text:
    Herron, Appellant, v. American Steel & Wire Company.

      Negligence — Master and servant — Assistance in 'performing work— Safe place to work — Assurance of employer.

    1. Where an employee asks his employer for three assistants to aid him in. doing a particular work, and such assistants are provided for the first day, but on the second day one of the assistants fails to report, and another man not being procurable in his place, the employee then adopts a suggestion of doing the work by mechanical device without a third assistant, and does so with full knowledge of the dangers and risks of the method adopted, he cannot complain that his employer was negligent in not providing him a third man.
    2. Where an employee of mature years and experience is instructed to look up some wire for a purpose intended, but no instructions are given him as to the kind of wire to be selected, nor as to the place where such wire might be found, and he selects certain wire and asks the opinion of his superintendent as to its strength for the use intended but also tests the wire himself and exercises his own judgment, and subsequently the employee is injured in using the wire, and it is not certain whether the wire broke, or pulled loose from defective splicing, the employee cannot recover from his employer for the injuries sustained.
    3. An assurance given by an employer or his representative to an employee of the good condition of an appliance will not be a bar to a defense upon the ground of the assumption of risk when it is shown that the risk was known and comprehended by the employee, who was a mature man experienced in the kind of work he was doing.

      Practice, C. P. — Motion for nonsuit — Evidence.
    4. Where a motion for a nonsuit is made after the plaintiff rests, and before the motion is disposed of the defendant announces that he will offer no evidence, and the plaintiff then, with the permission of the court, offers the testimony of another witness as in chief, and the court then rules on the motion and grants a nonsuit, the plaintiff has no reason to complain on the ground of abuse of discretion.
    Argued Oct. 24, 1910.
    Appeal, No. 96, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 45, refusing to take off nonsuit in case of Matthew Herron v. American Steel & Wire Co.

      January 3, 1911:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Cohen, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      F. C. McGirr, with him John Marrón, for appellant.—
    The case was for the jury: Knight v. Overman Wheel Co., 174 Mass. 455; Patterson v. R. R. Co., 76 Pa. 389; Wagner v. Jayne Chemical Co., 147 Pa. 475; Reese v. Clark, 198 Pa. 312.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him John G. Frazer, for appellee.
    There was no negligence: Lowcock v. Paper Co., 169 Mass. 313; Jenney Electric Light & Power Co. v. Murphy, 115 Ind. 566 (18 N. E. Repr. 30); King v. McClure Co., 222 Pa. 625.
    Plaintiff assumed the risk: Howery v. Ry. Co., 34 N. Y. Supp. 1089; Haas v. Balch, 56 Fed. Repr. 984; Cisney v. Sewer Pipe Co., 199 Pa. 519; Perschke v. Hencken, 44 N. Y. Supp. 265; Toomey v. Eureka Iron & Steel Works, 89 Mich. 249; Anderson v. Lumber Co., 47 Minn. 128 (49 N. W. Repr. 664); Hencke v. Ellis, 110 Wis. 532 (86 N. W. Repr. 171); Graham v. Coal & Coke Co., 38 W. Ya. 273 (18 S. E. Repr. 584); Webster Mfg. Co. v. Nisbett, 205 Ill. 273 (68 N. E. Repr. 936); Marsh v. Chickering, 101 N. Y. 396 (5 N. E. Repr. 56); Meador v. L. S. & M. S. Ry. Co., 138 Ind. 290 (37 N. E. Repr. 721).
   Opinion by

Mr. Justice Elkin,

After a careful consideration of every question raised by this appeal we have concluded that the judgment of nonsuit entered by the learned court below must be affirmed. In reaching this conclusion we have found it necessary to read every word of testimony produced at the trial and set out in the printed record. The case bap been exceptionally well argued on both sides and nothing has been left unsaid which could be said to advantage in support of the respective contentions of the learned counsel representing the parties to the controversy. After reciting the facts and circumstances connected with the particular work in which appellant was engaged at the time of the accident, the statement of claim charges: “Plaintiff says that his injuries were caused by the carelessness and negligence of the defendant company in not providing a sufficient number of men to assist him in doing said work, and particularly supplying him with said scrap wire which was rusty and defective and not strong enough for the purpose for which it was intended and which defendant well knew but which plaintiff did not know, but relied upon the statement of his superior that the wire was strong enough and sufficient for the purpose.” The charge of failure to provide a sufficient number of men cannot be sustained under the circumstances of the case. Appellant asked for three assistants to aid him in doing the work, two for the inside and one for the outside, and these assistants were so provided the first day. On the second day the outside assistant failed to report for work and this fact was called to the attention of Moran, a foreman or superintendent, in charge of the department in which appellant was working. An effort was made to secure a man to take his place but this could not be done because a number of men had not reported for work that morning and as a result no one could be assigned as an assistant to appellant. At this juncture the suggestion was made that appellant secure the scaffold to the building by wire and thus avoid the necessity of having an outside assistant. This method of doing the work was finally adopted with the assent of appellant who was an experienced sheeter with full knowledge of the dangers and risks of his employment. When he chose to go ahead without the assistance of an outside man and in lieu thereof adopted the method of fastening the scaffold to the building by wire, he acquiesced in that method of doing the work and cannot be heard to complain under these circumstances because an outside man was not provided.

This brings us to the consideration of the real point in the case. Is the defendant company guilty of negligence because its foreman or superintendent said to appellant that the wire selected by him to tie the scaffold to the building was sufficiently strong for the purpose intended? In this connection it should be observed that appellant at the time of the accident was a man of mature years and experienced in the kind of work he was doing. He was instructed to look up some wire for the purpose intended but no instructions were given him as to the kind of wire to be selected nor as to the place where such wire might be found. These details were left to his own judgment and since his own safety was involved it is but reasonable to assume that he acted with an intelligence resulting from experience. It is true he says he did not rely on his own judgment but took the wire to the superintendent who said it was strong enough for the use intended and that he relied on what the superintendent said to him. If the machinery, or tool, or appliance, was of a complicated nature and dangerous because of such complication, an employee without experience or knowledge would certainly have the right to rely upon the judgment and experience of the superior in charge of the work. But such are not the facts in the case at bar. Appellant had both knowledge and experience and the appliance if such it may be called was neither complicated nor difficult to understand. He selected the wire himself and knew the use for which it was intended. While he may have relied to some extent on the assurance given him by the superintendent he admits that he tested the wire twice while putting on the lower sheets and before the accident, and after such tests he decided it was “strong enough.” Again, there is no positive evidence that the wire broke. The plaintiff testified, “I can’t say whether it broke or pulled loose,” and the witness, Geisler, said, “the wire parted on the outside.” All this may be true and yet the wire may have been sufficiently strong for the purpose intended. Pulling loose or parting does not indicate defective condition. This would result from failure to properly splice the wire or to bind the pieces together, and if so, such negligence would clearly be that of appellant who had charge of the work.

Again, it is an established rule that an assurance given of the good condition of an appliance will not be a bar to a defense upon the ground of the assumption of risk, when it is shown that the risk was known and comprehended by the servant. In the present case the testimony shbws that appellant knew the risk and comprehended the danger. There can be no doubt about this. We think he must be held to have assumed the risk. As to the condition of the wire, appellant had equal means of knowledge with the superior who gave the assurance said to be relied on, and that condition was as apparent to one as to the other. Under such circumstances there can be no recovery.

It is contended for appellant that the court below erred in entering judgment of nonsuit after defendant had rested without offering any evidence. The motion for nonsuit was properly made after plaintiff rested. Then there was a recess. After recess defendant announced that no evidence would be offered. Plaintiff then asked leave to offer more testimony which the court granted as in chief because the motion for nonsuit had not been disposed of. The witness was then produced and his testimony taken. The court treated this as the end of the plaintiff’s case in chief and ruled on the motion for a non-suit. Certainly this was within the reasonable discretion of the court.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Fox Estate v. Colonial Trust Company, Appellant.

