author: Mr. Justice Elkin,

text:
    Commonwealth to use v. Fidelity & Deposit Company of Maryland, Appellant.

      Principal and surety — Bond—Trust and trustees — Past misconduct of principal — Judgment against principal.

    1. Where a trustee is surcharged by the orphans’ court on the ground of gross negligence, and neither the trustee nor his surety takes an appeal from the decree, the surety cannot four years thereafter in a suit on the bond of suretyship allege that the trustee was not grossly negligent.
    2. As to official bonds, bonds of indemnity and bonds to insure the faithful performance of duty, and to secure a proper accounting by persons in fiduciary relations, the rule is that a judgment against the principal is conclusive against his sureties as to his misconduct, and failure to properly account.
    3. Application was made to a bonding company to become surety on the additional bond of a trustee. The application stated the amount of the entire trust estate, and that the bond was to secure the same. It also stated that the entire trust estate had come into the hands of the trustee, and that the purposes and nature of the bond were to secure to parties in interest the proper application of the principal and interest of the trust estate. The company made an investigation as to the amount of the trust estate, the character of the securities held by the trustee, and the investments made by him. The bond itself obligated the company to be answerable for the faithful discharge by the trustee of his duties, and that the trustee “shall faithfully apply all the assets, received by him in said trust estate.” Held, that the bonding company was liable for any loss resulting from the misconduct of the trustee, either before or after the date of the execution of the bond.
    Argued Feb. 10, 1900.
    Appeal, No. 123, Jan. T., 1908, by defendant, from judgment of C. P. Chester Co., Jan. T., 1907, No. 32, on verdict for plaintiff in case of Commonwealth to use of Benjamin W. Haines, trustee for Helen H. Holmes, under the will of Daniel B. Hinman, deceased, v. The Fidelity & Deposit Company of Maryland.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond of suretyship. Before Hemphill, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $14,279.89. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      William A. Glasgow, Jr., with him John H. Hall and Washington Bowie, Jr., for appellant. —
    It is the general rule that bonds are presumptively intended to secure, and are construed to secure losses sustained after the date of their execution, and not losses incurred previously thereto; and a surety is not bound for losses incurred before the execution of his contract of surety-ship, in the absence of anything in the bond itself, or the surrounding circumstances, which clearly indicate his intention to become so bound: Farrar v. United States, 30 U. S. 373; United States v. Boyd, 40 U. S. 187; Myers v. United States, 1 McLean, 493; United States v. Spencer, 2 McLean, 405; Longan v. Taylor, 130 Ill. 412 (22 N. E. Repr. 745); Rochester v. Randall, 105 Mass. 295; Bennett v. Haley, 142 Pa. 253; Prichett Baugh & Co. v. Wilson, 39 Pa. 421; United States v. Giles, 13 U. S. 212; United States v. Linn, 42 U. S. 104; United States v. Jones, 77 Fed. Repr. 717; Hyatt v. Grover & Baker Sewing Machine Co., 41 Mich. 225 (1 N. W. Repr. 1037); State v. Jones, 89 Mo. 470 (1 S. W. Repr. 355); Ward v. Hassell, 66 N. C. 389; Delo v. Banks, 101 Pa. 458; Spath’s Est., 144 Pa. 383; Lancaster v. Frescoln, 192 Pa. 452; Armstrong v. State, 7 Blackf. (Ind.) 81; Lacoste v. Splivalo, 64 Cal. 35 (30 Pac. Rep. 571); Steele v. Reese, 14 Tenn. 263; Treasurers v. Taylor, 2 Bailey (S. C.), 524; Abrahams v. Jones, 20 Ill. App. 83; Chase v. Ries, 10 Cal. 518; Ovington v. Smith, 78 Ill. 250; Lang v. Pike, 27 Ohio St. 498; Miller v. Stewart, 22 U. S. 680; White v. Com., 39 Pa. 167; Shackamaxon Bank v. Yard, 150 Pa. 351; Busch’s Est., 12 Phila. 53; State v. Howarth, 48 Conn. 207.

      The language of the bond, the penal sum therein, and the circumstances under which it was given, affirmatively show that the bond was intended to assure the subsequent faithful discharge of his duties by the trustee: State v. Hood, 7 Blackf. 127; State v. Banks, 76 Md. 136 (24 Atl. Repr. 415); Lowry v. State, 64 Ind. 421; State v. Sanders, 62 Ind. 562; Williams v. State, 89 Ind. 570.
    The cestuis que trustent are in no way wronged or injured by such limitation of the surety’s liability, since they are secured by the bond previously given, liability upon which was not released by the death of the surety, whose estate remains liable: State v. Howarth, 48 Conn. 207.
    The cases in which it has sometimes been held that a surety is liable for a loss incurred before the giving of the bond but discovered subsequently thereto, are predicated upon the fact or presumption that the moneys lost or embezzled came into or remained in the hands of the principal after the giving of the bond, and have no application to a case like the present where it conclusively appears that the loss in question was completed and sustained, and was known to the parties secured, previously to the giving of the bond, and where it is undisputed that there has been no addition or extension of such loss since the contract of suretyship was made: Choate v. Arrington, 116 Mass. 552; State v. Howarth, 48 Conn. 207; Thompson v. American Surety Co., 56 App. Div. 113 (67 N. Y. Supp: 564); Farrar v. United States, 30 U. S. 373; Beyerle v. Hain, 61 Pa. 226; Miller v. Com., 8 Pa. 444; White v. Com., 39 Pa. 167.

      J. Carroll Hayes, with him Wm. M. Hayes, for appellee.—
    The bond was retrospective in its operation: Aldridge v. Eshleman, 46 Pa. 420; Colbourn v. Dawson, 10 Com. Bench, 765; Curling v. Chalklen, 3 M. & S. 502; Moore v. Hegeman, 72 N. Y. 376; Williamson v. Snook, 10 N. J. L. 65; Com. v. Rhoads, 37 Pa. 60; Knox v. Kearns, 73 Iowa, 286 (34 N. W. Repr. 861); Bank v. Barrington, 2 P. & W. 27; Com. v. Cox, 36 Pa. 442; DeHart v. McGuire, 10 Phila. 359; Hatch v. Attleborough, 97 Mass. 533; Choate v. Arrington, 116 Mass. 552; American Surety Co. v. Pauly, 170 U. S. 133 (18 Sup. Ct. Repr. 552); Supreme Council v. Fidelity & Casualty Co., 63 Fed. Repr. 48; Tebbets v. Guarantee Co., 19 C. C. A. 281 (73 Fed. Repr. 95); Bank v. Fidelity & Deposit Co., 128 No. Car. 366 (38 S. E. Repr. 908); Walker v. Holtzclaw, 57 So. Car. 459 (35 S. E. Repr. 754).
    March 15, 1909:
    In cases like this, where successive bonds have been given for the faithful execution of the trust, it has -been repeatedly held that the loss or default is presumed to have occurred during the running of the last bond; and the surety, to be relieved,must show clearly that it occurred prior thereto: Kagay v. Trustees, 68 Ill. 75; Pape v. People, 19 Ill. App. 24; Kelly v. State, 25 Ohio, 567; Flartford v. Franey, 47 Conn. 76; Heppe v. Johnson, 73 Cal. 265 (14 Pac. Repr. 833); Readfield v. Shaver, 50 Maine, 36; Clark v. Wilkinson, 59 Wisc. 543 (18 N. W. Repr. 481); Douglas v. Kessler, 57 Iowa, 63 (10 N. W. Repr. 313); Com. v. Stambaugh, 164 Pa. 437; Beard v. Roth, 35 Fed. Repr. 397.
    In cases of continuing trusts, where successive bonds have been given, the current of decisions holds the later sureties equally liable with the earlier ones for the losses whenever incurred, unless the later bond is clearly prospective in its terms: Pinkstaff v. People, 59 Ill. 148; State v. Buck, 63 Ark. 218 (37 S. W. Repr. 881); Roper v. Sangamon Lodge, 91 Ill. 518; Knox v. Kearns, 73 Iowa, 286 (34 N. W. Repr. 861); Pickens v. Miller, 83 No. Car. 543; Wolff v. Schæffer, 74 Mo. 154; Brown v. State, 23 Kans. 235; Merrells v. Phelps, 34 Conn. 109; Hartford v. Franey, 47 Conn. 76; Ellyson v. Lord, 124 Iowa, 126 (99 N. W. Repr. 582); Clark v. Wilkinson, 59 Wisc. 543 (18 N. W. Repr. 481).
   Opinion by

