text:
    Chambers to use v. Reinhold, Appellant.

      Practice, C. P. — Parties—Warranty—Joint warrantors.

    An action on a general warranty in a joint deed cannot be maintained against the personal representatives of the deceased warrantors jointly. Death severs the joinder, and the right of action on the warranty remains against the survivor.

      Warranty — Deed—Measure of damages.

    In an action on a general warranty, where it appears that the plaintiff has been in peaceable possession of the premises for a long period of time, the court cannot give a binding instruction to the jury to taire the purchase money of the interest as to which a breach is claimed, and add interest thereto regardless of possession, use, improvements, and the liability of the plaintiff for mesne profits.

      Warranty — Breach—Eviction—Possession.
    In an action on a general warranty contained in a deed plaintiff cannot recover, where it appears that there was no binding judgment or decree sufficient to amount to his eviction either actual or constructive.
    The orphans’ court has no jurisdiction to try and settle disputed titles and rights of possession of real estate in a partition proceeding.
    Where a person is in quiet and peaceable possession of land under a deed of general warranty purporting to convey it all, and subsequently the orphans’ court awards partition of this land and adjoining land under a petition which merely sets up an ex parte claim of title, and the grantee under the warranty deed purchases one of the interests awarded in the partition, he cannot make such a purchase a basis for .an action on the general warranty. In such a case the facts that the plaintiff had a good title to a partial interest in the land, and that the defendants did not appear and defend in the partition proceedings, are immaterial.
    Argued Dec. 6, 1906.
    Appeal, No. 181, Oct. T., 1906, by defendants, from judgment of C. P. Schuylkill Co., March T., 1906, No. 297, on verdict for plaintiffs in case of Lizzie Chambers, now to use of John J. Cunningham, v. Eli S. Reinhold, Executor, and Emma D. Moore, Administratrix.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a general warranty in a deed. Before Marr, J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the plaintiff presented the following points :
    1. By the final decree and adjudication of the orphans’ court of Schuylkill county establishing the title of the Groody heirs to the undivided one-sixth part of, or interest in, the lot of ground which had been sold by the Moores to Mrs. Chambers, with a covenant of general warranty, and which lot was then held by the plaintiff under deed from Mrs. Chambers, the superiority of the title of the Groody heirs over the title, which the Moores sold to Mrs. Chambers, was judicially established, and said judgment or decree is prima facie evidence against the defendants in this case.
    There is no process known-to the law for the actual physical or bodily eviction and dispossession of the plaintiff Cunningham of such undivided one-sixth interest in said lot of ground, as there might have been if the whole title to the whole of-said lot of ground, or any specific portion of it, as an entirety, had been involved in these proceedings, nor could there be legally an eviction or dispossession of the plaintiff of the whole of said lot by the Groody heirs, or any specific part thereof, on the decree in their favor, establishing their title to only the undivided one-sixth interest therein. Therefore, the judgment and decree of the orphans’ court in the partition proceedings on the Margaret Curry estate was a constructive ouster and eviction of the plaintiff of the said undivided one-sixth part or interest in said lot, and gives the plaintiff a prima facie cause of action against these defendants for the recovery of the moneys he was .obliged to spend to protect himself against such ouster, not exceeding the amount legally recoverable in such cases. Answer : These requests are affirmed, but the court reserves the question whether there is any evidence which entitles the plaintiff to recover. [2]
    2. After Mary Sandman had in the partition proceedings, had in the orphans’ court of Schuylkill county, on the real estate of Margaret Curry, accepted said real estate, to wit: the whole of the lot of ground in Mahanoy City, formerly owned by the Moores, and subdivided and sold by them in four parts, of which the plaintiff held one of the so subdivided lots and premises, and the said Mary Sandman having become legally entitled to a formal award and adjudication by said court of the whole of said lot of ground to her, the plaintiff was not bound to await such formal award and adjudication of said lot of ground, with the buildings and improvements thereon, to the said Mary Sandman, or to await the institution by the said Mary Sandman of an action of ejectment, or other possessory proceedings, to oust him, or to have himself physically evicted from the premises, thus held and occupied by him, in order to entitle himself to the benefit of the general warranty clause in the deed from the.Moores to Mrs. Chambers, and to pursue his remedy against the warrantors.
    The plaintiff had a right, to protect himself and his interests, in the premises, and to buy his peace by purchasing the outstanding one-sixth interest in his lot of ground, so held by the Groody heirs, and also to purchase from Mary Sandman whatever rights or interests she acquired or secured in the premises, by accepting said lands in said partition proceedings, and by doing so the plaintiff did not forfeit or lose the benefit of the general warranty clause in the deed from the Moores to Mrs. Chambers, and the Moores were not relieved thereby from making good their warranty of their title to the whole of said lot of ground, and to the entire estate, but they remained, and still are, legally bound to make good their warranty in this behalf, and the plaintiff is entitled to recover in this suit the moneys he was obliged to pay out and. expend in thus protecting himself in the premises, not exceeding the amount legally recoverable in cases of this character. Answer ; These requests are affirmed, but the court reserves the question whether there is any evidence which entitles the plaintiff to recover. [3]
    3. A warrantee, or an alienee of a warrantee, when overcome by a superior title, and when such superior title has been judicially established, is not bound to have himself physically and bodily dispossessed and ejected from the premises, the title to which is thus warranted. There may be a constructive eviction by appropriate legal proceedings on such superior title. such as the partition proceedings had in the orphans’ court of Schuykill county on the real estate of Margaret Curry, deceased, to wit: the lot of ground and premises in Mahanoy Citjr here in question, and the decree of said court therein established the superiority of the Mary Groody title over the title of the Moores to the undivided one-sixth interest in said lands, as warranted by them, and such judgment and decree and proceedings in said court are equivalent to a constructive eviction of the plaintiff.
    The plaintiff was free, under these circumstances, for his own protection, and to save himself from physical ouster from the premises, held and occupied by him as aforesaid, to purchase the so outstanding superior title to the undivided one-sixth interest in said lands, and also to purchase from Mary Sandman whatever interest she may have acquired in the premises, and by doing so the plaintiff did not lose or forfeit his right to enforce the general warranty clause in the deed from the Moores to Mrs. Chambers, to be reimbursed for the moneys he was obliged to expend in so doing, not exceeding the amount legally recoverable in such cases. Answer : These requests are affirmed, but the court reserves the question whether there is any evidence which entitles the plaintiff to recover. [4]
    4. The plaintiff having notified the defendants in this case as early as March 8 (and not later than March 11, 1904), of the partition proceedings pending in the orphans’ court on the real estate in question, as the late estate of Margaret Curry, deceased, and of the claim of the Groody heirs, as the owners of the undivided one-sixth interest therein, and which notice was served before the consummation of the purchase by the said plaintiff from the said Mary Sandman, and from the said Groody heirs, of their interests in the premises, the defendants could and should have made some effort in the orphans’ court to protect the interests of the plaintiff in the premises, if the claim of the Groody heirs or of Mrs. Sandman were unfounded, or otherwise questionable, or if said partition proceedings were in anywise impeachable. The defendants having failed to do so, or to take any notice whatever of the matter, • though duly warned, and the plaintiff having waited fully two weeks or more after serving such notice upon the defendants before consummating the purchase of the interests of the Groody heirs and of Mrs. Sandman, and expending his money in the premises, the defendants did, in point of fact, have sufficient notice of these proceedings to at least have put them upon their guard, and to call upon them to take some action for their protection, and the protection of the plaintiff, if there had been any defense in the premises, or if said orphans’ court proceedings were in anywise questionable-; and they having failed to do so, by reason whereof the plaintiff became obliged to expend the moneys he did to buy his peace, and to save himself from physical eviction from his own property, the defendants are now bound by the proceedings had in the orphans’ court, and are therefore also bound under the general warranty clause in their deed, to make good unto the said plaintiff the moneys he was thus obliged to expend in these proceedings, not exceeding the amount legally recoverable in such cases. Answer : These questions are affirmed, but the court reserves the question whether there is any evidence which entitles the plaintiff to recover. [5]
    5. Under all the evidence in this case, the plaintiff is entitled to recover the amount, which he was obliged to pay out and expend in purchasing the outstanding undivided one-sixth interest in the lands in question, and in purchasing whatever interest Mary Sandman had acquired in the lands so occupied by him ; and being thus compelled to buy his peace, he is entitled to be reimbursed his outlays in the premises from the grantors and guarantors in the deed of the Moores to Mrs. Chambers, or such, of them, or the estate of such of them as may be found legally liable at this time to a suit on such warranty. Answer: These requests are affirmed, but the court reserves the question whether there is any evidence which entitles the plaintiff to recover. [6]
    6. That under all the evidence in the case, the plaintiff is entitled to recover from the defendants one-sixth of the amount of the purchase money paid by Mrs. Lizzie Chambers unto the Moores, for the property described in their deed unto her, which was since conveyed by her to the plaintiff, and is now held by him, to wit: one-sixth of $1,550, being |258.33.
    The plaintiff is further also entitled to recover interest on said one-sixth part of the said purchase money from the date of the deed from the Moores to Mrs. Chambers August 9,1886, if it requires the whole amount of said interest to date to make the plaintiff whole in this case.
    The plaintiff, however, only claims in this suit the amount actually paid out by him to purchase the outstanding one-sixth interest in said property held by the heirs of Mary Groody, to wit: $305.63, with interest thereon from March 22, 1904, $39.85 ; sum total of plaintiff’s claim, $345.48.
    This amount being less than the sum total of the one-sixtli of the original purchase money paid by Mrs. Chambers, with interest calculated to date, would amount to.
    The plaintiff, therefore, now asks only for so much of said interest on the said one-sixth of said principal sum of purchase money paid to the Moores as it is required to make up the amount actually claimed by him, to wit: $305.63, with interest thereon as stated, being altogether $345.48.
    This amount the plaintiff is entitled to recover against the defendants, and the verdict of the jury must be in favor of the plaintiff and against the defendants for the amount so stated, $345.48. Answer : These requests are affirmed, but the court reserves the question whether there is any evidence which entities the plaintiff to recover. [7]
    Defendant presented this point:
    Under all the evidence the verdict of the jury must be for the defendants. Answer : This request is refused, but the court reserves the question whether there is any evidence under which plaintiff is entitled to recover. [8]
    Verdict and judgment for plaintiff for $345.48. Defendant appealed.

