author: Mr. Justice Fell,

text:
    Cromley, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—Crossings—“ Stop, look and listen.”

    Where a person approaching a grade crossing of a railroad, stops, looks and listens, at a place near the tracks from which he could obtain a view of them, the questions whether he should have stopped at another and better place, or have stopped longer, or have stopped again, are for the jury.
    In an action against a railroad company to recover damages for death of plaintiff’s husband, it appeared that plaintiff approached a grade crossing driving a sled. He stopped at what was apparently the proper place to stop, from which place he could have seen the train that struck them, if it had been within 500 feet of the crossing. He drove on at a walk, his view of the tracks extending as he advanced, and was struck on the nearest track-after he had gone twenty or thirty feet. The condition of the street at the side of the tracks made the passage of the sled difficult and the horses reared an instant before the collision. Held, that the question of the deceased's contributory negligence was for the jury.
    Argued Feb. 29, 1904.
    Appeal, No. 29, Jan. T., 1904, by plaintiff, from order of C. P. Montour Co., Sept. T., 1902, No. 58, refusing to take off nonsuit in case of Sarah C. Cromley v. Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband and son. Before Little, P. J.
    The circumstances of the accident are detailed in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Edward Sayre G-earhart and James Scarlet, with them William J. Baddy, for appellant.
    Whether or not Cromley stopped at the usual and proper place was a fact for the sole determination of the jury: Elston v. Delaware, etc., R. R. Co., 196 Pa. 595; Lake Shore, etc., R. R. Co. v. Frantz, 127 Pa. 297; Ellis v. Lake Shore, etc., R. R. Co., 138 Pa. 506; Whitman v. Penna. R. R. Co., 156 Pa. 175; Roberts v. D. & H. Canal Co., 177 Pa. 183; Arnold v. P. & R. R. R. Co., 161 Pa. 1.

      II. M. Hinckley, with him I X. Grier, for appellee.
    March 14, 1904 :
   Opinion by

Mr. Justice Fell,

The plaintiff’s husband and her son, five years of age, were killed by an express train at a diagonal grade crossing in the borough of Watsontown. The train was running south on the westernmost of the three tracks of the defendant’s road. The deceased were riding in a sled drawn by two horses on the main street of the borough and going in an easterly direction. As they approached the crossing at an acute angle they had a clear view of the track south for a distance of 1,800 feet. The view to the north was obstructed by dwellings and the station house until a point near the tracks was reached. At twenty feet from the tracks there was a clear view north, in the direction from which the train came, for the distance of about 500 feet. This view was enlarged as the tracks were approached, and at a point close to them it was extended to 3,500 feet, and on them to a mile or more. The train was running rapidly, probably fifty or sixty miles an hour, and was on the track nearest the horses. It struck the front part of the sled.

There was only one witness to what occurred before the horses reached the crossing. He was standing on a bank near the tracks north of the crossing, and testified that he saw the horses stop when within “ twenty or ten feet ” of the tracks, and then go on, and he saw them rear just before the engine reached the crossing. The stop was only for an instant, and was thus described by the witness, “ It was a stop and a start, the team stopped and started.” There was evidence that the train was to some extent enveloped in a cloud of dust and snow, and in the argument stress is laid on this fact as proof of a condition that interfered with a view of the train. This is of slight importance, however, because it was not shown that loose snow was thrown by the pilot so as to obstruct a view of the train. Dust and snow and loose papers were drawn to the track and whirled about, but not to a greater extent than is usual in the case of fast trains, and they obscured a side view only. The only witness who had a front view of the engine was north of the crossing, and saw the train when it was 2,800 feet north of his position, and he observed the accident 1,100 feet south of where he stood and through whatever dust and snow enveloped the train saw the horses walk on the track and rear just before they were struck by the engine. The street at the side of the tracks was muddy and gravel and cinders were mixed with the snow, making the passage of a sled over it more difficult than it otherwise would have been. There was evidence that the whistle was blown when the engine was 3,000 feet from the crossing, and only negative evidence that it was not blown afterwards.' If there was any negligence on the part of the defendant shown it was in the failure to give warning of the approach of the train that was adequate in view of the exceptional danger of the situation. A nonsuit was entered on the ground of contributory negligence.

The facts to be considered are these: The plaintiff’s husband stopped for a moment at what was apparently the proper place to stop, from which place he could have seen the train if it had been within 500 feet of the crossing. He drove on at a walk, his view of the tracks extending as he advanced, and was struck on the nearest track after he had gone twenty or thirty feet. The condition of the street at the side of the tracks made the passage of a sled difficult and the horses reared an instant before the collision. These facts give rise to two questions; did he comply with the rule of law that one about to cross a railroad track must stop, look and listen; if he did this, did he go on in the face of a manifest danger that he saw or should have seen ?

The first question is readily resolved in favor of the appellant. In the absence of all evidence on the subject, the presumption is that he stopped, looked and listened. The testimony shows that he did stop at the first place near the tracks from which he could obtain a view of them, and the presumption is that he looked and listened. The act of stopping shows that he was exercising care, and whether he should have stopped at another and better place or have stopped longer or have stopped again, were questions for the jury: Ely v. Pittsburg, etc., Railway Co., 158 Pa. 233.

The second question is not so free from doubt, but the principles applicable to it are well defined. If the appellant’s husband saw the train or should have seen it, there could be no doubt of his negligence, because he either went on in the presence of an obvious danger, or failed to observe the danger when he had an opportunity to do so. In either event he was negligent. But the rule stated in Carroll v. Penna. Railroad Co., 12 W. N. C. 348, and the long line of decisions that have followed it, is in its nature applicable only to clear cases, and if there is a reasonable doubt as to the facts or the inferences to be drawn from them the ease must go to the jury: McNeal v. Pittsburg, etc., Ry. Co., 131 Pa. 184; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Doud v. Delaware, etc., R. R. Co., 203 Pa. 227. In this case it cannot be said that the driver saw the train or should have seen it, because it may have come into view in the 500 feet to which his line of vision was at first limited, after he had looked and started to cross. It was probably moving twenty times as fast as he was and after coming into view would cover the distance to the crossing before he could reach a place of safety. Nor can it be said by the court that he was negligent in not seeing and avoiding the train if it came into his view after he had started on. True, it was his duty to continue to look as he approached the track, but he may have been delayed by the - condition of the crossing and by the rearing of his horses. Allowance must be made for these facts and for his bewilderment of mind if when committed to the act of crossing he was suddenly confronted with an unexpected and alarming danger.

In Gangawer v. P. & R. Railroad Co., 168 Pa. 265, relied on by the appellee, it was undisputed that the driver of the team could have seen the train and stopped in safety if he had looked when within fifteen or twenty feet of the track, and this distinction will be found in all cases that have been decided on the principles stated in Carroll v. Penna. Railroad Co., supra. The question in Kinter v. Penna. Railroad Co., 204 Pa. 497, was the adequate performance of the duty to stop, look and listen by one who stopped where because of an obstruction he could see only 240 feet of the track, when by going forward to within five feet of the track he could have seen half a mile and would have observed the coming train.

The judgment is reversed with a procedendo.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Weightman v. Union Trust Company, Appellant.

      Bond — -Building contract — Scope of bond — Damages.
    Where an owner of land enters into an agreement in writing to erect certain buildings and make certain street improvements on the land, in consideration of a loan of money to be secured by a mortgage on the land, and the owner gives to the mortgagee a bond with a trust company as surety by which the latter agrees to hold the mortgagee harmless on account of any deficiency in his mortgage security resulting from failure by the owner to complete the contract, the trust company cannot be held liable in damages on its bond, by reason of the failure of the owner to complete certain street improvements, where there is no evidence to show that the mortgagee suffered any actual loss or damage from the failure of the owner to complete the work. The mere fact that the mortgagee bought in the property at sheriff’s sale for a sum less than the amount of the mortgage debt is not conclusive evidence of loss.
    In the'above case the distinction between the two agreements is simply that between an affirmative covenant for a specific thing, and one of indemnity against damage by reason of the nonperformance of the thing specified. The object of both agreements may have been substantially the same, in that both were intended to save the plaintiff from loss, but the legal effect of the two agreements is essentially different.
    Argued Jan. 18, 1904.
    Appeal, No. 107, Jan. T., 1903, by-defendant, from order of C. P. No. 4, Pbila. Co., March T., 1902, No. 3441, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Weight-man v. Union Trust Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat, Potter and Thompson, JJ;
    Reversed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Thomas Raeburn While and Page Page, for appellants.—
    .The- defendant’s contract was an agreement to indemnify the plaintiff, as mortgagee, for loss occasioned by any deficiency in his security, if caused by Steelman’s failure in certain particulars to complete his contract: Wheeler v. Equitable Trust Co., 206 Pa. 428.
    The plaintiff’s statement is defective in that it does not aver that the security was deficient in value, and that such deficiency Avas caused by Steelman’s default: Wheeler v. Equitable Trust Co., 206 Pa. 428.

      J. Q. Stillwell, for appellee.
    The defendant, having received plaintiff’s money to be used in making the street improArements, is liable for the value of those not made.
    March 21, 1904:
   Opinion by

Mr. Justice Potter,

Our consideration of the affidavit of defense filed in this case has led us to a different conclusion from that reached by the learned judge of the court of common pleas.

