author: Orlady, J.,

text:
    I. D. H. Ralph v. Charles A. FonDersmith, Trustee, Appellant.

      Sale — Rescission of — Fraud—Knowledge of insolvency.

    The insolvency oE a vendee and his knowledge of it when the purchase is made are not alone sufficient to invalidate a sale or support an action by the seller in rescission of it. There must be some trick, artifice or deception used, or conduct which reasonably involves a false representation to accomplish the purchase.

      Rescission of sale — Knowledge and assertion as to insolvency.

    There must be convincing facts in evidence to show with clear certainty that a condition of insolvency was well known to a purchaser of goods when he asserted solvency as a means of procuring a sale of goods to himself, otherwise his assertion does not have that aspect of fraud, or artifice, or misrepresentation which is required to abrogate an executed contract.

      Rescission of sale — Statement made to mercantile agency.

    A sale made on a mistaken rating by a mercantile agency founded upon information given to that agency by the purchaser, upon which such erroneous rating was based by filie agency, will not be sufficient to justify a rescission of a sale on the ground of fraud, especially as in this case the statement made by the purchaser to the agency was not fairly given to the public in the report of the agency.

      Evidence — Rescission of sale — Res gestee.

    In a feigned issue to test the rescission of a sale for fraud of purchaser, evidence is inadmissible of the representations made by a mere purchasing agent of the purchaser to other parties from whom goods were bought about the same time, there being no evidence that plaintiff knew of such sales or representations at the time he made the sale which he attempts to rescind, or that the agent was authorized to make any representations.
    Argued Nov. 12, 1896.
    Appeal, No. 80, Nov. T., 1896, by defendant from judgment of C. P. Lancaster Co., Aug. T., 1895, No. 66, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Interpleader in claim to property levied upon by tbe sheriff as the property of Amos B. Hostetter. Before Brubaker, J.
    The facts sufficiently appear in the opinion of the Superior Court.
    Verdict for plaintiff. Defendant appealed.

      Errors assigned we re among others (7-16 in part and 19) to the admission of evidence as to representations made by Hostetter, or on his authority to parties other than the plaintiff at or about the time when the sale was made by the plaintiff to Hostetter, which was admitted by the court for the purpose of showing the knowledge or intent of Hostetter at the time he is alleged to have committed the fraud in this case; (23, 26) to portions of the judge’s charge, which portions are set out in the opinion of the Superior Court; (27) in not affirming defendant’s point as follows: “Under the law and evidence in this case the verdict must be for the defendant.”

      W. U. Hensel, with him J. Hay Brown and A. F. Hostetter, for appellant.
    In this case Ralph acted not on Hostetter’s statement, but practically on his own judgment, or at best on that of the mercantile agency which was his own agent to get information; and he is, therefore, not entitled to relief under the decisions: Phipps v. Buckman, 30 Pa. 401; Hough v. Richardson, 3 Story, 659; Slaughter’s Adm’rs v. Gerson, 13 Wall. 379.
    Let it be conceded that false representations to a mercantile agency, with the intention to procure credit thereby and to mislead vendors, -will void sales made by reason thereof (Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31), it still remains that:
    1. The fraudulent intent must be clearly shown; and,
    2. The representation must be proximately connected with the transaction: Eaton v. Avery, 83 N. Y. 31; Macullar v. McKinley, 99 N. Y. 353 ; Victor v. Henlein, 33 Hun, 549.
    As to the assignments which relate to the admission of evidence that Hostetter by his agent bought other tobaccoes at the same time as the Ralph transaction from other parties who relied on the Dun & Co. rating in extending credit to him such evidence is clearly admissible under the rule laid down in Neff v. Landis, 110 Pa. 204, inasmuch as there is no other evidence in this case of the falsity of the representations to Ralph and therefore their falsity could not be shown by representations to the Ohio people, even though these themselves had been false. Evidence of fraudulent representations must be clear and convincing: Wickham v. Moorehouse, 16 Fed. Rep. 324.

      False representations to avoid the contract must be made for the purpose of inducing the party complaining to enter into the contract and must have been relied upon by him: Berringer v. Beecher, 25 N. W. R. 491; Humphrey v. Merriam, 20 N. W. R. 138.
    The 27th assignment of error relates to the insufficiency of the plaintiff’s testimony to make out a case proper to go to the jury: Lowrey v. Ulmer, 1 Pa. Superior Ct. 425; Cooperage Co. v. Gaul, 170 Pa. 545 ; Perlman & Co. v. Sartorius, 162 Pa. 320 ; Bughman v. Bank, 159 Pa. 94.

      J. W. Johnson, with him B. F. Davis for appellee.
    The false representations made to the agency had the same effect as if they had been made to Hostetter by Ralph: Eaton v. Avery, 83 N. Y. 31; Cazeaux v. Mali, 25 Barb. 578; Newberry v. Garland, 31 Barb. 121: Bruff v. Meale, 36 N. Y. 200; Morgan v. Skiddy, 62 N. Y. 319 ; Com’th v. Call, 38 Mass. 515; Com’th v. Hayley, 48 Mass. 462.
    It has nowhere at any time been contended by the plaintiff that the insolvency of the purchaser and his knowledge of it when he made the purchase were alone sufficient to invalidate the sale. But such fact and such knowledge are evidence to go to the jury with other facts to show the intent of fraud. This was clearly decided in Cooperage Co. v. Gaul, 170 Pa. 546.
    February 16, 1897 :
   Opinion by

Orlady, J.,

On February 21, 1895, I. D. H. Ralph sold twenty cases of leaf tobacco, of the value of $771, to Amos B. Hostetter, and ten days later delivered the property; • in payment for which, the purchaser gave notes, one of $400 and one of $371, due four months after date.

On May 14,1895, Hostetter executed two notes, aggregating $94,238.05 in favor of Chas. A. FonDersinith. trustee for seven creditors of the defendant, on which judgments were entered, executions issued, and amongst other personal property, one thousand one hundred and eight cases of leaf tobacco (including the twenty cases sold by Ralph), were levied upon by the sheriff of Lancaster county, as the property of Hostetter.

Ralph gave notice to the sheriff, that he claimed the twenty cases of tobacco as his property, he having rescinded the sale, made February 21, 1895, which as he alleged was induced by the fraud practiced upon him.

This issue was framed on the petition of the sheriff to determine the title to the property at the time of the levy.

On the trial, the contention on plaintiff’s part, was that Hostetter designedly, by trick and artifice practiced a fraud upon him and secured the possession of the twenty cases of tobacco under circumstances which justified him in rescinding the sale and claiming the property as his own.

He was examined as a witness and testified in chief:

“ Q. Upon the faith of what did you sell the twenty cases of tobacco that you have spoken of ? A. On his commercial standing as given by R. G. Dun & Co. Q. In what book ? A. The January book of 1895. Q. What did you do ? A. He is rated here ‘wholesale Leaf Tobacco D-2.’ Also ‘Actual Weight Leaf Tobacco Company.’ ‘ D-2,’ means §40,000 to §75,000 capital rating; D — means §40,000 to §75,000; ‘2’ in the general credit means ‘good.’ Q. And you say it was upon the faith of that publication that you sold him the goods and parted with the same and shipped them to him ? A. Yes, sir. Q. Did you see Mr. Hostetter personally at all about it? A. No, sir, this negotiation was done by correspondence; I should say his agent came here and got the goods. Q. The negotiations that led up to the sale that you made were not with Mr. Hostetter ? A. Not with Hostetter personally. Q. With whom was it? A. His man Perkins, ‘Wm. H. Perkins.’”

Plaintiff called Z. T. Wobensmith, a reporter of R. G. Dun & Co.’s commercial agency, who testified, that, “ the business of the agency was collecting information for the use of merchants in order that they may determine to what extent they may extend credit. The information when collected is verified, as far as possible, in order to make ratings for the book, and also for the purpose of making up special reports to send to the subscribers.”

The witness at the request of Hostetter, called September 5, 1894, at the office of the latter in Philadelphia, to secure information as to his financial standing. “ He had a statement prepared, which he stated to me, was prepared by his bookkeeper, Mr. Flood. It was a statement which was said to have been taken from his books on July 16, 1894, at the last time when he made a settlement of his books ; and that statement wasn’t signed, and upon my request to do so, asking him as to his willingness to sign it, he said, ‘ Certainly,’ and he did sign it in my presence.

