text:
    Doyle v. Central Railroad Company of New Jersey, Appellant.

      Railroads—Passengers—Parcel check—Limitation of liability—Loss of baggage—Negligence—Contract.

    1. Where a person having a railroad ticket takes a dress suit case, and a hatbox to the parcel room of the railroad station, and after paying ten cents for each parcel receives therefor two parcel checks on which there is printed in small letters a limitation of liability of thfe company to the amount of $10.00 for each parcel, and no notice is given to him by the attendant of the limitation of liability, and no opportunity is given to him to read the writing on the check before he pays his money, and no questions are asked of him as to the value or character of the articles contained in the packages, the passenger will not be bound by the limitation, and if the parcels are lost by the negligence of the company, he may recover their full value.
    2. Where a passenger receives from the carrier a paper which, from the circumstances of the transaction, he has a right to regard merely as a voucher or receipt to enable him to follow and identify his baggage, and no notice is given to him that it embodies the terms of a special contract, or is intended to subserve any other purpose than that of a voucher, his omission to read it is not per se negligence, and he is not, as a matter of law, bound by its terms. And the question whether in a given case, the passenger accepted it with notice of its contents, or with notice that it contained a special contract, so as to acquaint himself with its contents, is one of evidence for the jury. An attempt by words on such a check to limit the carrier’s liability for loss of baggage will be -wholly unavailing unless the carrier shows that the passenger, with knowledge of such limitations, agreed that it might be made, and that such was the understanding of the parties.
    Argued Oct. 11, 1910.
    Appeal, No. 41, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., on verdict for plaintiff in case of Michael Francis Doyle v. Central Railroad Company of New Jersey.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover the value of a dress suit case, a hatbox and their contents. Before Barratt, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    I instruct you, therefore, that if you find in favor of the plaintiff upon the question of negligence as it has been submitted to you, then you would be at liberty to render a verdict in his favor for the full amount of his claim, or for such an amount as you believe would properly represent the value of the goods which it is conceded were deposited by him with the defendant company, and never returned to him.

      Verdict and judgment for plaintiff for $254.25. Defendant appealed.

      Error assigned was portion of charge quoted above.

      Arthur G. Dickson, of Dickson, Beitler & McCouch, for appellant.
    The plaintiff was bound by the limitation provided in the check: Jacobs v. Central R. R. Co., 208 Pa. 535; Fonseca v. Steamship Co., 153 Mass. 553 (27 N. E. Repr. 665); Cau v. Ry. Co., 194 U. S. 427 (24 Sup. Ct. Repr. 427); McMillan v. R. R. Co., 16 Mich. 79; Van Toll v. Southeastern Ry. Co., 12 Common Bench Rep. (N. S.) 75 (1862); Parker v. Ry. Co., 46 Law Journal Queen’s Bench (N. S.), 768; Terry v. Ry. Co., 62 S. E. Repr. 249.

      W. B. Linn, for appellee,
    cited: Lancaster County Nat. Bank v. Smith, 62 Pa. 47; Hoyt v. Clinton Hotel Co., 35 Pa. Superior Ct. 297; Wright v. Adams Express Co., 43 Pa. Superior Ct. 40; Rowdin v. R. R. Co., 208 Pa. 623.
    March 3, 1911:
   Opinion by

Orlady, J.,

This action is brought to recover the value of a dress suit.case, a hatbox and the contents of each, which were deposited in the package or parcel room of the defendant company in its station in New York city, under the following circumstances:

The plaintiff intending to take passage on a train of the defendant company, went'to its'station, and on making search for his railroad ticket was unable to find it. He opened up his dress suit case to examine his clothing, and noticed' that a waistcoat he had worn the previous day was missing. Not wishing to carry his baggage, back to his hotel where he assumed that he had left his ticket, he went to the parcel or check room in the general waiting room at 12:50 p. m. and handed to the attendant in charge the mentioned articles for deposit until he would return, and, after paying to the person in charge the sum of ten cents for each parcel received from him two separate checks which he put in his pocket without reading.

He hastened to the hotel at which he had passed the night, and found his missing clothing and ticket and returned to the parcel room at 2 p. m. to secure his baggage and take a train that was then about due. When the parcel checks were presented to the person in charge of that room, the plaintiff was informed that “about fifteen minutes after the packages were left there a man came rushing into the station in a hurry, said he had lost the checks, and we gave the packages to him at about 1:20 p. tm. and the property has never been recovered.” Complaint was at once made and the plaintiff was taken to the general baggage superintendent of the company to have a record made of the loss, and the parcel checks were there surrendered by him to that officer. The total value of the articles lost was $254.25.

There is no controversy over the facts of the case. The plaintiff had- his railroad ticket, and availed himself of the convenience of the defendant’s parcel room; he paid the charge exacted by the defendant; the property described was personal baggage within all definitions; there was no contributory negligence on his part, and the loss was occasioned by the inexcusable negligence of the package room attendant in surrendering to a stranger the plaintiff’s property, which had been in his possession for but half an hour, and without any proper identification.

The defendant concedes all this, but urges that on account of a printed statement on the reverse side of the check which was accepted by the plaintiff, a contract became effective between the. parties, which by its terms limited its liability to $10.00 for each parcel. The original checks given to the plaintiff had been destroyed, but sufficient proof was made of the checks in use at the time, to warrant the admission in evidence of a duplicate in form and terms. It appears that the entire check is in three parts, with.perforations between the sections. The upper part is separated from the middle one when the parcel is offered, and is attached to it by a string; the middle part is retained by the clerk, and on it there are printed instructions in regard to the care of the parcel and its delivery; the third or lower portion has printed on its face identification numbers and letters and “Package Room. 10 cts. each 24 hours or fraction thereof. Value of articles limited to $10.00. Present this duplicate check to claim article. Storage limited to 90 days, after which time articles may be sold for accrued storage charges.” And at the bottom, printed in red ink, are the words, “N. B. See other side, value of articles represented by this check limited to $10.00, unless greater value is declared when deposited.” On the reverse side of this part of the card, which is the part given to the person depositing the parcel, the following is printed in black ink.

“The party accepting this duplicate tag check hereby agrees that in consideration of the low rate at which it is issued, that no claim in excess of $10.00 shall be made against the Railroad Co. for the loss, or injury to, of any package, valise, or other article for which this check has been issued”—followed in red ink words—“unless a greater value is declared at the time of deposit and proportionate charge paid for the custody thereof.” Each of these three parts are numbered and lettered for identification.

No inquiry was made by the attendant in charge of the package room in regard to the value or character of the articles contained in either package, and no notice was given of any special condition or limitation of liability on the back of the check given to the plaintiff. The contention is, that the acceptance of such a check constituted a binding contract between the parties “even though the plaintiff put the checks in his pocket without reading them.”

In determining the character of the transaction, the printed matter on the reverse side of the middle section of the card (which so far as the owner of the parcel is concerned, was secret, and intended for the information of the company’s agent alone), is important. The owner of the parcel does not see this card, and it is preserved by the company. The words are as follows: “Instructions. These tag checks must be issued in consecutive order of numbers—they must be filled out in ink only, and full information required must be given. The duplicate of this check will be detached and given to person leaving articles on storage, after string tag check has been securely attached to the article and storage charge for first day collected. Upon presentation of duplicate tag check collect additional charge if any and deliver article. The string and portion of tag shown must be left on article when delivered. If duplicate is lost require person to give full description of articles, and if description agrees, take receipt on two copies Eorm 9007. Upon delivery of articles send this tag with duplicate to Auditor Passenger Traffic with report.” The order of the transaction being, first, securely to attach the string tag check to the article; collect the storage charge for the first day; and then detach the duplicate tag check and give it to the person leaving the article on storage, so that the first opportunity the owner would have to see the terms of this alleged contract would be after he had paid his money and delivered his property to the agent of the company.

The serial numbers of the tags given to the plaintiff were alleged by the company to be 131,924 and 131,925 which give some indication of the magnitude of business of this character which it transacts. To require that the fine print on such tags should be read by the person depositing the parcel, while it is being tagged at the window, conceding the necessary time for old and young, educated and uneducated to do so, would frustrate the very purpose of such a system. To simply hand to him such an important limitation of its liability, after the company had received the passenger’s money, and hold him to its terms despite their admitted negligence and without notice of any kind, would be unreasonable, and such a procedure is not authorized by any decision brought to our notice. The usual baggage check, delivered to a passenger upon receiving his baggage is a receipt, merely intended to afford evidence of ownership and for identifying the baggage; it is in no sense a contract of carriage between the carrier and passenger: Hickox v. R. R. Co., 31 Conn. 281 (83 Am. Dec. 143); Isaacson v. N. Y. Cent. & Hudson R. R. Co., 94 N. Y. 278; s. c., 46 Am. Ref. 142. It is intended to serve a special purpose and cannot have grafted upon it, without notice, an exemption of all or partial liability for its loss or injury.