The plaintiff, William Weightman, agreed to lend a large sum of money to one Walter E. Steelman, and to take as security a mortgage upon certain lots of ground, upon Avhich Steelman agreed to erect certain buildings and to make certain street improvements. For his further protection, Weightman procured a bond from the defendant, the Union Trust Company, by which it agreed to hold him harmless against loss on account of any deficiency in his mortgage security resulting from failure by Steelman to complete his contract in certain particulars. The condition of the bond is expressed as folIoavs: “If the said, the Union Trust Company, its successors or assigns, shall well and sufficiently save, defend, keep harmless and indemnify the said William Weightman, his heirs, executors, administrators and assigns (being the holder of said mortgage for $172,800) of and from all loss, costs, damages and expenses occasioned by said failure or omissions, on the part of the said Walter E. Steelman, or his heirs, executors, administrators or assigns, to keep, observe and perform anyone or more of the said covenants, promises and agreements contained in ‘ section second ’ ‘ section fourth ’" and ‘ section seventh ’ of the said agreement, or either or any thereof, then this obligation to be void.”

It is alleged that Steelman failed to do certain street paving, and did not construct a sewer, as required by the provisions of section second of the agreement between himself and the plaintiff.

It is very clear, however, that the undertaking of the defendant, as shown by the wording of the bond, was not that it would, do the particular things in question which Steelman had bound himself to do. The obligation of the defendant is limited to an agreement to save the plaintiff harmless from all loss, costs, damages and expenses occasioned by the failure of Steelman to carry out his contract. Steelman did bind himself by an affirmative covenant to do certain specific things; that is, to build a number of houses and finish them completely, and provide sewerage and street paving. The defendant, on the other hand, under the terms of its bond, did not agree to do those specific things, but it did bind itself to hold the plaintiff harmless from loss as a holder of a mortgage, if the specific things which Steelman agreed to do were not done, and loss or damage resulted to the plaintiff in consequence.

The distinction between the two agreements is simply that between an affirmative covenant for a specific thing, and one of indemnity against damage by reason of the nonperformance of the thing specified. The object of both agreements may have been substantially the same, in that both were intended to save the plaintiff from loss, but the legal effect of the two agreements is essentially different.

The defendant is bound to the extent and in the manner set forth in its obligation, and its liability is not to be extended beyond the express terms of its agreement. We cannot read into the terms of the contract anything more than an agreement to indemnify the plaintiff against any loss which may occur from the failure of Steelman to perform his contract. If the contract was one of indemnity, the well established doctrine is that actual loss must be shown to entitle the plaintiff to recover.

In the present case, as a prerequisite to recovery, the plaintiff must show loss to himself as mortgagee, by reason of the failure of Steelman to complete the building operation. If he shows no loss to himself as lender under the mortgage, there is no breach of the condition of the bond, and, consequently, no right to recover.

It is suggested in the argument that the mere fact that the plaintiff bought in the property at sheriff’s sale for a sum less than the amount of the mortgage debt, is conclusive evidence of loss for which he can recover to the extent of the value,of the work which Steelman failed to do under his contract. It is true that where land is purchased by the mortgagee for a sum less than the amount of the mortgage debt, it can only be deemed, as between the parties to the loan transaction, a satisfaction or payment of the debt pro tanto. But the liability in this case to pay the debt was no part of the burden assumed by the defendant company, but was that of Steelman. The defendant company cannot be held liable beyond the words of its contract; and by them we are brought back to the unmistakable fact that it was only bound to make good to the plaintiff any difference between the value of the mortgaged premises and the amount of the plaintiff’s debt and expenses, provided that difference was caused by Steelman’s default in completing his contract.

We do not find any averment in the statement of claim, by the plaintiff, that the premises were of less value than the amount of the mortgage debt with costs and expenses. Nor does he allege that the failure of Steelman to pave the street and build the sewer reduced the value of the premises below the amount of his mortgage with costs and expenses. He contents himself with an averment that as a result of the omissions by Steelman, the value of the property was less by the amount which the work would have cost, than it would have been had the work been all completed in accordance with the contract. This may be admitted, but it is not sufficient to justify a recovery. For notwithstanding that fact, the property may have been worth sufficient to pay and discharge the amount of the mortgage debt, with interest and costs.

Our conclusion is, that in order to recover in this case, actual loss within the terms of the bond must be shown, and further, it must appear that the loss was due to the failure to complete by Steelman, in accordance with the contract.

This view is in entire accord with the recent case of Wheeler v. Equitable Trust Co., 206 Pa. 428. Our Brother Dean there said: “ As preliminary to a recovery .... plaintiff must show, that she has not been indemnified and saved harmless on her collateral mortgage; that defendant has failed in that particular, then she can go further and show that the failure to complete the building caused or tended to cause, the loss.”

The assignments of error are sustained and the judgment is reversed, and the record is remitted with directions to discharge the rule.


author: Mr. Justice Dean,

text:
    Brown, Appellant, v. Radnor Township Electric Light Company.

      Corporations — Electric light company — Township—District.
    An electric light company may be incorporated for a township. The word “ district ” in the second section of the Act of May 8, 1889, P. L. 136, is not to be restricted merely to a division of a city or borough.

      Corporations — Electric light companies — Power of eminent domain.

    Under the Act of May 8, 1889, P. L. 136, an electric light company has, from the express terms of the act, a limited power of eminent domain, and under such power may enter upon the bed of a turnpike road, and erect its poles and string its wires, notwithstanding the objection of abutting owners who own the fee in the bed of the road.
    Mesteezat, J., dissents.
    Argued Feb. 10, 1904.
    Appeal, No. 257, Jan. T., 1903, by plaintiffs, from decree of C. P. Delaware Co., March T., 1903, No. 233, dismissing bill in equity in case of Martha Morris Brown and Mary J. B. Chew v. Radnor Township Electric Light Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill set forth that the plaintiffs are the owners of a tract of about 500 acres of land situate in the township of Radnor, Delaware county, on both sides of the Philadelphia and Lancaster turnpike road extending for about 6,000 feet along the same and that they own the fee in the road.
    That the defendant is a corporation chartered under the electric light act, on April 13, 1903, and is about to erect poles and wires along the turnpike road in front of and upon the lands of the plaintiffs without legal right and without having obtained their permission.
    The plaintiffs submitted to the court that there was no warrant in law for the creation of an electric light company for the township of Radnor, and that the defendant had no lawful franchise authorizing it to erect its poles upon their property; that it was not vested with the right of eminent domain, and contended that the erection of the poles and wires would constitute a trespass upon their lands and their rights in the turnpike road.
    The bill prayed for an injunction and other relief.
    The answer denied the ownership of the plaintiffs and particularly their ownership of the land within the lines of the Philadelphia and Lancaster turnpike road. It set up that the defendant had erected its poles and wires, prior to the filing of the plaintiffs’ bill and had a legal right to so erect them without permission from the plaintiffs and averred that it had filed a bond to the plaintiffs in the sum of $4,000 to secure them for any damage which might be done do them by the erection of the poles and wires.
    The court entered a decree dismissing the bill.

      Errors assigned were (4, 5) in refusing plaintiff’s fourth and fifth conclusions of law quoted in the opinion of the Supreme Court, and (6) in dismissing the bill.

      William I Schaffer, for appellants.
    An electric light company has not the power of eminent domain : Penna. R. R. Co. v. Canal Comrs., 21 Pa. 9; Dempster v. United Traction Co., 205 Pa. 70.
    A corporation must have the right to take private property or it does not possess the power of eminent domain. It cannot enter upon a road in a township, without having the right to take private property, because the ownership of the abutter, in the land, subject to the public easement of passage, is private property: Hinnershitz v. United Traction Co., 206 Pa. 91; Penna. R. R. Co. v. Montgomery Co. Pass. Ry. Co., 167 Pa. 62; Dempster v. United Traction Co., 205 Pa. 70; Sterling’s Appeal, 111 Pa. 35; Fisher v. Coyle, 3 Watts, 407; Woods v. Greensboro Natural Gas Co., 204 Pa. 606; Phillips v. Dunkirk, etc., R. R. Co., 78 Pa. 177; Scranton Electric Light, etc., Co.’s App., 122 Pa. 154; Becker v. Lebanon, etc., St. Ry. Co., 188 Pa. 484; Becker v. Lebanon, etc., St. Ry. Co., 195 Pa. 502.
    An electric light company is not authorized to erect poles or wires upon a rural highway without the abutting owner’s consent or the acquisition of his title: Palmer v. Larchmont Electric Co., 6 N. Y. App. Div. 12 (39 N. Y. Supp. 522); Hogan v. Larchmont Electric Co., 6 N. Y. App. Div. 609 (39 N. Y. Supp. 1125).
    An electric light company cannot be incorporated for a township : Bly v. White Deer Mountain Water Co., 197 Pa. 80.

      John G. Johnson, with him W. Roger Minefield, V. Gilpin Rohinson and Charles JE. Morgan, for appellee.
    No decision of the courts can be found which says that the district named shall be less than a township, or that it shall be more than a township, or that a township may not be the territorial limit for the exercise of the corporate franchises.
    It has been the uniform practice of the department at Harrisburg to grant charters for water companies, electric light companies, etc., to cover a township or less, or a district other than a city or borough.
    The case of Bly v. White Deer Mt. Water Co., 197 Pa. 80, to which reference is made, in terms recognizes that a charter may be granted to a water company covering a township as a district.
    The appellee is authorized to enter upon a public highway in the township of Radnor and to erect poles and string wires thereon without the consent of the abutting property owners, upon giving such owners adequate security for payment of damages: Haverford Electric Light Co. v. Hart, 13 Pa. C. C. Rep. 369; Zanziger v. Wayne Electric Light Co., 6 Pa. Dist. Rep. 577; Freeland v. Penna. R. R. Co., 197 Pa. 529.
    Necessary powers may be regarded as conferred by the thirty-fourth section of the General Incorporation Act (Act of April 29, 1874, P. L. 73) as amended: Scranton Electric Light & Heat Co.’s App., 122 Pa. 154.
    Electric light poles and wires along a public highway, should not be regarded as an additional servitude : Palmer v. Larchmont Electric Co., 158 N. Y. 231 (52 N. E. Repr. 1092).
    March 21, 1904:
   Opinion by

Mr. Justice Dean,

The plaintiffs are owners of a tract of land containing about 500 acres in Radnor township, Delaware county, through which runs the Philadelphia and Lancaster Turnpike Road. The tract lies on both sides of the turnpike road for about one mile. The Radnor Township Electric Light Company was incorporated April 13, 1903, under authority of the General Act of April 29, 1874 and the act of May 8,1889. The general act provides that corporations for profit of the second class may be organized for “ the manufacture and supply of gas or the supply of light, heat and power by means of electricity or the supply of light, heat or power to the public by any other means.”