“ Mr. Flood went over the books with me to show that the statement as given was taken from his books. At the same time he showed me his books, to show that he was paying his bills promptly at that time, and meeting his obligations with ordinary promptness. That was about all the conversation that took place at that time. He stated, if necessary, he would be willing to qualify that the statement was correct.”

The witness interpreted the rating “ D-2 ” to mean the same as given by the plaintiff.

The statement furnished by Hostetter is as follows:

Statement, 16th July, 1894.
Cash on hand: Farmers’ Bank, Lancaster $13,493.47
Mechanics’ Bank, Philadelphia 961.38
In Drawer . . . . 42.47 — 14,497.32
Stock on hand as per inventory . 46,229.22
Sundry debtors . 66,290.12
Fixtures Philada. $1,345
Lancaster . 550— 1,895.00
Bills receivable, not discounted . 8,551.64
$136,463.30
Bills payable . $68,723.72
Sundry creditors 15,758,62— 84,482.34
$51,980.96
A. B. Hostetter Personal Account.
Warehouse Lot 4 Tobacco Ave. Lancaster, Pa.......$4,500
House Lot 436 North Lime St. Lancaster, Pa. $8,500, Mortgage . . . 4,500
Cash Value Life Insurance . . 10,000
Building Assn. Cincinnati, Ohio . . 2,000
Building Lots Lincoln, Neb. . . 1,000— $ 22,000
$73,980.96
A. B. Hostetteb.
132 North 3d Street, Philadelphia, Pa. 16, July 1894.

At the date tbe statement was given, Hostetter claimed he was about $11,000 better than what is shown in the statement.

This was taken to the office of the commercial agenc3r, a copy made for publication in the records, and a rating for him made, based on the statement, which was published in the January book of 1895, viz : “ A. B. Hostetter, wholesale Leaf Tobacco D-2, also Actual Weight Leaf Tobacco Co,” and b3r aid of a key furnished to subscribers, the letter and number Avere made intelligible as stated by the plaintiff.

Depositions of five witnesses, taken on a commission in Ohio, were read under defendant’s objection to show that purchases of tobacco were made in March, 1895, for Hostetter by one Perkins as agent.

Defendant’s counsel objected to the depositions, but they were admitted, and showed that W. H. Perkins, acting for Hostetter, purchased from- A. H. Reeder and four others about 880 cases of tobacco, worth about $6,000, in payment whereof Hostetter gave notes at four months.

In each of these five sales, the statement, as to Hostetter s financial standing, was orally made by Perkins, and all Avere made subsequent to the one by Ralph.

The reason given by the court, for receiving the testimony, showing the Ohio purchases was, “ As to these purchases, the plaintiff is entitled to show what representations were made on or about the same time this fraud is alleged to have been committed, to show what representations Hostetter himself made, what representations his agent made, who Avas purchasing at the time for Hostetter, in connection with the statement that Hostetter himself gave to the representative of the mercantile agency, and what he said on the 21st of February to the mercantile agent. This is for the purpose of showing the knowledge or intent of Hostetter at the time he is alleged to have committed the fraud in this case.”

But, there is not any evidence to show that Hostetter kneAV of the statements made by Perkins; or that Perkins was authorized in any way by Hostetter to make aity statement as to his assets, liability, or financial standing. All that is shown is that Perkins was a purchasing agent for Hostetter.

The depositions fell far short of Avhat was claimed for them either as to representations made by Hostetter, or on his authority, and they sbonld have been excluded. The 7, 8, 10, 11, 12, 16 in part, and 19th assignments are sustained.

Mercantile reporting agencies are now a business necessity, and are so generally relied upon in determining credit that their reports are entitled to great weight, particularly so when the schedule of assets and liabilities is furnished by the person seeking a rating.

To be of any practical aid, the rating should not only be intelligible but true in fact. In the case in hand, the schedule was retained by the agency, and its deduction, from its standpoint, given to the subscribers under the abbreviations of “ D-2,” which on view, suggested that it was incomplete — an abstract, — and that the agency had further information relating thereto.

To the inquirer, this meant that Hostetter was worth from $40,000 to $75,000 over and above liabilities, and was in good credit as a business man, which rating stamped him as a desirable customer.

Had the rating in the January book of 1895 shown, that in determining the standing of commercial merit fixed by the agency, the information on which it was based, was a schedule furnished by Hostetter September 5, 1894, in which his business boobs showed that, as of July 16, 1894, he had $66,290.12 of uncollected book accounts, without giving name, business, or financial standing of the debtors; $84,482.34 of general debts without giving the character or maturity of his outstanding obligations ; $45,229.22 of inventoried stock in trade, without giving kind, quality, or condition of the property, each item of which must of necessity be of transient value and dependent on many contingencies, and at best could only be approximated; without mention of the annual business transacted by him, his presumably fixed assets being a life insurance policy $10,000, an equity in a house $,4,500, a warehouse $4,500 and some western town lots, lie would not have been regarded as a desirable customer, without an investigation into the many things the rating did not disclose, and of which, even the schedule did not convey sufficient information to be of advantage in determining his financial responsibility.

Hostetter was not a subscriber to the agency, and had the right to expect, that they would advise the credit world of all the facts contained in his statement, or at least enough to give the true meaning of the schedule. As the testimony shows, he-invited an examination into his business affairs at the time of delivering the schedule, and held himself ready to swear to the correctness of his statement.

Ralph was a subscriber to the agency, and under its rules could have secured the full and detailed schedule as given by Hostetter, and could have withheld credit until he investigated.

The propriety of crediting a person worth from $40,000 io $75,000, over all liabilities, would be a very different matter from extending the same credit at four months, to one whose business debts were more than twice the amount of his inventoried stock, and who claimed, as an available asset, $66,290.12 of book accounts.

This statement could be absolutely and technically true, and yet not entitle one to any other consideration than as a cash customer.

In this case, there was no evidence adduced to show, that the statement was not true in entirety and detail; that the purchases made were unusual in amount or value, as compared with his- general business; or that the indebtedness represented by the execution claiming the property in dispute, was not included in the schedule furnished by Hostetter.

The rating given by R. G. Dun & Co. was very misleading, and the schedule on which it was founded may have been entirely true.

The court said to the jury, 23d assignment, “We will say further to you as part of our instructions, it matters not, in considering the false statements — if they were false — of Hostetter, in reference to his financial standing, that they were not made directly to the plaintiff, in this case, they are sufficient to furnish ground for the rescission of the contract of sale by the plaintiff, if they were made to R. G. Dun & Co.’s agency, provided the plaintiff consulted the book of the agency, as he says he did, and was induced by the rating there given to make the sale and part with his property.”

And in the 26th assignment, “ I say there has been sufficient evidence produced to you from which you may find the knowledge and intent of Hostetter in the consummation of the purchase of tins leaf tobacco in suit from Ralph, and from which you may infer insolvency and his knowledge and concealment of his insolvency.”

The charge as a whole was a virtual direction to find for the plaintiff.

We think the learned court erred in giving this effect to the rating in the commercial agency, as it placed the whole responsibility of the mistake in fact, and error of judgment of the agency, on JKostetter.

It was not shown that he ever saw the rating. It is true, he reaffirmed the truthfulness of his statement, but the statement and rating are manifestly inconsistent and contradictory, besides, the rating was the act of the agency, and in this, it acted as agent for Ralph and other subscribers in securing the information therein contained.

The testimony of Ralph clearly shows that the credit to Hostetter was given exclusively on the rating in the book, and not on the statement furnished the agency by Hostetter. It was not attempted on the trial to attack the truthfulness of the statement, or that Ralph made any further inquiry to verify or qualify its correctness.

• The evidence failed to disclose any trick, artifice or false representations made to induce the sale, or that he withheld any material fact from his schedule which, while not full and clear, he submitted his books to explain and verify, and the agency could then see if he asserted too much or too little. The statement, with the examination of the books, appears to have been satisfactory to the agency. “ The solvency of a manufacturer or a merchant, who has debts and assets, unless the assets are of a fixed and stable character, and very largely exceed the liabilities, is quite an uncertain factor, and very much a matter of opinion. The history of the business affairs of our country at this moment illustrates the truth of this proposition in an extraordinary degree. When numbers of the most extensive and apparently wealthiest manufacturing, transporting, mercantile and banking firms and companies are constantly prostrated by the want of ready means, or the want of a market for their commodities, or by a sudden and great diminution in the value of their assets, the uncertainty as to their solvency is about the only certain thing that can be said of them,” is the language of our Supreme Court in Wessels v. Weiss, 156 Pa. 596 decided October, 1893, and is a forceful description of conditions existing at tbe time of giving the Hostetter statement.

