text:
    Miller’s Appeal.

      Trust and trustees — Following trust fund — Receiver—Surety.
    Where a receiver deposits the moneys of his estate in a trust company, which is the surety on his bond, and it is arranged that the moneys shall bear interest and shall be subject to check with the counter signature of the officers of the trust company, and such moneys are mingled with the general funds of the company, the receiver cannot, after the insolvency of the trust company, claim that he is entitled to have returned to him out of the assets of the company the whole of the balance of his account, under a rule of court which provides: “That all corporations approved as security shall keep any and all moneys and securities which may have been received by them from persons for whom they may become sureties separate from all other funds or securities, and in a separate and earmarked account.”
    Argued March 28, 1907.
    Appeal, No. 121, Jan. T., 1907, by N. Dubois Miller, receiver of Pennsylvania Mutual Life Insurance Company, from decree of O. P. No. 5, Phila. Co., J une T., 1905, No. 2,040, dismissing petition to pay balance in full in case of Commonwealth ex rel. v. City Trust, Safe Deposit & Surety Company of Philadelphia.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Petition to pay money.
    The facts are stated in the opinion of the Supreme Court.

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

      JV. Dubois Miller and John J. Ridgway, with them J. Rod-man Paul, for appellant.
    The relation between the city trust company and the appellant was that of trustee and cestui que trust and not that of debtor and creditor.
    The appellant is entitled to have returned to him out of the cash assets which came into the trust company’s receiver’s hands, whether they exist in the form of bank bills or bank balances, the whole amount of the cash deposited by him with the city trust company, less the amounts paid on account by his checks: Hallett’s Est., L. R., 13 Ch. Div. 696; Witecomb v. Jacob, 1 Salk. 160; Pennell v. Deffell, 4 De G., M. & G. 372; In re Oatway, L. R. 2 Ch. (1903) 356; In re Mulligan, 116 Fed. Repr. 715; Roca v. Byrne, 145 N. Y. 182 (39 N. E. Repr. 812); Drovers’, etc., Nat. Bank v. Roller, 85 Md. 495 (37 Atl. Repr. 30); Farmers’ & Mechanics’ Nat. Bank v. King, 57 Pa. 202.

      John Kent Kcme, with him Murdock Kendrick and Staake & Patton, for appellee.
    No preference existed in favor of appellee: Carmany’s App., 166 Pa. 622; Freiberg v. Stoddard, 161 Pa. 259; Farrell’s Assigned Est., 17 Pa. Superior Ct. 240.
    The case of Cobson’s Est., 3 Pa. Superior Ct. 244, is directly in point.

      April 29, 1907:
   Opinion by

Mr. Justice Fell,

The appellant was the receiver of the Pennsylvania Mutual Life Insurance Company, and made a written application to the City Trust, Safe Deposit & Surety Company requesting it to become surety on his bond. In this application he agreed that all assets coming into his hands as receiver should be deposited with the trust company, that his account should be subject to check only for the purposes of the estate, and that all checks should be countersigned by the trust officer of the company. The money deposited ivas to bear interest. On March 20, 1905, the appellant deposited with 'the trust company a check for $17,768.52, which on the same day was deposited by the trust company in the Third National Bank, with other checks aggregating $47,104. The trust company’s account with the bank was a general one, and was increased and decreased from time to time. Its deposits with the bank at one time amounted to $019,202, and included other money received by the trust company on the same conditions as that received from the appellant. The balance was reduced by withdrawals in the ordinary course of business to $3,263. On June 21, 1905, when the trust company became insolvent, the balance to its credit in the Third National Bank was $13,054, and in other banks $430,000. At this date there were balances due to others who had made deposits with the trust company under the same circumstances that the appellant had, and whose deposits had been placed in the Third National Bank, aggregating $20,369. The checks drawn by the appellant before the insolvency of the trust company were not paid out of the funds deposited by it in the bank, but out of funds received by it in the ordinary course of its business. It was the practice of the trust company to keep a separate and earmarked account of money and securities deposited with it as indemnity or counter security, but money deposited with it by a person occupying a fiduciary relation, subject to check with the counter signature of the officers of the trust company and bearing interest, wras mingled with the general funds of the company.

The claim of the appellant was that the relation between the City Trust Company and him was not that of debtor and creditor, but that of trustee and cestui que trust, and that he was entitled to have returned to him out of the assets of the trust company the whole of the balance standing on the books to his credit as receiver of the insurance company. This claim was not based on any arrangement made with him when the account was opened, but upon the fact that a rule of the courts of common pleas of Philadelphia provides that all corporations approved as surety shall keep all moneys and surety received by them from persons for whom they become security in separate and earmarked accounts, and that a stipulation to this effect was included in the general application of the trust company to the courts to be approved as surety. This claim was disallowed on the ground that the case presented by the petition and answer was not that of one whose money had been received by a fiduciary and mingled with other money, and could be traced, but of one who had made a deposit that bore interest, was subject to check and was placed in the general funds of the trust company.

There was no error in refusing the prayer of the appellant’s petition. His deposit was made on the same terms,' except for the restriction mentioned as to countersigning checks as other deposits. That restriction was for the protection of the trust company as surety, and in no other respect affects the relation of the parties. If the rule of court applies to a deposit of this character it was not observed, and no trust relation was established. If it had been established, the appellant would not have been entitled to a preference. His money was mingled in a deposit of $619,000, over $20,000 of which was deposited by other persons for whom the company was surety. The total fund was reduced to $3,263. By no possibility could more than $3,263 of the balance due by the bank to the trust company at the time of its failure be traced as a trust fund, and, even if it could be traced, the appellant would have no claim to it higher than the claim of others who had deposited on the same conditions.

The order of court is affirmed at the cost of the appellant.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Camblin v. Philadelphia, Wilmington & Baltimore Railroad Company, Appellant.

      Negligence — Railroads—Siding—Operation of cars — Contract.
    A railroad company cannot relieve itself from liability for negligence in the operation of its road by a contract for the movement of its cars; and this is applicable not only to the main line, but also to a siding partly owned by the railroad company, and partly on private property.
    Argued March 28, 1907.
    Appeal, No. 397, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Pbila. Co., March Term, 1903, No. 2,667, on verdict for plaintiff in case of Robert Camblin v. Philadelphia, Wilmington & Baltimore Railroad Company;
    Before Mitchell, C. J., Fell, Méstrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $4,275. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Sharswood Bri/nton, with him John Hampton Barnes, for appellant,
    cited : Edmundson v. Ry. Co., 111 Pa. 316; Chartiers Valley Gas Co. v. Waters, 123 Pa. 220; Thomas v. Ry. Co., 191 Pa. 361.

      Henry J. Scott, for appellee,
    cited : P. W. & B. Railroad Co. v. Hahn, 22 W. N. C. 32.
    April 29, 1907:
   Opinion by

Mr. Justice Fell,

The plaintiff, while at work in a blacksmith shop which adjoined a coal yard, was injured by a car which broke through the side wall and entered the shop. The car was loaded with coal and was being moved from the defendant’s track on Washington avenue to a coal yard which abutted on the avenue by mules that were under the charge of an employee of C. H. Lafferty, who had contracted with the defendant to furnish teams and to move all cars on its tracks on the avenue, loaded or empty, and to and from all private sidings. He was directed to move-the car by the defendant’s dispatcher and he testified that he was unable to stop it because of a defect in the brake.

The instruction to the jury was that the defendant was responsible if the accident was caused either by a defective brake or by the negligence of the contractor’s employee who drove the mules. It is to the latter part of this instruction that exception is taken. That a railroad company cannot relieve itself from liability for negligence in the operation of its road by a contract for the movement of its cars was decided in P. W. & B. Railroad Co. v. Hahn, 22 W. N. C. 32, in which it was said: “ It contracted for the operation of a part of its road by horse-power, and under this contract asks to be relieved from all responsibility for the negligent acts of its contractor. We cannot agree with a proposition of this kind, for the principle, if established, might be the means of relieving the company from all its charter duties so far, at least, as concerns public safety. The mere question of the power by which its cars are to be moved is of no consequence. If it can contract for horsepower, so may it for steam, and it follows that it might relieve itself of all responsibility by contracts with its engineers and conductors for the running of its locomotives and trains.”

In that case the cars at the time of the accident were being moved by the contractor on the defendant’s tracks on the avenue; in this case a car was being moved on a siding which extended from the tracks on the avenue to a coal yard and was partly on private property. It is argued that the difference in the facts makes the decision in Railroad Co. v. Hahn inapplicable because the contractor was not performing any part of the public duty of the defendant in putting the car on a private siding. This position cannot be sustained. The defendant undertook to deliver the coal to the consignee by moving its car on a siding which connected his yard with its tracks. This siding was its property and a part of its system of tracks, to the edge of the street at least, and was maintained for the mutual advantage of itself and the owner of the yard. In moving cars on the siding it was exercising its charter power in the operation of its road and this could not be delegated so as to relieve it of responsibility.