Mr. Justice Elkin,

In 1889 a trustee was appointed by the orphans’ court of Chester county to take charge of a fund bequeathed by will for the benefit of a cestui que trust for life with remainder to her children. On the same day the trustee presented his bond with two sureties which were approved by the court and filed of record. In 1900, the trust estate not having been settled, the duties of the trustee still continuing,, and one of the original sureties on the bond having died, there arose some doubt as to, the sufficiency of the bond to protect the trust estate, and steps were taken to secure a new bond for this purpose. Application was made to' appellant, a bonding company, to become surety on the new bond. This company, organized for this and other kindred purposes, received the application and through its agents or representatives made such investigation as to the amount of the trust estate, the character of the securities held by the trustee and the investments made by him, as it deemed necessary to be fully informed of the nature and extent of the liability of the principal in order to determine whether it- was a desirable contract of suretyship to make, and for the further purpose of being advised as to the assets in the hands of the trustee to be accounted for in order to fix a limitation upon the responsibility it was willing to assume. The trustee submitted a list of securities then held and investments then made by him, and counsel for appellant after examination reported the conditions as they then existed. There was no misrepresentation or concealment of any material fact, and we do not understand that there is any allegation of fraud, accident or mistake which could affect the rights of the parties here. Being in possession of the knowledge thus obtained, which we must assume was satisfactory, appellant executed the bond upon which this suit was broüght, obligating itself in the penal sum of $15,000 to be answerable for the faithful discharge by the trustee of his duties and that said trustee “shall faithfully apply all the assets received by him in said trust estate.” The contention earnestly ■made in the court below and ably pressed here is that the bond in question is binding upon the surety prospectively only and not retrospectively, that is to say, the burden upon the bonding company was to answer for the unfaithful discharge of his duties by the trustee after the date of the execution of the bond, and not for any dereliction of duty prior to that date, and that it was only bound to answer for a proper accounting by the trustee to the extent of the value of the assets in his hands when the second bond was approved or which came into his hands after that date. Under the facts of the present' case, we think this position is not tenable. The appellant through its learned counsel contends that the correct rule applicable in such case is that bonds so given should be construed as intended presumptively to cover future losses and not past defaults, unless there is something in the bond itself, or in the surrounding circumstances, to indicate a different intention. With the rule thus stated as a general proposition of law, we have no quarrel. However, it is one of those general rules to which there are so many exceptions under the facts of particular cases as to require the greatest care in its application in order that injustice may not be>done or the legal rights of parties be defeated. We cannot agree, that taking into account the language of the bond itself, the application made by the trustee to appellant specifying the nature of the bond required and the extent of the liability thereunder, and all the surrounding circumstances, including the character of the trust, its indefinite duration, the purpose for which the bond was given, and the investigation made for the purpose of determining prior to its execution the amount of assets in the hands of the trustees for which he was accountable, the presumption is that the contract of suretyship was only intended by the parties themselves or by the court which approved it, to apply to what may be termed future losses. Indeed, as we read the conditions of the bond in connection with the application and the surrounding circumstances, there is no escape from the conclusion that it was intended to cover all losses to the trust estate resulting from the unfaithful discharge of duty by the principal in his fiduciary relation, and of his failure to account for all assets in his hands at the time of the execution of the bond or which came into his hands afterward. No other conclusion can be reached without disregarding the application upon which the contract of suretyship is based and which must be read in connection with the bond in order to properly understand and interpret its meaning. In paragraph five of the application, the bond required was stated to be one in a penal sum of $15,000, which was to secure the principal sum of $12,000, being the amount of the entire trust estate. In paragraph twelve, the estate is described as all that trust estate which came “into my hands in cash from a former trustee, under the will of Daniel B. Hinman, deceased.” All the cash which did come into his hands as trustee under the will mentioned, was represented by the securities and investments, a list of which was shown appellant before the execution of the bond, and the amount of the liability was fixed to cover the entire estate consisting of these securities, the value of which either was known or should have been known by the bonding company when, for a consideration, it assumed the burden of answering to the cestuis que trustent for the faithful performance of duty by the trustee and the accounting for all assets belonging to the trust estate. In paragraph six, the nature of the bond is stated to be to secure the parties in interest, the cestuis que trustent here, the proper application of the principal and interest of the trust estate created by the will of the testator above mentioned. Under these circumstances, how can there be any doubt as to the nature of the obligation or the extent of the liability the bonding company voluntarily took upon itself. ' When the new bond was given and approved, the entire assets of the trust estate had already been received by the trustee and were represented by the securities and investments on hand at that time and about which appellant was informed prior to its becoming a surety. No default had then been declared, and neither the trustee nor the cestui que trust, nor the surety, was in position to say that there was an existing default. These securities may or may not have been good at that time. If they should subsequently be realized on, there would be no default; if not realized on in full, there might or might not be a default depending upon the gross negligence of the trustee. The entire trust estate was intact in the hands of the trustee to the extent of the securities held by him and exhibited to the bonding company when the new bond was taken. The most that can be said of the situation at that time is that the value of the securities may not have been known or ascertained. The moneys of the trust estate were invested in western mortgages under an agreement that the trustee was not liable for losses unless for gross negligence, and of course his surety had no greater burden than the principal. It could be held liable for losses on these investments only upon the ground of the gross negligence of the trustee. The question of gross negligence was raised and determined when the trustee filed his account in the orphans’ court. The attempt was there made, and successfully made, to surcharge the accountant upon the ground of gross negligence which was the only ground upon which a surcharge could be made under the agreement: The account was first referred to an auditor who took the testimony which was afterward fully considered by the court with the result that the charge of negligence was sustained and the accountant surcharged accordingly. From the order or decree surcharging the accountant and fixing the amount of his liability as trustee, no appeal was taken, and .now after the lapse of four years, we think the question of ■gross negligence cannot be opened up in a collateral proceeding. The trustee is bound by the decree of the orphans’ court, unappealed from, and why should not his surety be likewise bound? As to official bonds, bonds of indemnity, and bonds to insure the faithful performance of duty and to secure a proper accounting by persons in fiduciary relations, the rule of our cases seems to be that a judgment against the principal is conclusive against his sureties as to his misconduct and failure to properly account. In .this class of cases, the surety submits himself to the acts of his principal and to the judgment as. a legal consequence, following the scope of the suretyship: Masser v. Strickland, 17 S. & W. 354; Giltinan v. Strong, 64 Pa. 242; Commonwealth v. Gracey, 96 Pa. 70. To permit appellant to raise the question of the gross negligence of the trustee already determined in the orphans’ court against the principal, in this collateral action, as a defense to the bond in suit, the rule of these cases must be disregarded.

Again, there is no distinction in principle between the case at bar and Commonwealth v. Cox, 36 Pa. 442, in which it was held that where a guardian was required to give additional security, the sureties on the second bond are equally bound .with those on the first bond for the full performance of the duties of the guardianship trust by their principal.

, Judgment affirmed..


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Commonwealth v. Caldwell
    (No. 1).

