author: Willard, J.,

text:
    Simon Gibbs, Almira F. Gibbs, Appellants, v. Nancy B. Tiffany, Wm. B. Tiffany and Julia A. Tiffany.

      Husband and wife — Tenancy per my et per tout — Estoppel.
    Where husband and wife are seized of laud per my et per tout the wife is not estopped by reason of an alleged arrangement made by the husband to induce a purchase of the property at a sheriff’s sale on a judgment which was not a lien against the property, there being no evidence of her presence at the interview or of any knowledge of it by her, or of any authority by her given to her husband to act for her in the premises.

      Ejectment — When adverse title may be set up by alleged ter re-tenants.

    A judgment on a scire facias quare executionem non against one whose interest in the land was not bound by the lien of the judgment, although summoned as a terre-tenant will not preclude such party from setting up his adverse title in an ejectment brought by the sheriff’s vendee.
    Argued Jan. 19, 1897.
    Appeal, No. 37, Jan. T., 1897, by plaintiffs, from judgment of C. P. Bradford Co., Sept. T., 1890, No. 241, on verdict for defendants.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Ejectment for lot in the borough of Athens. Before Dun-ham, P. J.
    The facts are sufficiently disclosed from the charge of the court, which is in part as follows:
    The plaintiffs in this case have brought an action of ejectment for a certain, lot in the borough of Athens in this county, described in the writ of ejectment and designated as lot No. 11, and in support of their title they have shown, first, by the admissions of the plaintiffs, and the defendants, that John M. Pike was at one time the owner of that piece of land. They have produced a contract which has been given in evidence here, by which Mr. Pike agreed to sell to Mr. Gibbs lot No. 11, for the consideration of two hundred dollars. They have given evidence here showing that upon that contract there were indorsements made of payments, which the witness on the stand has testified to, and said that they were made about the date that the receipts bear, by which, if you believe the evidence, it is established that this land was paid for in full on the 19th day of January, 1883. They have also given in evidence a deed dated July 31,1884, by which John M. Pike deeded lot No. 10 and lot No. 11 (lot No. 11 being the one in controversy), to Simon Gibbs and Almira F. Gibbs. This would make a perfect title in the plaintiffs in this case to lot No. 11, if there were no other question in the case, and establishes the plaintiffs’ claim prima facie.
    On the part of the defendants they have given in evidence a judgment against John M. Pike and O. W. Canfield, which was entered December 3, 1883, in favor of Grant and DeWaters of Elmira, N. Y. They have also given in evidence a scire facias upon that judgment, which is a proceeding to revive the judgment, upon which notice to Simon Gibbs and Almira F. Gibbs, as terre-tenants, was served upon them by the sheriff, and judgment was taken under the rules of court, for want of appearance, against the defendants in that judgment, John M. Pike and C. W. Canfield, and also judgment against the terre-tenants, Simon Gibbs and Almira F. Gibbs.
    Some questions have been raised in this case as to the regularity of that judgment. That the judgment was not entered according to the act of assembly alid the proper practice, there is no doubt, but we think that under the circumstances, there having been a sale of this property and the deed acknowledged without objections on the part of anyone, this revival of judgment against Pike and against Simon Gibbs and Almira F. Gibbs, as terre-tenants, revived the judgment so that it was a lien against the lands the same as the original judgment was. Whatever the original judgment was a lien against, the revival of the judgment was a lien against, and we think that the authorities that have been cited and commented upon in this case by the counsel upon both sides establish the proposition of law that the revival of a judgment against a terre-tenant who has been served with notice is binding upon the terre-tenant to the extent of establishing exactly the same judgment and the same lien that the original judgment held and bound. In other words, that when a person is summoned as a terre-tenant, it is his duty to come into court and show everything that- has occurred since the rendition of the original judgment, either in the shape of the payment or release of that judgment or any other thing that would take his lands out from under the lien of the original judgment, and he is bound to show those things upon the scire facias to revive. But the entry of a judgment to revive against a terre-tenant does not revive the original judgment or make it a lien to any greater extent against the terre-tenant than the original judgment was, and it is only revived as against the interest of the defendants in the real estate which the first original judgment bound. So that when this judgment was revived against John M. Pike and C. W. Canfield, and Simon Gibbs and Almira F. Gibbs, as terre-tenants, it bound exactly the same thing and exactly the same interest of these terre-tenants which was bound by the original judgment when it was entered. If lot No. 11 had been bought by articles of agreement and paid for before the original judgment against Pike and Can-field was entered, then the original judgment was not a lien against lot No. 11, because the only interest that John M. Pike had in the real estate which he had contracted to sell to Simon Gibbs was the legal title which he held, and he held that in trust for his vendee, under the articles of agreement, to convey to that vendee whenever the vendee had complied with the terms of the contract, and if he had complied with the terms of the contract as to lot No. 11, then Pike had no interest in lot No. 11, and his judgment would not be a lien against it. So that if you find that Mr. Canfield testified truly when he said that the contract was paid in full January 19, 1883, then the judgment that was entered by Grant and DeWaters against Pike and Canfield, and Simon Gibbs and Almira F. Gibbs, as terre-tenants, would not be a lien -upon, and they could not sell, lot No. 11 in that way.

      But there is another thing that comes into this case, which has been testified to upon the part of the defendants by Mr. Maynard, and that is, at the time the sheriff’s sale was made of the real estate of Mr. and Mrs. Gibbs an arrangement was made between Mr. Gibbs- for himself, at least, with Mr. Tiffany, by which Mr. Tiffany was to buy that property and pay the debts not only of Mr. Gibbs but of Mr. Gibbs and wife, and to hold the property in trust for Mr. Gibbs until Mr. Tiffany had been repaid the amount that he had advanced or was compelled to pay, and they claim that that estops Mr. Gibbs from setting up the want of regularity and the want of lien as against Mr. Tiffany, the purchaser at sheriff’s sale. On the other hand it is claimed by the plaintiffs in this case, that by this conveyance of land to Mr. and Mrs. Gibbs each one of them was not only seized of each and every part of the land, but that they were seized in such a way that upon the death of one the whole title went to the other. That they were seized of each and every part of it per my et per tout. That they were tenants in such a way that at the death of one the whole estate would survive' to the other, and the purchaser of the right of one of these tenants would only get the right of that tenant during life, and that if he or she died before the other then the purchaser of that interest would get no interest whatever. But we say to you that if these plaintiffs were in possession and these defendants were attempting to obtain possession of the lands under that sheriff’s sale, that they could not be allowed to obtain possession, because the judgment was not a lien against them. [But in this case they are seeking the offices of the court to compel these defendants to yield to them the possession of lands which, if the evidence in this case is believed, they induced the defendants to purchase, and we say to you that you could not give a judgment which would allow one of these plaintiffs, Mrs. Almira F. Gibbs, to come in and obtain possession without also allowing Simon Gibbs, the other plaintiff, to come in and have possession, the same as his cotenant; and if you believe the evidence of the defendants, that there was such an arrangement made at the time of this sale, you would be justified in saying that at the time this summons in this case was issued the plaintiffs were not entitled to recover, not having repaid to the defendants the amount of purchase money which they had induced the defendants to pay for them.] [4] We say to you that if you find that there was no such arrangement made, and that this property was paid for before the entry of the original judgment, you should find for the plaintiffs the land in controversy. [If, on the other hand, you find that the property was paid for before the judgment was entered, but that at the time the sheriff’s sale was made there was that arrangement between Mr. Gibbs, one of the plaintiffs, for himself and for his wife, and he secured the debts of himself and wife to be paid in that manner, then he would be estopped from setting up the want of lien of this judgment upon the land, and then you should find for the defendants.] [5]
    We have been requested by the counsel for the plaintiffs to charge you that under the evidence the verdict must be for the plaintiffs. This we refuse, and leave it to you, under the evidence.
    We have also been requested by the counsel for the defendants to charge you that under the evidence in the case your verdict should be for the defendants. That we also decline, and leave it to you, under the general instructions that we have already given you.
    Verdict and judgment for defendants. Plaintiffs appealed.-

      Errors assigned were (1) in admitting in evidence transcript of judgment dated December 8, 1883,— Grant et al. v. Pike et al. from the docket of justice of the peace, which was objected to on the ground that the judgment offered was long after the land was sold and paid for by the plaintiffs in this case; (2) in admitting the following offer of evidence, the witness H. F. Maynard, being on the stand: Mr. Evans: We offer to prove by the witness on the stand that he was present at an arrangement between W. B. Tiffany, the original defendant in this case, on the one side, and Simon Gibbs and Almira Gibbs, his wife, the plaintiffs in this case, by which arrangement Mr. Tiffany was induced by Mr. Gibbs and wife to purchase the land in question at the sheriff’s sale, which has been given in evidence in this case, for the purpose of showing that the plaintiffs in this case are estopped from denying the title of the defendants in this case to the land in question. (Witness examined as to the admissibility of his evidence by permission of court); (3) in refusing plaintiffs’ point asking for binding instructions for the plaintiffs; (4, 5) to portions of the judge’s charge, reciting same.
    J. O. Ingham, with him HA. Overton, for appellants.
    — On a conveyance of a husband and wife as tenants in common both become' seized of the entirety, and on the death of either the •whole estate goes to the survivor, irrespective of the intention of the parties to the conveyances: Bramberry’s Estate, 156 Pa. 628.
    • There is not a scintilla of evidence to justify the portion of the judge’s charge assigned for error in the fourth assignment, and it was, therefore,- error to submit that question to the jury. If authority is needed see Whitehall v. Wilson, 3 P. & W., 405, and Thompson v. McGaw, 2 Watts, 161, down to the latest decisions when the question has arisen.
    Where husband and wife hold by entireties, a purchaser at ¡ sheriff’s sale of the husband’s interest is not entitled to posses- " sion against the wife : McCurdy v. Canning, 64 Pa. 39.
    1 At the time the DeWaters’ judgment was entered the plaintiffs were in actual, open and notorious possession of the lot a-nd had paid for lot No. 11 in full. This was equivalent to deed on record: White v. Patterson, 139 Pa. 429.

