text:
    James Flaherty v. Atlantic Lumber Company et al.
    [Filed August 18th, 1899.]
    1. A corporation may act 'by its agents without giving them authority in writing. It may be bound by acceptance and ratification of the previously unauthorized acts of its agents in the cqurse of its business.
    2. The sum demanded and refused payment under paragraph 3 (now paragraph 38) of the Mechanics’ Lien act must not, at the time of the demand, refusal of payment and notice to the owner to retain, exceed the sum then actually owing by the contractor to the workman or materialman who makes the demand and gives the notice. The claimant cannot demand payment and serve the notice first, and afterwards give credits on the sum demanded and noticed, which were allowable when demand was made.
    3. If the contractor marks a bill for material furnished to the building “ approved,” signing his name, it is not an equitable assignment of so much of the contract price as is sufficient to pay the bill.
    ' 4. When any residue of the contract' price remains after payment of the costs, and those statutory notices and equitable assignments which are effective, it belongs to the contractor.
    5. The case of Donnelly v. Johnes in this court, ante p. 442, followed on other points.

      On bill for interpleader, answers and proofs.
    The complainant is the owner of the post-office building at Atlantic City. By a written contract and specifications filed in Atlantic county clerk’s office, one Clarence E. Myers agreed to furnish the material and construct the post-office building for the sum of $4,884 — payable, $1,500 of it when the. window-frames were set, $1,500 when the walls were topped out and $1,884 when the building was finished, or within thirty days thereafter. The contractor covenanted under penalty to finish it by May 1st, 1897. He completed the building according to the agreement, but failed to pay a large number of claims for work done and materials furnished. There remained $1,853.32 of the contract price in the hands of the complainant. The disputing claims unpaid being largely in excess of this sum, the complainant filed his bill of interpleader, to which several answers have been filed, all admitting his equity, and he has paid the $1,853.32 into court in this suit, and has been dismissed, with his costs. The defendants continued the cause, and asserted their several claims under their answers and the pz-cofs offered by them, and submitted the same for final determination after full argument heard.

      Messrs. Godfrey & Godfrey, for D. B. Ingersoll and Atlantic Lumber Company, defendants.

      Mr. William M. Clevenger, for Samuel Hears and others, defendants.

      Mr. Harry Wootton, for Samuel H. French & Company, defendants.

      Mr. Robert E. Rtephany, for Devlin & Maxwell, defendants.

      Messrs. Thompson & Cole, for Pettit & Company and others, defendants.
   Grey, V. C.

There are two claims which are disputed and denied the right to participate in the fund by the other claimants. As to the remaining claims, the parties at the hearing admitted the correctness of the amounts of claims and the notices served thereunder, as stated in the bill and answers, without formal proofs; and it was also agreed as to those other claims that the materials and labor furnished and performed actually went into the building in question and that the proper demand was made for payment and refused.

By the construction given by the court of appeals in Slingerland v. Binns, 11 Dick. Ch. Rep. 413, and Bayonne Building and Loan Association v. Williams, 43 Atl. Rep. 669, the fifth section of the supplement of 1895 (Gen. Stat. p. 2074) was declared to give to workmen and materialmen (subject to the expense of completing the contract work) an inchoate lien ab initio upon the liability of the owner to the contractor, which lien becomes perfect only on service of the statutory notice, based on demand and refusal of payment before that liability matures, and expires on such maturity if no notice has been given. This ruling makes it necessary to determine in each case, when a contest arises as to the applicability of installments coming due under the contract, what is the exact time when the liability of the owner to the contractor matures. Before that time the inchoate lien may be perfected by service of notice in conformity to the statute; after that time, so much of the installment which has matured as is not necessary to complete the contract work or to satisfy inchoate liens then perfected by notice, is at the disposal of the contractor and subject to attack by his outside creditors. Donnelly v. Johnes, ante p. 442.

The moneys in dispute in this cause came to be due under the last installment. By the terms of the contract the building was to be wholly finished on the 1st day of May, 1897. The final installment of 1884 became payable “ when the building is finished, it being understood that the fiual payment shall be made thirty days after this contract is completely finished.” There seems to be no dispute that the building was completed, as testified by the contractor, according to the contract. Thirty days after May 1st, 1897, was May 31st, 1897. At that date the liability of the owner to the contractor for the last installment matured. Up to that time any workman or materialman entitled to give the statutory notice to retain might do so, and thus perfect his inchoate lien; after that date they lost their privilege, and the contractor and his outside creditors might claim so much of the fund as was not needed to complete the contract and to pay the notices served, in compliance with the statute.

The notices served are to be paid in succession, in the order of their service. Bayonne Building and Loan Association v. Williams, supra.

The first notice was that of Daniel B. Ingersoll, served on April 9th, 1897, one of the two claims, payment of which is disputed. The written notice of Ingersoll was, in its essentials, in conformity to the statute, and gave notice to the owner to retain $872.60. The other claimants defend the fund against Ingersoll’s claim upon the ground that “ Ingersoll served notice for too much money.” The basis of this contention is not that the amount demanded by Ingersoll was not owing to him when demanded, but that, by what the opponents insist were the terms of Ingersoll’s contract, it was not, when demanded, payable. This defence rests wholly upon the claim that by the contract between Ingersoll and the contractor, Myers, the price of the bricks which Ingersoll furnished was fixed to be paid at certain specified times, which, the opponents insist, only arrived when Myers got his payments from Flaherty; and they say that on the day when Ingersoll served his notice Myers was not entitled to, and had not received, enough to pay Ingersoll the amount owing to him by $6, and as Myers had not received it Ingersoll had no right to demand it. The argument is exhibited by the following schedule submitted -by the counsel opposing Ingersoll’s claim :

“ Myers’ contract with Flaherty was for payment of.................... $4,884 00
“ Flaherty paid Myers during March, 18'97, the first two payments under the contract, $1,500 each........................................ 3,000 00
“ Flaherty owed Myers, May 1, 1897........................................ $1,884 00
‘‘Ingersoll furnished bricks up to March 31, 1897, to the value of... §1,166 60
“ Myers paid Ingersoll, March 20, 1897.................................... 300 00
§866 60
“This is the amount for which Ingersoll should have served notice, as he sold §6.00 of brick on April 1st. Under his contract this was not due until May 1st. April 9th, Ingersoll served notice for §872.60, or for §6 more than was due him, at that time

It should be noticed that all the bricks had been delivered by Ingersoll more than a week before notice served by him. The criticism of his claim depends, as stated, wholly upon the assertion that $6 of his demand, though owing to him when noticed, had not then become payable because, by his contract, it was not payable until Myers had received'his contract-money, and it is claimed that Myers did not become entitled to receive it until, at the earliest day, May 1st, 1897.

The statement of this argument of Ingersoll’s opponents, by the foregoing schedule which seeks to illustrate and enforce it, is not supported by the proofs. Assume that Ingersoll was to be paid for his bricks as Myers got his contract-money from Flaherty — that is, Ingersoll s bill became due and payable when Myers actually received enough money from Flaherty to pay it. The schedule states that Myers had received from Flaherty during March, 1897, $3,000, a sum largely in excess of Ingersoll’s bill for bricks, all furnished during March, except $6 worth on April 1st; but the statement that payments were made to Myers of $3,000 “ during March ” is largely assumption. Myers was put on the stand to prove when payments were made, and was unable to name the date of a single payment which he received. He “guessed” the first payment was in March, and “ guessed ” the second was three weeks after the first. As the work was only begun on March 4th, and Myers was obliged to get an architect’s certificate to entitle him to each payment, and to demand his money from Mr. Flaherty and procure him to pay the amount earned, my impression from the evidence is that the money was paid him (at least the second $1,500) after April 1st, and therefore after Ingersoll had furnished all the bricks for which he now by his stop-notice claims payment. By this second $1,500 Myers would have received enough to have fully paid Ingersoll, and thus the latter’s money would have been payable under any construction of the contract between Ingersoll and Myers.

