text:
    Bradstreet et al. versus Everson et al.

    1. Defendants had a “mercantile agency” in Pittsburg. Plaintiffs delivered acceptances at defendants’ office, payable in Memphis, and took a receipt for them “ for collection,” signed in defendants’ name, from a person acting in their business. Two years afterwards a person from defendants’ office got from plaintiffs a power of attorney to enable defendants to collect the money, which defendants sent to their agent in Memphis. The defendants denied that they received the drafts for collection, and that the receipt was signed by their authority. Held, that these and similar facts were evidence for the jury as to the receipt being the defendants’.
    2. By giving the receipt “ for collection ” the defendants undertook themselves to collect, not merely to remit for collection to some responsible attorney.
    3. The defendants had agents in different parts of the country, one of them collected the money and failed to pay it over; the defendants having given a receipt “for collection” were liable for collections made by their agents unless they expressly limited their liability.
    4. Liability of attorneys at law and collecting agencies stated in this case.
    October 10th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 99, to October and November Term 1871.
    This was an action of assumpsit brought June 19th 1870 ; W. H. Everson, Barclay Preston and C. L. Grant, trading as Ever-son, Preston & Co. against Henry Bradstreet, C. H. Ranney, M. Hoffman and L. B. Reese, trading as J. M. Bradstreet & Son.
    The plaintiffs’ affidavit of claim averred that on the 2d of June the defendants were carrying on a mercantile agency in Pittsburg, and had agents throughout the United States, one branch of their business being to make collections through their agents; on that day the defendants undertook to collect for the plaintiffs, four drafts, amounting in all to $1726.37, which had been drawn by them on Watt C. Bradford, of Memphis, Tennessee, and had been accepted by him. On the delivery of the drafts the defendants gave plaintiffs this receipt:—
    “ J. M. Bradstreet & Son, Improved Mercantile Agency,
    Pittsburg, June 2d 1865.
    “ Received from Messrs. Everson, .Preston & Co., four duplicate acceptances for collection, against Watt C. Bradford, Memphis, Tennessee, amounting in all to $1726.37.
    “ J. M. Bradstreet & Son.”
    The defendants sent the draft to John W. Wood, their agent at Memphis, who previously to September 1867, collected the money due on them with interest; the plaintiffs have since frequently applied to the defendants for the money so collected, but they had refused to pay it over.
    The affidavit of defence was made by E. H. Nevin, the agent of the defendants and the superintendent of their Pittsburg office. It averred that it was not part of the business of the defendants “ to take or make collections through their agents on the 2d day of June 1865” of since; that the defendants never received any drafts for collection, as set forth in the affidavit of claim ; that they did not at any time authorize or permit their agents or superintendents to receive for them any collections of any kind, but had long previously to the 2d of June 1865, forbidden their agents to receive any, and if any of their agents had received from the plaintiffs for collection the drafts set forth in the claim, “it was without their knowledge, against their instructions and never received their acquiescence or approval.”
    The case was tried March 27th 1871, before Sterrett, P. J.
    Preston, one of the plaintiffs, testified that he delivered the acceptances to the defendants and got from them the receipt mentioned in the affidavit of claim.
    The plaintiffs offered the receipt in evidence ; it was objected to as not being the receipt of the defendants, not signed by them nor by their authority. The court decided that there was sufficient evidence of its being genuine to go to the jury, and sealed a bill of exceptions.
    Preston testified that the business of the defendants was that of a mercantile agency, and furnished information of the standing of parties all over the country; they issued a book to which the plaintiffs were subscribers, giving information on the subject of their business ; there was no agreement with the defendants as to their charge; Dunn & Co., another mercantile agency, had collected for plaintiff and charged them 5 per cent.
    On cross-examination, Preston said he had never seen Bradstreet, nor did he know that he ever had seen any of the defendants; had heard that some of them lived in New York, and that they had their principal place of business there; he did not know who gave him the receipt or by whom it was written; it was given to him by a person in the office attending to the business.
    Under objection and exception, the plaintiffs gave in evidence the books of defendants produced under a rule.
    The entries showed, as follows:

      “ By whom received, Everson, Preston & Co. | Plaintiffs’ name, j Everson, Preston & Co. Defendant’s name, Watt C. Bradford, Memphis, Tenn.
    To whom sent, John W. Wood, Memphis. When sent, June 2d 1865. Amount, $343.46, accept. 408.36 “
    842.31
    132.24 “ ’’
    In the ledger, under date June 21st 1865, the plaintiffs' are credited by the above drafts severally.