The judgment is affirmed.


author:
Mr. Justice Potter,
      Mitchell, C. J.,

text:
    Bardsley v. Gill, Appellant.

      Negligence — Master and servant — Dangerous appliances — Lack of customary devices — Explosion of oil — Evidence—Contributory negligence.

    The particular duty of an employer to an employee in any given case is to be ascertained from the nature of the employment and the location and condition of the premises, and the particular facts of the case. A higher degree of care is required in dealing with an explosive substance, such as fuel oil, than in the ordinary affairs of life or business.
    Where a witness gives testimony as to a long experience with different oils, and states that he knew of some thirty or forty industrial institutions using fuel oil, he may testify that a room in which such oil was kept was not properly ventilated, and he may state what methods and appliances should have been used, and what precaution should have been taken, to insure safety to employees, and he may also state what methods are employed in other establishments.
    Where persons employed in other establishments, without knowledge of a general custom, testify as to the methods employed in their particular establishments, the jury may say what the general custom is, from a consideration of the testimony of such witnesses.
    In an action by a wife to recover damages for the death of her husband, caused by the alleged negligence of the defendant, her husband’s employer, in storing fuel oil, the facts proven were, that fuel oil generated explosive gases at all times; that an open manhole in the oil tank permitted the gas to permeate the room in which the deceased was killed; that contact with flame would explode the gas; that there was no permanent light of any kind in the oil room; that lamps and candles were used habitually by the employees in entering the room, and were provided for that purpose; that a witness who accompanied the deceased into the room stated that he thought deceased had a light, but, owing to his own injury received at the time, he could not be positive. Held, that these facts were sufficient to sustain an inference that the deceased did what he was expected by his employers in case of need to do, that is, to enter the oil room with an open light, and that this light, coming in contact with the gas, caused the explosion.
    Servants may assume that all instrumentalities are fit and suitable for the use to which the master applies them, and that they are properly adjusted to each other. If a servant uses’such instrumentalities in a proper manner, he cannot be charged with contributory negligence.
    Mitchell, C. J., dissents.
    Argued March 29, 1907.
    Appeal, No. 375, Jan. T., 1906, by defendants, from judgment of G. P. No. 2, Phila. Co., March Term, 1902, No. 1,659, on verdict for plaintiff in case of Martha Bardsley v. Gill & Company.
    Before Mitchell, O. J., Pell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Barratt, J.
    Verdict and judgment for plaintiff for $7,500. Defendants appealed.
    The facts are stated in the opinion of the Supreme Court.
    The assignments of error which were twenty-two in number were various instructions and rulings on evidence sufficiently referred to in the opinion of the Supreme Court.

      W. W. Smithers, of Smithers <& Lank, for appellant.
    A usage which is to govern a question of right should be so certain, uniform and notorious as probably to be known to and understood by the parties as entering into their contract. And it cannot be proved by single isolated instances : Cope v. Dodd, 13 Pa. 33; Coxe v. Heisley, 19 Pa. 243 ; Del. River Iron Ship Building Co. v. Nuttall, 119 Pa. 149; Fricker v. Bridge Co., 197 Pa. 442.
    To be relieved from liability for injuries received by a servant from the use of defective materials, the master is not required to supply the best materials known, or to subject such as he does supply to an analysis to determine what hazard may be incurred in their use: Allison Mfg. Co. v. McCormick, 118 Pa. 519; Purdy v. Mfg. Co., 197 Pa. 257; Fricker v. Bridge Co., 197 Pa. 442 ; Ehni v. Tube Works Co., 203 Pa. 186; Zeilmann v. McCullough, 214 Pa. 27.
    In view of the whole evidence in this case it is submitted that plaintiff was not entitled to recover under the following cases: Douglass v. R. R. Co., 209 Pa. 128; Hoag v. R. R. Co., 85 Pa. 293 ; Ry. Co. v. Trich, 117 Pa. 390 ; McGregor v. R. R. Co., 212 Pa. 482; McCarthy v. Shoneman Bros. 198 Pa. 568; Allen v. Coal Co., 212 Pa. 54; Bradbury v. Coal Co., 157 Pa. 231; Cooper v. Butler, 103 Pa. 412; Mixter v. Coal Co., 152 Pa. 395; Zahniser v. Torpedo Co., 190 Pa. 350; Spees v. Boggs, 198 Pa. 112; Gas Co. v. Robinson, 99 Pa. 1; Allison Mfg. Co. v. McCormick, 118 Pa. 519; McClain v. Henderson, 187 Pa. 283; Alexander v. Water Co., 201 Pa. 252; Lawson v. Steel & Wire Co., 204 Pa. 604.

      Henry J. Reiman, with him Glenn G. Mead and James Gay Gordon, for appellees.
    -The law permits juries to draw reasonable inferences from proved and relevant facts : Wagner v. Jayne Chemical Co., 147 Pa. 475; Warren v. Ulrich, 130 Pa. 413; Hughes v. Fayette Mfg. Co., 214 Pa. 282; O’Rourke v. Construction Co., 21 Pa. Superior Ct. 52; Stephenson v. Penna. Railroad Co., 20 Pa. Superior Ct. 157.
    It was in entire accordance with the Pennsylvania authorities to apply the test of ordinary usage in the business to the defendant company’s oil room equipment: Titus v. Bradford, etc., R. R. Co., 136 Pa. 618; Kehler v. Schwenk, 151 Pa. 505; Greenan v. Eggeling, 30 Pa. Superior Ct. 253; Bonner v. Bridge Co., 5 Pa. Superior Ct. 281; Bannon v. Lutz, 158 Pa. 166; Sweigert v. Klingensmith, 210 Pa. 565; Kepler v. Lackawanna Lumber Co., 209 Pa. 211.
    The uncontradicted testimony showed that fuel oil at all times emits explosive gases which mingle with the surrounding atmosphere. It was the defendant companjr’s duty to know this and take reasonably prudent precautions in respect thereto: Tissue v. Baltimore & Ohio R. R. Co., 112 Pa. 91; Durst v. Steel Co. 173 Pa. 162.
    April 29, 1907:
   Opinion bt

Mr. Justice Potter,

The plaintiff in this case seeks to recover damages for the death of her husband, who was killed in an explosion at the defendants’ factory on November 27,1901. Richard Bardsley, the husband, was employed by the defendants as a night engineer, performing, among other duties, that of caring for an oil pump which drew fuel oil from a room in which it was stored, in the cellar of the factory, to the furnace room where it was used as fuel for melting glass.

On the night of the explosion the flow of oil from the tank became in some way obstructed. The matter was reported to Bardsley, the engineer, and he went to the oil room to ascertain the source of the trouble. A few moments later the explosion occurred, and the night watchman found Bardsley staggering about in the oil room, where he soon fell dead. The fireman who came in a little later, testified that he found Bardsley’s body lying over a box or barrel, with his head facing away from the oil tank. Iiis clothing was scorched. McCormick, who was a companion of Bardsley, was also injured by the explosion, and could give no clear version of the accident beyond the mere fact that it happened. While he would not state positively that Bardsley was carrying a light when the accident happened, yet he thought so. There was positive evidence that there was no fixed light in the room where the explosion occurred. In the daytime some light was afforded by a small door or shutter, which could be opened; but even this was usually closed. There was evidence that defendants supplied their employees with candles or lamps to use about their work. There were three tanks in the oil room, one of which apparently was never used. The larger of the two remaining tanks had a capacity of about 2,800 gallons of fuel oil. It was sunk in the floor, and in its top there was a manhole through which passed an oil pipe and two steam pipes. The tank contained a steam coil used for heating the oil when it became sluggish in cold weather. There was evidence that the general nature of fuel oil is to give off explosive gases at any temperature, and that heating the oil increases the volume of gas produced.

The negligence charged was, in substance, failure to provide safe conditions for the employees to work in and about the oil room. Specifically, defendants were charged, among other things, with improper construction, arrangement and equipment of the tank and oil room, in these respects: (a) No covering provided for the manhole of the tank, (b) Lack of usual and customary devices to indicate quantity of oil in tank. (e) Lack of usual and customary devices to indicate temperature of oil -as affected by the steam pipes used for heating the oil. (d) Lack of adequate means of ventilation for carrying off gases. In addition, they were charged with failure to supply Bardsley with a safety lamp, and with violation of duty in not notifying Mm of the dangerous condition of the room. Evidence tending to sustain these charges was offered by plaintiff. The defendants offered no testimony, and asked for binding instructions at the close of the evidence for the plaintiff. The trial judge refused the request and submitted the facts and inferences to be drawn therefrom, to the jury in a very careful and discriminating charge.

