author: Mr. Justice Brown,

text:
    Purvis v. Local No. 500, United Brotherhood of Carpenters and Joiners et al., Appellants.

      Master and servant — Strikes—Coercion—Protection of property — Labor unions.

    An employer of workmen has a right to invoke, for the protection of his property, the bill of rights, against a labor union which seeks to coerce him in such a way that he would be compelled to employ only union workmen, to submit himself to the control of the union, and to put himself within its power to dictate to him the number of hours to constitute a day’s work in his mill, the compensation to be paid therefor, the time of payment thereof, and the selection of his employees. The coercive acts which the courts will enjoin may be without threats or commission of violence or personal injury. Declarations by officers of the union that they intended to drive the employer out of business unless he unionized his mill, followed by notices to customers of the employer not to use the latter’s material under threats of strikes in the customers’ own establishments, are such coercion as will be enjoined by the courts, and there is nothing in the Act of June 16, 1891, P. L. 300, which sanctions it.
    Argued Oct. 19, 1905.
    Appeal, No. 52, Oct. T., 1905, by defendants, from decree of C. P. Butler Co., March T., 1904, No. 1, on bill in equity in case of J. L. Purvis and L. O. Purvis, trading as S. G. Purvis & Company, v. L. C. Wick, Local No. 500, United Brotherhood of Carpenters and Joiners of America et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Galbreath, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered the following decree :
    That the defendants (not including L. C. Wick) and each and every of them, their officers, committees, agents, employees, servants, members, associates, and all others that may act in concert with them, of by their direction, each and every one, be restrained and strictly enjoined from interfering and from combining, conspiring or attempting to interfere, for the purpose of doing injury to plaintiffs in their business, with the sale or contract .for sale by the plaintiffs of building materials by representing or causing to be represented in express or implied terms to any customer of the plaintiffs, or to any person or persons or corporation who might become customers of the plaintiffs, that such customers will suffer or are likely to suffer loss or trouble in their business for purchasing or continuing to purchase or contracting for the purchase of building materials from the plaintiffs; or' by intimidating or attempting to intimidate by threats, direct or indirect, express or implied, of loss or trouble in business, or otherwise, any persons or corporation who are now customers or who may hereafter become or desire to become customers of the plaintiffs; or from sending out to any person or persons or corporation who are now customers, or who may hereafter become or desire to become customers of the plaintiffs, through the mails, or delivering to them otherwise,
      may written or printed card, letter, circular or other notice, stating that members of the United Brotherhood of Carpenters and J oiners will not handle or work mill work or materials coming from mills which fail to comply with regulations of the Carpenters’ District Council and that the plaintiffs had failed to comply with an agreement of the planing mill association of Western Pennsylvania with the Carpenters District Council, or an agreement adopted by the Master Builders’ Association and said Council, and requesting such customers or prospective customers of the plaintiffs to have their mill work done by mills that operate under said agreement so that no controversy can arise on account of nonunion mill work, or from sending out to such customers or prospective customers of the plaintiffs any card, circular or other notice of similar character or purpose, directly or indirectly, or from writing or sending through the mails or otherwise, any written or printed card, circular, letter or other communication, conveying or intending to convey, to any customers or prospective customers of the plaintiffs that the plaintiffs are under the ban of Local No. 500, United Brotherhood of Carpenters and Joiners of America, or the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, or other trades union, or of similar import; or from attempting by any scheme, combination or conspiracy among themselves or with others, to annoy, hinder or interfere with or prevent any person or persons or corporation from purchasing building materials, or making contracts for the purchase of the same, from the plaintiffs, and from any and all acts, and from the use of any and all ways, means and methods with a purpose to injure plaintiffs in their business, which (acts, ways, means and methods) by putting or attempting to put any person or persons or corporation in fear of loss or trouble will tend to hinder, impede or obstruct the plaintiffs from making sale, or making contracts for sale, of building materials; or from interfering and from combining, conspiring, or attempting to interfere, for said purpose, with the business of the plaintiffs, by the enforcement, under pain of penalties and forfeitures, of rule 7 of the working rules adopted for the government of local unions under the jurisdiction of the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters, and Joiners of America, which provides that, “ No member shall be allowed to work any material coming from any non-union mill and shall comply with this rule when the local unions are so informed and instructed by the district council,” or by other like coercive rules, the natural and necessary effect of which would be to deter the members of said trades unions or others from working upon buildings or other constructions to which the plaintiffs were furnishing materials, or contractors, builders or owners of said buildings or other constructions, or others, from purchasing materials from the plaintiffs; or from interfering and from combining, conspiring, or attempting to interfere with the business of the plaintiffs for the purpose of injuring them in their business, by the enforcement of fines or forfeitures, suspension or expulsion from membership in any of the locals within the jurisdiction of the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, for failure to observe rule 7, of the working rules adopted for the government of local unions under the jurisdiction of said Carpenters’ District council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, or for failure to observe any of the rules adopted and in force in that union, or that may hereafter be adopted, which would by coercion of said members interfere with the business of the plaintiffs, or from otherwise restraining, coercing and intimidating any one or more of the members of said union for said purpose from working for any' contractors, builders, owners or other persons because they are doing or desire to do business with the plaintiffs ; or from interfering and from combining, conspiring or attempting to interfere with the business of the plaintiffs by the issue of union labels to any mill within the jurisdiction of the Carpenters’ District Council of Pittsburg, Allegheny and vicinity, United Brotherhood of Carpenters and Joiners of America, such issue of labels being made for the purpose of interfering with the business of the plaintiffs. From the doing of any and all of which acts and things, for the purpose of injuring plaintiffs in their business and thereby compelling them to unionize their mill or have such injury continued, the said defendants (not including L. C. Wick) and each and every of them, their officers, committees, agents, employees, servants, members, associates and all others that may act in concert with them, or by their direction, are hereby enjoined and restrained.
    The decree further assessed $1,770 damages against the defendants, and in favor of the plaintiffs.

      Error assigned among others was the decree of the court.

      Lev McQuistion, with him W. J. Brennen, for appellant.
    The evidence did not show coercion: Bohn Mfg. Co. v. Hollis, 54 Minn. 223 (55 N. W. Repr. 1119); McCandless v. O’Brien, 8 Lanc. Law Rev. 254; People v. Wilzig, 4 N. Y. Crim. 403; Erdman v. Mitchell, 207 Pa. 79; Wood v. Bowron, L. R. 2 Q. B. 25; Macauley v. Tierney, 19 R. I. 255 (33 Atl. Repr. 1); Bowen v. Matheson, 96 Mass. 499.

      T. C. Campbell, with him W. B. Purvis, for appellees.
    The acts of the defendants shown in this case were unlawful, and complainants were rightfully entitled to the injunction granted by the court below to restrain their repetition. They were a conspiracy to boycott and an attack upon complainants’ constitutional rights of acquiring, possessing and protecting property, and of pursuing their own happiness. They were without lawful excuse and injurious to complainants, and therefore were malicious in law, and they were coercive: Toledo, etc., Ry. Co. v. Penna. Co., 54 Fed. Repr. 730; Gray v. Building Trades Council, 91 Minn. 171 (97 N. W. Repr. 663); Brace v. Evans, 5 Pa. C. C. Rep. 163; Curran v. Galen, 152 N. Y. 33 (46 N. E. Repr. 297); Delz v. Winfree, 80 Texas, 400 (16 S. W. Repr. 111); Boutwell v. Marr, 71 Vt. 1 (42 Atl. Repr. 607); Ertz v. Produce Exchange, 79 Minn. 140 (81 N. W. Repr. 737); Old Dominion Steamship Co. v. McKenna, 30 Fed. Repr. 48; Lucke v. Clothing Cutters’, etc., Assembly, 77 Md. 396 (26 Atl. Repr. 505); Doremus v. Hennessy, 176 Ill. 608 (52 N. E. Repr. 924); Gatzow v. Buening, 106 Wis. 1 (81 N. W. Repr. 1003); Hawarden v. Coal Co., 111 Wis. 545 (87 N. W. Repr. 472); State v. Donaldson, 32 N. J. L. 151; Crump v. Com., 84 Va. 927 (6 S. E. Repr. 620); State v. Glidden, 55 Conn. 46 (8 Atl. Repr. 890); State v. Stewart, 59 Vt. 273 (9 Atl. Repr. 559); Casey v. Cincinnati Typographical Union, 45 Fed. Repr. 135; Bohn Mfg. Co. v. Hollis, 54 Minn. 223 (55 N. W. Repr. 1119); Sherry v. Perkins, 147 Mass. 212 ( 17 N. E. Repr. 307); Jackson v. Stanfield, 137 Ind. 592 (36 N. E. Repr. 345); Plant v. Woods, 176 Mass. 492 (57 N. E. Repr. 1011); Vegelahn v. Guntner, 167 Mass. 92 (44 N. E. Repr. 1077); Macauley v. Tierney, 19 R. I. 255 (33 Atl. Repr. 1); National Protective Assn. v. Cumming, 170 N. Y. 315 (63 N. E. Repr. 369); Longshore Printing Co. v. Howell, 26 Oregon 527 (38 Pac. Repr. 547); Brown v. Jacobs’ Pharmacy Co., 115 Ga. 429 (41 S. E. Repr. 553); Oxley Stove Co. v. Coopers’ International Union, 72 Fed. Repr. 695; Barr v. Essex Trades Council, 53 N. J. Eq. 101 (30 Atl. Repr. 881); Jersey City Printing Co. v. Cassidy, 53 Atl. Repr. 230; Martin v. McFall, 55 Atl. Repr. 465; Hopkins v. Oxley Stave Co., 83 Fed. Repr. 912; Erdman v. Mitchell, 207 Pa. 79; Employing Printers’ Club v. Blosser Co., 50 S. E. Repr. 353; State v. Stewart, 59 Vt. 273 (9 Atl. Repr. 559); Johnston Havester Co. v. Meinhardt, 60 Howard, 168.