And the cases relied on by the appellant do not hold otherwise. In Crary v. R. R. Co., 203 Pa. 525, the plaintiff was riding on a reduced rate excursion ticket; while in this case the tag given does state “in consideration of the low rate at which it is issued,” this does not necessarily mean that it is a reduced, or a special rate, nor does the price “ten cents each 24 hours or fraction thereof— • limited to 90 days” on its face suggest that it is a low rate; ten cents per day; $9.00 for the ninety days would practically be the full value of the $10.00 parcel, on the company’s own showing. In Crary v. R. R. Co., 203 Pa. 525, the court says: “The burden was on the plaintiff -to submit some proof of negligence, and in the absence of any, the jury ought not to have been allowed to guess that the carrier had been negligent,” and further, that the plaintiff’s injuries might have been caused by matters “of which the company had neither actual nor constructive notice, nor ought reasonably to have been aware of, and it could not, therefore, have been presumed to have been guilty of negligence against this specially contracting passenger.” In the case before us it is conceded that the company was negligent and that such negligence was the sole cause of the plaintiff’s loss.

In Jacobs v. Central R. R. Co., 208 Pa. 535, we have another excursion ticket, sold at a reduced rate and for a limited time. The contract or ticket “was not a small piece of pasteboard, such as is ordinarily used for tickets between stations, on the same line, but a paper of some size, setting forth on its face—not in small type, unlikely to attract attention, but, clearly, prominently and legibly—the terms on which it had been issued .... so far as the terms of the contract appeared on the face of her ticket, and were reasonable, she was bound by them.”

Independent of our common knowledge of such matters, the dictionary definition of tag, coupon or package check, as this card has been called, implies that it was of a small and convenient size for the owner’s use so as easily to be carried for the identification of his property. In this case the slip or tag was such a paper or pasteboard and from the amount of printing on it, the type must have been small and not clearly legible to ordinary sight. The plaintiff did not read it, the transaction was hurriedly concluded, without notice of its terms, and the consideration mentioned does not appear to us as reduced or low in the light of the services rendered in regard to his property.

In Fonseca v. Cunard Steamship Co., 153 Mass. 553, the ticket covered with print and writing the greater part of two large quarto pages. “. . . . it contained elaborate provisions in regard to the rights of the passengers on the voyage, no one who could read could glance at it without seeing that it undertook expressly to describe the particulars which should govern the conduct , of the parties until the passenger reached the port of destination. In that particular it was entirely unlike the pasteboard tickets which are commonly sold to passengers on railroads.”

The true rule seems to be that where the passenger receives from the carrier a paper which, from the circumstances of the transaction, he has a right to regard merely as a voucher or receipt to enable him to follow and identify his baggage, and no notice is given to him that it embodies the terms of a special contract, or is intended to subserve any other purpose than that of a voucher, his omission to read it is not per se negligence, and he is not, as a matter of law bound by its terms. And the question whether in a given case, the passenger accepted it with notice of its contents, or with notice that it contained a special contract, so as tó acquaint himself with its contents, is one of evidence for the jury: 3 Am. & Eng. Ency. of L. 559 (2d ed.), and cases cited. An attempt by words on such a check to limit the carrier’s liability for loss of baggage will be wholly unavailing unless the carrier shows that the passenger, with knowledge of such limitations agreed that it might be made, and that such was the understanding of the parties: Cole v. Goodwin, 19 Wend. 251, 32 Am. Dec. 470; Isaacson v. N. Y. C. & H. R. R. Co., 94 N. Y. 278, 46 Am. Rep. 142; B. & O. R. R. Co. v. Rathbone, 1 W. Va. 87, 88 Am. Dec. 664; B. & O. R. R. Co. v. Campbell, 36 Ohio, 647, 38 Am. Rep. 617; Lawson on Car. 455, 460; Thomp. on Car. 432, 437.

Even in cases where there has been an acceptance of the condition annexed to the contract for carriage as stated by Mr. Justice Brown in Crary v. R. R. Co., 203 Pa. 525: “The agreement of the parties is, that there shall be no liability at all by the common carrier for injury to the passenger; but, on grounds of public policy the law says to the passenger that he cannot contract to relieve the carrier from negligence, and the carrier cannot, for any consideration, be absolved from its duty to exercise proper care in carrying its passengers. If, however, injury results from the negligence of the common carrier to one with whom such an agreement is made, the injured party, having taken himself out of the protection of the common law, which makes the railroad company that carries him an insurer of his safety, and which in case of accident resulting in injury, is presumed to have been negligent, must show affirmatively, as in all cases of negligence, the specific negligence complained of. See also National Line Steamship Co. v. Smart, 107 Pa. 492. Such proof was not required in this case as the negligence of the carrier was admitted.

In our own case of Hoyt v. Clinton Hotel Co., 35 Pa. Superior Ct. 297, we held: “The right of a bailor to limit his liability by special contract is weli established, but this does not go to the extent of relieving against his own fraud or negligence.” Such was the express statement of the law in Lancaster County National Bank v. Smith, 62 Pa. 47. We have more than once held that a bailor cannot stipulate against liability for his own negligence: Wright v. Adams Express Co., 43 Pa. Superior Ct. 40; Bullard v. D., L. & W. R. R. Co., 21 Pa. Superior Ct. 583; Lloyd v. Haugh, 223 Pa. 148.

The assignments of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Steiner v. Turner, Appellant.

      Contract—Sale—Delivery—Possession—Specific kind of goods.

    1. Where a vendor appropriates to the vendee a specific chattel and the latter agrees to take it and to pay the price named, the parties occupy the same situation as they would after a delivery of goods in pursuance of the contract. The appropriation of the property is equivalent to delivery by the vendor and the assent of the vendee to take it and pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the purchaser.
    2. Where a seller manufactures a particular band to be used on a special brand of cigars, and sets the bands apart for the purchaser, the bands not being valuable for any other purpose, the title vests in the purchaser; and if thereafter, the purchaser gives orders as to the transportation of the goods, and the seller makes a mistake in carrying out the order, the purchaser cannot set up the mistake to defeat the plaintiff's action for the price of the bands, where the loss caused by the mistake is not set up by way of diminution of price or claim of set-off.

      Affidavit of defense—Supplemental affidavit—Practice, C. P.

    3. An order of the common pleas refusing to open a judgment entered for want of a sufficient affidavit of defense, and permit the defendant to file a supplemental affidavit, is within the sound discretion of the court, and will not be reversed by the appellate court in the absence of proof that such discretion was abused.
    Argued Oct. 11, 1910.
    Appeal, No. 46, Oct. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., June Term, 1909, No. 645, making absolute rule for judgment and discharging rule to open a judgment, etc., in case of Henry Steiner et al., trading as William Steiner Sons & Company, v. C. S. Turner, trading as C. S. Turner & Company.
    Before Rice, P. J.', Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    Rule to strike off judgment and to permit defendant to file a supplemental affidavit of defense.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in making absolute rule for judgment and in discharging rule to open judgment, etc.

      Frederick A. Sobernheimer, with him Ellwood J. Turner, for appellant.
    A contract to sell and deliver goods at a certain place gives no cause of action unless there be a delivery at the place agreed on: Millard v. Morse, 32 Pa. 506; Norris v. Clark, 29 Pa. Superior Ct. 562; Miller v. Seaman, 176 Pa. 291; Dougherty v. Haggerty, 96 Pa. 515; Rowland v. Coal & Nav. Co., 28 Pa. 215.

