author: Mb. Justice Potteb, Mb. Justice Bbown,

text:
    Temme, Appellant, v. Schmidt.

      Liquor law—Selling to man of intemperate habits—Civil liability—Proximate cause.

    In an action by a woman against a licensed saloon keeper to enforce the civil liability for selling liquor to the plaintiff’s husband, a man of known intemperate habits, after notice, it appeared that the defendant continued to sell liquor to plaintiff’s husband notwithstanding a warning not to do so, that as a result the deceased continued on a drunken debauch for a week, and after having driven his family from his home, was sent to a hospital. He escaped from the hospital with insufficient clothing and without stockings. He was brought back and after his return gangrene in the 1'eet set in and the deceased shortly afterwards died. There was medical testimony to the effect that gangrene might follow as the result of alcoholism alone, although exposure would increase the liability. Held, that it was for the jury to find whether the attack of gangrene was the result of the alcoholism and the exposure induced by it, or whether the gangrene was a separate and sufficient independent intervening cause of death.
    Mitchell, 0. J., Dean and Bbown, JJ., dissent.
    Argued Nov. 2, 1903.
    Reargued Oct. 24, 1904.
    Appeal, No. 110, Oct. T., 1903, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1902, No. 85, refusing to take off non-suit in case of Elizabeth Temme v. Philip Schmidt.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ., on reargument.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Brown, J.

      The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Joseph M. Friedman, for appellant.
    One who commits an act of negligence will be held to have foreseen and to be responsible for whatever consequences, in the nature of things, may ensue therefrom without the intervention of some other independent agency, although in advance the result actually occurring might have seemed improbable : Bunting v. Hogsett, 139 Pa. 363.
    In the following quoted cases the question of proximate cause was upon the trial left to the determination of a jury, and the action of the lower court in every instance in so doing was sustained: Haverly v. Railroad Co., 135 Pa. 50; Penna. R. R. Co. v. Hope, 80 Pa. 373; Penna., etc., R. R. Co. v. Lacey, 89 Pa. 458 ; Lehigh Valley R. R. Co. v. McKeen, 90 Pa. 122; Fairbanks v. Kerr, 70 Pa. 86 ; Oil Creek, etc., Ry. Co. v. Keighron, 74 Pa. 316 ; Fink v. Garman, 40 Pa. 95.

      L. K. Porter, with him S. G. Porter and Ed. G. Hartje, for appellee.
    If the facts are not in dispute the question of proximate cause is to be determined by the court, and not by the jury: Bunting v. Hogsett, 139 Pa. 363 ; West Mahanoy Twp. v. Watson, 112 Pa. 574.
    December 31, 1904:
   Opinion by

Mb. Justice Potteb,

This action was brought in the court below to enforce in behalf of the plaintiff and her children the civil liability of the defendant for selling intoxicating liquor to Albert Temme, the husband of the plaintiff, a man of known intemperate habits. It is alleged that, by reason of the sale of the liquor to Albert Temme, and its use by him, he became intoxica.ted, and unable to care for himself, and ivas for a considerable period stupefied and delirious, and unduly neglected and exposed himself by reason thereof, so that in consequence he sickened and died. The question in the case was, whether the liquor sold and furnished by the defendant was the proximate cause of his death. At the close of the testimony offered by the plaintiff the trial court entered judgment of compulsory nonsuit, and the subsequent refusal of a motion to take it off is here assigned as error.

If the facts were not in dispute, and if the only inferences to be drawn from them were inconsistent with the claim of the plaintiff that the death of her husband was properly chargeable to the act of defendant in selling liquor to him, then the entry of the nonsuit was proper. But, if the evidence is fairly open to another construction, then the question of proximate cause should have been submitted to the jury, to be determined as a fact, in view of all the circumstances attending it. The question always is in such a case, was there an unbroken connection in the series of events between the wrongful act and the injury? An examination of the evidence shows that Albert Temme had for years indulged to excess in drink. That, when under the influence of liquor, he acted like a maniac. That about the first of December his wife notified the defendant not to sell her husband any more whisky, but the notice was not heeded. That whisky was sold to him both at the bar of the defendant and in bottles which he brought home and drank almost continuously, keeping himself in a state of prolonged debauch. That his conduct was such that his wife and children were compelled to leave the house on or about Monday, December 2. A son about fifteen years old stayed with him, attempting to care for him. He took this boy with him to defendant’s saloon on Tuesday night and drank liquor, and got a bottle and took it home with him, and when that was done, he went back and got another bottle, and, according to the testimony of the boy, kept it up in this manner all the week, and was drunk all that time, practically going without food, and subsisting only upon whisky. On the next Sunday a physician was called in, who testified that he found on Albert Tennne symptoms of delirium tremens, and that he was suffering from alcoholism and the results of exposure. He ordered him taken to the hospital, which was done the same evening. The physician at the hospital testified that when he first saw him there, some four days afterwards, he was in a cell in the alcoholic ward, and that he was then delirious, presumably (he says) from alcoholism. It also appeared that he escaped from the hospital for a short time and wandered around in December weather, without stockings or sufficient clothing, and that he was recaptured and taken back to the hospital. A gangrenous condition developed in his feet, and he died on December 15.. Doctor McGrew, who examined him at his house and found no indication of gangrene at that time, gave it as his opinion that the gangrene which developed at the hospital was probably caused by alcoholism and exposure. In his judgment alcoholism alone would produce gangrene, and, quoting his own language, he said: “ I suppose the exposure would help it along. Certainly the man should have been confined to bed and had good attention from the first. That was my idea in sending him to the hospital. The fact of the matter was, that he would have died if the man went on the way that he was doing; he did n’t have any chance at all. That is the reason I advised him to be sent to the hospital, and I suppose his delirium continued there as he escaped from there. In fact the man should have been confined to bed in a straight-jacket and kept in bed some how or another.”

Now here was a succession of facts and circumstances beginning with the sale of liquor by the defendant to Albert Temme and extending to the time of his death, some two weeks later. Was there any intermediate cause not attributable to the original wrong, which brought about the death? Or was the succession of events so linked together as to constitute a natural whole ?

This court said in Davies v. McKnight, 146 Pa. 610: “ It is not easjr, in a case of this kind, to trace with absolute certainty the death to its proximate cause. But the liquor was undoubtedly the proximate cause of his falling into the gutter and the consequent exposure, and it was for the jury to find whether the attack of pneumonia was the result of the exposure ; in other words, a continuous causation from the furnishing of the liquor.” And in Brashear v. Traction Co. 180 Pa. 392: Where an injury to a woman resulted in premature childbirth followed by tetanus which caused her death, and the medical testimony agreed that, while tetanus resulting from childbirth is comparatively rare, there is a distinct relation between it and childbirth, especially miscarriage, and it is one of the natural and probable consequences to be apprehended, and there was no evidence that would have justified the court in saying that there was an intervening independent cause, the question of proximate cause, was held to be for the jury. Our Brother Fell said (p. 396) : “ The causal connection was shown and the continuity of effect was traced through the succession of events. No other cause of death was assigned. True, it was shown that the disease was caused by specific infection, but by the same witnesses it was shown that the miscarriage made the deceased especially liable to infection.” And again in McCafferty v. Penna. R. R. Co., 193 Pa. 339, we said (p. 344) : “ The connection between the accident and the death was not clearly established. The deceased was injured by the derailment of the car in which he was riding on April 1, 1896. He lived until April 12, 1897, and the immediate cause of his death was an abscess on the liver. A month before he died he had a severe attack of grippe. It was incumbent on the plaintiff to show with reasonable certainty that the abscess was caused by the injury received. This was difficult to do, as the disease is one whose origin is difficult to trace. The medical testimony produced by the plaintiff was in itself far from convincing, but it was fortified by proof that her son had never recovered from the effect of his injuries, and that they were apparently internal and indicated a serious derangement of the liver before he had the grippe. We are not prepared to say that the court should have instructed the jury that the testimony did not warrant the conclusion that the death was the natural and proximate consequence of the accident. The q uestion, however, is one which should be submitted with most careful instructions.”