      Public officers — State treasurer — State depositories — Principal and surety — Substitution of bonds — Acts of June 15, 1897, P. L. 157, and February 17, 1906, P. L. 45.
    1. Under the Acts of June 15,1897, P. L. 157, and February 17,1906, P. L. 45, the state treasurer has the primary right to take the bonds of the state depositories, but the bonds are not effective until they are approved by the board of revenue commissioners and the banking commissioner. The function of the board and the banking commissioner is limited to the approval of the bonds. They cannot take the initiative either in taking or surrendering a bond. The treasurer cannot accept a bond without the approval of the board, and the board cannot surrender a bond without the approval of the treasurer.
    2. A surety on a bond given under the Act of June 15,1897, P. L. 157, to secure repayment of deposits made by the state treasurer, is not discharged from liability thereon by the adoption of the board of revenue commissioners and the banking commissioner, of a resolution authorizing the surrender of such bond, and the acceptance of other bonds in its place. The state treasurer may ignore such a resolution, retain the bond, and hand it on to his successor.
    3. Bonds given by state depositories to secure the state funds in the hands of the depositories are not limited to the term of any particular state treasurer, nor are they intended merely to cover moneys deposited at the time the bond was given, or at most during the term of the treasurer then in office. They are continuing obligations to protect the state against loss, so long as moneys are deposited in the institutions giving them.
    Argued Feb. 15, 1909.
    Appeal, No. 30, Oct. T., 1909, by-Joshua Rhodes, from order of C. P. No. 2, Allegheny Co., July Term, 1908, No. 178, discharging rule to open judgment in case of Commonwealth v. John Caldwell, Jr., et al.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment entered on a warrant of attorney contained in a bond of suretyship given by a state depository.
    From the record it appeared that the form of the bond was as follows:
    “Whereas, James S. Beacom, State Treasurer of the Commonwealth of Pennslyvania, has, with the approval of the Board of Revenue Commissioners, selected The Allegheny National Bank of Pittsburg, Pa., as a depository of State funds, and has deposited with said Bank the sum of Two hundred ninety-eight thousand six hundred and sixty-four 67-100 dollars ($298,664.67-100), lawful money of the United States of America;
    “And Whereas, for the security of the Commonwealth of Pennsylvania, the Board of Directors of said The Allegheny National Bank at a regular meeting, held at Pittsburg, Pa., on the 6th day of May, 1898, did authorize the said The Allegheny National Bank to enter into an obligation to the Commonwealth of Pennsylvania for the repayment of said money, with interest thereon, in accordance with the Act of Assembly in such case made and provided, which obligation was authorized to be signed by the President of said Bank and attested by the Cashier thereof, who was also authorized to affix thereto the corporate seal of said Bank.
    “ Now, Know All Men By These Presents, That in pursuance of the foregoing resolution of the Board of Directors The Allegheny National Bank of Pittsburg, Pa., in the State of Pennsylvania, is held and firmly bound under the Commonwealth of Pennsylvania, in the sum of Two Million dollars ($2,000,000.00), lawful money of the United States of America, to be paid to the said Commonwealth of Pennsylvania, her certain Attorneys or assigns, to which payment, well and truly to be made, the said The Allegheny National Bank doth bind itself firmly by these presents.

      “ Sealed with the corporate seal of said Bank, and dated the 14th day of May, the year of our Lord, one thousand eight hundred and ninety-eight.
    “The condition of this obligation is such that if the above bounden The Allegheny National Bank shall faithfully and honestly keep and account for such funds, moneys, chattels or other property of the Commonwealth of Pennsylvania, which now are or shall hereafter remain on deposit with or be in custody and keeping of the said The Allegheny National Bank and shall pay over, deliver and account for the same, and any and every part thereof, from time to time and at any time when the same shall be demanded,.to or upon the order of the said James S. Beacom, State Treasurer' as aforesaid, or of his successor in office, and shall also, from time to time, when the same shall be demanded by the said James S. Beacom, or his successor in office, pay to him or to his order for the use of the Commonwealth the whole or any part of such sum or sums of money, deposited as aforesaid, as the said The Allegheny National Bank may owe to the Commonwealth of Pennsylvania; and shall also pay over to the said James S. Beacom, State Treasurer, or his successor in office, for the use of the Commonwealth, interest on said moneys at the rate of one and one-half per centum per annum on all daily- balances, payable semi-annually, then this obligation to be void, otherwise to be and remain in full force and virtue.
    “And further, the obligor above named, upon the happening of any default in the payment of principal, or any installment of interest, when the same becomes due and payable according to the terms hereof, hereby authorizes and empowers any attorney of any court of record in Pennsylvania or elsewhere to appear for and confess judgment for the above sum, with or without declaration, with costs of suit, release of errors, without stay of execution, and with five per centum added for collection fees, and the obligor doth also hereby waive the holding of inquisition on any real estate that may be levied on by virtue hereof. The obligor further agrees that execution may issue upon such judgment so confessed for the full amount of money and accrued interest thereon that may be due and owing from it to the said Commonwealth of Pennsylvania, upon filing a suggestion in writing in the court wherein such judgment shall be entered.
    “Sealed and delivered in the presence of
    “John Caldwell, Jr.,
    “President.
    “[Seal of The Allegheny National Bank.]
    ' “W. Montgomery,
    “Cashier.
    “[seal.] Corporate seal.
    “ Attest:
    “William F. Robb.”

      “ For value received, we do hereby jointly and severally bind ourselves and become security to the Commonwealth of Pennsylvania for the payment of the foregoing bond, and the faithful performance of the said The Allegheny National Bank of the conditions of the said bond, according to its terms, and in case of a breach of any of the conditions of the foregoing bond, we hold ourselves bound as principals for any debts arising thereunder, and agree to answer for the same without regard to and independently of any action taken against the said The Allegheny National Bank and whether the said bank be first pursued or not.
    “ And further, we do hereby authorize and empower any attorney of any court of record in Pennsylvania or elsewhere to appear •for and confess judgment against us, and each of us for the sum of Two Million ($2,000,000.00) dollars with or without declaration, with costs of suit, release of errors, without stay of execution, and with five per cent, added for collection fees, and we do further hereby waive and release all relief and benefit from any and all appraisement, inquisition, stay or exemption laws of this State or any State now in force or hereafter to be passed. Said collection fee is hereby directed to be added in and constitute a part of said debt and judgment. And we further agree that execution may issue upon such judgment so confessed for the full amount of money and interest that may be due and owing from said bank to the Commonwealth with attorney's commission upon filing a suggestion in writing in the county wherein such judgment shall be entered.
    “As witness our hands and seals this 14th day of May in the year of our Lord one thousand eight hundred and ninety-eight.
    “John Caldwell, Jr.., [l.s.] “Joshua Rhodes, [l.s.]
    “J. McM. King, [l.s.]
    “Walter Chess, [l.s.]
    “Thos. Evans, [l.s.]
    “W. Montgomery, [l.s.]
    “Attest:
    “William F. Robb.”

