text:
    Commonwealth v. Harrison.

      Criminal law — Costs—Larceny—Act of May 25, 1897, P. L. 89.
    The Act of May 25, 1897, P. L. 89, relating to the imposition of costs in criminal eases, applies only to prosecutions for larceny. If an indictment contains counts charging offenses other than larceny, the jury has no power to impose the payment of costs in case of an acquittal either upon the defendant or the prosecutor.
    Argued March 6, 1908.
    Appeal, No. —, Jan. T., 1908, by M. F. Spellman, from order of Q. S. Columbia Co., Dec. T., 1906, No. 28, entering judgment on verdict in case of Commonwealth v. Bessie Harrison.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for larceny and for receiving stolen goods. Before Evans, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment on the verdict.

      February 26, 1909:

      H. M. Hincklet, with him D. R. Reese, for appellant.
    Where the prosecution is not trifling but one of grave character, where it is not unfounded but founded upon probable cause, and where there is no evidence of malice -in the prosecution, it is the duty of the court to set aside the verdict against the prosecutor for the costs: Guffy v. Commonwealth, 2 Grant’s Cases, 66; Wadlinger on Costs, secs. 192, 193; Com. v. Doyle, 16 Pa. Superior Ct. 171; Com. v. Yeager, 3 Pa. Dist. Rep. 237; Wayne County v. Com., 26 Pa. 154; Braddee v. Com., 6 Watts, 530.

      Christian A. Small, district attorney, for appellee.
    Having returned a verdict of acquittal as to the defendant in this case, and placed the costs on the prosecutor, it must be presumed that the jury found the facts which the law devolved upon them in order to make such a return: Hughes v. Stevens, 36 Pa. 320; Campbell v. Finney, 3, Watts, 84.
   Opinion by

Orlady, J.,

The information in this case charged that “Bessie Harrison did break in a trunk at the baggage room of the D., L. &. W. R. R. at Berwick, Columbia Co., belonging to Mrs. Martha Cono'ver, and did feloniously steal and carry away certain itemized articles of clothing of the value of fifty-four dollars.” It is made by the appellant, who designates himself as special officer for D., L. & W. R. R. Co.

The first count in the indictment is larceny, and the second receiving stolen goods. On the trial the commonwealth failed to show that the defendant had ever been in Columbia county, or that the goods had either been stolen or received there by her, and the court properly directed that there could be no conviction. But a part of the goods were exhibited in evidence, and in regard to which the trial judge said: “If you shall come to the conclusion, or reach the conclusion, that the goods which were offered in evidence, so far as the evidence shows, were worth less than $10.00, then you may dispose of the costs, but if you find they were worth more than $10.00, then you have nothing to do about the costs. If you should reach the conclusion that they are worth less than $10.00, then dispose of the costs, but your verdict must be based upon the evidence.” The verdict was not guilty as to the defendant, and that the prosecutor, M. F. Spellman, pay the costs.

After a hearing on a rule to set aside the verdict as to the costs, the court was of the opinion that that phase of the case had been properly disposed of, and judgment was entered on the verdict, from which the prosecutor took this appeal. So far as the evidence shows, the charge was unfounded in Columbia county when it was called for. trial, there being no evidence to sustain it in that county, and the court and jury had the right to consider all the facts of the case in determining whether as to that pending prosecution, it was trifling: Commonwealth v. Doyle, 16 Pa. Superior Ct. 171; Commonwealth v. Kocher, 23 Pa. Superior Ct. 65.

The rule formerly in force in regard to imposing costs on the prosecutor in cases of the grade of felony was radically changed by the Act of May 25, 1897, P. L. 89. The first section of the act refers to prosecutions for larceny only, and to enlarge its. provisions by making it apply to indictments containing other offenses, would be usurping the functions of the legislature. The provision, “in all cases of acquittal by the petit jury on indictments for larceny where the value of the goods alleged to have been stolen is less than $10.00, the jury trying the same shall determine by their verdict whether the county, or the prosecutor or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportion, in the same manner as is now provided by law in ,the case of misdemeanors,” did not extend the power of the petit jury so as to include cases where other counts were added to the one charging larceny. The present case is to be decided under the statutes in force prior to that act, the decisions being, that in a prosecution for a felony, in which a count for a misdemeanor is joined, the jury acquitting the defendant has no power to impose payment of costs upon him or the prosecutor: County of Wayne v. Commonwealth, 26 Pa. 154; Braddee v. Commonwealth, 6 Watts, 530; Commonwealth v. Kocher, 23 Pa. Superior Ct. 65.

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


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Cunningham, Appellant, v. Wilmerding Borough.

      Replevin — Quashing writ — Act of April 3, 1779, 1 Sm. L. 470.
    1. The Act of April 3, 1779, 1 Sm. L. 470, providing for quashing writs of replevin for goods seized by public officers, has no application to a case where a police officer of a borough seizes a vehicle to compel the owner to pay a license tax, if it appears that the officer had no process issued by any court, magistrate or tribunal, and that there was no law or lawful ordinance authorizing him to make such a seizure.
    2. In such a case where the defendant’s motion to quash the writ is based on an ex parte affidavit averring that the vehicle had been abandoned on a street of the borough, and that the officer seized it to abate a nuisance, and this averment is uncertain in its terms, and is flatly contradicted by the answer, the court will refuse to quash the writ of replevin.
    Argued April 15, 1908.
    Appeal, No. 23, April T., 1908, by plaintiffs, from order of C. P. No. 2, Allegheny Co., Oct. T., 1906, No. 915, making absolute rule to quash writ of replevin in case of R. H. Cunningham et al., trading as R. H. Cunningham & Sons, v. Wilmerding Borough, a Municipal Corporation, and H. F. Davenport, Chief of Police, Defendant, Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Rule to quash writ of replevin.
    The opinion of the Superior Court states the facts.

      Error assigned was order making absolute rule to quash writ.

      Stewart M. Cunningham, for appellants,
    cited: McJunkin v. Mathers, 158 Pa. 137; Shaw v. Levy, 17 S. & R. 99.

      Wm. H. Thompson, for appellee.
    The legislature clearly intended to make the court to which writs of replevin are returnable a chancellor to determine, upon affidavit or otherwise, on motion, whether the facts of a particular case brought it within the act of 17.79. And the finding of the court ought not to be subject to review unless a flagrant abuse of this discretion appears. It is the duty of any citizen, and more particularly of a police officer, to abate a public nuisance, especially where the nuisance is of such a character as to be dangerous to the public: Easton, etc., Pass. Ry. Co. v. Easton, 133 Pa. 505; Lancaster Turnpike Co. v. Rogers, 2 Pa. 114; Rung v. Shoneberger, 2 Watts, 23.
    February 26, 1909:
    A police officer of a municipal corporation is an officer acting under the authority of the state within the meaning of the act of April 3, 1779: McJunkin v. Mathers, 158 Pa. 137.
   Opinion by

Rice, P. J.,

This was an action of replevin brought to recover a team of horses, wagon and harness alleged in the statement of claim to have been wrongfully and maliciously taken from the plaintiffs’ possession by Davenport, one of the defendants, acting as police officer and agent for the borough of Wilmerding, the other defendant, and unjustly detained by Davenport until the writ issued, when they were delivered to the plaintiffs by the sheriff. In their original petition to quash the writ defendants alleged “that said team was taken for nonpayment of a license fee for which the same became liable under one of the borough ordinances of said borough.” The plaintiffs demurred to the petition and in an opinion filed the learned court said: “The information contained in the petition is not sufficient to satisfy us of the facts necessary to enable us to determine the matter. Defendants should amend their petition by setting forth at length the ordinances under which the license was imposed, the proceedings had to collect the license fee and the circumstances under which the property was levied upon by the officer. When we have this additional information before us we will be in position to determine whether or not the writ should be quashed.” Accordingly, the court continued the case and allowed the defendants ten days within which to amend their petition in accordance with the suggestions contained in the opinion. Thereupon the defendants filed an amended petition to which they attached a copy of an ordinance which provides for the collection of license fees from the owners of certain vehicles, requiring such owners to pay certain fees and have their vehicles registered and numbered, and providing for the imposition of a fine upon any person convicted of a violation of any of its provisions. Evidently perceiving that this ordinance would not sustain the action of the officer, the defendants set up the following as the grounds of the motion to quash: “That on the day of , 1906, defendant demanded from plaintiffs’ driver a license for using team within the borough limits. That plaintiffs’ driver abandoned the team on one of the streets of Wilmerding and defendant then took the team and fed and stabled it. That plaintiffs refused to pay the cost and expense for the feeding and taking care of the team and refused to take out a license fee and made no demand for the return of the team until after the writ of replevin issued in this case.” To this the plaintiffs filed a sworn answer going quite fully into a history of the proceedings. The part material to be noticed here is as follows: “The plaintiffs further deny that the driver abandoned said team, but aver said team was wrongfully and maliciously taken from him by one of the said defendants who boasted he would hold said team and wagon until plaintiffs would agree to be bound by said ordinance.” No depositions or other affidavits were submitted by the defendants to sustain their contention that the writ of replevin was void, and it is not asserted that any oral testimony was given upon the hearing of the rule to quash the writ. The'court, without filing an opinion indicating the grounds of its decision, made the rule absolute, and from that order we have this appeal.