      The plaintiffs then rested.
    For the defendants, Nevin, their superintendent, testified that the business of defendants’ agency since 1865 was to advise their subscribers only, as to the mercantile standing of business men; the books given in evidence by plaintiffs were the books of Bradstreet, Hoffman & Co.; the defendants were not members of that firm ; the business of Bradstreet, Hoffman & Co. was to make collections and settle claims; they made collections through defendants’ office for two or three years; employed witness and others in defendants’ office; he believed plaintiffs and all other subscribers knew that Bradstreet, Hoffman & Co. were the collecting firm. As to the claims of plaintiffs, he consulted them and acted in the whole matter, as to directions to attorney, &c., under the explicit instructions of plaintiffs, and followed their instructions in detail; the claim was sent to J. W. Wood, of Memphis; he reported from time to time, and witness reported to plaintiffs, showed them every paper that he received; Wood was not the agent or attorney of the defendants; witness closed the business of Bradstreet, Hoffman & Co. by direction of the defendants; the office of defendants in Pittsburg was a branch office. J. M. Bradstreet was a member of both firms.
    The defendants then read the deposition of J. B. Woodward, Esq., of Memphis, in which he said that the reputation of Wood, in July 1865, was good; he was. an old lawyer; late in 1867 for the first, his reputation for honesty was called in question; in October 1867, deponent commenced proceedings against him to recover about $2000 which he had collected in 1866 for plaintiffs on these drafts from the estate of W. C. Bradford, the acceptor; deponent recovered against Wood a judgment which he removed to the Supreme Court; the case, owing to the disarrangement of the business of that court, had not been heard there, but it was expected it would be in May 1871; witness received a power of attorney from the plaintiffs to prosecute the suit. Wood offered to deponent to give real estate for the debt at a valuation to be fixed by appraisers chosen by the parties; he wrote to plaintiffs advising them to accept it, as it would be a good investment; to this deponent received no answer. He wrote again on the 24th of January 1869 on the same subject, and received an answer from plaintiffs, dated January 31st. Deponent did not communicate Wood’s proposition to the defendants; the property offered had increased in value much beyond the debt. Deponent was of opinion that the Supreme Court would affirm the judgment against Wood, and if so, the money could be made. The deponent called on Wood for payment in company with J. De Soto, an agent of defendants, and at his resquest; deponent received no instructions from plaintiffs; his correspondence had been with the defendants. Deponent was acting as attorney of record for plaintiffs at the solicitation of De Soto; the defendants had no cause of action against Wood; deponent procured plaintiffs’ power of attorney through defendants, in order to prosecute the suit as attorney of record.
    The following is the power of attorney to J. B. Woodward:—
    “ Know all men by these presents, That we, Everson, Preston & Co., &c., have made J. B. Woodward, &c., our true and lawful attorney, for us and in our name, place and stead, to demand and receive of and from John W. Wood, attorney at law, all moneys belonging to us, and by him, said Wood, collected from Watt C. Bradford (now deceased), or from the personal representatives or estate of said Watt O. Bradford ; and upon the receipt of said moneys in our name and stead a full acquittance and discharge to give, execute and deliver to John W. Wood; hereby ratifying whatever our said attorney, J. B. Woodward, shall lawfully do in the premises by virtue hereof. Should the said John W. Wood refuse or neglect to pay over to said J. B..Woodward said moneys upon due demand, we hereby authorize our said attorney to take any and all legal measures to compel such payment.”
    Letter of plaintiffs referred to Woodward’s deposition:—
    “Pittsburg, January 31st 1868.
    “ J. B. WoodAvard, Esq., Memphis, Tenn. — Yours of 24th inst. has been duly received, and in ansAver would say we are thankful to you for the information contained therein. We leave the matter entirely in the hands of Bradstreet & Sons, as we hold them for the amount of our claim against Watt O. Bradford’s estate, they having collected the same through their attorney there.
    “ Respectfully yours,
    “Everson, Preston & Co.”
    In rebuttal Preston, one of the plaintiffs, testified that the power of attorney was executed at the instance of some one representing defendants for the purpose of enabling defendant’s attorney in Memphis to collect the money from Wood, and for that purpose only; and he got a receipt for the power of attorney at the defendants’ office — the person who signed the receipt and to whom he gave the power of attorney, appeared to be in charge of the office; witness never gave any directions to Nevin about collecting the money. Plaintiffs received a letter from defendants on the subject of the collection of the drafts.
    The plaintiffs then under objection — that the papers were not signed by defendants — and exception, gave in evidence the receipt and letter, written on a printed letter-head of defendants, as follows :—
    “ Received, August 30th 1867, of Everson, Preston & Co., their power of attorney, executed at our instance and request, and addressed to our agent at Memphis, Tennessee, J. B. Woodward, authorizing him to receive from John P. Wood certain moneys received by him from Watt C. Bradford or his estate, and the collection of which we haye undertaken.
    J. M. Bradstreet & Son, per D. W. .Dickey.”
    “ J. M. Bradstreet & Son. Improved Mercantile Agency.
    “ Pittsburg, February 27th 1868.
    “ Messrs. Everson, Preston & Co.
    “ Gentlemen : Enclosed please find the last letter we have received from our attorney at Memphis, in regard to your claim v. W. C. Bradford. We are doing all in our power to compel Wood, the former attorney, to pay over the money he obtained, and hope to be successful.
    “Very respectfully, yours,
    “ J. M. Bradstreet & Son,
    Per E. H. Nevin, Jr., Sup’t.”
    The plaintiffs gave evidence further by a number of witnesses that they had never received any information from defendant, or knew otherwise that Bradstreet, Hoffman & Co. were the collecting firm; and that about the year 1870 they had seen in one of the defendants’ lists, which were furnished weekly to subscribers, that defendants were no longer collecting agents.
    The defendants gave evidence that Dickey, who signed the receipt of August 30th 1867, had no authority to do so, and that the letter of February 27th 1868 was written in the usual course of their business, simply to inform their customers how the business was progressing.
    The following were defendants’ points, with their answers:—
    2. If the defendants’ office and business in Pittsburg was conducted by their agent, and the plaintiffs’ claims for collection were received by such agent or agents, the plaintiffs must first show that the acceptance and undertaking of such collections was within the authority of such agent or agents, before they can hold defendants responsible for any default in relation thereto.
    Answer: ‘‘This point is affirmed. It is incumbent on the plaintiffs to satisfy you that undertaking to make such collections was within the scope of the agent’s authority, or that the act of the agent in undertaking the collection was subsequently sanctioned or approved by the defendants. The evidence shows that the defendants held themselves out to the public as a ‘ Mercantile Agency,’ having branch offices at different points. The title employed by them to indicate the business in which they are engaged, is very general and comprehensive, and persons dealing with them might readily suppose that it included collecting, but we do not say that it did. The only evidence we have as to the character of the business transacted by other agencies of this description is that given in relation to the Mercantile Agency of Dunn & Co., of this city. The testimony tends to show that they (Dunn & Co.) undertook collections in connection with their other business; that the plaintiffs had business transactions with them, and were solicited to transfer their patronage, or part of it, to defendants’ agency. If you find from the evidence that defendants held themselves out to the public as a ‘ Mercantile Agency,’ and that making collections was within the scope of such business, and defendants had no notice to the contrary, then the defendants would be liable for the acts of their superintendent and agents in charge of the branch-office here in undertaking to make collections for the plaintiffs.”
    4. That defendants’ agent communicated with plaintiffs and others about plaintiffs’ collections in the name of defendants, and gave information relating thereto at and from an office in the charge and control of defendants’ agent, are not evidence of authority in such agent to take such collections, or to use defendants’ name.
    Answer: “ In connection with what has been said in answer to the 2d point, this point is affirmed.”
    6. If the plaintiffs placed their collections in Memphis in the hands of an agent of defendants at Pittsburg, who with plaintiffs’ knowledge was agent also for a purely collecting agency, the defendants’ principal business being notoriously of a different character, the presumption is that the plaintiffs were dealing with the said collecting agency only.
    Answer: “ If you find the facts as stated in this point, it is affirmed. The receipts and other papers in evidence tend to show that the plaintiffs were dealing with defendants, J. M. Bradstreet & Son, and not with another independent collecting agency; .but the facts are for you.”
    7. If the plaintiffs placed their acceptances of Watt C. Bradford, of Memphis, Tennessee, in the hands of some person in the office of defendants’ agent, at Pittsburg, for collection, and knew that such agent’s personal attention and direct service in such collection would not in the usual course of business be given to it at Memphis,'’ and that the employment of an attorney, at Memphis, to attend to it was necessary, or the proper and usual course of doing such business, then the plaintiffs thereby made either such person or defendants their agent therein, with power to employ an attorney or sub-agent therein, at Memphis, and their immediate agent, under such authority, would not be responsible for any default of said sub-agent, if selected with reasonable care and diligence.
    8. If the plaintiffs placed their acceptances in the hands of the defendants, at Pittsburg, for collection at Memphis, and defendants promptly sent them to an attorney of good standing, .at Memphis, and plaintiffs were at the time informed thereof, and were from time to time, for two years or more thereafter, informed of the progress of a suit carried on by such attorney, in plaintiffs’ name, to enforce the collection, then, if plaintiffs never objected thereto, their conduct would amount to a ratification of defendants’ acts, and the defendants are not liable for any subsequent default of said attorney.
    The 7th and 8th points were refused.
    9. If plaintiffs gave defendants, at Pittsburg, acceptances to collect at Memphis, Tennessee, they thereby constituted defendants their agents therein, and such agents are not responsible for any loss, so long as they have used the usual diligence and conducted themselves according to the usual course of doing such business.
    Answer: “ If the party employed by defendants to collect the acceptances in Memphis, Tennessee, received the money, and failed or refused to pay it over, defendants are answerable to plaintiffs, provided, you find that defendants’ agent here acted within the scope of his authority, in undertaking the collection, or defendants subsequently recognised or approved his act. There is some evidence tending to show that one of defendants’ agents, not directly connected with their office here, gave some attention to the claim in Tennessee.”
    10. If plaintiffs have a suit pending against said attorney at Memphis, for the money lie has collected and retained, they have thereby ratified defendants’ acts in the matter, and cannot sustain this suit.
    11. If plaintiffs have such suit in their name undetermined and with prospect of recovery, they may have suffered no actual damage for which defendants would be liable in this action, and hence they cannot recover.
    12. The evidence being uncontradicted, that there is a. suit pending in the name of the plaintiffs against John W. Wood, the defaulting attorney, now pending in the Supreme Court of Tennessee, on an appeal or writ of error taken by said Wood from a judgment against him in the court below, and that there is a prospect of plaintiffs’ recovering all their money, the plaintiffs cannot sustain this action.
    13. It is not shown that defendants’ business included making collections, nor that they personally were aware of the taking and prosecuting of plaintiffs’ claims, while it is shown that at that time and long before, defendants’ agents, in their office at Pittsburg, were acting as agents of another and different firm, whose sole business was the taking and making of collections, and that such agents entered said claims in the books of said collecting firm, and before Wood’s default in settling the business of said collecting firm, treated the collection of said claims as part thereof, such evidence is affirmative proof that defendants are not responsible for said claims, notwithstanding that said agents may, through carelessness or mistake, have used defendants’ name in receipting for, or corresponding about said claim.
    14. There is no evidence, or any right, or authority of defendants’ agents to have received plaintiffs’ claims in defendants’ name or on their behalf, or in any way to connect them or their names with anything done about said claims.
    The 10th to 14th points were refused.
    The court further charged :—
    * * * [“If it was part of the business of a ‘mercantile agency’ to receive collections, then such being the name which the defendants publicly give their business, the receiving collections is presumed to be a part of their business; and it appearing that their business was transacted by agents, those agents are presumed to have the requisite authority for the full and proper transaction of that business; and then the plaintiffs, relying thereon and not otherwise informed, are entitled to hold defendants answerable for their drafts placed in the hands of defendants’ agent for collection. The first question then is, is the receiving of collections a part of the business of a ‘ mercantile agency,’ so that people would generally take it for granted that such was the fact ? If so, the defendants’ agents are presumed to have authority so to do. The name of defendants’ business, ‘ Mercantile Agency,’ is significant, and we think in public acceptation would be taken to include the business of receiving collections. It is also in evidence that Dunn & Co.’s ‘ Mercantile Agency’ — the only one, besides defendants’, of which we have any testimony — received collections as a part of their business. You will take these facts into consideration, and if you find affirmatively on this point, then, if you believe the other evidence before you, the defendants are liable.]
    “ If you do not so find, you will then consider whether the defendants did not subsequently ratify the acts of their agents. You have before you the receipt, in defendants’ name, for the drafts, and the receipt for the power of attorney in defendants’ name, 4 per D. W. Dickey,’ a clerk in the office under Mr. Nevin, defendants’ superintendent, both receipts delivered to the plaintiffs at the defendants’ Pittsburg office. You have the letters of Mr. Nevin to the plaintiffs, written about the collection, with defendants’ letter-heads, and as if by defendants, and signed in their name, ‘ per E. H. Nevin, Jr., superintendent,’ and you have before you the fact that an agent of defendants at Memphis, one De Soto, also actively participated in attempting to recover plaintiffs’ money. You will take all these things and all the evidence in the case together, and if you are satisfied therefrom that the defendants, subsequent to the receipt of the drafts, had knowledge that they had been received by their agent for collection, and acquiesced therein, and permitted their agents to perform the acts shown to have been done by them in the character of defendants’ agents, then the defendants are to be held as having ratified the acts of their agents.” * * *
    The verdict was for the plaintiff for $2436.80.
    The defendants removed the record to the Supreme Court, and assigned for error the admission of the evidence objected to; the answers to their points and the part of the charge enclosed in brackets.

