author: Head J.,

text:
    Clark, Appellant, v. McLanahan.

      Landlord and tenant — Replevin—Set-off—Theft from tenant. ■

    In an action of replevin by a tenant against his landlord for goods distrained, the tenant cannot set up that a portion of the rent claimed, naming the amount, never became due, or if it did was extinguished, because the landlord, under a right reserved in the lease, gave access to the premises to dishonest servants whom he had been negligent in hiring, and who stole from the tenant goods worth the portion of the rent named.
    Argued Oct. 21, 1908.
    Appeal, No. 109, Oct. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1907, No. 5,882, sustaining demurrer to statement in case of Charles Motley Clark v. M. Hawley McLanahan, trading as Whiteside & McLanahan, Agent, T. Nelson Davis, trading as Davis & Harvey, Bailee, and Humphrey Schreiber, Constable.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.,
    February 26, 1909:
    Affirmed.
    Petition for goods distrained.
    The case is stated in the opinion of the Superior Court.

      Error assigned was order sustaining the demurrer.

      Edward Austin Waters, for appellant.- —
    The appellant here claims that this is not a case of “set-off,” under the Pennsylvania statute, but that there was, on the- part of the landlord, before this rent accrued, a breach of conditions of the lease and a partial failure of the consideration for which the rent was to be paid, by reason of which the rent never accrued, and that the appellant may set such a breach of condition up in this action: Fairman v. Fluck, 5 Watts, 516; Prescott v. Otterstatter, 85 Pa. 534.
    Although the following are not landlord and tenant cases, yet the reasons given in the various opinions for the decisions state clearly the principle on which the appellant feels that this case may well rest: Frantz v. Brown, 1 P. & W. 257; Heck v. Shener, 4 S. & R 249; Glennon v. Lebanon Mfg. Co., 140 Pa. 594; Patterson v. Hulings, 10 Pa. 506.

      C. C. Norris, Jr., of Potter, Dechert & Norris, for appellee—
    “There is no principle better settled than that in replevin no set-off is allowable:” Phillips v. Monges, 4 Wharton, 226.
    While there is an implied covenant in every lease of quiet enjoyment, which means only that the tenant shall not be evicted or disturbed by a paramount title, there is no implied guaranty that he shall be free from injury by strangers: Barns v. Wilson, 116 Pa. 303.
    “A set-off cannot be pleaded to any action on a tort whether in trespass case or replevin where the avowry is for rent:” Heck v. Shener, 4 S. & R. 249; Gogel v. Jacoby, 5 S. & R. 117; Groetzinger v. Latimer, 146 Pa. 628.
   Opinion by

Head J.,

The plaintiff was the lessee of an apartment under a written lease reserving certain rent. His landlord, alleging that the rent had become in arrears, issued his warrant and levied on the goods, the subject of this action. The plaintiff replevied the goods and thus began this proceeding. In his statement he does not deny that, looking solely at the terms of the lease and the payments he had made, the amount of rent due would be what the landlord claims. The defendant demurred to the statement filed and the court entered an order or decree “Demurrer sustained.” By a stipulation of counsel entered into at bar we are to treat that order as a final judgment for the defendants.

By the terms of the lease the lessor reserved the right to enter the apartment at reasonable hours to examine the same, make repairs and for other like purposes. The plaintiff in his statement avers that his landlord was negligent in the selection of the agents or servants through whom the right reserved would be exercised, and that some one or more of those, having gained access to his apartment under cover of that right, there committed a crime, stealing from him certain articles of the kind and value set forth. To the extent of this value he maintains the rent reserved in the lease never accrued, or if it did, it was extinguished. Of course there is no averment that the landlord ordered or directed the commission of the crime, aided or abetted it, profited by its result or in any way knew of or assented to it; nor that it was within the scope of any authority, actual or constructive, conferred by him on the perpetrator of the crime.

We need not stop to consider whether, under these conditions, the plaintiff could recover, in any form of action, from the defendants the value of the goods thus stolen. Our only question is does this statement show a cause of action, in replevin, to which the defendants ought to be required to plead? The learned counsel for appellant frankly concedes that our doctrine of set-off has no application in an action of replevin. This must mean, in the shape the record is now presented, that if the rent, claimed by the landlord, ever actually accrued, it could not, in the law, be deemed to be paid or extinguished by any debt due to or damages claimed by the tenant in the nature of a cross demand. Nor could it be said, with any accuracy of speech, that in such a case no rent ever accrued; because, in a case where the rent was payable yearly and the tenant had enjoyed the use of the demised premises through practically the entire term, he might, by a larceny committed during the last hour of it, suffer a loss greater in value than the entire rent.

To avoid these difficulties the learned counsel for the appellant advances the proposition that the tenant’s lease contained at least an implied covenant that he might occupy the demised premises with reasonable security in the safety of the personal property he took there with him. That if the landlord was negligent in the selection of the plumber, carpenter or painter he sent on the premises to maintain the conditions necessary for the comfort and convenience of the tenant, and one of these persons turned thief, there was a breach of the covenant that amounted to a failure of consideration to the extent of the value of the goods stolen, which suspended the obligation to pay rent; and that such a defense, generally speaking, could be made in an action of replevin. Or conversely such a state of facts would exhibit a cause of action in this case. The proposition is simple, but can hardly be classed in the category of the usual and ordinary.

It is true enough that it is the policy of our law to avoid unnecessary circuity of action. And it is further true that under our system of administering the laws an equitable defense may often be successfully made to a legal demand even when the latter is sought to be enforced in one of the ancient common-law forms of action. But these principles must be understood and applied in the light of those other and fundamental ones which determine the suitor in the selection of an appropriate remedy and guide and control the practice and procedure through which that remedy is made effective. It has been the aim of the law, during the ages through which it has been slowly evolved, to develop, not one remedy for all wrongs, but an appropriate remedy for every wrong. Although our legislature, in recent years, has made some changes in the procedure incident to an action of replevin, the nature and purpose of the action remain what they were a century ago.

It seems to us, therefore, that the contention of the appellant is not sustained by sound reasoning whilst confessedly it lacks the support of precedent or authority. If it were to be upheld the trial of an action of'replevin would drift far from the true course long marked out by chart and compass and disaster would surely follow. We are all of the opinion that the learned court below was right in sustaining the demurrer and judgment for the defendants is now entered with costs.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Whitlock’s License.

      Bankruptcy — Assets—Liquor license — Transfer of license.

    1. A liquor license granted to a person after he has been adjudicated a bankrupt, belongs to him personally, and not to his receiver in bankruptcy, and the receiver has no right to sell such a license as an asset of the bankrupt's estate.

      Liquor laws — Transfer of license — Petition for transfer — Contents of petition.

      2. The granting a liquor license to the occupant of premises, owned by another, does not entitle the owner to demand, as a pure legal right, that the license be transferred to him upon the removal, whether voluntary or by compulsion, of the licensee from the premises. The application for the transfer in such a case is addressed to the sound legal discretion of the court of quarter sessions.
    3. Under the Acts of April 20, 1858, P. L. 365, June 15, 1897, P. L. 297, and May 17, 1901, P. L. 263, a petition for the transfer of a liquor license must set forth all the facts necessary under existing laws for original applications for liquor license. These three acts are in pari materia, and must be construed with reference to each other. If the facts are not set forth as provided by the seventh section of the act of April 20, 1858, the transfer will be refused.
    Argued Dec. 15, 1908.
    Appeal, No. 123, Oct. T., 1908, by John M. Whitlock, from order of Q. S. Phila. Co., March Sessions, 1908, No. 1,811, granting petition of Jacob Staehle, Receiver, and Edward H. Curtis, Jr., for transfer of a liquor license In the Matter of the Retail Liquor License granted to John M. Whitlock.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver.
    Reversed.

      February 26, 1909:
    Petition for transfer of a retail liquor license.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order granting the transfer.

      F. Chapman, of Chapman & Chapman, with him Robert E. Erwin, for appellant.

      Preston K. Erdman, with him Robert W. Finletter, for appellee.
   Opinion by

Morrison, J.,

John M. Whitlock, appellant, had been for five years prior to 1908 a retail liquor licensee of premises No. 7944 Frankford avenue, known as the Green Tree Hotel. On February 7, 1908, he filed an application for a renewal of his license as a retailer for said premises for the year beginning June 1, 1908. On February 29, 1908, a petition was filed in the United States district court for the eastern district of Pennsylvania, praying that appellant be adjudicated an involuntary bankrupt. On March 9, 1908, Jacob Staehle was appointed receiver by said, court. On March 25,1908, the appellant was adjudged a bankrupt, and on the same day the receiver sold at public sale, with the fixtures, lease, etc., the license to sell liquor at retail at No. 7944 Frank-ford avenue for the year ending June 1, 1908, which license had theretofore been granted to said bankrupt. On April 11, 1908, no application having been previously made by the receiver or trustee in bankruptcy, or by the purchaser at receiver’s sale, for any substitution, the court granted the petition of the appellant for a retail license for the said premises for the year commencing June 1, 1908. On April 18, 1908, the receiver presented to the court a petition asking for a transfer to Edward H. Curtis, Jr., of the appellant’s license, granted to him for the year commencing June 1, 1908. This petition is as follows: “That on the Twenty-fifth day of March, a. d. 1908, John M. Whitlock, having a retail liquor license at No. 7944 Frankford Avenue, in the Thirty-fifth Ward of the City, of Philadelphia, granted by this Honorable Court, was duly adjudged and decreed a bankrupt, by the District Court of the United States for the Eastern District of Pennsylvania, cause No. 3051, and Jacob Staehle, your petitioner, was appointed Receiver of the Estate of John M. Whitlock, the said Bankrupt, that pursuant to the order of ' the said United States District Court the said license was duly sold by your petitioner at public sale, on the twenty-fifth day of March, a. d. 1908, to Edward H. Curtis, Jr., that on the twenty-seventh day of March, a. d. 1908, the sale of the said license as aforesaid was approved and confirmed by the Honorable John B. McPherson, Judge of the said United States District Court, therefore, your petitioner prays your Honorable Court to transfer and grant the retail license granted the said John M. Whitlock, bankrupt, for the year beginning June 1, 1908, located at No. 7944 Frankford Avenue, in the Thirty-fifth Ward of the City of Philadelphia, to Edward H. Curtis, Jr. And he will ever pray and, etc., Jacob Staehle.”