      Errors assigned among others were (2-8) above instructions, quoting them; in admitting in evidence the record of the partition proceedings and (10) in entering judgment for plaintiff on point reserved.

      R. P. Swank and T.H.B. Lyon, for appellants. —
    At common law, in tire case of a joint contractor, only the survivor, or, after his death, his executor or administrator could be sued : 1 Chitty on Pleading, * 50; 1 Parsons on Contracts (6th ed., * 30 and 31 ; Weaver v. Shryock, 6 S. & R. 262; Githers v. Clarke, 158 Pa. 616.

      March 11, 1907 :
    The judgment of the orphans’ court did not determine title: McClure et al. v. McClure, 14 Pa. 134; Goundie v. Northampton Water Co., 7 Pa. 233; Mehaffy v. Dobbs, 9 Watts, 363-376.
    Title vests in an allotee in partition only when the recognizance has been given: Dornblaser’s Estate, 22 Pa. C. C. Rep. 379; Robisson v. Miller, 158 Pa. 177.
    John F. Whalen, Esq., was neither an heir nor an alienee of any heir of Margaret Curry, deceased. ■
    A deed of a married woman in which her husband does not join is void, and passes no title to grantee : Overseers v. Overseers, 112 Pa. 99:
    An agent’s authority to contract must be in writing : Parrish v. Koons, 1 Pars. 78; Right v. Mifflin, 2 Yeates, 38; Lewis v. Bradford, 10 Watts, 67.
    In order to support an action for breach of warranty of title the plaintiff must, in the declaration, allege an eviction : Patton v. McFarlane, 3 Penrose & Watts, 419; Clarke v. McAnulty, 3 Sergeant & Rawle, 364; Paul v. Witman, 3 Watts & Sergeant, 407; Dobbins v. Brown, 12 Pa. 75; Stewart v. West, 14 Pa. 336; Wilson v. Cochran, 46 Pa. 229 ; Knepper v. Kurtz, 58 Pa. 480; Sager v. Patterson, 15 Pa. Superior Ct. 147.
    The above-stated legal principles are applicable whether the warrantee has the entire interest, .or only an undivided fractional interest, in the land: Paul v. Witman, 3 Watts & Sergeant, 407; McGrew v. Harmon, 164 Pa. 115.
    The measure of damages for failure of title is limited to the price of the land at the date of the deed, with interest, unless the land is improved and the purchaser has been in undisturbed possession, in which case the claim for interest is extinguished: Bender v. Fromberger, 4 Dall. 436; Brown v. Dickerson, 12 Pa. 372; Terry v. Drabenstadt, 68 Pa. 400 ; Wacker v. Straub, 88 Pa. 32; Tyson v. Eyrick, 141 Pa. 296; Cox’s Administrators v. Henry, 32 Pa. 18; Jones v. Bland, 112 Pa. 176 ; Ege v. Kille, 84 Pa. 333.

      A. W. Schalch, for appellee.
    — The decree of the orphans’ court was conclusive: Smith v. Wildman, 178 Pa. 545.
   Opinion by

Morrison, J.,

This is a joint action in assumpsit against the two personal representatives of the estates of Michael J. Moore, deceased, and Thomas P. Moore, deceased, and Emma D. Moore, and resulted in a judgment against the personal representatives, and in favor of Emma D. Moore non obstante veredicto.

The plaintiff, Cunningham, alleged an eviction from the one undivided sixth of a house and lot which he held under a deed of general warranty, dated August 9, 1886, from Michael J. Moore and Thomas P. Moore to Lizzie Chambers, and deed dated August 5, 1895, from Lizzie Chambers and her husband to plaintiff. It is conceded that Lizzie Chambers and Cunningham have had peaceable possession of the whole of the sa.id house and lot, conveyed as above stated, from August, 1886 till the bringing of this suit. Michael J. Moore died testate March 18, 1908, and Eli S. Reinhold duly qualified as administrator c. t. a. of his estate. Thomas P. Moore died testate on March 18, 1898, and his widow, Emma D. Moore, qualified as executrix of his last will and testament.

On May 4, 1903, the orphans’ court of Schuylkill county, upon petition of Mrs. Mary Sandman, awarded an inquest in partition of a tract of land in Mahanoy City consisting of four contiguous residence properties, one of which was the premises in possession of and claimed by Cunningham as grantee of Lizzie Chambers and husband, under the deed above mentioned. Said petition alleged that Mary Sandman, Thomas Groody, John Groody and Margaret Groody were together entitled to an undivided one-sixth in said four properties, as the grandchildren of Margaret Curry, deceased, a former owner of said premises.

Exceptions to the return made to the inquest were filed by counsel for Cunningham et al., and on August 10, 1903, the exceptions were dismissed by the court and the return confirmed, and on October 12, 1903, said confirmation was made absolute and a rule granted upon parties interested to come into court and accept or refuse to take at the values returned. On January 4, 1904, an attorney for Mary Sandman filed an offer to take all of the property described in the writ of partition for $5,000, a price greater than the value returned. On April 4,1904, the attorney for Mary Sandman made and signed a written transfer and assignment of the above offer and all right, title and interest of Mary Sandman to said real estate to John F. Whelan, who was not an heir of Margaret Curry, deceased, nor an owner of any interest in the premises involved in the partition proceedings. This assignment was not under seal, not acknowledged, not signed by the husband of Mary Sandman nor by anyone for him. It was signed by Charles N. Brumm, attorney for Mary Sandman. There is no evidence in the orphans’ court record that Brumm had any written authority to sell and convey Mary Sandman’s interest in the land. On January 19, 1904, the orphans’ court adjudged unto John F. Whelan, his heirs and assigns, as of April 4, 1904, all of said real estate. On December 17,1904, John F. Whelan executed and delivered to John J. Cunningham a deed for all of Whelan’s right, title and interest in and to the premises in possession of and claimed by Cunningham.

The defendants and their counsel had personal knowledge of the pendency of the partition proceedings, but they were not legally made parties thereto and they did' not participate therein.

Based upon the above facts the present suit was brought to recover jointly against the several parties named as defendants for the money which Cunningham claimed to have expended in acquiring the title to the said one-sixth interest in the said house and lot.

The first question natural^ arising is, can this joint action be maintained against the personal representatives of Michael J. Moore and Thomas P. Moore, deceased? This question would seem to be adversely settled, as to the plaintiff, at common law. One of the Moores died several years prior to the death of the other one. It seems at common law that the first decedent was released and the right of action on the warranty remained against the survivor and he became liable for a breach of the warranty in their joint deed. In the case of joint contractors, if one of the parties die his executor or administrator is at law discharged from liability and the survivor alone can be sued: Chitty on Pleading, vol. 1, star p. 50, and notes; Weaver and another v. Shrycock, exr., 6 S. & R. 262; Githers et al. v. Clarke et al., 158 Pa. 616. It seems that death severed the joinder and we have been referred to no statute or authority in Pennsylvania to warrant suing the personal representatives of the deceased warrantors jointly. The learned court below granted judgment in favor of Emma D. Moore personally, nonobstante veredicto.