      Railroads — Condemnation proceedings — Bonds—Statement of claim— Affidavit of defense — Parties.
    1. A provision in a bond given in railroad condemnation proceedings to pay the obligee such damages “as shall have been agreed upon by the parties” refers not to the parties to the bond, but to the parties interested in the land and the assent of the surety on the bond to a compromise of the damages is not necessary to render the surety liable on default of the railroad company to pay.
    2. In an action upon a bond given in condemnation proceedings where the statement of claim sets up an agreement between an individual and the railroad company by which the company was to pay the individual a certain sum of money upon delivering to the company a deed for the land, a release of damages, and a power of attorney by the parties owning the land to the individual to deliver the release on receipt of the amount agreed upon, and the statement of claim avers that all of these papers were tendered to. the company, an affidavit of defense is insufficient which merely avers that the obligees in the bond, except the individual named, never agreed upon the damages.
    Argued Oct. 24, 1910.
    Appeal, No. 40, Oct. T., 1910, by defendant, from order of C. P. No. 2, Allegheny Co., April T., 1909, No. 318, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Thomas Fox Estate, Mary A. Ziegler, James T. Fox et ah, children and heirs at law of Thomas Fox, deceased, v. Colonial Trust Company.
    Before Fell, C. J., Bkown, Mestkezat, Pottek, Elkin, Stewakt and Mosch-ziskek, JJ.
    Affirmed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    Shaeek, J., filed the following opinion:
    The action is upon a joint and several bond made by a railroad company and, as surety, by a trust company, which it is admitted was afterward merged in the defendant company, and is made to “Thomas Fox Estate of Greentree Borough.” The bond recites the location of the railway company’s railway upon land belonging to the heirs of Thomas Fox, and the condition of the bond is to pay to the obligee, its heirs and assigns, “such damages accruing by reason of the entry .... as shall have been agreed upon by the parties, or as may be awarded in proceedings to ascertain said damages according to the Acts of Assembly.”
    The affidavit of claim sets out the names of the heirs of Thomas Fox, being the persons designated by the term “Thomas Fox Estate” in the bond; that the railway company entered upon the land under its condemnation proceedings, but before any viewers were appointed all the parties to these proceedings, and all the parties in interest, agreed upon the amount of damages accruing to plaintiffs by reason of the appropriation, the agreement being in writing and copy attached to the affidavit. An inspection of this paper shows that it is an agreement between James T. Fox and the railway company, which it is admitted is the successor of the original railway company, by which it is agreed that the railway company will pay to Fox a certain sum of money upon his delivering to the railway company a sufficient deed for the easement of the right of way condemned, a release of the railway company from all damages arising in any way out of the location, maintenance and operation of the railroad, and a power of attorney by the same parties to James T. Fox to deliver the release and receive the damages agreed upon. It is further alleged that these papers were tendered to the railway company and that the railway company neglected or refused to pay.
    The affidavit of defense sets up that the damages never were agreed upon as provided in the condition of the bond, inasmuch as the surety company never agreed to same, nor was it consulted with regard to the agreement set up; and further that the obligees in the bond, with the exception of James T. Fox, never agreed upon the damages referred to in the condition; that the only agreement ever made was the written agreement made by James T. Fox, exhibit “B” of the statement of claim; that the refusal to pay was by the receiver of the railway company and not by the railway company itself.
    As to the allegation that the defendant surety on the bond had not agreed upon the damages, we are clearly of the opinion that the expression in the condition “agreed upon by the parties or as may be awarded in proceedings,” does not refer to the parties to the bond, but to the parties interested in the land, and that therefore it is not material whether the defendant agreed to the damages or not. The allegation that the obligees in the bond, except James T. Fox, never agreed upon the damages is more material. If the affidavit of claim contained no more than an allegation that an agreement was made the denial above stated would undoubtedly be sufficient, but the affidavit of claim avers that a deed, release, and power of attorney to Fox to deliver the release upon the receipt of the amount agreed upon, was executed by all the parties in interest and placed in the hands of Fox to be delivered, and this is not denied. The necessary inference from this fact is that the parties agreed to settle their differences with the railroad in the manner set out in the affidavit of claim, and it can make no difference whether they did this by direct agreement with the railroad, by writing or otherwise, or authorized Fox to agree, or afterward ratified an agreement made by him. The denial of an agreement is therefore argumentative, or an inference of law that the facts set out in the affidavit of claim did not amount to an agreement. It appearing that the railway company is in the hands of a receiver it would seem that a demand upon the company itself would be useless, and that the proper person to tender to and make demand of was the receiver.
    In the supplemental affidavit of defense it is alleged that $314 of the amount claimed for was in fact for damages arising from the construction of the railway company’s railway through other lands not described in the bond or covered by the appropriation upon which the bond was given, and the rule for judgment excludes this item.
    January 3, 1911:
    Except as to this item of $314, we are of opinion that the affidavit does not present a good defense, and the rule is made absolute for the sum claimed except the item of $314 above mentioned.

      Error assigned was the order of the court.

      Charles F. C. Arensberg, of Patterson, Sterrett & Acheson, for appellant.

      Clarence Burleigh, with him William A. Challener, for appellees, were not heard.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Shafer.


text:
    C. P. Mayer Brick Company v. D. J. Kennedy Company, Appellant.

      Contract — Sale—Breach of contract — Measure of damages.

    In an action to recover damages for breach of contract it appeared that plaintiff and defendant, two corporations, entered into a written contract by which the plaintiff, a manufacturer of bricks, contracted to sell to the defendant 5,000,000 bricks during a particular year. Under the contract the plaintiff gave to the defendant “the sole and exclusive right to purchase and market its entire output” for the year and the defendant agreed to purchase 5,000,000 bricks during the year, as rapidly as the same could be produced. It was further provided that whenever the plaintiff had in stock more than 1,500,000 bricks for which no orders had been received from the defendant, the plaintiff should have the option of selling the excess to other persons without reference to the contract, so as to keep its plant in operation, provided that before selling it would notify the defendant. All bricks thus sold were to be deducted from the 5,000,000 bricks agreed to be manu-factored. It appeared that the plaintiff expended a large sum of money on its plant to prepare for filling the contract, and was ready and willing to manufacture and could have manufactured all the brick called for under the contract, and it continuously called upon defendant to order out brick, but the latter failed to do so to the amount of about half of the whole number of brick. Held, (1) that the defendant could not limit its liability to the number of brick which the plaintiff had actually manufactured; (2) that the plaintiff was entitled to recover the profit on the number of brick represented by the difference between 5,000,000 and the number which the defendant had taken and paid for; (3) that the measure of damages was compensation to be ascertained by deducting the cost of manufacturing and delivery from the contract price.
    Argued Oct. 24, 1910.
    Appeal, No. 69, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 406, on verdict for plaintiff in case of C. P. Mayer Brick Company v. D. J. Kennedy Company.
    Before Fell, C. J., Bkown, Mestrezat, Potter, Elkin, Stewart and Moschziskek, JJ.
    Affirmed.
    Assumpsit on breach of contract.
    At the trial the jury returned a verdict for plaintiff for $4,468.33.
    On motion for judgment for defendant non obstante verdicto, Swearingen, P. J., filed the following opinion:
    On March 1, 1906, the plaintiff and the defendant made a written contract for the sale and purchase of 5,000,000 brick, during the year ending March 1, 1907. During said period, the defendant ordered and gave shipping directions for but 1,323,977 brick, and it was entitled to a credit of 85,045 additional, making an aggregate during the contract year of 1,409,022 brick. On March 1, 1907, the plaintiff had manufactured and had in stock 1,473,900 brick, which, after some controversy, the defendant took and for which it has paid. Thus the total amount of brick, which the defendant received under said contract and for which it has paid, is 2,822,922 brick. The remainder, being the difference between 5,000,000 and 2,822,922, or 2,117,078, were not manufactured. The plaintiff alleged that it had not manufactured these brick by reason of the acts of the defendant in violation of said contract, and it sought in this action to recover the profit which it is alleged it would have made, if the defendant had observed the obligations which the contract imposed upon it. The defendant .denied that it was under any obligation to order and give shipping directions for the brick, which the plaintiff had not manufactured.
    At the trial, we instructed the jury in general terms that, if it was satisfied from all the evidence as to the alleged acts of the defendant, the plaintiff could recover, and that the measure of damages was the loss of profit which was shown.- These two questions, the right of plaintiff to recover, and the measure of damages, were the only ones argued upon these motions. Our instructions to the jury were general, and we now deem it proper to state the reasons for the conclusions which we then reached.
    The question which lies at the foundation of , the controversy is: Was the plaintiff, under the terms of said contract, entitled to recover at all? The portions of said contract, which are material to this issue, are the following:
    "Whereas, said first party is engaged in the manufacture of building brick and the said second party-is engaged in the sale of Builder’s Supplies, including brick, and whereas, the said first party is desirous of having its entire output of Face Brick purchased and handled by one party, and as the second party is willing to undertake the purchase and sale of said output of brick.
    "Now this agreement witnesseth: That the said first party for the consideration and upon the terms hereinafter recited, hereby grants to said second party the sole and exclusive right to purchase and market its entire output of first quality, wire cut and repress building brick for and during the term of one year from the first day of March, 1906, and the said second party hereby agrees to purchase not less than five million (5,000,000) brick per year during the continuance of this agreement, as rapidly as the same can be produced by the first party with reasonable diligence, first party agrees to manufacture and to load same on cars at Bridgeville when ordered by said second party, provided, however, that whenever and as often as the said first party has in stock more than one million five hundred thousand (1,500,000) brick for which no orders have been received from the second party, the said first party shall have the option of selling said excess brick to other persons on its own account without reference to the terms and conditions of this contract so as to keep its plant in continuous operation, provided that before the selling he shall duly notify second party. All brick thus sold by first party to be deducted from the five million (5,000,000) brick agreed to be manufactured by it as aforesaid, it being mutually agreed that such sales shall not discharge any obligations of either party to this contract, except as to the sales so actually made by first party.”
    The object of the plaintiff in making this contract was that it might have but one customer for its output of certain brick, and presumably be thereby relieved from the necessity of employing salesmen and from the expense of advertising. The purpose of the defendant was to obtain control of the output of the plaintiff’s plant. The plaintiff therefore granted to the defendant the “sole and exclusive right to purchase and market its entire output” of certain brick, and the defendant agreed to “purchase not less than 5,000,000 brick,” during the year. The meaning of this language is that the plaintiff undertook to produce at least 5,000,000 brick, and that the defendant undertook to receive at least 5,000,000 brick, for the words are “not less than 5,000,000.” The parties contemplated that these brick were to be manufactured and taken from time to time throughout contract year, for they said that these brick were to be taken “as rapidly as thé same can be produced by the first party with reasonable diligence.” The parties undoubtedly understood the circumstances. They undoubtedly considered that the output of plaintiff’s plant would be substantially 5,000,000 during the year, not during one month, nor during six months, but during twelve months. They also undoubtedly considered that the plaintiff could make substantially that amount of brick during the year, not during one month, nor during six months, but during the twelve months. The brick were to be manufactured by the plaintiff, throughout the year, and they were to be marketed by the defendant throughout the same period; and the parties therefore agreed that 5,000,000 was about the number. It seems to us that this is the fair meaning of the language last quoted. We cannot agree with the defendant, that this language modified its express agreement to purchase 5,000,000, so that the fair meaning of the contract is that the defendant undertook to purchase 5,000,000 brick if the plaintiff manufactured them. This is not the natural meaning of the words used in the contract. It does not say that the defendant will purchase, if the plaintiff manufacture 5,000,000 brick. No such expressed condition is attached to the defendant’s undertaking. And the defendant seems to realize this because it strongly urges that the proviso, following, shows that the construction for which it contends is the correct one. And this brings us to a consideration of the proviso.
    The defendant contends that by this proviso the parties agreed that the limit of the plaintiff’s duty to keep a stock on hand should be 1,500,000 brick, from which the defendant might order, and that the defendant was under no obligation to order the brick as rapidly as they were manufactured, because if it did so there never could be a stock of 1,500,000, and that therefore the clause of the contract, to which reference has been made, is meaningless. It is true that every word of the contract must be given effect in its construction, if possible; and if this proviso means what the defendant contends it does mean, then the defendant’s construction of the contract would be very greatly strengthened.
    There is certainly no express obligation, on the part of the plaintiff in this proviso, to keep a stock of brick on hand to any extent. On the contrary, the express provision is that the plaintiff should have the “option of selling” the excess of 1,500,000, “so as to keep its plant in continuous operation,” and then only on condition that it should have first notified the defendant of its intention so to do. In other words, the parties contemplated that there might be periods during the contract year when the market for such brick might be dull. If so, if the plaintiff should have a stock of 1,500,000, then, in order to remove congestion of its storage capacity, it might, if it so chose, and only if it so chose, sell the excess to other parties. But the plaintiff was not given this right absolutely even then. It could only do so after having given notice to the defendant. The plaintiff was not entitled to sell the excess; it assumed no obligation to do so. It only had the option to do so, which it might or might not exercise, as the market or other conditions might prove advantageous to it; but not even then without first giving notice to the defendant. It seems to us that this proviso had no reference whatever to the obligations which the defendant assumed. The contract says the stipulation was made “so as to keep its (the plaintiff’s) plant in continuous operation.” And this made clear by the final clause of the proviso, which expressly declares that all such sales of excess shall be deducted from the 5,000,000, which the defendant agreed to purchase, no matter what the price. This was to aid the plaintiff in relieving any congestion of its storage, that might happen through the failure of the defendant, but in no way relieved the defendant from its obligation. How, therefore, this proviso can be interpreted so as to aid the construction that the defendant did not undertake to purchase 5,000,000 brick during the contract year, but only such amount as the plaintiff might manufacture, we are at a loss to understand.
    If the parties had intended to engage that the defendant should purchase 5,000,000 if, and only if, the plaintiff manufactured them, how easy it would have been to have said so in plain and unmistakable language. . In our opinion the construction for which the defendant contends, is not warranted by the language which the parties used and would nullify the natural meaning of that language.
    It was in evidence that the plaintiff, in order to prepare for'filling this said contract, expended some $10,000 in increasing the capacity of its plant. It was in evidence that the plaintiff was, ready and willing to manufacture, and could have manufactured, the whole amount of brick called for by the contract and that plaintiff duly notified the defendant of all this from time to time. It was also in evidence that the plaintiff was continuously calling upon the defendant to order out brick, because the plaintiff’s plant was becoming overcrowded by reason of the failure of the defendant to remove the brick in stock. It is true the defendant did not expressly refuse to take the brick, but nevertheless, it did not take them. It only took about 1,400,000 dining the year, and the effect upon the plaintiff and upon its plant was just the same as if the defendant had expressly refused to take the brick. We are of the opinion that there was sufficient evidence to show that the plaintiff was prevented from manufacturing the whole amount of brick, for which the contract called, by reason of the acts and omissions of the defendant; and we are of opinion that, under a proper construction of the contract and under the evidence, a recovery by the plaintiff can be sustained.
    What, then is the measure of damages. Compensation, of course, is the rule. And compensation, in such a case as this, is to be ascertained by deducting the cost of manufacture and delivery from the contract price. This is the rule adopted in the case of a contract for mining and delivery of coal: Scott v. Kittanning Coal Co., 89 Pa. 231.
    January 3, 1911:
    The same rule was adopted in the case of Puritan Coke Co. v. Clark, 204 Pa. 556.
    There is no reason for a different rule in the case of a contract for the manufacture of brick running throughout a year. There is no evidence that the plaintiff could have obtained a market for these brick, especially when it found that, as the year was expiring, the defendant was not likely to take the entire output of its plant.
    Judgment n. o. v. refused.