On April 18, 1908, said Curtis, who in the meantime had become the owner of the premises at No. 7944 Frankford avenue, petitioned the court to grant him an original license for said premises. This petition is too lengthy to be quoted here, and it is sufficient to say that it is simply a regular original petition for a retail liquor license and nowhere in it is any ground laid or reason given or prayer for a transfer of the license granted to the appellant for the year beginning June 1, 1908. But on April 29, 1908, Edward H. Curtis, Jr., presented what he called a supplemental petition which is largely made up of recitals in regard to Whitlock’s bankruptcy, licenses, etc., and it is not necessary to quote this petition in full. It avers that the petitioner has purchased the premises No. 7944 Frankford avenue, known as the Green Tree Hotel, and that the petitioner expects to conduct the same as a hotel. After several recitals it avers an order from the United States district court authorizing the receiver to sell at public sale the bankrupt’s said retail liquor license, lease, good will, stock and fixtures of said premises, No. 7944 Frankford avenue, the sale to be subject to the transfer of the said license by your honorable court; that on March 25, 1908, the receiver caused the said license, etc., to be offered as an entirety at public sale and the petitioner purchased the same for the lump" sum of $6,600; that on March 27, 1908, the said sale was confirmed by the said district court, subject to the transfer of the license to your petitioner by your honorable court; that the sale was intended to include the license for the year beginning June 1, 1907, and the bankrupt’s inchoate right to the license for the year beginning June 1, 1908, and the said receiver has accordingly filed his petition for the transfer of both licenses to your petitioner; that the receiver took possession of said premises No. 7944 Frankford avenue; that your petitioner is ready and willing to pay the license fee and costs of the license for the year beginning June 1, 1908. The petitioner concludes with a prayer for the transfer of said license to himself, evidently meaning the license to Whitlock for the year commencing June 1, 1908, because in the second paragraph of the petition the license for the year beginning June 1, 1907, is referred to and it was sold to Curtis by the receiver and was transferred to him with the consent of Whitlock. We note in the petitions of Curtis that he does not state when he became the owner of premises No. 7944, except by saying it was in April, 1908. He avers that the receiver’s sale was intended to sell to him the appellant’s inchoate right to the license for the year beginning June 1, 1908.

The appellant filed a remonstrance on April 26, 1908, against the transfer of his license for the year beginning June 1, 1908, to Curtis, and among other grounds he averred that said license was acquired after he was adjudicated a bankrupt and, therefore, it belongs to him personally and not to his receiver in bankruptcy, and he denied that said receiver had any interest therein and denied that he could sell or convey the same to Curtis or anybody else. In addition to this, Whitlock filed an answer on May 1,1908, to the supplemental petition of Edward H. Curtis, Jr., in which he specifically denied that the sale by the receiver was for-any license except for the one beginning June 1, 1907, and he denies that the receiver intended to or could sell his inchoate right to the license for the year beginning June 1, 1908. He further avers in his answer that the auctioneer so stated at the receiver’s public sale that he only sold the license for the year beginning June 1, 1907, and he attaches to his answer a copy of the handbill and notice of sale published by the receiver, and makes it a part of his answer, and it shows that the receiver sold only the license for the year ending June 1, 1908.

Upon this state of the record there was a hearing on May 1, 1908, presumably on the question of a transfer of the appellant’s license for the year beginning June 1, 1908, to Curtis, although the record is not very clear upon this question. But the record does show that the court held the matter under advisement and subsequently made the following order, which appears to have been made on the petition of Curtis, filed April 18, 1908, for an original license: “And now May 29, 1908, on motion of petitioner, and after hearing in open court, it is ordered that the prayer of the petitioner be granted.” If this order was made on the petition of May 18,1908, it is difficult to understand why it is considered an order of transfer, yet it appears to be the order from which the appeal is taken. We can only infer that it is meant to grant a transfer under the petition of Jacob Staehle hereinbefore referred to and the supplemental petition of Edward H. Curtis, Jr., of April 29, 1908. If we attach this order to these petitions, it can be understood as a transfer order; otherwise, it would only appear to be a granting of an original license to Curtis on his petition of April 18, 1908. So far as that peti- ' tion is concerned, we cannot see that it furnishes any basis or ground for the transfer of Whitlock’s license for the year beginning June 1, 1908, except it may be construed to show that Curtis is a fit man to have a retail liquor license.

This somewhat tedious recital of facts brings us to the consideration of the question involved, to wit: do the petitions in connection with the remonstrance and answer on the part of Whitlock, which are in the record, establish the jurisdiction of the court to transfer Whitlock’s license, against his consent, which he obtained after he was adjudicated a bankrupt?

By the terms of the act of congress it is enacted that the trustee shall be vested “with the title of the bankrupt as of the date he was adjudicated a bankrupt.” In Collier on Bankruptcy (6th ed.), p. 589, the author says: “Stated broadly, the rule is that the trustee takes all the property of the bankrupt, whether in possession or in action, at the time the petition was filed, subject, of course, to the new rule as to vesting just considered. But he acquires title only to that which the bankrupt had at that time. Property not then owned but acquired before the adjudication and surely property acquired after it and before the discharge, does not vest in the trustee, but becomes the bankrupt’s, clear of the claims of all creditors, save those after the commencement of the proceedings or those who, for statutory reasons, are not affected by the discharge.” It therefore seems clear that the right and title to the license granted to the appellant on April 11, 1908, was his, and it was not affected by the bankruptcy proceeding, nor did the receiver or trustee have any interest in it or control over it. This is so because the appellant was adjudicated a bankrupt seventeen days before the license for the year beginning June 1, 1908, was in existence. The whole structure of the appellee’s argument in support of this transfer, against appellant’s objection and protest, rests on the sale of the appellant’s inchoate right to a license for the following year. This is not sound for several reasons: (a) This license when granted belonged to appellant; (b) the receiver and trustee had no interest in it, nor did the creditors of appellant who existed at the time he was adjudicated a bankrupt; (c) the license was to operate in futuro and the appellant had no right to it and no property in it until it was granted and it couldn’t be sold, over his objection, before it was granted.

We are mindful of the rule that we are limited to an inquiry of whether the record properly justifies the court in awarding the transfer. In Stern’s License, 27 Pa. Superior Ct. 538, we said: “The granting of a liquor license to the occupant of premises owned by another does not entitle the owner to demand, as a pure legal right, that the license be transferred to him upon the removal, whether voluntary or by compulsion, of the licensee from the premises. The application for a transfer in such a case is addressed to the sound legal discretion of the court of quarter sessions: Blumenthal’s Petition, 125 Pa. 412.” And further along in the opinion will be found: “And, as there is no mode whereby the evidence given on the hearing of such an application can be brought upon the record, the court’s conclusion of fact, based on the evidence, is not reviewable on appeal. We must assume the truth of the facts set forth in the order; and, this being assumed, it cannot be declared that the reason assigned for the refusal of the application, was not a legal reason.”

Confining our consideration to the record proper we are led to the conclusion that the petitions, taken all together, do not confer jurisdiction on the court below to take the appellant’s license, granted on May 11,1908, and, under the guise of a transfer order, hand the same over to the appellee in the teeth of the objections and protest of appellant.

We have considered carefully the contention that the appellant had no right to enjoy his license in the premises at No. 7944 Frankford avenue. If this fact can be gathered from the record, it does not authorize the court to arbitrarily transfer the license to the appellee. We cannot now determine that the appellant could not have secured another place and have had his license transferred thereto, and if he had succeeded in so doing, it is highly probable that his license was of considerable money value. The learned court below had very recently adjudged him a fit man to have a license by granting it to him, and it would be a violent presumption to suppose that the said license, as it stood immediately before the transfer order of May 29, 1908, was not a valuable privilege to the appellant.

But there is a further reason for holding that this transfer is invalid. The law regulating the transfer of a retail liquor license from one person to another begins with the Act of April 20, 1858, P. L. 365. The seventh section of that act reads: “That no license to vend the liquors aforesaid, granted under this or any other law of this commonwealth, shall be transferable, or confer any right to sell the same in any other house than is mentioned therein; .... But if the party licensed shall die, remove or cease to keep such house, his, her or their license may be transferred by the authority granting the same,” etc. It has been so many times held that to warrant a transfer under this act, the petition must aver that the licensee had died, removed or ceased to keep the house, that the rule is very familiar to the courts and lawyers. If we apply this rule to the present petitions, they must fail, because neither singly nor altogether do they aver any one of the three grounds above quoted. The next legislation on the subject of transfers, which has been called to our attention, is the Act of June 15,1897, P. L. 297, as amended by the Act of May 17, 1901, P. L. 263. The said act of 1897, as amended, simply provides that the “judges of the several courts of the commonwealth having authority under existing laws to grant licenses for the sale of vinous, spirituous, malt or brewed liquors, are hereby authorized to transfer such licenses from one person to another, or from one place to another within the same precinct, ward, city or borough as the court may determine. Any transfers of license, whether for wholesale or retail of such liquors, under the provisions of this act may be made during the regular term of court or in chambers during vacation, when the applicant or applicants for said transfers shall have presented to the court a petition, setting forth all the facts necessary under existing laws for original applications for liquor licenses.”