In the present case, there is testimony upon the part of the plaintiff, which if believed by the jury, is sufficient to warrant a finding that the liquor sold by the defendant to the decedent was the proximate cause of the attack of alcoholism, and the delirium and exposure which accompanied it.. There was medical testimony to the effect that gangrene might follow as the result of alcoholism alone, although exposure would increase the liability. But it was for the jury to find whether the attack of gangrene was the result of the alcoholism and the exposure induced by it, or whether the gangrene was a separate and sufficient independent intervening cause of the death. We think that the inferences to be drawn from the facts disclosed by tbe testimony were not so clear as to justify the court in taking from the jury the determination of the proximate cause of the death.

The first assignment of error is sustained.

The judgment is reversed and a procedendo awarded.

Mb. Justice Bbown,

dissenting:

There is no positive evidence that after December 3, 1901, the appellee had furnished any liquor to the husband of the appellant. On Sunday, December 8, he was taken to the hospital. On Tuesday, the 10th, he escaped from it and wandered about hatless, having, according to the testimony of the plaintiff, “ nothing on but his shoes, no socks, no underwear, no underdrawers.” On the 12th, the resident physician of the hospital began to treat him, and saw him three or four times a day until he died. That physician was the only witness who undertook to say what the cause of death had been. He stated that gangrene in the foot was the active cause, superinduced by cold and frost, and that the deceased had been afflicted with it for probably twenty-four hours before his death. Dr. McGrew, who had been the regular physician of the deceased, did not see him after he was taken to the hospital. This witness was asked what, in his judgment, liad been the cause of the gangrene, if informed that the deceased had suffered from it a week after his admission to the hospital. The reply was, he thought alcoholism and the exposure would bring it on. He further stated, in his examination in chief, that “the man should have been kept in bed somehow or other.” In the face of this, a jury could not truly find that the liquor alleged to have been furnished by the appellee to the deceased after December 3 had been the direct, proximate cause of the death; but, by sending the case to a jury, he may be subjected to the serious consequences of a guess that he was directly responsible for the death. Such a verdict would mean that he was responsible for the escape of the deceased from the hospital out into the cold but half clad and with no stockings on his feet; for the attending physician testifies that the gangrene from' which he suffered after being admitted to the hospital resulted from exposure and was the direct cause of death. In Davies v. McKnight, 146 Pa. 610, on which the appellant mainly relies, a recovery was had and sustained because “the liquor was undoubtedly the proximate cause” of the deceased’s falling into the gutter, “ and the consequent exposure.” It cannot be pretended that liquor furnished by the appellee, whenever it may have been furnished, was the proximate cause of the exposure of appellant’s husband. I would not disturb the judgment of nonsuit.

Mitchell, C. J., and Dean, J., concur in the dissent.


source: Caselaw Access Project

author: Mr. Justice Dean,

license: Public Domain

text:
    Pittsburg Valve, Foundry & Construction Company v. Klingelhofer, Appellant.

      Contract—Agreement not to engage in trade—Limited partnership association.

    Where the chairman of a limited partnership association engages in a number of conferences which had for their object the consolidation of several concerns, and as a result of the conferences an agreement is framed by which for a large consideration the business of the limited partnership is sold to the consolidated company and a covenant is inserted to the effect that “the said parties further agree that they will not, nor shall any member of said parties concerned engage in a similar business to that now carried on by said parties for the period of ton years,” and this agreement is signed by the chairman for his own company, the chairman cannot in a suit brought to restrain him from engaging in similar business allege that he did not understand when he signed the agreement that it bound him individually.

      Contract—Equity—Understanding of party.

    A court of equity will not enforce an agreement against a child nor against one not compos mentis on the ground of mental incapacity; it may even under particular circumstances refuse to enforce what is called a hard bargain against a very ignorant man, or one much enfeebled mentally by age, on the ground of nonunderstanding. But a chancellor never requires affirmative proof that a grown man understood the meaning of a particular contract to accord with his own interpretation of it; he will conclusively presume that such a contracting party understood it in its natural, obvious meaning to the chancellor, in view of the subject of the contract and the surroundings of the parties at the making of it. Per Dean, J.
    Argued Nov. 2, 1904.
    Appeal, No. 198, Oct. T., 1904, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1904, No. 397, on bill in equity in case of Pittsburg Valve, Foundry & Construction Company v. George E. Klingelhofer et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Shafer, J.
    The court found the facts to be as follows :
    1. In March, 1900, negotiations were had between certain parties engaged in the foundry, machine, valve and pipe fitting business in the city of Pittsburg and vicinity, looking to a consolidation of their interests and the formation of a corporation, and agreements were made by them with one VanTine for the sale of their respective plants to VanTine for that purpose ; the agreements, which are all upon the same form of printed blank, containing this agreement: “ Said vendors hereby further agree that they will not nor shall any member of said vendors concerned engage in a similar business to that now carried on by said vendors except as otherwise noted in said schedule ‘ A ’ forming a part hereof .... for a period of ten years,” etc. What exceptions were contained in schedule “ A ” do not appear from the evidence. The Pittsburg Valve & Machine Company, Limited, a joint-stock association of the city of Pittsburg, made one of these agreements, and the individual members of it, including all of the defendants, executed a contemporaneous agreement ratifying and confirming the ■contract made by the company with VanTine.
    2. The negotiations above referred to were never carried into effect and were abandoned. Sometime in the summer of 1901, the parties who had been negotiating with VanTine or with each other through VanTine and one or more additional parties took up again the matter of forming a corporation to take over their respective properties, and held meetings at which a representative of each of the firms conducting the negotiations were present, the Pittsburg Valve & Machine Company, Limited, being always represented by the defendant George E. Klingelhofer, who was the secretary of the meetings, and he was authorized to act in the matter, and also for his brothers, the other two defendants. The result of these meetings was that it was agreed, the defendant George E. Klingelhofer concurring, that a company should be formed and the properties of the various parties taken over by the new company according to tbe terms of tbe VanTine agreements. Counsel were employed to effect the consolidation and papers were drawn up to be signed by each of the component companies or partnership, -which were in fact signed by them on or about October 3, 1900, that which was signed by the Pittsburg Valve & Machine Company, Limited, being set forth as exhibit “ A ” of the bill.
    3. This agreement recites the desire to form a corporation on the part of the parties concerned, naming them, and that the parties by their five separate agreements, including the present contract, mutually agree to contribute to the corporation the leasehold and personal property owned by them respectively in payment of their shares. It then sets out that in consideration of $1.00, and of the other contracts executed by the parties, that the Pittsburg Valve & Machine Company, Limited, promises and agrees with the other parties, naming them, to contribute to the company $165,000 of the capital stock by conveying to it certain property set out in the agreement and that they will contribute to the expense of the organization of the company and join in its organization. The agreement then continues: “ The said parties further agree that they will not, nor shall any member of said parties concerned, engage in a similar business to that now carried on by said parties except with the written consent of the said corporation for the period of ten years from the third day of October, 1900, within the United States of America east of the Mississippi river.” This contract was signed as follows :
    “The Pittsburg Valve & Machine Company, Ltd.
    “Per G. E. Klin geliio fee, Chairman.
    “A. Glamser, Secretary.”
    4. At or about the same time agreements in writing were drawn up by counsel to be signed by the individual members of each of the five companies or partnerships concerned which recited the above mentioned contract, and then containing a covenant on the part of each of the officers, directors, members and stockholders of the respective companies, that they would not individually or collectively, within ton years thereafter, engage in this business, and a statement that the covenants therein contained should inure to the benefit of the corporation when formed. A copy of this agreement or proposed agreement is printed as exhibit “B ” of the bill.
    5. All five of the agreements in the form of exhibit “ A ” of the bill were executed and delivered by the respective parties, and the members and stockholders of the other four companies and partnerships executed and delivered the agreement in the form shown by exhibit “ B,” but it was not signed, so far. as appears at least, by all of the members of the Pittsburg Yalve & Machine Company, Limited, and whether signed or not it never came into the possession of the other parties to the agreement or of the corporation, and there is no evidence that it was signéd by Charles T. Klingelhofer or W. L. Klingelhofer.
    6. A charter was granted ou October 29, 1900, under the corporation act of 1874 and its supplements, to the plaintiff company to engage in the general foundry, machine, valve and pipe fitting business in the city of Pittsburg, being the company the formation of which was contemplated and effected by the agreements above recited. The several companies above mentioned, including the Pittsburg Yalve & Machine Company, turned over their property and assets to the new company so formed according to the agreement and received therefor for distribution, among other members or stockholders, stock for the amounts agreed upon, the stock to which the Yalve & Machine Company was entitled being delivered to George E. Klingelhofer, who distributed it among the members of the limited company according to their interests, the full delivery of the stock and distribution among the members not being completed, however, until a considerable time after October, 1900.
    7. Upon its incorporation the plaintiff company proceeded to conduct the business for which it was incorporated; and employed the defendant George E. Klingelhofer as its general manager, the defendant Charles T. Klingelhofer as foreman of the pattern department, and the defendant W. L. Klingelhofer as a salesman.
    8. Sometime after the formation of the company and after it had entered upon the conduct of the business, George E. Klingelhofer was asked by one or more of the officers of the company with regard to the contract to be signed by the individual members of his former company in form of exhibit “ B,” and he told them that he had it signed by all but one of the members of the company, but it does not appear ever to have been delivered to the company.
    9. In the month of July, 1901, disputes arose between George E. Klingelhofer and the directors of the company with regard to the management of the business, and he resigned as general manager.
    10. Sometime in the spring of 1902 a company, called the American Foundry & Construction Company, was organized to carry on the same business as that carried on by the plaintiff, and sometime after its organization George E. Klingelhofer was employed as its general manager, and Charles T. Klingelhofer as superintendent of some of its departments, and W. L. Klingelhofer as a salesman. The American Foundry & Construction Company is in competition with the plaintiff company at Pittsburg and throughout the country east of the Mississippi river.
    11. There is no evidence that Charles T. Klingelhofer or W. L. Klingelhofer ever in fact knew the contents of the agreement, exhibit “ A,” or that George E. Klingelhofer had agreed or undertaken to agree for them that they would remain out of the business.
    The court entered the following decree :
    And now, to wit: October 3, 1904, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as folows, to wit:
    That an injunction issue under the seal of this court perpetually enjoining and restraining the said George E. Klingelhofer from engaging, either directly or indirectly, as principal, agent or employee of any person, partnership or corporation, or in any other manner, howsoever, in the general foundry, machine, valve and pipe fitting business, or any branch thereof, within the United States east of the Mississippi river, and particularly from engaging in said business for, or with or in the employment of the American Foundry & Construction Company, its successors or assigns, or continuing in its employment or assisting in its business for the period of ten years from October 3, 1900, without the consent of the plaintiff company, and that the defendant George E. Klingelhofer pay the costs of these proceedings ; and that the bill be dismissed as against Charles T. Klingelhofer and W. L. Klingelhofer.