      Lev McQuistion, with him W. J. Brennen, for appellants, in reply.
    The defendants’ acts and conduct are clearly within the law in all they did: Biever v. Herr, 1 Pearson, 510; Macauley v. Tierney, 19 R. I. 255 (33 Atl. Repr. 1); McVey v. Brendel, 144 Pa. 235; Bradley v. Pierson, 148 Pa. 502; Wick China Co. v. Brown, 164 Pa. 449; O’Neil v. Behanna, 182 Pa. 236; Thomas v. Ry. Co., 62 Fed. Repr. 803; Wood v. Bowron, L. R. 2 Q. B. 25; Toledo, etc., Ry. Co. v. Penna. Co., 54 Fed. Repr. 730; Arthur v. Oakes, 63 Fed. Repr. 310.
    March 19, 1906:
   Opinion by

Mr. Justice Brown,

The zeal of counsel may account for, but can hardly excuse, the statement in appellants’ paper-book of the questions involved on this appeal. Thej' are there stated to be: “ Is the dissemination by means of printed notices by a lawfully constituted lodge of union laborers to its members and employers of labor, of its adopted rules by virtue of its constitution forbidding its members to work non-union material, an unlawful conspiracy ? Is it lawful by peaceful means to make effective such rules ? ” From an examination of the averments of plaintiffs’ bill, the ample proofs submitted in support of them, and of the facts found by the court below, it is most manifest that the only question before us is, whether the appellants were properly enjoined from injuring and destroying the business of the appellees, in pursuance of a conspiracy to do so, as a penalty for their refusal to unionize their mill. This would mean to the appellees, as they aver, that they would be compelled to employ only union workmen and to yield their free and unrestricted right-to select their own employees in the conduct of their business; that they would be compelled to submit themselves to the control of the union, and to put themselves within its power to dictate to them the number of hours to constitute a day’s work in their mill, the compensation to be paid therefor, the time of payment thereof and the selection of their employees. It would be a recognition of the power of the agents of the union to practically control their business.

The opinion of the court below is learned and exhaustive, and upon it the decree might well be affirmed. The briefs on each side are most elaborate; but, after all, the question involved is a very simple one and calls for no lengthy discussion by us. The rights of mechanics and laborers, and of labor organizations and unions, as recognized in innumerable cases, are not affected by the decree, and need not, therefore, be considered here. The question is the unlawfulness of the conspiracy of the appellants to injure and destroy the property of others, if their demands as to the employment of workmen are not complied with. The question is not as to the unlawfulness of the demands which they make, but is as to their conduct upon learning that these demands are ignored by the appellees. The demands in themselves can do no harm to the latter; it results from the means employed to coerce compliance with them. The appellants contend that they seek only to persuade, and not to coerce; but their means of persuasion are the destruction of the property of those whom they would persuade. As well might it be said that the sight of the club or gun of the highwayman without actual violence simply persuades. No violence was used by the appellants, and it does not appear that any was contemplated or threatened; but coercion may be accomplished without threats or violence and the attempt to so accomplish it was made in this case. Putting one in actual fear of loss of his property or of injury to his business, unless he submits to demands made upon him, is often no less potent in coercing than fear of violence to his person. “ Restraint of the mind, provided it would be such as would be likely to force a man against his will to grant the thing demanded, and actually has that effect, is sufficient in cases like this:” Plant v. Woods, 176 Mass. 492. Of the conduct of the appellants the words of our late Brother Dean, in Erdman v. Mitchell, 207 Pa. 79, may well be repeated: “ How absurd is it to call this peaceable persuasion, and how absurd to argue that if the law attempts to prevent it the right of the workmen to organize for their common benefit is frustrated.”

After reciting the material facts found, the court below thus summarizes the situation : “ These things all point to a combined purpose on part of Local No. 500 and the District Council to compel plaintiffs to unionize their mill by working injury to their business. To accomplish this the whole power of the union was brought to bear upon them, both in the Pittsburg district and the home community. The members of Local No. 500 who were found working material from their mill were coerced by the compelling power of the union to quit work on pain of trial, fine or expulsion, with its attendant annoyance and possible ostracism, in case of their refusal. By the same power owners, former customers and contractors were coerced through the urgency of their circumstances to withhold their patronage, while through the conditions thus created the public was deterred, as the evidence indicates, from placing orders with plaintiffs, which would otherwise have gone to them. Along these converging ways the whole power of the union was brought to bear upon the plaintiffs to coerce them into submission: If any doubt remained as to the correctness of this inference, drawn from the acts of the defendants, it is removed by the expressed purpose of their official agent. Joseph L. Purvis, one of the plaintiffs, testifies, that in the latter part of January last, Mr. Lewis, a business agent of the District Council, came, with others, to plaintiffs’ place of business to urge upon them that they unionize their mill. The matter was considered at length, and reasons were given by Mr. Purvis why it was not practicable for them to do so. Mr. Purvis says, ‘ I explained all this to Mr. Lewis and tried to show him; the only alternative he showed us to joining the union was for us to quit business as a manufacturing business; —that was the only alternative left, which we declined; then they intimated inasmuch as we declined to do that we would have to stop estimating in Pittsburg; to that I replied I would prefer to stop unless we could estimate in Pittsburg and could see a reasonable profit.’ Again Mr. Purvis testifies, ‘ Mr. Lewis and Mr. Dougherty were there together, they were there together most of the time. Mr. Dougherty was there all the time. Mr. Lewis went away and would come back again, and a great deal of this conversation they were both present and joined in; it may not have been Mr. Lewis, it may have been Mr. Dougherty, but between them we were given to understand that unless we unionized our mill we would be obliged to quit business.’ L. O. Purvis, also a member of plaintiffs’ firm, testifying to the same interview with Mr. Lewis, says: ‘ He undertook to argue that it would be better for our mill to be a union mill inasmuch as there was going to be trouble if it was not unionized.’ "VV. E. Cochran, a building contractor, and a witness on part of plaintiff, testifies that in January last he had a conversation with Mr. Lewis and Mr. Swartz, another business agent of the District Council, also a defendant in this case, in which conversation Mr. Lewis stated to him ‘that they had come to Butler prepared to drive Purvis & Company into the union; that they had at that time sufficient leverage to enable thenrtosee that it was done.’ It is worthy of notice that at this time the plaintiffs had a contract with Mr. Kreusler, a building contractor of Pittsburg, to furnish material amounting in price to about $20,000, for a large building then being constructed by him in the city of Pittsburg. Great pressure at that time seems to have been brought to bear on both Mr. Kreusler and the plaintiffs, through the medium of this contract, to compel the unionizing of plaintiffs’ mill. The union men, employed by Kreusler to put the work together before removing it from plaintiffs’ warehouse in Butler, were called off at a time when the material was urgently needed by the contractor to complete his contract, and when, according to the testimony, about $10,000 worth of the material was still in plaintiffs’ hands. It was during this period of urgency that the conversations and declarations above referred to were had and made. These déclarations as well as the acts of the defendants leave no reasonable doubt that the purpose of defendants was to compel plaintiffs to unionize their mill or otherwise suffer irreparable injury to their business, and that they were acting in concert to effect that purpose.”

We shall not quote the specific findings, but attention ought to be directed to one of them: “ The Central Hotel in Butler had been partially destroyed by fire, and was being repaired, under the supervision of Ed. Weigand, a building contractor, who, under instructions from Mr. Nixon, the owner, was ordering the material as needed from the plaintiffs. The work was urgent, as the owner was anxious to utilize the building. The union men at work on the building were called off and were not permitted to resume work until Mr. Nixon entered into a written agreement with the business agent, Goerman, business agent of Local No. 500, bearing date, January 9, 1904 ; ‘ that no material delivered after January 8, 1904, coming from S. G. Purvis & Co. shall be used on the Central Hotel until said mill is operated according to union rules.’ ”

The right of a workman to freely use his hands and to use them for just whom he pleases, upon just such terms as he pleases, is his property, and so in no less degree is a man’s business in which he has invested his capital. The right of each — employer and employee — is an absolute one, inherent and indefeasible, of which neither can be deprived, not even by the legislature itself. The protection of it, though as old as the common law, has been reguaranteed in our bill of rights. “ All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness : ” Const. Art. I, sec. 1. “ The principle upon which the cases, English and American, proceed, is, that every man has the right to employ his talents, industry and capital as he pleases, free from the dictation of others ; and if two or more persons combine to coerce his choice in this behalf, it is a criminal conspiracy. The labor and skill of the workman, be it of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investments of commerce are all, in equal sense, property: ” State v. Stewart, 59 Vt. 273. A person’s business is property, entitled under the constitution to protection from unlawful interference. Every person has a right, as between his fellow citizens and himself, to carry on his business, within legal limits, according to his own discretion and choice, with any means which are safe and healthful, and to employ therein such persons as he may select: Barr v. Essex Trades Council, 53 N. J. Equity, 101. With the absolute right of the appellees in their property, the appellants assumed to interfere, and would injure, if not destroy, it, if their demands are not complied with. This no court will tolerate.

