source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Union Trust Company of Pittsburg, Appellant, v. Cain
    (No. 4).
    Argued April 26, 1905.
    Appeal, No. 234, April T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1902, No. 615, on verdict for defendant non obstante veredicto in case of the Union Trust Company of Pittsburg, administrator of Johanna Montgomery, deceased, v. William H. Cain and Mary Eliza Cain, his wife, with notice to J. A. Miller, terre-tenant.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    October 9, 1905:
   Opinion by

Beaver, J.,

This case was tried in the court below with Nos. 231, 232 and 233 of April Term, 1905. Trust Co. v. Cain, ante, pp. 189, 197, 199.

Opinions have been this day filed in Nos. 231 and 232 and, for the reasons therein given, the judgment entered in this case is affirmed.


text:
    International Savings & Trust Company v. Kleber, Appellant.

      Insurance — Mutual insurance — Receiver—Assessments—Collateral attack— Parties.

    Assessments levied by the court after the appointment of a receiver of a mutual insurance company, are conclusive, both as to their necessity and amount, and cannot be questioned in either respect in a collateral proceeding to recover same from a policy holder whose duty it is to pay to the company the proportionate share of losses incurred up to the time of his withdrawal.
    It is not necessary that the members of a mutual insurance company should be made parties defendant in a bill in equity asking for the appointment of a receiver of the company. The company itself is a sufficient party defendant.
    Where the insurance commissioner has actual notice of a proceeding against a mutual insurance company for the appointment of a receiver, and has assented to the proceeding, it is not necessary that he should be made a party to the suit.

      Appeals — Paper-books—Assignments of error — Statement of question involved.

    The assignments of error and statement of question involved should set forth the grounds upon which the appellant complains of the action of the court below, so that the appellate court will not be compelled to go to the argument of counsel to ascertain the grounds of the appeal.
    Argued April 27, 1905.
    Appeal, No. 247, April T., 1905, by defendant, from order of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 1790, making absolute rule for judgment for want of a sufficient affidavit of defense in case of International Savings and Trust Company, Receiver of the Duquesne Mutual Casualty and Indemnity Company, v. H. Kleber & Bros., Limited.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit to recover assessments.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      W. Q. Bicken, with him J. 0. Bicken, for appellant.
    Cr. K. Wright, with' him W. A. Blakeley, for appellee.
    October 9, 1905:
   Opinion by

Beaver, J.,

1. If there is anything clearly and definitely settled by our late cases, following those of the Supreme Court, it is that, “ Assessments levied by the court, after the appointment of a receiver of a mutual insurance company, are conclusive, both as to their necessity and amount, and cannot be questioned in either respect in a collateral proceeding to recover same from a policy holder whose duty it is to pay to the company the proportionate share of losses incurred up to the time of his withdrawal : ” Stockley, Receiver, v. Riebenack, 12 Pa. Superior Ct. 169 ; Kramer, Receiver, v. Boggs, 172 Pa. 91.

2. It was not necessary that the defendants should be made a party defendant in the bill in equity, asking for the appointment of a receiver. It was said in Eichman, Receiver, v. Hersker, 170 Pa. 402, at page 412 : “ Nor does it affect the finality of the decree that the defendant was not made by name a party to Lowenstein’s bill in equity and was not notified of the application for authority to lay the assessment. The court below properly decided that making the company a party was sufficient. Service on the proper officers of the corporation made every policy holder a party and the answer of the company, not before decree dissented from, will now, after decree unappealed from, be deemed as concurred in by the policy holder.”

3. As to the failure to comply with the requirements of paragraph 10, sec. 5, of the Act of April 4, 1873, P. L. 20, relating to the establishment of 'an insurance department, which is as follows: “ The insurance commissioner is hereby empowered to institute suits and prosecutions, either by the attorney general or such other attorney as the commissioner may designate, for any violation of this act; and the commissioner shall be made a party to any proceedings instituted for the purpose of closing up the affairs of any company, when the same shall not be in the name of the commonwealth;” it is perhaps enough to say that this was evidently intended for the protection of the insurance department and that, if the insurance commissioner does not object, it is not for the defendant to raise the question. However, it appears from the petition of the commissioner filed in this case, to be made a party as of the time of the filing of the bill, he was informed thereof “ and agreed thereto, being fully informed of the necessity therefor.” Whether the opinion of the insurance department M that such joinder is not necessary in the ease of a mutual insurance company ” is correct or not, as a matter of fact by the decree of the court he was made a party to the bill as of the time of its filing. We can see no error in this and certainly none of which the defendant can complain.

4. The plaintiff claims in his statement as follows : “ In accordance with the tables attached to the said petition, the assessment of the said defendant upon the amount of insurance which he carried for the time in which his policy was alive, together with 31 f0 thereupon, as directed by the said order, is $422.65. From this amount of $422.65 is to be subtracted $136.47, it being the amount the said defendant paid in to the said company. The balance thereof, amounting to $286.18, is the total amount due by the defendant to the plaintiff in this cause of action, and there are no set-offs or counterclaims of any kind to the said amount. The said defendant was duly notified of said assessment and has neglected and refused and still neglects and refuses to pay the same.” The affidavits of defense set forth no facts which, taken together, would constitute a defense peculiar to the defendant. The most of the allegations relate to the questions which have already been disposed of and we find nothing which raises a question of fact to be submitted to a jury.

We allowed the appellant’s paper-book to be amended, so as to have the one assignment of error in the case before us, but both it and the statement of the question involved are very unsatisfactory. The assignment of. error which is “ First. The court below erred in making the rule for judgment absolute ” contains no specification as to the error alleged, and compels us to seek for the same in pleadings.

No help is given us by the statement of the question involved which is presented under two heads : “ First. Did the affidavit of defense raise questions of fact which should have been submitted to a jury by the court below ? Second. Did the court below err in the entry of judgment ? ” This statement is no more enlightening than the assignment of error and we finally go to the argument of the appellant to ascertain what the grounds upon which he complains of the court were. We have endeavored to dispose of them as fully as they are disclosed but fail to find anything of which the appellant has just reason to complain.

Judgment affirmed.


text:
    Barr Township Road.
    ' Appeals — Assignments of error — Road law — Exceptions.
    On an appeal in a road case an assignment of error that “the court erred in dismissing the exceptions and confirming the report of viewers,” violates rule 14 which requires that “each error relied on must be assigned particularly and by itself.” In such a case the appeal will be quashed.

      Road law — Continuance—Term to term.

    Where the court in a road case has the report of viewers and exceptions in its hands, it is not bound to decide at the next term of court, nor is it necessary while the case is under consideration to mark it continued at each term.
    Argued May 1, 1905.
    Appeal, No. 103, April T., 1905, from order of Q. S. Cambria Co., dismissing exceptions to report of viewers In re order to view road in Barr Township, Cambria County.
    Before Rice, P. J., Beaveb, Oelady, Poetes, Moeeisoít and Hendeeson, JJ.
    Appeal quashed.
    Exceptions to report of viewers.

      Errors assigned were as follows: 1. The court erred in dismissing the exceptions and confirming the report of viewers. 2. The court erred in allowing March Term to intervene without marking the case “ continued.”

      E. A. Shoemaker, for appellant.

      John E. Evans, with-him J. W- Leech, for appellee.
    October 9, 1905:
   Opinion by

Beaver, J.,

Our Rule XIV, which relates, among others, to assignments of error, provides that “ Each error relied on must be assigned particularly and by itself. If any assignment embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.”

The first assignment of error in this case is : “• The court erred in dismissing the exceptions and confirming the report of viewers.” There were nine exceptions in the court below. They were all dismissed. As to the dismissal of which one of them is error alleged ? We cannot tell. In addition to this, the exceptions dismissed are not quoted in the assignment of error. When, therefore, the record from the court below would be remitted, after this court had disposed of the case, there would be nothing on our records to show what the exceptions were, unless they were copied in the opinion of the court. These valid objections to the sufficiency of the assignments of error are made by the appellee, and we are asked to quash the appeal on that ground. The objections are well taken. The rule has been palpably violated and the appeal must be quashed, unless there be other grounds upon which it can be sustained.

This subject has been many times discussed, both in our court and in the Supreme Court, our rules being practically the same. N°where perhaps are the grounds for the reasonableness of the rule more fully stated than in Cessna’s Estate, Kunkel’s Appeal, 192 Pa. 14, in which it is said : “ As to appellee’s motion to squash the appeal for violation of our rules relating to assignments of error, it is only necessary to repeat, in substance, what lias so often been said in Landis v. Evans, 118 Pa. 332, and many other cases, that assignments of error are an essential part of the pleadings in this- court and, as such, they should be so complete in themselves as not to require reference to other parts of the record presented for our consideration. When the cause is disposed of by us and the record is remitted to the court below, all that usually remains of record here are the praecipe, assignments of error and pleas thereto. These should be so complete in themselves as to show the basis of our judgment or decree, as the case may be. It must, therefore, be obvious to every reflecting mind that each specification of error respectively should, in and by itself, present the question we are called upon to decide.”