      ■ The revival of a judgment against one as terre-tenant, even when he is an actual terre-tenant, cannot make its lien any ■more binding and extensive than it was against the same land in the hands of the defendants in the judgment: Drum v. Kelly, 34 Pa. 415; Dengler v. Kiehner, 13 Pa. 38.

      H. F. Maynard, with him I. N. Evans, for appellees. — The records established such privity of relation as warranted the creditor in citing Gibbs as terre-tenant: Colwell v. Easley, 83 Pa. 31; Colburn v. Trimpey, 36 Pa. 465.
    ■ The appellants being terre-tenants they are now estopped from setting up unrecorded articles of agreement to the prejudice of the purchaser at sheriff’s sale: Meehan v. Williams, 48 Pa. 238.
    The law is well settled that a married woman is responsible for her representation and conduct. In the present case the wife takes the money, or what is the same thing, uses it to pay her debts without exception: Wilson v. Howser, 12 Pa. 116; 1 Story’s Eq., sec. 386; Jobe v. Hunter, 165 Pa. 5.
    February 16, 1897:
    There is nothing in the evidence of Maynard of a confidential nature between himself and Gibbs, but the whole talk was in the presence of Tiffany at the request of Gibbs: Beeson v. Beeson, 9 Pa. 279.
   Opinion by

Willard, J.,

This was an action of ejectment by Simon Gibbs and Almira F. Gibbs, his wife, to recover the possession of a lot of land designated as lot No. 11 on a plot or subdivision of land in the borough of Athens in the county of Bradford. The lot was purchased by Simon Gibbs on October 11, 1878, from John M. Pike by articles of agreement, the purchase money being fully paid on January 19, 1883. On December 3, 1883, judgment was entered in the court of common pleas of Bradford county against Pike in favor of Grant and DeWaters. Subsequently a writ of scire facias 'was issued on this judgment against Pike as defendant and Simon Gibbs and Almira F. Gibbs as terretenants, and duly served. On January 9, 1889, judgment was entered on the scire facias against all the defendants for want of appearance.

How did this judgment affect lot No. 11? When the original judgment was entered against Pike he had no interest in the land. He had sold it and received his pay in full. He oiyed a duty to his vendee of executing and delivering a deed as he had agreed to do, but the judgment did not attach to the duty unperformed so as to make it a lien upon the land. It is true that Gibbs and wife did not receive their deed until July 31, 1884, but when the judgment was entered against Pike they were in full possession, living upon the lot with articles of agreement with purchase- money fully paid thereon. Their possession was sufficient notice for the protection of the title, and the plaintiffs in the judgment and the subsequent purchaser at sheriff’s sale were bound by the notice as completely as though their deed had been recorded at the time: Rowe v. Ream, 105 Pa. 543; Hottenstein v. Lerch, 104 Pa. 454; White v. Patterson, 139 Pa. 429.

Gibbs and his wife were not terre-tenants. The defendant Pike, from whom they purchased, must have had some interest in the land at the time' of the entry of the original judgment to make them such. He had none. Therefore the judgment was never a lien upon the land and the judgment against them as terre-tenants did not make it a lien. They are not estopped by the judgment from claiming title against the purchaser at sheriff’s sale thereunder: Mitchell v. Hamilton, 8 Pa. 486; Dengler v. Kiehuer, 13 Pa. 38; Helfrich’s Appeal, 15 Pa. 382; Drum v. Kelly, 34 Pa. 415.

It follows that the sheriff’s sale of December 5, 1889, under the judgment passed no title to the property to W. B. Tiffany, and the trial judge substantially so instructed the jury. The deed from John M. Pike was made to Simon Gibbs and Almira F. Gibbs, and so recorded on September 30, 1885. By this conveyance they became vested with the title as tenants by entire-ties. It is claimed that the appellants are both estopped by their acts and conduct from questioning or denying the title obtained by Tiffany at the sheriff’s sale.

The evidence shows that on the day of the sheriff’s sale Simon Gibbs met W. B. Tiffany in the office of Mr. Maynard, who appears to have been acting as attorney for both parties at the time. The object of this meeting was primarily for the purpose of raising the sum of sixty-two dollars ($62.00), the balance of the purchase money owing by Gibbs on the contract with Pike for lot No. 10. After an-inspection of the record by the two parties and ascertaining the amount of judgments and mortgages against the property, Tiffany refused to advance the amount requested. Afterwards, it was arranged -that Tiffany should bid off the property in his own name subject to some future agreement to be entered into at a meeting between Gibbs and Tiffany in the office of Mr. Maynard, the attorney, which subsequent meeting for that purpose, the evidence shows never took place. The allegation that Simon Gibbs induced Tiffany to purchase the property rests upon a very slender foundation under the evidence. It is true that Tiffany bought the property at sheriff’s sale for the consideration of fifteen hundred and ten dollars ($1,510), which amount of money was ■applied by operation of law to the payment of mortgages and judgments against Simon Gibbs and his wife. From a careful consideration of the testimony in the case, there is absolutely no evidence that Almira F. Gibbs was present at the meeting between her husband and Tiffany, or that she knew anything that transpired between them. Nor is there any evidence that Simon Gibbs was acting by her authority, knowledge or consent. The learned trial judge instructed the jury that if the evidence was to be believed Simon Gibbs and Almira F. Gibbs both induced Tiffany to purchase the property at sheiiff’s sale. The jury were further instructed as follows : “ If you believe the evidence of the defendants, that there was such an arrangement made at the time of this sale, you would be justified in saying that at the time the summons in this case was issued, the plaintiffs were not entitled to recover, not having repaid to the defendants the amount of purchase money which they had induced the defendants to pay for them.” By this language the jury were instructed that there was evidence that Almira F. Gibbs induced Tiffany to purchase the property and they might have been misled as to the conduct of Mrs. Gibbs. As there was no evidence, as before stated, that Mrs. Gibbs took any part in the transaction or had any knowledge of it, the instruction was erroneous.

Almira F. Gibbs had joined in executing two mortgages with her husband upon lots Nos. 10 and 11. The two lots were sold on the judgment against Pike in which Gibbs and wife were named as terre-tenants. They were terre-tenants as to lot No. 10,. but not as to lot No. 11. When the scire facias was issued and served upon them as terre-tenants, there was unpaid purchase money due Pflce on the contract for lot No. 10, but not on lot No. 11. The sheriff’s sale conveyed a good title to Tiffany to lot No. 10, but no title as to lot No. 11. The fact that the money derived from the sheriff’s sale was used in payment of liens in their order as they stood upon the record, some of which were against Almira F. Gibbs, did not estop her from questioning the title under the sheriff’s sale to lot No. 11. The property was not sold by virtue of executions issued upon judgments obtained upon the mortgages, but upon a judgment which never was a lien upon lot No. 11. The mere application of the moneys in court to the payment of debts created by mortgages in which she was joined as a party with her husband, does not estop her from asserting title to her own property which did not pass by the sheriff’s sale. Tiffany, the sheriff’s vendee, had full notice of her title, and if he was misled it was no fault of Mrs. Gibbs.

The judgment of Grant and DeWaters against John M. Pike et ah, was properly admitted, and its effect and the sheriff’s sale thereunder, as explained by the court, did the appellants no harm. The admission of the testimony of PI. F. Maynard under the offer as made was unobjectionable and was properly admitted. The first and second assignments of error are overruled ; the third, fourth and fifth are sustained.

The judgment is reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Reeder, J.,

license: Public Domain

text:
    George Kircher, Appellant, v. Mrs. E. E. Sprenger.

      Promissory note given by widow for husband's debt — Consideration.
    A noto given by a widow for the payment of a debt due from her deceased husband’s estate, which estate is insolvent, is void in law without a new consideration; and such consideration will not be raised by an agreement on the part of the creditor that the note will be renewed from time to time after maturity: Leonard v. Duffin, 94 Pa. 218; Bentley v, L^mb, 112 Pa. 480, distinguished.

      Question for jury — Evidence—Oral statement of interested witness.