      Error assigned was in overruling motion for judgment non obstante veredicto.

      J. McF. Carpenter, with him George N. Chalfant, for appellant,
    cited: Arnold v. Blabon, 147 Pa. 372; Burton v. Miller, 227 Pa. 143; Fleming v. Beck, 48 Pa. 309; Sharps-ville Furnace Co. v. Snyder, 223 Pa. 372.

      R. B. Petty, with him John O. Petty, for appellee,
    cited: Bigham v. Ry. Co., 223 Pa. 106; Scott v. Kittanning Coal Co., 89 Pa. 231; Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45; Puritan Coke Co. v. Clark, 204 Pa. 556; Smith v. Kaufman, 30 Pa. Superior Ct. 265; Allegheny Valley R. R. Co. v. Steele, 11 W. N. C. 113; Hinckley v. Steel Co., 121 U. S. 264 (7 Sup. Ct. Repr. 875); Unex-celled Fire-Works Co. v. Polites, 130 Pa. 536.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Swearingen.


text:
    Meyer to use v. Safe Deposit & Trust Company of Pittsburg, Appellant.

      Judgment — Lien—Scire facias to revive — Bona fide -purchaser — Decedents’ estates.

    1. Where a widow takes a deed from her children for their interest in land of which her husband, their father, died seized, for the consideration of “one dollar and other good and valuable consideration,” subject to the lien of mortgages, judgments and municipal hens, aggregating more than the value of the land, the widow is not a bona fide purchaser as against a judgment creditor and such creditor may revive his judgment notwithstanding the deed, although more than five years had elapsed since the entry of judgment.
    2. A judgment recovered against a decedent in his lifetime after his death continues a hen on his real estate indefinitely as against his heirs and devisees.
    Argued Oct. 24, 1910.
    Appeal, No. 76, Oct. T., 1910, by defendants, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 706, on verdict for plaintiff in case of William Meyer for use of Elias Kauffeld, now for use of the Fidelity Title & Trust Company and William Meyer v. The Safe Deposit & Trust Company of Pittsburg, Administrator de bonis non of Henry Meyer, deceased et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias to revive judgment.
    At the trial the jury returned a verdict for plaintiff for $3,341.19.
    On motion for judgment non obstante veredicto, Fra-zer, P. J., filed the following opinion:
    The scire facias in this case was issued November 27, 1905, to revive the lien of a judgment entered February 4, 1895, at No. 154, April Term, 1895, D. S. B., against Henry Meyer, who subsequently died September 24, 1897, leaving to survive him his widow, Wilhelmina Meyer, and several sons and daughters. Letters of administration upon the estate of Henry Meyer were issued to his widow, Wilhelmina Meyer, May 24, 1898. On December 21, 1897, the sons and daughters of Henry Meyer conveyed to their mother the real estate owned by their father at the time of his death.
    Wilhelmina Meyer died February 14, 1903, leaving a last will and testament by which she devised the property formerly belonging to her husband, to her sons and daughters who had previously conveyed the same to her. These sons and daughters subsequently made partition of the property. At the trial it was claimed by defendants that Wilhelmina Meyer was a bona fide purchaser for value and that the judgment at No. 154, April Term, 1895, D. S. B., not having been revived within five years had lost its lien upon the property formerly owned by Henry Meyer and could not now be revived as a lien against the same.
    It was agreed by counsel that the question involved was one of law to be determined by the court. We thereupon directed a verdict in favor of plaintiff. Subsequently these motions for judgment non obstante veredicto and for a new trial were made by defendants. The original judgment in this case was obtained during the lifetime of Henry Meyer and continued a lien against his property indefinitely as against his heirsand devisees: Ziegler v. Schall, 209 Pa. 526. Consequently, unless Wilhelmina Meyer was a bona fide purchaser of the property of her husband from her children, plaintiff is entitled to recover and judgment must be entered in his favor on the verdict. A bona fide purchaser is one who buys property without notice that another party is interested therein and pays a full and fair price for the same. The deed to Wilhelmina Meyer was made to her by her children within three months after her husband’s death; by a clause inserted therein she took the property “subject nevertheless to the lien of all judgments and mortgages given by Henry Meyer in his lifetime, and any municipal liens for taxes assessed,” the consideration expressed being “One dollar and other good and lawful consideration.” At the trial it was admitted that the value of the property was between $7,500 and $8,000, and that the mortgages and judgments against it aggregated $12,854.83. In addition thereto there was due and unpaid city and county taxes assessed against the property amounting to $277=69; the funeral expenses of Henry Meyer amounting to $228 also remained unpaid. Mrs. Meyer had notice of all these debts when she received the deed for the property, and subsequently paid some portion of the indebtedness of her husband. Under these circumstances was Mrs. Meyer a bona fide purchaser for value? We think not. It seems to us the deed from her children to her was more in the nature of a gift than a purchase by her of the property: Lynch’s Est., 220 Pa. 14.
    The consideration stated was merely nominal and imposed upon Mrs. Meyer no obligation to assume and pay the debts of her husband or any portion of them. There was no such covenant upon her part. If we are correct in this view of the law, Wilhelmina Meyer was not a bona fide purchaser for value and the lien of the judgment at No. 154, April Term, 1895, D. S. B., continues and judgment should be entered on the verdict in favor of plaintiff.
    And now, to wit, February 11, 1910, .judgment for defendant non obstante veredicto and motion for a new trial refused, and it is ordered that judgment be entered on the verdict in favor of plaintiff on payment of verdict fee. To which order defendants except and at their instance bill sealed.