This gives full power of corporate organization to manufacture for and to supply the product to the public. But there is still wanting by express language a location wherein the power of the corporation may be exercised. That, the second section of the act of May 8, 1889, undertakes to point out in these words:

“ Every such corporation shall have the authority to supply light, heat and power or any one of them, by electricity, to the public in the borough, town, city or district where it may be located, and to such persons, partnerships and corporations, residing therein or adjacent thereto, as may desire the same, at such prices as may be agreed upon, and the power also, to make, erect and maintain the necessary buildings, macbinery and apparatus for supplying such light, heat and power to any one of them, and to distribute the same, with the right to enter upon any public street, lane, alley or highway for such purpose, to alter, inspect and repair its system of distribution: Provided, that no company which may be incorporated under the provisions of this act, shall enter upon any street in any city or borough of this commonwealth until after ,the consent to such entry, of the councils of the city or borough in which such street may be located, shall have been obtained.”

Tn the case before us the Electric Light Company claims the right to erect its poles and string its wires at the side of the turnpike road where that road extends through the lands of appellants and to that end tendered bond to them conditioned for payment of all damages; this bond was refused and thereupon the court approved it; appellants then filed this bill for an injunction to restrain the light company from proceeding with the work. On hearing the court below refused the injunction and dismissed the bill; thereupon the landowners brought this appeal.

The appellants prefer seven assignments of error to the legal conclusions of the court, but they are all grouped around or are embodied in the fourth and fifth as follows :

“ 4. The court erred in refusing to find as a conclusion of law that the defendant is not by its charter, letters patent and franchise invested with the power of eminent domain and is without power or authority to enter upon the highway known as the Philadelphia and Lancaster Turnpike Road and upon the lands of the plaintiffs as requested in their second request for findings of law.
5. The court erred in refusing to find as a conclusion of law that the defendant is not authorized by law to exercise its franchise in the township of Radnor and that the grant of letters patent to it authorizing it to exercise its franchise in the said township of Radnor was contrary to law as requested in the plaintiff’s third request for findings of law.”

It is argued by appellants that under the legislation quoted there is no power of eminent domain conferred on this corporation, that the land is as fully theirs now as it ever was ; that the turnpike company has a mere easement upon the surface which it holds subject to the fee in the owner and that any attempt of any corporation in the absence of express grant, to appropriate any part of the land to any other purpose is a plain violation of the owner’s property right. To sustain this argument Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; Dempster v. United Traction Co., 205 Pa. 70, and others of our own cases are cited. We concede that inferentially under the legislation on which those cases are founded, or rather in the absence of legislation giving a right of eminent domain to the corporation, the argument here is sound, on the assumption that the acts of assembly are the same. But the legislation here is essentially different. The express grant by the statute is to a corporation to supply light, heat and power by electricity to the public in the borough, town, city or district where it may be located and to such persons, partnerships and corporations residing therein or adjacent thereto as may desire the same. Then, by its charter Radnor township, Delaware county, is pointed out as its place of business or operation, with a principal office at Harrisburg. The public of Radnor township do desire the same, for it may be fairly assumed that the electric company would not invest its capital and make its improvements for those who did not want and would not use its product. The power to create a corporation within the terms of the act is unlimited ; it is restricted only by its purpose and it must designate the locality of its operations. Much significance in the argument is placed on the word “ district ” in the act as a word used in a restrictive sense. To give the word its common meaning it would unquestionably embrace a township as well as many other subdivisions of territory, although in its application it would in many cases include less territory than a township, such as an election district or a school district, but if no subdivision of the township be indicated it would point to a township as the district meant.

The act names four divisions or descriptions of territory where the corporation may locate its works: first come the three, borough, town, city; but there is still one other kind of territory where the necessity for such a plant is manifest, a necessity just as great as in the first three; the word township would include it, but in many cases might include much more than desirable for the purpose of electric lighting or power, so to make the description all embracing as to territory, the word district is added which may include a township or less than a township. Therefore, that its unlimited corporate power to manufacture or produce shall not be excluded from any territory of the state where it may be desired by the inhabitants or it may be advantageous to the corporation to locate its works, a descriptive word is used which is unlimited in its application as to territory except by the limitation placed upon it by the statute and charter. To narrow the meaning of the word district so as to include only subdivisions of boroughs and cities is a strained interpretation. If such had been the intention of the legislature, it would have been wholly unnecessary to name any division other than boroughs or cities; but there are towns which are neither cities nor boroughs, and. districts both townships and less than townships. The act had accomplished its purpose in its descriptive words by covering all of them.

It is argued that the right of eminent domain is nowhere given in this act and that if conferred it must be by construction, which is in direct opposition to the authorities both in this country and in England. Our own leading case, Penna. R. R. Co. v. Canal Commissioners, 21 Pa. 9, which is only in line with all the authorities on the subject holds that, “ Corporate powers can never be created by implication nor extended by construction.” As we have noticed, the corporate power to make or produce the light in the district specified by the statute and its certificate is unlimited ; it necessarily follows that this power to manufacture was given for purposes of distribution in the district where the corporate power was to be exercised; to exercise this power, a limited right of eminent domain at least, must be conferred, so these words follow:

“ Every such corporation shall have the authority to supply light, heat and power,” etc.,' “ and the power, also, to make, erect and maintain the necessary buildings, machinery and apparatus for supplying such light, heat and power, or any of them, and to distribute the same, with the right to enter upon any public street, lane, alley or highway for such purpose, to alter, inspect and repair its system of distribution.”

It is difficult to see how the power thus conferred can be said.to be by implication or construction; true,'no power to actually take and appropriate land is given, but an additional servitude is imposed upon the land, a servitude additional to that of the turnpike company and this by express positive grant. It cannot be doubted that the legislature had the power to do this; that it did not authorize the taking of all it might have authorized in no way defeats the grant of a merely additional servitude. That the words “ right of eminent domain ” are not used is wholly immaterial. The power is conferred to the extent specified in apt language.

We are of opinion that appellee had the power of eminent domain to the extent it attempted to exercise it and that the court below committed, no error in negativing appellants’ fourth and fifth conclusions of law. All the assignments of error are overruled and the decree is affirmed.

Mestrezat, J., dissents.


text:
    Radnor Township Electric Light Company’s Petition.

      Corporations — Electric light companies — Eminent domain — Turnpike road —Bond.'
    An electric light company has the power to occupy the roadbed of a turnpike with its poles and wires upon filing its bond to secure abutting owners from loss.
    Argued Feb. 10, 1904.
    Appeal, No. 143, Jan. T., 1903, by Martha Morris Brown and Mary J. B. Chew, from order of C. P. Del. Co., March T., 1903, No. 243, approving bond in the matter of the Petition of Radnor Township Electric Light Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Affirmed.
    Petition for approval of bond.
    See Brown v. Radnor Township Electric Light Co., supra.
    The opinion of the Supreme Court states the ease.

      Error assigned was the order approving the bond.

      William I Schaffer, for appellants.

      John Gr. Johnson, with him W. Roger Eronefield, V. Grilpin Robinson and Charles E. Morgan, for appellee.
    March 21, 1904:
   Opinion by

Mr. Justice Dean,

On April 25, 1903, the Radnor Township Electric Light Company presented its petition to the court below for the approval of a bond to Martha Morris Brown and Mary J. B. Chew, appellants, to secure them for any damages which might be made by the erection of poles and wires within the bed of the highway, which is a turnpike road, for about a mile along their property in Radnor township, fronting on the Philadelphia and Lancaster turnpike road, in the underlying fee of which they claimed to be the owners.

The respondents filed a demurrer and answer to this petition, raising the question of the power of the court to approve the bond and of the petitioner to locate its poles.

The court, after a full hearing, fixed the amount of the bond at $4,000. A bond in this sum was filed and approved by the court, whereupon this appeal was taken. No question is raised on the appeal as to the sufficiency of the bond. The single question is as to the power of the company to plant its poles and string its wires within the bed of the highway upon which the appellant’s property abuts.

We have said all that we deem necessary in opinion handed down herewith in case No. 257 between the same parties. The decree is affirmed.


text:
    Radnor Township Electric Light Company v. Brown, Appellant.
    Argued Feb. 10, 1904.
    Appeal, No. 256, Jan. T., 1903, by defendants, from decree of C. P. Delaware Company, March T., 1903, No. 217, on bill in equity in case of Radnor Township Electric Light Company v. Martha Morris Brown and Mary J. B. Chew.
    Before Mitchell, C. J., Dean, Fell, Mestbezat and Thompson, JJ.
    Affirmed.
    March 21, 1904:
   Opinion by

Mr. Justice Dean,

This case raises the same questions of fact and law as those in the case between the same parties, No. 257, January term, 1903, in which opinion is handed down herewith.

