author: Head, J.,

text:
    Trexler, Appellant, v. Reynolds.

      Contract — Construction—Written agreement.

    1. Where a court is called upon to construe a particular clause of a written instrument, it will take into consideration the situation and relation of the parties, and all the other provisions of the instrument, and will apply the language used in the writing to the surrounding circumstances exactly as it believes the parties applied it.
    2. In construing a written instrument the courts will, if the construction is doubtful, take into consideration the interpretation which the parties themselves put upon it.
    3. A partnership consisting of three persons owned land, and farmed and dealt in live stock. Two members of the firm and a third person constituted a limited partnership which leased a portion of the partnership land for lumbering purposes. The limited partnership owned a sawmill and other necessary buildings located on the land. It also owned horses and wagons and other property necessary for its business, and a large number of staves piled at its mill. At a time when such were the conditions, the three partners of the general partnership entered into an agreement in the preamble of which they styled themselves as partners trading under the firm name. The agreement recited that certain differences had arisen between the members of the partnership and that -they agreed to dissolve the same. It provided that the two partners who were interested in the limited partnership should sell their undivided half interest in the land to tjie other partner “and all their right, title, interest in and to all the personal property upon the said lands, and all their right, title and interest in and to all other personal property owned by the said firm of whatsoever character or wheresoever situated.” The agreement also excepted from its operation the stave mill and the buildings in connection with it, ,and it was also provided that the manufacture of staves would continue until a certain date specified upon a royalty, but that after such date •operations should cease, and the mill be removed. The agreement was fully executed in so far as it related to the land and the cattle and farming implements of the general partnership. Subsequently the partner to whom the half interest in the land was sold claimed the staves and the horses and wagons and other property which had been in the possession of the limited partnership. Held, that under a proper construction of the agreement, considering the circumstances and the situation of the parties, such a claim could not be sustained.
    Argued Nov. 18, 1909.
    Appeal, No. 97, Oct. T., 1909, by plaintiffs, from judgment of C. P. Huntingdon Co., Dec. T., 1905, No. 172, on verdict for defendant in case of J. F. Trexler and J. L. Trexler v. H. P. Reynolds.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Feigned issue to determine the ownership of certain corporate property.
    The facts are stated in the opinion of the Superior Court.
    Verdict for defendant. Plaintiffs appealed.

      Errors assigned were (1-91) various rulings on evidence and instructions.

      W. M. Henderson, with him H. H. Waite, for appellants.
    One of the rules governing the interpretation of contracts is that an agreement ought to receive that construction which will best effectuate the intention of the parties. This intention must be collected not from detached portions of the agreement; but from the whole: Ellmaker v. Ellmaker, 4 Watts, 89; Miller v. Fichthorn, 31 Pa. 252; Williamson v. McClure, 37 Pa. 402; Lehigh Coal, etc., Co. v. Harlan, 27 Pa. 429.
    The interpretation placed upon the agreement of January 25, 1905, by the parties and the acts and declarations of the appellee at the execution of agreement and subsequent thereto are to be considered: Cummins v. Ins. Co., 197 Pa. 61; Easton Power Co. v. Ry. Supply Co., 22 Pa. Superior Ct. 538; Kostenbader v. Peters, 80 Pa. 438; Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. 429; People’s Nat. Gas Co. v. Wire Co., 155 Pa. 22; Kane v. Ins. Co., 199 Pa. 205; Pratt v. Campbell, 24 Pa. 184; Berridge v. Glassey, 112 Pa. 442; Miner’s App., 61 Pa. 283.

      Thos. F. Bailey, with him Saml. I. Spyker and Chas. C. Brewster, for appellee.
    It is the duty of the court to interpret a contract and of the jury to determine whether it is established by proof: Folsom v. Cook, 115 Pa. 539; Carson v. Hosiery Co., 15 Pa.. Superior Ct. 476.
    July 20, 1910:
   Opinion by

Head, J.,

Although the record before us is somewhat voluminous and the assignments of error numerous, the controlling question in the case lies within a narrow compass.

In the year 1904 the two plaintiffs and the defendant constituted a partnership doing business in Huntington county under the firm name and style of Trexler Bros. & Co. The business in which they were engaged was farming and dealing in five stock, both horses and cattle. The firm, or the members composing it, owned a large tract of land of nearly 5,000 acres and much personal property consisting of valuable horses, herds of cattle, farming implements, etc. It appears to be a conceded fact that the two Trexler brothers owned the one-half of the land and a proportionate share of the personal property and business, the defendant Reynolds owning the remaining half.

During the same year there was in existence a limited partnership, the legal name of which was Trexler Stave & Lumber Company, Ltd. It is conceded that the defendant Reynolds was no member of this firm, had no interest in its business and no ownership in its property. Whilst the articles of association organizing this limited company were rejected by the learned trial court, and we are therefore not advised by the evidence how many persons were interested, it appears to be conceded that the two plaintiffs and their father at least were members, and further that the father, although a member of the limited company, was not a member of Trexler Bros. & Co. and had no interest in their lands, personal property or business.

This limited partnership was the owner of a sawmill, stavemill and other necessary buildings located on the large tract of land belonging to the general partnership referred to. It had acquired the stumpage rights to certain timber growing on that land which it cut and manufactured at its mill, paying to the owners therefor a royalty of twenty-five cents per 1,000 staves. It is not denied that the defendant Reynolds had full knowledge of the existence of this limited partnership and of its property and business because the stumpage lease just referred to was either made or renewed while he was a member of the firm of Trexler Bros. & Co., the lessors.

With matters in this situation the two plaintiffs and the defendant entered into a written article of agreement dated January 29, 1905, and the true construction of that agreement, and particularly of a single clause in it, to be referred to, has become the principal matter of contention between the parties.

If it be, as the able counsel for the appellee insists, that it' was the duty of the learned trial court to construe this written agreement, the attitude which the court should assume in undertaking to perform such a duty has been often declared by our text-writers and courts of last resort. In Williamson et al. v. McClure, 37 Pa. 402, Woodward, Justice, said, “In order to get at the true meaning of the particular clause in controversy, we must advert to the situation and relation of the parties, the subject-matter of their agreement, and all the other provisions of the instrument. It is a true rule of construction, said Lord Ellenborough in Barton v. Fitzgerald, 15 East, 530, that the sense and meaning of the parties in any particular part of an instrument, may be collected ex antecedentibus et consequentibus, that every part of it may be brought into action, in order to collect from the whole one uniform and consistent sense, if that may be done.” In Wright v. Monongahela Natural Gas Co., 2 Pa. Superior Ct. 219, our Brother Orlady said, “It is the dictate of common sense, and therefore a rule of law, that every written instrument is to be interpreted according to the subject-matter, and yet the nature and qualities of the subject-matter are seldom fully stated, often only alluded to in the writing. Many cases might be cited from the books to mark the distinction, too often lost sight of, between evidence to alter the language of a written instrument and evidence to define the position of the parties, and the nature and condition of the subject contracted about. So long as parties call upon courts of justice to administer their contracts, they must expect them to be administered as nearly as may be according to the very intention and understanding that were present in the minds óf the parties when the contract was signed, and to this end, courts take the language employed and apply it to the surrounding circumstances exactly as they believe the parties applied it: Barnhart v. Riddle, 29 Pa. 92; Graver v. Scott, 80 Pa. 88; Irvin v. Irvin, 142 Pa. 271.”

Keeping this cardinal principle in mind, let us turn our attention to the agreement itself and see if, viewing it in the light of the circumstances that surrounded the parties at the time of its execution, there is any room for a substantial doubt as to the subject-matter with which they there undertook to deal. In the first place we observe the agreement is made “between John L. Trexler, J. F. Trexler and H. P. Reynolds, trading and doing business as Trexler Bros. & Co.” This fact of itself would seem to point with considerable force to the idea that the thing about which they were to deal would be all or part of the business or property of the firm because no one but members of the firm was to join in the agreement and they were dealing in their capacity as partners. The agreement so declares. But all speculation as to the purpose and object of the agreement is put at rest by its very next clause, which states in plain and unambiguous terms the reason why the agreement was to be made. “Whereas certain differences have arisen between the members of the said copartnership, they hereby agree to dissolve the same upon the following terms.” The purpose of the agreement then was the dissolution of the pre-existing partnership, and this would naturally involve some disposition of the partnership property and business. The agreement then in an orderly way next proceeded to oblige the two Trexlers to sell to their partner Reynolds their undivided half interest in the tract of land, describing it, and then follows the clause out of which this contention has arisen, to wit, “and all their right, title and interest in and to all the personal property upon the said lands, and all their right, title and interest in and to all other personal property owned by the said firm of whatsoever character or wheresoever situate,” except certain moneys due the firm which are specifically arranged for. Then follow a number of provisions for the payment of purchase money with which we have no concern. The final one of these provisions, however, required Reynolds to execute a bond and mortgage to secure a cash payment of $3,000. It is not contended but that this agreement was fully executed, so far as it related to the land and the horses, cattle, farming implements and all other personal property thereon which at that time belonged to the firm of Trexler Bros. & Co.