The Act of April 3, 1779, 1 Sm. L. 470, provides as follows: “That all writs of replevin granted or issued for any owner or owners of any goods or chattels, levied, seized or taken in execution, or by distress or otherwise, by any sheriff, naval officer, lieutenant or sub-lieutenant of the city of Philadelphia, or of any constable, collector of public taxes, or other officer, acting in their several offices under the authority of the state, are irregular, erroneous and void; and that all such writs may and shall, at any time after the service, be quashed (upon motion) by the court to which they are returnable, the said court being ascertained of the truth of the fact, by affidavit, or otherwise.” As shown by the preamble, the purpose of the act was to remedy an abuse which had prevailed in granting writs of replevin for goods and chattels taken in execution, and for fines and penalties due the commonwealth, to the delay of public justice, and to the great vexation of the officers concerned in taking or levying the same. “The least reflection will serve to show the mischief to which such a practice must necessarily lead; so much so, that it is impossible to foresee the extent to which a creditor may be delayed in his just demands, by a litigious and fraudulent debtor. An execution, which is the end of the law, would be only the commencement of a new lawsuit, and so, toties quoties, as his goods were taken in execution by a public officer Shaw v. Levy, 17 S. & R. 99. See also Taylor v. Ellis, 200 Pa. 191, where the purpose of the act is very fully discussed by Mr. Justice Brown. The statute being remedial is to be construed liberally: Pott v. Oldwine, 7 Watts, 173. Accordingly, it was held in that case that property taken by distress for nonpayment of a militia fine could not be replevied by the alleged delinquent. So in McJunkin v. Mathers, 158 Pa. 137, it was held that a constable who, in obedience to a borough ordinance, impounded cattle found straying in the streets, was, in respect of such act, an officer acting under the authority of the state within the meaning of the act of 1779, and therefore replevin would not lie by their owmer against the constable for the cattle so impounded. Upoii the same principle it was held in Elkins v. Griesemer, 2 Penny. 52, that an inspector of oils appointed under the act of 1874, who seized oils as being below the fire test, was therein an officer acting under the authority of the state, and therefore the oils were not repleviable by the owner. But on the other hand Judge Pearson in a well-considered opinion refused to quash a writ of replevin under the act of 1779 for goods that were levied on for school taxes by a constable acting under a warrant from the tax collector, such warrant being issued without authority, and the constable not being a regularly appointed deputy collector: Shoemaker v. Swiler, 2 Pears. 114. This decision is not in conflict with the other decisions above cited. It is not sufficient that the goods for which the replevin issues were seized by and are in the custody of an officer of the law. He must in seizing and holding them be acting under the authority of the state. If he has no process issued by some court, magistrate or tribunal having jurisdiction to issue such process, he must be able to point to some law or lawful ordinance authorizing him to seize private property without process, and hold it for a particular lawful purpose, and must satisfy the court that he seized and held it for that purpose. The present case furnishes an illustration of our meaning. The ordinance above referred to, granting for present purposes its validity in every particular, neither expressly nor by implication authorizes an agent or police officer of the borough, summarily and without process, to seize private property in satisfaction or to compel payment of a license fee due from the owner. Nor has any statute or ordinance relative to estrays been pointed out, as was done in McJunkin v. Mathers, authorizing police officers of the borough of Wilmerding to seize and impound estrays. Hence it cannot be said that Davenport, though an officer within the meaning of the act of 1779, was acting within the scope or apparent scope of his official power relative to the enforcement of the ordinance, the collection of license fees, or the impounding of estrays. It is frankly conceded by appellee’s counsel that the allegations of the petition, even if true, do not show that the horses were estrays, but contends that a team and wagon abandoned on a street of a borough constitute a nuisance which a police officer has authority to abate in a peaceable way. It may well be questioned whether the averments of the original and amended petitions, construed as a whole, show that the property was seized and held in the exercise of the policeman’s power to abate public nuisances, or that that was the purpose for which it was taken and held. But assume that by great liberality of construction they may be so regarded, it is to be borne in mind that the plaintiff denied that the driver abandoned the team and averred in most explicit terms that it was wrongfully taken from him by the policeman, who boasted that he would hold the team and wagon until plaintiffs would agree to be bound by the ordinance. Clearly, if the plaintiffs’ averment be true, the officer was not acting under the authority of the state, but in a high-handed and oppressive manner for which he had no authority or color of authority whatever. We entirely agree with the appellees’ counsel that the legislature intended to give the court to which writs of replevin are returnable a wide discretionary power. We are of opinion, also, that an order quashing a writ of replevin, under the act of 1779, which is based on conflicting evidence ought not to be set aside on appeal, the reason being that the court below is authorized to proceed in a summary manner and the evidence submitted at the hearing of the motion is not brought up for review. But we are unable to agree to the proposition, which an affirmance of this judgment would tend to establish, that if a defendant’s motion be based on an ex parte affidavit which is as uncertain in its averments and as explicitly contradicted as this is, the court ought to quash the writ without having any other evidence of any kind produced by the defendant to sustain his uncertain and contradicted allegations. In Shaw v. Levy, 17 S. & R. 99, Justice Rogers said: “The court may ascertain the facts, either by affidavit or otherwise ; that is, as I understand it, with the intervention of a jury, referred to them by a plea in abatement or in bar. Where the fact, or the law arising on the facts, was doubtful, a prudent judge would refuse to quash on affidavit, but would leave the party to his plea. In this way, and in this way only, he would have the assistance of the jury, and would secure to the party a review of his opinion on the law of the case, by the Supreme Court.” We do not understand this to mean that the court may not on the hearing of a motion to quash receive depositions pro and con; or that if a counter affidavit be filed the court is bound to remit the defendant to his plea in abatement or in bar. It is suggested, in effect, that the foregoing remarks of Justice Rogers were not necessary to the decision of the precise question before the court. Be that as it may, we are of opinion that they suggest the appropriate mode of procedure in a case situated like this.

It is argued that the plaintiffs’ statement of claim fails to show a cause of action upon which the plaintiffs could recover against the borough, and in support of this proposition counsel invoke the general principle that a municipal corporation is not liable for the torts of its police officers. We express no opinion upon the question of the liability of the borough. That question; as we understand, does not properly arise upon a motion to quash the writ under the act of 1779.

The order is reversed at the costs of the appellees, the rule to show cause is discharged and the writ reinstated.


text:
    Welliver v. Irondale Electric Light, Heat and Power Company, Appellant.

      Corporations — Light, heat and power company — Manufacture of electricity — Waters—Seepage—Eminent domain.

    1. A company organized for the purpose of supplying power for the manufacture of electricity to be used for public and private lighting, but without the power of eminent domain, must so conduct its business that a private nuisance shall not be created by percolation of water brought by an artificial water course upon its premises. Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, distinguished.

      Deed — Reservation—Seepage—Release.
    2. Where a grantor reserves to himself the right of maintaining a dam, and the right of carrying water in a race course “as at present enjoyed,” free and clear from all liability to the grantee for loss by reason of the breaking away or overflowing of the race and dam, and subsequently executes a release to the grantee’s successor in title of all claims or demands to any estate, right, title or interest in the land, the land so released is thereafter no longer subject to a seepage servitude.

      Negligence — Proximate and remote cause — Waters—Seepage.
    3. On an issue to determine damages to plaintiff's land by seepage and percolation, the case is for the jury where the evidence is conflicting as to whether the flow of water came by the natural level of the land from defendant’s race course on to the plaintiff's land, or whether the injury was caused by the independent intervening agency of water flowing through drains constructed by a railroad company.

      Waiers — Damage to land — Landlord and tenant — Injury to the reversion.

    4. A landlord may maintain an action for an injury to land notwithstanding the occupancy of the tenant, where he shows that he is in fact the owner of the land, and that in consequence of the acts and omissions of the defendant, a stated number of the acres of the land were greatly injured and damaged, that his system of underdrains was flooded, and the land rendered unproductive and untillable for farming purposes.

      Waters — Injury to land — •Measure of damages.

