author: Mr. Justice Mestrezat,

text:
    Sanders, Appellant, v. Brock.

      Vendor and vendee — Sale of real estate — Breach of contract — Vendee in default — Recovery of -purchase money paid on account.

    1. When a purchaser of real estate declines to comply with his agreement by paying the purchase money, the vendor may, in affirmance of the contract, bring an action to compel payment of the money, or he may treat the contract as rescinded and sue for damages for its breach. The vendor, however, is not required, on the breach of the contract by the purchaser, to pursue either course, and the latter cannot compel him to enforce his rights by an action at law. What the vendor is required to do, under such circumstances, is to be ready and willing at the stipulated time to perform his part of the contract and convey the real estate to the purchaser in compliance with its provisions. So long as he occupies such a position, he is not in default and has not infringed or rescinded the agreement. He, therefore, is not liable to a defaulting purchaser who has violated the contract by declining to fulfill its stipulations.

      2. The settled rule in respect to contracts for the sale of real estate is that the party who has advanced the money, or done an act in part performance of the agreement, and then stopped short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be-permitted to recover back what has thus been advanced or done.
    3. Where the vendor under an agreement for the sale of real estate does not rescind the agreement or refuses to convey the property but tenders a deed and insists upon the purchaser accepting title which the latter positively and at all times declines, the purchaser is not entitled to demand that the vendor continue to hold the property indefinitely or repay the purchase money paid on account under the contract.
    4. Where a vendor of land sells it under articles, and receives a portion of the purchase money on the execution of the articles, but without any obligation in the articles to return the same in case of breach, and at the date of settlement he tenders a deed for a good marketable title, and the vendee then and always thereafter refuses to complete his part of the contract by accepting the deed and paying the balance of purchase money, the vendee cannot, after the vendor has sold the property to another person for an amount in excess of the price mentioned in the articles, maintain an action to recover back the portion of the purchase money paid on account.
    Argued Jan. 9, 1911.
    Appeal, No. 217, Jan. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., March Term, 1910, No. 4,609, discharging rule for judgment for want of a sufficient affidavit of defense in case of Albert J. Sanders v. Seldon J. M. Brock.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker.
    Affirmed.
    Assumpsit for money had and received. Before Wilt-bank, J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material averments of the statement of claim and affidavit of defense are set forth in the opinion of the Supreme Court.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      March 20, 1911:

      Horace Stern, with him Morris Wolf, for appellant.
    It is submitted that both on reason and authority the plaintiff should be allowed to recover: Ashcom v. Smith, 2 Pen-rose & Watts, 211; Bowser v. Cessna, 62 Pa. 148; Hughes v. Miller, 205 Pa. 627; Hartman v. Pemberton, 24 Pa. Superior Ct. 222; Pepper v. Deakyne, 212 Pa. 181; Wot-ring v. Shoemaker, 102 Pa. 496; Smethurst v. Woolston, 5 Watts & Serg. 106; Feay v. DeCamp, 15 S. & R. 227; Poulson v. Ellis, 60 Pa. 134; Jacoby v. Stettler, 2 Cent. Repr. 607; Wilder’s Est., 2 Blair Co. 57; Kunkel v. Roberts, 16 Pa. Dist. Rep. 179; Phelps v. Brown, 95 Cal. 572 (30 Pac. Repr. 774); Gwin v. Calegaris, 139 Cal. 384 (75 Pac. Repr. 851); Ilickock v. Hoyt, 33 Conn. 553; McDaniel v. Gray, 69 Ga. 433; Gilbreth v. Grewell, 13 Ind. 484; Lloyd v. Davis, 2 Ind. App. 170 (28 N. E. Repr. 232); Norris v. Letchworth, 140 Mo. App. 19 (124 S. W. Repr. 559); Streeper v. Williams, 48 Pa. 450; Mathews v. Sharp, 99 Pa. 560; Keck v. Bieber, 148 Pa. 645; Emery v. Boyle, 200 Pa. 249.

      H. J. Rebman, with him James Gay Gordon, for appel-lee.
    The payment of part of the purchase price of the land is a voluntary payment by the plaintiff which does not give rise to an action for money had and received: Rounds v. Baxter, 4 Me. 454; Boyd v. McCullough, 137 Pa. 7; Wheeler v. Mather, 56 Ill. 241; Davison v. Hill, 1 Ill. App. 70; Hansbrough v. Peck, 72 U. S. 497; Downey v. Riggs, 102 Iowa, 88 (70 N. W. Repr. 1091); Cornwall v. Henson, L. R. 2 Ch. D. (England, 1899) 710; Cleary v. Folger, 33 Pac. Repr. 877; Page v. McDonnell, 55 N. Y. 299; Lawrence v. Miller, 86 N. Y. 131; Durham v. Wick, 210 Pa. 128.
   Opinion by

Mr. Justice Mestrezat,

This is a rule for judgment for want of a sufficient affidavit of defense. The action was assumpsit to recover back $2,000 paid by plaintiff to the defendant as part purchase money on a sale of certain real estate sold by the defendant to the plaintiff and which sale the latter declined to complete by refusing to take the property and pay the balance of the purchase money.

By an agreement in writing dated January 14, 1910, the defendant agreed to sell and convey to the plaintiff the premises at 1507 Walnut street, Philadelphia, for the consideration of $104,000, of which $1,000 were to be paid at the signing of the agreement, and the balance at the time of settlement on or before February 1, 1910. The premises were to be conveyed clear of all incumbrances and easements and the title was to be good and marketable and subject to no restrictions. It was agreed that if the purchaser made an additional payment of $1,000 on the purchase money, the time of settlement should be extended for a further period of thirty days from February 1. The agreement was executed by the parties as agents for undisclosed principals. The purchaser paid $1,000 at the signing of the agreement, and the additional sum of $1,000 on or about February 1 when the time of settlement was extended to March 2, 1910.

The statement after setting forth the above facts avers that on March 2, 1910, the plaintiff was ready and willing and offered to settle for the property according to the terms of the agreement, but the defendant was unable to convey the premises clear of incumbrances and easements and with no restrictions; that on said date the fair market value of the property was at least $104,000, the price agreed to be paid by the plaintiff for it; that subsequently to the said date and prior to the bringing of this suit the defendant sold the property for a price largely in excess of the sum agreed to be paid for it by the plaintiff although the property was of no greater value at the time of the sale than on March 2, 1910; and that by reason of the premises the defendant was not injured by plaintiff’s alleged breach of contract and is, therefore, not entitled to retain the $2,000 which was paid him by the plaintiff as part of the purchase money.

The defendant filed an affidavit of defense in which he admits the execution of the contract and the payment of the $2,000 as averred in the statement. He alleges that before the date of the agreement with the plaintiff he had become the purchaser of the premises in question under the terms of a written agreement dated December 24, 1909, under which he paid to the vendor $2,000 on account of the purchase money, and by the terms of the agreement he was obliged to make final settlement on March 2, 1910. He avers that the plaintiff had knowledge of these facts, and desiring to prevent the defendant from carrying out his contract for the purchase of the premises in order that he might thereupon take advantage of the defendant’s default therein by becoming himself the purchaser of the premises and with such intent the plaintiff willfully planned and contrived to delay the final settlement until the time for completing defendant’s purchase should expire so that the plaintiff might obtain the property directly from the defendant’s vendor, thereby causing the defendant to lose the sum of $2,000 paid on account of the purchase money.

The affidavit denies that plaintiff was ready to settle on March 2, 1910, as alleged in the statement, and avers that on said date the defendant “was prepared to give a good and marketable title to all of the said property and estate called for in the said agreement and in good faith tendered a proper conveyance thereof to the said plaintiff, who, without good reason or legal excuse positively declined and refused to take the said title or to pay the balance of the purchase money reserved and stipulated in the said agreement.”

The defendant admits that prior to the bringing of the suit he sold the property for a price in excess of $104,000, but avers that he did not sell “until after the plaintiff had, without good cause or lawful excuse, himself violated his said agreement, and had positively refused to take title to the said property or to pay the purchase price therefor.”

The plaintiff bases his right to recover back the $2,000 on the fact that the defendant having resold the property for a sum in excess of the price agreed to be paid by the plaintiff, the defendant was not injured by the plaintiff’s breach of the contract and must, therefore, return the sum paid on the purchase money.

We must deal with the case on the averments of fact in the statement and affidavit of defense. The defendant tendered the plaintiff a deed which conveyed a good and marketable title to the premises, and in every other respect he complied with the terms of the agreement. Without any just or legal excuse or cause, the plaintiff refused to accept the deed and declined to pay the unpaid purchase money. In other words, the plaintiff refused to complete the purchase, violated his contract, and compelled the defendant to retain the property. This action is assumpsit on an implied contract to compel the repayment of money had and received by the defendant for the plaintiff’s use.

When a purchaser of real estate declines to comply with his agreement by paying the purchase money, the vendor may, in affirmance of the contract, bring an action to compel payment of the money, or he may treat the contract as rescinded and sue for damages for its breach. The vendor, however, is not required, on the breach of the contract by the purchaser, to pursue either course, and the latter cannot compel him to enforce his rights by an action at law. What the vendor is required to do, under such circumstances, is to be ready and willing at the stipulated time to perform his part of the contract and convey the real estate to the purchaser in compliance with its provisions. So long as he occupies such a position, he is not in default and has not infringed or rescinded the agreement. He, therefore, is not liable to a defaulting purchaser who has violated the contract by declining to fulfill its stipulations. “No rule in respect to the contract (for the sale of real estate) is better settled,” says Nelson, J., in Hansbrough v. Peck, 72 U. S. 497, 506, “than this: that the party who has advanced money, or done an act in part performance of the agreement, and then stopped short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done.”