In this case the defendants cut down the poles oh which the Electric Light Company had strung its wires. The court on bill filed by the company decreed that defendants be enjoined from interfering with .the poles and wires. .From that decree defendants bring this appeal. The decree of the court below is affirmed for the same reasons as given in No. 257 between the same parties.


author: Me. Justice Dean,

text:
    Smith, Appellant, v. Crum Lynne Iron and Steel Company.
    Corporation— Contract — Authority of superintendent — Compromise of claim.

    The superintendent of a steel company has no power to bind the corporation by a contract to pay to an injured employee what would practically be a pension to the employee during his life.
    In an action by an employee of a steel company against the company it appeared that the plaintiff had been injured while in the employ of the defendant. He claimed that in consideration of his agreeing not to sue the company for his injuries, the superintendent of the company had agreed to give him certain employment. In his statement he substantially averred that the superintendent had promised him work in such capacity as he had been working at the time of the injury, at which time he was working for $7.50 per week, although he had previously worked as a heater for a much larger sum; that defendant promised to pay him at the rate of $7.50 per week until he was able to go to heating again at full wages ; that until this time arrived, if it ever did arrive, this rate of pay was to continue; that whether he was fit for light employment, or for full work as a heater, was to be determined by a physician named ; that plaintiff offered and was willing to keep and perform his side of the contract, yet defendant broke its part of the contract and discharged plaintiff. Held, that the contract was too vague in its terms to be enforced.
    Argued Feb. 10, 1904.
    Appeal, No. 261, Jan. T., 1908, by plaintiff, from order of C. P. Delaware Co., Dec. T., 1902, No. 80, refusing to take off nonsuit in case of George W. Smith v. Crum Lynne Iron and Steel Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Affirmed.
    Assumpsit for breach of contract of employment. Before Savidge, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    A nonsuit was entered chiefly on the ground that the superintendent had no authority to make the contract alleged in plaintiff’s statement.

      Error assigned was the order of the court refusing to take off nonsuit.

      Albert Dutton MacDade and O. B. Dickinson-, for appellant.—
    Corporations are liable for the acts of their servants while engaged, in the business of their employment in the same manner and to the same extent as individuals are liable under like circumstances : Merchants’ Bank v. State Bank, 77 U. S. 604; McHose v. Earnshaw, 55 Fed. Repr. 584; Indianapolis Rolling Mill v. St. Louis, etc., R. R. Co., 120 U. S. 256 (7 Sup. Ct. Repr. 542); Turnpike Co. v. Ry. Co., 194 Pa. 144; Steamboat Co. v. McCutcheon, 13 Pa. 13; Dougherty v. Hunter, 54 Pa. 380; Culver v. Pocono Spring Water Ice Co., 206 Pa. 481; Bank v. Dandridge, 25 U. S. 64; R. R. Co. v. Howard, 74 U. S. 392; The Sappho, 94 Fed. Repr. 545; Patterson v. Robinson, 116 N. Y. 193 (22 N. E. Repr. 372); Campbell v. Bridge Co., 23 Pa. Superior Ct. 138; Boyd v. American Carbon Black Co., 182 Pa. 206; Bangor, etc., Ry. Co. v. Slate Co., 203 Pa. 6; R. R. Co. v. Staub, 7 Lea (Tenn.), 397; Penna. R. R. Co. v. Keokuk, etc., Bridge Co., 181 U. S. 371 (9 Sup. Ct. Rept. 770).

      Joseph H. Hinkson, with him Walter E. Rex, for appellee.—
    The superintendent was without authority to make the contract : Farmers’ Bank of Bucks Co. v. McKee, 2 Pa. 318; Pittsburg Melting Co. v. Reese, 118 Pa. 355; Dougherty v. Hunter, 54 Pa. 380; Worthington v. Ry. Co., 10 Pa. Superior Ct. 117; Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Bangor & Portland Ry. Co. v. American Bangor Slate Co., 203 Pa. 6; B. & O. Employees’ Relief Assn. v. Post, 122 Pa. 579; Allegheny County Workhouse v. Moore, 95 Pa. 408; Ins. Bank of Columbus v. Bank of U. S., 4 Clark, 125; Jackson v. Cartwright Lumber Co., 2 Pa. Dist. Rep. 680; Harvey v. Schuylkill Trust Co., 199 Pa. 421; Clarkson v. Keystone Oil Cloth Co., 8 Pa. Dist. Rep. 593; Curry v. Claysville Cemetery Assn., 5 Pa. Superior Ct. 289; Sitler v. Spring Garden Mut. Fire Ins. Co., 18 Pa. Superior Ct. 139; Erthal v. Glueck, 10 Pa. Superior Ct. 402; Johnston v. Elizabeth Bldg. & Loan Assn., 104 Pa. 394; Helping Hand Bldg. & Loan Assn. v. Buss & White, 13 Pa. Superior Ct. 343.
    March 21, 1904 :
   Opinion by

Me. Justice Dean,

The defendant is a manufacturing corporation managed by a president, board of directors and a superintendent. For some weeks prior to September 17, 1900, its rolling mill bad been closed for repairs ; the plaintiff had then, for a time, been employed about the mill in assisting to make the repairs ; he helped to do stone and brick work as well as other jobs about the mill to put it in running condition. For such work he received $7.50 per week. On the day mentioned, while assisting other workmen in removing a pile of iron bars the pile fell upon him and seriously injured his leg. His time due him up to the accident was one week and one day. The first day after the accident defendant sent him his week’s pay which he accepted without complaint; the next pay day defendant placed his name on the pay roll and again sent him his weekly wages, which he refused to accept; defendant continued each pay day thereafter to place plaintiff’s name on the weekly pay roll and to set aside for him his weekly wages, as though he were able to work and earning them ; this continued until October 20, 1900, a period of about four weeks. On the last named day, through his attorney he presented a claim for damages occasioned by- his injuries. The defendant then dropped his name from the pay roll and stopped setting aside money for him. The attorney for defendant, to whom this claim for damages had been referred, denied in writing any liability on the part of the company. While the plaintiff’s wife had been in communication with his attorney in reference to his claim, he himself denied that he had authorized her to do so. About this time, Hudson, the superintendent of defendant company, called on plaintiff, but nothing was said between them about money matters. On November 23, 1900, plaintiff in company with his wife and father-in-law called on the superintendent at his office and there had a conversation with him. Plaintiff asked him for the money that had been set aside and the superintendent replied, they could not pay him money to bring a lawsuit against the company; plaintiff said he did not intend to sue; the superintendent then said he would make him an allowance of $7.50 a week until he was able to do some light work and then he would put him back at his old job as a heater, which seemed to be satisfactory to plaintiff. The next day plaintiff’s wife went to the office and drew $30, all that then remained set aside on the books, and the next pay day drew the balance standing to his credit. On December 1,1900, plaintiff’s wife delivered to the superintendent -a letter from her husband, in which he stated he had no claim for damages against the company. The weekly allowance of §7.50 continued to be paid to plaintiff up until March 31,1901, when he stopped work without notice. He did not again tender his services. In the summer of 1901 the president of the company ordered the allowance stopped, but the superintendent continued it, he says, because plaintiff had a large family and ivas still suffering from the injury to his leg; in September, 1902, two years after the accident, the president again ordered the allowance stopped. In October following, an agent of defendant called upon plaintiff and asked him to return to work but he did not do so, refused to do any work about the mill and immediately after brought this suit.

This is a statement of what was actually done by the parties from the time plaintiff was injured up until he ceased work for defendant. Leaving out of view the contradictions in the evidence of both of them, we must resort to the pleadings to at least ascertain with approximate certainty, the averments of both. Plaintiff avers that Hudson, the authorized agent of defendant, undertook and promised him work in such capacity as he had been working at the time of the injury, at which time he was working for |7.50 per week; that defendant promised to pay him at that rate until lie was able to go to heating again at full wages ; that until this time arrived if it ever did arrive, this rate of pay was to continue ; that whether he was fit for light employment or for full work as a heater was to be determined by Dr. Bryan, a physician; that plaintiff offered and was willing to keep and perform his side of the contract, yet on November I, 1902, defendant broke its part of the contract and discharged plaintiff.

Defendant denies any promise or agreement on its part in the nature of a contract or a promise to pay for such services as plaintiff rendered; avers that such payments as were made to him were gratuitous; denies any authority on the part of its agent or superintendent to contract with plaintiff for payment of what would be equivalent to a life pension, and further avers, that even if made such contract is altogether too indefinite in its terms for enforcement.

Taking all the evidence before us bearing on the issue and giving to it all the significance that can property be claimed for it, there is not sufficient to sustain a verdict for plaintiff.

1. There is no authority conferred by the corporation on Hudson, its superintendent, to make such a contract for and on behalf of his principal. What unauthorized promises the agent chose to make, if he did make them as alleged, and they could be enforced at all, they must be enforced against him. It is clear that the alleged promise was practically to pension the plaintiff during his life. From the very nature and terms of such a contract it was beyond the scope of the superintendent’s general authority; we will not say the corporation might not have delegated such authority to its agent, but if delegated, it must expressly appear from the minutes or other records of the company; ordinarily, it will not be inferred from the nature of his usual duties, nor will ratification by any one officer be sufficient to supplant corporate action in such an exceptional transaction. There was not shown here, either precedent authority or subsequent ratification: B. & O. Employee’s Relief Association v. Post, 122 Pa. 579; Twelfth Street Market Co. v. Jackson, 102 Pa. 269.