As already stated, of the demands in themselves the appellees could not be heard to complain. The appellants contend that they are made for the benefit of the members of their union. This is undoubtedly so, and, if the injury resulting from a disregard of them is confined to its members, they alone can complain; and even if injury incidentally results to outsiders, through compliance by the members of the union with Its rules and orders, there may be no remedy for it. An agreement by those to be benefited by it, that they will themselves observe its terms in accepting employment, even if employers be incidentally embarrassed thereby, can occasion no injury to employers which the law will recognize, for workmen, whether bound by a compact among themselves or not, have the absolute right to give their services to whom they please, or to withhold them from whom they please, without responsibility for consequences to employers or to anyone else. But this is not the case when the primary purpose is to unlawfully coerce others that, as a result of the coercion, benefits may accrue to those who coerce. The attempt to coerce by unlawful means, by conspiring to injure and destroy property, is in itself an unlawful act, no matter what end is to be accomplished, and the concern of the law is only for the protection of those Avho are to be wronged. Benefits which it is alleged will result to the wrongdoers cannot be considered without sanctioning the wrong, without justifying unlawful means for the accomplishment of an end. By no specious reasoning can the conduct of the appellants be construed into anything else than a conspiracy to perpetrate wrong for the accomplishment of beneficial results to themselves. In this connection Ave adopt as expressive of our views and rendering any further comment unnecessary the following from the well considered opinion of the learned judge below :

“ The business of the plaintiffs is property within the meaning of the law. The defendants sought, by concerted action, to injure them in their business, in other words, their property, in order to coerce them into submission to the demands of the union. Compliance with these demands meant that the plaintiffs, who furnish the capital, were not to be dominant in the control of their business, but that hoth they and their business were to be controlled, in most of its essential features, by others who were in no way responsible for the capital invested or the losses that might be entailed. The purpose of defendants to effect this by injury to and, if need be, by the destruction of plaintiffs’ business was an unlawful purpose and the combination of defendants to accomplish that purpose was an unlawful combination and therefore in law a conspiracy. True, the defendants contend and testify that their purpose was to benefit their own members. This, doubtless, in a sense, is true, but the benefits sought were the remote purpose, which was to be secured through the more immediate purpose of coercing the plaintiffs into complying with their demands, or- otherwise injuring them in their business, and the court cannot, in this proceeding, look beyond the immediate injury to the remote results. Such is the doctrine laid down in Eddy on Combinations and quoted with approval in the case of Erdman v. Mitchell, supra, as follows: ‘ The benefit to the members of the combination is so remote, as compared to the direct and immediate injury inflicted upon the non-union workmen’ (in this case the non-union mill owners) ‘ that the law does not look beyond the immediate loss and damage to the innocent parties to the remote benefits that might result to the union.’

“In the case of Plant v. Woods, 176 Mass. 492, the court says: ‘ The necessity that the plaintiffs (members of one union) should join this association (defendants’ union) is not so great nor is its relation to the rights of the defendants, as compared with the rights of the plaintiff to be free from molestation, such as to bring the acts of the defendants under the shelter of the principles of trade competition. Such acts are without justification and therefore are malicious and unlawful, and the conspiracy thus to force the plaintiffs was unlawful. Such conduct is intolerable and is inconsistent with the spirit of our law.’

“ In the case of Curren v. Galen, 152 N. Y. 33, it is said, ‘The social principle which justifies such organization is departed from when they are so extended in their operation as either to intend or to accomplish injury to others.’

“ It is unnecessary to multiply authorities to establish the unlawfulness of defendants’ purpose as expressed by their agents and indicated by their acts. In reaching this conclusion I do not ignore but gladly recognize the right of workmen and others to combine for the worthy purpose of bettering their condition. In their efforts to attain this end they may inflict more or less inconvenience and damage on others. But these results should be incidental damage .and inconvenience consequent on the operation of general rules, lawful in themselves, rather than those which follow a specific intent and immediate purpose of injury to others in order that good may ultimately come to themselves.

“ The doctrine that the end sanctifies the means has ijo place in a condition of society where law prevails. Even a good purpose must abide its time and follow the path marked out by law rather than hasten its accomplishment by ignoring the equal rights of others. A patient recognition of these sa.feguai-ds which the law has thrown about every lawful possession, and of those limitations and restraints within which every lawful endeavor must be advanced, is the only sure way of helping on any worthy cause.

“ Turning from a consideration of the nature of the purpose of defendants, as indicated by their words and deeds, I desire to briefly consider the means used to effect that purpose. On part of plaintiffs it is alleged that the means used are a boycott of their business. The defendants contend that their methods were persuasive and were not accompanied with violence, threats or intimidation.

“ No violence was used nor does any seem to have been contemplated or threatened. But acts may be coercive in character without threats or commission of violence or personal injury. When the District Council with its seven thousand members in the Pittsburg district gave notice to practically all the building contractors of that district that the plaintiffs refused to run their mill in accordance with union rules, and calling attention to the working rule which forbids union workmen to work material from any non-union mill, the contractors understood what the request not to patronize plaintiffs’ mill meant. When the members of Local No. 500, who were willingly working material from plaintiffs’ mill; were visited by the business agent of the union, who called them off, they doubtless knew that it meant trial, fine or expulsion and ostracism if they continued to work. When the owner of the Central Hotel was required in the urgency of his situation, to sign a contract with the business agent of the union not to purchase any more material from plaintiffs as the condition of having work continued on his building, it can scarcely be said that his freedom of action was not interfered with; when the business agents of the District Council declared that they had come to Butler prepared to drive Purvis & Company into the union, when they stated to plaintiffs there was going to be trouble if the mill was not unionized, and gave them to understand that they must unionize their mill or quit business, all parties well understood what that meant. In all these things the attitude of the defendants was threatening and coercive rather than persuasive.”

In attempting to justify their conduct the appellants allege authority for it in the Act of June 16, 1891, P. L. 300. While that act provides that they may devise and adopt ways and means to make rules, regulations, by-laws and resolutions of their order effective, it sanctions no rules, regulations, by-laws or resolutions to commit wrong, and if it attempted to do so by authorizing the appellants to interfere with the absolute rights of the appellees, the legislation would be a dead letter, for the legislature cannot abolish the declaration of rights; to do that the whole people of the commonwealth must be directly consulted and they must give assent: Erdman v. Mitchell, supra.

In assessing the damages sustained by the plaintiffs and directing their payment no error was committed by the court. All of the assignments are dismissed and the decree is affirmed at the costs of the appellants.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Duckett’s Estate.