Now, it will be observed that without following the provisions of the act of 1858; the act of 1897, as amended by the act of 1901, does not provide what the petition for transfer shall contain or aver, except that the petition shall set forth all the facts necessary under existing laws for the original application for liquor licenses. In our opinion, the act of 1858 and the two subsequent acts relating to transfers of liquor licenses, are in pari materia, and must be construed with reference to each other. We reach this conclusion because of the absence of anything in the latter acts indicating a repeal of the requirements in the seventh section of the act of 1858.

As we view the law, the appellee did not present sufficient reasons in his petitions to warrant the court in making the transfer. As we have already seen, his first petition of April 18,1908, does not contain a word in regard to a transfer of any license. It is very clear that the petition of Jacob Staehle of April 16, 1908, is not sufficient to warrant a transfer of the appellant’s license to Curtis, and we are also of the opinion that the supplemental petition of Curtis, dated April 29, 1908, does not lay grounds sufficient to warrant the court in transferring the appellant’s license to the petitioner.

The assignments of error are sustained and the order or judgment transferring the appellant’s license to Edward H. Curtis, Jr., is reversed, and the petitions are dismissed at the costs of the appellee, Edward H. Curtis, Jr.


author: Henderson, J.,

text:
    Stirling, Appellant, v. Merchant & Evans Company.

      Negligence — Master and servant — Dangerous appliances — Evidence.
    In an action by an engineer and fireman of a factory against his employer, no recovery can be had by the plaintiff where it appears that the plaintiff was in the habit of removing ashes through an opening in the wall, that in doing so he stepped upon two boxes, one superimposed upon the other placed there by his predecessor, that the top box was not fastened to the lower box, and sometimes moved sideways, that plaintiff had complained to the superintendent who had promised to make steps, but failed to do so, that at the time of the accident plaintiff stepped upon the upper box and fell, receiving the injuries complained of, that it was no part of plaintiff's duty to use the opening in the wall for the removal of ashes, and that there was another way which he could have used with practically no loss of time.
    Argued Dec. 15, 1908.
    Appeal, T66, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 923, for defendant non obstante veredicto in case of Archibald Stirling v. Merchant & Evans Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $500. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      Augustus T. Ashton, with him Victor Frey, for appellant.—
    The defendant’s acquiescence in the use of this appliance, i. e., the boxes, puts the defendant in the same position as if the appliance had originally been furnished for that purpose.
    The use of this way did not as a matter of law make the plaintiff guilty of contributory negligence; it was a question for the jury whether there were other ways known to the plaintiff and whether those other ways were safer.

      February 26, 1909:
    The plaintiff cannot be charged with having assumed the danger of using the boxes.
    This conflict of testimony could only be decided by the jury, and their verdict is conclusive that the promise was given and relied on: Webster v. Coal & Coke Co., 201 Pa. 278; Brownfield v. Hughes, 128 Pa. 194; Patterson v. R. R. Co., 76 Pa. 389.
    The immineney of the risk was for the jury, and their verdict establishes that the risk of injury was not imminent: Patterson v. R. R. Co., 76 Pa. 389; Foster v. Steel Co., 216 Pa. 279.
    The lower court erred in ruling that the case of Marean v. Railroad Company, 167 Pa. 220, rules the case at bar: Schall v. Cole, 107 Pa. 1; Russell v. Hutchinson, 15 W. N. C. 482; Reese v. Clark, 146 Pa. 465; Brossman v. R. R. Co., 113 Pa. 490; Maines v. Harbison-Walker Co., 213 Pa. 145; Schlitz v. Pabst Brewing Co., 57 Minn. 303 (59 N. W. Repr. 188); Hollis v. Widener, 221 Pa. 72.

      Frank P. Prichard, with him James Wilson Bayard, for appellee,
    cited: Reese v. Clark, 146 Pa. 465; Boyd v. Harris, 176 Pa. 484; Marean v. R. R. Co., 167 Pa. 220.
   Opinion by

Henderson, J.,

The plaintiff was employed as engineer and fireman at the defendant’s manufactory. He was in charge in the boiler and engine rooms, and among his duties was the removal of ashes. The boiler room was about 8x10 feet in dimensions as estimated by the plaintiff, and 10x14 feet as proved by the defendant. Its floor was from thirty-two to thirty-six inches below the level of the ground. Opposite the boiler was an opening in the wall about five feet high on a level with the surface outside. Through this opening the ashes taken from the ash pit were thrown into a wheelbarrow standing on the outside at the opening and were wheeled to a place about twenty-five or thirty feet away, where they were emptied against the wall of the building. The plaintiff’s predecessor at the works had placed two boxes, one on the top of the other, against the wall in the engine room below this opening. The lower box was about sixteen inches in length, about a foot wide and about sixteen inches in height, filled with brick. The upper box was about ten or twelve inches long, about twelve inches wide and ten inches high. It had neither sides nor bottom, and was set loosely on the lower box. This arrangement the plaintiff found when he entered the defendant’s service. He used the boxes in going out of the opening to wheel away the barrow of ashes, as had the engineer done who preceded him. About six or seven months after the plaintiff commenced to work, in returning to the boiler room after having unloaded a barrow of ashes, he stepped backwards from the surface through the opening onto the upper box and fell, receiving the injury of which he complains. His testimony is somewhat contradictory as to the manner in which the accident ' occurred. In his examination in chief he gave this explanation: “In making the step I went to put my foot over like this, on the iron plate and to get out of the road of the handles of the barrow I had to turn this way and the top box turned on me and turned a complete somersault, my heels went up and I went down.” On cross-examination he testified that the top box “moved sideways” at times because of the jarring of the building by railroad trains passing near by, and with reference • thereto he was asked whether the danger was that the box might be jarred sideways along the top of the other box and get to the edge of that box, to which he answered “Yes.” He was then asked:

“Q. That is the thing you think caused the fall when you did fall? A. I cannot say what caused the fall. I went down so sudden and I saw so many stars when I got down that I do not know what made me fall. Q. Why didn’t you feel with your foot to see if it was in the center? A. I looked down to see if the box was there and I had my foot on it. It might be a little over the edge, but not much over. If it was half over it would not stay on it.”

The plaintiff’s case was founded on the allegation, however, that the injury resulted from the insecure condition of the upper box. He testified that he called the attention of the defendant’s superintendent to this insecurity and that the latter promised to send a carpenter to make steps, which promise was not performed; that his attention was again called to the boxes with a similar failure of performance and that the last promise to provide steps was a week or ten days before the accident. It is claimed that the defendant was responsible for the injury, notwithstanding the plaintiff’s knowledge of the insecure condition of the box, because of the promise of the superintendent to make the change, and that the case is within the principle of Patterson v. Pittsburg and Connellsville R. R. Co., 76 Pa. 389; Webster v. Coal & Coke Co., 201 Pa. 278, and other cases which hold that while an employee who remains in the service of his employer with a knowledge of the dangerous condition is presumed to assume the risk of the situation, this presumption is rebutted if the employer promise to repair the defect and the danger is not so obvious nor imminent that negligence can fairly be imputed to the employee for remaining in a dangerous situation. The difficulty of the application of the rule in this case arises from the fact that it nowhere appears that it was the duty of the employee to use this method of going out of, or coming into, the boiler room when disposing of ashes. The location and dimensions of the window or door through which the ashes were thrown into the wheelbarrow make it evident that this was not intended as a passageway for employees from the boiler room to the yard outside, nor was there any requirement or necessity that it be so used by the engineer. No part of the evidence warrants the conclusion that it was any part of the duty of the plaintiff to use this means of going outside or that he was expected so to do. It clearly appears that there were other ways along which the plaintiff might have gone outside to take the wheelbarrow. One of them was through the pump room. The objection made to that was that,- “There is very little space for a man to get through, and it is dark. There is no light unless you turn on the little gas jet, and if you turn that up you would hear from the boss about burning gas.” The plaintiff never tried to go that way. The time consumed in so doing would have been less than a minute more than in going through the opening which he used. In the view most favorable to the plaintiff he adopted the most convenient way of going out of the boiler room when handling the ashes and did so with the knowledge of the superintendent. During all of the time of his service there he knew the box arrangement was unsafe because of the liability of the upper box to be displaced. He did not show that the upper box was in any way necessary to the accomplishment of his work even if he used the opening as a passageway, for the lower box had an elevation of sixteen inches as we have seen. The bottom of the opening was only sixteen inches higher, and no difficulty was proved or suggested which would prevent the plaintiff from dispensing with the upper box and stepping onto the lower one which we may assume from the evidence was perfectly substantial. It was wholly a matter of convenience, therefore, to the employee and not of interest or advantage to the employer that the work be done in the manner adopted. The plaintiff was employed by the week. The time consumed in removing the ashes according to his own showing was very short, and there is not a hint in the evidence that the defendant was benefited in any manner by having the plaintiff discharge this part of his duty in the particular way described by him. Moreover, the arrangement used by the plaintiff was not a part of the appliances or machinery necessary for the discharge of his duty by the plaintiff or appointed by the employer to be used by him, and in this respect the case is distinguished from Hollis v. Widener, 221 Pa. 72; Foster v. Steel Co., 216 Pa. 279; Maines v. Harbison-Walker Co., 213 Pa. 145, and other cases cited by the appellant, in each of which the servant’s duty made it necessary that he use the dangerous machinery or occupy the dangerous position in order to perform the duty imposed upon him by his employer. Thus in Foster v. Steel Co., the employee was engaged in work on a trestle along which he was required to go in unloading cars. A footway constructed for that use was not kept in repair, and the employee was injured while using the only practicable means of passing along the trestle. In Patterson v. R. R. Co., 76 Pa. 389, there was a defective construction of a portion of the railroad track. In Hollis v. Widener, the plaintiff was employed in work which made it necessary for him to stand on a platform exposed to the danger of machinery, the allegation of the plaintiff being that there should have been a guard rail on the platform. In the present case there was no duty required which subjected the appellant to any risk not ordinarily incident to the employment. His injury was received if chargeable to the instability of the box because he preferred to take that risk rather than to take a little more time in the discharge of this part of his duty or to take the box away and step down a few inches further onto the second box. It must have been evident to him, too, that with a nail or two he might have fastened the upper box to the lower so that it would not have been jostled out of place, and as he was in charge of this room and the engine room and the operations there carried on it is not unreasonable to require of him attention to such a trifling improvement.