The first group of assignments, as arranged by counsel for appellant, complains of the admission of evidence as to what other employees did, and as to what instructions they received, and as to the condition of the plant, at other times. Some latitude must be allowed in such cases as this, where much of the evidence was unattainable, by reason of the explosion. The particular duty of the employer in any given case, is to be ascertained from the nature of the employment, and the location and condition of the premises, and the particular facts of the case. It was proper that the jury should be informed as to the methods pursued by the defendants in handling this dangerous kind of fuel. “ A higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life or business: ” ICoelsch v. Phila. Co., 152 Pa. 355.

In the second group of assignments complaint is made of the admission of the testimony of the witness Ohesshire. He was offered as an expert on the subject of fuel oil, and his knowledge and long experience with oil would seem to qualify him admirably. He testified, in substance, that fuel oil is a byproduct of a crude oil that is produced in the manufacture of other oils. Fuel oils are black and very oily, having a beaume gravity of 29 to 35, with a fire test from 175 degrees to 300 degrees F. It is the general nature of these oils to give off gases, at all temperatures, but, if heated, the volume is increased. These gases are explosive only when brought in contact with an open flame. In answer to a hypothetical question, he stated that defendants’ method of storing the oil was not the customary method. It is usually stored in tanks in the open air with ventilating shafts, and the amount and temperature of oil is determined by gauges. The witness stated that he knew of some tlfirty or forty industrial institutions using fuel oil. He was of the opinion that the room, under the evidence as set forth in the hypothetical question, was not property ventilated ; that the manholes should have had lids with vent pipes leading to the open air; that there should have been at least two windows, always open, withj a flue to the outer air; that there should have been an oil gauge outside of the oil room, and that there should have been a fixed electric light with a vapor-proof globe, and that open lights should have been forbidden.

We think this evidence was entirety relevant, and very much to the point, as tending to show the ordinary usage and proper method in dealing with oil, for fuel purposes, as contrasted with the method used by defendants. This answer applies also to the third group of assignments, in which complaint is made of the admission of evidence as to the methods employed in other establishments. To show those methods, employees of certain glass firms were called. These men knew nothing of general customs, but testified as to the methods employed in their particular establishments. In all of these the tanks were ventilated by vent pipes or hoods connected with the outer air, with tight coverings over the manholes. One testified that at his establishment there was a glass gauge to determine the quantity of oil, without going into the room. The other two witnesses stated that their tanks were apart from the main factory buildings. These methods were in direct contrast to that pursued by defendants.

It is true that no single instance is sufficient to prove a custom, but custom is certainty made up of an aggregation of different instances. It was a question of fact for the jury to say what the general custom was, after the evidence of the methods in use in various concerns was before them. The question was, as to the usual and proper method of storing oil, and rendering it reasonably safe to the employees, when used as fuel; whether in glass factories or in other factories did not matter. It was the storage and care of this class of fuel oil which was under consideration. There was evidence that the explosive gases emitted from fuel oil rendered it a more or less dangerous commodity under any conditions, so dangerous that the proper practice was to store it apart, and in a separate place. But if this was not done, defendants were at least bound to take such ordinary and reasonable precautions, as were in customary use in other factories using oil for fuel.

We see no merit in the fourth group of assignments, in which error is alleged in the general charge of the court. The question of ventilation, to carry off dangerous gases, was most important, as bearing upon the measure of duty required of the employer, and was properly put before the jury. So also was the fact that under the evidence, the gases would explode onljr when brought into contact with flame, and it therefore became a question for the jury whether failure to furnish illumination for the oil room other than that from the open flame of a lamp or candle, was negligence. The same thing is true of the failure to provide a tight manhole cover to the tank, to confine the explosive gases, and prevent them from spreading into the room.

Without burdening the opinion with further details, it is sufficient to say that we think the evidence, which was uncontradicted, was sufficient to justify the jury in reaching the conclusion that the defendants were negligent in failing to provide the ordinary and well-known facilities in common use in storing fuel oil, for the protection of the workmen engaged upon the premises, in the performance of their duties. And that the jury were justified in drawing the inference that as a consequence of the neglect, the explosion followed. The evidence was circumstantial, it is true, but that is sufficient in such cases to sustain the burden of proof. The inference of negligence upon the part of the employer is not confined to direct evidence alone: Hughes v. Fayette Mfg. Co., 214 Pa. 282. The facts proven were, that fuel oil generates explosive gases at all times, but especially when heated ; that in this case the fuel oil was heated; that the open manhole in the oil tank permitted the gas to permeate the room; that contact with flame would explode the gas; that there was no permanent light of any kind in the oil room; that lamps and candles wrere used habitually by the employees in entering the room, and were provided for that purpose; that the witness who accompanied the deceased into the room stated that he thought Bardsley had a light, but, owiDg to his own injuries received at the time, he could not be positive. From these proven facts, we think the jury were entitled to draw the inference that Bardsley did what he was expected by his employers in case of need to do; that is, he entered the oil room with an open light, and that this light, coming in contact with the gas, caused the explosion. The inference that the accident happened in this Avay was certainly reasonable and natural.

We do not regard the evidence of alleged contributory negligence upon the part of Bardsley as sufficient to justify a binding instruction to the jury to find for the defendants. This was also a question for the jury, and the rights of the defendants in this respect were carefully and sufficiently guarded by the trial judge in his charge. The jury were instructed that if Bardsley Avas negligent in the slightest degree, in any matter contributing to the accident, there could be no recoArery.

The defendants did not see fit to offer any testimony, but if as is argued, Bardsley took a light with him into the oil room, he Avas only making use of that which had been provided for him, for that very purpose, by his employers. “ Servants may assume that all instrumentalities are fit and suitable for the use to which the master applies them, and that they are properly adjusted to each other: ” Shearman & Redfield on Negligence, sec. 217. As was said in Durst v. Steel Co., 173 Pa. 162: “The master owes-certain duties to the employee, and among these is to furnish a reasonably safe place to Avork, and to notify the employee of any latent danger of which the employer has knowledge, or Avith reasonable care would know. These duties cannot be avoided.” Of course, if Bardsley had known that the oil room was filled with gas or fumes from the oil,'and had then gone in with an open lamp, or lighted a match, he would have assumed the risk. But there is no evidence of that. He had the right to rely upon the intelligence and faithfulness of his employers in providing reasonably safe methods of storing the oil, and he cannot be charged with contributory negligence because he made use of the facilities supplied to him for thak'purpose in his work. We do not see that the defendants have any just cause for complaint as to the admission of evidence, or as to the manner in vvhich this case was submitted to the jury.

The assignments of error are overruled, and the judgment is affirmed.

Mitchell, C. J.,

dissenting:

I do not think any negligence on the part of defendants in the arrangement and equipment of the oil room was shown, but even assuming that enough evidence was given to take that question to the jury, there was no evidence at all that it caused the explosion. As to the cause, the verdict was a mere guess by the jury. What little evidence there was pointed to an open light as the immediate cause. But if it was negligence in the defendants not to supply safety lamps to their employees on the rare occasions when they might have to enter the oil room at night, then it was equally negligent in the deceased to go with an open light into the room where he knew there was some trouble. The explosion, if that was the cause of it, and no other theory is as plausible, was as much the result of the deceased’s own negligence as of anything else.


author: Mr. Justice Elkin,

text:
    May’s Estate.

      Courts — Jurisdiction—Supreme and Superior Courts — Amount in controversy.

    Where a creditor of a decedent is awarded a claim in the orphans’ court, amounting to more than 11,500, an appeal lies to the Supreme Court, although the legatee appealing has an interest in the fund in controversy to an amount less than $1,500. The amount of the award fixes the jurisdiction.

      Vendor and Vendee — Mortgage—Taking subject to mortgage.

    A vendee of property taken expressly subject to a mortgage, makes the debt his own, and if, on the foreclosure of the mortgage there is -a deficiency which the vendor is obliged to pay, he may recover the amount of his loss in an action against the vendee.
    In such a case the words “ under and subject ” are to be construed as a covenant of indemnity for the protection of the grantor, and the liability of the vendee, under his implied covenant, is not simply deterris but is coextensive with the original obligation.
    The Act of June 12,1878, P. L. 205, does not affect the liability of the grantee to his grantor, but only applies to the relations between the grantee and the holder of the incumbrance.
    Blood v. Crew Levick Co., 171 Pa. 328, explained and distinguished.
    The rule that a vendor may recover from the vendee the amount of a deficiency does not apply where the vendor and the mortgagee enter into an arrangement by which competition is stifled at a sheriff’s sale under the mortgage, so as to place the property in the hands of the vendor for an amount less than the amount of the mortgage. Where in such a case it appears that the vendor was willing to bid up the property to an amount sufficient to pay the mortgage, and that he so instructed his attorney, it will be presumed, when he only bid a nominal amount, that he accepted the property as the full value of the mortgaged debt.

