author: Rice, P. J.,

text:
    Weiss v. Swift & Company, Appellant.

      Constitutional law — Title of act — Sales of provisions — Eggs—New obligations or Habilites — Act of May 4, 1889, P. L. 87.
    The Act of May 4, 1889, P. L. 87, entitled “An Act relating to sale of provisions by description,” is not defective in title, because the title does not specify the several articles of merchandise commonly understood as being comprehended within the term “provisions,” to which the act relates.
    The act applies tó a sale of eggs, inasmuch as eggs are “provisions” as that term is commonly understood when spoken of as the subject of sale.
    If new duties, obligations or liabilities are directly imposed by, or arise out of a legislative enactment, it is not necessary that the title should specifically and expressly show it, nor indicate what changes in law in those particulars will occur when the statute goes into operation.
    The Act of May 4, 1889, P. L. 87, entitled “An Act relating to the sales of provisions by description,” and creating “an implied contract or undertaking that the goods are merchandise, are sound and fit for household consumption,” is not defective in title because it does not give notice of the new and additional contractual liability imposed on the vendor upon a sale of food products to a middleman, who buys not for consumption, but for the purpose of sale to others.

      Statutes — Construction—Things enumerated — Things ejusdem generis.

    When certain things are enumerated in a statute and then a phrase is used which may be construed to include other things, it is generally confined to things ejusdem generis; but in applying this principle of construction, and in determining what things are ejusdem generis, regard must be had to the general subject to which the act relates. Things which plainly belong to the same class when one subject is being considered might belong to an entirely different class when considered with reference to another subject. The rule would be absurd if under the head “other” nothing can be included in the construction of the act which is not exactly the same in every particular as the thing specified. WTien the particular word or words exhaust the whole genus, the general term will not be regarded as surplusage, but will be construed to refer to a larger class. This must be so, if regard be had to the rule, which is more imperative than the rule ejusdem generis that a statute is to be considered as a whole, so that, if possible, effect will be given to every part of it.
    A statute entitled “An Act relating to sales of provisions by description,” and specifying in the body of the act sales “of green, salted, pickled or smoked meats, lard and other articles of merchandise used wholly or in part for food,” applies to the sale of eggs.

      Appeals — Assignments of error — Charge—Points—Failure to request instructions.

    Error cannot be assigned of what was not said by a trial judge, without request so to charge.
    Where a point is drawn in the language of the Act of May 4,1889, P. L. 87, entitled “An Act relating to sales of provisions by description,” the court cannot be convicted of error in affirming the point, without further instructing the jury as to the time when articles must correspond with the description, and be sound and fit for household consumption in order to fulfill the implied contract or undertaking created by the statute. If more definite instructions as to time were deemed necessary, specific request should have been made for them.

      Contract — Consideration—Sufficiency of consideration.

    A very slight consideration, provided it be valuable and free from fraud, will supnort a contract.
    Argued Oct. 17,1907.
    Appeal, No. 107, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 1,541, on verdict for plaintiff in case of Jacob D. Weiss v. Swift & Company.
    Before Rice,- P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover damages for breach of an implied warranty in the sale of eggs. Before Carr, J.
    Carr, J., charged in part as follows:
    The question is whether there was a sale by sample or by inspection. The plaintiff claims there was a sale by name or description and also by sample, as well as an express agreement on the part of the defendant that they would not deliver musty eggs, or cases of musty eggs. That is to say, in a sale by sample, the law declares that there is an implied agreement on the part of the seller to deliver articles of the same quality, that is, of the same character and of the same kind as the sample which was shown when the bargain or sale was made. If you believe that was the contract of sale between these parties, and if you believe that in January, when the breach of the contract to deliver came, that the cases of eggs that were offered to be delivered to the plaintiff were not up to the sample but were musty, then the plaintiff is entitled to recover and he is entitled to recover these figures which have been mentioned before you, $120 and $140, making $260, less $9.90.
    Now, on the other hand, the claim on the part of the defendant is that this was a sale by inspection of the bulk of the articles, and while a sample was produced of twenty cases or five cases or ten cases, still the plaintiff had the opportunity to examine the bulk of the eggs he was buying, and, therefore, it was a sale by inspection. Not only that, but they claim before you that it was a sale of so many case counts, that is to say, it is the usage and custom of the trade that when a sale of eggs was made by case count, that the plaintiff was obliged to take and receive whatever was in those particular cases, no matter whether they were rotten eggs or musty eggs or whether they were below the sample of the eggs he had examined or below the quality of the bulk of the articles he had inspected. Therefore, the question before you is, which is the .truth upon that point? Now you will remember the plaintiff’s testimony that after he had seen the samples produced on the sidewalk in the twenty or forty cases from the carloads of No. l’s, he went with Bressler, the employee of Swift & Company, and examined the two carloads, and then not content with that, but upon the following day when he found the cases had been delivered to the cold storage warehouse, and he then knew he could make no further examination of them, before he said, “ I will take these eggs,” he had the promise on the part of Collins that if there were any musty cases of eggs, that he should not be compelled to receive them. Now that is the nerve of this case, because if you believe that, the plaintiff is entitled to recover, if you find that afterwards, and it is not denied here, that the eggs were musty when they came to be delivered in December and January.
    Plaintiff presented this point.
    1. It is also the law of this state that in every sale of merchandise used wholly or in part for food, the goods or merchandise shall correspond in kind and quality with the description given, either orally or in writing, by the seller, and in every such sale of goods, unless the parties agree otherwise, there shall be an implied contract or undertaking that the goods or merchandise are sound and fit for household consumption. Answer: Affirmed. [2]
    Defendant presented this point:
    1. If the jury find from the evidence that the eggs were purchased outright and that no arrangement was made at the time of the execution of the contract for the return of any of the eggs should they become moldy or unmerchantable, then the mere fact that the defendants agreed to help Weiss out of his loss did not put any obligation upon defendant to do so because the arrangement or agreement was without consideration and, therefore, not binding bn the defendant. Answer: That point is refused as it assumes there was no consideration. It may have been a consideration which was to the benefit and advantage of the defendant that such an arrangement should go through. [3]
    Verdict and judgment for plaintiff for $277.31. Defendant appealed.

      Errors assigned were (2, 3) above instructions, quoting them.

      John C. Bell, with him Samuel W. Salus, for appellant. —
    The words “Meat” and “Lard” in the statute are followed by the phrase “and other articles of merchandise.”
    The effect of the words of the phrase, “and other articles of merchandise,” as used in the statute, is to retain the meaning of the words that precede it and confine them to articles of the same kind or ejusdem generis: Beechwood Co.’s Appeal, 12 Pa. Dist. Rep. 430; Allen’s Appeal, 81* Pa. 302; Pardee’s Appeal, 100 Pa. 408; Renick v. Boyd, 99 Pa. 555; Bucher v. Commonwealth, 103 Pa. 528; and that being so it will be demonstrated by a perusal of the statute that the construction thus advanced is technically correct. If, then, this be the correct construction, it will be seen that the title of this act is constitutionally insufficient: Com. v. Kebort, 212 Pa. 289; Com. v. Hazen, 207 Pa. 52 Stegmaier v. Jones 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120; Com. v. Samuels, 163 Pa. 283; Dorsey’s App., 72 Pa. 192.
    July 15, 1908:
    The title of the act of May 4, 1889, it will be seen, treats only of sales by description. It says absolutely nothing regarding warranties, and does not give the slightest hint of their existence, in the act itself: Com. v. Dickinson, 1 W. N. C. 185; Perkins v. Phila., 156 Pa. 554; Smith’s Petition, 12 Pa. Dist. Pep. 333; Allegheny County Home’s Case, 77 Pa. 77; McKeesport v. Owens, 6 W. N. C. 492; Taggart v. Commonwealth, 102 Pa. 354.

      Francis S. Lewis, for appellee. —
    The act is constitutional: Com. v. Charity Hospital of Pittsburg, 198 Pa. 270; Blood v. Mercelliott, 53 Pa. 391; Fredericks v. Penna. Canal Co., 109 Pa. 50; Commonwealth v. Sellers, 130 Pa. 32; Bradley v. Pittsburg, 130 Pa. 475; Rodebaugh v. Philadelphia Traction Co., 190 Pa. 358; Sugar Notch Borough, 192 Pa. 349; Peterson v. Delaware River Ferry Co., 190 Pa. 364; Middletown Road, 15 Pa. Superior Ct. 167; Commonwealth v. Moir, 199 Pa. 534.
    The doctrine of ejusdem generis as set up by appellant does not apply: State v. Broderick, 7 Mo. App. 19; Chesapeake, etc., Ry. Co. v. Bank, 92 Va. 495; Henderson v. Ry. Co., 81 Mo. 605.
   Opinion by

Rice, P. J.,

The first section of the Act of May 4,1889, P. L. 87, entitled “An act relating to sales of provisions by description,” reads as follows: “In every sale of green, salted, pickled or smoked meats, lard and other articles of merchandise, used wholly or in part for food, said goods or merchandise shall correspond in kind and quality with the description given, either orally or in writing, by the vendor; and in every sale of such goods or. merchandise, unless the parties shall agree otherwise, there shall be an implied contract or undertaking that the goods or merchandise are sound and fit for household consumption.” This action grew out of a sale of eggs. It is argued that it was erroneous to affirm plaintiff’s first point, which was drawn in the language of the act, because the act offends against sec. 3, article III of the constitution.