      J. S. Levin, with him Arthur S. Arnold, for appellees.—
    The plaintiffs claim that title to the bands passed to the defendant in July: Ballentine v. Robinson, 46 Pa. 177; Pittsburg Glass Co. v. Doubleday, 2 Pa. Superior Ct. 170; Trenton Rubber Co. v. Small, 3 Pa. Superior Ct. 8; Com. v. Hess, 148 Pa. 98; Henderson v. Jennings, 228 Pa. 188.
    March 3, 1911:
   Opinion by

Henderson, J.,

The appellant presents two questions for our consideration. The first relates to the sufficiency of the affidavit of defense and the second, to the refusal of the court to open the judgment entered for want of a sufficient affidavit of defense and permit the defendant to file a supplemental affidavit. The action grows out of an order given by the defendant to the plaintiffs to manufacture 500,000 cigar bands of a special kind used by the defendant in the manufacture of cigars. The real question in the case is, Where was the place of delivery of the property under the contract? That the bands were manufactured in New York and set apart for the defendant’s use is not disputed. A part of the order was also received and used by the defendant. The affidavit of defense was prepared on the assumption that the place of delivery was Boyertown in Pennsylvania, but it does not appear from the statement of claim nor from the affidavit that this was a part of the agreement under which the bands were made, and exhibits “A” and “B” of the plaintiff’s statement together with the affidavit show that the arrangement in regard to the shipment to Boyertown was made long after the contract and after the order had been filled. The defendant’s letter, exhibit “H,” attached to the affidavit of defense, shows that he claimed that the goods were to be delivered at "our Boyertown factory” but this is not stated to have been the agreement under which the bands were manufactured. The order was for a special article to be manufactured for use on a particular brand of cigars. The bands were not valuable for any other purpose. When they were made and were ready for shipment to the defendant they became his property as between him and the plaintiffs there being no question in the case as to the rights of other parties. It was declared in Dixon v. Yates, 5 B. & Ad. 313, that where a vendor appropriates to the vendee a specific chattel and the latter agrees to take it and to pay the price named the parties occupy the same situation as they would after a delivery of goods in pursuance of the contract. The appropriation of the property is equivalent to delivery by the vendor and the assent of the vendee to take it and pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the purchaser. This decision has been accepted as authority by text-book writers and by the courts of this state: Burdick on Sales (2d ed.), 146; 1 Benj. on Sales, sec. 315; 2 Pars, on Contracts, (5th ed.)483; Com. v. Hess, 148 Pa. 98; Henderson v. Jennings, 228 Pa. 188; Pittsburg Glass Co. v. Doubleday, 2 Pa. Superior Ct. 170. Where the seller manufactures the goods and sets them apart subject to the order of the buyer he has complied with all he was under obligation to do in the absence of a special undertaking as part of the contract to do something more. Right' to the property passes to the buyer and the seller’s right to the price is complete. Under such circumstances the act of the seller in putting the goods in course of transportaion is as a bailee and not as owner: Lynch v. O’Donnell, 127 Mass. 311; Terry v. Wheeler, 25 N. Y. 520; Com. v. Hess, 148 Pa. 98. The title is not changed by such act. The right of property was in the consignee before. The undertaking of the plaintiff to ship in accordance with the defendant’s instructions was not a part of the contract of sale and the defendant cannot set up the mistake made in shipping directly to him at Philadelphia instead of to Boyertown to defeat the plaintiff’s action for the goods were manufactured according to the contract and belonged to the defendant at the time they were shipped. What his redress may be for the mistake we are not called upon to consider for that is not set up by way of diminution of price or claim of set-off. That he had notice of the consignment of the goods to him in Philadelphia appears from the correspondence set forth with the statement and affidavit and the plaintiff’s offer to bear the expense of a change of the destination to Boyertown relieves the case of any hardship to the defendant as it is not alleged that time was of the essence of the contract.

The second branch of the case is not supported by convincing reasons for reversing the action of the court below. The defendant had an opportunity to file his affidavit of defense and additional affidavits if necessary before the hearing on the rule. After the argument and after judgment the question of a reopening of the case was a matter for the discretion of the court. There is nothing presented which convinces us that the discretion was unwisely exercised.

The judgment is affirmed.


author: Ferguson, J., Hendeeson, J.,

text:
    McCracken’s Case.

      Lunacy — Lunacy proceedings — Costs — Probable cause — Acts of June IS, 1836, P. L. 689, and April 16,1849, P. L. 668.

    1. The Act of April 16,1849, P. L. 663, imposed on the court of common pleas the duty of deciding and directing who shall pay all costs attendant upon the issuing and execution of any commission in lunacy or to apportion the costs and the payment of them among the parties interested in such proportions as the justice of the case may require and to order and decree payment accordingly. In exercising this power it is not important that the records show that there was probable cause for the proceeding.
    2. Section 9 of the Act of June 13, 1836, P. L. 589, 595, relating to the imposition of costs upon the person who institutes a lunacy proceeding applies only where there has not only been a finding that the subject of inquiry was not a lunatic but where the judge or commissioner holding the inquisition certifies that the proceeding was instituted without probable cause. • In the absence of such certificate the presumption is that the proceeding was begun in good faith and in the interest of the alleged lunatic.
    3. If an inquisition has been found before the death of a person alleged to be a lunatic the jurisdiction of the court of common pleas attaches, and it may make such orders as are necessary or expedient in the disposition of the case as in the matter of fixing the compensation of the commissioner and decreeing the payment of costs, and the costs may be imposed on the estate before the final determination of the proceeding.
    4. Counsel fees are properly allowable to a person who in good faith institutes proceedings in lunacy.
    5. An appeal from an order fixing the compensation for a commissioner in lunacy and decreeing the payment of costs in lunacy proceedings will not be reversed where the testimony is not printed and the appellate court is without means of determining the reasonableness of the charges.
    6. The sixth section of the Act of April 20, 1869, P. L. 78, which provides a method of committing a lunatic on the certificate of a commission of throe persons and which in its supplement of May 8, 1889, P. L. 127, fixes the fee of the commissioners to be appointed under the act at 15.00 per day each, does not apply to inquisitions in lunacy.
    Argued Oct. 11, 1910.
    Appeal, No. 53, Oct. T., 1910, by Mary A. McCracken et al., from order of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,605, in the matter of David McCracken, an alleged lunatic.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Inquisition in lunacy.
   Ferguson, J.,

filed the following opinion:

In this case the inquisition was filed March 4, 1909, in which there was a finding that from March, 1908, until November, 1908, David McCracken was a lunatic; that during that time he had lucid intervals, and that at the time of the filing of the inquisition he had fully recovered his mental health and was not a lunatic. On March 26, 1909, a petition was filed by Emma Putman, one of the petitioners for the commission de lunático inquirendo, in which she prayed that a rule be granted on the said David McCracken to show cause why he should not pay the costs of the proceeding. A schedule of the costs was attached to the petition, showing a total bill of $759.75. A rule was granted. The rule was heard April 8, 1909, at which time the said David McCracken filed his answer, in which he denied that the proceedings were instituted in good faith and that there was probable cause for the proceeding. He further alleged that the proceeding was instituted through spite and malice and for the purpose of annoying and worrying him; that the first portion of the finding of the jury was absurd and not warranted by the testimony, and that the bill of costs was unreasonable and unjust and should not be approved.

Through stress of business the court was unable to give the matter immediate attention. No decision was made upon the question until May 28, 1909, when an order was made discharging the rule without prejudice. This action was based upon the opinion then entertained by the court that no order should be made imposing the costs upon David McCracken in the absence of a certificate from the commissioner that the proceeding was instituted with probable cause. The court has been informed that in the meantime David McCracken died on April 24,1909.

We are of opinion that the proceeding against David McCracken ended with his death. The inquisition, however, had been returned in his lifetime, and, as we interpret the law, this court has power over questions of costs in proceedings which had been completed during his lifetime. The delay in the action upon the rule being the act of the court, the fact that David McCracken died in the meantime did not in any way affect our power in this regard. The certificate of the commissioner was a mere matter of detail, which could be supplied for the information of the court at any time after the inquisition was made. In point of fact, such certificate was filed on June 4, 1909, and this day the bill of costs was certified by the commissioner and filed.

It is therefore ordered that the certificate of the commissioner as to probable cause be considered as filed nunc pro tunc as of March 26, 1909; that the bill of costs filed this day be filed nunc pro tunc as of March 26,1909; that any persons in interest have leave to file exceptions to said bill of costs within ten days ©f this date; that the rule to show cause why David McCracken should not pay the costs is reinstated and the same is continued until such time as the said bill of costs shall be settled and approved by the court.

Exceptions were filed by Mary A. McCracken et al. to the bill of costs. These exceptions were sustained in part in an opinion by Ferguson, J., and the following schedule of costs was entered.

Error assigned was the action of the court on the exceptions.

Chas. S. Wood, for appellants.

The attorney’s fee is not a proper and lawful charge in the bill of costs: Clark’s Case, 22 Pa. 466; Com. v. O’Shea, 48 Pitts. L. J. 348; Englert’s Est., 49 Pitts. L. J. 16; Beale v. Com., 7 Watts, 183; Moore v. Porter, 13 S. & R. 100; Pereyra’s App., 126 Pa. 220; Bile’s App., 119 Pa. 105; St. Joseph’s Orphan Asylum’s App., 38 Pa. 535; In re Buecker, 18 W. N. C. 70; In re Burns, 6 Pa. C. C. Rep. 159; Schwartz v. Oil Co., 164 Pa. 415; Winton’s App., 87 Pa. 77; Goodman’s Est., 23 W. N. C. 235; DeCoursey v. Johnston, 134 Pa. 328; Com. v. Meyer, 170 Pa. 380.

