author: Rice, P. J.,

text:
    Virginia Bussier, Appellant, v. Harry Weekey et al.

      Jurisdiction, equity — Restraint of trespass.

    Under the Act of June 16, 1836, P. L. 784, the court has undoubted power to restrain the commission of trespasses where the remedy at law will be inadequate. If the trespass is fugitive and temporary then adequate compensation can be obtained by action at law. and there is no ground to justify the interposition of a court of equity. If, on the other hand, trespasses are constantly recurring and threatening to continue, or if the threatened trespass contemplates a permanent occupation and use of the plaintiff’s property, the rule is different and the jurisdiction is sustained.

      Practice, equity — Pleading—Demurrer.
    A demurrer necessarily admits the truth of the facts stated in the bill, so far as they are relevant and well pleaded; but it does not admit the conclusions of law drawn therefrom, although they are also alleged in the bill.

      Jurisdiction, equity —Restraint of trespass.

    Where the facts in the case are undisputed and establish a clear and legal right to land in controversy, the court has jurisdiction to restrain the commission of a trespass which threatens a permanent invasion of the premises.

      Argued Oct. 8, 1896.
    Appeal, No. 64, Nov. T., 1896, by plaintiff, from decree of O. P. No. 1, Phila. Co., Sept. T., 1895, No.'131, dismissing plaintiff’s bill.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Bill to restrain trespass on real estate and demurrer thereto. Before Biddle, P. J.
    The facts are disclosed from the following abstract of bill and demurrer:
    The bill sets forth that the plaintiff, a widow, is owner in fee of premises 240 Harvey street, Germantown, Philadelphia ;■ that she has owned and occupied, them continuously for about twenty-eight years, keeping all the fences and other boundary marks during that time on precisely the same lines as at the inception of her title, without variation; that the fence on the northeast side of her property is about eleven inches further northeast than her deed originally called for, but that by her open, notorious, continuous and adverse occupancy of the said strip as part of her premises during all the twenty-eight years, she has acquired a good and indefeasible title thereto; that certain of the defendants, to wit, Harry Weekey, Francis C. Dade, Jr., and Walter Noble, have forcibly and unlawfully moved part of the said northeast fence back upon her ground, and also have partly rebuilt the same, without regard'to her title or to the acts of assembly regulating the renewal of line fences in Philadelphia, and in so doing have also partly broken down part of the stone walls at the front and back of her property and committed other-damage, and, that they threaten to further trespass upon and move the remaining part of the said fence; also that since committing the acts complained of, said Weekey, Dade, and Noble have sold adjoining premises to the other three codefendants.
    The prayer of the bill was that defendants be decreed to restore the fence so moved back to its original location; to restore the walls or parts thereof destroyed; and to be enjoined from further interference with property of plaintiff.
    To this bill the defendants filed no answer, but demurred, alleging:
    1. Adequate remedy at law.
    2. That this is an ejectment bill.

      March 17, 1897:
    3. That it attempts to regain possession of land now in certain of the defendants.
    4. That it attempts to regain possession of land to which plaintiff has no title.
    5. That plaintiff’s right has not been established at law.
    6. Improper joinder of Lewis Freeh, Cebert H. Newhall and John Wesley Durnell as codefendants.

      Errors assigned were (1) in not overruling defendants’ demurrer; (2) in not entering decree for plaintiff as prayed for in bill; (3) in sustaining demurrer; (4) dismissing plaintiff’s bill.

      Edivin E. Schively, for appellant.

      Alex. Simpson, Jr., for appellees.
   Opinion by

Rice, P. J.,

By the act of June 16, 1836, extended throughout the commonwealth by the act of 1851, the courts of common pleas are given the power and jurisdiction of courts of chancery, so far-as relates to the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals. Under this section the court has undoubted power to restrain the commission of trespasses where the remedy at law would be inadequate. If the trespass is fugitive and temporary, then adequate compensation can be obtained by an action at law, and there is no ground to justify the interposition of a court of equity. If, on the other hand, the trespasses are constantly recurring and threaten to continue, or if “the threatened trespass contemplates a permanent occupation and use of the plaintiff’s property, the rule is different and the jurisdiction sustained; for such an injury is not reparable by an action for damages, besides that it would require to be followed up by successive actions. This is a well recognized distinction:” Masson’s Appeal, 70 Pa. 26; Biddle v. Ash, 2 Ashm. 211, 221; Stewart’s Appeal, 56 Pa. 413; Allison’s Appeal, 77 Pa. 221; Bitting’s Appeal, 105 Pa. 517; Ferguson’s Appeal, 117 Pa. 426; Walters v. McElroy, 151 Pa. 549. We remark, in passing, that in none of these cases was the plaintiff’s title first established by an action at law. It is equally well settled that a bill in equity will not lie simply to- recover possession of land, because, for this there is a complete remedy at common law, by ejectment. Such bills are demurrable. The Acts of April 15, 1858, P. L. 267, and April 5, 1859, P. L. 859, conferring special jurisdiction upon the courts of common pleas of Philadelphia county, in cases of disputed boundaries, do not affect this question. These acts do not confer jurisdiction to determine merely legal rights ; to confer jurisdiction, some equity must be superinduced by the acts of the parties : Norris’s Appeal, 64 Pa. 275; Tillmes v. Marsh, 67 Pa. 507. If, therefore, as the learned judge says, the plaintiff is “ admittedly out of possession ” of the land in controversy, he was clearly right in dismissing the bill upon the ground that she has an adequate remedy at-law. But we do not think the bill admits, either directly or by necessary inference, that the plaintiff is out of possession. On the contrary, she expressly avers that the defendants have moved part of her boundary fence and thus taken part of her land, and threaten “ to commit a similar trespass and move and rebuild in a similar' way the rest of the said fence.” As to the land not taken possession of by the defendants, the bill presents a case where, to repeat the language of Mr. Justice Shabswood, “ the threatened trespass contemplates a permanent occupation and use of the plaintiff’s property.” This averment is sufficient to give the court jurisdiction, even if the plaintiff is not entitled to equitable relief for the past injury.

The other ground upon which the learned judge bases his decree, is, that the plaintiff’s title, as set forth in the bill, is not an indefeasible title derived from the commonwealth, but necessarily a disputable title obtained by adverse possession. A demurrer necessarily admits the truth of the.facts stated in the bill, so far as they are relevant and are well pleaded: but it does not admit the conclusions of law drawn therefrom, although they are also alleged in the bill: Story’s Eq. PL, § 452. " Such being the effect of the demurrer, the facts taken to be admitted are, that the plaintiff had been in the open, notorious, exclusive, continuous, and adverse possession of the strip of land in question, for a period of twenty-eight years. • Thesed acts made for her a perfect title against all the world except the commonwealth, and a title which no mere trespasser could gainsay. The effect of the statute, said Chief Justice Gibson, is to transfer to the occupant the title against which it has run: Graffius v. Tottenham, 1 W. & S. 488, 494. The right of possession is acquired by twenty-one years’ possession, and this right is not only sufficient to support a defense, but it is a positive title, under which one may recover as plaintiff in ejectment: Pederick v. Searle, 5 S. & R. 236. “ The common-law distinction between the right of possession and the right of property, as elements of title, is very much disregarded by us, and, so far as concerns the operation of the statute of limitations, is altogether lost sight of. Hence we have numerous cases in our books, in which titles under the statute are spoken of as titles against all the world— as indefeasible — as equally perfect with any known to the law— as title against the true owner — as capable of being lost only by grant or adverse possession, and not by neglect — as a perfect title even against a bona fide purchaser, without notice: ” Chief Justice Woodward, in Schall v. The Williams Valley R. R. Co., 35 Pa. 191, 205. It is unnecessary to multiply authorities to show that a title by adverse possession is as good as any other, and that its owner is equally entitled to protection in a court of law. Why should he not be entitled to the same protection in a court of equity? It is answered, because such title is disputable and dependent upon oral evidence. The cases show that if the facts upon which the title is based are in dispute, a court of equity may, and generally will, refuse to interfere, further than to preserve the status quo, until the right can be established at law; but no case has been called to our attention in which it has been held that, because the title is of a kind which may be disputed, equity will not take jurisdiction. Wash-burn’s Appeal, 105 Pa. 480, is certainly not such a case. The point decided in that case was that a court of equity has no jurisdiction to settle a disputed legal title to land, or to a right of way, on a bill in equity filed by the party in possession averring that a multiplicity of suits at law may result to redress threatened grievances. . The facts were disputed by the answer and in the testimony, and the case clearly came within the rule as stated in Rhea v. Forsyth, 37 Pa. 503, and restated in Mow-day v. Moore, 133 Pa. 598. “ Where the plaintiff’s right,” says Woodward, J., “has not been established at law, or is not clear,- but is questioned .... not only by the answer of the defendant, but by proofs in the cause, he is not entitled to remedy by injunction. It is not enough that he is able to produce some evidence of his right, where there is conflicting evidence going to the denial of all right. In a case so situated the plaintiff should first establish his right in an action at law, and then come into chancery if necessary, for the protection of the legally established right.” As the present case now stands the facts are not disputed and they establish a clear legal right, in the plaintiff, in the land in controversy. Until, at least, the defendants are able and willing to deny the facts out of which-the plaintiff’s title grows, they will not be in a position to insist that she shall go into a court of law to establish them before invoking the protection of a court of equity against their threatened invasion of her premises.