The court below entered judgment for the defendant non obstante veredicto on the authority of Marean v. N. Y., etc., R. R. Co., 167 Pa. 220, which holds that where one enters an employment knowing that certain appliances were necessary to his safety, but continued in the employment without them, he takes the risk knowing the danger notwithstanding a promise and expectation of amendment. The distinction is there drawn between a defect known to exist at the time of engagement in service and one developed later by decay or other deterioration. We do not deem it necessary to discuss the application to this case of the principle considered, for on the whole evidence we are constrained to conclude that the plaintiff failed to show any neglect of duty on the part of the defendant.

The judgment was, therefore, rightly entered and is affirmed.


text:
    Hoffman v. Delaware, Lackawanna & Western Railroad Company, Appellant.

      Carriers — Common carriers — Railroads—Delivery—Misdirection on waybill — N egligence.

    1. In the absence of a contract providing otherwise, the obligation of a carrier of goods is to transport by the usual route adopted or held out to the public by him, and to deliver with reasonable diligence.
    2. Where an employee of an initial carrier of goods omits a material portion of the direction in a transfer waybill delivered to the connecting carrier, and the goods are delayed by reason of such negligence, the question whether the negligence of the initial carrier’s agent is the proximate cause of the injury, is a question for the jury, and this is especially the case where it appears that the initial carrier was given special instructions as to the method of consigning by the consignee because of the fact that mistakes and delays had occurred in the delivery of freight to him because of the similarity of names of the town where he conducted his business and a city in an adjoining state. In such a case the mistake of a connecting carrier caused by the preceding negligence of the initial carrier will not be pronounced by the court as a matter of law the proximate cause of the injury.
    3. Exemption in the contract of carriage from loss or damage beyond the line of the forwarder will not relieve the latter where such damage is brought about by his own negligent misdirection.
    4. Where a railroad company does not fix the rate and route at the station where it receives freight, but arranges to have this done by the next connecting carrier, when it delivers the freight to it, the railroad company will be responsible for any fault of the agent of the connecting company when acting in the railroad company’s behalf about the contract of shipment.
    5. Where a carrier is notified of an undue delay within thirty days after the property is delivered, and the company takes prompt action to inquire into the facts and to protect itself against imposition, it will be deemed to have waived a provision in the bill of lading to the effect that the carrier shall not be liable if he is not promptly notified in writing after there has been due time for the delivery of the goods, and they have not been received.
    6. In an action against a carrier for delay in delivering a machine, the defendant cannot be charged with special damages in the absence of any evidence to show that the injuries for which damage is claimed could not have been avoided by other means.
    Argued Dec. 7, 1908.
    Appeal, No. 219,
    Oct. T., 1907, by defendant, from judgment of C. P. Northampton Co., April T., 1906, No. 14, on verdict for plaintiff in case of O. H, Hoffman v. Delaware, Lackawanna & Western Railroad Company.
    Before Rice, P. J., Portee, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover damages for injuries caused by the delay of a machine. Before Scott, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [Now, there is a provision in this contract that no road shall be responsible, in effect, for acts committed upon some other railroad or by any of the agents of the other railroads and they have exempted themselves from liability for such acts by the contract here: and such contract is a valid contract. But you may take it from me as an instruction that that exemption of liability for the acts of such agency does not exempt the D., L. & W. R. R. Co. from the act of the agent or the representative of the Lehigh Valley R. R. Co. that undertakes to route and rate this property through to its point of destination, if you find from the evidence here that there was such a special arrangement made by the D., L. & W. Company with the Lehigh Valley R. R. Co. It is testified to, as I remember it, by Mr. McMillan, the witness called by the defendant, one of the principal representatives in the office of the D., L. & W. R. R. Co. It is suggested by the testimony of Mr. Mattes, the representative of the Lehigh Valley R. R. Co., only I don’t recall that in his testimony he says there was any arrangement or special agreement to that effect, but that it was the practice; that is what they would do in such cases. As I remember Mr. McMillan’s testimony, he says it was an arrangement that they had with the Lehigh Valley R. R. Co. So that if you find there was a special arrangement of that sort by which in the office of the Lehigh Valley R. R. Co. at Thirteenth street there was somebody constituted, or the road itself was constituted the special agent of this defendant company to rate and route through freight to its point of destination on their behalf because they had no such rates or routes on their local line and to other points where they didn’t have, then the act of rating and routing this property as far as Baltimore or to Petersburg, Va., was the act of the D., L. & W. R. R. Co. through its own agent for that particular purpose, although the man who did it and the hand that executed the waybill was in the employ of the Lehigh Valley R. R. Co.: and there is no exemption for that condition provided in this waybill.] [15]
    [If you find that the original neglect or breach of duty upon the part of the D., L. & W. R. R. Co., if you find it to have existed at all, was still operating and was the proximate cause of its going to Petersburg, Va., irrespective of the fact that there intervened this inquiry to the Lehigh Valley R. R. Co. and the message from its agent to Baltimore, then you may consider the D., L. & W. responsible.] [16]
    [Now, there are four elements of damages to which the plaintiff points your attention. One of them is the actual value of the machine, $241, which was the contract price. He did not receive that machine. He ordered a new engine to take its place, but he says to you and, of course, the Messinger Manufacturing Company, by delivery f. o. b. on board cars at Tatamy, had delivered the property, so far as they were concerned, to Mr. Hoffman at Petersburg, W. Va., and therefore, Mr. Hoffman would legally be required to pay for that machine unless in some way he was absolved. He asserts that it has not been paid for yet and the time of payment was postponed until the settlement of this suit. If you believe that, then Mr. Hoffman would be entitled to recover the contract price of that machine, $241.] [17]
    [He points to the loss of manure, which he says amounted to 450 loads, the price of which was $2.00 a load, and he undertakes to satisfy you that there was a loss of 450 tons of manure from the fact that it wasn’t possible to feed these cattle under any arrangements that he had made, of which the defendant had notice, by reason of the fact that he could not feed them within shelter. You will remember what has been said upon that score and that, in order to estimate the actual amount of manure that he may have lost, he took one cow for a certain period of time, ascertained its product and then multiplied that by the number of cows he had upon the place, and proves to you the market price of a load of manure. Now, you will say whether or not that is such a standard of computation that will enable you to say with a reasonable degree of certainty that there was a loss in consequence of that and of how much.] [18]
    [The other item of loss you have also heard discussed, being for the difference in the feeding value of shredded fodder and com; and with respect to that time, he must also be able to point you to some exact and definite fixed standard by which you can calculate the amount approximately of the loss. He asserts that he had consumed during this period of time, these four months and a half, 1,500 shocks of corn. There were 900 there upon the place that he had. You will remember how it was described, 900 and 500 and about 100. The witness that he produced here said it was about 1,400, making it up of 900 and 400 that were on hand, or that he bought about 400 instead of 500, making a difference between the witnesses of 100, 1,500 shocks and 1,400 shocks. But he undertakes to give you the difference in the market value between so many shocks of fodder at such a value as $6.00 for the shredded fodder and $2.50 for the unshredded, making a difference of $3.50 in the market price of 1,500 stacks of fodder; 431 tons is what he claims it would be by the calculation, the arithmetical calculation that he has made, making by his proven calculation $1,508.60. Now, you have heard what took place in the discussion of his testimony, what has been said by both counsel respecting the fact that when he was called as a witness upon the first occasion here in this case that amount was made $700 or $750 instead of $1,500 and that in the affidavit the statement of claim which he originally made and filed in court a year or more ago the same amount was therein stated. It is suggested to you that the difference arose from a mistake in arithmetical calculation simply. These are considerations for you and you will be able to say, if you find that the plaintiff is entitled to recover, just how much he is entitled to recover under this evidence and under such instructions as I have given you, to which he would be entitled to have interest added from about • May 1, 1902.] [19]
    The jury returned a verdict as follows:
    Horse-power................................$ 241 00
    Expense of sending team to Keyser............ 55 00
    Loss on fodder.............................. 510 00
    Loss on manure............................. 285 00
    $1,091 00
    Interest from April 15, 1902.................. 357 85
    $1,448 85
    Judgment was entered on the verdict. Defendant appealed.

      Errors assigned among others were (15-19) above instructions, quoting them.

      W. S. Kirkpatrick, of Kirkpatrick & Maxwell, for appellant.—
    Where the facts are undisputed or the evidence not conflicting and no doubt is raised as to the credibility of the witnesses and a verdict on one side would have to be set aside as against the evidence, the court should direct a verdict: Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610; Rodgers v. Black, 15 Pa. Superior Ct. 498; Blotz v. Lehigh Valley R. R. Co., 212 Pa. 154; Cromley v. Penna. R. R. Co., 211 Pa. 429.
    The decisive point, however, which was responsible for the deviation and delay sued for, was the independent intervening act of the Lehigh Valley R. R. Co. in changing by its telegram to Baltimore the destination given it and directing the shipment to the wrong point.
    Under this contract of shipment, the D., L. & W. was but a forwarder and delivery to the connecting carrier ended its liability for any acts of succeeding carrier that might cause loss or injury to the shipment: Seibert v. Railway Company, 15 Pa. Superior Ct. 435; Keller v. R. R. Co., 196 Pa. 57; Clyde v. Hubbard, 88 Pa. 358; American Express Co. v. Nat. Bank, 69 Pa. 394; Pass. Railway Co. v. Trich, 117 Pa. 390; Card v. Columbia Township, 191 Pa. 254; Chartiers Twp. v. Phillips, 122 Pa. 601; Schaeffer v. Jackson Twp., 150 Pa. 145; Curtin v. Somerset, 140 Pa. 70; Bannon v. Penna. R. R. Co., 29 Pa. Superior Ct. 231.
    Under the most favorable view of this testimony it was clearly, under the authorities, a question of fact for the jury and not for the court to determine absolutely whether there was a waiver, and whether the notice of the letter of September 4, 1902, which was nearly nine months after due time for the delivery of the shipment, was a proper compliance with the conditions of the contract: Pavitt v. R. R. Co., 153 Pa. 302; Eckert v. R. R. Co., 211 Pa. 267.