      Error assigned was the decree of the court.

      A. Leo. Weil, with him Chas. M. Throgy, for appellant.
    In a court of equity, unless it is perfectly clear that the minds of the parties have come together and been in accord upon all the material terms of the agreement, a chancellor ought to decline to interfere: Wistar’s App., 80 Pa. 484; Kendall v. Almy, 2 Sumn. 278; Hennessey v. Woolworth, 128 U. S. 438 (9 Sup. Ct. Repr. 109) ; Dalzell v. Dueber Mfg. Co., 149 U. S. 315 (13 Sup. Ct. Repr. 886).
    Even if there had been an agreement by appellant not to engage in business in competition with appellee, on the facts adduced in evidence in this case no injunction should have issued restraining appellant from accepting employment from the American Foundry & Construction Company: Harkinson’s App., 78 Pa. 196.
    The court erred in applying to the facts of this case the decision of this court in Pittsburg Stove and Range Company v. Pennsylvania Stove Company, 208 Pa. 37, and in assuming that in every case, it is a violation of a contract not to engage in business for the contracting party to accept employment.

      W. K. Shiras, of Sidras Dickey, for appellee.
    December 31, 1904:
   Opinion by

Mr. Justice Dean,

Certain partnerships and companies engaged in the foundry, machine, valve and pipe fitting business at Pittsburg in the year 1900 entered into negotiations with a view to consolidating all their concerns into a single company. One VanTine was the active party in promoting this effort at consolidation. The different companies all signed this consolidation agreement on a separate-blank, prepared for that purpose, in which each stipulated for the sale of its plant to the new company for an ample consideration, and that neither the firm nor company nor any member of it would engage in a similar business to that then carried on for a period of ten years. The Pitts-burg Valve & Machine Co., Limited, made one of these agreements with VanTine; these three defendants were partners in that company and all three formally ratified it. The Van-Tine consolidation was not carried out, but the next year, 1901, the matter was again taken up and the VanTine negotiations were adopted as the basis for a new company. Many meetings were held and at each one of them the defendants’ company was represented by George E. Klingelhofer who acted as secretary and who was authorized to act for his brothers the other two defendants. It was finally agreed, that a now company should be formed thereafter to be incorporated ; the old companies to be taken over by the new according to the terms of the VanTine agreement. There were five separate companies or partnerships which agreed to become members of the new one, among them the Pittsburg Valve & Machine Company, then carried on by defendants. Each company was to contribute its leasehold and other property in payment for their shares in the new. The Valve & Machine Co., Limited, transferred its property to the new company at the price of $165,000 to be paid in the new company’s stock. On receiving the stock the Pittsburg Valve & Machine Company signed a written agreement in which is this stipulation: “ The parties further agree that they will not nor shall any members of said parties concerned, engage in a similar business to that carried on by said parties except with the written consent of said corporation for the period of ten years from October B, 1900, within the United States of America east of the Mississippi river.” This agreement was signed by the Pittsburg Valve & Machine Company, per G. E. Klingelhofer, Chairman, A. Glamser, Secretary.

It was agreed orally about the same time that all these separate contracts should inure to the benefit of the new company ; it was not shown that this contract was signed by Charles T. and W. L. Klingelhofer, the other two defendants. Upon its incorporation and commencement of business, George E. Klingelhofer was appointed its general manager and Charles T. foreman of the pattern department. In July, 1901 George E. had. some difficulty with the officers of the company and resigned. Early in 1902, the American Foundry Construction Company was organized to carry on a business similar to that of the valve company and all three of the defendants were employed in the several departments, George E. as foreman and general manager. This company became a competitor of the plaintiff company in the same business. The plaintiff then filed this bill against the three defendants to enjoin them and each of them from continuing in the employment of the competing company for ten years in the territory east of the Mississippi. The court below after a full hearing directed that an injunction issue against George E., but for the reason that the evidence failed to show that Charles T. and W. L. were bound by the company agreement signed by their brother, dismissed the bill as to them. Thereupon George E. brings this appeal.

The principal error complained of, at least the one most earnestly argued here, is the first, that: “ There was no proof sufficient to enable a chancellor to frame and make the agreement not to engage in business on the part of the individuals which was the subject of the discussion of the parties so far as George E. Klingelkofer is concerned, there being no evidence of what he understood the agreement to be, its terms, exceptions, conditions or provisions.”