      Wills — Distribution per capita or per stirpes — Children—Issue.
    Where testator in two clauses in his will uses the words “children” and “issue” interchangeably for “children” the court in construing a third clause in the will in which there is a doubt whether the word “issue” is used in the sense of children, will construe the word as meaning children.
    Testator gave the residue of his estate to his executors in trust to pay one-third of the income to his wife during life and the remaining two-thirds thereof to his three children during their lives, and after the death of his wife and the three children “then to hold all the said estate and property in further trust upon the uses and trusts following, that is to say, to and for the only proper use and behoof of the lawful issue of my said children, their heirs and assigns forever share and share alike; and in case there shall not be any such lawful issue, then the same to be divided between my nearest of kin, their heirs and assigns share and share alike.” In two other clauses in the will the testator used the word “issue” as the equivalent of “children.” After the death of testator’s wife and three children there survived nine children by a daughter, and three children by a son. Held, that the word “issue” in the clause quoted should be construed as meaning “children,” and that distribution should be made among the two sets of grandchildren per capita, and not per stirpes.
    Argued Jan. 3, 1906.
    Appeal, No. 366, Jan. T., 1904, by-Joseph Stelwagon et al., from decree of O. C. Phila. Co., April T., 1880, No. 257, dismissing exceptions to adjudication in Estate of Joseph H. Duckett, deceased.
    Before Mitchell, C. J., Beown, Mesteezat, Pottee, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    The material portions of the will of the testator were as follows:
    “ 3. I give and bequeath to my daughter, Sarah Duckett, the sum of $1,000 to be paid to her immediately after my decease as an equivalent for gifts by me to my other children made during my lifetime and, in the event of my said daughter Sarah Duckett dying before me leaving issue, then the same to be paid to such children of the said Sarah Duckett as may then be living equally share and share alike, but if the said Sarah Duckett dies before me without issue then the said sum to become part of my residuary estate.
    “ 4. I give devise and bequeath unto my sister Mrs. Elizabeth Wilson — widow—the house and lot of ground situate No. 1,228 Palethrop street in said city to use, occupy and enjoy the same for and during the term of her natural life, also to let and demise the same for said period and from and immediately after her decease unto her daughter Rosamond Wilson for her sole and separate use her heirs and assigns forever; but in the event of the said Rosamond dying before the decease of her mother, Elizabeth Wilson, leaving issue living, then to such issue their heirs and assigns forever absolutely. And if the said Rosamond should die without leaving any such child or children to survive her then unto my children or the issue of my children as may be living, their heirs and assigns absolutely.
    “ 5. All the rest, residue and remainder of my estate and property, real personal and mixed whatsoever and wheresoever whereof I may die seized and possessed, or to which I may be in any manner entitled at the period of my decease I do give, devise and bequeath unto my executors hereinafter named and the survivor of them and the heirs and assigns of such survivor forever to hold the same in trust to collect and receive the income, interest and dividends thereof and pay over the same from time to time as received in manner following, viz.: One-third of the annual net profits and income thereof to my said wife Harriet E. Duckett for and during all the term of her natural life and the remaining two-thirds of the annual net profits and income thereof to be divided equally between my three children, viz., Margaret W. Stel wagon (formerly Duckett), wife of Joseph Stel wagon of said city, paper manufacturer, Sarah Duckett, and William Henry Duckett — for and during all the terms of their natural lives — except the share thereof to the said William Henry Duckett which is to be divided as follows, viz., two-thirds of said one-third share of the residue of said annual net profits and income unto the said William Henry Duckett for and during all the term of his natural life. And the remaining one-third of said one-third share of the residue of said annual net profits and income unto my two granddaughters Harriet and Laura Duckett, children of the said William Henry Duckett to be applied .in half yearly payments to and for the support, maintenance and education of my said granddaughters in equal shares during their minority and afterwards as they respectively attain majority to pay the said proportions of thé residue of the said income interest and dividends to them in equal shares as received for and during all the term of each of their natural lives and in the event of either of my said granddaughters dying before their said father, then to pay the same to the survivor of them and in the event of the father of my said granddaughters surviving both of them to pay the whole of the said one-third of the residue of the net annual income and profits thereof unto their said father William Henry Duckett for and during all the term of his natural life.
    “ And from and after the decease of my said wife Harriet E. Duckett and of my children, Margaret W. Stel wagon, William Henry Duckett and Sarah Uuekett then to hold all the said estate and property in further trust upon the uses and trusts following, that is to say: to and for the only proper use and behoof of the lawful issue of my said children, Margaret W. Stel wagon, William Henry Duckett and Sarah Duckett their heirs and assigns forever share and share alike, and in case there shall not be any such lawful issue then the same to be divided between my nearest of kin their heirs and assigns share and share alike.”
    Other facts appear by the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      John G. Johnson, with him Franklin L. Lyle, William M. Meredith, Joseph H. Shoemaker and Henry Trumbore, for appellant.
    The devise to issue was the devise of an estate vesting absolutely in such as answered the description at the testator’s death and opening to let in those afterward born who answered that description. The estate in remainder thereafter vested in a class, viz.: the testator’s grandchildren (not one of his grandchildren was dead at the time of testator’s death) and opened to let in such other grandchildren as should be after-wards born: Haskins v. Tate, 25 Pa. 249; Wolford v. Morgenthal, 91 Pa. 30; Hague v. Hague, 161 Pa. 643.
    That the testator did use the word “ issue ” in the sense of “ children ” will be seen from the manner in which he repeatedly uses it as synonomous with the word “ children: ” O’Rourke v. Sherwin, 156 Pa. 285.
    A request to a number of persons not named, but answering to a general description, is a gift to them as a class: Denlinger’s Estate, 170 Pa. 104; Harrison’s Estate, 18 Pa. Superior Ct. 588; Gest v. Way, 2 Wharton, 445; Earnest v. Earnest, 5 Rawle, 213.

      A. W. Horton, with him George G. Cookman, for appellee.
    It is evident from an examination of the whole will that the testator intended to divide his estate per stirpes.
    1. By a gift of the income to his three children in equal shares.
    2. By a gift of one-third of his son’s share of income to his son’s two daughters for life and to the survivor of them.
    3. By directing that his residuary estate should be divided into three shares, the issue of each child to take one share between them. The words “ share and share alike,” are applicable to class shares and not to the individuals composing the classes. The equality of distribution was among children and not grandchildren.
    4. By appearing to have had in mind the mode of distribution adopted by the intestate laws, which is shown in: Thomas’s Estate, 18 W. N. C. 28; Osburn’s App., 104 Pa. 637; Risk’s App., 52 Pa. 269; Young’s App., 83 Pa. 59; Hoch’s Est., 154 Pa. 417; Hiestand v. Meyer, 150 Pa. 501; Miller’s Estate, 26 Pa. Superior Ct. 453; Harris’s App., 74 Pa. 452; Grim’s App., 89 Pa. 333; Minter’s App., 40 Pa. 111; France’s Estate, 75 Pa. 220; Ashburner’s Estate, 159 Pa. 545.
    It is clearly settled that the word “ issue,” unconfined by any indication of contrary intention, includes all descendants. Intention is required for the purpose of limiting the sense of that word, and restraining it to children: Miller’s Appeal, 52 Pa. 113; Campbell’s Estate, 202 Pa. 459.

      John G. Johnson, with him Franklin L. Lyle, William M. Meredith, Joseph H. Shoemaker and Henry Trumbore, for appellant, in reply.
    There is no gift of the income to the three children in equal shares: Brett v. Horton, 4 Beav. 239; Nockolds v. Locke, 3 K. & J. 6.
    The gift of one-third of the son’s share of income to the son’s two daughters for life does not indicate any intention to distribute the corpus per stirpes.
    The testator does not direct that his residuary estate be divided into three shares.

      March 12, 1906:
   Opinion by

Mr. Justice Stewart,

The matter in dispute here is the proper method of the distribution of the testator’s estate. The testator, Joseph H. Duckett, died April 5, 1867, leaving to survive him- a widow, Harriet E., who died September 24, 1872, and three children (1) Sarah A., who died unmarried and without issue April 6, 1904; (2) Margaret W. Stelwagon, who died November 28, 1889, leaving nine children, ’ namely, William H., Robert P., Henry W., John W., Joseph Weightman and Frank M. Stelwagon, Harriet S. Mullen and Margaret S. Craig, all of whom are now living, and (8) William H. Duckett, a son who died in 1880, leaving three children, namely, Laura E. C. Coobman, still living, Harriet W. Lippincott, who died in 1889, leaving a daughter, Laura E. Lippincott, living, and William. Duckett, Jr., a son by a second marriage, who died in 1880, leaving a minor child, Robert N. Duckett, still living.

The testator in the fifth clause of his will devises his entire residuary estate to his executors in trust, to pay over one-third the income therefrom to his wife during her life, and the remaining two-thirds to his three children during their lives; the share of his son, William Henry, therein to be divided between the said William Henry, who was to receive two-thirds of the same, and his two children, Harriet and Laura Duckett, who were to receive in equal parts the remaining third.

The final disposition under which the present controversy arises is as follows: “ And from and after the decease of my said wife, Harriet E. Duckett, and of my children, Margaret W. Stelwagon, William Henry Duckett and Sarah Duckett, then to hold all the said estate and property in further trust upon the uses and trusts following, that is to say, to and for the only proper use and behoof of the lawful issue of my said children, Margaret W. Stelwagon, William Henry Duckett and Sarah Duckett, their heirs and assigns forever share and share alike ; and in case there shall not be any such lawful issue, then the same to be divided between my nearest of kin, their heirs and assigns share and share alike.”

The distribution ordered in the court below was per stirpes, and resulted in very decided inequality of shares as between testator’s grandchildren. From the decree of distribution, the children of Margaret W. Stelwagon have appealed, and their contention is, that under the above-recited clause of the will, testator’s grandchildren took a vested interest in the residuary-estate ; that the devise is to them as a class, and that the proper rule for distribution is per capita. The devise is to the “lawful issue of my said children,” etc. The case turns on the meaning to be given these words. We are required to allow them their legal import, unless something is discovered in the will clearly indicating a meaning inconsistent therewith. Then too, we are to allow them their plain and ordinary meaning, unless it appear from an examination of the will, that they were used by the testator in a special and peculiar sense. It is the intention of the testator that is to be sought for. If it appear that in parts of the will he has employed terms in a way clearly indicating his own understanding of their import, however this may differ from their legal or ordinary meaning, there can be no safer way of developing the testator’s purpose than to give to these same terms, when elsewhere appearing throughout the instrument, the same meaning the testator has attached to them in the particular instances where his understanding of them is apparent, except as a different purpose in their use is expressed. The will before us furnishes a key, by means of which the sense in which the testator used the words lawful issue is easily discoverable. In the earlier bequest to his daughter, Sarah Duckett, he provides, that if his said daughter should die in his lifetime leaving issue, then the legacy bequeathed was to be paid to such of her children as might then be living. And in the earlier devise to his sister, Mrs. Wilson, for life with remainder to her issue, their heirs and assigns forever, abso-. lutely, he further provides, that upon her death, without leaving-such child or children to survive her, then the estate was to go over. In both instances the testator used the words issue and children, not only interchangeably, but it is apparent beyond possible dispute, that the beneficiaries intended under these several clauses were the children of the several first takers. This repeated use of the word issue to designate children, forbids that it should be given any different meaning in the residuary clause, in the absence of anything to show that other meaning was intended.