The learned counsel for the plaintiff, at the close of the evidence, presented to the court six written points, each of which was answered as follows: “ These requests are affirmed but the court reserves the question whether there is any evidence which entitles the plaintiff to recover.” These six points give rise to the second, third, fourth, fifth, sixth and seventh assignments of error. By granting judgment upon the verdict the court, in effect, affirmed each of these points unqualifiedly. In our opinion, these assignments of error must be sustained for reasons that will be given in discussing the ninth assignment.

The first assignment raises the question of the power of the court to give a binding instruction in favor of the plaintiff and to direct the amount of the verdict. We think this assignment must be sustained as the charge of the court does not give the correct rule of damages for a breach of warranty, and, second, because we will endeavor to show further along that the plaintiff was not entitled to recover at all. But, the correct measure of damages would be one-sixth of the purchase money paid by Cunningham, with interest thereon, provided the property was unimproved and he received no benefit from the possession and use thereof. In the present case, the property was improved and the plaintiff had been in the peaceable possession of it all the time, and the court could not give a binding instruction to the jury to take the one-sixth of the purchase money and add interest thereto regardless of possession, use, improvements and the liability of the plaintiff for mesne profits : Tyson v. Eyrick, 141 Pa. 296. Moreover, it appears that the court actually instructed the jury to find for the plaintiff the amount of money expended by Cunningham in the partition proceedings and in securing the conveyance from Whelan. This was not the correct measure of damages : Bender v. Fromberger, 4 Dallas, 436; Brown v. Dickerson, 12 Pa. 372; Terry v. Drabenstadt, 68 Pa. 400 ; Doyle v. Brundred, 189 Pa. 113, and Tyson v. Eyrick, 141 Pa. 296. It should be noted that there was no allegation of fraud to change the measure of damages from the purchase money and interest. What we have said in regard to the measure of damages is not very important in this case because we will attempt to show further along that the plaintiff was not entitled to go to the jury at all, as he failed to show that he had ever been evicted.

The eighth assignment: “ The court erred in answering defendant’s point, which point and answer were as follows : Under all the evidence the verdict of the jury must be for the defendants. Ans: This requestis refused, but the court reserves the question whether there is any evidence under which plaintiff is entitled to recover.” By subsequently granting judgment against the defendants the court, in effect, unqualifiedly refused this point. In this we think there was error. In our opinion, this point ought to have been affirmed, because there was no binding judgment or decree sufficient to amount to an eviction of the plaintiff, either actual or constructive. He and his grantor had been in the quiet and peaceable possession of the land in question, under a deed purporting to convey it all, from August 9, 1886, and he was not evicted and there was no valid decree of the orphans’ court upon which he could have been evicted, because there is not found in the record of that court any evidence of a paramount title in Mrs. Mary Sandman, except her ex parte averment in the petition for partition of tbe land where she alleged it had belonged to her grandmother. Moreover, as has already been said, if she had shown title to one-sixth of the lot in question, the plaintiff did not acquire that title by the assignment of April 4, 1904, by C. N. Brumm. as her attorney, and, therefore, the plaintiff was not warranted in paying the money claimed in this suit for the conveyance to him by Whelan, under the Brumm assignment. If Mary Sandman had a paramount title to that of the plaintiff, she has it yet so far as the orphans’ court record- shows, unless she is estopped from setting it up. There is nothing in the record to take Brumm’s assignment out of the statute of frauds: Act of March 21, 1772, 1 Sm. Laws, 389; Right v. Mifflin, 2 Yeates, 38; Lewis v. Bradford, 10 Watts, 67.

The ninth assignment is based on the admission of the partition record in the orphans’ court, on the petition of Mary Sandman. This whole record was offered, and objected to by defendants’ counsel as incompetent, irrelevant and immaterial. The court overruled the objection, admitted the offer, granted an exception and sealed a bill for defendants. This assignment really raises the most important as well as the controlling question in the case. In onr opinion it must be sustained, and it requires a reversal of the judgment without a new venire. If Cunningham intended to look to the warranty in the deed from the Moores it was, clearly his duty, in any action looking to an eviction as to the whole or any interest in the land described in the Moore deed,, to set up his deed, purporting to convey the whole of the property, and the possession of his grantors and himself ever since 1886, and deny the right of Mary Sandman to have partition made of this land, on the ground that she had no possession and no title. If this defense had been interposed, at the proper time, in the partition case, the .orphans’ court could lawfully have gone no further in the partition proceedings until Mary Sandman went into the common pleas and in an action of ejectment established her title to an interest in the land claimed by Cunningham. But Cunningham did not do this, and he cannot now be heard to say that the decree of the orphans’ court was equivalent to,an eviction, and that he can sue the personal representatives of the deceased Moores, jointly or otherwise, and recover the money that he foolishly invested on- the strength of the decree of the orphans’ court.

The effect of a deed of partition is not to alter the titles of the parties, but to designate the boundaries : Goundie v. Water Co., 7 Pa. 233. A judgment in partition does not decide title, or create new title: McClure et al. v. McClure, 14 Pa. 134; Perrine v. Kohr, 205 , Pa. 602. A covenant of warranty is a covenant against rightful eviction. To maintain an action for breach of it, an eviction must be laid and proved. There must be proof, at the least, of an involuntary loss of the possession: Wilson v. Cochran, 46 Pa. 229; Sager v. Patterson, 15 Pa. Superior Ct. 147. To entitle a grantee to recover for a breach of warranty, there must be an eviction by title paramount: McGrew v. Harmon, 164 Pa. 115.

That the orphans’ court could not have gone to a final decree in partition if Cunningham had set up his title and possession and denied Mary Sandman’s title, until she had established a paramount title in ejectment in the common pleas, is established by numerous cases. See Trickett on Law of Partition in Penna., pp.. 31, 32.; McMasters v. Carothers, 1 Pa. 324; Mehaffy v. Dobbs., 9 Watts, 363.

The tenth assignment is, in substance, that the court erred in directing judgment in favor of the plaintiff on the point reserved, quoting it. It follows from what has been already said that this assignment must be sustained.

Counsel for plaintiff contends, that this action could be maintained without showing that plaintiff had been evicted from this one-sixth interest, for the reason that plaintiff had a good title to five-sixths of the land and he could not be put out of possession. The answer to this is twofold : First, the plaintiff cannot recover for a breach of the warranty without showing that there had been a recovery against him on a paramount title. This is not shown by the orphans’ court record or otherwise. Second, if Mary Sandman had recovered a final judgment in ejectment, in the common pleas, for the one-sixth of plaintiff’s land, she could have been put into legal possession of that interest, with the plaintiff, on a writ of habere facias possessionem. And this would undoubtedly be a sufficient loss of possession by a paramount title to permit plaintiff to recover on the warranty.

It is contended that the defendants are concluded by their failure to appear and defend in the partition case. How could they do this? The grantors, the Moores, were both dead. Their representatives claim no interest in the land in question. They were not parties to the partition proceeding, and they had a right to assume that the orphans’ court would not undertake to try and settle disputed titles and rights of possession of real estate in a partition proceeding.

Judgment reversed.


source: Caselaw Access Project

author: Head, P. J.,

license: Public Domain

text:
    Piro, Appellant, v. Shipley.

      Res adjudícala — Equity—Injunction—Trespass—Damages.
    Where in a suit in equity to restrain a trespass of a continuing and permanent character, it appears that neither in the pleadings, nor in the evidence, nor in the decree was any mention made whatever of damages, such suit is not res adjudicata of a subsequent action of trespass to recover actual and compensatory damages for the trespass, the further continuance of which was enjoined in the equity suit. Head v. Meloney, 111 Pa. 99 and Allison’s App., 77 Pa. 221, distinguished.

      April 15, 1907 :
    Argued Oct. 9, 1906.
    Appeal, No. 38, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1904, No. 1,715, for defendant non obstante veredicto in case of Pasquale Piro v. Samuel R. Shipley et al., trustees under the will of Stephen Smith, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages to real estate. Before Biddle, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      J. Hibbs Buchman, of Hopple Buchman, for appellant.—
    Plaintiff was entitled to damages notwithstanding the equity suit: Bell’s App., 81* Pa. 203; Rhea v. Forsyth, 37 Pa. 503; Allison’s & Evans’ App., 77 Pa. 221; Walters v. McElroy, 151 Pa. 549.