      Error assigned was in overruling motion for judgment for defendant non obstante veredicto.

      J. McF. Carpenter, with him George N. Chalfant, for appellants,
    cited: Nippes’s App., 75 Pa. 472; Haak’s App., 100 Pa.- 59; Hemphill v. Carpenter, 6 Watts, 22; Byrod’s App., 31 Pa. 241; Rhoads’s App., 11 W. N. C. 276; Uhler v. Aloses, 200 Pa. 498; Sherrard v. Johnston, 193 Pa. 166; Reehling v. Byers, 9 W. N. C. 359.
    January 3, 1911:

      Morton Hunter, for appellee.
   Per Curiam,

The judgment is affirmed on Judge Frazer’s opinion.


author: Mr. Justice Moschzisker,

text:
    Suburban Rapid Transit Street Railway Company v. Monongahela Natural Gas Company, Appellant.

      Turnpike companies — Gas pipe under road — Natural gas companies— Condemnation of road — Estoppel—Equity—Corporations—Injunctions.
    1. Where a turnpike road company in consideration of gas to be furnished to itself, its successors or assigns, grants a “right of way” to a natural gas company “its successors and assigns for the purpose of laying pipes along said turnpike road” and the turnpike company subsequently assigns its rights under the contract to a street railway company, and thereafter the turnpike road is condemned and becomes a public street, the assignee of the turnpike company has a right to demand gas from the natural gas company as provided by the contract, as long as the natural gas company maintains its pipe line along the road undisturbed; and it is immaterial whether or not the turnpike company owned a fee in the road, or had power to grant a right of way beneath the surface.
    2. The taking over of a turnpike road by a county does not ipso facto terminate a right of way granted by the turnpike company to a natural gas company for gas pipes along the road.
    Argued Oct. 24, 1910.
    Appeal, No. 104, Oct. T., 1910, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 475, on bill in equity in case of Suburban Rapid Transit Street Railway Company, Consolidated Traction Company and Pittsburg Railways Company v. Monongahela Natural Gas Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Macfarlane, J.

      January 3, 1911:
    The facts are stated in the'opinion of the Supreme Court.
    The court entered a decree enjoining the defendant from discontinuing the supply of gas to plaintiffs in accordance with the terms of the agreement of June 13, 1889, between defendant and Birmingham & Brownsville Macadamized Turnpike Road Company.

      Error assigned was the decree of the court.

      J. Rodgers McCreery, with him W. B. Rodgers, for appellant.
    By the contract the turnpike company gave permission to the gas company to disturb its roadway by laying and maintaining pipe and telegraph lines. The turnpike company did not grant an easement or other right to the gas company: Sterling’s App., Ill Pa. 35.
    The county took the road free of contracts made by the turnpike company: Ridge Ave. Pass. Ry. Co. v. Phila., 181 Pa. 592.

      David A. Reed, of Reed, Smith, Shaw & Be.al, for appel-lees,
    cited: Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138.
   Opinion by

Mr. Justice Moschzisker,

In the year 1889 the Monongahela Natural Gas Company entered into an agreement with the Birmingham and Brownsville Macadamized Turnpike Road Company which was evidenced by a writing under seal duly executed by the two corporations. The contract provides: “That for and in consideration of the agreements and covenants . . . ., to be kept and performed by the .... Gas Company, the .... Turnpike Company, . . . ., hereby grants a right of way to the .... Gas Company, its successors and assigns for the purpose of laying pipes and maintaining a gas pipe-line .... along .... the said turnpike road, .... the said gas pipe shall be put down to a depth of 3J4 feet. . . . The said .... Gas Company, for itself, its successors and assigns, .... stipulates and agrees . . . ., in consideration of a right of way and the privilege of laying said gas pipe-lines on said turnpike, the said Gas Company will furnish free gas to the said .... Turnpike Road Company, its successors or assigns, for the purpose of illuminating said turnpike road, and will supply the toll houses where the said gas lines pass with gas for the same, free of charge, as long as said pipes remain in said road, or as long as said Gas Company has a sufficient supply of gas, for the purpose of conducting natural gas through and along the same. . . . The said Gas Company further agrees that the said Turnpike Company, its successors or assigns, shall have the privilege at any time of utilizing all or any part of said natural gas to be furnished for forty (40) burners for the purpose of fuel for running an electric power plant, and shall have the right to transfer the whole or any part of the amount of gas that would be consumed by said forty (40) lights, to any electric power, or light or power plant, or to transfer or lease the same to any electric railway company, to be used in its power hall, and that the amount of gas furnished by said Gas Company, to said Turnpike Company, shall be determined, if changed from the burners to the use of running an electric power plant or railway, by meter; .... And the said .... Gas Company, its successors or assigns, agrees that upon failure to supply gas as aforesaid so long as said .... Gas Company has a sufficient supply to comply with the above conditions . . . ., that the said Gas Company shall forfeit its right to the use of the right of way over the said road for the purpose of conveying natural gas, and a failure to comply with said conditions shall work an immediate forfeiture of the right of way hereby granted; and upon a breach of the within agreement, the said Turnpike Company, its successors, assigns and lessees, shall be fully compensated by said Gas Company.”

Under this agreement the gas company laid a pipe line which it has maintained and operated to the present time. In 1889 the turnpike company assigned its rights under the contract to the Suburban Rapid Transit Company. In 1902 the latter company was taken over by the Consolidated Traction Company, and for some time past that company has been operated by the Pittsburg Railways Company. The gas company has supplied the gas to these corporations consecutively, and it still has a sufficient’ supply of gas to enable it to fulfill its agreement under the contract. In 1900 the turnpike road was condemned under the Act of June 2, 1887, P. L. 306, and in 1901 it became a public road or street. In 1908 the defendant notified the railways company that since the turnpike had been taken over by the county it did not consider itself obligated to supply further gas under the contract, and that the gas would be shut off forthwith; whereupon the plaintiffs filed a bill against the gas company praying for an injunction to restrain it from discontinuing the supply of gas. After hearing, the court below found the facts as we have stated them, decided the case upon its merits, and issued the injunction as prayed for. No question of equity jurisdiction is raised by the assignments of error.

The appellant contends that the condemnation of the turnpike terminated the contract and relieved it from its obligation to supply gas to the assignees of the turnpike company. It argues that the grant under the contract was merely a permission to disturb the turnpike roadway in order to lay the pipe line, and that when the turnpike was condemned, the permissive right came to an end and the county took the road free of the contract. In support of this argument the appellant maintains that the grant could not be accounted an easement, for since the turnpike company only possessed a right of way it could not create an easement thereon. A turnpike company may acquire and hold the fee in the bed of its road: 29 Am. & Eng. Ency. of Law (2d. ed), p. 4; and there was no evidence that the present turnpike was not so owned. However, strictly speaking, the gas company’s rights cannot be properly classed as an easement, for in order to create an easement there must be a dominant and a serv-ient tenement: Lehigh & New England R. R. Co. v. Bangor & Portland Ry. Co., 228 Pa. 350; Dark v. Johnston, 55 Pa. 164. But no matter how it may be classed, the gas company and its “successors and assigns,” having received “a right of way” the continuing consideration to be rendered by it having expressly been made assignable, and the grant having been acted upon, the covenant of the grantee to render the stipulated consideration is binding upon it so long as the pipe line remains undisturbed.

It will not do to say that the turnpike company had no power to grant a right of way beneath the surface of the road. The gas company, having accepted the right of way with the obligation to surrender it upon a failure to comply with the conditions of the grant, so long as undisturbed possession is enjoyed, is estopped from questioning the power of the turnpike company to make the grant. The principles governing this rule of estoppel are discussed in Neglee v. Ingersoll, 7 Pa. 185; Osterhout v. Shoemaker, 3 Hill, 513; Maltman v. Chicago, Milwaukee & St. Paul R. R. Co., 72 Ill. App. 378; Bedenbaugh v. Southern Ry. Co., 48 S. E. Repr. 53; Providence Gas Co. v. Thurber, 2 R. I. 15. Furthermore, looking at the matter from another point of view, it can make no difference whether or not the turnpike company had the power to grant a right of way. If it had only control over the turnpike and power merely to grant the privilege of breaking the surface, the gas company had to secure its permission before entering upon the road, and in the absence of any fraud or deception, if the gas company with its eyes open saw fit to agree to render a certain continuing consideration for the privilege it sought, then no matter what that privilege may be termed, so long as its fruits are enjoyed, the consideration agreed upon must be paid in accordance with the contract under which it was given.