      5. In an action to recover damages for injuries to land by water, the trial judge cannot be convicted of error in saying that the plaintiff “is entitled to whatever you find under the evidence to be the cost of remedying the injury done by the act of the defendant, unless that cost will exceed the value of the property injured, and in such case the value of the property becomes the measure of damages.”
    6. In such a case a clearer instruction would be that it was the cost of restoring the property to its former condition, instead of the cost of remedying the injury, that would be the measure.
    Argued March 6, 1908.
    Appeal, No. 2, Jan. T., 1908, by defendant, from judgment of C. P. Columbia Co., May T., 1906, No. 28, on verdict for plaintiff in case of Albertus W. Welliver v. Irondale Electric Light, Heat and Power Co.
    Before Rige, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages, for injuries to land. Before Evans, P. J.
    The facts are stated in the opinion of the Superior Court.
    Defendant presented these points:
    3. It appearing that the race way is maintained in the same condition it always has been since the time of its construction, and the seepage complained of is the natural seepage incident to the character of the soil through which it is constructed, and there being no evidence that the defendant has been güilty of any negligence in maintaining the said race way in the condition that it has always been maintained; and no evidence that the flow of water from said seepage has increased in quantity; and no evidence that the defendant has failed to take any proper precautions in maintaining and using the said race way, the plaintiff cannot recover. Answer: This point is refused. [1]
    7. That under all the evidence in this case the verdict must be for the defendant. Answer: This point is refused. [2]
    1. That it appearing from the evidence in this case that the defendant company is the grantee of the title of the Bloomsburg Iron Company, with all the rights, powers and reservations of that company to maintain the race in question in the lawful use thereof for the production of power, and under the rights and reservations contained in the deeds of the said company to the predecessor in title of the plaintiff, it had the right to discharge the natural percolation and seepage from the race as then constructed and maintained by the Bloomsburg Iron Company into the ditch provided for said seepage at the time of its construction upon the land now occupied by the Blooms-burg & Sullivan Railroad Company and its right of way; and it appearing from the evidence uncontradicted that said old ditch was filled up by the said railroad company in the erection and construction of its roadbed, and that said old ditch was supplied by another ditch placed outside of the line of right of way of the said railroad company upon the plaintiff’s land by the joint act of the said railroad company and the predecessor in title of the plaintiff; and it appearing further that the seepage which formerly flowed into and was carried away by the old ditch was and is directed by the said railroad company into the new ditch provided by it and E. W. M. Low, plaintiff’s predecessor in title, and caused the damage complained of, such diversion is the act of a third party, to wit: the said railroad company, over which the defendant had no control, and the plaintiff cannot recover. Answer: This point is refused. [5]
    6. The plaintiff having shown no permanent injury to the land, and the evidence showing that the land is in the possession of a tenant as cropper, and not in the possession of the plaintiff, the plaintiff cannot recover. Answer: This point is refused. [6]
    If, under all the evidence in the case, and the law as we have instructed you, you should find that the plaintiff is entitled to damages, then we say to you that he should be awarded full and fair compensation or, in other words, he should be made whole, i. e., he is entitled to whatever you find under the evidence would be the cost of remedying the injury done by the act of the defendant, unless that cost will exceed the value of the property injured, and in such case the value of the property becomes the measure of damages. In other words, if it would cost more to remedy the injury in this case, than the entire property alleged to be injured is worth, then you may assess the damages at the value of the entire property which it is alleged is injured.
    As we view the facts in this case, the property injured would be whatever portion of the field north of the railroad right of way you may find is injured by the water which seeps through the embankment. [7]
    [Again, it is contended by the defendant, that about 1885, if we remember correctly, certain changes were made upon the ground by the Bloomsburg & Sullivan Railroad Company and Dr. Low, the plaintiff’s predecessor in title, which have resulted in leading the seepage from the race upon the plaintiff’s land, and that any injury resulting therefrom is the result of the acts of these parties, over whom they have no control. We say to you that if the acts or omissions of the defendant are not the proximate cause of this water being cast upon the plaintiff’s land, then the defendant is not liable for the injury, and you should so find, and your verdict should be for the defendant. But if it be true, as contended by the plaintiff, that in spite of the changes made by the railroad company and Dr. Low, this land was tillable before the defendant company turned its water into the race in the spring of 1903, and that by reason of the subsequent use of this headrace in the way it has used it, the water stored therein was allowed to seep through upon the plaintiff’s land, and if such water would find its way to plaintiff’s land independent of the drains under the railroad tracks, then the acts of Dr. Low or the railroad company, could not be set up as a defense by the defendant company.] [3]
    Verdict and judgment for plaintiff for $863.75. Defendant appealed.

      Errors assigned were (1-7) above instructions, quoting thejn.

      Grant Herring and N. U. Funk, with them 8. P. Wolverton, S. P. Wolverton, Jr., and James Scarlet, for appellant.
    Where it is apparent on the face of things themselves that a certain servitude has been impressed upon the premises, then such subsequent purchaser is bound to take notice; and the law charges him with notice. He takes the property charged with that servitude just as though written in his deed: Sharpe v. Scheible, 162 Pa. 341; Noons v. McNamee, 6 Pa. Superior Ct. 445.
    An easement may be created or reserved by an implied grant when its existence is'necessary to the enjoyment of that which is expressly granted or reserved, upon the principle that where one grants anything to another, he thereby grants him the means of enjoying, whether expressed or not: 2 Washburn on Real Property, sec. 1231; Strickler v. Todd, 10 S. & R. 63; Gould on Waters, sec. 306; Pickering v. Stapler, 5 S. & R. 107; Swartz v. Swartz, 4 Pa. 353.
    The owner of a dam is held responsible only for that degree of care, skill and' diligence in its construction and maintenance which men of ordinary prudence are accustomed in similar cases to employ: Young v. Leedom, 67 Pa. 351; McCoy v. Danley, 20 Pa. 85; Monongahela Navigation Co. v. Coon, 6 Pa. 379.
    Damages resulting to another, from the natural and lawful use of his land (in the development of the natural resources) by the owner thereof, are, in the absence of malice or negligence, damnum absque injuria: Penna. Coal Co. v. Sanderson, 113 Pa. 126; Strauss v. Allentown, 215 Pa. 96; Meixell v. Morgan, 149 Pa. 415; Penna. R. R. Co. v. Lippincott, 116 Pa. 472.
    Where in an action of negligence the fact is undisputed in the evidence, that the injury received was inflicted by an intervening agency, over which the defendant had no control, the question of remote or proximate cause must be determined by the court and the jury instructed accordingly: South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; Cooley on Torts (2d ed.), p. 91; McKenna v. Gas Co., 193 Pa. 633.
    The true rule is compensation for the loss of crops, if any, and the cost of restoring the land to its former condition, unless that cost would exceed the value of the land, when the value of the land would be the limit of the damages: Hoffman v. Coal Co., 16 Pa. Superior Ct. 632.

      February 26, 1909:

      H. Mont Smith and Fred Ikeler, for appellee.
    A private corporation not having the power of eminent domain, and not engaged in the natural and necessary development of the land itself, but on the contrary maintaining an artificial water way, is liable for all injuries to an adjoining landowner, resulting from the conduct of its business, no matter how lawful that business may be, or how careful it may have been in carrying it on: Hauck v. Pipe Line Co., 153 Pa. 366; Robb v. Carnegie, 145 Pa. 324; Pottstown Gas Co. v. Murphy, 39 Pa. 257; Stokes v. Penna. R. R. Co., 214 Pa. 415; Green v. Sun Co., 32 Pa. Superior Ct. 521; Rogers v. Traction Co., 182 Pa. 473; Farver v. Car & Foundry Co., 24 Pa. Superior Ct. 579.
    Even if the acts of the railroad company contributed to the injury that would not relieve the defendant company from its liability: Dennison v. R. R. Co., 21 Pa. Superior Ct. 248; Weir v. Plymouth Borough, 148 Pa. 556; Gallagher v. Kemmerer, 144 Pa. 509; Toole v. R. R. Co., 27 Pa. Superior Ct. 577.
    It has been consistently held that in cases like the present the measure of damages is the cost of remedying the injury, unless such cost exceeds the value of the property injured, in which case the value of the property becomes the measure of damages: Welliver v. Canal Co., 23 Pa. Superior Ct. 79; Robb v. Carnegie, 145 Pa. 324.
   Opinion by

Rice, P. J.,

In this action of trespass the plaintiff claimed and recovered damages for injury to his land, caused by seepage and percolation of water through the embankment of the defendant’s race.

1. The contention that the defendant cannot be held liable, in the absence of negligence, because the damages resulting to the plaintiff are the result of the defendant’s lawful use of its own land and the development of the natural resources thereof, cannot be sustained. This race is an artifical water course; it is not maintained for the development of the natural resources of the land owned by the defendant, but for the purpose of supplying power for the manufacture of electricity, which is furnished to the town of Bloomsburg and the general public for lighting, and it is not claimed that the company has the power of eminent domain. The business is that which the defendant company was chartered to carry on, it is lawful and it is conducted on the defendant’s own land, but these facts, of themselves, do not absolve the company from the obligation so to conduct it that a private nuisance shall not be created by percolation of water brought by artificial means upon its premises. In Pottstown Gas Company v. Murphy, 39 Pa. 257, it was held that a gas company, not having the power of eminent domain, was answerable for consequential damages, such as the corruption of plaintiff’s ground and well, by the percolation of fluids from the works, whether there was negligence or not. We quote from the opinion of Chief Justice Lowbie: “But the defendants think that as a corporation, authorized by statute to carry on this business, and to purchase in fee simple such real estate as may be necessary for it, they are not answerable for such consequential damages as are complained of here. We cannot adopt this view. No such exemption is involved in the- fact of incorporation, nor in the privilege of buying land. The principle they invoke applies only where an incorporation, clothed with a portion of the state’s right of eminent domain, takes private property for public use on making proper compensation, and where such damages are not part of the compensation required.” See also Rogers v. Philadelphia Traction Co., 182 Pa. 473; Green v. Sun Co., 32 Pa. Superior Ct. 521, and cases there cited. The doctrine of Pottstown Gas Co. v. Murphy was reaffirmed in Hauck v. Tidewater Pipe Line Co., Ltd., 153 Pa. 366, where it appeared that the defendant, a limited partnership, without the right of eminent domain, constructed a pipe line for the transportation of oil from the oil region, and that at the terminus of its line the oil was taken from the pipe and loaded upon tank cars for transportation by railroad. The defendant’s improvements, erected for the purpose of storing and shipping their oil, were entirely upon their own land, and separated from the plaintiff’s land by railroad tracks and a public road. The plaintiff introduced evidence which tended to show that oil escaped from defendant’s pipes, percolated through the ground, and injured his springs and lands, destroyed the fish in a mill pond, and rendered a tenant house uninhabitable. Upon this state of facts the plaintiff was permitted to recover and the judgment was affirmed. The decision is peculiarly pertinent because Chief Justice Paxson clearly points out the distinction between such a case as we have before us and Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, and fully answers the arguments presented by appellant’s counsel as to the applicability of the principle of the latter case. After stating that in the Sanderson case the flow of mine water was the natural and necessary result of the development by the owner of his own property, he said: “This was not the case in Robb v. Carnegie, 145 Pa. 324, nor is it the case here. In Robb v. Carnegie the refuse coal which was used for making coke was not mined upon the premises of the company, but was brought from other mines at a distance. In the case in hand the oil which was the cause of the injury to the plaintiff’s property was brought from a distance, allowed to escape from the pipes, and to percolate through plaintiff’s land and destroy his springs. It was not in any sense a natural and necessary development of the land owned by the company.” And in conclusion he said: “ In the consideration of this class of cases, care must be taken to distinguish between the natural and necessary development of the land, and injuries resulting from the character of some business, not incident and necessary to the development of the land, or the minerals or other substances lying within it.” It is not necessary for us to say more upon this branch of the appellant’s argument because it is as plain as anything can be that the case before us belongs to the latter and not the former class.