At the time this agreement was thus made, however, the Trexler Stave & Lumber Company had piled at its mill a large number of staves. It also owned some horses, wagons and other like property which it used in its business, bringing lumber to the mill and hauling staves to the railroad station. When the plaintiffs sought to collect the balance due on the bond for $3,000, given to them as above recited, the defendant alleged that the consideration of that note had failed in part because the Trexlers had not turned over to him all of the personal property belonging to the Trexler Stave & Lumber Company, contending that the clause of the agreement already quoted covered not only the personal property of Trexler Bros. & Co., but all other property at the time on the land, although it was not denied that such property belonged to the Stave & Lumber Company, Ltd. The learned trial court opened the judgment and permitted the defendant to make defense, and on the trial construed the agreement in accordance with the contention of the defendant and submitted to the jury the single question of ascertaining the value of the personal property of the Stave & Lumber Company which had been located on the land when the agreement was made and which had never been turned over to the defendant.

After an attentive examination of the language of the agreement and all the circumstances admittedly existing at the time it was made, we have reached the conclusion that the interpretation of the agreement adopted by the learned trial judge was an erroneous one. In no aspect of the case, as we view it, can the agreement furnish any foundation for the defendant’s claim that any part of the consideration of his bond was the acquisition by him of the title to a large amount of personal property belonging to a limited partnership which was no party to the agreement.

As we have already seen, the agreement declares that the parties to it, whose interests alone could be affected by it, were the three partners composing the firm of Trexler Bros. & Co. It further declares that its purpose was to straighten out the difficulties which had arisen among the members of that firm with relation to their own property and business, not to that of any other person. It is true that the plaintiffs agree to sell “all their right, title and interest in and to all the personal property upon the said lands, and all their right, title and interest in and to all other personal property owned by the said firm,” etc, The learned court below construes the first portion of this clause as if the latter portion of it did not exist. No proper significance can be given to the expression “all other personal property owned by said firm” unless we hold that the qualifying expression “owned by said firm” applies to all of the property which was to be the subject of sale. This we think is not only the true grammatical construction of the sentence as a whole, but is the only construction, that will make the entire agreement harmonious and calculated to effectuate the avowed object of those who made it. Later on the agreement provides that the stavemill and all the buildings in connection with it, except a certain dwelling house, were reserved from the operation of the agreement. The appellee contends that if it had been the intention of the parties that the manufactured lumber and personal property of the stave company were to be excepted from the operation of the agreement, the exception would have been there noted. But this is not convincing for the simple reason that such personal property had not previously been included in any of the more general terms of the agreement. The Trexlers had previously stipulated that they would sell and convey to the defendant their undivided half of the tract of land, and this without more would have carried with it all the buildings upon the land. The mills and buildings which the stave company had a right to reprove were therefore the proper subject of an exception or reservation later on in the instrument. As we have already seen, however, under a proper construction of the earlier clause relating to the personal property there was no occasion for a specific reservation of that which belonged to one who was no party to the agreement and who could not be bound by it.

The agreement still further provides that the manufacture of staves was to go on at the then present location of the mill until May 1 following the execution of the agreement on a royalty of twenty-five cents per 1,000 staves, but that after that its operations were to cease and the mill was to be removed at such time as it would be convenient to the owners to move it. Thus, while the right of the limited company to continue to use its mills and manufacture staves on the land until May 1 was expressly reserved, the defendant claims that its horses, wagons and harness, axes, saws and tools — the appliances without which its business could not be conducted — had been taken from it and transferred to him by the operation of the clause of the agreement we have quoted.

Our construction is still further strengthened when it is remembered that the two individuals who were dealing with Reynolds had no power to sell the property of the limited partnership or pass any title to it. That could only be done by the proper officers of the limited company acting under the authority of its board of managers. Even if the agreement could be construed to be an assignment by the two Trexlers of their respective interests in the limited partnership, their transferee would take no title or right of possession to the personal property of the limited partnership. His rights as the transferee of their shares would have to be worked out in the manner provided by the act of assembly regulating the affairs of limited partnerships.

It therefore seems to us that’ the only defense which the defendant set up to the payment of the balance due on his bond, after allowing certain admitted credits, entirely failed, and the learned court below should have directed a verdict for this balance in favor of the plaintiffs.

This view of the case renders it unnecessary that we should deal with the assignments of error in detail. Many of them complain of the rejection of evidence tending to show, by the acts and declarations of the parties at the time, the interpretation which they themselves put upon the agreement, and if the true construction of the written instrument had been a matter of doubt, such evidence would certainly have been admissible. “When we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it, as evidenced by their course of dealing under it:” People’s Nat. Gas Company v. Wire Company, 155 Pa. 22. Many other cases could be cited to show the correctness of this principle, but it is unnecessary we should go farther.

The judgment is reversed but as the record exhibits no basis on which we can enter judgment for the plaintiffs,. a venire facias de novo must be awarded.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Henning v. Keiper, Appellant.
    July 20, 1910:

      Appeals — Printing of paper-books — Trespass—Treble damages — Reduction of judgment.

    Where the court below in an action of trespass trebles the damages awarded by the jury, and the appellate court reverses the judgment and directs judgment in favor of the plaintiff for the amount of the verdict, and it appears that the only assignment which the defendant was able to sustain was that relating to the damages, the plaintiff is not liable for the cost of printing the defendant’s paper-book on the appeal.
    Argued Dec. 6, 1909.
    Appeal, No. 47, Oct. T., 1909, by defendant, from order of C. P. Monroe Co., Feb. T., 1907, No. 16, discharging rule to tax expense of printing paper-books as part of the costs in case of Phillip G. Henning v. Amos Keiper.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beayer and Porter, JJ.
    Affirmed.
    Rule to show cause why the defendant should not be permitted to have taxed, as a part of his costs, the expense of printing his paper-book on appeal.
    The court in an opinion by Staples, P. J., discharged the rule.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order discharging the rule.

      Rogers L. Burnett, for appellant,
    cited: Barto v. Beaver Traction Co., 37 Pa. Superior Ct. 447.

      A. Mitchell Palmer, with him C. R. Bensinger, for appellee.
   Opinion by

Rice, P. J.,

Judgment was entered for the plaintiff in trespass, the court trebling the damages awarded by the jury. On appeal this court reversed the judgment and directed judgment in favor of the plaintiff for the amount of the verdict. The question is, whether the plaintiff is liable for costs of printing appellant’s paper-book on that appeal. The learned judge of the common pleas in a well-considered opinion held that he was not, and in that conclusion we all concur. It is to be observed that on that appeal there were several assignments of error urged by the appellant and that the only one that was sustained was that which related to the trebling of damages. The result was a judgment in favor of the appellee, but for a less amount than he had recovered in the court below. Apart from any equitable considerations we think the court was right in holding that the final decision was not rendered in favor of the appellant, within the meaning .of the act of 1907; and it is only the party in whose favor the final decision is rendered that is entitled to charge and collect as part of the costs the amount that shall have been expended for printing his paper-books. Notwithstanding the fact that the defendant succeeded in reducing the amount of the judgment, he was, nevertheless, the losing party just as the defendant on an appeal from a judgment of a justice of the peace is the “unsuccessful party” if judgment be obtained against him in the common pleas, though for a less amount. See King v. Boyles, 31 Pa. 424; Knappenberger v. Roth, 153 Pa. 614; Root v. Miller, 1 Woodward’s Decisions, 81. We have carefully considered the case of Kennedy v. Hughey, 3 Watts, 265, upon which appellant’s counsel places great reliance, but we think it throws very little light upon the construction of the statute controlling the decision of the case before us. “Costs which were given to neither plaintiff nor defendant by the common law, are so peculiarly a matter of statutory regulation, that the first and generally the final inquiry of the judicial mind is, What will has the legislature expressed upon the subject.” Woodward, J., in King v. Boyles, supra. If at liberty to reason about the abstract justice of the case, a plausible argument might be made in favor of a division of the costs in question, but we do not see how it could be plausibly argued that all should be borne by the plaintiff. However, we .are not at liberty to apportion costs, but must determine the case in accordance with the statutory rule, which we think was done in the order appealed from. See opinion in Pennsylvania Company v. Wallace, ante, p. 000.

The order is affirmed.


text:
    Mountain Water Company v. Emaus Borough, Appellant.

      Corporations — Water companies — Boroughs—Municipal consent to use of streets — Equity—Jurisdiction.
    1. The right of a private corporation to break up the public highways of a municipality in the exercise of a franchise conferred upon them by an act of assembly is necessarily subject to the reasonable municipal regulations of the district, enacted for the common good of all its inhabitants, unless specially excluded by the act conferring the right. Such a right is not limited to the control of the mere surface; it extends to the soil beneath to whatever extent it may be required in aid of such purposes as fall within the municipal function in connection with the health and safety of the public.
    2. Where a water company is incorporated to supply water to a township, and thereafter a portion of the township is annexed to a borough, a borough ordinance relating to the extension of the works of the water company is unreasonable and void which provides “that no rights and privileges be granted to said water company to lay pipes and fixtures on any streets, lanes, or alleys in said territory until the same are regularly adopted, located and opened by ordinances and graded to the required grade under.the rules and regulations of the borough.”
    3. Such, an ordinance would be not a regulation, but a prohibition for an indefinite period, in the case of a township road within the territory which became a borough street when the territory was annexed, and also in case of streets laid out by ordinance, but not opened.
    4. Equity has jurisdiction to restrain a borough from enforcing an unreasonable and prohibitory ordinance relating to the use of its streets by a water company.