It will be noticed that this point really turns on the capacity of George E. Klingelhofer’s understanding. A court of equity will not enforce an agreement against a child nor against one not compos mentis on the ground of mental incapacity; it may even under particular circumstances refuse to enforce what is called a hard bargain against a very ignorant man, or one much enfeebled mentally' by age, on this ground of non-understanding. But a chancellor never requires affirmative proof that a grown man understood the meaning of a particular contract to accord with his own interpretation of it; he will conclusively presume that such a contracting party understood it in its natural, obvious meaning to the chancellor, in view of the subject of the contract and the surroundings of the parties at the making of it. Here was the defendant, presumably an intelligent man, capable of supervising and managing a large manufacturing business; the subject of the contract was the very business in which he had long been engaged; his purpose was to sell it, if not at a very high price at a very full one ; he and his fellows in the same business had been discussing their purpose at meetings both under the VanTine proposition and the one which was consummated; this last one, signed by the Valve Company, per G. E. Klingelhofer, chairman, stipulates that neither George E., who affixed his signature, nor the firm, should engage in a similar business for ten years. These words in large part expressed exactly the proposed purpose of the consolidation. Neither the companies nor any member of the companies, were to engage in a similar business. As the evidence shows, this was the intention of all the members and a question which entered into their preliminary discussions. It is argued by appellant that the agreement signed by George Klingelhofer was understood by him to be executed by the company alone; that while agreements were perhaps to be made in the future and signed by the individuals composing the partnership, such agreements never were made and signed by the individual members of the Valve Company, therefore he never understood that as an individual he was bound not to engage in a similar business. The agreement which his company executed by him as chairman did not state that another agreement was to be executed in the future signed by the individuals of the partnership, in fact it says the very reverse; it says that: “ The said parties further agree that they will not nor shall any members of said parties concerned engage in a similar business to that now carried on by said parties.”

To what extent the company could bind the individual members of the partnership who did not sign this agreement or who had no knowledge of its terms we do not now decide, but surely on every principle of equitable estoppel this leading member of the partnership who framed the partnership agreement which professed partnership authority to bind the individuals of the partnership, and expressly undertook to bind himself and them as individuals cannot be heard to deny that the agreement bound him. He signed it, suggested its language and delivered it to the new company which on the strength of it paid the full consideration. If George E. did not then understand it bound him individually, it was his duty to speak out, or forever after hold his peace. Not having spoken when it was his duty to speak he will not be heard now when equity demands that he keep silent. Then after acting for his partnership he personally received the partnership share of the stock $162,600 and $22,000 cash. He now argues, that he never understood, the agreement which- he signed for the company as binding upon him as an individual and therefore boldly disregards it. Even if the precedent agreement was unauthorized, nevertheless, the subsequent conduct of the company, as found in the sixth finding of fact, was a full ratification of it. The company and all its members with knowledge of the agreement are bound by it after accepting the consideration. There is nothing of such merit in the remaining assignments of error as calls for discussion; they are all overruled and the decree is affirmed.


author: Mb. Justice Dean,

text:
    O’Leary v. Wabash, Pittsburg Terminal Railway Company, Appellant.

      Railroads—Eminent domain—Condemnation of dwelling house—Widening —Terminals—Act of March 17, 1869, P. L. 12.
    Where a railroad company had acquired for terminal facilities, by purchase, all of the properties in a city block, except two, one of which was a dwelling house in the occupancy of its owner, and after the decision of Dryden v. Ry. Co., 208 Pa. 316, and before a single train had been run on the road, the directors adopted a resolution to condemn the dwelling house for the purpose of widening the terminal site, a court of equity will enjoin any proceedings under the resolution.
    Argued Nov. 2, 1904.
    Appeal, No. 199, Oct. T., 1904, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1904, No. 887, on bill in equity in case of Dennis O’Leary v. Wabash, Pittsburg Terminal Railway Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Collier, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in granting a preliminary injunction.

      A. M. Weeper, with him W. M. Lindsay, for appellant.
    The act of 1869 has been construed by this court to empower a railroad company to take a dwelling house in the occupancy of the owner: Dryden v. Ry. Co., 208 Pa. 316 ; Glaser v. R. R. Co., 208 Pa. 328.
    If there has been a wrong committed, the proper party to complain is the commonwealth: West Penna. Railroad Co.’s Appeal, 104 Pa. 399; Rudolph v. Railroad Co., 166 Pa. 430; Gaw v. Railroad Co., 196 Pa. 442; Oliver v. Bridge Co., 197 Pa. 344; Winsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    It is well settled by authority in this state that the action of the board of directors of a railroad company in locating its railroad and appropriating private property for its corporate purposes, cannot be attacked collaterally, nor can the discretion vested in it to do so be reviewed by the courts: Com. v. Railroad Co., 27 Pa. 339 ; Railroad Co. v. Young, 33 Pa. 175; Struthers v. Railway Co., 87 Pa. 282; Railroad Co. v. Speer, 56 Pa. 325; Parke’s Appeal, 64 Pa. 137; Williamsport, etc., R. R. Co. v. R. R. Co., 141 Pa. 407; Dryden v. Railway Co., 208 Pa. 316.
    When a railroad company condemns land, it is of necessity the judge of how much is required for its use : Pittsburg, etc., Railway Co. v. Peet, 152 Pa. 488; Pittsburg Junc. R. R. Co.’s Appeal, 122 Pa. 511.
    It appearing by the record in this case that the appellant company exercised the power conferred upon it by its charter and by law in appropriating the dwelling house of the appellee, the appellee’s right to an injunction in this case is not clear; and an injunction will not be granted unless the complainant’s right is clear and free from doubt: Philadelphia’s Appeal, 78 Pa. 33; Hoffman’s Appeal, 10 W. N. C. 401; Electric Railway Co. v. Sayre Boro., 156 Pa. 23; Smith v. Railway Co., 156 Pa. 5; Thouron v. Railway Co., 174 Pa. 366; Shroder’s Appeal, 1 W. N. C. 528.

      Henry A. Davis, for appellee.
    December 31, 1904:
   Opinion by

Mb. Justice Dean,

The appellant attempted in the court below to apply the decision of this court in Dryden v. Railway Co., 208 Pa. 316, to an entirely different state of facts, an application not warranted by any reasonable interpretation of the acts of 1849 and 1869, nor certainly by anything we said in that decision, nor by any-tiling that was said by the court below in the decree which we there affirmed. We showed that by act of 1849, full power as to the original location of the railroad was lodged in the discretion of its board of directors; that discretion was, however, limited by the plain restriction that they were prohibited from appropriating in its location a dwelling-house in the actual occupancy of the owner without his consent. 'We then stated, by way of illustration, a well-known fact, that when the original taking had been a strip as wide only as that authorized by the law, and the opening and operation of the railroad so stimulated traffic and business of all kinds, that business structures and even dwellings pressed close to the roadbed on each side, then to provide for the increased traffic the room imperatively required for the roadbed, the legislature, twenty years after the passage of the first act, adopted the act of 1869. It was passed to meet a condition which had developed after the passage of the first act. So remarkable had been the growth of business and population, and so urgent had become the demands of both, the widening act of 1869 was passed. And we then said, that the power to take for purpose of widening is confined to a taking for that purpose alone. Any attempt to appropriate for some other purpose, or in excess of what was necessary for the lawful purpose, would not be within the act. We have not a doubt of the soundness of our interpretation of these acts as announced in that decision and have no notion of departing from it or in any particular modifying it; we only say that under the facts of this case it is outside both the words and intention of the act of 1869, and the Dryden case by irresistible implication so declares.

Glance at the undisputed facts. The plaintiff owned and had occupied for about forty years a brick dwelling in the city of Pittsburg; it was situated on a square bounded by Redoubt alley, Fourth avenue, Ferry street and Third avenue. The Pittsburg, Carnegie & Western Railroad, a Pennsylvania corporation, combined with other roads chartered by other states, the combination forming the defendant company. At the time its road was commenced, the board of directors thought it would need the whole square on which the plaintiff’s house stood for terminal facilities. The company followed up this resolution by acquiring by purchase nearly all the property in Ibis square except plaintiff’s and one other. It needed plaintiff’s property, not for its rail route or roadbed, but for terminal purposes, such as passenger station and warehouses.

Athough the railroad had been in process of construction for some time, certainly during the years 1902 and 1908, and the company had by purchase and condemnation proceedings acquired all the property in the square under the first resolution already referred to, still two had not been acquired by either method, one of them the dwelling of this plaintiff. Whether the failure to acquire was because ho and the company could not agree upon a purchase price does not appear, but on November 3, 1903, the Dryden case came up for argument before this court; a reargument was ordered before a full bench at Philadelphia, where it was again argued at January Term, 1904. On March 7 following, the opinion of this court affirming the decree of the court below was handed down. On July 29 following the board of directors of defendant company was called together for the purpose of considering the widening and straightening of the railway at its Pittsburg terminal. The chief engineer laid before the board maps made by him of what in his opinion the company should require for the safe transportation of persons and property. The board then adopted a resolution, that all property in the square specified in the first appropriation on which was the plaintiff’s house and lot, should bo taken. Then this bill was filed to enjoin the railroad company from condemning the property for the purpose of widening the terminal site. It further appeared that the company for two or more years had by purchase and condemnation proceedings been acquiring property in the vicinity of O’Leary’s house not, however, attempting to condemn any dwelling house in the actual occupancy of the owner.