It is true that a vendor cannot rescind a contract and at the same time directly or indirectly enforce it. If by his action he fails to keep its stipulations, a rescission as to him follows and he is liable to the purchaser for the resultant injury. His breach of the agreement is as effective to prevent him from enforcing any right under it as the default of the purchaser is to deprive him of the benefit of its stipulations. Neither party can enforce the agreement while he is in default. The vendee must tender the unpaid purchase money, as a general thing, whether he wishes to rescind or to enforce the agreement; this results from the principle that a party himself in default, has no right to insist on rescission while in default: Irvin v. Bleakley, 67 Pa. 24.

The plaintiff contends that the defendant, the vendor, by reselling the property rescinded the contract, and that ex sequo et bono he is entitled to have refunded the part of the purchase money which was paid on the agreement. It is upon this ground that he claims that an action for money had and received will lie. It may be conceded that if the defendant rescinded the agreement expressly or impliedly he can derive no benefit directly or indirectly from it and should place the plaintiff in statu quo by returning the purchase money received from him. But the averment of the affidavit of defense, which for present purposes must be regarded as verity, is that the defendant complied fully with the agreement, tendered a deed at the time stipulated, conveying a good and marketable title clear of in-cumbrances and easements and without restrictions, and that the plaintiff “without good reason or legal excuse positively declined and refused to take the said title or to pay the balance of the purchase money reserved and stipulated in the said agreement.” The affidavit further avers that the defendant did not sell the property “until after the plaintiff had, without good cause or lawful excuse, himself violated his said agreement and had positively refused to take title to the said property or to pay the purchase money therefor.” The exact date of the second sale does not appear, but the default was made by the purchaser on March 2, 1910, and this suit was not brought until May 16 of the same year.

The plaintiff was never in possession of the property, and refused to pay the purchase money and take possession. He renounced the contract and positively declined to proceed further under it. Could the defendant under the circumstances at any time sell the property without being liable to the plaintiff for the purchase money paid by him? Must he forever continue to hold the property to await the offer and convenience of the purchaser, giving the latter an opportunity to complete the purchase if the property advanced in price or refuse it if its value diminished; and in the meantime subject the vendor to the risk of a loss possibly imperiling his financial standing? The law imposes no such unreasonable requirement on a party who has in good faith kept and offered to perform the stipulations of his contract. He has done his duty, and the defaulting party is not in a position to make demands of him which might subject him to financial losses. Under such circumstances, the vendor has the right to accept as final the positive refusal of the purchaser to complete the sale and take the property. This is a rescission of the contract which under no principle of law or equity can be invoked in behalf or in aid of the party at fault. How long the vendor held the property after the breach of the contract by the purchaser does not appear, but so far as this record discloses the latter has made no offer at any time to complete the sale. Had the purchaser reconsidered his refusal to pay the purchase money and offered to pay it to the vendor before the resale of the property, we would have another, and different question to consider. Possibly the facts might then raise an equity in his favor which the court would enforce. But we are not dealing with such facts in this case. Here, the purchaser has at all times persistently refused to comply with his agreement, and now demands that the vendor continue to hold the property indefinitely or repay him the purchase money which his contract required him to pay and which he did pay to the vendor. If the vendor still had the property the purchaser could not demand a conveyance to him without first tendering the balance of the money due by the contract: Boyd v. McCullough, 137 Pa. 7. Is it reasonable or just that without such tender after a positive refusal to pay and accept a deed at the date provided in the agreement, the vendor should be compelled to hold the property or be penalized for selling it at the demand of the other party who himself has violated the contract? This action is based on an implied contract to refund the money. The implication must arise from equitable considerations. Such action can be maintained if the vendor rescinds the agreement. He has no right in equity to refuse to carry out his part of the contract and at the same time require performance by the other party or retain what has been paid him under the terms of the contract. If he has received the purchase money, equity will compel him to refund if he declines to convey the premises. Here, however, the vendor did not rescind the agreement or refuse to convey the property, but tendered a deed and insisted upon the purchaser accepting the title which he has positively and at all times declined. The facts here, therefore, do not raise an equity in favor of the purchaser which will support an action.

The cases decided by this court and cited by the appellant do not conflict with the rule here announced. The action in those cases was sustained on the ground that there had been a rescission of the contract by the vendor or a mutual rescission by both parties, and that under the facts the purchaser was entitled ex sequo et bono to recover back the purchase money. In other jurisdictions, a recovery has not been permitted under facts similar to those in this case: Frederick v. Birkett, 37 Kans. 536; Wheeler v. Mather, 56 Ill. 241; Downey v. Riggs, 102 Ia. 88; Lawrence v. Miller, 86 N. Y. 131; Sims v. Hutchins (Miss.), 47 Am. Dec. 90; McKinney v. Harvie, 38 Minn. 18 (8 Am. St. 640); Steinbach v. Pettingill, 67 N. J. L. 36; Glock v. Howard and Wilson Colony Co., 123 Cal. 1 (69 Am. St. 17); Rounds v. Baxter, 4 Me. 454; Ketchum v. Evertson (N. Y.), 7 Am. Dec. 384. The language used in the opinion in the last case is especially applicable to the facts of the present case. It is .there said, inter alia (p. 387): “It would be an alarming doctrine to hold, that the plaintiffs might violate the contract; and, because they chose to do so, make their own infraction of the agreement the basis of an action for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have. The defendant’s subsequent sale of the land does not alter the case; the plaintiffs had not only abandoned the possession, but expressly refused to proceed, and renounced the contract. To say that the subsequent sale of the land gives a right to the plaintiffs to recover back the money paid on the contract, would, in effect, be saying that the defendant could never sell it without subjecting himself to an action by the plaintiffs. Why should he not sell? The plaintiffs renounced the contract, and peremptorily refused to fulfill it; it was in vain, therefore, to keep the land for them. The plaintiffs cannot, by their own wrongful act, impose upon the defendant the necessity of retaining property which his exigencies may require him to sell. This would be most unreasonable and unjust, and is not sanctioned by any principle of law.”

The order discharging the rule for judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    West v. Dyson, Appellant.

      Corporations — Increase of corporate indebtedness — Consent of stockholders — Beal estate company — Mortgage—Usual course of business. *