The finding of the inquisition in this cause to the effect that the respondent was sane took away from the court of common pleas any possible control over his estate, and his death on April 24, 1909, gave to the orphans’ court exclusive jurisdiction over it: Freeman’s App., 22 W. N. C. 173; Clark’s Case, 22 Pa. 466; Hassenplug’s App., 106 Pa. 527.

James W. King, Esq., Commissioner, fee $250.00

“ “ “ “ “ costs paid Sheriff 5.00

Martin L. Finkle, juror, 15 meetings at $1 each 15.00

James Quiggs “ “ “ “ “ “ 15.00

E. Q. Anstice “ “ i( “ “ •“ 15.00

C. K. Shelmerdine " “ “ “ “ “ 15.00

F. M. Kirk “ 16 “ “ “ “ 16.00

Howard B. Lewis “ 11 “ “ “ “ 11.00

F. J. Shoyer, Esq., counsel fee 100.00

“ “ “ “ costs 1.25

John McDowell, two days at $1.50, witness for relator 3.00

Peter Breslin, one day, witness for relator 1.50

Dr. T. H. Weisenberg, one day at $1.50 1.50

$449.25

Frederick J. Shoyer, for appellees.

Under the act of 1849 the common pleas has the power of a court of equity to place the entire costs down to final judgment on either party, and this is whether the final determination is in favor of lunacy or not: Clark’s Case, 22 Pa. 46.6.

The authority of the court to grant a reasonable counsel fee is fully warranted by the case of Wier v. Myers, 34 Pa. 377; Tarr’s Est., 10 Pa. Superior Ct. 554; Heft’s Case, 22 Pa. C. C. Rep. 534; Hogg’s Case, 5 Pa. Dist. Rep. 561; Buecker’s Case, 18 W. N. C. 70; Brownlee v. Switzer, 49 Ind. 221; Burn’s Case, 6 Pa. C. C. Rep. 159; Green’s Est., 3 Brewst. 427.

The death of the alleged lunatic before the confirmation of the inquisition does not oust the jurisdiction over the question of costs: In re Lofthouse, 3 N. Y. App. Div. 139 (38 N. Y. Supp. 39); Russell’s Lunacy, 1 C. P. Rep. 34.

March 3, 1911:

Opinion by

Hendeeson, J.,

The courts of common pleas of this commonwealth exercised the power of the court of chancery in disposing of the costs of a commission of lunacy prior to the Act of April 16, 1849, P. L. 663. That act imposes on the court of common pleas the duty to decide and direct who shall pay all costs attendant upon the issuing and execution of any commission in lunacy or to apportion the costs and the payment of them among the parties interested in such proportions as the justice of the case may require and to order and decree payment accordingly. This power was exercised by the court below in imposing the costs on the relator: Com. v. Reeves, 140 Pa. 258. In so doing it was not important that the record show that there was probable cause for the proceeding. The ninth section of the Act of June 13, 1836, P. L. 589, provides that if in an inquisition of lunacy it shall be found that the party with respect to whom the application is made is not a lunatic and it shall appear to the judge or commissioner holding such inquisition that there was not probable cause for such application he shall certify the same on such inquisition; and thereupon the party by whom such application was made shall be liable for the costs of the proceeding, in like manner as prosecutors in criminal cases when directed by the jury to pay costs of prosecution. This section includes as well a proceeding conducted by a commissioner appointed by the court. It will be observed that the section only applies where there has not only been a finding that the subject of inquiry was not a lunatic but where the judge or commissioner holding the inquisition certifies that the proceeding was instituted without probable cause. In the absence of such certificate the presumption is that the proceeding was begun in good faith and in the interest of the alleged lunatic: Clark’s Case, 22 Pa. 466. It is unnecessary, therefore, to consider the question raised by the appellant’s counsel and discussed at length whether the certificate of probable cause filed by the commissioner nunc pro tunc with leave of court was properly admitted on the record or not. As there was no finding of want of probable cause the certificate of the existence of probable cause was unnecessary under the act of 1849. The decree was entered therefore in the performance of a duty and the exercise of a discretion committed to the court by law. It is said, however, that this authority could not be exercised because the person against whom the proceeding was had was dead before the decree was entered. It may be taken for granted that after the death of the alleged lunatic the court of common pleas could have no control over his person and could make no decree enforceable against his estate without an inquisition found. The orphans’ court would be the forum in which his estate must be administrated and his liabilities determined. But if an inquisition has been found before the death of the person alleged to be a lunatic the jurisdiction of the court of common pleas attaches, and it may make such orders as are necessary or expedient in the disposal of the case, as in the matter of fixing the compensation of the commissioner and decreeing the payment of costs. And the costs may be imposed on the estate before the final determination of the proceeding: Ebling’s Estate, 134 Pa. 227. The decree was made on a rule entered in the lifetime of David McCracken to which he filed an answer. This rule was discharged but reinstated in an order made August 2, 1909, so that the determination was on an issue joined in the lifetime of Mc-Cracken. It is contended by the appellant that there is no authority for the allowance of counsel fees to the attorney who represents the proponent in such a proceeding but the weight of authority is the other way. It was held in Wier v. Myers, 34 Pa. 377, that the counsel fees were properly chargeable. This case it is true was reversed on another point but the opinion of the court below was approved by the Supreme Court in all other respects. Such was also the conclusion in Tarr’s Estate, 10 Pa. Superior Ct. 554. The right to charge a fund with costs and- expenses depends on whether the litigation in which they were incurred was in promotion of the interests of those found to be eventually entitled to the fund: Schwartz v. Oil Co., 164 Pa. 415; Bright. Eq. Jur. 555. Counsel fees are not allowable as costs in actions at law, but may be imposed in the administration of trusts or of the estates concerning which the court is inquiring where the proceeding is instituted in aid of the estate. We are not dealing with a contest between individuals but with a proceeding presumably initiated in good faith in the interest of the persons supposed to be non compos mentis.

The only question for consideration then is as to the propriety of the action of the court and we have nothing before us from which it can be satisfactorily concluded that the discretion exercised was not judicious. The testimony is not printed and we are therefore without evidence informing us of the extent of the services of the commissioner and counsel as a basis for revising, the action of the court. The sixth section of the Act of April 20,1869, P. L. 78, which provides a method of committing a lunatic on the certificate of a commission of three persons and which in its supplement of May 8,1889, P. L. 127, fixes the fee of the commissioners to be appointed under that act at $5.00 per day each does not apply to inquisitions in lunacy. It provided a summary method to restrain an insane person where the welfare of such person or others required his confinement. But a very different proceeding is there prescribed and for a different purpose from that involved in this case and the court was not limited to the compensation therein fixed. As we are without the necessary information to show that the court failed to exercise a wise discretion in the determination of the case the decree must be affirmed.

Decree affirmed.


author: Head, J.,

text:
    Reinisch v. Consolidated National Bank, Appellant.

      Banks and banking—Checks—Dishonoring checks—Checks in excess of deposit—Payment.

    Where a number of checks variously dated are presented to a bank simultaneously through the clearing house for payment, and the aggregate amount of the checks is greater than the amount of the deposit, the bank is bound to pay the checks, but in any order that it may choose, until the deposit is exhausted, if there is no rule of the clearing house or custom of the banking community to the contrary.
    Argued Oct. 12, 1910.
    Appeal, No. 58, Oct. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 3,348, on verdict for plaintiff in case of Meier Reiniseh and M. Stangart, trading as Meier Reiniseh & Company v. Consolidated National Bank.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass against a bank for dishonoring checks. Before Sulzberger, P. J.
    Verdict and judgment for plaintiff for $100. Defendant appealed.

      Errors assigned were (1,2) answers to points quoted in the opinion of the Superior Court and refusal of motion for judgment n. o. v.

      George R. Van Dusen, for appellant.
    A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer of the bank and the bank is not liable to the holder unless and until it accepts or certifies the check: Tibby Brothers Glass Company v. F. & M. Bank, 220 Pa. 1; Act of May 16, 1901, sec. 189, P. L. 194, 219.
    The mere priority in the drawing of a check upon a bank, is not sufficient to give to the holder of such check a legal right to preference in payment: Dykers v. Leather Mfrs. Bank, 11 Paige (N. Y.), 612.
    If the bank cannot pay all the checks of any individual depositor then coming through clearing, it must pay none of them: 1 Morse on Banks and Banking, sec. 354; Watson Clearing House Law, sec. 16; 2 Parsons on Notes and Bills, 78; 5 Cyc. Law & Proc. 535.