But the evidence does not sustain the assertion that, by the contract between Ingersoll and Myers, the time of the payment for the bricks was fixed to depend upon Myers’ receipt of his contract-money. The whole matter is based on Ingersoll’s statements that he was to be paid “as he [Myers] got his money.” There is abundant proof that Myers paid out the moneys he received without regard to what he owed Ingersoll, and neither of them appears to have had any consciousness that the time of Ingersoll’s payments was by their contract dependent upon Myers’ receipt of his contract price for erecting the building. Myers swears he was receiving money from other work and could not tell what money he received or where it went. When Ingersoll was asked whether he was not to be paid if Myers never received his contract-money, he said there was no agreement to that effect, and yet if the contract was made as claimed, Ingersoll must be held to have agreed that if for any reason Myers failed to receive the moneys due him under the contract, he (Ingersoll) should never be paid — an agreement so unreasonable that it cannot be believed to have been made without strong proof, which is here wanting. There is some appearance of contradiction in the phrasing of Ingersoll’s testimony, but when the inquiry was directly put to him, “ When did your bill become due?” he answered, “My bills were due when the last bricks went there.”

Myers denied that Ingersoll demanded payment, but Ingersoll’s testimony supporting his stop-notice, written at the time, declaring that he had made a demand upon Myers and had been refused, is more worthy of belief.

Considering all the proofs, Ingersoll was entitled to the sum he demanded by his stop-notice, and his claim for $872.60 should be allowed.

The next stop-notice served was that of the Atlantic Lumber Company. That company furnished materials for the building in question, and served a notice upon Flaherty, the owner, on the 23d day of April, 1897, to retain $1,192.19.

This notice is challenged because it was signed “Atlantic Lumber Company, per C. P. Thompson,” without showing by any \yriting what authority Thompson had to make such a demand, and those opposing this claim allege that, because of the absence of such written authority, Myers was justified in refusing payment, and that the notice itself is inefficient.

The doctrine that a corporation may act only by a resolution of its board, and under its corporate seal, has long been abandoned. In the conduct of its ordinary business a corporation acts by its agents, who may be appointed without formal action of its board and not even in writing. American Insurance Co. v. Oakley, 9 Paige 500. Corporations may be bound by acceptance and ratification of previously unauthorized acts of an agent, even when in the course of his principal’s business he perpetrates a fraud. Garrison v. Technic Electric Co., 10 Dick. Ch. Rep. 708. The notice in this case was given in the name of the company by one who had in the matter in question power to represent it, and the corporation has ever since acted upon and ratified his act. A written authority exhibiting liis agency was not necessary to justify either the demand for payment from Myers or the notice in writing to the owner.

There is another criticism of the claim of the Atlantic Lumber Company which is of more significance. The party claiming under paragraph 3 (now paragraph 38) of the lien act cannot sustain his notice if he demands more than is due. Kirtland v. Moore, 13 Stew. Eq. 106. There must have been a previous refusal to pay by the contractor, and it is quite obvious if the contractor did not owe the sum demanded he had a good ground for his refusal, and the claimant could not ignore it and collect the exorbitant bill from the owner by notice. Reeve v. Elmendorf, 9 Vr. 133.

The Atlantic Lumber Company, on April 23d, 1897, served on Flaherty, the owner, a notice that $1,192.19 was due it from the contractor, and that it had demanded that sum from him and he had refused payment, and requiring the owner to retain that sum out of the contract price. It appears that in the manner of making sales by this company, a list of-the material to be furnished a building would be made out; sometimes all the goods named on the list would not be used, and sometimes there would be additional material sent or a correction of prices. In the final settlement sometimes the credits for unused goods amounted to more than the extra charges for additional material, or in correction of prices, and sometimes the extra charges to more than the credits. The superintendent of the company testified that in every case while he was in their employ there was a variation. It is quite evident that in such case the amount owing by the contractor could only be definitely ascertained by an adjustment of these items of debit and credit, fixing the final balance to be paid. Until that had been done there could be no proper demand and refusal and no sufficient notice to retain. The testimony and the documentary proofs show, that the demand of payment and refusal by the contractor to pay were made on April 22d or 23d, 1897; the notice to the owner to retain was served on the 23d day of April in that year. The demand was for $1,192.19 and the notice is to retain a like sum. But at this time there was an unadjusted credit outstanding for unused lumber, which was afterwards taken away from the building. The price for this unused lumber was charged in the bill and makes part of the $1,192.19 now claimed. After the notice claiming the $1,192.19 had been served, this credit for unused lumber was, on June 1st, 1897, adjusted at $29.76, and was allowed to the contractor against the $1,192.19 demanded of him and notified to be retained by the owner from the contract price. The testimony and documentary proofs make this absolutely clear. The Atlantic Lumber Company’s own written statement, under date of June 1st, 1897, shows that this credit of $29.76 was allowed to the contractor against the $1,192.19 now claimed from the owner. On the 27th day of May, some five weeks after the demand upon and refusal to pay by the contractor, and after the notice to retain had been served on the owner, the contractor marked- the bill of the Atlantic Lumber GompauyKmade out with a total of $1,192.19, as now claimed, approved.”

This is claimed to be an admission that $1,192.19 was the true amount due that company and to be a waiver of all credits. But it can have no force to make the company’s notice effectual. First, because if this approval admitted the $1,192.19 to be the true sum due, the adjustment came too late. The cases cited show that the true sum must be ascertained before the demand made, and the notice must not exceed the sum so ascertained. The claimant cannot demand and serve notice first, and afterwards allow credits due when demand was made. Secondly, the contractor’s approval was obviously neither au admission that the $1,192.19 was the true sum due, nor a waiver of all other credits, for he afterwards obtained the $29.76 credit to be allowed him for the unused lumber as a deduction from the $1,192.19 now claimed from the fund.

The necessary result follows that the contractor when asked to pay $1,192.19 without the previous adjusting and deducting of the credit of $29.76; may rightfully have refused to pay, and the claimant cannot maintain its notice to the owner demanding payment of a greater sum than was due from the contractor. Its claim must therefore be rejected. Reeve v. Elmendorf, Kirtland v. Moore, ubi supra.

There was a reference on the argument to the supplement of 1895 (Gen. Stat. p. 2075 7), which prescribes that in all cases journeymen or laborers shall have priority over employers of labor, contractors or materialmen for the payment of wages, without reference to the date when the journeymen or laborers shall have filed their liens or served notice. It is suggested that these labor claims must have preference. In examining the status of the claimants the court can look only at the facts shown in the pleadings and proofs. The privilege to be preferentially paid under paragraph 7 (now paragraph 43) of the supplement of 1895 is limited to journeymen and laborers who have served notices for the payment of wages. Whether the claimant was a journeyman or laborer, and whether the notice served was for payment of wages, are matters of fact which must be alleged and proved to entitle the claimant to the privilege secured him by the statute. Neither the pleadings, the admissions nor the proofs in this case specify that any of the claims were made by laborers or journeymen, nor that they were due for payment of wages. The bill of complaint refers to claims for work and material furnished, without distinguishing that which was for work from that which was for material, and it nowhere states specifically that any claim was for the payment of the wages of a journeyman or laborer, nor does any answer or proof set up such a claim, and for want of such showing they fail to establish their rights to the preference given by paragraph 7 (now paragraph 43) of the supplement of 1895 to journeymen and laborers, and take their places as claimants without special preference under that act.

There remain to be considered the other notices of workmen and materialmen to retain, &c., which are alleged to have been served in conformity to the statute.

In the decision of the court of appeals in Bayonne Building and Loan Association v. Williams, above cited, it is declared that when the liability of the owner to the contractor under the contract matures, all the inchoate liens of workmen and material-men not then perfected by proper service of notice expire. This necessarily releases the fund from liability to be retained on statutory notices, and permits the contractor to dispose of it, or his outside creditors to assert their rights in it.

In the case under consideration the liability of the owner, as is above shown, matured May 31st, 1897. No other statutory notice than .those of Iugersoll and of the Atlantic Lumber Company was served on or prior to May 31st, 1897. Several were served at various times between June 1st, 1897, and September 11th, 1897. As all of these statutory notices were served after the liability of the owner under the contract had matured on May 31st, 1897, and after the residue of the contract price had been thereby freed from the charge in favor of workmen and materialmen, they all failed to have any effect to compel the owner to retain anything for their payment from the contract price, and all must be rejected as claims upon the residue of the fund, which had, on May 31st, 1897, come to be at the disposal of the contractor and liable to respond to orders given by him.