    A Pennsylvania corporation organized for the purpose of “erecting buildings, purchasing, holding, leasing, mortgaging, improving and selling real estate,” may, without the consent of its stockholders as provided by sec. 7, art. XVI, of the constitution, and the Acts of April 18, 1874, P. L. 61, and February 9, 1901, P. L. 3, increase its indebtedness by a mortgage, the proceeds of which are to be used “in the liquidation of debts of the corporation contracted for building materials, labor, etc., in the erection of a certain building upon its real estate, and in the purchase of adjoining land, and in the erection of other buildings.”
    Argued Jan. 10, 1911.
    Appeal, No. 306, Jan. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 3,767, on case stated in suit of C. West & Company v. John S. Dyson. Before Fell, C. J.,
    BROWN, Mestrezat, Potter, Elein and Moschzis-ker, JJ.
    Affirmed.
    Case stated to determine the legality of a mortgage.
    Willson, P. J., filed the following opinion:
    The plaintiff concern, doing business under the name of C. West & Company, is a corporation of this commonwealth created for the purpose of “erecting buildings, purchasing, holding, leasing, mortgaging, improving and selling real estate.”
    On October 1, 1909, the defendant agreed to lend to the plaintiff the sum of $10,000, the repayment of which to be secured by a valid and marketable mortgage upon real estate belonging to the plaintiff. A portion of the money thus agreed to be loaned was intended by the plaintiff to be used “in the liquidation of debts of the plaintiff contracted for building materials, labor, etc., in the erection of a certain building upon its real estate, and the balance of said proceeds” were also intended by the plaintiff “to be used in the purchase of adjoining land and in the erection of other buildings.”
    It was likewise a part of the agreement between the parties to the transaction that “pending the examination of title and preparation of papers, plaintiff was to proceed with the operation.” Relying upon this agreement, the plaintiff incurred various and considerable “expenses in the purchase of materials, supplies, cost, etc.” Of these expenditures “the defendant had full knowledge and notice.”
    Subsequently the plaintiff executed a first mortgage— presumably upon real estate, although the agreement does not so state — in due form, tendered the same to the defendant and demanded the payment of the said sum of $10,000. The defendant declined to pay over the money, on the ground that the mortgage was invalid and unmarketable, because not authorized by the stockholders and preceded by the formalities required by sec. 7 of art. XVI of the constitution of the commonwealth, and by the provisions of the Acts of assembly of April 18, 1874, P. L. 61, and February 9, 1901, P. L. 3, and their supplements.
    The parties agree that because of the refusal of the defendant to lend the said sum of money as before stated, the plaintiff was unable to proceed with the contemplated operation for a considerable time, and thereby suffered damages to the extent of $1,679.97.
    Notwithstanding the agreement, for this case stated does not state the fact expressly, it is evident that the plaintiff corporation did not have any authority derived from its stockholders, in accordance with the provisions of the constitution and the said acts of assembly for the borrowing of the money referred to, or for the creation of said mortgage. Such a statement of facts is necessarily implied in the agreement of the parties’ counsel, and upon that theory the case is framed and the argument has proceeded.
    But one question arises under the facts as agreed upon, and that is, would the borrowing by the plaintiff of the said sum of $10,000 for the purposes before stated, and the execution and delivery to the defendant of a mortgage on plaintiff’s real estate to secure the repayment of the said sum of money, have been an “increase of indebtedness” within the meaning of the constitution and the acts of assembly? Practically, the question relates only to the effect of the constitutional prohibition, for the reason that the acts of assembly are intended simply to furnish a method of carrying out, in detail, what the constitution allows to be done. The statutes, of course, cannot modify or annul the provisions of the organic law.
    In endeavoring to apply to the case what that law prohibits or permits, we think it should be conceded that it was not intended to prevent a corporation engaged in business from transacting its affairs in the ordinary way, by resorting to credits in the making, e. g., of purchases of merchandise, or from borrowing money in good faith in the ordinary course of business. There seems to be a practical necessity to put such a construction upon the language of the constitution. That language is unlimited and without exception, when taken in its literal sense, but it should be given, if possible, such a construction as will effectuate the purpose which a sound judgment would determine to have been in mind when the constitution was framed and adopted, without unnecessarily crippling the conduct of business affairs. The legislature appears to have been inspired by that thought when, in sec. 4 of the act of February 9, 1901, it was provided that nothing in the act should be construed as applicable to the “case of indebtedness contracted in the usual course of corporation business.”
    The Supreme Court of the commonwealth has also refused to put a literal interpretation upon the language of the constitution. In Manhattan Hardware Co. v. Phalen, 128 Pa. 110, a mortgage was made by a manufacturing corporation to secure a debt incurred in improving its property, in the hiring of labor and in the purchase of materials. It was held as follows: “It is consonant to reason and séttled by authority that debts incurred by a corporation in the course of its ordinary business are. not affected by the constitutional provision or by the Act of Assembly referred to.” Substantially the same view was taken by that court in Powell v. Blair, 133 Pa. 550, and Ahl v. Rhoads, 84 Pa. 319.
    It may be, and doubtless is, difficult to state in the form of a positive proposition and in a general way what cases would or would not fall within the meaning of the constitution. There can be no question, we believe, that the evil which the framers of that instrument had in view and which they intended to prevent, was the reckless and ofttimes wicked increase of capital stock and of bonded indebtedness by the large corporations whose history, in many instances, has exhibited such inconsiderate and un-deliberate financiering as has resulted in most serious disasters to the corporations concerned and to those who invested in their securities.
    At the same time it can hardly be said that the construction of the constitutional provisions would be reasonable which would confine their application to public service corporations, e. g., or to any particular class or grade of corporations. Moreover, even in the case of corporations of that large class which is most tempted or most likely to resort to the issuing of bonds secured by mortgages upon their property and franchises, it can hardly be contended that every loan which might be obtained from a bank in the ordinary course of business would be such an increase of indebtedness as was intended to be prohibited, in the absence of consent obtained from the stockholders, etc. The mere making of a mortgage is not the thing prohibited. That is a mere incident. The debt secured by the mortgage is the substantial element to be considered. It seems to be necessary to hold that each case must stand by itself, and that,' when it appears that a debt is created or á loan obtained in good faith and for a real consideration in the ordinary course of a corporation’s current business, the obligation to pay the debt or repay the loan is valid and binding upon the corporation. That conclusion coincides with the views expressed in the opinion of the Supreme Court in Manhattan Hardware Co. v. Phalen, 128 Pa. 110, and we shall endeavor to apply the principle to the present case, while, at the same time, we recognize that the question is not free from embarrassing aspects, and that there are elements in it which will amply justify a resort to the highest tribunal of our state, in order to obtain a chart which will point a safe course through such difficulties as exist in the present case.
    In the application of the principle just advanced to the case in hand, we think that but one conclusion is reasonable. This corporation, C. West & Company, was formed for the purpose of dealing in real estate, by purchasing, selling and mortgaging the same, and by building thereon. Of course, the enumeration of “mortgaging” as one of its purposes gave it no greater power to create a debt than it would have had otherwise. If it was a lawful corporation, however, authorized to buy and sell real estate and to improve the same, it must be regarded as having the right to conduct that business in the ordinary way, and to resort to the usual methods of obtaining money to enable it to carry on its business.
    The obtaining of credit in the usual course of business is something which, in these modern times, is not only a universal practice, but it may be regarded as absolutely essential to any successful business enterprise. In the present case, the money which the defendant agreed to lend was needed for the purpose of discharging debts already incurred in the course of the corporation’s business, and to enable it in the ordinary course of its affairs to carry out the purposes for which it was formed.
    That being so, the case falls within the protection of the principle which we have previously stated, and does not come under the ban of the constitution or either of the acts of assembly mentioned.
    Under the provisions of the agreement for the case stated it therefore becomes our duty to direct that judgment. shall be entered in favor of the plaintiff for $1,679.97, with interest from December 1, 1909.
    March 20, 1911:
    This amount strikes us as somewhat excessive and unreasonable, but, in view of the agreement of counsel, we have no control over it.

      Error assigned was the judgment of the court.

      Elwood J. Turner, with him Thomas 0. Haydock, Jr., for appellant.

      Allen M. Stearne, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the common pleas. •


text:
    Shields, Appellant, v. Merchants’ & Miners’ Transportation Company.

      Negligence — Ships—Elevator—Contributory negligence — Master and servant.

    In an action against a steamship company to recover damages for the death of a boy eighteen years old, a nonsuit is properly entered where it appears that the deceased had been employed on one of the defendant’s vessels for three months, running the engine which furnished power for a freight elevator, and was familiar with the latter’s operation; and that, having gone into the hold for some reason after being relieved from duty, in attempting to get on the elevator when he knew the signal to start had been given and after it was in motion he fell across it and was caught between it and the deck; there being evidence that the elevator moved “very fast,” but nothing to show any jerk or unusual movement, or that it was not run in the usual way, or that the manner in which it was run caused the accident.
    Argued Jan. 11, 1911.
    Appeal, No. 325, Jan. T., 1910, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. Term, 1907, No. 5,957, refusing to take off nonsuit in case of Mary Shields v. Merchants’ & Miners’ Transportation Company.
    March 20, 1911:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Kinsey, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      Samuel J. Randall and Matthew Randall, for appellant.

      Charles Biddle, with him Biddle, Paul & Jayne, for ap-pellee.
   Per Curiam,

This action was to recover for the death of a minor child, eighteen years of age, who was employed on one of the defendant’s vessels. After the deceased was relieved from duty on the deck of the vessel, he went, for some reason unexplained, to the hold, and in order to return to the deck, he attempted to get on a freight elevator that was starting upward. He fell across it and the upper part of his body, which was on the floor of the elevator, was caught between it and the deck. He had been employed on the vessel three months, and ran the engine that furnished power for the elevator, and was familiar with the mode of operating the elevator. The negligence alleged was that the elevator was operated “in a violent and careless manner.” In support of this allegation the only proof was that the elevator was moved “very fast.” There was no evidence of a jerk or unusual movement or that the elevator was not run in the usual way, or that the manner in which it was run caused the accident, and it was clear from the appellant’s testimony that her son knew the signal to start had been given and attempted to step on the elevator when it was in motion.

The nonsuit was properly entered and the judgment is affirmed.


author: Me. Justice Stewaet,

text:
    Stewart v. Mark, Appellant.

      Contract — Consideration—Promissory notes — Renewal of note — Waiver —Delay in completion.

    1. Where a contractor agrees to complete his work by a day specified for which he is to receive two promissory notes, one payable at three months, and the other on completion of the work, and he accepts at the end of the three months a renewal of the first note, he cannot allege as a defense in a suit against himself for failure to complete the work at the time specified the failure of the plaintiff to pay the first note, inasmuch as his acquiecsence in the renewal was a waiver of plaintiff's original default.
    2. Where a subcontractor enters into a contract with a city contractor to do all the work in grading a street by a time specified, and the contract provides that should the subcontractor require an extension of time, the city contractor would “use his best endeavor to have an extension of time granted,” the court will construe the stipulation with respect to an extension of time simply as a provision against unexpected contingencies which sometimes occur in work on the streets, and will not enforce it where it appears that the subcontractor made no effort to complete the work within the time limit; that he employed a wholly inadequate force, and that his dilatoriness continued, notwithstanding repeated complaints made to him, until the contractor was compelled to discharge him and complete the work himself.
    3. In such a case the subcontractor cannot set up as an excuse for his own delay that the contractor when he took over the work was himself guilty of great delay in completing it.
    Argued Jan. 11, 1911.
    Appeal, No. 218, Jan. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 4,390, on verdict for plaintiff in case of James F. Stewart v. Frank Mark.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Mos-chzisker, JJ.
    Affirmed.

      March 20, 1911:
    Assumpsit for breach of contract. Before Willson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,751.51. Defendant appealed.

      Errors assigned were (1, 2) answers to defendant’s points, quoted in the opinion of the Supreme Court; (3) refusal of binding instructions for defendant, and (4) in discharging defendant’s motion for judgment non obstante veredicto.