    Where in an action brought on a note given by the widow for the husband’s debt the case turns on the insolvency of the husband’s estate, although the weight of the evidence may very strongly indicate his insolvency at the time of his death, yet when it depends entirely upon the widow’s testimony, since her credibility is a question wholly within the province of the jury it should have been submitted to them to pass upon, and it was error for the court to direct a verdict for defendant.
    Argued Nov. 11, 1896.
    Appeal, No. 19, Nov. T., 1896, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1894, No. 82, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Appeal from judgment of justice in favor of the plaintiff 1233.74. Before'Livingston, P. J.
    This suit was upon a promissory note, given by Mrs. E: E. Sprenger, a widow, to George Kircher. Upon the trial of the case, the plaintiff offered the note in evidence and rested. The defense was that the note was given to lift a note of George F. Sprenger, deceased, the late husband of the defendant, and she was not responsible, as he died without leaving any estate.The plaintiff then offered to show, that Mrs. E. E. Sprenger, defendant, as administratrix of the estate of said George F. Sprenger, deceased, had given a large bond, and that said decedent had left personal property. The defense proved he had left no estate by the oral testimony of defendant herself. The plaintiff was called.to show decedent had an estate at the time of his decease, which evidence the court below refused to credit. The court below refused to leave the evidence and credibility, of the witness to the jury, but gave binding instructions to the jury, to render a verdict for defendant.
    The court directed a verdict for defendant, charging inter alia as follows:
    So that there is no evidence here at all that any estate was. left by George E. Sprenger. The fact of taking out letters of administration don’t show there was any estate; no inventory was filed, nothing done. They produce no account; they do not produce any witness who shows there was any estate. She tells you that the horses this man, Kircher, speaks of, she mortgaged her own property for the payment of them; they were hers, and she used them in her own business which she has now sold out. [3]
    Verdict for defendant. Plaintiff appealed.

      Error assigned, inter alia, was (3) to portion of the judge’s charge, reciting same.

      B. F. Davis, for appellant.
    — The note in suit was for a valu-’ able consideration, and the only parallel case we have been able to find in Pennsylvania which we think governs this case is Reily v. Dean, 36 Leg. Int. 304.
    On the question of consideration cited Paxson v. Nields, 137 Pa. 385.
    The case should be left to the jury: Kelly v. McGehee, 137 Pa. 443; Grambs v. Lynch, 20 W. N. C. 376; s. c., 4 Penny. 243.
    It is settled law that where a case depends upon oral testimony such testimony must be presented to the jury: Lamb v. Irwin, 69 Pa. 436.

      J. Say Brown, with him W. U. Sensei, for appellee.
    — The widow was Tinder no moral obligation to pay the debí of her husband by a promise to do so made since his death: Paxson v. Nields, 137 Pa. 385.
    February 16, 1897:
    On the question of lack' of consideration cited Williams v. Nichols, 76 Mass. 83; Hetherington v. Hixon, 46 Ala. 297; Watson v. Reynolds, 54 Ala. 191; Bryan v. Philpot, 3 Ired. 467; Mansfield v. Corbin, 56 Mass. 151; Cook v. Bradley, 7 Conn. 57; Rowland v. Harris, 55 Ga. 141; McElven v. Sloan, 56 Ga. 208.
   Opinion by

Reeder, J.,

The law of this case is established by the decision in Paxson y. Neilds, 137 Pa. 385, and if the fact was unquestioned and undisputed as to the insolvency of the husband this judgment would have to stand. The only assignment of error which has any merit is the third. Here it is claimed that the court below erred in not submitting to the jury the question of the insolvency of the defendant’s husband, of whose estate she was the administratrix.

It is true as the learned court says, that no inventory was filed, no account presented and no witnesses produced to show that there was any estate ; it is also true that the defendant herself testifies that he had a horse and some bottles in his possession at the time of his death, and that she does not know where he got the money to pay for the horse and the bottles, and that that was all the estate that her husband left at the time of his death; she testifies at another time that he had three horses at the time of his death, and in another place that he had some mules and bottles, and that she mortgaged her property to pay for them, and that they were her property and not that of her husband.

Under this testimony the weight of the evidence might very strongly indicate the insolvency of the defendant’s husband at the time of his death, and yet, as it depends entirely upon her testimony, and her credibility is a question wholly within the province of the jury, it should have been submitted to the jury for them to pass upon.

In the case of Reily v. Dean, 36 Leg. Int. 304, it was held by the learned court below that the plaintiff, Mrs. Reilly, who had been induced to’apply her personal means to the payment of her husband’s debt and the relief of his estate, and the note to the plaintiff in that ease had been given in pursuance of that resolution and so accepted, that the court could not therefore saj*- that there was no consideration for the note in suit. This was affirmed by the Supreme Court in a per curiam decision. Applying the law as laid down in that case to the present case it clearly indicates that there was a valid legal consideration for this note given by Mrs. Sprenger for her deceased husband’s debt, if he was solvent at the time of his death. The sole question of fact, therefore, for the jury to determine was whether or not he was insolvent. There were certain facts indicating his insolvency which appeared in the testimony of Mrs. Sprenger, the defendant; she explained these facts, and said that the property that he died possessed of was partly her property and that he died actually insolvent; no inventory or account of his estate was filed by her as administratrix. Whether a jury would credit her statement or not — whether her explanation is true or not was a question for a jury to determine, and not for the court, and therefore should have been submitted to them.

The Supreme Court say, in Kelly v. McGehee, 137 Pa. 443, “ "While the evidence tended to sustain the plaintiff’s claim, it was clearly the province of the jury and not of the court to consider the testimony and determine the facts.

In Grambs v. Lynch, 4 Penny. 243, the court below charged, “Where a witness goes upon the stand and swears positively to a fact and that fact is not contradicted, it is established and there is nothing to submit to a jury. We say to you that there is nothing in this case for you to pass upon, save only to agree upon a verdict in favor of these defendants,” and this was assigned for error, and Judge Paxson, in commenting upon this portion of the charge so assigned says, “ This is an erroneous statement of the law. There is the question of the credibility of the witness, and this cannot be taken from the jury; it is their duty to-credit a witness if there is no good reason to the contrary. But the mere manner of a witness may discredit him with the jury, and his story may be so against all the probabilities of the case that a jury is justified in not believing him. It is well settled law that where a case depends upon oral testimony such testimony must be submitted to the jury. Authorities are hardly needed for so obvious a proposition.”

The third assignment of error is therefore sustained and the judgment is reversed, and a venire facias de novo awarded.


author: Wickham, J.,

text:
    Jacob May, Appellant, v. Mayer Troutman.

      Partnership ownership of real estate — Tenancy in common.

    Real estate, purchased and used as partnership property, does not constitute the owners tenants in common; after the active prosecution of the business is discontinued, the partnership affairs not having been finally settled, it remains a partnership asset, in the absence of proof of conversion by settlement of the partnership affairs, or otherwise.

      Partnership — Lease of real estate — Authority to lease.

    One partner, having been expressly authorized to effect a proposed advantageous lease, of partnership real estate which was partly occupied, to the knowledge of both parties, by a tenant under an unexpired lease, will be held to have authority to buy out the unexpired term and to deduct the sum so paid from the rent collected, provided the sum so paid is reasonable.

      Practice, Superior Court — Defective assignment.

    An assignment which designates error in the answer to a point is defective under Rule XYI. and will not be considered where it not only fails to set out the point totidem verbis and as required, but does not even set out the same in substance.
    Argued Dec. 16, 1896.
    Appeal, No. 134, Nov. T., 1896, by plaintiff, from judgment of C. P. No. 1, Pbila. Co., March T.; 1895, "No. 1268, on verdict for defendant.
    Before Willard, Wickham, B'eaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit for money had and received. Before Biddle, P. J.
    The facts sufficiently appear from the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) in refusing to affirm plaintiff’s first point, which was as follows: “That said plaintiff and said defendant, being tenants in common of the premises No. 312 Market street, the said defendant without the knowledge and consent of said plaintiff had no authority in law to expend and apply the proportion and share of said rents due to said plaintiff from the tenant in possession under the lease dated the 13th of November, 1894, without proof that the same was absolutely necessary and provided for in the said agreement of lease. (2) In refusing to charge the jury as requested by the second point, submitted by the plaintiff and in charging the jury as follows:
    February 16, 1897:
    “ That as Mr. May signed a lease under date of the 13th of November, 1894, leasing from the first day of January, 1895, for five years, the whole of the premises to John M. Maris & Co., knowing that part of the premises had been let to William D. Munier & Co., and that their term did not expire until the 1st of January, 1896, Mr. Troutman had a right to suppose that he had authority from his partner to enter into an arrangement with Munier & Co. to enable him to give up possession to Maris & Co. on the day named, and to pay a reasonable amount to him to bring about that object, of which he himself paid one half.” (3) In charging the jury to find a verdict for defendant.

      Joseph L. Tull, for appellant. •

      Emanuel Furth, with him Jacob Singer, for appellee.
   Opinion by

Wickham, J.,

Jacob May and Mayer Troutman, at one time partners in the mercantile business, together owned and held, as a partnership asset, certain real estate, being a store property on Market street in Philadelphia. That it was partnership property is shown by the plaintiff’s own testimony, no deeds or written agreements being offered in evidence on either side, hence the assumption of his counsel, that the parties were ordinary tenants in common and must be deemed such in determining their rights as between themselves, is not warranted.