It cannot be successfully asserted that the title of an act which shows that the subject of legislation is “sales of provisions by description” is defective because it does not specify the several articles of merchandise, commonly understood as being comprehended within the term “provisions,” to which the act relates. Nor can it be asserted that eggs are not comprehended in the term “provisions,” as that term is commonly understood when spoken of as the subject of sale. See Commonwealth v. Caldwell, 190 Mass. 355. We think it clear, therefore, that the doctrine of Commonwealth v. Kebort, 212 Pa. 289, cannot be applied to this act.

But it is contended that prior to the passage of this act there was no implied warranty of soundness or wholesomeness arising upon a sale of food products to a middleman, who buys not for consumption but for the purpose of sale to others, and that the title of the act is defective because it does not give notice that such additional contractual liability is imposed on the vendor. It is true there is a class of cases in which it has been held that when there is nothing in the words of the title, or in the nature of the subject of legislation as expressed in the title, to indicate that the powers, duties or obligations of counties will be affected by the legislation, a provision imposing an entirely new duty, obligation or liability on counties, in respect of a subject, or branch of a general subject, which was not before a county affair, will not be sustained. Road in Phœnixville, 109 Pa. 44; Quinn v. Cumberland County, 162 Pa. 55; Pierie v. Philadelphia, 139 Pa. 573; Dailey v. Potter County, 203 Pa. 593; Bennett v. Sullivan County, 29 Pa. Superior Ct. 120, are some of the cases of that class. In neither of the last two cases, however, is the correctness of the decision in Hays v. Cumberland County, 5 Pa. Superior Ct. 159, affirmed by the Supreme Court in 186 Pa. 109, questioned; and yet in the act there sustained the title, “An act to define and suppress vagrancy,” was held sufficient to support a provision imposing upon counties liability for the costs incurred in the arrest and commitment of vagrants. So in the recent case of Commonwealth v. Darmska, 35 Pa. Superior Ct. 580, it was held that the title “An act to provide for the assignment of counsel in murder cases, and for the allowance of expenses and compensation in such cases” was sufficient to sustain the provision for the payment of the same by the county. In neither of these acts are counties mentioned in the title, or the fact set forth therein that a liability,is imposed on them; the decisions sustaining them are, nevertheless, reconcilable with the cases of the other class upon the ground that the nature of the subjects of legislation, as expressed in the titles, is such as to indicate that counties are affected by the legislation. To illustrate what is meant by this suggested distinction between the two classes of cases, I refer to the act of May 11,1874, the title of which is “Relating to payment of costs in cases of felonies.” As the subject expressed in the title is one in which counties were directly interested before— broadly speaking, a county affair — it is scarcely supposable that anyone would contend that the provisions affecting the liability of counties are unconstitutional because neither counties nor the substance of the provision are mentioned or set forth in the title. Many similar illustrations drawn from statutes under which we are acting every day might be given. But this distinction is very clearly pointed out in the opinion of Judge Porter in Bennett v. Sullivan County, 29 Pa. Superior Ct. 120, and of Judge Henderson in Commonwealth v. Darmska, and need not be further enlarged upon here.

Passing these classes of cases, the first of which is recognized as exceptional (Allentown v. Wagner, 214 Pa. 210) and looking at the question now before us in the light of principles established by a host of authorities, we are unable to assent to the general proposition, towards which the appellant's argument logically tends, that if new duties, obligations or liabilities are directly imposed by, or arise out of, a legislative enactment, the title must specifically and expressly show it, or at least indicate what changes in the law, in those particulars, will occur when the statute goes into operation. If this were the general rule, very many acts that have been declared constitutional could not have stood the test, and very many more, the validity of which has never been questioned, would be void and of no effect. Fortunately, the constitutional provision, which was adopted for a wise purpose, has been made effectual for the accomplishment of that purpose without putting a construction upon it which would impede proper legislation. In a leading case upon the subject it was said: “The purpose of the amendment is to prevent a number of different and unconnected subjects from being gathered into one act, and thus to prevent unwise or injurious legislation by a combination of interests. Another purpose was to give information to the members or others interested, by the title of the bill, of the contemplated legislation; and thereby to prevent the passage of unknown and alien subjects, which might be coiled up in the folds of the bill. The amendment was found necessary to correct the evils of unwise, improvident and corrupt legislation, and therefore is to receive an interpretation to effectuate its true purpose. It would not do to require the title to be a complete index to the contents of the bill, for this would make legislation too difficult, and bring it into constant danger of being declared void. But on the other hand the title should be so certain as not to mislead:” Dorsey’s Appeal, 72 Pa. 192. Two years later the court said: “The course of decision in this court has been intended to carry out the true intent of the amendment of 1864, as to the title and subject of bills, instead of resorting to sharp criticism, which must often bring legislation to nought. The amendment of 1864 was in substance proposed in the constitutional convention of 1837-38, and rejected because it was feared it would render legislation too difficult and uncertain and lead to litigation. It will not do, therefore, to impale the legislation of the state upon the sharp points of criticism', but we must give each title, as it comes before us, a reasonable interpretation, ut res magis valeat quam pereat. If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents, as has often been said. But on the other hand it should not mislead or tend to avert inquiry into the contents, as was held in the case of the Union Passenger Railway Co., decided at Philadelphia in 1873:” Allegheny County Home’s Appeal, 77 Pa. 77. It is not worth while to attempt a restatement of the principle. In all of the cases that have arisen since, including Commonwealth v. Darmska, supra, and Commonwealth v. Broad Street Rapid Transit Street Railway Co., 219 Pa. 11, the latest reported cases in the Supreme Court and in this court upon the subject, this construction of the constitutional amendment of 1864 has been recognized uniformly, and very often in the words above quoted, as the proper construction of sec. 3, article III of our present constitution. We will not prolong this opinion by a citation of any of this long line of cases, excepting some of those in which titles in the very form of the title under consideration here have been held sufficient. In Dorsey’s Appeal, 72 Pa. 192, the title was “An act relating to the liens of mechanics, material men and laborers upon leasehold estates and property thereon in the county of Venango.” The objection that freehold estates were not within the title of the act, and therefore the sixth section, under which the claims in suit were filed, was unconstitutional, was sustained. But in the discussion of the case Justice Agnew, who delivered the opinion of the Supreme Court, said: “The word ‘subject’ has a large signification, often embracing different kinds, different classes, and various modes, all belonging to the general subject. The word ‘ estates ’ is itself an example, embracing fees, fee tails, estates for life, and estates for years, commonly called leaseholds. Had the qualifying term ‘leaseholds ’ been omitted in this title, all the various kinds of estates of freehold would have been comprehended within the title, and the sale of a freehold interest under the lien would have been good. Mere generality of meaning in the title ought not to avoid a law. For instance, the title, ‘An act relating to executions,’ is quite general as an expression of the subject of the act; yet no one would doubt the power of the legislature, under this title, to provide for the various kinds of executions generally comprised within the term execution; as, for example, writs of fieri facias, liberari facias, levari facias, venditioni ex-ponas, etc. So an act relating to actions might include covenant case, debt, etc. But a restriction in a title, which tends to mislead, stands on a different footing.” In Beckert v. City of Allegheny, 85 Pa. 191, and Dewhurst v. City of Allegheny, 95 Pa. 437, the title considered was “An act relating to grading, paving, curbing and otherwise improving Troy Hill Road in the City of Allegheny.” It was held that so much of the act as provided for assessment of part of the cost of the work upon property in Reserve township was unconstitutional; but assessments upon property in the city of Allegheny were sustained. In In Re Airy Street, 113 Pa. 281, the title was, “An act relating to streets in the several boroughs of Montgomery county.” The question of the sufficiency of the title was raised and while it is, perhaps, not justifiable to say that the court declared it to be sufficient, it is justifiable to say that the court did not declare it wholly insufficient. In Commonwealth v. Lloyd, 2 Pa. Superior Ct. 6, affirmed by the Supreme Court in 178 Pa. 108, the title, “An act relating to the county commissioners of Cambria county,” was considered, and in an elaborate opinion by Judge Willard, in which all the earlier cases are reviewed, was held to be sufficient. In Kelley v. Mayberry Township, 154 Pa. 440, it was held that the Act of June 11, 1879, P. L. 126, entitled “An act relative to actions brought by husband and wife or by the wife alone for her separate property, in cases of desertion,” does not offend against either clause of the constitutional provision. In Gœbeler v. Wilhelm, 17 Pa. Superior Ct. 432, it was held that a clause in the act of 1897 forbidding the giving of punitive damages was constitutional, and was cognate to the subject expressed in the title which was “An act relating to libel and its punishment.” ' In Commonwealth v. Mintz, 19 Pa. Superior Ct. 283, the title “An act relating to keepers of junk shops, and second hand dealers, in cities of this commonwealth,” was held sufficient to sustain legislation which imposed new duties, obligations and liabilities upon such persons. In Baltimore Brick Co. v. Coyle, 18 Pa. Superior Ct. 186, we based the decision, in part, upon the Act of April 13, 1887, P. L. 21, entitled “An act relative to sales by sample,” but without discussing the constitutionality of the act, as that question was not raised. While we are on this subject, it will not be out of place to notice that there are more than a dozen acts, some of them very familiar, in the pamphlet laws of 1874, the titles of which are in the precise form of the title under consideration. And an examination of the pamphlet laws of other years shows that it is a very common form of title, and suggests how far-reaching would be a decision that by reason of its vagueness it is never permissible. We do not say that such a title is always sufficient, but we do say that the title in question is as clearly so as any that is referred to in the cases last cited. It is not deceptive nor misleading, and the provisions of the act all relate, and are cognate, to the one general subject expressed therein. While the title does not convey to the reader knowledge of the changes in the law of sales that the act makes, or of the duties, obligations and liabilities it imposes on the vendor, or of the incidents or consequences of a sale of provisions by description it creates, it is sufficient to put legislators and others interested in the subject upon inquiry as to those matters. We conclude that the act under consideration is free from constitutional objection.