      H. M. McCaughey, for appellant.
    The plaintiff having elected the responsibility of rescinding the contract, before he can successfully hold the defendant for any damages alleged to have been caused by delay in the performance thereof, must himself be in no default and is obliged to show compliance, or an offer to comply, with his obligations under the contract; further, thg plaintiff having dispensed with and prevented performance of the contract cannot take advantage of the alleged nonperformance by the defendant: Hartje v. Collins, 46 Pa. 268; Dunshee v. Ins. Co., 25 Pa. Superior Ct. 559; Hartman v. Meighan, 171 Pa. 46; Boyd v. McCullough, 137 Pa. 7; Irvin v. Bleakley, 67 Pa. 24; Norrington v. Wright, 115 U. S. 188; Bettini v. Gye, L. R. 1 Q. B. D. 183; Munsey v. Butter-field, 133 Mass. 492.
    The contract being free from ambiguity, the trial judge should have assumed the responsibility of construing the provisions thereof, and should have directed the verdict for the defendant upon plaintiff’s admission that he neglected and refused to exercise any endeavor to secure an extension: Nellis v. Coleman, 98 Pa. 465; Trexler v. Reynolds, 43 Pa. Superior Ct. 168.

      Joseph Hill Brinton, with him J. Lawrence Wetherill, for appellee.
   Opinion by

Me. Justice Stewaet,

By written contract under date of April 26, 1905, the plaintiff undertook to grade Wyoming avenue from Wayne street to Greene street, in the city of Philadelphia, for the sum of $5,800, and to complete the same within twelve months from the date of notice to begin the work. Notice to proceed was given on May 9 following, and thereupon the plaintiff began the work of grading. Less than one-fourth the entire work had been completed when, on December 8th following, the plaintiff, by written agreement, sublet the contract to the defendant, who agreed to complete the work by May 30 following, for the consideration of $700, for which he was to receive two promissory notes of the plaintiff, each for the sum of $350, one payable at three months and the other on completion of the. work. In addition, defendant was to have for his own all the stone and sand taken out in the course of the work. The contract stipulated that should the defendant require an extension of time for the completion of the grading, the plaintiff was to üse his best endeavors to have an extension of time allowed. The work was not completed within the stipulated time, and on July 20, 1906, plaintiff served written notice on the defendant to remove from the job because of failure to perform his contract obligations. Plaintiff then proceeded to complete the work, which was not accomplished for more than a year after the time fixed by the contract. The action was brought to recover from the defendant the amount that plaintiff was required to expend in completing the work, less the credit of $700 which defendant should have received under his contract, and a further credit of $2,400, the value of the stone removed by the plaintiff in the course of the work done by himself. This statement of the facts is sufficiently full for an understanding of the assignments of error. The first of these is the refusal by the court to affirm the following point: “That where performance by one party depends on something to be done by the other party, an action will not lie for nonperformance if default has been made in the precedent act. Hence, it appearing that the plaintiff herein neglected or refused to make payment of the certain notes mentioned and described in the written agreement relating to the grading work, or the renewal thereof, no recovery should be allowed and the verdict must be for the defendant.” Affirmance of this point was impossible. The note payable in three months while not paid at maturity, was renewed, to the entire acceptance of the defendant. It does not appear that defendant was delayed in his work or prejudiced in any way by plaintiff’s failure to pay; but whether he was or not, his acquiescence in the renewal was a waiver of plaintiff’s original default. The second note was payable only upon completion of the work by the defendant, and therefore never matured. The first assignment is overruled. The next is that the court erred in its answer to defendant’s second point, which was “That where covenants are mutually dependent the plaintiff must show full performance on his part before he can hold a defendant to observe his covenants.” The answer to this was: “The defendant’s second point is true as an abstract general proposition, but, in my judgment, it has no application in this case.” The contract between plaintiff and defendant provided that the work should bo fully completed by May 30, 1906, but this provision followed: “should the said Frank Mark require an extension of time, the said James F. Stewart agrees to use his best endeavors to have an extension of time granted.” The inapplicability of the point becomes apparent when we consider what were the mutual obligations of the parties under the contract, and the one question of fact on which the case turns. Unquestionably, it was contemplated by both that the time allowed for the completion of the work under the contract would be adequate under ordinary conditions. The stipulation with respect to an extension of time was simply to provide against unexpected contingencies which sometimes occur in work of this character and interrupt its progress. Except as the defendant was hindered and delayed by some such condition or circumstance, he would have no right to demand an extension; nor, under this contract, would he have the right to demand the plaintiff's intercession. Extraordinary conditions, had there been any, might have operated to relieve him of the duty of completing the work within the time limit; but mere dilatoriness on his part could not. His implied undertaking with the plaintiff was to exercise at least reasonable diligence in furthering the work of grading with a view to completion at the time appointed; while the plaintiff’s obligation was to endeavor to secure an extension in case it was required, that is to say, required because of conditions not of the defendant’s own making, and this suggests the one question in the case. The plaintiff’s contention was that defendant made no effort to complete the work within the time limit; that the force he employed was wholly inadequate, and that his dilatoriness continued, notwithstanding repeated complaints made to him, until plaintiff was compelled to discharge him from the work. Was this true? If so, then there never was a time when any duty rested on the plaintiff to intercede for an extension, and the fact that he did not so intercede can avail the defendant nothing. If not true, then the discharge of the defendant was without excuse, and the plaintiff without a cause of action. The learned trial judge correctly held the law as expressed in the point was without application to the case. The question of the defendant’s default was submitted to the jury under proper and full instructions as to the law, and a verdict for the plaintiff resulted. A submission could not have been avoided. The question was as we have indicated, and nothing but a finding by the jury could have settled it. The fourth assignment complains of the instruction to the jury to disregard the evidence as to the time taken by plaintiff in finishing the work after defendant’s discharge. That plaintiff was more indulgent to himself than he had been to the defendant in the matter of time, was not a circumstance to be considered. It was defendant’s diligence, or want of diligence, that was being inquired into. Any inquiry as to the plaintiff’s diligence in completing the work left unfinished by the defendant, would have been wholly irrelevant. Had it even appeared that with the utmost diligence on his part, he would not have completed the work in less time than he took, this would not give rise to an inference that when the defendant was discharged from the work, he was so diligently and honestly endeavoring to carry out his contract as to make his discharge unjustifiable. It follows from what we have said that there was no error in discharging the rule for judgment non ob-stante.

The assignments are overruled, and the judgment is affirmed.


author: Mb. Justice Stewabt,

text:
    Peterson, Appellant, v. Wiggins.

      Negligence — Joint tortfeasors — Satisfaction of claim — Discharge.
    1. Whenever a satisfaction has been received from one of several joint tort feasors, all are thereby discharged.
    2. Where a woman brings an action in trespass against a subcontractor for the death of her husband, and settles and discontinues the suit for a money consideration, and subsequently she brings another action of trespass against the principal contractor for the death of her husband, setting forth exactly the same cause of action, the record of the first suit offered in evidence at the trial in the second suit will be a complete bar to recovery in the second suit in the absence of any evidence offered by the plaintiff to show that the defendant’s negligence alone occasioned the injury.
    Argued Jan. 11, 1911.
    Appeal, No. 302, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1904, No. 2,488, for defendants non obstante vere-dicto in case of Matilda Peterson v. John R. Wiggins et al. copartners, trading as John R. Wiggins & Company.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff's husband. Before Willson, P. J.
    At the trial defendants made the following offer:

      Mr. Bracken offered in evidence record in the case of Matilda Peterson v. Lewis G. Shoemaker and Thomas C. Satterthwaite, copartners, trading as Lewis G. Shoemaker & Company, court of common pleas No. 5, December Term, 1903, No. 719.
    Mr. Bracken: In connection with the record I also offer in evidence the admission made by the plaintiff, to wit, that she is the plaintiff in the suit against Shoemaker & Company and made a settlement with Shoemaker & Company in that suit, wherein she received from them the sum of $500 and gave to them an order to mark the said suit discontinued, settled and ended, the claim -in that suit being based upon the same accident which is the basis of the present suit.
    Mr. Scott: As to the admission, I do not see how that can be offered in evidence.
    As to the record, I object to it, because it is absolutely immaterial and irrelevant.
    The Court: This is intended to lay the basis of a claim on the part of the defendants that one of two tort feasors made a settlement, and that that enures to the benefit of the other.
    Mr. Bracken: Yes, sir. That he cannot make a settlement with one man and hold him responsible and turn around and sue somebody else.
    Objection overruled.
    Exception noted for plaintiff by direction of the court. [1]
    The plaintiff’s statement of claim in the suit of Matilda Peterson v. Lewis G. Shoemaker et al. was the same, except as to the name of the defendants, as in the present suit.
    Verdict for plaintiff for $3,500. Subsequently the court entered judgment for defendants non obstante veredicto.'
    ■ Errors assigned were (1, 2) in entering judgment for defendants n. o. v.; (3) ruling on evidence, quoting the bill, of exceptions.

      March 20, 1911:

      Henry J. Scott, for appellants,
    cited: Thomas v. R. R. Co., 194 Pa. 511; Gallagher v. Kominerer, 29 W. N. C. 87; McCully v. Clarke, 40 Pa. 399; Kay v. Penna. R. R. Co., 65 Pa. 269; Penna. R. R. Co. v. Spicker, 105 Pa. 142.