      Wm. A. Glasgow, Jr., with him Roland R. Foulke, for appellees. —
    The plaintiff having, in the first instance, sought relief on the equity side of the court, and that against the defendants’ objection and having obtained a decree in his favor as to the jurisdiction as well as to the merits of the case, cannot now bring an action at law to recover the damages which might and should have been recovered in the equity proceeding: McGowin v. Remington, 12 Pa. 56; Allison’s App., 77 Pa. 221; Walters v. McElroy, 151 Pa. 549; Head v. Meloney, 111 Pa. 99.
   Opinion by

Head, P. J.,

In May, 1903, and for some years prior thereto, the plaintiff was the owner in fee of the premises situate on the southeast corner of Ninth and Christian streets in the city of Philadelphia. In connection therewith he had an easement in the adjoining premises, owned by the defendants, entitling him, along with the owners or their tenants, to the use of a hydrant, outhouse, alleyway, etc. On May 22, 1903, he filed a bill in equity alleging such acts done or threatened by the defendants as would constitute a continuing and permanent trespass resulting in the destruction of his easement. By the prayers of his bill he specially asked for an injunction to restrain the commission of any further acts of trespass and to command the restoration of the premises to their former condition and for general relief. A preliminary injunction was granted which, after final hearing, was, on June 2, 1904, made perpetual. This decree was, on appeal, affirmed by the Supreme Court, the jurisdiction of a court of equity being upheld on the well-established grounds that the right of the plaintiff was clear and practically undisputed and that the trespass committed or threatened was of a continuing and permanent character: Piro v. Shipley, 211 Pa. 36. The opinion of the Supreme Court was delivered March 6, 1905.

On June 26, 1904, the plaintiff began this common-law action of trespass to recover damages by reason of the facts, as he alleged, that defendants “ unlawfully and maliciously tore down and demolished said privy well, deprived him of the use of the hydrant, deprived him of the use of the alleyway and said chimneys, and unlawfully, either maliciously or carelessly, or both, made excavations .... causing the Avails of the plaintiff’s house to settle and crack,” to his great damage, etc. The case went to issue on the plea of not guilty and the trial resulted in a verdict for the plaintiff. The defendants filed a motion for a new trial which has never been formally disposed of, and, on the same day, a motion for judgment n. o. v. upon the whole record. The court subsequently granted the latter motion and entered judgment for the defendants. This judgment, as we learn from the brief opinion filed by the trial court and the argument presented to us at bar, proceeded on the theory that the chancellor, who heard the equity case already referred to and entered the injunctive decree, would have been warranted in assuming jurisdiction of every contention between the parties incidental to the acts which the bill directly sought to enjoin ; that he could, 'therefore, have ascertained and decreed to the plaintiff any damages sustained by the latter and, as a consequence, that the plaintiff is now concluded by that decree even though, in point of fact, the damages now claimed were • not mentioned or adverted to in the pleadings, the eAÚdence or .the decree. In other words, the claim of the plaintiff is met by the plea in bar of a former recovery and. judgment has been entered against him on that plea. The correctness of that judgment is the sole question raised by the record now before us.

We may concede, at the outstart, “as a general principle, that where a court of equity has obtained jurisdiction for one purpose it may retain it generally for relief,” and thus, to avoid multiplicity of actions and settle by one decree the entire controversy between the parties may properly dispose of and determine matters incidental to the main question on which its jurisdiction rests, that, in and by themselves, would furnish no basis on which such jurisdiction could be groundéd.

It is to be observed we are not now called upon to determine how far the learned chancellor who heard and disposed of the injunction bill might have lawfully extended his jurisdiction. That the decree actually entered was within the powers lawfully vested in him has been finally determined. The precise question before us requires us to ascertain and declare whether that decree, giving to it all the conclusive effect that should be rightfully attached to it, stands as an insurmountable barrier to the plaintiff’s recovery in the present action. This involves an attentive consideration of the principles and rules laid down by our courts of last resort to guide us in assigning its proper effect to a former judgment or decree, whether it be advanced as a plea to bar, or as evidence to conclude, a plaintiff in a subsequent action.

• “ The principle is well stated by Mr. Justice Nelson in Washington, etc., Steam Packet Company v. Sickles, 72 U. S. 580: ‘ As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, where the' judgment is used in pleading as a technical estoppel or is relied on by way of evidence as conclusive, per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined — that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered to have settled that matter as to all future actions between the parties ; and further, in cases in which the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact, but even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be conclusive.’ ” Per Sharswood, J., in Coleman’s Appeal, 62 Pa. 252.

“ If the same question be the material matter in issue now that was determined in the equity suit against the defendants, it must be admitted that it was concluded by the decree in equity — and cannot be controverted by the parties thereto. But as this is an estoppel by matter of record, we must look to see what the record says, what it was that the plaintiffs claimed by their bill. ... I do claim, that to be conclusive, the record must show the very matter claimed to have been passed upon, which is claimed to be concluded. That does not appear here. 4 In order that a judgment in one action shall be conclusive in another, it must appear with convenient certainty, that the question in controversy in the second suit, was litigated and decided in the first.’ 2 Smith Lead. Cas, 5th Am. ed. 668.” Per Thompson, C. J., in Williams v. Row, 62 Pa. 118.

In Wright v. Weber, 17 Pa. Superior Ct. 451, president judge Rice uses the following language that seems to precisely fit the point now under consideration: 44 In a bill for injunction it is not absolutely and in all cases necessary for the plaintiff to show the past damages he has suffered in order to obtain the full relief which he prays. The court may award them, but only as incidental to the other relief sought, and not, as in specific performance, as part of, or as a substitute for, that relief. A judgment is not evidence of any matter which comes collaterally in question, or which is incidentally cognizable or which is to be inferred by argument from it. The conclusive effect of a judicial decision cannot be extended by argument or implication to matters not actually heard and determined, nor to collateral questions which arise but do not become part of the case. The estoppel of a former adjudication will extend only so far as the subject-matter of the second suit is substantially the same as that of the first 4 and may be binding on some points while leaving others open to controversy : ’ Schwan v. Kelly, 173 Pa. 65.” Finally, in the very recent case of Jackson v. Thomson, 215 Pa. 209, Mr. Justice Mestkezat, after citing with approval some of the above authorities and many others in harmony with them, quotes and adopts the following statement of the rule: “ What is meant by the same cause of action is, where the same evidence will support both actions, although the actions may happen to be grounded on different writs; this is the test to know whether a final determination in a former action is a bar, or not, to a subsequent action.”

Looking then at the bill, the evidence and the decree in the equity case, through the clarifying medium of these authoritative rules, how can it be said that the plaintiff is estopped by that record from prosecuting the present action wherein he seeks to recover actual, compensatory damages for a naked tort, a trespass alleged to have been committed willfully and maliciously? The bill was not aimed at the recovery of damages and makes no mention of them; its main, if not its sole, purpose was to invoke the aid of the strong arm .of a chancellor to prevent a threatened destruction of the plaintiff’s easement and to maintain or restore the status quo ante. Its averments were confined to such matters as tended to show a chancellor’s jurisdiction and to move his conscience to action. They displayed no foundation for the introduction of evidence of the money value of the injuries already sustained, much less of those which accrued, or at least became manifest only after the bill was filed. The evidence nowhere invited the court to consider the question of damages or furnished any standard by which they could be measured. The decree, following the averments of the bill and the supporting evidence, was limited to the injunctive relief prayed for. The whole record clearly shows that the plaintiff’s right to recover the damages now sued for, was never litigated, never passed on, and never decided ; and, further, that such consideration or decision was in nowise essential to the integrity of the decree actually entered. Logically, therefore, applying the doctrine of the cases cited to the question before us, we must bold that the record and decree in the equity case ought not and cannot be held to bar the plaintiff’s right in the present action.

The learned trial court we think fell into error in assuming that he was obliged to enter judgment for the defendants on the authority of Head v. Meloney, 111 Pa. 99. That case we believe to be plainly distinguishable from the one at bar. The sole purpose of the equity proceeding there considered was the specific performance of a contract to convey certain real estate. Unless that identical real estate, as it existed when the bill was filed, or its equivalent, could be given to the plaintiff, the object of his bill would be frustrated, the relief he prayed for could not be afforded. The decree directing the conveyance as prayed for was a distinct affirmation that his right to. the relief sought had been established and was given and intended to be given by the decree. Manifestly, therefore, if, by the time the decree was entered, the property had been so despoiled by the defendant or one claiming under him with notice, that its conveyance did not in fact furnish full relief as it was intended and appeared to do, it was the duty of the plaintiff to lay before the court such facts as would enable the court to so modify the decree as to make it adequate.

Having accepted without complaint or appeal a decree which was intended to, and upon its face did, give him full relief, he could not be permitted, in a subsequent action at law, to assert that his decree was not complete and should be pieced out by a recovery in damages. This would amount to a collateral attack on the decree, with the idea of having it reformed by another court of no higher jurisdiction.

The following language from the opinion of Mr. Justice Clark we think recognizes the distinction we have sought to draw : “ The contract covered the conveyance of the land as it existed at the time, and the suit for the specific performance of it was an action upon the contract in its entirety; if during the pendency of the proceeding, by the act of the defendant, the plaintiff could not have the full benefit of the contract, the latter was entitled to damages, as part and parcel of his claim under his bill. The question of damages did not come collaterally in question, and thus only incidentally cognizable in the equity jurisdiction, but was presented directly. The award and assessment of damages were, therefore, necessarily and directly involved in the decree, and if no damages were in fact awarded, we must assume that none were sustained.”