The next inquiry suggested by the arguments of counsel is as to the scope of the act. Does it include sales of eggs? If the words were “every sale of green, salted, pickled or smoked meats, lard and other articles of merchandise,” without more to indicate the subjects of sale intended to be covered, there would be propriety in applying the general principle of construction, that when certain things are enumerated, and then a phrase is used which might be construed to include other things, it is generally confined to things ejusdem generis. Indeed, there would be a necessity to resort to this principle in order to avoid giving the act a wider scope than the title indicates; and, it is to be borne in mind, a construction which would make an act unconstitutional, wholly or in part, is to be avoided if possible. But in applying this principle of construction, and in determining what things are ejusdem generis, regard must be had to the general subject to which the act relates. Things which plainly belong to the same class when one subject is being considered might belong to an entirely different class when considered with reference to another subject. The rule would be absurd if under the head “other” no thing can be included in the construction of the act which is not exactly the same in every particular as the thing specified. Nor has it been so applied. For example, in Renick v. Boyd, 99 Pa. 555, the act relating to the action of replevin “to recover timber, lumber, coal or other property severed from the realty,” was held not to include growing crops. But in the same connection it was declared by the court that slate, marble, iron ore, zinc ore, and all other forms of minerals and ores in place, building stone and fixtures and machinery of every description which have been permanently affixed to the realty would be covered. “ To all of these the expression ' other property ’ in the act, may well be applied.” See also Hilton’s Appeal, 116 Pa. 351, as to the application of the rule in the construction of remedial legislation. Moreover, it has been held upon sound reason that when the particular word or words exhaust a whole genus the general term will not be regarded as surplusage but will be construed to refer to a larger class. This must be so, if regard be had to the rule, which is more imperative than the rule ejusdem generis, that a statute is to be considered as a whole, so that, if possible, effect will be given to every part of it. Here the subject to which the act relates, as shown by the body of it, as well as by its title, is the sale of provisions by description, and considering the specific words “meats” and “lard” as furnishing a sample of the kind of provisions referred to, the words “other articles of merchandise,” upon the proper application of the rule ejusdem generis, would be confined to such provisions as are “used wholly or in part for food,” and this would include eggs. We take it, therefore, that if the last quoted words had not been added in the statute, the words “other articles of merchandise” would have included eggs, because, having regard to the subject of legislation, they are of the same kind of things that are specifically mentioned. At any rate, by adding the words “used wholly or in part for food,” the legislature set up the standard of similarity to the things specifically mentioned to which the other articles of merchandise must conform; and no principle of construction requires us to impose any other test, except that the articles of merchandise come up to this standard, and, in addition be such as are comprehended within the term provisions, as that term is commonly understood when used in such connection as this. It follows that sales of eggs by description are within the scope of the act.

Complaint is made because the court affirmed the plaintiff’s first point without instructing the jury, in that connection, as to the time when the articles must correspond with the description, and be sound and fit for household consumption in order to fulfill the implied contract or undertaking created by the statute. As already stated, the point was drawn in the language of the act and embodied a legal principle directly applicable to the case. Therefore the affirmance of it was not erroneous. If in view of the special facts of the case and the mode of trial more definite instructions as to the question of time were deemed necessary by the defendant’s counsel, it seems reasonable to suppose that specific request therefor would have been made. In Burkholder v. Stahl, 58 Pa. 371, it was declared to be a general rule, which ought never to be departed from excepting in very flagrant omissions by the court plainly operating positively to mislead the jury, that error cannot be assigned of what was not said by the trial judge without request so to charge. This rule has been recognized and applied in numerous cases, down as late as Tucker v. American Car & Foundry Co., 218 Pa. 323. In Kaufman v. Pittsburg, Carnegie and Western R. R. Co., 210 Pa. 440, there is a very pertinent illustration of the proper application of the rule, because there, as here, the complaint was that the court failed to make certain additional statements in connection with the answers to points, which statements the other party had not requested should be made. The complaint was not sustained' by the Supreme Court. We need not cite other cases upon a matter of practice that is so well settled. It is enough to say, after examination of the charge as a- whole and consideration of the nature of the actual controversy between these parties as shown by the evidence, that this case is not within any recognized exception to the general rule.

The third and fourth assignments of error are based upon the trial judge’s refusal to affirm defendant’s first point. The effect of affirming this point would have been to instruct the jury that if they found that the eggs were purchased outright, and that no arrangement was made at the time of the execution of the contract for the return of any of the eggs should they become moldy or unmerchantable, then, even though at the time of the sale the eggs were not sound and fit for household consumption, no promise that the defendant subsequently gave “to help Weiss out of his loss” was binding on the defendant, because such promise was without consideration. If one of the promises intended to be covered by the point was that which the plaintiff testified was made the day after the bargaining for the eggs, it should be considered in connection with his testimony to the effect that he had agreed to take the eggs upon condition, to which the defendant’s representative assented, “that they (the cases) have got to be opened, every one of them, and examined before they go into cold storage — ■ they have got to be good,” and that defendant put them in cold storage the next morning without giving the opportunity for the examination that was agreed upon. As to the promises alleged to have been made immediately after they were placed in cold storage the plaintiff testified as follows: “I says, ‘Mr. Collins, are you ready for these eggs to be examined and opened?’ He says, ‘They are all in cold storage.’ I says, ‘Collins, did you examine them, or how did you get them without me?’ He says, ‘It is none of your business; I will guarantee the eggs; in case you find the eggs to be mouldy, we will take those back. We want to do business with you.’ I says, ‘All right, Mr. Collins.’ ” There is a conflict of testimony as to both of these matters. But if the plaintiff’s testimony in both particulars be credited, which was for the jury, we think it needs no argument to show that the judge’s answer to the point was correct. Assuming, however, that this was not the promise referred to in the point, is it true that no promise that was made subsequently was supported by a consideration? For example, the defendant’s salesman, Collins, testified as follows: “About the sixth of December, the middle of December, something like that, he began to take some eggs out, and he brought back two or three cases of moldies at a time, and I told him I could not do anything with them, but I would sell them and get all I could out of them and try to help him out the very best I could. So he says, 'All right, go ahead; maybe you can get more for them than I can.’ I says, 'I don’t know whether I can or not, but I will try to help you out what little I can on these under grade eggs’ — that is, the dirties.” Surely it cannot be claimed that this promise, so far as it related to eggs that were returned to the defendant pursuant to this agreement, did not bind the defendant to “help out” the plaintiff to the extent promised. A very slight consideration, provided it be valuable and free from fraud, will support a contract. It is thus seen, without going further into the evidence, that the point submitted by the defendant was too broad, since it covered any and every promise “to help out” the plaintiff that may have been made after the sale was consummated as stated in the point. It is questionable also whether the point ought not to have been refused because it left out of view the implied contract created by the statute. But we need not consider that question, because even if it be conceded that the defendant’s obligation to make good the loss consequent upon a breach of that implied contract would not, of itself, be a sufficient consideration for a new promise to the same effect, the point was objectionable upon the ground above stated.

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


source: Caselaw Access Project

license: Public Domain

text:
    Stetson v. Sun Company, Appellant.

      Contract — Option—Broker—Ship broker — Statement of claim — Affidavit of defense.

    In an action by a ship broker against a corporation to recover $500 for securing an option on a tug, it appeared that the defendant’s president wrote to plaintiff in reference to the tug that he had not obtained sufficient knowledge of the tug to justify the company purchasing her. He continued: “Please ask your principals to make a proposition to us to make two trips towing” a certain schooner named, between points designated. The letter contained terms for the charter party, and concluded as follows: “I would like the refusal of this tug to stand while she makes these two trips.” On the following day the defendant again wrote to plaintiff as follows: “If you can obtain for me an option to buy the tugboat (naming her) at thirty thousand dollars at the end of two trips which she may make, carrying the schooner, I will pay you five hundred dollars for the option; said five hundred dollars to apply on the purchase of the vessel, if I take her; terms of the charter party to be mutually agreed upon.” The plaintiff secured the option, and prepared a charter party for the two trips which was satisfactory to the owners of the tug, but which the defendant refused to sign because it contained some matters not satisfactory to it. The defendant filed an affidavit of defense denying liability to the plaintiff in the sum of $5C0, and setting up certain statements made by plaintiff as to the' capacity of the tug, and averring that they were not correct, but not averring that plaintiff knew that they were not correct. Held, (1) that the defendant was liable to the plaintiff for 1500 for securing the option, inasmuch as the contract did not require the plaintiff to procure from the owners as a condition precedent to his right to demand the promised compensation, a charter party, the terms of which the defendant would assent to, and did in fact assent to; and (2) that the averments as to the misrepresentations were too vague to prevent judgment.
    Argued Oct. 23, 1907.
    Appeal, No. 89, Oct. T., 1907, by defendant, from order of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 2,538, making absolute rule for judgment for want of a sufficient affidavit of defense in case of James N. Stetson, trading as James N. Stetson Son & Company, v. Sun Co.
    Before Rice, P. J., Henderson, Morrison, Orlady and Beaver, JJ.
    Affirmed.
    Assumpsit to recover on a contract to secure an option.
    The opinion of the Superior Court states the case.