What is the obvious inference from these facts? It is that the company in the first location of its route considered that they needed the square on which O’Leary’s dwelling house stood, for construction purposes; that they acquired all except his and one other property for these purposes; that now, according to the plans, it proposes to acquire it for the same purposes, and this method is prompted by a manifest perversion of our decision in the Dryden case. No discussion of the meaning of the words “ original construction ” used in the Dryden case is necessary. It would be a waste of time to define words which have no doubtful signification. The attempt of appellant is, not to widen a road already constructed, but to construct a road with terminals which theretofore had no existence. When this bill was filed not a freight train had yet been run on it; how under the act of 1869, could it have been cramped for room to conduct its traffic by an increase in traffic which it could not have foreseen twenty years before, as were the railroads and people when they demanded the relief given by the act of 1869 ? The appellant under a pretense of widening, in the face of our plain intimation in the Dryden case, seeks to institute under the act of 1869 proceedings for which that act gives no authority.

But appellant’s counsel goes further and argues: “ That as a matter of law, the action of the directors of the appellant company appropriating said dwelling house cannot be attacked by appellee in this proceeding and their discretion in this regard cannot be reviewed by the courts.” That if there has been a wrong committed the proper party to complain is the commonwealth. We grant, that much is confided to the board of directors of a railroad company in the route adopted by them, the width of the road and the manner of construction, and we have declared over and over that we will not interfere in the exercise of discretion under the law. The cases showing the uniformity of our decisions on this subject are largely cited by counsel for appellant. But no one of them supports his argument. The point he endeavors to make is tersely stated by Justice Bbown in the late case of Gaw v. Bristol, etc., R. R. Co., 196 Pa. 442, thus : “ It is a novel doctrine, that a court of equity can be appealed to for its decree to restrain the doing of that which by the express terms of the statute is declared to be lawful.” What appellant asks us to do here is the converse of this, that is, it appeals to us to do that which palpably violates the act of 1849 without a semblance therefor of authority in the subsequent act of 1869; and this under the guise of a still more novel doctrine, that we shall surrender to the board of directors of a railroad company, not only the discretion to locate and determine the route of their road, which time and again we have declared they have, but our legal discretion to interpret the statute. This would indeed be a novel doctrine. Perhaps some day under some other constitution that point will be reached but it certainly has not been arrived at under our present one.

The parties having consented that this hearing shall be treated as one from final decree, we therefore overrule all the assignments of error and affirm the decree of the court below. We remit the record to that court with the direction that it carry into effect its decree.


author: Mb. Justice Mestbezat,

text:
    Munhall Borough, Appellant, v. Mifflin Township.

      Townships—Boroughs—Apportionment of rights and liabilities between borough and township—Act of June 12, 1878, P. L. 184—Equity.

    Where a borough has been set off from a township, a court of equity has jurisdiction under the Act of June 12, 1878, P. L. 184, to ascertain, adjust and apportion between the borough and the township not only the liabilities of the township existing at the time of the incorporation of the borough, but also the assets of the township existing at the date of the borough incorporation. The fact that the township may have paid off all the debt after the date of the incorporation and before the filing of the bill, will not defeat the right of the borough to have an apportionment of the assets.

      Statutes—Construction of statutes.

    It is an established rule, in construing a statute, that the intention of the lawgiver and the meaning of the law are to be ascertained by viewing the whole and every part of the act. One part of a statute must be so construed by another that the whole may, if possible, stand; and that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. If any section be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another.
    Argued Nov. 3, 1904.
    Appeal, No. 201, Oct. T., 1904, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. T38, dismissing bill in equity in case of Munhall Borough v. Mifflin Township.
    Before Mitchell, C. J., Dean, Fell, Blown, Mestbezat, Potteb and Thompson, JJ.
    Reversed.
    Bill in equity for the adjustment of liabilities and assets between a borough and township. Before Rodgebs, J.

      The opinion of the Supreme Court states the ease.

      Error assigned was the decree of the court dismissing the bill.

      J. Merrill Wright, with him J. E. MoKelvy and John F. Sand-son, for appellant,
    cited: Darby Twp. v. Lansdowne Borough, 174 Pa. 208; Sugar Notch Borough, 192 Pa. 349.

      Chas. A. O’Brien, with him J. II. W. Simpson and Chas. W. Ashley, for appellees,
    cited: Munhall Borough School Dist. v. Mifflin Twp. School Dist., 207 Pa. 638.
    December 31, 1904:
   Opinion by

Mb. Justice Mestbezat,

This is a bill in equity filed by the borough of Munhall against the township of Mifflin under the provisions of the Act of June 12, 1878, P. L. 184, praying, inter alia, “for an adjustment, apportionment and division of the rights, liabilities and assets, between it and the township of Mifflin, and for the ascertainment of the indebtedness of the said township, if any such there be, as they existed on June 24,1901, at the time of the incorporation of the borough of Munhall.” The eleventh paragraph of the bill, as amended, avers : “ That there remains uncollected but due and owing said township various amounts of taxes for past years, as well as for the year 1901, and that the township has various other assets, including stone crushers, machinery, tools, etc., the number, character, amounts and values of which are to your orator unknown, and that the said township has certain liabilities and indebtedness, the kinds and amount of which are to your orator unknown.” The defendant’s answer to this paragraph is as follow: “ The averments in the eleventh paragraph of the plaintiff’s bill are denied as stated. A full statement of the facts of the matters therein complained of are as follows: There remains uncollected, but due and owing said township a portion of the taxes for the years 1901 and 1902, and that the township has stone crushers, machinery and tools, but has no liabilities or indebtedness of any kind whatsoever.” As to the assets and liabilities of Mifflin township at the date of the decree incorporating the borough of Munhall, the court found as follows : (3) That at the date of said decree the township of Mifflin had certain assets, consisting of moneys, uncollected taxes and personal property amounting to about $28,000. (4) That at the date of said decree the township of Mifflin had certain indebtedness on current accounts amounting to probably $5,000, which was paid out of funds of said township, before the institution of this action.” The learned trial judge held that “ under the facts as found, the court has no jurisdiction,” and dismissed the plaintiff’s bill.

In this interpretation of the act of 1878, we do not concur. It is entirely too narrow to meet the manifest intention of the legislature in passing it. The act is entitled “ An Act providing for the adjustment of all indebtedness between a township and one or more boroughs erected therefrom, also providing for the adjustment of the indebtedness of a township changed or merged into one or more boroughs.” The first section of the act provides, inter alia: “ That eveiy borough which has been or may hereafter be erected out of any township or parts of adjoining townships, shall share, in just proportion, in the rights and liabilities of said township or townships, existing at the time of its incorporation; the proportion of each borough as aforesaid to be ascertained by reference to the assessment of said township or townships for the year in which such borough was incorporated.” And the second section provides: “ Whenever any township has been or may hereafter be entirely merged into more than one borough and the township shall thereby have ceased to exist, the rights and liabilities of said township shall devolve, in just proportion, upon the said several boroughs, but no boi’ough shall be entitled or liable as aforesaid, except as to such rights and liabilities as existed at the time of its incorporation, and the proportion of each borough, as aforesaid, shall be ascertained in like manner as prescribed in the first section of this act.” The subsequent sections of the statute confer jurisdiction on the court of common pleas, sitting in equity, “by a suit or suits in equity,” on the application of a creditor or of the township or borough to “ equitably adjust and apportion said indebtedness ” between the township and borough and thereupon to “ decree the proportion of said indebtedness which each township and borough shall pay.” They also provide the manner in which such jurisdiction shall be exercised. In section three of the act, it is enacted that “in making said adjustment, as applied to each of said boroughs, reference shall be had to the time of incorporation of such borough, and to the debts then existing, whether since paid or not, and also to the several amounts of township taxes then unexpended; and the said adjustment shall be based upon the assessment of said township or townships for the year in which such borough is incorporated.” And in the seventh section it is provided that each borough shall receive its proper share of credit for any indebtedness due the township and of any unappropriated balance in the township treasury at the end of the year in which the borough shall have been incorporated.