. Nor do we regard the case of Allison’s Appeal, 77 Pa. 221, as in any way conflicting with the conclusion here reached. There the bill not only averred an invasion of the plaintiff’s property, but the taking away of a large amount of oil therefrom, which amounted to a waste and. destruction of his estate. There was a specific prayer for an account of this waste. It was held that inasmuch as the jurisdiction in equity had properly attached to prevent a continuing trespass and stay waste, it could be rightfully extended to the taking of an account for the oil removed, to the end that the full relief prayed for could be administered in a single proceeding. The utmost that could be fairly predicated of that case, as applied to the question we are now considering, would be to say that if, by his original or a supplemental bill, the present plaintiff had prayed for an account of the damages he had sustained, the equity court might have properly undertaken to ascertain and assess them. We are not to be understood, however, as holding that, in every case, where, without color of right, a continuing trespass is being committed or threatened, a plaintiff seeking simply injunctive relief may, or must, include in his bill a prayer for an account of his damages. No such question is before us.

A number of questions concerning the proper measure of damages were raised by the points submitted to the court below by the learned counsel for the defendants, but none of these questions are raised by the present appeal and the single assignment of error contained in the record. What disposition will be made of the motion for a new trial, if pressed before the court in banc, we cannot undertake to determine. It may well be that, in the light of the verdict, after the settlement of the main question of the plaintiff’s right to recover notwithstanding the former decree, no further litigation will be required.

The judgment is reversed and a procedendo awarded, the cost of this appeal to be paid by the appellees.


author: Head, J.,

text:
    Scott, Appellant, v. Heisner.

      Deceit — Evidence — Burden of proof — Fraud — Misrepresentations — Non-suit.

    In an action of trespass for deceit against a stockholder and officer of a gold mining company, to recover damages for losses alleged to have been sustained by false representations made to the plaintiff by the defendant on the strength of which the former purchased the stock of the company, the plaintiff is bound to show not only that the representations were in fact false, but also that the defendant knew that they were false at the time he made them. If the plaintiff fails to show by his proof that the defendant knew-that the representations were false, he will be non-suited.
    Argued Oct. 17, 1906.
    Appeal, No. 140, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1904, No. 3,242, refusing to take off nonsuit in case of John D. Scott v. J. W. Heisner.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass for deceit. Before Wiltbank, J.
    The facts a)re stated in the opinion of the Superior'Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off. ' '

      Error assigned was in refusing to take off nonsuit.

      L. W. Baxter, for appellant.
    — The case should have been sub'mitted to the jury: Thompson v. Doty, 13 Pa. Dist. Rep. 375; Griswold v. Gebbie, 126 Pa. 353; Cummings v. Cummings, 5 W. & S. 553; Land & Imp. Co. v. Mendinhall, 4 Pa. Superior Ct. 398.

      Samuel K. LoueJiheim, for appellee.
    — In an action of deceit, the scienter must be proved, and the only ground for recovery for false representations is the bad faith in making them. The reasonableness of the defendant’s ground for bis belief in his representations cannot be called into question: Duff v. Williams, 85 Pa. 490; Kern v. Simson, 126 Pa. 42; Griswold v. Gebbie, 126 Pa. 353; Dutton v. Pyle, 7 Pa. Superior Ct. 126; Lamberton v. Dunham, 165 Pa. 129.
    April 15, 1907:
    In an action of deceit against the principal to recover damages for misrepresentations made by an agent, the fraud should be clear and there should be in addition some evidence of participation or knowledge on the part of the principal, or circumstances which should have put him upon inquiry: Freyer v. McCord, 165 Pa. 539; Keefe v. Sholl, 181 Pa. 90.
   Opinion bt

Head, J.,

The plaintiff’s action being in deceit, he assumed the burden of showing that the stock purchase, of which lie complains, was induced by representations of fact which were, not only false, but knowingly and fraudulently false. “ There can be no question at this date that, in an action of deceit, the scienter must not only be alleged but proved: ” Griswold v. Gebbie, 126 Pa. 353. Because of his failure to discharge this burden the case of the plaintiff ended in a compulsory nonsuit which the court in banc refused to take off. =-

It appears from the evidence that in the fall of 1902, the defendant, who lived in San Francisco and was interested, as stockholder and officer, in a group of mining companies, visited Philadelphia, and met A. G. Noeckel, a licensed stockbroker in that city, whose business was generally the handling of stocks and more particularly of oil and mining stocks. Through correspondence early in that year, Noeckel had been appointed the “ fiscal agent ” for Philadelphia of the Grass Valley Consolidated Gold Mining Company, one of the companies in which defendant was interested, he being then its secretary, and was authorized to sell its stock at a price named. He had also been furnished with printed circulars for distribution among prospective purchasers of stock and to the public generally. These circulars contained a glowing description of the generally prosperous conditions of the gold mining industry, especially in the section of country in which the Grass Valley mine was located; a statement in round figures of the amounts of gold that had been produced in the past from a long list of mines, without attempting to specify the length of time covered or the cost of production ; explained at some length the different methods of mining; gave the names and addresses of the officers of the company, of a number of stockholders who had personally visited and examined the property of the company, and of many prominent business men in the various cities of the country, east and west, of whom interested persons might inquire as to the value of the property and the honesty and capacity of those in control of its operation. It then went on to advance a number of reasons why, in the near future, the mine ought to reach a dividend paying basis and prove a veritable golden harvest for those fortunate enough to be the owners of its stock. According to the testimony of Noeckel, in his personal interview with the defendant, in October, 1902, the latter declared his unlimited confidence in the great value and rich prospects of the mine; stated that much pay ore was already in sight; that with the installation of new machinery and the development of the workings, much more and more valuable ore would be found when lower levels would be reached : in a word, characterized his conception of an investment in the stock of the company at then existing prices, by asserting it to be as sound as “an investment in government bonds.”

In December, 1902, the plaintiff, who was a piano salesman, called at the office of Noeckel who directed his attention to the Grass Yalley mine, gave him a circular, told him of his personal interview with the defendant and suggested a purchase of stock. The plaintiff replied, according to Noeckel, “If that is right I will look into it and let you know in a few days,” of, according to his own testimony, “ I will think the matter over.” He shortly afterwards returned and expressed his willingness to buy $1,000 worth of stock if he could pay for the same by turning in two pianos at $500 each. This offer was transmitted by mail to the defendant, was accepted, the pianos were shipped and the plaintiff received certificates for 2,860 shares of stock. There is no evidence whatever that at the time of the purchase and for several months afterwards the stock was not worth all that the plaintiff had paid or indeed that it could not have been sold at an advance; nor does it appear what efforts, if any, the plaintiff made to verify the statements of fact contained in the circular.

The plaintiff at once became interested 'in the idea that he could sell considerable blocks of stock if a satisfactory commission would be allowed to him, and opened up a correspondence directly with the defendant on this subject, several lengthy letters passing between them which appear in the evidence. In these letters the defendant fixed the commission that would be paid to the plaintiff, on sales of stock made by him, and, at the request of the latter, offered to allow the sum of $150 out of each sale of $1,000 worth of stock, to defray the expense of a personal visit to and inspection of the property by the plaintiff or a party he might organize. Indeed such inspection and examination seem to have been at all times invited and desired by the management.

In the summer of 1908, financial misfortune overtook the company as a result of which its property was swept away and all the golden hopes of the stockholders were shattered. This catastrophe, according to a letter of defendant, was brought about by the combination of a number of unexpected causes. Factional disputes among the stockholders resulting in such manipulation of the stock market by one party as to break the price of the stock and stop all sales of it; the sudden “ pinching out ” of the ore vein which was expected to grow richer; the encountering of a cross level which flooded the mine with water and necessitated the immediate purchase of new, powerful and costly machinery to continue operations and the refusal of stockholders to supply the golden stream which had been cut off when sales of new stock had been stopped by the break in price. Defendant further alleged that the management of the company had been at all times honest; that neither he nor his fellow officers had received or demanded any salary for their services, but that all had confidently relied on the future increase in the value of their stock and the dividends it was ex-' pected to earn, to compensate them for the expenditure of their time and efforts. In other words, that he was a fellow sufferer with the plaintiff rather than the responsible cause of his loss. The truth or falsity of these statements of fact could have been ascertained by the plaintiff, and as he produces no testimony to assail their truth it is fair to presume there was no such evidence. If true, they furnish an adequate cause for the loss of the property, entirely consistent with the honesty and good faith of the defendant at the time the plaintiff bought and leave the case of the plaintiff wholly without any evidence of that covin and fraud which would alone support an action in deceit.