      Vendor and Vendee — Taxes—Liability.
    Taxes on real estate are a personal liability against the owner at the time of the assessment.
    Argued Jan. 11, 1907.
    Appeal, No. 258, Jan. T., 1906, by Celia May, from decree of O. C. Phila. Co., April T., 1905, No. 734, sustaining exceptions to adjudication in Estate of Simon May, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in sustaining exceptions to adjudication.

      George P. Rich, for appellant.
    -Where a property purchased by a vendee “ under and subject” to the lien of a mortgage created by the vendor has been subsequently sold, by foreclosure proceedings at the instance of the mortgagee, for less than the amount of the incumbrance, the vendor, who, under threat of proceedings on his bond, has paid the difference to the mortgagee, can maintain no action against the vendee to recover the amount thus paid by him: Merriman v. Moore, 90 Pa. 78; Hirst’s Appeal, 92 Pa. 491; Blood v. Crew Levick Co., 171 Pa. 328; Kirker v. Wylie, 207 Pa. 511.
    An agreement by a bidder at a sheriff’s sale of real estate to pay the judgment of another, if the latter would not bid, and permit the former to purchase the property at the sale, is fraudulent and void as to the debtor or his creditor: Slingluff v. Eckel, 24 Pa. 472; Barton v. Benson, 126 Pa. 431; Hay’s Estate, 159 Pa. 381; Phelps v. Benson, 161 Pa. 418.
    The sale, if legal, has realized the full amount of the incumbrance.

      William M Oaveny, for appellee.
    -The claim for taxes for the year 1905, which were assessed on January 1, 1905, was a liability of the estate, which could be enforced against the assets in the hands of the executors: Gimber’s Estate, 15 Pa. Dist. Bep. 59.
    The owner at the time the taxes were assessed is personally liable for the full year’s taxes, even though he parts with the property immediately after the assessment: Hogg v. Longstreth, 97 Pa. 255; King v. Mt. Vernon Building Association, 106 Pa. 165; Building Association v. Webb, 12 Pa. Superior Ct. 515; Theobald v. Sylvester, 27 Pa. Superior Ct. 362.
    One who purchases expressly subject to an incumbrance as between the vendor and himself makes the debt his own and assumes to protect the vendor; such assumption is in part or the whole consideration of the conveyance to him: Burke v. Gummey, 49 Pa. 518; Moore’s App., 88 Pa. 450; Old Colony Trust Co. v. Transit Co., 192 Pa. 596.
    The act of June 12, 1878, does not affect the relations between grantor and grantee, but merely the relations between the grantee and the holder of the incumbrance: Moore’s App., 88 Pa. 450; Blank v. German, 5 W. & S. 36; Walker v. Physick, 5 Pa. 193 ; Keim v. Robeson, 23 Pa. 456; Academy of Music v. Smith, 54 Pa. 130; Taylor v. Preston, 79 Pa. 436; Samuel v. Peyton, 88 Pa. 465.
    Blood v. Crew Levick Company, 171 Pa. 328, cannot be considered an authority on this question.
    The agreement between Millett and the Alexanders was not fraudulent: Woodruff v. Warner, 175 Pa. 302.
    The fact that Millett has become the owner of the mortgaged premises does not estop him from asserting his claim for indemnity: Wolfe’s App., 110 Pa. 126.
    May 6, 1907:
   Opinion by

Mr. Justice Elkin,

The first question to be determined on this appeal is whether this court has jurisdiction to entertain it. At the audit of the account filed by the executors of the decedent a claim was presented by Charles F. Millett amounting to $2,706.01, with interest. The auditing judge disallowed the claim, but the court in banc, on exceptions filed, reversed the auditing judge and awarded the amount of the claim to the appellee. The appellant, a legatee under the will of her deceased husband, is only entitled to receive one-third of his personal estate, which would be less than $1,500, in the claim in controversy, even if her contention should be sustained here. If, therefore, the jurisdiction depends upon the interest of appellant in the disputed claim, and not upon the whole amount thereof in controversy, the appeal should be to the Superior Court and not here. The act of May 5,1899, upon which the question of jurisdiction depends, provides that the Superior Court shall have appellate jurisdiction when any single claim, or any dispute, or any distribution, or other proceeding in the orphans’ court, concerning money, chattels, real or personal, or the possession, or title, to real property, is in controversy, provided, however, that “ the amount or value thereof really in controversy in any single claim, dispute, or other proceeding, is not greater than $1,500 exclusive of costs.” In the present case the subject-matter of the controversy is a single claim for money and is, therefore, within the very language of the act. The question to be determined is whether “ the amount or value thereof,” for the purpose of jurisdiction, is the amount of the entire single claim, or only that part of it to which the appellant would be entitled if successful on this appeal. We think, and so hold, that the matter in controversy is the whole claim of the creditor, and the decree in the court below fixed the amount for the purpose of jurisdiction. A very different question would be presented if, as in several adjudicated cases, the appeal was from an award to separate claimants and the attempt was made to join their several claims in order to make an amount sufficient to give jurisdiction to this court, as in Jenning’s Estate, 195 Pa. 406 and Samson’s Estate, 201 Pa. 590. It was very properly held in these cases that the jurisdiction of the appellate court depends upon the amount of each separate interest and cannot be assumed by lumping the claims of several appellants in order to give the jurisdiction to this court. In Prentice v. Hancock, 204 Pa. 128 and Astwood v. Wanamaker, 209 Pa. 103, it was decided that the amount in controversy for purposes of jurisdiction was fixed by the decree or judgment in the court below. Following this rule, it is clear, that the decree in the court below in the present proceeding, awarding the whole claim to the appellee, fixed the amount on which the jurisdiction depends, and that amount being greater than $1,500, the appeal lies to this court.

A briefvrecital of the facts will aid in the determination of the question involved on the merits of this case. In 1896, Millett, the appellee here, being the owner of a certain property, executed a mortgage thereon, in the sum of $8,000, to Potts, who, a few days later, assigned the same to the two Alexanders, the holders of the mortgage at the time of its foreclosure. In 1899 appellee sold and conveyed the mortgaged property to May, the decedent, “under and subject” to the lien of the mortgage which had not been paid at the date of the death of May, the owner of the property in 1901, when he died. After the death of the decedent there was a default in the payment of interest and the mortgage was foreclosed by the Alexanders, who obtained a judgment on it in the sum of $8,773.06, caused a levari facias to be issued, and offered the property for sale. About the time of the commencement of the foreclosure proceedings, Millett, the present claimant and original mortgagor, and the Alexanders, the assignees of the mortgage, entered into an agreement which in substance provided that the mortgage should be foreclosed, the property offered at sheriff’s sale, and that they, Millett and the Alexanders, should not bid against each other, but that he, Millett, in case there were no other bidders, should be permitted to purchase the property at a nominal price, in return for which he assumed and agreed to pay the full amount of the mortgage, debt, interest and costs to the Alexanders. The executors of the decedent, the widow and the heirs, did not have any notice of this agreement. The property was offered for sale by the sheriff, and, in accordance with the agreement entered into, Millett was permitted to bid it in for $50.00. The day upon which the deed was delivered to him, Millett paid the Alexanders $2,706.76 in cash, or its equivalent, and executed a new mortgage to them on the same property for $6,000, the balance due the Alexanders on their original mortgage. When the account of the executors of the decedent, May, came before the auditing judge for distribution, Millett claimed the $2,706.76, the amount paid the Alexanders, as a creditor of the estate of the decedent, on the ground that said estate, on the implied covenant to indemnify Millett, the grantor in the deed of conveyance made subject to the lien of the mortgage, was liable to the claimant for the difference between $6,000, the amount of the new mortgage to the Alexanders, the alleged value of the mortgaged property, and the whole amount of the original debt, interest and cost.