“ It is an established rule, in construing a statute,” says the learned author of Brooms Legal Maxims (p. 585), “ that the intention of the lawgiver and the meaning of the law are to be ascertained by viewing the whole and every part of the act. One part of a statute must be so construed by another that the whole may, if possible, stand; and that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant. ... If any section be intricate, obscure or doubtful, the proper mode of discovering its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another.” In Coke on Littleton (881a), it is said that “ it is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.” In 26 Am. & Eng. Ency. of Law (2d ed.), 618, citing authorities which sustain the text, it is said: “ A construction which would leave without effect any part of the language used should be rejected if an interpretation can be found which will give it effect.” And in Umholtz’s License, 191 Pa. 177, Green, J., says: “ Statutes are to be so construed as best to effectuate the intention of the legislature, though such construction may seem contrary to the letter.”

The statute under consideration became a law twenty-six years ago. Apparently there has heretofore been no difficulty in construing it, as we have been referred to but one case, Darby Township v. Lansdowne Borough, 174 Pa. 203, decided eighteen years after its enactment, involving an interpretation of the act. The question presented here, however, was not raised in that case; but in making the adjustment there the personal assets as well as the liabilities of the township were taken into consideration and there was no objection or exception to this action of the trial court. In the interpretation of the statute there is no difficulty in giving effect to all parts of it, and if we do so, the purpose of the legislature is manifest. The first two sections declare that the newly created borough shall share in the “ rights and liabilities ” of the township as of the date of the borough’s incorporation and that its proportion thereof shall be ascertained by reference to the township assessment for the year in which the borough was incorporated. The statute, after thus declaring that a borough erected as therein provided shall share in just proportion in the rights and liabilities of the township, then provides in the third section that whenever any borough has been erected “as aforesaid,” the court of common pleas shall have power to ascertain the indebtedness of the township and to equitably adjust and apportion it between the township and borough and decree the proportion that each shall pay. Standing alone, the third section, providing the mode of procedure, might be construed to authorize only an adjustment of the liabilities between the parties, but when read, as the language contemplates it shall be, in connection with the two preceding sections of the act, it is manifest that the court in exercising the authority conferred by the section “ to equitably adjust and apportion said indebtedness,” should consider the rights and liabilities of the township and the proportion or share thereof payable to and by each of the parties as directed in the former sections of the act. The adjustment is to be made on the equity side of the court, and by “ a suit or suits in equity.” Hence it is purely an equitable proceeding to ascertain the indebtedness of the township and “ to equitably adjust and apportion said indebtedness,” which can only be done by taking into consideration the shares of each party in the rights and liabilities of the township, ascertained in the manner provided in the first section of the act. This does equity between the borough and township by awarding to each municipality its share of the assets and imposing on each its share of the liabilities, which is clearly the intendment of the statute. It also gives force and effect to every part of the act which accords with the well-settled rules of statutory construction as announced in the authorities above cited.

If, on the other hand, we hold with the trial court that its authority under the act is limited to an adjustment of the township indebtedness regardless of the share of the parties in the rights and liabilities of the township, we ignore the express provision of the first two sections that the borough shall share in the rights as well as the liabilities of the township and the evident purpose of the statute to confer jurisdiction on the court to recognize and enforce that provision in its decree. We also permit one of the municipalities to retain any excess of assets it may have at the date of the decree incorporating the borough, thus permitting it, possibly, to hold all the assets of the original municipality while requiring the other party to pay its share of the indebtedness. This case illustrates very forcibly what result may be attained under such construction of the act. At the time of the incorporation of the borough the assets of the township, as found by the court, were 128,000, all of which was retained by the township, and the indebtedness was 15,000, the larger proportion of which will, under the act of 1878, be paid by tlie borough. Such manifestly could not have been the intention of the legislature in passing the act, and is directly in the teeth of the statute which declares that the borough shall share, in just proportion, in the rights and liabilities of the township existing at the time of its incorporation.

It appears that the township paid the indebtedness against it after the decree incorporating the borough had been entered, and the learned trial judge held that if it were not for this fact, the act of 1878 would apply. But he overlooked the fact that it is the indebtedness “ existing at the time of the incorporation ” of the borough, “ whether since paid or not,” that confers statutory jurisdiction on the court, and hence the voluntary payment of it subsequent to that date would not oust the jurisdiction but give the party a right to claim a credit for the amount paid in the adjustment made in the proceedings authorized by the statute.

We are of opinion that the court below had jurisdiction under the act of 1878 to adjust the indebtedness of the two municipal bodies, and tbat in doing so the township should account for the personal assets found to be in its hands at the date of the incorporation of the borough.

The decree is reversed with a procedendo.


author: Mb. Justice Potteb,

text:
    Klee v. Trauerman, Appellant.

      Contract—Payment in particular manner—Collateral.

    An action was brought upon a written agreement, into which the defendants had entered, reciting that they had assigned to plaintiffs a mortgage and certain policies of life insurance, having cash surrender values, to secure plaintiffs for a loan of $11,500 theretofore made by them to defendants. Plaintiffs agreed to reassign the securities if the loan was paid within one year. Defendants agreed that if the loan was not paid within one year, the plaintiffs might realize from the insurance company the surrender value of the policies, and might sell the mortgage; the proceeds so realized to be applied to the payment of the debt of the defendants with interest and costs. Defendants further agreed that in case the sum realized from the policies of insurance and the sale of the mortgage was not sufficient to pay in full the indebtedness, they would pay to the plaintiffs “the amount of such deficiency as may appear after a full settlement with the insurance company, and sale of the mortgage.” The plaintiffs claimed to recover the whole amount without having made any attempt to realize upon the collateral. Held, that the suit was different from that on a promissory note with collateral, and could not be maintained.
    Argued Nov. 3, 1904.
    Appeal, No. 202, Oct. T., 1904, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1904, No. 978, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Simon J. Klee and Leon S. Klee, copartners, trading as Joseph Klee’s Sons, v. B. S. Trauerman and I. G. Trauerman, copartners, trading as B. S. Trauerman & Brother.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestkezat, Pottek and Thompson, JJ.
    Reversed.
    Assumpsit upon a written agreement.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

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

      A. Leo. Weil, with him M. R. Trauerman, A. O. Teplitz and Olías. M. Thorp, for appellants.
    The case is exactly analogous to that of parties giving a mortgage to secure a debt, without any bond or agreement. The mortgagee must then look to the security alone : Scott v. Fields, 7 Watts, 860 ; Baum v. Tonkin, 110 Pa. 569; Reap v. Battle, 155 Pa. 265; Schweyer v. Walbert, 190 Pa. 834, 338; Culver v. Sisson, 3 N. Y. 264; Weed v. Covill, 14 Barb. 242 ; Fidelity Insurance & Trust Co. v. Miller, 89 Pa. 26.