      5. Where a bill in equity has been filed against a borough by a water company to restrain the enforcement of an alleged illegal ordinance, and the borough has made no objection to the jurisdiction in the court below, it can make no such objection on appeal.-
    Argued Dec. 7, 1909.
    Appeal, No. 28, Oct. T., 1909, by defendants, from decree of C. P. Lehigh Co., Sept. T., 1908, No. 2, In Equity on bill in equity in case of The Mountain Water Company v. Emaus Borough, Harvey T., Wickert, Burgess et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Trexler, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree awarding injunction.

      Milton C. Henninger, for appellants.
    Equity had no jurisdiction: Kneedler v. Norristown, 100 Pa. 368; Borough of Millertown v. Bell, 123 Pa. 151; Borough of Gettysburg v. Zeigler, 2 Pa. C. C. Rep. 326; Borough of Philipsburg v. Central Penna. Tel., etc., Co., 22 W. N. C. 572; Conshohocken v. Fennel, 4 Montg. 25; Frederick Street, 11 Pa. C. C. Rep. 114; Iowa Street, 12 Pa. C. C. Rep. 611.
    Upon the merits of the case the judgment of the court cannot be sustained: Northern Liberties v. Gas Co., 12 Pa. 318; Water Co. v. Burgess of Darby, 199 Pa. 400; Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355; O’Maley v. Freeport Boro., 96 Pa. 24; Fisher v. Harrisburg, 2 Grant, 291.

      Claude T. Reno, with him Richard W. Iobst, for appellee.
    Equity had jurisdiction: Hill v. Commissioners of Kensington, 1 Parson’s Select Eq. Cases, 501; Washington Boro. v. Steiner, 25 Pa. Superior Ct. 392; Petersburg v. Noss, 52 Pa. 448; Com. v. Beaver Boro., 171 Pa. 542; Com. v. Connellsville Boro., 201 Pa. 154; Mahon v. Norton, 175 Pa. 279; Delaware County’s App., 119 Pa. 159; Pennsylvania R. R. Co. v. Philadelphia County, 16 Pa. Dist. Rep. 723.
    July 20, 1910:
    The equity courts have qualified the rule so that objection to the jurisdiction of equity on the ground that proceedings should have been instituted on the law side of the court, will not be entertained, unless made within reasonable time after bill filed: Pennsylvania R. R. Co. v. Bogert, 209 Pa. 589; Margage & Green Co. v. Ziegler, 9 Pa. Superior Ct. 438; Gwinn v. Lee, 6 Pa. Superior Ct. 646; Sunbury, etc., R. R. Co. v. Cooper, 33 Pa. 278; Adams’ App., 113 Pa. 449; Evans v. Goodwin, 132 Pa. 136.
    The ordinance was unreasonable: Northern Liberties v. Northern Liberties Gas Co., 12 Pa. 318; Kneedler v. Norristown, 100 Pa. 368; Scranton Gas, etc., Co. v. Scranton, 214 Pa. 586; Springfield Twp. v. Water Co., 29 Pa. C. C. Rep. 614; Lansdowne v. Springfield Water Co., 16 Pa. Superior Ct. 490; Kittanning v. Gas Co., 26 Pa. Superior Ct. 355; Edgewood v. Scott, 29 Pa. Superior Ct. 156; Pittsburg v. Gas Co., 34 Pa. Superior Ct. 374; Edgett v. Douglass, 144 Pa. 95; Fidelity Title, etc., Co. v. Weitzel, 152 Pa. 498; Drake v. Lacoe, 157 Pa. 17; Shillito v. Shillito, 160 Pa. 167; Bank v. Loeffert, 184 Pa. 164; Williams v. Church, 193 Pa. 120; Reading v. Gas Co., 2 Delaware Co. R. 437; Phila. Steam Supply Co. v. Phila., 17 Phila. 110; Forty Fort Boro. v. Water Co., 9 Kulp, 241; Beaver Valley Water Co. v. Conway, 213 Pa. 225.
   Opinion by

Rice, P. J.,

The plaintiff is a water company incorporated in May, 1891, under the act of 1874 and its supplements, and authorized by its charter to supply water in the township of Upper Milford to the public and to persons, partnerships and associations residing therein and adjacent thereto. In September, 1903, by ordinance duly enacted a portion of the township of Upper Milford, including part of the district wherein the plaintiff exercises its privileges, was annexed to the borough of Emaus. In June, 1908, the borough adopted an ordinance entitled: “An ordinance relating to the extension of the works of the Mountain Water Company restricting and regulating the laying of pipes and fixtures, and providing rules and conditions and penalties for violation of the same.” By the first section of the ordinance the rights and privileges of the company were restricted to that portion of the territory within the limits of the borough that was annexed to the borough in 1903. By sec. 2 it was ordained as follows: “That no rights and privileges be granted the said Mountain Water Company to lay pipes and fixtures on any streets, lanes or alleys in said territory until the same are regularly adopted, located and opened by ordinances and graded to the required grade under the rules and regulations of the borough.” Section 7 provides penalties for the neglect or refusal of the company to comply with the provisions, restrictions, rules or regulations of the ordinance, and, while sec. 2 is awkwardly worded, it doubtless was intended as a restriction the violation of which would be punishable under sec. 7. By the decree appealed from this section is declared null and void and the borough is enjoined from enforcing it.

It is not contended that the right of the water company to occupy the highways of the district wherein it is authorized to exercise its powers is dependent upon the consent of the municipal authorities, which they in their discretion may give or refuse. But it is contended that the borough has authority to adopt reasonable regulations as to the manner of exercising those powers. The thought is expressed in the Act of May 16, 1889, P. L. 226, in these words: “Subject to such regulations in regard to streets, roads, lanes and other highways and impairing the free use thereof as little as possible, and subject to such regulations as the councils of said borough, town, city or district may adopt in regard to grades or for the protection and convenience of public travel ovfer the same.” And the general principle has been thus stated: “The right of a private corporation to break up the public highways of a municipality in the exercise of a franchise conferred upon them by an act of assembly is necessarily subject to the reasonable municipal regulations of the district, enacted for the common good of all its inhabitants, unless specially excluded by the act conferring the right:” Commissioners of Northern Liberties v. Northern Liberties Gas Co., 12 Pa. 318; Frankford & Phila. Passenger Railway Co. v. Phila., 58 Pa. 119; Phila. Steam Supply Co. v. Phila., 15 W. N. C. 57; Lansdowne v. Springfield Water Co., 16 Pa. Superior Ct. 490; Pittsburg v. Consolidated Gas Co. of Pittsburg, 34 Pa. Superior Ct. 374. See, also, Scranton Gas & Water Co. v. Scranton, 214 Pa. 586, wherein Justice Stewart, who delivered the opinion of the court, uses this expressive language: “Calling the legislative grant of privilege to use the streets a contract does not avoid the conditions on which the privilege is to be exercised. Whether such limitation or conditions be expressed in the .grant or not is immaterial, for, as said in Butchers’ Union Slaughter House, etc., Co. v. Crescent City Live Stock Landing, etc., Co., 111 U. S. 746, the power to control and regulate the streets so as to protect the public health, is one that cannot be bargained away by legislative or municipal grant. The power to control them for the protection of public safety, if not the same, stands on equally high ground. All authorities agree that such right is both paramount and inalienable. Nor is the right limited to the control of the mere surface; it extends to the soil beneath, to whatever extent it may be required in aid of such purposes as fall within the municipal function, in connection with the health and safety of the public: Water Commissioners of Jersey City v. Hudson City, 13 N. J. Eq. 420.” The question then arises, whether the section of the ordinance under consideration is a reasonable municipal regulation, or is a virtual prohibition, for an indefinite period, of the right of the company to exercise its franchises within certain portions of the territory described, in its charter. The learned counsel for the appellant seeks to put a construction upon the section which would relieve it of some of the objections to its reasonableness, set forth in the opinion of the learned judge below and in the argument of the appellee’s counsel. By his construction the ordinance would not apply to a highway laid out but not opened. Up to the .period of opening, he says, the section does not interfere with the company in the occupation of any territory with its pipes and fixtures, “ but after a street, lane or alley has been located or adopted followed by the opening of the same by the borough, then before pipes and fixtures are laid by the water company it must also be graded to the required grade under the rules and regulations of the borough.” While this construction, as we have suggested, would relieve the section from some of the objections against it, it would not relieve it from all of them. By this construction the grade of the highway must be fixed by ordinance and the highway must be graded in accordance with the established grade before the company can use that highway for its purposes. This is a virtual prohibition of the use of ungraded streets by the company until at some indefinite time in the future the borough decides to grade them. We can readily understand the reasonableness of a regulation that would prevent the company from interfering with the grading of a street actually being carried on; but this is not the meaning of the section. The borough may never decide to grade a particular street. That is a matter left to its discretion, and we can see no reasonableness in a prohibition of the use of such street for the purpose of laying water pipes until the borough in the exercise of its discretion shall decide to grade it. Nor is such regulation necessary, for it was clearly decided in Scranton Gas & Water Co. v. Scranton, 214 Pa. 586, that even if the municipality should prescribe a grade after the water company had placed pipes in the street, the company would at its own expense be compelled to change its pipes if the changed grade required it. But we are unable to adopt the construction which the learned counsel puts upon the ordinance. Apparently, if there were a township road within the territory, which became a borough street when the territory was annexed, the company would not be permitted to lay its pipes in such highway. So, also, if a street be laid out by ordinance, but not opened, the company would be prevented from laying its pipes in that street, even with the consent of the owners of the property. This is not regulation, but prohibition for an indefinite period. It goes far beyond what is reasonably necessary for the accomplishment of any legitimate municipal object, and unless its plain terms be restricted by unwarranted judicial construction its enforcement must operate in derogation of the rights of the water company and oppressively upon many individuals desiring the company to supply them with water. And this is. equally true even if we adopt the construction of the section which the appellants’ counsel asks us to do. An ordinance must be reasonable and not oppressive; it must not impose a burden without an apparent benefit: Commissioners of Northern Liberties v. Northern Liberties Gas Co., 12 Pa. 318; Borough of Millerstown v. Bell, 123 Pa. 151. Applying these principles to the section of the ordinance in question, we concur with the learned court below in its conclusion that the section is unreasonable. :