The first claim asserted to have operated under an order of the contractor on the owner as an equitable assignment is that of the Atlantic Lumber Company, which, on March 7th,. 1897, served on the owner an itemized bill against the contractor, on which the latter had endorsed the words “Approved, Clarence E. Myers.” There is nothing on the face of this bill, or its approval, or any other evidence, to show that the contractor, Myers, directed the owner, Elaherty, to pay out of the contract price in his hands, due Myers, the amount of the bill. To approve a bill is one thing; to order it to be paid out of a particular fund is quite a different thing. This claim cannot operate as an equitable assignment, as no intent of the parties that it should so operate anywhere appeal’s. It is therefore rejected.

The next claims on the fund by way of equitable assignment, are the two presented by Devlin & Maxwell. These were served upon the owner — the first, on May 24th, 1897, for $188; the second, on May 27th, 1897, for $22.20. They are in the form', of bills of Devlin & Maxwell against Myers, the contractor, and have annexed an order by Myers addressed to Elaherty, the owner, directing him to pay the amount of the above bill out of the balance due on the contract'for building the post-office, the building in question. These two claims of Devlin & Maxwell were also the subject of a notice served under the statute, but as they were served as notices after May 31st, 1897, when the last of the installment under the contract had matured, they failed as statutory notices as above shown.

The claim of Ingersoll, by the decree herein to be made, will be fully paid, and in this way removed as a charge on the fund. The orders of the contractor become operative to dispose of the residue of it, and these two presented by Devlin & Maxwell are efficient as equitable assignments, and should be paid next after the costs and the Ingersoll claim.

All the statutory notices except Ingersoll’s failed for the reasons above stated. No other effectual equitable assignments than those of Devlin & Maxwell appear in the case. No other charge upon the fund is alleged in the bill of complaint, and if there be any residue remaining after payment of the costs of this suit and the claims of Ingersoll and of Devlin & Maxwell, it is still at the disposal of Myers, the contractor, and should be paid to him. Hall v. Baldwin, 18 Stew. Eq. 866.

I will advise a decree in accordance with the above views.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    Henry Hartson, administrator, &c., v. Perley Elden et al.
    [Filed August 28th, 1899.]
    1. Under ordinary conditions a succeeding administrator takes such goods &o., of the decedent as may remain in specie not administered. He has no right of action to recover those goods, &c., which the preceding administrator has disposed of in the course of his administration, or to hold him to account therefor. For these, the preceding administrator or his representatives must account to the legatees or distributees of the decedent, and not to the succeeding administrator.
    2. The statutory right of a succeeding administrator to sue his predecessor, to compel an accounting, only arises in cases where the preceding administrator has been removed by the order of the court because of his refusal to obey its direction, or of his waste, embezzlement or misapplication of the estate.
    3. By the will the income of an estate is given for life to the widow of the testator. The will fails to dispose of the residue of the estate. The administrator cum testamento annexo filed a bill for interpretation of the will and instruction as to his duties, making only the next of kin and not the life tenant or her representatives, defendants. On an accounting ordered in this court in such a suit, neither the receipts of the life estate nor the disbursements therefrom, should be stated. There is no jurisdiction over the life tenant or her representatives, they not being parties.
    4. The expenses incident to the safekeeping of the securities of the estate are compensated by the commissions allowed the administrator.
    5. An administrator cum testamento annexo, having the money of the residuary estate in his hands, uninvested, awaiting determination of disputes as to its ownership, having no duty to invest it, will not be surcharged with interest, when it appears that he received no profit from its use, and was always ready to pay it over as soon as its ownership was settled.

      On bill, &o., and exceptions to master’s report.
    This matter is presented on exceptions taken to the report of a magter, under a decree and order of reference made June 26th, 1894.
    Nathan Elden, the testator, for whose estate the accounting is offered, made his will, dated August 16th, 1873. The will was expressed in terms which were, quite doubtful and named no executor. The testator departed this life on September 10th, 1875. His widow, Hettie Elden, survived him, and was appointed by the surrogate of Cumberland county administratrix cum testamento annexo, on the probate of the will, on September 25th, 1875. On February 7th,. 1876, she resigned her office as administratrix, and Henry Hartson, the complainant, was appointed in her place. In April, 1889, Mrs. Elden died. In August, 1889, the complainant filed the bill in this cause, asking an interpretation of the will and instructions in the performance of his duty as administrator cum testamento annexo. There was some litigation touching the construction of the will, and in the reported case of Hartson v. Elden, 5 Dick. Ch. Rep. those questions were settled and a decree declaring the meaning of the will was made, directing the complainant to account as administrator, &c., in this court, before a master, who was ordered to audit and report the account and also to ascertain to whom the personal estate of the decedent should be distributed. This latter matter has been reported upon and declared by decree of June 4th, 1895.
    It is to the account which is directed to be stated by the master that the exceptions now under consideration are made by both the complainant, accounting as administrator cum testamento annexo, and Joseph R. Libley and others, holding residuary interests in the estate.
    The general scheme of the will, as construed and declared by this court, gave both the real and personal estate to the widow for her life. During her lifetime the complainant paid over to her all, or nearly all, the income of the estate, and shortly after her death filed the bill in this cause to settle the disputes concerning the effect of the will and protect him in distributing the residue.

      Mr. Henry S. Alvord, for the complainant.

      Mr. Leverett Newcomb, for the defendants.
   Grey, V. C.

The different exceptions of the several parties will be considered and disposed of in their order.

The complainant excepts to the account reported by the master, first, because the complainant is charged with $200 interest on Lombard University, notes, and he alleges that there is nothing in the testimony to show why such a charge is made. At the hearing it appeared that $200 had been deposited to the credit of the cause in this court, and both counsel agreed that this deposit was the interest mentioned in this exception. On this ground this exception was withdrawn.

The complainant’s second exception is that the complainant is surcharged with a note for $50, made by one John A. Temple, part of the assets of the testator which Hettie Elden disposed of during the period in which she was administering the estate. In such cases the second administrator takes all of the goods, &c., of the decedent which remain in specie as at his death, and has no right under ordinary circumstances to call his predecessor to account for her preceding disposition of the estate. Brownlee v. Lockwood, 5 C. E. Gr. 239; Carrick v. Carrick, 8 C. E. Gr. 364; Thiefes v. Mason, 10 Dick. Ch. Rep. 460. Having no right to recover the assets which the previous administrator had administered, the second administrator cannot be surcharged because he did not recover them. The situation is not changed by the fact, which the master recites, that the complainant on Hettie’s death (some thirteen years after the disposition of this note by her) became the administrator of her estate, and that he could then have collected the amount of the note from her estate. Hettie in her lifetime, and the representatives of her estate after her death, were responsible to the legatees or distributees of Nathan Elden’s estate for her default as his administratrix. The complainant had no lawful right, as administrator of Hettie’s estate, to take her assets and pay them to himself as succeeding administrator of Nathan Elden’s estate, to satisfy her default, committed while administratrix of Nathan’s estate. Her action as first administrator in disposing of the assets of the decedent’s estate, must be settled between her or her representatives and those who had a right to call her to account. When she disposed of those assets she is held to have administered them, and only "what remains of the decedent’s estate in specie, comes to-her succeeding administrator. This second exception of complainant is sustained, and the accountant should not be surcharged with the Temple note.

The complainant’s third exception is that the complainant accountant is by the master charged with two sums of script issued to him in 1883, for

Dividends on Northern Pacific stock of the estate........ $233 10
Interest on that script to 1888...........'....................... 69 90
$303 00

that this sum, $303, was a profit, payable under the will to-Hettie as life tenant, and if it is as a matter of general account-ing charged to the complainant, because received by him as administrator, it should also be credited to him as payable to Hettie Elden or to her estate, because it was a profit received in her lifetime.