      “form of resolution required from banks having deposits OF STATE FUNDS.
    “I hereby certify that the following resolution was passed the sixth day of May, 1898, at a regular meeting of the Board of Directors of the Allegheny National Bank of Pittsburg, Pa.
    “Resolved, That the President and Cashier be and are hereby authorized to execute a bond in the name of the Allegheny National Bank of Pittsburg, Pa., in the sum of two million ($2,000,000.00) dollars, to the Commonwealth of Pennsylvania, conditioned that this bank shall pay over, deliver and account for the same according to law, with interest at the rate of one and one-half per centum per annum, and with warrant of attorney to confess judgment.
    “W. Montgomery,
    “ Secretary of Board of Directors of Allegheny National Bank, Pittsburg, Pa.
    “[seal.] Corporate Seal.”
    Shafer, J., filed the following opinion:
    The judgment in this case is entered upon warrant of attorney filed by the defendants authorizing the confession of a judgment against them in the penal sum of $2,000,000, conditioned that the Allegheny National Bank of Pittsburg, as a depository of state funds, shall always keep and account for all the sums then upon deposit, or which shall thereafter be on deposit in the bank, the date of the bond being May 14,1898. The defendants have presented petitions setting forth that on May 14, 1898, the Allegheny National Bank was designated by the then state treasurer, with the approval of the board of revenue commissioners, as a depository of state funds, and thereupon gave to the commonwealth the bond in question, known as bond No. 21. They further show that on July 30,1902, the same bank was selected by the then treasurer, Frank G. Harris, with the approval of the board, as a depository of state funds, and on that date gave a bond of like tenor with the former in the sum of $2,000,000, having a number of persons as sureties, some of them being sureties - also on the bond in suit, this bond being known as No. 249. The petition further shows that on April 24, 1908, the board of revenue commissioners and the banking commissioner, or a majority of them, selected the same bank as a depository of state funds, and on that date approved two bonds, each for the sum of $250,000, both executed by guaranty companies, these bonds being known as Nos. 1,044 and 1,045. It appears from the answer of plaintiff that these bonds were not in fact presented to the board on that date, but that one of them was actually delivered on May 1,1908, and the other on May 2, 1908. It also appears that on April 28, 1908, the board of revenue commissioners passed a resolution reciting the selection of the Allegheny National Bank as a depository, the execution by it of bonds Nos. 21 and 249, the fact that the bank had furnished bonds Nos. 1,044 and 1,045 which it desired should be received in lieu of bonds Nos. 21 and 249, and that the board had examined the bonds, each dated April 28, 1908, and is satisfied that the same were proper protection to the commonwealth for the money so deposited or to be deposited with the bank, and directing that the new bonds be accepted in lieu and place of the bonds theretofore given by the Allegheny National Bank, and that the state treasurer be instructed to return to the bank bonds Nos. 21 and 249. It also appears that on April 28, 1908, the commonwealth had on deposit at the opening of business for that day, $575,303.59, and at the close of business it had on deposit $534,226.40. It further appears that the state treasurer did not return the bonds which he was thus instructed to return, but kept them and delivered them to his successor in office, who entered upon his duties on May 1, 1902. It further appears that the bank suspended operations within a few days after the first of May, and that there is yet on deposit the sum of $523,477.18.
    The defendants have cited a number of cases relating to the bonds of treasurers and other officers who are appointed from time to time and give bond at the expiration of each commission, as to the relative liabilities of the sureties, and as to their liabilities for the acts of the officer done while holding office under some other commission than that upon which they gave the bond. We are quite unable to see how any of these cases are applicable to the matter in hand. The bond in suit is not the bond of any particular state treasurer, but the bond of a depository of money, and conditioned upon the depository accounting for and paying over the money when demanded by the state treasurer or his successor in office, and this applies to moneys which are then on deposit or which shall thereafter remain on deposit or in custody or keeping of the depository. This has plainly no connection with the term of office of any particular state treasurer.
    The main contention of the defendants, however, is that the above stated action of the board of revenue commissioners released them from liability on the bond in question, and further that even if this were not within the power of the board of revenue commissioners, the state had ratified their act by retaining the new bonds and threatening to proceed upon them. The substantial question in the case is whether or not the board of revenue commissioners had the power to take the action relied on. The board of revenue commissioners appears to have been created by the Act of April 29, 1844, P. L. 486, which provides for the appointment of one person in each judicial district. This act was repealed, so far as the method of appointment was concerned, by the Act of April 30,1864, P. L. 218, which vested the power theretofore granted to the board in a board to consist of the auditor general, the state treasurer and secretary of the commonwealth. An Act of May 24, 1878, P. L. 126, provided that these officers should constitute a board of revenue commissioners, to meet at Harrisburg at such times as they should agree upon at least once in three years. By an Act of June 15, 1897, P. L. 157, entitled: “An Act regulating the deposit of moneys belonging to the state in the banking institutions thereof, and providing for the collection of interest thereon,” it was provided that the state treasurer should collect interest from each bank having a deposit of state funds, and that before making such deposit he should require each bank to give a good and sufficient bond with warrant of attorney in double the amount of the contemplated deposit, with surety to be approved by the board of revenue commissioners of the commonwealth of Pennsylvania, and that no deposit should at any time be greater than one-half of the amount of the bond furnished. The act further provides that the state treasurer shall not be personally responsible for any money lost by reason of the failure of any bank selected as provided by the act, and the board of revenue^ commissioners was directed to prepare bonds to carry out the provisions of the act. The bond in suit was given under the provisions of this act." By the Act of February 17,1906, P. L. 45, in regard to the deposit of state funds, the selection of depositories is placed in the revenue commission and the banking commissioner jointly, and the banks so selected are required to furnish a bond with warrant 'of attorney with sureties “to be approved by the revenue commission and banking commissioner, or the majority of them, in double the amount of the deposit to be made,” etc.
    The power of the revenue commission in the matter is to be derived from these acts. We are at a loss to see how anything contained in these acts as above stated can be supposed to authorize the board of revenue commissioners and banking commissioners to surrender any bond held by the commonwealth, or to substitute one bond for another, or to discharge the sureties from liability, and especially could they not do this by accepting a bond or bonds for less than one-half of the amount required by law. The state treasurer was clearly within his rights in declining or omitting to surrender the bond in question, as his only protection from the failure of the bank depended upon his having bonds more than twice as large as deposits.
    We see no force in the suggestion that the action of the state treasurer in retaining the new bonds, or that of the attorney general in threatening to proceed or proceeding on them in any way amounts to a ratification by the state of the action of the board of revenue commissioners. If the state treasurer and attorney general have no authority to surrender bonds or release sureties thereon, as they certainly have not, no action; of theirs can amount to a ratification.
    As there are no facts whatever in dispute, nothing which can be tried by a jury if the judgment were opened, and the defense proposed to be set up by the defendants is purely a matter of law and fully set out in the pleadings, we are of the opinion that the judgment ought not to be opened.
    March 15, 1909:
    The rule is, therefore, discharged.

      Error assigned was the order of the court.

      Geo. C. Wilson, of Wilson & Evans, for appellants. —
    In an action against a surety, the obligation of a bond cannot be extended beyond the plain import of the words used: City of Lancaster v. Frescoln and American Surety Co., 192 Pa. 452; United States v. Boyd, 40 U. S. 187. Where a bond is given by an officer of an association conditioned for the faithful performance of his duties, the condition is to be confined to the period of appointment or election for which the bond was given: The Manufacturers’ and Mechanics’ Savings & Loan Co. v. The Odd Fellows’ Hall Association of Spring Garden, 48 Pa. 446; United States v. Irving et al., 42 U. S. 250; United States v. Linn et al., 42 U. S. 104; Farrar v. United States, 30 U. S. 373; Com. v. Baynton, 4 Dallas, 282.

      J. E. B. Cunningham, assistant deputy attorney general, and M. Hampton Todd, attorney general, with them A. J. Edwards, for appellee.
   Per Curiam,

The state treasurer is by law made the custodian of all state funds. It is his duty to receive, disburse and account for the same. Prior to the Act of June 15, 1897, P. L. 157, he had arbitrary power in the selection of depositories and as to the nature and sufficiency of all bonds required by him as a protection against losses. He and his bondsmen were responsible to the state for all moneys which came into his hands as treasurer and he, as a matter of protection to himself and bondsmen, could take whatever indemnity was deemed ample for this purpose. He could require new bonds, surrender old ones, or accept additional ones just as he chose to do. The commonwealth looked to him and his bondsmen and did not concern itself about the nature and character of the bonds of indemnity taken by him from institutions having state deposits. In 1897, the legislature passed an act intended to place some limitations upon the arbitrary powers of the treasurer, theretofore existing, and to require other state officers to exercise some supervision over his actions in the selection of depositories and in the taking of bonds. This act did not take away from the treasurer the power to select the depositories and to require proper bonds, but it did provide that the board of revenue commissioners should approve the selection of depositories made by the state treasurer and the bonds taken by him. The duty of the board was that of approval only. It could not select the depository or require the bond in the first instance. This was the right of the state treasurer, but the treasurer could not act without the approval of the board. Thus the law stood until 1906 when another Act (February 17, 1906, P. L. 45) was passed dealing with the subject of state deposits. The purpose of this act was to throw around the state treasury additional safeguards as a protection to the public funds. It imposed upon the revenue commissioners and commissioner of banking as a board, the duty of selecting the state depositories and relieved the state treasurer from this burden. This act, supplementary in character, is in pari materia with all the other acts relating to the custody and deposit of state funds. It does not repeal any other law except when inconsistent with the same. In section five, it is provided that the board as above constituted shall approve the bonds taken as security for deposits. It will be observed that while in the first section, this board is given the absolute right to select the depositories, in the fifth section, it is only clothed with the power to approve the bonds. In other words, the state treasurer still took the bond, but it could not be accepted as a security until approved by the board. As to the approval of the bonds, the act of 1906 left the law just as it stood before, except the commissioner of banking was added as a member of the approving board. In the taking and approval of bonds, the act required that they should be in double the amount of the deposit to-be made, and this is a limitation on the power of the state treasurer who acts in the first instance and on the board that approves in the second. Nothing in this act gave to the board the right to take the bond in the first instance or to afterward surrender it. This primary duty rested on the state treasurer after, as well as before, the act of 1906 was passed. As to bonds, the duties of the board were limited to approval. This board does not have the power to take the initiative either in taking or surrendering a bond, which right still remained in the treasurer under the law. The treasurer could not accept a bond without the approval of the board and the board could not surrender a bond without the consent of the treasurer. These are wholesome cheeks imposed by law upon the officers clothed with the power to deal with this subject. This understanding of the law simplifies the question raised by this appeal. The resolution of 1908 relied on to defeat a recovery, was adopted by the board constituted as above indicated, but as we have seen this board had no power to surrender an old bond or take a new one. As to bonds, it only had the power of approval. The state treasurer did not surrender the bond in suit and the board had no power to do so.