Whether or not she will be entitled to all the relief she prays for is a question which it would be premature to discuss at this time. It is sufficient for present purposes, to show that a court of equity has jurisdiction to the extent, at least, of protecting her against further encroachment on the property in her actual and peaceable possession.

The decree is reversed, the bill is reinstated, and it is ordered that the- defendants answer over; the costs of this appeal to be paid by the appellees.


source: Caselaw Access Project

author: Willard, J.,

license: Public Domain

text:
    Commonwealth of Pennsylvania v. O. W. Dunham, Appellant.

      Hawking and peddling — Prohibition of, by act of 1846.
    The carrying about from house to house of small packages of goods and offering them for sale, constitutes peddling within the purview of the Act of April 17, 1846, P. L. 364, forbidding the sale by any person, as a hawker or peddler, of foreign or domestic goods, wares and merchandise, in the county of Schuylkill: Commonwealth v. Gardner, 133 Pa. 284, followed.

      Constitutional lUw — Statutes—Peddling—Acts of 1846 and 1854.
    The prohibition of the Act of April 17, 1846, P. L. 364, being directed not to the right of an owner to sell his goods, but to the manner in which he may sell them, it is not in violation of the constitutional right of acquiring, possessing and protecting property, secured by sec. 1, art. 1 of the constitution of Pennsylvania, but is a valid exercise of the police power of the state.
    The Act of April 13, 1854, P. L. 328, extends the provisions of the act of April 17,1846 to the county of Lycoming, and the proviso contained in the act of 1854 that the manufacture of tin and copper ware, hats and confectioneries shall not be embraced within the provisions of the act relates only to the manufacture of said articles but not to the hawking and peddling or sale of the same, and is in no way a limitation upon the provisions of the act of 1846.
    Argued Feb. 17, 1897.
    March 17, 1897:
    Appeal, No. 156, Jan. T., 1896, by defendant, from judgment and sentence of Q. S. Lycoming Co., Dec. T. 1894, No. 13.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Indictment for hawking and peddling. Before Metzger, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.
    The jury found a special verdict on which the court directed judgment to be entered, upon which defendant was sentenced to pay a fine of $50.00 and the costs of prosecution. Defendant appealed.

      Errors assigned were (1-3) entry of judgment and imposition of sentence.

      John Q. Reading, Jr., with him O. Bartles, Jr., and B. S. Bentley, for appellant,
    cited, inter alia, Butcher’s Union Co. v. Crescent City Co., 111 U. S. 746; Slaughter House Cases, 16 Wal. 113; Stockton Laundry Case, 26 Fed. Rep. 611, and relied especially on Brennan v. Titusville City, 153 U. S. 289, also Sayre Borough v. Phillips, 148 Pa. 482.

      W. R. Peoples and John J. Reardon, with them N. M. Edwards, district attorney, for appellee.
   Opinion by

Willard, J.,

The appellant was indicted in the court below for violating the provisions of the Act of Assembly of April 17,1846, P. L. 364, and its supplement of April 13,1854, P. L. 328. The act of 1846 provides as follows: “No person or persons shall sell or expose to sale in the county of Schuylkill as a hawker or peddler or traveling merchant, any foreign or domestic goods, wares or merchandise, under a penalty of $50.00 for each and every offense, to be inflicted in the manner provided in the act of April 6, 1833, entitled ‘ A supplement to an act regulating auctions in the city of Lancaster and other towns of this commonwealth,’ passed on the 7th day of April, 1832.” The mode of procedure prescribed by this act is by indictment. ■

On March 5, 1895, a plea of not guilty was entered, and a jury being called and sworn, rendered a special verdict, in which they found inter alia, that the defendant “ offered and exposed for sale either for cash or on the instalment plan, so called, from door to door, in the borough of Jersey Shore, in the county of Lycoming, on or about the 1st of October, 1894, certain goods, to wit, clothes wringers, bed springs, clocks, lace curtains, table spreads, albums, silverware, rugs and lamps.” That the goods so sold or offered for sale, were sold and offered for sale by defendant as agent or employee of the American Wringer Company, a corporation of the state of Rhode Island, their principal office being in the city of New York, and that of the goods so sold they were the manufacturers of the wringers and bed springs, but not of the other goods, although they were large dealers in such other goods; that these goods were shipped by said corporation from the state of New York to defendant in Pennsylvania, and by him offered for sale, and sold as aforesaid; that defendant made these sales for the company and received for his services a salary from the company.

The act of April 13, 1854, extends the provisions of the act of 1846 to the county of Lycoming, and contains the following proviso: “ Provided that the manufacture of tin and copper ware, hats and confectioneries shall not be embraced within the provisions of this act.” The only question raised here is the constitutionality of the act of 1846 and the effect of the proviso to the act of 1854.

The constitutionality of the act of 1846 is not a debatable question. Iii a thorough and well-considered opinion by Mr. Justice Williams in the case of Commonwealth v. Gardner, 133 Pa. 284, that question is definitely settled and it is unnecessary for us to reiterate the principles upon which that decision is based. In a subsequent opinion by the same learned justice in Commonwealth v. Harmel, 166 Pa. 89, the reasons now urged by tbe appellant for declaring this act unconstitutional are met and fully answered. The case of Brennan v. Titusville, 153 U. S. 289, has no application to the case -we are considering, as conclusively shown in Commonwealth v. Harmel, supra.

The free interchange of commodities between citizens of different states without regard to state lines is protected by the federal constitution and laws. But this protection does not authorize the citizens of one state to establish a delivery depot in another state so as to protect those who, as hawkers and peddlers of goods, wares and merchandise (taken from the depot so established), travel from door to door vending such merchandise in violation of the provisions of the act of 1846.

The argument of the appellant that the act in question does not bear upon all persons and commodities impartially is without force under the facts in this case and the provisions of the said act. In Sayre Borough v. Phillips, 148 Pa. 482, the ordinance was declared a trade regulation and therefore invalid, because it was not directed against the business of peddling but against some persons who engaged in it to the exclusion of others. There is no such exclusion in the act which we are considering, nor does the proviso to the supplement extending the act to the county of Lycoming exclude any commodity from the operation of the act. The act prohibits any person from selling or exposing for sale, as hawker, peddler or traveling merchant, any foreign or domestic goods, wares or merchandise. The proviso to the act of April 13, 1854, relates to the manufacture of tin and copper ware, hats and confectioneries,.but not to the hawking, peddling or sale of the same. Therefore the proviso is in no way a limitation upon the provisions of the act of 1846 as applied to Lycoming county, and that act having been fully sustained by our Supreme Court, as before stated, we are bound by that adjudication under the 10th section of the act of June 24, 1895, we see no reason for departing from the rules established in the cases above cited. The case before us is ruled by Commonwealth v. Gardner, supra. The opinion of the learned judge of the court below carefully covers all the questions raised, and in our opinion there is no error in this record.

The judgment is affirmed.


text:
    George Rimestone v. J. H. Reifsnyder, Appellant.

      Vendor and vendee — Practice, C. P. — Question for jury.

    The action being to recover the amount of unpaid purchase money of a lot of ground, and testimony being conflicting as to the price agreed upon and the amount paid, the question was properly one for the jury.