      M. A. Woodward, for plaintiffs in error.
    — The implied authority of agency is proved not from its general style but from the usages of a particular business or of a particular class of agents: Story on Agency, 96, 98; Moore v. Patterson, 4 Casey 505. Before admissions of an agent could be given in evidence the agency must be proved : Hays v. Lynn, 7 Watts 524. An implied agency cannot be extended beyond the obvious purposes for which it was created: Story on Agency, sect. 87. Custom to be good, must be certain, uniform, reasonable and sufficiently ancient to be generally known: Collins v. Hope, 3 W. C. C. R. 149; Newbold v. Wright, 4 Rawle 195. The ratification of an act of an agent, in order to bind the principal, must be with a full knowledge of all the material facts: Phila. Wil. & Balt. R. R. Co. v. Cowell, 4 Casey 329; Owings v. Hull, 9 Pet. 607; Hays v. Stone, 7 Hill N. Y. 128; Copeland v. Mercantile Ins. Co., 6 Pick. 198. An agent exercising the usual diligence will not be responsible for loss from fraud or insolvency of persons whom he has trusted: Story on Agency, sect. 202. And the loss must be actual, not merely probable: Story on Agency, sect. 222.

      M. W. Aeheson, for defendants in error.
    — Actual authority may be inferred from acts and circumstances in the absence of direct proof: Dougherty v. Hunter, 4 P. F. Smith 380; Allegheny City v. McClurkan, 2 Harris 81; Sterling v. M. & S. Trading Co., 11 S. & R. 179; 2 Kent *613 ; Piatt v. Oliver, 2 McLean 268; Wright v. Burbank, 14 P. F. Smith 247. Where one undertakes to collect money he is responsible for the acts of the agent he employs: Wingate v. Mechanics’ Bank, 10 Barr 104; Montgomery County Bank v. Albany Bank, 8 Barb. 396.
    November 14th 1872,
   The opinion of the court was delivered, by

Agnew, J.

— There are but two questions in this cause which are required to be noticed. First, whether J. M. Bradstreet & Son authorized the receipt of June 2d 1865, by which they undertook to collect the claims mentioned in it, and, second, the nature of their liability. It is undisputed that J. M. Bradstreet & Son had a branch office in Pittsburg, of what they termed their “ Improved Mercantile Agency,” and that the persons employed in this office were their agents. They only deny that their business was a collecting agency, asserting that it was confined to giving to subscribers information of the mercantile standing of men in business in the different parts of the country. It is in testimony that the acceptances mentioned in the receipts were delivered, as the witness states, to J. M. Bradstreet & Son at the office of the agency, and the receipt given for them is in the name of J. M. Bradstreet & Son, and was made out by a person in the office, acting in their business. This was in 1865. In 1867 the plaintiffs were called on by a person belonging to the office for a power of attorney to be sent to their agent or attorney in Memphis, Tennessee, to enable them to collect the moneys for the acceptances from John W. Wood, the attorney to whom the acceptances had been sent by them, and who having collected the money had failed to pay it over to the defendants. This power, directed to J. B. Woodward, of Memphis, and dated August 30th 1867, was handed to the person in charge of the Pittsburg office, who gave for it a receipt of the same date in the name of the defendants, stating that the power was executed by the plaintiffs at the request of the defendants, and addressed to their agent, J. B. Woodward. Woodward himself testifies that he was called on in Memphis by J. De Soto, the agent of J. M. Bradstreet & Son in that city, and at his request and in his company went to John W. Wood and demanded of him the money he had collected on the acceptances. He also testifies that his correspondence was with J. M. Bradstreet & Son, and not with the plaintiffs, and that he was engaged to attend to the business by J. De Soto, the agent of the defendants at Memphis. There are some minor matters not necessary to be detailed. These facts were clearly sufficient to go to the jury upon the question whether the receipt was given by the defendants, and we see no error in the court below refusing to take the ease from the jury.

The next question is upon the nature of the liability arising upon the receipt. It is^in the following words: “J. M. Bradstreet & Son, Improved Mercantile Agency. Pittsburg, June 2d 1865. Received, of Messrs. Everson, Preston & Co. four duplicate acceptances for collection, versus Watt C. Bradford, Memphis, Tennessee, amounting in all to $1726.37.” (Signed) “ J. M. Bradstreet & Son.”

It is argued, notwithstanding the express receipt “ for collection,” that the defendants did not undertake for themselves to collect, but only to remit to a proper and responsible attorney, and made themselves liable only for diligence in correspondence, and giving the necessary information to the plaintiffs; or in briefer terms, that the attorney in Memphis was not their agent for the collection, but that of the plaintiffs only. The current of decision, however, is otherwise as to attorneys at law sending claims to correspondents for collection, and the reasons for applying the same rule to collection agencies are even stronger. They have their selected agents in every part of the country. From the nature of such ramified institutions we must conclude that the public impression will be, that the agency invited customers on the very ground of its facilities for making distant collections. It must be presumed from its business connections at remote points, and its knowledge of the agents chosen, the agency intends to undertake the performance of the service which the individual customer is unable to perform for himself. There is good reason therefore to hold, that such an agency is liable for collections made by its own agents, when it undertakes the collection by the express terms of the receipt. If it does not so intend, it has it in its power to limit responsibility by the terms of the receipt. An example of this limited liability is found in the case of Bullitt v. Baird, decided at Philadelphia in 1870; the only case in this state upon the subject of such agencies. There the receipt read, “ For collection according to our direction, and proceeds, when received by us, to be paid over to King & Baird.” Across the face of the receipt was printed these words: “N. B. The owner of the within mentioned taking all the risks of the mail, of losses by failure of agents to remit, and also of losses by reason of insurrection or war.” The limitation of the liability of Bullitt & Fairthom, by Mr. Bullitt, himself a good lawyer, is evidence of his belief that a greater liability would arise without the restriction.

Recurring to the analogy of attorneys at law, the first point to be considered is the interpretation given by the courts to the terms of a receipt “for collection.” In our own state we have several decisions in point. In Riddle v. Hoffman’s Ex’r., 3 Penna. Rep. 224, Riddle, an attorney in Franklin county, gave a receipt in these words: “ Lodged in my hands a judgment-bill granted by Henry H. Morwitz to Henry Hoffman for the sum of $1200, due with interest since the 15th of May 1811, which is entered up in Bedford county, which I am to have recovered if it can be accomplished.” Riddle sent this bill to his brother, a practising lawyer in Bedford. The money was made by the sheriff', but by the neglect of the Bedford Riddle was not received from the sheriff, who became insolvent, and the money was thus lost. Hoffman sued the Franklin county Riddle on his receipt and recovered. On a writ of error it was contended that the words of the receipt, “which I am to have recovered if it can be accomplished,” imported only a limited undertaking to have it collected by another, and not to collect it himself. But this court held that the receipt contained an express and positive undertaking for the collection of the money, if practicable, and not merely for the employment of another to that end; and that the defendant was bound by every principle of moral and legal obligation to make good the collection of the judgment by the application of reasonable diligence, skill and attention.

The next case is Cox v. Livingston, 2 W. & S. 103. This was the receipt: Received of Mr. Thos. Cox, of Lancaster, Pa., for collection, a note drawn in his favor by Mr. Dubbs, calling for $497.65, payable three months after date.” The note was left with an instruction to bring suit. The receipt was dated August 30th 1837, and Livingston died in January following without having brought suit. Dubbs became insolvent. It was held that Livingston was liable for the collection, though only two terms intervened between the receipt and his death.

Krause v. Dorrance, 10 Barr 462, was assumpsit against two attorneys for money collected and not paid by another attorney to whom they sent the note for collection. The liability of the original attorneys for the collection was admitted, but the point was made and succeeded, that a demand before suit was necessary. Rogers, J., says expressly they were liable for the acts of the agent whom they employed, but being without fault themselves, a demand was necessary before a resort to an action.

In Rhines v. Evans, 16 P. F. Smith 192, the receipt was: e- Received for collection of A. Rhines one note on Lukens & Beeson, of Rochester, dated October 30th 1857, for $365.” The liability of Evans, the attorney, was conceded, and the question was on the Statute of Limitations, and it was held the action was barred by the lapse of seven years and five months from the date of the receipt.