      Edward J. Fox, with him James W. Fox, for appellee. —
    The inquiry must be, whether there was any intermediary cause, disconnected from the primary fault and self-operating, which produced the injury: Bunting v. Hogsett, 139 Pa. 363; Haverly v. R. R. Co., 135 Pa. 50; Gudfelder v. R. R. Co., 207 Pa. 629; Thomas v. R. R. Co., 194 Pa. 511; Pennsylvania R. R. Co. v. Hope, 80 Pa, 373.
    March 8,1909:
    The initial carrier must so deliver the consignment to the connecting carrier that the latter will be under the same obligation to the shipper with respect to the goods as it would have been had it received them from the shipper: Palmer v. Ry. Co., 35 Am. & Eng. R. R. Cases, 629; Ill. Cent. R. R. Co. v. Southern Seating, etc., Co., 50 L. R. A. 729; North v. Merchants’, etc., Trans. Co., 146 Mass. 315 (15 N. E. Repr. 779).
    Notice of special circumstances requiring prompt delivery of the goods should be furnished at the time the goods are delivered for transportation: Rogan v. Wabash Railroad Co., 51 Mo. App. 665; 3 Ray’s Imposed Duties, 392; Adams Express Co. v. Egbert, 36 Pa. 360; Martachowski v. Orawitz, 14 Pa. Superior Ct. 175.
    No recovery can be had for loss of profits in contracts of sale made or contemplated by the shipper, unless the facts and circumstances of such sale are communicated to the carrier upon shipment: Pacific Express Co. v. Darnell, 62 Tex. 639; Brownell v. Chapman, 84 Iowa 504 (51 N. W. Repr. 249) ; Grindle v. Express Co., 67 Me. 317; Ill. Central R. R. Co. v. Cobb, 64 Ill. 128; Port Blakely Mill Co. v. Sharkey, 102 Fed. Repr. 259; Cent. Trust Co. v. R. R. Co., 69 Fed. Repr. 683.
   Opinion by

Henderson, J.,

In the absence of a contract providing otherwise, the obligation of a carrier of goods is to transport by the usual route adopted or held out to the public by him and to deliver with reasonable diligence. The defendant’s undertaking was restricted by the terms of the contract to delivery to a connecting carrier on the route to its destination, as that place was beyond the line of the defendant’s road. The subject of the transportation was consigned to the plaintiff at “Petersburg, W. Va., % B. & O. Freight Agent, Keyser, W. Va.” This'place is a small town in the interior of the state, more than forty miles distant from Keyser, which is the nearest accessible railroad station. To avoid confusion or misunderstanding, by direction of the plaintiff the property was consigned to the care of the freight agent at Keyser. It was not in contemplation of the parties that delivery of the freight should be made by the carrier at the ultimate destination. Its obligation would have been discharged by delivery at the railroad station indicated in the bill of lading. The agent of the defendant in making out the transfer waybill called “Pro. 573” omitted to write thereon the direction to transport to Keyser or to communicate any other instructions to the connecting company than were contained in the “Pro.,” and this oversight the plaintiff contends was the proximate cause of the delay in the delivery of the machine. It appeared from the evidence of the defendant’s own witnesses that the additional instruction as to the point of consignment contained in the original bill of lading would have aided in routing its conveyance and that with that information it would have been routed by Harrisburg, Shippensburg, Cherry Run and thence by the B. & 0. road to Keyser. Instead of that the freight was rated and routed to Petersburg, Va. The question whether the negligence of the defendant’s agent in not correctly transmitting the instructions as to the destination to the connecting carrier was the proximate cause of the delay in transportation was submitted to the jury and under the authorities we think this was proper. Whether the facts constitute a continuous succession of events so connected as to be a natural whole or whether the connection is so broken as to leave the parts independent and the final result cannot be said to be the natural and probable consequence of the negligence of the defendant is ordinarily a question for the jury. If the injury resulted from a cause not connected with the initial fault there is no liability, but the jury must determine the relation of the cause unless the fact clearly appears that there is no connection between the original fault and the injury: Haverly v. R. R. Co., 135 Pa. 50; Thomas v. R. R. Co., 194 Pa. 511; Gudfelder v. R. R. Co., 207 Pa. 629. It is only the duty of the court to determine the question as a matter of law when the inferences are plain and not open to doubt by reasonable men. Whether the injury was a probable consequence of the negligent act of the defendant’s agent and as such ought to have been foreseen in the light of the circumstances a jury only could determine, and this is the more manifest from the evidence that the consignee gave special instructions as to the method of consignment because of the fact that mistakes and delays occurred in the delivery of freight to him on account of the similarity of names of the town where he conducted his business and a city in an adjoining state. Conceding that the act of the agent of the Lehigh Valley company in response to the Ryan telegram specifically directed the delivery of the goods to Petersburg, Va., still it does not conclusively follow that that direction was an independent, intervening, proximate cause, for if the direction had been properly given by the defendant’s agent to the Lehigh Valley company the freight would not have been in Baltimore and would not have been routed and rated to Petersburg, Va. It would have gone by a different and direct course toward its destination. At least, a jury would be justified in assuming that such would have been its course, and it might well be concluded from the evidence that the original negligence of the defendant was directly connected with the subsequent mistake of the agent of the Lehigh company in causing the loss, especially in view of the fact that it does not appear that there was any railroad station named Petersburg in West Virginia. The portion of the shipping directions omitted from the “Pro.” was the only railroad destination given on the paper, and it was not an improbable consequence of the omission that the employees of the connecting road would be misled as to the terminus of the route. We are not warranted in declaring as a matter of law that the act of the agent of the Lehigh Railroad Company in directing the shipment to Petersburg, Va., was so independent of, and unrelated to, the negligence of the defendant’s agent as to relieve the defendant from liability for the injury. Exemption in the contract of carriage from loss or damage beyond the line of the forwarder will not relieve the latter where such damage is brought about by negligent misdirection by the first carrier: North et al. v. Merchants’, etc., Transportation Co., 146 Mass. 315; Johnson v. R. R. Co., 33 N. Y. 610; Ill. Cent. R. R. Co. v. Southern Seating, etc., Co., 104 Tenn. 568.

The court left it to the jury to say whether there was a special arrangement made between the defendant and the Lehigh Valley Railroad Company, under which the latter company would rate and route all property consigned to it over the branch of the defendant’s road from which this freight came, with the instruction that if they should so find, then the act of rating and routing the plaintiff’s property was in legal effect the act of the defendant, in which case the exemption from liability clause in the bill of lading would not relieve the defendant. This instruction was predicated of the evidence of Mr. Mc-Millen and Mr. Mattes, from which it may be inferred that such method of doing business existed. The company did not have any arrangement for through rates or routes from the station at which this freight was shipped to stations on the B. & 0. Railroad, and it became necessary to have the freight rated and routed under their arrangement with the Lehigh Valley company at their junction at Easton. It is not to be supposed that when the defendant accepted the consignor’s freight it was the understanding that it was to be delivered at Thirteenth street in Easton. Its obligation went beyond that. The freight was accepted for delivery at a distant station and the carrier’s duty was not performed when it was brought to Easton. The railroad company was required to deliver the consignment to the connecting carrier, and if, as the evidence tends to show, instead of fixing the rate and route at the station where it received the freight it arranged to have that done by the Lehigh Valley Railroad Company it would be responsible for any fault of the agent of the latter company when acting in the defendant’s behalf about the contract of shipment.

Objection is made to the instruction of the court with reference to that provision of the bill of lading which provides that claims for loss or damage must be made in writing to the agent at the point of delivery promptly after the arrival of the property and if delayed for more than thirty days after the delivery of the property or after due time for the delivery thereof the carrier shall not be liable in any event. That a claim in writing was made within thirty days after the property was delivered at Keyser is clearly established. There is also evidence that a letter was read to the station agent of the defendant at the place of shipment containing notice of the failure to deliver promptly. After notice, the defendant undertook to locate the shipment and to deliver with dispatch. The plaintiff was also notified by the agent at Keyser that there would be plenty of time after the arrival of the machine to serve notice; that there was no evidence before him that the freight had come on to the line of that road. This evidence if credited shows that the defendant had prompt notice of the nondelivery of the freight as had the agent at the point of destination, and the conduct of the defendant with reference to the delivery of the property after notice of nondelivery brings the case within the doctrine of Eckert v. R. R. Co., 211 Pa. 267. The object of the provision in the contract for notice is to enable the carrier to take the necessary steps to bring about the delivery of the property or to inquire into the facts and protect against imposition. All this was accomplished in the case now before us. The company had the full benefit of the provision for notice, and its conduct subsequent to notice raises a basis for the conclusion that further notice in writing was waived.