      Vendor and vendee — Deed—Consideration—Evidence.
    Ordinarily the deed is prima facie evidence of the amount of consideration agreed to be paid, but is not conclusive.
    Argued Feb. 16, 1897.
    Appeal, No. 28, Feb. T., 1897, by defendant, from judgment of C. P. Centre Co., Aug. T., 1895, No. 118, on verdict for plaintiff.
    Before Willard, Wickham, Beaver, Reeder, Orl'ady and Smith, JJ.
    Affirmed.
    Assumpsit to recover balance of purchase money. Before Love, P. J.
    Plaintiff’s evidence tended to show a balance of $181.50 due and owing from defendant to plaintiff on account of the purchase of a certain lot or piece of ground in the borough of Mill-heim, for which the defendant agreed to pay $400.
    Defendant admitted the purchase but introduced evidence tending to show that the consideration as agreed upon between the parties and consummated by a deed bearing date on the 15th day of March, 1890, was $257.29.
    The court left the question to the jury to be determined on the evidence as to what was the consideration money agreed to be paid by Reifsnyder to Rimestone for the lot in controversy, charging them, inter alia, as follows: “Ordinarily the deed itself is prima facie evidence of the amount agreed to be paid, but is not conclusive.” (4)
    Verdict for plaintiff for $248.90. Defendant moved for a new trial, which rule was dismissed by the court in the following opinion by Love, P. J.
    This is a rule granted upon the plaintiff to show cause why a new trial should not be had in this case. The first reason for a new trial is the absence of material witnesses — and that defendant was forced to trial before the said witnesses arrived. If the witnesses were regularly subpoenaed they should have been here in time for the trial. They could have been here by rail in ample time, and no excuse is shown for their not being here in due time in obedience to the demands of subpoena. If they voluntarily disobeyed their subpoena, the defendant should have asked for an attachment at once, and then until the attachment was returned the trial would have been postponed. But the evidence, the witnesses would have testified to, would not have materially affected the only question of fact in dispute— the contract for the purchase of the lot had been executed, deed executed and delivered by plaintiff to defendant. The only question was as to the amount of consideration money to be paid. The plaintiff and one witness testified that defendant had agreed to pay $400. The defendant denied this, and testified that he was to pay the sum mentioned in the deed to wit $257.29. The evidence raises a question of fact that must go to a jury, and we submitted it fairly to the jury. We instructed the jury that prima facie the deed showed the consideration agreed upon, and that they had the deed and the testimony of Mr. Reifsnyder on the one side and the testimony of the plaintiff and Ryan on the other side. After a due consideration of reasons filed and the testimony adduced, we do not think them sufficient to move the court to grant a new trial.
    March 17, 1897:

      Errors assigned were (1) in forcing defendant to trial on the first day of the term before his witnesses, who were on their way to the court, had arrived; (2) in giving weight to the testimony of Harry Ryan; (3) in overruling motion for a new trial; (4) in portions of the general charge, reciting same.

      B. F. Fortney, with him Ira O. Mitchell, for appellant.

      Wilbur F. Feeder, for appellee.
   Opinion by

Willard, J.,

The plaintiff in the court below brought an action against the appellant to recover the sum of one hundred and eighty-one dollars and fifty cents ($181.50) unpaid purchase money alleged to be due as part consideration for a certain lot of land sold by him to the appellant. The appellee testified that the price of the lot agreed upon was four, hundred dollars ($400), and in this he was corroborated by another witness who was present at the time the bargain was made between the parties in 1890. The appellee also testified that after deducting certain payments on account there was due and unpaid the sum of one hundred and eighty-one dollars and fifty cents ($181.50) on the contract and interest from January, 1890.

The appellant testified that he bought the lot. and received a deed therefor in which the consideration was stated to be two hundred and fifty-seven dollars and twenty-nine cents ($257.29) and that that amount was the agreed price between the parties and that he had fully paid the same.

This question of fact was carefully submitted to the jury by the learned trial judge and a verdict rendered for the plaintiff for two hundred and forty-eight dollars and ninety cents ($248.90). We find no error in the submission of the case to the jury.

The questions raised by the first, second and third assignments of error are not proper subjects for our consideration; they were correctly disposed of by the learned trial judge in his opinion refusing a new trial.

The judgment is affirmed.


text:
    Hannah G. Speers, administratrix of James Speers, deceased, v. H. S. Knarr, Appellant.

      Vendor and vendee — Sale—Statute of frauds — Guaranty—Meaning of words.

    Where a vendor delivered lumber to S. at the request and on the verbal agreement of K. “ to fix it,” meaning thereby that he would pay for it, the undertaking is not a guaranty, and not within the statute of frauds.
    The question of the meaning and effect of the words used was properly left to the jury.

      Practice, Superior Court — Defective assignment of error.

    Ati assignment which relates to remarks alleged to have been made by counsel in argument to the jury is defective where the assignment is not printed, and where the facts alluded to therein are not brought upon the record in any way.

      Argued Feb. 9, 1897.
    Appeal, No. 22, Feb. T., 1897, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1888, No. 571, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver and Reeder, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Gordon, P. J.
    It appeared from the evidence that one Sackett desired to purchase lumber from plaintiff’s decedent; that the decedent, Mr. Speers, refused to furnish the lumber upon Sackett’s credit. Sackett, who desired to begin building on a lot winch he had agreed to purchase from H. S. Knarr, the defendant, informed the defendant of this fact. He, it is alleged, requested Mr. Speers to deliver the lumber to Sackett and promised that he, the defendant, would pay for it. The lumber, it is alleged by plaintiff, and there was evidence tending to establish the fact, ■was delivered upon the defendant’s credit and was bought for use in the construction of the house on land which defendant contracted to sell to Sackett, but for which the latter had not paid the purchase money.
    The court left the question to the jury as to whether there was an agreement on the part of the defendant to pay for the lumber, leaving it for the jury to determine the meaning of the conversations and messages which constituted the agreement, the court, Gordon, P. J., charging the jury, inter alia, as follows: . . . [If Mr. Speers sold the lumber in this case on the credit of W. G. Sackett, without Mr. Knarr having stated to him or sent him ■word in advance to sell Sackett the lumber and that he would pay for it or would fix it, then any subsequent action of Mr. Speers would not be binding upon Mr. Knarr, because the amount involved exceeds $20.00. It is the duty of the plaintiff to satisfy the jury, by the wreight of the testimony, that he sold this lumber not on the credit of W. C. Sackett but upon the promise made by Mr. Knarr, that if he would deliver Sackett the lumber that he, the defendant, would fix it, meaning thereby that he would pay for it.] [1] ... [It isn’t necessary that we go over all of the testimony in detail, because it is a question of fact for the jury, and you are to pass upon it from the weight of the testimony, the preponderance of the evidence.] [2] . . . [On tbe part of the defendant, you have his testimony taken on the former trial. By reason of the death of Mr. Speers, Mr. Knarr cannot now be a witness, but his testimony taken on the other trial is competent evidence. He denies entirely the story, as told here, as to the contract made; he denies that he made or entered into any undertaking to pay for the lumber in any emergency; he says he did send this man Sackett to mill men, those engaged in furnishing lumber; said to him that he could probably get lumber with which to build his house, but he denies emphatically that he said to Sackett to tell Speers that he would either pay for it or he would fix it. I believe he says he sent him to Speers to get the lumber and told him he would see about it.
    By Mr. Cole: He doesn’t go that far; he says go-and tell Speers to let you have it; that is all he says.
    By the Court: No matter which he uses. If he said that he would see about it, it wouldn’t make him liable, unless he agreed to pay for it.] [3] .....
    Verdict and judgment for- plaintiff for $36.46. Defendant appealed.

      Errors assigned were (1-3) portions of the judge’s charge; (4) in answering defendant’s point, as follows :
    “1. The evidence in this case offered by the plaintiff to charge the defendant even if believed, is not sufficient to entitle the plaintiff to recover, as at most it tends to establish a contract of guaranty on the part of Mr. Knarr, and no evidence having been given by Speers of the acceptance of that guaranty, and no proceedings taken to recover from the principal debtor, there can be no recovery here.” Answer: “We decline to so instruct you as we instructed you in our general charge, if you find from the evidence that Knarr refused to obligate himself in any way, as he claims, or that his obligation was but a guaranty or collateral undertaking, there being no evidence of notice of acceptance from Speers to Knarr, the latter would not be liable. But, if you find from the evidence that Knarr did make an agreement, and that it was an original undertaking on his part to pay Speers for the lumber Sackett would get under and in pursuance of the arrangement, and that the lumber was furnished in pursuance and reliance upon it,' no notice was required from Speers to Knarr of the acceptance or delivery of lumber in pursuance of that arrangement. If the evidence shows Knarr agreed to become liable as a primary obligation, he needed no notice, as it was his debt. This is as we stated before, a question of fact for the jury. Arrive at your verdict as you find from the clear weight of the evidence, the contract to be one way or the other.” (5) In submitting to the jury the question as the plaintiff’s right to recover, for the reason that said claim is clearly within the provision of the statute of frauds and perjuries; (6) relates to remarks alleged to have been made by plaintiff’s counsel in his closing argument to the jury. The assignment is not printed, and the facts alluded to therein were not brought upon the record in any way.
    March 7, 1897:

      A. L. Cole, with him H. A. Moore, for appellant.

      W. C. Pentz, for appellee.
   Opinion by

Rice, P. J.,

W. C. Sackett being about to build a house on a lot which he had contracted to buy from the defendant, applied to James Speers for lumber. The latter refused to furnish it unless he would bring an order from the defendant. Sackett reported this to the defendant, and the latter told Sackett to tell Speers to let him (Sackett) have the lumber and that he (the defendant) would fix it. This was substantially the language of the defendant as testified to by Sackett and two other witnesses who were present. John S. Speers, a brother of James Speers, testified, that about the same time the defendant told him to tell his brother to let Sackett have the lumber and he (the defendant), would pay for it. There was evidence that what the defendant said was communicated to James Speers, and that pursuant to the order and promise thus communicated to him he furnished the lumber. Therefore the case is the same as if the defendant had given the order to Mr. Speers in person. The learned trial judge instructed the jury : “ It is the duty of the plaintiff to satisfy the jury, by the weight of the testimony, that he sold this lumber, not on the credit of W. C. Sackett, but upon the promise made by Knarr that if he would deliver Sackett the lumber, he, the defendant, would fix it, meaning thereby that he would, pay for it.” There is scarcely room for doubt— especially in view of what he said to John Speers — that when the defendant said he would “fix it” he meant he would pay for the lumber. But as the meaning of words used in conversation and what the parties meant to express by them is for the jury to determine, the court in this, as well as in other parts of the charge, properly left the question to them: McFarland v. Newman, 9 W. 55-59; Brubaker v. Okeson, 36 Pa. 519; Maynes v. Atwater, 88 Pa. 496; Forrest v. Nelson, 108 Pa. 481; Hineman v. Matthews, 138 Pa. 204; Stoddart v. Price, 143 Pa. 537; Fulton v. Lancaster Co., 162 Pa. 294-297. In another portion of the charge the jury were instructed that in order to hold the defendant the lumber must have been furnished by Mr. Speers relying upon this contract; it must have been furnished upon the credit of the defendant. The defendant denied having made the promise as alleged by the plaintiff, but as the evidence so strongly preponderates in favor of the plaintiff’s theory it does not seem strange that the jury adopted it. At all events the verdict, construed in the light of the judge’s charge, may be regarded as a finding of the following facts upon sufficient evidence: (1) Mr. Speers refused to furnish the lumber upon Mr. Sackett’s credit. (2) The defendant, being informed of this, requested Mr. Speers to deliver the lumber to Sackett and promised that he, the defendant, would pay for it; (3) Mr. Speers delivered the lumber upon the defendant’s credit; (4) the- lumber was bought for and used in the construction of a house on land which the defendant contracted to sell to Sackett, but for which the latter had not paid the purchase money. Under the latter contract the defendant agreed to look to the land for the payment and not to hold Sackett personally liable therefor.

These facts being established we think the defendant was properly held liable, notwithstanding the fact that his promise was not in writing. It was not in form of a guaranty but it was unconditional; it was a promise to pay for goods to be delivered upon his order and upon his credit and not that of Sackett; and the effect was to subserve his personal interest. It was, therefore, an original undertaking, a promise to pay his own debt, and was not within the statute requiring promises to answer for the debt, default, or miscarriage of another to be in writing: Jefferson Co. v. Slagle, 66 Pa. 202; Weyand v. Crichfield, 3 Gr. 113; Merriman v. Liggett, 1 W. N. C. 379; Greenough v. Eicboltz, 1 Mona. 433; Boston v. Farr, 148 Pa. 220; Holmes v. Fitzpatrick, 173 Pa. 366, are eases more or less analogous to tbe present in their facts, and in all of them the promisor was held liable.

The principle upon which the cases of Eshleman v. Harnish, 76 Pa. 97, and Haverly v. Mercur, 78 Pa. 257, were decided does not control the case at bar. Here there was no change of relation alleged, and no presumption to overcome, that an existing relation between the defendant and a third person continued. No debt or obligation was created until the thing was done which the defendant requested to be done, and Ms obligation to pay for the goods delivered upon Ms order and his credit was none the less binding merely because benefit might accrue to a third person. Under the facts found by the jury the defendant became the principal debtor upon compliance with the order. It was sufficient if the verdict establishing those facts was arrived at from the clear weight of the evidence as in his final instructions the learned judge told the jury it must be.

We think the counsel for the defendant mistake the meaning of the excerpt from the charge specified m the third assignment of error. The meaning plainly was that whether the defendant said: “ I will see about it,” or “ tell Speers to let you have it,” would make no difference, and that in either case the defendant would not be liable if he did not agree to pay for it. The defendant’s expression, as given by the judge, was quite as favorable to the defendant’s theory as the expression as given by his counsel. Neither was a strictly literal quotation of the evidence, but there can be no doubt that the jury understood from what the judge said at this time as well as from the charge taken as a whole, that if the defendant did not expressly promise to pay for the lumber he was not liable. He has no just cause to complain of the charge upon that question.

Upon the facts found by the jury this was not a guaranty but an original, unconditional undertaking to pay for the lumber, and the principle referred to in the defendant’s point did not apply. It was properly refused, for the reasons given M the answer thereto.

The sixth assignment relates to remarks alleged to have been made by the plaintiff’s counsel in his closing argument to the jury. As the assignment is not printed and as the facts alluded to therein were not brought upon the record in any way, we dismiss it without further comment.

All the assignments are overruled and the judgment is affirmed.


text:
    Edward Davidson v. The Schuylkill Traction Company, Appellant.

      Negligence — Street railways — Question for jury.

    Negligence is always a question for the jury whenever there is a conflict of testimony, or for any cause there is a reasonable doubt as to the facts or as to the inferences to be drawn from them.
    If the motorman of a railway company saw, or, in the exercise of due care, ought to have seen, the plaintiff on the track and making ineffectual efforts to get off, and by slowing up his car could have avoided the collision, and failed to stop or slow up his car; or if, having regard to the narrowness of the traveled portion of the highway, the amount of travel thereon, the construction of the track, and the form of the rail, the difficulty of getting off the track, the grade, and all the other circumstances, the car was being run at dangerous speed, and in consequence the motorman was unable to check it sufficiently to prevent collision with one who, without negligence, happened to be on the track, and if a collision could have been prevented if the car had been running at proper speed, then the question, whether the motorman exercised care according to the circumstances, was' for the jury; it certainly was not for the court to declare that he did exercise such care.

      (Contributory negligence — Degree of care — Question for jury.

    In matters where the question of contributory negligence is involved the measure of duty is ordinary and reasonable cafe, and, when the degree of care varies according to the circumstances, the question of negligence is always for the jury.

      Practice, Superior Court — Defective assignment.

    An assignment of error is defective, and offends against Rule XV., which assigns error as follows: “ The Court erred in not affirming the defendant’s second, third, fourth, fifth, seventh and tenth points, which points and answers are as.follows: ” the points and answers thereto being recited under this one assignment.

      Municipal ordinance— Violation of, does not import negligence per se.