These eases show the understanding of the bench and bar of this state upon a receipt of claims for collection. It imports an undertaking by the attorney himself to collect, and not merely that he receives it for transmission to another for collection, for whose negligence he is not to be responsible. He is therefore liable by the very terms of his receipt for the negligence of the distant attorney, who is his agent, and he cannot shift responsibility from himself upon his client. There is no hardship in this, for it is in his power to limit his responsibility by the terms of his receipt when he knows he must employ another to make the collection: Bullitt v. Baird, supra.

We find cases in other states holding the same doctrine. In Lewis & Wallace v. Peck & Clark, 10 Alabama Rep. 142, both firms were attorneys. The defendants gave their receipt to the plaintiffs for certain notes for collection, and after collecting the money transmitted it to the payees in the notes instead of the attorneys who had employed them, the payees having however endorsed the notes: Held that Peck & Clark were liable to their immediate principals, the plaintiffs, there being no evidence that the payees had given them notice not to pay over to Lewis & Wallace, the original attorneys. This is a direct recognition of the liability of the collecting attorney to the transmitting attorney. The case of Pollard v. Rowland, 2 Blackford (Ind.) Rep. 22, is more directly in point. Rowland received from Pollard claims for collection, and sent them to Stephen, an attorney in another county. Stephen obtained judgment, and collected the money: Held that Rowland was accountable to Pollard for the acts of ,Stephen to the same extent that Stephen was, and could make no defence that Stephen could not; and that Rowland was liable to Pollard for the money. Cummins v. McLain et al., 2 Pike (Ark.) Rep. 402, was a case nearly similar to the Pennsylvania case of Krouse v. Dorrance, supra. The attorney sent the claim to another attorney at a distance, and was held liable, but for the omission of the plaintiff to make a demand, he failed to recover. The court say the attorney is liable for the acts of the attorney he employs. In a Mississippi case two attorneys, Wilkison and Willison, received of plaintiff a claim for collection, and brought suit and obtained judgment. They dissolved partnership, Wilkison retiring from the practice; and Willison to.ok another partner, Jennings, who received the money from the sheriff. In a suit against Wilkison as surviving partner of Willison, he was held liable for the receipt of the money by Jennings: Wilkison v. Griswold, 12 Smedes & Mar. Rep. 669.

In view of these reasons and authorities, we hold that a collecting agency, such as the defendants have been found to be, receiving and remitting a claim to their own attorney, who collects the„ money and fails to pay it over, is liable for his neglect.

Judgment affirmed.


source: Caselaw Access Project

author: Shakswood, J. Thompson, O. J.

license: Public Domain

text:
    Hays versus Gallagher.
    1. Defendant, with the consent of a turnpike company, crossed their road with a railroad for his individual use, and raised the bed of the turnpike, passing over it with a bridge. It was the duty of defendant to keep the bridge in repair.
    2. The bridge was eighteen feet wide and ten feet long, and originally had rails on each side, which had decayed; the plaintiff was found about midnight on a dark night, lying under the bridge, hurt; he said he had fallen from the bridge, but made no other statement as to how he fell, &e. Held, the danger having arisen by the negligence of the defendant, that these facts were evidence for the jury that he had fallen for want of the rails, and that the burden was not on him to show that he was clear of contributory negligence.
    3. Beatty v. Gilmore, 4 Harris 463; Waters v. Wing, 9 P. E. Smith 211, distinguished.
    October 12th 1871.
    Before Thompson, O. J., Read, Agnew, Siiarswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 112.

      This was an action on the case, commenced February 26th 1870, by John Gallagher against Jonas H. Hays, to recover damages for injuries from falling from a bridge built by the defendant, on the Birmingham and Elizabeth Turnpike, which had been constructed more than thirty years, under an act of incorporation. The turnpike was located between the coal-mines of the defendant and the Monongahela river. In order to get his coal to the river, the defendant, about 1853, built a railroad from his mines to the river. This road crossed the turnpike. With the consent of the Turnpike Company the defendant raised the bed of the turnpike at the place of crossing and then put a bridge over his railway, making it part of the turnpike; the bridge was about 18 feet in width and 10 feet in length; at one side of it the excavation was 8 or 9 feet, at the other side 4 or 5 feet. When first built there was railing on each side, which at the time plaintiff was hurt had been torn or worn away. In October 1869, Higgins, a neighbor of the plaintiff, was called up in the night, about 12 o’clock, by plaintiff’s wife, who informed him that plaintiff had fallen from the bridge and was hurt. Higgins went to the bridge and found plaintiff lying under the bridge, badly hurt; he said he had fallen off the bridge; the night was very dark.
    There was other evidence as to the plaintiff being found under the bridge, as to the extent of his injuries, and other matters to make out his case ; but there was no other evidence as to how the plaintiff came where he was found. The plaintiff was in court during the trial, but was not called as a witness by either party.
    The defendant gave evidence in answer to the plaintiff’s case, amongst which was evidence for the purpose of showing that with care a person could walk over the bridge, even in a dark night; that the plaintiff lived very near the bridge, and was well acquainted with its condition.
    The facts above given and the charge of Judge Sterrett will sufficiently present the case.
    The defendant submitted a number of points, — the 5th and 7th, with their answers, are those only necessary to be noticed.
    5. The fact that the plaintiff was found in the cut under or near the bridge, between the hours of 11 and 1 o’clock at night, and saying that he had fallen off the bridge — without any explanation of where he had been or was going, or for what purpose he was on the bridge at that hour, or of the time or manner or cause of his falling off — are not sufficient to sustain his action for injuries occasioned by his fall.
    Answer : “ This point is refused pro forma. We will reserve the question of law raised by the point for future consideration in case your verdict is such as to require it. The facts stated in the point are not controverted.”
    7. The fact that the plaintiff, who is familiar with all the facts in this case, and the only one who can explain them, and is a competent witness in the case, being in court during the whole trial and not called as a witness for the plaintiff, is a circumstance so suspicious that the jury may properly give it great weight on the question of plaintiff’s contributory negligence.

      “ This point is affirmed with this qualification — that the jury may properly give some weight to the fact that the plaintiff, who was a competent witness, was present in court during the trial, and has not been called to explain how the accident occurred.”
    The court (Sterrett, P. J.) also charged :—
    “ The plaintiff in this case seeks to recover damages for injuries which, he alleges, were occasioned by the negligence of the defendant.
    “ It is incumbent on him to prove that the defendant was guilty of negligence, and that in consequence of this negligence alone, he received the injuries complained of. The first question then for you to determine, from the evidence, is whether the defendant was or was not guilty of negligence. It is claimed that it was the duty of the defendant to put and keep the bridge in question in such a condition that persons travelling along the turnpike in the ordinary -way would not be exposed to personal injury. It appears from the evidence, that some seventeen or eighteen years ago, the defendant constructed a coal railroad across the turnpike, by a cut about six feet deep at the upper side, and eight or nine feet deep at the lower side — that across this cut and about the centre of the turnpike, he constructed a bridge of heavy plank, about eighteen feet in length — that on the sides of this bridge, he put up a railing, or guard, which remained there until some time before the plaintiff was injured. The evidence further shows, that this coal railroad was made by defendant for his own convenience, for the purpose of transporting coal from his land on the upper side of the road, down toward the river, and that the land at that point on both sides of the turnpike belongs to him. If you find thesie to be the facts, and that the road was constructed by the defendant for his own use and convenience, it was his duty to construct the bridge in such a manner, and see that it was kept in such repair, that the safety of persons passing along the turnpike would not be endangered; and neglect on his part to perform this duty, would be what the law denominates negligence. If from the evidence you are unable to say that there was negligence on the part of the defendant, you need not inquire any further. In that event your verdict should be in favor of him. But if you find that there was negligence as claimed, in not constructing and maintaining the bridge across the cut in such a manner as not to endanger the safety of persons passing along the turnpike, and exercising ordinary care and prudence in so doing, you will then inquire whether the injuries complained of by the plaintiff, were caused by such negligence of the defendant or not; and if you find that they were, then the plaintiff will be entitled to a verdict for such sum as will compensate him for the injuries which he sustained provided the plaintiff’s own negligence, or want of care or prudence (which is the same thing), did not contribute to the accident. If the plaintiff’s injuries resulted either in whole or in part from the want of ordinary care and prudence on his own part, he is not entitled to recover any damages.”
    The verdict was for the plaintiff for $492.91, and the court afterwards entered judgment on the verdict on the reserved question.
    The defendant took a writ of error, and assigned for error the answers to the points and entering judgment on the verdict.

      White Slagle, for plaintiff in error.
    — To maintain an action for injuries caused by a defect in the highway, it must appear affirmatively, and the burden of proof is on the plaintiff to show that he was in the lawful use of the highway : Shearman & Red-field on Negligence, § 421, § 414 and note ; Angelí on Highways, § 291; 2 Hilliard on Torts, 503-5; Whitehead v. Phila., 2 Phila. Rep. 99; Farnum v. Concord, 2 N. Hamp. 292. As to the plaintiff’s silence, &c., Logan v. Mathews, 6 Barr 417. The burden of proof is upon the plaintiff, so far, at least, as to make it the duty of the jury to give a verdict against him, if his freedom from contributory fault remains in doubt: Welling v. Judge, 40 Barb. 193; Waters v. Wing, 9 P. F. Smith 211.