      F. B. Bracken, of Loughlin & Bracken, for appellees.
    The case is ruled by Seither v. Phila. Traction Co., 125 Pa. 397.
   Opinion by

Mb. Justice Stewabt,

If it be a fact appearing in the case that the present action was brought against defendants for a joint trespass with another, and that that other having made compensation for the injury had been released from liability, then the case was rightly ruled in the court below, and the judgment non obstante must be sustained; for it is a settled rule that whenever satisfaction has been received from one of several joint tort feasors all are thereby discharged. The contention of the appellee here is that this rule, which is admitted, applies only as between established joint tort feasors, so that when one is separately sued for the trespass alleged — in the present case it was negligence resulting in the death of plaintiff’s husband — he can avail himself of the rule only as he shows that the party who was released was in fact a joint trespasser with himself. For the sake of the argument we may concede that this is so. The position taken is not without authorities supporting it, though authorities to the contrary are even more numerous. The case in hand calls for no opinion as to which rest on the better reason, for if any such burden rested on these defendants it was met and discharged. There appears on the record of this case the following admission by the plaintiff’s counsel: “I will admit that the plaintiff, in this case, in addition to the present suit, brought a suit against Shoemaker & Company, and that Mr. Wylie representing Shoemaker & Company, in that case, paid her $500 for an order to discontinue, settle, and end the suit of Matilda Peterson v. Lewis G. Shoemaker and Thomas C. Satterthwaite, copartners trading as Lewis G. Shoemaker & Co., Court of Common Pleas, No. 5, December Term, 1903, No. 719.” This was immediately-followed by an offer by defendants’ counsel of the record of the case referred to in the above admission. It was objected to solely on the ground that it was irrelevant and immaterial. The objection was promptly and properly overruled and the record admitted. From an examination of the record in that case it clearly appears that the cause of action was the same there as here. The statement filed in that case is exactly the statement filed in this, with no other change than in the names of the defendants. The negligence which it is averred caused the injury is not only averred against L. G. Shoemaker & Company, while in this case it is averred against these defendants, but the act of negligence is the same in both statements. Since death happens but once to any individual, the inference — we put it very mildly — is that these several defendants in these several suits were joint tort feasors. Cases may arise where, whether the party sued separately was a joint trespasser becomes a question to be decided only by a jury; there are others, however, where the question is for the court. If the settlement and release relied on follow a suit at law, either before or after final adjudication, it would be for the court to decide from an inspection of the record whether the cause of action was the same in both cases, and determine whether defendant was sued as a joint trespasser or otherwise, unless there were independent facts in dispute bearing on the question. It could only become a question for the jury upon the defendant showing something to the contrary. Here the record of the case against Shoemaker & Company, considered in connection with the admission entered upon the record of the case, established a prima facie case for the defendants beyond all question. The burden then shifted to the plaintiff, and it was for her to show, if she could, that notwithstanding this admission and record, that defendants’ negligence alone occasioned the injury. That the evidence on the main question of defendants’ negligence did not disclose concurrent negligence on the part of another is wholly aside from this collateral inquiry. The main issue was upon defendants’ plea of not guilty. The determination of that issue was not dependent on whether the defendant alone was guilty of the negligence or whether that of another contributed. Nor is there anything to be derived from the fact that defendants were sued in a separate action. A party injured, though he may obtain but one satisfaction, may maintain as many actions as there are joint tort feasors. Even admitting plaintiff’s theory as to the law, that defendants were bound to show joint negligence on the part of L. G. Shoemaker & Company, this requirement was fully met by a prima facie case fully established, and with nothing to rebut it, binding instructions to find for the defendants would have been entirely proper. These not having been given, and the jury having found for the plaintiff, there was no error in entering judgment non obstante for the reasons above stated.

Judgment affirmed.


text:
    Wright v. Adams Express Company, Appellant. Davidson v. Adams Express Company, Appellant. Blackburn v. Adams Express Company, Appellant.

      Carriers — Common carriers — Limitation of amount of liability — Interstate commerce — Act of Congress of June 29, 1906, 84 Statutes at Large, 684.