The second and only remaining specification of error is that “ The court erred in allowing March term to intervene, without marking the case continued.” The report of the viewers was confirmed nisi, with the usual order as to width, January 19, 1904. Exceptions were filed to the report on the same day. These exceptions were dismissed June 6, 1904. It does not appear anywhere in the record that there was a term of the quarter sessions intervening, but, in any event, the court, having the report and exceptions in its hands, is not bound to decide at the next term of the court, nor is it necessary while the case is under consideration to mark it continued at each term, as is the case where the viewers fail to report “ to the next term of the said court,” as provided by Sec. 3 of the Act of June 13, 1836, P. L. 551. This assignment of error is not argued in appellant’s paper-book, but we see no substance in it, and the motion to quash must, therefore, prevail.

Appeal quashed.


author: Henderson, J.,

text:
    Young to use v. Steim, Appellant.

      Attachment execution — Promissory notes — Assignment.
    In an action upon a judgment note, in the name of the payee, to the use of another, it appeared that the defendant bought a property, paying for it partly in cash, partly by a note to the vendor, and partly by the note in suit, payable to the legal plaintiff. Subsequently a firm, of which the use plaintiff was a member, secured a judgment against the Vendor, and issued an attachment execution against the defendant. In the attachment proceedings the firm undertook to show that the note given to the legal plaintiff was in fact the property of the vendor. The proceedings, however, were discontinued. Subsequently the legal plaintiff assigned the note to the use plaintiff, and suit was brought thereon against the defendant, the maker. Held, that the attachment proceedings were not a bar to the suit, and that the attempt of the attaching firm to show that the vendor was the owner of the note, did not affect the legal plaintiff’s title, or estop the use plaintiff from acquiring that title.

      Argued May 8, 1905.
    Appeal, No. 22, April T., 1905, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1903, on verdict for plaintiff in case of James Y. Young to use of Klinordlinger v. R. A. Steim.
    Before Beaver, Or-lady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a note. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were various instructions.

      J. H. McCain, of Me Cain Christy, for appellant,
    cited: Bradley v. Bradley, 3 Phila. 414 ; Scottish Rite, etc., Aid Assn. v. Trust Co., 195 Pa. 45; Brenner, Trucks & Co. v. Moyer, 98 Pa. 274; Baxley v. Linah, 16 Pa. 241; Wills v. Kane, 2 Grant, 60 ; Garber v. Doersom, 117 Pa. 162 ; Rapp v. Crawford, 146 Pa. 21.

      Orr Buffington, with him O. W. Gilpin, for appellee,
    cited : Ruff v. Ruff, 85 Pa. 333 ; Brown v. Scott, 51 Pa. 357; Tryon v. Carlin, 5 Watts, 371.
    October 9, 1905:
   Opinion by

Henderson, J.,

The defendant bought from D. IT. Young the interest of the latter in a hotel property and gave as payment therefor his check for $1,000, payable to Austin Clark, attorney for Young; a note for $1,000, payable to Austin Clark for Young, and another note payable to James Y. Young. Before these obligations were paid, A. Klinordlinger and' Son obtained judgment against D. H. Young and issued an attachment execution therefor, which writ was served on Steim and Clark.

Both of these garnishees filed answers to interrogatories admitting the existence of the obligations named, and on July 3, 1896, judgment was taken against Steim for the sum of $915 on his answer. This judgment was paid to the plaintiff’s attorney September 10, 1896. An issue was afterwards formed in the attachment, and after the parties had proceeded at some length with the trial the case was discontinued and the attachment dissolved as to Steim and Clark. During that trial the attaching creditors offered evidence of the giving of the check and notes above referred to, and also undertook to show that the note given to James Y. Young was without consideration and was in truth the property of D. H. Young. This note was afterwards assigned by James Y. Young to A. Klinordlinger, one of the firm of attaching creditors, and upon it the pending action is founded. The note upon its face is payable to James Y. Young, and he was, prima facie, its owner prior to the assignment to the use plaintiff. Steim does not deny that he signed the note, nor does he allege a failure - of consideration, or that the note was ever paid. His defense is that, inasmuch as he was made a garnishee in the attachment proceeding brought by A. Klinordlinger and Son and judgment was therein entered against him, the adjudication in that case is a bar to any proceeding on this note. The defendant denied that the note belonged to James Y. Young, but alleged that it was the property of D. H. Young, and the court submitted to the jury the question whether the note belonged to James Y. Young at the time of its assignment to the use plaintiff. It is not claimed that James Y. Young was a party to the attachment, nor can it be seriously alleged that his rights with reference to the note were in any wise affected by that proceeding. It appears from the record of that case that the appellant admitted that he owed the amount of the check, $1,000, and judgment was evidently entered against him on his answer because of that admission. He owed that amount, and had no ground for complaint that judgment was so entered. James Y. Young had no control over the attachment proceeding, was not heard, and could not be legally affected thereby : Ruff v. Ruff, 85 Pa. 833. Nor could Steim set up the attachment proceeding as a bar to an action by James Y. Young on the note: Brown v. Scott, 51 Pa. 357. The trial in that proceeding came to naught; the case was abandoned, and on no theory can it be held that the attempt of the plaintiffs there to show that D. H. Young was the owner of the note in question affected James Y. Young’s title or estopped the present use plaintiff from acquiring that title. The issue here is, does the defendant owe the amount of this note? Having contracted to pay it to James Y. Young, he has -no standing now to allege that it ought to be paid to D. H. Young. When it is paid, he will be relieved from further liability. The action is by the legal plaintiff, and the payment of the judgment will be a sufficient protection to the defendant.

The judgment is affirmed.


author: Porter, J,

text:
    Whitman v. O’Brien.

      Execution — Sheriff’s sale — Trust and trustees — Resulting trust.

    Where an attorney for execution creditors purchases land at a sheriff’s sale for a less sum than the amount of the claims of his clients upon which it is being sold, a resulting trust arises in favor of his clients. They have a right to claim the benefit of the purchase, and to demand a conveyance if they think fit to reimburse the sum actually paid, or an account for the profits in case of a resale. The purchase, however, is not absolutely void but voidable merely at the election of those beneficially interested, the execution creditors. If the execution creditors do not choose to assert their rights, junior judgment creditors have no standing to attack the judgment.
    If a creditor takes a judgment, or conveyance, or payment in any form, to secure an actual debt, the transaction will be valid against other creditors, although he knew (1) that the effect would be to postpone the others; (2) that tjie debtor intended it to have that effect; and (3) although he took it to aid that intent as well as to protect himself. The criterion is not the effect but the fraudulent intent. Without that the transaction cannot be impeached.
    To impeach the payment or securing of an actual debt there should be evidence tending to show either, first, some other advantage or benefit to the debtor beyond the discharge of his obligation; or secondly, some other benefit to the creditor, beyond the mere payment of his debt; or lastly, some injury to the other creditors beyond mere postponement to the debt preferred.
    The fact that a purchaser at a sheriff’s sale permits his debtor to remaiii in possession of the real estate after the sheriff’s sale is not ground for the inference of a fraudulent purpose to hinder, delay, and defraud other creditors of his debtor.
    Argued May 15, 1905.
    Appeal, No. 136, April T., 1905, by M. E. Brindle, from order of C. P. Erie Co., May T., 1901, No. 68, dismissing exceptions to auditor’s report in case of Benjamin Whitman v. Joseph P. O’Brien.
    Before Beaver, Orlad y, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of L. E. Torry, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      A. E. Sisson, with him George E. Gibson, for appellant.—
    Rulings have been made by the Supreme Court to the effect • that a private or sheriff’s sale of property, wherein any benefit in property is reserved to the vendor, is fraudulent and void as to any creditor of such vendor: Hennessy v. The Western Bank, 6 Watts & Sergeant, 300; McCulloch v. Hutchinson, 7 Watts, 434; McClurg v. Lecky, 3 P. & W. 83 ; Jackson v. Summerville, 13 Pa. 359 ; Fisher’s Appeal, 33 Pa. 294; McKee v. Gilchrist, 3 Watts, 230.
    When evidence has been given tending to establish a combination to defraud creditors, the declarations of either party to it, although not made in the presence of the others, may afterwards be given in evidence : McKee v. Gilchrist, 3 Watts, 230 ; Jackson v. Summerville, 13 Pa. 359; Thornburn v. Thompson, 192 Pa. 198.
    Under the circumstances in this case the acts and knowledge of Mr. O’Brien in the management of Mr. Carney’s claim were the acts and knowledge of Mr. Carney: Jones v. National Building Assn., 94 Pa. 215 ; Wheeler & Wilson Mfg. Co. v. Aughey, 144 Pa. 398; Williams v. Kerr, 152 Pa. 560.

      Henry A. Olarh, with him A. A. Freeman, for appellee,
    cited: Werner v. Zierfuss, 162 Pa. 360 ; Mead v. Conroe, 113 Pa. 220.
    October 9, 1905:
   Opinion by

Porter, J,

This controversy arises over the distribution of the proceeds of a sale of real estate, by the sheriff under proceedings upon a mortgage, executed and delivered by Joseph P. O’Brien to Benjamin Whitman, dated November 18, 1891, and duly recorded on the 24th of the same month. All parties concede that the mortgage was a -valid first lien entitled to be paid out of the proceeds; the contest is over the surplus. It is unnecessary to consider the rights of Susan Gaffney, who claimed under a judgment against O’Brien, entered while the legal title was in the latter, nor those of Sylvester Carlow, who had been a judgment creditor of James Gaffney prior to the sale of the land to O’Brien by the sheriff; neither of those parties have appealed from the decree of the court below. We have only to consider the conflicting claims of M. E. Brindle, appellant, and James Carney, appellee.