The testimony of Mr. Hartson, tending to show the status of this item, whether it was principal or income, is quite confused, but upon considering it with the evidence of the officers of the railroad, it is made clear that the $233.10 was script, issued for the earnings of the road. Under the will this belonged to Mrs. Elden as life tenant. The interest on the script followed the same ownership. The master has, in schedule No. 3, surcharged the complainant with these items, amounting to $303, and they form part of the total of the debits— $20,531.17’. He nowhere credits the complainant with this $303 as due or paid to Mrs. Elden or to her representatives, as under the method of accounting was done with the other profits paid to her. The master evidently intended that this $303 should go to Mrs. Elden’s representatives, for he so states it in the body of his report and in schedule No. 5. The complaint is not that he does not admit that this sum is due to her representatives, but that he has debited the complainant with it, in the account which ascertains the balance, $109.56, due from the accountant, and has not on the credit side of that account allowed it as payable to the representatives of the life tenant, Mrs. Elden.

The master, in stating the account, has correctly separated the real estate items from those which are personal, but has followed the method of the complainant, and included the income during Hettie Elden’s life, and the principal and income earned after her death, in the same statement. These matters are entirely distinct and separate, and should not be jointly stated in this account. The discussion of the complainant’s eighth exception gives the reasons why this course should be followed. When the re-statement of the account is made, the item $303 will not appear as a charge, and consequently need not be allowed as a credit.

The complainant’s fourth and sixth exceptions are based upon the same'grounds, that the master did not allow the complainant for his expenditures in hiring a safe-deposit box in which to store the papers, &c., of the estate. The master properly held this to be expense incident to the performance of the duty of the administrator to care for the property of the decedent, for which his commissions were a compensation. The complainant’s fourth and sixth exceptions should be overruled.

The complainant’s fifth exception is to the master’s disallowance of an expenditure of $35, paid to the surrogate of Cumberland county on May 7th, 1892, as the cost of stating an account. The master in his statement of the account offered by the complaiuant states this item at $30. The voucher produced shows the expenditure to have been $35. The master disallows.it as e< an expenditure which should not have been incurred during -the pendency of this suit.” The proofs show that this account was rendered by the complainant to the surrogate of the county, .before whom, under ordinary circumstances, his account should have been stated. That officer has large powers to compel the stating of such an account. He had several times noticed the

■ complainant to account before him, threatening him with citations if he did not.' At that time, May, 1892, it had not yet been determined that this court would order an accounting here. Under these circumstances the complainant appears to have been justified in obeying the surrogate’s repeated demands that he ¡account before him, and the incidental costs thus incurred and paid by the complainant should be allowed him. The complain.ant’s fifth exception is sustained.

The complainant’s seventh exception is that the master credited the complainant with but $637.63 as the difference between -the amount of the inventory and the amount of the proceeds of .sales of the property so inventoried. The exceptant claims that ■“ the said credit by way of difference should be a much larger amount.” This exception was properly withdrawn at the argument. To contend that an item of allowance is not as large as it should be, is quite too indefinite a complaint to be made the .subject of judicial inquiry.

The complainant further files an eighth exception that the master has attempted to set forth the amount of debits and ■ credits due to and from the estate of Hettie Elden. The complainant claims that all items should be charged or credited ¡against or for the accountant solely as' administrator, &c., of Nathan Elden and not otherwise. The principle of accounting here insisted upon is correct. Under it the complainant’s second ■ exception has been sustained and the defendants’ first exception is overruled, but the complainant himself is somewhat at fault in presenting an account in this suit, to which neither Hettie Elden nor her représentative is a party, charging .himself with -the income due to Hettie Elden during her lifetime. The master has continued the same fault. On this inquiry there can be no ascertainment of any balánce which may be payable to JMrs. Hettie Elden’s representatives, for the reason above intimated that she was no party to this suit in her lifetime, nor has-her representatives, as such, been made a party since her death. No criticism by way of pleading, proof or argument has been-presented because of this omission, and the only phase of the accounting which can presently be considered is the sufficiency of the account reported by the master, as it relates to that part of the estate belonging to the defendants in the particulars excepted to by the complainant on the one side, and the next of kin of the decedent (not considering Hettie Elden to be one of the next of kin) on the other side. The other matters referred to the master in the order of June 24th, 1894, directing him to-ascertain to whom the personal estate of Nathan Elden should be distributed, have been fully reported upon by the master,, under date of May 11th, 1895, and finally concluded by a decree-ratifying that report'under date of June 4th, 1895, and cannot be in any way again presented in this court for further consideration or review. When the account now excepted to attempts-to charge the complainant with income due to Hettie Elden in-her lifetime, it makes him primarily liable to the remaindermen for moneys not due them, and obliges him to explain the proper expenditures of that money in which they have no interest, and to produce to them vouchers to justify it. All the items for charge of income earned during Hettie Elden’s lifetime, and all1 items of expenditure, including commissions, allowable against that income, have no place in this account, because as stated neither Hettie nor her representatives is a party to this suit. The representative of her estate cannot be bound by either charge or discharge when not in court in the cause, and the-defendant next of kin have no right to call the complainant to-account for his receipts or disbursements of Hettie Elden’s share-of the estate. In the re-statement all these items should be excluded' from both sides of' the account, which should be limited to the accounting for the property to which it has been heretofore decreed the defendants are entitled, which is the principal of the estate and the income earned since Hettie Elden’s death..

This disposes of the complainant’s exceptions.

The defendants’ first exception is that the master failed to-make any report of the item of $400 in cash, which appeared in the inventory of Hettie Elden, the original administratrix of Nathan Elden, which came to her hands whilst she was so .acting. The defendants claim that it was the duty of the complainant as administrator to have collected this sum, of which jhis predecessor had taken charge as administratrix during, the time that she served in that capacity. There is no proof what•ever that this $400, inventoried by Mrs. Elden, in September, 1875, as part of the testator’s estate, and taken into her possession, existed in any form, specie or otherwise, in February, 1876, when the complainant received his letters of administration. The complainant never received the money, but it is ■claimed that he is chargeable because he knew that Mrs. Elden had received and expended it during the time she was acting as administratrix of Nathan Elden, and it is insisted that he should have compelled her to pay it to him as her successor. But Hettie Elden had a right, as administratrix, to hold and expend ¡this money if she did it properly, and her representative has a right to his day in court to show such rightful expenditure. This day can only be given in a suit in which the parties have, by proper allegation, had an issue presented. The exception ■is controlled by the principles, declared in the decisions herein-before stated in allowing the complainant’s second exception. The second administrator has no right to call the original administratrix to account for assets disposed of by her while she •was administering the estate. The second administrator takes ■only such assets as remain in specie as the decedent left them. See Thiefes v. Mason and other cases above cited. Counsel for ■the defendants insist that the complainant, because he became .administrator of Hettie Elden’s estate in 1889, should have taken this $400 out of her estate and paid it to himself as administrator of Nathan Elden’s estate. But the complainant, .ns administrator of Hettie Elden’s estate, owed no such duty, to himself as administrator of Nathan Elden’s estate. Hettie Elden, in her lifetime, was responsible to the creditors, legatees .and distributees of Nathan Elden for her management of those ¡assets of his estate which came to her hands. When she died her administrator might have been liable to the creditors, legatees or distributees of Nathan Elden for any defaults which Hettie, in her lifetime, while administratrix of Nathan Elden, had committed. But neither Hettie in her lifetime, nor her representatives after her death, was liable to her successor in the administration of’the estate of Nathan for assets of that estate by her taken and disposed of while she was administratrix. They are considered in the law to have been by her administered, and the right of suit to call her to account in such matters lies only with those interested in the estate at the-time she undertook its administration. The case of McDonald & Glynn v. O’Connoll’s Administrators, 10 Vr. 317, is cited as authority for the contention that a succeeding administrator may compel his predecessor to account for those goods of the estate-which the predecessor has administered. An examination of this-case and the several statutes on which it is based will show that the right in the successor to compel such an accounting only arises-when the predecessor has been removed or discharged for some of the causes specified in the act, such as refusal to obey an order of the court or the wasting, embezzlement or misapplication of the-estate. The statutory gift of this right of action may be found as early as the act of December, 1784 (Pat. L. p. 59 § 8), but it is plainly dependent upon the existence of those conditions-of danger to the estate and the removal of the preceding administrators for that reason. The case of McDonald & Glynn v. O’Connoll’s Administrators, above cited, discusses the operation of these statutes and declares that the right of action of the succeeding against the preceding administrator, who had been removed by the orphans court for wasting the estate, is exclusively statutory. In the same decision, the cases of Brownlee v. Lockwood and Carrick v. Carrick, ubi supra, are quoted with approval as illustrations of the principle that an administrator de bonis■ non may not call upon the representatives of the preceding administrator for the proceeds of the estate disposed of by him. The distinction is not difficult. Where the administrator, proceeding in the ordinary course of duty, dies or is permitted to resign before he has completely disposed of the estate, his successor takes the portion not administered and proceeds to complete the settlement. In such cases the first administrator and his representatives must answer .to the creditors, legatees and distributees of the decedent for the acts and omissions of the first administrator in settling the estate. Where the administrator is discharged or removed for any of the statutory causes, such as contempt of court, waste or embezzlement, he must instantly account to his successor not only for the non-administered estate but also for that which he has already disposed of, in order that the estate may be at once protected from the danger threatening it by reason of the misconduct of thé unfaithful officer. The McDonald Case above cited has not, in the subsequent consideration of this question, been treated as antagonistic to’the previous decisions. See Bradway v. Holmes, 5 Dick. Ch. Rep. 315; Lindsley v. Dodd, 8 Dick. Ch. Rep. 70.