      Morton Z. Paul, for appellee.
    The bank had no right to refuse to pay checks on this account which could have been paid by the balance on deposit: Bromley v. Commercial Nat. Bank, 9 Phila. 522; Dana v. Boston Third Nat. Bank, 95 Mass. 445; Hemphill v. Yerkes, 132 Pa. 545; Birchall v. Third Nat. Bank, 15 W. N. C. 174; Rolin v. Steward, 14 C. B. 595; Marzetti v. Williams, 1 B. & Ad. 415.
    March 3, 1911:
   Opinion by

Head, J.,

For some months prior to September 4, 1907, the plaintiffs, small merchants in the city of Philadelphia, had maintained an ordinary deposit account in the defendant bank. At the opening of business on the morning of that day it is conceded the correct amount of the balance to their credit was, as shown by the books of the bank, $328.12. The defendant bank was a member of the Clearing House, and while the situation remained as above stated*jts messenger returned from the Clearing House, bringing with him a bundle of seventeen checks drawn by plaintiffs, which he handed to the proper bank officer. This, under established usage, amounted in law and fact to a presentation of these checks for payment.

The largest sum called for by any single check of the seventeen was $75.00 the smallest $5.00, but their aggregate sum was $664.45, a little more than twice the amount of their balance. The bank thereupon declined to pay any of the checks and returned them to the Clearing House. Shortly afterwards a messenger of the plaintiffs arrived at the bank with a deposit of $480.50. The bank, having already rejected and returned the checks as stated,' declined to receive this deposit and requested the plaintiffs to close their account. Accordingly on the following day, September 5, the plaintiffs drew their check to the order of cash for $328.12, the amount pf their balance. The check was paid and the account closed.

The plaintiffs then brought this action of trespass to recover damages. The pleadings are not printed in the paper-books, but we understand from the history of the case presented by appellant that it was not claimed that the bank was under any obligation to pay all of the checks presented. The complaint is that, having admittedly $328.12 of the plaintiffs’ money on deposit, the bank refused to pay any of their checks up to the amount of that balance.

The theory of the defendant is fairly and fully set forth in its first point for charge, the refusal of which constitutes the first assignment of error. The point was "As the evidence shows that the aggregate amount of the checks drawn by the plaintiffs, presented to the defendant on September 4, 1907, was greater than the amount plaintiffs had then on deposit with defendant, there was no obligation on the part of defendant to pay any part of them, and it had no right to pay certain checks and refuse payment of others; the verdict must therefore be for defendant.” This was followed by a point for binding instructions which was refused, as well as a motion for judgment n. o. v., and the refusal of this motion is the remaining and only other assignment of error.

In determining the propriety of the action of the bank in rejecting all of the checks of the plaintiffs we exclude from our consideration the later offer of deposit. Whatever it may prove as to the good faith of the plaintiffs when they issued checks aggregating more than their balance in bank, it can in no way aid in determining the legal obligation of the bank at a time when it could not know that its depositor was about to increase his balance by the addition of a fresh deposit.

It may not be unworthy of remark that notwithstanding the vast volume of commercial business transacted every day in Pennsylvania by the use of bank checks, the question now before us seems to have never reached our courts for determination, and we are without the aid of any precedent. The defendant’s theory, however, is supported by as respectable an author as Mr. Morse, who, in his work on banks and banking in sec. 354, speaking of a bank in the situation which confronted this defendant, says: “The bank cannot look at their dates; for priority of presentment not of date secures priority of payment, so if the bank cannot pay all the checks of any individual depositor then coming through clearing, it must pay none of them. It has no legal power or right to select or choose from among them certain ones which it will honor or certain ones which it will dishonor. All or none must be paid. Any other course would render the bank liable to the holders of the dishonored paper.” Apparently the compelling reason upon which the author’s conclusion rests is indicated in the last sentence quoted.

In Pennsylvania, however, it has long been established that the holder of a check, who presents it to the drawee bank for payment, acquires no right of action against the bank by reason of its refusal to pay such check, even where the maker has on deposit ample funds for that purpose. And this for the simple but sufficient reason that

the bank has no contractual relations whatever with such holder. Having never undertaken with him to pay any check he might present, there could be, as we view it, no breach of duty to him in'its refusal to pay. In such a case the rights and remedies of the holder of the check rest on his contract with the maker and must be worked out through that contract. And conversely, the duty and obligation of the bank rests upon its contract with its depositor, and he is the only party who can suffer a legal injury by the bank’s breach of such contract. We must conclude therefore that it is not a sound proposition in Pennsylvania to assert, in the language of the learned author we have quoted, that “any other course would render the bank liable to the holders of the dishonored paper.” In other words we cannot accept the doctrine proposed by Mr. Morse because the reason on which it rests is not in harmony with the established law of Pennsylvania which determines the relations of the holder of a check to the bank on which it is drawn. Our question is therefore not embarrassed by the necessity of considering the attitude of the holders of the checks that would have been rejected had the defendant bank seen fit to select from those presented such as it could pay by the use of the balance to the credit of the plaintiffs then on deposit.

There remains but one other aspect in which the question may be viewed, and this must be the controlling one. This is an action brought by the depositor. He bases his right to recover on the breach of a contract between him and the defendant bank. The existence of such a contract is not and cannot be denied by the defendant. Nor can it be doubted that the obligation of that contract, as has been frequently declared by our courts, requires the bank to pay over the moneys of its depositor upon his demand made in the form sanctioned by commercial usage. As already stated, it could not be successfully claimed for the plaintiffs that the defendant bank was obliged to pay all of the checks presented on the morning of September 4. No line or letter of its contract required it to pay more than the amount of the balance provided by the plaintiffs for that purpose. If the Clearing House, as the representative of the various banks who were the lawful holders of the checks, had so consolidated its demand that it refused to accept payment of some of the checks unless all were paid, we would have a different question. Or if the evidence showed any rule of the Clearing House which compelled the defendant bank to pay all or reject all of a number of checks thus ^presented together, we are not prepared to say that the defendant could not have safely acted on such rule.

For although it may be true enough, in a general sense, that the rules of the Clearing House are binding only on those who are members of it, yet it would be difficult for the plaintiffs to maintain that after they had launched their checks into the general channels of commerce they would not be affected by the reasonable usages and customs of those agencies which they must have expected would be used as their checks passed on their way to their final destination. But we have not this question before us because the evidence is barren as to the existence of any rule or regulation on this subject by the Clearing House. Nor does it even show the existence of any custom among the banks of the city of Philadelphia in such cases.

There was therefore nothing we can see in the law of Pennsylvania, or in any established and recognized usage or custom which might affect the plaintiffs or control the action of the defendant, which forbade the latter to comply with the obligation of its contract with its depositor. Had the defendant chosen to take up the checks in the order of their date and pay them as far as the plaintiffs’ money would go, who could complain of such action? As we have already seen, the holders of the checks not paid would have no standing at all to demand anything from the bank, nor could they be legally injured by its action. And the depositor would in vain attempt to say that he had been injured because each check which the defendant would have paid would have been a lawful demand by the depositor for so much of his money, and the payment of such checks would satisfy the most rigid interpretation of the bank’s obligation.

But we are not willing to say that this was the only course that could or should have been followed by the defendant bank. There is considerable force supporting the practice that seems to prevail among banks in certain sections of the country when called upon to dispose of a question like that' which confronted the defendant bank on September 4. This practice is, in such cases, to select and pay the largest number of the checks presented that can be paid out of the balance on hand, and this o.n the reasonable theory that the credit of the depositor will be less hurt in the general commercial world by the rejection of a few checks, even if their amounts be larger, than by the dishonor of many. And again, it is difficult to see how the depositor could be heard to complain had his money thus been applied by the bank.

It is no part of the plaintiffs’ case, however, to establish the proposition that it was the duty of the bank to pay their checks in the-order of their date as long as the balance on hand was adequate. The defense fails if the bank was obliged to pay any of the checks, allowing to it, for the purposes of this case, to select for itself which checks it would pay. As the record stands we can reverse this judgment only on the ground that because there were seventeen separate and distinct checks aggregating more than the plaintiffs’ balance, the defendant was relieved from the obligation of its contract with its depositor and was justified in paying none of them. We are unable to perceive any solid foundation on which this conclusion would rest. Any check of that bundle which the paying teller chose first to take up, no matter what its date, was a legal demand by the plaintiffs for the payment of that much of their money. The deposit was there to meet it. The fact that sixteen other checks were on his counter awaiting his action, created no legal obstacle to the payment of that one; no paralysis of the obligation of the bank’s contract with its depositor; no menace of disaster to follow what would have been at once the exercise of a right and the discharge of a duty. It appears to' us that no force of any kind was present operating in any way to relieve the bank from its duty to pay or offer to pay some of the checks presented up to the amount of the plaintiffs’ deposit. It is true the bank officers were suddenly brought, without any fault of their own, to determine at their peril how to meet an infrequent and unexpected difficulty where their proper attitude had not been specially defined by statute, by the courts of the state, or established usage in their own commercial world. But the obligation of their contract with their depositor was simple, was ever present, and for aught we can see was then operative, and it was sufficient to be “a guide to their feet and a lamp to their path.” After allowing to the bank every reasonable discretion in the way of selecting which checks it would pay, this obligation demanded of it that it should select and pay some of them until the plaintiffs’ deposit was exhausted. It could not and did not, as we view it, meet the obligation of that contract by rejecting all of the checks.