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

      R. Stuart Smith, with him Charles E. Morgan, for appellant. —
    Assuming that the plaintiff is entitled to sue upon the contract, the obtaining of an agreement of the North America Wrecking Company to charter the tugboat to the defendant for two trips on terms to be mutually agreed upon, was of the essence of the contract; the plaintiff cannot recover unless he avers and proves that he submitted to the defendant for execution a charter party embodying such terms; and the affidavit of defense is sufficient in that it sets forth that the charter party submitted to the defendant for execution contained terms not mutually agreed upon and not in accordance with the defendant’s letters of July 23 and 24: Wright v. Smyth, 4 W. & S. 527; McCrelish v. Churchman, 4 Rawle, 26; Shaw v. Turnpike Co., 2 P. & W. 454; Martin v. Schoenberger, 8 W. & S. 367; Schilling v. Durst, 42 Pa. 126; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Caughey v. Parker, 26 Pa. Superior Ct. 289; Kelley Brick Co. v. Clay Product Supply Co., 32 Pa. Superior Ct. 408.
    July 15, 1908:
    The defendant’s agreement is to pay $500 to the North America Wrecking Company, the owner, for an option to pur-, chase the vessel; there is no agreement to pay $500 to Stetson, the broker, for obtaining the option.

      Francis S. Laws, with him- John F. Lewis, for appellee.—
    If the broker procures a person with whom a bargain is made upon any terms, he is entitled to his commission, unless there is something special in-the contract of employment, or the circumstances of the case, to preclude him: Keys v. Johnson, 68 Pa. 42; Clendenon v. Pancoast, 75 Pa. 213; Reed v. Reed, 82 Pa. 420; Taylor v. Folz, 24 Pa. Superior Ct. 1.
   Opinion by

Rice, P. J.,

The plaintiff was a ship and merchandise broker and part of his business was chartering, buying and selling vessels, and procuring options to buy and sell the same. The defendant was a corporation engaged amongst other enterprises in the business of transporting oil, and as such employed vessels of various kinds in such transportation. In July, 1906, it was desirous of procuring the services of a certain tugboat owned by the North American Wrecking Company for the purpose of having her to tow the schooner “ Thomas W. Lawson ” upon two trips to Sabine Pass and return. On July 23, 1906, the defendant’s president wrote to the plaintiff as follows: “Your favor of July 23d at hand. I find it impracticable to get a sufficient knowledge of this tug ‘North America’ to justify our purchasing her. Please ask your principals to make a proposition to us to make two trips towing the ‘Thomas W. Lawson’ from Newport News to Sabine Pass, returning to Marcus Hook. We to furnish the coal, the tug to furnish its own crew and supplies and all other expenses pertaining to the trip. The Schooner ‘Thomas W. Lawson’ is required to use her sails to the best advantage in assisting the movement of the vessel. It is estimated that she can make the trip going and coming, each not to exceed ten days. We will guarantee that the entire time of waiting by the schooner for her to load and unload shall not exceed ten days per round trip. These two trips ought to prove whether or not the tug ‘North America’ is capable of towing'the Schooner ‘Thomas W. Lawson.’ She will go down with only water ballast and return with about 8,000 tons of oil aboard. Her second trip will be from Marcus Hook to Sabine Pass and return. I would like the refusal of this tug to stand while she makes these two trips.”

It is to be inferred from the foregoing letter that the defendant’s president had received one from the plaintiff on the same date, but as it is not set forth in the plaintiff’s statement of claim or in the affidavit of defense we assume that knowledge of its contents is not essential to a determination of the questions arising upon this appeal.

The following day the defendant’s president wrote to the plaintiff a second letter which reads: “In addition to the letter sent you on July 23d, if you can obtain for me an option to buy the tugboat ‘North America’ at $30,000, at the end of two trips which she may make, carrying the ‘Lawson’ to Sabine Pass and return, I will pay you $500 for the option. Said $500 to apply on the purchase of the vessel if I take her. The charter party to be made as per my letter. The demurrage, in case the ship should be delayed loading or unloading more than ten days, to be paid at the rate of $100 per day. The total charge for the round trip for towing to be $3,000; coal and oil to be furnished by the Sun Company. Terms of the charter party to be mutually agreed upon.”

It is averred in the statement and,mot specifically denied in the affidavit of defense, that 'the plaintiff .accepted the offer, and on July 30, 1906, obtained for the defendant from the owner of the tug an option to purchase the tug for $30,000, and the owner’s agreement to the charter of the tug to the defendant for towage service upon the two trips above referred to. On the same day the plaintiff wrote to the defendant as follows: “Referring to your favor of July 24th will say, we have submitted same to the North America Wrecking Company, and they accepted your terms for charter of tug ‘ North America’ for two trips, with the further provision that you pay $500 option to purchase the tug for $30,000, terms of charter party to be mutually agreed upon. We will prepare charter and submit it to them to-morrow for their approval, and we will send it to you for your signature.”

1. One of the questions presented for decision is thus stated by the appellant’s counsel: “Does the plaintiff’s statement of claim” (in which the above mentioned facts are averred and the letters are set out at length) “ disclose any agreement by the defendant to pay $500 to the plaintiff for obtaining from the owner an option to purchase the vessels?” It is an admitted fact that the business of the plaintiff was that of a ship and merchandise broker, and the defendant’s letter of July 24 shows that the latter dealt with him as such, and not as the mere representative of the owner of the tug. And, it must be borne in mind, it is not averred in the affidavit of defense that the defendant dealt with the plaintiff in any other capacity, or that the latter was in fact the mere agent of the owner in the transaction. It is true, the defendant’s letter of the 23d speaks of a proposal which the defendant desired the plaintiff, to “ask your principals” — inferably meaning the owner of the tug — to make, but that does not take the place of an averment in the affidavit of defense that the plaintiff was the agent of the owner and that the defendant dealt with him as such throughout the whole transaction. Having in the letter of the 23d requested the plaintiff to ask the owner to make a “proposal,” the defendant, on the 24th, made to the plaintiff the additional offer, which, for aught that is alleged as to the relation between him and the owner, he had a per-feet legal and moral right to accept, to pay him a certain sum if he would obtain for the defendant from the owner a certain option. The words of the offer, “if you can obtain for me an option to buy the tugboat ‘ North America ’ at $30,000, at the end of the two trips which she may make, carrying the Lawson to Sabine Pass and return, I will pay you $500 for the option,” would leave no room for doubt, if they stood alone, that the plaintiff was the person who was to render the service, or that he was the person to whom the compensation therefor was to be paid. Nor do the words of the succeeding sentence, “said $500 to apply on the purchase of the vessel if I take her,” so qualify the words of the offer as to convert the explicit and unconditional promise to pay the plaintiff upon performance by him into a conditional promise to pay if the defendant should buy the tug. The more natural and reasonable construction of the Words last quoted is to consider them as relating to the proposed contract between the defendant and the owner, rather than - as creating a condition upon which the plaintiff’s right to compensation should depend, even though he should fully perform his part of the contract. They may be harmonized with the plain words of the offer, as well as with the less plainly worded expressions of the plaintiff’s letter, by construing them to mean that the defendant should have the right, under the option which the plaintiff was to procure, to apply the sum paid for procuring it upon the purchase price of $30,000 in the event of the purchase being made. By this construction full effect is given to all the words of the offer and acceptance, whereas, if we adopt the construction contended for by the appellant, we must substitute for the words, “I will pay you $500 for the option,” the words, “I will pay the owner $500 for the option.” When it is considered that the writer of the offer evidently knew well how to express his meaning, that the offer was made to a broker, whose business was to negotiate bétween parties regarding such matters for compensation, that he was to “obtain” something for the defendant, and that the only consideration expressed for the rendering of that service was the promise to pay $500, it is reasonably certain that a construction in accordance with the ordinary meaning of the words will be more likely to carry out the intention of the parties than the construction contended for by the appellant. In arriving at this conclusion we have not overlooked any of the extrinsic circumstances to which our attention has been called in the able brief of appellant’s counsel, which ought to be considered in the construction of the papers. We hold, therefore, that the averments of the statement of claim show a contract between the plaintiff and the defendant upon which the plaintiff was entitled to recover upon proof of performance on his part, and that no material and relevant facts, which, if proved, would justify a conclusion that the contract was not between the plaintiff and the defendant, but between the defendant and the owner, are averred in the affidavit of defense.