The decree of the court below is based .primarily on the rule that where a mortgage debt, created by the vendor of real estate, is made part óf the consideration to be paid, or assumed by the vendee, the recital in the deed to the vendee that the conveyance is made “ under and subject” to the mortgage debt, implies an obligation by the vendee to indemnify the vendor against any liability by reason of that debt, and that the liability thus arising is not simply de terris, but is coextensive with the original obligation. The appellant, relying upon his understanding of the decision in Blood v. Crew Levick Co., 171 Pa. 328, argues that the learned court below erred in so holding. In other words, the contention is that the vendee, May, the decedent, who took his title “under and subject” to the lien of the original mortgage, did not thereby assume an obligation to indemnify his vendor for the whole amount of' the original mortgage debt, including interest and costs, but only that the real estate conveyed to him should be held primarily liable for this obligation, and if the real estate thus conveyed failed to produce proceeds sufficient to pay the whole obligation, no liabilty rested on him to make up the deficiency by reason of his implied covenant. If this position is sound law, it will have the effect of overruling a-long line of cases in which a different doctrine has been recognized and followed. In Burke v. Gummey, 49 Pa. 518, it was held that a vendee of property taken expressly subject to a mortgage, makes the debt his own, and if, on the foreclosure of the mortgage, there is a deficiency which the vendor is obliged to pay, he may recover the amount of his loss in an action against the vendee. That case followed the rule announced in Campbell v. Shrum, 3 Watts, 60, and recognized the principles stated in Blank v. German, 5 W. & S. 36, and Woodward’s Appeal, 38 Pa. 322. Attempts have been frequently made in many later cases to modify or overrule this doctrine. Chief Justice Sharswood in Moore’s Appeal, 88 Pa. 450, reiterates the principles upon which the earlier cases wore decided by holding that the words “ under and subject ” import that the vendee takes the land incumbered, and, at most, that on taking it at an agreed consideration, which includes the incumbrance, he will indemnify the vendor to the extent of that consideration, in the same manner as if it had been paid in cash and so applied at the time. Merriman v. Moore, 90 Pa. 78; Hirst’s Appeal, 92 Pa. 491; and Taylor v. Mayer, 93 Pa. 42, adhere to the same rule. Even as late as Kirker v. Wylie, 207 Pa. 511, it was held that the words under and subject,” in a conveyance, are to be construed as a covenant of indemnity for the protection of the grantor, and that the liability of the vendee, under his implied covenant, was coextensive with the original obligation. If the rule of these cases is still in force, the contention of the appellant cannot prevail on this branch of the case.

It has been suggested that the Act of June 12, 1878, P. L. 205, strengthens the position of the appellant here, but this suggestion is without force because that act does not affect the liability of the grantee to his grantor, but only applies to the relations between the grantee and the holder of the incumbrance : Lennox v. Brower, 160 Pa. 191. The learned counsel for appellant relies principally on Blood v. Crew Levick Co., 171 Pa. 328, to support his position. It must be conceded that there are some expressions in that opinion at variance with the established rule, hereinbefore referred to, but these expressions are mere dicta, and not controlling in the decision of the questions raised on that appeal. The point at issue there was decided solely on the ground that the grantor’s estate had suffered no loss on account of the grantee’s failure to pay the mortgage, and that there could be no recovery on a covenant of indemnity until it had been shown that the grantor had suffered a loss. This is a familiar and elementary principle of law, always applicable when a suit is brought for the recovery of a loss on a covenant of indemnity. Mr. Justice Williams, who delivered the opinion of the court in that case, said: “ The land has not been withdrawn from the reach of the holder of the mortgage, so far as the case stated informs us, nor has the vendor, the surety, been compelled to pay any portion of the mortgage debt. It is not easy to see, therefore, how he is entitled to proceed against his vendee either upon the implied covenant, or upon his rights as surety for the mortgage debt.” That case was decided upon the equitable rights of the parties, growing out of a complicated state of facts, and was not intended to, and did .not, overrule the long line of cases in which it had been uniformly held that the words under and subject ” used in a deed of conveyance is a covenant of indemnity only as between the grantor and grantee for the protection of the former.

It does not follow, however, that because of his covenant of indemnity the grantee might be held liable to his grantor for the full amount of the mortgage debt, that his estate can be held liable under the facts of the present case. As was suggested in Blood v. Crew, supra, the vendor has not shown that he has suffered loss, and is therefore not in a position to reimburse himself from his vendee upon the implied covenant in the deed of conveyance. In our view of this case, it is a matter of little importance whether we consider the agreement between the grantor and the assignees of the mortgage whereby the former was to bid in the property at a nominal price and pay the latter in full of all demands on the mortgage, as a legal fraud upon the rights of the widow and heirs of the decedent, or only as a convenient arrangement for the purpose of vesting the title in the mortgagor and securing to the assignees of the mortgage the full amount of the indebtedness due them. In either situation, the grantor is not in a position to assert a claim against the grantee on his implied covenant under the facts of this case. The Alexanders, in order to'protect their own interests, were, in the very nature of things, competing bidders with the appellee. It was to the interest of the Alexanders to see that the property sold for an amount sufficient to pay the mortgage, together with interest and costs. The appellee was equally interested to see that the property brought its full value in order to relieve him from liability on his bond. If the bidding had been in open competition,, the reasonable inference would be, that the property would have sold for an amount sufficient to discharge the whole obligation. Indeed, this seems to have been the understanding of the parties themselves. Millett, the appellee, in his testimony before the auditing judge clearly indicates that he was willing to take the property at an amount sufficient to pay the entire indebtedness. He testified as follows: “ I believe that the mortgage was foreclosed, and we authorized Mr. Caveny as our attorney to attend the sheriff’s sale and bid the property up to cover the amount of the mortgage if there were any other bidders.” Here, then, we have the express declaration of the appellee himself that he was willing to have the property bid up to an amount sufficient to pay the mortgage and he so instructed his attorney. When, therefore, he took the title to the property, only paying a nominal price for the same, the irresistible conclusion is that he accepted the property as the full value of the mortgage debt, and if so, he can assert no claim against the estate of the decedent on the implied covenant to protect him against loss. The learned court below based its ruling on the theory that the property was only worth $6,000, the amount of the new mortgage, and that the loss suffered by the claimant was the difference between the original mortgage and this sum. We do not see that the arrangement by which the appellee paid the Alexanders the indebtedness due them, that is to say, $2,706.04 in cash, and a new mortgage for $6,000, has anything to do with the case. At most, that 'was an arrangement for the convenience of the appellee, through which he was permitted to pay a certain amount in cash, and to secure the balance due on his obligation, by the execution of a new mortgage on the property. The cash paid and the new mortgage made up the original mortgage debt, together with interest and costs thereon, and this is what he undertook to do in his agreement concerning the foreclosure of the mortgage. We therefore hold that the claimant has not shown that he had suffered any loss in the transaction, and therefore he is not in position to assert a: claim against the estate of the decedent.

The estate is clearly liable for the taxes. They were assessed against the property before the title had been divested by the sheriff’s sale, and under the authority of our cases such taxes are a personal liability against the owner at the time of the assessment: King v. Mt. Vernon Building Association, 106 Pa. 165.

The decree is therefore reversed and the record remitted to the court below in order that the award can be modified in accordance with this opinion ; costs to be paid out of the estate.


author: Mr. Justice Mestrezat,

text:
    Fotterall v. Armour, Appellant.

      Landlord and tenant — Notice by a tenant as to vacation of premises— Sufficiency of notice.