In the matter before me, Mrs. Hettie Elden, the first administratrix, resigned the administration óf her own motion. The tendency of the proof indicates that she applied the $400 to meet just claims against the estate. There was no order for her removal for any of the statutory causes. The statutory conditions required to vest in her successor a right to call her to account were non-existent. He cannot be surcharged for omitting to use the statutory powers above recited.

The defendants’ first exception is overruled.

The defendants’ second exception is that the master failed to charge the complainant with interest on the moneys collected and held by him as administrator from January 1st, 1890, to November 13th, 1894, when he paid them into court. The evidence shows that during the period named the complainant did not receive any interest on the moneys in hand. He did keep those moneys on deposit in his bank, mixed with his own personal moneys, in his own individual name, and not in a separate account as administrator, as he properly should have kept them. He explains this by showing that he was at this period holding all these moneys, liable to be called upon to pay them over at any time. The excuse does not justify the mixing of the moneys of the estate with his own private funds. It was the complainant’s duty to have kept the estate’s money separately from all other moneys. The failure to do this was not because of any bad faith or for any profit to the complainant, but simply for his own convenience. No express duty was charged ■upon him to put the estate’s money at interest, and he was bound to pay it over at any time that the litigation concerning it, then pending, might result in an order. It appears he always had in readiness the amount necessary to meet the call. It would have been difficult, if not impossible, to have placed the money at interest, and he should not be required to pay interest out of his own estate when he failed to make such investment.

The defendants’ second exception should be overruled.

The defendants’ third exception is that the master did not charge the complainant with interest on1 the Temple note for $50, &c. As it has been above determined that the master ■erred in charging the complainant with the principal of this note, in the foregoing discussion of the complainant’s second exception, the claim of interest on it must also be rejected.

The defendants’ third exception should be overruled.

The defendants’ fourth exception is that the master has allowed the complainant the highest rates of commission permissible by law. The case shows that the complainant has been obliged to give to the performance of his duties as administrator an unusual amount of attention and labor, and has, throughout, acted in entire good faith. He has had many difficulties occasioned by the uncertain expressions in the testator’s will and also attendant upon an accounting with unknown next of kin, who lived widely apart, who were unexpectedly made distributees by the failure of the legacies. The circumstances of the case justified the allowance of the highest commission.

The fourth exception of the defendants should be overruled.

The defendants’ fifth exception is that the master has not charged to the life beneficiary that proper share'of commissions which the life beneficiary should pay. This exception has significance only so far as the master’s method has overcharged the defendants, who take the residue. When the account shall be .restated so that the income up to Hettie Elden’s death shall be (taken out of the accounting, there will be no confusion between the charges of commissions on the life tenant’s share of the estate and on the.residue.

The defendants’ sixth exception is to the allowance of the ■counsel fees paid by the complainant from time to time for the .advice and services of his counsel. The difficulties attendant ■upon the settlement of this estate justified the complainant in •obtaining the advice of counsel. The expenditure covers a period -of some five years. It waá actually made, and does not appear, ,in view of the uncertainties of the case, to be unreasonable.

The defendants’ sixth objection should be overruled.

The defendants further insist that the complainant should be ■ charged with all the costs of correcting the complainant’s alleged .erroneous accounts. If the errors were exclusively those of the .complainant there would be force in the suggestion, but where .most of them are errors in favor of, or mistakenly insisted upon .by, the defendants, it would be unjust to charge the costs of 4heir correction to the complainant.

I will advise an order that the master restate the account in (accordance with the views above expressed.


text:
    Ralph G. Packard v. C. Armory Stevens et al.
    [Filed September 30th, 1899.]
    1. The complainant made several contracts for the filling in of League island by the defendants, agreeing to pay each according to the number of ■cubic yards of material deposited on the island, to be ascertained by a measurement in place, on completion of the work. Each knew of the other’s contract and of the method agreed to be followed in computing the compensation. "Through the neglect of the defendants, a confusion of their deposits was occasioned, so that each claimed payment for so large a quantity that the sum of their claims admittedly exceeded the total amount deposited. The complainant is ready to pay for the total quantity deposited, but, because of the confusion and the consequent dispute between the defendants, does not know in what portions to distribute the total sum to the defendants. — Held, the complainant’s interpleader bill will be sustained.
    2. Where in such case each disputant insists that a certain base line is-absolutely accurate to delimit the work done by the other, and admits that it is accurate to delimit his own work, save as to certain claimed exceptions, the burden of proof of the extent of the exceptions lies upon each party who-asserts them.
    3. On failure to carry the burden with such certainty that the quantity within the exceptions cau be computed, the admitted base line separating the great body of the work done by each will be taken as the guide in ascertaining that portion of the whole which each has deposited in place.
    On bill, answer and proofs.
    The bill in this case is filed to restrain the Hydraulic Dredging and Improvement Company, one of the defendants, from prosecuting a suit at law against the complainant and to compel both the defendants to interplead and settle their respective-rights to compensation for work done by filling in the United States government lands on League Island, in the Delaware river.
    League Island lies near the Pennsylvania side of the Delaware,. at the mouth of the Schuylkill river. In a state of nature it was elevated but little above the level of high water. Its greatest length lies nearly east and west, its southern side fronting on the Delaware and its northern upon what is called the “back” channel. Prior to the happening of the events which gave rise-to the controversy under consideration, the United States gov-ernment had located one of its navy yards on the western end of this island, and had on that end considerably raised the level of the surface and there placed its buildings and shops. This-portion of the island was separated from the remainder by a wall or bank.
    In the year 1891 the government began to fill in that portion of the island not included in the navy yard, and in that year and in. 1892, under its direction, there was some deposit of filling made on that side of the island nearest the Delaware, raising the surface to some extent. It was determined to fill in the whole area of the island not included in the navy yard to a uniform level by depositing mud, sand and other material which was being dredged from the bottom of the Delaware in the course of the improvement of the channel of that river.
    A contract had been made by the United States with the American Dredging Company for the improvement of the Delaware river, and as part of that contract, for the deposition on the island of material dredged from the bottom of the river. In carrying on this work that company made a sub-contract in 1893, with Ralph S. Packard, the complainant, to perform that part of the contract which required the filling of League Island. This contract with the complainant, was made under, and imposed upon him the same conditions and provisions, as were specified in the contract with the government. Payments were to be made by the company to the complainant as the government should pay the company, and the contract contained a provision that if the complainant should fail to keep its requirements, the dredging company might put additional force on the work and pay the expense thereof from the moneys to come due to the complainant.
    The latter, on July 24th, 1893, employed the defendant C. Armory Stevens to make the “fill” according to the requirements of the United States officers in charge, payment to be made upon their measurement of material in place at ten cents per 'cubic yard, ninety per cent, to be paid as the work progressed and as the complainant was paid by the dredging company; the balance upon completion of the “fill” and payment by that company. Stevens began the work about September 1st, 1893, but did not progress with the required rapidity, and the complainant obtained from him, on the 7th of that month, a written consent to employ the dredge belonging to the defendant the Hydraulic Dredging and Improvement Company for such time as might be necessary to secure a performance which would comply with the requirements of the preceding agreements, and to pay the defendant'company the price of eleven •cents per cubic yard for all material deposited and measured in place on the island, as determined by the United States engineer ■department, out of any moneys due or to become due to Stevens under the complainant’s agreement with him.
    On September 7th, 1893, the complainant alleges that he made a verbal agreement with the Hydraulic Dredging and Improvement Company, through its vice-president, Mr. Frank Somers, to fill in the island as required by the above-named contract, at the price of eleven cents per cubic yard for all material deposited and measured in place on League Island, as •determined by the United States engineer department. Mr. .Somers was the vice-president and chief executive officer of this ■defendant company, and he so entirely acted for it in all the matters herein discussed that all the witnesses refer to the company’s work as that of “Somers,” and to avoid confusion I will adopt the same method. The complainant alleges that in making this agreement he submitted to Somers the above-named written consent of Stevens, and that this formed the basis of the agreement between the complainant and the Somers ■company.
    That company admits its employment under this contract to work for such time as might be necessary to enable the complainant to comply'with his original contract. It also admits that the price to be paid it was eleven cents per cubic yard for material deposited and measured in place on League Island, as determined by the estimate of the United States engineer department, but it denies that it had any knowledge of the written •consent of Stevens authorizing Packard to employ the Somers company to perform the work, and further denies that the consent formed the basis of the contract between the complainant, Packard, and the defendant company, and denies that it knew ■of or had any dealings with Stevens in the transaction.
    Immediately that the Somers company had made its contract ■on September 7th,,1893, with Packard, the complainant, it began •the work of placing the filling material on the island. The following general outline plan taken from Exhibit O 8 will afford an illustration of the locality.