      Hampton $ Dahell, for defendant in error.
    — The defendant was bound to build and maintain the bridge so as to give to the public at that point a good and sufficient roadway: Phoenix v. Phoenixville Iron Company, 9 Wright 135; 1 Rolle Ab. 368, “Bridges,” p. 2; Perley v. Chandler, 6 Mass. 454; Dygert v. Schenk, 23 Wendell 446; Woodring v. Forks Tp., 4 Casey 355.
    It is not incumbent on the plaintiff to prove his exercise of the ordinary care to avoid the injury, but the proof of the want of it on the part of the plaintiff lies on the defendant. He who avers a fact in excuse of his own misfeasance, must prove it: Beatty v. Gilmore, 4 Harris 463; Waters v. Wing, 9 P. F. Smith 211. It was not negligence in the plaintiff to go on the bridge, even though he was aware of its unsafe condition: Humphreys v. Armstrong County, 6 P. F. Smith 204.
    October 21st 1872,
   The opinion of the court was delivered, by

Shakswood, J.

— It is unnecessary to consider the several assignments of error seriatim. There is nothing in any of them which requires discussion except the refusal of the court below to affirm the fifth point of the plaintiff in error, and the submission of the case to the jury upon the evidence.

It must be conceded that the bridge erected by the defendant over his coal railway, was at the time of the accident, by which the plaintiff below sustained injury, in an unsafe and dangerous condition — especially to travellers by night. Originally it was constructed with railings on both sides, but they had decayed or been torn away. The duty of repair was clearly on the plaintiff in error: Phoenixville v. Phoenix Iron Co., 9 Wright 135. Without these guards it was quite possible that a traveller on a dark night, with every care on his part, might mistake his course and walk over the side of the bridge. The cut was five or six feet deep, so that the fall would necessarily cause more or less injury. Even death might well result from such an accident. It was through the negligence of the defendant that this danger existed. Nor can there be any doubt upon the evidence that' the injury suffered by the plaintiff below did arise in this way. He was found lying immediately under the bridge, much hurt, upon a very dark night— about midnight. He declared at the time that he had fallen from the bridge. It is true, however, that there was no evidence as to the precise circumstances of the accident. The plaintiff below himself was not examined as a witness, though he was present in court. It is maintained by the plaintiff in error that this evidence was not sufficient, as it did not show a case clear of contributory negligence.

In Beatty v. Gilmore, 4 Harris 463, it was held by this court that in such an action as this, if no facts are proved from which a deduction of want of ordinary care, on the part of the plaintiff, can be drawn, the presumption is against the defendant, whose misconduct rendered the accident possible. In that case it is remarked by Mr. Justice Bell that “when in the darkness and solitude of the night, one suffers grievous injury from the culpable commission or omission of another, the carelessness which would excuse ought certainly to be of a very gross character, made apparent by direct or circumstantial proof.” There is nothing in Waters v. Wing, 9 P. F. Smith 211, which is inconsistent with this doctrine. That was a case of an injury from an accident in broad daylight. The plaintiff was riding on horseback on a public road. The defendant was driving a buggy in the opposite direction ; the shaft of the defendant’s buggy ran into and killed the plaintiff’s horse. “ It is the duty of a plaintiff seeking to recover.,” said Chief Justice Thompson, “ where the gravamen of the action is the alleged negligence of the defendant, to show a case clear of contributory negligence on his own part. In other words, he must establish a primái facie cause of action, resulting exclusively from the negligence and wrong of the defendant, before the latter need answer at all. The learned judge went too far, therefore, we think, in holding as he did in effect, in his answer to the point, that the plaintiff was not holden to such a rule, and that the defendant must disprove care, and thus establish negligence on part of the plaintiff. This would be so in a prima, facie case on part of the plaintiff. But he should have so answered the point that the jury might have been left free to consider the defects in the plaintiff’s case. If ever there was a case in which this was a duty, it was in this case. The accident occurred in open day, on a broad public highway, by a rider running his horse so hard upon the shaft of a buggy, driven at an ordinary gait, as instantly to kill the horse, though there was plenty of room to pass without obstruction.” It is plain that Waters v. Wing in no way impinges upon the rule in Beatty v. Gilmore, but is entirely accordant with it. If the plaintiff’s own evidence discloses facts which prove negligence, it is not necessary that the defendant should prove it. This almost self-evident proposition was subsequently affirmed in Pennsylvania. Canal Co. v. Bentley, 16 P. F. Smith 30, while it was at the same time there distinctly ruled that if the plaintiff makes out a primá, facie case the burden is on the defendant to disprove care or show contributory negligence.

Had the plaintiff below fallen from the bridge in question, being of the width of eighteen feet, in broad daylight, there would be great reason for saying that it could only have happened from the want of ordinary care on his part, and to have taken the case from the jury. But certainly such bridges should be constructed and kept in repair so as to be safe for travellers by night as well as by day. ' But though there was no evidence of the circumstances of the fall from which any inference of negligence upon so dark a night could be inferred, nevertheless the learned judge below instructed the jury that if the plaintiff’s injuries resulted either in whole or in part from the want of ordinary care and prudence on his own part he is not entitled to recover any damages.” In answer to one of the points he had also said “ that the jury might properly give some weight to the fact that the plaintiff, who was a competent witness, present in court during the trial, had not been called to explain how the accident occurred.” If the plaintiff below had made out a primd facie case, without his own testimony, he was certainly not bound to offer himself as a witness. The defendant might have called and examined him. Of all this the plaintiff in error has certainly no right to complain.

Judgment affirmed.

Thompson, O. J.

— It seems to me under the facts in this case, viz.: that the bridge was only eight or ten feet long and was eighteen feet wide, and that the plaintiff was perfectly well acquainted with it, that some evidence ought to have been given to clear him of negligence; for want of this, I dissent from the affirmance of the judgment.


author: A&new, J.