    A municipal ordinance creates no new civil liability enforceable at common law in favor of one injured by another acting in disobedience of it; hence it cannot be laid down as a rule of law, that when a street car being propelled at higher speed than a reasonable municipal ordinance permits, collides with another vehicle, the company is liable if the owner of the vehicle was not guilty of contributory negligence.
    Proof of the violation of the ordinance only goes to one of the elements of actionable negligence, and there still remains the question whether it was the cause of the injury.
    Argued Dec. 9, 1896.
    Appeal, No. 99, Nov. T., 1896, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1898, No. 131, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beavek, Reeder, Oblady and Smith,. JJ.
    Reversed.
    Trespass for personal injuries arising from a collision. Before Savidge, P. J., specially presiding.
    There was evidence tending to show that the plaintiff, while driving a horse and wagon upon the public highway in the borough of Gilberton, was struck by a car on the tracks of the defendant company from which injuries resulted to himself and wagon; that plaintiff while driving along with his goods noticed that a vinegar jar had fallen over; that he naturally leaned forward to reach it and while doing so held the lines with his left hand and righted the jar with his right hand; his horse swerved from the driveway and he found himself on the track with the wheels between the rails; that he had noticed just a short time before this that this car was some three or four hundred yards below, as he thought, standing upon the siding, and that he had no reason to apprehend that it was close upon him; that at the time he got upon the tracks it was not very close to him, that when he noticed it and attempted to get back upon the driveway his wheels were caught by reason of the depression between the rails and he did not succeed in getting the left hind wheel of his wagon out, and that whilst making the attempt to do so the car suddenly came along at a high rate of speed and without warning struck the wagon, producing the injuries complained of.
    . The defendant’s evidence tended to show that the plaintiff drove upon the track immediately in front of the car so that the motorman had no opportunity to stop it.
    Other facts appear in the opinion of the Superior Court.
    The court left the question of negligence and contributory negligence to the jury and instructed the jury, inter alia, that if the car was being run at a greater rate of speed than allowed by the ordinance of the said borough it was prima facie evidence of negligence on the part of the defendant and the verdict should be for the plaintiff.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Errors assigned were (1) in answering plaintiff’s first point, which point and answer are as follows:
    1. That if the jury find that the car which struck the plaintiff’s wagon was being run at a greater rate of speed than allowed by the ordinance of the said borough, it is prima facie evidence of negligence on the part of the defendant and the verdict should be for the plaintiff. Answer: This is so, gentlemen, provided you find the restriction imposed upon the rate of speed was a reasonable one. With this qualification the point is affirmed.
    (2) In not affirming the defendant’s second, third, fourth, fifth, seventh and tenth points, which points and answers are as follows: The plaintiff having testified that on occasions before the accident he had noted and regarded the point of accident as a dangerous place and on the day of accident he, driving his horse along said place of danger, permitted the horse to wander out of the road and into a place of danger he was guilty of contributory negligence and the verdict must be for the defendant. Answer: Refused. The court cannot under the testimony declare the plaintiff negligent. It is for the jury to say under the circumstances whether he acted as a prudent and careful man. If you find he did not, but was negligent even in the least degree he cannot recover.
    3. The plaintiff having testified that he knew the turnout four or five hundred yards west of the place of accident was a passing point for the cars, and it being proven the cars did pass on said turnout that morning, and also passed the plaintiff, he must have known that a car would soon come down toward him; he being on a public road only eight or ten feet wide it was his duty under the circumstances to be on the lookout for said car and have his horse under his control, and his failure to exercise great care was contributory negligence and he cannot recover.
      Answer: Refused. I cannot say to you the plaintiff failed to use the care required of him. That is for you to determine. If there was any carelessness on his part he cannot recover.
    March 17, 1897:
    4. No circumstance having been proven in this case excusing the negligence of the plaintiff of his failure to properly drive his horse and keep him on the driveway, his act in getting on the track was not merely evidence of negligence but was negligence per se. Answer: Refused.
    5. It is the duty of a driver on a public highway to have his horse well in hand and under control if possible, and his failure to do so is negligence. Answer: It is the duty of a driver on a public highway to have his horse well in hand and under control if reasonably possible, and his failure to do so is negligence. With this qualification the point is affirmed.
    7. It being proven that the railway track occupied one side of the street and the driveway the other side, and that the track was constructed of rails of the T pattern therefore could not be used for a driveway, and the plaintiff being upon said railway without giving a satisfactory reason for being there he was guilty of contributory negligence and the verdict must be for the defendant. Answer: Refused. I cannot say to you the plaintiff failed to give a satisfactory reason for being on the track. That is for you to determine.
    10. Under law and the evidence the verdict must be for the defendant. Answer: Refused.

      MacHenry Wilhelm, for appellant.

      Charles B. Breelcons, with him James B. Reilly, for appellee.
   Opinion by

Rice, P. J.,

Negligence is always a question for the jury whenever there is a conflict of testimony, or for any cause there is a reasonable doubt as to the facts or as to the inferences to be drawn from them. If the motorman of the defendant company saw, or, in the exercise of due care, ought to have seen the plaintiff on the track and making ineffectual efforts to get off, and by slowing up his car could have avoided the collision, and failed to stop or slow up his car; or if, having regard to the narrowness of the traveled portion of the highway, the amount of travel thereon, the construction of the track, and the form of the rail, the difficulty of getting off the track, the grade, and all the other circumstances, the car was being run at dangerous speed and in consequence the motorman was unable to check it sufficiently to prevent collision with one, who, without negligence, happened to be on the track, and if a collision could have been prevented if the car had been running at proper speed, then the question, whether the motorman exercised care according to the circumstances, was for the jury; it certainly was not for the court to declare that he did exercise such care. This is not a merely supposititious case, but the question as above stated is fairly raised by testimony in the case.

As was said in Gilmore v. Railway Co., 158 Pa. 31, “Street railway companies have not an exclusive right to the highways upon which they are permitted to run their cars, or even to the use of their own tracks. The public have a right to use these tracks in common with the railway companies, and therefore, while the rights of the latter are in some respects superior to those of the former, as was said in Ehrisman v. East Harrisburg City Passenger Railway Co., 150 Pa. 180, it is not negligence per se for a citizen to be anywhere upon such tracks. So long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons, who, without negligence upon their own part, may not at the moment be able to get out of the way of a passing car. The degree of care must necessarily vary with the circumstances, and therefore no unbending rule can be laid down.” This statement of the law lias been recognized and applied in many cases, amongst which may be mentioned Gibbons v. Railway Co., 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Lott v. Railroad, 159 Pa. 471; Thatcher v. Traction Co., 166 Pa. 66, and our own case of Smith v. Phila. Traction Co., 3 Pa. Superior Ct. 129. It is applicable here; and, as was said in Thatcher v. Traction Co., supra: “ It is not our duty now, nor was it that of the court below, to pass on the credibility of plaintiff’s witnesses as to the rate of speed, and the absence of effort to stop the car when the danger was manifest. That was for the jury.” It would have been error to instruct the jury that, there was no evidence of negligence on the part of the defendant.

Upon the question of the plaintiff’s contributory negligence it will be necessary to refer briefly to some of the more important points in his testimony. He claims that while driving along the highway he noticed that a vinegar jug in the bottom of the wagon near his feet had fallen over; that he stooped to reach it, and that whilst doing so, holding the reins in his left hand and righting the vinegar jug with his right hand, his horse swerved from the driveway and he suddenly found himself on the track, with the wheels between the rails ; that he immediately looked back and saw the car approaching at a high speed —his witness says at the rate of ten miles an hour; — that he then made an attempt to get back on the driveway; and that, although he was successful in getting the front wheel out over the rail and upon the plank running alongside, yet by reason of the fact that the rails were T rails and that the space between them was not filled, he did not get the left wheel out; that whilst making this attempt, urging his horse and doing all he could to escape from the danger he was in, the car collided with his wagon. He alleges that no warning of the approach of the car was given, and that the motorman made no proper effort to stop the car or to check its speed. The defendant’s witnesses give a somewhat different version of the affair, .but it is not necessary to go into that, for it is not our province to find the facts, but only to examine and ascertain whether there is competent evidence from which a jury might find the facts necessary to sustain their verdict. Assuming the facts to be as above stated, it would have been usurpation of the functions of the jury for the court to declare that the only legitimate inference was that the plaintiff was negligent. It is to be remembered that the railway track was upon the highway; therefore, the plaintiff was not a trespasser. The traveled road was less than ten feet wide and was brought on a level with the top of the rails by planks laid alongside. A horse swerving but little to one side might easily bring the two wheels of the vehicle inside the rail. The very danger of this made it the' duty of the plaintiff to be watchful to keep his horse off the track if he had reason to apprehend that a car was approaching and was near at hand. But whether he had reason to apprehend that a car was approaching, and was so near, or was coming at such speed, as to make it unsafe to release his attention from his horse in the attempt to save some article in his wagon from injury were questions of fact and not of law, and were submitted to the jury in a very clear and impartial manner. It was for the jury to say not only whether the facts were as alleged by the plaintiff and his witness, but also whether or not he failed to exercise the care that would be expected of an ordinarily prudent man under those circumstances. If the plaintiff drove upon the track when the car was as near as some of the defendant’s witnesses testify, it would be difficult to explain Iris act upon any theory but that of negligence. But the facts are not undisputed. True, the plaintiff says that when he -found that the wheels of his wagon were over the rail he looked back and that at that time the car was distant twenty-five yards or thereabouts. But his witness testifies that when he drove on the track the car was in the neighborhood of seventy-five yards away. It is to be remembered further, that the plaintiff did not intentionally drive' upon the track, and that if the car was twenty-five yards away when he found himself upon the track and looked back, it must have been very much farther away when he stooped over to look after his goods, if as the plaintiff’s witness says, it was going at the rate of ten miles an hour. Furthermore, he testifies that when he came to the narrow place, which was but a very short time before the accident, he looked back, and, although he could see a distance of at least a quarter of a mile, he could see no car.