      The whole field to be filled up was so extensive as to be referred to as containing a number of acres, the exact quantity not being stated. There was a containing wall around this part of the island. The portion fronting on the Delaware was built of stone and that on the back channel of mud. The filling material consisted of mud and sand, in much the greater part dredged from the channel of the river, loaded upon scows,, which were floated to places opposite the Delaware front of the island, where large holes or basins had been dug in the bottom of the river. The mixed material — mud and sand and water,, and sometimes stones — was dumped from the scows into these basins, and was thence pumped by the defendants’ machines into pipes .laid across the containing wall and discharged upon the area to be filled. The material was so mixed with water that it flowed from the vent pipes and distributed itself, by the force given it by the pumping and by gravity, over 'the surface of the island. That part which lay on the south side of the island, nearest to the wall, being somewhat higher because of the previous filling, the softer material and water there deposited flowed towards the north side, where a sluice or overflow was fixed, through or over which the accumulated water was permitted to escape into the back channel, the mud and sediment remaining on the island. As the work progressed the deposit of mud and sand increased most rapidly near the south wall, and of course the softer material and water ran in greater quantity towards the lowest point, which was on the north side, and during the period of the working formed a large pond of some acres in extent.
    Mr. Stevens’ machines consisted of a hydraulic dredge, the “Leo,” and a pulsometer, a machine which pumped a larger portion of solid matter than did the dredges. Mr. Stevens* machines deposited material upon the eastern portion of the island and were there engaged when Somers began to work. The hydraulic dredge “No. 4” was Somers’ machine, and though it several times changed the place from which it pumped, yet it at all times deposited its material upon the western, portion of the island. All the machines were located as- indicated on the map.

      When Somers began work there was neither fence nor bank to separate and keep apart the material pumped by Stevens from that pumped by Somers. They both worked without even any division line until August, 1894, when, on Somers’ complaint ■that material pumped by him was mixing with that pumped by Stevens, Mr. Packard, the complainant, suggested that Somers build a bank and fence across the island from south to north at about the place indicated on the map, dividing it into an easterly and a westerly portion. This cross-bank began at the south wall and ran in a generally northerly direction for but a short distance.
    Somers built a fence of ordinary boards, nailed horizontally ■upon '3x4 posts, driven three or four feet in the mud. The fence ran from the northern end of the cross-bank in the same northerly direction to the containing wall along the back channel near the sluice. This cross-bank and fence were intended to keep upon the westerly side the material pumped by Somers’ machine and that pumped by Stevens’ machines upon its easterly side.
    At this time the quantity of material deposited along the ■westerly side of the fence by the Somers machine appears to have been so much in excess of that deposited on the other side by the Stevens machines, that in about a week a portion of the fence, under pressure from the Somers side, gave way toward the Stevens side, and it is claimed by Somers that material pumped by his machine flowed through the break upon the v:Stevens side. At a later date, when the cross-bank had in part been washed away and both bank and fence in part obliterated by filling up to its height, it is claimed by Stevens that material pumped by his machines overflowed upon Somers’ territory. This process of successive overflow from one side to the other is insisted by each to have happened at several periods of the work, each claiming that the other received a greater overflow -than came from him. The original filling done by the disputing parties tinder their contract has long been covered over by the later work done under other contracts, so that if there ever was a possibility of ascertaining the quantity of material contained ¡in these overflows with accuracy it was lost before the controversy in this case arose.
    In July, 1895, the whole work under the contracts had been ■completed, and the United States government engineer officer, under the terms admitted to be contained in all the'contracts, ■computed the total amounts of the material put in place. This ■ computation is accepted by all the parties and admitted by them ±o be correct, as to the total amount of material in place on the ■island, and there seems to be no substantial dispute in the evidence that the additional computations, estimating the amount of material put in place on each side of the line of the cross-bank and fence, were also substantially correct. These estimates ■state the amount of material put in place to the eastward of the line of'the fence, &c., where Stevens worked, to be four hundred and fourteen thousand six hundred and eighteen cubic yards, and the amount on the westward of that line, where Somers worked, to be seven hundred and forty-four thousand and seventeen cubic yards. What was disputed, and that with great ■energy, was who should be paid for this work. Stevens insisted that about thirty-five thousand cubic yards of the material pumped by him had overflowed to Somers’ side of the fence, .and Somers that more than thirty thousand cubic yards had gone over from his side to Stevens’. While the dispute was in this position, in July, 1895, the complainant paid Stevens the ¡amount due him by the engineer’s estimate for’ the number of cubic yards of material in place on the east side of the’ fence, reserving the price of thirty thousand yards therefrom, because ■of Somers’ claim. Shortly afterwards Somers notified the complainant that he claimed that the overflow from his side was ¡still'la’rger, and that it amounted to thirty-seven thousand three hundred and seventy-seven yards, and an additional quantity unstated, of “ backflow,” at the north side of the island.
    On the basis of the calculations made by the government ■engineers, of the quantity of material in place on each side of ■the fence, allowing to Stevens the right to be paid for the whole of the portion to the easterly of the fence, and crediting prior payments to him, the complainant had in hand a balance due Stevens of $2,713.24; and allowing to the Somers company the right to be paid in full for the material in place on the. westerly side of the fence, the complainant had in hand for the latter company, after crediting prior payments, a balance of $243.27.-Neither of the defendants was willing to accept payment upon a basis which ignored the claimed overflow of material. Some-efforts were made to settle these disputes by an amicable inter-pleader suit, but they failed, and in January, 1896, the Somerscompany sued the complainant in the supreme court to recover for sixty-eight thousand seven hundred and thirteen cubic yards-put in place, amounting to $7,558.43. Upon this the complainant filed his bill against both Stevens and the Somers company in this ease, praying that they might be required to interplead, and that the suit at- law by the Somers company might be-restrained. ■

      Mr. William H. Corbin, for the complainant.

      Mr. Peter V. Voorhees and Mr. Henry N. Paul (of the Philadelphia bar), for Stevens.