text:
    Clark’s Appeal.
    1. M. and C. entered into partnership, M. contributing real estate at an estimated value, which was carried into the firm’s stock account to M.’s credit. This was in equity partnership property, the legal title remaining in M.
    2. M. reserved the right on dissolution not to be bound by the estimated value, and to withdraw the property. This was a provision to correct the valuation.
    3. During the partnership the buildings were burned and rebuilt by firm funds. M. withdrawing the real estate on dissolution would take it at its then value.
    4. The property having been carried into the stock account to M.’s credit, belonged with its accretions to the firm, to be accounted for as firm assets.
    October 14th 1872.
    Before Thompson, C. J., Read, Agnew, Shabswood and Williams, JJ.
    Appeal from the District Court of Allegheny county: In Equity: No. 138, to October and November Term 1871.
    The bill in this case was filed June 6th 1867. The complainant was Robert D. Clarke, and the defendant James Marshall. During the pendency of the proceedings, the defendant died, and Thomas M. Marshall and others, his executors, were substituted.
    The parties had been partners under the firm of James Marshall & Co. The bill was for a decree for an account, payment of the balance which might be found due, and that certain real estate was the property of the firm.
    The partnership agreement was the following:—
    “Agreement, made between James Marshall and Robert D. Clark, this 2d day of January, a. d. 1860, witnesseth that said parties have formed a copartnership under the name and style of James Marshall & Co., for the purpose of carrying on a general foundry business in the city of Pittsburg. The said James Marshall has contributed capital stock, including the warehouse on Liberty and Wood streets, the foundry property on Locust and Pine streets, and a lot called the Stable Lot on Pine street, and two vacant lots on Locust street, Pittsburg, and four sand-lots in Lawrenceville, estimated at $37,501.35, as per inventory in the stock book of the concern. And in consideration of said Robert D. Clark contributing his personal labor and attention to the business, it is agreed that said Clark shall be entitled, to one-fourth part of the net profits of the partnership, after allowing said Marshall six per cent, on the said capital contributed by him as aforesaid, that is to say, after deducting all expenses, and after allowing said James Marshall six per cent, interest on his said capital stock, then the net profits of the business to be divided in the manner aforesaid, to wit, James Marshall three-fourths and Robert D. Clark one-fourth thereof. It is further understood that in case of a dissolution of the partnership the aforesaid valuation (as per said inventory) of the real estate shall not be binding or conclusive as against said James Marshall, and he, Marshall, shall have the right then or at any other time to withdraw said real estate from the firm for the purpose of sale or disposal if he shall desire to do so.”
    The partnership was dissolved by mutual consent, February 24th 1866, Marshall having bought Clark’s interest, and being made the liquidating partner.
    The valuation of the real estate in the inventory, which was referred to in the agreement, was as follows:—
    Warehouse..............$ 8,000
    Foundry property running from Pine to Locust street, stable lot, sand lots.......... 14,000
    Lawrenceville lots,........... 800
    This real estate, together with other property, amounting at its valuation in the inventory to $37,501.35, as stated in the agreement, was credited to Marshall in the stock book of the firm.
    About the 8th of June 1863, the foundry property, “ on Locust and Pine streets, was burned.”
    Besides the foregoing facts, the bill set out that the partners rebuilt the foundry property with partnership funds, at a cost of about $35,000; that the partners had had no settlement, and the value of the plaintiff’s interest had not been ascertained ; that on the dissolution the defendant took possession of all the assets of the firm, including the real estate, and still retained them; that at the dissolution, the real estate was much more valuable than the estimates in the inventory, resulting both from the improvements and the general advance in the value of real estate; and that upon a settlement there would appear to be a large sum of money due to plaintiff from defendant. By his answer the defendant averred, amongst other things, that the “ real estate was never intended to be vested in the plaintiff, further than in its use for the purposes of the firm in the prosecution of their business, and was to revert to defendant at his option.” He denied “that the plaintiff has any right to the advance in the price of the ‘real estate,’ the real estate having been contributed to the use of the firm at a nominal value, far below its real value, at the date of the article of agreement, with the express and notorious understanding that respondent could withdraw said real estate from the firm at his pleasure at the nominal value at which it was contributed, and defendant did withdraw said real estate from the firm, and it was understood and agreed by the plaintiff at the time of the dissolution.”
    A general replication was filed, and Thomas Ewing, Esq., was appointed master to state an account, and report the facts.
    The master, amongst other things, reported: “ * * * “After January 1st 1863, no complete inventory of the firm assets was ever taken, nor was there any balance sheet made out, nor was there any division of the profit and loss of the business.
    “ On the 6th day of June 1868, the foundry buildings, with all their fixtures, machinery and contents, were destroyed by fire. Immediately thereafter the firm proceeded to rebuild the destroyed buildings on the old foundations, and to replace the machinery, tools, patterns and materials lost by the fire. * * *
    “ The entire cost of the new buildings, machinery and fixtures, as appears from the books of the firm, was $35,448.80. The insurance received by the firm on the old buildings and their contents, destroyed by fire, was $10,000, of which $7000 was on the buildings and fixtures, and about $3000 was on tools, patterns, &c. * * *
    “ The parties dispute in regard to a large portion of the items going to make up the account. 1st, As to the value of the personal property of the firm, and 2d, As to the value of the real estate, and the rights of the respective parties thereto.
    “ It is claimed by the defendant, that James Marshall was entitled, to have back all the property he put into the firm, or its equivalent in amount and condition, regardless of the destruction by the fire. I can see no ground for this claim in regard to the personal property. * * *
    “ The rights of the respective partners in the real estate under the agreement, is the most serious question in this case.
    “Plaintiff and his counsel claim that, under the agreement, James Marshall had not, at any time, a right to withdraw the real estate (put into the firm), except to sell and dispose of it for the benefit of the firm, and account for the proceeds thereof, regardless of the valuation at which it was put in.
    “ On the other hand, defendant and his counsel claim that under the agreement, James Marshall merely loaned the use of the real estate to the firm at a nominal valuation, on which he was to receive interest as a rent, that the firm was hound to keep up the buildings and fixtures, in as good condition as they were in at January 1st 1860; that the loss by fire was the loss of the firm; that the new foundry buildings and fixtures are inferior to those in existence before the fire, and that James Marshall was entitled to take out, at the dissolution, all the real estate which he put in at the formation of the partnership, at the same nominal valuation as was put upon it at the first. * * *
    “ The master cannot interpret the agreement in accordance with the views of either party to the controversy.
    “ To interpret it as claimed for plaintiff, the agreement must be read without the last clause, in reference to the real estate; but that clause was intended to have, and it has a meaning. If Mr. Marshall had no power over the real estate other than that of an ordinary partner, why declare that ‘he may withdraw it,’ &c. ? If he, after withdrawing it, was to account for the proceeds, why insert the condition that this valuation shall not be binding or conclusive as against said James Marshall ?
    “ To interpret it as claimed for the defendant, the agreement must be read to ignore the statement that ‘James Marshall has contributed capital stock, including,’ &e., as per inventory in the stock book of the concern. * * *
    “ Reading the whole agreement, the only reasonable interpretation that I can find, to give effect to all portions of it, is: That James Marshall had the option, a.t or before the dissolution of the partnership, to reclaim the real estate in question, at the valuation put upon it in 1860; and he had, at any time up to the time of the fire in June 1863, a right to withdraw this property from the firm, at the inventoried value, for sale or disposal (which term, ‘ disposal,’ I take to mean any disposition he might see fit to make of it, either to use it himself, sell it, or give it away), and that he had that right at the time of the dissolution of the partnership unless he had by some act or omission estopped himself from claiming his option. But if he claimed to exercise that option, he must take it with equitable burdens. The loss by fife will be his loss. The firm was not bound to rebuild a foundry equal or superior to the one destroyed, and then restore it to him in the improved condition, without repayment of the cost of the improvements made with his consent and co-operation. And even if James Marshall is not estopped from claiming the foundry property at the old valuation, he should be required to pay the cost of the new buildings and fixtures, less the insurance realized on the old ones.
    “ In addition to the facts already stated in regard to the real estate and buildings, it appears that the firm paid all the taxes and insurance on the property, from the formation of the partnership to its dissolution. At the commencement, the policies of insurance on the buildings were in the name of James Marshall, and when these policies then in existence expired they were renewed in the name of James Marshall & Co. They were so at the time of the fire, and afterward up to the time of the dissolution of the partnership.
    “ In November 1863, the firm bought a lot adjoining the foundry, for $650, and in June 1864, a similar adjoining lot for $600; and these lots were afterward enclosed as a part of the foundry yard. Mr. Clark attended to the purchase of the lots, and took the title thereto in the name of James Marshall, but paid for them with the funds of the firm.
    “ In 1865, a similar purchase was made of six lots in Lawrenceville, wanted by the firm for sand purposes. The cost of these lots was $937.39. Mr. Clark attended to this business, paid for the lots with the funds of the firm, and took the title in the name of James Marshall. * * * Without discussing the testimony at length, it appears to the master that these lots so purchased with the funds of the firm, were the absolute property of the firm at the time of its dissolution, and that James Marshall must account for them, not at cost, but at their actual value. * * * As to the original valuation, I find as a fact, that the real estate put in by James Marshall, _wras at a price below its actual marketable value at the time; the warehouse on Wood street being about fifty per cent, below its actual value. The foundry property, put in at $14,000, was much 'nearer its value, but was worth probably about $18,000 in 1860.
    “ In regard to the relative value of the old and new buildings and machinery, I find that the new erections were considerably more valuable than the old ones, the difference being perhaps about $10,000 to $15,000. * * *
    “ But is not James Marshall estopped by his acts from claiming his option to withdraw the foundry property from the firm assets at the appraisement of 1860 ? He stood by and actively aided in the expenditure, by the firm, of an amount three times as great as the then value of the naked lots; and from that time money was expended as though this was the absolute property of the firm. If Mr. Marshall intended to claim his option as to that property, he should have made his claim before the new foundry was built. His action was equivalent to saying: ‘I will not attempt to reclaim this property; ’ and in equity he is estopped from now claiming it at the old valuation. And, as in the original inventory, the lots on which the foundry buildings stand, the stable lot and the old sand lot at Lawrenceville, are all included with the foundry at the valuation of $14,000, they must go now together. The two vacant lots across Locust street from the foundry buildings have never been improved, and have merely been used for storing material, but they have from the first been used as a part of the foundry property, and should be treated as a part of it.
    “In regard to the Wood street warehouse property, the equities are all in favor of Mr. Marshall retaining it at the old valuation. The original appraisement was but nominal.
    “The firm had it during the continuance of the partnership at a very low rent — they never spent any money on it except for ordinary repairs. And the increased value arises wholly from the natural and extraordinary appreciation of real estate in its' neighborhood. It is not connected in any way with the foundry, being at least half a mile distant, and it would be inequitable to hold Mr. Marshall estopped from reclaiming it at the old valuation.
    “ The master has thought proper to annex different statements of the account of the partners, in accordance with the different views the court may take in regard to the real estate; all, however, based on his findings of fact in regard to the personalty, and the value of the real estate.
    “ 1. In accordance with the views of the master as heretofore set forth, giving the firm the full value of the foundry property, and the lots purchased during the continuance of the partnership, and giving James Marshall the remaining real estate at the valuation of 1860; and of course giving credit to James Marshall for the balance of his stock account, less the property thus withdrawn.
    “ 2. To be adopted in case the court should be of the opinion, that Mr. Marshall should be permitted to withdraw the entire real estate put in by him in 1860, chargeable with the cost of construction, less insurance received.
    “ 3. In accordance with the views of plaintiff’s counsel, viz.: That James Marshall, under the agreement, could not withdraw any part of the real estate at the valuation of 1860.
    “ 4. In accordance with the views of defendant’s counsel, viz. : That James Marshall is entitled to withdraw the entire real estate put in by him, at the valuation of 1860, without paying anything for the new buildings and machinery erected to replace those destroyed by fire.” * * *
    According to these schedules respectively the amounts due would be as follows:
    1. Due by defendant to plaintiff......$ 7,405.59
    2. “ “ “ “ “ . . - . . 2,913.94
    3. “ “ “ “ “...... 11,405.49
    4. “ “ plaintiff to defendant..... 6,473.25
    After exceptions by both parties to the master’s report, the court decreed that the report of the master be confirmed in accordance with schedule number two, as attached to his report, and that the defendants pay to the plaintiff the sum of $2,913.94, with interest from January 1st 1866, amounting to the sum of $3,544.65, &c.
    The plaintiff appealed to the Supreme Court, and assigned the decree of the District Court for error.