    There are no particular words or form prescribed for a notice from a tenant to a landlord as to the vacation of the demised premises. The notice must, however, state clearly, positively and unequivocally the intention of the tenant to vacate or surrender the premises at a fixed time. It must be certain and definite as to the premises, the intention to vacate and the time when the surrender or vacation of the premises is to take place. It must be positive, decisive and without ambiguity.
    Where a city notifies a tenant of its intention to take a part of the leased premises, and it appears that the taking of the strip by the city did not render the balance valueless for the purposes of the tenant, a mere statement by the tenant to the landlord that it will be necessary for him to vacate the premises, with a request to accept rental to a date mentioned, and with a suggestion that a further amicable arrangement for the future should be made by the parties, but without any statement as to a certain date when the premises would be vacated, is not a sufficient notice to the landlord upon which the latter can safely act.
    Argued March. 28, 1907.
    Appeal, No. 393, Jan. T., 1906, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1903, No. 1,382, on verdict for plaintiff in case of Stephen B. Fotterall v. Jonathan O, Armour.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for rent. Before Bregy, J.
    In addition to the facts stated in the opinion of the Supreme Court it appeared at the trial that the letters of July 14 and August 10, 1898, were in full as follows:
    “ July 14th, 1898.
    “ 7 & 9 Manhattan Market, N. Y.
    “Mr. S. B. Fotterall,
    “No. 622 North 19th St., Phila., Pa.
    “ Dear Sir:—
    “ On my return to New York I found your letter of July 7th returning check for $666.66.
    “ As you are undoubtedly aware, the City of Philadelphia will evict us from these premises on the first day of August next, and in consequence of their taking part of the premises at that time, it will be necessary for us to vacate them, and after that date we will, together, have a claim against the City of Philadelphia for this rent. In any event we can probably arrange this satisfactorily and amicably at the time of appearing before the City’s jury to assess damages, and we will be pleased to have you accept this check as payment of rent, up to and including the first day of August, and then I have no doubt we can make an amicable arrangement for the future.
    “Yery respectfully yours,
    “ P. P. Adams.”
    “ 7 & 9 Manhattan Market, N. Y.
    “ Aug. 10, 1898.
    “Mr. S. B. Fotterall,
    “ 2001 Chestnut St., Phila., Pa.
    “ Dear Sir :—
    “We enclose you herewith our checks for $999.99 and also a postage stamp for two cents, being for rent in full for premises at No. 40 South Delaware Avenue, Phila., Pa. for the months of April, May, June, July, August and Sept, and would be pleased to have you send us proper receipt therefor. We have delayed sending you check for August and September thinking that it would be agreeable for you to make the claim against the city for the rent, in our place. However, we enclose you rent up to the first of October, and as we will be compelled to vacate the premises within a very short time, under the city’s notice to quit, we will try to make some further arrangement with you at the time of meeting of the city’s jury to assess the damages.
    “ Yours respectfully,
    “ (Enclosures.) “ P. B. Adams.”
    Yerdict and judgment for plaintiff for $3,581.25. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Dimner Beeber,yt\ifa him J. Levering Jones, for appellant.
    ■ — The notice Avas sufficient: Ahearn v. Bellman, Law Rep. 4 Exch. Div. 201; Doe v. Jackson, 1 Douglas, 175; Bury v. Thompson, Law Rep. 1 Queen’s Bench Div. [1895] 696.

      Ruby R. Yale, with him Edward W. Magill, for appellee.
    The several letters are insufficient because neither contains a clear, positive and unconditional expression of an intention to quit or deliver up possession: Smucker v. Grinberg, 27 Pa. Superior Ct. 531; Byrne v. Funk, 13 W. N. C. 503; Dellone v. Gerber, 3 York Leg. Rec. 23; O’Neill v. Cahill, 2 Brewster, 357; Candler v. Mitchell, 119 Mich. 464 (78 N. W. Repr. 551); Doe v. Jackson, 1 Douglas, 175; Ayres v. Draper, 11 Mo. 548; Gardner v. Ingram, 61 Law Times (N. S.), 729.
    The notice is insufficient because it does not designate any time whatever when the demised premises will be delivered up: Currier v. Barker, 68 Mass. 224; Snyder v. Carfrey, 54 Pa. 90; Jalass v. Young, 3 Pa. Superior Ct. 422; Phœnixville Boro, v. Walters, 29 W. N. C. 483.
    May 6, 1907:
   Opinion bv

Mr. Justice Mestrezat,

By a lease dated September, 1885, Stephen B. Eotterall, the plaintiff, leased to Jonathan O. Armour, the defendant, “ all that property known as No. 400 S. Delaware Ave. and No. 401 Penn St. for the term of five years to commence and be computed from the first day of January, 1886.” The two properties are on the south side of and adjacent to Pine street, the first fronting eighteen feet on Delaware avenue and the other fronting twenty feet on Penn street, and the buildings are separated by a brick wall in the rear. The annual rental was $2,000, payable quarterly. The lease provides that if the lessee shall hold over after the expiration of the term it shall be deemed and taken to be a renewal of the lease “ for the term of another year and so on from year to year, until either party shall give three (3) months’ previous written notice to the other of an intention to determine the tenancy at the end of any year.”

The lessee entered into possession of the premises, cuta passageway through the wall between the properties, and used them together as one property in the meat business of Armour & Company. He held over after the expiration of the five year term. On May 10, 1898, the city of Philadelphia gave to the tenant a notice that “ the city of Philadelphia, at the expiration of three months from the date of this notice, will require for public use that portion of the property occupied by you as tenant, lying within the bed of Delaware Avenue as established between Yine and South Streets.” This would take from the east front of 400 Delaware avenue a strip of the width of one foot ten inches at the south and four feet four and one-quarter inches at the north side. About the same time the landlord received a similar notice from the city. On July 2, 1898, the New York attorney of the tenant sent to the landlord a check for the rent of the property up to August 1, 1898. The landlord refused to accept the check and returned it. On July 14, the attorney again wrote the landlord, acknowledging the return of the check, and said: “ As you are undoubtedly aware, the city of Philadelphia will evict us from these premises on the first day of August next, and in consequence of their taking part of the premises at that time, it will be necessary for us to vacate them, and after that date we will, together, have a claim against the city of Philadelphia for this rent. In any event we can probably arrange this satisfactorily and amicably at the time of appearing before the city’s .jury to assess damages, and we will be pleased to have you accept this check as payment of rent, up to and including the first day of August, and then I have no doubt we can make an amicable arrangement for the future.” In reply, the landlord wrote the attorney that Armour’s claim was against the city of Philadelphia, and requested a check for the rent due April 1 and July 1. The attorney wrote the landlord again under date of August 10, 1898, inclosing a check for the rent due for the months of April, May, June, July, August and September, and added: “We have delayed sending you a check for August and September thinking that it would be agréeable for you to make the claim against the city for the rent, in our place. However, we enclose you rent up to the first of October, and as we will be compejled to vacate the premises within a very short time, under the city’s notice to quit, we will try to make some further arrangement with you at the time of meeting of the city’s jury to assess the damages.”

The tenant vacated the premises in the latter part of September, 1898, bnt the landlord had no notice of this fact until some time after January 1, 1899. This action was brought to recover the rent due for the last quarter of 1898 and for the year 1899, aggregating the sum of $2,500. On the trial of the cause, the tenant claimed that the letters of July 14 and August 10, 1898, constituted a sufficient written notice ’of an intention to terminate the tenancy under the terms of the lease and that, therefore, he was not liable for the rent. The court denied this position, held that the notice was not sufficient under the terms of the lease, and the jury under proper instructions found that there was no such eviction as to warrant the tenant in leaving the premises before the end of the year, because the part taken did not render valueless what was left. In other words, according to the finding of the jury, the taking of the small part of the premises did not destroy their use for the purposes for which the tenant had rented and used them. A verdict for the whole amount of the landlord’s claim was rendered by the jury, and judgment having been entered thereon, the tenant has taken this appeal.

There are three assignments of error, bnt as the second and third have no exceptions to support them, they cannot be considered. The first assignment alleges error by the court in holding that the tenant, the defendant, did not give sufficient notice of his intention to vacate the premises more than three months prior to the end of the current term or year. The only question, therefore, for consideration here is, as stated by the learned counsel for the defendant, whether or not the defendant’s letters to plaintiff, dated respectively July 14, and August 10, 1898, constituted a sufficient written notice under the terms of the lease of his intention to terminate the tenancy at the end of the year 1898, so as to relieve the defendant of the rent for the year 1899. What is a sufficient notice between landlord and tenant as to vacating the demised premises is stated in the several text-books on the Law of Landlord and Tenant, and there does not seem to be any material difference as to what the notice should contain. There are no particular words or form prescribed for such notice. It must, however, state clearly, positively and unequivocally the intention of the landlord to repossess the premises, or of the tfenant to vacate or surrender the premises at a fixed time. The notice must be certain and definite as to the premises, the intention to vacate, and the time when the surrender or vacation of the premises is to take place. It must be positive, decisive, and without ambiguity. In brief, the language of the notice must be such as to convey to the landlord the intention of the tenant positively and unequivocally to vacate the premises at the time specified in the notice. Such substantially are the essential elements of a sufficient notice from a tenant to a landlord of his intention to surrender the demised premises. The opinions in the English case of Gardner v. Ingram, 61 Law Times (N. S.), 729, discuss the essentials of a sufficient notice of an intention to quit the" premises given by a tenant to his landlord. The notice in that case was held insufficient, Lord Coleridge, C. J., and Bowen, J., delivering opinions. In the opinion of the latter it is said: “ I think it is very necessary that in a notice to quit there should be plainness of speech; that is, it must be plain and unequivocal in its terms, leaving no doubt as to the intention of the party giving it. The effect of such a notice is to put an end to the relation of landlord and tenant, therefore the landlord has a right to know whether the tenant is really going or not. If instead of adopting that course the tenant uses language which is ambiguous, makes use of expressions which leave matters at the conclusion of the term contingent on something to be done or some arrangement to be made, there is no sufficient notice to quit. We are asked to place a business construction upon this notice ; in my opinion there was no business intended by it. The tenant used language on which the landlord could not safely act.”