In addition to the cost of the machinery and the expenses incident to its shipment, which would be the amount of damage ordinarily, the plaintiff claimed special damages for the loss of the use of the machine and recovered $500 for loss on fodder and $285 for loss on manure. The case was apparently submitted to the jury on the theory that the machine was indispensable to the shredding of the fodder and the economical feeding of the cattle, but it is not to be overlooked that it was not a machine for shredding or cutting fodder; it was a power apparatus simply which could be attached to machinery adapted to shredding fodder or so far as appears to any other agricultural implement. It was not a machine of peculiar construction and specially adapted to the particular purpose, and it is not shown that another power might not have been obtained to answer the same purpose. Indeed, it did appear at the trial that the defendant had procured a gasoline engine from the same manufacturer in February following the shipment of the horse power, and he had notice in December that his machine had been miscarried and was at Petersburg, Va. Moreover, the evidence as to the necessity for feeding the fodder at the time and in the way in which it was done does not bring the case within the class entitling the plaintiff to special damages. According to the plaintiff’s statement, when he bought his farm it was arranged to feed whole fodder in the cattle pens. He had this construction torn out and boxes put in for feeding shredded fodder. There were stalls all through the place. These he caused to be torn out and the sheds divided into sections of ten so that ten cattle could be fed in one section. There was also a large barnyard for them to run in and straw racks there for feeding straw. According to his theory it was not possible to feed them whole fodder in that arrangement, but we are not informed what difficulty there would have been in adopting a plan under which the whole fodder could have been fed, nor what the cost of such arrangement would have been, nor whether it was necessary to feed the fodder before he got the power to operate his shredder. The claim for the loss on manure grows out of the alleged inability to feed the cattle at the barn. The winter was cold, and in order to protect the cattle they were fed in a hollow in a sheltered place and in the woods, with a consequent loss of manure. If loss is to be charged against the defendant in accordance with the convenience of the plaintiff his calculations may be well supported, but it must first be shown that there was no other reasonable or practicable way in which his feeding enterprise could be economically carried on. He was not at liberty to indulge in what he alleges to have been a wasteful method of taking care of his stock and charge his loss to the defendant. It should be made clearly to appear that it was necessary to feed the cattle in the woods rather than in the barn or barnyard, and that there was no available means of securing power to operate the shredder, before the jury could enter into a consideration of the loss set up in this branch of the plaintiff’s case. In these days of multiplied and easily obtained implements for the production of power the inability of the plaintiff to provide means for cutting his fodder or to feed the same to his cattle in his bam should be made reasonably to appear. Nor do we think that the information communicated by the manufacturing company to the agent of the defendant at the time the shipment was made was of such facts as would put the defendant on notice of such results of a breach of the contract as are involved in this branch of the plaintiff’s claim. The measure of damages in case of a loss of freight is ordinarily the value of the thing lost or the contract liability. The value here was shown to be $241. The jury also found that the plaintiff was subjected to $55.00, expense of team. As the verdict returned by the jury discloses the items composing the aggregate we know what part of it was made up of these items. The verdict should, therefore, be modified and judgment entered for the amount recoverable on the case as presented, to wit: the price of the horse power and the expense incurred in sending a team to the station to transport it to the plaintiff’s farm. These items amount to $296, to which should be added interest for five years, five months and eighteen days, to the date of the verdict, making the amount of the judgment $393.09 at that time.

The judgment as thus modified is affirmed.


text:
    Rieger v. Stoudt, Appellant.

      Easement — Right of way — Obstruction—Nuisance—Prescription■—Deed —Injunction—Equity.

    A person upon whose land an easement of a right of way for the benefit of adjoining land has been established for sixty years either by deed or by prescription, has no right to obstruct and close up the right of way merely because the adjoining owner maintains an ash and garbage pile and other things along or near the right of way amounting in the opinion of the servient owner to a nuisance; and if he attempts to do so the obstruction which he puts up will constitute a nuisance to the right of way which a court of equity may abate by injunction.
    Argued Dec. 11, 1908.
    Appeal, No. 95, Oct. T., 1908, by defendant, from decree of C. P. Schuylkill Co., July T., 1907, No. 1, on bill in equity in case of Henry Rieger et al. v. John S. Stoudt.
    March 8, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Shay, J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in refusing various requests for findings of fact and conclusion of law.

      L. D. Haughawout and W. F. Shepherd, for appellants.—
    To justify a mandatory preliminary injunction a clear case of prospective injury for which the plaintiff will have no adequate remedy at law is indispensable: Gardner v. Stroever, 6 L. R. A. 90; Gardner v. Jersey City, 32 N. J. Equity, 586; Powell v. Foster, 59 Georgia, 790; Johnson v. Conn. Bank, 21 Conn. 148; Watson v. Sutherland, 72 U. S. 74.

      George Dyson, for appellees,
    cited: McCarty v. Kitchenman, 47 Pa. 239; Cannon v. Boyd, 73 Pa. 179; Richmond v. Bennett, 205 Pa. 470; Hacke’s App., 101 Pa. 245; Manbeck v. Jones, 190 Pa. 171.
   Opinion by

Morrison, J.,

The defendant appeals from a final decree in equity compelling him to remove obstructions which he had placed across an easement, a right of way, across his lot in the borough of Pottsville. In 1844, George Heffner owned a lot of ground in the borough of Pottsville, on the westerly side of Centre street, sixty feet front on Centre street and 240 feet deep to Second street, and on June 21, 1844, he granted and conveyed to George Moyer, now deceased, the northern part of said lot, being forty-three feet along Centre street to Minersville street and extending in depth 240 feet to Second street; said property being now known as the Eagle hotel. Heffner still retained seventeen feet and five inches in width of said original lot No. 82, “Excepting and reserving for himself out of the premises aforesaid, the free and uninterrupted use, liberty and privilege of a passage along the messuage, or dwelling house, through the yard of said premises, which are about to be conveyed to the said George Moyer, to a thirty-three feet wide street on the northern end of the said house and also the free and uninterrupted use of the hydrant in the yard, together with free egress, ingress and regress to and for the said George Heffner, his heirs and assigns, with horses and carts and carriages at all convenient times and seasons through the yard of the said George Moyer, his tenants and undertenants, occupiers or possessors to his heirs ánd assigns forever, in common with the said George Moyer, his heirs and assigns, subject nevertheless to the moiety or equal half part of all necessary charges and expenses which shall accrue in paying, amounting, repairing and clearing the said yard, and his portion of water rent to the Pottsville Water Company for the use of the said water.” The hydrant mentioned in said deed is not in controversy.

By sundry conveyances from the said George Moyer, now deceased, and his grantees, John S. Stoudt, appellant, became vested with the title to said lot and premises known as the Eagle hotel property, and he has been in possession of the same by virtue of a deed from Harris Rubinsky and wife, and Israel Rubinsky, dated June 29, 1905, which deed refers to the above easement or right of way. By virtue of a deed, dated March 24, 1847, from George Heffner to John Rieger and Gottlieb Rieger, now deceased, and a legal conveyance from John Rieger, aforesaid, and the operation of the intestate laws, the title to the southern part of said first mentioned lot, beginning at a point forty-three feet from Minersville street, on Centre street, thence southerly seventeen feet and five inches to lot No. 81, thence westerly 240 feet to Second street, became vested in Henry Rieger, George W. Rieger and Rosa Heblich, appellees.

In the appellant’s answer he admits that he fenced, closed, blocked and locked the old right of way from the appellee’s lot to his premises; that on notice to abate and remove the obstructions to the servitude and right of way, he refused so to do and that he had attempted to change the location of the right of way to a point about thirty-five feet west from fhe rear of his premises where it had been theretofore located and used for a period of nearly sixty years. He averred that he fenced and destroyed the original right of way for the reason that the odor coming from the garbage and other refuse matter, taken from the premises of the appellees, near the right of way, in conjunction with that which was left there by the passing of cattle, horses, etc., to the stables on the rear of appellant’s premises, created such a nuisance that he was justified in closing and destroying this right of way, which had been in existence and use for nearly sixty years.

The case was first heard on bill and answer and the learned court found the facts and conclusions of law and made a nisi decree, recognizing that the plaintiffs were maintaining a nuisance in or along the right of way and refusing to grant them the relief prayed for until they would abolish the nuisance. The learned court says in his supplemental opinion that he believed from representations of counsel that this was a final hearing and he filed his opinion accordingly; that "counsel for defendant demanded the taking of testimony which we permitted and which we have carefully considered; that counsel for plaintiff on first argument admitted all of defendant’s answers for the purpose of the case, but stood upon the law claiming defendant had no legal right to remove or destroy the right of way; that after a careful review of this testimony we must revise some of our findings of fact and conclusions of law: ” The fourth finding of fact, to wit: plaintiffs have committed a long continued nuisance along this right of way, and neglected or refused to abate the same upon notice, we must reverse.

“The great weight of the evidence, even by some of defendant’s own witnesses establishes a contrary state of facts, that is, that plaintiff has not maintained a nuisance there at all. Defendant complains of the privy and ash pile on plaintiff’s premises. They are there, not by reason of this right of way and have nothing whatever to do with it. They would be there and are there now, whether the right of way existed or not.

“ .... We therefore find as an additional or revised fact that plaintiffs have committed no nuisance along this right of way.”

We think the evidence fully sustains the learned court in all of the findings of fact. It thus appears that, insisting upon-taking more than 100 printed pages of testimony, after a supposed final hearing on bill and answer, the defendant found himself in a worse position than before he took any testimony. Some of his averments in the answer being completely overthrown by the evidence.