      Mr. Frederiolc A. Pex, for the Hydraulic Dredging and Improvement Company, or Somers company.

      See original opinion on file. — Rep.

   Grey, V. C.

The first question to be determined is whether the complainant is entitled to a decree requiring the defendants to interplead touching the question in dispute.

Lord Redesdale has declared that the right to exhibit an interpleader bill exists when two or more persons claim' the-same thing by different or separate interests, and another person, not knowing to which of the claimants he ought of right to-render a debt or duty, or to deliver property in his custody, fears he may be hurt by some of them. Mitf. Eq. Pl. *59. The spirit of the equity of the complainant is that being, so far as his own acts are concerned, under a single liability only, he is-yet subject to be vexed by more than one claim. Where the complainant has the thing in dispute in his custody, or admits his obligation to pay, but, from the circumstances of the case, is unable to say to whom of two or more, delivery or payment should be made, the practice of the court is liberal in his favor. Lozier v. Van Saun, 2 Gr. Ch. 329.

The complainant having no interest in the money or thing in dispute, it is inequitable that he should be compelled to take the risk of determining which of the conflicting claims is superior. ’

In Wakeman v. Kingsland, 1 Dick. Ch. Rep. 114, Vice-Chancellor Van Fleet held a bill of this character, where the claims were obviously variant in amount and some of them legal and some equitable, to be a strict interpleader bill, upon the ground that the fund was insufficient to pay all the claims, which were uncertain and disputed, and that the complainant was an indifferent stakeholder, ready to pay the fund to the claimants whenever their respective rights could be determined.

If the determination of the dispute between the defendants will settle the claim of each against the complainant, they should be compelled to litigate with each other, the complainant having no interest save the rightful distribution of the fund.

Conflicting claims of this character may arise wholly because of the acts or omission of the contesting parties, and wholly without the fault or even the participation of the complainant, yet unless this court protects him he may be subjected to actions at law by each claimant and be obliged to defend many suits at great disadvantage (for the defence of the one would probably give points for the prosecution of the others), though all the while the complainant stands ready to pay out all of the money in dispute if only he knows the portions to which each contestant is entitled. Plainly, in such case, the complainant has an equity to bring all claimants into court, and delivering the fund, to say, “ I have no quarrel with any of you; dismiss me and settle your disputes among yourselves.”

The same difficulty and right to relief may happen when the complainant employs two or more persons to do work upon a common object, under an agreement that each shall be paid according to the amount of the .work he may separately do, to be ascertained by measurement when the work shall be completed, and without fault of the complainant, a confusion of the work done arises which prevents an ascertainment of the amount separately done by each, so that the complainant cannot safely pay either.

This is the case under consideration. The work agreed to be done by each of the claimants was the filling in of League Island with mud and sand from the Delaware river. It is undisputed that they, though contracting separately, each agreed to engage in doing the same work, at the same time, in substantially the same way, for a compensation to be ascertained by measuring after completion of the work separately done by each. Each knew that the other was so engaged, and that the work of each was to be so measured when in place. Each knew that if by his act the means of measurement in place was destroyed or interfered with, a confusion would arise which would probaably lead to conflicting claims as to the quantity of cubic yards each had deposited. Stevens, after he began the work, consented in writing that Somers should be employed, and therefore knew the whole situation in advance. Somers denies for his company that it had knowledge of this consent, and that it formed the basis of Packard’s subsequent agreement with him. The weight of the evidence indicates that the consent was in fact read to him, as an explanation and justification for engaging him to undertake the work which he had formerly competed for but had failed to secure. He knew Stevens had underbidden him and secured the work, and it was entirely natural and reasonable that when he was invited to aid in hastening it, he should be assured that Stevens, who held the contract for doing it, assented to his employment.

But whether Somers knew of Stevens’ consent or not, the character of the work itself, on the ground, was so extensive and apparent, in the nature and size of the territory being operated upon and the machinery and its performance in actual use, that the fact that Stevens was actually doing it was manifest to Somers when he first began to work.

Somers’ contract did not exclude Stevens from going on with the work. On the contrary, it was supplementary to that of Stevens, and Somers was taken off the work without objection by him, when by his aid it had been advanced according to the requirements of the government officers.

Nothing in the contract of either specified that he should fill in any prescribed' part of the island, nor that any wall or line of separation should be put up by Packard for their benefit. When they began, and for some short time afterwards, the evidence indicates that it was within their power, by the action of either or both, to have erected such a wall or bank north and south across the island as would have effectually kept the deposits of each to the east or west of the wall. Their contracts provided for measurement in place. They knew this during the whole of their working period, and should have so deposited their material that commingling would be prevented and that separate measurement in place would be possible. The very nature of the case and the operation of the work made it apparent to both of them that this could not be done unless a barrier of separation of their deposits was constructed and maintained as the work progressed.

It is also plainly shown that Mr. Somers knew all the facts which threatened the confusion, for he anticipated that result and appreciated its attendant embarrassments. He testified that he complained to Mr. Packard about it. He does not claim, nor does Stevens, that Packard had, in agreement with either, contracted in any way that he would erect a separating barrier. Packard did suggest that Somers should build a fence to keep the deposits apart, but this was after both the contracts had been made and both Stevens and Somers were actually at work, so that this suggestion was no part of either of Packard’s agreements. In making it he was - a mere volunteer. Had his advice been effectually carried out by Mr. Somers it is probable that thh confusion would have been prevented. Mr. Somers built the fence to stop the intermingling and plainly intended that this should be the line of separation of the deposits. This fence which he built was, if unsupported, obviously insufficient and was in part broken down by his own act in depositing so great a quantity of mud and water on one side only that an opening was made in it within about ten days after it was erected. Had material been deposited on both sides of the fence, gradually raising a supporting bank as the filling progressed, there would have been no breach, and it would have made a complete instead of a partial line and barrier between the two “fills.”

Mr. Stevens contributed his share to the confusion by pouring the filling material from his machines upon his end of the island in such condition that it mingled indistinguishably with that deposited by the Somers machines. The soft mud and water ran together near the sluice at the north side and formed a pond of some acres in extent while both sets of machines were working and for some days after they ceased. Mr. Stevens did nothing to prevent this confusion. He appears to have accepted the fence which Somers built as a separating line, but he himself erected neither bank nor fence. He did not attempt to support Somers’ fence nor did he in any way seek to preserve the identity of his own deposit. The situation and its inevitable consequences were in plain view. His inaction with knowledge of all the facts was as negligent as Somers’ insufficient action. Both contributed to the production of the consequent result.

The whole work done has been measured in place by the United States engineers, as was agreed by Stevens in his contract and by Somers in his. Both of them affirmatively admit that this measurement of the whole in place is accurate. Each agreed that his own compensation should be ascertained by measurement in place of the amount he deposited. It follows that the total number of cubic yards for which the complainant must pay cannot exceed the total number of cubic yards measured in place. But Somers and Stevens, while admitting that there was deposited in whole no more than is estimated by the engineers, each, claims to have deposited such a number of cubic yards measured in place that their aggregate far exceeds the whole amount of the engineers’ estimate. This result happens because of the intermingling of their deposits as above stated, each claiming to have pumped all the material on his own side of the fence, and in addition, a considerable quantity which each claims flowed to the other side of the fence. Such a situation makes it impossible for Packard to satisfy either claim without subjecting himself to the danger of loss by recovery on the other.