No question is raised as to the measure of damages. The verdict is a moderate one, and we are of the opinion that the judgment entered on it cannot be fairly disturbed.

Judgment affirmed.


author: Rice, P. j.,

text:
    Brush Hat Manufacturing Company, Incorporated, v. Abeles, Appellant.

      Accord and satisfaction—Payment—Consideration—Expensive legal proceedings.

    The rule that payment of part of a debt after it is due is not an accord and satisfaction, will not be applied where there is any new consideration, or any collateral benefit received by the creditor which might raise a technical legal consideration; but the mere fact that the creditor will be saved the delay and trouble of further prosecuting a suit which he had brought for the whole of his claim, is not a consideration to take a partial payment of the claim out of the general rule.
    Argued Oct. 12, 1910.
    Appeal, No. 66, Oct. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., Dec. Term, 1909, No. 2,426, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Brush Hat Manufacturing Company, Incorporated, v. Simon Abeles, trading as S. Abeles & Co.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover the sum of $2,318.18 for goods sold and delivered.
    The affidavit of defense contained the following averment :
    After the writ was issued in this case, to wit, on or about January 7, 1910, the plaintiff offered to accept from the defendant in full satisfaction and accord for the amount claimed in this suit, with interest and costs, the sum of $2,012.82 in order to save further delay and trouble of proceeding with this suit. The defendant accepted the said offer of plaintiff and therefore, to wit, on January 11, 1910, paid to the said plaintiff, Brush Hat Manufacturing Company, Inc., the said sum of $2,012.82 and the same was accepted by said plaintiff in full satisfaction and accord for the amount claimed, with interest and costs aforesaid.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      Bertram D. Rearick, with him Bernard A. Illoway, for appellant.
    An accord and satisfaction expressed to be in consideration of the avoidance of trouble and delay in prosecuting a suit is binding upon the parties: Ebert v. Johns, 206 Pa. 395; Melroy v. Kemmerer, 218 Pa. 381; Bernstein v. Hirsch, 33 Pa. Superior Ct. 87; Harlow v. Wilkinsburg Borough, 189 Pa. 443; Knickerbocker Trust Co. v. Ryan, 227 Pa. 245; Mitchell v. Wheaton, 46 Conn. 315; Baum v. Buntyn, 62 Miss. 110; Mechanics’ Bank of Harrisburg v. Huston, 11 W. N. C. 389; Hendrick v. Thomas, 106 Pa. 327; Potter v. Hartnett, 148 Pa. 15; Clayton v. Clark, 74 Miss. 499 (21 So. Repr. 565; 22 So. Repr. 189).

      Alfred T. Steinmetz, with him Robert A. Beggs, Jr., and George Wentworth Carr, for appellee.
    The acceptance of a smaller sum in satisfaction of a greater amount does not constitute an accord and satisfaction so as to bind the creditor thereby, and prevent the further recovery by him of the balance of the amount due: Com. v. Cummins, 155 Pa. 30; Mt. Holly Water Co. v. Borough of Mt. Holly Springs, 10 Pa. Superior Ct. 162; Girard Fire & Marine Ins. Co. v. Canan, 195 Pa. 589; Hartman v. Danner, 74 Pa. 36; Third Nat. Bank v. D’Olier, 1 Chester County Rep. 373; Kirkpatrick v. Wensel, 2 Leg. Chron. 303; Tucker v. Murray, 2 Pa. Dist. Rep. 497; Norman Lumber Co. v. Dorney Lumber Co., 8 North County Rep. 68.
    The case does not involve any of the known exceptions to the rule. The amount due is not disputed: Kellett v. Freeman, 8 Del. County Rep., 98; Yearsley v. Glaser, 32 Pa. Superior Ct. 141; Fowler v. Smith, 153 Pa. 639; Ebert v. Jones, 206 Pa. 395; Weiss v. Marks, 206 Pa. 513; Miller v. Jefferson Building Assn., 50 Pa. 32; Melroy v. Kemmerer, 218 Pa. 381.
    March 3, 1911:
   Opinion by

Rice, P. j.,

A payment of part of a debt, either principal or interest, before it is legally demandable will be sufficient consideration to support an agreement to give time. But such payment after maturity of the debt has not the same effect, "for the plain reason that, in a legal sense, it is neither a benefit to the creditor, who is entitled to the whole, nor an injury to the debtor, who ought to have done this and more without any promise from the creditor:” Hartman v. Danner, 74 Pa. 36. For the same reason, part payment of an overdue, ascertained, unrestricted, and undisputed debt is not a good consideration for a promise to receive it in satisfaction: Hendrick v. Thomas, 106 Pa. 327; Commonwealth v. Cummins, 155 Pa. 30; Girard F. & M. Ins. Co. v. Canan, 195 Pa. 589; Szok v. Crown, 33 Pa. Superior Ct. 612. Even in those late cases in which the rule has been criticised as being more logical than just, it has been recognized as an existing rule. But because the rule may be urged in violation of good faith, the courts have been disposed to take out of its application all those cases where there was any new consideration, or any collateral benefit received by the payee which might raise a technical legal consideration, although it was apparent that such consideration was less than the sum unpaid: Brooks v. White, 43 Mass., 283. As already shown, one such case is where a part was paid before all was due; another is where it was paid in a way more beneficial to the creditor than that prescribed by the contract, or was paid at a more convenient place than that stipulated in the contract, and in each instance was received in satisfaction. So, also, it has been held that the rule does not apply if the debtor gives, and the creditor receives, a chattel in satisfaction, or renders services, by consent of the creditor, in full payment; or if the debtor assigns certain property, which is received in full satisfaction; or if he offers additional security on condition that his creditors shall give up a portion of the debt, and the creditor accepts such security for a less sum in satisfaction of the whole debt. In each of these instances the debtor does something that he is not under legal obligation to do, ‘and this constitutes a technical legal consideration, the adequacy of which was for the parties, and not for the court or jury to determine. In Melroy v. Kemmerer, 218 Pa. 381, it was held that where a debtor, in failing circumstances and contemplating bankruptcy, offers his creditor thirty per cent of the debt as a settlement in full, and bis creditor dissuades him from going into bankruptcy, accepts his alternative offer, receives the money, and closes the account, the transaction is an accord and satisfaction, and the creditor cannot thereafter recover the balance. The reason for holding this to be a good accord was thus stated by Chief Justice Mitchell: “By it the creditors got a sum certain, instead of the chances of an uncertain dividend in bankruptcy; on the other hand, the debtor accepted the responsibility of paying a sum certain whether his assets were sufficient or not, and gave up his right to a release of his future assets, and to a discharge from his whole debt without regard to the sufficiency of his present assets.” It will be seen that the reasoning of the decision is wholly inapplicable in the present case, when it is stated that there is no allegation that the defendant was insolvent or contemplating bankruptcy. The sole consideration alleged in support of the agreement to accept part of the debt, in satisfaction of the whole, is that the plaintiff would be saved the delay and trouble of further prosecuting the suit it had brought. Every debtor may delay the collection, of an overdue and undisputed debt by taking advantage of the law’s delay; but if he pays at once, as he is under legal obligation to do, he surrenders no legal right, in the proper sense of the term. To delay payment is a legal wrong, and, though it be a fact that it will cost the plaintiff money to obtain redress, the foregoing of the opportunity which the law gives for prolonging the wrongful delay , cannot be'a legal consideration. To hold that it is would be destructive of the rule itself. “It may appear to be a very refined technicality that a part payment on account of a debt twenty-four hours before it is due, will, and twenty-four hours after, will not form a sufficient consideration for an agreement to extend the time. We must remember, however, that the law pays no regard to the adequacy of consideration. There must be some legal benefit to the one party or injury to the other, though it may be of the slightest kind. It must be a benefit or injury, which the law can recognize and appreciate, not the performance in part or in whole of that which is already an ascertained and matured obligation:” Sharswood, J., in Hartman v. Danner, 74 Pa. 36. The application of these principles to the case in hand resulted properly in a judgment for the plaintiff for the unpaid portion of the debt in suit.