Adopting this view of the case, and reading the residuary clause, as though children was the word employed, since by issue, children were meant, the word issrie calls for no interpretation : it is not a governing word. The devise is to the children of testator’s three children; the estate vested in those answering this description. If the word were issue, beyond doubt remoter descendants would take under the devise; but the word issue having been found to mean children, none but those within the class so indicated can take.

By directing a distribution per stirpes, the court below thought to avoid a state of things, which, under the construction we have given the will, could not possibly arise. The consideration that influenced their action was, that allowing the word issue its legal significance, remoter descendants, those of the third generation, would be introduced as beneficiaries under the will, and thus a per capita distribution, “ would weld into one class those whom nature had divided into two, and in that respect would run counter to the human instinct.” The court very correctly concluded that an analysis of the will shows such a distribution to be adverse to testator’s intent. But, as we have said, the word issue is not in the will, except as it means children; and under the terms of the devise as we have found it to be, grandchildren’s children can only take by way of succession in the right of the parent in whom the estate vested. It is very evident that testator contemplated no such distribution as that the court below sought to avoid; and his purpose in this regard is manifest, not so much by the slight indications which may be found in the will of his having had the statutes of distribution in his mind, as by the plainly expressed and evident purpose he had to give his entire residuary estate to his grandchildren as a class. The case calls for a per capita distribution among those entitled to take, to wit: the children of testator’s children, Margaret W. Stelwagon, and William Henry Duckett. The decree of the court helow is reversed, and distribution is directed to be made in accordance herewith.


text:
    Alexander’s Estate.

      Res adjudicóla — Decree of orphans’ court — Refusal to surcharge — Parties— Injunction.

    Where certain of the distributees under a will have asked the orphans’ court to surcharge the executor and trustee of the will with failure to collect from another distributee rent and damages for use and occupation of real estate belonging to the decedent, and it is sought through the surcharge to diminish the distributee’s share by the amount of the rent and damages, and it appears that the distributee actively resisted the surcharge, the decree of the orphans’ court refusing the surcharge is final and conclusive, and a suit at law brought by the other distributees in the name of, and with the permission of, the trustee will be properly enjoined by the orphans’ court.
    Argued Jan. 4, 1906.
    Appeal, No. 137, Jan. T., 1905, by The Fidelity Trust Company, Executor and Trustee, from decree of O. C. Phila. Co., Jan. T., 1896, No. 526, granting an injunction restraining a suit at law against Lucien H. Alexander in Estate of John Alexander, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for an injunction restraining an action at law.
    The facts are stated in the opinion of the Supreme Court.
    The court entered the following decree :
    And now, March 28, 1905, this cause coming on to be heard on petition and answer, and upon consideration thereof the court, on motion of J. Lawrence Wetlierill, Esq., solicitor for the petitioner, order and decree that The Fidelity Trust Company, as executor and trustee under the will of John Alexander, deceased, be, and it is hereby enjoined and restrained from further prosecuting the action at law now pending in the court of common pleas, No. 5, for the county of Philadelphia, to the No. 2,549, of June Term, 1904, wherein said executor and trustee is plaintiff and Lucien H. Alexander is defendant.

      Hrror assigned was the decree of the court.

      M. Hampton Todd, with him H. Gordon McCouch, for appellant,
    cited: Lightner’s Estate, 187 Pa. 237; Sames’s App., 26 Pa. 184; Peterson v. Lothrop, 34 Pa. 223; Miller’s Estate, 169 Pa. 662.

      Luden Hugh Alexander, with him J. Lawrence Wetherill, for appellee.
    March 12, 1906:
   Opinion by

Mr. Justice Stewart,

In the settlement of the account of The Fidelity Trust Company, executor and trustee under the will of John Alexander, deceased, in the orphans’ court of Philadelphia, an effort was made on behalf of one of the distributees under the will, to surcharge the accountant with a considerable sum on account of rent which it was claimed was due and owing to the estate from Lueien H. Alexander, also a distributee, because of his occupancy of certain real estate after the period fixed by the will for its sale, but which accountant had failed to collect, and damages as well, on account of his retention of the premises. That it was an earnest and exhaustive effort appears from the fact that it involved the taking of between 100 and 200 pages of testimony. It failed because, in the opinion of the learned judge who heard the matter, no legal liability on the part of Lueien H. Alexander was shown. Exceptions were filed to this adjudication, but these were withdrawn or abandoned, and the adjudication allowed to become final, pursuant to an agreement entered into between the exceptant and two other distributees under the will, with The Fidelity Trust Company whereby the claim for a surcharge against the company, was to be abandoned on condition that it would permit an action at law to be conducted in its name, as executor and trustee, against Lueien H. Alexander for the recovery of the rent and damages claimed. Such action was subsequently instituted; whereupon Lueien H. Alexander, the defendant therein, presented his petition to the orphans’ court in which he recited the earlier proceeding to surcharge accountant, and the action of the court therein; and alleging that the matter sought to be put in controversy by the suit at law had there been finally adjudicated, he obtained a rule on the trust company to show cause why an order should not issue, requiring it to discontinue the action at law, which it had instituted. This matter was heard on petition and answer, and resulted in a decree enjoining and restraining the trust company, as executor and trusteee, from further prosecuting the action at law, against the said Lucien H. Alexander. The present appeal is from this decree, and it raises but a single question: — did the adjudication of the orphans’ court refusing to surcharge the appellant with the rent and damages now sought to be recovered in the action at law, determine the question of the latter’s liability therefor ? It is argued on behalf of the appellant that the appellee was not a party to the issue there raised and decided; that the controversy was not with him but with the Trust Company alone; and that had a decree of surcharge resulted against the .latter, the appellee would have been without standing to appeal therefrom. It is further insisted that the adjudication shows that there was no claim made by the appellant against Lucien H. Alexander, the appellee, to hold him responsible for the demands to recover which the action at law was brought.

A decree of surcharge against an accountant does not necessarily imply or fasten a liability upon anybody other than the party surcharged. Where the decree is based upon the default of the accountant in connection with assets, in the hands of parties not amenable to the jurisdiction of the orphans’ court, the decree not being conclusive, as against such third parties, they not having been heard, no right of appeal exists in them. But the matter assumes a very different aspect when the default is in connection with assets in the hands of a distributee, as was the case here. If in the course of the inquiry it be made to appear that such distributee is debtor to the estate, and his indebtedness be surcharged against the accountant, in consequence of his failure to collect the same, the adjudication of the court would not be complete except as it subjected the distributive share of the party indebted to a proportionate reduction. The proceeding in the orphans’ court contemplates distribution of the testator’s estate; and as a preliminary to such distribution, it is the duty of the court to settle all questions of advancements or debts that are to stand for advancements: Springer’s Appeal, 29 Pa. 208; Bucknor’s Estate, 136 Pa. 23. The primary debtor to the estate is not the accountant but the distributee; and in such case a surcharge against the former, except as it be followed by a corresponding deduction from the distributive share of the latter, would be most inequitable; and there occur cases where a failure to make such deduction would be most prejudicial to the estate. Tiie indebtedness of a distributee once established, the accountant would have a right to whatever assistance the court could give him to obtain it as an asset of the estate. With jurisdiction acquired over the estate, and all parties interested therein, the court would not only have the power to afford the proper relief to an accountant under such circumstances, but it would be its duty to do so of its own motion. While the proceeding in the orphans’ court was directed in the first instance against the executor and trustee, Lucien H.. Alexander was the ultimate party sought to be charged; a surcharge against accountant would necessarily have resulted in a decree in the same proceeding, charging the amount surcharged against his distributive share. In a very real sense then he was a party to the proceeding. That he realized this himself is abundantly shown by the active part he took in resisting the effort in the court below; and that appellant and the exceptants below equally understood it, fully appears from their acquiesence in his interference. From any decree affecting his distributive share, he would haver had standing to appeal. These considerations are quite sufficient to establish the conclusiveness of the decree as to the matter of his indebtedness to the estate.