The property was valuable, but for two years prior to October, 1894, the owners were unable to rent any part thereof, except the third floor which was leased to one William D. Munier. About the 1st of August, 1894, May went to Salt Lake City, where he remained until March, 1895. Before starting, he had the following conversation with Troutman, according to the undisputed testimony of the latter: “ Troutman, I am tired of having that store empty; you take hold of it and put your sign out, and try to rent it, because it is a good location.” Trout-man replied: “ That store is in very bad condition, some rain has come in. If you would like me to put it in order, I will.” May said r “ Go ahead and have everything put in good order and see if you can get it rented.”

Early in October, 1894, J. M. Maris & Co., who seem to have been regarded as very desirable persons for tenants, looked at the building with a view to rent it. They insisted, however, on having the whole building, and also that certain improvements should be made by the owners. Thereupon Troutman wrote May, telling him of these facts, also stating that Munier was absent, that he had written him asking him to vacate, and expected an answer in a few days. On October 22, 1894, May telegraphed, in answer, as follows: “ Rent the store, and if possible get from the party the interest of cost of elevator included in the rent.” The following mpnth, a lease for five years, at an annual rental of $3,700, to take effect January 1, 1895, Avas made to J. M. Maris & Co. It Avas signed by Trout-man in Philadelphia, and by May in Salt Lake City, and returned to Troutman for delivery. In order to get Munier out, Troutman was obliged to release him from rent amounting to $200, and pay him in cash a like sum.

While the lease was used and referred to at the trial by the court, counsel, and witnesses, strangely enough it is not printed in either appellant’s or appellee’s paper-books. We gather from the testimony that it contained stipulations, that the lessors should put in an elevator and have the interior of the building kalsomined. In addition, it appears, that Troutman under a separate contract with the lessees, had the exterior painted. This, Ave think he had a right to do under the authority given him by May to “ go ahead and have everything put in good order.” Even without such special authority, he could, under the circumstances, do what was reasonably necessary to save the building from dilapidation or make it productive until sold or otherwise converted, and deduct the cost from the rents; it not having been shown that the partnership affairs had been finally settled between the ex-partners. It must be borne in mind, that city merchants of aity standing, and able to pay big rents, object to doing business in a shop or store having a dirty and dilapidated exterior.

Coming noAV to the item of $200 paid Munier, and which seems to be the real bone of contention betAveen the parties, we are of the opinion that the trial judge was right in holding, that Troutman had the power to make this payment for himself and May, and that the only question for the jury, in relation thereto, was as to the reasonableness of the amount. When May, in answer to Troutman’s letter, telegraphed him on October 22, 1894, to rent the premises, he knew that some arrangement would have to be made with Munier, else the lessees in view could not be secured. When he signed the lease, he must have known that if it were delivered, and he of course returned it for delivery, unless Munier could be induced to leave, he, May and his partner, would be liable to the lessees in an action for damages. It can hardly be supposed that he expected Trout-man to throw Munier out by main force contrary to law, or remove Mm by some method of hypnotic suggestion. His words and conduct must be deemed sufficient authority to Troutman to make any reasonable bargain with Munier to quit the premises, leaving entirely out of the question Troutman’s implied general authority as a partner.

Thus far we have considered the case broadly on its merits, more so indeed than the assignments of error require. Turning to the assignments of error, the first complains of the refusal of the court to affirm the plaintiff’s first point. This point was’ properly refused for two reasons: first, because it assumes, contrary to the evidence, that the plaintiff and defendant were tenants in common in the ordinary sense of the word; and second, because the uncontradicted evidence as to the authority given the defendant by the plaintiff, before the latter started for Salt Lake City, to put the premises in good order, is wholly ignored. Even if the parties were tenants in common, in the strictest sense, the authority thus conferred would be sufficient, it not being contended that the painting, the only improvement not specifically required by the lease, was not fairly necessary or that it was too costly.

The second assignment will not be considered, as it offends against Rule 16 of this court, which providés that where the error charged relates to the answer to a point, the point must be quoted totidem verbis. The assignment alleges error in refusing the plaintiff’s second point, which is not set forth even in substance. Incidentally we may say that the answer to this point, looking at all the evidence, was correct.

The third assignment, viz : “ That the court erred in charging tbe jury to find a verdict for the defendant,” is based upon a misapprehension of the charge. The learned trial judge did not give binding instructions to the jury, but left it to them to decide whether the payment to Munier was reasonable or otherwise. This fell short of telling them, without qualification, to find for the defendant.

The specifications of error are all overruled and the judgment affirmed.


author: Smith, J.,

text:
    Estate of William Stevenson. Appeal of William S. Stevenson, et al.

      Mortgage — Act of April 18,1853, P. L. 503 — Condition precedent to leave of court.

    Leave to mortgage should not be given when the proceedings to obtain such leave make no distinction between the cost of necessary repairs and the cost of additional improvements, and fail to disclose what proportion of the latter should be borne by the life tenant and the estate in remainder respectively. The court in granting leave to mortgage must bo advised as to whether the proposed alterations or improvement will not only be advantageous to the remainderman but of greater cost than the life tenant should bear. The evidence should be sufficiently full to enable the court to frame a decree specifying with sufficient fullness and certainty how and in what proportions the loan should be paid. To this end the' court must be informed ; (1) as to probable duration of life estate; (2) whether the necessity is due to neglect of trustee to keep premises in repair; (3) whether proposed alterations are to the benefit of the remaindermen or principally for that of the life tenant; (4) whether they will outlast the expectation of the life tenant or become useless before the expiration of the life estate. In any of these cases the burden should fall only on the life estate. Any permission to mortgage under these conditions would be in relief of the life tenant at the expense of the remaindermen.

      Price act — Mortgage when permitted — Remaindermen considered.

    Proceedings looking to a mortgage, under the Price Act, can only be had when it is clearly made to appear that such mortgage will be for the interest and advantage of those interested and without injury and prejudice to any trust for which the real estate is held.
    The statute limits the power of the courts so as to preserve the constitutional rights of property and contemplates the conveyance or mortgaging of real estate only when advantageous to all concerned.
    Argued Oct. 20, 1896.
    Appeal, No. 18, Nov. T., 1896, by William S. Stevenson, et al., from decree of O. C., Phila. Co., Oct. T., 1887, No. 480, granting leave to mortgage under the Price Act.
    February 16, 1897:
    Before Bice, P. J., Willard, Wickham, Beaver, Orlady and Smith, JJ.
    Reversed.
    Petition for leave to mortgage under Price Act. Before Ashman, J.
    William Stevenson died in 1887 leaving by will real estate in trust for certain life estates with remainder over.
    The life tenants applied for leave to mortgage under the Price Act. It appears from the evidence taken in support of the petition that the house for a long time rented for $25.00 per month and had been permitted to fall into bad repair; that the character of the neighborhood was changing, and-that an alteration from a dwelling house to a store would advantage the life tenant. That some of the money borrowed was needed to make good the neglect of years in keeping up the property. The remaindermen objected to the allowance of mortgage.
    Other facts appear in the opinion of the Superior Court.
    The court below granted the prayer of the petition in an opinion by Ashman, J., reported in 5 Dist. Rep., 5.

      Error assigned was to the decree of the court below in granting the prayer of the petition.

      B. E. Fisher, for appellants.
    -’-The tenant for life is bound to keep down ordinary charges for taxes and repairs, out of the rents and profits of the estate: Cairns v. Charbert, 3 Ed. Ch. Rep. 312.
    A tenant for life has no power to bind parties in remainder who claim by title paramount: Hill v. Roderick, 4 W. & S. 221; he is even chargeable with the expense of a pavement required by municipal ordinance: Hitner v. Ege, 23 Pa. 305.
    There is no claim here for betterments to preserve the property, but pure and simple to alter the property to secure an increased rental, while nearly or altogether one half of the sum asked for is required to have the ordinary repairs required done.

      Chapman Chapman, for appellees.
   Opinion by

Smith, J.,

This proceeding was instituted in the orphans’ court on the petition of the beneficiaries of a trust created by the will of William Stevenson, under which, they are entitled (inter alia) to the net income arising from a certain tenement known as No. 235 Callowhill street, in the city of Philadelphia. The petitioners aver that the property is now used as a dwelling house, renting for $25.00 per month; that if altered and converted into a store property it could be rented more easily and for a larger sum; and that the change would improve and benefit the trust estate. They therefore ask the court to authorize the trustee under the will to borrow $500 to be expended in thus altering and improving the building, the loan to be secured by a mortgage on the premises. The petition further avers that the trustee, E. A. Miller, believes that the improvements would be for the benefit of the estate, and “ so far as he is concerned, he submits himself to the order of the court; ” and he also “ answers ” to the same effect.

The respondents, representing the estate in remainder, contend that the petitioners have merely a life interest in the premises, and say that the contemplated alterations arid improvements would be wholly for the benefit of the life tenants; they seriously doubt whether the contemplated improvements would at all increase the market value of the property; and they ask that the application be refused and the proceedings dismissed.

Upon replication being filed an examiner was appointed who took the testimony of witnesses and made a report; but from the incomplete and fragmentary way in which the case is presented here it is impossible for us fully to discover what the testimony was or what the examiner reported.