2. Next in logical order is the question of performance. It is averred by the plaintiff and not denied by the defendant that a charter party was prepared and submitted to the defendant for execution; also, that the defendant refused to execute it, to accept the tug for towage service, to purchase the tug for $30,000, and to pay the $500 claimed by the plaintiff for procuring the option. One reason assigned in the affidavit of defense for this refusal is that the charter party contained terms as to the time the tug was to report at Newport News, and as to the payment for the services in advance, which, it is claimed, were not in accordance with the suggestions in the defendant’s letters of July 23d and 24th. But as these terms were not in conflict with anything specifically mentioned in those letters or the letter of the plaintiff, and as the letters of both parties show that all of the terms of the charter party were not specifically mentioned, and that some of them were left “to be mutually agreed upon” in the future by the owner and the charterer, the submission of a charter party for the defendant’s execution which contained terms not mentioned in the correspondence was not a departure from the contract created by the plaintiff’s acceptance of the defendant’s offer. Did that contract require the plaintiff to procure from the owner of the tug, as a condition precedent to his right to demand the promised compensation, a charter party to the terms of which the defendant would assent and did in fact assent? We are of opinion that it did not. Recurring again to the words of the accepted offer it is seen that what the plaintiff expressly undertook to do was to obtain from the owner for the defendant “an option to buy the tugboat 'North America’ at $30,000 at the end of two trips which she may make, carrying the Lawson to Sabine Pass and return.” It may be conceded for present -purposes that, impliedly, he also undertook to obtain the owner’s agreement to charter the vessel to the defendant for the two trips, upon the terms specifically mentioned in the correspondence and such others as should “be mutually agreed upon” by the owner and the defendant. This was all that he was employed to do, or authorized to do. The defendant saw fit to limit his authority to the extent of leaving open.for subsequent negotiation the full terms of the charter party. The plaintiff having obtained the option for purchase he undertook to obtain, and having proceeded as far as he undertook and was authorized to go in the negotiation for a charter party, the fact that the charter party subsequently tendered by the owner, pursuant to the plaintiff’s negotiations, contained terms that the defendant would not agree to, and that in consequence the two trips were not made and the option was not exercised, neither taken singly nor together constitute a defense. It may be, if the plaintiff had been employed to procure a sale of the tug to the defendant, at the end of the two trips, and a chatter party upon certain specified terms for the service of the tug upon those trips, that he would not be entitled to the stipulated compensation, nor any part of it, if he failed in either particular. Speaking of the proposition that the ordinary commissions of a broker for the sale of real estate are not due until the sale is effected, unless the sale is prevented by the wrongful refusal of the vendor to convey, the late Judge Hare said: “There is, however, nothing in this to prevent the employment of an agent under a special contract and on any terms that the parties may choose to fix; and if the person so selected performs the duty for which he was engaged, he will be entitled to his wages as in the case of any other service:” Longstreth v. Long, 6 Phila. 179. This is a clear statement of the principle, which, we think, governs the present case.

3. It was alleged in the affidavit of defense (1) that, before the letters of July 23d and 24th were written, the plaintiff represented to the defendant that the tugboat was of ample capacity, strength and efficiency to tow the schooner Thomas W. Lawson ” on the two trips mentioned in the correspondence in not to exceed ten days from one of the specified points to the other; (2) that the defendant relied upon and was induced by these representations to negotiate for the option and the charter party; (3) that before the charter party was submitted the defendant “ascertained by reports of competent experts who thoroughly examined said tug, that she was too small and wholly unfit and of insufficient power and capacity to tow the said vessel, 'Thomas W-. Lawson,’ to Sabine Pass in ten days or to return from Sabine- Pass to Marcus Hook in ten days;” (4) that the defendant would prove in the trial that these representations “were incorrect and untrue in the particulars above set forth.” As there was no representation and no contract as to what the opinions or reports of experts as to the capacity of the vessel would be, it is apparent that the mere fact that experts made reports to the defendant which were in conflict with the plaintiff’s representations would not constitute a defense, and unless coupled with facts not now appearing, such reports would not be admissible on the trial. As to the “other allegation that the representations were “incorrect and untrue,” we remark that the defendant was careful, apparently, not to aver that the plaintiff knew the representations to be incorrect and untrue, or that he ought to have known it, or that there were circumstances, stating them, from which it could be presumed that he knew it, or that the defendant did not have the same knowledge or means of knowledge that the plaintiff had. There is. nothing to show with any degree of certainty that the so-called representations were more than the expression of an opinion, honestly entertained by the plaintiff, as to the ability of the tug to tow the schooner on the two trips. That the defendant did not rely upon the representation as the assertion of an actual fact, but rather as the expression of an opinion, is to some extent evidenced by its letter of July 25, written after the representations are alleged to have been made, in which its president says: “I find it impracticable to get a sufficient knowledge of the tug ' North America’ to justify our purchasing her,” and again, “These two trips ought to prove whether or not the tug 'North America’ is capable of towing the schooner 'Thomas W. Lawson.’ ” Viewing the averments in connection with the correspondence and with relation to the subject-matter — which after all was a matter of opinion — and considering the significant omissions therefrom to which we have alluded, we conclude that they were insufficient to prevent judgment. We might well have declined to discuss this feature of the affidavit of defense because it is not mentioned in the statement of the questions involved nor in the appellant’s brief of argument. Moreover, upon the oral argument counsel, while not abandoning this part of the defense, conceded that the affidavit as to misrepresentation was not strong and that they relied more particularly upon their contention as to the insufficiency of the statement.

The judgment is affirmed.


text:
    Brouse v. Oliger, Appellant.

      Appeals — Assignments of error — Evidence.
    When error is assigned to the admission of evidence the specification must quote the testimony or evidence admitted, if any.

      Husband and wife — Necessaries—Contract of wife — Evidence.
    While the fact that the premises occupied by husband and wife, to which articles of food and other domestic supplies are furnished, are owned by the wife, does not determine the question of her liability for the price, it is nevertheless a relevant fact to be considered in connection with other evidence tending to show a personal undertaking on her part.
    In an action against a wife to charge her personally with necessaries, the case is for the jury, where the evidence produced by the plaintiff consists not only of testimony that the wife was present on the occasion of the purchase and picked out the goods, but of testimony as to her declarations and subsequent acts, and as to the circumstances of the parties from which it could be inferred that she was acting in her own right, and intended to bind herself in making the purchase, and the plaintiff delivered the goods upon that understanding.
    No recovery can be had against the wife in such an action where the evidence is undisputed that the husband alone was present when the goods were bought, and there is no evidence that they were ordered by the wife, nor evidence to overcome the prima facia presumption that the husband bought the goods in the performance of his duty to maintain the family, and upon his own credit.
    Argued Oct. 28, 1907.
    Appeal, No. 252, Oct. T., 1906, by-defendant, from judgment of C. P. Centre Co., Aug. T., 1906, No. 183, on verdict for plaintiff in case of R. S. Brouse v. J. H. Oliger and Margery S. Oliger, his wife.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Modified and affirmed.
    Appeal from judgment of justice of the peace. Before Orvis, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [If you find from the evidence in this case that there was such a contract, that Mrs. Oliger acknowledged that there was such a contract, then you would have the right to find for the plaintiff for the amount in controversy, or for those items which you find in the evidence that Mrs. Oliger purchased upon her own exclusive credit, whether for all of these items or just the last ones, or of the last date is for your determination. As you find that one essential fact so should be your verdict.] [3]
    Defendant presented these points:
    4. That there being no evidence on the part of the plaintiff but the testimony of Harry Gehret that Mrs. Oliger said on July 27, 1904, when the last bill was purchased, and at which time she paid $5.00 in cash to the clerk, “ charge this to Mrs. J. H. Oliger,” that that declaration even if believed by the jury does not constitute an express' contract to charge the defendant, Mrs. Margery Oliger, and- the plaintiff cannot recovér. Answer: This we carinot affirm.- It does* not néc'essárily'constitute a contract. - A mere declaration made to a third "p’erson is not á contract. It is admitted', however, as'feom'é evidéhóe óf a contract.- The declarations óf either of'the allegéd1 parties to the contract to third' persons are in law admissible' as’ evidence of the admission of the contract,’and it was-in! this viéw we admitted them' as substantive-evidence for your-consid’erkfion. [4] . ' ■ . ’
    July 15, 1908:
    5. That under all the .evidence in"th'e cáúsé-'the plaihtiff is not entitled to'recovér and’the verdict’ mu'st’ be -for the’defendant. Answer: We cannot affirm-this point: 'We'have decided that this is a question of1 'fact fór ydti, 'gentlemen* of the jury, to' determine, under all the evidence and under bur general charge and' our answers' to these’ several points 'of defendants: [5] ’ ' ’■
    Verdict and judgment for plaintiff for $8.21. 'Defendant appealed. ’ ■’ ' ' V 1 'f -'V O

      Errors assigned among othérs were’ (3-5) aboVé iñst'ructibns, quoting them. '' ’’ ■ ' ■ ' “ ¡

      John O-, Love, for appellant:

      John Blanchard, with him W. Harrison Walker' and' Edmund Blanchard, for appellee. ' ■' ■’ ' > / >
   Opinion by

Rice, P. J.,

Judging from'the amount involved this is a-small cásé, and it would be entirely appropriate to quote the remarks made-by Mr. Justice Sterrett at the'outset of his opinion in Hensel v. Noble, 95 Pa. 345. But as they are’not essential to the décision of our case we content ourselves with this reference to them. In this action of assumpsit against J. H: Oliger and Mary' his wife, begun before a justice of the peace and brought into the common pleas by defendant’s kppeal from his judgment-,' the plaihtiff claimed to récover a balancé of $8.04 for food" and .other domestic supplies, alleged to have been contracted for and delivered to the wife upon her separate credit. The account was kept in the plaintiff’s books in the name of J. H. Oliger and wife and consisted of charges for purchases on June 14, amounting to $4.78, on July 13, amounting to $2.81, and on July 27, amounting to $5.04, and a credit on the last day of a payment of $5.00. The husband confessed judgment for the balance, but the wife, while not denying that the goods were delivered to the premises which she and her husband occupied, defended upon the ground that the goods were not contracted for by her. The learned trial judge in his general charge and by affirming the defendant’s first three points instructed the jury fully and clearly as to the law governing such an issue and as to what the plaintiff must prove in order to recover against the wife. Of these instructions no complaint is made. But he submitted to the jury to determine from the conflicting evidence, whether, applying the legal principles upon which he had fully and clearly instructed them, she had made herself liable for any or all of the goods. Of this she complains because, as argued by her counsel, there was no evidence of a personal undertaking on her part to be submitted to the jury. The jury found in favor of the plaintiff for the full amount claimed, and from the judgment on their verdict we have this appeal. There are five specifications of error. The first is dismissed because of noncompliance with the requirements of rule XVI that when error is assigned to the admission of evidence the specification must quote the testhnony or evidence admitted, if any. While the fact that the premises occupied by husband and wife, to which articles of food and other domestic supplies are furnished, are owned by the wife does not determine the question of her liability for the price, it is nevertheless a relevant fact to be considered in connection with other evidence tending to show a personal undertaking on her part. Therefore the second assignment is overruled. The fourth is overruled for the reason given by the learned trial judge in his answer to the point, and the fifth because the affirmance of the point therein quoted would have withdrawn from the jury the determination of disputes fairly raised by the conflicting evidence, as to controlling.facts. The only difficulty we have is as to that part of the instructions quoted in the third assignment, in which the jury were permitted to find against the wife as to all of the items or only as to the last two, as they might determine. The plaintiff’s evidence as to the last item was clear and express that she alone was present when the goods were bought and that she directed that they be charged to her. The evidence adduced by the plaintiff as to the second item, while not so clear, consisted not only of testimony that she was present on that occasion and picked out the goods, but of testimony as to her declarations and'subsequent acts, and as to the circumstances of the parties, from which it could be inferred that she was acting in her own right and intended to bind herself in making that purchase, and that the plaintiff delivered the goods upon that understanding. Therefore the question was for the jury. But as to the first item the evidence is undisputed that the husband alone was present when the goods were bought. There is no evidence that they were ordered by her or to overcome the prima facie presumption that he bought the goods in performance of his duty to maintain the family, and upon his own credit. Therefore, the instructions quoted in the third assignment, so far as they permitted a recovery from the wife for the first item, cannot be sustained. This result, however, does not require a retrial of the case. It may be corrected by reducing the amount of the recovery, under the- authority conferred upon this court by sec. 8 of the Act of June 24, 189$, P. L. 212.