The appellant claims under a sheriff’s sale of the land as the .property of James Gaffney upon a judgment against him in favor of the John Kauffman Brewing Company, in an action which was commenced June 6, 1891, and in which judgment was entered May 4, 1894. The land in question was sold upon an execution under said judgment, and a deed for the same to T. A. Lamb was duly acknowledged by the sheriff on January 13, 1896. The appellant has by sundry conveyances succeeded to the title, if any, acquired by Lamb, the purchaser, at the sheriff’s sale, and by an assignment of the claim to the rights of the John Kauffman Brewing Company, the plaintiff in the judgment.

James Carney, the appellee, claims under an earlier sheriff’s sale of the land as the property of Gaffney. Judgments were, on August 18, 1891, entered against James Gaffney in the court of common pleas of Erie county in favor of John Hanley and the Second National Bank of Erie, and the money was subsequently made upon said judgments by the sale of personal property of the defendant upon executions. There was on the same day a judgment entered against James Gaffney in favor of Sylvester Carlow, for $1,612.50, in which Joseph P. O’Brien appeared as attorney for the plaintiff. Carlow was a brother-in-law of Gaffney and the evidence before the auditor would have justified a finding that, although Gaffney was indebted to Carlow in an amount exceeding $800, the judgment was entered for more money than was actually owing. There was, however, no evidence which would have warranted a finding that either O’Brien or James Carney had any knowledge of the excessive amount of the Carlow judgment. On August 19,1891, four judgments, aggregating about $2,600, were entered against James Gaffney in favor of James Carney, in each of which Joseph P. O’Brien appeared as attorney for plaintiff. The several amounts for which these judgments were entered were actually due from the defendant to the plaintiff, and there was no evidence which tended to cast suspicion upon the validity of the several claims or the purpose for which the judgments were entered. There was on the same day a judgment entered in favor of the city of Erie against James Gaffney, James Carney and Joseph McCarter, for $496.44, this judgment was entered on a bond given by Gaffney as a collector of taxes, upon which Carney and. McCarter were his sureties, and there is no question that Gaffney was actually in default for the amount in which the judgment was entered. Joseph P. O’Brien also appeared as attorney for the plaintiff in this case, and the amount of the judgment was subsequently actually paid by Carney to the representatives of the city of Erie. Executions - were issued on the judgment in favor of Sylvester Carlow and one of the judgments in favor of James Carney, upon both of which writs Joseph P. O’Brien appeared as attorney for plaintiff, and the real estate of James Gaffney, including that in question, was regularly sold by the sheriff, on these executions, on November 9, 1891, to Joseph P. O’Brien, and on November 12,1891, a deed to him was duly acknowledged and delivered by the sheriff. The property did not sell for a sum sufficient to pay either the judgment of Carlow or that of Carney. If this sale to O’Brien was valid, all right and title of Gaffney in the property was extinguished and nothing passed by the sheriff’s sale four years later, under which the appellant claims. The appellant asserts that the sale was fraudulent as to creditors.

When O’Brien, while acting as attorney for the execution creditors, purchased the land at the sheriff’s sale, for a less sum than the amount of the claims of his clients upon which it was being sold, a resulting trust arose in favor of his clients. They had a right to claim the benefit of the purchase, and to demand a conveyance if they thought fit to reimburse the sum actually paid, or an account for the profits in case of a resale. The purchase, however, was not absolutely void, but voidable merely at the election of those beneficially interested, the execution creditors : Leisenring v. Black, 5 Watts, 303 ; Fisk v. Sarber, 6 W. & S. 18; Campbell v. Pennsylvania Life Insurance Company, 2 Wharton, 53; Barrett v. Bamber, 81 Pa. 247 ; Beeson v. Beeson, 9 Pa. 279 ; Rich v. Black & Baird, 173 Pa. 92. The evidence produced before the auditor clearly established that Carlow never elected to assert his right to demand either a conveyance of the property or an accounting, nor did he elect to do so before the auditor. The evidence just as clearly establishes that Carney asserted all along that O’Brien held the property as trustee for him, Carney, alone, that Carney paid out of his own pocket the assessments for municipal liens that were made against the property, that O’Brien always recognized the right of Carney in the property and that on September 16, 1899, he executed and delivered to Carney a quitclaim deed for the same. The auditor found that O’Brien had from the beginning held the title in trust for Carney, and in view of the manner in which O’Brien acquired title and all the evidence in the case we axe of opinion that that .finding was correct.

The burden was upon the appellant to prove by evidence of a satisfactory character that the sheriff’s sale of the real estate under which the appellee claimed was fraudulent. It is not enough to charge fraud and prove in support thereof slight circumstances of suspicion only. The judgment of Carney upon which the property was sold was clearly valid and fór a debt actually owing and due, and the proceedings were in all respects regular; if, therefore, his right to this fund is to be defeated, it must be upon the ground that the sale was intended to hinder, delay or defraud other creditors. It was said by Chief Justice Mitchell in Werner v. Zierfuss, 162 Pa. 360, that “ it may be considered as the established result of our cases that if a creditor takes a judgment, or conveyance, or payment in any form, to secure an actual debt, the transaction will be valid against other creditors, although he knew (1) that the effect would be to postpone the others; (2) that the debtor intended it to have that effect; and (3) although he took it to aid that intent as well as to protect himself. The criterion is not the effect but the fraudulent intent. Without that the transaction cannot be impeached.” And, again, “ to impeach The payment or securing of an actual debt there should be evidence tending to show either, first, some • other advantage or benefit to the debtor beyond the discharge of his obligation; or, secondly, some other benefit to the creditor, beyond mere payment of his debt; or lastly, some injury to the other creditors beyond mere postponement to the debt preferred.” There was no evidence that the sheriff’s sale was not fair, nor that anything had been done to deter bidders or depress the price, nor that the price realized was inadequate. There was nothing which could even give rise to a suspicion that Carney knew that the judgment of Carlow was' for an amount larger than the debt actually due him. Even if Gaffney had entered into a fraudulent arrangement with Carlow for the purpose of defrauding his creditors, that would not vitiate a sale under the perfectly valid judgment of Carney, who was no party to the arrangement: Fidler v. John, 178 Pa. 112. The fact that Carney permitted his debtor to remain in possession of the real estate after the sheriff’s sale, is not ground for the inference of a fraudulent purpose to hinder, delay and defraud the creditor of his debtor: Mead v. Conroe, 113 Pa. 220. Carney testified positively that he did not have any understanding with Gaffney in reference to the latter paying his claims and receiving a reconveyance of the property, and that he had never heard that O’Brien had made any such arrangement. He did say that he had told Mrs. Gaffney, sometime after the sale, that she could have the property if she would let him out clear. But even if he had made such an arrangement with Gaffney, after the sale, it would have been perfectly lawful: Mead v. Conroe, 113 Pa. 220. The testimony of Joseph P. O’Brien, which was taken in another case, was read before the auditor by agreement. That testimony is not altogether clear; inferences might be drawn from it which would contradict the testimony of Carney, but such conflict of testimony, if any there was, presented a question of fact to be determined by the auditor, who found the facts as testified to by Carney. The auditor has found that neither O’Brien nor Carney had prior to the sale entered into any agreement which was. intended to assist Gaffney to hinder, delay or defraud his creditors, and we are not satisfied that that finding was, under the evidence, erroneous.

The decree of the court below is affirmed.


text:
    Rouseville Borough School District v. Cornplanter Township School District, Appellant.

      Contracts — Evidence—Parol evidence to explain — School district — Township — Borough—Apportionment of property.

    Parol evidence which is explanatory of the subject-matter of a written contract consistent with its terms and necessary for its interpretation, is admissible.
    The school district of a borough which had been cut out of a school district of a township, entered into an agreement in writing with the latter by which it was provided that the school district of the township should “have all the resources, excepting the contents of the storeroom,” and that the school district of the township “will divide the state appropriation pro rata, if the appropriation is for the year of June the first, nineteen hundred, to June the first, nineteen hundred and one.” Held, that parol evidence was admissible to show what were the resources spoken of, what were the contents of the storeroom, and what was intended by the reference to the state appropriation.

      School law — School district — Borough.
    The Act of July 24, 1895, P. L. 259, relating to the adjustment of indebtedness and property rights between township districts and borough districts carved out of the former, did not prevent the districts from endeavoring by agreement to arrange a mutually satisfactory division between themselves.