But it is urged that a court of equity does not have jurisdiction to give the relief prayed for. The precedents are numerous where equity has enjoined the enforcement of illegal ordinances, and it is difficult to see why, unless a plainly adequate remedy at law is available, a court, whose jurisdiction extends to the prevention or restraining of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals, should not exercise this power in restraint of illegal acts of municipal bodies as well as of individuals. “Nothing can be more clear, than that there is a class of cases where this court can hold a municipal corporation responsible for their acts, when exercising jurisdiction in equity, if a proper case is presented, and will grant an injunction to restrain them, as they would an individual:” Hill v. Commissioners of Kensington, 1 Pars. Select Equity Cases, 501. The ordinance in question is directed exclusively against the plaintiff company. If the company undertakes to exercise its franchises in spite of the invalid section of the ordinance, it and its officers and employees may be subjected to numerous prosecutions for the penalty prescribed by sec. 7, and greatly harassed thereby. There is every reason for sustaining the jurisdiction of the equity court, and we think it is sustained by precedent and authority; but even if it were doubtful, the case belongs to a class wherein it has been held that the objection should have been made early in the proceedings, as the authorities cited in the opinion of the learned judge below and in the brief of appellee’s* counsel abundantly show. See particularly, Pennsylvania R. R. Co. v. Bogert, 209 Pa. 589.

The decree is affirmed at the costs of the appellants.


text:
    Corbe v. Burkert, Appellant.

      Principal and agent — Bailment—-Exchange of bonds — Fraud of agent.

    1. Where the owner of five county bonds payable to the original subscriber by name, or his assigns, desirous of exchanging them for one borough bond of the aggregate amount of the county bonds, delivers them to his agent, and receives a receipt which states that the bonds are to be exchanged for a borough bond, the transaction is a bailment, and the delivery need not be evidenced by a written assignment.
    2. Where in such a case, the agent takes the bonds to a bank and substitutes them for a county bond which he had deposited as collateral security for a loan of his own, but does not deliver the latter bond to his principal, and the bank without the knowledge of the real ownership of the substituted bonds subsequently sells them after a default by the agent in the payment of' his debt, neither the bank nor those who innocently purchased the bonds from it, will be compelled by a court of equity to surrender the bonds to the person who had delivered them to his agent for the exchange.
    3. In such a case the owner’s loss arose solely from the fact that the man whom he trusted to dispose of his bonds, after having done so in accordance with his directions, had absconded and converted to his own use the property resulting from that disposition.
    Argued Dec. 8, 1909.
    Appeal, No. 98, Oct. T., 1909, by defendants, from decree of C. P. Schuylkill Co., July Term, 1905, No. 10, on bill in equity in case of Joseph Corbe v. E. P. Burkert, Citizens’ National Bank of Ash-land, Charles A. Weidman, Richard Price, Anthony Dougherty and Schuylkill County.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.

      Bill in equity to compel the surrender of bonds.
    The bill averred that on May 1,1905, the complainant was the owner of five Schuylkill county bonds of $100 each. That on that day he delivered the same to C. 0. Burkert, who is now a fugitive from justice, to have them exchanged for one Pottsville bond of $500 at four per cent.
    It further averred that C. O. Burkert fraudulently attempted to sell and did deliver possession of the bonds to some of the defendants, and that he had no power of attorney or indicia of ownership to sell, pledge, or assign these bonds for other securities.
    The facts appear by the opinion of the Superior Court.
    Shat, P. J., entered a decree in accordance with the prayer of the bill.

      Error assigned was the decree of the court.

      Walter G. Treibly and William C. Devitt, for appellants.
    If Corbe’s agent and attorney were not authorized to make the exchange, it would have been Corbe’s duty to repudiate the act promptly. Not having done so and having acted in affirmance of Burkert’s act, he cannot now repudiate it: Standard Leather Co. v. Allemannia Fire Ins. Co., 224 Pa. 186.
    The question of an equitable assignment, and the authorities recognizing that a valid gift of nonnegotiable instruments may be made, by delivery of them to the donee without assignment or indorsement in writing, seems to have been overlooked or ignored by the learned court: Licey v. Licey, 7 Pa. 251; Bunting v. Camden & Atlantic R. R. Co., 81 Pa. 254; Com. v. Compton, 137 Pa. 138; Fett’s Est., 39 Pa. Superior Ct. 246.

      Edmund D. Smith and James F. Minogue, for appellee.
    Burkert did not become the owner of the county bonds by delivery to him. The change of ownership could be consummated only by the plaintiff or by his assignment of the bonds. A purchaser of the bonds from Burkert was not without notice. The notice of ownership disclosed on the face of the bonds made inquiry a duty. Whether or not the notice so given was heeded by the purchaser, whether or not he discovered what might have been disclosed by inquiry the consequences to the purchaser are the same in law: Wood's App., 92 Pa. 379.
    July 20, 1910:
    The appellee contends that this case is ruled by thé principles announced in Robb v. Penna. Co., 3 Pa. Superior Ct. 254; Leiper’s App., 108 Pa. 377; Shattuck v. American Cement Co., 205 Pa. 197; Wadlinger v. First National Bank, 209 Pa. 197.
   Opinion by

Head, J.,

The county of Schuylkill issued a series of bonds of the denomination of |100 each. These bonds were not made payable to bearer in the usual form of municipal bonds, but each was made payable to a particular individual named therein “or his assigns,” pursuant doubtless to subscriptions made before the bonds were actually issued. Five of these bonds, after having been held by some intervening owners, came into the possession of Joseph Corbe, the plaintiff. Neither the names nor the number of the intervening owners appear in the record. The bonds were not accompanied with any former assignments showing the change of ownership as they passed from hand to hand. Although they were not strictly speaking negotiable, they appear to have been so regarded by those who dealt with them, to the extent at least that each purchaser seemed to have been content with his title when he paid for the bonds to the preceding owner and took them into his own possession. At all events it is conceded that Corbe, the plaintiff, although he had no assignment from the original payee, or any intervening owner, was in truth and in fact the legal owner of these five bonds at the time of the transaction which gave rise to this litigation.

For reasons satisfactory to himself, but not appearing in the record, Corbe became desirous of exchanging these five bonds, aggregating $500, for a single bond of the borough of Pottsvillemf the same face value. The county bonds bore interest at the rate of three per cent per annum, whilst the borough bond was a four per cent one. Whether this was the nause that moved the plaintiff to desire the exchange, the record does not disclose and it is not material to our inquiry.

One C. 0. Burkert, a member of the Schuylkill county bar, had for a number of years been the legal adviser of the plaintiff. To accomplish the object he had in view, already stated, the plaintiff turned over to his attorney Burkert his five county bonds with instructions to exchange them for one borough bond of the denomination and character above indicated. Of this fact there can be no doubt. It is testified to by the plaintiff himself and clearly evidenced by the following receipt given to the plaintiff and produced by him on the trial: “May 1, ’05, Received of Joseph Corbe, five one hundred dollar county of Schuylkill bonds, to be exchanged for one borough of Pottsville four per cent. bond. C. O. Burkert, Atty.” Here was a simple bailment. The bailor, the plaintiff, was the legal owner of the property bailed, and had the full right to do with it as he chose. He selected the bailee himself. The nature and purpose of the bailment are not matters of contention in the cause. They are established, as we have said, by the oral statement of the bailor and the written receipt of the bailee, given to and accepted by the bailor as a correct and satisfactory statement of the disposition to be made by the bailee of the property intrusted to him.

There is no statute in Pennsylvania which prescribes that such a contract of bailment should be evidenced by a writing or that any particular form of words should be used to validate the transaction. It is sufficient if the intention of the bailor and the use of the bailed property to be made by the bailee appear. More especially is this true when the transaction comes to be considered by a chancellor sitting in a court of equity. Such a court looks more to the substance of things than to- their form. Even in the days when courts were more inclined to rigidly cling to ancient forms than they have been in modern times, it was held, in an action concerning a railroad bond, that it might have been assigned in equity by a parol delivery: Bunting’s Administrators v. Railroad Co., 81 Pa. 254. In Bond v. Bunting, 78 Pa. 210, Sharswood, J., said, “It is certainly the tendency of all the modern authorities to maintain the general doctrine which may indeed be stated as a formula, that wherever a party has the power to do a thing — statute provisions being out of the way — and means to do it, the instrument he employs shall be so construed as to give effect to his intention.”. See also Fetts’ Estate, 39 Pa. Superior Ct. 246.