The judgment is modified by reducing the amount from $8.21 to $3.16 as of November 29, 1906, and as thus modified, the judgment with interest from that date is affirmed with costs.


author: Porter, J.,

text:
    Scholl v. Emerich, Appellant.

      Canals — Condemnation of land —' Title — Easement — Abandonment —Revision.

    Where a canal, company condemns land under the Act of April 2, 1811, 5 Sm. L. 266, it acquires only an easement in the land for use of a canal, and when the canal is abandoned, the use and occupation of the land reverts to the owner 'of the fee.

      Deed — Boundary—Call for highway as boundary — Call for canal as boundary — Canal.
    When a deed calls for a highway as a boundary; unless a contrary intention clearly appears, the grantee takes title, as against the grantor, to-the middle of the highway,-but nothing more; and this is the rule in Pennsylvania, whether the grantor owns the fee. in, the entire highway, and nothing upon the other side, or whether the grantor, owns iand extending beyond the other side of the highway; and the same'rule applies where the highway called for ás a boúndary, is á canal. '
    Argued Nov. 15, 1906.
    Appeal, No. 157, Oct. T.,-1906, by defendants, from decree of C. P. Berks Co., ‘Equity Docket 1901, No1. 792, on bill in equity in case of George P. P. Scholl v. Levi Emerich et al.
    Before Rice, P. J.; Porter., -Henderson, Morrison, Orlady, Head and'Beaver, JJ.
    Reversed.
    : Bill in- equity for an injunction and for an account. Before Endlich, J. ■
    The facts appear by the opinion of the- Superior Court. •
    ' Error assigned was the decree of-the court, as set forth in the opinion'of-the Superior Court.'

      W. B. Bechtel, of Bechtel & Shatters, for appellants. —
    It-appears from the evidence that George Keiser was the successor in title of Michael Keiser, his father, who derived title from Stephen Kurtz to a larger tract containing about 120 acres, embracing the tract conveyed by Keiser to Ramsey. From the description it will appear that the Union Canal is called for in the deed as part of the northern boundary of the tract conveyed by Reiser to.Ramsey, .but nowhere in the deed is any .part of the canal bed embraced in the terms of the conveyance. Nor is there anything whatsoever in the deed or in the evidence adduced by. the plaintiff to show that it-was the intention of .Reiser at the time he conveyed to Ramsey to. pass title in the canal bed to Ramsey. The plaintiff by mesne conveyances acquired title, to the same tract. . It is, therefore, clear from an examination of the deeds offered- in evidence upon which .plaintiff founds his title- that, according to the calls for courses and distances,.for boundaries, for measurements, for superficial contents and for Visible monuments on the ground,.the land conveyed was, confined by the ex-, press terms of the .conveyance within .the limits fixed by the deeds offered in evidence and excluded -anything, beyond: Leonard v. White, 7 Mass. 6; Wright v. Chestnut Hill Iron Ore Co., 45 Pa. 475; Blaine v. Chambers, 1 S. & R. 169; Swartz v. Swartz, 4 Pa. 33; Pickering v. Stapler, 5 S. & R. 107.
    It is clear that the plaintiff cannot found his right to the canal bed upon any theory that the fee in it passed as appur-. tenant to the grant of the..land south of it, because it was. totally disconnected with his land and had no beneficial or necessary relation to it,, nor does the, rule in relation to easements or servitudes which-have been continuous: .-and apparent in. land of another apply, which, under a long line of cases in Pennsylvania, are declared to pass as appurtenant to land by deed or devise or other form of conveyance without being mentioned.
    If the plaintiff contend that, a canal is of the same character in the eyes of the law as a public street or road opened by authority of law; or dedicated to public use in a plot .or plan, as is, frequently .done in the case of laying out building, lots, which -is the equivalent .of ap opening by authority of law, or as a .spaall natural nonnavigable stream, so as to .carry title to the center of it by the mere mention, of it as a boundary, the-theory contended for that, upon the abandonment of the canal,, the whole of the land, formerly occupied by it, together with the towpath and works, would revert to the owner of the land-bounded by it on one side at the time of the adandonment, would not be tenable: Canal Trustees v. Haven, 11 Ill. 554; Lotz v. Iron Co., 10 Pa. C. C. Rep. 497; Banks v. Ogden, 69 U. S. 57; Brisbine v. R. R. Co., 23 Minn. Winslow, 10 Mass. 146; Lawson v. Mowry, 52 Wis. 219; Agawam Canal Co. v. Edwards, 36 Conn. 476; R. R. & Coal Co. v. Ingham, 36 Pa. 194;. Schenley v. Pittsburg, 104 Pa. 472.
    July 15, 1908:
    But a canal cannot be regarded as analagous in character to a public road or street or a small- stream: JesSup v. Loucks-, 55 Pa. 350.
    In England it has been recently held that the presumption of law that where a piece of land is conveyed which is bounded by a nonnavigable river or a public highway, the conveyance passes the moiety of the soil of the river' or highway, does not apply in the case of the canal: The Chamber Colliery Company, Limited, v. The Company of Proprietors of the Rochdale Canal, L. R. (1895) Appeal Cases, 564.

      Geo. W. Wagner, with him D. N. Schcejfer, for appellee.-—
    If the road is entirely upon the margin of grantor’s land, then in that case we claim that the grantor, by bounding his land-by said street, would convey, not merely to the center, but would convey the whole street: Johnson v. Arnold, 18 S. E. Repr. 370; In re Robbins, 24 N. W. Repr. 356; Wait v. May, 51 N. W. Repr. (Minn.) 471; Palmer v. Farrell, 129 Pa. 162; Pursell v. Stover, 110 Pa. 43; Stover v. Jack, 60 Pa. 339; Freeland v. Penna. R. R. Co.,. 197 Pa. 529;. Paul v. Carver, 26 Pa. 223.
   Opinion by

Porter, J.,

This litigation arises out of a dispute as to- the ownership of a strip of land formerly occupied by the abandoned Union Canal Company. The plaintiff filed this bill to restrain the defendants from tearing down and taking away the stone in a canal lock upon the land in dispute, the court- below issued a preliminary injunction, whereupon the defendants filed a bond conditioned that they indemnify the plaintiff for all the stone removed, in case upon final decree the title was adjudged to be in the plaintiff,. and the injunction was thereupon dissolved. The- cause proceeded to a final hearing and the cóúrt adjudged' the' tifié'to the land to be in the plaintiff, and fóünd as á fact-that the defendants' had removed stone to1 the Value of $1,360.75, • of which $1,313.50 worth was taken from the part of thé land north of the center line of the canal,' and $47.25 worth from that part south of said center line; and entered a- decree restraining, the defendants from further'removing any stone from the land, upon which the Union Cañal had been located,- and that the defendants pay to the plaintiff the sum of $1,360.75 as compensation for the stone removed by them. The defendants appeal and, among other things, assign for error the finding that the title to' the strip of land was in the plaintiff and the entry of the aforesaid decree.

The defendants asserted title to the' premises tinder a deed from Gordon Chambers, successor in title of the Union Cáñáí Company. The canal company had acquired the' right- of w&f over this property by condemnation proceedings under' áéé.-13 of the Act of April 2, 1811, 5 Sm. L. 266. The canal company did not under that proceeding acquire án estate i'n feé simple, but only an estate determinable upon the abandonment Of- the land for use as a canal, and the canal having been abandoned the' estate of the grantees of that company in this land must fail-':' Sholl v. Stump, 24 Pa. Superior Ct. 48; Jessup v. Loucks, 55 Pa. 350; Pittsburgh & Lake Erie Railroad Company v. Bruce, 102 Pa. 23. The Union Canal Company had a right of Way only, and that for a single' purpose, the construction and-maintenance of a canal, and when the canal Was' abandoned the úse and occupation of the land reverted to the oWner' Of the fee. The weakness of the primary contention' of the defendants, however, is not á sufficient foundation fot a décreéún favor of the plaintiff, -for thé- burden was' upon’ him to sh’oW title in himself.