After a careful consideration of all the testimony we are unable to reach any other conclusion than that adopted by the learned court below.

Judgment affirmed. . . .


text:
    Morrison v. Blake, Appellant
    (No. 1).

      Statute of limitations — Trusts and trustees — Demand.
    Where a person receives the money of another and holds it in trust for his principal, the statute of limitations does not begin to run in favor of the person receiving the money until he assumes an attitude hostile to his principal's right, and indicates that his disposition of the money is no longer responsive to his principal's will.

      Contempt of court — Attachment execution — Trust moneys.

    Where a person has been attached for contempt of court for failure to pay over trust moneys, he cannot purge himself of contempt by alleging that the fund had been attached in his hands, without going further and showing that he had answered interrogatories admitting that he held the fund.
    A person attached for contempt for not paying over trust moneys cannot purge himself by alleging poverty.
    A person attached for contempt of court for failure to pay over trust moneys cannot protect himself from imprisonment by claiming the benefit of the Act of July 12, 1842, P. L. 339, abolishing imprisonment for debt.
    Argued Oct. 18, 1906.
    Appeal, No. 57, Oct. T., 1906, by defendant, from decree of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 2,556, on bill in equity in case of Samuel Morrison v. William J. Blake.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Bill in equity to enforce a trust. Before Sulzberger, J.
    The court entered a decree in accordance with the prayer of the bill.

      Rrror assigned in No. 57 was the decree of the court.

      Mrror assigned in No. 177 was order for the attachment.

      Thomas R. JElcock, for appellant.
    — The claim is barred by the statute: Bowen v. Burdick, 3 Clark, 226 ; Cornog v. Delaney, 11 W. N. C. 575; Coal Co. v. Huntzinger, 6 W. N. C. 300; Evans’s App., 81 Pa. 278.
    April 15, 1907:
    A decree in equity for the payment of money cannot be enforced in Pennsylvania since the Act, of July 12, 1842, P. L. 339: Scott v. The Jailer, 1 Grant’s Cases, 237; Pierce’s Appeal, 103 Pa. 27; Cochran v. Gowen, 9 Phila. 299.

      E. Spencer Miller, for appellee,
    cited: Ireland v. Stockbar, 14 W. N. C. 126; Hopkinson v. Cooper, 8 Phila. 8; Wilson v. Wilson, 142 Pa. 247 ; Chew’s App., 44 Pa. 247 ; Batdorff’s Case, 13 W. N. C. 417; Emerson v. Dow, 11 W. N. C. 270.
   Opinion by

Head, J.,

The court below found as a fact that the plaintiff and James Morrison were the real owners of the property, from the sale of which the fund in controversy arose, and that the legal title thereto had been placed in Blake, the appellant, who was their brother-in-law, simply for the convenience of these owners. Further, that the appellant had in his hands the sum of $1,800 remaining from the sale of said property, of which sum the one-half, $900, belonged to the plaintiff. A decree was accordingly made directing the appellant to pay to the plaintiff the said sum with interest, and this appeal followed. Upon exceptions to these findings they were reviewed by the court in banc and approved. They therefore have all the force and effect of a verdict. In such eases exceptions to findings of fact cannot be made the ground for a reversal in this court unless it appear that the findings are unsupported by evidence legally sufficient, or rest upon inferences improperly drawn from the facts established by such evidence.

The opinión of the learned court below reviewing the evidence so completely vindicates the conclusions reached that but little can be added to its force or effectiveness. We therefore content ourselves by stating, as briefly as we may, the salient facts.

Prior to January 20, 1894, James Morrison was the owner of the lot described in the bill. On that day he made and delivered a deed for it to Blake, and this conveyance is the foundation on which the claim of Blake to the property, or any part of the money arising from its sale, rests. The consideration named is $500, no part of which the court finds was paid. Apart from that, it is certain that after the deed, as before it, James Morrison continued to exercise every external right of ownership over the property. He continued to occupy it without a lease or payment of rent, paid the taxes, discharged the ground rent, etc. On March 14, 1895, more than a year after the date of the deed, James Morrison entered into an agreement in writing with the plaintiff for establishing a partnership business on this property. In this paper he agrees to sell a half interest “ of business and stock'and lot or piece of ground, etc.,” describing the very same lot covered by bis previous deed to Blake. In other words, he was to turn over to the firm, as his contribution to the common stock, this lot of ground, his ice business and the personal property used in connection therewith. The plaintiff was to contribute $3,400 as follows: $1,300 in building material to be used in improving the property, and $2,100 in cash, or other real estate, etc. This paper was written by Blake and is witnessed by him. The plaintiff thereupon entered into joint possession and began the construction of the improvements.

Each party under the agreement gave to the other a judgment note for $3,400 as security for the performance of the contract. That given by James to the plaintiff was signed also by Blake because he held the legal title to the lot. Differences having arisen between tl^e partners, two arbitrations were held to adjust them. In the second, Blake was the umpire. He wrote both awards, signed the first as a witness and the second as arbitrator. Both clearly recognize James Morrison and plaintiff as the owners of the property. Later a corporation was promoted to take over the property and business. ■ Meantime an additional piece of projierty had been secured and the title had been put in Blake also. As to this he admits he paid nothing and knew nothing about it. The consideration received from the corporation by its vendors for the property and business was a mortgage for $4,000 and about $17,000 in the capital stock of the company. Blake made and delivered the deed for both properties, but received no part of the capital stock, that being at once divided between the two real owners. The mortgage was made to Blake because he had the legal title and to avoid any question of priority that might arise had separate mortgages been given to each owner. The land bound by the mortgage was subsequently sold at sheriff’s sale to satisfy earlier liens, and upon distribution of the fund the sum of $2,800 was awarded to Blake as the record owner of the mortgage. He subsequently paid over to the plaintiff and James Morrison $500 each, thus leaving $1,800 in his hands which he still held at the.time of filing the bill in this case. To several witnesses Blake admitted that he held the money and would pay it over as soon as the Morrisons would agree, For instance, he said to the witness Andrew Convery : “ I have got the money here — I have got the money. It don’t belong to me, but when Samuel Morrison and James will agree I am ready to pay the money.”

Finally, the collateral note for $3,400 which had been signed, by James Morrison and Blake and given to the plaintiff, as we have seen, had been entered of record. A joint petition was filed by the defendants to have the judgment opened. It was signed and sworn to by both. After setting forth the agreement of March 14,1895, already referred to, the petition states :

“ The said defendant, William J. Blake, had no interest in said co-partnership, and he was simply made a party to said judgment note because the title to the ground upon which the building, subsequently sold to the ice company, was erected, and which was the joint property of said Samuel and James Morrison,” etc.

The array of facts thus far adverted to, most of which are scarcely, if at all, disputed, coupled with the direct evidence of the plaintiff, certainly furnishes ample warrant for the findings by the court, that, at the time of the sale of the property to the ice company it was owned by the plaintiff -and James Morrison; that the purchase money arising from that sale, including the mortgage of $4,000, also belonged to them; that William J. Blake had no interest in either, but was requested or permitted to take and hold the title to the land and later the mortgage only for their use and convenience and as a consequence, that the one-half of the money still in his hands, viz: $900, belongs to the plaintiff Samuel Morrison. These facts having been thus finally established, before a proper tribunal, and no reasons, legal, equitable or moral having been shown why the defendant Blake should longer withhold the money of the plaintiff, a decree that he should pay it over naturally followed.

Some effort is made in the argument to interpose the statute of limitations as a bar to the plaintiff’s right to a decree, but it is not convincing. We do not find in Pepper et al. v. Robinson, 32 W. N. C. 200, cited by the learned counsel for appellant, any warrant for the conclusion that the statute could avail the defendant under conditions like those that now present themselves.

In Girard Bank v. Bank of Penn Twp., 39 Pa. 92, it was held that the implied contract between a bank and its depositor was to pay only upon a proper demand and, as a consequence, no right of action would accrue to a depositor and the statute of limitations would not begin to run, until after demand and refusal to pay. The principle thus announced we regard as applicable here. When the money awarded to the mortgage was paid over to Blake, the evidence does not disclose that any directions whatever, in writing or by parol, were given as to its disposition or use. It was received by him as the agent or representative of the real owners, and the law would raise an obligation or imply a contract on his part to pay it over to them on their demand. Until he would assume an attitude hostile to their right and indicate that his disposition of their money would no longer be responsive to their will, no right of action would accrue to them or either of them and hence the statute would not begin to run. The assignments of error must therefore be overruled.

The defendant not having paid over the money, in accordance with the terms of the decree, a rule was granted to show cause why an attachment should not issue. An answer was filed in which the defendant set up.

(a) That an attachment execution had been issued out of common pleas No. 5 of the same county against Samuel Morrison as defendant and the respondent, Blake, as garnishee, which was still pending :

(5) That he was absolutely without money or property to enable him to satisfy the decree :

(c) That he was advised by counsel that under the law he could not be attached or imprisoned because of his inability to obey the decree and pay the money.