But it may be said that the plaintiff cannot allege that he was accidentally upon the track, because his being there was attributable to his neglect of duty as a driver in stooping over to set right the vinegar bottle in the bottom of his wagon and remaining in that position long enough to permit his horse to get upon the track. The fact is undisputed, but whether it was a negligent act or not depended upon the circumstances, some of which are in dispute. It was not negligence per se like the failure to stop, look and listen before crossing a railroad track. The case, therefore, is a proper one for the application of the well-settled principle that when the measure of duty is ordinary and reasonable care, and when the degree of care varies according to the circumstances, the question of negligence is always for the jury: D., L. & W. R. R. Co. v. Jones, 128 Pa. 308; Gates v. Penna. R. R. Co., 154 Pa. 566. Without discussing the defendant’s second, third, fourth, and seventh points further, we conclude, for the reasons above suggested, that, as they requested the court to take the case from the jury upon the ground of the plaintiff’s contributory negligence, they were properly refused. The qualification of the defendant’s fifth point, taken in connection with and explained by, the general charge was entirely proper. Before leaving this branch of the case, we remark that the assignment of error in which the answers to the several points were included violates Rule XV. and might have been disregarded. We have, however, considered it upon its merits, and conclude that it cannot be sustained.

The affirmance of the plaintiff’s first point as qualified in the answer was an instruction that if the car which struck the plaintiff’s wagon was being run at greater speed than allowed by the ordinance of the borough, and if the restriction imposed by the ordinance upon the rate of speed was a reasonable one, it was prima facie evidence of negligence on the part of the defendant, and the plaintiff was entitled to recover. This was manifestly erroneous and inconsistent with other portions of the charge and the answers to other points, because it took from the consideration of the jury the question of the plaintiff’s contributory negligence, if they found the defendant negligent in the particular specified. Was it harmless error? We are not sure that it was. The jury may have got the impression that while, generally, the plaintiff’s contributory negligence would prevent recovery, yet if the ordinance was reasonable and was violated by the defendant, then in that particular instance the plaintiff would be entitled to recover without regard to his own negligence. We are sure that the learned judge did not intend to convey that impression, but we are not sure that the jury did not receive and act upon it. Obscure and equivocal expressions, which, severed from the context, would be erroneous, have often been held to be harmless when construed in the light of other instructions and the charge taken as a whole: Knights of Pythias v. Leadbeter, 2 Pa. Superior Ct. 461. An obscure answer to a point may be aided in this manner, but not one that is palpably wrong: Murray v. Com. 79 Pa. 311; Rice v. Olin, 79 Pa. 391. In Steinbrunner v. Railway Co., 146 Pa. 504, Chief Justice PAXSON said of a portion of the charge assigned for error: “ It may be the learned judge used this language inadvertently. This is probable from the fact that it is inconsistent with the portion of Ins charge which immediately preceded it. Bnt as it stands, it appears to be an erroneous statement of the evidence upon a pivotal fact in the case. We cannot say what influence it had with the jury.” The assignment was sustained. In Gearing v. Lacher, 146 Pa. 397, Mr. Justice Mitchell, after quoting the instruction complained of, said: “ This was so plainly erroneous, and so contradictory to what the judge had told the jury just before, that we are constrained to believe that there is some omission in the report which alters the whole meaning and application of the passage. ... It is probable that the learned judge was referring to the conflict of evidence in regard to the two recognizances, and that some error or omission in the report has confused the sense of his language, but as we find it on the record it was patent error, and the assignment in regard to it must be sustained.”

There is another view of this question, which, as the ease must go back for a retrial, is worthy of consideration. Edward Foley, the motorman, testifies that the plaintiff was but sixteen or twenty feet ahead of the car when he turned in on the track. Assuming for a moment that the plaintiff got upon the track by what may be regarded as a pure accident; that the ordinance restricting the speed of cars was a reasonable regulation; and that, at the time of the collision, the defendants car was moving at a greater speed, does it follow as a necessary legal conclusion that the speed of the car was the cause of the injury ? We think not. As Gibson, C. J., has said, “the defendant was answerable for the consequences of negligence, not for its abstract existence: ” Hart v. Allen, 2 W. 114. Its negligence in moving its car at too great speed was immaterial if it did not cause or contribute to the loss. Whether it did so or not was a question of fact. We do not question the admission of the ordinance in evidence. It is not denied that the jury had a right to take into consideration the fact that the car was moving at greater speed than the ordinance permitted: Pennsylvania Co. v. James, 81* Pa. 194; Lederman v. R. R. Co., 165 Pa. 118. But a municipal ordinance creates no new civil liability enforceable at common law in favor of one injured by another acting in disobedience of it: P. & R. R. Co. v. Ervin, 89 Pa. 71; P. & R. R. Co. v. Boyer, 97 Pa. 91. Hence it cannot be laid down as a rule of law, that when a street railway car, being propelled at higher speed than a reasonable municipal ordinance permits, collides with another vehicle, the company is liable if the owner of the vehicle was not guilty of contributory negligence. Proof of the violation of the ordinance only goes to one of the elements of actionable negligence, and there still remains the question whether it was the cause of the injury. It was necessary for the plaintiff to establish by evidence circumstances from which it might fairly be inferred that there was reasonable probability that the accident resulted from the want of some precaution which the defendant might and ought to have resorted to: Daniel v. Metropolitan R. R. Co., L. R. 3 C. P. 216-222; L. R. 5 H. L. 45; Hayes v. Mich. Cent. R. R. Co., 111 U. S. 228. Whether or not the accident resulted from such a cause was, under the testimony in the present case, a question of fact for the jury. Upon both grounds, therefore, the plaintiff’s first point should have been answered in the negative.

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


text:
    Commonwealth ex rel. Henry F. Menges and Camilla Menges, Appellants, v. C. W. Huttel, constable.

      Actions — Mandamus ■■ Landlord and tenant - Exemption appraisement.

    A mandamus will not lie to compel a constable, charged with the execution oí a landlord’s warrant, to have an appraisement made of goods elected to be retained by the tenant under the $800 exemption law of April 9, 1849, P. L. 533, except, possibly, in cases where the ordinary remedies would be wholly inadequate. In the case at bar no facts are alleged which make this case exceptional.

      Practice, O. P — Actions—Mandamus—Parties.
    Except where the writ of mandamus is sought to enforce a public duty or a duty affecting a particular public interest of the state the proceeding, like an ordinary action, is prosecuted in the name of the party instituting it as plaintiff and not in the name of the commonwealth as formerly.

      Mandamus — Impropriety of joining separate interests — Practice, G. P.

    Where the distinct rights of two or more persons areimproperly joined, a writ of mandamus is liable to be either superseded or quashed. There should be several writs according to the several interests.

      Argued Dec. 9, 1896.
    Appeal, No. 161, Nov. T., 1896, by plaintiffs, from decree of C. P. Northampton Co., quashing writ of mandamus.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Motion to quash mandamus. Before Schuyler, P. J.
    The petition of the relators disclosed a landlord’s warrant against Henry F. Menges for recovery of alleged claim for rent which had been placed in the hands of C. W. Huttel, a constable, upon which he had distrained upon personal property; that Camilla Menges claimed ownership of part of the property and Henry F. Menges part of the property and neither of them signed any lease or waived the exemption to which they are entitled under the laws of this commonwealth; that they immediately claimed the benefit of the exemption law and informed said constable in writing of their said claim ; that the constable had refused to allow the exemption; that if the constable sells the property it will cause the petitioners great damage ; that he has removed all of said goods from the premises and retains forcible possession of the same to the great injury and damage of the relators; that the relators are advised under section 2 of the act of April 9, 1849, upon demand made by them, that it becomes the duty of the constable to appraise the exemption they are entitled to out of the said property and they are further advised that the constable cannot be indemnified to sell their exempted property; that they are without other adequate and specific remedy at law and therefore pray for a peremptory mandamus directing the constable to make appraisement of the said exempted property so that they may retain what is exempted to each under the provisions of the act of April 9, 1849.
    The motion to quash the writ stated the following reasons:
    The application for mandamus includes two separate and distinct cases, without a joint interest.
    The writ only issues where there is a clear and specific right to be enforced, and the record does not show what right the wife had, she being a stranger.
    The record must show a right to have the thing done, but the thing sought to be done is that the constable shall give each of the relators his and her exemption, which is an absurdity.
    The petition must show on its face that the relator has no other specific or legal remedy, whereas the relators or either of them has a remedy by an action of trespass or replevin.
    The writ must show that it was within the power of defendant to do the act in question, but the petition fails to show that the defendant did not disclaim ownership of the g'oods, and further to show that the goods levied on were not the goods of a stranger so as to put it in the power of the constable to appraise the exemption.
    The constable acting under a landlord’s warrant cannot be compelled to allow the exemption by mandamus.
    The court, Schuyler, P. J., quashed the writ and dismissed the petition in the following opinion:
    On the relators’ own showing they have an adequate remedy at law by writ of replevin or action of trespass and their petition should be dismissed for that reason alone. If there are any peculiar facts in their case which would .render these remedies ineffectual, such facts being jurisdictional, should have been set forth in their petition. Nor can we see upon what principle the wife is joined as corelator. The landlord’s warrant was against the husband alone, and he alone would be entitled to the exemption. But even if the wife was also entitled to an exemption on the theory that a portion of the property levied upon belonged to her, still, her rights being separate and distinct from those of her husband would call for a separate and distinct remedy for their enforcement.