      M. W. Acheson, for appellant.
    — By the express terms of the copartnership agreement, the real estate was put into the firm as capital stock, and thereby became part of the firm’s assets and stock — as much so as the personal property embraced in the inventory, with which the real estate was blended in the valuation of $37,501.35.
    It is an immaterial circumstance that Clark’s contribution to the common stock of the firm consisted of his time, skill and services, for these are the equivalent of money or other material contribution; and his rights, therefore, were the same as if he had furnished capital of the latter description: Bradbury v.
      Smith, 21 Maine 117; Collyer on Part. sec. 169 ; Parsons on Part. pp. 47, 54, 55, 56.
    The transactions of partners are always to he looked at in determining their rights, even under written articles : Collyer on Part. sec. 209; Parsons on Part. 519; Greddes v. Wallace, 2 Bligh 295.
    Improvements made with partnership funds, even on real estate belonging to one of the partners, will be treated as the personal property of the partnership : 1 Parsons on Cont. 128 ; Parsons’s Mer. Law 174; 3 Kent 43, note 2 ; Lacy v. Hall, 1 Wright 360; Meason v. Kaine, 13 P. F. Smith 335.

      Marshall Patterson, for appellees.
    November 22d 1872,
   The opinion of the court was delivered, by

A&new, J.

— By the article of copartnership of January 2d 1860, between James Marshall and Robert P. Clarke, Marshall contributed to the capital of the company certain real estate at an estimated valuation, inventoried and carried into the stock account. Thenceforth this property became in equity partnership property, the legal title remaining in Marshall. But on dissolution Marshall reserved the right not to be bound by the estimated value, and to withdraw the property. Evidently the right to withdraw was the contract provision for correcting the estimated valuation. But when the foundry buildings were destroyed by an accident, and rebuilt by mutual consent with partnership funds, how did the case stand ? The part destroyed was gone and incapable of withdrawal. The loss necessarily fell upon the partnership, for the property was then partnership property and a part of the capital; Marshall had been credited with its value in the stock account. When dissolution came he could not withdraw the burnt part which was destroyed and gone, while the buildings which filled its place were the product of the investment of partnership funds with Marshall’s consent, and were of a different value. This portion was no longer the same put in by Marshall, and its withdrawal could not correct the estimated value, for the rebuilt portion had no inventoried valuation. Even the money invested did not represent the enhanced value at the time of dissolution. The lots had no designated value apart from the destroyed buildings, the contract provided for no such contingency, and afforded no means of making a relative valuation of the lots and new buildings. If, therefore, on dissolution Marshall took the foundry property he would withdraw what he did not put in, without a contract mode of determining the relative values of the lots and the new buildings. The design of the reservation clause was to enable Marshall to correct the original valuation. But such a withdrawal could not correct the value of what he put in. Its condition was altered. The destruction of a part left the undestroyed part without a relative or designated value, while the destroyed part being gone was incapable of valuation. Nor did the whole as renewed represent the same value as the whole when it was brought in, for it does not appear that the money expended was the equivalent in value of the part destroyed. No intent to make an exact equivalent appears. As the foundry stood at the dissolution it was wholly a different thing in value and in condition from that which it was when contributed by Marshall. How then could he claim it as a right to withdraw the property and take it to himself? He could not withdraw it at the same value at which he contributed it, for the rebuilding necessarily involved a revaluation, for which no provision was made by the parties. Having a credit already in his stock account for the value of the property, the property with its accretions necessarily belonged to the firm, and must be accounted for as partnership assets. The situation of the parties had been altered by the fire and by the mutual consent to rebuild with partnership funds. Clark had given his personal attention and services to the business during the suspension by the fire and rebuilding, and was also entitled to his share of the benefit of the investment of the partnership funds in the new building, and was entitled to the accretion in value by lapse of time and the rise of property. If Marshall did not intend these advantages to accrue to the partnership it was his duty to have refused to rebuild with partnership funds, and to have claimed his right to withdraw, if indeed it were even practicable to withdraw the unburned portion of the foundry property. But when he permitted the incorporation of the partnership funds with the unburned part, he consented to the existence of a new thing, which in fairness and justice he could not withdraw to the prejudice of Clark, who is entitled as well as himself to the enhancement in value of that which was produced by the partnership. The partnership can be settled only by treating the foundry as partnership property, ascertaining its value at the time of dissolution, and stating the account accordingly. The foundry would comprehend only the ground necessarily connected with it, and used as a part of it. Detached lots, not the subject of the removal by the partnership and not necessary for the use of the rebuilt part, would not be considered a part of the foundry, and might be withdrawn.

Decree of the court below reversed, and the record remitted with a direction to refer the account to the same or another master for a restatement according to the principles contained in the foregoing opinion, and the costs of the appeal to abide the final order of the court.


author: Thompson, O. J.

text:
    Kidd et al. versus Emmett.
    1. An award in ejectment showed a plain mistake in fact in misdescribing the premises; it should have been sent back to the referees by the court below for correction.
    2. The court below having entered judgment on the award, the Supreme Court reversed the judgment, that the award might be sent back to the referees for correction.
    3. Coleman v. Lukens, 3 W. & S. 37, distinguished.
    October 14th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1871, No. 120.
    This was an action of ejectment brought February 19th 1862, by Andrew Emmett against James Kidd and Samuel Kidd. There was no declaration filed. The premises were described in the writ as follows: “A piece of land situate in Pine township, Allegheny county, Pa., bounded by lands of the defendants on the west, north and south, and by lands of Hugh Emmett, deceased, on the east, containing sixty-seven acres and one hundred and four perches.”
    On the 13th of January 1871, the case was referred in open court to three referees; their award to have the effect of one verdict and judgment in ejectment. They made the following award:—
    “We find for the plaintiff, with costs of suit, all the land described in the writ of ejectment, except twelve acres of the north end of the land described in said writ, to be divided from the land found for the plaintiff by a line to be run south three and one-half degrees east across said north end.”
    The award was filed April 20th 1871. On the 22d of April the defendants obtained a rule to show cause why the award and judgment should not be set aside. The rule was discharged June 14th 1871.
    The defendants removed the record to the Supreme Court, and assigned for error the entering of judgment on the award, it being void for uncertainty.

      D. T. Watson (with whom was Veeeh), for plaintiffs in error,
    cited Hunt v. McFarland, 2 Wright 69; Smith v. Jenks, 10 S. & R. 153; Bagley v. Wallace, 16 Id. 245; Burdick v. Norris, 2 Watts 28; Borough of Harrisburg v. Crangle, 3 W. & S. 460; O’Keson v. Silverthorn, 7 Id. 246; Hagey v. Detweiler, 11 Casey 409 ; Smith v. Brotherline, 12 P. F. Smith 461.

      A. Blakeley and S. A. Purviance (with whom was W. S. Purviance), for defendants in error,
    as to uncertainty, cited Ewing v.
      Alcorn, 4 Wright 492; Martin v. Martin, 17 S. & R. 431; Tyson v. Passmore, 7 Barr 273; Green v. Watrous, 17 S. & R. 393; Miller v. Casselberry, 11 Wright 376; Clement v. Youngman, 4 Id. 341; Ross v. Barker, 5 Watts 391; Tryon v. Carlin, Id: 371. If the award is indefinite it is amendable : Cambria Iron Co. v. Tomb, 12 Wright 387 ; Act of March 14th 1872, Pamph. L. 25; 1 Br. Purd. 70, pl. 7.
    November 4th 1872,
   The opinion of the court was delivered, by

Thompson, O. J.

— An error occurs in the award of the referees in this case, which renders the judgment uncertain and in fact incapable of execution. The award says, “We find for the plaintiff with costs of suit, all the lands described in the writ of ejectment except twelve acres of the north end of the land described in said writ, to be divided from the land found for the plaintiff by a line to run S. 3| deg. E., across the north end.”