The only question is, in law did the condemnation proceedings and the talcing over of the road by the county disturb the gas company in its enjoyment of the benefits of the contract? In considering this question we must bear in mind that the turnpike was a public road when the contract was entered into, and that its character in that respect did not depend upon the condemnation of the turnpike company’s rights: People’s Telephone & Telegraph Co. v. Berks & Dauphin Turnpike Road, 199 Pa. 411; Pittsburg, McKeesport & Youghiogheny R. R. Co. v. Com., 104 Pa. 583. “The only object and effect of such proceedings was to free the road from tolls, and open it to public travel, as in the case of other country roads:” Phila., Newtown, etc., R. R. Co.’s App., 120 Pa. 90. But, the appellant argues that, since part of the old turnpike is now a city street, it is apt to be disturbed at any time. It is true that in Pennsylvania “a street in a city is subject to greater servitude in favor of the public than is a road in the open country. The city has the right to use .... a street to whatever depth below the surface it may be desirable to go for sewers, gas and water mains, and any other urban uses:” McDevitt v. People’s Natural Gas Co., 160 Pa. 367; Sterling’s App., 111 Pa. 35; Lockhart et al. v. Craig St. Ry. Co., 139 Pa. 419; Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; 1 Lewis on Eminent Domain (2d ed.), 170. It is likewise true that a grant of authority to lay pipes in a street does not give a vested right to any particular part of the subsurface, the location being subject to changes as public convenience and security may require: 20 Cyc. 1156. However, according to the contract the appellant is obliged to furnish the gas only as “long as said pipes remain in said road;” and the pipes are still in the road. The appellant has not been disturbed, and so far as the record shows, there is no reason to believe that the public authorities desire to interfere with its right of way.

The assertion that the taking over of the turnpike by the county ipso facto terminated the right of way granted to the gas company is not borne out by our cases. In Phila., Newtown, etc., R. R. Co.’s App., 120 Pa. 90, the appellant purchased a portion of a turnpike to serve as a right of way. No tracks were laid, and the railway company continued to collect tolls on the road until the turnpike was condemned under the act of 1887. An injunction was asked to restrain the condemnation on the ground that the appellant’s right of way could not thus be interfered with. In affirming a refusal of the injunction we said: “The petitioners are not seeking to interfere with the right of the company to extend its tracks over the road, nor could such a proceeding be entertained under the act of 1887. We think that the appellants are needlessly alarmed at the effect of the action of the petitioners. It can result only in making it a free road until such time as the appellants are ready to lay down their tracks, when, if they show a legal right to so appropriate the road, it is difficult to see how this proceeding can affect them.” In Germantown Passenger Ry. Co. v. Citizens’ Passenger Ry. Co., 151 Pa. 138, prior to the condemnation the turnpike company had granted a right of way to a railway company, and, in referring to the rights of the latter, we said: “The .... railway was required to compensate and did compensate the turnpike company for the use of its road. Afterwards, .... the city .... succeeded to the rights of the turnpike company, but that, of course, cannot injuriously affect the rights of the railway company previously acquired and paid for.” It is clear from these cases that the condemnation of the turnpike did not in itself deprive the appellant of its right of way. It still has all the rights it enjoyed before, subject to the rights of the public; and it is not necessary to decide now the extent of these latter rights as they may never affect the appellant. It will be time enough to do that when the appellant is actually disturbed in the enjoyment of its right of way.

The case of Ridge Ave. Pass. Ry. Co. v. Phila., 181 Pa. 592, cited by the appellant is not controlling here. That case decided that after the condemnation of a turnpike, the city had the right to change the grade of the road against the objection of a railroad company which had acquired its right of way prior to such condemnation. What we said there, to the effect that the city did not take the street subject to indefinite liens or contracts made by the turnpike company in favor of other corporations, is not at all at variance with our other cases or with the view of the law expressed in this opinion; it is merely a recognition of the rule that after the condemnation of the road the right of way of the railway company was subject to such reasonable control as might be required for the convenience and security of the public.

It is to be noted that the record not only fails to show any express attempt to interfere with the rights of the appellant, but there is a finding by the court below, which was not excepted to, to the effect that “the easement of the gas company was not condemned by the county, the condemnation being subject to the same.” And it appears that the road jury’s attention was directed to the fact of the existence of the so-called easement, and that it was left to them to consider its effect upon the value of the turnpike. See Perkiomen & Reading Turnpike Road v. Berks County, 196 Pa. 21.

We conclude that; since the appellant is still in the undisturbed enjoyment of the right of way, it must continue to render the consideration stipulated in the contract.

The assignments of error are overruled and the decree is affirmed.


author: Mr. Justice Brown,

text:
    Lyons v. Benney, Appellant.

      Corporations — Receiver—Insolvency—Fraud of creditors — Promissory note — Affidavit of defense.

    1. While the general rule undoubtedly is that the receiver of an insolvent corporation has no greater rights than those possessed by the corporation itself and a defendant in a suit brought by him may take advantage of any defense that might have been made if the suit had been brought by the corporation before its insolvency, it is equally true that when an act has been done in fraud of the rights of the creditors of the insolvent corporation the receiver may sue for their benefit, even though the defense set up might be valid as against the corporation itself.
    2. One who voluntarily gives his obligation to a bank for the purpose of taking up another obligation and of being exhibited as one of its assets to a supervising officer of the government having supervision and control of its affairs, is estopped to deny want of consideration upon the insolvency of the bank when a receiver brings an action upon the note for the benefit of the creditors of the institution.
    3. In an action on a promissory note by the receiver of an insolvent bank an affidavit of defense is insufficient which avers substantially that the defendant made and delivered the note in suit to the bank in furtherance of a scheme to deceive the bank examiner, under a promise made to him by the bank that he would not be held liable upon the obligation.
    Argued Oct. 25, 1910.
    Appeal, No. 31, Oct. T., 1910, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1909, No. 124, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert Lyons, receiver of the Cosmopolitan National Bank of Pittsburg, v. G. A. Benney.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Mosciiziskbr, JJ.
    Affirmed.
    Assumpsit upon a promissory note. Before Mac-FARLANE, J.
    The facts are stated in the opinion of the Supreme Court.

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

      January 3, 1911:

      F. C. McOirr, with him John Marrón, for appellant. — ■
    The general rule of law is that a receiver simply takes the place of the bank and has no greater rights than the bank in attempting to collect the debts of the bank: Barclay v. Edlis Barber Supply Co., 39 Pa. Superior Ct. 482; Lincoln v. Fitch, 42 Me. 456; Republic Life Ins. Co. v. Swigert, 135 Ill. 150.
    A receiver appointed by the comptroller of the currency represents the corporation only, and not the creditors: Scott v. Armstrong, 146 U. S. 499; Hatch v. Johnson Loan & Trust Co., 79 Fed. Repr. 828.

      Wm. S. Moorhead, with him John S.. Wendt, for ap-pellee.
    In view of the fact that the plaintiff’s bank is insolvent and the receiver is suing to recover this asset for the benefit of the creditors of the bank, the defendant, under the circumstances of this case, is estopped to set up the collateral agreement nullifying his written obligation which he executed and delivered to the bank to be accepted and used as an asset in place of a similar obligation which was objected to by the bank examiner: State Bank v. Kirk, 216 Pa. 452; Skordal v. Stanton, 89 Minn. 511; People’s Bank v. Stroud, 223 Pa. 33; Hurd v. Kelly, 78 N. Y. 588; Pauly v. O’Brien, 69 Fed. Repr. 460; Harrington v. Connor, 51 Neb. 214; Third National Bank v. Reichert, 101 Mo. App. 242; Cushing v. Perot, 175 Pa. 66; King v. Pomeroy, 121 Fed. Repr. 287; Ins. Co. v. Swigert, 135 Ill. 150.
   Opinion by

Mr. Justice Brown,

The appellant admits that he executed the note in suit and that the Cosmopolitan National Bank of Pittsburg was the holder of it at the time its insolvency resulted in the appointment of the appellee as its receiver. The defense set up by the maker to avoid his obligation is that sometime prior to July 22, 1908 — the day his note was made — the bank was the holder of another obligation made by the Colonial Concrete-Steel Company and indorsed by F. H. McKinnie, vice president of the bank; that the bank had been carrying this note for some time, and, upon objection by the bank examiner to its being longer carried, the note in suit, under an arrangement between McKinnie and the bank, was executed to take its place; that it was understood and agreed between the bank, McKinnie and the defendant at the time he signed the note that he did so only to accommodate and oblige the bank and McKinnie, and that the defendant was not to be personally liable on the same, McKinnie alone being bound for its payment. The substance of this affidavit of defense is that the appellant made and delivered his note to the bank in furtherance of a scheme to deceive the bank examiner, under a promise made to him by the bank that he would not be held liable upon the obligation. He agreed that it should appear as one of the assets of the institution for the purpose of deceiving those whose duty it was to examine them, and he now sets up the defense that, as it was to serve no other purpose, it is to be regarded as a worthless piece of paper under this agreement with the bank. Whether the bank, if it were now carrying on business as a solvent institution, could enforce payment of the note, assuming the averments in the affidavit of defense to be true, was not the question before the court below on the rule for judgment, for the note had passed into the hands of the receiver of the insolvent bank, and as a representative not only of it, but of its creditors, he brought the suit: Cushing v. Perot, 175 Pa. 66.