• By the terms of the will the entire- estate of the testator is committed to the control and management of the trustee, E. Á. Miller, and, regularly, the proceedings should be by him and in his name. But as all those who have an interest in the estate, including the trustee, appear to have become parties, the cause may be proceeded with as if it had been more regularly begun. It is evidently based on the authority conferred upon the courts by the act of April 18, 1853, commonly known as the “ Price Act,” which provides (inter alia) that whenever real estate is held “by trustees for any public or private use or trust,” and the court “ shall be of opinion that it is for the interest and advantage of those interested therein, that the same should be . . . . mortgaged .... and may be done without injury or prejudice to any trust, charity or purpose for which the same shall be held,” the court shall have jurisdiction to decree the mortgaging of such real estate.

The will provides that the trustee shall let the premises, collect the rents, “ and after defraying all necessary and proper charges thereupon, including repairs, taxes and water rents, to pay the net income ” .to certain persons therein named. The appellees, by devolution and survivorship, succeed to this life estate.

The appellants contend that the dilapidated condition of the building is due to the trustee’s neglect to keep it in repair, although from the death of the testator in March, 1887, until June, 1895, the property yielded a rental of $25.00 per month.

It appears by the testimony of the trustee, E. A. Miller, that from the time of his appointment, March 14, 1891, until June, 1895, he received as rent'$l,100 in cash and a note for $75.00 ; and that during this period he expended $64.85 for repairs. By reference to his father’s accounts he says the property rented for $25.00 per month during the latter’s trusteeship of four years, and that he paid out $67.30 for repairs to the property. From this it will be seen that during these eight years the receipts for rent amounted to $2,375, while but $131.65 was paid out for repairs.' It nowhere appears in the testimony sent here what the taxes and other necessary charges amounted to during that period, but it is quite evident that this property, worth from $2,800 to $3,500, yielded a very good income, from which all needed repairs should have been provided for. What was done with the money received for rent, beyond $131.65, is not stated. The trustee admits that he made very little repairs, and that the place “ is generally in a very bad condition; ” while the testimony relied upon to justify the loan also shows that a considerable part of it would have to be expended in repairs. Both under the law and by the terms of the will it was and is the duty of the trustee to maintain the property in a tenantable condition; and as he admittedly received sufficient moneys to enable him to do this, it would seem that its present dilapidation is due to Iris neglect. To allow him now to restore the property to the condition in which he should have maintained it at the expense of the remaindermen, would be grossly unjust to them.

The trustee is a practicing attorney, and he therefore should know that his duties under the will are not limited to the life tenants or the life estate. Under its provisions he is charged with the care and management of the entire estate, and must have due regard for the rights and interests of the remainder-men as well .as of those in whom its immediate enjoyment is vested. It is his duty equally and equitably to preserve the rights and interests of both the life tenants and the remainder-men, and to neither promote nor allow an impairment of the estate of either for the benefit of the other. Nor can the orphans’ court permit this to be done. Under the constitution, property cannot be taken for private purposes against the will of the owner, either by legislation or judicial decree, directly or by incumbrance. The act of 1853 does not attempt to change or impair vested rights in estates, whether legal or equitable, in possession or expectancy. Proceedings under it are authorized only when “ for the interest and advantage of those interested,” and “without injury or prejudice to any trust ” for which the real estate is held. The statute, plainly, so limits the power of the courts as to preserve to the parties their constitutional rights of property, and contemplates the conveyance or mortgaging of estates only when advantageous to all concerned. The power conferred by the statute should be cautiously exercised; it was not designed to make the estate of one man subserve the interests of another. That some of the life tenants in the case before us may also be co-remaindermen does not affect these controlling principles; their dual capacity cannot enlarge their rights to the prejudice of the rights of others.

Under the circumstances of the present case it may be questioned whether the remaindermen should be called upon to contribute or become liable for any part of the cost of the proposed alterations. However, as the facts are not all before us, we do not now decide that question. No distinction has been made between the cost of the necessary repairs and the cost of the additional improvements, or what proportion of the latter should be borne by the life estate and the estate in remainder, respectively. It will be necessary therefore to send the case back to the orphans’ court in order that the facts may be found upon which these questions can be determined. If that court should be of-opinion that the proposed alterations or improvements will be advantageous to the remaindermen, and of greater cost than the life tenants should bear, a decree should be framed specifying with sufficient fullness and certainty how and in what proportions the loan' should be paid. For this purpose it may become necessary to take further testimony. It will be proper to ascertain with reasonable certainty: (1) The probable duration of the life estate; (2) whether the proposed outlay becomes necessary because of the neglect of the trustee to maintain the premises in a tenantable condition; (3) whether the proposed alterations are such as the trustee should reasonably make for the benefit of the life tenants, without regard to possible advantages to the remaindermen;. (4) whether the improvements may not be worn out, or the changing demands of the neighborhood render them useless, before the expiration of the life estate. In either of these events the loan, if authorized, should be made on the credit of the life estate and the lien restricted to it.

If it should be found to the interest and advantage of both the life tenants and the remaindermen to have the improvements made and the loan effected, and that the cost would be more than the life estate should bear, then the court will determine by its decree what proportion should be borne by each estate, the lien, notwithstanding, to extend to both. Ordinarily, when both estates will be benefited by the proposed improvements, the court should consider to what extent the improvements will remain and benefit the property beyond the termination of the life estate, and this should form the basis of the charge against the remainder.

But it will not be necessary to go into that question in the present case. The income of the property as left by the testator was $300 per year, and this sum, less the taxes and cost of repairs, maybe taken as representing its normal rental value to the life tenants. All of the income, therefore, in excess of $300 per annum, should, in equity be applied on the mortgage loan until it is extinguished. The cost of restoring the property to the condition in which the trustee should have kept it, so far as its restoration may form a part of the improvements, should be ascertained and borne by the trustee, and the proposed loan reduced to that extent. If the trustee has paid this money to the life tenants he may retain it from the net income hereafter accruing to them and apply it on the mortgage. In that event the loan may be permitted for the amount necessary to meet the improvements. After this the sum of $300 per year, which is the amount received from the property when in a tenantab'le condition, may be retained by the trustee from the income, and by him expended in accordance witli the terms of the will. Upon the extinguishment of the mortgage loan, the whole income, after providing for taxes, repairs and proper charges, will be paid by the trustee to the life tenants as directed by the testator.

Any greater allowance to the life tenants would, in effect, be charging the remaindermen with the cost of repairs which it was the duty of the life tenants to pay, and increasing the income of the latter through improvements that may prove unsuitable and wholly useless to the remaindermen. This apportionment takes from the life tenants nothing to which they are entitled, and yet visits the remaindermen with the risk of having to pay a loan which they did not contract, and from which they may derive no benefit.

The decree of the orphans’ court is reversed, and the record remitted for further proceedings in accordance with this opinion.


text:
    Peter Bolz et al., Trustees, etc., v. Joseph Stuhl et al., Appellants.

      Contract of suretyship — Fraud—Failure to disclose material conditions.