The land was a parallelogram, lying lengthwise north and south, and it is claimed that a line S. 3J deg. E. would strike the twelve acres off the west side, instead of the north end. This presents a case of misdescription. It is a plain mistake of fact, and had the court below been made aware of it before entering judgment on the award it would have been their duty to have referred it back to the same referees for such correction as would be necessary to make the award certain and consistent, but that was not done. We are of opinion that this may be done yet, but we must reverse the judgment so as to enable the court to send back the award for correction. The case of Coleman v. Lukens, 3 W. & S. 37, may be thought to be a precedent against this course of proceeding, but that was not a case of plain mistake, but an award contrary to the terms of the submission. To send it back was the equivalent of sending back the entire subject-matter of controversy to be retried. This was not authorized by the 7th section of the Act of the 16th of June 1836. That case is not a precedent applicable to the necessities of this case.

Judgment reversed, and the record is remitted to be proceeded in as above suggested.


author: Williams, J.

text:
    McCloskey versus Miller et al.

    1. Miller by writing, sold all the coal under a tract of land, with privilege to the vendee to use the railroad, tenements and other improvements of Miller, the vendee to remove the coal in 40 years, at the expiration of which time or on the removal of the coal, “ the rights and privileges hereby granted shall cease.” Held, that the vendee had no right to use the improvements, &c., for removing, &c., other coal than that mentioned in the writing.

      • 2. The vendee used the improvements in removing, &c., coal on an adjoining tract: Held, that this was an illegal use, but assumpsit was not the proper form of action.
    3. Assumpsit is founded on contract; and will not lie for use and occupation when there is no relation of landlord or tenant.
    4. Case is the proper action; the action being assumpsit, the judgment for plaintiff was reversed, a venire de novo awarded, the form of action being amendable under the Act of May 10th 1871.
    5. Shroder v. Brenneman, 11 Harris 348, in point.
    October 21st 1872.
    Before Thompson, O. J., Read, Agnew, Shabswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 115.
    This was an action of assumpsit brought December 24th 1869, by George- T. Miller and others against John McOloskey.
    The plaintiffs claimed under William L. Miller and the defendant under John Herron, William Herron and William Brown.
    On the 7th of April 1846, by articles of agreement of that date, Miller sold to the Herrons and Brown “ all the good merchantable coal lying and being in and under the plantation or tract of land occupied by the said Miller, and by him originally purchased from John Eritchman, excepting, &c. * * * with privilege to the said parties of the second part and their assigns of entering upon the land of the said Miller for the purpose of excavating and removing the said coal; of using exclusively the railroad fixtures, ropes and wagons now employed by the said Miller in and about his mine; of occupying and using the six cabins or tenements now erected on the premises belonging to the said Miller, also one undivided half of other ten cabins or tenements belonging in common to the said Miller and a certain William Noble, for the accommodation of their hands; of constructing such other houses as may be required from time to time for the same purpose, or for their own individual use in the prosecution of their business; of erecting and setting up at such points as they may deem most convenient for them, a saw-mill and store-house ; of enclosing and appropriating so much ground in and about the said several buildings as may be required for the full and profitable enjoyment thereof; of making openings and ditches wherever they may judge proper upon the premises of the said Miller, for the ventilation and draining of their pits and mines; of constructing coke ovens at suitable places within their discretion; of using the landing and shore along the river upon the premises of the said Miller for purposes of harbor and anchorage and of landing and unloading their boats, and finally of using and exercising all other privileges and immunities which may be essential to the full and complete enjoyment of any of the rights herein granted and conveyed: Provided, however, that the said parties of the second part, their executors, administrators or assigns, shall remove the said coal within the period of forty years from and after the date of these presents, and that at the expiration of the said term, or upon the removal of the said coal, which ever shall first happen, all the rights and privileges hereby granted shall cease and determine; the said parties of the second part being at liberty to remove all the erections which they may have made upon the said premises, leaving however the railroad fixtures and apparatus, also the same number of wagons as are now transferred to them for the use of the said Miller, his heirs and assigns, they being the owners of the land by which the said coal is covered. ■
    In consideration of all which the said parties of the second part do hereby jointly and severally covenant and agree to pay unto the said Miller, his executors, administrators and assigns, tibe sum of two hundred and fifty dollars per acre for every acre of coal so conveyed as aforesaid (in a number of instalments). * * * And the said party of the first part agrees, that upon the payment by the said parties of the second part of the first two instalments aforesaid, amounting in all to the sum of five thousand one hundred and sixty-five dollars and ninety-three cents, he will execute if required to the said parties of the second part a deed of conveyance of the whole of the lands purchased by him from the said John Fritchman, subject however to a lien for the balance of the purchase-money still remaining unpaid, in trust to secure them against any liens or encumbrances upon the said lands other than the said purchase-money to which their payments are to be applied aforesaid, and upon the further trust that they will reconvey to the said Miller, whenever the same and all other encumbrances existing at the time of the said conveyance shall have been by them fully discharged.”
    This action was brought to recover for the use and occupation of the premises and privileges mentioned in the articles, for the purpose of mining and removing coal other than that mentioned in them.
    The case was tried May 1st 1871, before Sterrett, P. J.
    The plaintiffs gave evidence that the defendant took out coal other than that underlying the Fritchman tract, and used the road, improvements, &c., granted by the agreement, for the purpose of doing so, and that there was coal still remaining in that tract.
    The defendant’s third point and its answer were :—
    “ Under the article of 7th April 1846, the defendant as assignee had a right to use and enjoy the privileges therein set forth for the purposes of mining and removing any coal owned by him, or for his own individual use, in the prosecution of his business as a coal merchant, for and during the period of forty years, or until all the coal in the tract described therein was removed.”

      Answer: “ This point is refused as regards other coal than that described in the agreement in evidence.”
    The court also charged that if the evidence justified it, the plaintiffs might recover in this form of action.
    The verdict was for the plaintiffs for $1384.44.
    The defendant removed the record to the Supreme Court, and there assigned for error the answer to his point and the instruction of the court.

      W. P>. Moore and Ó. B. M. Smith (with whom was S. M. B,aymond), for plaintiff in error.
    — This action is for damages outside of the agreement and therefore assumpsit would not lie: January v. Goodman, 1 Dallas 208; Shaeffer v. Geisenberg, 11 Wright 500; Gilson v. Stewart, 7 Watts 100.
    D. T. Watson (with whom was Veech), for defendant, in error.
    May 17th 1873,
   The opinion o-f the court was delivered, by

Williams, J.

— The construction which the court gave to the agreement of the 7th of April 1846, by its qualified refusal to charge as requested in the defendant’s third ¡joint, was in accordance with the evident intention of the parties. It is clear that the use of the railroad, and of the other property specified in the agreement, was granted to the vendees of the coal, under whom the defendant claimed the right to their use, for the sole purpose of enabling them to dig and remove the coal purchased from the grantor. The defendant, therefore, had no right to use the property for the purpose of taking out other coal of which he was the owner. But if he had no such right, are the plaintiffs entitled to maintain an action of assumpsit for the use of the property for a purpose for which it was not granted ? Undoubtedly such use was illegal, and the plaintiffs are entitled to some remedy or redress for the wrong of which they complain. But is assumpsit for the use and occupation of the property for other purposes than taking out the coal sold by the agreement the appropriate remedy ? The action of assumpsit is founded on a contract, express or implied, and will not lie where the relation of landlord and tenant does not exist: 1 Chit. Pl. 107; Pott v. Lesher, 1 Yeates 576; Smith v. Stewart, 6 Johns. 46 ; Bancroft v. Wardwell, 13 Id. 489; Dudding v. Hill, 15 Ill. 61; McNair v. Schwartz, 16 Id. 24; Rogers v. Libbey, 35 Maine 200. Here the relation of landlord and tenant never existed between the parties. There was no promise to pay for the use of the property, and none can be inferred from the facts and circumstances established by the evidence. But if assumpsit will not lie, it does not follow that no action is maintainable for the wrongful use of the property. The plaintiffs’ interest in it is only in reversion, and for its misuse, as is well settled, case will lie and is the proper remedy: 1 Chit. Pl. 132. It was ruled in Shroder v. Brenneman, 11 Harris 348, that a right of way along an alley appurtenant to a par-, ticular lot cannot lawfully he used as a mode of access to another lot to which it is not appurtenant; and case was held to he the appropriate remedy for such illegal use. This decision is directly in point. It shows that the plaintiffs are. entitled to redress for the wrongful use of the property in question, and that case is the proper remedy. The court below was, therefore, in error in instructing the jury that the plaintiffs might, if the evidence justified, recover in the present form of action. Nor was the error immaterial. It affected the measure of damages. If assumpsit would lie, then the measure of damages would be the value of the use of the property. But if case is the proper remedy, compensation for the injury occasioned by its wrongful use is the measure of the damages to which the plaintiffs are entitled; and it does not follow that one is the equivalent of the other. But a mistake in the form of action is no longer fatal. It is amendable under the Act of 10th May 1871, Pamph. L. 243, and therefore, in reversing the judgment we shall send the cause back for a new trial.

Judgment reversed, and a venire facias de novo awarded.