      School law — State appropriation — Boroughs—Townships—Act of July 15, 1897.
    The Act of July 15, 1897, P. L. 271, relating to the distribution of the state appropriation among the several school districts of the commonwealth, has no application to a division of funds between the school district of a township and a new district created by the erection of a borough out of a portion of the territory of the township.
    Argued May 16, 1905.
    Appeal, No. 161, April T., 1905, by defendant, from judgment of C. P. Venango Co., Nov. T., 1901, No. 1, on verdict for plaintiff in case of Rouseville Borough School District v. Cornplanter Township School District.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a written agreement between two school districts. Before Thomas, P. J., specially presiding.
    From the record it appeared that the contract was as follows :
    “ This agreement made and entered into this 19th day of June A. d. 1900, by and between the School Board of Corn-planter Township, Pa., and the School Board of the Borough of Rouseville, Pa.,
    “ Witnesseth, That for a consideration hereinafter mentioned the School Board of the Borough of Rouseville, have agreed and hereby do agree to the following settlement. The ■ School Board of the Borough of Rouseville are to have the school building and real estate upon which it stands, together with all its contents for which the Rouseville School Board are to pay the sum of <|300.00 Three Hundred dollars in cash to the Cornplanter Township School Board, and the School Board of Cornplanter Township is to have all the resources excepting the contents of the store-room.
    “We further agree that Cornplanter Township will divide the State Appropriation pro rata if the appropriation is for the year of June the first, nineteen hundred to June the first, nineteen hundred and one.
    “ Cornplanter Township School Board.
    “ Peter Berry, President.
    “ Louis Schwartzcop, Sect’y.
    “ Rouseville School Board.
    “ W. C. Tyler, President.
    “ Geo. A. Lyeord, Sect’y.”
    The court admitted oral evidence to explain the subject-matter of the contract.
    The court charged in part as follows:
    [This is an action brought by the school district of Rouse-ville against the school district of Cornplanter Township, this county, for the purpose of recovering what they allege is due to them upon a certain contract entered into between said districts in the year 1900, probably upon June 21st, of that year.] [9]
    Ordinarily a contract which has been reduced to writing is binding upon the parties and they cannot change its terms. It is not only good law, but it is good policy for the people not to talk away that which they have taken the pains to reduce to writing. This contract with reference to the state appropriation on its face shows that the township shall only become responsible to pay to the borough the proportion of the state appropriation in case they receive the appropriation for the year from June, 1900, to June, 1901, and there is no allegation that they did receive that appropriation. Therefore, on the face of the contract, the case is with the defendants, but it is proper in cases where the parties at the time of making the contract agreed as to what the particular terms of the contract should apply to; that is, what was the subject-matter of the contract, it is proper to offer testimony as to what that agreement was, and that is what has been done here. That is, the plaintiff alleges that the term “ all resources ” in this contract was to apply to and it was agreed that it should apply to the resources contained in the auditor’s report. The defendants deny this and say those resources had been considered iii arriving át a basis when they first started out at fixing a valuation. What are the facts ?' Did they agree that the resources which were included in this contract should refer to the resources mentioned in the auditor’s report? If they did and that was their agreement at the time, they are bound by • that agreement. If they did not the defendants are entitled to all the resources of the township, unless you find for reasons hereafter assigned that they should not do so.
    We have permitted them to offer testimony as to what the parties agreed this term “ state appropriation for one year 1900 to 1901 ” referred to. The plaintiffs allege it referred to the appropriation mentioned in the Woodring letter and that they were informed that that referred to that year and was for that year and no other year, and in pursuance of that they signed the contract. What are the facts ? Did the parties agree at the time ? Did their minds meet in an agreement that this last clause in the contract was the appropriation mentioned in the Woodring letter? The defendants deny this. The plaintiffs claim it was. The defendants say it provided for a contingency in case the next year’s appropriation should be paid to them. In determining whether the parties agreed upon what the term “ resources ” should apply to, and what the term “ state appropriation ” should apply to, the burden is on the plaintiffs to satisfy you that they agreed according as the plaintiffs contend they agreed. If they do not so satisfy you by the weight of the evidence, your verdict should be for the defendant in this case. [10]

      Defendant presented these points :
    1. That under the pleadings and evidence in the case the plaintiff is not entitled to recover and the verdict should be for the defendant. Answer; This point is refused. We say it is a question for you to determine and not for the court.] [1]
    2. The construction of the written agreement executed between the school district plaintiff and defendant is for the court. Answer : This point is refused; under the evidence in this case we will say it is for you. [2]
    3. The evidence on the part of the plaintiff, seeking not only to overcome the written agreement entered into by the two school districts, but to nullify the deliberate action of the plaintiff corporation, ratifying said agreement, is wholly insufficient to warrant the submission thereof to the jury. Answer ; This point is refused. [3]
    5. The unsupported evidence offered by the plaintiff in this case consisting of the testimony merely of the individual directors of the plaintiff school district, and opposed and contradicted by the individuals composing the school board of thu defendant district, as well as by the writing itself and the official action of the respective boards of directors in the adoption and ratification thereof, is not sufficient to justify the reformation of the written agreement or the submission of the evidence to the jury. Answer: This point is refused; we' say it is for you to determine, but that the burden is upon the plaintiff as we have indicated and to the extent we have indicated in our general charge. [4]
    5. That the testimony of the persons constituting the school board of the borough of Rouseville, as to what took place at the time of, and immediately preceding, the execution of the agreement between the two districts, in relation to the state appropriation, is in direct conflict with provisions of the agreement in relation thereto and is insufficient and incompetent to change, modify or abrogate the express provisions of the contract, in respect to the disposition of the resources or assets therein mentioned, including the state appropriation. An-• swer; This point is refused; it is for you. [5]
    6. To overcome the written agreement in question, adopted and approved by the respective boards of directors specially convened for the purpose of making an adjustment and division of all the property and assets of the old district, including the borough, by parole evidence, the burden of proof is upon the plaintiff, and such evidence must be clear, precise and indubitable. Answer : If for any reason you find there was any fraud or mistake in the execution or in procuring the execution of this instrument, we say the plaintiff is obliged to show this by evidence that is clear, precise and indubitable, subject to the explanation we have made as to what those terms mean. [6]
    7. The proportion of the state appropriation for the year ending June 1, 1900, which the plaintiff was entitled to receive, in a division and adjustment of the property and assets of the old school district, is prescribed by the act of assembly of July 15, 1897, and the plaintiff, having failed to give any evidence from which the plaintiff’s share of said appropriation could be determined, is not entitled to recover in this action, any part thereof. Answer: For the purpose of this case that point is refused ; there is some evidence as to the pro rata of each district. [7]

      A. R. Osmer and J. H. Osmer, with them JV. F Osmer, for appellant.
    In all cases where a remedy is provided, or duty enjoined, or anything to be done by any act or acts of assembly of this commonwealth, the direction of said acts shall be strictly pursued: Act of Assembly of March 21, 1806, 4 Sm. L. 326, sec. 13.
    Where a new school district may result by operation of law from the incorporation of a borough, the apportionment and division of school property must be made in manner provided by the 11th section of the act of April, 1862, upon the formation of new school districts : In re Abington School District, 84 Pa. 179; In re School District of Luzerne Borough, 3 Kulp, 162.
    Parole evidence is not admissible to show that words which are neither doubtful or ambiguous have a meaning different from their ordinary meaning: Book v. New Castle Wire Nail Co., 151 Pa. 499.
    The evidence on the part of the plaintiff was utterly insufficient to vary the terms of the written contract on the ground of fraud, accident or mistake : Stine v. Sherk, 1 W. & S. 195; Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 519; Jackson v. Payne, 114 Pa. 67; Breneiser v. Davis, 141 Pa. 85; Streator v. Paxton, 201 Pa. 135; Cullmans v. Lindsay, 114 Pa. 166; Miller v. The Church, 4 Philadelphia, 4.

      William J. Breene, with him Edmond 0. Breene, for appellee.
    —"Where the • execution of a written instrument or contract has been induced by fraud, accident, mistake or a parole contemporaneous agreement without which such instrument or contract would not have been executed, it has been decided that the plaintiff may maintain assumpsit to recover what as a matter of equity and good faith is justly due where he declares on the written contract and alleges in connection therewith, such fraud, accident, mistake or parole contemporaneous agreement : Hunter v. McHose, 100 Pa. 38; Cullmans v. Lindsay, 114 Pa. 166; Codding v. Wood, 112 Pa. 371.
    Where the instrument or contract is not to be understood without reference to facts dehors the record, it is proper to admit such facts for the purpose of ascertaining the real contract or intention of the parties : Moore v. Miller, 4 S. & R. 279; Prichett v. Cook, 62 Pa. 193; Edelmanv. Yeakel, 27 Pa. 26.
    October 9,1905:
   Opinion by

Beaver, J.,

The parties litigant in this suit agreed to the division of the property belonging to the school board of the township of Cornplanter, out of which the borough of Rouseville had been taken. The agreement was in writing and in it there occurred these clauses: “ The School Board of Cornplanter Township is to have all the resources, excepting the contents of the store room, ” and “We further agree that Cornplanter Township will divide the state appropriation pro rata, if the appropriation is for the year of June the first nineteen hundred to June the first nineteen hundred and one.” To what did the division relate ? What were the resources spoken of ? What was to be done with the contents of the storeroom ? It is very clear that the agreement needs explanation.