There is no dispute as to the material facts in this- casé and they may be thus summarized from the findings5 by thé léárnéd judge Of the court below.- Georgé Keiáer' was’ the owner of a tract containing 120 acres' of land boúndéd on-thé north - by lands of Adam Kurtz. 'There- wáá - prior t‘0' 1823- and-' still' continúes to- bé' a public r'óad along that- part Of the line 'between the two farms next to the strip of land in controversy. The Union Canal Company, in 1823, condemned a right of ..way through the northern part of the land of Keiser, and constructed .thereon a canal, with its berme-bank and the entire canal immediately south of the public road, which road wag.the boundary between the lands of Keiser and the land of Kurtz to-the north: The right of way of the canal was south of-and immediately adjoining the public road. The canal was operated'upon this right of way for many years, but was finally abandoned, probably about 1885. The damages of Keiser for the right of way of the canal company were assessed under a proceeding in the court of quarter sessions of Berks county in 1827, and,the report was finally confirmed in 1835. The land thus taken.by the canal company contained two acres.and 102 perches-. The work done by the, company in constructing the. canal-.upon this right of way included the building of the sandstone lock, from which the defendants took, the stone, in question.

■While the canal was in operation, on April 14, 1838, George Keiser conveyed to Daniel Ramsey a part of this 120 acre tract of land,, “containing 93 acres and 88 perches of land, strict measure,” describing .the same by adjoiners, courses and dis- , tances and giving the “Union Canal” as part of the northern , boundary; that.part of the description here material being in the.following words and figures: “150 perches to a stone on the .Union Canal, thence by the-said canal north 78° west 24 perches to. a stone, thence north 84f° west 14 perches to a,stone- • south 85west 25XV perches to a stone, north 87west 24=-perches, to a stone, thence by lands of Adam Kurtz south 81° west-15^-. perches to a stone, corner of lands of Christopher Reed, thence by said lands,” etc. The title which Ramsey thus acquired has by sundry mesne conveyances become vested in this-plaintiff: The title of the plaintiff to the strip of land-in-. controversy, being the land upon which the right of way of the Union- Canal Company was located,...is entirely dependent, upqn the construction and effect of .this deed from Keiser to Ramsey. Did that deed vest in the grantee the fee in the land covered by the right of way of the canal, or any part thereof? If the effect of the call for the' canal as a boundary was .to extend the title of the grantee in the fee in the land coyered by any part of the right of way of the canal company, then how. far did the grant go? Did the grantee take title to the center of the canal, or clear over to the line of the Kurtz land, including the entire canal.and one-half of the public road on the other side?

The learned judge of the court below held that the case was analogous to that of a call for a street or a non-navigable river and must be given the same effect. He recognized the rule established by Paul v. Carver, 26 Pa. 223; Cox v. Freedley, 33 Pa. 124; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92; Fitzell v. Philadelphia, 211 Pa. 1, and the many other decisions of the courts of this state dealing with kindred questions, that, unless a contrary intent appears by express reservation or necessary implication, a grant of land bounded by a public highway, a non-navigable river, or an artificial ditch ordinarily carries title to the, middle of such highway, river or ditch,, if the grantor’s title extends so far. The learned judge, however, went very far beyond this rule, and held that the deed from Keiser to Ramsey vested in the. grantee the title in fee to the entire right of way of . the canal, not merely to the center line thereof.. He thus states his reasons for the conclusion reached. “These decisions,” referring to Paul v. Carver and kindred cases, “deal with cases where either the grantor was the owner of the land on both sides of the highway, or his title did not go beyond the middle of the same.” “They do not settle the question arising where the highway made the boundary of the grant is entirely upon the grantor’s land, but upon the margin of it, leaving him no land beyond. The decisions, therefore, cannot be understood as conflicting with the rule elsewhere laid down that grants such as last supposed carry title to the grantee not only to the middle, but all the way across to the farther side pf the highway:. Johnson v. Arnold, 91 Georgia, 659. Put. an examination of the authorities establishing the rises',.just stated shows that they are founded -in part upon Public; policy adverse to the retention by grantors of land abutting upon highways, and intended to be occupied thereby, of the soil underneath them ás distinct from the land granted,- and partly upon a presumption- of intent on the: part of the grantor justified by the inherent- improbability and actual unusualness of a purpose when parting with property so situated, to retain an interest in' a-narrow-strip of land unavailable while subject to its existing use and inaccessible, except perhaps' at its extremities, if that use should cease.' . . . After all,- the-rule laid down by the decisions — -a rule of property as’ well1 as of interpretation — is founded quite as' much upon public' policy as upon supposed intent."

We are unable to assent to the' conclusion of the learned judge of the court below for two reasons: (1) The rule as to the effect of a call for a highway as a boundary hás never, in Pennsylvania, been so far expanded as to' embrace the principle which it was in this case stretched to cover. (2) Even if the rule were as the learned judge held it to be, the'- conclusion at which he arrived utterly ignored- the fact, which he found Upon' sufficient evidence, that Keiser owned-the'fee in the-land upon both sides of the canal. There is'no fule of public policy recognized by any of the Pennsylvania easés which is antagonisticto. the- right of the owner of real estate' to- subdivide it in' any manner he sees fit, and selling, or retaining such lots- and strips of land as his fancy may suggest. All the cases recognize the right of a grantor to retain the fee in the bed of a street Or stream, while selling the adjoining la'nd. The rule that a caff for a highway as a boundary includes the fee to the middle thereof is based upon the ground that the street or' non-návigable stream is to be regarded- as a monument and the' grant go'es to the center of the’ monument, the middle of the street or stream. Chief Justice Lewis' said, in Paul v. Carver, 26 Pa. 223: “The general rulé is well established that where- a stream not navigable is called for in a deed as a boundary or monument, it is used as an entirety to the center' of it, and to- that extent the fee- passes. It would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the- title of the- gr'antee, in süch cases, to the' edge of the river'. So land bounded by an artificial ditch extends to the center of the ditch. So, where a street is called for as a boundary, the title passes to the center' of the street. ... If no other reason could be assigned in support of this rule of construction, the general understanding of the people, and the extensive and immemorial practice of claiming and acquiescing in such rights ought to have great weight.” He then referred to the inconvenience which in cities would result from the adoption of any other rule when a street was called for as a boundary, and concludes thus: “Influenced by these considerations the law has carried out the real intention of the parties by holding that the title passed to the center of the street subject to the right of passage. Where a street is called for as a boundary it is regarded as a single line. The thread of the road is the monument- or abuttal,” and cites Newhall v. Ireson, 62 Mass. 595. In the case • thus cited, Chief Justice Shaw said: “The road is a monument, the-thread of the road, in legal contemplation, is that monument or abuttal. . . .” Land may no doubt be “bounded by the side of a highway, but it must be done in clear and distinct- terms to control the ordinary presumption.” The deed construed in Cox v. Freedley, 33 Pa. 124, called for the side of a street as the boundary, and Mr. Justice Woodward, who spoke for the court, said: “ Deeds may expressly exclude the streets, but unless they do the implication is, from such terms as are found in this deed, that half the street is included. . . . Terms of description such as these, may be regarded, therefore, as having a technical meaning, and as importing a grant to the middle of the street, unless controlled by something else in the deed. There was no ambiguity on the face of the deed. The question raised was, what were the legal import and significance of the words employed by the parties?” It was said in Phinney v. Watts, 75 Mass. 269: “Though we cannot see any reason why the grantor should wish to exclude from his grant the very narrow strip of land between the brook and the edge of the water overflowing its banks — which would be worthless to him, while overflowed — yet this cannot be allowed to influence our judgment. The deed must be construed by the legal rules which are applicable to its terms.” In City of Boston v. Richardson, 95 Mass. 146, it was held that a deed bounding land generally by,- a highway, with no restricting or controlling words, conveys the grantor’s title in the land to the middle of the-highway, and we find in the opinion of Judge Gray in that case this, comprehensive statement of the rule: “The general rule of construction may.be thus stated; whenever land is de- ■ scribed as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title.in the land of which it has been made a part, as. a house, a mill, a wharf, or the like, the side of the land or structure referred to as a boundary is the limit of the grant;, but when the boundary line is simply by an object, whether natural or artificial, the name of which is used in ordinary speech as - defining a boundary, and not as describing a title in fee, and which does, not in its description or nature include -the earth as far down .as the grantor owns, and yet which has width, as in the ease of a way, a river, a ditch, a wall, a fence,. a tree or a stake, and stones, then the center of the thing so running over or standing on the land is the boundary of the lot, granted.” In Warner v. Southworth, 6 Conn. 471, the deed called for a ditch as the boundary and it was held that the grant.extended to the center of the ditch. The court said in that case, “Iti such a case the ditch is to be treated as a .common fence or a stone wall.” In Champlin v. Pendleton, 13 Conn. 23, the' c’ourt said, “Land adjoining a highway may be so conveyed as. to exclude the highway, yet to produce this effect it must appear in-'clear and express terms that such was the intention of the parties, otherwise the inference of law is that the con-’ veyance carries, as parcel of the grant, the fee to the center of the highway, if the. grantor at that time owned to the center.”