Judgment affirmed.


author: Ralston, J., Orlady, J.,

text:
    Pennsylvania Railroad Company v. Samuel, Appellant.

      Railroads—Carriers—Demurrage—Lien.

    Where a seller ships the first of several deliveries of iron, and subsequently the railroad company notifies him that the purchaser will not accept the iron, and thereafter he ships other deliveries, consigning them to his own order, although the purchaser continues the embargo, and the cars remain unloaded on the tracks of the railroad, the seller will be liable to the railroad company for demurrage; and if after the embargo is raised, the railroad company refuses to release the cars until the demurrage is paid, the seller will be liable for demurrage from the time the embargo was raised until the time when he finally paid the original demurrage, if the bill of . lading provides for a lien for demurrage.
    Argued Oct. 12, 1910.
    Appeal, No. 49, Oct. T., 1910, by defendants, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 3,198, for defendant on case tried by the court without a jury in suit of Pennsylvania Railroad Company v. Frank Samuel and Silas M. Tomlinson, trading as Frank Samuel.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for demurrage.
    The case was tried by the court without a jury.
   Ralston, J.,

filed the following opinion:

This case was tried without a jury. The facts were agreed upon, and the agreement of counsel is hereto annexed as the findings of fact by the trial judge.

The plaintiff is a railroad corporation. The defendants had contracted prior to June 19, 1905, to sell cinder to the Emporium Iron Company at Emporium, Pa., in pursuance of which cinder was shipped over the plaintiff’s railroad and delivered to the Emporium Iron Company at Emporium, Pa.

On June 19, 1905, the Emporium Iron Company notified the plaintiff not to receive any shipments of cinder consigned to it at Emporium, as it would not accept them. The plaintiff notified its agents not to receive such shipments, and also notified the defendants that they would not receive such shipments, but did not tell them until June 29, 1905, that they took this action by direction of the Emporium Iron Company.

On June 29, 1905, the general counsel of the plaintiff wrote to the defendants that the Emporium Iron Company had directed the railroad company not to receive shipments of cinder consigned to it, and that the plaintiff company therefore would not receive such shipments. On June 29, 1905, the defendants replied that they would forward the cinder to their own order at Emporium and would be responsible for the freight. On or about July 1, 1905, the plaintiff’s agent notified the defendants that it must be understood before shipments were accepted that they were not to be reconsigned to the Emporium Iron Company so long as the embargo was in effect, and if they went forward the defendants must be responsible for demurrage. On July 1, 1905, the defendants replied that they would not pay demurrage and would expect the cars to be delivered at Emporium. On July 7, 1905, the plaintiff wrote to defendants that there was no embargo on shipments of cinder to them at Emporium, but that they could not accept any reconsignment to the Emporium Iron Company and that they would hold the defendants responsible for demurrage. '

On June 30, 1905, plaintiff’s agent at Emporium received from the defendants orders to deliver to the Emporium Iron Company, when they should arrive, certain car’s consigned to defendants. The agent wrote to defendants that it would be impossible to deliver the cars, as the Emporium Iron Company had given them written instructions to place an embargo on all shipments to them, and asking defendants to make some disposal of the cars.

On July 5, 1905, the plaintiff’s agent notified the defendants that he had five cars which he could not deliver. On July 12, 1905, he again notified them that he had twelve cars drawing demurrage. On July 22, 1905, he wrote that he had some twenty-five car loads consigned to the defendants and asking what disposition they wanted made of them. On July 24, 1905, defendants replied that they had instructed the plaintiff to deliver the cars to the Emporium Iron Company and all demurrage should be charged to them, and asked the agent to tender the cinder to that company daily. On July 25, 1905, the plaintiff wrote defendants that they could not accept reconsignment to the Emporium Iron Company. On the same date the defendants answered that any loss to them would be charged to the plaintiff. No orders for disposal of the cars was given, except repeated directions to deliver to the Emporium Iron Company. The plaintiff’s agent at Emporium-notified the Emporium Iron Company of the arrival of each car and asked if they would accept it, but acceptance was in every instance refused. The defendants were not notified of such refusal except- as set forth in the above correspondence.

The embargo was raised on July 28, 1905, but the cars were not delivered for more than two weeks, being held by the plaintiff until the demurrage was paid. The cars were eventually delivered without prejudice to the plaintiff’s right to recover the demurrage. No detailed statement of the amount of demurrage claimed was furnished the defendants until August 1, 1905.

The bill of lading provided that the carrier might make - a reasonable charge per day for the detention of cars after they had been held for forty-eight hours and hold the property subject to a lien therefor.

Demurrage is claimed upon cars at Emporium as follows: Before the embargo was raised on July 28, 1905, $363; after embargo was raised, $297; a'total of $660.

Although the dates of shipment are not stated in the agreement of facts, it appears from the letters that all the cars upon which demurrage is claimed were consigned to the defendants at Emporium after June 29, 1905, and it is so understood by the court.

The defendants argue that the railroad company discriminated against them by refusing to accept their shipments when they were accepting shipments from others. This is an erroneous view of the case. What the plaintiff did was to notify the defendants that it could not deliver cars to the Emporium Iron Company because that company would not accept them. The defendants in the face of that notice insisted upon making the shipments, consigning the cars to themselves. As a matter of fact, all these cars were tendered to the Emporium Iron Company and refused. The defendants were again and again notified that the cars could not be delivered and that if they chose to make the shipments they would be held responsible for demurrage; nevertheless they persisted in their shipments and the railroad was obliged to hold the cars as it was impossible to deliver them. What motive or object the defendants had in making the shipments after the Emporium Iron Company had refused to accept them it is impossible to perceive. If they had no place to store the cinder then, of course, they cannot object to paying the plaintiff for their storage. If, on the other hand, they were acting upon a mistaken view of the law that in order to hold the Emporium Iron Company for a breach of contract it was necessary to actually tender the cinder to it at Emporium, they cannot hold the plaintiff responsible for their error. As soon as the defendants were notified that the Emporium Iron Company would not accept any more cinder the contract was broken by anticipation and the defendants might at once have brought suit against that company for its breach, without any further tender or offer to perform. In a suit by the defendants against the iron company the defendants would not have been permitted to recover from the company expenses incurred by shipments made after notice that they would not be accepted. So in any view of the case it is impossible to understand the defendants’ motive for insisting upon shipping the cars at all. However, they did ship them to themselves and, therefore, took the risk of their being accepted. As they were not accepted, but refused by the iron company, and as the defendants refused to give any further shipping directions, they are answerable to the plaintiff for the demurrage. After the embargo was raised by the Emporium Iron Company the Railroad Company was not bound to deliver the cars until the demurrage was paid, as sec. 5 of the bill of lading expressly provides that the carrier may make a reasonable charge per day for the detention of cars and use of tracks and hold the property subject to a lien therefor.

Error assigned was in entering judgment for plaintiff.

Lewis Lawrence Smith, for

appellants. The embargo was illegal: Hoover v. R. R. Co., 156 Pa. 220; Baily v. Fayette Gas Fuel Co., 193 Pa. 175; Rogers v. P. & R. Ry. Co., 12 Interstate Commerce Rep. 308; Wright v. B. & O. R. R. Co., 32 Pa. Superior Ct. 5.

The embargo was the cause of demurrage. The plaintiff did not fulfill its ordinary duties as a carrier: Houston E. & W. Texas Ry. Co. v. Campbell, 91 Texas, 551 (45 S. W. Repr. 2); Tanner v. Gil Creek R. R. Co., 53 Pa. 411; Arbuckle v. Thompson, 37 Pa. 170; Wright v. Railway Co., 8 Phila. 19.

The liability of the railroad company after the arrival of the cars at destination and after a reasonable time had elapsed for the consignee to unload probably became that of a warehouseman: Lake Shore & M. S. R. R. Co. v. Hodapp, 83 Pa. 22; but it never was intended that a railroad company should keep the goods stored in its cars and charge car service: Somes v. Shipping Co., 8 H. of L. Cases, 338.

In the opinion of the trial judge, the plaintiff is entitled to recover the full amount of its claim, namely, $660, with interest, and judgment will be entered for this amount when computed by counsel.

A lien exists only under special contracts which will be strictly construed: Nicolette Lumber Co. v. People’s Coal Co., 213 Pa. 379.

Sharswood Brinton, with him Hampton Barnes, for appellee.