While the general rule undoubtedly is that the receiver of an insolvent corporation has no greater rights than those possessed by the corporation itself and a defendant in a suit brought by him may take advantage of any defense that might have been made if the suit had been brought by the corporation before its insolvency, it is equally true that/when an act has been done in fraud of the rights of the creditors of the insolvent corporation the receiver may sue for their benefit, even though the defense set up might be valid as against the corporation itself. In such a case he may maintain an action which the corporation itself could not) Franklin National Bank v. Whitehead and Others, 149 Ind. 560; 5 Thompson on Corporations, sec. 4945. What was it that this appellant did? The only inference to be drawn from his affidavit of defense . is that, in executing and delivering his note to the bank, he helped along a trick to make it appear to the bank examiner and, for that matter, to the creditors of the bank, that it had á valuable note, when, in fact, it had not. In Pauly v. O'Brien, 69 Fed. Repr. 460, the defendant, in substituting his own note, at the instance of the bank, for one which it held against a maker named Naylor, did substantially what was done by this appellant, and, in holding that the defense of want of consideration was unavailing, it was properly said: “When parties employ legal instruments of an obligatory character for fraudulent and deceitful purposes, it is sound reason, as well as pure justice, to leave him bound who has bound himself. It will never do for the courts to hold that the officers of a bank, by the connivance of a third party, can give to it the semblance of solidity and security, and, when its insolvency is disclosed, that the third party can escape the consequences of his fraudulent act. Undoubtedly, the transaction in question originated with the officers of the ' bank, but to it the defendant became a willing party. . . . So far as appears, Naylor was a total stranger to him. Why should he execute his note to take up the note of Naylor? What moved him to do it, except to enable the officers of the bank to supplant the overdue note of Naylor with a .live note, which he now insists was without consideration and purely voluntary, but which enabled the bank officers to make a deceptive, and therefore fraudulent, showing of assets? Obviously, nothing.” So /ijfis appellant was a party to a scheme of the officers of the bank to enable them to make a deceptive and fraudulent showing of assets, and as the fraud was perpetrated upon the creditors, now represented by the bank’s receiver, he can maintain an action on the note for their benefit.]

In holding that the appellant’s affidavit was insufficient the court below relied upon the State Bank of Pittsburg v. Kirk, 216 Pa. 452, and People’s Bank v. Stroud, 223 Pa. 33, and under those cases judgment for the plaintiff could not have been withhold. In each of them we held that the appellee, as receiver of an insolvent state bank, represented not only it, but its creditors, and counsel for the appellant have failed to convince us that the same rule does not apply to a receiver of a national bank appointed by the comptroller of the currency. Nor have we been persuaded that only directors or trustees of a corporation who have given notes for the purpose of increasing its assets or restoring its capital, should not be allowed to set up want of consideration in an action on the obligations by a receiver. In People’s Bank v. Stroud the obligors on the note were neither directors nor trustees. True, they were sureties upon the cashier’s bond, but the decision against them rested, after all, upon the underlying principle that one who voluntarily gives his obligation to a bank for the purpose of taking up another obligation, and of being exhibited as one of its assets to a supervising officer of the government having supervision and control of its affairs, is estopped to deny want of consideration upon the insolvency of the bank when a receiver brings an action upon the note for the benefit of the creditors of the institution. Neither the law nor good conscience can sanction the contention of the defendant that he ought to be permitted to take advantage of the fraudulent agreement between him and the bank to which its creditors were not parties and for whom the receiver sues.

Judgment affirmed.


text:
    McKinley v. C. Jutte & Company, Appellant.

      Landlord and tenant — Covenant for repairs — Surrender in good condition — Act of God.

    1. Where a lease of a building and machinery provides that the lessee shall make all necessary repairs to the engine, boiler, machinery and other similar fixtures on the premises, keep them in good order and “surrender the same at the end of the term in as good order as they now are, reasonable wear and tear and the acts of God alone excepted,” and a fire destroys the building and machinery before the expiration of the term, the lessee cannot in an action on the covenant defend on the ground that the fire was of unknown origin, that it was not caused by any negligence or default on his part, and that it was an act of God within the meaning of the lease.
    2. Loss by act of God is such irresistible disaster as results from natural causes and is in no sense attributable to human agency.
    Argued Oct. 25, 1910.
    Appeal, No. 63, Oct. T., 1910, by defendant, from order of C. P. No. 3, Allegheny Co., Aug. T., 1909, No. 220, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harry S. McKinley v. C. Jutte & Co.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elein, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a lease.
    Rule for judgment for want of a sufficient affidavit of defense.
    Davis, J., filed the following opinion:
    The plaintiff was the owner and lessor, and the defendant lessee, under a written lease for the term of five years, commencing on April 1, 1904, of certain premises situate in the now twenty-first ward of the city of Pittsburg, and having erected thereon a building and machinery used by the defendant as a planing mill, etc.
    The lease contains this clause: “to surrender the same at the end of the term in as good order as they now are, reasonable wear and tear and the acts of God alone excepted.”
    And further provided that the lessee agreed to “Make all necessary repairs to the engine, boiler, machinery and other similar fixtures on said premises; that it will keep them in as good order as they now are, and so deliver them to the lessor at the expiration or other termination of this lease, less reasonable wear.”
    If this second clause in the lease stood alone, there would be no question of defendant’s liability for the property embraced in this clause, for “when a law creates a duty or charge and the party is disabled to perform it, without any default in him, and hath no remedy over, then the law will excuse, but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it:” Hand v. Baynes, 4 Whart. 204.
    The first clause in the lease includes the property described in the second clause. The two clauses, therefore, should be construed together, and the defendant released from any loss arising from the exception in the first clause, viz., “acts of God alone.”
    The fire occurred on April 17, 1907, destroying the plant, that is, the building and machinery on the premises, while in the possession and use of the defendant, and this action is brought to recover the loss occasioned by said fire.
    The defendant, as a matter of defense to the action says: “The fire mentioned in the statement of claim, which caused the destruction of the building, machinery, etc., on said land, was neither caused nor contributed to by any negligence or default of the defendant, nor was the defendant in default in any way in connection with the said fire or the consequence thereof.” Deponent further says that said fire was wholly unforeseen, and that the origin thereof is unknown to the defendant, and deponent is advised by counsel, and therefore alleges, that under the terms of said lease defendant is not obliged to rebuild, restore or replace the said building, machinery, etc., or any part thereof, destroyed by fire, as averred in the statement of claim, and deponent says said fire was an “act of God ” within the meaning of the terms of said lease.
    At the time of this fire, the building and machinery was in the possession and control of defendant, and'the burden is on it to show such facts and circumstances in its affidavit of defense as would bring it within the exception “acts of God,” or at least to show such facts and circumstances as would rebut any inference of negligence or default on its part, and from which a jury might draw the inference that the fire was caused by an “act of God” or some “inevitable casualty or accident,” and the bare allegation that the fire was not caused by its negligence or default or was caused by an act of God, or that the fire was of an origin unknown, are not sufficient to prevent judgment, and for this reason alone this rule ought to be made absolute.
    The defense set up, “want of negligence or default,” is not available to the defendant in this case. The exception in the lease which relieves it from liability is the “acts of God.” The position assumed by defendant is that “acts of God” and “inevitable casualty or accident” are synonymous terms, and that the ease at bar is ruled by Kelly, Administrator, v. Duffy, 11 Atl. Repr. 244. In this case the lease contained a clause “and to surrender the same in as good order and condition as they were at any time during the term, ordinary decay and inevitable casualty only excepted,” and in which case the following point was affirmed.
    1. If the jury are satisfied from the evidence that the building was destroyed by fire, without any negligence or default on the part of Hackett or Duffy, and that the usual ordinary efforts were made to save the building, this is all that is required by law of the defendant or Hackett, and the verdict should be for the defendant, and on an appeal to the Supreme Court, this point was held to be good law.