2. In order to give a correct understanding of the question raised by the defendant’s contention that the plaintiff’s land was, at the time of the injury complained of, subject to a seepage servitude, it will be necessary to refer at some length to the facts. The Bloomsburg Iron Company, formerly the Blooms-burg Railroad & Iron Company, was incorporated in 1839, and shortly thereafter erected large blast furnaces, and constructed the race in question upon its own land for the purpose of bringing water from Fishing creek to operate them. In 1858 the company conveyed its land immediately north of the race to one Shafer, subject, however, to certain reservations, and his executors in 1882 conveyed 141 acres of the same to Dr. Low, the plaintiff’s immediate predecessor in title. In the deed from the company to Shafer the company reserved to itself, its successors and assigns, the iron ore in the premises and the right to mine the same, as well as other rights not necessary to be noticed here, and the right (1) to maintain and continue its furnace dam where it was then erected; (2) to convey the water from Fishing creek through, upon and over the said premises in their furnace race as at present enjoyed” by the grantor; (3) to enter upon said premises to repair, reconstruct and rebuild the race and dam, or either of them; (4) to be free and clear from all liability to Shafer, his heirs and assigns, for loss or damage, either directly or indirectly, by reason of the breaking away or overflowing of the race and dam or either of them. The same reservations were contained in the deed from Shafer’s executors to Low.

Originally a ditch was constructed along the base of the race on the north side, for the purpose of receiving the natural percolations and seepage therefrom and carrying them to Fishing creek, and, as we understand the evidence, this condition remained unchanged in 1858, when Shafer bought, as well as in 1882 when Low acquired his title. But in 1886 the Blooms-burg & Sullivan Railroad Company appropriated a strip of Low’s land alongside the race for its right of way, and about that time constructed its railroad thereon. In the construction of its road the railroad, it is claimed, filled up the old ditch, and by means of drains constructed at intervals under its track carried the seepage and percolations from the race to a new ditch, along the edge of its right of way, but on the land of Dr. Low.

. The next event in chronological order, the conditions as above described being then unchanged, occurred in March, 1889, when the Bloomsburg Iron Company executed and delivered to Low the deed of release that figures so prominently in the case. This deed, after reciting the conveyance to Shafer in 1858, and the conveyance by his executors to Low in 1882, subject to the exceptions and reservations therein mentioned, proceeded to “remise, release and forever quit claim unto the said E. W. M. Low, and to his heirs and assigns all the right, title and interest whatsoever of the said The Bloomsburg Iron Company, by reason of the aforesaid exceptions and reservations mentioned in the deed hereinbefore recited and all the estate and estates shares purpart and dividends, right title interest property, claim and demand whatsoever of the aforesaid corporation the said The Bloomsburg Iron Company in law or equity or other use howsoever of into about of all that messuage, .... in the actual possession and seisin of the said E. W. M. Low now being bounded and limited as followsHere follows a description by courses and distances, which, as we understand, embraces all of the land conveyed to Low excepting that part appropriated by the Bloomsburg & Sullivan Railroad Company for its right of way. Then follows the habendum which concludes: “so that neither the said, The Bloomsburg Iron Company nor its successors or assigns nor any other person or persons, whosoever lawfully claiming to claim by, from or under it the said The Bloomsburg Iron Co., or its successors or assigns shall or may at any time or time hereafter have claim challenge or demand any estate right title or interest of, into or out of the said messuage, tenements, hereditaments, and premises hereby remised and released or mentioned or intended so to be with ■the appurtenances or any part or parcel thereof, but thereof and therefrom shall and will be utterly excluded and forever debarred by these presents.”

Counsel agree that Shafer, and following him Low, took the land embraced in their deeds subject to the easement of seepage, but the supplemental briefs show that they differ as to the origin of the easement. The defendant’s counsel contend that it was not expressly nor impliedly created by the reservations contained in the deeds, but rests exclusively upon the well-recognized principle that where an owner of land subjects part of it to an open, visible, permanent and continuous servitude in favor of another part, and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be: Grace M. E. Church v. Dobbins, 153 Pa. 294; Liquid Carbonic Co. v. Wallace, 219 Pa. 457; Koons v. McNamee, 6 Pa. Superior Ct. 445. The plaintiff’s counsel, while not denying that this principle would have been applicable to the case at the time of the conveyance to Shafer and Low, even in the absence of the reservations in their deeds, contend that the parties did not leave the matter wholly to implication, but that when the Bloomsburg Iron Company sold to Shafer and expressly reserved to itself “the right of maintaining and continuing their furnace dam where it is now erected,” and “ the right of carrying or conveying the water from Fishing creek over, upon and through the said premises in their furnace race as at present enjoyed,” it reserved by necessary implication the right of seepage upon the land conveyed to Shafer, to the extent that was then apparent upon the ground. We are inclined to the opinion that this is the better view; and if it be the correct construction of the reservations, then the release by the Blooms-burg Iron Company to Low of all the right, title and interest of the iron company in the land described in the release, “by reason of” the exceptions and reservations mentioned in the deeds to Shafer and Low, discharged the land described in the release from the easement. But even if the foregoing construction of the reservations be doubtful, the same result is reached by giving effect to the plain,, unequivocal and comprehensive words of the habendum above quoted. It is true the narrow strip of land alongside- the race bank, embraced within the right of way of the railroad company, is not included in the land described in the release, and therefore was not affected thereby. Assuming that notwithstanding the appropriation of this strip by the railroad company it still was subject to the easement of seepage, the plain import of the release is that it should extend rio further. Viewing that instrument as a whole, we entertain no doubt that its intention and effect were to discharge the land described therein from the burden of receiving, directly or indirectly, the seepage and percolations from the defendant’s race.

3. The next question to be considered is that of proximate cause. About the year 1890, the Bloomsburg Iron Company ceased to operate its furnaces, and in 1902 conveyed its title and rights to the defendant company. For several years prior to 1903, when the defendant company cleaned out the race and resumed its use for conducting water to its power plant, there had been very little water in the race, and very little, if any, seepage therefrom. In the meantime, the plaintiff’s evidence tends to show, Dr. Low ditched his land and was able to cultivate and raise crops upon it down to the edge of the ditch thereon heretofore spoken of alongside the railroad company’s right of way. But since 1903, the plaintiff’s evidence also tends to show, the water seeping and percolating from the race embankment has constantly found its way to the plaintiff’s land north of the railroad, either through the pipes constructed by the railroad or the gravel and porous soil underlying its tracks, and has rendered several acres of his land boggy, swampy and unfit for cultivation. Plaintiff claimed and adduced evidence tending to show that owing to the natural level of the land the water would reach the plaintiff’s land regardless of the pipes, drains or constructions of the railroad company. The defendant on the other hand claimed that the injury resulted from the acts of the railroad company in closing the old ditch on the southern side of its track and conveying the water to the ditch on the plaintiff’s land on the northern side of its right of way.

It has been generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligent or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. The rule as stated in Hoag v. Railroad Co., 85 Pa. 293, which has been more frequently adopted in the Pennsylvania decisions than any other, is: “Was the injury the natural and probable consequence of the negligence, — such a consequence as under the surrounding circumstances might and ought to have been foreseen by the wrongdoer as likely to flow from his acts? ” There can be no doubt under the evidence in the present case that the defendant had knowledge of the course the water would take that percolated through its race embankment. And if, as the evidence adduced by the plaintiff tends to show, the injury was not caused by the mere flowing of the water through the drains constructed by the railroad company, but, owing to the natural level of the land and other natural conditions, the water would have found its way to the same place and produced the same injury as is now complained of, it cannot be said that the injury was caused by an independent intervening agency, and that therefore the defendant was not responsible: Weir v. Plymouth Borough, 148 Pa. 566. Under the conflicting evidence the question was for the jury, and was submitted with appropriate instructions.