A common carrier is not obliged to carry goods consigned to a particular consignee in the face of an order given by that consignee to the carrier not to transport goods of that particular kind to it, and that it will not accept them if so carried, where such notice to the carrier, called an embargo, is given to the consignor before the goods are loaded: Lake Shore & M. S. R. R. Co. v. Hodapp, 83 Pa. 22; National Line Steamship Co. v. Smart, 107 Pa. 492; Tanner v. Oil Creek R. R. Co., 53 Pa. 411; Rickey v. Tutelman, 19 Pa. Superior Ct. 403; Louis Werner Saw Mill Co. v. Ferrer, 201 Pa. 405; Miller v. Seaman, 176 Pa. 291; Lawrence v. Minturn, 58 U. S. 100; Bedford Bowling Green Stone Co. v. Oman, 134 Fed. Repr. 441; O’Rourke v. R. R. Co., 44 Iowa, 526.

The lien for the demurrage is given in this case by the bill of lading: Nicolette Lumber Co. v. Coal Co., 213 Pa. 379; Penna. R. R. Co. v. Steel Co., 201 Pa. 624.

March 3, 1911:

Opinion by

Orlady, J.,

The parties to this suit dispensed with a trial by jury, and submitted the decision thereof to the court under the provisions of the Act of April 22, 1874, P. L. 109. Counsel joined in an agreement as to the controlling facts, and each presented requests for findings of fact and conclusions of law thereon. The trial judge, in his opinion, has properly disposed of every question raised, and the judgment is affirmed for the reasons given by him.


author: Beaver, J.,

text:
    Burchfield, Appellant, v. Alpha Process Company.

      Contract—Time for performance—Waiver—Notice—Question for jury.

    Whore the time fixed by a contract within which the agreement is to be carried out is permitted to pass, both parties concurring, the time of performance thereafter becomes indefinite, and one party cannot rescind until full notice and a reasonable time for performance is given; what is a reasonable time is a question for the jury.
    Argued Oct. 13, 1910.
    Appeal, No. 69, Oct. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., June Term, 1906, No. 2,007, refusing to take off nonsuit in case of Theodore T. Burchfield, trading as T. T. Burchfield Company, to the use of The Titusville Iron Company, v. Alpha Process Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, ' JJ.
    Reversed.
    Foreign attachment in assumpsit. Before Barratt, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      Frank B. Stockley, with him E. Cooper Shapley, for appellant.
    The question of reasonable time was for the jury: Holt’s App., 98 Pa. 257; Irvin v. Bleakley, 67 Pa. 24; Hatton v. Johnson, 83 Pa. 219; Kuhn v. Skelley, 25 Pa. Superior Ct. 185; Hausman v. Johnson, 32 Pa. Superior Ct. 339; Shaw v. Lewistown Turnpike Co., 2 P. & W. 454; Norris v. Clark, 29 Pa. Superior Ct. 562; Preston v. Finney 2 W. & S. 53; Fessler v. Love, 43 Pa. 313.

      A. B. Bepetto, for appellee,
    cited: Gillespie Tool Co. v. Wilson, 123 Pa. 19; Norris v. Clark, 29 Pa. Superior Ct. 562; Hartman v. Meighan, 171 Pa. 46; Hartupee v. Pittsburg, 97 Pa. 107; Bryant v. Stilwell, 24 Pa. 314.
    March 3, 1911:
   Opinion by

Beaver, J.,

The court below granted a nonsuit in this case for a specific purpose. The reasons were stated at the time the nonsuit was entered, the trial judge saying: “There is no doubt about the fact of a breach of the contract upon the part of the plaintiff in not delivering the engine in the time stipulated by the contract, nor is there any doubt about the fact that the defendant has a thousand-dollar boiler from the plaintiff which was delivered to him and which he is using, but for which he has not paid. While it is conceded that this is an entire contract, and that there has not been complete performance, yet as a matter of justice between the parties the defendant should not be allowed to keep this boiler without paying for it; and on the other hand, even if there was a waiver upon the part of the defendant, it would not be a matter of justice to compel the defendant to pay the full amount of the value of the boiler, if, as he states, he was put to expense and to loss by reason of the breach of the contract upon the part of the plaintiff. It is a matter particularly for settlement, and I grant the nonsuit for the purpose of giving the parties an opportunity to arrive at a settlement, as each has indicated a desire to adjust the differences in an amicable manner.”

Inasmuch as the object for which the nonsuit was granted has not been reached and we are not informed as to the party upon whom the responsibility for failure rests, we are to take up the question involved in this case upon its merits.

The contract upon which the action is founded was in writing, based upon an offer made by the plaintiffs and an acceptance in a single word “Accepted” by the defendant. The specifications contained in the offer provide for a governor wheel sixty inches in diameter and twelve inches face and a belt wheel sixty inches in diameter of twelve-inch face. The only terms in the offer as to the time of delivery are in this clause: “Trusting that we may be favored with your order for this outfit, which can be shipped within twenty days, we are,” etc. It is to be noted that this expression does not convey an offer to deliver within that time, nor does the acceptance fix a time for delivery. It is also to be noted that a change was made in the specifications by the defendant from a twelve-inch face belt wheel to one of fourteen inches face. This, as was shown, involved considerable time to change, a new pattern being necessary. It is evident that, even if we construe the agreement into a covenant to deliver within twenty days, that the change in the face of the belt wheel to fourteen inches would, of course, involve a change in the time of delivery. Did the plaintiffs make reasonable effort to meet the change requested by the defendant within a reasonable time? That, it seems to us, was a question for the jury.8 It is true the witness for the plaintiffs testified that this change might have been done in two weeks, but it is to be noted that the plaintiffs were not doing the work themselves, but had ordered the engine from another manufacturing concern. The time caused by the change was, therefore, simply the conjecture on the part of the witness.

The defendant countermanded the order peremptorily on May 4, in the following letter addressed to the plaintiffs: “Gentlemen: Inasmuch as you were unable to fill the contract with us, dated March 7, 1906, for one boiler and engine and connections and as we are suffering delay and heavy loss through non-delivery, we are compelled to purchase balance of undelivered goods elsewhere—which we will do today. The writer called on you yesterday and called up on the phone this morning and is unable to get any information other than that you had been there.”

The testimony shows that, on the very day on which this letter was written, the engine was ready to be shipped. If reasonable notice had been given, even in advance of the letter, of the intention to countermand the order or cancel the contract, the probabilities are that the engine might have been shipped, so as to meet the requirements of the defendants; at least that would have been a question for the jury. What would have been reasonable notice? What would have been a reasonable time within which to deliver, in view of the change directed by the defendant, were both questions upon which the jury should have been called to pass. Looking at the question, therefore, from the legal standpoint, we think the nonsuit should not have been granted, although for the purpose for which it was granted, it was apparently fair and intended to be equitable. The parties having failed to act upon the suggestion of the court, it is proper, therefore, that their rights be determined by a legal tribunal in a legal way.

We are by no means satisfied that the expression in the plaintiffs' offer “can be delivered within twenty days” and the word “Accepted” by the defendant, without specifying time for delivery, constitutes an express covenant as to the time within which the machinery was to be delivered; but, even if this were so, the time for the delivery of the engine was necessarily changed by the defendant by a change in the specifications relating to the band wh^el from twelve inches to fourteen inches wide, which necessitated at least a recasting of the wheel, if not the making of a new pattern. The plaintiffs having acquiesced in this change, therefore, were not bound to deliver the engine at the same time as the boiler or within the time mentioned in its offer. It was, therefore, necessary in our view of the case, for the defendant to have given reasonable notice and fixed a reasonable time within which delivery was to be made. This was not done and, therefore, it had no right to rescind.

Innumerable authorities can be cited in support of this view of the case, but it is perhaps only necessary to mention Kuhn v. Skelley, 25 Pa. Superior Ct. 185; Hausman v. Johnson, 32 Pa. Superior Ct. 339; Hatton v. Johnson, 83 Pa. 219: “Where there has been indulgence on both sides, one party cannot suddenly rescind, without notice to the other: ” Davis v. Stuard, 99 Pa. 295; Boyd v. McCullough, 137 Pa. 7.

Nor are we satisfied that, under the circumstances, this can'be construed to be an entire contract. True it was such originally but it was changed by the act of the defendant, and, having received the boiler within the time mentioned, assuming that the plaintiffs were bound to deliver within the twenty days mentioned, and having used it and walled it up in its permanent establishment, so that it could not be returned, it was impossible for the defendant to restore the status quo, as we think it was bound to do, and give notice, as above stated, before rescinding the entire contract. See authorities cited above.

For these reasons, and because of the questions necessarily to be found by the jury, it seems to us that the plaintiffs can maintain their action, and the. amount to which they are entitled must be fixed by the jury, in view of the other questions necessarily to be determined by them.

Judgment reversed and a procedendo awarded.