Turning now to the letters of July 14 and August 10, which contain the notice given, it will be observed that they do not express a certain and fixed intention of the defendant to determine the tenancy at the end of the year or at any other time. It must be conceded that the letter of July 2, read in connection with the letters in question, shows that the latter referred to the demised premises. The two letters of July 2 and 7, immediately preceding the letters in question, had reference solely to the payment of the rental. The letter of July 14, as will be observed, acknowledges the return of the check for the rent due up to August 1. It then contains what the defendant claims to be a notice of an intention to determine the tenancy. It says that it will be necessary for the defendant to vacate the premises by reason of the intention of the city to take a part of them, “ and after that date we will, together, have a claim against the city of Philadelphia for this rent.” This is not a notice that the defendant intends to quit the premises, but a reason why it might become necessary for him to vacate them at some time not designated. The notice of the city was to the effect that a part of the premises would be taken and it did not necessarily follow that the premises could not still be used by the defendant for the business for which he rented it. In fact, as will be observed, the jury found that the taking of the small part of the premises by the city did not render the balance valueless for his purposes. The mere statement by the defendant, therefore, that it would be necessary for him to vacate the premises, was not a positive notice that he would surrender the tenancy at a fixed date on which the landlord could rely or would be justified in reletting them to another. The main idea apparent, however, on the face of the notice, is that the communication was more particularly concerned with the rent and not as a notice by the defendant of his intention, to quit the premises. This is made more apparent by the next clause of the letter which says: “ In any event, we can probably arrange this satisfactorily and amicably at the time of appearing before the city’s jury to assess damages, and we will be pleased to have you accept this check as payment of rent, up to and including the first day of August, and then I have no doubt we can make an amicable arrangement for the future.” The thought of the writer throughout the communication, therefore, was to arrange then for the payment of the rent, and to leave to the parties to “make an amicable arrangement for the future,” as to the occupation of the premises by the tenant. While the defendant had a right to rely upon the notice given by the city that it would take part of the premises in three months, jret he may have thought, from information in his possession, that the taking would be deferred, and tbe time when the city would actually appropriate might be delayed; and, hence, he would not exercise his-right at that time to positively determine the tenancy. The language used by him in the letter clearly carries out this thought. It is not a positive notice that upon a certain date or at the end of the then present term the tenancy would be determined.

It is also claimed that the letter of August 10 conveys a like notice of an intention to determine the tenancy or, possibly, that taken in connection with the letter of July M, discloses such an intention. Again, it will be observed that that letter is concerned .primarily with the question of rent. It is true that it says it remits the rent, “ and as we will be compelled to vacate the premises within a very short time, under the city’s notice to quit, we will try to make some further arrangement with you at the time of meeting of the city’s jury to assess the damages.” This, however, does not strengthen that part of the former letter which, it is contended, contains a notice of an intention to quit the premises. It shows, on the other hand, that the time when the defendant will vacate the premises is uncertain, and that further‘arrangements between the parties would be made at a subsequent date. From this letter, it will be observed, that the time of vacating the premises by the defendant is left in entire uncertainty, and that both communications anticipate a future arrangement between the parties which we must construe to be in regard to the surrender of the premises and, possibly, in regard to the rentals of the premises. At all events,- it is clear that the two communications, taken separately or together, contain no express and unequivocal determination to surrender the premises at the end of the then existing tenancy or any other definite date. As suggested above, it did not necessarily follow that the defendant would be compelled to leave the premises because the city intended to take a very small portion of them. The/ purpose of the taking was to widen Delaware avenue, and, hence, the premises would remain abutting on the same, although a wider, street. The taking might occasion a temporary inconvenience, but the premises could easily be restored so as to make the property equally desirable for the purposes for which it was rented.

In this contest between the landlord and the tenant, it is well to note that the intended act of the city would not take the whole of the premises which would necessarily have compelled the defendant to vacate. The letters should be read in the light of this fact. If such had been the notice of the city, they might, although with not much reason, have warranted a different interpretation. Here, however, the city gave a notice that it intended to take such portion of the premises as would not materially affect their use by the defendant and, therefore, the action of the city did not necessarily mean the vacation or surrender of the premises by the defendant.

It will be noticed that the letters were written by the attorney of the defendant. It must, therefore, be assumed that he understood the character of the notice required to determine the tenancy as well as the import of the language which he used in the letters he addressed to the plaintiff. If ,it was his purpose to give notice of the defendant’s intention to quit, he well knew that that notice must be clear, certain and unequivocal as to such intention and as to the date of the determination of the tenancy. He knew that nothing less would satisfy the terms of the lease and end the tenancy. With this knowledge he wrote the letters in question. They are neither certain, definite, nor unequivocal as to the intention to quit the demised premises or as to the date on which the tenancy would be determined. It cannot, therefore, be presumed that the defendant’s attorney intended that the letters should be a notice of the determination of the tenancy; on the contrary, it is rather to be assumed that he left that matter with the question of rentals and the damages to be secured from the city for future arrangements between the parties.

We cannot concern ourselves, as suggested by defendant’s counsel, with what view his attorney took of any decisions he may have read prior to wTriting the letters of July 14 and August 10 to the plaintiff. We must construe and rely upon the letters themselves, and not upon an intention of the writer undisclosed in the letters. The rights of the parties depend upon their written contract. Either party could determine the tenancy by a three months’ previous written notice. Each had a right to rely upon that provision of the agreement and to act towards the premises with the assumption that it would be observed. The importance of the notice to the landlord is obvious. Until he received a notice, he had the right to assume that the defendant would continue to be his tenant. He could not relet the property until he was notified of the time when the tenant would vacate it. If he received three months’ notice as required by tbe lease be then ■ bad an opportunity as well as sufficient time to relet them before tbe end of tbe existing tenancy. Had be, however, let these premises after the correspondence between him and the defendant’s attorney he would have done so on the uncertainty of their being vacated by the defendant. The latter, thinking the premises still sufficient for his business, might have changed his mind and continued to occupy the property, and had he done so the landlord would have been liable to any other party to whom he had rented the premises. It was, therefore, of the utmost importance to the landlord if the tenant did intend to vacate the premises, that he give a positive and unequivocal notice of such intention and of the date when the tenancy would end.

Our conclusion is that the letters of July 14 and August 10, 1898, did not contain a positive and unequivocal notice of an intention to terminate the defendant’s tenancy of the premises at any fixed date, and hence the notice was insufficient under the terms of tbe lease.

The judgment is affirmed.


text:
    Tischler v. Pennsylvania Coal Company, Appellant.

      Mines and mining — Surface support — Statute of limitations.

    In an action by the owner of the surface against the owner of the coal, to recover damages for injuries to the surface by the mining of coal, it must appear that the cause of action arose not when the cave or subsidence took place, but when the support of the surface was so weakened that it might fall, and the cause must have occurred within six years of bringing the suit.
    In such a case if there was work in the mines directly beneath the plaintiff’s surface, which caused the weakening of the supports to the surface within six years, the plaintiff could recover for injury to the land and the improvements thereon. The plaintiff is entitled to lateral support of the surface in its natural state, and can recover compensation for the surface in its natural state only if the cave or subsidence was caused by the taking away the lateral support.