      It is very evident that the case of Kelly, Administrator, v. Duffey does not rule the case at bar, as contended by the defendant. The terms “inevitable casualty or accident” and “acts of God” are not synonymous. “Inevitable casualty” is a broader and more comprehensive term, than “act of God.”
    In Ferguson v. Brent, 12 Md. 9, 33, it was stated: “It is true that every act of God is an inevitable accident, because no human agency can resist it, but because it is so, it does not therefore follow in the sense of the books, that every inevitable accident is an act of God. Damage done by lightning is an inevitable accident, and also an act of God, but the collision of two vessels in the dark is an inevitable accident, but not an act of God, as the stroke of lightning, nor is it so considered by the authorities.”
    According to Lord Mansfield, 1 Am. & Eng. Ency. of Law (2d ed.), 584, by “act of God” is meant, “A natural necessity which could not have been occasioned by the intervention of man, but proceeds from physical causes alone, such as the violence of the winds or seas, by lightning or other natural accidents.”
    Or, as said in Coggs v. Bernard, 1 Smith’s Leading Cases, *199: “As to loss by act of God, this means such irresistible disaster as results from natural causes and is in no sense attributable to human agency. The civil law employs a corresponding term, viz., major, and inevitable accident is not a fair synonym, and the loss by fire is not an act of God, for fire originates in human agency.”
    “Inevitable accidents” are such accidents as no human foresight or prudence can guard against, and a “person ought not to be answerable for consequences which it was impossible to foresee or prevent:” Bell v. McClintock, 9 Watts, 119.
    The defendant in this case, however, did not use in its lease the words “inevitable accident casualty” to exempt it from liability, but used the words “acts of God,” and it will appear by the distinction clearly defined between the two phrases, that while a lire might be an “inevitable casualty” it is not an “act of God,” and the defendant is therefore not relieved from liability in this case from a loss by fire by the exception in its lease.
    January 3, 1911:
    And now, to wit, December 31, 1909, it is ordered and decreed that the rule in this case be made absolute, to which order the defendant excepts and exception is allowed.

      Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      Edwin W. Smith, of Reed, Smith, Shaw & Beal, for appellant.
    Under the decisions of this state, the affidavit of defense has set up what would amount to an “inevitable casualty,” and if the language of the lease was “inevitable casualty,” it would be sufficientKelly v. Duffy, 11 Atl. Repr. 244; Sullivan y. R. R. Co., 30 Pa. 234; Hays v. Kennedy, 41 Pa. 378.

      Charles W. Jones, for appellee.
    It is perfectly clear that if the exception as to the “act of God” were not in this lease, the averments in the affidavit of defense would constitute no defense: Hoy v. Holt, 91 Pa. 88; Gettysburg Electric Ry. Co. v. Electric Light, etc., Co., 200 Pa. 372.
    The act of God is natural necessity, as wind and storms, which arise from riatural causes, and is distinguished from inevitable accident: Hays v. Kennedy, 41 Pa. 378; Fer-gusson v. Brent, 12 Md. 9; Merritt v. Earle, 29 N. Y. 115; Gordon v. Little, 8 S. & R. 533; Coggs v. Bernard, 1 Sm. Leading Cases, *199; McCarty v. R. R. Co., 30 Pa. 247; Lloyd v. Haugh, 223 Pa. 148; Miller v. Steam Navigation Co., 10 N. Y. 431; Fay v. Pacific Improvement Co., 93 Cal. 253.
    A loss from the great Chicago fire was held to be not one arising from the “act of God:” Chicago, etc., R. R. Co. v. Sawyer, 69 Ill. 285.
   Per Curiam,

The judgment is affirmed on Judge Davis’s opinion.


author: Mr. Justice Elkin,

text:
    Stock v. German Catholic Press Company, Appellant.

      Mortgage — Mortgage of leasehold — Recording—Acts of April %7, 1855, P. L. 868, April 8, 1868, P. L. 57, and May IS, 1876, P. L. 160.

    1. The authority to mortgage a leasehold estate in Pennsylvania is purely of statutory origin, and the statutes giving such authority, being in derogation of the common law, must be strictly construed and their requirements strictly complied with.
    2. Under the acts authorizing the mortgage of a leasehold the pledge is of the lease together with the buildings, fixtures and machinery belonging to the lessee and appurtenant to such lease; and the term of the lease measures the duration of the lien. The recording of the mortgage and lease is absolutely necessary to give validity to the lien.
    3. Where a lease and a mortgage of the lease are duly recorded and both mortgage and lease by their express terms expire on a date named, and the lease is extended after the expiration of the original term, but the extension of the lease is not recorded, the lien of the mortgage is not extended, but is lost on the date when the lease had expired by its terms; and this applies not only to the mortgage on the leasehold estate, but also to the lien upon the buildings and machinery belonging to the lessee.
    Argued Oct. 25, 1910.
    Appeal, No. 77, Oct. T., 1910, by German Savings & Deposit Bank, from order of C. P. No. 2, Allegheny Co., July T., 1907, No. 60, dismissing exceptions to auditor’s report in case of Andrew Stock and Peter Kerner v. German Catholic Press Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of S. Harvey Thompson, Esq., auditor. Before Haymaker, J.
    The auditor reported the facts to be as follows:
    The mortgaged premises were leased from Mary E. Schenley. The last lease taken to the defendant company was dated February 4, 1901, and was for a term beginning January 1, 1901, and terminated three and one-fourth years from that date. On November 15, 1905, this lease, pursuant to a resolution of the board of directors of the defendant company, was assigned to Andrew Stock. Stock by writings dated March 13, 1906, and February 5, 1907, agreed to “renew and extend” the lease up to May 1, 1908. These renewal agreements were addressed to the Commonwealth Real Estate Company, were received by it as renting agent for Mary E. Schenley and continued the relation of landlord and tenant between Stock and Mrs. Schenley, or her heirs up to May 1, 1908. This lease was assigned to Stock, held by him and renewed by him as trustee for the German Catholic Press Company, the assignment being made to him and renewed by him at the demand of Mrs. Schenley, the lessor, she being unwilling to renew the lease unless some person financially responsible should be substituted as lessee. The position of Stock with reference to this lease was well, understood by him and the defendant company. The mortgage held by German Savings & Deposit Bank was dated February 4, 1901, and duly recorded February 18, 1901. The property described in the mortgage is, “All that certain leasehold of all that certain lot of ground in the second ward, Pittsburg, Allegheny county, state of Pennsylvania, bounded and described as follows, to wit:” then describing the ground, “Together with the building thereon erected, engines, boilers, machinery, presses, tools, appliances and all other property of every kind now or which may hereafter be placed thereon, belonging to the party of the first part and thereunto appertaining, connected with its business of publishing a newspaper and doing a publishing printing business. The said leasehold hereby mortgaged and intended to be hereby conveyed to said party of the second part is that certain leasehold from Mary E. Schenley by John W. Herron, her attorney in fact, to the German Catholic Press Company, bearing date, to-wit, the fourth day of February, 1901, for the term of three years and three months from Jany. 1, 1901, which said leasehold is hereto attached.”
    Exceptions to the auditor’s report were dismissed by the court.

      January 3, 1911:

      Error assigned was in dismissing exceptions to auditor’s report.

      Geo. N. Monro, Jr., with him Geo. N. Monro, for appellant.

      W. H. Lemon, for appellee.
   Opinion by

Mr. Justice Elkin,

The question for determination here is whether appellant, a mortgagee named in a leasehold mortgage, is entitled to preference as a mortgage lien creditor in the distribution of a fund arising from the sale of the property on which the mortgage is alleged to be a lien by a receiver of the defendant company. The auditor who reported a distribution and the learned court below in passing upon exceptions to his report held that the mortgage had lost its lien and therefore its priority. The property mortgaged was a leasehold estate and the authority to mortgage such an estate in Pennsylvania is purely of statutory origin. These statutes being in derogation of the common law must be strictly construed and their requirements strictly complied with. This is the rule of all our cases affecting the validity of statutory liens. It includes leasehold mortgages as well as all other preferences and liens created by statute. The legislature has passed three acts of assembly relating to leasehold mortgages of the kind in question here. They are the acts of 1855, 1868 and 1876. Whatever rights these acts gave appellant should be enforced, but what they did not expressly provide cannot arise by implication. The first named act made it lawful for a lessee for a term of years, “to mortgage his or her lease or term in the demised premises with all the buildings, fixtures and machinery thereon to the lessee belonging, and thereunto appurtenant, with the same effect, as to the lessee’s interest and title as in the case of the mortgaging of a freehold interest and title, as to lien, notice, evidence and priority of payment; provided that the mortgage be in like manner acknowledged and placed of record in the proper county, together with the lease. . . The act of 1868 gives the mortgagee of a leasehold the same remedies for collection as those enjoyed by the mortgagees of other real estate. The act of 1876 has but slight bearing and has only to do with the recording of certain kinds of mortgages. The estate authorized to be mortgaged is “his or her lease or term in the demised premises with all buildings, fixtures and machinery thereon to the lessee belonging.” The term of the lease measures the duration of the lien. The pledge is of the lease together with the buildings, fixtures and machinery belonging to lessee and appurtenant to such lease. The foundation of the lien is the leasehold estate and the buildings, fixtures and machinery belonging to lessee are included as appurtenances to the lease, that is appurtenant to the term or estate mortgaged. Buildings, fixtures and machinery not connected with the lease nor appurtenant to it are not subject to mortgage under these acts. The act requires the mortgage and lease to be recorded in the county where the demised premises are located. The recording of the mortgage and lease in compliance with the requirements of the statutes is absolutely necessary to give validity to the lien. This is the method provided for giving notice of record to all persons dealing with the parties affected by the mortgage. The purpose of requiring both instruments to be recorded is to give notice of the terms and conditions of the mortgage and also the nature and extent of the leasehold bound, together with the property appurtenant thereto. This notice being of record, creditors and others are presumed to have knowledge of it and to act accordingly, at least they are bound by it. But they are only bound by what the record contains. In the case at bar there is nothing on record except the mortgage and original lease both of which by their express terms expired on April 1, 1904. It is contended that the lease was extended from term to term and that each extension of the term necessarily carried with it an extension of the lien of the mortgage. Whether this might be done in any ease if the recording acts are complied with, it is not now necessary to decide, but in the present case the contention cannot be sustained because the extensions of the lease were not recorded. The record shows that the term of the lease and the lien of the mortgage expired together on April 1, 1904, and this is the notice mentioned in the act with which creditors are affected. What may have been done by the lessor and lessee of the demised premises as to the extension of the term, not of record, can in no way affect the rights of creditors. The lien of the mortgage depends upon the mortgage record and must stand or fall upon that record.