In Bughman v. Bank, 159 Pa. 94; Perlman & Co. v. Sartorius, 162 Pa. 320; Cincinnati Cooperage Co. v. Gaul, 170 Pa. 546; Lowrey & Co. v. Ulmer, 1 Pa. Superior Ct. 425, the law in Pennsylvania is well settled upon the subject of fraud on the part of the purchaser necessary to justify the vendor in rescission of the contract and even the insolvency of the purchaser, •and his knowledge of it when he made the purchase are not alone sufficient to invalidate the sale or to support an action by the seller in rescission of it. There must be some trick, artifice or deception used, or conduct which reasonably involves a false representation to accomplish the purchase. The right to rescind the sale did not exist, unless the sale was brought about by fraud: Labe v. Bremer, 167 Pa. 15. In which case all the leading authorities are cited by counsel.

The indebtedness represented by the judgment of FonDer-smith was unquestioned, and whether of old or of recent date does not appear, but these creditors represented claims in the aggregate but little more than the amount mentioned in the statement.

The possession amongst other property used in his business at time of the levy of over eleven hundred cases of tobacco shows him to have been actively engaged in buying and selling this article of trade, and the fact that he confessed the judgments, instead of having them secured by adverse process does not affect their integrity, nor is the price realized at the sale, standing alone, evidence of the extent of his assets at the time of making the statement.

The defendant had a right to rest his case on the testimony of the plaintiff and his witnesses, and as is said in Wessels v. Weiss Bros., 156 Pa. 592, “ unless, therefore, there are convincing facts in evidence to show with clear certainty that a condition of insolvency was well known to a purchaser of goods when he asserted solvency as a means of procuring a sale of goods to himself, Iris assertion does not have that aspect of fraud, or artifice, or misrepresentation which is required to abrogate an executed contract. If an intending purchaser has a right to regard himself as solvent, and firmly believes that he is so, and therefore asserts his solvency to an intending seller who sells hint goods, Ills assertion of his solvency is certainly nob fraudulent, even though insolvency actually arises before payment for the goods is made.”

It would be destructive of many business transactions, to hold that an executed contract could be summarily rescinded, because the purchaser of the property had, months before, made a statement of his assets and liabilities to a commercial agency, the correctness of which he was willing at the time to verify by his' solemn oath, and which was in fact true, even if subsequent events proved his judgment and opinion to have been erroneous.

We think, under all the evidence properly received, there was not sufficient to warrant its submission to the jury, and that the defendant’s request for instruction (27th assignment of error), — “ Under the law and the evidence in this case the verdict must be for the defendant,” should have been affirmed.

The judgment is reversed, the costs to be paid by the appellee. A venire facias de novo is awarded.


source: Caselaw Access Project

author: Willard, J.,

license: Public Domain

text:
    James Gavigan v. The Atlantic Refining Company, Appellant.

      Action — Trespass—Cause of action.

    Whatever injury is inflicted by one person upon another creates a right of action in the injured person for such damages as he can prove he has sustained by reason of the injury; but for such injury, the right of action is vested in the person injured. A man may not recover for the injury and inconvenience inflicted on the personal comfort of his wife and family.

      Nuisance — Oil refinery — Cause of action.

    The.erecting, keeping and maintaining an oil refinery establishment in a thickly populated part of a city will give rise to a cause of action if the noxious vapors and offensive smells are proven to bo to the prejudice of the health and comfort of a particular citizen.

      Negligence — Domestic relations — Personal injuries — Cause of action.

    For the injury to the person and health of a married woman she has a right of action which is properly brought by her, joined by her husband, and such damages as she may recover belong to her and not to her husband.
    For direct personal injury to the wife or child the father has no right of action. That right is vested in the person corporeally injured.

      Charge of court — Negligence—Measure of damages.

    In an action for injury inflicted upon a man in the enjoyment of his propevty by reason of a neighboring nuisance, it was error for the trial judge to charge the jury that the action was brought “ on account of injuries inflicted upon plaintiff and his family.” The plaintiff did not and could not declare for injury to the health of any member of his family. General instructions throughout the charge as to the effect of injuries upon the health of plaintiff’s wife, daughter and family, were also erroneous.
    Argued Jan. 9, 1897.
    Appeal, No. 30, Jan. T., 1897, by defendant, from judgment of C. P. Lackawanna Co., March T., 1894, No. 637, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for maintaining a nuisance. Before Edwards, J.
    The facts sufficiently appear from the charge of the court below, which was as as follows :
    [The plaintiff in this case, James Gavigan, has brought an action against the Atlantic Refining Company, the defendant, to recover damages for injuries alleged by him to be inflicted upon him in the enjoyment of his property, and also on account of injuries said to be inflicted upon his health, and that of his family, and of the physical discomfort that he has suffered on account of the proximity of the defendant’s plant to his property, and on account of the manner in which this plant is conducted.] [1] That is substantially the claim of the plaintiff in this case. You will, of course, come to the conclusion that a case of this kind is of considerable importance, not only to the plaintiff'and the defendant in this suit, but as a matter of ascertaining not only what the law is, but what the relative rights of people are, and property holders, in circumstances situated such as the plaintiff and the defendant are.
    You have undoubtedly formed an idea as to the relative positions of the property of the plaintiff and defendant in this ease. You have seen the map, and you have heard the testimony of the witnesses. The location of the plaintiff’s property has been described to you in relation to the location of the defendant’s property. It is an undisputed fact in the case that the plaintiff acquired his property some fourteen years ago, that he owns it himself, and that he has lived upon it from the time he purchased it up to the time of the beginning of this suit and up to the present day.