    The concealment of a material fact will vitiate a contract of suretyship. When a contract of suretyship is entered into the surety is entitled to know all the material facts concerning it, and if the person for whose benefit the suretyship is contracted conceals any material fact of importance in the determination of the surety to undertake the contract such concealment is a fraud upon the surety and will vitiate the contract.
    Argued Oct. 19, 1896.
    Appeal, No. 56, Nov. T., 1898, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec T., 1893, No. , on verdict for plaintiff.
    Before Rice, P. J., Willard, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit on surety bond. Before Willson, J.
    The plaintiffs were trustees of an unincorporated association in the nature of a saving fund society having for its object the provision for sickness, want and death of its members. The defendant Joseph Stuhl was treasurer from 1870 to 1893, having been reelected annually.
    Defendants submitted, inter alia, the following point:
    1. If the jury find from the evidence that at the time this bond was taken, the treasurer did not have any money in his hand, although on his account, the verdict must be confined to the money paid the treasurer after the bond was given. Answer: I decline to affirm that point. I do not understand the difference exactly between moneys in his hands and moneys in his account. If he had money then in his hands, as I have told you several times, for which he was accountable, for which he had not defaulted, then the plaintiffs are entitled to recover against the defendants, unless the defendants are relieved upon the ground that I have previously stated. [1]
    Other facts are disclosed in the charge of the court, which is as follows:
    This is a suit brought by the trustees of an unincorporated association against two defendants who were sureties upon a bond given by the treasurer of the association. It seems to be conceded upon all points that the treasurer proved unfaithful, and now the trustees ask that under the terms of the bond which the defendants entered into they shall make good to the company the loss to the association to the extent of the amount of this bond.
    I have no question but what the defendants are liable under the terms of the bond, unless there be something to relieve them from liability, which I will refer to hereafter, to the extent or the amount of money which the treasurer may have received during the term for which he was elected, which practically means all the time that he was treasurer after the bond was made, and for any money which he had in his hands at that time.
    I do not think the defendants are liable for any money which he had misappropriated previously, if he misappropriated any.
    It is claimed that he had about $800 in his hands at the time the bond was made. If so, and if he squandered that money or misappropriated it — made away with it — then those sureties would be liable, under the bond, to the extent of the amount of their bond for any other money which came into his hands, unless they are relieved by other circumstances.
    I have said to you that if he did not have that money — if he had it, and if in a previous term he had made away with it, so that he could not be said to have it at that time — if he had defaulted previously — then they would not be liable for the amount of such default, but for the money that he had at the time when the bond was made, and for any other money which came into his hands, I regard them as liable under the terms of the bond, unless they are relieved by other circumstances.
    Now upon that question, if upon the whole evidence you think they are liable, it is for you to settle as to the amount and as to whether or not that money was in the treasurer’s hands at the time when the defendants, the sureties in the bond, entered into the obligation with the trustees which is evidenced by the bond.
    It is claimed, however, on the other side, on the part of the defendants, that there is no liability, because they were imposed •upon and induced to sign this bond fraudulently, and the ground of that claim is this: that the trustees knew that the treasurer had defaulted previously, and failed to reveal that fact to’ the defendants.
    If you believe that evidence, that is, if you believe that the trustee'knew that the treasurer was a defaulter, and then without communicating the fact to the sureties — in other words if they imposed' upon the sureties — if they knew they were getting from them an obligation for a man who had proved to be unworthy — that is, unworthy in the sense of having cheated and defrauded the association — then the liability of the defendants would not exist.
    But a mere knowledge that he was insolvent would not be sufficient to constitute such fraud. It is claimed here on the part of the plaintiffs that, so far as moneys which were in his hands specifically as treasurer were concerned, which it was intended that this bond should cover, they had never been abstracted — that they never knew of anything of the sort; that with reference to. another sum of money, a larger sum of 11,210 or $1,300, there had been some arrangement made which perhaps has not been very clearly set before you, and that on account of that arrangement the treasurer had given a check which was not honored.
    At the same time, it is claimed that he was a man in good standing, that he bore a good name, and that he met demands upon him as treasurer until a much later period, and it is claimed that that circumstance did not inform the trustees of the association that he was a defaulter — that he had misappropriated the funds — that they may be regarded as being fraudulent, unfair, dishonorable, in entering into the obligation with the sureties which was entered into when the bond was made. That is the whole case. I have said that if the sureties, the defendants in this case, are liable under the terms of the bond, and under the circumstances as I have referred to, then they are only liable for the amount of the bond in any case, because you cannot get out of a pecuniary obligation more than there is in it.
    The jury here retired, and after some time returned to the courtroom, where at their request they were further charged by the court as follows :
    I have said to you before what I will attempt to repeat in substance, that the defendants are liable upon the bond given by them for whatever amount was in the hands of the treasurer at the time that bond was made — money for which they are accountable, and which it does not appear he had already misappropriated, and for whatever money came into his hands subsequently, excepting so far as he may have paid it out upon orders for the association, unless the defendants were fraudulently treated in being induced to enter into the bond.
    [I have already told you that what constituted fraudulent treatment was not simply knowledge on the part of the trustees, the plaintiffs in this case, that the treasurer was insolvent — not necessarily that he had given a check which was not paid. It must appear that they were aware of the fact that he was a defaulter; that he had misappropriated or misused the funds of the association which were in his hands, before they can be regarded as having been fraudulent towards the sureties.] [2]
    [As to the amount of money, I said substantially what I will trv to repeat now, that the money must be regarded as being in his hands if it had come there, if it does not appear in some way affirmatively that he had misused it.] [8]
    [As to the $800, or thereabouts, I do not remember any evidence in the case that he had, previous to the time of which the bond was made, parted with it in any improper way. If it was in his hands to be accounted for, if it does not appear that he had misappropriated it, then the sureties on the bond were responsible, if otherwise they were responsible, unless they were relieved from responsibility upon the ground that they had been fraudulently induced to enter into the bond.] [4]
    Verdict for plaintiffs for $600. Defendants appealed.
    . Errors assigned were (1) in declining defendants’ first point, reciting same; (2-4) error in charge of the court, reciting same; (6) in submitting the case to the jury; (7) in allowing judgment to be entered on the verdict.

      Edward A. Anderson, with him John R. Fow, for appellants.
    ■ — If a creditor conceals from the surety the fact that the principal has been a defaulter, the surety will be discharged: Wilmington v. Ling, 18 S. C. 116; Franklin Bank v. Cooper, 86 Me. 179; Harrison v. Ins. Co., 8 Mo. App. 37; Ben. Association v. Smith, 70 Tex. 168.
    The fraudulent concealment of a default by an employee will release the surety: Wayne v. Bank, 52 Pa. 343.
    Silence when it is a duty to speak may be estoppel: Woods v. Wilson, 37 Pa. 379; Logan v. Gardner, 136 Pa. 588; Chapman v. Chapman, 59 Pa. 214; Williams v. Life Assn., 163 Pa. 374; Lynd v. Gas Co., 165 Pa. 518.

      Francis L. Boephe for appellees.
    — The question is, Was the society bound to make known to the appellants the fact of the unpaid check by the treasurer: Bank v. Cooper, 36 Me. 179; Harrison v. Ins. Co., 8 Mo. App. 37; Screwman v. Ben. Assn., 70 Tex. 168; Lee v. Jones, 17 C. B., N. S. 482; Wayne v. Bank, 52 Pa. 343.
    This question has frequently arisen in the Federal courts. The leading case is Bruce and Steele v. U. S., 58 U. S. 437. See also U. S. v. Stone, 106 U. S. 525.
    The same doctrine is followed in Pennsylvania: Beyerle v. Hain, 61 Pa. 226.

      February 16, 1897:
   Opinion by

Reeder, J.,

At the time this bond was given, Joseph Stuhl was treasurer of the plaintiff association and Joseph Hart and George Killian were his sureties upon this, his official bond. The plaintiffs are trustees of a benevolent association in the nature of a saving fund society; Stuhl, as treasurer, was, according to the books of the society, indebted in December, 1892, in the sum of about $2,000 to the society. Part of this money consisted of five shares of the Girard Building Association. It was ascertained upon an examination by the trustees that the stock was not in the building association, and at a meeting between its officers and Stuhl, he agreed to transfer five shares of the stock of the building association, held in the name of his children, to the society in lieu of the five shares which appeared upon the books of the association to be held by the society, but which were not in fact so held, as a reimbursement. He also agreed to give a check for $500, and to give a bond with sureties for $600. The check was given, repeatedly presented for payment and payment refused by the bank upon which it was drawn. At the time of the execution of the bond by the sureties, these facts were concealed from Killian and Hart by the trustees of the plaintiff association.

After the bond was signed, the officers of the society ousted Stuhl from his position as treasurer of the society, and this suit is brought to recover the money, the most of which was defalked by Stuhl prior to the execution of the bond.

The assignments of error raise but a single question for our consideration, viz: Whether the contract of suretyship is a good contract, in view of the silence of the trustees when the bond was signed as to their inability to collect their money from Stuhl, and that Stuhl had given them a worthless check inpaj*ment of their own money supposed to be in his hands, and had transferred to them the shares of the building association, belonging to his children, in lieu of and to replace the stock he was supposed to hold for them in them name.

It might well be held upon the authority of Bennett v. Haley, 142 Pa. 258 and the cases there cited, that this bond did not apply to moneys not in the possession of the treasurer at the time of its execution, but that the contract of suretyship only referred to moneys which might thereafter come into his possession.

The condition of this obligation is : That the above bonnden Joseph Stuhl, shall and will from time to time “ and at all times hereafter, for and during the above mentioned term of office, and for and during any one or more subsequent terms for which he may hereafter be elected treasurer of the said society, and until he shall deliver all the property which he may have received as such treasurer to his successor in office, .... well and faithfully perform and discharge all the duties required of him as treasurer, then this bond to be void; otherwise to remain in full force and virtue.”

In the case of Bennett v. Haley, supra, the condition of the bond was very much like that in this bond, and yet the court there held, that the sum for which the judgment was confessed (under a warrant of attorney) “ was for debts which were such prior to the date of the bond, and which were not covered by its condition. It thus appears from the face of the record, that the judgment was confessed without any lawful authority.”

The contention that this obligation did not relate to moneys which had been defalked or abstracted by the treasurer prior tc the execution of the bond, but only related to moneys which he had in his possession after its execution, we do not propose to consider. Whether it was a contract of suretyship relating to moneys which he had in his possession prior to its execution, or whether it was only a contract to secure the proper appropriation of such moneys as might come into his possession after its execution, it is unnecessary for us to determine. The determination of this question would necessarily lead into the investigation by a jury (if we should decide this contention' in favor of the appellant) of the amount of money which Stuhl had in his possession at the time of the execution of the bond, in order to establish the liability of the sureties. As the consideration and determination of the other assignment of error will finally determine the question without another trial by jury, we prefer to let our decision rest upon that ground alone.

That concealment of a material fact will vitiate a contract of suretyship, is unquestionably the law of this state. When a contract of suretyship is entered into, the surety is entitled fco know all the material facts concerning it, and if the person for whose benefit the suretyship is contracted conceals any material fact of importance in the determination of the surety to undertake the contract, such concealment is a fraud upon the surety and will vitiate the contract.