      Mines and mining — Surface support — Title—Reservation.
    Where a person having no title to coal, attempts to convey it by deed, reserving a right to remove it without liability for damages to the owner of the surface, the real owner of the coal who is a stranger to such deed cannot avail himself of the reservation contained in the deed, as against the owner of the surface.
    In an action to recover damages for injuries to the surface of land by coal mining operations beneath the land, where the plaintiff's statement admits the ownership of the coal in the defendant, without any special mining rights, and the defendant relying on such admission, offers no evidence as to title, it will be presumed that the defendant was the owner of the coal without any special mining rights authorizing it to remove the coal without liability or injury to the surface.
    Argued April 16, 1907.
    Appeal, No. 94, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., May T., 1903, No. 670, on verdict for plaintiff in case of Mary M. Tischler v. Pennsylvania Coal Company.
    Before Mitchell, C. J., Bjrown, Mestrezát, Potter and Elkin, JJ.
    Affirmed..
    Trespass to recover damages for injuries to surface of land. Before Lynch, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented these points:
    3. Under the pleadings the burden was on the plaintiff to prove that the subsidence which affected the plaintiff’s property was caused by mining directly beneath the said property or adjacent thereto within six years prior to May 2, 1902. This the plaintiff has failed to do, and the verdict must be for the defendant. Answer: Refused. [4]
    4. The plaintiff has failed to produce any evidence of mining directly beneath plaintiff’s land by the defendant which affected her land, and she can recover no damages for the buildings thereon. Answer: Refused. [5]
    The court charged the jury in part as follows :
    Mrs. Tischler, being the conceded owner of the property at the time in question, was not, as a matter of grace, but as an absolute right, entitled to have her property supported, not damaged, by the mining of coal from beneath this property. N o deed, conveyance or agreement of any kind, so far as the court recalls, has been put in evidence, showing the Pennsylvania Coal Company was the owner of any coal beneath this property or had any right to mine it. In most cases in which this question has arisen in the courts, the miner, that is, the company or person who mines and removes the coal, has put in evidence title to the coal and his right to mine and remove it, and also, generally, some paper showing the miner was free from liability for damages in letting down the surface. Except as to the Livingston lot, of which I shall speak hereafter, there has been no such paper presented here.
    Plaintiff’s statement has not been offered in evidence. The court has not seen it before. We submit it to you that you can see what plaintiff, when she brought this suit, charged against the defendant in this particular: “ The defendant on the 13th of January, 1901, was the owner of the coal underneath the said above described lot and engaged in the business of mining and removing said coal, and although said defendant owed to the said plaintiff the duty of leaving sufficient support to maintain the surface over said coal, the defendant negligently and carelessly so mined said coal that the support to the surface was insufficient to maintain the same, whereby the said surface of said above described lot, on said 13th day of January, 1900, fell in, destroying the surface to the amount of and damaged the said building erected on the said surface, to a certain amount.”
    Such was the charge of plaintiff at the time she brought the suit and it would therefore be fair to assume plaintiff alleged the defendant at that time owned the coal. [6]
    V erdict and judgment for plaintiff for $2,800. Defendant appealed.

      Errors assigned were (4-6) above instructions, quoting them.

      J. B. Woodard, of Woodard, Barling & Morris, with him Willard, Wa/rren & Knapp, for appellant.
    Where in an action of trespass the sole cause of action alleged in plaintiff’s statement is the wrongful removal of coal under the plaintiff’s land so that the surface fell in, a recovery cannot be had where the proof shows that there had been no mining under tl)e plaintiff’s land for more than six years, but that defendants had removed lateral support at other mines some distance from the plaintiff’s lot. The duty of maintaining surface support and the duty of maintaining lateral support are altogether different, and the rule for the compensation for damages in the case of the violation of either duty is not the same: Noonan v. Pardee, 200 Pa. 474; McGettigan v. Potts, 149 Pa. 155.

      John T. Lenahan, with him D. O. Coughlin and Edward A. Lynch, for appellee. —
    Plaintiff was entitled to recover : Noonan v. Pardee, 200 Pa. 474; Pringle v. Yesta Coal Co., 172 Pa. 438; Jones v. Wagner, 66 Pa. 429; Horner v. Watson, 79 Pa. 242; Coleman v. Chadwick, 80 Pa. 81; Carlin v. Chappel, 101 Pa. 348.
    The right of support to the surface “may not be taken away by mere implication from language not necessarily importing such a result: ” Miles v. Penna. Coal Company, 214 Pa. 544.
    May 6, 1907:
   Opinion by

Mr. Justice Mestrezat,

This is an action to recover damages which the plaintiff alleges she has sustained by reason of the defendant having mined and removed the coal from beneath and adjacent to the several lots of ground owned by her in the borough of Hughestown, Luzerne county. There were dwelling houses and other improvements upon the lots at the time of the injuries complained of. The defendant was the owner of the coal, the mining of which it is claimed caused the injuries to the plaintiff’s property. In the original statement, the plaintiff alleges that “ the defendant negligently and carelessly so mined said coal that the support to the surface was insufficient to maintain the same whereby the said surface of said above described lots, on the said thirteenth day of January, 1901, fell in, destroying said surface.” In her amended statement she alleges that the defendant was engaged in mining and removing the coal from lands in the neighborhood and adjacent to the premises of the plaintiff, and, while so engaged, caused the supports under the plaintiff’s premises to be so weakened that the same gave way causing injuries to her property. The defense was that the plaintiff had failed to show that there was any coal mined directly beneath the premises within six years prior to the bringing of the suit which resulted in injury to the surface or the improvements thereon.

The case was carefully tried, by the learned judge of the court below and having been submitted to the jury a verdict was returned for the plaintiff. On the trial of the cause, the court refused to direct a verdict for the defendant, and subsequently refused defendant’s motion for judgment non obstante veredicto.

Judgment having been entered on the verdict in favor of the plaintiff, the defendant company has taken this appeal. The first, second, third and fourth assignments are in substance that the court erred in not withdrawing the case from the jurjq and, after verdict, in not entering judgment for the defendant on the ground that there was no sufficient evidence to support the allegations of the statement. We do not think this complaint is well taken. The learned judge in his charge and in his opinion on the motion for a new trial and for judgment for defendant clearly points out the testimony which justified the submission of the case to the jury. We need not refer to this testimony in detail, as it appears by the opinion of the trial court. The evidence consisted of the official maps of the different veins of coal which showed the mining, the mining operations, and the dates of mining beneath and adjacent to the plaintiff’s surface, and also of the testimony of several witnesses. An examination of the evidence convinces us that it was sufficient, at least, to send the case to the jury. The alleged causes of the injury to the plaintiff’s surface were not only the withdrawal of proper supports for the surface within six years of bringing the suit, but also the negligent mining of the coal within the same time. If either or both of these causes were sustained by the testimony the plaintiff was entitled to recover: Pringle v. Vesta Coal Co., 172 Pa. 438. The court instructed the jury that the cause of action arose, not when the cave or subsidence took place, but when the support of the surface was so weakened that it might fall, and told them that the cause must have occurred within six years of bringing the suit. He further instructed them that if there was work in the mines directly beneath the plaintiff’s surface which caused the weakening of the supports to the surface within six years the plaintiff could recover for injury to the land and the improvements thereon. He also instructed them that the plaintiff was entitled to lateral support of the surface in its natural state, and. that she could recover compensation for the surface in its natural state only if the cave or subsidence was caused by taking away the lateral support. It is, therefore, clear that the judge was accurate in his statements of the law as applicable to the case. Under this charge the plaintiff was entitled to recover if she showed to the satisfaction of the jury that the coal beneath her surface had been removed or that there had been negligent mining of the coal which, in either or both instances, resulted in injury to the plaintiff’s surface and the buildings thereon; and was entitled to recover for the injury done the surface in its natural state only if such injury was caused by failure to give lateral support.

As appears by the evidence, the plaintiff’s predecessors in title since 1871 were the owners of the surface and not of the coal. One of these parties in the plaintiff’s chain of title, Livingston, conveyed the property in 1897, excepting the coal, and reserving the right to remove it without liability for damages. At no time, so far as the evidence discloses, did Livingston have title to the coal. The exception, therefore, in his deed amounted to nothing, and the defendant company, which was a stranger to his title, could not protect itself by the reservation to Livingston of the right to remove the coal. The third assignment of error has no merit.

The fourth assignment of error alleges that a part of the charge was misleading. The judge, overlooking the averment in the statement that the defendant was the owner of the coal, stated in the first part of his charge that there was no deed or other conveyance showing that the defendant company was the owner of the coal beneath the plaintiff’s property or had any. right to mine it, and said that in most cases of this character that the miner defendant showed title to the coal and his right to mine and remove it. It is claimed that this part of the charge was misleading. But we think the court cured this statement in the subsequent part of his charge in which, after referring to the fact that he had not seen the plaintiff’s statement until it had just then been brought to his attention, he read that part of the statement which averred title to the coal in the defendant company, and then concluded by saying: “ Such was the charge of the plaintiff at the time she brought this suit and it would, therefore, be fair to assume plaintiff alleged the defendant at that time owned the coal.” The jury would see by the averment in the plaintiff’s statement that the title to the coal was in the defendant, and that, therefore, no proof of the fact on the trial was necessary. If the defendant company desired any further instructions as to its title or ownership of the coal and the right to remove it, it should have prayed for such instruction by proper points put to the court. It is apparent, however, from the evidence in the case that the defendant company intended to rely upon its title to the coal as admitted in the plaintiff’s statement. It did not offer, so far as we are able to see, any deed or other title conveying the coal or mining rights to it. Presumably, therefore, it was the owner of the coal without any special mining rights authorizing it to remove the coal, without liability for injury to the surface. The learned judge went to the extent warranted by the evidence in simply calling the attention of the jury to the admission in the plaintiff’s statement, that the title to the coal was in the defendant.

The assignments of error are overruled, and the judgment is affirmed.