      It seems that eight or nine years ago the defendant in this case, not probably under the name in which it is sued here now, acquired several lots in the vicinity of the plaintiff’s property and proceeded to erect what is commonly termed in this case as an oil plant, or a plant for the storage, receipt and distribution of oil to and through the trade. I need not go over to you the details as to the manner in which this plant was constructed nor as to the manner in which the defendant has conducted the business which has been carried on. You will notice in considering the testimony on behalf of the plaintiff that it was not clear as to the actual business that was carried on on the defendant’s property. There was only one witness who said anything as to what he had seen inside of the fence or on the defendant’s property. On the defendant’s side you have, if it is to be believed, a full and careful description, not only of the plant in its construction, but also of the nature of the business that has been carried on there from the time it was constructed up to the time of the bringing of this suit, as well as up to the time of trial. You will understand that one of the rules in regard to the credibility of witnesses is that a witness, conceding that he is honest, conceding now that all witnesses are honest in what they say, that the witness who has the best opportunity of observing the facts about which he is testifying, is the witness whose testimony should have the greater weight in regard to that fact. The reason that I mention that rule to you now is because it seems from the testimony in thi3 case that the only clear, definite and full testimony as to the construction of this plant and as to the conduct of the business that is carried on there, and the nature of the business that is carried on there, has been received from the defendant’s side of the case. [There may have been some doubt in your minds when the plaintiff’s case was through, as to whether the defendant was manufacturing oil upon these premises; but I apprehend, although it is a matter for you entirely, that after hearing the defendant’s testimony, the positive testimony of these several witnesses that have been sworn in regard to the plant, its nature, its construction, and the business that has been carried on there, that there is no manufacturing of oil being carried on upon these premises; that while they have a great many different kinds of oil stored in these several tanks, that whatever they have there they receive in tanks from the oil regions over the railroad, this oil that they so receive is pumped into the receptacles known as tanks, and then carried into barrels and sold to the trade. Outside of the different kinds of prepared and refined oil that they deal in, they also deal in greases, which come in barrels and in boxes or cases. While it is for you, from all the evidence in the case, to find out the nature of the business that is carried on there, and the manner in which it is carried on, still I say to you that from the testimony in the case, in my opinion, the only clear and intelligent description we have had of the construction of the plant and of the nature of this business, has been received from the witnesses that have been sworn on behalf of the defense.] [2]
    [The important question in the case is, what are the relative rights of the plaintiff and the defendant ? The plaintiff bought his property fourteen years ago, and he occupied it, and he has a right to the comforts of his home, to the use and enjoyment of his property, without suffering injury to his health or actual physical discomfort to himself and to his family.] [7] We may also say that the defendant, from the testimony of the case, had a right to buy this property in the place in which they bought it, to erect upon it this plant to store oil there, and to sell it to the trade. I do not think there is any question to be submitted to you, gentlemen of the jury, as to whether the defendant is or is not rightfully there conducting this business. That is not the question. The defendant may be there rightfully and may be carrying on a lawful and legitimate business and in a legitimate way, but the question is, does he so conduct his business or is his business of such a nature that he inflicts physical injury and causes physical discomfort to the plaintiff in his use of his property ?
    Now, you have heard the counsel argue, and I believe they are pretty near in their views as to the law which would govern this case. You have to take into consideration that this property is in a populous city, and that there are certain discomforts and certain inconveniences that persons owning property and residing in a city must expect. It may be that one has a.house in a pleasant part of the city and that next door to him is built a livery stable. A good many people would not like that, it would annoy them, their taste would be disturbed, their personal comfort or sentimental comfort, call it what you will, would suffer. Or it may be that next to a very nice residence occupied by you or by somebody else, a common restaurant or common saloon might be placed, or even something that would be more uncomfortable than that, we will say a distillery or brewery, still the mere fact that a livery stable or a distillery, or brewery, or a restaurant is carried on and is either built or occupied, after you acquired your property, next door to you, however disagreeable it might be, affords no ground of action and there is no legal redress, because people living in a city and building and occupying their own houses must expect such industries and such business as are generally to be found in cities, especially if the cities are populous. [At the same time if my neighbor carries on a livery stable or brewery or distillery and carries it on in such a manner, although it may be the best manner in which he can carry it on, but he still actually inflicts injury upon my health or upon my family’s health, and causes actual physical discomfort, he would still be liable for whatever injury I would suffer;] [8] but you must not charge such injury to a defendant in a case of this nature, if it is common to all the neighborhood.
    In the neighborhood of this plant there are other plants, there are other industries, and smoke ascends from the stacks of these different plants, this as well as others, and that smoke intermingles in the air, and of course it impregnates the air with noxious gases to a lesser or greater extent; those things are common inconveniences that everybody suffers from. The traveler on the highway, the man who only makes an occasional visit there, and the people for four or five or half a dozen blocks away, would suffer that discomfort, one just as well as the other. Now, the public that suffers discomfort of that nature are not entitled to recover in a court of law, because individuals must give way to each other where their relative rights are such that everybody must have Ms right to prosecute Ms own business in a proper way. You will understand that whatever discomfort this plaintiff has suffered, or whatever annoyance or inconvenience he has suffered in common with all the people of that section of the city on account of the smoke ascending from the stack, or on account of the gases or odors that come from the plant and mingle with the air and scatter all over, and cause inconvenience and discomfort to everybody that passes that way, that he is not to recover on that account unless he shows an actual and a peculiar injury to himself and to his family. [I do not want you to understand that because the cause of the injury to the plaintiff, provided he has suffered any injury, is of a general character, that he is not therefore entitled to recover, because it may be that a business is of such a character as to influence a large circle and a great many people; nevertheless, the law is that if the man who owns the property in the immediate vicinity has suffered an actual, substantial injury peculiar to himself and his own property, he would be entitled to recover.] [3] I think I have told you enough in that direction, and that is the reason that I have considered this case important on account of the fact that may be your verdict will establish to a great extent the relative rights of persons under the circumstances of the plaintiff and defendant in this case.
    [Now, has the plaintiff been injured? Has he received substantial, actual injury ? Has the proximity of this plant and the business that has been carried on there caused him actual physical discomfort in the enjoyment of his home, either to him or to his family ?] [9] There was some evidence received in the early part of the case showing the effect the proximity of this plant had upon the market value of the plaintiff’s property. That evidence was stricken out because it has no place in the consideration of this case. So you will discard from your minds entirely all the testimony that you have heard from the witnesses on the stand in regard to the effect that the erection of this plant and the carrying on of the business has had upon the market value of the plaintiff’s property. The only way in which he could show an injury to the real estate would have been by showing a loss of rental value, that is, that he would receive so much when the plant was not there and so much less when the plant was there on account of the plant being there. Or in the destruction of his crops, if he had any; that before the plant was put there his crops netted him so much money per annum, but after the plant was put there it only netted him so much. That is the evidence that is proper in a case of this kind. There is no evidence of that kind, because the plaintiff occupied his own property, and there was no rental value to be considered, and second, there was no evidence whatever as to whether he had anything planted there. So you see that question is entirely out of the case; and the reason I mention it now, although you heard the motion by which it was stricken out, is that it may have no place in your consideration of this case when you are arriving at a verdict.
    [The contention of the plaintiff is — at least one of them — ■ that the manner in which this business was carried on by the defendant was such as to cause a large quantity of oil to escape into the ground and to percolate through the ground down to Roche Court, through those intervening lots, and into the soil of the plaintiff’s property. There has been considerable testimony in regard to that fact. The reason why that is evidence is not because, even if you find such to be the fact, it has injured the soil, because there is no evidence as to whether the impregnation of the soil with oil has injured the plaintiff at all, but whether the impregnation of the soil, if you find such to be the fact, has caused the plaintiff actual physical discomfort and has had an injurious effect upon his health and upon the health of the family.] [4]
    First, did the oil percolate from the distance that is shown on the map and has been testified to by the witnesses from the land of the defendant through the lots that I have mentioned to you and through Roche Court and on to the property of the plaintiff and into Iris cellar ? Now, is that a fact ? You have to consider a good deal of evidence in arriving at a conclusion upon that one fact alone. You have the testimony of the people who built, the sewer, and you have the testimony of the inspectors of the sewer, and they say that when the Poplar street sewer was huilt and after-wards when the Roche Court sewer was built that there was found upon the surface of the water in the ditches a scum indicating the presence of oil. Some of the witnesses say that the scum was light, others say that it was thick enough for them to detect it as oil, and one or two witnesses testify that the ground around the ditch and in the ditch was saturated with oil. There is some contradiction on that question, even in the testimony of the witnesses themselves. You find the foreman of the men who did the work on Roche Court, who did the sewer work,. saying that there was no oil, that he was there ten hours each day, but that there was no oil on Roche Court. Now, of course, there is a dispute even in the testimony of witnesses as to that fact. It is your duty to take the testimony of the witnesses on that fact, as well as on the others, harmonize it if you can, and if you cannot harmonize it, then believe that which you consider to be the truth. That is the privilege of a jury, to decide what witnesses they believe and what witnesses they do not believe, and what weight they give to the testimony of any witness that, comes upon the stand. Then, after considering the testimony of the witnesses on that point, you have a right to take into consideration the testimony of the witnesses who have described to you the manner in which the defendant company have carried on their work from 1887 or 1888 up to the time of the bringing of this suit, which was in March, 1894. They have described to you in detail the manner, and two or three of them have told you that it was impossible — of course, they are giving you the facts as well — for a sufficient quantity of oil to leak so as to get into the ground and saturate the ground, and to get there in sufficient quantities to allow it to percolate through the intervening lots to Roche Court and to the property of the plaintiff. You see that also bears upon the question whether as a matter of fact the oil did percolate in the manner the plaintiff would want you to infer and believe.
    There is considerable testimony as to the manner in which this work was conducted on the defendant’s plant. You have the testimony as to the spilling of a barrel of lard, and as to the manner the oil was taken from the tanks, and as to the incidental dripping from the valves. You have all that. But if the testimony of the defendant’s witnesses is correct as to the greatest quantity of oil that might possibly escape during the six years before the beginning of this suit, then it would be for you, gentlemen, to come to a conclusion from that fact and from all the other testimony in the case whether it was possible for a sufficient quantity of oil to descend through the ground and percolate in the manner that some of the witnesses have described, and to which I have called your attention. [If you find that fact in the negative, that the oil did not as a matter of fact percolate through the ground from the defendant’s plant, then of course you will eliminate it out of the consideration of this case. But if you find that it did percolate from the defendant’s plant through the ground and on to the plaintiff’s lot, that fact alone would not be sufficient to entitle the plaintiff to a veidiet, but what effect did it have upon tbe plaintiff and upon his health, and upon the health of his family, and upon his physical comfort.] [10]
    The plaintiff has said, and so has his wife, that there was a strong odor of gas and oil, or of gasy, oily matter in the cellar, and they want you to take that in connection with the testimony as to the saturation of the ground and the percolation of the oil — they want juju to take that as the basis of an inference that the odor in the cellar was on account of the saturation of the ground with the oil that came from the defendant’s plant. Now, is that true? Did it come into the cellar so the odor that he detected there and Mrs. Gavigan detected there, was the odor of oil that came there in that manner. [They say to you, as far as they are able to judge, and their testimony is for you, that it was the smell of oil, but they also say to you that they kept their provisions in the same cellar. That is a fact for you to consider as to the view that these people took of that odor, whatever it was, that was in the cellar, and as to the effect it had upon their comfort, in their enjoyment of their right and their privileges; that is a fact for your consideration.
    Then, again, you have the testimony of Mr. Gavigan and his wife and his daughter in regard to the effect upon their health. Now, that effect must be injurious to the health before the plaintiff would be entitled to any consideration on that ground. If a person suffers loss of appetite from an offensive odor, that might and does affect one’s health; but you have seen the man upon the stand, you have seen the wife, and you have heard their testimony as to their physical condition at that time and now. Of course there is no evidence here that any physicians were called to attend this family. There is no evidence that any money was 'expended in the purchase of medicine, or in the employment of professional gentlemen to attend them. There is no evidence here of loss of work on the part of the plaintiff himself, although there is some evidence that one of the daughters, I think, was sick for about a week, whether it was on account of this odor around the premises or not, I do not know; I leave you to gather that fact from the evidence in the case. Now, is that correct? Did the plaintiff and his family suffer in their health? Do you find that from the evidence? You have also heard the testimony in regard to the physicial discomfort that they suffered in the enjoyment of their own home; that the odors that came from the defendant’s plant were so offensive, so noxious, so thick and strong as to drive them in the summer from their porches into the house, and to compel them to close the doors and windows.
    Is that a fact ? If you should find that to be a fact, that is such an inference of injury to the physical comfort of the plaintiff as would entitle him to some damage at your hands.] [11] But you must find that such is the fact, and that that physical discomfort was caused by the odor and the smell and the smoke that came from the plaintiff’s plant, and not from any other source.
    Now, I do not propose to go over all the testimony. A large number of witnesses on the side of the plaintiff have testified to the offensive character of the odor in the immediate neighborhood of this plant and of the plaintiff’s property. A large number of witnesses on the side of the defense say there is no such offensive odor; that they have been around there, and the men immediately connected with the work, they have been most of the time in there, and they have discovered nothing of the kind, and there is positively nothing of the kind around there. People who have traveled around there have béen on the witness stand, and they say that while they discovered the smell of oil, still it is not offensive, and it is not sufficient to affect the health of the people in the immediate neighborhood. Of course it may not be desirable, but that is not the question, because it must relate to the injury to the plaintiff and his family, as I have already described to you.
    Now, which of these witnesses are correct? Their evidence is for you, gentlemen of the jury, and you must consider it in the light of all the facts and circumstances surrounding this case.
    I think I have gone now about as much over the testimony as I have the time to, and as is necessary in the disposition of this case. Consider this case in an intelligent manner. If tins man has been injured in the manner that he has described, and that injury is traceable to the plant of this defendant and to the manner in which they have conducted it, then he would be entitled to a verdict at your hands. On the other hand, if he has not suffered actual physical discomfort and has not been injured in his health, or his family have not suffered in the same manner, then your verdict should be for the defendant. If you find a verdict for the defendant you simply say, we find for the defendant. If you find a verdict for the plaintiff you say, we find for the plaintiff in such a sum, naming it; and that sum, whatever it might be, in case you find a verdict for the plaintiff, must be such as twelve reasonable men would have aright to give in good conscience in a case of this nature.
    I have been asked to charge you by the defendant on certain points of law, which I will now proceed to do:
    1. That if the jury find from all the evidence in the case that the plaintiff has received no bodily injury or physical discomfort from the storage of oil in the defendant’s plant, the plaintiff cannot recover.
    Answer of the Court: If it has not affected his health or that of his family, or caused him substantial physical discomfort, he cannot recover. Thus qualified the point is affirmed. [5]
    2. That if the jury find that the plaintiff has simply been annoyed, and has not been injured in his health, and such annoyance or inconvenience is in common with all the other neighbors in the vicinity of the plant, he has no right of action, and the verdict should be for the defendant.
    Answer of the Court: I affirm this point.
    3. That upon the whole evidence the plaintiff is not entitled to recover a verdict.
    Answer of the Court: Of course I cannot affirm that, because I have left it to you as a question of fact. For that reason that point is refused. [6]
    The counsel for the plaintiff and for the defendant except to the charge of the court, and to the answers to the points, and request that the same may be reduced to writing and filed.
    The jury comes into court for further instructions.
    By the Court: What instructions do you want, gentlemen, in regard to what part of the case ?
    By a Juror: As to the question of consideration of the discomfort that this man might sustain, and his family, from not being able to sit on his porch, aside from any physical injury that they might have sustained, as to the discomfort that they have sustained, and not being able to enjoy all the privileges of their home. We did not understand thoroughly the judge’s charge in relation to that.