The court below, in charging the jury, said that if the trustees knew that the treasurer was in default and did not communicate the fact to the sureties, if they knew that they were getting from them an obligation for a man who had proved to be unworthy, that is, unworthy in the sense of having cheated and defrauded the association, then the liabilities of the defendants would not exist. That this is a correct proposition of law, there can be no doubt. But under the facts in the case, we do not think that the charge of the court went quite far enough. Even if the trustees did not know that Stuhl was a defaulter, yet, if from the undisputed facts in the case they had good reason to suspect that he was a defaulter, they were bound to communicate those facts to the sureties at the time they signed the bond, and an omission to do so will relieve the sureties from liability. It is not necessary to cite decisions in support of so W6ll settled a principle. It is in effect saying to the jury, that it was not sufficient for the trustees to know, and knowing, not to communicate, to the sureties the facts that the treasurer was insolvent, that they had endeavored unsuccessfully to collect the money due from him to the society, that they had in their possession his dishonored check for the amount which he was supposed to hold in his possession as treasurer of the society, that they had made repeated efforts to get payment of the check and that payment of it by the bank had been refused, that stock he was supposed to hold for them in a building association he did not have, but replaced by having transferred to them stock owned by his children, but that it must appear that the trustees were aware of the fact that he was a defaulter.

The facts as presented are practically undisputed — his shortage, the dishonor cf his check, that he did not have the funds in his hands to pay the society, that the stock which appeared as part of the invested funds of the society and which was supposed to be in his possession, was not in fact in his possession at all, and that upon a demand for it he had substituted in lieu of it stock held by his children. Even if it were possible under such circumstances, which we believe highly incredible, for any intelligent man not to know of the treasurer’s defalcation, yet, the facts justified such a strong inference of a defalcation, that the withholding of them upon the part of the society from the sureties on this bond, is such a fraud in law as will vitiate the contract.

Judgment reversed.


text:
    Martin Gallagher v. The City of Philadelphia, Appellant.

      Waters and waterworks — Use of waters of Schuylkill river.

    The rights of the public for navigation are superior to those of the city of Philadelphia under the Act of 1807 and its contracts with the navigation company, except as respects the use of water for drinking and domestic uses.

      Waters of Schuylkill river — Damages—Province of court and jury.

    Where the uncontradicted evidence establishes the fact that the owner of a canal boat, navigating the Schuylkill Canal, has suffered delay by reason of the city of Philadelphia pumping water for other than drinking and domestic purposes, the jury was properly instructed that the plaintiff was entitled to recover for the actual, immediate and direct loss.

      Waters and waterworks — Depletion of Schuylkill river— Cause of action.

    The question in a suit against the city of Philadelphia for depleting the waters of the Schuylkill river is whether there was a substantial and injurious interference with ordinary and customary navigation produced by pumping water from the Fairmount pool, for other than drinking and domestic purposes. In seasons of drought the top level of the dam does not necessarily measure the height of water necessary for navigation.

      Depletion of Schuylkill — Special injury — Question for jury.

    Where the undisputed evidence discloses a special and particular injury to a person navigating the Schuylkill Canal it is not necessary to submit that question to the jury.

      Practice, G. P Trial — Answer to point — Charge of court.

    Where the instructions asked for in a particular point are substantially answered in the general charge, the assignment for error of the refusal of that point is untenable. A judge is not obliged to affirm correct legal propositions in the exact phrase asked for.

      Waters and waterworks — Manufacturing and domestic uses of water.

    Manufacturing uses of water do not become domestic uses because the product of the manufacturer is used for domestic purposes.

      Argued, Oct. 13, 1896.
    Appeal, No. 97, Nov. T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 176, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Orlady and Smith, JJ.
    Affirmed.
    Trespass for injuries resulting from the depletion of the waters of the Schuylkill and delaying plaintiff’s canal boat. Before Thayer, P. J.
    The facts sufficiently appear in the opinions of the Superior Court and the court below.
    The defendant submitted the following points:
    ‘■1. The jury must find for the defendant in this case.” Anstver: Refused. [2]
    2. Unless the jury find that the plaintiff has suffered loss or damage differing in kind from that which other members of the navigating public in general, whose boats have been traveling or who may have desired to use their boats on the canal at the same periods when he was detained, suffered from the low condition of water in the Fairmount pool, they must find for the defendant. Answer: Refused. [3]
    3. It was the duty of the Philadelphia & Reading Railroad Company which exercised the franchise of the Schuylkill Navigation Company, not to detain water in the upper pools of its system to an extent inconsistent with the natural and reasonable flow of the stream. If the jury find that the interruption to navigation was the result of an improper detention of the water, and would not have resulted at all if the company had permitted a proper flow down to Fairmount pool, the city should not be held liable for the detentions. Answer: Refused. [4]
    4. Unless the jury find from the evidence that the quantity of water pumped by the city from the Fairmount pool for other uses than domestic uses occasioned the detentions complained of, they must find for the defendants. Answer: Refused. [5]
    5. Domestic uses are the necessary uses connected with the ordinary conduct of life in modern times. Uses of this character are domestic uses even if they are conducted in a wholesale manner for the advantage of many inhabitants of the city. Answer: Refused. [6]
    6. The jury must consider whether the city, by a greater use of the water than it is entitled to make at times when such use might involve obstruction to navigation, diminished the volume of water in the channel below the level to which the navigating public were entitled. If the city did not draw down the water below the level established by the Navigation Company, but only drew off a part of the additional accumulation which the city itself occasioned by raising the dam to hold water for the supply of the inhabitants, no damages can be awarded. Answer: Refused. [7]
    7. No allowance can be made because of the detention of other boats than plaintiff’s, unless the testimony'fairly traces such detentions as the cause of delay to plaintiff’s boat. Answer : The detention of other boats has nothing whatever to do with the case, except in considering the question whether the detention of the other boats caused the plaintiff’s detention, and whether the detention in both cases was caused by any unlawful use of the water made by the city. If the jury find a verdict for the plaintiff, the damages are, therefore, to be strictly confined to the losses directly suffered by the. plaintiff in consequence of the act of the city. [8]
    The charge of the court,, by Thayer, P. J., was as follows:
    This is a very small case when considered in respect to the amount in controversy, which is only about $100. The plaintiff’s claim, I believe, is for the detention of his boat for eight days, which is made up of several items. He claims $8.00 a day for the detention of his boat, and $1.00 a day for feeding his mules, and $3.00 a day for the maintenance of three boatmen during these eight days of detention, which would amount altogether to $12.00 a da}>- fop eight days, which would make $96.00. That is about the extent of the plaintiff’s claim, be}mnd which you would hardly go in allowing damages in this case. So that you see it is a very small case as regards the amount involved, but, in its principles, it is a great case, and one which has in former times engaged the attention and skill of some of the most able lawyers in this city. Two cases similar in all their essential features to this were tried and argued fully, about twenty-five years ago, in the district court of this city and determined there, and after being tried, argued and determined there, were both taken to the Supreme Court of Pennsylvania, and affirmed, the principles upon which this whole controversy turns and upon which this case is now to be decided being then solemnly and finally adjudicated by the Supreme Court of Pennsylvania, and being then so clearly announced that is impossible to mistake them; so that all we have to do in this case is to take for our chart the decision of the Supreme Court of Pennsylvania in those two cases, which, in all their essential features, were exactly like this case, and apply the principles of law which that court laid down to this case. The two cases to which I refer are Phila. v. Collins, 68 Pa. 106, and Phila. v. Gilmartin, 71 Pa. 140. Adjudications of the Supreme .Court are the law of the commonwealth, as much so as any act of assembly. There is no higher law in the commonwealth than the adjudications of the court of last resort of this state. Of course, everybody is bound by them, and we are bound to apply the law which was laid down by that court to all cases in which the law so laid down is applicable. That is our simple duty in this case. Therefore this renders it necessary for me to do little in this case except to distinctly define to you what was decided by the Supreme Court of Pennsylvania in this class of cases, and to ask you to apply in good faith the law laid down by the highest tribunal of the state to the facts which are before you in the present case.
    The decisions to which I have referred may be reduced to three general propositions which were decided upon solemn argument by the court. The first is that the city of Philadelphia has the right by law and under the several acts of assembly and agreements, which are in evidence in this case, to take any amount of water from the river Schuylkill for drinking and other domestic uses. This use of water by the citizens for domestic purposes cannot be restrained or impaired by legislation, by grant, or by actions for damages, for the right to this use of the water is derived from the law of nature and founded upon the law of paramount necessity. That is the first proposition determined by the Supreme Court, to wit, that the city of Philadelphia can use the water of the Schuylkill river to any extent for strictly domestic purposes without being answerable to anybody for so doing.
    [The distinction between manufacturing purposes and domestic purposes is a very clear one indeed, and nothing can be plainer than the fact that manufacturing uses do not become domestic uses because the product of the manufacture is used for domestic purposes. That' is, a manufacturing use — for instance, the manufacture of beer — does not become a domestic use of the water because the beer when made is drunk by the citizens of Philadelphia. Such a use is a manufacturing use, and not a domestic use. A domestic use means that use of the water which is made by the citizens in the ordinary conduct and for the ordinary purposes of domestic life. Although the product of manufacturing establishments might be used for domestic purposes, they are, nevertheless, uses for manufacture and not uses for domestic purposes. I am bound to say, therefore, that I regard the argument made by the city’s counsel upon that point as altogether fallacious and unsound.] [9]
    The second proposition decided by the Supreme Court was this: Outside of the right of the city to use the water for drinking and domestic purposes, the rights of the public for navigation are superior to those of the city under the acts of assembly and her contracts with the Schuylkill Navigation Company. I will repeat: outside of and beyond this right of the city to use the water for drinking and domestic purposes, the rights of the public for the navigation of the stream are superior to those of the city under the acts of assembly and her contracts with the Schuylkill Navigation Company. That is to say, in other words, that the city has no right to destroy or impair the navigation by any use of the water which is not for drinking and domestic purposes, and if they do that, they are responsible to those whom they injure. That is the second point decided by the Supreme Court of Pennsylvania.
    [The third proposition decided by the Supreme Court was this: The right of the city to draw water from the river for manufacturing purposes is subordinate to the right of navigation, that is, lower, and if by such use of the water she reduces the volume of the stream to such an extent as to obstruct and delay or stop the navigation of the river by boats of the usual draught which have been accustomed to navigate the stream, the city is responsible in damages to the extent of the actual, immediate, and direct loss suffered in consequence, by the owners of boafe who have been injured in this manner by the act of the city.] [10]