Corbe then, the owner of the bonds when he turned them over to Burkert, had full power to authorize the latter to exchange them for any other form of securities he preferred to have. He certainly intended that the exchange we have already indicated should be effected by his bailee, for so he himself declares. Armed with this authority Burkert went to the Citizens’ National Bank of Ashland, which bank held a bond of the borough of Pottsville as collateral security for a loan it had made to Burkert, the bailee. The latter arranged with the bank to surrender to him the desired borough bond and to accept as a substitute therefor the five county bonds, the possession of which he then and there turned over to the bank. If any authority be needed for the proposition that the bank took the same title to the new securities that it had to what it surrendered and that it was a holder of each in turn for value, to the extent of the consideration it had originally given, such authority will be found in the recent case of King v. Mellon National Bank of Pittsburg, 227 Pa. 22. With the actual delivery of the county bonds to the bank and the receipt of the borough bond by Burkert, the bailee, the latter had completed the precise obligation which, by his contract of bailment, he had expressly undertaken to perform. He had turned over to another, who was the lawful holder of a borough bond, the five county bonds formerly owned by his principal. In doing this he divested the title of his principal to those bonds because without doing this he could not acquire for his principal the ownership of the borough bond which was the purpose of the entire transaction.

When therefore Burkert, the bailee, received into his possession the borough bond, which he was authorized to acquire for his principal, in whom did the title to that bond then and there vest? Had Burkert, the bailee, for any reason undertaken to assert title to himself in that bond as against his principal, under the facts stated, no court at law or in equity would have listened to such a claim. Again let us suppose, for illustration, that the five county bonds which Corbe formerly owned, and which he had by his bailee exchanged in the manner indicated, had been the obligations of a private corporation. If such corporation had suddenly become insolvent after its five obligations had been delivered to the bank, and after Burkert, the bailee, had in his possession the borough bond, thus closing the exchange, would it have been possible for the bank to shift the loss back to the shoulders of Corbe on the theory that the exchange had not . been completed and it might therefore withdraw its consent to such a transaction?

Almost immediately after the receipt by him of the borough bond Burkett advised his principal of the fact that he had made the exchange and was ready to turn the bond over. There is no room in the record for any doubt as to the all important fact that at that time Burkert actually had received the bond into his possession. He made some excuse for his inability to then deliver the bond, but promised to do it on his next meeting with his principal. Unfortunately for the latter, his trusted man of business abused his trust and shortly thereafter absconded, having, so far as this record shows, taken with him or otherwise converted to his own use the bond of the plaintiff. In the meantime, through the efforts of the bank officers or of Burkert himself, or both, the county bonds, which stood as collateral for the debt of Burkert in the bank, were sold to the other defendants named in the bill, each one of whom in good faith paid full value therefor.

The plaintiff by this bill sought to set aside the entire transaction and restore himself to the position he occupied before be turned his bonds over to Burkert and authorized and directed him to exchange them. The learned court below upon final hearing entered a decree that the plaintiff was still the lawful owner of the five county bonds, and the several defendants who had subsequently purchased them in the manner stated were enjoined and required to surrender them to the plaintiff and to pay the costs of the proceeding.

After an attentive consideration of the entire question we are unable to see that there is any solid foundation of law or fact upon which this decree may rest. It was the plaintiff who selected the untrustworthy agent and gave to him his confidence and his property. He expressly authorized and intended him to do with that property the very thing which he did do, to wit, to' transfer the ownership of it to another, and to acquire in consideration thereof the ownership of the security he preferred. All of this was done and the transaction was complete so far as the outside world was concerned. Up to that time no one had done any wrong, no one had committed a breach of trust or contract. The plaintiff’s loss arises solely from the fact that the man-whom he trusted to dispose of his property, having done so in accordance with his directions, absconded and converted to his own use the property resulting from that disposition. The plaintiff’s situation, as we view it, is precisely the same as that of the plaintiff in the case of King v. Mellon National Bank, 227 Pa. 22. In that case the plaintiff intrusted , to her brokers, Whitney & Stephenson, a certificate evidencing her ownership of thirty-two shares of stock of the Pitts-burg Trust Company. The brokers did not dispose of her stock in accordance with her directions, but put it up as collateral for a loan of their own in the hands of the defendant bank which had no knowledge whatever of the trust relation existing between the brokers and their principal. The brokers afterwards became insolvent and the plaintiff filed her bill to prevent the bank from selling the collateral and applying its proceeds to the extinguishment of its loan. In concluding the opinion reversing the court below, Mr. Justice Brown used the following language which we think is entirely applicable here: “For the deception practiced by Whitney & Stephenson upon the appellee the appellant is not to suffer. She gave her faithless brokers the means of doing the wrong complained of, and she, and not the bank to which her stock passed as an innocent purchaser for value, must bear the consequence of her own act: Bank of Kentucky v. Schuylkill Bank, 1 Parsons Eq. 180."

The decree is reversed and the bill is dismissed at the costs of the appellee.


author: Morrison, J.,

text:
    Dempsey v. Devers, Appellant.

      Negligence — Mines and mining — Joint tortfeasors — Pleading.
    1. Where a plaintiff in an action of trespass to recover damages for negligence declares for a joint tort, and the evidence shows no joint action by defendants, a verdict and judgment against one defendant for a separate tort will not be permitted to stand.
    2. Where a coal miner brings an action of trespass to recover damages for personal injuries against his employer, a coal company, and several individuals, including a mine foreman, who, however, is not named or described as such, and the statement of claim charges a joint tort in failing properly to ventilate the mine, and nonsuits are entered in favor of all of the individual defendants, except the mine foreman, and a verdict is rendered in favor of the coal company by direction of the court, and the plaintiff makes no amendment of his statement, but proceeds with the ease and secures a verdict and judgment against the mine foreman named merely as an individual, such verdict and judgment will be set aside by the appellate court.

      July 20, 1910:
    Argued Dec. 8, 1909.
    Appeal, No. 105, Oct. T., 1909, by defendant, from judgment of C. P. Schuylkill Co., May T., 1906, No. 288, on verdict for plaintiff in case of Edward Dempsey v. Patrick Devers.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Bechtel, J.
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for 81,400. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      B. W. Cumming, Jr., and Jno. F. Whalen, for appellant.
    In a suit for a joint tort there should be no recovery upon proof of one or more separate torts: John v. Philadelphia, 19 Pa. Superior Ct. 277; Shaughnessy v. Pittsburg, 20 Pa. Superior Ct. 609; Wiest v. Traction Co., 200 Pa. 148; Goodman v. Coal Twp., 206 Pa. 621; Minnich v. Electric Ry. Co., 203 Pa. 632.

      Frank C. Brumm and James B. Reilly for appellee.
   Opinion by

Morrison, J.,

This is an action to recover damages for injuries sustained by an explosion of gas in an anthracite coal mine. The suit was brought against The Buck Run Coal Company, James B. Neal, S. B. Thorn, Wm. Wilson, Patrick Devers, Nicholas Kurren and John O’Brien. Judgment of nonsuit was entered in favor of all of the defendants, except The Buck Run Coal Company and Patrick Devers and the court directed a verdict in favor of The Buck Run Coal Company and submitted the case to the jury as to Patrick Devers alone, and the jury returned a verdict against him for $1,400. He took an appeal to the Superior Court and the plaintiff took an appeal to the Supreme Court alleging for error the action of the court in entering judgment of nonsuit as to one of the defendants and in directing a verdict in favor of The Buck Run Coal Company. On March 28, 1910, Mr. Justice Mestkezat, speaking for the Supreme Court, filed an opinion affirming the action of the court below in entering the nonsuit and in directing a verdict in favor of the coal company. That decision settles the law that the plaintiff failed to sustain his averment that The Buck Run Coal Company and the other defendants were joint tort feasors and it appears to settle the question that the plaintiff was not entitled to recover, unless it might be against Patrick Devers, the mine foreman. But the question of his liability was not before the Supreme Court and of course the decision does not determine whether or not the verdict and judgment against him can be sustained. The view we take of this case leads us to quote in this opinion the plaintiff’s entire declaration. Attention is here called to the fact that the plaintiff’s counsel did not, in the court below, nor in this court, offer to amend their declaration, nor did they take a voluntary nonsuit as to any of the defendants, nor did they discontinue their action as to any of them. On the contrary, they insisted throughout the trial that they had a right to recover against at least three of the defendants as joint tort feasors, and they not only excepted to the action of the court in entering non-suit as to one of the defendants, but also excepted to the direction of a verdict in favor of The Buck Run Coal Company. We here quote the plaintiff’s declaration:

“This action is brought to recover damages from the defendant company, a corporation duly incorporated under the laws of Pennsylvania, engaged in the business of mining and shipping coal in the County aforesaid, and James B. Neal, S. B. Thorn, William Wilson, Patrick Devers, Nicholas Kurren and John O’Brien, inter alia, for injuries to the person of the said Edward Dempsey, and for the consequent expenses incurred thereby by him, and the loss of time and permanent injury and disfiguration of his person. The said Edward Dempsey on or about the eleventh day of November, a. d. 1905, being employed by the said Buck Run Coal Company at the colliery of said Company, in the Township of Foster, County aforesaid, while working as such employee as a miner, was injured by an explosion of gas or black damp which had accumulated in said mine by reason of improper appliances and by failure of said defendants to place proper brattices to prevent gas from entering the place at which said Dempsey was forking.