      By the Court: What is the difficulty with that part of the case ? What information did you want?
    By a Juror: The jury understood, some of them, that you charged us directly on that point; others understood differently.
    By the Court: I charged you that if, on account of this plant of the defendant, the business that they carried on there, and the manner in which they carried on the business, injury was done to the plaintiff in the enjoyment of his property, causing actual physical discomfort, that you would have a right to take that into consideration in arriving at your verdict. I cautioned the jury at the same time that it was not a fancied discomfort, not whether it was a disagreeable matter simply, living on the next property to an oil storage plant, but whether the presence of the plant and the offensive odor coming from it were such as to cause actual physical discomfort to the' plaintiff and his family. Now, if such was the case, and that discomfort was attributable to this plant and the manner in which the business was carried on, he would be entitled to compensation for that discomfort so inflicted by the defendant.
    Verdict for plaintiff for 1470.84. Defendant appealed.

      M-rors assigned were (1-4) portions of the judge’s charge, reciting same; (5, 6) refusing defendant’s first and third points, reciting same; (7-11) portions of the judge’s charge, reciting same.

      W. W. Watson, with him W. S. Diehl, for appellant.
    The appellate court will reverse the court below when it appears that the evidence was not sufficient to sustain the verdict: Burr v. Kase, 168 Pa. 81.
    When a defendant is engaged in a lawful business, in order to sustain an action against him for an injury resulting therefrom, the injury must be shown to have been real and substantial. Not a trifling annoyance or injury, such as is necessarily incident to the business complained of: Price v. Grantz, 118 Pa. 402; Huckenstine’s Appeal, 70 Pa. 102.
    The rule of law is that one cannot be held as a tort feasor for acts which are ordinarily harmless: Greenland v. Chaplain, 5 Exchequer, 243. If the husband bring an action to recover for . an injury to his wife, he must so declare and then he can recover only the moneys he has expended or become liable to pay for the medical care and attendance upon his wife and for the loss of her services while unable to attend to her domestic duties: Kelley v. Mayberry Township, 154 Pa. 440.
    Until a means is discovered to prevent smoke and odor we apprehend that no such principle as is attempted to be enforced by the plaintiff in this case will be sustained by this learned court: Coal Co. v. Coal & Navigation Co., 50 Pa. 91; Gold v. Phila., 115 Pa. 184.