      These three propositions of law, which I have taken some pains to impress upon you as clearly as I can, which were determined. by the Supreme Court of Pennsylvania in the two cases to which I have referred, contain all the rules of law which are necessary for the proper determination of this case. It is altogether unnecessary, therefore, for me to make any further answer to the points presented by the ingenious counsel for the defendant, for the whole law upon the subject applicable to the case is contained in these clear propositions of law laid down by the Supreme Court.
    I decline, therefore, to add anything further to these instructions, except to say in answer to the defendant’s seventh point, that the detention of other boats has- nothing whatever to do with the case, except in considering the question whether the detention of the other boats caused the plaintiff’s detention, and whether the detention in both cases was caused by any unlawful use of the water made by the city. If the jury find a verdict for the plaintiff, the damages are, therefore, to be strictly confined to the losses directly suffered by the plaintiff in consequence of the act of the city.
    The plaintiff’s counsel now states that his claim is for twelve days’ detention instead of eight. If there were really twelve days’ detention, and you should find a verdict for the plaintiff, of course you would allow for the twelve days. You will say how the fact is upon the evidence.
    Verdict and judgment for plaintiff for $72.00. Defendant appealed.

      Errors assigned were (1) in overruling defendant’s offer to prove “ that no time when the ■ depletion affected navigation by Martin Gallagher, or his boat, had the city drawn the water down to a level as low as that established by the navigation company, that is, the greatest height to which the navigation company raised the dam,” for which refusal he granted an exception; (2-8) refusal of defendant’s points, reciting same; (9-10) portions of the general charge, reciting same.

      E. -Spencer Miller, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellant.
    — The appellant depends Upon the firm principle that no private action lies for a public nuisance, unless a special damage is done: Stetson v. Faxson, 19 Pick. 147. See also Gold v. Phila., 115 Pa. 185; Megargee v. Phila., 153 Pa. 340.
    March 17, 1897:
    Analogous questions have been decided by the Supreme Court in the cases of Lawrence v. Philadelphia, 154 Pa. 20; Dooner v. Pa. R. R. Co., 142 Pa. 36; Jones v. R. R., 151 Pa. 30; Hobson v. Phila., 155 Pa. 131.

      B. Stuart Smith, for appellee.
    — All the questions raised by the assignments of error in this case have been twice decided by the Supreme Court in two cases which are identical with this case in all their essential features: Phila. v. Collins, 68 Pa. 106; Phila. v. Gilmartin, 71 Pa. 140.
   Opinion by

Wickham, J.,

The plaintiff was the lessee and master of a canal boat plying upon the artificial navigation system of the Schuylkill river, between Port Clinton and tide water wharfs, below this system, in Philadelphia. During the summer and fall of the year 1895, the plaintiff’s loaded boat was several times detained on her downward trips, at different points above the last dam in the Schuylkill, by reason of low water; and, as he avers, also lost time in unloading, at the wharfs above mentioned, because other boats, which had likewise been detained above by lack of sufficient water, arrived there late before him.

At the trial the plaintiff through his testimony, fixed the whole number of days’ detention at nine, five whereof covered the time alleged to have been lost at the consignment wharfs, and he claimed damages on the basis of $8.00 per day. He received a verdict for the full amount of his claim, viz, $72.00.

The cause of all the detentions, as averred by the plaintiff and found by the jury, was the pumping of water from the Schuylkill, by the city of Philadelphia, for other than drinking and domestic uses, to such an extent as to prevent navigation. The uncontradicted evidence clearly established the fact, that if the city had drawn water from the stream for drinking and domestic uses only, navigation would not have been impeded in the least.

The able and learned trial judge instructed the jury, in effect, that the city could lawfully take any quantity of water from the stream, necessary for drinking and other domestic uses; that the right to take water for other purposes, including manufacturing, was subordinate to the right of those navigating the stream by boats of the usual draught, and that if the plaintiff had suffered delay through the action of the city in pumping water for other than drinking and domestic purposes, he was entitled to recover for the actual, immediate and direct loss thus caused to him. These instructions were so fully in accordance with the decisions in Philadelphia v. Collins, 68 Pa. 106, and. Philadelphia v. Gilmartin, 71 Pa. 140, that it would be a waste of time and words to engage in their vindication here.

The refusal of the offer quoted in the defendant’s first assignment of error, was entirely proper, and is sustained by the. reasoning of Mr. Justice Agnew in the concluding paragraphs of his opinion in PMladelphia v. Gilmartin. The plaintiff’s boat drew several inches less than the standard draught fixed as far back as the year 1846, and less than the draught established later, by experience and usage, for low water navigation. The question, therefore, was not whether the water was lowered by the city to the top of the dam, but whether there was a substantial and injurious interference with ordinary and customary navigation produced by pumping water from the Fairmount pool, for other than drinking and domestic uses.

The third assignment of error complains that the court did not leave it to the jury to determine whether the plaintiff suffered special injury, differing in kind from that inflicted on the general public engaged in navigating the river. The undisputed evidence showed a special and particular injury: Philadelphia v. Collins, supra; Knowles v. Pennsylvania R. R. Co., 175 Pa. 623. It was not necessary, therefore, to submit the question to the jury.

The refusal of the defendant’s third point, which is the subject of the fourth assignment of error, was likewise proper. There was no evidence that “the interruption to navigation was the result of an improper detention of the water,” in the upper pools by the Philadelphia & Reading Railroad Company, exercising the franchise of the Schuykill Navigation Company. On the contrary, it clearly appears, that the officers in charge of the navigation system, exercised a high decree of care, skill and prudence in its management, and used the water, at their command, judiciously, in order to maintain navigation, as far as possible, from one end of the system to the other. It is also apparent that their efforts would have been successful, had the city, during the period of drought, not drawn water from the Fairmount pool to an extent inconsistent with its rights. But, were the facts otherwise, the company and the city would be joint tort-feasors, and the default or wrong-doing of one would not enable the other to escape its liability to parties navigating the stream, as is pointed out in Philadelphia v. Collins, supra.

The instruction asked for in defendant’s fourth point was substantially given in the general charge, hence the fifth assignment of error is untenable: Kroegher v. The McConway & Torley Co., 149 Pa. 444.

The defendant’s fifth point, the refusal whereof is the basis of the sixth assignment of error, was properly answered. As the learned trial judge well said: “The distinction between manufacturing purposes and domestic purposes is a very clear one indeed, and nothing can be plainer than the fact that manufacturing uses do not become domestic uses, because the product of the manufacture is used for domestic purposes.” But, even if the law were as contended for in this point, the latter should still have been refused, there being no evidence from which the jury could approximately estimate how much of the water employed for manufacturing was used in producing articles used or intended to be used for domestic purposes. The views here expressed are also fully applicable to the ninth assignment of error.

The seventh assignment is sufficiently disposed of by what is said concerning the first. It may be added, however, that the raising of the dam, therein mentioned, was done conjointly by the city and the navigation company, the latter never in any manner relinquishing its rights and control. It must also be borne in mind, that the public, navigating the Schuylkill, have rights which neither the company nor the city can abridge or take away.

The defendant’s seventh point was not refused, as is alleged in the eighth assignment of error. The answer to the point was an affirmance thereof and could not have been understood in any other sense by the jury. A judge is not bound “ to affirm correct legal propositions in the exact phrase asked for: ” Kroegber v. The McConway & Torley Co., supra; Commonwealth v. McManus, 148 Pa. 64.

The tenth and last assignment is overruled for reasons already given or suggested.

We need not dwell on the attempt made by the defendant’s counsel, in their printed argument, to convict the court below of error in not excluding, from the consideration of the jury, the plaintiff’s claim for damages caused by the delay at the consignment wharfs. No assignment of error bears on this matter, and moreover the defendant’s seventh point, asked that it should be submitted to the jury. It is now too late to complain that the loss resulting from such delay was not sufficiently proximate to be considered. An examination of the charge shoves too, that in a general way the rule as to the measure of damages was correctly stated.

On the whole we are satisfied that nothing is presented by the assignments of error to justify reversal.

Judgment affirmed.