That said Dempsey and others had been told by said defendants to work in said place with a naked lamp, as there was no danger of gas or black damp, but by reason of want of proper ventilation and failure to drive proper headings and air courses, an explosion occurred by which said Dempsey, plaintiff, was severely burned and injured as aforesaid. That the said defendants undertook to keep the said breast, gangways and chutes clear of dangerous gases. Nevertheless, the said defendant company, James B. Neal, S. B. Thorn, William Wilson, Patrick Devers, Nicholas Kurren and John O’Brien, carelessly and negligently and in violation of the act of assembly of Pennsylvania, operated said mine. In consequence of which the explosion of gas occurred, and the said Dempsey was then and there severely burned and violently thrown to the ground, and was bruised and contused and seriously injured internally by reason of which he suffers and continues to suffer great pain and inconvenience, as well as great nervous prostration and other injuries, and will in all probability continue so to suffer and be disfigured during the remainder of his life.

“All of which, besides being otherwise subjected to loss and injury, being to the damage of the said plaintiff in the sum of Ten Thousand Dollars ($10,000), to recover which from said defendants he brings this suit.”

It will be noted that this declaration does not mention Patrick Devers as the mine foreman, nor does it charge him with any separate or individual tort. He is simply charged as an individual jointly with all of the other defendants in committing certain alleged torts. Nowhere in the declaration is it alleged that any duty or obligation rested upon him not common to the other defendants, nor is he charged with any act of omission or commission, except jointly with the other defendants.

Now the Supreme Court having determined that there could be no recovery against The Buck Rim. Coal Company, Patrick Devers and another of the. defendants jointly, one of the important questions arising in the present appeal is, Can the verdict and judgment against Patrick Devers be sustained on the pleadings sfod evidence in the present case?

In view of the fact that Devers was only charged in the declaration with the other defendants, we think that the defendant’s ninth point (third assignment) sufficiently raised thé question of the defendant’s liability under the pleadings. That point was “Under all the evidence in the case the verdict must be in favor of the defendant.”

In Wiest v. Traction Co., 200 Pa. 148, in an opinion by Mr. Justice Potter, the Supreme Court held: “We are of opinion that, where a plaintiff in an action of trespass to recover damages for negligence, declares for a joint tort, and the evidence shows no joint action by defendants, a verdict and judgment against one defendant for a separate tort should not be permitted.” In that case the court instructed the jury that there could be no verdict against one of the defendants and submitted to the jury the question of the liability of the other defendant and there was a verdict- and judgment against the latter which was reversed and a venire facias de novo awarded.

The same question again came before the Supreme Court in Rowland v. Philadelphia, 202 Pa. 50. In that case the action was brought against the city of Philadelphia and two separate contractors, as joint tort feasors, yet the evidence did not show concert of action, nor was there any attempt upon the trial to prove that the act complained of was the joint act of the defendants. The plaintiff took a judgment of voluntary nonsuit which was entered as to the two contractors, and the action proceeded in against the city alone. No exception was taken upon the part of the city to proceeding with the case against itself alone after the entry of the judgment of nonsuit against the contractors; the question was raised apparently for the first time in the case at the argument in the Supreme Court. There was a verdict and judgment against the city and it was sustained by the Supreme Court in an opinion by Mr. Justice Potter in which we find the following: “In the present case, however, no objection was made in the court below, to the course there pursued. The appellant took the chance of the verdict, without any exception to the trial proceeding against it as the sole remaining defendant, after the entry of judgment of nonsuit, in favor of its codefendants. By so doing, it must be held to have waived its right to raise the question, and we cannot now consider it here.” But in that case Mr. Justice Potter clearly pointed out that the plaintiff ought to have amended the declaration and that such amendment would carry with it the right of the defendant to plead surprise; and should fairly entitle him to the benefit of a continuance. We take it that the fact that the plaintiff took a voluntary nonsuit as to the other defendants, and did not except to the case proceeding against the remaining defendant, was the precise ground on which the judgment was affirmed. By taking a voluntary nonsuit the plaintiff, in plain terms, notified the city that the action would thereafter be carried on against the city alone. This, under the circumstances, was so near the equivalent of an amendment to the declaration that the Supreme Court declined to reverse the judgment.

The opinion in the above case was filed March 3, 1902. Now in this connection we refer to Shaughnessy v. Pittsburg, 20 Pa. Superior Ct. 609, where the opinion was filed by Judge Rice July 10, 1902. In that case a joint tort was declared against the city of Pittsburg and two other alleged tort feasors, but the evidence was not sufficient to sustain joint action by the defendants and the court below held that it was proper to direct a verdict in favor of the defendants, as to whom there was a failure of proof; and to permit a recovery against the other defendant as if he had been sued separately. But in his opinion, Judge Rice said: “ It is due to him to say that the case was tried and the question decided before the decision in the case of Wiest v. Electric Traction Co., 200 Pa. 148, was rendered. That case does not recognize the distinction made in this case. The rule as there stated is, ‘ that, when a plaintiff in an action of trespass to recover damages for negligence, declares for a joint tort, and the evidence shows no joint action by the defendants, a verdict and judgment against one defendant for a separate tort should not be permitted.’ It'is conceded, however, that the mistake in bringing a joint action may be cured by proper amendment: Rowland v. Philadelphia, 202 Pa. 50; John v. Philadelphia, 19 Pa. Superior Ct. 277; Dutton v. Lansdowne Borough, 198 Pa. 563, 567. But it is not one of those mere technical or clerical errors which may be corrected here. The judgment in favor of the plaintiff against the city of Pittsburg is reversed and a venire facias de novo, as to said parties, awarded.”

Now that case and the action of the court therein and the action of the court below in the present case as to The Buck Run Coal Company, do not differ at all. In both cases the court directed a verdict for some of the defendants and submitted the case to the jury as to one.

But it is thought that the case of John v. Philadelphia, 19 Pa. Superior Ct. 277, will sustain the court below in the present case, but when it is rightly understood we think otherwise. In the John case an action was brought jointly against the city of Philadelphia and the Union Traction Company, and the evidence failed to sustain a joint tort and a nonsuit was granted as to the traction company, and the case proceeded with against the city and resulted in a verdict and judgment for the plaintiff. In the opinion of the court, by Rice, P. J., affirming the judgment, we find the. following: “In a suit for a joint tort there should be no recovery upon proof of one or more separate torts. When a joint tort is charged, a joint tort must be proved, in order to sustain the action. The allegation and proof must agree in cases of torts, as in other cases. . . . Here the statement of claim averred not merely the common negléct of a common duty but a neglect by the city of the duty imposed upon it, in short, a several liability, and before the city was called upon to put in its defense a nonsuit was entered as to its codefendants. Practically, this left the case in the same situation, as far as the city was concerned, as if the plaintiff, with leave of the court, had amended by discontinuing the action as to the Union Traction Company.”

It is apparent in that ease that the entry of a nonsuit as to the traction company had not the effect of a verdict, but was in effect a discontinuance as to that defendant. We think it clear that that case goes on the theory that there was practically an amendment, and if the city had desired it to be put in form and filed, it should have objected at the time to proceeding with the trial bn the ground that no amendment in fact had been made.

In Minnich v. Electric Ry. Co., 203 Pa. 632, there was an action of trespass against three defendants as joint tort feasors. The evidence sustained the action as to two of the defendants, but not. as to the other one. The court below granted a compulsory nonsuit, but the Supreme Court reversed this judgment for the reason that a joint tort was made out against two, and therefore a nonsuit might have been entered or a peremptory direction given to the jury as to the one defendant, and cáse submitted as to the other two. But in that case Mr. Justice Fell was careful to say, in referring to former cases: “The point decided in these three cases was that where a joint tort is alleged, it must be proved, and that if the proof is only of a tort by one defendant or of separate torts by different defendants, the action cannot be sustained against any of them. In- such cases the plaintiff may amend his declaration and proceed against the party liable under the proofs adduced, subject to the defendant’s right to a continuance, as has been pointed out in the recent case of Rowland v. Philadelphia, 202 Pa. 50.”

In the still later case of Goodman v. Coal Township, 206 Pa. 621, an action of trespass was brought against several defendants as joint tort feasors, and the Supreme Court, speaking by Mr. Justice Potter, in reversing the court below, said: “If no concert of action is shown, and therefore no joint tort, and the case is one of separate tort or torts, upon the part of one or of several defendants, the action is.not sustained, and there should be no verdict against anyone. In a suit for a joint tort there should be no recovery upon proof of one or more separate torts. When a joint tort is charged, a joint tort must be proved, in order to sustain the action. The allegation and the proof must agree in cases of tort, as in other. cases.” ■

We find no case in the books where two or more defendants were sued in trespass and charged with joint tort or torts and they were all eliminated from the record by nonsuits and peremptory verdicts but one, that he could be proceeded against without a proper amendment of the declaration or such action as amounted practically to an amendment. In the present case, the plaintiff’s counsel never amended their declaration nor consented to any-' thing which practically amended it, nor did they give notice at any time that they intended to proceed against Patrick Devers personally. We do not think he had a fair trial under the present declaration. A large mass of testimony was admitted against him and his codefendants, and as he was not declared against as the mine foreman, he had a right to expect that no verdict could go against him unless it also went against the alleged joint tort feasors. We therefore sustain the ninth specification of error.