      Thomas M. Benner, with him Richard B. Scandrett and James E. Barnett, for appellees.
    The contract is an ordinary contract of pledge and collateral security : Lewis v. Bank of Penn Twp., 3 Whart. 531; McKean v. Wagenblast, 2 Grant, 462 ; Lishy v. O’Brien, 4 Watts, 141; Warner v. Wenrich, 34 Legal Int. 297; First Nat. Bank v. Rush, 56 U. S. App. 556 (85 Fed. Repr. 539) ; Stearns v. Marsh, 4 Denio, 227; Hancock v. Franklin Ins. Co., 114 Mass. 155 ; Stirling Co. v. Chamberlain Coal Co., 2 Lackawanna Legal News, 134.
    December 31, 1904:
   Opinion by

Mb. Justice Potteb,

Judgment was entered in this case for want of a sufficient affidavit of defense. The action was brought upon a written agreement, into which the defendants had entered, reciting that they had assigned to plaintiffs a mortgage and certain policies of life insurance, having cash surrender values, to secure plaintiffs for a loan of. $11,500, theretofore made by them to defendants. Plaintiffs agreed to reassign the securities if the loan was paid within one year. Defendants agreed that if the loan was not paid within one year the plaintiffs might realize from the insurance company the surrender value of the policies, and might sell the mortgage, the proceeds so realized to be applied to the payment of the debt of the defendants, with interest and costs. Defendants further agreed that in case the sum realized from the policies of insurance and the sale of the mortgage was not sufficient to pay in full the indebtedness, they would pay to the plaintiffs the amount of such deficiency as may appear after a full settlement with the insurance company and sale of the mortgage.”

Nowhere in the contract is there any agreement to pay the debt, except in the manner above specified. In this the agreement differs from an ordinary collateral note, in which there is an express covenant to pay a certain amount of money, and in addition an assignment of collateral and a power of sale is given by the contract. In such cases the creditor may undoubtedly pursue his remedy against the debtor by bringing suit upon the independent promise to pay the money, and may if he choose, hold the collaterals in reserve. But the present case is not such a one. Here the action is strictly upon the agreement, and it, by its terms, requires the creditors to realize upon the collaterals, and provides for nothing more than the making good of the deficiency, if any such there be, after a full settlement with the insurance company and the sale of the mortgage. Having entered into a special contract, which provided for the application of the collaterals in payment of the indebtedness, with an agreement to make good only the deficiency, these special provisions must be considered as controlling. They represent the intentions of the parties, undoubtedly. Nor is there anything unreasonable in the stipulation that out of the collaterals turned over as security the creditors should realize as much as possible, and should then look to the debtors only for the remainder, which would be, comparatively speaking, a small sum.

The court below apparently accepted the view urged by counsel for the appellee, that this was the ordinary contract of pledge and collateral security. The fact seems to have been overlooked that the parties to this transaction made a special contract which provided a special mode of procedure, and called for the disposal of the collaterals before proceeding against the debtors.

The citation of such cases as Hartranft’s Estate, 153 Pa. 530 and O’Neill v. Whigham, 87 Pa. 394, by counsel for the appellees, makes it apparent that they lost sight of the distinction between the form of the agreement made in this case, and that of an ordinary promissory note, with which collaterals have been deposited.

Those cases were upon promissory notes, containing a direct arid independent promise, by the debtor to pay, and the collateral agreement was in addition to and independent of it. But here, as we said in the outset, the action is strictly upon the agreement, and under its terms the collateral must be converted and applied upon the indebtedness, before the defendants can be pursued, and then they are liable only for the deficiency.

The assignments of error are sustained and the judgment is reversed.


author: Per Curiam,

text:
    Reformed Presbyterian Church v. Livingston, Appellant.

      Principal and agerú—Negligence—Fraud—Mortgage.

    On a scire facias sur mortgage it appeared that the plaintiffs, the mortgagees, before taking the mortgage in suit, had employed an attorney at law to see that the “proposed mortgage was a first lien upon the property offered.” As a matter of fact there was an existing mortgage upon the premises, but the attorney falsely certified that the proposed mortgage was a first lien. Upon this certificate plaintiffs delivered their check to the attorney payable not to him, but to the mortgagor, the defendant. The mortgagor indorsed the check and delivered it to the attorney in order that the latter might pay off the first mortgage. Instead of doing so he embezzled the money. Held, that when the mortgagor indorsed the cheek and delivered it to the attorney, he constituted the latter his agent, and he must therefore bear 'the loss.
    Argued Nov. 8, 1904.
    Appeal, No. 203, Oct. T., 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1902, No. 501, on verdict for plaintiff in case of trustees of the Synod of tlie Reformed Presbyterian Church of North America v. F. P. Livingston.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Scire facias sur mortgage.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $5,140, subject to question of law reserved.
    The court subsequently entered judgment on the verdict.

      Error assigned was in entering judgment on tlie verdict.

      R. A. Balph, with him James Balph, for appellant.

      Frank C. Osburn, with him John 0. McCombs, for appellee.
    December 31, 1904 :
   Per Curiam,

There were acts of uegligence, or what is legally the same thing, acts of misplaced confidence, by both the parties to this suit. Hunter was the agent of plaintiffs to see that the “ proposed mortgage was a first lien upon the property offered,” and in accepting his false certificate that it was so the plaintiffs were legally negligent. But upon this certificate they gave him their check payable not to him but to the mortgagor, appellant. Hunter was agent in some respects for both parties, and in the receipt of this check he was undoubtedly acting for appellant, and when appellant indorsed the check and delivered it to Hunter it was the same as if the plaintiffs had given the appellant the money in specie and he had handed it over to Hunter to pay the first mortgage. Instead of so doing Hunter embezzled the money, and as the appellant’s act in putting it into his hands was the proximate act of negligence which enabled him to carry out the fraud, the appellant, unfortunately for him, must bear the loss.

Judgment affirmed.


author: Mb. Justice Fell,

text:
    Perrysville Avenue. Marshall’s Appeal.

      Road law—Opening of streets—Retaining walls—Assessment for benefit.

    Where a street is constructed on the side of a steep hill, and a retaining wall is built partly outside of the line of the street but necessary for the support and protection of the street, and it appears that such wall was built with the knowledge of property owners and in most cases at their request, or with their express consent, the owners are liable for assessments for benefits arising from the construction of the wall, although the wall was not actually built on their land.
    Argued Nov. 8, 1904.
    Appeals, Nos. 116, 118, 121 and 122, Oct. T., 1904, by Estate of Thomas M. Marshall, Sr., Estate of Stephen Mercer, J. N. Davidson and Fred D. Eshelman, from order of C. P. No. 3, Allegheny Co., Aug. T., 1899, No. 336, dismissing exceptions to report of viewers In re widening of Perrysville avenue.
    Before Mitchell, C. J., Dean, Fell, Bbown and Thompson, JJ.
    Affirmed.
    Exceptions to report of viewers.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to report of viewers.

      Thomas M. Marshall, Jr., with him Frank P. Sproul, for appellants.
    Private property cannot in this manner be taken and appropriated by the city, and the cost of any part of the illegal structure be charged on the property of one whose rights are thus violated: Western Penna. Ry. Co. v. Allegheny, 92 Pa. 100; Hershberger v. Pittsburg, 115 Pa. 78; Ferguson’s App., 159 Pa. 39; Athens Boro. v. Carmer, 169 Pa. 426 ; Erie v. Moody, 171 Pa. 610.

      Stephen G. Porter, city solicitor, with him W. W. Stoner and Craig Smith, for appellee.
    The appellants are estopped : Erie v. Bier, 10 Pa. Superior Ct. 381; Pittsburg v. MacConnell, 130 Pa. 463.
    December 31, 1904:
   Opinion by

Mb. Justice Fell,

These appeals are from an order confirming the report of viewers assessing the costs of widening and grading Perrysville avenue in the city of Allegheny. The only question argued is whether the city could assess against the abutting properties a part of the cost of stone walls built at places along the sides of the avenue. A part of the avenue was constructed on the sides of steep hills, and at these places walls were built on the lower side to support the roadway, and on the upper to protect it from banks of earth and stone. Some of these walls were built in part and some of them wholly on the adjoining properties. None, however, were built on the land of the appellants.

The determination of the plan and manner of improving the avenue rested with the municipal authorities, and the abutting properties were liable to assessment to the extent to which the local improvement was a permanent benefit to them. If the walls were a necessary part of the street improvement, and the right to maintain them on private property was secured by the city, their cost was properly included in the assessment. The court found that they were necessary for the support and protection of the street, that they were built with the knowledge of the property owners and in most cases at their request or with their express consent, and that the facts disclosed by the testimony estopped the owners to question the right of the city to maintain the walls. In Western Penna. Railway Co. v. Allegheny, 92 Pa. 100, relied on by the appellants, the city assumed the right to locate a retaining wall partly on the property of the railway company, and built it against the company’s protest and assessed the company with the cost thereof. It was held that the building of the wall was without authority, in violation of law and a trespass, and that, since the part built on the company’s property might be removed by it and the part within the line of the street was not self-sustaining and was of no value to the public, no part of the cost could be assessed from the company. In the case before us the city got by consent an easement which it could have obtained by adverse proceedings, and the structure being lawful, necessary and permanent, was properly included in the assessment of benefits.