The foundation of the error running through the appellant’s argument is the assumption that because an ash and garbage pile and some other things along or near this right of way amount, in defendant’s opinion, to a nuisance, he can, therefore, by his own act, shut up and destroy a right of way created by deed of record long prior to the time when he acquired any interest in the property in question. This contention will not stand the test of a fair legal consideration for a moment. Whatever is reasonably incident to the proper upe of this right of way cannot be treated as a nuisance. If the plaintiffs are maintaining an ash and garbage pile which amounts to a nuisance, along or near this right of way, the learned counsel for the appellant ought to be able to discover a legal method of having the nuisance abated. But this cannot be done by forfeiting plaintiff’s rights under a deed under which both appellant and appellees claim title. The learned counsel further contend that the original right of way was not definitely located in the deed which created it, but here again they are mistaken. In the Heffner deed of 1844, the right of way is described as follows: “The free and uninterrupted use, liberty and privilege of a passage along the messuage or dwelling house through the yard of said premises, which are about to be conveyed to the said George Moyer, to a 33 feet wide street on the northern end of the said house,” etc. Now, as we have seen, this right of way was opened and used along or next to the dwelling house for a period of nearly sixty years, and it is now idle to contend that the appellant can close this right of way and open another one thirty-five feet west of it without the consent of the appellees. This for two reasons: (a) the deed describes and locates the right of way with reasonable certainty, and (b) if this were not so, the location and use of it for nearly sixty years, next to the dwelling house, would establish the location by prescription. The evidence shows that appellant knew that this right of way was there when he bought this property and he had lived there for a number of years when he purchased it.

In Cannon v. Boyd, 73 Pa. 179, our Supreme Court (p. 181) said: “Where a continuous and apparent easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, the law is well settled that a purchaser at private or judicial sale, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement or servitude: Seibert v. Levan, 8 Pa. 383; Overdeer v. Updegraff, 69 Pa. 110; and cases there cited.” See also McCarty v. Kitchenman, 47 Pa. 239. These cases were cited and followed in Manbeck v. Jones, 190 Pa. 171.

In Richmond v. Bennett, 205 Pa. 470, it is held as stated in the syllabus: “ In general, an easement created by express grant cannot be destroyed by anything short of a new grant of equal solemnity or adverse possession, constituting a prescriptive right. Nonuser will not terminate it.”

But the learned counsel for appellant contend that the court erred in granting an injunction. Their theory is that the appellees must resort to their remedy at law, but here they are wrong again. In Hacke’s Appeal, 101 Pa. 245, it is said in the first syllabus: “Nuisances to rights of way form one of the classes of cases in which the equitable remedy of injunction may be sought. If the right is clear and not doubtful, it need not first be established by a suit at law, nor is it necessary that the owner should prove special damage to entitle him to a decree.” In that case (p. 249) Mr. Justice Trunkey, speaking for the court, said: “ It has long been settled that nuisances to rights of way are one of the classes of cases in which the equitable remedy by injunction may be sought. This was established in England, and accepted as a rule in this country. No case has been cited where it was denied or doubted in this state. Its existence has been recognized. The dictum is, that the right should be clear to warrant a decree and injunction to compel the keeping open of the way, and if the right be doubtful a chancellor will pause until it be established by law: King v. McCully, 38 Pa, 76.” That case is quoted with approval by Mr. Justice Mestrezat in Garvey v. Refractories Co., 213 Pa. 177, and also in Mershon v. Fidelity Ins., etc., Co., 208 Pa. 292, and we followed Hacke’s Appeal in Hickham v. Twaddell, 25 Pa. Superior Ct. 188.

In Manbeck v. Jones, 190 Pa. 171, it is said in the syllabus: “ Where a right to a way is not doubtful, but is clearly shown, equity has jurisdiction to compel the keeping open of the way, before a decision on the question of the right to the easement is had on the law side of the court. . . . The law does not offer an adequate remedy. ”

If there ever was a clearer case of an established right of way which the appellant could not arbitrarily close or obstruct, our attention has not been called to it. If the question had been tried on the law side of the court, the evidence would have called for a binding instruction to the jury.

We fully concur in the findings of fact and conclusions of law by the learned court below.

Decree affirmed and appeal dismissed at appellant's costs.


author: Rice, P. J.,

text:
    Boon & Hill Company v. Prudential Trust Company, Appellant.

      Assignment for the benefit of creditors — Contract of assignee — Additional liability of assignee — Evidence.
    1. In an action against the assignees for the benefit of creditors of a contractor to hold them personally liable‘for labor and material furnished in completing a building operation, a verdict and judgment for the plaintiff will be sustained where the evidence for the plaintiffs, although contradicted, tends to show that in giving the order for the labor and material nothing was said by the defendants as to their contracting in their representative capacity only, and that the plaintiffs understood that they were dealing with the defendants in their individual capacity.
    2. Assignees for the benefit of creditors are of the class of trustees who are personally liable on their contracts.
    3. Where there is evidence partly written and partly oral that the assignees for the benefit of creditors made a contract in their representative, and not their individual, capacity, such evidence is for the jury, and the court cannot say as a matter of law that the contract was only binding upon the assignees in their representative capacity.
    4. When matters of fact, depending on oral testimony, are connected with and necessary to a proper understanding of the written evidence, the court is not bound to construe the latter as though it stood alone, and an admixture of oral and written evidence draws the whole to the jury.
    Argued April 15,1908.
    Appeal, No. 45, April T., 1908, by defendants, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 697, on verdict for plaintiff in case of The Boon & Hill Company v. Prudential Trust Company and J. B. Flint.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Beaver, JJ.
    Reversed.
    Assumpsit to recover for labor and material furnished to a building operation.
    Defendants presented the following points:
    1. As to the first three houses referred to in the statement of claim, there is no evidence of guaranty or promise of payment which would render the defendants liable personally. Answer: We answer that this way: There is no evidence of guaranty in the strict legal signification of guaranty, but there is evidence from which you may or may not find an agreement by the defendants to pay the plaintiff. If you find that there was an agreement by the defendants to pay the plaintiff, the plaintiff would be entitled to a verdict not only for the three houses but all four. Otherwise your verdict would be for defendants. In other words, if you find from the weight of the evidence that the defendants contracted with the plaintiff for papering the houses, the plaintiff is entitled to a verdict. On the other hand, if the defendants had nothing to do with the contract for the papering and so told young Mr. Hill, who was representing the plaintiff in endeavoring to secure the contract and referred him to Mr. Beeckman, and Mr. Beeckman met young Mr. Hill with full knowledge on Hill’s part that it was a contract with Beeckman in behalf of the owners of the property, the plaintiff could not recover and your verdict would be for defendants. [1]
    2. As to the fourth house, the defendants are not liable personally under the written paper “exhibit 2,” because:

      a. Said guaranty was signed and made by defendants as assignees.
    b. The Prudential Trust Company, one of the defendants, is a corporation organized under the act of assembly of 1889, and as such had no authority under the law to become guarantor, and such contract of guaranty is ultra vires and void.
    c. The contract of guaranty by these defendants, being a joint one, and being void as to the Prudential Trust Company, one of the defendants, plaintiff cannot recover against J. B. Flint, the other defendant.
    d. The action is brought against defendants in their individual capacity, and J. B. Flint, one of the assignees, would, as such assignee, have no power to bind his coassignee individually as a guarantor.
    We answer that point this way: In this charge to you we eliminate from your consideration the question of guaranty in its technical sense, and leave to you solely for consideration the question whether there was or was not an original contractual undertaking between the defendants and plaintiff for the papering of the four houses. If there was such contract, the plaintiff is entitled to recover. If there was no such contract, in other words, if the contract was not made with these assignees but with Mr. Beeckman as representative of the owners and Mr. Hill knew that fact, then your verdict should be for the defendants. [2]
    4. It being the position of the plaintiff that the contract was with the defendants as assignees, and any promise to pay was made as assignees, this action against the defendants as individuals cannot be sustained, and the verdict must be for the defendants. Answer: Refused. [3]
    5. Under the pleadings and evidence, the verdict must be for the defendants. [4]
    The court charged in part as follows:
    [On the other hand, if the contract that Mr. Beeckman made failed to disclose that he was making it for the owners of the property, then he was making it for the Prudential Trust Company and Mr. Flint, and for this reason the Prudential Trust Company and Mr. Flint were the assignees of this unfinished work and other property that passed to them, and as assignees they undertook to complete the work. That work included the papering, because the specifications say that the papering, which is to be done to the satisfaction of the owner, is not to cost over $200, but these contractors agreed to do that papering, to be responsible for finishing it in a way satisfactory to the owner, and the papering must not cost over $200. So that the papering was part of the work which these assignees had in their hands. Young Mr. Hill says when he was endeavoring to get the work that he went to see Mr. Flint, who was one of the assignees. Remembering that the whole unfinished work was in the hands of the assignees and they were doing that, Mr. Flint says, “That part of the work is in the hands of Mr. Beeckman; you see him, and if you make it satisfactory to him, or it is satisfactory to him, it will be to us,” or to me, or whatever the expression was. If that was all that was said, Mr. Hill had the right to assume that in referring him to Mr. Beeckman he was being referred to an agent who had authority to speak, and in the absence of a clear statement to him that the situation was otherwise, Mr. Hill had the right to assume that Mr. Beeckman was the agent' of Mr. Flint, who was the active assignee in doing this work, and therefore the two defendants would be responsible for the work contracted for.] [5]
    [Young Mr. Hill says he got a contract for nine houses, and the dispute here is as to who should pay for the work that was done, whether these defendants should pay for it. They ought to pay for it if young Mr. Hill got the contract without any knowledge, either from Mr. Flint, or Mr. Beeckman, that the work was being ordered for some person other than the assignees.] [6]
    Verdict and judgment for plaintiff for $1,002. Defendants appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      George R. Wallace, for appellants. —
    The defendants were not personally liable: Gillespie v. Blair Glass Co., 189 Pa. 50; Schmidt v. Gayner, 59 Minn. 303 (61 N. W. Repr. 333); Sager Mfg. Co. v. Smith, 45 N. Y. App. Div. 358; Nason Mfg. Co. v. Garden, 52 N. Y. App. Div. 363; Farmers’ Loan & Trust Co. v. R. R. Co., 2 McCrary, 181; Davis v. Duncan, 19 Fed. Repr. 477; Walsh v. Raymond, 58 Conn. 251 (20 Atl. Repr. 464); Camp v. Barney, 4 Hun (N. Y.), 373; McCan v. O’Ferrall, West H. L. 593; Edrington v. Pridham, 65 Tex. 616; Bodkin v. Merit, 102 Ind. 293 (1 N. E. Repr. 625); Stelzer v. LaRose, 79 Ind. 435; Emeigh’s Case, 26 Pa. C. C. Rep. 253; Vermont, etc., R. R. Co. v. Vermont Cent. R. R. Co., 46 Vt. 792.
    April 12, 1909:

      R. A. Balph, with him Jas. Balph, for appellee. —
    Trustees of all kinds are liable personally for all contracts made with them in the course of the administration of the estate committed to them, unless such trustees specially stipulate in the contract against such liability, and the creditor must look to the trust funds for payment: Grier v. Huston, 8 S. & R. 401; Seip v. Drach, 14 Pa. 352: Woodward’s App., 38 Pa. 322; Tassey v. Church, 4 W. & S. 346; Patterson v. McCarthy, 1 Penny. 491; Schmittler v. Simon, 101 N. Y. 554 (5 N. E. Repr. 452); Willis v. Sharp, 113 N. Y. 586 (21 N. E. Repr. 705); Davis v. Stover, 16 Abbott (N. S.), 225; Ryan v. Rand, 20 Abbott, N. C. 313; Rogers v. Wendall, 54 Hun, 540; New v. Nicoll, 73 N. Y. 127.
   Opinion by

Rice, P. J.,

The following excerpt from the charge of the learned court below will show in a general way how the case arose and one of the questions for decision: “This suit against the Prudential Trust Company and Mr. Flint, assignees of the Pittsburg Construction Company, arises in this way: The Pittsburg Construction Company and West & Wilson, who were building contractors, contracted for the erection of five houses on Home-wood avenue, and four houses on Irwin avenue, in the city of Pittsburg. West & Wilson and the Pittsburg Construction Company proceeded with the work, but finally became insolvent, and the assets, this work, passed over to the assignees, who are defendants in this action. It is not disputed that these assignees went ahead to complete the work and finish the houses; that is admitted. In the completion of the hoüses the Boon & Hill Company did some papering, and the question for you to determine is, whether the contract with the Boon & Hill Company was a contract made with these two defendants, the Prudential Trust Company and Mr. Flint, or was a contract made with the owners, Mr. Wright and Mr. Budd, it being alleged that Mr. Beeckman was the agent of the owners.”

Mr. Flint, one of the defendants, testified when called for cross-examination, that he was the active manager in the completion of the houses and that what he did in that matter was with the knowledge, consent and authority of his coassignee, the other defendant in the case — that he was acting for him. The testimony of George H. Hill, who represented the plaintiff, was to the effect that he went to see Mr. Flint in regard to getting the contract for papering the houses, that Mr. Flint referred him to Mr. Beeckman as the person who had that part of the work in charge, and said that if it was satisfactory to Mr. Beeckman it would be satisfactory to him. ■ He further testified that he called upon Mr. Beeckman, telling him he had been sent by Mr. Flint, and that after some delay Mr. Beeckman came to the plaintiff’s place of business, when this occurred according to the testimony of the witness which we quote: “He selected— I showed him different grades of paper for the different rooms in the different houses, and he said as we were decorators we knew more about it than he did, and to do it.” After the paper was selected the plaintiff proceeded with the work and completed the three houses. There was other evidence tending to sustain the plaintiff’s contention that Mr. Beeckman was held out by Mr. Flint as the defendants’ agent, with authority to act for them in the matter, and tending also to show that the defendants knew of and acquiesced in, or at least did not dissent from, what had been done. On the other hand, the defendants contended on the trial and gave evidence tending to show, that Mr. Beeckman was not their agent but the agent of the owners of the buildings and that it was as such agent that he was referred to in the conversation between Mr. Flint and Mr. Hill. In brief, the question whether the plaintiff did the work upon the order of Mr. Beeckman as agent for the owners or upon the faith of the defendants holding him out as having authority to act for them, depended upon conflicting testimony and the inferences to be drawn therefrom and was determined in favor of the plaintiff’s contention by the jury to whom it was clearly and impartially submitted by the court.

But it is claimed that although the plaintiff did the work under the order of the defendants, and not the order of the owners, the contract implied therefrom must be deemed a contract in their representative capacity only, and therefore they incurred no personal liability. In support of this contention the defendants put in evidence an order of the common pleas, made upon their application, authorizing them to prosecute the work of completing the buildings, to purchase materials and employ labor in connection therewith and to carry on the business of the Pittsburg Construction and Manufacturing Company, so far as might be necessary, for the purpose of completing its contracts. We shall not undertake to determine whether or not this order of the court will enable the defendants to obtain reimbursement in the settlement of their account for expenses they incurred in carrying out the contracts of the assignor. Even if the doctrine enunciated in Gillespie v. Blair Glass Co., 189 Pa. 50, that a chancellor will seek to protect one acting in strict compliance with his orders from loss, will be applicable and will aid the defendants in the settlement of their administration of the trust, it does not necessarily follow that they incurred no personal liability to the plaintiff. For, it is to be noticed, there is no evidence, so far as the first three houses are concerned, that the above order of court was known to the plaintiff or was mentioned in the negotiations, or that anything was said by the defendants as to their contracting in their representative capacity only. It is not uncommon for an agent or a trustee to bind himself personally, looking to the principal or the trust estate for indemnity, and judging the contract, which the jury in this case found was made, by what was said by the parties, it is proper to speak of it as the personal contract of the defendants. Their learned counsel concedes that, generally speaking, fiduciaries who are not officers and agents of the court, such as trustees by deed or will and ex•ecutors, are personally liable upon their contracts, but contends that those who are officers or agents of the court, such as receivers and trustees in bankruptcy, and who act under and within an express order of the court, are protected from personal liability. Granting the correctness of this distinction, we are constrained to the conclusion, that irrespective of the Act of June 4,1901, P. L. 404 (which according to the ruling in Potts v. Smith Manufacturing Company, 25 Pa. Superior Ct. 206, cannot affect the question), an assignee for the benefit of creditors is a trustee of the former and not of the latter class, and that the contract in question, so far as it relates to the first three houses, is governed by the principles enunciated in Grier v. Huston, 8 S. & R. 401, and other cases-of the same class cited in the brief of the appellee’s counsel. We refer in addition to Fehlinger v. Wood, 134 Pa. 517, 521, 522, and the authorities there .cited.

With regard to the fourth house a different question is presented. It is alleged in the plaintiff’s statement of claim, that when the papering of the fourth house was partly completed, the defendants not having paid plaintiff anything on account of the papering of the three houses then completed, the plaintiff refused to proceed further with the work on the fourth house until the defendants paid for the work already done or gave plaintiff some evidence in writing of defendants’ liability therefor; that thereupon the defendants gave the plaintiff the following writing and that thereupon the plaintiff completed the papering of the fourth house. The paper reads as follows:

“Pittsburg, Pa., Nov. 28,1902.

“This is to certify that we guarantee the payment of the papering the lower house on Irwin avenue to Boon and Hill. This being the house they are now working at nearest to Forbes street. C. Budd being the owner. Contract price $200.00.

“Prudential Trust Co.,
“J. B. Flint, “Assignees.
“Per J. B. Flint.”

In connection with the foregoing should be noticed the testimony of Mr. Flint that Mr. Hill and his father came to see him and, quoting his words, “I told them if they would go and finish it — they had already started it — we, as assignees, would guarantee the payment of this one fourth house.” Mr. Beeekman also testified that they (meaning Mr. Hill and his son) said “we would have to get the assignees to agree to the payment themselves or guarantee the payment of this bill for this last house.” He further testified that Mr. Flint and the president of the trust company “agreed as assignees of the Pittsburg Construction Company to pay these bills, to pay the bill for that last. hpuse.” Likewise the testimony of Mr. Hill himself is entirely reconcilable with the theory that, particularly as to the fourth house, he looked to the assignees, as such, for payment. It is not for us to put an interpretation on the language of the witnesses. The evidence relating to the fourth house being partly in- writing and partly oral was for the jury. “When matters of fact, depending on oral testimony, are connected w;ith and necessary to a proper understanding of the written evidence, the court is not bound to construe the latter as though it stood alone. An admixture of oral and written evidence draws the whole to the jury:” Home B. & L. Assn. v. Kilpatrick, 140 Pa. 405; Sidwell v. Evans, 1 P. & W. 383; Chicago Cottage Organ Co. v. McManigal, 8 Pa. Superior Ct. 632; Hillman & Co. v. Joseph, 9 Pa. Superior Ct. 1; Wetherill v. Erwin, 12 Pa. Superior Ct. 259. It was for them to determine what was the intention of the parties at the time plaintiff refused to go on under what it claimed to be the original contract and insisted upon a new arrangement. But, under the instruction of the learned judge they were not at liberty to find, as we think a jury might have found, that the parties viewed the contract as one with the defendants in their representative capacity only, and did not intend that the defendants should be bound personally and absolutely for the cost of papering the fourth house.

The conclusion we have reached is, that so far as the first three houses are concerned the court was right in its construction of the contract which the jury found was made, but that as to the fourth house the question whether the defendants bound themselves personally was for the jury under appropriate instructions by the court. The result is that the judgment must be reversed and the cause be sent back for retrial unless the plaintiff elects to remit that part of the judgment which covers the claim for papering the fourth house.

It is therefore ordered that the judgment be reversed and the record be remitted with an order awarding a venire facias de novo, unless the plaintiff, within twenty days from this date, shall file in the office of the prothonotary of this court a paper remitting one-fourth (less $5.90) of the amount of the judgment, but that if such paper shall be filed within the prescribed time the prothonotary shall mark the judgment affirmed for the reduced amount.