Again, we cannot agree that there can be no recovery because the bond in question was taken in the name of a particular state treasurer and was only intended to cover defaults occurring during the term of office of the official in whose name it was taken. The bond in terms negatives this theory. It was taken to secure deposits during the term of the treasurer named or his successor in office, which means any successor in office so long as state funds are deposited in the institution bound by the bond. Nor is there any merit in the contention that the bond was only intended to cover moneys deposited at the time it was given or, at most, during the term of the treasurer then in office. Such a construction would do violence to the plain intention of the parties as gathered from the bond itself, the purpose for which taken, and the course of business dealings between the state and the institutions carrying its balances on deposit. These bonds are continuing obligations to protect the state against loss, so long as moneys are deposited in the institutions giving them. Such bonds may be surrendered and new or additional ones may be taken in lieu thereof, but when this is done all of the constituted authorities having to deal with the subject, must join in the act in the manner provided by law. In the present case, the old bond was not surrendered by the state treasurer and it could not be done without his consent, nor could it be done by him alone without the approval of the board. These requirements of the law were not complied with and the obligation of the bondsmen to answer for the default of the bank still remains.

Judgment affirmed.


text:
    Commonwealth v. Stewart
    March 16, 1909:
    (No. 1).
    Argued Feb. 15, 1909.
    Appeal, No. 31, Oct. T., 1909, by W. B. Rhodes and Mary H. Rhodes, executors of Joshua W. Rhodes, deceased, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 179, discharging rule to open judgment in case of Commonwealth v. William Stewart et al.
    Before Brown, Mbstrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
   Per Curiam,

The learned counsel for appellant have invoked the doctrine of estoppel to defeat the right of the commonwealth to proceed upon the bond in suit. As we view the facts of this case and the law applicable thereto the question of estoppel cannot be raised. For the reasons given in the opinion, ante, p. 103, the order of the court below discharging the rule to open judgment is affirmed.


text:
    Commonwealth v. Caldwell
    (No. 2).
    Argued Feb. 15, 1909.
    Appeal, No. 32, Oct. T., 1909, by Walter Chess, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 178, discharging rule to open judgment in case of Commonwealth v. John Caldwell, Jr., et al.
    Before Brown, Mbstrezat, Potter, Elkin and Stewart JJ.
    Affirmed.

      March 16, 1909:
   Per Curiam,

For the reasons given in the opinion, ante, p. 103, the ordef of the court below discharging the rule to open judgment is affirmed.


text:
    Commonwealth v. Stewart
    March 16, 1909:
    (No. 2).
    Argued Feb. 15, 1909.
    Appeal, No. 33, Oct. T., 1909, by Walter Chess, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 179, discharging rule to open judgment in case of Commonwealth v. William Stewart et al.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
   Per Curiam,

For the reasons given in the opinion, ante, p. 103, the order of the court below discharging the rule to open judgment is affirmed.


text:
    Commonwealth v. Caldwell
    March 16, 1909:
    (No. 3).
    Argued Feb. 15, 1909.
    Appeal, No 35, Oct. T., 1909, by Thomas Evans, from order of C. P. No. 2, Allegheny Co., July Term, 1908, No. 178, discharging rule to open judgment in case of Commonwealth v. John.Caldwell, Jr., et al.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
   Per Curiam,

For the reasons given in the opinion, ante, p. 103, the order of the court below discharging the rule to open judgment is affirmed.


text:
    Commonwealth v. Stewart
    March, 16, 1909:

      (No. 3).

    Argued Feb. 15, 1909.
    Appeal, No. 36, Oct. T., 1909, by Thomas Evans, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 179, discharging rule to open judgment in case of Commonwealth v. William Stewart et al.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
   Per Curiam,

For the reasons given in the opinion, ante, p. 103, the order of the court below discharging the rule to open judgment is affirmed.


text:
    Brink, Appellant, v. Brady.

      Will — Probate—Issue devisavit vel non — Fraud.
    1. In issues devisavit vel non the sufficiency of the evidence is always for the court, and it is error to submit the question to the jury if the evidence be insufficient. .
    2. On the trial of an issue devisavit vel non where the only question was whether the alleged will was procured by trick, deception, fraud or duress, the proponent produced as a witness, the counsel who prepared the will, at the request of testator, and who retained it in his custody after its execution, also three other persons who identified the signatures of the subscribing witnesses, also three persons who identified the signature of the testator, and one person not a witness to the will, but who was present in the room when* it was executed, and saw the testator sign his name and the two subscribing witnesses attest the same. The will in the handwriting of the scrivener was also produced. None of these facts were controverted, but it was sought to be shown by the contestant that the testator had been ill for several weeks before the date of the execution, and that this illness had continued for a period so long that he could not have been in the office of the scrivener when the will was prepared. No witness, however, could fix the exact date when the testator was able to leave his house, or when he did so. Held, that the evidence was insufficient to-sustain a verdict against the will.

      March 15, 1909:
    Argued Feb. 22, 1909.
    Appeal, No. 265, Jan. T., 1908, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1908, No. 246, on verdict for plaintiff in case of Jennie E. Brink v. Selden G. Brady, William Brady and Jesse Brady.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Issue devisavit vel non. Before Staples, P. J., specially presiding.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned amongst others was in submitting the case to the jury.
    I. H. Burns and R. H. Holgate, with them William H. Roe, for appellant,
    cited: South Side Trust Co. v. McGrew, 219 Pa. 606; Robinson v. Robinson, 203 Pa. 400.

      John P. Kelly and E. W. Thayer, with them Joseph O’Brien and William J. Fitzgerald, for appellees.
   Opinion by

Mr. Justice Elkin,

This is a contest between the beneficiary named in the will of testator and other relatives who think they should have been the objects of his bounty. The will was prepared at the request of the testator by a competent scrivener and was executed in due form in the presence of two subscribing witnesses. When it was produced for probate, a caveat was filed by two nephews not named in the will protesting against its being probated by the register of wills. The execution of the will was duly proven and no question was raised as to the signature of the testator, the issue being as to this testamentary capacity, undue influence and fraud, artifice or deceit in connection with the making of the instrument. The testimony offered was not sufficient to sustain the allegation of testamentary incapacity, but certain disputable questions arose which it was deemed proper to have determined by the orphans' court and the proceedings were certified accordingly. After a prolonged hearing in that court, and before a final disposition of the case demand was made by an heir at law of the decedent for an issue to be certified to the court of common pleas in order to have certain questions of fact determined by a jury. The issue certified contained two questions: (a) whether the execution of the alleged will was procured by trick, deception, imposition, duress or fraud practiced on the decedent; and (b) whether the execution of the alleged will was procured by the exercise of undue influence over the decedent. As the case then stood, the execution of the will had been duly proven, the testamentary capacity of the testator established, and only the questions of undue influence and of trick, artifice, duress and fraud remained to be determined by the jury. At the trial, the learned court below very properly held that the evidence was not sufficient to sustain the allegation of undue influence and a verdict was so directed. This eliminates everything from the case except the first question in the issue certified, and it must now be determined whether the evidence produced at the trial is sufficient to sustain the verdict returned by the jury. The affirmative of the issue was on the proponent of the will. She met the burden by producing, as witnesses, the counsel who prepared the will at the request of the testator and who retained it in his custody after its execution; by three other persons who identified the signatures of the subscribing witnesses; by three persons who identified the signature of the testator; by one person, not a witness to the will, but who was present in the room when it was executed and saw the testator sign his name and the two subscribing witnesses attest the same. The will in the handwriting of the scrivener who wrote it and signed by the testator who made it in the presence of witnesses who attested it, was then offered in evidence. This made out a strong prima facie case in favor of the plaintiff and placed upon the defendants the burden of establishing by sufficient testimony that the execution of the will was procured by trick, deception, artifice, imposition, duress or fraud practiced on the decedent. We have examined with care the testimony covering more than 500 pages of record without finding a witness who testified to a single fact directly bearing upon the allegation. No one denies that the scrivener wrote the will as he testified, and it is conceded to be in his handwriting. No one says that the two subscribing witnesses did not attest the execution of the will or that the witness, Disk, was not present and saw the testator and the subscribing witnesses sign their names. No one denies that after the execution of the will, it was left with the counsel who wrote it for safe-keeping and that it was produced by him for probate after the death of the testator. All of these facts were affirmatively established, and the will itself is the absolute confirmation of them. The testimony of the cloud of witnesses spoken of at the argument, does not directly controvert a single fact established by the positive evidence produced by the plaintiff, nor is it sufficient to sustain an inference, that the will was not executed in the manner proven. Much of this testimony relates to the question of undue influence, but this is no longer in the case. A large portion of it goes to the improbability of the testator being in the office of the scrivener the day he prepared the will. All of this evidence is negative in character, and in no instance does it approach the standard of clear, precise, indubitable proof required to overcome written instruments. By this testimony, it was attempted to be shown that because the testator, several weeks before he went to the office of the scrivener to have his will prepared, had been quite ill and that this illness had continued for an indefinite period, no witness undertaking to fix the exact date when the testator was able to leave his room, or when he did so, he could not possibly have been in Scranton, a short distance away, on the day the will was prepared. No witness testified to a single fact that made it impossible for the testator to be in the office of the scrivener on the day the will was written. It was an attempt to overcome facts established by witnesses who saw and heard with their own eyes and ears, by testimony coming from interested sources, the force and effect of which was that it could not be so because the testator had been confined to his room some weeks prior to that date and had not sufficiently recovered to go up to Scranton that day. Not one of these witnesses saw him in his room any considerable part of that day, and most of them, no part of it, and they did not attempt to account for his whereabouts. On the other hand, a witness, called by plaintiff and not connected with the estate, positively testified that he saw testator in the office of the scrivener on the day mentioned and talked with him on the streets. There is no case in the books in which an instrument in writing solemnly executed with all the formalities of law has been set aside upon such flimsy, unsatisfactory and negative testimony. Clearly, the evidence was insufficient to sustain the allegation, and it was the duty of the court to so have instructed the jury. In cases of this character the sufficiency of the evidence is always for the court, and it is error to submit the question to the jury if the evidence be insufficient: Sartwell v. Wilcox, 20 Pa. 117; Lower v. Clement, 25 Pa. 63; Silveus v. Porter, 74 Pa. 448; Cauffman v. Long, 82 Pa. 72. To permit the judgment to stand under the facts of this case would be to substitute the guess of a jury for the solemn act of a testator having testamentary capacity and without any undue influence having been exercised over him.