The rule laid down in Barnhart v. Riddle, 29 Pa. 92, is peculiarly applicable here: “ The rule of law which forbids parol evidence to be received to contradict or vary a written agreement has reference exclusively to the terms in which the writing is couched. But evidence to explain the subject-matter of an agreement is essentially different from that which varies the terms in which the contract is conceived.” In that case the dispute was as to the word “ demands ” which were to be paid by the defendant under the terms of a written agreement. What were the demands tobe paid? Were they all of the debts of the firm or did they relate to specific demands which had been the subject of consideration in a schedule before the parties at the time the agreement was signed? Judge Woodward, in a very clear opinion, gives the reason for the rule.

The plaintiff here alleges that the word “ resources ” referred to a schedule contained in the report of the auditors. What was the fact ? It was clearly one for the jury.

In our late case of Cox v. Wilson, 25 Pa. Superior Ct. 635, it is said: “ Parol evidence, which is explanatory of the subject-matter of the written contract, consistent with its terms and necessary for its interpretation, is admissible : Centenary M. E. Church v. Clime, 116 Pa. 146.”

Was there any mistake as to the year in which the state appropriation mentioned in the agreement was due ? It would seem that the parties, at the time of the agreement, had different years in their mind. The plaintiffs had a letter from the state.school department, dated May 3, 1900, in which it was said: “ As Rouseville was incorporated since the first Monday of June 1899, the appropriation will be paid to the old district. Rouseville will be entitled to its equitable portion of the appropriation at the settlement of the financial affairs between the two districts.” It appears from the testimony of the directors of the plaintiff district that this was the appropriation which they had in mind and about which the agreement was made. There is evidence also that the letter was read at the joint meeting when the agreement was signed. If there was any mistake as to the year, it could be remedied by parol evidence of the proper kind and quantity under the well-known rule that the evidence necessary to vary the terms of the written agreement must be clear, precise and indubitable : 6 P. & L. Dig. of Dec. 10277.

The testimony upon the subject was fairly submitted by the court, with proper instructions as to the quantity and quality of the proof necessary to establish the plaintiff’s contention. This disposes of the first, second, third, fourth, fifth, sixth, and eighth assignments of error.

The Act of July 24,1895, P. L. 259, was passed for the purpose of establishing a mode of ascertaining the manner in which an adjustment of all indebtedness and property rights between the school district of a township and the school district or districts of one or more boroughs, erected in whole or in part from such township, might be made. Evidently this was intended to be resorted to where the several school districts interested could not agree. It certainly did not prevent the districts from endeavoring to arrange a mutually satisfactory division between themselves.

In this case there was an agreement as to the adjustment of the indebtedness and a division of the resources. The question was as to what that agreement related and, in determining that question, the jury were entitled to take into consideration, as we have already shown, the testimony on both sides relating to the subjects of division, as embraced in the written agreement, and to determine its sufficiency under the rule as satisfactorily explained by the court in the charge.

It is quite clear to us that the Act of July 15,1897, P. L. 271 which provides a more just and equitable method of distributing the school appropriation to common schools and specifies the duties of officers in connection therewith, was intended to provide the basis upon which the school department was to make distribution of the state appropriation among the several school districts of the commonwealth. It did not relate to a division of funds between the school district of a township and a new district created by the erection of a borough out of a portion of the territory of the said township, as in this case.

There was some evidence of the ratio which was to govern in the distribution of the property and resources of the township between the old township and the new district created by the erection of the borough and, in view of that, we can see no error in the submission to the jury of the question as to the relative proportion of the state appropriation belonging to each.

Upon a careful consideration of tbe whole case, we can see no good ground for reversal. The assignments of error are all overruled.

Judgment affirmed.


author: Porter, J.,

text:
    Glasgow v. Hill.

      Fixtures — Trade fixtures — Ice plant — Evidence—Question for jury — Replevin.

    In an action of replevin to recover a steam engine, dynamo and pump, it appeared that the defendant in the replevin owned land on which was erected an ice plant, which he operated. Under a judgment against the defendant in the replevin the land and plant were sold, and a deed made to plaintiff therefor. Shortly after the execution of the deed, the defendant removed from the plant the property which was the subject of the replevin. Over two years prior to the sale, the defendant secured a charter for a corporation, and made a proposition to sell the ice plant to the corporation, which the latter accepted and took possession of the property, and continued the ice business. The transaction, however, was not consummated at the time of the execution of the deed, to plaintiff, and the charter of the corporation was not recorded until after the writ of replevin had been issued. There was evidence that the chattels in question had been purchased and installed by the corporation, while in possession of the premises. There was also evidence that they had been put into the plant to supply the place of similar-machinery owned by defendant, which had been worn out. It appeared that the articles in question were attached to the freehold connected with the other machinery, and were absolutely necessary to the operation of the plant. Held,, that it was for the jury to determine whether the chattels were the property of the corporation placed in the plant as trade fixtures, and that a verdict and judgment for the plaintiff should be sustained.
    Argued May 16, 1905.
    Appeal, No. 18, April T., 1905, by Hill Ice Manufacturing Company, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. 799, on verdict for plaintiff in case of Andrew E. Glasgow v. Samuel W. Hill.
    Before Beaver, 0ready, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Replevin to recover chattels. Before Frazer, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff.

      Errors assigned amongst others were (1) in refusing binding instructions for the Hill Manufacturing Company.

      E. J. Smail, for appellant.
    -It was clearly proven by the uncontradicted testimony of the president and secretary of appellant company that the three machines were purchased and paid for by it, were necessary to conduct the business, were set up in the usual way (necessarily firmly attached to the realty) and were placed by express agreement with Mr. Hill that they remained the property of said company and did not become a part of the realty, and the company had a right to remove them. The facts being uncontradicted, it was the duty of the court to construe the law: Benedict v. Marsh, 127 Pa. 309.
    A fixture erected by a tenant on demised premises for'the ■ purpose of carrying on his trade is personal property and may be removed by him or levied on by fieri facias against him, and at his death passes to his executor: Lemar v. Miles, 4 Watts, 330 ; White’s App., 10 Pa. 252; Van Ness v. Pacard, 27 U. S. 137 ; Shell v. Haywood, 16 Pa. 523; Harlan v. Harlan, 20 Pa. 303.
    Unquestionably the intention to annex, whether rightfully or wrongfully, is the true legal criterion: Hey v. Bruner, 61 Pa. 87, Meigs’s Appeal, 62 Pa. 28, Seeger v. Pettit, 77 Pa. 437, Justice v. Nesquehoning Valley R. R. Co., 87 Pa. 28 ; Harmony Bldg. Association v. Berger, 99 Pa. 320; Watts v. Lehman, 107 Pa. 106 ; Benedict v. Marsh, 127 Pa. 309 ; Vail v. Weaver, 132 Pa. 363; Bank v. North, 160 Pa. 303.

      William M. JBenham, for appellee.
    If the machinery replevied was attached to the freehold and belonged to Hill, the ownership passed to Glasgow under the marshall’s deed: Roberts v. Dauphin Deposit Bank, 19 Pa. 71; Ott v. Sweatman, 166 Pa. 217; Schmaltz v. York Mfg. Co., 204 Pa. 1; Witmer’s App., 45 Pa. 455; Morris’s App., 88 Pa. 368; Ege v. Kille, 84 Pa. 333; Oves v. Ogelsby, 7 Watts, 106.
    The matter of intention to annex is usually considered in cases involving the relationship of landlord and tenant and not when the question of vendor and vendee arises, and. this intention is inferred from the nature of the article affixed, the relation and situation of the party making the annexation and the policy of the law in relation thereto, the construction and mode of the annexation and the purpose and- use for which the annexation has been made: Vail v. Weaver, 132 Pa. 363. -
    October 9,1905:
   Obinion by

Porter, J.,

The plaintiff brought an action of replevin against S. W. Hill for a steam engine, dynamo and pump. Tlie Hill Ice Manufacturing Company, a corporation, alleged title to the property, was granted leave to intervene and became a party defendant. The defendants did not file a bond, and the property was delivered to and remained in possession of the plaintiff. The trial resulted in a verdict and judgment for the plaintiff and the Hill Ice Manufacturing Company appeals. The plaintiff alleged title to the chattels acquired through a sale, under a judgment of the circuit court of the United States, against S. W. Hill, by the United States marshal, of a lot of land in the city of Allegheny upon which was erected an ice manufacturing establishment, of the machinery of which the engine, dynamo and pump were, at the time of the sale and the delivery of the deed by the marshal, a necessary part. The appellant averred that the title to these chattels never had been in him, but that the corporation had placed them in the factory, as trade fixtures, while it, the corporation, was operating the factory under an arrangement with him.