The rule having been made absolute an appeal was taken to No. 177 October Term, 1906, of this court. As both appeals were argued together on one set of paper-books, we will here give our reasons for our disposition of the second appeal so as to avoid a restatement of the facts.

That the first reason set up by the answer ought not to prevail is sufficiently apparent. There is no allegation that respondent had yet answered any interrogatories in the attachment execution admitting that he had in his hands any money of Samuel Morrison, the present plaintiff. For aught that appears of record he may never there be required to answer, and, if so required, he might set up the pendency of this proceed.ing in equity as a defense. Thus the present plaintiff and bis alleged creditor in the attachment execution would both be left remediless, while the respondent would remain in the undisturbed possession and enjoyment of a large sum of money to which, it has been determined, he has no right. The futility of such an effort to purge himself of contempt is so plain as to invite no further comment.

Nor is the second reason assigned more potent than the first. The mere answer of a trustee that he has wrongfully wasted or otherwise stripped himself of the trust fund, may not stay the arm of a chancellor when the day for accounting has arrived, else indeed would his decree be but an empty name, and breaches of trust would become common by reason of their immunity from any dangerous consequences.

If a court of equity cannot enforce a decree for the payment of money, such as was entered in this case, it must be because of the third reason assigned in the answer to the rule; or, in other words, because the act of July 12,1842, P. L. 339, abolishing imprisonment for debt, took away from such courts a power which, before that time, they undoubtedly possessed. It has been well said by a distinguished jurist that “ the act of 1842, abolishing imprisonment for debt, is one of those great landmarks of legislation which point, not only to a great change in the law, but also to a great revolution in popular sentiments and manners. Its provisions are not to be repealed by artificial distinctions or nice and subtle reasonings.” It is neither our right nor our inclination to even attempt, by judicial decision, to take away any privileges or immunities conferred by a humane act of the legislature on a large class of people who, without breach of trust or violation of duty, have become the victims of financial misfortune, and are thus'rendered unable to pay their debts or discharge other contractual obligations. But it is to be observed that the act of 1842 expressly excepts from its operation a considerable class of cases. As to such cases we must administer the law as if the act had never been passed ; the exception is just as forceful and binding on us as the prohibition.

That the prohibition of the act applies to proceedings in equity as well as at law cannot be doubted. “ No person shall be imprisoned on any civil process issuing out of any court .... in any suit or proceeding instituted for the recovery of any money due upon any .... decree founded upon contract, or due upon any contract, express or implied,” is the language of the statute. Had the act stopped here there would be little difficulty in its construction. It is in the exception to the general enacting clause above quoted, viz.: “ excepting in proceeding, as for contempt, to enforce civil remedies,” etc., that we find the debatable ground.

In construing this act the courts have ever looked beyond the form into the real nature of the transaction to determine whether it fell within the prohibition of, or the exception to, the statute. If the obligation to pay is founded upon a contract, express or implied, the refusal or inability to pay is but a breach of the primary underlying contract, and the defaulting debtor must, in obedience to the supreme legislative will, be given the benefit of the prohibition declared in the statute. If, on the other hand, the obligation to convey, to account, to pay, or to do any other particular thing, be but one of the incidents attached by law to the voluntary assumption of a certain relation by one man towards another, then his refusal to do that thing is a violation of a legal duty. Such refusal, if persisted in after a final decree has been entered against him, puts him in contempt, and classifies his case with those excepted from the operation of the act. But it may be said that in every case where one contracts to pay it is his duty to perform his contract, and conversely, that where it is one’s duty to pay money, for instance, the law will imply a contract to pay. Paucity of. language, however, or inaccuracy in its use, must not be permitted to lead to confusion of thought. In the one case, the law simply recognizes and enforces, as far as may be, the contract into which two persons have voluntarily entered, or are presumed to have entered, with the making of which the law has nothing whatever to do. In the other case the law of the land prescribes certain duties that must be performed by every man who undertakes to place himself in the position to which the discharge of-these duties has been attached. • His obligation to perform them arises not from the union of his will with that of another individual like himself, but from the mandate of the law. Hence, such obligation is, strictly speaking, legal rather than contractual, and his refusal to perform may be fairly and properly termed an infraction of a legal duty and not merely a breach of contract.

Thus in Pierce’s Appeal, 108 Pa. 27,-one of two partners had closed up the joint business but refused to account. Upon a bill filed for the purpose an account was taken, and this resulted in a decree for the payment of a considerable sum of money, with costs, etc. The decree not having been complied with the court attached the defaulting partner. The order was reversed because it was held the obligation to pay arose out of the private contract of partnership. But in Chew’s Appeal, 44 Pa. 247, it was held that a trustee may be attached to enforce a decree that he pay over “ trust money ” in his hands, because such a proceeding is, by the exception already quoted, taken out of the enacting clause of the act of 1842.

Was Blake a “ trustee ” of the money of the plaintiff which was the subject of the decree ? It is a well-established rule in such cases that if the relation of “ trustee ” and cestui que trust be once established as to certain property in the hands of the former, no mere change of the trust property from one form to another will destroy the relation. The court below has found, upon abundant evidence, that when the title to the real estate was first taken in his name, Blake had no beneficial interest or ownership in it whatever. He was a naked trustee of the legal title, whose duty it was to hold or convey it according to the will of the real owners. Had a bill then been filed, and the facts now appearing been established, a decree would surely have followed requiring him to convey the legal title to the Morrisons. Can it be doubted that his refusal to obey such a decree would have warranted an attachment ? At that time he made no denial of his trusteeship, and when the owners sold to the corporation he made the deed on their demand and allowed them to take all of the purchase money then paid. For reasons already stated his trust was continued as to the mortgage securing the balance of the purchase money, and because of that trust he was enabled to take from the sheriff the money awarded to the mortgage after the judicial sale of the real estate. This money is a portion of the same property which, when in the form of real estate, he certainly held in trust for the present plaintiff. The same trust and confidence that formerly put the legal title to the land in him has put the money which in part represents that land, in his pocket. His relation to the money is not different from what it was to the land. His refusal to pay it over is a violation of his trust, and a breach of the legal duty imposed on him by the law when he agreed to take and hold the title for the real owners. He must, therefore, submit himself to the order of attachment until he shall have complied with the decree, or can satisfy an appellate court that the powers of the court below have been, or are, being abused.

At No. 57, October Term, 1906, the decree is affirmed and appeal dismissed at cost of appellant.


text:
    Morrison v. Blake, Appellant
    April 15, 1907 :
    (No. 2).
    Argued Oct. 18, 1906.
    Appeal, No. 177, Oct. T., 1906, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 2,556, making absolute rule for order for attachment in case of Samuel Morrison v. William J. Blake.
    Before Rice, P. J., Portee, Hendeeson, Moeeison, Oelady, Head and Beayee, J J.
    Affirmed.
   Opinion by

Head, J.,

For reasons fully set forth in the appeal between the same parties, at No. 57, October T., 1906, in which an opinion has this day been filed, ante, p. 290, the order making absolute the rule to show cause why an attachment should not issue, is affirmed and the appeal dismissed at the cost of the appellant.


author: Head, L,

text:
    Bomberger, Appellant, v. American Iron & Steel Manufacturing Company.

      Negligence — Private way — Projecting pipes — Contributory negligence.

    Where a person drives a covered wagon on a narrow private way with which he is familiar through previous use, and in which at intervals are perpendicular pipes rising from the water main below, extending a few inches above the surface, and usually covered with an iron disk, and such person without descending from his wagon, and without raising the side flaps, attempts to turn the wagon, and one of his horse's feet is caught in the opening of one of the perpendicular pipes, which at the time is uncovered, and the horse is injured so that he had to be killed, no recovery can be had for the loss of the horse from the owner of the land over which the private way extends.
    Argued Oct. 25, 1906.
    Appeal, No. 193, Oct. T., 1906, by plaintiff, from order of C. P. Lebanon Co., Sept. T., 1904, No. 50, refusing to take off nonsuit in case of Thomas Bomberger V. American Iron & Steel Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, J J.
    Affirmed.
    Trespass to recover damages for death of a horse. Before Ehrgood, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      George B. Woomer, for appellant,
    cited: Woodruff v. Painter, 150 Pa. 91; Lewin v. Pauli, 19 Pa. Superior Ct. 447; Cole v. McKey, 66 Wis. 500 (29 N. W. Repr. 279) ; Martin v. Richards, 155 Mass. 381 (29 N. E. Repr. 591) ; Miller v. Hancock, L. R. 2 Queen’s Bench Div. [1893] 177; Foren v. Rodick, 90 Me. 276 (38 Atl. Repr. 175) ; Polenske v. Lit Brothers, 18 Pa. Superior Ct. 474.
    April 15, 1907:

      E. E. McCurdy, of G-obin £ McCurdy, for appellee,
    cited: Nicholson v. Erie Ry. Co., 41 N. Y. 525; Larmore v. Crown Point Iron Co., 101 N. Y. 391 (4 N. E. Repr. 752) Cusick v. Adams, 115 N. Y. 55 (21 N. E. Repr. 673); Rodgers v. Lees, 140 Pa. 475; Gillespie v. McGowan, 100 Pa. 144; Horstick v. Dunkle, 145 Pa. 220; Gramlich v. Wurst, 86 Pa. 74; Gillis v. Penna. R. R. Co., 59 Pa. 129.
   Opinion by

Head, L,

The defendant is the owner of a tract of land in North Lebanon township, near the city of Lebanon, on which it has erected a large manufacturing plant. As part of this plant it had constructed a row of dwelling houses for the use of its employees. In front of this row of houses was an open way which was wholly on the private property of the defendant, and had never been in any way dedicated to public use. Along this way, parallel with the row of houses and distant about eight feet therefrom, was buried a water pipe to supply the houses with water. At regular intervals along this line, where the house supply pipes connected with it, there arose perpendicular pipes through which those in charge could reach the valves below to turn on or shut off the supply of water to the several houses as necessity might require. Each -of these upright pipes was several inches in diameter, and the openings at the tops had been covered with iron disks that could be readily removed whenever the occasion to use them would arise. Each protruded several inches above the surface of the ground, and the entire line of uprights could be easily seen by anyone whose duty or interest invited his observation.

The plaintiff was a butcher' in the city of Lebanon, and, in the pursuit of his business, had provided a horse and wagon with which his son peddled meat to the outlying communities, and,.among others, to the tenants of the row of houses on the defendant’s property already described. The testimony of the plaintiff showed that on every week day for at least two weeks prior to the accident which resulted in this litigation his son had driven over this way in full daylight. He was, therefore, visited with notice of all the conditions of which the proper use of his own senses would have warned him.

On the morning of June 10, 1904, it being a wet morning, the plaintiff’s son had driven along this way to the upper end of the row, and, in order to get back by the way he had come, proceeded to turn his horse and wagon. According to his testimony there was not space enough to permit him to turn without backing across the pipe line, and this he undertook to do. The wagon was provided with windows inclosing the front part of it to protect the occupant from the weather, and at this time, on account of the falling rain, these windows were closed. In backing over the pipe line the driver did not alight from the wagon, nor did he even open the windows so that he could see whether or not, at the point he had selected for backing over the line, he was likely to come in contact with one of the uprights. As it happened he backed right over one which was uncovered; his horse’s foot went into the opening and became fast, resulting in a broken leg so that he had to be killed.

The plaintiff, alleging that the loss of his horse was caused by the negligence of the defendant, brought this action to recover its value.

We are not disposed to hold, as the learned court below seems to have held, that the plaintiff, was simply a trespasser. But the most that can be fairly claimed for him is that his use of the defendant’s property was but permissive, or that he was a mere licensee. Under such circumstances what obligation did the law impose on him to be vigilant ? It is well established that even upon a public highway, primarily opened and intended for the passage of vehicles drawn by horses, a traveler is obliged to avoid patent obstructions or dangers of the existence of which the use of his own senses will warn him. Certainly, then, it must follow that where a person voluntarily, in pursuit of his own pleasure or profit, enters upon a narrow way over the private property of another — so narrow, indeed, if we believe the testimony of the plaintiff’s son, as to fairly warrant the inference that it was intended rather as a footway than as a driveway — an even greater degree of care and caution on his part would be naturally and reasonably required. If the testimony of the plaintiff shows that the injury of which he complains is attributable in whole, or even in part, to his failure, or that of his servant in charge of his vehicle, to discharge this obvipus duty, then the defendant cannot be called upon to respond, even if we assume, which we do not undertake to do, a breach of some legal obligation by the defendant, to have been established by the evidence.

Thomas Bomberger, the plaintiff, in his own testimony gives us the following:

“ Q. Could anybody have seen that (the pipe into which the horse stepped) when driving in along there ? A. Not when he backed around and had his windows closed. Q. This row of pipes you could easily see as you drove up there ? A. Yes, you could see them, but when you turn around and wanted to back you could not see. Q. At this particular place, if the pipe had been to the side of his wagon, one side or the other, and he had looked on the ground, he could have seen that pipe ? A. Maybe, if he would have looked out. If we are in a wagon we can’t get our head down to look under the wagon. Q. If you had a clear view of the ground as far as the horse’s front foot, you could have seen this pipe ? A. Yes, sir; if you lean out over the dasher you could see it. Q. Did you see this pipe when you delivered meat ? A. I have seen them pipes. Q. This very pipe ? A. I expect I seen it. Q. You had to almost see it when you drove there? A. Of course when I drove there I had to see that pipe.”

It is thus apparent that the exercise of even a moderate degree of care on the part of the driver would have enabled him to easily avoid the danger. The standpipes were many feet apart, and a person using his eyes could have, without difficulty, selected a point between them where he could have backed over the pipe line with perfect safety. In order to remain dry and comfortable in his inclosed wagon he chose to practically blindfold himself, and the fate of those “ who have eyes but see not ” overtook him. For injuries thus sustained the law affords no relief. Nam vigilantibus sed non dormientibus leges subveniunt.

Judgment affirmed.


author: Per Curiam,

text:
    Joseph Schlitz Brewing Company, Appellant, v. Rosenbluth.

      Practice, C. P. — Affidavit of defense — Set-off.
    An affidavit of defense should set forth fairly and fully facts sufficient to show prima facie, a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statement, it will be insufficient to prevent judgment. But if not deficient in either of these respects, and on its face fairly sets forth a prima facie defense, it is not to be subjected to close technical examination as if it was a special plea demurred to. Its office is to prevent a summary judgment and for that purpose a showing of a defense with certainty, to a common intent is sufficient.
    The act allowing an appeal from a refusal of judgment for want of a sufficient affidavit of defense was intended to reach only clear cases of error of law, so as to prevent the delay of a trial, and in doubtful cases, especially those requiring a broad inquiry into the facts, where the court refuses judgment, the matter in controversy should go to the jury under proper instructions from the court.
    An affidavit of defense setting up a set-off will not be deemed insufficient because the exact amount of the set-off is not stated, where it appears that the amount is positively asserted to be greater than the balance claimed.
    Argued. Feb. 26, 1907.
    Appeal, No. 47, Jan. T., 1907, by plaintiff, from order of C. P. Luzerne Go., May T., 1902, No. 536, discharging rule for judgment for want of a sufficient affidavit of defense in case of Joseph Schlitz Brewing Company v. Max Rosenblutli.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court discharging the rule.

      B. I. Creveling, with him Reynolds $ Reynolds, for appellant.

      R. B. Sheridan, with him John T. Lenahan, for appellee.

      April 15, 1907 :
   Per Curiam,

An affidavit of defense should set forth fully and fairly, facts sufficient to show prima facie, a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statement, it will be insufficient to prevent judgment. But if not deficient' in either of these respects, and on its face fairly setting forth a prima facie defense, it is not to be subjected to close technical examination as if it was a special plea demurred to. Its office is to prevent a summary judgment and for that purpose a showing of a, defense, with certainty to a common intent, is sufficient:” Andrews v. Blue Ridge Packing Co., 206 Pa. 370. The general doctrine thus restated has been l’ecognized in numerous cases by the Supreme Court and by this court, some of them very recent, and it is pertinent here. The principle enunciated in Griffith v. Sitgreaves, 2 W. N. C. 707.; s. c., 81* Pa. 378 — that the act allowing an appeal from a refusal of judgment for want of a sufficient affidavit of defense was intended to reach only clear cases of error of law, so as to prevent the delay of a trial, and that in doubtful cases, especially those requiring a broad inquiry into the facts, where the court refuses judgment, the matter in controversy should go to the jury under proper instructions from the court — is also pertinent. It has been reiterated in cases too numerous to cite, and was restated in the very recent case of Marquis v. McKay, 216 Pa. 307. The manner in which the amount of set-off is stated in the affidavit of defense before us is open to criticism. The exact amount ought to have been stated, unless for reasons shown this was impossible. But the defect, we think, in this particular is not such as to require a reversal of the order, in view of the fact that, the amount is positively asserted to be greater than the balance of the claim for which judgment had not been taken before the present rule to show cause was obtained. Viewing the affidavit of defense in the light of ■ the rules above stated, we cannot say that there was error in refusiug summary judgment for the part of the claim in dispute.

The appeal is dismissed at the costs of the plaintiff, but without prejudice to its right to trial by jury, and a second appeal after linal judgment.