4. By the defendant’s sixth point the court was asked to instruct the jury that the plaintiff having shown no permanent injury to the land, and the evidence showing that the land was in the possession of a tenant as a cropper, and not in the possession of the plaintiff, the plaintiff could not recover. This point was properly refused. In his statement of claim the plaintiff alleged his ownership of the land and that in consequence of the acts and omissions of the defendant eight acres of his land were greatly injured and damaged, that his system of under-drains was flooded, and the land rendered unproductive and untillable for farming purposes. We cannot agree with defendant’s counsel that under this statement it was not competent for the plaintiff to recover damages to his reversion, if the evidence warranted such recovery. As was said in Green v. Sun Co., 32 Pa. Superior Ct. 521, so it may be said here, “His allegation was that there was a physical injury to the property. The damage was to the freehold and not to the tenant’s occupancy. For such an injury the landlord may maintain an action notwithstanding the occupancy by a tenant: Devlin v. Snellenburg, 132 Pa. 186.” That such injury as was shown by the evidence on behalf of the plaintiff is an injury to the freehold, and not merely an interference with the tenant’s use and occupancy, is beyond question. The case of Ripka v. Sergeant, 7 W. & S. 9, is directly in point.

5. The remaining question to be considered is as to the measure of damages. No assignment of error raises any question as to the competency of the evidence admitted on that subject. So far as this branch of the case is concerned, the sole complaint is that the learned judge erred in the instructions complained of in the seventh assignment of error and particularly that part of them in which the learned judge said: “He is entitled to whatever you find under the evidence would be the cost of remedying the injury done by the act of the defendant, unless that cost will exceed the value of the property injured, and in such case the value of the property becomes the measure of damages.” It cannot be said that this instruction was erroneous; indeed, it is in the language of more than one decision of the appellate courts. Doubtless it would have been clearer if the court had said to the jury that it was the cost of restoring the property to its former condition instead of the cost of remedying the injury, that would be the measure. If such instruction had been requested it would have been the duty of the court to give it: Keats v. Gas Co. of Luzerne County, 29 Pa. Superior Ct. 480. But no such request was made, and viewing this portion of the charge as a whole and in connection with the context, we feel confident that the jury were not misled. The fact that the doing of that which would remedy the injury and restore the property to its former condition would also prevent a recurrence of the injury is not ground for holding that the cost of doing that would not be a proper measure of damages, unless it exceeded the value of the land.

Upon a full review of the case we discover no error of which the defendant can justly complain.

The judgment is affirmed.


author: Head, J.,

text:
    Hendler, Appellant, v. Quigley.

      Landlord and tenant — Extension of term — Evidence—Question for fury.

    1. On the trial of an issue to determine whether a landlord had granted to his tenant an extension of his term for a year, the case is for the jury where the tenant’s evidence as to the extension is corroborated by that of his wife and daughter and several witnesses as to declarations made by the lessor scarcely reconcilable with any other theory, and by the further fact that a new liquor license for the leased premises had been applied for by the lessee with the knowledge of the lessor who had himself signed the application.

      Landlord and tenant — Eviction—Licensed premises — Liquor license— Profits.

    2. In a proceeding by a tenant, a licensed saloon keeper, against his landlord, to recover damages for a wrongful eviction, the tenant may show as an element of damage the profits he could have made for the unexpired term, including the period after he had sold his license for a small sum. In such a case the price obtained for the license is not necessarily the full measure of compensation for the loss of the balance of the term. The tenant may show such loss by his own evidence, by the record of his cash register, by the record of bar receipts during the corresponding months of previous years and by bills and memoranda tending to show at least the approximate cost of what was sold.
    3. Damages may be recovered for loss of profits caused by a breach of contract, and they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent. The law does not require absolute certainty as to the data upon which profits are to be estimated, but certainty to a reasonable degree or extent so that the damages may rest upon a definite basis and not wholly in speculation and conjecture.

      Landlord and tenant — Punitive damages — Eviction.
    4. In a proceeding by a licensed saloon keeper against his landlord to recover damages for a wrongful eviction, a verdict, including exemplary damages, will be sustained, where the wife of the tenant testifies that the landlord brought a crowd of foreigners from a quarry to aid the constable; that they came during a temporary absence of her husband, and refused to await his return; that packages of liquor were broached and given to the men, and the contents not consumed were wasted; that cigars were taken; that furniture and dishes were broken; that the men broke off part of a wardrobe with a hatchet; that mattresses were tom and scattered across the road for cows to run over them; and that the men engaged in the eviction were full so that they could not stand up, and that the lessor gave them liquor.
    Argued March 3, 1908.
    Appeal, No. 20, Jan. T., 1908, by-plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 451, on verdict for defendant in case of Joseph Hendler v. T. F. Quigley.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of a justice of the peace in proceedings under the act of 1863 to obtain possession of leased premises. Before Ferris, J.
    The facts are stated in the opinion of the Superior Court.
    Plaintiff presented the following points:
    2. In no event shall the jury allow in computing the damages, in case they should find for the defendant, any money value for loss of business or good will, except from the alleged eviction on August 18 to October 9, 1903, the date when the defendant transferred his license to Passavento.
    3. There is not sufficient evidence of any value as to the good will in itself to warrant the jury in awarding damages for this as a distinct item.
    4. Under the evidence in this case the defendant is not entitled to any damages for profit of business.
    The answer of the court to these points being as follows:
    The second, third and fourth points, gentlemen, I answer as follows: One of the items of damages, if any, would be the fair value to the tenant of the use of the property for the balance of the term, if you find that term was extended until April, 1904. And in estimating that fair value you should take into consideration the evidence relating to the amount and profits of the tenants’ business, and the evidence bearing upon the question as to whether in the transfer of the license to Passavento the good will of the business from October 1 was also transferred and the defendant compensated therefor; the question in that-regard being whether he suffered any loss as to the balance of the term after October 9, 1903. [2-4]
    5. If the jury find for the defendant, and also find that the eviction was wanton and malicious, then in addition to compensatory damages, vindictive or exemplary damages may be allowed. Answer: That we have already spoken to you about in our general charge, and that is affirmed. If you allow such damages they should, however, be reasonable in amount. [5]
    Verdict and judgment for defendant for $750. Plaintiff appealed.

      Errors assigned were (1) in refusing binding instructions for defendant; (2-5) above instructions, quoting them. ■

      February 26, 1909:

      D. A. Fell, with him E. A. Lynch, for appellant.
    There is not sufficient evidence in the case to show that any parol proposition of appellant to lease for one year was ever accepted by appellee: Dimeling v. R. R. Co., 215 Pa. 480; Purves’s Est., 196 Pa. 438; Butler v. Kemmerer, 218 Pa. 242.
    The good will of a tavern is local and does not exist independently of the house in which it is kept: Musselman’s App., 62 Pa. 81.
    When the damages claimed for profits are so speculative and dependent upon numerous and changing contingencies so that the amount is not susceptible of actual proof with any reasonable degree of certainty, no recovery can be had for them: Shirley v. Keagy, 126 Pa. 282; McKnight v. Ratcliff, 44 Pa. 156.
    If the defendant was wrongfully disposed, under all the evidence in this case he was not entitled to anything more than the pecuniary loss caused by his eviction: Quinn v. McCarty, 81 Pa. 475; Barnett v. Reed, 51 Pa. 190; Lake Shore, etc., Ry. Co. v. Rosenzweig, 113 Pa. 519; Pittsburg, etc., Ry. Co. v. Lyon, 123 Pa. 140.

      M. H. McAniff, with him T. M. Conniff and C. B. Lenahan, for appellee,
    cited as to the question of profits: Chapman v. Kirby, 49 Ill. 211; Keating v. Condon, 68 Pa. 75.
    Cited on the question of exemplary damages: Lord v. Water Co., 135 Pa. 122; Gallagher v. Burke, 13 Pa. Superior Ct. 244; McDonald v. Scaife, 11 Pa. 381; Wiley v. McGrath, 194 Pa. 498; Railway Co. v. Lyon, 123 Pa. 140; Greeney v. Water Co., 29 Pa. Superior Ct. 136.
   Opinion by

Head, J.,

The defendant had been the tenant of the plaintiff for a period of five years under a carefully prepared written lease. The term of this lease expired April 1, 1903. The defendant was a licensed innkeeper and had been conducting his business, during the term in the demised premises. It was the contention of the defendant that in the winter of 1902-1903, the plaintiff had agreed, in parol, to an extension of the term of the lease for a period of one year. That relying on this he went to the expense of preparing and filing an application for the renewal of his license — which was subsequently granted — and made certain repairs, etc.

That the defendant requested such an extension is not denied. If the plaintiff intended to accede to this request neither any particular form of words nor any lengthy statement would be necessary to express such intention. If the testimony of the defendant was credible it would fairly warrant the conclusion that the plaintiff did so intend and plainly enough expressed his assent. In this, the defendant was corroborated by the testimony of his wife and daughter and several other witnesses as to declarations made by Hendler scarcely reconcilable with any other theory; and the further fact that a new license had been applied for with the knowledge of the lessor who had himself signed the application. These circumstances would not, of course, conclude the plaintiff, but certainly necessitated the submission of the question to the jury, and as there is no complaint of the manner of the submission, the verdict establishes that the term of the lease had been extended for one year from April, 1903. The first assignment of error, which complains of the refusal of the court to withdraw this question from the consideration of the jury, must be overruled.