That the adjudication shows that no claim was made by appellant against the appellee, to hold him responsible for the demands to recover which the action at law was brought, is the equivalent of saying that the trust company did not specifically ask that any surcharge that might result against it, should be deducted from the distributee’s share; and while this is perhaps literally correct as a statement of fact, it is without significance. It is not so much what the appellant did or failed to do, but rather what the exceptants below did, since they are the real parties in this proceeding as they were in that. That they had in mind a deduction from the distributive share, and so directed their efforts, appears clearly enough from the character of the exceptions filed to the adjudication, one of them being that “ The court erred in not sustaining such surcharge for rent of said premises, and in not awarding that the same be deducted from the amount awarded in distribution to Lucien H. Alexander.” As we have seen, however, the duty of the court in such case, does not depend upon a request being made by anyone; if the indebtedness be established it is the duty of the court to apply so much of the distributee’s share in payment as may be necessary to discharge it.

The doctrine of res adjudicata applies to' this case, and it follows that the court below was entirely right in restraining the appellant as executor and trustee under the will of John Alexander, from proceeding at law to recover from the appellee a demand which it had adjudicated adversely to the estate of which appellant was the legal representative. .

The appeal is therefore dismissed at the cost of the appellant.


text:
    Cox v. Philadelphia Pottery Company, Appellant.

      Corporations — Assignment of property and business to corporation — Agreement to pay debts — Evidence.
    Where a person indebted assigns all of his property and business to a corporation in consideration of the latter paying his debt, a creditor of the assignor may maintain an action against the corporation, and may prove the assumption of the debt by the corporation by showing that the corporation paid other debts of the assignor, had entered in its books his own debt as a liability against the company, and had made payments on account of it.
    Argued Jan. 5, 1906.
    Appeal, No. 93, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1904, No. 1,635, on verdict for plaintiff in case of William Cox v. Philadelphia City Pottery Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a book account.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,439.55. Defendant appealed.

      Errors assigned were various rulings on evidence referred to in the opinion of the Supreme Court, and refusal of binding instructions for defendant.

      A. S. L. Shields, for appellant.
    The plaintiff failed to prove the assumption by the defendant of the debt of Jeffords, Sr., to the plaintiff: Tift v. Quaker City Nat. Bank, 141 Pa. 550.
    Even if the court should be of opinion that the defendant, in consideration of John E. Jeffords, Sr., transferring to it his pottery plant, did agree with him to assume his debts, the plaintiff is not a party to that contract, no consideration moved from him to the defendant, the assets of John E. Jeffords, Sr., were not transferred to the defendant corporation in trust for him, and he cannot legally recover in an action directly against the defendant: Kountz v. Holthouse, 85 Pa. 235; Stone v. Justice, 9 Phila. 22.
    Directors are but the agents of the company, and have power to act only for the interest of the company, and not against it: Simons v. Vulcan Oil & Mining Co., 61 Pa. 202.
    It is well settled that in order to prove the existence or nonexistence of a certain fact, or that a certain act was done by a particular person or in a particular manner, evidence of the existence or nonexistence of a similar but distinct and disconnected fact, or that a similar act was done by such person, or in such manner, is inadmissible: Share v. Anderson, 7 S. & R. 43; Waugh v. Shunk, 20 Pa. 130; Ankeny v. Albright, 20 Pa. 157; Burkholder v. Beetem, 65 Pa. 496; Oram v. Rothermel, 98 Pa. 300; Phillips v. Allegheny Valley R. R. Co., 107 Pa. 472; Miller v. McAlister, 178 Pa. 140; Hayes v. Treat, 178 Pa. 310; Morris v. Guffey, 188 Pa. 534; Burger v. Ins. Co., 71 Pa. 422.

      Leoni Melick, of Melick, Potter Dechert, for appellee,
    cited: Delp v. Brewing Co., 123 Pa. 42.
    March 12, 1906:
   Opinion by

Mr. Justice Stewart,

The plaintiff in the action below was a creditor of John E. Jeffords, who was conducting a pottery business in the city of Philadelphia under the name of John E. Jeffords & Company. It was his contention that the indebtedness due him was contraeted by Jeffords & Company in connection with and for the purposes of this particular business. In 1901, the appellant, the Philadelphia Pottery Company, an incorporated concern, succeeded to the business of John E. Jeffords & Company, taking over all its property. Plaintiff in his statement claimed that in consideration for the transfer of the business and property of John E. Jeffords & Company to the new corporation formed, the latter agreed to assume the debts which John E. Jeffords had contracted in and about the business of John E. Jeffords and Company. If we assume the facts to be as here set out, the right of the plaintiff to maintain his action for the amount due him against appellant must be conceded. The fact that he ivas not a party to the contract would not be material. The law would hold just as in Delp v. Brewing Co., 123 Pa. 42, that the property transferred was held by the new concern for the benefit of the creditors of the old, since it was put in its hands for this express purpose.

It has always been held, says the court in the case referred to, that under such a state of facts the creditor has a right of action to compel payment in accordance with the terms of the agreement. The facts were controverted on the trial of the case, but the jury having found that such was the agreement in taking over the property of John E. Jeffords & Company, the rule as stated fits the case ; and there was no error in the court refusing the instruction asked in defendant’s third point, which refusal is the subject of the fourth assignment of error. The remaining assignments relate to the admission of testimony and the sufficiency of the evidence. It was essential to a i’ecovery by the plaintiff that the evidence should satisfy the jury, first, that the consideration for the transfer of the property of John E. Jeffords & Company to the appellant, was the assumption by the latter of the debts of the former; and, second, that plaintiff’s claim was the proper debt of John E. Jeffords & Company. Direct evidence in support of the latter fact is to be found in the testimony of plaintiff himself, and it prevailed with the jury. The evidence relied on to establish the former, was indirect and in a large degree circumstantial. No express assumption was shown by agreement, resolution or otherwise; the effort was to establish it by a course of dealing pursued by the new company with respect to the other indebtedness of John E. Jeffords & Company. The books of the company were offered to show the payment of other indebtedness of the old firm. It was further in evidence that plaintiff’s claim appeared upon the books of the corporation as an item of liability ; that it appeared regularly in the monthly balance sheets of the company for more than two years, and that different payments thereon had been made by the corporation. For the .purpose indicated, all this evidence was competent on the part of the plaintiff; much of it was denied, and explanations were introduced with respect to some of it, which if accepted would destroy its significance; but this circumstance could not affect the admissibility of the evidence ; this depended on its purpose and relevancy. The purpose, as defined in the offer, was to show the assumption generally of debts relating to the old business by the Philadelphia City Pottery Company. What weight was to be allowed the fact, if proved, was not for the court below to say, nor is it for us. It was a sufficient basis for an inference that there was a general assumption by the appellant of the indebtedness of the earlier concern, as the consideration, or at least part of the consideration, for the transfer to it of the former’s property; and being so, the court could m‘ot have done otherwise than submit the question to the jury. -This was done in a fair and impartial charge. The reference ;by the learned trial judge, to the question of ratification by the new company of the act of the treasurer, in directing the transfer of the account of the plaintiff, as testified to by the bookkeeper, from the books of John E." Jeffords & Company to the ledger of the appellant was unnecessary; since the question of ratification was not involved in the case. Plaintiff’s .demand rested on the original assumption by the company, and not on any subsequent acknowledgment or ratification. The only question in the case was — what was the original contract .of the appellant, if any, with respect to the indebtedness of .the .prior concern? No liability could arise from anything shown by way of acknowledgment or ratification of the acts done by anyone in connection with the transaction. These might become, and in this case perhaps were, so far as they disclosed a course of dealing, controlling circumstances in establishing to the satisfaction of the jury the original agreement out of which defendant’s liability arose. The reference to the matter of ratification, while unnecessary, could not have prejudiced appellant: since the jury were very clearly given to understand-that the question and only question they had to decide was, whether the appellant had assumed the debt of John E. Jeffords & Company to the plaintiff. The several assignments of error are overruled, and the judgment is affirmed.


author: Mr. Justice Fell,

text:
    Shannon Manufacturing Company, Appellant, v. McCaulley.