All of the other specifications of error are overruled, and on the ninth specification the judgment is reversed and a venire facias de novo awarded.


text:
    Schweitzer v. Williams, Appellant.

      Evidence — Practice, C. P. — Trial—Province of court and jury.

    1. Where there is any evidence which alone would justify an inference of a disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof.. A court may set aside a verdict as against the weight of the evidence, but that is the most they can do to assist the party. But in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so they have the right, and it is their duty to withhold it from the jury.

      Practice, C. P. — Trial—Points.
    2. A point should contain but a single legal proposition, and be so' constructed that the trial court can answer it by a single affirmation or negation. If it is not so constructed, its refusal is not reversible error.

      Landlord and tenant — Lease of farm — Increase of live stock.

    3. In the absence of stipulations to the contrary in the lease of a farm, the annual increase of stock leased with the farm accrues to the tenant; but where the. lease is not for a money rent, but for a certain quantum of the product of the farm, the tenant is only entitled to his quantum of the progeny of the live stock born during the tenancy.

      Evidence — Title—Assessment—Payment of taxes.

    4. Assessments and the payment of taxes, although not evidence of title, may be shown as evidence more or less efficient as to the question of the claim of possession of the party against whom the assessments have been made, and by whom the taxes have been paid.

      Interpleader■ — Sheriff’s interpleader — Form of verdict — Practice, C. P.

    5. On the trial of a feigned issue under the interpleader act to determine the ownership of personal property on a farm, a verdict “for plaintiff for possession of all property in appraisement,” although informal is not insensible and null where the jury has been properly instructed as to the questions at issue. The words “possession of” may be treated as superfluous, and the appellate court will treat the verdict as if it had been molded into proper form in the court below.

      Trial — Practice, C. P. — Instructions—Interpleader.
    6. ' Where on the trial of a sheriff’s interpleader it appeared that the issue involved about thirty different articles, the ownership of which was derived from various sources, and the trial judge summarizes the testimony pro and con as to most of the articles specifically, he cannot be charged with reversible error in omitting to make reference to a particular article where counsel makes no specific request for instructions as to such article.
    7. Where in such a case there is testimony that the plaintiff bought the property at a sheriff’s sale and the crier of the sale testifies to this effect, the plaintiff’s right to go to the jury is not defeated by the testimony of the prothonotary that there was no record of such a sale. There may have been a public sale, although the witnesses may have been mistaken in stating that it was a sheriff’s sale.
    8. Where in an interpleader the plaintiff alleges in his statement of claim ownership of a particular item of personal property, but there is no evidence to show his ownership of such particular item, it is reversible error for the court to submit to the jury the question of the ownership of the article.

      Evidence — Trial—Practice, C. P.

    9. Where a paper is offered in evidence accompanied by an offer to follow it by other proof, the judgment will not be reversed because the other proof has not been produced, if it appears that the mere admission of the paper did no harm. In such a case the opposite party cannot complain if he did not move to strike out the paper or ask the court to direct the jury to disregard it.
    Argued Dec. 9, 1909.
    Appeal, No. 169, Oct. T., 1909, by defendant, from judgment of C. P.' Northampton Co., April T., 1909, No. 3, in case of Wallace v. Schweitzer v. Alice D. Williams.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beater and Porter, JJ.
    Reversed.
    Sheriff’s interpleader to determine the ownership of personal property. Before Stewart, J.

      The facts appear by the opinion of the Superior Court.
    Plaintiff presented the following points:
    3. If the jury find that Wallace Schweitzer was a tenant of Robert Schweitzer and had the lease of the farm, as well as some of the personal property belongong to Robert Schweitzer, the live stock which was the natural increase during the tenancy of Wallace Schweitzer belonged to Wallace Schweitzer. Answer: That point is affirmed, with the qualifications that I made, that if there was a lease of personal property, mere possession would not be enough. [4]
    4. Tax assessments are not evidence of title and the jury must disregard the assessment books and what is contained therein as evidence of title to the goods and chattels mentioned in the assessment. Answer: That point is affirmed so far as it states the legal proposition. [5]
    5. ' If the jury find that Wallace Schweitzer was a tenant for half, or on shares, he was entitled to oné-half the hay and straw as well as of the crop and the growing grain, in the absence of any terms of either a verbal or written lease to the contrary. Answer: That point is affirmed. [6]
    7. That there is evidence of ownership and title in Wallace Schweitzer of the goods and chattels levied on as the property of Robert Schweitzer and claimed by Wallace V. Schweitzer. Answer: I affirm that point. There is evidence. [7]
    The verdict was in the following forrh: “Jury find a verdict for plaintiff for possession of all property in appraisement.” Judgment was entered upon the verdict. Defendant appealed. " '

      Errors assigned among others were (4-7) above instructions, quoting them; (8) that the verdict was insensible and null; (9) that the court erred in omitting to make any - reference to the ownership of the stallion; (10) that the court erred in allowing the jury to find title for the stock by virtue of the sale, quoting a portion of the opinion; (11) that the court erred in declaring that. the assessment books were no evidence of title, quoting a portion of the opinion; (12) that the court erred in allowing the jury to find for the plaintiff for the personal property in the mill, quoting a portion of the opinion; and (13) admission of the check referred to in the opinion of the Superior Court.
    July 20, 1910:

      R. A. Stotz and W. E. Dosier, for appellant.

      Calvin Smith, of Smith, Paff & Laub, and Thos. D. Danner, for appellee.
   Opinion by

Rice, P. J.,

This issue involved about thirty different articles of personal property. As to many of them the sufficiency of the evidence to sustain the verdict is not questioned. But it is claimed by’ appellant's counsel that there was no evidence to sustain a verdict in the plaintiff’s favor as to any of the articles specified in the first and second assignments of error. This contention has required an examination of the large volume of evidence, and this we have made. If it were our province to determine whether the verdict of the jury is sustained by the preponderance of testimony we might be disposed to disagree with the jury as to some of the articles, although not as to all of them. But this' is not our province in a case depending to such an extent as this does on oral testimony and a determination of the credibility of witnesses and the construction to be put on their language. The doctrine that wherever there is a scintilla of evidence of a material fact the question must be submitted to the jury, has not stood the test of experience and has accordingly been exploded in this country and in England. “The more reasonable statement of the rule is, that where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. A court may set aside a verdict as against the weight of the evidence, but that is the most they can do to assist the party. But in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Wherever this is so they have the right, and it is their duty to withhold it from the jury:” Howard Express Co. v. Wile, 64 Pa. 201. This, doctrine as to the province of the court and jury has been followed, with rare exceptions, down to the present time, and we need not go outside the foregoing statement of it to ascertain the rule by which an appellate court should be guided in investigating such a controversy as is raised by the first and second assignments of error. Having this principle in view, it is impossible to declare that there was no evidence from which a jury could legitimately find in favor of the plaintiff’s claim to any of these articles.

In his general charge the learned judge instructed the jury that the burden of proof was on the plaintiff, and that “if the scale was even, just as much evidence on one side as the other, then the plaintiff would fail.” He af firmed the principle also in his answer to the defendant’s third point (the whole answer should have been printed in the assignment: rule XV), but correctly refused to charge that if the jury were in doubt as to the ownership of any of the articles in controversy their verdict must be for the defendant for such articles. Even if a plausible argument could be made, that as to some of the articles plaintiff, by reason of the confidential relation of father and son, was held to a higher degree of proof than is required in ordinary cases, the point was too broad in requiring the proof to remove all doubt. Moreover, the point was so worded as to make it apply to all of the articles in controversy, and, for that reason, if for no other, was properly refused. We remark in this connection, and the remark applies as well to the first and second assignments, that a point should contain but a single legal proposition and be so constructed that the trial court can answer it by a single affirmation or negation: Seifred v. Penna. R. R. Co., 206 Pa. 399; Rudy v. Myton, 19 Pa. Superior Ct. 312. Neither of the points embraced in these three assignments could have been affirmed as a whole without qualification; hence the refusal of them was not reversible error.