    1. The Pennsylvania rule that a common carrier cannot contract for exemption from or limitation of liability arising from his negligence or that of his servant, is applicable to commerce between Pennsylvania and other states, and the contrary rule permitting a limitation of liability applied by the federal courts is not binding upon the courts of this state in the absence of congressional action upon the subject.
    2. The Act of Congress of June 29, 1906, U4 (Statutes at Large, 584, requiring carriers to reduce the contract for transportation to writing, and enacting certain other rules for the regulation of interstate commerce, is not such congressional legislation as will require the courts of Pennsylvania to follow the rule laid down by the federal courts that a carrier may limit his liability to an agreed valuation in consideration of a lower rate for carriage.
    Argued Jan. 12, 1911.
    Appeal, No. 282, Jan. T., 1910, by defendant, from judgment of Superior Court, Oct. T., 1909, No. 192, affirming judgment of C. P. No. 2, Phila. Co., March T., 1908, No. 2,392, for plaintiff on case stated in suit of Daisy Wright v. Adams Express Company.
    Before Pell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    See 43 Pa. Superior Ct. 40.
    Appeal, No. 283, Jan. T., 1910, by defendant, from judgment of Superior Court, Oct. T., 1909, No. 87, affirming judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,701, on verdict for plaintiff in case of Abe Davidson, trading as Davidson & Son, v. Adams Express Company. Affirmed.
    See 43 Pa. Superior Ct. 53.
    Appeal, No. 284, Jan. T., 1910, by defendant, from judgment of Superior Court, Oct. T., 1909, No. 95, affirming judgment of C. P. Chester Co., Aug. T., 1907, No. 101, on verdict for plaintiffs in case of Ephraim Blackburn and Joseph S. Townsend, trading as Blackburn & Townsend, v. Adams Express Company. Affirmed.
    See 43 Pa. Superior Ct. 276.
    Appeals from Superior Court.
    Henderson, J., filed the following opinion in Wright v. Adams Express Co.:
    This appeal involves a consideration of the effect of the interstate commerce legislation on the liability of a common carrier for damages for negligence on a contract for the carriage of goods from Pennsylvania to the state of New York. The plaintiff sued to recover the value of a consignment of furs delivered to the defendant in Philadelphia for carriage to New York city. The bill of lading contained the following provision: “1. In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.” The package was not delivered to the consignee nor accounted for and the court entered judgment on the case stated in favor of the plaintiff for $350, value of the goods, notwithstanding the limitation of liability in the contract. One of the facts agreed upon was that on November 18, 1907, and before and after that date the regular rate established and in force on defendant’s line of transportation for carrying furs of the weight of those shipped from Philadelphia to New York was forty cents if their value was $50.00 or under and sixty cents if their value was $350. It was also agreed that when the plaintiff’s servant delivered the package of furs to the defendant, the agent of the latter inquired what the value of the package was and the servant not knowing the value stated that he did not know; whereupon the agent stamped on the bill of lading delivered to the plaintiff’s servant “Value asked and not given.” The appellant contends, first, that the liability of a carrier for loss of goods shipped in interstate commerce under a contract containing an agreement as to the value of the goods should be determined by the law as announced in the decisions of the supreme court of the United States and not according to the rule adopted by the Supreme Court of this state, because of the provision of the interstate commerce legislation requiring a carrier to issue a receipt or bill of lading to the shipper and making such carrier liable to the holder of the receipt for loss or damage. It is conceded that it is the well-established law of t.bis state that a common carrier cannot contract for exemption from or limitation of liability arising from his negligence or that of his servant. This doctrine has its foundation in considerations of public policy which hold that contracts permitting a common carrier to reheve himself from the obligation to take care of the property committed to his custody tend to encourage guilty negligence: Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. 67; Cole v. Goodwin, 19 Wend. 251; Railroad Co. v. Lockwood, 84 U. S. 357. The nature of the carrier’s undertaking imposes on him the obligation to exercise a high degree of care, and a contract which has the effect to protect him when he has committed a breach of duty and which disregards a well-defined rule of public policy cannot be enforced. There are many cases in this state which apply this doctrine as will be seen by examination of Powell v. R. R. Co., 32 Pa. 414; American Express Co. v. Sands, 55 Pa. 140; Penna. R. R. Co. v. Raiordon, 119 Pa. 577; Buck v. Penna. R. R. Co., 150 Pa. 170; Willock v. R. R. Co., 166 Pa. 184; Eckert v. Penna. R. R. Co., 211 Pa. 267. And with reference to this rule no distinction has been made between transactions involving interstate carriage and those in which the transportation was wholly within the state. Grogan v. Adams Express Co., 114 Pa. 523; Willock v. R. R. Co., 166 Pa. 184; Hughes v. Penna. R. R. Co., 202 Pa. 222, and Eckert v. Penna. R. R. Co., 211 Pa. 267, were all cases in which shipments were made from one state to another. The decisions of the federal courts have applied a different rule. They sustain the doctrine of the common law that a carrier may not contract for exemption from liability for his own negligence, but hold valid an agreement with the shipper limiting his liability to the agreed valuation in consideration of a lower rate for carriage, the shipper at the same time to have the privilege to insist upon the carrier’s liability for the full value of the property on payment of the price of transportation charged according to such value: Hart v. R. R. Co., 112 U. S. 331. Such limitation of liability being regarded as a lawful means of protection to the carrier against excessive valuation and a proper method of securing a due proportion between the amount for which the carrier is responsible and the freight paid. And it is this rule which the appellant asks to have applied here. It is conceded that the law on the subject as announced by the supreme court of the United States is not binding on the courts of this state unless congress has legislated on the subject in the act of June 29, 1906, 34 Statutes at Large, 584. Prior to that enactment it had been decided by the supreme court of the United States that a statute of a state or rule of law established by the courts of a state declaring void any contract of a common carrier exempting him from, or limiting his liability for, negligence was not in conflict with the legislation of congress on the subject of interstate commerce: Penna. R. R. Co. v. Plughes, 191 U. S. 477. Such a statute or rule of law had for its object the protection of people of the state in the enjoyment of their rights of property and to secure for them adequate redress for wrongs done within the state, and this is clearly within the authority of the state. Common carriers like other persons doing business within the territorial jurisdiction of the state are subject to its law. And in each of the states there are to be found statutes and judicial decisions defining the rights and duties of such carriers and declaring the means by which persons injured by their failure to perform their obligation may be compensated in damages. It was accordingly held in Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, that a carrier exercising his calling within a particular state although engaged in the business of interstate commerce is answerable according to the laws of the state for acts of nonfeasance or misfeasance committed within its limits and that on failure to deliver goods at the time and place the right of action is given by the local law. That was a case in which a limited liability contract was set up by the railroad company in an action for personal injury received by the plaintiff while engaged in transporting cattle on the defendant’s railroad; a statute of the state of Iowa declaring that no contract, receipt, rule or regulation shall exempt any corporation engaged in transporting persons or property by railway from the liability of a common carrier or carrier of passengers which would exist had no contract, receipt, rule or regulation been made or entered into. To the same effect are Smith v. Alabama, 124 U. S. 465; New York, N. H. & H. R. R. Co. v. New York, 165 U. S. 628; Railroad Co. v. Husen, 95 U. S. 465; Hughes v. Penna. R. R. Co., 202 Pa. 222. The conclusion of these cases was reached in accordance with the doctrine that the regulation of the rights and duties of all persons under the jurisdiction of the state belongs in the first instance to the state because of its reserved power to provide for the safety of the persons and property within its territory and that this right is not taken away from re because of the exclusive right of congress to regulate interstate commerce except in cases where the attempted exercise of authority in a state is in conflict with an act of congress or is an attempt to regulate interstate commerce. In Martin v. R. R. Co., 203 U. S. 284, Mr. Justice White after reviewing some of the federal cases bearing on the subject said, “The result of the previous rulings was to recognize in the absence of action by Congress the power of the states to legislate and of course this power involved the authority to regulate as the state might deem best for the public good without reference to whether the effect of the legislation might be to limit or broaden the responsibility of the carrier.” These are not in themselves regulations of interstate commerce although they control in some degree the conduct and liability of those engaged in such commerce. It is plainly decided in the case of Hughes v. R. R. Co., 202 Pa. 222, that the interstate commerce legislation up to that time did not control the statutes or decisions of the courts of the’ states as to the validity of contracts limiting liability for negligence. But the appellant argues that the act of congress of 1906 has that effect inasmuch as it provides “that any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed; provided that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” The apparent purpose of this amendment was to require the carrier to reduce the contract for transportation to writing and to give the holder thereof prima facie title to the property; to render the first carrier liable to the lawful holder of the receipt or bill of lading for any loss caused by such carrier or by any connecting carrier over whose line or lines such property may pass and to forbid exemption of such carrier by contract from the liability imposed by the act. We are unable to discover in the language of this amendment any evidence of an intention to change the rule of law theretofore- existing with reference to the measure of damages to which a carrier might be subjected in an action for negligence. The provision for a receipt or bill of lading was evidently to enable the shipper to have the best evidence of the terms of his contract and to avoid controversy as to the title to the property shipped. No form of receipt is prescribed nor is any other liability created than that which makes the first carrier responsible for loss occurring anywhere on the line of shipment. This is a provision in aid of the shipper intended to meet the difficulty often experienced of determining on what part of a route over connecting lines a loss occurred and rendering invalid a contract with the first carrier in which liability for loss is limited to a loss occurring on the line of that carrier. But this has nothing to do- with the measure of damages which is the important subject in this appeal. It was said in Penna. R. R. Co. v. Hughes, 191 U. S. 477, that the interstate commerce laws have contained no sanction of agreements limiting liability to stipulated valuations and that until congress shall legislate upon it there is not any valid objection to a state enforcing its own regulations upon the subject although it may to this extent indirectly affect interstate commerce contracts of carriage; and in Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, the court referring to rules prescribed for the construction and management of railroads and designed to protect persons and property said, “They are not in themselves regulations of interstate commerce although they control in some degree the conduct and the liability of those engaged in such commerce. So long as congress has not legislated upon the particular subject they are rather to be regarded as legislation in aid of such commerce and as a rightful exercise of the police power of the state to regulate the relative rights and duties of ■ all persons and corporations within its limits.” To the same effect is McLean & Co. v. Denver, etc., R. R. Co., 203 U. S. 38. It cannot be successfully contended that a statute or rule of law of a state declaring what shall be the measure of damages for the breach of a contract of a common carrier to deliver goods to a destination in another state is in any proper sense a regulation of interstate commerce or violative of the constitution of the United States or any law of congress. It may be conceded that the congress might legislate upon the particular subject and give validity to contracts limiting the carrier’s liability, but until such action has been taken the statutes or rules of law of the respective states are in force and we are not persuaded by the careful and exhaustive argument of the counsel for the appellant that the amendment of 1906 was intended to at all affect the subject of the right of a common carrier engaged in interstate commerce to contract for exemption from liability for his own negligence or to limit his liability with reference thereto. In. every undertaking of a carrier there is a contract either expressed or implied and at the time of the enactment of the amendment referred to the custom was perhaps general on the part of carriers to give receipts or bills of lading for the goods accepted for transportation. If congress had intended to prescribe the terms or declare the effect of such a document except as specifically set forth in the statute it is reasonable to suppose that intention would have been plainly expressed. If the act have that effect the intention can only be ascertained by processes of interpretation and reasoning which are not convincing. As the subject is a plain one and adequate language was at command it seems evident that no such decisive change of the law as is contended for by the appellant could have been contemplated. The intention was not to abridge the rights of shippers but to correct defects in the preceding legislation by reason of which they were placed at a disadvantage. This appears not only from the body of the enactment but also from the proviso continuing to shippers any remedy or right of action had under existing law. The appellant insists that the words “remedy or right of action” in the proviso have reference to the method of procedure and do not relate to the cause of action, but the enactment bears on the rights of shippers and not on the legal processes by which their rights might be enforced and was apparently intended to hold fast the law as it existed with the addition of the enlarged rights given to shippers and the increased liability imposed on the carrier. It is in this sense we think that the term “right of action” is used by Mr. Justice Gray in Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, and by Mr. Justice White in Martin v. R. R. Co., 203 U. S. 284. The language of the proviso admits the interpretation that the holder of a shipping receipt is permitted to exert his cause of action for a negligent wrong in transportation by a common carrier in the method and with the result allowed according to the law existing at the time the amendment was enacted. Our attention is directed by the appellant to the case of Tul-lock v. Mulvane, 184 U. S. 497, as a controlling authority. That was an action on an injunction bond filed in the circuit court of the United States for the district of Kansas in a proceeding in equity. Such proceedings in courts of equity of the United States are regulated by rule adopted and promulgated by the Supreme Court under the power given it by congress and it is under one of these rules that the courts of the United States proceed in requiring indemnity bonds and granting injunctions. The decision was based on the reasoning that the bond was given with reference to the rules of law applicable to such bonds in the United States courts; that the contract was with reference to a definite rule of liability and that there could be no certain general rule by which to determine such liability except as administered in the federal court; that the court has the inherent right to set the bond aside and to determine in its discretion whether recovery could be had upon it. If the obligor’s liability could be measured in other courts according to a different standard from that which controlled in the court which had directed the bond to be given it might occur that although the latter court had decreed that the injunction was rightfully issued, nevertheless in an action on the bond a state court might hold otherwise and thus subject the obligor to liability without redress. The liability of the obligors was determinable according to the measure of liability existing in the court where the bond was given, and the parties must be presumed to have contracted according to the law there prevailing. It followed as a consequence that the law of the state of Kansas which permitted the recovery of counsel fees under such a bond could not prevail against the decisions of the federal courts that such a charge was not costs within the meaning of the obligation. There the rule of court and the order of the chancellor determined the character of the bond and the extent of its obligation. The amendment of 1906 to the interstate commerce legislation has no such effect. It neither prescribes the form of a bill of lading nor fixes the measure of liability thereunder.

      The second position for which the appellant contends is that the shipper obtained transportation at less than the regular rate by undervaluing the goods and that the contract is therefore illegal and that at most recovery could not be had for more than the value on which the freight charge was paid. If a case were presented of one who had fraudulently obtained an undervaluation of goods in order to secure a lower transportation charge the question would be one worthy of serious consideration, but the facts agreed upon do not furnish a foundation for the argument presented. The shipper did not know that the appellant had an advertised schedule of rate nor what the appellant charged in this case at the time the goods were received nor what the provisions of the shipping bill were. Her agent transacted the business in her absence. She did know that express charges were based on the value of the goods, but it does not appear that she knew what the minimum value to be carried at the fixed charge was. Nor do the facts stipulated show any fraudulent conduct or intention to deceive on the part of the plaintiff’s servant. He had no knowledge of the published schedule of rates nor what the rates were, nor did he know the conditions set forth in the bill of lading. He told the truth when he informed the defendant’s agent that he did not know the value of the furs. When he gave that statement no further inquiry was made on the subject and the goods were promptly receipted for without knowledge on the part of the company of their value. The facts leave no room therefore for argument on the theory of a deception practiced by the plaintiff. There was no thought in the mind of the plaintiff or of the defendant of accepting or granting a concession or preference in the matter of rates. It would work a great hardship on many innocent shippers to hold that where one in good faith delivered his goods to a carrier for interstate transportation and paid the rate demanded without knowledge of the schedule of rates or what the rate actually was he rendered himself powerless to insist in a legal tribunal that he have his goods or their value. If the plaintiff had seen the shipping receipt when the goods were received by the defendant she could not have learned therefrom that she was getting a lower rate than was given to others under like circumstances. Preferences were forbidden by the interstate commerce legislation in force at the time the amendment of 1906 was adopted, but this did not prevent a recovery in Penna. R. R. Co. v. Hughes, 191 U. S. 477. Our conclusion is that the courts of this state have not been deprived by the interstate commerce legislation of the power to enforce the doctrine established in this state that the contract of a common carrier limiting his liability for negligence is contrary to public policy and therefore void.
    March 20, 1911:
    The judgment is affirmed.