Nelson Morris & Company, on July 20, 1898, obtained a judgment in the circuit court of the United States against S. W. Hill, who at that time and for years before owned a lot of land in the city of Allegheny, upon which the judgment became a lien. The buildings erected upon the lot, which were also the property of Hill, were designed and equipped with the necessary machinery for the cold storage business and the manufacture and sale of ice, and had been continuously used for that purpose from the year 1889. The property was sold by the United States marshal, to the plaintiff, on September 3, 1901, and in pursuance of such sale the deed was duly acknowledged and delivered to Glasgow on September 21,1901. The steam engine, dynamo and pump in question were at that time upon the land, bolted to foundations in the manner usual with'such machinery, and were an essential part of the equipment of the ice manufactory and necessary to the purposes for which it was and had been used. With the exception of the chattels here in controversy S. W. Hill owned all the machinery in the establishment. The articles in question had been placed in the manufactory at the following dates, viz.: the steam engine on March 17, 1898, the dynamo on August 3, 1899, and the pump on October 22, 1900. These particular pieces, of machinery had been put into the plant .to supply the place of similar machinery owned by Hill, which had been worn out; or, as stated by the affidavit of defense, and quoted by appellant in his argument, “ In conducting said business it became necessary for said corporation to purchase said dynamo, one small engine, and one steam pump, the articles replevied, to supply the place of similar machinery owned by Samuel W. Hill, but no longer serviceable, and these articles were placed upon the premises in the usual manner and for the usual purposes for which they were designed and adapted.”- The engine, dynamo and pump were, on October 1, 1901, by order of S. W. Hill, disconnected from the other machinery, taken from their foundations and remoyed to an adjoining lot, owned by the wife of Hill. These facts are disputed.

The plaintiff presented evidence which, if believed, warranted a finding that S. W. Hill had personally been in the actual possession and absolute control of the property down to the time of the sale. The appellant presented evidence tending to establish that the Hill Ice Manufacturing Company had applied for and procured a charter from the commonwealth of Pennsylvania on January 17, 1898, to conduct the business of manufacturing, buying and selling ice, that thereupon S. W. Hill had made a proposition to sell the property to the corporation, which the latter accepted and took possession of the property and continued the icé büsiness which had previously been carried on by Hill, but that the consummation of the transaction had been delayed by the litigation with Morris & Company, and the entry of the judgment against Hill had prevented the conclusion of the transaction. The charter of the corporation was not recorded until October 8, 1901, after this writ of replevin had been issued. The appellant presented evidence which, if believed, would have warranted a finding that the chattels in question had been purchased and installed by the Hill Ice Manufacturing Company, while in possession of the premises. This testimony was oral and the principal witness was S. W. Hill, whose testimony was not reconcilable with the manner in which he had carried on the business and dealt with the property, if the testimony of the witnesses produced by the plaintiff was true.

Hill having been the owner of the land and the manufacturing establishment erected thereon, the machinery here in question being necessary to the operation of the plant and having been put in to supply the place of similar parts of the machinery which had admittedly been the property of Hill, there can be no question that if these specific parts were put in by Hill title to them passed under the sale by the marshal to the plaintiff: Roberts v. Dauphin Deposit Bank, 19 Pa. 71; Witmer’s Appeal, 45 Pa. 455; Morris’s Appeal, 88 Pa. 368; Ege v. Kille, 84 Pa. 333; Vail v. Weaver, 132 Pa. 363 ; Bank v. North, 160 Pa. 303; Ott v. Sweatman, 166 Pa. 217; Schmaltz v. York Manufacturing Company, 204 Pa. 1. The facts that the chattels in question were at the time of the sale by the marshal attached to the freehold, connected with the other machinery, and were absolutely necessary to the operation of the plant were undisputed. These facts being admitted, the burden was upon the appellant to produce evidence to establish that this machinery was not a part of the realty and that it was intended- all along that it should not be so. The learned judge of the court below affirmed the fourth point submitted by the defendant, and so instructed the jury, that if the machines in question were purchased, paid for and owned by the Hill Ice Manufacturing Company, were used for the purpose of its business and trade and were set in place with the intention not to make them part or parcel of the realty the verdict must be for the Hill Ice Manufacturing Company. This fairly submitted to the jury the only question involved under the testimony, and the general charge is not in conflict with this specific instruction.

The contention of the appellant,, that the court should have given binding instructions in favor of the defendant corporation, cannot be sustained. If the appellant ever did own this property, it had placed it in such a position and so dealt with it that it was in this case bound to produce the evidence of its title. The evidence produced was oral and it was not of such a character as to warrant the court in assuming the facts to be clearly established. The transaction between Hill and the corporation may have been entirely honest, but there were circumstances connected with it and the business was conducted in such a manner as to make it subject to suspicion. The question of the ownership of the property by the corporation was for tlie jury, and it was fairly submitted to their consideration.

The jury having found that the appellant did not own the property, and there being no error in the instructions under which that result was reached, it is hot necessary to consider the specifications of error which go only to the measure of damages.

The judgment is affirmed.


text:
    Bartlick v. Josenhans, Appellant.

      Sale — Delivery of possession — Interpleader.
    In an interpleader it appeared that the defendant at one time owned the property in dispute, which was the furniture of a hotel of which he was the licensee. He sold the hotel lease, the license and the furniture, agreeing to take from the purchaser part cash and part notes. The purchaser not being able to raise all the cash secured a part of it from another to whom he gave a bill of sale of the furniture. This person sold the furniture to the plaintiff in the interpleader. Through all these transactions the furniture remained in the hotel, and the defendant knew of them all. He approved in writing of the bill of sale to the person who advanced the money, and knew that the property was to be left in the hotel, and there was evidence that he declared that the furniture was no longer liable for the debt represented by the notes, and that he would look to the proceeds of the business for the payment of the notes. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued May 8, 1905.
    Appeal, No. 177, April T., 1905, by defendant, from judgment of C. P.' Armstrong Co., Sept. T., 1904, No. 38£, on verdict for plaintiff in case of E. J. Bartlick v. William J. Josenhans.
    Before Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Interpleader to determine the ownership of hotel furniture taken in execution as the property of A. C. Bailey. Before Patton, P. J.
    The facts appear by the opinion of the Superior Court.
    Plaintiff presented these points:
    1. If the jury find from the evidence that A. C. Bailey gave the bill of sale for the goods in suit to Harry A. Smith with the knowledge and consent of William J. Josenhans, and that Josenhans got the $1,000 paid by Smith for them, Josenhans is estopped from setting np fraud in the sale from Bailey to Smith, whether Smith ever took possession of the goods or not. Answer : Affirmed so far as it relates to the sale from Bailey to Smith. [5]
    4. If the jury believe Josenhans knew of the sale to Smith from Bailey and got the money arising from that sale, and knew the goods were left in the Hotel Alexander for Bailey’s use, he cannot claim the rights of a subsequent creditor without such notice and consent as he had and gave to the transaction, and, that as against Josenhans no actual delivery of possession on the subsequent sale to Bartlick by Smith and Bailey, was necessary to complete Bartlick’s title to the goods. Answer: Affirmed as to the sale by Bailey to Smith, but as to that part of the point which says “ that as to Josenhans no actual delivery of possession on the subsequent sale to Bartlick by Smith and Bailey, was necessary to complete Bartlick’s title to the goods ” — it is refused. [6]
    Verdict and judgment for plaintiff.

      Errors assigned among others were (5,6) above instructions, quoting them.

      W. J. Christy, of McCain Christy, for appellant.
    When, by the action of the parties, there has been a separation of the title and possession of personal property, courts will scrutinize and determine the real intention, and but little regard will be given to the form which it has taken or the name by which it is called: Barlow v. Fox, 203 Pa. 114; Stephens v. Gifford, 137 Pa. 219; White v. Gunn, 205 Pa. 229.

      H. A. Heilman, of McCullough <$• Heilman, with him F. C. Jones, for appellee.
    It has been shown by the plaintiff in this case that the retaining of the possession of the goods by A. C.' Bailey did not injure the appellant, nor did the possession cause him to lend any credit on the goods, and in reply to the appellant’s argument, we cite this principle of law: “ Conveyances and transfers in fraud of creditors are void only as against those who may be injured thereby,” which principle has been sustained in Bouslough v. Bouslough, 68 Pa. 495; Fowler’s Appeal, 87 Pa. 449; Shulze’s Appeal, 1 Pa. 251; Tomb’s Appeal, 9 Pa. 61.
    October 17, 1905 :
   Opinion by

Porter, J.,

This is an appeal by the defendant from the judgment of the. court below in an interpleader proceeding. Had the title of the plaintiff been entirely dependent upon the bill of sale to him executed byJfiailey, on February 24, 1904, it must under the evidence- “which was produced, as to the subsequent possession, have been held invalid, as against the creditors of the latterr The property consisted of a part of the furniture in a hotel and was capable of an actual delivery. And there being no evidence of a delivery of possession, actual, symbolic or constructive, under the provisions of said bill of sale, an execution creditor would have been entitled to binding instructions: Kendig v. Binkley, 10 Pa. Superior Ct. 463; Stephens v. Gifford, 137 Pa. 219; Barlow v. Fox, 203 Pa. 114; White v. Gunn, 205 Pa. 229.