It is contended by the counsel for Mr. Somers that where the claims made by the defendant are of different amounts, they can -never be identified, and that therefore there can be no inter-pleader, and the dictum of Vice-Chancellor Shadwell, in Glyn v. Duesbury, 11 Sim. 139, is cited. This declaration is true only where each party claims that a single undivided sum in the hands of a custodian or stakeholder is wholly payable to him. In such a case the variance in amount would show that one party’s claim was not in conflict with the other. But in cases where claims are for unliquidated damages, each defendant might allege a different value and claim a different amount, and yet interpleader would be the proper remedy. Pom. Eq. Jur. 1323, note 1. So, in cases where a fund being in complainant’s hands, the whole is claimed by one defendant and parts by others, or where the aggregate of all the claims exceeds the full amount of the fund. School District v. Weston, 31 Mich 35. Additional illustrations may be found in the many interpleader suits in this court, under the Mechanics’ Lien act, when the contract is filed, and noticing creditors and holders of equitable assignments are brought in because their claims upon the contract price conflict. In these eases the claims often vary widely in amount, and sometimes involve little other dispute than a settlement of the order of their priority, yet if the situation be such that the contract price is not enough to pay all and the owner may be compelled to determine the orpler of priority of payment, it is common practice in this state to settle the rights of all the claimants under an interpleader bill. In the following cases there were claims for different amounts made in interpleader cases which were entertained in this court: Superintendent and Trustees of Trenton Schools v. Heath, 2 McCart. 22; Wakeman v. Kingsland, 1 Dick. Ch. Rep. 113; Lanigan v. Bradley, 5 Dick Ch. Rep. 202; Board of Education v. Duparquet, 5 Rich. Ch. Rep. 234.

In this case under consideration each of the défendants contracted separately to work on the same employment, and each contract specified a mode of estimating their compensation, which required an ascertainment of the number of cubic yards of material which each deposited in place. Each knew that the other was to be so paid. Each then contributed to the creation of a confusion in the deposit, which prevented an exact ascertainment of the number of cubic yards which he had put in place. This confusion, though without fraud on the part of either defendant, was occasioned by the fault of both, and is well exhibited by a slight variation of the illustration used by the counsel for the complainant. The defendants both took the risk of commingling, as would two farmers who should bring their wheat to a warehouse, and when one, with the knowledge of the other, had put up a manifestly insufficient barrier between, they should dump their wheat day after day in two, at first separate, but ever-increasing heaps, until the barrier yields in part and their several deposits in part commingle. The result was certain and obvious from the beginning.

In the case in hand each party in fault now seeks to compel the complainant, who contributed nothing to create the confusion, to pay for such a quantity of cubic yards of material in place that the total for which payments is claimed by the two exceeds the admitted aggregate amount deposited. The complainant is thus, without fault on his part, subjected to the risk of these conflicting claims.

The defendant Somers also claims that the contracts with the claimants are independent, and that there is no privity. The weight of the evidence shows, as stated, that each party, with the knowledge or assent of the other, contracted to take employment on the same undertaking, and for payment on the basis of the total work done. They are now in dispute as to the amount of work which each contributed toward the total. Though their contracts are several, they are not independent. If Somers is entitled to be paid for the number of cubic yards which he claims to have deposited, then Stevens cannot be entitled to be paid for the number for which he claims, and vice versa. The complainant is willing to pay for the total of the work done, but cannot safely decide to what amount.of that total each party is entitled. If the dispute between the defendants were settled, there would be no dispute remaining between either of them and the complainant.

I will advise that the complainant is entitled to a decree of interpleader and injunction, according to the prayer of his bill.

The question yet to be determined is the respective rights of the defendants to payment for work done by each in filling in the island, the total work on which is undisputed. It has been above shown that the claims of these parties so conflict that necessarily they cannot both be correct. Each insists that his own claim is first and true, and each denies these qualities to the other. They have on the hearing of the cause taken their several answers to be their mutual interpleadings, under the modern practice, and have submitted their proofs and arguments touching the amounts respectively due to them. Both are agreed, as stated, that the total sum to be paid for the work should be estimated by the total number of cubic yards measured in place. Both are agreed that the total number of cubic yards measured in place is that stated by the government engineers. The whole contention lies between the parties defendant in their dispute as to the number of cubic yards which each put in place.

There is, however, a substantial agreement in the evidence of-both claimants by which each of them has recognized the location of the cross-bank and fence as a base line, delimiting with reasonable certainty the place of deposit of the material respectively pumped by each, that pumped by'_Somers being to the westward and that by Stevens to the eastward of the fence. This line of the cross-bank and fence was ascertainable, and was used by the government engineers in their calculation of the amount in place on each side of it. Each claimant insists that this line was absolutely final to delimit his opponent, but that it was subject to an exception in his own favor, because he contends that while there was no overflow from his opponent’s to his side ■of the fence there was a large overflow from his side to his opponent’s. Each, therefore, sets up an exception to an admittedly efficient line of division, and each must carry the burden of proving with sufficient certainty the exception for which he contends.

The proofs clearly show that there were overflows and that they came at irregular intervals from both sides of the fence line. Necessarily, it is the difference between these overflows, in favor of one party or the other, which should be allowed. Both parties have attempted to define the quantity of overflow by the observation and estimation by witnesses of the material which passed, from either side of the fence to the other as the work progressed, or while the deposits consisted of soft and watery material, which afford little certain proof upon which to determine the place measurement.

One witness based his estimate of an overflow upon measurements made to a considerable extent with a tape line and a slender stake, in places where the water covered a large area. He probed his stake into the ground under water until he could push it no farther, and used the depth thus ascertained as a basis for computing the quantity of cubic yards in place. He could not possibly determine by measurement of such material, which machines pumped the soft mud on which he was estimating, nor could he with any accuracy fix its quantity, still less state what it would measure in place when dry. He confessedly introduced allowances because of these conditions, which he denominated “factors of safety,” the percentages of which he could not state,, which makes his estimate little more than a guess.

It was insisted for Mr. Somers that an ascertainment of the respective quantities put in place could safely be made by estimating the scow loads of material dumped into the basins from which the respective machines pumped. The government officers, for the purpose of making payments as the work progressed, estimated upon this basis and advanced payments, making allowances for loss and shrinkage, and adjusting balances according to a later actual place measurement. The officers found the method to produce results widely variant from the actual place measure-' ment and to require re-adjustment of large differences. This melihod of calculating the amount deposited necessarily involves the following uncertainties against which “factors of safety” of unknown value must be introduced : Loss of dumped material by flowage before pumping; variances in the solidity of the dumped material delivered at the basins; differences in the character and working of the machines as to solidity of material they pumped, and variances in the shrinkage .after depositing dumped material on the island. Nothing in the proofs enables these uncertainties to be overcome. The method proposed is also directly disadvantageous to Mr. Somers, as he claims to have dumped upon his end of the island a large amount of material from the navy yard dock, which was not dumped by the scow load, but consisted of a deposit which had naturally accumulated in the dock. The amount of this dock material placed on the island by Somers was not separately measured, but is within the engineers’ estimate of the total quantity in place, and no calculation by number of scow loads brought to the basins would include it. Mr. Somers claims that he should be specially allowed for this dock-pumping, on conjectures wholly without certainty as to how much it would measure when in place. Furthermore, both contracts provide in express terms a method for the ascertainment of the amount of work done by each — i. e., by actual measurement in place — and this term should be followed, unless by agreement or necessity another more certain mode must be substituted.

Upon a careful examination of all the testimony no method of computation appears which can be applied in this case which will, with reasonable certainty, fix the amount of material that overflowed from either side of the fence and cross-bank to the other. Neither party establishes the exception for which he contends with enough certainty to enable its quantity and value to be ascertained. The result is that neither claim can be allowed, and each party must jhimself be bound by that line which he recognizes as correct, saving the exception in his own favor, which he alleges but fails to prove. The location of the cross-bank and fence were visible, as above shown, when the government engineers calculated the amount of material in place, and they have stated the quantity on each side of that line. The accui^cy of this calculation is not substantially disputed by the evidence of either side. All the proofs show that Somers vented all his material on the westerly side of the fence and Stevens all of his on the easterly side, and that very much the greater portion so deposited by each stayed on that side of the fence on which it was vented.

The failure to prove the amount of the overflow beyond the line of the fence leaves that line the only delimitation which affords any reasonable certainty for computing the quantity of cubic yards which each defendant deposited when measured in place.

I will advise a decree that the defendant Stevens is entitled to be paid at the price named in his contract for that number of cubic yards of material shown by the calculation of the United States engineers to be in place on the easterly side of the line of the fence and cross-bank, and that the defendant the Hydraulic Dredging and Improvement Company (Mr. Somers’ company) is entitled to be paid at the price named in his contract for that number of cubic yards so shown to be in place on the westerly side of that line, debiting each with payments heretofore made on account of the work by them respectively done.