Judgment reversed and issue set aside in order that the will may be admitted to probate.


author: Mr. Justice Mestrezat,

text:
    Mengell’s Executors v. Mohnsville Water Company, Appellant.

      Water companies — Corporations—Eminent domain- — Mill—Waters— Witnesses — Experts—Evidence.
    1. In a proceeding against a water company to assess damages for injuries to a mill property, witnesses for the plaintiff may express an opinion as to values, when they state that they are millers or manufacturers, that they are familiar with the property in question and in a general way with the market values in the neighborhood, and that there has been a diminution of water affecting the operation of the plant.

      Eminent domain — Condemnation proceedings — Damages-—Interest.
    2. Interest, as such, cannot be allowed on damages in condemnation proceedings. The court may, however, instruct the jury, that in ascerT taining the amount of their verdict they may consider the lapse of time between the taking of the property and the time of trial as an element of damages, or as compensation for the delay in payment of the sum due the plaintiff for the injuries he has sustained. If such instructions have been given, and the jury fully understands that it is wholly for them to say whether the plaintiff is entitled to any additional sum for the delay, and if so for what amount, the appellate court will not reverse the judgment because the trial judge may have used the word “interest" in connection with the amount of the damages.
    3. In actions ex contractu, the plaintiff is entitled as of right to interest on any fixed sum that may be found due him; and the jury, unless clearly and positively instructed, may infer in actions of tort that he is also entitled to interest on the damages awarded him. If he has not caused the delay in the ascertainment and payment of the damages, the delay is an element which should be considered by the jury in ascertaining the amount of their verdict; but where his action has unreasonably prevented a settlement for the amount due him and the defendant company has not been at fault he should not be compensated for his own wrong. In all cases of this character, therefore, the jury should receive explicit instructions by the court as to their duty in disposing of the question.

      Eminent domain — Parties—Executors and administrators — “Estate.”
    4. In a proceeding to assess damages for property injured by a public service company where the estate of a testator is entitled to the amount of the damages, the proceedings should be instituted in the names of the executors, and not in the name of the estate of the deceased named.
    Argued March 1, 1909.
    Appeal, No. 320, Jan. T., 1908, by defendant, from judgment of C. P. Berks Co., March T., 1906; No. 37, on verdict for plaintiff in case of estate of Matthias Mengel, deceased, v. Mohnsville Water Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Appeal from report of jury of view. Before Ermentrout, P. J.
    At the trial the court permitted under objection and exception various witnesses for plaintiff to testify as to value. [1-4]
    The court charged in part as follows:
    I want to say further that the jury are not to consider as any evidence of the market value of the property, the price paid for the property in 1875 as the market value in 1902. Common experience of the world teaches us that the values of property change greatly. What a person would give for a property in 1875 may be totally different from what they would give in 1902. [The point the jury is to ascertain is the difference in the market value in 1902 when the water was appropriated. That is the period, not 1875 or 1870 or to-day, but in 1902 when the property was taken, immediately before and immediately after the valuations are to be made, and the difference is the proper measure of damages in this case, with interest.] [5]
    Verdict and judgment for plaintiff for $4,810.
    On a rule for a new trial Endlich, P. J., filed the following opinion:
    This is an issue in a proceeding instituted by the defendant company to assess the damages sustained by plaintiff by reason of the defendant's appropriation about 1902 of “part of the water of Kleinginna Creek,” a tributary of Wyo-missing Creek, the latter furnishing the power for plaintiff’s mill, connected with which there is farming land and buildings. The issue was tried before the late President Judge Ekmentrout.
    Certain reasons assigned in support of the defendant’s application for a new trial based upon the alleged action of the jury and of plaintiffs’ counsel in its presence during a view of the property, are not pressed. Obviously these were matters which, if deemed of sufficient importance, would have been at once brought to the notice of the court as ground for the withdrawal of a juror and continuance of the cause, or at least for such instructions by the court as might appear adequate to neutralize their possible undue effect. Upon very familiar principles the failure to take advantage of them in limine constituted a waiver of any objection based upon them. Accordingly the only reasons relied upon are those which allege error in the admission of the testimony of a number of witnesses upon the question of market values over objections made by defendant on the ground that they were not qualified for that purpose. The allegation of error in this particular is based upon what is said concerning the qualifications of witnesses as to market values in Lee v. Water Co., 176 Pa. 223; Lewis v. Water Co., 176 Pa. 230; Friday v. Railroad Co., 204 Pa. 405. It is not to be understood, neither is it contended, that these decisions announce any new doctrine upon the subject. On the contrary, the one last mentioned expressly proceeds upon the rules laid down in Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325, and Michael v. Pipe Line Co., 159 Pa. 99. Hence, subject to the requirement that the qualifications of a witness to give an opinion must appear and be passed upon by the court before he is permitted to do so, Michael v. Pipe Line Co., 159 Pa. p. 104, the rule still obtains that, if upon his preliminary examination he is shown to have any pretensions to speak on the matter, his competency to do so rests much in the discretion of the trial judge, Oil Co. v. Gilson, 63 Pa. 146, the value and weight of the opinion expressed being, of course, a matter entirely for the jury: Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325; Lewis v. Water Co., 176 Pa. 230. The question whether or not there was in this case such error as calls for the setting aside of this verdict in allowing the witnesses referred to to express their opinions is to be judged of in the light of these principles.
    Levi W. Mengel, now a teacher'of natural history, has known mill property since his childhood, being the son of its deceased owner. At one time he operated the mill. He had attended for his father to the renting of it. He knew its condition at the time of the appropriation, and the relation of the water power as it then was to the demands made upon it. He knew that after the appropriation there was a diminution of the water power, though he could measure neither the amount of water running through the race before or after by gallons, nor the energy derived from it by horse power. He knew the general market value of properties in the neighborhood about 1902. It would seem that Lee v. Water Co., 176 Pa. 233, is directly in point as an authority vindicating the admission of this witness’s opinion.