Notwithstanding the extension of the term, the lessor in the early summer of 1903 began proceedings before a magistrate to dispossess his tenant, but they resulted in a judgment in favor of the defendant. This judgment was, however, reversed on certiorari and a new proceeding begun before another justice who gave judgment for the plaintiff which was followed by a writ of possession. The defendant appealed, but this would not supersede the writ of possession which was executed in August, 1903, nearly seven months before the expiration of defendant’s term as extended. During the month of October following, the defendant succeeded in selling the license he had obtained and received $75.00 therefor.

The second, third and fourth assignments complain of the action of the court in permitting the jury to consider, as elements of damage, the value of the defendant’s business, the good will incident to such a business when established, and the loss of profits resulting from its destruction, and especially during the period that elapsed between the sale of his license in October, and the expiration of his term the following April.

By the wrongful eviction of the defendant, his license as an innkeeper was uprooted from the only spot where it could produce valuable fruit, his business was broken up, the patronage of his house was scattered, and he was left with a naked personal privilege which could be sold only to one who could secure possession of the licensed premises and win the court’s approval of the transfer. We do not think the plaintiff was in a position to insist that the injury resulting from his wrongful act ceased at the date of the sale thus forcibly brought about, or that the price obtained for the license, under the circumstances, was necessarily the full measure of his compensation for the loss of more than five months of his term. He was entitled to recover whatever he lost as a consequence of his eviction. One of the ways in which he undertook to show this loss was by the production of evidence tending to prove the profits he could have reasonably made during that portion of the term of which he was deprived.

In a proper case there is no legal obstacle to the recovery, as damages, of lost profits. The difficulty usually arises in the application to such matters of established rules of evidence. Where sufficient evidence is offered to remove such a question from the domain of the speculative and fanciful to that of the actual and ascertainable, a recovery may be had. In Wilson v. Wernwag, 217 Pa. 82, Mr. Justice Mestrezat, after an exhaustive review of the cases, thus lays down the principle: “From these authorities, it is clear that damages may be recovered for loss of profits caused by a breach of contract; and that they are never excluded simply because they are profits. If it reasonably appear that profits would have been made had the terms of the contract been observed, and that their loss necessarily followed its breach, they may be recovered as damages if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent. . . . The law does not require absolute certainty as to the data upon which profits are to be estimated, but certainty to a reasonable degree or extent so that the damages may rest upon a definite basis and not wholly in speculation and conjecture.”

In the present case there was evidence, from the record of the cash register, of the bar receipts during the corresponding months of previous years; bills and memoranda were produced tending to show at least the approximate cost of what was sold. This, coupled with the testimony of the defendant, we think, was sufficient to enable the jury to determine that some profits would have been made and to arrive at a rational estimate of their extent. More than this the law does not require. The second, third and fourth assignments are dismissed.-

The only remaining assignment alleges the learned court below erred in submitting to the jury the question of punitive or exemplary damages. As before the complaint goes, not to the character of the instructions given on that subject, for they were careful and accurate, but to the refusal of the court to withdraw that question entirely from the jury’s consideration.

In Gallagher v. Burke, 13 Pa. Superior Ct. 244, a case of wrongful eviction, this court said: “It is the duty of the court to submit a question of the kind of damages that may be given, to the jury, if there be evidence of aggravation or oppression. Compensation is the rule in the absence of such circumstances. Exemplary damages may follow in the wake of their existence, but there must be evidence on the point. If there is, it is proper to submit it to the jury for the ascertainment of the circumstances that constitute oppression and aggravation.”

The wife of the defendant testified that the plaintiff brought a crowd of Italians from the quarry to aid the constable. They came during the temporary absence of her husband and refused to await his return. She declares that packages of liquor were broached and the contents not consumed were wasted; that cigars were taken; that furniture — piano, couch, dining-room table and dishes were broken; that the wardrobe being hard to get down stairs they broke the top off with a hatchet; that “half of the men were full, . . . they could not stand up they were that full;” that Hendler gave them liquor; that the mattresses “were torn and dirtied and laying over across the road and the cows running over them,” etc., etc. The credibility of this witness, as of all others, was for the jury, but it is impossible for us to say, as matter of law, that if the circumstances described actually attended the execution of the writ, they would not constitute that groundwork of aggravation and oppression which would support a verdict for exemplary damages. The court was therefore obliged to submit this question to the jury and did so, as already stated, in a manner which has elicited no criticism from the appellant. The fifth assignment is dismissed.

Judgment affirmed.


text:
    Reynolds, Appellant, v. Craft.

      Equity — Specific performance — Reformation of contract.

    1. Where a plaintiff comes into a court of equity seeking to enforce the performance of a contract that is oppressive and unconscionable, a chancellor may withhold his aid even where the proof of the defendant shows little more than improvidence, surprise or even mere hardship. In such cases a court of equity may properly adhere to the ancient maxim that a decree is of grace, not of right. But where one seeks the active interposition of a court to reform a contract reduced to writing and signed and sealed by the parties, a very different principle controls. To reform a contract, and then enforce it in its new shape, calls for much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. •

      Equity — Equity pleading — Presumption.
    2. It is a fair presumption that a plaintiff who files a bill in equity, states his case as favorably for himself as the facts will warrant.

      Equity — Reformation of contract — Parol sale of land — Statute of frauds.

    3. A court in passing upon a bill in equity will not construe a parol bargain for the sale of land as a final bargain, although so averred, where the entire bill and the transaction therein described show plainly that the bargain was not final, but was to be supplemented by a written contract.

      4. A parol sale of lands cannot be construed as within the exception to the statute of frauds, where it appears that no substantial part of the purchase money was paid at the time, or in pursuance of the alleged sale, and that while possession was shown, the only averment as to improvements was that the purchaser “commenced to make valuable improvements. ”
    5. A bill in equity to reform a written agreement for the sale of land on the ground that the contract contained a reservation of minerals contrary to the plaintiff’s understanding, cannot be sustained where the plaintiff does not deny that the contract when and as she signed it contained the reservation, nor allege any mistake of the parties or the scrivener, or any fraud or deception practiced upon her by the defendant. In such a case there is no ground for reforming the contract, because the defendant gave plaintiff an untruthful reason for his determination to retain the mineral rights. He was not required to give any.
    6. A court of equity will not reform a written agreement on an averment that the plaintiff, when she signed the contract, was suffering from illness, and by reason of it, “unable to fully realize and understand the terms and conditions of the written contract,” where she does not disclose what her understanding of the paper then was, nor aver that it was then different from what it is now.
    Argued March 3, 1908.
    Appeal, No. 14, Jan. T., 1908, by plaintiff, from decree of C. P. Susquehanna Co., Aug. T., 1906, No. 220, dismissing bill in equity in case of Adelia M. Reynolds v. A. L. Craft.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Bill in equity to reform a contract and specifically enforce it. Before Searle, P. J.
    The bill was as follows:
    1. That she is a resident of the township of Herrick, Susquehanna county, Pennsylvania, and the defendant is also a resident of the same place.
    2. In September, 1904, your orator was residing in Wayne county, state aforesaid, and was partially recovering from a serious illness, and the defendant, A. L. Craft, then a practicing physician, was professionally treating her, and during the various professional calls that the defendant made upon your orator he talked of selling the R. P. Patterson farm that he owned to her, located at Herrick center, township, county and state aforesaid.

      3. On October 25, 1904, a final bargain was made between your orator and the defendant, Dr. A. L. Craft, and $10.00 was paid to close the deal. The bargain was. that Dr. Craft, the defendant, was to sell and convey to your orator all the land that he purchased of R. P. Patterson, north of the Newbury Turnpike road, situated in the aforesaid township, county and state, for the sum of $2,900.. Ten dollars was paid down, $2,790 was to be paid upon execution and delivery of the written contract, and $100 on October 25, 1905, at which time a good and sufficient deed of general warranty was to be given to your orator for said premises. The written contract was to be immediately drawn and furnished by the said defendant, A. L. Craft, in accordance with the above terms.
    4. In pursuance of said agreement your orator and her family moved upon the premises so purchased and took possession of the same on November 17, 1904, and commenced to make the necessary repairs and valuable improvements thereon, and on November 25, 1904, the defendant, A. L. Craft, produced a written contract, dated October 25, 1904, and presented the same to your orator, who was still ill and confined the greater portion of the time to her bed, and was still being professionally treated by said defendant. Your orator at the time was so impaired in health and body that she was unable to fully realize and understand the terms and conditions of the written contract, but she noticed that something was stated in said-written contract about a mineral reserve and she spoke and protested against any reservation of that kind, or any other being made. The defendant replied that since he had made the bargain for the sale of this property to your orator, that he had examined his deed from R. P. Patterson, which reserved the mineral, and for that reason, and that reason only, did he wish to make any reservation in the written contract.
    Your orator objected to signing the written contract at this time with said mineral reservation therein, as it was not mentioned in the original agreement, but after the defendant, A. L. Craft, assured her that said reservation was in his deed from Patterson and for that reason he could not convey the same to her, and that she could rely upon what he said, and at this time your orator having explicit faith in what the said defendant said to her, and relying upon what was said to her in relation to said reservation, and not having had any opportunity at that time to ascertain the truth or falsity of such statement, as he insisted that said contract should then be signed and the $2,790 paid, she, under those circumstances, in her weak and sick condition, signed a written contract (a copy of which is hereto attached) and paid $2,790 to the said defendant.
    5. A short time previous to October 25, 1905, your orator for the first time learned that the said defendant had fraudulently misrepresented to her that there was a mineral reservation in the deed from R. P. Patterson to him of these premises; that he secured the signature of your orator to the written contract, and $2,790, on November 25, 1904, by such fraudulent misrepresentations, contrary to the original bargain for such land made on October 25, 1904. There is no mineral reservation in the deed from R. P. Patterson to defendant of these premises.
    6. On October 25, 1905, in pursuance of the original agreement made between defendant and your orator, she paid him $100, the balance of the purchase money for said premises, and demanded a deed for the same in pursuance to the original agreement, which the defendant has neglected and refused to deliver.
    PRAYER.
    1. That the defendant be directed to prove all the facts alleged in this bill denied by him.
    2. That the written contract that bears date October 25, 1904, but not executed until November 25, 1904, attached to this bill, be reformed and modified by striking out of the same the following portion, to wit: “Except, the said A. L. Craft, M. D., reserves in full, all coal and mineral, oil or gas, with right to prospect, and mine the same, contained on or in above described land as deemed necessary to prepare the same for market.”
    3. That the defendant be ordered and directed to make and deliver to your orator a good and sufficient deed of general warranty, for said premises so purchased.