      Errors assigned were (1) entering the order and decree quashing the writ and dismissing the petition ,• (2) refusal to order defendant to file his return to the writ of mandamus.

      'William. O. Loos, for appellants.
    — It is clear that the mandamus lies against the constable under such conditions as are disclosed in this case: Com. v. Johnson, 2 Binn. 275.
    The bond indemnifying him to commit the trespass of taking exempted property is void: Freeman v. Smith, 30 Pa. 264.
    It will not do to say that because husband and wife join in the petition for relief that this is a joint action: Com. v. Johnson, 2 Binn. 275.
    Mandamus is the proper remedy: Century Co. v. Phila., 176 Pa. 588; Com. v. Bunn, 71 Pa. 405; Taylor v. Com., 103 Pa. 97; Gemas’ License, 169 Pa. 43.
    March 17, 1897:
    The words “ in possession of the debtor ” apply to tenants claiming against distresses for rent: Huey's Appeal, 29 Pa. 219; Eberhardt’s Appeal, 39 Pa. 509.

      W. JS. Dosier, for appellee.
    — The remedy of a tenant claiming exemption against a landlord’s warrant, and being denied, is by the action of trespass: Wilson v. Ellis, 28 Pa. 238; Vandressor v. King, 34 Pa. 201.
    If goods have been improperly distrained, the remedy provided by the act of 1772, is by replevin: Machine Co. v. Spencer, 147 Pa. 466; Brown v. Stackhouse, 155 Pa. 582.
    Goods of a stranger found on the demised premises are liable to distress for rent: Kessler v. McConachy, 1 R. 435; Price v. McAllister, 3 Gr. 248; Karns v. McKinney, 74 Pa. 389; Kleber v. Ward, 88 Pa. 93.
    Only those who are capable of joining in an action can join in an application for mandamus ; and if it be made jointly by persons whose rights are several, the writ must be quashed: Tapping on Mandamus, p. 324; Lengel v. Stump, 1 Woodward’s Rep. 399.
   Opinion by

Rice, P. J.,

The first question in this case is, whether mandamus will lie to compel a constable, charged with the execution of a landlord’s warrant, to have an appraisement made of goods elected to be retained by the tenant under the three hundred dollar exemption law. It should be noticed that the appraisement sought to be enforced is that provided for by the second section of the Act of April 9,1849, P. L. 533, and not the appraisement contemplated by the landlord and tenant Act of March 21,1772, 1 Sm. L. 370.

No precedent, in Pennsylvania, has been cited, and we have been able to find none, where the remedy by mandamus has been applied in such a case. This is not a conclusive argument against it, but it is not without weight. The manifest inconvenience which would result if it were to be held an appropriate proceeding against a mere bailiff for the determination of the manifold disputes arising out of claims for exemption on distress for rent is a still stronger argument why it should not be recognized, except, possibly, in cases where the ordinary remedies would be wholly inadequate. No facts are alleged in the petition which make this case exceptional.

But aside from this, the general rule is, that two or more persons having separate interests seeking redress by mandamus cannot join in one and the same writ, but should have separate 'writs according to their several interests: 14 Am. & Eng. Ency. of Law, 219. Where the distinct rights of two or more persons are improperly joined, the writ is hable to be either superseded or quashed: Tapping on Mandamus, 324. In this case the landlord’s warrant issued against Henry F. Menges. Camilla claimed part of the goods distrained, and joined in the petition praying for a mandamus directing the defendant to proceed to make the appraisement “ so that your petitioners may retain what is exempted to each of them ” etc. Even if she had a standing to demand an appraisement and setting apart to her of the goods claimed by her, she asserts a separate and distinct-right. It may be that she has no such right, but it is enough for us to know that she asserts it, and according to the rule above stated should have prosecuted it in a separate suit. As the objection was made promptly the court committed no error in sustaining it.

We remark, although we do not at all rest the judgment on that ground, that except where the writ is sought to enforce a public duty or a duty affecting a particular public interest of the state the proceeding, like an ordinary action, is prosecuted in the name of the party instituting it as plaintiff, and not in the name of the commonwealth as formerly. Act of June 8, 1893, P. L. 345, sec. 4. This provision was overlooked in the present case.

The decree is affirmed, and the appellants are directed to pay the costs.


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    The Olyphant Lumber Company to use of Patrick Mc-Gouldrick, Appellant, v. Peoples’ Mutual Live Stock Insurance Company, of Philadelphia.

      Insurance — Transfer of an insured thing does not carry the insurance.

    A sale of property insured does not carry with it the policy of insurance. The policy is not an insurance of the specific thing without regard to the ownership, but is a special agreement of indemnity with the person insuring against such loss or damage.
    In the absence of an assignment the grantee cannot recover on the policy, because the insurer has no contract with him, and the grantor cannot recover because he has sustained no loss.

      Insurance — Eight of insurer to reserve right to approve assignment.

    The insurer has a right to choose the persons with whom he will contract, and a stipulation that the policy shall not be transferred to the grantee of the property insured without the consent of the insurer is but the exercise of that right and is of undoubted validity.

      Insurance — Conditional sale — Subject to approval of assigned policy.

    If the owner of an insured chattel desires to retain and protect his interest in the policy after a transfer of the possession of the chattel and payment of the purchase money under a conditional sale, it is his duty to notify the insurers immediately of the transfer in accordance with the terms of the policy and the by-laws of the company; otherwise in case of loss neither the vendor nor the vendee can maintain an action on the policy. Notice of the assignment of the policy is not notice of the sale of the chattel.

      Insurance of live stock — Notice and appjroval of assignment — Nonsuit.
    An owner of a horse, insured in the defendant company, sold him with the provision that the sale should be conditional upon an approval of an assignment of the policy; no notice was given to the company or approval of the assignment made by it at the time of the sale. Several days later the horse was taken sick, and on the day it died the vendee sent in the assigned policy for approval, which was refused by the company pending a reexamination of the horse. No notice was given of the sale of the horse, or that it was sick. Held, that a suit by the vendor to use of the vendee was properly nonsuited.
    Argued Jan. 12, 1897.
    Appeal No. 5, Jan. T., 1897, by plaintiff, from refusal of C. P. Lackawanna Co., Nov. T., 1893, No. 691, to take off compulsory nonsuit.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Assumpsit on policy of insurance. Before Edwabds, J.
    The Olyphant Lumber Company sold a horse insured in defendant company to the use plaintiff, Patrick McGouldrick, a part of the agreement being that the title to the horse should not pass and the money should be refunded if they could not secure the approval of the insurance company to the transfer of the policy. Several days elapsed before the application for approval of the assignment was made to the company and before the matter could be adjusted the horse died.
    The court directed a judgment of nonsuit, which it subsequently refused to take off.

      Errors assigned were (1, 2) refusal to take off compulsory nonsuit; (3) refusing to admit the evidence under the following offer made by plaintiff, which was objected to on the part of defendant: “ The counsel for the plaintiff offer to prove by this witness on the stand that he was present when the arrangements were made between Mr. McGouldrick and Mr. Henwood as the representative of the Olyphant Lumber Company, Limited, that the sale was a conditional sale, the agreement being that the horse was to be sold to Mr. McGouldrick if they could secure the approval of the company to the transfer, if not, it was not to be a sale ; that the horse was to be returned to Mr. Henwood and the money returned to Mr. McGouldrick; ” (4) in refusing to admit the evidence under the following offer of the plaintiff, which was objected to by defendant: “ This offer is for the purpose of showing that as this action stands in the name of the Olyphant Lumber Company, Limited, to the use of Patrick McGouldrick, that Patrick McGouldrick would be entitled to recover either by virtue of the assignment, or if the assignment is not approved, by virtue of the title remaining in the Olyphant Lumber Company of the horse. To be followed by other proofs that this was a conditional sale, and was not to take effect unless the transfer was approved by the company. We offer to recall Mr. Henwood for the same purpose; ” (5) in refusing to allow Patrick McGouldrick, called by the plaintiff, direct examination, to answer the following question: Q. “ What were the conditions of the sale, if any, between you and Mr. Henwood at the time you took the horse?”