      Errors assigned were the judgments of the Superior Court.

      John Lewis Evans, with him Thomas DeWitt Cwyler, for appellant.

      George Wharton Pepper, and Alfred Aarons, with them Louis W. Robey, W. B. Bodine, Jr., Henry N. Wessel and A. M. Holding, for appellees.
   Per Curiam,

A difference in the facts gave rise in each of these cases to questions of minor importance not found in the others, but on the main question on which the appeals were allowed and to which the arguments were confined, they are alike. The judgment of the Superior Court in each case is affirmed on the opinion of Judge Henderson in Wright v. Adams Express Co., 43 Pa. Superior Ct. 40.


text:
    Vervaeke v. Adams Express Company, Appellant.

      Common carriers — Amendment—Cause of action — Statement of claim ■ — Negligence.
    1. Where in an action of trespass against a common carrier, the statement of claim charges negligence on the part of the defendant, and claims damages on account of such negligence upon the general, implied or common-law liability of the defendant as a common carrier, the court may, after a verdict for the defendant and upon the granting of a new trial, permit the plaintiff to amend his statement of claim so as to charge the negligence more in detail and recite and refer to a special contract under the terms of which the shipment was made, and conclude with a claim for damages on account of the alleged negligence.

      Carriers — Common carrier — -Limitation of liability — Interstate commerce.

    2. The Act of Congress of June 29, 1906, 34 Statutes at Large, 584, does not prevent the Pennsylvania courts from continuing to apply the rule that a common carrier cannot contract for exemption from his own negligence, or that of his servants, nor for a limited liability in case of loss from such negligence.
    Argued Jan. 12, 1911.
    Appeal, No. 185, Oct. T., 1910, by defendant, from judgment of C. P. Venango Co., Nov. Term, 1907, No. 34, on verdict for plaintiff in case of Hector Vervaeke v. Adams Express Company.
    Before Fell, C. J., Mestbezat, Potteb, Elkin and Stew-abt, JJ.
    Affirmed.
    Trespass against a common carrier to recover damages for injuries to nine horses.
    From the record it appeared that on December 4, 1908, a verdict was rendered for the defendant under the instructions of the court. Subsequently, while a rule for a new trial was pending, the plaintiff moved to amend his statement of claim. In allowing this motion and in granting a new trial, Cbiswell, P. J., filed the following opinion:
    This cause having come to trial before the court and a jury and the evidence having been heard the defendant asked for binding instructions in favor of the defendant. Thereupon the plaintiff moved for leave to amend his statement of claim which motion, on objection being pctade thereto by the defendant, the court refused and directed the jury to render a verdict in favor of the defendant which was done. A motion by the plaintiff for a new trial hairing been made and argued the court permitted the plaintiff to renew his motion to amend his statement of claim. This having been done and an amended statement having been put in form and presented with the motion for leave to amend, the right of the plaintiff to so amend was objected to by the defendant and the question thus raised is now to be disposed of.
    . The statement first filed charged negligence on the part of the defendant in shipping and transporting for the plaintiff nine certain horses from Buffalo in the state of New York, to Pittsburg, Pa., the plaintiff therein claiming damages on account of such negligence upon the general, implied, or common-law liability of the defendant as a common carrier. The amended statement charges such negligence more in detail and recites and refers to a special contract under the terms of which the shipment was made, and concludes with a claim for damages on account of the alleged negligence.
    The cause of action, therefore, as disclosed by the first statement, was the alleged negligence of the defendant in transporting the horses from Buffalo to their point of destination. That disclosed by the amended statement was the like negligence. The extent of the recovery, if any, may be limited by the special contract, and the liability and duty of the defendant as carrier under the special contract may be varied thereby in some respects but the cause of action remains the same. The variances affect the proofs and the amount and extent of the recovery only.
    So viewing the original and amended statements the amendment sought appears to be authorized by the terms of the Act of March 21, 1806, 4 Sm. L. 326'. An adjudication practically in point is that of Rodrigue v. Curcier, 15 S. & R. 81, wherein it is held that (syllabus) “Where the wrong for which the plaintiff seeks redress, is the misconduct of the defendant, as his agent, in the sales of certain cottons consigned to him, the plaintiff may amend his declaration, under the act of assembly, by adding counts, preserving the substance of the same complaint.” In this case it is said that the proper construction of the act is this: When the “merits of the case cannot be reached without an amendment it is to be granted, provided the cause of action be not changed.” In Erie City Iron Works v. Barber, 118 Pa. 6, it is said: “The cause of action is the particular matter for which the suit is brought, and when the object of an amendment is not to forsake this, but to adhere to it, it is the duty of the court, when the merits of the case cannot be otherwise reached, to permit the amendment,” citing Rodrigue v. Curcier, 15 S. & R. 81.
    If the amendment introduces no new cause of action there is no force in the defendant’s contention that the action is barred by the tenth paragraph of the special contract which provides that “any suit for the recovery of loss or damage to the property shall be commenced within six months next after such loss or damage shall have accrued or be forever barred” is without force since the action to recover such damage was commenced within six months.
    While therefore we are of the opinion that the amendment should be allowed and that a new trial should be granted, the same should be granted only on the terms indicated in the order which follows:
    And now, November 15, 1909, after argument and due consideration the rule for leave to file an amended statement of claim is made absolute and the plaintiff’s motion for a new trial is granted upon condition that the plaintiff within thirty days from this date pay the costs of the term at which the trial took place, the same to be ascertained and fixed by the prothonotary.

      March 20, 1911:
    On a new trial the jury returned a verdict for $2,133, upon which judgment was entered. Defendant appealed.
    ■ Errors assigned amongst others was (6) in refusing binding instructions for defendant, and (28) in allowing the amendment, quoting the order.

      Charles F. Patterson, with him Thomas DeWitt Cuyler, John Lewis Evans, and John L. Nesbit, for appellant.—
    The cause of action introduced by the amended statement was a different cause of action from that originally set up: Read v. Brown, L. R. 22 Queen’s Bench Div. 128; Travelers’ Ins. Co. v. Myers, 59 Ohio St. 332 (52 N. E. Repr. 831); Clarke v. R. R. Co., 39 W. Ya. 732 (20 S. E; Repr. 696).
    If the cause of action be changed or if the amendment speaks from its date, the plaintiff cannot recover: Grier v. Assurance Co., 183 Pa. 334.
    The amendment speaks from its date and was asked for too late: Denman v. R. R. Co., 52 Neb. 140 (71 N. W. Repr. 967); Leh v. R. R. Co., 30 Pa. Superior Ct. 396; Eckert v. R. R. Co., 211 Pa. 267.
    The contract of shipment, being evidenced by a bill of lading provided for in sec. 20 of the act of June 29, 1906, 34 United States Statutes at Large, 584, is to be construed by federal law and not by the law of Pennsylvania.

      James S. Carmichael, with him Lawrence P. Hancock and Thomas. Matthews, for. appellee.
    The amendment was proper: Trace v. Penna. R. R. Co., 26 Pa. Superior Ct. 466; Rodrigue v. Curcier, 15 S. & R. 81; Erie City Iron Works v. Barber, 118 Pa. 6; Susquehanna Mut. Fire Ins. Co. v. Clinger, 10 Pa. Superior Ct. 92; Cunningham v. Day, 2 S. & R. 1; Coxe v. Tilghman, 1 Whart. 282; McAdam v. Orr, 4 W. & S. 550; Wilhelm’s App., 79 Pa. 120.
   Per Curiam,

Leave to amend the statement of claim was properly allowed for the reasons stated in the opinion of the learned judge of the common pleas, making absolute the plaintiff’s rule for that purpose. The question whether the rule of law in this state, which prohibits a common carrier from limiting its liability for negligence, is abrogated by the Interstate Commerce Act, was decided at the trial in accordance with Wright v. Adams Express Co., 43 Pa. Superior Ct. 40, the judgment in which case we have affirmed in an opinion handed down with this, ante, p. 635.

The judgment is affirmed.


text:
    Thompson v. Prettyman, Appellant.

      Arbitration — Findings of referee — Appeals—Paper-books—Evidence.
    1. Findings of a referee confirmed by the court will not be disturbed by an appellate court, where there is evidence to support them, and manifest error does not appear.
    2. The appellate court cannot reverse a referee’s findings of fact, where the appellant has failed to print the testimony in his paper-book.

      Interest — Usury—Release—Subsequent transactions.

    3. Where the taint of usury attaches to an original transaction between a borrower and lender, it attaches to all consecutive obligations or securities growing out of the original vicious transaction, and none of the descendant obligations, however remote, can be free from it if the descent can be traced.
    4. Where there has been a voluntary payment of usury, a subsequent release without consideration of any claim based upon such usury will not avail as a defense to the recovery of the usury paid by the borrower. The rule obtains when a release is exacted as a condition to the settlement of the loan for the usury paid on the loan, or on prior successive loans forming parts of one and the same transaction.
    Argued Jan. 12, 1911.
    Appeal, No. 335, Jan. T., 1910, by defendant, from order of C. P. No. 3, Phila. Co., June Term, 1906, No. 2,560, dismissing exceptions to referee’s report in case of Frank B. Thompson and William H. White, copartners trading as Thompson & White, v. Charles B. Prettymán.
    March 20, 1911:
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of Horace M. Rumsey, Esq., referee.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to report of referee.