      I. H. Burns, with him M. J. Donahoe and O' Brien Kelley, for appellee.
    Is the plaintiff entitled, under the law, to maintain this action? Upon this point there seems to be abundant authority both in our own and the English courts: Gas Co. v. Murphy, 39 Pa. 257.
    As to sickness caused by noxious odors and vapors, see the very exhaustive opinion by Judge Endlich in Evans v. Fertilizing Co., 160 Pa. 209, affirmed by the Supreme Court: Coal Co. v. Sanderson, 113 Pa. 126; Robb v. Carnegie Bros. & Co., 145 Pa. 324; Cleveland v. Gas Light Co., 20 N. J. Eq. 201; Meigs v. Lister, 23 N. J. Eq. 199; Campbell v. Seaman, 63 N. Y. 568; Wood on Nuisance (3 ed)., sec. 534.
    February 16, 1897:
   Opinion by

Willard, J.,

This was an action in the court below to recover damages from the appellant for injuries resulting from erecting, keeping and maintaining an oil refining establishment in a thickly populated part of the city of Scranton. The appellee alleged in his declaration that the manufacture and storage of oil in said establishment created unwholesome gases permeating the atmosphere in the vicinity with noxious vapors and offensive smells to the prejudice of the health and comfort of the plaintiff ; that the leakage from the defendant’s establishment also permeated the soil in the vicinity of the plaintiff’s house, thereby creating noxious and unwholesome gases to the prejudice of his, health and comfort. lie also alleged injury to the premises where he lived and which he owned, by reason of the manner in which the appellant conducted the business in and about his oil refinery. The court properly withdrew from the consideration of the jury any question of damage to the appellee’s premises, as the evidence offered proved no damage to the premises that could be properly estimated by a jury. •' This question having been eliminated from the case, the issue was narrowed, under the pleadings, to the question of injury to the appellee’s health and comfort, and had it been confined to the appellee there would have been no error in the disposition of the case.

We understand the law to be settled in Pennsylvania that whatever injury is inflicted by one person upon another creates a right of action in the injured person for such damage as he can prove he has sustained by reason of the injury; but for such injury, the right of action is vested, in the person injured; that for an injury to the person and health of a married woman she has a right of action which is properly brought by her, joined by her husband, and such damages as she may recover belong to her and hot to her husband. So, if the health of the daughter of the appellee was impaired by gases, vapors and smells from the appellant’s refinery, the daughter, by her next friend, would have a right of action, and could recover damages therefor. It is true that a father can bring an action in his own name for medical attendance and nursing of his child,' also for the loss of his child’s services, and in case of injury to his wife he can also recover for the loss of her services, for medical attendance, medicines and nursing during her illness caused by the injury. For a direct and incidental loss to the husband and father, he can recover, but nothing beyond. For the direct personal injury to wife or child, the father has no right of action. That right is vested in the person corporeally injured: Shearman & Red-field on Negligence, sec. 763; Thompson on Negligence, 1241; Penna. R. R. Co. v. Kelly, 31 Pa. 372; King v. Thompson et Ux., 87 Pa. 365; Kelley v. Mayberry Township, 154 Pa. 440.

In this case the suit was brought by a husband and father for injury to his health, and under the pleadings he made no claim for any loss of service, medical attendance, money expended for nurses, or for medicines furnished to his wife or children. As before stated the question was narrowed down to alleged damage to the appellee affecting Iris health and comfort.

In his charge the learned trial judge at the outset instructed the jury that the action was brought by James Gavigan against the appellant “ to recover damages for injuries alleged by him to be inflicted upon him in the enjoyment of his property, and also on account of injuries said to be inflicted upon his health and that of his family.” The appellee did not declare for injury to the health of any member of his family, and the pleader doubtless saw the obstacle to the proof of such an averment if made.

This statement of the cause of action was followed by instructions throughout the charge as to the effect of the odors and gases upon the health of the plaintiff’s wife, daughter and family. The plaintiff’s family consisted of his wife and three children. Had the trial judge commented upon the effect of the gases and smells upon the appellee’s family as incidentally depriving him of the comfort of their society, it would perhaps have done the defendant no harm. But the direct injury to tire health of the wife and each member of the family was left to the jury as an element of damage in arriving at their verdict, the proportions thereof being, of course, matter of conjecture. The evidence shows that the wife and daughter were the principal sufferers. Under the charge, the jury was warranted in considering the injury to each member of the family (according to the evidence) in estimating the amount of damages.

Every dollar that the appellee recovered for direct injury to liis Avife or children was erroneously recovered, as he had no right of action therefor.

If the theory adopted by the.learned trial judge is to be accepted, then it follows that the injured members of the appellee’s family would be deprived of their right of action, for a rule that would allow a father and each member of his family to recover for the same cause of action, would be contrary to law and reason.

The verdict and judgment in this case cannot estop the appellee’s Avife, or daughter, or any other member of his family from a right of action for any injury to the health of any member of the family unlaAvfully caused by the act of the appellant. The right to sue for such injury is vested in them alone and is absolutely unaffected by this action on the part of the husband and parent.

For this error in the charge of the court as to the correct measure of damages, the judgment must be reversed. The first, fourth, fifth, ninth and tenth assignments of error are sustained, the second, third, sixth, seventh and eighth are overruled ; the judgment is reversed and a venire facias de novo awarded.


author: Wickham, J.,

text:
    The German Fairhill Building Association, No. 2, v. Isaac D. Heebner, with notice to Abraham G. Freed, terre-tenant. Appeal of Gilbert L. Thompson.

      Mechanic's lien — Alterations and repairs — Evidence.
    A meehanie’s lien cannot be sustained as for work done on a new building, where it appears that the work for which the lien is claimed was done on two adjoining three-story buildings, the old structure having a front of 40 feet and the new of 60 feet, that the old structure was occupied as a hotel during the whole progress of the work, that the first floor was changed but the other stories remained substantially intact save for connecting doors, and that the finished structure continued to be used as a hotel.
    No notice having been given, a lien cannot be sustained for work done and materials furnished for what in fact were alterations and additions.
    Argued Dec. 8, 1896.
    Appeal, No. 63, Nov. T., 1896, by Gilbert L. Thompson, from decree of C. P. Montgomery Co., March T., 1895, No. 37, execution docket, confirming report of auditor appointed to distribute a fund in court.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Exceptions to auditor’s report. Before Swartz, P. J.
    It appeals from the report of the auditor that Abraham G. Freed purchased a stone house and lot in the borough of Lansdale by deed dated December 13,1892, in which he kept-a hotel for all purposes excepting the sale of liquor. He subsequently filed an application for a hotel license stipulating that, if the same were granted, the hotel would be enlarged. Receiving the license in 1893, he began the work upon improvements which he had obligated himself to do and erected along the Main street front of the vacant lot, on the west of the old building a three-story extension or addition, using the west wall of the old building for the east end of the new, to the extent of the depth of the new. The front walls of the new and the old were “tied in” at the point of contact. Part of the old porch was taken away so that the two buildings could be united. The porch of the new building was connected with the old so as to form one continuous line of porch on the Main street front. In a similar manner the roofs of the two buildings were also joined together. In the erection of the extension, the same kind of stone was used as in the old building and the same general style of architecture followed, so that, when completed, the old .and the new formed one harmonious whole, with three entrances on the Main street front, and a large tower on the extreme western end of the new addition. Communication was made between the old and new buildings by means of one door m the cellar, two doors on the first floor, one on the second and one on the third floor:- The main stairway is in the new structure at the dividing line and is alike accessible from the old and new buildings; The new structure is about 60 feet front on Main street, with a depth of about 40 feet. The old building had a front of about 40 feet on Main street and a depth along Broad street, including kitchen, of about 56 feet. The old building was occupied by the owner and his family uninterruptedly for hotel purposes during the building of the addition. The property was purchased subject to a first mortgage of $8,000 and also to a mortgage to the German Fairhill Building Association, No. 2 for $4,000.'• On August 8, 1898, Mr. Freed executed and delivered to the said German Fairhill Building Association No. 2, another mortgage covering the same premises, for $10,000, recorded August 10, 1893. At which time a bond of indemnity in the sum of $10,000 was given by Freed to the association for the purpose of protecting the association against any possible liens that might be filed against the Tremont House property. On the 26th of March, 1894, Freed executed and delivered to the same association embracing the same premises, a mortgage of $500.
    Gilbert L. Thompson on the 4th of September, 1894, filed a mechanic’s lien.
    The German Fairhill Building Association No. 2, obtained a judgment on its mortgage of $4,000 against Heebner, and on a levari the property was sold at sheriff’s sale on February 20, 1895, for the sum of $11,500 subject to the first mortgage of $8,000.
    The question arose on the distribution of the fund as to the priority of the mechanic’s claim of Gilbert L. Thompson over the mortgage of $10,000 to the building association; in regard to which the auditor, M. D. Evans, found the following conclusions :