2. But assuming that the agent did not act without authority, how shall the contract be enforced? Look at its terms. No definite period for its termination is fixed; plaintiff will not fix positively the date of its ending, but the inference is, it was to end only with his life ; that is, whether disabled by old age, or decrepitude from any cause, the weekly payments were to be kept up. Such terms are so harsh as to be unreasonable. But what is the rate of pay ? Part of the time, according to his statement lie would earn nothing, part of the time he would earn $7.50 per week, part of the time $25.00 per week, — are the averages to be taken as tbe measure of his weekly' payments or is he to be paid according to his earning-power when at work and $7.50 only when idle ? We think there is wanting sufficient precision in the contract to render it capable of inforcement, just as in Ogden v. Philadalphia, etc., Traction Co., 202 Pa. 480.

But outside of the legal objections, the facts as stated by the witnesses on both sides, show that plaintiff, through no negli-gence or fault of defendant, was injured while in their employ ; both thought at the time the injury was not serious and that he would soon recover; defendant sympathized with him in his misfortune and aided him by continuing his weekly wages which it thought would be only a temporary necessity; the payments were continued for two years when, whether because plaintiff refused to continue longer in their employ or because he was discharged, they ceased. In the meantime defendant had paid plaintiff over $900 for two years’ service during a large part of which time he was wholly incapacitated. It seems to us that the only plausible reconciliation of the testimony is on the theoiy, that both parties assumed, that the defendant was not legally liable, that plaintiff had met with a misfortune which would temporarily incapacitate him in earning wages and that the wants of himself and family prompted defendant to liberality in making good a loss which it was not legally bound to do.

All the assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Mestbezat,

text:
    New York and Scranton Construction Company to use v. Winton, Appellant.

      Mortgage — Contract—Payment—Evidence.
    On. a scire facias sur mortgage it appeared that the mortgagor, the owner of coal land, entered into an agreement in writing to borrow from the mortgagee a large sum of money to enable the mortgagor to develop his coal and prepare it for delivery to the mortgagee who was to purchase it. It was provided in the agreement that the money so loaned should be repaid “until the whole and entire amount of the money so as aforesaid loaned together with the interest thereon shall have been fully paid.” The bond and mortgage also provided that the money should be repaid. The bond provided that the money was “ to be repaid at the rate of fifteen cents for each ton of coal delivered to the obligee, its successors or assigns at and when the payments are agreed to be made for coal delivered until the whole sum advanced shall be fully repaid to the obligee by the obligor together with interest as aforesaid.” Before the loan was repaid from the fifteen cents for each ton of coal delivered to the mortgagee, the merchantable coal became exhausted. Held,, that the mortgagee was entitled to have the balance of the loan paid in cash.

      Corporations — Foreign corporations — Doing business — Mortgage.
    A corporation chartered in another state for the purpose of constructing railroads and of mining and transporting coal and other minerals may' maintain a scire facias sur mortgage in this state, although the land covered by the mortgage was coal land, and the money was a loan to the mortgagor for the purpose of developing the coal and selling it to the mortgagee. In such a ease the foreign corporation is not doing business within the meaning of the foreign corporations registration act of April 22, 1874.
    Argued Feb. 23, 1904.
    Appeal, No. 22, Jan. T., 1904, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1896, No. 48, on verdict for plaintiff in case of New York and Scranton Construction Company to use of the Continental Trust Company of the City of New York v. B. M. Winton, Administrator of W. W. Winton, Deceased.
    Before Dean, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Edwards, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $98,603.67. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      I fiT. Burns and M. J. Martin, for appellant,
    cited on the question of the right of the foreign corporation to maintain the action: Delaware River Quarry, etc., Co. v. Bethlehem, etc., R. R. Co., 204 Pa. 22; Thorne v. Ins. Co., 80 Pa. 15; Holt v. Green, 73 Pa. 198; Allegheny v. Millville, etc., Ry. Co., 159 Pa. 411; United States Bank v. Owens, 27 U. S. 527.

      Everett Warren, of Willard, Warren <f* Knapp, for appellee,
    cited as to the right of plaintiff to maintain the suit: Van Steuben v. Central R. R. Co., 178 Pa. 367; Augusta Bank v. Earle, 38 U. S. 519; Paul v. Virginia, 75 U. S. 168; Henrietta Mining, etc., Co. v. Johnson, 173 U. S. 221 (19 Sup. Ct. Repr. 402); Delaware River Quarry, etc., Co. v. Bethlehem, etc., R. R. Co., 204 Pa. 22; Fowler v. Scully, 72 Pa. 456; Nat. Bank v. Matthews, 98 U. S. 621; Nat. Bank v. Whitney, 103 U. S. 99; Jacksonville, etc., Ry. & Nav. Co. v. Hooper, 160 U. S. 514 (16 Sup. Ct. Repr. 379); Lynderborough Glass Co. v. Mass. Glass Co., 111 Mass. 315; Moss v. Averell, 10 N. Y. 449; Brown v. Winnisimmet Co., 93 Mass. 326; Bosshardt & Wilson Co. v. Crescent Oil Co., 171 Pa. 109; Wright v. Pipe Line Co., 101 Pa. 204.

      March 21, 1904 :
   Opinion by

Mr. Justice Mestbezat,

The defendant’s intestate executed and delivered to the New York & Scranton Construction Company, a New York corporation, a mortgage dated October 3, 1882, on his undivided one half interest in fourteen hundred acres of land in Lackawanna county, this state. The mortgage was given to secure a bond of even date between the same parties conditioned for the payment of $75,000 or so much thereof as should be advanced to the mortgagor for the purpose of opening and developing the coal in the mortgaged premises, which was to be mined by the mortgagor and delivered by him to the mortgagee on the terms and conditions set forth in two certain agreements between the parties. The money to be advanced was, as set forth in the bond, “ to be repaid at the rate of fifteen cents for each ton of coal delivered to the obligee, its successors or assigns, at and when the payments are agreed to be made for coal delivered until the whole sum advanced shall be fully repaid to the obligee by the obligor, together with interest as aforesaid.” The bond and mortgage contained the usual default clause by which the whole principal sum became due and payable on failure for sixty days to pay any instalment of principal or interest after the same became due. Prior to the date of the mortgage, the owners of the land had made an amicable partition of it “ for the purpose of working said coal only.” The last shipment of coal was made from the colliery early in January, 1894, when all the merchantable coal in Win-ton’s half of the premises was exhausted.

This action was a scire facias on the mortgage issued September 23, 1896, by the mortgagee to the use of the Continental Trust Company, also a foreign corporation. On the trial of the cause it appeared that the money had been advanced to the mortgagor at various times from February, 1882, to November, 1885, which with interest, less the payments made by the mortgagor, aggregated the sum of $98,603.67, for which the learned trial judge directed the jury to return a verdict in favor of the plaintiff. A judgment was entered on the verdict and the defendant has appealed.

The assignments of error are numerous, but those not included in the three propositions on which the appellant has submitted the case may be considered as abandoned. The appellant contends (a) that under the agreement between the parties the mortgage was not to be paid in full in cash, but to be considered as paid in full when the mortgagee had received fifteen cents per ton on each ton of coal mined from the land; (b) that the plaintiff did not have such legal and constitutional right to do business in this state as would allow it to recover in this suit; and (o') that the court erred in giving binding instructions for the plaintiff.

We do not agree with the appellant that by the terms of the agreement the mortgage was to be considered paid when the mortgagee had received fifteen cents for each ton of coal mined from the land. The money was advanced in accordance with the terms of the agreement to enable the mortgagor to develop his coal and prepare it for delivery to the mortgagee, the purchaser. The original agreement provided “ that the said party of the second part (mortgagee) shall loan to the said parties of the first part the sum of one hundred and fifty thousand dollars,” and “ that the amount of money so as aforesaid loaned by the party of the second part to said parties of the first part shall be repaid to the said party of the second part with lawful interest thereon .... until the whole and entire amount of the money so as aforesaid loaned together with the interest thereon shall have been fully paid.” The bond and mortgage also provided that the whole sum advanced should be fully repaid, and that the mortgagor “ shall until the payment of the whole principal and interest moneys secured by these presents ” keep the buildings on the premises insured “ as a further and collateral security for the payment of said moneys.” It is clear, therefore, that the sum advanced to, and received by, the mortgagor, was a loan and was to be repaid in full to the creditor. The covenants of the mortgagor required him to mine and deliver the coal at his own expense. The breaker and other improvements at the colliery were to be constructed and paid for by him. The company had nothing to do with furnishing funds for these purposes. The agreement provided that the coal should be delivered to the company, and that it should receive the coal on board its cars at the colliery. There is, therefore, no reason why the company should not be reimbursed in full for the money it advanced to the mortgagor to make the improvements. If, as suggested by appellant’s counsel, the improvements were for the mutual benefit of both parties, the mortgagee pays for its share of the benefits in the price it pays for the coal. As the agreement required the mortgagor to erect the breaker at his own expense, it must be assumed that its cost with that of the other improvements was taken into account when the parties fixed the consideration the mortgagor was to receive for the coal. In this way the mortgagee makes full compensation for any benefits it derives from the improvements at the colliery.

