than his ancestor died seised of: Sutter v. Ling, 1 Casey 466. The court should have entered judgment for the defendants non obstante veredicto.

      Benjamin P. Wrigley (William Hopple, Jr., with him,) for defendants in error.
    The question reserved related solely to the effect of want of notice to the plaintiffs of the Orphans’ Court proceedings. The question of construction of the will is here raised for the first time. During the thirty years which have elapsed since the testator’s death, the children, the executors, and all parties interested have lived in an unquestioned construction of the will. There is nothing in the will which imports a devise of a fee or a conversion into personalty.
    Under all the authorities, notice to the heirs is necessary upon the application by the purchaser for specific performance of the contract of a decedent, under the Act of 1834. Without such notice the proceeding is void as to the heirs: McKee v. McKee, 2 Harris 231; Anshutz’s Appeal, 10 Casey 375; West Hickory Mining Association v. Reed, 30 P. F. Smith, 38-46; Horner & Roberts v. Hasbrouck, 5 Wright 169; Cadmus v. Jackson, 2 P. F. Smith 295. The cases cited by plaintiff in error were either cases of sale for payments of debts, or where there had been a conversion by contract of sale in the vendor’s lifetime. There was no conversion here, the alleged contract of sale being a mere personal “privilege” to William Horner which he never elected to accept and which was not assignable. Hoffner was not a tenant under the term granted to Horner, by virtue of the assignment from Horner, but on the acceptance of rent from him by the heirs of Horner’s lessor, he became tenant from year to year. There was therefore no privity of contract between Hoffner and the heirs of Abraham Wynkoop, deceased, at the time of the Orphans’ Court proceeding, and the title to Hoffner thereunder is of no more effect against us than would be a deed to Hoffner from some of the heirs of Abraham Wynkoop in which we had not joined.
   Mr. Justice Trunkey

delivered the opinion of the court, February 7th 1881.

Title to the land was vested in Abraham Wynkoop. He leased to William Horner for the term of five years from March 1st 1849, and gave him the privilege of purchasing on certain terms, at any time before the expiration of the lease. Horner assigned to George Hoffner, upon whose petition the Orphans’ Court decreed specific performance of the contract for sale. Yerdict was rendered for plaintiffs, subject to the opinion of the court on the point of law reserved, “ whether the plaintiffs are concluded by the proceedings in the Orphans’ Court, they not being made parties, or having notice of the said proceedings.”

In strictness, the reservation assumes that the plaintiffs aré entitled to recover, unless barred by said decree; yet the defendants now urge, what they did not in the court below, namely, that the plaintiffs ha.ve no interest in the land because it was devised to other persons by Abraham Wynkoop. If this be so, their claim is groundless, and it is clear that they were not entitled to notice, nor can they question said decree. Abraham Wynkoop’s will is plain. He gives the use of his real and personal estate to his wife, and small legacies to his children, who were .living at its date. His. grandchildren, the plaintiffs, whose father died before the making of the will, are not mentioned. He made no disposition of his property which would remain after the life use, and payment of the specific legacies. There is not a word to indicate a residuary legatee; nor does he nariie any persons who shall be his heirs or next of kin. The giving of specific legacies to designated persons neither makes them residuary legatees nor vests in them the right to take the whole estate as heirs. With less reason can such act be deemed evidence of an intendment to disinherit any one entitled to take as an heir-at-law. The testator provided that part of his real estate might be converted, in the discretion of his widow, and another part upon agreement of his widow, sister and children, whom he named; but was silent as to its disposition whether converted or not. It is impossible to hold that he intended to dispose of the remainder of his estate, for there is no expression from which such intent may be inferred. It therefore passes under the intestate law.

Section 15 of the Act of 1834, Pamph. L. 75, provides, that where a decedent had bound himself in his lifetime to sell and convey real estate, and had made no sufficient provision for the performance of his contract, his executors or administratprs, or the purchaser, or other person interested in such contract, may apply, by bill or petition, to the Orphans’ Court, “and after due notice of such bill or petition, to the purchaser, or to the executors or administrators and heirs of the decedent or devisees of such estate, as the case may require, to appear in such court on a day certain, and answer such bill or petitionand if the case be sufficient in equity, said court may decree specific performance of the contract. In West Hickory Mining Association v. Reed, 30 P. F. Smith 38, it was decided that where the application is by the executors or administrators of a vendor, notice to his heirs or devisees is unnecessary. Prior to that ruling, it was often thought that notice in all cases was necessary to be given to the heirs or devisees, in order that the decree be conclusive against them. This was recognised in the opinion by remarking that, “ while there are enough of dicta in the authorities to inspire some doubt, it is believed that the construction which the language of the statute contains is not inconsistent with any definitive judgment of this court.” After noting the plain and obvious sense of the words of the statute, it was said: “ Three alternative directions are given, one of which is to be pursued as the facts of a particular case shall make it requisite and appropriate. In the first instance, purchasers ; in the second, executors or administrators and heirs of a decedent, and in the third executors or administrators of a decedent, and the devisees of the estate are entitled to notice.”

It had not been doubted that wdien a purchaser applied, notice to the heirs or devisees of the real estate was requisite as well as notice to the executors or administrators. Such is the express direction of the statute. The dicta were, that heirs or devisees of the vendor should be notified, even when his personal representativcs applied; and the dicta were inspired by more than a doubt as to necessity of notice to them for a final decree. Why the statute demands notice to heirs or devisees when the purchaser petitions, and dispenses with it when the personal representative petitions, would be useless to discuss. The distinction is probably for wise reasons.

The defence rested on the decree of the Orphans’ Court. As respects the plaintiffs that decree is a nullity, because of the facts stated in the reserved point.

Judgment affirmed.