      The claim of Gilbert L. Thompson was filed September 4, 1894, against all that certain hotel building’ and lot of land in the borough of Lansdale, Pa., known as the “ Tremont House,” for work done and material furnished for and towards the erec tion and construction of the northern part of said building. The statement does not aver, neither is it claimed, that notice was given to Abraham G. Freed, or his agent, of the claimant’s intention to file a lien for’ the work done and materials furnished.
    A single question arises on the evidence in this case, viz: Was the work done and materials furnished on the said northern part to and for the construction of a new building, or an addition to, or alterations and repairs of an old building ? If the former, the claim is good; if the latter, it cannot be allowed.
    What constitutes a new bnilding or a rebuilding ? The most specific, and now generally accepted rule in the determination of this question is laid down in Miller v. Hershey, 59 Pa. 64 :
    “ The idea which runs throughout all the cases is newness of structure in the main mass of the building, that entire change of external appearance which denotes a different building from that which gave place to it, though into the composition of the new structure some of the old parts may have entered; this newness of structure must be in the exterior, the main plan of the building and not in its interior arrangements. There appears to be good reason for this, not only in the fact that the external walls and all its main parts of a building constitute the strongest marks of its identity, but also in the notice that the external change furnishes to purchasers and lien creditors.”
    Governed by this rule we must first ascertain, whether there is “newness of structure in the main mass of the building; ” whether tins “ newness of structure is in the exterior, the main plan of the building, and not in the interior arrangements,” and whether these external changes in the old building denote a different building from that which gave place to it, though in the composition of the new structure some of the old parts may have entered.
    Applying these inquiries to the building under consideration, we find, from the testimony in the case, that they can all be answered in the negative.
    There is “ no newness of structure in the main mass of the old building,” for with the exception of the cutting of the main and porch roofs, the removal of a portion of the porch, and the breaking through of three or four doorways in the west wall, the original building has not been materially changed. With the exceptions noticed, it stands to-day in itself practically as Isaac.D. Heebner built it. During the time of the building of the extension or addition the old building was occupied by Mr. Freed and family, and uninterruptedly used as a hotel. Guests were entertained, liquors sold, and, so far as notice to purchasers or lien creditors by reason of external changes in the building or interruptions to the use of it for hotel purposes was concerned, there was not the slightest indication of a rebuilding or reconstruction of the old house, but simply of the building of an extension or addition to the same. It was strongly urged in the argument of counsel for the claimant, that when the improvements were completed, a distinctive change had been produced in the appearance and character of the building as a whole. That before the improvements it presented the appearance of a handsome private residence, but that after completion it impressed all observers as a large, imposing and inviting hotel pr boarding house.
    This is true as to the Broad street front; but nevertheless the fact remains, that this effect or change of appearance is the result of an addition or extension, harmonizing with the materials and architecture of the original building, and not caused by any material change in the old building itself. That still remains practically untouched. If the rule laid down in Miller v. Hershey, supra, means anything, it means that there must be an actual; physical change in the old structure, “ a change of external appearance which denotes a different building.”
    A,ny repairs, however slight, any addition large, or small, may change the appearance of a building to which they are made or added, and give it a different character, and yet the building itself, as in the case under consideration, be unaffected in any part of its material structure. If the “ external walls of a building constitute the strongest marks of its identity,” how can it be said that a “ different building has taken its place,” when it is conclusively shown, as here, that the external walls, substantially, are intact in all their parts ? The mere reflective or consequential effect of an improvement does not determine as to whether it is a new erection or an addition.' To constitute the first there must appear a substantial, physical change in the external walls of the building itself. “ There appears to be a good reason for this in the notice that the external change furnishes to purchasers and lien creditors.’.’
    What would have been the impression made upon an observer, standing by and noting from day to day the progress of the work performed in the improvements in the Tremont House ? Seeing, as he would, a hotel in full operation, guests coming and going, the family in full possession, undisturbed and trninconvenienced in the uses of all the rooms in the house, would he naturally think that a rebuilding of the hotel was going on, or that a mere addition or extension was being made ? While this would be more of a common sense than a legal test, yet the auditor is strongly persuaded that so far as notice to purchasers and lien creditors is concerned it would be the true and proper one, holding, as he does, that the external changes constituting such notice should be those changes concurrent with the work, and not the mere general or consequential effects upon the appearance of the old building as viewed in connection with the completed new.
    All the witnesses examined on this point say that no actual physical changes were made in the two fronts of the old building.
    Comparing this statement with the facts existing in Landis’ Appeal, 10 Pa. 379, it would seem entirely unnecessary to continue the discussion further. In that case the “ old structure was an old-fashioned two-story house with pent roof formed by joists of the second story projecting. The roof was propped up, and the front wall taken out, and rebuilt on a new foundation, outside and adjoining the old foundations; the old rafters were spliced, and a new roof put on with dormer windows. All the partitions in the house, but three, were spliced. The whole of the inside work, but the floors, was taken out; and the chimneys below the garret floor were taken down, new doorways and windows were cut, and new work put in the old doors. The back and side walls remained. Adjoining the house a new two-storied back building was erected without a cellar.”
    In our case the house was practically untouched; in Landis’ Appeal the building was almost torn down and then rebuilt, and yet the court held in that case that the work amounted only to alterations and repairs.

      In Smyers v. Beam, Seifert’s Appeal, 158 Pa. 57, the facts as stated are as follows: “ There was upon the lot a two-storied frame building, 22x60 feet, the lower story being used for a store room, and the upper story divided into small rooms fitted and used as a dwelling house. About three years after the erection of the building the owner built a two-storied addition, 25 X 80 feet, on the west side of and attached to the old building, took off its roof and the upper story of the west wall, spliced the studding in the south, east and north walls of the old building, so as to raise its upper story on a level with the upper story of the new building, put all under one roof, and fitted out the upper story of the combined building as an opera house, and the lower floor of the new addition as a store room, leaving the remainder substantially as it had been from its first erection.”
    Held that this was “ additions, alterations and repairs,” and not original construction.
    In De Wald v. Woog, Murphy’s Appeal, 158 Pa. 497, the premises were “ two four-story buildings, each having a front of 20 feet extending back about 50 feet. They were divided on the first story by a 18-inch wall, and above that by a hallway and plaster partition. The front Avail was iron and glass for the first story, with iron columns supporting the brick wall above. The rear wall was brick, and the side Avails were party walls.- Between the tAVO buildings was a stairway running from ground to top story. The first floor was occupied as tAvo store rooms with a door into each from the street.”
    Under the contract all the interior of the building was taken out, new materials put in, and arranged on a different plan. The tAvo buildings were thrown into one. All the old materials in front Avail of first story, except iron columns, were taken out. New doors and windows were put in, and the arrangements of first story changed. Above the first story the front wall was not changed. NeAV windows with large glass were put in. In the rear wall the first and second stories Avere taken down, iron columns put in and the building was extended back ten feet, two stories high. During the remodeling, and prior thereto, Woog occupied the premises Avith a restaurant and bar. Held to be “ additions, alterations and repairs.”
    So far as the “ character and extent ” of the changes made, are concerned, the case under consideration bears no comparison to the three cases just cited. In the former the building was practically untouched ; in the latter, the style, walls, extent and general appearance of the structures were almost completely changed, and yet amounted only to “additions, repairs and alterations.”
    Under the law and the facts the auditor is compelled to disallow the claim of Gilbert L. Thompson.
    *********
    The amount for distribution, viz.: $1,580.27, after payment of expenses of audit, etc., is awarded to the Fairliill Building Association, No. 2, or its attorneys, Hon. Chas. H. Stinson and Francis Roepke, Esq., on account of its mortgage of $10,000 dated August 8,1893, and recorded in Mortgage Book No. 25G, page 452.
    Exceptions being filed to the report of the auditor they were dismissed in the following opinion by Swaktz, P. J.
    The auditor distributed the entire fund in court, less costs, to the German Fairliill Building Association on account of its mortgage of $10,000.
    Exceptions were filed by this building association because the expenses of audit were charged against the fund for distribution.
    Gilbert L. Thompson and Harry Richardson each excepted to the report, because their claims on mechanics’ liens were rejected.
    Mr. Richardson, upon the argument, withdrew his exceptions, at the same time counsel for the building association agreed not to press his exceptions so far as they affected Mr. Richardson. He contends, however, that one-half of the expenses of audit should be paid by the other exceptant, Mr. Thompson.
    The auditor finds that the work and materials were furnished for an addition, alterations and repairs to an old building. This finding defeats the lien of Mr. Thompson. His claim was not filed for additions and alterations, and no notice was given of his intention to file a lien as required by the act of May 13, 1887.
    We can add nothing to the able report of the auditor. His findings of facts are fully sustained by the evidence, and his conclusions of law are clearly upheld by the authorities cited.