      James S. Ammon was raised as a miller and had a mill at the time of the trial, besides being a contractor. He had known plaintiff’s mill for forty years, and was acquainted with the general market value of real estate in the neighborhood about 1902. He knew of no sales of mill properties there about that time, neither could he give the extent of the loss to the plaintiff’s mill by defendant’s appropriation in gallons, cubic feet or horse power. But he knew that previously the water power was good. He was permitted to express his opinion as to the difference in market values upon the assumption that before the appropriation the mill had a water supply sufficient for the capacity of its equipment (with which he was familiar) and thereafter an inadequate one — facts appearing not only by his own deposition, but elsewhere in the evidence. Again the objection to this witness would seem to go to the weight of his evidence, rather than to its competency, under the decision last cited.
    Albert Thalheimer, a manufacturer living in the city of Reading, but acquainted with plaintiff’s mill for thirty-six or more years down to the time of trial, and in a general way with the market value of property in the neighborhood before 1902, knew by information that the mill had, before the appropriation, a water power equal to fifteen horse power, and had had occasion to inform himself by inquiry as to the value of mill properties during the past ten years. O’Brien v. Railway Co., 194 Pa. 336, seems to justify the admission of this witness’s opinion.
    George G. Ruth is the only remaining witness to the reception of whose testimony the reasons assigned in support of this rule object. The objection, however, was not pressed at the argument. Whilst that circumstance might well be regarded as a waiver of the objection, an examination of his testimony leads to the conviction that he was entirely competent to give it under every rule recognized on the subject.
    Isaac S. Spatz is not one of the witnesses alleged in the reasons filed to have been incompetent to express the opinion he was permitted to give; but he was referred to as such at the argument. He lived at Mohnton, knew plaintiff’s mill for twenty-five years including 1902; and had a general- knowledge of market values of property in the vicinity at that time. He did not know how much water was taken from the mill or to what in horse power its loss amounted. He did, however, know what effect it had upon the running of the mill. He hesitated • about expressing an opinion as to the consequent difference in the market value of the property, but finally gave it. "What is said in Railway Co. v. Vance, 115 Pa. 325, 332, applies to this witness exactly.
    It is perhaps true that all this evidence was lacking in certain elements of precision. In part this may be' regarded as attributable to the indefinite character of the defendant’s petition under which the issue was framed, and which in an important sense is to be treated as a pleading underlying the trial: Miller v. Water Co., 148 Pa. 429; P. & R. R. R. Co. v. R. & P. R. R. Co., 12 Pa. C. C. Rep. 513. That petition avers simply the appropriation of “part of the water of” a certain stream, without designating any quantity. Necessarily the issue framed was equally indefinite, and the plaintiffs’ testimony went no further than the exigencies of the issue demanded. Had the petition and issue been more precise, it may be that the-competency of the witnesses offered to sustain the plaintiff’s side of it would have had to be tested by a more stringent rule in order to make their testimony responsive to the inquiry involved. It is to be observed, however, that more detailed data were furnished by the testimony adduced on behalf of the defendant, whereby.the jury was enabled to judge of the accuracy of the evidence submitted on behalf of the plaintiff and the value of the opinions of their witnesses on the effect of the appropriation upon plaintiff’s property. Nor ought it to be overlooked that the verdict, fixing the depreciation of the same in 1902 at $3,700, is far below the estimate of plaintiffs’ witnesses, averaging about $9,000.
    Upon the whole, the reasons urged in support of this application do not appear to be sufficient to warrant the granting of it, and, therefore, the rule to show cause is discharged.
    Defendant appealed.

      March 15, 1909:

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5) above instruction, quoting it.

      C. H. Ruhl, with him Dumn & Schœffer, for appellant.—
    This court has declared in. many cases, what knowledge of the subject-matter the witness must necessarily possess to make his testimony admissible as expert testimony: Pittsburg, etc., Railway Co. v. Vance, 115 Pa. 325; Michael v. Pipe Line Co., 159 Pa. 99; Friday v. Railroad Co., 204 Pa. 405.
    The jury were erroneously instructed to include interest on the sum allowed as the proper measure of damages: Reading, etc., R. R. Co. v. Balthaser, 126 Pa. 1; Klages v. Terminal Co., 160 Pa. 386; Emerson v. Schoonmaker, 135 Pa. 437; Becker v. Railroad Co., 177 Pa. 252.

      John B. Stevens, with him Garrett B. Stevens, for appellees.
   Opinion by

Mr. Justice Mestrezat,

The first four assignments allege error in permitting certain witnesses of the plaintiff to testify. The ground of the objection is that they did not sufficiently qualify themselves to testify in the cause. In his opinion, discharging the rule for a new trial, the learned judge of the court below reviewed the testimony affecting their competency and, as he points out, they were clearly admissible under our decisions.

The fifth assignment alleges error in that part of the charge of the court in which it is said that the jury may allow interest on the damages ascertained to be due the plaintiff in 1902. If this’part of the charge stood alone, or was all that the court said on the subject, the assignment would have to be sustained. It is now well settled in this jurisdiction that interest, eo nomine, cannot be allowed on damages in condemnation proceedings. It is, therefore, reversible error for the court to charge the jury that interest, as such, may be allowed on the damages which they find to be due the landowner. This we have frequently held. The court, however, should instruct the jury that in ascertaining the amount of their verdict they may consider the lapse of time between the taking of the property and the time of trial as an element of damages, or as compensation for the delay in payment of the sum due the plaintiff for the injuries he has sustained. It is wholly within the province of the jury to determine whether the plaintiff is entitled to any additional sum for the delay, and if so, what amount will compensate him for the delay. They may allow a sum not exceeding six per cent, but they can allow a smaller amount, just as they think the circumstances require in order to make the plaintiff whole. It is, therefore, purely a question for the jury to determine whether any or what sum shall be added to the amount of damages ascertained to be due as of the date of the appropriation of the plaintiff ’a property.

The correct rule in such cases, as stated, was recognized by the learned judge in his charge, and we have no doubt that the jury fully understood it and acted upon it in determining the amount of the damages due the plaintiffs. Both parties to the litigation agreed that the measure of damages was the difference in the market value of the property immediately before and after the appropriation by the defendant company. In the first part of his charge the learned judge said: “If, after ascertaining this (the difference in the market value of the property before and after the appropriation), in your judgment the plaintiff will not be made whole by reason of delay or other reasons, you may, as additional damages, allow interest from the time of the appropriation to date. That is a question, however, for the jury. ” In the concluding part of the charge proper, the court said: “Take the property as it stood before the company appropriated the water and ascertain its fair market value. Take it as it stood after the company appropriated the water, ascertain its market value then, and the difference is the measure of damages, with interest, as I have already indicated, if you see proper to give that.” It is clear, therefore, that the learned judge correctly charged the jury as to allowing additional damages for the delay in compensating the plaintiff for the injuries he had sustained by the appropriation of his property. The parts of the charge quoted left no doubt in the minds of the jurors as to their duty in passing upon that question. The alleged error occurred when the court answered the defendant’s point for instruction. The appropriation of the plaintiffs’ property was made in 1902, but there was evidence as to' the value of the property in 1875, and the defendant by its point requested the court to instruct the jury that the price paid for property in 1875 was not evidence of the market value of the plaintiffs’ property in 1902. The court affirmed the point, and in giving his reasons therefor committed the alleged error complained of. What was said, however, was merely to impress upon the jury their duty to eliminate from their consideration the prices of property in that neighborhood in 1875. What the learned judge said in reference to the allowance of interest was in view of the fact that, as he told the jury, the damages must be assessed as of the year 1902; and it must be considered in connection with the parts of the charge in which the court distinctly told the jury, both at the beginning and conclusion of its remarks, that they might allow interest as additional damages for the detention of the amount due the plaintiff. The language of the court in its supplemental instructions in answer to the defendant’s point clearly shows, and the jury would understand, that it was solely within their discretion to allow interest as compensation for the time intervening between 1902 and the date of the trial. The remark of the court complained of was manifestly not regarded as objectionable to the defendant at the time because the court’s attention was not called to it, nor subsequently on the application for a new trial as it was not presented nor urged as a reason for a retrial of the cause. We think it did not mislead the jury or give them a rule for considering the question of interest different from the correct rule laid down in the two parts of the charge quoted above.

It may be well to suggest that in cases of this character the court should be careful in stating the rule upon this subject. As pointed out in our cases, there are many instances in which the plaintiff has caused the delay in the payment of his damages and where, therefore, he is not entitled to any additional sum on the amount due him as of the date of the appropriation. In actions ex contractu, the plaintiff is entitled as of right to interest on any fixed sum that may be found due him; and the jury, unless clearly and positively instructed, may. infer in actions of tort, that he is also entitled to interest on. the damT ages awarded him. If he has not caused the delay in the ascertainment and payment of the damages, the delay is an element .which should be considered by the jury in ascertaining the amount of their verdict; but where his action has unreasonably prevented a settlement for the amount due him and the defendant company has not been at fault, he should not be compensated for his own wrong. In all such cases, therefore, the jury should receive explicit instructions by the court as to their duty in disposing of the question.