If we understand the appellant’s second position, he denies the right of the construction company, being a foreign corporation, to foreclose the mortgage because his indebtedness to the company was incurred while it was engaged “ in the business of a common carrier and at the same time in the mining and transportation of coal in the state of Pennsylvania in violation of a statute and of the constitution.” In this contention the appellant overlooks the fact, essential to sustain his position that the mortgage was not given to secure an indebtedness arising out of a transaction made unlawful by the appellee engaging in business contrary to a statute or to the state constitution. Concede that the appellee as a foreign corporation had no right to engage in the business set forth in its contract with the appellant, yet the fact is no defense to a recovery on the mortgage. This is not an action by the company to enforce the stipulations of the agreement between the parties nor to recover money due the company by the terms of the agreement. It is true that the agreement provides that the loan should be made to the appellant and for the specific purpose of improving the mining plant, but this suit was not instituted to enforce those covenants of the contract. This is a proceeding on a mortgage to compel the payment of a loan made by the company to Winton. It does not involve the validity of the contract between the parties relative to the coal operations or the right of the construction company to carry on the business of mining and transporting coal within this state. The suit is simply a scire facias on a mortgage given to secure a loan, and, therefore, it is no defense to the action that the plaintiff is a foreign corporation: Leasure v. Union Mutual Life Insurance Co., 91 Pa. 491. The construction company was not chartered to engage in the business of loaning money, and when it made this loan, it was not “ doing business ” in contravention of the Act of April 22, 1874, P. L. 108. It was incorporated in the state of New Jersey for the purpose of constructing railroads and of mining and transporting coal and other minerals, etc. Had it employed its capital in carrying on this or any other business in this state, it would have brought itself within the prohibition of the statute. But the money sought to be recovered here was not invested or employed in this state in any business enterprise by the corporation. It was loaned to the appellant’s decedent, a citizen of Pennsylvania, who employed it in his business for his own use and benefit. While a corporation can have no legal existence beyond the sovereignty creating it, yet our state has recognized the comity existing among the several states of the Union which permits a corporation of one state to sue in a foreign jurisdiction. The exercise of such power by a foreign corporation is not regarded as prejudicial to the interests of the state nor repugnant to its policy. What our constitution and the statute of 1874 prohibit is doing business in the state by a foreign corporation without having first complied with their provisions. We have already pointed out that the indebtedness attempted to be recovered here does not grow out of any business operations conducted or carried on by the appellee in this state.

We think the trial judge committed no error in giving binding instructions in favor of the appellee. Our view of the case eliminates the questions which the learned counsel for the appellant suggests should have been submitted for the determination of the jury. The coal in the land pledged in the mortgage was exhausted in 1894, and the last payment made by the appellant was in December of that year, nearly two years prior to the bringing of this suit. This default having been made, the balance of the principal with its interest became due and payable and authorized the issuing of the scire facias on the mortgage. At the trial the parties agreed on the amount of debt and interest yet unpaid on the plaintiff’s claim, and the appellant’s liability on the mortgage appearing from the uncontroverted . facts in the case, the learned judge was justified in directing a verdict for the plaintiff.

The judgment is affirmed.


author: Mr. Justice Potteb,

text:
    Fowler, Appellant, v. Meadow Brook Water Company.

      Contract — Rescission—Intoxication—Restoration of status quo.

    A contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency be produced by intoxication, is voidable, and may be avoided by himself, though the intoxication was voluntary, and not procured by the circumvention of the other party.
    Where a person seeks to repudiate a contract upon the ground that when he made it he was so completely intoxicated as not to know or understand what he was doing, he must show not only that he was incapacitated by intoxication, but also that he rescinded the agreement within a reasonable time after his recovery, and placed the other party in statu quo, by returning the consideration received. If the consideration was a release in full from the obligations of a prior contract under which he was liable to incur serious losses, he must surrender such release.
    Argued Feb. 23, 1904.
    Appeal, No. 27, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1899, No. 459, on verdict for defendant in case of JohnF. Fowler v. Meadow Brook Water Company.
    Before Dean, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover the value of tools alleged to have been converted to defendant’s use. Before Carpenter, J.
    At the trial it appeared that John F. Fowler, plaintiff, and John T. Williams as partners had a contract with the defendant, the Meadow Brook Water Company, to construct a tunnel. In this work they used a large quantity of tools. Williams, desiring to be released from the contract, entered into an agreement with the defendant by which he turned over to the defendant the tools in consideration of release from the contract and bond. Williams took the paper to Fowler who signed it. Fowler claimed that his signature was procured when he was in the state of intoxication. There was no evidence, however, of fraud or duress. It did not appear that Fowler made any prompt effort to rescind the agreement, or to surrender the release, or carry out the original contract. Plaintiff presented these points :
    ' 1. That one who was so far intoxicated that he did not know what he was doing at the time when he signed a paper, and was not able to comprehend the nature and effect thereof, the fact that he did sign such a paper while in such a condition does not make it binding upon him; and if the jury find in this case that the time Mr. Fowler signed the agreement of December 1, 1898, he was intoxicated to a degree that he did not know what he was doing, and was not able to comprehend the nature and effect of the paper he signed, if the jury find he did not sign it, then such a paper will not be a bar to his recovery in this case. Answer: This point is refused. [1]
    2. That even if the jury should find that Williams & Fowler would have lost money by the continuance of this contract, and also that the Meadow Brook Water Company lost money by reason of having to get some one else to complete it, yet if the jury should find that Mr. Fowler was the one half owner of the goods in suit; that the defendant company converted these goods to its own use ; that the paper of December 1,1898, is not a valid paper so far as Fowler is concerned, then Fowler is entitled to a verdict for the fair market value of his interest in the property converted by the defendant, with interest from the date of the conversion. Answer : This is affirmed with the suggestion, however, that whether the paper of December 1, 1898, was a valid paper or not, must be understood to mean whether it was fraudulent and oppressive, and not to depend upon the intoxication of the plaintiff. [2]
    The court charged in part as follows:
    [We thought and still think that the plaintiff was entitled to have this evidence submitted to you in view of the fact that he had testified that he did not sign the paper of December 1, 1898, of which there is positive evidence, from which, if you believe it, you can find that he did sign it. For that purpose and to that extent the evidence of the plaintiff’s intoxication is submitted to you. The effect of that, evidence upon the validity of the paper of December 1 is primarily for the court, and as we have already said, while the precise question is somewhat barren of authorities, we are of opinion, and say to you as a matter of law, that this paper executed as it was under the circumstances which have been detailed to you, is not nullified or made invalid by the intoxication of the plaintiff, even admitting for that purpose the most that could be found here by the evidence on that subject, unless you should find that fraud or undue influence was practiced upon him, or that the defendant knew, or by some tiling appearing in the transaction ought to have known of the plaintiff’s condition at the time, or unless the transaction was manifestly unfair and oppressive.] [5]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2, 5) above instructions, quoting them.

      A. A. Vosburg, with him Charles W. Dawson, for appellant.
    A contract made in such a state of intoxication as to deprive the party, of his discretion, and ordinary judgment, will be set aside in equity, although the other party had no agency in procuring the intoxication : French v. French, 8 Ohio, 214; Van Wyck v. Brasher, 81 N. Y. 260; Johnson v. Harmon, 94 U. S. 371.

      Everett Warren, of Willard, Warren Knapp, for appellee.
    —A party seeking to avoid the contract must rescind it: Carpenter v. Rodgers, 61 Mich. 384 (28 N. W. Repr. 156).
    He must rescind within a reasonable time: Cummings v. Henry, 10 Ind. 109.
    The burden of showing rescission is on the party setting up intoxication: Carpenter v. Rodgers, supra; Smith v. Williamson, 8 Utah, 219 (30 Pac. Repr. 753).
    March 21, 1904:
   Opinion by

Mr. Justice Potteb,

The plaintiff in this case sought to repudiate a contract, upon the ground that when he made it, he was so completely intoxicated as not to know or understand what he was doing.

Upon the trial the learned judge of the court of common pleas charged the jury that in order to avoid the contract, the plaintiff must prove not only the fact of intoxication, but in addition must show one of three things :

First, that the contract was procured by fraud or undue influence.

Second, that the defendant knew, or should have known by something appearing in the transaction, of the plaintiff’s condition at the time, or

Third, that the transaction was manifestly unfair or oppress sive.

We think this was going too far. In Bush v. Breinig, 113 Pa. 310 (p. 316), we said: “ The rule formerly was, that intoxication was no excuse, and created no privilege or plea in avoidance of a contract; but it is now settled according to the dictate of good sense and common justice, that a contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency be produced by intoxication, is voidable, and may be avoided by himself, though the intoxication was voluntary, and not procured by the circumvention of the other..party.”

In the present case the court was therefore in error in its instruction to the jury with regard to the effect of the intoxication of the plaintiff upon the validity of the contract. But in order to recover, it was incumbent upon the plaintiff to prove not only that he was incapacitated by intoxication, when the contract was made which he now seeks to repudiate, but he must go further and show that he rescinded the agreement within a reasonable time after his recovery. The rule with regard to rescission is thus stated in 21 Am. & Eng. Ency of Law, 84: “ Where a contract is sought to be rescinded by one of the parties thereto, he must place the other in statu quo. He will not be allowed to repudiate a contract and retain the benefit derived thereunder against equity and good conscience, but must return, or offer to return, such benefit.”

There is also a thorough discussion of the question by Judge Sharswood in Beetem v. Burkholder, 69 Pa. 249, which he begins by saying that, “ Whenever one of the parties to a contract has the right to rescind it, and elects to do so, before commencing his action to recover back the money which he has paid, he must give notice to the vendor and offer to return the thing sold.”

In the present case the consideration received by the plaintiff was a release in full for himself and his partner from the obligations of a prior contract under which he was liable to incur serious losses. We have examined the testimony carefully and have not found anything to indicate any offer by the plaintiff to restore the consideration which he had received for the contract which he now attempts to repudiate, or that he attempted or offered in any way to restore the status quo.