•The .Pennsylvania decisions and the weight of authority elsewhere clearly hold the question to be one of construction ip ieach particular case,, upon the intent of the parties, as expressed; in. the descriptive parts of the deed, explained and. illustrated by all the .other parts, of the conveyance,, and by. the .localities, and subject-matter to which it applies. If a deed nails for a highway as a boundary and by express, terms, or clear implication reserves to the grantor the fee in-the land covered by the highway, the grantee takes only to the side thereof. When the deed calls for the highway as a boundary, “without more, a legal .presumption arises that the'intention of the parties is that the grant shall go to the middle of the highway. The effect of the rule is,'a?'stated' by Mr. Justice Woodward, in Cox v. Freedley, to give a technical meaning to terms 'of' description, calling for a highway as a boundary, as importing a "grant to'the middle of the-street, unless controlled by something else in the deed. The intention of the parties is clearly recognized as" the controlling element. When the call is for a highway as a boundary, unless a contrary intention clearly appears, the grantee takes title, as against the grantor, to the middle of the highway, but nothing more.-' The case of Johnson v. Arnold, 91 Georgia, 659, relied upon by the learned ’judge -of the court below, is in cbnflict with the. Pennsylvania decisions. The deed-in that case called for a road as its western boundary-. There was not and never had been a road upon the location, nor had the owner dedicated the land as a public highway. The road contemplated, a mere paper road,- was along the extreme western margin of the grantor’s ■ land, he owning nothing on the other side. It' was there held that the grantee took the'fee in the entire road, and that the utmost 'that the grantor could claim was the right to construct a road over the'location. ■ The exact reverse of this is the law of Pennsylvania; with us, where a street called for as a boundary in a deed is not a highway nor"dedicated to public Use, the grantee does hot'take title in fee to the center of it,'but-by implied, covenant, acquires an easement, or right of way over the lands: Spackman v. Steidel, 88 Pa. 453; Whitaker v. Phœnixville Borough, 141 Pa. 327; Gamble v. Philadelphia, 162 Pa. 413; Cole v. Philadelphia, 199 Pa. 464; Clymer v. Roberts, 220 Pa. 162; Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1. The question of the effect of a deed calling foh'á public'highway-as a • boundary, when the grantor owns 'the fee in the> entire highway ' and nothing upon the other side; was considered by the Supreme Court of the United States in Banks v. Ogden, 69 U. S. 57. Kinzie had laid out a plan of lots near-the 'city of Chicago, one of the Streets ran along the shore of Lake-Michigart and Einzie 'conveyed ope of the lots to Ogden, the.deed calling for'this street as a boundary; there was not in front of the lot sufficient land to give the street its full width, and beyond the street as thus narrowed was Lake Michigan, to which no one had or eould acquire title. There were subsequent accretions. by alluvion upon the street as thus bounded and the land was extended out considerably more than sufficient to give the street its full width. Banks acquired the title of Kinsey in the accretion and Ogden contended that under his grant, calling for the street as a boundary, he took to the lake and was entitled to the accretion. The supreme court of the United. States held that Ogden took under his grant the fee in one-half of the street as -it existed at the time of the grant and that the fee in the other half, next the lake, remained in the grantor. This decision is in direct conflict with the conclusion reached by the court below. In the ease of Canal Trustees v. Havens, 11 Ill. 554, the call in the deed was for a street which alone separated the land granted from the river — there was no land upon the other side. The grantee claimed the fee in the entire street, thus carrying his title to the river and- making him a riparian owner. The supreme court of Illinois held that the grantee took title to the middle of the street, “which is regarded as the boundary or monument, and the purchaser takes to the middle of the monument, as part of the grant.” It may here be observed that the deed from Keiser to Ramsey was made long prior to the Act of February 27, 1849, P. L. 90, and that statute could have no effect upon what passed under the grant. Even if Keiser had not been the owner of the fee in the land north of the canal, his deed to Ramsey did not vest in the latter the fee in the land north of the middle line .of the canal.

Even if the rule were, as stated by the court below, that a conveyance of land calling for a public highway as a boundary, when the grantor owns the fee in the land covered by the entire highway and nothing upon the other side, passes to the grantee the fee in the entire width of the highway that rule could have no application in the present case. The learned judge found as a fact, upon sufficient and uncontradicted evidence, that the public road north of the canal was the line between the lands of George Keiser and Adam Kurtz, at the time the former conveyed a part of hig lands to Daniel Ramsey. The evidence would have sustained a finding that the lands of Keiser actually extended north of the middle of that road, but leaving that evidence out of consideration, the road being found to be the line between the two tracts, the presumption of law arises, even in the absence of the title papers, that the land of Keiser extended to the middle of the road: Grier v. Sampson, 27 Pa. 183. Keiser therefore owned the land on both sides of the canal; his land north of the canal was, it is true, subject to the easement of the public road, but still the fee was in him. The deed did not call for the road as the northern boundary of the grant to Ramsey, but did call for a physical barrier to the southward, the canal which was then in full operation, as the boundary upon that side. There is no ground whatever for presuming that it was the intention of the parties that Ramsey should take the fee in the land covered by the southern half of the public road. The case was simply this, Keiser owned the land on both sides of the right of way of the canal company and he owned the fee in the land covered by that right of way, and he conveyed to Ramsey the land upon one side of the right of way calling for the canal as a boundary. The utmost that Ramsey could take under this deed would be the fee in the southern half of the land covered by the right of way of the canal company.

The learned counsel for the appellant contends that the reasons for this rule, that a grant which calls for a public road, street, or small stream as a boundary passes to the grantee the fee in the land to the middle of the road or stream, are entirely absent when the call is for a canal as a boundary, and that the rule has no application in this case. It is true that the owner of land abutting on the right of way of a canal or railroad cannot devote the land covered by the right of way to such uses as the owner of abutting property may make of land covered by a road or street, which were suggested in the opinion of Chief Justice Lewis, in Paul v. Carver, 26 Pa. 223, as among the probable reasons for the origin of the rule. The canal company has the right to the exclusive use and possession of its right of way. The owner of abutting property has no right, as such owner, to use the surface of the land covered by the right of way in any manner that any other citizen has not an equal right to so use it. His right in the canal is precisely the same as that of any other person, he may use it for the purposes Of navigation, subject to the regulations of the canal company,' authorized by law. This difference between the rights of an owner in a street or stream upon which the property abuts and those of an'owner of land in the right of way of a canal company which forms the boundary of his property has led to a conflict in the decisions of the courts which have been called upon to consider the question with which we are now dealing. In England the question ardse in Chambers Colliery Company v. Company of Proprietors of Rockdale Canal, Law Reports (1895), Appeal Cases, 564, and it was there held that the rule that a call for a highway as a boundary carried the title of the grantee to the center of the'highway was not applicable when the call was for a canal as a boundary, and that the grantee took title only to the side of the canal. It was held by the supreme court of Massachusetts, in Whitman v. Boston & Maine Railroad, 85 Mass. 133, that a deed which called for a canal as a boundary, “together with á privilege in said canal,” vested in the grantee the fee in the land-to the side of the canal only, with the privilege to use the canal for the purpose of navigation.' In that case, however, the canal company was the grantor and it owned both the lot and the- land covered by the canal in fee. On the other hand, it has been held in Conhecticut and Wisconsin that a deed calling for a .canal which is a public highway ás a boundary passes to the grantee the fee in the land to the center of the canal: Goodyear v. Shanahan, 43 Conn. 204; Lawson v. Mowry, 52 Wis. 219. While the question as to the effect of a call in a deed for a canal as a boundary has never in precise terms been passed upon by the Supreme Court of Pennsylvania, the principles involved have been considered and the question does not seem to be an open one. The eátate acquired by this caiial company when it condemned a right of way'through- the property of George Keiser was the same in its nature and incidents as that which is acquired by a railroad company when it condemns a right of way, or acquires by agreement with the owner of land a mere right of way, and not an estate in fee. The railroad company, like a canal company, has the right to exclusive possession of the surface of the land covered by its right of way, and the owner of abutting property has no right to trespass upon it or interfere with that possession, no matter whether he is the owner of the.fee subject to the right of way or not. The Supreme Court of Pennsylvania, in Rice v. The Clear Spring Coal Company, 186. Pa. 49, held that when a railroad company acquired a right , of way merely for the purposes of a railroad through a tract of land, the ownership in fee of the soil remaining in the grantor, and the land on each side of the right of way was subsequently sold in two separate tracts, the deed in the description of each tract calling for the railroad as a boundary, the grantee upon each side of the right of way took the fee in the land to the center of the right of way, subject to the easement, as part of the land granted, under the general rule of construction applied to such grants, that a conveyance of land bounded on a public highway carries with it a fee to the center of the highway as part and parcel of the grant. The cases are so precisely analogous that this decision must be accepted as determining the question now presented. The same conclusion was reached in Maynard v. Weeks, 41 Vermont, 617.

Daniel Ramsey, it is true, got the “93 acres 88 perches strict measure” which his deed called for, south of and exclusive of the right of way of the canal company. The call in his deed was for the canal as a boundary, a survey according to the courses and distances given in the description carried to the south side of the towpath of the canal. The call was not for the bank of the canal, nor for the water in the ditch, but for the canal generally. The canal was then in operation, and the call for the canal is to be construed as a call for the right of way upon which it operated. The effect of this call was to vest in Daniel Ramsey the fee in the southern half of the right of way, and the line to which the plaintiff’s title carries is the middle of the right of way.

The decree is reversed and the record is remitted to the court below with direction to enter a decree permanently restraining the defendants, and each of them, from further removing any stone from that part of the right of way of the Union Canal Company south of the middle line of said right of way, and that the defendants pay to the plaintiff the sum'of $47.25, as compensation for the stone removed by them from that part of the right of way of said canal company south of the middle line thereof, and that the defendants pay the costs in the court below. And it is further ordered that the costs of this appeal be paid by the plaintiff, the appellee.