      W. S. Kulslander and A. A. Vosburg, for appellant.
    — The policy remains in force until the consent is refused by the insurer: Strunk v. Ins. Co., 160 Pa. 345.
    The case at bar is not like the case of Insurance Co. v. Hebard, 95 Pa. 45. In that case the policy required the assent and approval of the company before the assignment or transfer was made.
    An assignee need show no right in himself; it is enough if he show a right in the legal plaintiff, for it is this right alone that can be enforced: Montgomery v. Cook, 6 Watts, 238; Hamilton v. Brown, 18 Pa. 87; Armstrong v. Lancaster, 5 Watts, 68; Peterson v. Lothrop, 34 Pa. 223.
    Where by the contract anything is to be done on which the passing of the title depends, the property will not pass until the condition be fulfilled, even though the goods may have been delivered into the possession of the vendee: Enlow v. Klein, 79 Pa. 488; Levan v. Wilten, 135 Pa. 61; Forrest v. Nelson, 108 Pa. 481.
    The agreement is what the parties intended to make it; Winslow v. Leonard, 24 Pa. 14; Gonser v. Smith, 115 Pa. 452.
    Parol evidence is admissible to explain an assignment in writing which purports to have been made for value received by showing what was the consideration upon which it was executed: Galway’s Appeal, 34 Pa. 242; Buckley’s Appeal, 48 Pa. 491; Cake v. Pottsville Bank, 116 Pa. 264.
    As between the parties the contract entered into in this case was valid: Becker v. Smith, 59 Pa. 469; Crist v. Kleber, 79 Pa. 290.

      K. O. Reynolds, for appellee.
    — A waiver to be effective must be intentional: Ins. Co. v. Hebard, 95 Pa. 45.
    The principles controlling this case have been so frequently announced by this court, that an extended citation or review of the authorities is entirely unnecessary. The following amongst others are conclusive: Finley v. Lycoming Mut. Ins. Co., 30 Pa. 311; Buckley v. Garrett, 47 Pa. 204; Ferree v. Ins. Co., 67 Pa. 373; Carpenter v. Ins. Co., 16 Pet. 495; Desilver v. Ins. Co., 38 Pa. 130.
    “ Policies of insurance,” says the condition, “ subscribed by tins company, shall not be assignable without the consent of the company expressed thereon. In case of assignment without such consent, whether of the whole policy or of any interest in it, the liability of the company in virtue of said policy shall thenceforth cease.” This condition is a perfectly legal one: Smith v. Saratoga Co. Ins. Co., 1 Hill, 497; Same v. Same, 3 Hill, 508; 1 Phillips on Ins., 477; Angell on F. and L. Ins., 249, 251; Ferree v. Oxford Fire Ins. Co., 67 Pa. 373.
    March 17, 1897:
    The company has the right to choose the parties with whom it will contract. The “ moral risk ”is one of great consequence and one always most carefully considered: Ferree v. Ins. Co., 67 Pa. 373.
   Opinion by

Rice, P. J.,

One of the conditions of the policy in suit reads as follows : “ That the holder of this policy shall not transfer it to another without the consent of this company in writing and must immediately notify the company of the sale of any animal insured, and surrender the policy for cancellation. The company will not be liable for losses under policies otherwise transferred.” Section 7 of the by-laws of the association provides: “Each member shall abide by and conform to all the conditions and agreements named in his or her policy. A failure to do so shall cause a forfeiture of such policy.” It appears that on June 13,1893, the Olyphant Lumber Co. sold the horse insured to Patrick McGouldrick and at the same time delivered to him the policy of insurance with an assignment indorsed thereon. McGouldrick paid the purchase price and at once took the horse into his possession. On the following Saturday night the horse was taken sick, and died on the following day about noon. On the morning of this Sunday, McGouldrick mailed to the company the policy together with a check for one dollar for cost of transfer, and requested that the policy be transferred to him. He did not mention the fact that the horse was then sick, nor even that the horse had been bought by him. On the following day the general manager of the company wrote in reply that in order to have the assignment approved it would be necessary for the plaintiff to fill out the inclosed application for transfer, and have the horse examined by Dr. Helmer, and to forward with the application a letter from him as to the present condition and value of the horse. The letter proceeds : “When this is done, if the application is satisfactory to the company we will approve the assignment and forward you the policy, provided the same is attended to within the next ten days.” The check was returned with this letter.

A sale of property insured does not carry with it the policy of insurance. The policy is not an insurance of the specific thing without regard to the ownership, but is a special agreement of indemnity with the-person insuring against such loss or damage as he may sustain. When he parts with the title to, and possession of, the property and has no further interest in it, he can sustain no loss or damage by its destruction, but the loss, if any, is that of his grantee. In the absence of an assignment the grantee cannot recover on the policy, because the insurer has no contract with him, and the grantor cannot recover because he has sustained no loss. It has been said that a transfer of the property, accompanied by an assignment of the policy is not a prolongation of the life of the contract, but a new contract with another person about the same subject-matter. But whether it be regarded as the one or the other, the insurer has a right to choose the persons with whom he will contract and a stipulation that the policy shall not be transferred to the grantee of the property insured without the consent of the insurer is but an exercise of that right, and is of undoubted validity. All this is true of fire insurance and is equally true of live stock insurance where the moral risk enters quite as largly into the consideration. It has been held in the case of a perpetual policjr — but under provisions very different from those under consideration — tljat the insurer may not refuse to consent to an assignment arbitrarily (Davidson v. Assurance Co., 176 Pa. 525), and it is argued in the present case that the company was bound to approve the assignment unless good reasons could be shown for refusing. So long as the insurer reserves the unqualified right to refuse to contract with a grantee of the property and to cancel the policy upon a sale thereof, it is difficult to see how a refusal to make a new contract with a particular person, or to prolong the life of the old, after the ownership of the property has changed can be set at nought as arbitrary. But there is no question of an arbitrary refusal in the present case, even if that question could arise in any case where the parties have expressly agreed that the consent of the insurer shall be essential to the validity of an assignment. To say nothing of the want of good faith in omitting to inform the company of the illness of the horse at the time it was made, the application for the transfer did not conform to the by-laws, and the company was perfectly justified in withholding its consent until an application conforming to its reasonable requirements should be presented. No such application was presented. The company never gave, or agreed to give, its consent, and did nothing to estop itself from denying the validity of the assignment on that ground. It follows that the assignee acquired no rights whatever against the defendant by virtue of the assignment. This conclusion is reached by an application of elementary principles; but if citation of authorities is necessary we need only refer to the case of Girard F. & M. Ins. Co. v. Hebard, 95 Pa. 45.

To meet this objection to recovery under the assignment, the plaintiff offered to show, that, as part of the contract of sale pursuant to which possession of the horse was delivered and the purchase money paid, it was agreed that if the company did not approve the transfer it was not to be a sale, and in that event the horse was to be returned, and the money repaid. It is argued that upon such a sale the title remained in the Lumber Co., and that a recovery could be had in its right, upon the principle that where an action is brought in the name of the legal party to the use of another, the latter need show no right in himself; it is enough if he show a right in the legal plaintiff.

It might he argued, plausibly, from the facts alleged in the plaintiff’s offers, that the vendors of the horse retained an insurable interest until the sale became absolute, either by reason of consent being given to the transfer of the policy or by reason of a waiver of the condition of sale by the vendee. But the question is, not whether the original holders of the policy retained an insurable interest in the horse, but whether they complied with their agreement with the company to give immediate notice of the sale, so that the latter might exercise its option to cancel the policy or to give consent to its transfer. For, it cannot reasonably be contended that where the policy holder has delivered the possession of the property insured to another person and has received the whole price, he is not bound to give such notice, if the sale be upon condition that the vendee may rescind it upon failure to obtain the insurer’s consent to the transfer of the policy. There-is, obviously, the same reason for giving notice in such a case as in the case of an unconditional sale. If, then, the original holders of the policy desired to retain and protect their interest in it after they had transferred the possession of the horse under a contract of sale, it was their duty to give immediate notice of the sale, to the insurer. This they did not do. Notice of the assignment of the policy was not notice of the sale of the horse, and it is not contended that any other notice of the sale was given. To say nothing of the vendee’s delay in forwarding notice of the assignment, until the horse was dying, if not dead, or of the want of good faith in withholding information of its condition at that time, the evidence shows that there was neither literal nor substantial compliance with the conditions of the policy.

As the case stood upon the admitted evidence, the judgment of nonsuit was properly entered, for the reasons given by the learned trial judge. And, if the offered evidence had been admitted, the plaintiff’s case must have failed because there was a failure, upon the part of the Lumber Co., to comply with the conditions of the policy, quoted at the outset of this opinion-judgment affirmed.