His own account of his action in this respect is given in his testimony concerning his interview with the president of the defendant company. The plaintiff says he went to Mr. Scranton’s office to ask if he might resumé work. In reply the plaintiff states, “ He asked me if I didn’t understand my situation. I said, ‘ What situation ? ’ He said, ‘ Don’t you know that we have took the contract away from you? ’ I said, ‘No, sir.’ ‘ Well,’ he said, ‘ it is so, and jrou cannot go on with it.’ ‘ Well,’ I said, ‘ I cannot leave my tools there for you.’ He said, ‘ I dare you to take them away.’ Them is all th.e words.” We cannot gather from this the expression of any desire or willingness to restore the defendant company to the position in which it was prior to the execution of the agreement by which it gave up its bond of indemnity and cancelled the original contract and released the plaintiff and his partner from all liability for the further prosecution of the-work as required by the former agreement. The plaintiff cannot be allowed to retain the benefits of the release from his former contract and at the same time recover for himself the value of his interest in the tools and machinery which he had transferred by means of the second agreement, to the defendant company, as part of the consideration for that release.

Acting upon the new agreement, which was made in perfect good faith, the defendant company upon their part annulled the former contract and released the plaintiff and his partner from all liability thereunder, and surrendered the bond of indemnity.

In order to place the defendant company in statu quo, it would have been necessary for the plaintiff, before beginning this action, not only to have shown a bona fide willingness to complete the original undertaking and carry out that contract in accordance with its terms and conditions, but it was necessary also to obtain the assent and agreement of his partner thereto; it would have been his duty also to have reinstated or restored the bond of indemnity given to the defendant, company to secure the faithful performance of the work.

As the testimony does not show that the plaintiff did any of these things, the assignments of error must be dismissed and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Hatfield v. Thomas Iron Company, Appellant.

      Evidence — Parol evidence — Contradiction of written instrument — Car shortage — Contract—Sale.
    In an action for coke sold and delivered, the defendant set up a counterclaim for damages for nondelivery. The contract was in the form of a sales memorandum, as follows : "We have sold you for your account of ourselves four to six cars daily ‘ Austen ’ furnace coke, from now until April 1, 1900. It is understood that this covers the entire output of furnace coke from these ' Austen ’ ovens. Price $3.20 per net ton, delivered at your furnaces as named. Contracts subject to strikes, accidents or other causes.” The defendant offered to show by parol certain negotia/tions prior to the date of the sales memorandum, by which a greater quantity of coke had been sold, and at less price than named in the contract. Plaintiff offered evidence which tended to show that the failure of deliveries of which defendant complained was due to a shortage of the only kind of cars which could be used to reach defendant’s plant. Held, (1) that parol evidence was inadmissible to contradict the plain terms of the written instrument; (2) that the words “ or other causes/’ related to shortage of cars, and that such shortage was a legal excuse for nondelivery.

      Practice — Pleadings—Assumpsit—Irregular practice.

    The record of an action of assumpsit which showed the filing of an answer, a replication, an amended answer, an amended replication and rejoinder, that the plaintiff’s cause of action was stated in the amended replication, and that no plea was filed, betrays a total disregard of the statute regulating the practice in assumpsit in this state.
    Argued March 7, 1904.
    Appeal, No. 154, Jan. T., 1903, by-defendant, from judgment of C. P. Northampton County, Dec. T., 1900, No. 68, on verdict for plaintiff in case of Roy A. Hatfield and Joseph Hillis, trading as Hatfield & Hillis, v. Thomas Iron Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Assumpsit for coke sold and delivered. Before Scott, J.'
    At the trial it appeared that the coke was sold and delivered under the following agreement in writing:
    “ Sale Memorandum.
    “ Order No. 1,791. Philadelphia, June 10,1899.
    “Thomas Iron Company,
    “Easton, Penna.
    “ Dear Sirs: — -We have sold you for your account of ourselves four to six cars daily ‘ Austen ’ furnace coke, from now until April 1, 1900. It is understood that this covers the entire output of furnace coke from these ‘ Austen ’ ovens.
    “ Price, $3.20 per net ton, delivered at your furnaces as named.
    “Terms, cash 15th of month, following shipment.
    “ Shipments as required to commence at once.
    “ Consign to Hokendauqua, Pa. via Catasauqua & Fogelsville R. R.
    “Very truly,
    “Hatfield & Hilles.
    “ Contracts subject to strikes, accidents or other causes.
    “ Send all bills and bills of lading to this office.
    “ Accepted:
    “Thomas Ikon Co.,
    “B. F. Fackenthal, Jr., Prest.”
    The defendant set up a counterclaim for damages suffered by reason of nondelivery of some of the output of the Austen coke ovens. In support of the counterclaim they offered evidence showing that shipments had been made of the Austen coke to Rainey & Company and the Ashland Coal & Coke Company. The court admitted under objection and exception evidence that at the time these deliveries were made, there was a shortage of the Baltimore & Ohio cars which were the only cars which could reach the plant of the defendant. [5]
    The defendant made various offers to prove negotiations prior to June 10, 1899, by which a greater quantity of coke had been sold, and at a less price than that named in the contract. The court sustained objections to these offers. [1-4]
    The court charged in part as follows :
    [And, in order, therefore, that we get to the first point in-the-discussion, it will be important to consider what the con-, tract was between these people which the defendant alleges to have been broken. It is contained in the paper, called a sales memorandum, which has been read in your presence, connected with three letters, which have been marked in the case as exhibits, and also brought to your attention by either one or both of the counsel, and I will not proceed to embarass your consideration of the case any further by reading what is contained in any of those papers, but I will content myself with stating the effect of them. These parties evidently intended to specify some definite amount or quantity of coke that should be furnished in the preliminary correspondence before it reached a point of conclusion, and it was stated at the indefinite figure o.f four to six cars daily. That was unsatisfactory to the defendant. The memoranda was returned with an explanation or with a suggestion that the defendant had purchased seven cars: to which the plaintiffs then returned an answer that the capacity of the cars had been changed, and they left the memoranda stand at from four to six cars, but they added to the provisions in, the original written agreement that it was “ understood that this covers the entire output of furnace coke from these Austen ovens.” And they thus reached a point, starting from a purpose to set some definite amount as contracted for, to a place where they settled upon the whole output of the furnace coke from these ovens, leaving the other description as an estimate simply of the amount of the output: Brawley v. U. S., 96 U. S. 168. So you may, therefore, take it from me that this contract between the parties was a contract by which the plaintiff undertook to furnish to the Thomas Iron Company from the date of it or from June 12, to which the evidence has been referred, from June 12, 1899, to April 1, 1900, the obligation being upon the part of the plaintiffs to furnish — I say — the Thomas Iron Company, the whole output of furnace coke from the Austen ovens.] [6]
    [It is claimed b}r the plaintiffs in this case that they are exempt — under the circumstances presented here by this proof, if you find it as they insist they have persuaded you, they are exempt under the clause “ or other causes,” to which the testimony has been referred, which relates to the shortage of cars and the embargo placed upon them with respect to the transportation of the supply furnished to the Ashland Coal and Coke Company and to Rainey & Company. Now, when an expression of that sort, a phrase of that kind is used in a general way, it is applicable to the same kind of an event or condition that is specifically expressed; and you may take it from me that when the result of strikes or accidents without the voluntary act of the plaintiffs in this case would have relieved from performance the car embargo or shortage was the w other cause” which is of the same kind and character, if it resulted without' the voluntary act of the plaintiffs and made performance as substantially impossible as the strike or accident would have made an impossibility of delivery under this contract; it would exempt them from the full performance of the obligation in this contract. And that is one of the conditions presented by this evidence which it will be necessary for you to consider upon the two items of proof relating to the shipments to the Ashland Coal Company and the W. T. Rainey Compan}'.] [7]
    [Now, there are two items in addition to those I have referred to upon the part of the plaintiffs and the defendant — with respect to these particular items in _ which it is alleged they have failed to comply with the contract by furnishing the whole output of furnace coke, there are two other items to which the defendant has called your attention. One of those items relates to the coke that was furnished to the Ash-land Coal & Coke Company in the two months of January and March, 1900 : 61 cars, amounting to 1,064 tons, is one of those items; and the other is the coke that was furnished to W. T. Rainey & Company, carried in 17 cars, amounting to 457 tons, in September, 1899. You will remember what I have said about the exemption of the plaintiffs from the obligation of this contract arising from what is expressed by the phrase “ other causes.” It is conceded upon the part’ of the plaintiffs that in point of fact the defendant did not receive this output from the Austen Manufacturing Company. It is conceded, also, that these two items were shipments of furnace coke which it is admitted the defendant would otherwise be entitled to have received. It is claimed by the plaintiffs that in respect to those cars that were furnished to the xlshland Coal and Coke Company, in Kentucky, that at the particular time that coke was ready for shipment, it was impossible to get it transported to the Thomas Iron Company by reason of the fact that there was a shortage of cars; they had to be shipped in cars that went west and not east; they could only use the cars of the Norfolk & Western and Chesapeake & Ohio, but they could not get the cars of the Baltimore & Ohio. That is to say, the testimony is intended to persuade you — and you must say what effect it has in that particular — that under the' methods by which the operations at these coke ovens were conducted, it was substantially impossible that that coke could have remained there upon the wharves where it.had been manufactured without being transported to some other plade, to open the ovens for further operations, so that the business might go on. And in respect to the Rainey & Company shipment, which was in September, that there was an embargo upon the cars, that they could not get the cars, there was a strike at the mines in September and there was a difficulty about getting cars sufficient to transport the product. And it is maintained by the plaintiffs that these were causes operating upon the performance of the contract so as to make performance substantially impossible and thus bring it within the reservation and exemption of “ other causes ” in the written contract in the same way that strikes or accidents would exempt if they were occurring. Now, the impossibility of performance in that way, if it arose, arose through the acts of the manufacturers of this- product at the Austen ovens and not of the plaintiffs; that is, the people at the Austen ovens were undertaking to ship this product, and it was their impossible performance that was the result of this embargo or shortage of cars, if it did in point of fact result. It was the plaintiffs’ contract that they should ship this whole output to the defendant, subject only to exemption of strikes, accidents, and other causes; and if you find, if you are satisfied that from the manner in which these coke ovens were operated, it was substantially impossible to retain that coke upon the wharves and not ship it away to make room for the future operations, although the act was the act of the manufacturers of the product, then it would be also equally an exemption of the plaintiffs, if it became impossible in consequence of those acts, to find shipment, if you are satisfied that it was in point of fact impossible of performance in that respect. Now these are questions upon which you must pass. If you find, in point of fact, that it was impossible, or practically impossible — which is all I am asked to say to you upon the part of the plaintiffs as constituting their exemption, if you find it was practically impossible to perform the contract in this way, it would be an exemption of the plaintiff from the obligation to pay for the breach of the contract in respect to failure to furnish the coke that went to the..Ashland Coal and..Coke Company, or to W. T. Rainey & Company, or either one of them, just as you may find the fact to be with respect to one and not the other, or as to both. But if you should find that it is thus not included within this class, if you should find that the evidence fails to satisfy you that by the operations as they were conducted it was practically impossible, and that the contract might reasonably have been fulfilled by these plaintiffs in the way of furnishing the whole of that output which the manufacturers sent to the Ashland Coal and Coke Company or to Rainey & Company, then the defendant would have the right to ask damages against the plaintiffs’ claim for the amount of the loss which he suffered in consequence of this breach in that particular.] [8]
    Verdict and judgment for plaintiff for $4,135.47. Defendant appealed.

      Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions ; (6-8) above instructions, quoting them.

      Wm. Eackenthall, for appellant.
    The parol evidence was improperly excluded: Holloway v. Frick, 149 Pa. 178; Robinson Machine Co. v. Hazel Kirk Gas Coal Co., 204 Pa. 177; Nye v. Pittsburg Co., 2 Pa. Superior Ct. 384; Holt v. Pie, 120 Pa. 425; Selig v. Rehfuss, 195 Pa. 200; Anderson v. National Surety Co., 196 Pa. 288.
    Impossibility of performing a contract arising after the making of it, although without any fault on the part of the covenantor, does not discharge him from his liability under it: Jacksonville, etc., Ry. & Nav. Co. v. Hooper, 160 U. S. 514 (16 Sup. Ct. Repr. 379); Hand v. Baynes, 4 Wharton, 204; Cope v. Dodd, 13 Pa. 33; Hoy v. Holt, 91 Pa. 88; Sandiman v. Breach, 7 Barnewall & Cresswell, 96; Chicago, etc., Ry. Co. v. Hoyt, 149 U. S. 1 (13 Sup. Ct. Repr. 779); Bucher v. Com., 103 Pa. 528.

      James Collins Jones, with him Kirkpatrick <f- Maxwell, for appellee.
    March 21, 1904:
   Opinion by

Mr. Justice Mestrezat,

A very careful examination of the questions raised in this voluminous record fails .to disclose to us wherein the appellant has convicted the trial judge of error. The case was most carefully tried. The charge was entirely adequate and the rulings on the admission of testimony, complained of in the assignments, are fully sustained by the reasons given by the trial judge.

The court below very properly held that the sales memorandum was the contract between the parties by which the plaintiffs agreed to sell and deliver the coke to the defendant company, and that the parol testimony offered by the defendant was not admissible to contradict the written agreement. The defendant did not propose to show a parol contemporaneous agreement inducing the execution of the written contract between the parties nor that the execution of the written agreement was procured by fraud, accident or mistake^ The offer was simpty to contradict the written agreement by showing by parol certain negotiations prior to June 10,1899, the date of the sales memorandum, by which a greater quantity of coke had been sold and at less price than that named in the contract. This was the effect of the testimony offered by the appellant and, being clearly incompetent, the learned trial judge properly excluded it. The contract between the parties was explicit as to the quantity of the coke sold and the price to be paid. The quantity was “ the entire output of furnace coke from these ‘Austen’ ovens,” and the “price, $8.20 per net ton, delivered at your furnaces as named.” The number of cai-s of coke mentioned in the contract was properly held to be an estimate of the probable output of the ovens and not a guaranty that the plaintiffs would furnish that many cars to the defendant company. This is made plain by the letters put in evidence by the defendant company, which conclusively show that the quantity sold was not any definite number of cars of coke, but the entire output of furnace coke from the Austen ovens.

The contract was made “subject to strikes, accidents or other causes.” Shipments of coke to the defendant company were made from the Austen ovens from the date of the contract in June, 1899, to April 1, 1900. It is conceded by the plaintiffs that there were shipped from these ovens in September, 1899, seventeen cars of furnace coke to W. T. Rainey & Company, and in January and March of 1900, sixty-one cars of furnace coke to the Ashland Coal & Coke Company, and it is therefore claimed by the defendant company that this constituted a breach of the contract by which the plaintiffs sold to it “ the entire output of furnace coke from these ‘ Austen ’ ovens.” In reply to this contention, the plaintiffs allege that there was a car shortage at the time of these shipments of coke and that they were prevented from shipping it to the defendant by reason of their inability to obtain cars for the purpose. It was claimed by the plaintiffs that in shipping the coke to the defendant company they were compelled to use cars of the Baltimore & Ohio Railroad Company that went west and could not use cars of other railroads that went east, that there was a shortage of Baltimore & Ohio cars going west, that to keep the Austen ovens in operation to supply coke to defendant in the future it was absolutely necessary to remove the coke from the wharves where it was manufactured, and that the coke was shipped over the railroads to the Rainey and Ashland companies for this reason and under these circumstances. It was contended by the plaintiffs that for these reasons it was impossible to ship coke to the defendant company at thisitime and that, therefore, they were relieved from shipping this coke to the defendant under the words “ other causes ” in the exemption clause of the contract. The learned trial judge submitted to the jury, with proper instructions, the questions of fact raised by this contention and, in sustaining the plaintiffs’ construction of the exemption clause, charged as follows: “ It is claimed by the plaintiffs in this case that they are exempt — ■ under the circumstances presented here by this proof, if you find it as they insist they have persuaded you, they are exempt under the clause ‘or other causes,’ to which the testimony has been referred, which relates to the shortage of cars and the embargo placed upon them with respect to the transportation of the supply furnished to the Ashland Coal &Coke Company and to Rainey & Company. Now, when an expression of that sort, a phrase of that kind is used in a general way, it is applicable to the same kind of an event or condition that is specifically expressed; and you may take it from me that when the result of strikes or accidents without the voluntary act of the plaintiffs in this case would have relieved from performance the car embargo or shortage was the ‘ other cause ’ which is of the same kind and character, if it resulted without the volun'tary act of the plaintiffs and made performance as substantially impossible as the strike or accident would have made an impossibility of delivery under this contract; it would exempt them from the full performance of the obligation in this contract.” He also charged in this connection: “ If the plaintiffs were able to make shipments and get them made reasonably practicable in any other way (than over the Baltimore & Ohio Railroad) and in any other cars (than those of the Baltimore & Ohio Company) and routed in any other direction, it was their duty under their contract to see that the Austen Manufacturing Company made the shipments in that way.”

It will thus be seen that the trial judge required the plaintiffs to show that they had fully complied with their contract to ship the defendant company the entire output of furnace coke of the Austen ovens, except in so far as they were relieved by the exemption clause of the agreement. The right of the parties to stipulate for exemption for performance of a part or all of the covenants of their agreement under certain conditions is and necessarily must be unquestioned. Here they have done so, and the exemption clause in this contract was, as we think, properly interpreted by the trial court. It was clearly not the intention of the parties to give such a restrictive meaning to the words “ other causes ” used in the contract, as would render them inapplicable where shipments of coke were prevented by the shortage of railroad cars. Both parties to the contract well understood, what is known generally and especially by those engaged in and connected with the coke business, that a car shortage might occur at any time and that it is as effective to prevent the delivery of coke as strikes or accidents. As well stated by one of the defendant’s witnesses, the failure to furnish cars to shippers or purchasers of coke is frequently a cause of war “ between the cokeman and the railroad company ” which, the witness might have added, has so far ended in the capitulation of the cokeman. Keeping these facts in view, it would be a very strained construction of the contract to hold that the parties did not intend that a car shortage should be included in the “other causes” which would relieve plaintiffs from the duty of delivering the whole product of the Austen ovens. In fact, it is not apparent to what other cause these words would apply. Certainly there could be none more effective to prevent the shipment of the coke. The necessity, therefore, for the plaintiffs protecting themselves by contract from a shortage of cars is as manifest as is the like necessity of protecting themselves from their inability to deliver the coke for the specific reasons of strikes or accidents. We are satisfied that the construction placed upon the agreement by the court below is the proper interpretation of the language employed in the instrument and that it carries out the intentions of the parties.

The disposition made by the learned trial judge of the other questions raised by the assignments is so clearly correct that they need not be discussed here.

There are unfortunately no assignments which will enable us to review the pleadings in this case. There is no precedent for them at common law, and they are in total disregard of the statute regulating the practice in this state. The action is assumpsit, and the act of 1887 required the plaintiffs to file “ a concise statement of the plaintiff’s demand ” and the defendant to enter the statutory plea. An issue would then have been formed and the case would have been ready for trial. •Here the record shows the filing of an answer, a replication, an amended answer, an amended replication and a rejoinder. The plaintiffs’ cause of action is Stated in the amended replication. No plea was filed. The pleadings cover eighty-three pages of the appellant’s paper-book. This system of pleading, which seems to prevail in the court below, presented no well defined issue for determination by a court and jur}^, and resulted, as might well be expected, in confusion and uncertainty as to the real issues involved in the controversy.

The judgment is affirmed.