      Contract — Assignment—Attachment—Partnership—Corporation.
    A partnership consisting of two persons were subcontractors in a building operation. During the progress of the work the members of the partnership organized a corporation which took up and carried on a part of the work. Subsequently the contractor objected to the work thus being done, and stopped payments. A third person who was interested in the completion of the work, took an assignment of the contract together with all money due or which should become due thereon to the partnership, and the work was completed. Subsequently a creditor of the corporation summoned the contractor as garnishee in a foreign attachment. It did not appear that the contract had ever been assigned to the corporation, and it did appear that all of the contractor’s relations, dealings and correspondence were with the partnership and not with the corporation. On the trial of an issue between the plaintiff and the contractor, the plaintiff requested the court to charge that if the partnership turned over the contract to the corporation, and the corporation performed it, and the contractor accepted the performance, he was liable to plaintiff as to the moneys in his hands unpaid on account of the contract. The court answered that the point should be affirmed unless the jury found that the owner of the contract, and those entitled to receive money under it in good faith and for an honest and valuable consideration parted with their interest by assigning such interest to the person who completed the contract. Held, that there was no error in the answer, and that a verdict and judgment for the garnishee should be affirmed.
    Argued Feb. 6, 1906.
    Appeal, No. 298, Jan. T., 1905, by plaintiff, from judgment of C. P. Del. Co., Dec. T., 1901, No. 5, on verdict for William Provost, Jr., Garnishee, in case of The Shannon Manufacturing Company v. George W. McCaulley & Son Company, defendant, and William Provost, Jr., Garnishee.
    Before Mitchell, C. J., Fell, Blown, Elkin and Stew alt, JJ.
    Affirmed.
    Issue in foreign attachment. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    [Now, the court says to you that if you believe 'from all the evidence in the case that prior to December 4, 1901, that the parties or the persons who were the owners of this contract and entitled to receive the money due on it from Provost did in good faith and for a proper consideration, a valuable consideration, did transfer, assign or make over to Fender this contract, in good faith, and for a valuable consideration — the persons who were the owners of it and entitled to it — then the plaintiff cannot recover, if that transaction was honest and fair and was prior to December 4, 1901. That is the great question in this cause, and it will be for you to say under all the evidence in the case, who it was at- the time of the transfer, if it was made to Fender, was the owner of this contract, and entitled to receive the consideration due upon it, and whether they did transfer, assign and turn over to Fender in good faith for a valuable consideration that contract. If they did, the plaintiff cannot recover. If they did not, and you shall find that this corporation was the owner of this contract; that if was turned over to them by the firm; that they were its owners and entitled to receive the money due under it, then the plaintiff is entitled to recover, unless you find that after it had been vested in them, they had transferred it to Fender prior to December 4.] [2]
    [I think the court ought to call the jury’s attention to the fact, because it is an important one bearing upon the question as to who the jury shall find were the owners of this contract, and entitled to receive the money. The uncontradicted evidence is that, so far as the McCaulleys were concerned, whether the firm or the corporation, the two persons, and the only two persons, so far as has been disclosed, that had anything to do with it was George W. McCaulley and Clarence, his son. It was they who had signed the contract originally; it was they who had dictated the letters bearing the name of Son Company or written; it was they who had dictated the letters, or written them, after October bearing the name of the firm, and it was they who executed the paper, if it was executed, on November 5, and it was they who had the conversation and the talk relative to the terms upon which Mr. Fender should take this contract. And you will say whether, under all the circumstances of the case, they were the owners as the representatives of the firm or of the corporation.] [8]
    [So that you will see that whatever the relation that the firm bore, or that the corporation bore, the whole of the business was carried on, so far as McCaulley & Son were concerned by George W. McCaulley and Clarence McCaulley, two of the members, the only two members of the firm, and two out of the three members of the corporation, one of whom was president of it, the father, George W., and Clarence, secretary and treasury. So that the whole question will be for you to say whether or not that transfer made, if it was made to Fender, on or about prior to December 4, was such a turning over as vested the right to control this contract and the moneys arising out of it in the hands of Fender. If it did, the' plaintiff cannot recover in the judgment of the court.] [4]
    Plaintiff presented this point:
    1. If the jury believe that in April, 1901, the McCaulley firm turned over the Provost contract to the McCaulley company to be performed by the company, and the company took said contract and performed it, and that Provost accepted the performance of said contract by the company, and had in his hands on December 4, 1901, $4,350, the balance due for said performance, the verdict should be in favor of the plaintiff, finding in the hands of William Provost, the sum of $4,350, with interest from May 17, 1904, at the rate of two per cent per annum, with leave to the court to mould the judgment. Answer: That is affirmed, unless you find after April, 1901, and before December 4, 1901, the owner of this contract and those entitled to receive the money due under it, in good faith parted with their interest by assigning, transferring or turning it over to James C. Fender for a valuable and honest consideration. [5]
    Verdict and judgment for garnishee. Plaintiff appealed.

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

      W. B. Broomall, with him J. F. B. Atkin, for appellant.

      O. B. Dickinson, with him J. C. Taylor, for appellee.
    March 12, 1906:
   Opinion by

Mr. Justice Fell,

The facts that give rise to this controversy are these: William Provost, the garnishee, had a contract for the building of a schoolhouse, and George W. McCaulley & Son, a partnership, contracted with him to do all the plastering and cement work. During the progress of the work a corporation was formed, composed of the members of the partnership and one other person, under the name of the George W. McCaulley & Son Company. This corporation took up and carried on a part of the work covered by the contract between Provost and the partnership for a period of about six months, when, because of the refusal of Provost, founded on objections to the work done, to make further payments, the work stopped or was about to stop. Fender, who was interested in the completion of the work, offered to furnish money and materials and assume certain debts provided he was given an assignment of the contract. This offer was accepted, and the contract and all money due or which should become due thereon were assigned to him by the partnership, and the work was completed. Subsequent to this assignment the appellant, who was a creditor of the corporation, caused a foreign attachment to issue against it and summoned Provost as garnishee..

The question at the trial was whether Provost owed the partnership or the corporation the money due under the contract. Prima facie he owed the partnership. His contract with it had not been assigned to the corporation nor had it been abandoned and a new one entered into with the corporation. His correspondence relating to the work was with the partnership, his notices were served upon it, all bills and statements received by him were from it, and payments made by him under the contract were made to it and it paid the corporation in full for all the work done by it. Provost could not have maintained an action against the corporation for a failure to complete the work nor could it have maintained one against him for the price of the work done. No testimony has been brought to our attention that would sustain a finding that the garnishee, Provost, had any contractual relation with the corporation or owed it anything. The court, however, submitted to the jury the appellant’s contention that the corporation was the owner of the contract at the time of its assignment to Fender, and that consequently he had acquired nothing under the assignment from the partnership. The verdict was for the garnishee.

The main question raised by the specifications of error relates to the answer to the first request for charge presented by the appellant, which was: “ If tlje jury believe that in April, 1901, the McCaulley firm turned over the Provost contract to the McCaulley company to be performed by the company, and the company took said contract and performed it, and that Provost accepted the performance of said contract by the company, and had in his hands on December 4, 1901, $ 1,350, the balance due for said performance, their verdict should be in favor of the plaintiff.” The answer was: “That is affirmed unless you find that after April, 1901, and before December 4, 1901, the owner of this contract and those entitled to receive the money under it in good faith parted with their interest by assigning, transferring or turning it over to James C. Fender for a valuable and honest consideration.” It is objected that the answer submitted a question not in the case, because the good faith of the party making the assignment was not in issue. It is true that if the partnership owned the contract it could do with it what it pleased, and that if it did not own it the assignment was without effect, and therefore the good faith of the assignment had no bearing on the right to the money in the hands of the garnishee, based on the ownership of the contract. If the word “ assigned ” had been used in the request instead of the words turned over,” the qualification of the answer would have been improper, but these words were of doubtful meaning in the connection in which they were used. They might have been understood as meaning a substitution of the corporation for the partnership, or as meaning a mere employment to carry on the work in fulfillment of the contract. The answer is free from error in view of the appellant’s position that the corporation had with the consent of all parties in interest been substituted, for the partnership, and of the appellee’s claim that even if this was true the contract had been assigned to Fender after the corporation had been paid for all the work done by it, and that the assignment was in its relief and approved and ratified by its officers.

The judgment is affirmed.


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    Doyle v. Chester Traction Company, Appellant.

      Negligence — Street railways — “Stop, look and listen.’’

    In an action by a woman against a street railway company to recover damages for personal injuries, plaintiff testified that she stopped three times when within forty feet of the track, and looked and listened for a car; that the last stop was made when she was close to the track; and that when on the track she first saw the car which struck her; that the car was suddenly lighted and was 125 feet from her. She testified that she stopped the fourth time when she was between the rails. The inference from her whole testimony was that the last stop was made when she first saw the light and in her effort to get out of danger by going back. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Feb. 6, 1906.
    Appeal, No. 368, Jan. T., 1905, by defendant, from judgment of C. P. Del. Co., June T., 1904, No. 280, on verdict for plaintiff in case of Thomas Doyle and Fannie Doyle, his wife, v. Chester Traction Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff Thomas Doyle for $568.89 and for Fannie Doyle for $3,371.12. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. B. Broomall, for appellant,
    cited: Carroll v. Penna. R. R. Co., 12 W. N. C. 348.

      William C. Alexander, for appellees,
    cited: Bard v. Ry. Co., 199 Pa. 94; Cromley v. R. R. Co., 208 Pa. 445; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Confer v. Penna. R. R. Co., 209 Pa. 425; Kuntz v. N. Y. C. & St. L. R. R. Co., 206 Pa. 162; Link v. P. & R. R. R. Co., 165 Pa. 75; Beach v. Penna. R. R. Co., 212 Pa. 567.
    March 12, 1906:
   Opinion by

Mr. Justice Fell,

The negligence alleged is that the defendant’s car was run at a high rate of speed on a public highway on a dark night without lights and without giving any signal of its approach. The plaintiff’s testimony in support of her action is vague and unsatisfactory and her account of the occurrence was met by countervailing proof of much more clearness and force. The case could not, however, have been withdrawn from the jury unless the rule that a person struck by a moving car, which was plainly visible when he was in a place of safety, must be conclusively presumed to have gone into an obvious danger, is to be applied to it. But the rule stated in Carroll v. Penna. Railroad Co., 12 W. N. C. 346, and Myers v. B. & O. Railroad Co., 150 Pa. 386, and since followed in a long line of decisions, is from its nature applicable only to clear cases when there is no reasonable doubt as to the facts or as to the inferences to be drawn from them: McNeal v. Pittsburg, etc., Railway Co., 131 Pa. 184; Cromley v. Penna. Railroad Co., 208 Pa. 445.