The plaintiff had, however, acquired the title which had passed to H. A. Smith under a bill of sale to him executed by Bailey in August, 1903, which was executed under peculiar circumstances. Josenhans, the appellant, was the owner of the property in question, and the lessee and licensee of the hotel in which it was used, the personal property in question being a part of the furniture used in operating the hotel. He entered into an article of agreement, on August 19, 1903, with Bailey for the sale of the leasehold of the hotel, “ together with his legal license to sell liquors,” and part of the furnishing and furniture thereof, for the consideration of $5,000, and at the same time executed a bill of sale of the personal property in question, being the furniture referred to in the agreement, to Bailey; $3,500 of the purchase money was to be paid in cash, and the balance to be secured by two notes of $750 each, one payable in three months and the other in six months. Bailey could raise only $2,500 in cash, which amount he paid to the appellant, who thereupon delivered to him possession of the property, and the license to sell liquors was transferred. Josenhans remained at the hotel where the property was, waiting for the payment of the remaining $1,000, both parties making efforts to find some person willing to advance the money. There was sufficient evidence produced at the trial to warrant a finding that Harry A. Smith agreed to buy the personal property in question and pay $1,000 for it, that both Josenhans and Bailey agreed to the same, that a bill of sale of the property to Smith was executed by Bailey and approved by Josenhans, who was then still living at the hotel where the property was. There was evidence from which it was proper to permit a jury to infer that the appellant, as well as Bailey and Smith, all understood tliat Smith intended to leave the property in the hotel, that it might be used by Bailey for the purpose of carrying on the very business which Josenhans had sold, and that when the property was so left in the hotel it was done in accordance with an arrangement which the appellant fully understood at the time he in writing approved the bill of sale. There was evidence that the appellant understood and declared that this property was no longer liable for his debt, and that he looked for the payment of the two notes which he held to the proceeds of the business which the use of this property enabled Bailey to carry on. The evidence overwhelmingly established that Josenhans was present when the bill of sale was executed, that he approved it-in writing, and that he received the entire sum of $1,000 which Smith paid to Bailey, as the consideration for the sale. This completed the payment to him of the $8,500 which he was entitled to receive in cash upon the sale of the hotel with its furnishings, and he thereupon withdrew from the premises. This transaction which was intended by the parties to vest in Smith the title to the furniture, was in effect an incident of the sale of the entire property, hotel, license, good will and furniture by Josenhans, and was resorted to for the purpose of securing to him his cash payment. If the testimony was true, then this appellant was a party to the transaction which was intended to work a separation of the title and possession of the personal property in question, and he could not subsequently be heard to assert that he was intended to be defrauded by it: Zuver v. Clark, 104 Pa. 222. The case was for the jury, and there was no error in the entry of judgment upon the verdict by the court, under the question reserved.

The judgment is affirmed and the appeal dismissed at costs • of the appellant. \


author: Orlady, J.,

text:
    Bannon v. The Pennsylvania Railroad Company, Appellant.

      Negligence — Proximate and remote cause — Presumption. ^

    The general -rule is that a man is answerable for the consequences of a fault which are natural and probable, and might therefore be foreseen by ordinary forecast, but an individual is not presumed to contemplate the coincidence of events having no probable or natural connection in the mind, and which cannot by ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which he is engaged.
    Where there has intervened between the defendant's act and the injury, an independent illegal act of a third person, or one induced by irresponsible agencies or trespassers, which produced the injury, and without which it would not have happened, and such act is held to be the approximate cause of the injury, the defendant is not liable.
    Where the effect of the evidence is merely to establish that there are two independent causes, either of which may have been the proximate cause of the injury, the burden is upon the plaintiff to show that the cause for which the defendant is responsible, was the one which produced the injury for which recovery is sought.
    The question of negligence is one of law for the court, only where the facts are such that all responsible minds must draw the same conclusions from them, but when the conclusion follows as a matter of law, that the plaintiff’s right to recover is not made out upon any view that can be properly taken of the facts the evidence tends to establish, it is the duty of the court to withdraw the case from the consideration of the jury and direct a verdict.

      Negligence — Fall of fence — Proximate and remote cause — Evidence—Question for court.

    In an action against the owner of a fence to recover damages for personal injuries caused by the fall of the fence, binding instructions for the defendant should be given to the jury where the uneontradicted evidence showed that the fall of the fence had been caused by a large crowd of trespassers climbing upon it, although warned to keep off, and that the fence although nine years old and with some of its parts rotten, did not give way under the pressure for over ten minutes. In such a case it is immaterial that on other occasions crowds had gathered on the fence, and that the owner had knowledge of this.
    Argued May 2, 1905.
    Appeal, No. 112, April T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1903, No. 336, on verdict for plaintiff in case of Joseph F. Bannon v. The Pennsylvania Railroad Company.
    Before Beaver, Oready, Porter, Morrison and Henderson, JJ.
    Eeversed.
    Trespass to recover damages for personal injuries.
    The facts relating to the accident are stated in the opinion of the Superior Court.
    Verdict and. judgment for plaintiff for $1,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      M. W. Acheson, Jr., of Patterson, Sterrett Acheson, for appellant.

      E. O. McGirr, of Marrón $ McGirr, for appellee,
    cited : Shearman & Eedfield on Negligence (5th ed.), sec. 89, p. 42 ; B. & O. R. R. Co. v. Sulphur Spring Independent School Dist., 96 Pa. 65 ; Scott v. Hunter, 46 Pa. 192 ; Butterman v. Mc-Clintic-Marshall Construction Co., 206 Pa. 82.
    October 9,1905 :
   Opinion by

Orlady, J.,

There is no material fact in dispute in this case and the validity of the verdict depends upon the accuracy of the answer given by the learned trial judge in the court below to the appellant’s first point(lst assignment of error), to wit: “ Under all the evidence, the plaintiff is not entitled to recover and the verdict of the jury must be in favor of the defendant,” which was refused. The plaintiff was a policeman of the city of Pittsburg and while transferring a prisoner in his custody from a patrol box to the station house he was injured by the fall of a fence upon him.

The defendant company is the owner of a tract of land abutting on Carson street, which is a busy thoroughfare of the city; on the north side of it are houses and stores and on the opposite side the defendant company's land is used for tracks and yard purposes, and is some feet above the level of Carson street. At the property line the company maintained on its own land a retaining wall, about 250 feet in length, and having on its top a board fence about three or four feet in height; the wall and fence together being about nine or ten feet high above the level of the 'sidewalk, which at that place was six feet in width, and there was located at the curb line a police parol box.

On August 24, 1902, the plaintiff with another policeman made an arrest and took the prisoner to the - patrol box in order to send a call to the police station for a wagon; a crowd of persons promptly gathered on the street and pavement, and 'some persons, the number varying according to the testimony from thirty to 100, entered upon the defendant company’s land and inside of the fence, against which they leaned and looked over to view the policemen and their prisoner. The plaintiff’s fellow officer testified: “ Officer Bannon ordered the people to move away from around the patrol box and to get off the fence too, in case it would come over. I told them that that fence might come down. It wasn’t safe. Just as soon as we got there with the prisoner, about ten minutes before the wagon came; my attention had been directed to it, and I said it wasn’t safe; for them to get off the fence. Officer Bannon heard me, and joined in what I said. lie told them to get off the fence, it wasn’t safe. They wouldn’t obey and the crowd on the fence kept getting bigger.” ■ The plaintiff stated: “I was standing on the sidewalk and had hold of a prisoner. I was alongside of the wall, and the crowd gathered in close to the box, and I went out to shove the children away from the box, the wagon was coming pretty close then, to make room so we could put him in the wagon. While I was out doing this the fence came down on me ; it struck me on the head and pinned my face down on the sidewalk, doubled me up like a knife.”

The fence had been built of heavy oak sills, with post and board uprights, about nine years prior to this accident, and had been inspected, repaired and painted at irregular intervals, but at the time of the accident some parts indicated a badly decayed condition. It was not unusual for persons, employees of the company and others, to lean on the fence so as to view the matters of public interest in the street below, and on occasions similar to this arrest, persons would climb up to the fence so as to the better see the officers and their prisoners at the patrol box. There is no evidence tending to show that such a use of the defendant’s property was by its consent or permission, nor that the fence as it then stood was, independent of external force, a dangerous construction or a menace to the safety of persons using the sidewalk. It clearly appears, and must be conceded as a fact that the immediate cause of the fall of the seventy-five feet of the board fence was induced by the weight of the crowd of sightseers who were on the land as trespassers, and that the portion of the fence to which the special pressure was not applied was sufficiently supported by its own construction to retain its proper position on the wall. The fence and wall had been erected to preserve the property line and as a barrier to prevent the intrusion of strangers; it had withstood the forces of nature for nine years, and of this unusual weight of a crowd of trespassers for at least ten minutes before it yielded and fell into the street.