      Alex. Simpson, Jr., with him J. Quincy Hunsicker, for appellant.

      Lester B. Johnson, for appellees.
   Opinion by

Mr. Justice Mestrezat,

We have carefully examined this record and have discovered no reversible error. The exhaustive report of the learned referee covers every question of fact and law in the case. He has discussed the evidence and found the facts most fully. About all the authorities in this state bearing on the questions of law have been analyzed and applied to the facts. The case was heard by the court on exceptions, and the referee was sustained in an opinion which deals with the law applicable to the controlling questions raised on the record. Under the circumstances, we deem it unnecessary to refer to or discuss either the facts or law in detail.

With all the evidence in the case before them, the learned judges of the common pleas have confirmed the finding of facts by the referee. It is a well-settled rule that the findings of a referee, confirmed by the court, will not be disturbed by an appellate court, where there is evidence to support them and manifest error does not appear: Ellison v. Hosie, 147 Pa. 336; Alexander v. Hamilton, 31 Pa. Superior Ct. 189. There is an additional and controlling reason why we cannot interfere with the referee's findings of fact, and that is that the appellant has failed to print the testimony in his paper-book. The evidence not being before us, it would manifestly be improper for us to consider the alleged errors of fact, and, hence, we must assume that the findings are correct: Osterheldt v. Philadelphia, 195 Pa. 355. The facts as thus found clearly rule the case against the appellant and we may add that the evidence quoted by the referee fully sustains his findings.

The action was brought to recover $14,669.90 alleged to be usury on two loans made by the defendant to the plaintiffs. The referee finds that the plaintiffs paid $9,286.40 above the legal rate of interest on the first loan, and $5,383.50 on the second loan, and that all the transactions between the plaintiffs and the defendant, including the loans, grew out of the original building contract of June 6, 1905. He also finds that the first loan was paid on December 22, 1905, and January 11, 1906, and the second loan, made in January, 1906, was paid May 21, 1906, by the sale and conveyance to the defendant of certain houses and a vacant lot in pursuance of the agreement of that date. The consideration paid for the properties by the defendant was $61,500. It is admitted that the second loan was made by the defendant, and the referee finds that he also made the first loan.

The defendant relies on a release contained in the written agreement executed by the parties on May 21, 1906, to defeat a recovery of the usury in this action. The agreement was intended to settle all differences and disputes between the parties, including, as found by the referee, the usury paid on the loans. In this release the plaintiffs covenanted and agreed “to release, exonerate and forever discharge the said Prettyman from any and all claims, demands or actions, of whatsoever kind or nature, growing out of any transactions heretofore had by them or either of them, or which they or either of them were or are in any way directly or indirectly interested, with the said Prettyman to the date hereof, excepting of course the covenants and agreements herein contained.” The defendant agreed to pay the plaintiffs for the houses and the vacant lot, contained in the building operation out of which these loans arose, the sum of $61,500 which the referee finds was “the consideration paid by the defendant to the plaintiffs upon the transfer and sale of the said properties, recited in said agreement.” It was also found that no part of said sum “constituted a return by the defendant to the plaintiffs of the unlawful overcharge and usurious interest exacted by the defendant from the plaintiffs in connection with the” two loans. This was supplemented by another finding as follows: “The actual value of the properties transferred to the defendant under the terms of the agreement of May 21, 1906, was equal to or in excess of $61,500, paid therefor by the defendant to the plaintiffs.” The referee further found: “All the transactions between the plaintiffs and the defendant grew out of the original building contract of June 6, 1905; the loan of $137,000 and the exaction of usury therefor, the loan of $45,000 and the usury exacted therefor, and the final agreement of May 21, 1906, containing the release of the defendant from all claims by the plaintiffs were connected transactions between the same parties and were consecutive agreements, each arising out of a prior agreement. The effect of the usury in the first and second loans taints the agreement of May 21, 1906.”

The difficulty of the appellant’s position is that it ignores the specific finding that the $61,500 paid by the defendant to the plaintiffs as provided in the agreement were paid as the consideration for the real estate, and that no part of the sum was paid in settlement of the usurious claims, and the refusal of the court to find, as requested by defendant, that the release of the usury charges induced the execution of the agreement. Manifestly, therefore, the consideration passing from the defendant to the plaintiffs was exclusively for the conveyance of the realty, and there was no consideration for the agreement to release the defendant from liability to plaintiffs for the usurious interest. The release of the claim for usury was wholly without consideration.

The referee was fully justified in making an investigation of the whole transaction between the parties from its inception to the agreement of May 21, 1906. The several intervening steps, as he found, constituted but one continuous transaction. The usury taken on both loans, therefore, affected all subsequent agreements or securities in the transactions. The original taint attached to all consecutive obligations or securities growing out of the original vicious transaction, and none of the descendant obligations, however remote, can be free from it if the descent can be traced: Campbell v. Sloan, 62 Pa. 481; Earnest v. Hoskins, 100 Pa. 551. This is the settled construction of the Act of May 28, 1858, P. L. 622, and to carry into effect its purpose to thoroughly and effectively protect the borrower against the rapacity of an avaricious lender, it is necessary that the courts should closely scrutinize the entire transaction. It logically follows that to attain this end and properly enforce the statute, every part of the transaction must be searched and the tainted and vicious elements eliminated. The lender is entitled to the return of his loan with the legal rate of interest thereon, but when that has been obtained, the act erects an absolute barrier against any further demands in whatever form or by whatever name they may appear. It is equally potent and effective to protect the necessitous borrower when the usurious interest has passed into the hands of the lender and which he attempts to conceal and withhold by any evasive provision created for the purpose. It protects an impecunious and necessitous borrower against himself and gives full effect to the spirit and language of the statute by defeating any attempts to collect or retain usury by any pretense or evasive means. This doctrine is recognized in all of the numerous cases on the subject decided by this court. The public policy of the state, as disclosed by the legislation and decisions on the subject, condemns the taking or retention of an illegal rate of interest.

Tested by these principles the alleged voluntary payment of the usury and the release set up and relied on by the defendant are not a defense to this action. A payment of usury enforced by the necessities of a borrower cannot and should not be regarded as voluntary so as to exclude it from the protection of the statute. No man would pay excessive interest if he could secure the loan at the legal rate. He, therefore, pays usury because his necessities compel it, or because he thinks an anticipated investment will warrant it — in both cases, however, the fact remains that if he could get the loan at the legal rate he would not pay beyond it. The payment, therefore, is not voluntary in the sense that it defeats a recovery of usury paid the lender. In overruling such defense, this court, speaking by Paxson, J., in Marr v. Marr, 110 60, said (p. 64): “The payment of usurious interest is usually voluntary, at least so far as a payment can be called voluntary which is the result of a sort of moral coercion, and of that peculiar kind of influence which an exacting usurer exercises over his unfortunate victim so long as he has money to pay with or credit to lose. It is only when a debtor is driven to the wall that he sets up the defense of usury, and if it would not avail when the payments were voluntary, it could not often be successfully invoked. There is no merit in this position.”

The release contained in the agreement of May 21,1906, cannot avail as a defense to the recovery of the usury paid by the plaintiffs. To so hold would be for this court to furnish an effective, means to every lender to defeat the declared purpose of the statute and render impotent a law expressive of the public policy of the state. We hold that the court below was right in investigating the consideration of the release, and it has been found as a fact that no part of the usurious interest was repaid and that the release was without any consideration whatever. We must, therefore, deny any force or effect to the release unless we are prepared to hold that the parties may defeat the mandate of the statute and the borrower waive its protection when his necessities compel him to sign a release. We have time and again ruled that this will not be done when the release is given at the time of the loan and before the usury has been paid. There can be no sound reason why the same rule should not obtain when a release is exacted as a condition to the settlement of a loan for the usury paid on the loan or on prior successive loans forming parts of one and the same transaction. Until the relation of lender and borrower has ceased, the latter remains subject to the same pressure and the reason for affording him protection against the illegal demands of the lender continues to exist. In other words, if the legislative intent to effectively prevent the payment and collection of usury as disclosed in the statute is to be fully and completely carried out the right of a borrower to pursue the excessive interest must not be defeated by permitting the lender to demand and the borrower to give a release or other acquittance so long as the lender retains the usury. Any other interpretation destroys the protection of the statute. We may appropriately close this discussion with the language of Judge Hare in the opinion in Blim v. Wilson, 5 Phila. 78, in which the court held that a release was not a defense to an action to recover usurious payments of interest. The learned judge said, inter alia: “But apart from all this, the case of the complainant might still rest with safety on the indisputable proposition, that a breach of the usury laws cannot be healed by a release, or by any other device intended to frustrate their policy and escape their force; if it could, those laws might always be evaded by doing successively at different periods that which confessedly cannot be done at once, and which they have forbidden to be done at all; the seal on the bottom of a subsequent deed would have a force which it would want, if it had been applied at the time; and the smallest sum might be rendered a consideration for an obligation for the payment of the largest, by inducing the obligor to execute a renunciation of the defense, which the statutes against usury meant that he should inalienably have. The proper office of a release is to discharge demands, not to create or augment them, and when the circumstances are such that a bond would have no binding force in law, nothing can be gained in point of obligation, by resorting to a release.”

The exhaustive consideration of the case by the referee and the opinion of the learned court below make any further discussion here unnecessary.

The judgment is affirmed.