The plaintiff testified that she stopped three times when within forty feet of the track and looked and listened for the car; that the last stop was made when she was close to the track ; and that when on the track she first saw the car which was suddenly lighted and was 125 feet from her. She said she stopped the fourth time when she was between the rails, but the fair inference from her whole testimony is that this stop was made when she first saw the light and in her effort to get out of danger by going back. The stops before she reached the track indicate the exercise of care and are opposed to the idea of negligence: Ely v. Pittsburg, etc., Railroad Co., 158 Pa. 233. The stop when between the rails, if imprudent, was made when she was in a position of danger through no fault of her own, and she was not held to the exercise of the best judgment to extricate herself: Stover v. Penna. Railroad Co., 195 Pa. 616.

The judgment is affirmed.


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    Murdaugh, Appellant, v. Oxford Borough.

      Negligence — Boroughs—Defect in sidewalk — Notice—Nonsuit.
    In an action against a borough to recover damages for personal injuries caused by a defect in the cover of a gutter, a nonsuit is properly entered where it appears that the defect in the cover was not structural nor apparent to persons using the pavement; that no one had seen the defect when the cover was in ordinary use; that the borough had no actual notice of it, and there was nothing in the case from which notice to the borough could be imputed.
    Borough authorities are not required to seek for defects in sidewalks, but only to be vigilant to observe them by the exercise of reasonable supervision.
    Argued Feb. 7, 1906.
    Appeal, No. 11, Jan. T., 1906, by plaintiff, from order of C. P. Chester Co., April T., 1905, No. 62, refusing to take off nonsuit in case of Letitia W. Murdaugh v. Oxford Borough.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hemphill, P. J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Thomas W. Pierce, for appellant,
    cited: Rapho Twp. v. Moore, 68 Pa. 404; Fritsch v. Allegheny, 91 Pa. 226; Otto Twp. v. Wolf, 106 Pa. 608; Rosevere v. Osceola Mills Boro., 169 Pa. 555; Fee v. Columbus Boro., 168 Pa. 382; Lohr v. Philipsburg Boro., 156 Pa. 246; McClosky v. Dubois Boro., 4 Pa. Superior Ct. 181.

      Alfred P. Reid, with him S. D. Ramsey, for appellee,
    cited: Byrne v. Philadelphia, 211 Pa. 598; Burns v. Bradford City, 137 Pa. 361.
    March 12, 1906:
   Opinion by

Mr. Justice Fell,

The negligence alleged is that the defendant permitted the cover of a gutter which crossed the sidewalk of a street to remain out of repair. A nonsuit was entered on the ground that the defect in the cover was latent and of recent origin, that the borough authorities had no actual notice of it, and that constructive notice of it could not under the circumstances be imputed to them.

The gutter was one foot wide and six inches deep, and was at the side of an alley that intersected the street. It was covered with an oak board four or five feet long and one foot wide, so placed as to be flush with the pavement on one side and with the flagstones of the alley on the other side. The board was supported by two iron bars the ends of which were bent at right angles at the sides of the board and rested on the bottom of the gutter. These bars were securely bolted to the board, one near either end, and the bent ends served as legs to support the board. The cover was in construction a low bench placed in the gutter to make the surface of the footway even. It was of a kind in common use on the street and had not been displaced during the five or six years it had been in use until about three weeks before the plaintiff’s injury, when someone driving on the alley allowed the wheel of his wagon to strike one end of it, cracking the board' lengthways, loosening some of the bolts, and breaking one leg off at the side of the board. After this the cover would move if struck by a wagon wheel, and one end would tilt up if a pedestrian stepped on the other end. The crack in the board was very slight and had not been observed by anyone while walking on the pavement, and the bolts, although loosened, held the board to the iron bars. Neither the crack nor the loosening of the bolts caused the accident. It was caused by the leg which supported one corner of the board being broken. This defect was not apparent in the ordinary use of the cover. The learned trial judge in stating his reason for the entering of a nonsuit said, in speaking of the cover: “ No one has been called to show that it was dangerous or any accident ever occurred there, or any tilting, or anything to give warning of notice at all.” The plaintiff had walked over it almost daily, and three times before on the day of the accident. At the time of the accident her brother was walking at her side and he stepped on one end of the cover and the other end was tilted and tripped her.

Two or three persons who had seen the cover displaced when struck by a wagon wheel had observed that the leg was broken, but no one who had seen it in place had noticed any defect and none was observable in its ordinary use. There was no ground for the imputation of notice to the borough. The defect in the cover was not structural nor apparent to persons using the pavement. For such a defect the borough was not answerable in damages. Borough authorities are not required to seek for defects in sidewalks, but only to be vigilant to observe them by the exercise of reasonable supervision : Lohr v. Philipsburg Borough, 156 Pa. 246.

The judgment is affirmed.


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    Mankewicz, Appellant, v. Lehigh Valley Railroad Company.

      Negligence — Railroads—“Stop, look and listen” — Nonsuit.
    The rule that a traveler before attempting to cross the tracks of a steam railroad, must stop, look and listen, is not complied with by stopping where he cannot see. If a driver cannot see by looking from the vehicle in which he is riding, he should get out and walk forward to a place where he can see.
    In an action against a railroad company for personal injuries sustained at a grade crossing by a collision between a train and a sleigh, a nonsuit is properly entered where it appears that the plaintiff approached the crossing, knowing that it was dangerous, that the gates were up, and the watchman no longer on duty and that a train was due; that he stopped at a place where admittedly he could not see because of standing freight cars, and that he made no further efforts to advise himself of the true condition of the surroundings, but drove upon the track and was injured.
    Argued Feb. 18, 1906.
    Appeal, No. 370, Jan. T., 1905, by-plaintiff, from order of C. P. Schuylkill Co., May T., 1900, No. 204, refusing to take off nonsuit in case of William Mankewicz v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal- injuries. Before Shay, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      K. H. Koch, for appellant.
    The case was for the jury: Elston v. R. R. Co., 196 Pa. 595; Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Pyne v. R. R. Co., 212 Pa. 143; Beach v. Penna. R. R. Co., 212 Pa. 567; McCarthy v. Ry. Co., 211 Pa. 193.

      Guy E. Farquhar, with him Otto E. Farquhar, for appellee.
    The nonsuit was properly entered: Urias v. Penna. R. R. Co., 152 Pa. 326; Penna. R. R. Co. v. Beale, 73 Pa. 504; Hughes v. D. & H. Canal Co., 176 Pa. 254; Kinter v. Penna. R. R. Co., 204 Pa. 497; Kelley v. Penna. R. R. Co., 19 W. N. C. 400.
    March 12, 1906:
   Opinion by

Mr. Justice Fell,

The plaintiff was injured at a grade crossing of the defendant’s road where there were four tracks in the borough of Shenandoah. He was familiar with the crossing, knew that the watchman was not at that time on duty, and that a train was about due. He was driving two horses to a sleigh in which a number of persons were riding, and when he reached the crossing freight cars were standing on the track nearest him, on either side of the street. He stopped close to this track and looked and listened. He was unable to see an approaching train because of the freight cars and, hearing none, he drove on. The front part of the sleigh was struck by the engine of a passenger train on the third track, about forty feet from the place where he had stopped. The train was near the station, running slowly, and was stopped within thirty feet of the place of the collision. The time was six o’clock in the evening in the early part of February and it was snowing. The situation was thus clearly summarized by the learned trial judge: “ A man approached a railroad crossing which he confessedly knew to be dangerous, he knew the gates were up and the watchman lio longer on duty; he knew that a train was about due, stopping at a place where admittedly he could not see; making no further efforts to advise himself of the true condition of the surroundings, he drove upon the track and was injured.”

The rule that a traveler before attempting to cross the tracks of a steam railroad must stop, look and listen is not complied with by stopping where he cannot see. The rule is one of law, absolute and unbending, and must be complied with in good faith for the accomplishment of the end in view. Where a' stop has been made at the usual place for stopping, from which a view of the tracks can be had, it is generally a question for the jury whether under the facts of the particular case there was negligence in not stopping longer or at another and better place: Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 238. There has been no departure from the rule that if a driver cannot see by looking from the vehicle in which he is riding he should get out and walk forward to a place where he can see. There should be no departure from it. Stopping where an approaching train cannot be seen is but little better than not stopping at all and is not an observance of the duty to stop, look and listen. In the recent case of Kinter v. Penna. Railroad Co., 204 Pa. 497, the authorities on the subject were reviewed by Justice Brown, and it was shown that the principle has been uniformly recognized in the cases following Penna. Railroad Co. v. Beale, 73 Pa. 504.

The judgment is affirmed.