By inadvertence, “an estate” was made the plaintiff in this case instead of the executors of the testator to whom the damages are payable and with whom the petition avers the defendant made an attempt to settle for the compensation due for the damages sustained. This error runs throughout the proceedings and manifestly escaped the attention of the court below. We correct the error here.

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


author: Mr. Justice Brown,

text:
    Kittanning Brewing Company v. American Natural Gas Company, Appellant.

      Equity — Equity practice — Injunction—Preliminary injunction — Continuing injunction without hearing defendant.

    1. It is reversible error to continue a preliminary injunction without hearing defendant's witnesses, if the defendant asks to be heard.- There is nothing in equity rule 81 which will justify such practice.
    2. When a preliminary injunction is awarded without notice it is the right of the enjoined to move at once for its dissolution, instead of being compelled to wait for the complainant’s motion to continue at the expiration of five days. Its continuance for even a day may work irreparable wrong to the defendant, whose right to be heard that it be dissolved is no less than the complainant's who procures it without notice on an ex parte hearing.

      March 15, 1909:
    Argued March 2, 1909.
    Appeal, No. 43, Oct. T., 1909, by defendant, from decree of C. P. Armstrong Co., Dec. T., 1908, No. 263, continuing preliminary injunction in case of The Kit-tanning Brewing Company v. American Natural Gas Company and The Kittanning Consolidated Natural Gas Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Record remitted.
    Motion to continue preliminary injunction. Before Patton, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in continuing preliminary injunction without giving defendant an opportunity of being heard.

      Walter Lyon, of Lyon, Hunter & Burke, with him Heiner & Golden, for appellant.

      H. A. Heilman, for appellee.
   Opinion by

Mr. Justice Brown,

On November 30, 1908, without notice to the appellant, a preliminary injunction was awarded by the court below, restraining it from shutting off a supply of gas to the appellee. Five days afterwards, on December 5, on the hearing of the motion to continue the injunction, the appellee, after offering some documentary evidence, called four witnesses, and, upon announcing its case closed, the appellant offered to produce testimony in answer to that submitted by the appellee, but the offer was refused, on the ground, as it appears from the court’s ruling, that at that time the appellant had no right to offer any evidence. The unchallenged statement in the history of the case is that the practice in the court below is to hear only the plaintiff’s case on the question of continuing a preliminary injunction, and the contention of counsel for appellee is that under equity rule No. 81, such practice is correct.

The awarding of a preliminary injunction without notice is somewhat like judgment and execution before trial, for ternporarily the defendant is damnatus inauditus. It is to be resorted to only from a pressing necessity to avoid injurious consequences that cannot be repaired under any standard of compensation. It ought never to be granted except in a clear case of an invaded right, to prevent irreparable mischief; and when the proof as to the right is so equally balanced as to leave it in doubt, the writ should be refused until the rights of the parties are ascertained and settled: The Mammoth Vein Consolidated Coal Company’s Appeal, 54 Pa. 183; Brown’s Appeal, 62 Pa. 17; Minnig’s Appeal, 82 Pa. 373.

When a preliminary injunction is awarded without notice it is the right of the enjoined to move at once for its dissolution, instead of being compelled to wait for the complainant’s motion to continue at the expiration of five days. Its continuance for even a day may work irreparable wrong to the defendant, whose right to be heard that it be dissolved is no less than the complainant’s who procures it without notice on an ex parte hearing. To grant the one a hearing and to deny it to the other would be a mockery of justice. The books teem with cases in which preliminary injunctions awarded on bills and affidavits have been dissolved on affidavits of defendants denying the equities of the plaintiffs. Defendants were always so heard, and their right to be heard now is not impaired by rule 81, though under that rule ex parte affidavits will not be received. The rule provides, “Witnesses may be examined orally before the judge, or testimony may be taken on short rule, or, when necessary, testimony may be taken before any person authorized to administer an oath, on notice to the other side to appear and cross-examine. ” If only witnesses for the plaintiff are to be heard on a motion to dissolve or continue an injunction awarded without notice, there is no hearing for the defendant, and he may be compelled to submit to wrong for weeks and months, until on final hearing it is made clear that he ought not to have been enjoined and subjected to injuries for which the plaintiff’s bond gives no adequate reparation. What seems to be the practice of the court below is at variance with every idea of equity.

The question before us at this time is not whether the preliminary injunction should be dissolved, but whether the court erred in continuing it without hearing the defendant, asking to be heard. After hearing it, the injunction might have been continued; on the other hand, it might have been dissolved and, if so, the defendant’s appeal would not be here. The first, second and third assignments are sustained, and the record is remitted with directions to the court to reopen the hearing of the motion to continue the injunction and permit the defendant to offer testimony.


author: Pee Cueiam,

text:
    Hilliard v. Sterlingworth Railway Supply Company.

      Appeals — Interlocutory order — Quashing appeal.

    An order dismissing a petition for an order to suspend a receiver’s sale until the receiver files an account is an interlocutory order from which no appeal lies.
    Argued March 9, 1909.
    Appeal, No. 327, Jan. T., 1908, by F. W. Coolbaugh, receiver in bankruptcy, from decree of C. P. Northampton Co., April T., 1907, No. 1, refusing to suspend order of sale in case of Clinton Hilliard et al. v. Sterling-worth Railway Supply Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Appeal quashed.
    Petition to suspend order of sale.
    The facts appear by the opinion of Stewart, P. J., which was as follows:
    This is a petition by Frank W. Coolbaugh, receiver appointed by the United States court to restrain W. J. Kuebler, receiver of this court, from executing an order of sale of the defendant’s property “until the filing of a formal account and the audit thereof.” And that the said W. J. Kuebler, receiver, be restrained from making any public or private sale of the property and assets of the defendant company, other than in the usual course, etc. We suppose what is wanted is to stop the sale of defendant’s property advertised to be sold by the receiver under an order of this court. We yesterday filed our views in-a memorandum which is now made part of this opinion. We are not embarrassed in our previous action by any subsequent reading of the present petition and affidavits. The averments of the present petition relating to the value, extent and importance of this plant and the prophecies as to the future are what we have read and heard from the inception of these proceedings. It is an insult to this court to think that we do not understand this situation, especially after the hearings we have had, which involved every phase of this company, its organization, its internal troubles, its value, its liabilities; everything has been before us in a judicial way and now under the guise of a new appointment, this matter is seriously treated by counsel as if it was a case of first impression on the part of the court. The only new features are the affidavits which we were asked to consider. One gentleman modestly states that he thinks a sale hereafter will bring more than at present; another one thinks a sale will bring more in six or nine months. Three gentlemen swear that in their opinion “if sold next spring, would bring double, if not more (the italics are ours) than it would if sold sooner.” And to end the list the last gentleman swears, “If sold a few months hence would yield three times as much as it would if sold at this time.” It is encouraging to note most of them base their views upon the outcome of the recent election. In not one is there the possibility that times may become worse, that they may be mistaken. Such optimism is refreshing. Opinion evidence at the best is most uncertain, but rarely is there occasion to use it upon a matter so unsubstantial as the future condition of business. As to the criticisms upon the order the terms of this order were settled in open court, in the presence and with the assistance of counsel of all parties. The objections are unfounded. Everything about a receiver’s sale is under the control of the court, and no sale will be confirmed if there is any irregularity in the proceedings. It would be improper for us to place on record our views with regard to the value of this plant. Everything has been done to secure a good price. The matter of distribution of proceeds is entirely separate and no one is concluded by anything set out in the order of sale from making any claim or distribution that is proper. Application refused.
    March 15, 1909:

      Error assigned was the decree of the court.

      Charles H. Edmunds, Samuel Scoville, Jr., John Sparhawk, Jr., and Frank Reeder, for appellant.

      John G. Johnson, for Sterlingworth Railway Supply Company.

      H. J. Steele, with him F. W. Edgar, for appellee.
   Pee Cueiam,

We have concluded after due consideration that this is an appeal from an interlocutory order, and under our decisions must be quashed. The order of sale, heretofore made and from which this appeal was taken is necessarily expended and cannot now be executed. If an alias order of sale be applied for an opportunity will be given by the court in banc for the interested parties to be heard so that the propriety as well as the necessity of renewing the order at this time may be determined. Such order of sale, or other decree, can then be made as will best protect and conserve the interests of all parties concerned under present conditions.

Motion to quash sustained and appeal quashed.