      4. That such other and further relief may be granted to the complainant as the nature of the case may demand.
    COPY OP WRITTEN AGREEMENT.
    “Herrick Center, October 25th, 1904.
    “This agreement, made and executed the twenty-fifth day of October, one thousand nine hundred and four, between Dr. A. L. Craft, of Herrick Center, Susquehanna County, Pa., of the first part, and Mrs. Adelia M. Reynolds, of Pleasant Mount, Wayne County, Pa., of the second part.
    “ Witnesseth, That the said party of the first part, for and in consideration of the sum of twenty-nine hundred dollars (to him promised to be paid), of which the sum of twenty-eight hundred dollars is now paid, the receipt of which is hereby acknowledged, and the remaining one hundred dollars is hereby agreed to be paid as follows: The remaining one hundred dollars to be paid one year from date of this contract, viz.: October 25, 1905.
    “When a deed hereinafter mentioned is given, hath contracted, and agreed to sell to the said party of the second part, all that certain piece, parcel or tract of land situated in the town of Herrick, County of Susquehanna and State of Pennsylvania, aforesaid, known and described as follows: Bounded on the south by Newburg turnpike and lands of E. Hoel and School House lot; on the east by lands of A. L. Craft, M. D., and Daniel Gettle; and on the north by lands of Ira Curtis and C. M. Harding; on the west by public highway and lands of A. L. Craft, and on the southwest by lands of A. J. Cawley, Mrs. Leroy Tanmer, Emery Miller and A. L. Craft.
    “The said party of the first part agrees to execute and deliver to said party of the second part, a deed, with full covenants: Except, the said A. L. Craft, M. D., reserves in full, all coal and mineral, oil or gas, with right to prospect, and mine the same, contained on or in above described land as deemed necessary to prepare same for market. Provided, and upon condition nevertheless, that the said party of the second part, her heirs and assigns, pay to the said party of the first part, his heirs and assigns, for the said land, the sum of twenty-nine hundred dollars, lawful money of the United States, in the way and manner following, to wit:
    February 26, 1909:
    “Twenty-eight hundred dollars when possession is given and the remaining one hundred dollars to be paid October 25, 1905. And the said party of the second part, for himself, his heirs, executors, and administrators, doth covenant and agree, to and with the said party of the first part, his heirs and assigns, that the said party of the second part, will pay the said several sums as they become due, without any deduction for taxes or assessments whatever, and it is further agreed between the parties to these premises that if default be made in fulfilling this agreement or any part thereof, on the part of said party of the second part, then, and in such case, the said party of the first part, his heirs and assigns, shall be at liberty to consider this cancelled, and the money already paid forfeited, and to dispose of the said land to any other person in the same manner as if this contract had never been made.”
    The defendant filed a demurrer which the court sustained, and dismissed the bill.

      Error assigned was decree dismissing the bill.

      T. J. Davis, for appellant,
    cited as to the statute of frauds: McGibbeny v. Burmaster, 53 Pa. 332; Eberly v. Lehman et. al., 100 Pa. 542; Nesbitt v. Tarbrake, 30 Pa. Superior Ct. 460.
    Cited as to fraud: Jack v. Hixon, 23 Pa. Superior Ct. 453; Smith v. Richards, 38 U. S. 26; Graft v. Loucks, 138 Pa. 453; Brophy v. Hagan, 12 Pa. C. C. Rep. 365.

      Wm. D. B. Ainey, for appellee.
   Opinion by

Head, J.,

To the bill of the plaintiff in this case the defendant filed a general demurrer. The learned court below sustained the demurrer and dismissed the bill. The bill contained two specific prayers: (a) that a written contract, admittedly signed and sealed by the plaintiff, be radically reformed; (b) for a decree enforcing the specific performance of the contract after being thus reformed.

It is doubtless true that where a plaintiff comes into court seeking to enforce the performance of a contract that is oppressive and unconscionable, a chancellor may withhold his aid even where the proof of the defendant shows little more than “improvidence, surprise or even mere hardship:” Lynch’s Appeal, 97 Pa. 349. In such cases a court of equity may properly adhere to the ancient maxim that a decree is of grace, not of right. But where one seeks the active interposition of a court to reform a contract reduced to writing and signed and sealed by the parties, a very different principle controls. It is clearly stated in Bierman v. Lebanon Valley College, 20 Pa. Superior Ct. 133, in the following language by Rice, P. J., thus: “To reform a contract, and then enforce it in its new shape, calls for a much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission.”

It is a fair presumption that a plaintiff, who files a bill, states his case as favorably for himself as the facts will warrant. Keeping in view the principle above noted and this presumption, a brief examination of the bill will demonstrate, we think, that the learned court below committed no error.

The bill does not aver an actual parol sale of the land which both of the parties then regarded as a completed transaction; but rather a preliminary negotiation in which the parties not only contemplated but expressly provided for a formal, written contract of sale, upon the execution of which, the bulk of the purchase money was to be paid. We do not overlook the fact that the bill declares that “On October 25, 1904, a final bargain was made between your orator and the defendant and ten dollars was paid to close the deal.” But the entire bill and the transaction therein described show plainly enough that the bargain of October 25 was not final, but was to be supplemented by a written contract. This written contract which was, and was intended to be, final, which bound the parties and fixes their rights — unless it be reformed as prayed for — was signed about twenty days later.

Even if we concede that the bill fairly and clearly averred a parol sale it was a sale forbidden by the statute. No substantial part of the purchase money was paid at the time or in pursuance of the alleged sale; it was paid, as it was agreed to be, at the time of the execution of the written contract and in exact accordance with its terms. Possession is alleged to have been taken under the parol arrangement, but the only averment as to improvements is that plaintiff “commenced to make valuable improvements.” Such vague and general averments fall far short, in our judgment, of disclosing a parol sale that could, without disregarding well-established principles, be considered an exception to the general rule laid down in the statute.

But the bill itself reveals an even more serious obstacle in the way of the plaintiff. She complains that in the contract she signed and upon which she paid her money, there was a reservation in favor of the grantor of certain mineral rights in the land, whereas she understood and expected that she was to take the entire estate in fee. She does not deny that the contract when and as she signed it contained the reservation; she does not allege that this was the result of a mistake of the parties or the scrivener; she does not assert that by reason of any fraud or deception on the part of the defendant her eyes were blinded as to the fact that the reservation was there, nor that by such means she was misled as to the effect and significance the law would attach to it. She was not then bound to take any estate less than the fee, if that was her understanding of the preliminary arrangement. She had only invested, up to that time, $10.00, which she could have recovered if the defendant had obtained it on the promise to sell more than he was afterwards willing to convey. Having thus perfect freedom of will and action; with her money still in her possession and under her control; under no legal obligation to contract if she was not getting what she wished to buy; knowing of the reservation and having, as the bill avers, “protested against any reservation of that kind, or any other being made,” she voluntarily signed the contract, paid over to the defendant $2,790 of the purchase money, retained the possession of the property for a year and then made the final payment of $100 called for by the contract she had signed.

By ber bill she asked the learned court below to reform and remake this contract, by striking out the entire reservation, bec'ause, as she alleges, the defendant gave her an untruthful reason for his determination to retain the mineral right. He was not required to give any. We may concede the universality of the moral obligation to speak the truth or remain silent. But there are many breaches of this obligation which courts can neither prevent nor remedy. Nor is this foundation for the bill broadened or strengthened by the averment that the plaintiff, when she signed the contract, was suffering from illness and, by reason of it, “unable to fully realize and understand the terms and conditions of the written contract,” because she does not disclose what her understanding of the paper then was, nor does she aver that it was then different from what it is now.

Without attempting any further elaboration of our views or any citation of authorities to support a conclusion that seems to us to need none, we deem it sufficient to say that we are all of the opinion this record discloses no reversible error and that the bill was properly dismissed.

Decree affirmed.


text:
    Savings Institution of the City of Williamsport v. Folk, Appellant.