The general rule is that a man ts answerable for the consequences of a fault which are natJral and probable, and might therefore be foreseen by ordinary forecast, but an individual is not presumed to contemplara the coincidence of events having no probable or natural [connection in the mind, and which cannot by ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which he is engaged: Knight v. Abert, 6 Pa. 472; McGrew v. Stone, 53 Pa. 436 ; Fairbanks v. Kerr, 70 Pa. 86. The principle is aptly illustrated by Judge Shabswood, in Gillis v. Pennsylvania Railroad Co., 59 Pa. 129, as follows: “ I am bound to have the approach to my house sufficient for all visitors on business or otherwise ; but if a crowd gathers on it to witness a passing parade and it breaks down, though it may be shown not to have been sufficient even for its ordinary use, I am not liable to one of the crowd. I owe no duty to him. If a traveler by foot, on the open track of a railroad, crosses a bridge, which ought to be, but is not in its ordinary use, strong enough to bear a locomotive and a train of cars, and a rotten board breaks down under him, the company are not liable to him, for they owe him no duty.” It is a fundamental principle applicable alike to breaches of contracts and to torts, that in order to found a right of action there must be a wrongful act done, and a loss resulting from that wrongful act; the wrongful act must be the act of the defendant, and the injury suffered by the plaintiff must be the natural and not merely a remote consequence of the defendant’s act. The wrong done and the injury sustained must bear to each other the relation of cause and effect; and the damages whether they arise from withholding a legal right or the breach of a legal duty, to be recoverable, must be the natural and proximate consequence of the act complained of: 2 Greenleaf on Ev., sec. 254-6 and notes; Sedg. on Damages, sec. 31. As said, in McGrew v. Stone, 53 Pa. 436, “We are not to link together as cause and effect, events having no probable connection in the mind and which could not by prudent circumspection and ordinary thoughtfulness be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without concurrence of our act with the event which immediately caused the injury, but we are not called upon to suffer for it unless the other event was the effect of our act, or were within the probable range of ordinary circumspection when engaged in the act.” Further reasoning on the subject is given in Penna. Railroad Company v. Kerr, 62 Pa. 353, “ It is certain that in almost every considerable disaster the result of human agency and dereliction of duty, a train of consequences generally ensue, and so ramify, as more or less to affect the whole community. Indemnity cannot reach all these results, although parties suffer who are innocent of blame. This is one of the vicissitudes of organized society. Every one in it takes the risk of these vicissitudes. Willfulness itself cannot be reached by the civil arm of the law for all the consequences of consequences, and some sufferers necessarily remain without compensation.” It is within the knowledge of all that within our varied departments of life there are frequent casualties for which the law has been able to furnish no just rule that would fix responsibility, or liability for the consequences upon anybody. They are often the results of want of care, thought or prudence or the fault of the party suffering; the law cannot fix rules which render anyone answerable in damages. They are casualties, and the resultant injuries can only be regarded as the misfortune of the party suffering: Worrilow v. Upper Chichester Twp., 149 Pa. 40; McCauley v. Logan, 152 Pa. 202.

The foundation of this action is negligence and the accusation of negligence is only made out by showing a breach of a legal duty by the defendant owing to the plaintiff. Negligence cannot be predicated, on one’s lawful and ordinary use of one’s own premises: Alpern v. Churchill, 53 Mich. 607 (19 N. W. Repr. 549) ; Cosulich v. Standard Oil Co., 122 N. Y. 118 (25 N. E. Repr. 159). There is no negligence in a legal sense which can give a right of action unless there is a violation of a legal duty to exercise care : Cooley on Torts, p. 660 ; Larmore v. Iron Co., 101 N. Y. 391; s. c., 54 Am. Rep. 718 ; Howland v. Vincent, 10 Met. 371; s. c., Am. Dec. 442. It is also declared to be the law by eminent text writers, that however great the defendant’s negligence, if it was committed without violating any duty which he owed either directly to the plaintiff, or to the public in a matter whereof he had a right to avail himself, there is nothing for the law to redress, and an action will not lie : Bishop Non. Cont. Law, sec. 446; Shear-man & Redfield on Negligence (4 ed.), sec. 8. Had this fence fallen without special circumstance of violence and injury resulted to a person upon the public sidewalk an entirely different question would be presented. It could not be urged with reason that the persons who were trespassers on the railroad lot and joined with others in overthrowing the fence into the street could recover from the defendant for injuries thereby ■ received. Their own wrong would bar their right to recover anything. The defendant owed them no duty at that place. To entitle the plaintiff to recover by reason of their act, it is necessary to convert the illegal conduct of these trespassers into a probable, and reasonably to be anticipated act by the defendant. Conceding that the company owed no duty to the trespassing crowd, yet it is urged that because the fence was nine years old and in a state of partial decay, somewhat overhanging at the top, and on former similar occasions persons trespassed in like manner, the company should have absolutely barred the invasion of the crowd or made the fence sufficiently strong to withstand its force. When we recall that under the undisputed facts there was no gateway into the premises ; no path or used way through or over it; no invitation or permission given to use it; that the danger was apparent and that notice was given of it; that the stone wall and fence were erected, and had served the purpose of their construction for nine years, and actually withstood for ten minutes, the force of a crowd which was continually increasing, — and which refused to obey the caution of the two policemen, — that it was not safe and might fall, that the time of such a gathering of persons could not be anticipated so as to prevent by force an invasion of the defendant’s premises by a crowd of trespassers; and that it would be as unreasonable as it would be impossible to approximate fairly the degree of force that such an uncertain body, as a crowd of persons, could or would apply to such a structure, in order to provide a fence of corresponding resistance to assure its safety ; it would be taking a long step in advance of any decided case to sustain this verdict. It has been held by the courts of our own and many sister states that, where there has intervened between the defendant’s act and the injury, an independent illegal act of a third person, or one induced by irresponsible agencies or trespassers, which produced the injury, and without which it would not have happened, and such act is held to be the .proximate cause of the injury, that the defendant is not liable. In Curtin v. Somerset, 140 Pa. 70, it is held in order that a person who has been injured by an accident may hold another responsible therefor oh the ground of .negligence there must be a causal connection between the negligence and the hurt; and such causal .connection is interrupted by the interposition between the negligence and- the hurt of any independent human agency. See also Fitzmaurice v. Fabian, 147 Pa. 199; Congregation v. Smith, 163 Pa. 561; Tutein v. Hurley, 98 Mass. 211; s. c. 93 Am. Dec. 154 ; Cuff v. Newark & N. Y. R. R. Co., 35 N. J. L. 17; s. c. 10 Am. Rep. 205 ; Crain v. Petrie, 6 Hill, 522.

In Yoders v. Amwell Township, 172 Pa. 447, it is said by Dean, J., “ Speculating on the doctrine of proximate and remote cause in supposed or hypothetical cases seems to have been a sort of intellectual recreation with text writers since the Squib case in 2 Wm. Black. 892; but approximate certainty in the administration of justice, in evidence in an issue, is all we can hope to attain to; was the consequence such as under the circumstances might and ought to have been foreseen and provided against ? The proximate cause is the dominant controlling one, and not those which are mere incidents. Or as stated in Phila. & Reading R. R. Co. v. Hummell, 44 Pa. 375, “ Precaution is a dutjr only so far as there is reason for apprehension. No one can complain of want of care in another when care is only rendered necessary by his own wrongful act. It is true that what amounts to ordinary care under the circumstances is generally to be determined by the jury. Yet a jury cannot hold parties to a higher standard of care than the law. requires, and they cannot find anything negligence which is less than a failure to discharge a legal duty. If the law declares, as it does, that there is no duty resting upon anyone to anticipate wrongful acts in others, and to take precautions against such acts, then the jury cannot say that a failure to take such precautions is a failure in duty and negligence.” A trespasser may in some special instances recover, but in such cases it is not enough merely to show negligence. The plaintiff must do more and, make it appear that there was a want of care and recklessness equivalent to a wanton or intentional disregard of duty : Gillis v. Penna. R. R. Co., 59 Pa. 129 ; Hydraulic Works Co. v. Orr, 83 Pa. 332 ; Gillespie v. McGowan, 100 Pa. 144; Enright v. Railroad Co., 198 Pa. 166; Duffy v. Sable Iron Works, 210 Pa. 326.

Where there is no conflict of testimony; and either the standard of individual duty has been judicially determined; or the rights of owners of property have been judicially defined, the decision of the question of negligence affecting the plaintiff’s right to recover and the liability of the defendant, becomes the duty of the court: Gramlich v. Wurst, 86 Pa. 74; Horstick v. Dunkle, 145 Pa. 220; Gray v. Penna. Railroad Co., 172 Pa. 383. Where the effect of the evidence is merely to establish that there are two independent causes, either one of which may have been the proximate cause of the injury, the burden is upon the plaintiff to show that the cause for which the defendant is responsible was-the one which produced the injury sought to be recovered for: Boehm v. Bethlehem Boro., 4 Pa. Superior Ct. 385. In every jury trial there is a preliminary question for the court. The court must decide whether or not there is sufficient evidence upon which the jury could base a verdict for the plaintiff. If there is no evidence, or if it is such that, in a fair legal construction, it does not sustain the plaintiff’s case, and that no fair inference to be drawn from it sustains it, the court should give the peremptory instruction to find for the defendant. It is not the province of the court to weigh the evidence or decide between conflicting statements of witnesses or to decide what inferences should be drawn from uncontradicted evidence, if different minds could fairly come to different conclusions from it. The question of negligence is one of law for the court, only where the facts are such that all reasonable minds must draw the same conclusions from them, but when the conclusion follows as a matter of law, that the plaintiff’s right to recover is not made out upon any view that can be properly taken of the facts the evidence tends to establish, it is the duty of the court to withdraw the . case from the consideration óf the jury and direct a verdict.

The first assignment of error is sustained and the judgment is reversed.