The order confirming the report of the viewers is affirmed at the cost of the appellants.


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    East Street. Evans’s Appeal.

      Road law—Original pavement—Repairs of ordinary road—Plank road.

    Where repairs made by a city to a plank road acquired by the city, are only such as are necessary to keep the planking safe for travel until a permanent improvement can be made, such repairs are not such a paving as will relieve abutting property from the costs of subsequent improvements when the road is changed to a city street.

      Argued Nov. 3, 1904.
    Appeal, No. 145, Oct. T., 1904, by George W. Evans, from order of O. P. No. 3, Allegheny Co., Feb. T., 1903, No. 180, dismissing exceptions to report of viewers in the matter of East Street from Elmira Street to Perrysville Avenue.
    -Before Mitchell, C. J., Dean, Fell, Brown and Thompson, JJ.
    Affirmed.
    Exceptions to report of viewers.
    McClttng-, J., filed an opinion in which he found, inter alia, as follows:
    There is no dispute about the fact that this street was an old plank road which was purchased by the city. It is contended that whilst the city did not lay the plank, it adopted it as a pavement.
    There is no doubt that the plank road was in bad condition when it was acquired by the city, and that the city immediately upon its acquisition took steps towards the widening and paving of the road. It made simply such repairs as were necessary ■ to keep it in passable condition until the improvement could be made, and the testimony indicates that it was not kept in more than passable condition. It is perfectly plain that the city condemned this road for the very purpose of getting rid of the plank and acquiring the right to make an improve2nent that had become a necessity. Nothing can be plainer than that the city did not adopt the worn planking as a pavement for East street. ■

      Errors assigned were in dismissing exceptions to report of jury of view.

      ‘Ralph P. Tannehill, with him Thomas M. and Rody P. Marshall., for appellant.
    Councils cannot say the owner of abutting property shall pay regardless of benefits, nqr can the legislature so say: Phila. v. Farmers’ Market Co., 161 Pa. 522; Penna. & Ohio Canal Co. v. Graham, 63 Pa. 290; Williamsport v. Beck, 128 Pa. 147; Harrisburg v. Segelbaum, 151 Pa. 172; Craig v. Phila., 89 Pa. 265.
    They cannot be assessed when the improvement is either expressed or appears to be for the general public benefit: Ham-

      metfc v. Phila., 65 Pa. 146; West Penna. Ry. Co. v. Allegheny, 92 Pa. 100.

      Stephen 6r. Porter, with him W- W. Stoner and Craig Smith, for appellee.
    The improvement was not a repaving: Philadelphia v. Eddleman, 169 Pa. 452; Rodgers’s Appeal, 193 Pa. 432 ; Dick v. Philadelphia, 197 Pa. 467 ; Harrisburg v. Funk, 200 Pa. 348.
    December 31, 1904:
   Opinion by

Mb. Justice Fell,

The only assignment of error is a general one to the order of the court dismissing the appellant’s exceptions. Many of the exceptions filed to the report of the viewers are unsupported by any testimony in the case. The main controversy and the only one that need be noticed was whether the pavement put down by the city was a first pavement, with the cost of which the abutting properties might be charged. The city acquired a plank road which had fallen into bad condition, for the purpose of removing the plank and making a substantial and necessary improvement by widening, grading and paving the thoroughfare. The repairs made by the city were only such as were necessary to keep the planking safe for travel until the permanent improvement could be made. Mere maintenance of a highway by repairs is not a paving of it that will relieve the abutting property from the cost of subsequent improvements changing an ordinary road to a city street: Philadelphia v. Dibeler, 147 Pa. 261; Philadelphia v. Eddleman, 169 Pa. 452.

The order of the court dismissing the exceptions to the report is affirmed at the cost of the appellant.


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    Gabler v. Black, Appellant.

      Appeals—Interlocutory order—Quashing appeal—Ejectment—Rule to bring ejectment—Acts of March 8, 1889, P. L. 10, and May 25, 1893, P. L. 131.
    No appeal lies from an order of the court of common pleas making absolute a rule granted under the Act of March 8, 1889, as amended by the Act of May 25, 1893, P. L. 131, to bring an action of ejectment within six months. The order is interlocutory and an appeal from it is not allowed by either of the acts of assembly under which the rule was granted.

      Appeal No. 155, Oct. T., 1904, by defendants, from order of O. P. Greene Co., making absolute rule to bring ejectment in case of Benjamin F. Gabler and Thomas C. Gabler v. James A. Black et al.
    Appeal quashed.
    December 31, 1904:
   Opinion by

Mb. Justice Mestbezat,

The motion to quash this appeal must prevail. This is a proceeding instituted by the plaintiffs under the Act of March 8, 1889, P. L. 10, entitled “ An Act to settle title to real estate,” as amended by the Act of May 25, 1893, P. L. 131, to compel the defendants to bring an action of ejectment for the coal underlying a tract of land in Monongahela township, Greene county. The plaintiffs aver in their petition that they are the owners, have title to and are in sole possession of the coal and that the defendants are not in possession but “ claim some interest in, or title to, the coal underlying said tract of land.” The petition having been presented to the court, a rule was granted on the defendants, as provided in said acts of assembly, requiring them, and each of them, to bring an action of ejectment for the premises against the plaintiffs within six months or show cause why the action could not be brought. An answer was filed by the defendants in which it was averred that James A. Black, one of the defendants and the grantor of the other defendants, was the sole owner in fee of the coal described in the petition and is and has been for many years in possession of it. The learned trial court subsequently entered an order making the rule absolute. From this order James A. Black, one of the defendants, has taken this appeal.

This proceeding being statutory and not according to the course of the common law no appeal, formerly called a writ of error, lies to the action of the court below unless expressly provided by statute: Davenport v. Jones, 126 Pa. 271. Neither of the acts of assembly under which the proceeding was begun and carried on authorizes an appéal to this court and we know of no other statute giving such authority. Davenport v. Jones, supra, was a proceeding under the Act of June 24, 1885, P. L. 152, which authorizes claimants in possession of land to rule .purchasers to bring ejectment within ninety days after the rule granted is made absolute. The trial court made the rule absolute in that case and the writ of error taken to the action of the court was quashed. The case, it will be observed, is similar to the one in hand. Mr. Justice Sterrett, delivering the opinion, says: “This proceeding under the Act of June 24, 1885, P. L. 152 is not according to the course of the common law. It is well settled that a writ of error does not lie in such cases unless it is expressly provided for. No such provision appears to have been made either in that or any other act. It follows, therefore, that the questions intended to be raised are not properly before us.”

In proceedings under the acts of 1889 and 1893, the rule, issued against the party out of possession, requires him to bring his action of ejectment within six months from the service of the rule to show cause why the same cannot be brought. If the rule is made absolute, the party must bring his ejectment within the time designated in the rule. But the order of court making the rule absolute is not a final adjudication of the party’s interest in, or title to, the premises. Its effect is simply to compel him to institute his action of ejectment so that his title to the premises may be determined. The suit having been brought, the cause then proceeds to trial and final judgment, from which, if unsuccessful, he may then appeal.

If, however, the party against whom the rule is made absolute neglects or refuses to bring the action, the other party may at the expiration of the six months from the service of the rule, apply to the court and have judgment entered against the party in default, w'hich judgment, as provided in the statute, “ shall be final and conclusive between the parties, their heirs and assigns; and thereafter no action of ejectment for the recovery thereof shall be brought by such person claiming an interest in, or title to, such real estate, or any person claiming by, from or under such person.” This is a final judgment which the party aggrieved may, if he desire, have reviewed on appeal.

The appeal is quashed.