Plaintiff requested the court to charge that, if the jury found that he was a tenant of. Robert Schweitzer and had a lease of the farm as well as some of the personal property belonging to Robert, the live stock which was the natural increase during the tenancy of the plaintiff belonged to him. The court affirmed the point, with the qualification that there must be a lease of personal property and that mere possession would not be enough, as stated in the general charge. The court had there instructed the jury quite fully upon this subject, and explicitly pointed out to them the distinction between a case where animals are leased with a farm for a definite period and a case where the owner merely allows the other to use them, but still retaining the ownership. "The general rule is that in the absence of stipulations to the contrary the annual increase of stock leased with a farm accrues to the tenant: ” 24 Cyclopedia of Law and Procedure, 1066. See, also, Jackson and Gross on Landlord and Tenant, 28; 2 Am. & Eng. Ency. of Law (2d ed.), 349; 2 Kent’s Com. 360. Reading the answer to the point in connection with the instructions in the general charge, to which the jury’s attention was called in the answer, we think there was no error in the statement of the legal principle. The difficult question is, whether it was applicable to the facts of the case. The learned counsel for the appellant make a very vigorous argument in support of the proposition that there was no sufficient evidence of leasing, either of the farm or of the five stock upon the farm, and that at the best the plaintiff was merely a cropper. We have been much impressed by their argument upon this branch of the case, but are not convinced that it ought to prevail. There was some evidence, consisting of declarations of Robert Schweitzer while the plaintiff was in the occupancy , of the premises and of the conduct of the parties during that time, tending to show that the plaintiff was there as a tenant, and, while the weight of the evidence may have been the other way, that would not be sufficient to warrant us in declaring that that question ought not to have been submitted to the jury. But upon what terms was he a tenant? In Pennsylvania, leases of farms are often made where the rent reserved consists of a certain quantum of the product of the farm: Rinehart v. Olwine, 5 W. & S. 157; Ream v. Harnish, 45 Pa. 376. And where a furnished house or stocked farm is leased, which are common cases, the personal property is really a part of the consideration of the rent, and hence in such cases it is proper to say that the rent issues out of lands and tenements corporeal, and also out of them and their stock or furniture: Mickle v. Miles, 31 Pa. 20. If the rent reserved be a money rent the progeny of the stock born during the'term would, according to the general rule above stated, belong to the tenant. But here, if there was a tenancy at all it contemplated an equal division of the grain and other products raised on the farm. This was what the plaintiff offered to show by .the admissions of Robert Schweitzer to Lewis W. Clauss and other witnesses, and the testimony adduced under this offer went no farther. In order that there may be no misunderstanding about this- we - quote the offer: “We propose to show by the witness that he had a conversation with Robert T. Schweitzer, in the course of which Robert Schweitzer admitted that Wallace Schweitzer was the tenant farmer and was farming for shares, and that there was to be an equal division of the grain and other products raised on the farm. ’ ’ According to the testimony of this witness, Robert said, “that Wallace was farming for the half.” And again, “Well, he said he moved there for the half.” The testimony of James E. Rohrbach was to the same effect. Of course, if the point referred simply to.the stock which Wallace brought to the farm .or which belonged absolutely to him it would have been well taken. But evidently it was not intended to be confined to such stock, but to apply as well to stock belonging absolutely to his father; and it is to be noticed that the father continued to live upon the premises during the plaintiff’s occupancy. Assuming that there was to be an equal division of the grain and other products raised on the farm, and assuming also that Robert’s live stock upon the farm was leased with it, it is impossible to see how it could be declared as matter of law that all the progeny of such stock, born during the tenancy, belonged absolutely to the tenant, as the court was requested to charge in the point. We are of opinion that the point should have been refused, and that the instructions upon the subject given in the general charge did not cure the error.

The question of the correctness of the answer to the plaintiff’s fifth point (sixth assignment) likewise depends for its determination upon the question whether the plaintiff was a tenant, and, for the reason stated, we are not prepared to say that the court erred in submitting the latter question to the jury.

The fifth and eleventh assignments may be considered together, as they relate to the same subject, namely, tax assessments as evidence of title. The question is not whether they were admissible in evidence, but what effect was to be given to the evidence. The point embraced in the fifth assignment was unhappily worded, and if it had been affirmed without qualification it would have tended to mislead the jury into a rejection from consideration of the assessment books. It is to be observed, however, that the point was not affirmed without qualification, and the answer was not such as to overturn what the learned judge had said in that portion of his general charge quoted in the eleventh assignment of error. The instructions last referred to were in substance a statement of the rule as laid down in Irwin v. Patchen, 164 Pa. 51, where it was said: “Of course such testimony cannot prove title, but they are some evidence of claim, and are more or less efficient as a basis of inference, according as the opposing evidence of a similar character is weaker or stronger, and the other facts in .the case are more or less consistent with the claim made.” In Hockenbury v. Snyder, 2 W. & S. 240, speaking of a claim under the statute of limitations, the court said: “The assessment is resorted to not as giving him a right but to show the extent of his claim and possession. . . . I apprehend then that, where paying taxes for a tract, or the whole tract, is spoken of, it has reference to the extent of the claim, and is referred to as evidence of that extent.” The same idea was conveyed in Green v. Schrack, 16 Pa. Superior Ct. 26, where our Brother Beaver said: “It has been uniformly held that assessments and the payment of taxes, although not evidence of title, may be shown as evidence more or less efficient as to the question of the claim of possession of the party against whom the assessments have been made and by whom the taxes have been paid.” Viewing the instructions upon this point, as a whole, we see no reversible error.

The jury found “a verdict for plaintiff for possession of all property in appraisement.” We cannot agree with appellant’s counsel as set forth in their eight assignment, that the verdict is insensible and null. Construed in the light of the charge of the court, which presumably the jury intended to obey, the verdict was for the plaintiff for the goods described, and the words “possession of” may be treated as superfluous: Cavene v. M’Michael, 8 S. & R. 441; Fisher v. Kean, 1 Watts, 259. The intention of the jury is plain and, while the verdict is informal, it could have been molded into form in the court below and may be treated as amended in this court: Friedly v. Scheetz, 9 S. & R. 156.

Complaint is made in the ninth assignment of error that the court erred in its charge in omitting to make any reference to the plaintiff’s claim that the stallion was a gift and to the want of any testimony to support a gift. It should be noticed that the defendant’s counsel made no specific request for instruction to that effect. As already stated, the issue involved about thirty different articles. The evidence relating to the ownership of these articles was of various kinds. His title was claimed to be derived from various sources. As the learned judge said, it was like trying many different suits in one. He summarized the testimony pro and con as to most of the articles specifically, and with painstaking care called the jury’s attention to the respective contentions of the parties. In view of the nature of the issue and the elaborate and impartial manner in which the evidence was reviewed in the judge’s charge, the complaint that he did not refer in as much detail to the evidence concerning each of these articles as counsel now think should have been done ought not to be sustained. The minuteness with which the trial judge should discuss the evidence and the inferences therefrom depends upon the circumstances of the case, and much must be left to his sound discretion. Frequently the course taken by counsel in arguing to the jury may properly influence him in determining this matter as well as others: Borham v. Davis, 146 Pa. 72; McCord v. Whitacre, 8 Pa. Superior Ct. 277. This assignment is not sustained.

It is alleged argumentatively in the tenth assignment of error that the court erred in allowing the jury to find title to the stock by virtue of a sale. The question arises in this way: Two witnesses called by the plaintiff testified that they were present at a sheriff’s sale of the stock upon the premises of Robert Schweitzer, at which the plaintiff became the purchaser, which sale took place some fifteen years before the trial. One of these witnesses testified that he was the cryer of the sale. No objection was made to this manner of proving the sale. But in defense the defendant introduced the testimony of the prothonotary that no record of a sheriff’s sale of Robert Schweitzer’s property at that time could be found. Be it so, the comb held that this did not absolutely nullify the entire testimony of these witnesses that this property was bought by the plaintiff at a public sale of the property on the premises of Robert Schweitzer. In this we think the court was right. The witnesses may have been mistaken as to its being a sheriff’s sale, and yet may have testified truly as to the main fact. Their testimony was consistent with the testimony of other witnesses as to the declarations of Robert Schweitzer subsequent to that time, to the effect that the plaintiff was the owner of the stock. We think the question was for the jury and was submitted in a proper manner.

The twelfth assignment alleges error in permitting the jury to find in favor of the plaintiff for the item described in the appraisement as “one-half interest in personal property in grist mill,” valued at $25.00. The instructions quoted in this assignment show that the learned court had difficulty in pointing to the testimony which would support the plaintiff’s claim to this property. It is alleged in the statement of claim that this property “was acquired by the plaintiff paying for same by payment of his earnings for the said personalty.” We do not find that this allegation of the statement of claim is sustained by the testimony. But in their argument upon this assignment it is urged that it was sold to the plaintiff at the public sale above referred to. We have examined the testimony of the witnesses by whom that sale was proved, and are unable, to find therefrom any evidence that would affirmatively show that the property in the grist mill was bought by .the plaintiff. It may have been, but the evidence fails to show the fact. These witnesses speak of farm stock, horses, farm implements, cows, pigs, and wagons as having been sold, but so far as identifying any personal property in the mill as having passed at that sale their testimony is wholly lacking. We conclude, therefore, that there was error in submitting the question to the jury.

The court committed no error in admitting in evidence the check referred to in. the thirteenth assignment of error, the offer being accompanied by an offer to follow it by proof that it was given in payment of the stock purchased by the plaintiff at .the public sale of Robert Schweitzer’s property: If it was not followed by such proof the admission of the check did no harm, and, at any rate, the appellant cannot complain since she did not move to strike out the evidence or ask the court to direct the jury to disregard it. •

This case was in the main well tried, and it is unfortunate that this unhappy family controversy cannot be ended here. But the conclusion that there was reversible error in the fourth and twelfth assignments is unavoidable. The other assignments are overruled.

Judgment reversed and venire facias de novo awarded.