      Banks and banking — Check—Collection.
    1. Where a person requests a bank in which he is not a depositor to cash a check drawn on a bank in another city, and he takes the cash, although warned of the bad credit of the maker, and that he will be held liable on his indorsement if the check is returned, and the bank acting , without negligence and in good faith transmits the check through its usual channels for collection, and it is returned unpaid, the bank may recover the amount of the check from the indorser, although it appears that one of the intervening banks taking advantage of the facts revealed by the check, entered up a judgment note against the maker and attached the whole deposit before the check was received by the bank on which it is drawn.

      2. Although the amount of a check left with a bank for collection has been credited to a depositor’s cash, it may be charged back to him in case it turns out to be worthless, unless the bank has been negligent, or has done something to mislead the depositor, thereby inducing him to act to his own injury.
    Argued Feb. 25, 1908.
    Appeal, No. 11, March T., 1908, by defendant, from judgment of C. P. Lycoming Co., March T., 1906, No. 483, on verdict for plaintiff in case of The Savings Institution of the City of Williamsport v. Ed Folk.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover the amount of a check. Before Hart, P. J.
    The opinion of the Superior Court states the case.
    The court charged in part as follows:
    [All the savings institution was required to do was to place this check in the hands of a responsible agent for the purpose of transmission to the bank upon which it was drawn and presented there for collection. And therefore, when the savings institution placed this check in the hands of a responsible bank it had fulfilled all the obligations that it had entered into with Ed Folk in the matter of the transmission of this check to the bank upon which it was drawn, and that therefore, under the evidence in this case, the plaintiff would be entitled to recover against Ed Folk, the defendant, the amount of the check, protest fees and interest, amounting in all to the sum of $399.15.] [1]
    Defendant presented these points:
    1. If, under all the evidence, the jury believes the plaintiff received the check in suit for collection, and that collection thereof became impossible because of the fraud or negligence of any bank or other agent through which plaintiff attempted to make such collection, the plaintiff cannot recover in this action, and the verdict must be for the defendant. Answer: This point is refused. [2]
    2. If, under all the evidence, the jury believes that the plaintiff was negligent in selecting the West Branch National Bank as its agent to forward the check in suit to the bank on which it was drawn, or in repaying the West Branch National Bank the amount of said check after payment thereof had been refused by the bank on which it was drawn, the plaintiff cannot recover and the verdict must be for the defendant. Answer: This point is refused. [3]
    February 26, 1909:
    The court gave binding instructions for plaintiff. [4]
    Verdict and judgment for plaintiff for $399.15. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      Max L. Mitchell, for appellant.

      C. La Rue Munson, of Candor & Munson, for appellee.
   Opinion by

Head, J.,

As to the material facts of this case there is but little, if indeed any, serious contention between the parties. At the time of the transaction which resulted in this suit, Folk, the defendant, was not a depositor in the plaintiff bank and had no commercial relations with it. He was a tenant of some real estate owned by it and was known to its active manager as a man of financial responsibility. In January, 1906, he presented, at the counter of the defendant, a check drawn to his order by one L. E. Bates, on a bank in Mahanoy City, for $360, and requested that it be cashed for his accommodation.

Either at this time or shortly before when a similar request had been made — there being some conflict of testimony on this point — the plaintiff’s manager had advised the defendant that the financial standing of Bates was bad and warned him that if the check should be returned unpaid, the plaintiff would be compelled to hold him, the defendant, on his indorsement. The latter, however, persisted in his request for accommodation and indorsed the check. The plaintiff took it and, making no charge whatever for the favor, gave to him, in cash, the full amount called for by the check.

In accordance with its custom in handling foreign checks- — ■ i. e., on banks outside the city of Williamsport — the plaintiff indorsed this check and turned it over to the West Branch National Bank, a long-established and reputable bank in the city, and received in turn the cash called for by it. The national bank caused the check to be promptly forwarded, through the usual channels and presented for payment to the drawee bank at Mahanoy City. Payment being refused the check was protested and notice thereof was, at once and in the usual way, given to all indorsers, including both plaintiff and defendant. The protested check was then returned by the same route it had gone, each indorsee in turn demanding and receiving from the next prior indorser the amount of it, with protest fees added, until it reached the plaintiff in whose possession it remains. Up until this time the plaintiff had no knowledge, nor had it received notice, from any source, of the reason for the refusal of the check by the bank upon which it was drawn.

We do not understand it to be alleged that in any or all of the facts thus far recited there occurred anything to relieve the defendant from the obligation created by his indorsement of the check. But it later appeared that, at the time of the transaction, the West Branch National Bank was itself a creditor of Bates, the drawer of the check, and held his past due judgment exemption note for $500 and interest.

The receipt by it of this check in the manner indicated, as well as some previous transactions of which its officers had knowledge, led them to conclude that Bates was maintaining a regular deposit account in the bank at Mahanoy City. They accordingly sent their note direct to the county seat of Schuylkill county, caused judgment to be entered thereon and an attachment execution to be issued. This was served on the bank shortly before the check was presented and, as the attachment covered practically all of the money on deposit, there were no funds available for the payment of the check and it was refused with the results already mentioned.

As we have seen, the plaintiff had no knowledge of any of these matters until after it had taken up the protested check. It neither did nor omitted to do any act, from the time it cashed the check until it received it again protested, that tends to impugn its own good faith or diligence throughout the transaction. But, it is argued that, even if, looking only at the acts of the plaintiff itself, no negligence can be discovered, nevertheless the law casts upon it the responsibility for any lack of care or breach of duty on the part of any other bank, into whose possession the check came whilst on its route, along the usual channels of commerce, to its destination; and that in this obligation the defendant, who launched the check into the commercial current, has no part or share.

If this be sound it must be manifest that no bank could afford to accept a foreign check from its depositor — much less from a stranger — without a special contract of indemnity or the payment of a sum sufficient- to insure the risk, or both. The serious effect, upon the business world, of such a declaration by a court can hardly be overestimated. Certainly none of the cases cited by the able counsel for appellant goes to such á length.

Under the established facts of this case we can see no room for the conclusion that the relation of the defendant and plaintiff was that of vendor and vendee; that the former sold and the latter bought a check, like any other commodity, and that the indorsement of the defendant carried no other covenant than an implied warranty of his title to the paper.

On the contrary we think when the defendant presented his check and requested, as an accommodation, the cash it called for, he must have contemplated that the plaintiff would transmit the check to the bank upon which it was drawn, for thus only could it finally get back the money it was about to advance. As no provision was made nor direction given for any special mode of transmission, it must have 'been further contemplated that it would be along some of the channels of trade and through some of the normal agencies ordinarily used by the commercial world; and the selection of such channels and agencies by the plaintiff, in good faith and with reasonable care, must be regarded as having received the implied approval of the defendant.

The present case, in its facts and the legal principles applicable to them, closely resembles Rapp v. National Security Bank, 136 Pa. 426. In that case a stranger bought a bill of goods from a merchant in Philadelphia and offered in payment a check on a bank in New York, calling for a sum much larger than the bill, requesting that the difference be paid to him in cash. The merchant first sought the advice of his banker who told him the transaction looked dangerous and warned him that such was the method usually adopted by those seeking to negotiate fraudulent or worthless checks. The bank offered to transmit the check to New York in the usual way and see if it would be paid. The merchant indorsed it and left it and received credit for its amount in his account. Although the check had been, in fact, fraudulently raised in amount many hundreds of dollars, yet when it reached the drawee bank, in the regular course of business, as the signature was genuine, the drawer in funds and the work of the forger had been so skillfully done as to leave no apparent trace, it was paid. It was not until the bank book of the drawer was balanced, some weeks later, that the forgery was detected. Then, Mr. Chief Justice Paxson, speaking for the court, says, “The check was promptly started on its way back to Rapp & Sons, by the same channel it had been forwarded. We see no evidence of delay or negligence in this branch of the case and it needs no argument to show that each bank or person who received the money or a credit for this check was bound to restore it when the fraud was discovered.” Again, “It has never been supposed that, when a bank credits a depositor with the amount of a check left for collection, it may not be charged back to him in case it turn out to be worthless. Such a rule would occasion much inconvenience to banks, and much more to their customers. Upon careful review of the case, we fail to find any evidence of negligence on the part of the bank. If there was negligence on the part of anyone, it was that of the plaintiffs themselves, in dealing in the manner they did with an entire stranger after warning to have nothing to do with him.”

In Bank v. Strauch, 20 Pa. Superior Ct. 196, this court following Rapp v. Bank, used the following language, in an opinion by Orlady, J.: “Although the amount of a check left with a bank for collection has been credited to a depositor as cash, it may be charged back to him in case it turns out to be worthless, unless the bank has been negligent, or has done something to mislead the depositor, thereby inducing him to act to his own injury, etc.” These cases we believe to be in harmony with the earlier ones cited and to be easily distinguishable from Bank v. Goodman, 109 Pa. 422, and Pepperday v. Bank, 183 Pa. 519.

Measured by the principles enunciated in the language we have quoted the defense set up in this case must fail. It has not been shown that the plaintiff was guilty of any act of negligence or breach of duty nor that the defendant was misled to his injury by any act or omission upon its part. The defendant, after being duly warned of the possible risk he assumed, deliberately entered into the obligation of an indorser and the plaintiff, on the strength of that indorsement, gave him the money he requested. We think, therefore, the learned trial court was right in directing a verdict for the plaintiff and entering judgment thereon. The assignments of error are dismissed.

Judgment affirmed.