It is argued for appellant that even if the lien of mortgage on the leasehold estate had expired, it was still a lien upon the buildings and machinery belonging to the lessee. This position cannot be sustained. As hereinbe-fore indicated the lien is primarily on the leasehold and the buildings and machinery are only affected as appurtenances. When the foundation is swept away the whole structure falls. The lien is an entirety and is either valid or invalid as a whole. It is not invalid as to the leasehold and valid as to the buildings and machinery. When the lien expired on the leasehold, it expired on all the appurtenances. Then, again, it is contended that the auditor should have allowed attorney’s commission for attempting to collect the mortgage. While there may be some doubt about this question we cannot say under all the circumstances that any clear error was committed.

The learned auditor gave all the questions careful and intelligent consideration and has convinced the court below and here that his conclusions are correct.

Assignments of errors overruled and decree affirmed. Costs of this appeal to be paid by appellant.


author: Mr. Justice Potter,

text:
    Sloan, Appellant, v. Klein.

      Constitutional law — Title of act — Mortgage—Deed—Liability of grantee — Act of June IB, 1878, P. L. BOB.

    1. The Act of June 12, 1878, P. L. 205, entitled “An Act to define the liability of grantees of real estate for the incumbrances thereon,” is sufficiently comprehensive in its title to cover both the first and second sections of the act, and does not violate art. Ill, sec. 3 of the constitution of Pennsylvania.
    2. Where an owner of land creates two mortgages thereon and then conveys the property subject to the mortgages, the grantee covenanting in the deed itself to assume and pay the mortgages as a part of the consideration, and thereafter the grantee conveys the land to another person without expressly assuming any continuing liability to pay the mortgages, such grantee is not liable to the mortgag^ for payment of the mortgages. £V

    Argued Oct. 25, 1910.
    Appeal, No. 84, Oct. T., 1910, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1909, No. 1,006, discharging rule for judgment for want of a sufficient affidavit of defense in case of William L. Sloan v. Adolph Klein.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover the amount of a mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

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

      A. E. Sloan, for appellant.
    The act of 1878 does not pretend to limit actions based upon agreements in writing, or express words in the conveyance to “assume and agree to pay” incumbrances, and hence does not apply to the case at bar: Campbell v. Shrum, 3 Watts, 60; Woodward’s App., 38 Pa. 322; Crooks v. Douglass, 56 Pa. 51; Blood,v. Crew Levick Co., 171 Pa. 328; Blood v. Crew Levick Co., 177 Pa. 606; Merriman v. Moore, 90 Pa. 78.
    January 3, 1911:
    The title of the act is in violation of art. Ill, sec. 3 of the constitution of Pennsylvania: Hoff’s App., 24 Pa. 200; Cook v. Berry, 193 Pa. 377; Mount Joy Borough v. Lancaster, etc., Co., 182 Pa. 581; Com. v. Samuels, 163 Pa. 283; Road in Phoenixville, 109 Pa. 44; Com. v. Hazen, 207 Pa. 52; Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter, 203 Pa. 593; Union Passenger Rys. Co.’s App., 81* Pa. 91.

      J. M. Shields, for appellee,
    cited: Com. v. Jones, 4 Pa. Superior Ct. 362; Fredericks v. Canal Co., 109 Pa. 50; Com. v. Ry. Co., 219 Pa. 11; Allegheny County Home’s App., 77 Pa. 77; Gilbert’s Est., 227 Pa. 648; Powell v. Com., 114 Pa. 265; Com. v. Hazen, 20 Pa. Superior Ct. 487.
   Opinion by

Mr. Justice Potter,

This is an appeal from the refusal of the court below to enter judgment for want of a sufficient affidavit of defense. Plaintiff averred that one Jacob Tannenbaum created two mortgages upon a certain property, one. for $7,000 and one for $3,000, and then sold the property subject to the mortgages, to the defendant, Adolph Klein; “both of which mortgages,” it was stated in the deed of conveyance, “the said Adolph Klein, by the acceptance of this deed assumes and agrees to pay, as part of the aforesaid consideration.” Afterwards Klein sold the property incumbered by the mortgages to one Jacobson, and at the time did not expressly assume any continuing liability to pay the mortgages. The plaintiff in this case, W. L. Sloan, was the original holder of the $3,000 mortgage, and he afterwards purchased the other $7,000 .mortgage, which was the first lien upon the property. This mortgage he proceeded to foreclose, and the property was sold at sheriff’s sale to the defendant Adolph Klein. The purchase money was sufficient to pay_ only the first mortgage, with interest, costs and taxes, and nothing was left for distribution on account of the second mortgage. Sloan then brought this action of assumpsit, alleging that by virtue of the clause in the deed from Tannenbaum to him, the defendant, Adolph Klein, had covenanted and agreed with the plaintiff to pay to him the said $3,000 mortgage, and become personally liable to bim for the amount. It will be remembered that Sloan was not the grantor in the deed, and that Klein, the grantee, did not make the agreement, to pay the mortgages, with Sloan, but made it with Tannenbaum. The latter is not making any claim under the agreement.

The decision of the court below sustaining the sufficiency of the affidavit of defense was based mainly upon the provisions of the Act of June 12, 1878, P. L. 205, and the principal question arising in this appeal is whether or not Klein is protected under the provisions of that act, from the personal liability sought to be enforced against him. The title of the act is, “An act to define the liability of grantees of real estate for the incumbrances thereon.” The first section provides that a grantee of real estate, which is subject to ground rent, mortgage or other incumbrances shall not become personally liable therefor, unless he shall have expressly assumed such liability in writing or there shall have been express words in the grant, stating that it is made on condition of the grantee assuming such liability, and that the use of the words “under and subject to” in the grant shall not alone be so construed as to impose personal liability on the grantee. The second section reads: “The right to enforce such personal liability shall not inure to any person other than the person with whom such an agreement is made, nor shall such personal liability continue after the said grantee has bona fide parted with the incumbered property, unless he shall have expressly assumed such continuing liability.”

Counsel for appellant contends that the subject-matter of the second section is not clearly expressed in the title, and for that reason the section is unconstitutional. He admits that the first section is clearly expressed in the title, for it defines the liability of grantees; but he suggests that the second section limits the right of action or means of recovery on the liability defined in the first section. The suggestion seems to us to be without force. Both sections relate to and define the liability of the grantee, and they are entirely consistent. The first section provides that the grantee shall not be liable except under the conditions stated. The second section provides that he shall not be liable except to the person with whom the agreement referred to in the first section is made, and that his personal liability shall not continue after a certain time, that is, “after the said grantee has bona fide parted with the incumbered property, unless he shall have expressly assumed such continuing liability.”

In Bridgewater Boro. v. Bridge Co., 210 Pa. 105, our Brother Brown said (p. 108): “If the title fairly gave notice of the subject of the act, so as to reasonably direct inquiry into its body, the constitutional requirement was not violated: State Line & Juniata R. R. Co.’s App., 77 Pa. 429; Carothers v. Phila. Co., 118 Pa. 468; Dailey v. Potter County, 203 Pa. 593.” In Com. v. Kebort, 212 Pa. 289, Chief Justice Mitchell said (p. 291): “The object of the constitutional requirement as to the title is 'that legislators and others interested shall receive direct notice, in immediate connection with the act itself, of its subject so that they may know or be put upon inquiry as to its provisions and their effect: ’ Com. ex rel. v. Samuels, 163 Pa. 283.” In Gilbert’s Est., 227 Pa. 648, our Brother Elkin said (p. 650): “It has been decided over and over again that the title need not be a general index to the contents of an act, but that it is sufficient if it relates to one general subject, no matter how the details may be multiplied, provided they are subordinate to the general purpose of the act and germane to its provision.”

Under these principles, all doubt as to the sufficiency of the title to clearly express the subject of the act in question, must disappear. In the present case the agreement to assume and pay the mortgages- was made by the defendant, with Jacob Tannenbaum, the grantor in the deed, to which instrument the plaintiff was not a party. As noted above, the second section of the act of 1878 restricts the liability of the grantee to “the person with whom such an agreement was made.” Certainly the plaintiff in this case was not this person.

The defendant also avers that he “bona fide parted with the property incumbered by said mortgage by sale thereof to Solomon Jacobson, by deed dated, etc., .... and that he did not expressly assume any continuing liability at that time, and has not since done so.” This averment if sustained at the trial, will, under the provisions of the act, be sufficient to acquit the defendant of liability as charged. The case of Cook v. Berry, 193 Pa. 377, cited by counsel for appellant, is not authority for the construction of the act of June 12, 1878, as that statute does not seem to have been referred to, or brought to the attention of the court, nor was it considered in the opinion of the court below or in that of this court, in that case.

The assignments of error are overruled, and the order discharging the rule is affirmed.