      To our mind Seifert’s Appeal, 158 Pa. 57, and Murphy’s Appeal, 158 Pa. 497, rule the case conclusively.
    The expenses of audit were charged, against the fund for distribution. No* reasons were assigned for this action; perhaps it was unnecessary to offer any.
    It does not appear that any witness fees were claimed or allowed Mr. Thompson.
    In a distribution of the proceeds of a. sheriff’s sale by an auditor costs do not necessarily fall upon the unsuccessful claimant. Where he shows probable cause for litigation the costs are usually placed upon the fund. Larimer’s Appeal, 22 Pa. 41; Sansenbacher v. Schickendantz, 141 Pa. 423.
    Where the subject-matter in dispute is a mixed question of law and fact raising such a contention, started and conducted in good faith, as reasonably calls for the opinion and judgment of a court, the fund and not the losing party should bear the costs: Cameron v. Crossman, 4 C. C. R. 316.
    The contest before the auditor raised questions of law as well as of fact. It is not always an easy matter to determine whether a construction constitutes a new building or an addition and alteration. If the number of cases before the Supreme Court, in which this question was involved, is any indication, then the difficulty suggested is a serious one.
    Again, the money was paid into court by the the sheriff, on motion of the plaintiff in this suit, and not upon the application of Mr. Thompson. In this application of the plaintiff there is an admission, that this is a proper case for adjudication by the court. The application reads as follows : “ On motion of the plaintiff by C. Henry Stinson, Esq., its attorney, the court grant a rule on A. D. Simpson, sheriff of said county, to pay into court the money made under the above stated writ, now in his hands, as there is a question arising to whom the money should be paid as between lien creditors.” This rule was submitted to the court, and is in the words of the counsel for plaintiff as evidenced by the writing on file.
    Where the costs are placed on the losing party we find that it is upon his application that an auditor is raised and he fails in his attack upon a claim, because there was no reasonable ground for the contest.
    And now, December 2, 1895, all the exceptions to the audit- or’s report are dismissed, and the report is confirmed.

      Errors assigned were (1, 2) in dismissing the exceptions to the auditor’s report in that it awarded the balance for distribution to the German Fairhill Building Association, No. 2, and disallowed the claim of Gilbert L. Thompson, the exceptant; (3) in dismissing exception to the auditor’s report in refusing to award to exceptant’s mechanic’s lien priority of the mechanic’s lien in distribution over plaintiff’s mortgage on Avhich the levari facias was founded; (4) in dismissing the fourth exception by Gilbert L. Thompson to the auditor’s report, as follows: To the auditor’s finding of fact that the work done and materials furnished by exceptant for which he filed his lien, were furnished for an addition to or alterations and repairs of an old building, and not to and for the construction of a new building; (5) In confirming auditor’s report.

      Irvin P. Knipe of Wanger & Knipe, for appellant.
    The findings of fact in this case clearly distinguish it from Seifert’s App., 158 Pa. 57; Murphy’s App., 158 Pa. 497.
    The appellee, having stamped the building as the erection and construction of a large hotel, and carefully and properly having secured indemnity against loss, by reason of the possible filing of liens by mechanics, should be now estopped from setting up any different view of the matter; and the sureties on the bond of indemnity having given like description of the erection, the same principle is applicable to them, and there is accordingly no equity for the allowance to its claim on account of the rights of others, it having no just right to relief, from this fund.

      Francis L. Roepke and Charles H. Stinson, for appellee;
    February 16, 1897:
   Opinion by

Wickham, J.,

A careful examination of the facts furnished us by the audit- or’s report in this case, the evidence not being printed, satisfies us that the court below committed no error.

While the original building described in the report of the learned auditor, and represented, we suppose, with reasonable-fidelity, in the pictures offered in evidence, was changed, still the changes were merely alterations and additions within the meaning of the Act of May 18, 1887, P. L. 118. This act requires notice of the intention to file a lien to be given the owner or reputed owner, or his agent, at the time of doing work or furnishing materials in and about repairs, alterations, or additions to a building. It is conceded that no notice was given.

The original building, situate in the borough of Lansdale, was two stories high, with an attic equivalent to a third story. Each of the three floors was divided into five apartments, those on the second and third floors being bed rooms. It had a front of about forty feet on Main street, and, including the kitchen, extended back along Broad street about fifty-six feet. The owner used it as a hotel, and desiring to enlarge it, built a three-story addition thereto on the west side, the new part fronting about sixty feet on Main street, and running back therefrom about forty feet. The walls of the addition were of stone to correspond with those of the old building, the porches were connected so as to form one continuous porch along Main street, and the roofs of the two buildings properly united. Communication between the new and old parts of the compound structure was had through a door in the cellar, two doors on the first floor, one on the second, and one on the third, all cut through the west wall of the old building. The only interior changes made in the latter were on the first floor, and consisted of the removal of folding doors between two rooms and a slight modification of one of the stairways. The exterior walls along Main and Broad streets, and the doors, windows, porches, cornices, etc., therein and thereon were not changed in any way. The cost of the improvements is not given by the learned auditor, except so far as it may be inferred from his finding that “ They were of no mere ordinary character, but in extent were almost if not quite as great as the original building itself.” It may be assumed, therefore, that the new and the old parts of the building were about equal in value. During the whole time that the addition was being built, the owner occupied and used the original structure as a licensed hotel, entertaining his guests and customers as before.

The above facts, found by the learned auditor and not excepted to, fully vindicate his conclusion, that the materials furnished by the appellant were for alterations and additions to an existing building, and that not having given the notice required by law, the appellant was not entitled to a lien.

In Seifert’s Appeal, 158 Pa. 57, a case in its main facts not unlike the present one, the owner of a two-story frame building, having a width of twenty-two and a depth of sixty feet, the lower part used as a store, and the upper as a dwelling, built thereto, along the west side, an addition twenty-five by eighty feet, took ont all the partitions in the second story of the old building, removed the roof, and the west wall of the upper story, spliced the studding in the southeast and north walls so as to raise this story to the level of the corresponding story of-the addition, put both parts under one roof, and fitted out the whole upper story as an opera house, and the lower part as a store room. It was held that these changes, although more extensive and far reaching in their character and results than those shown in the case in hand, did not create a substantially new'building. See also Landis’ Appeal, 10 Pa. 379; Murphy’s Appeal, 158 Pa. 497.

That the union of the new and old buildings has resulted as the learned auditor says in “ one harmonious whole ” stamped “ with a new and distinctive character ” is not enough to make the structure a new building in the eye of the law. As the learned auditor adds, by way of explanation, “ nevertheless the fact remains, that this effect or change of appearance is the result of an addition or extension harmonizing with the materials and architecture of the original building, and not caused by any material change in the old building itself. That still remains practically untouched.”

A modern architect, by adding to an old building two or three porches, a gable or two, two or three dormer windows, changing the chimney tops, and repainting the whole, can at a comparatively small cost so change the appearance of the original structure, that its owner, if absent during the progress of the improvements, might not recognize it on his return, save by the surroundings; still these things would after all be merely alterations, additions, and repairs.

Cases may occur where the extent, character, and value of the additions are, comparatively speaking, so costly and great as to make the original building only worth considering as an element of the new. Whenever this happens, the courts will not hesitate to apply the rule compressed in the maxim, “ De minimis lex non curat.” The present case is not of that character.

It is not necessary to add anything farther to what is contained in the report of the learned auditor and the opinion of the learned judge of the court below.

Decree affirmed and appellant directed to pay the costs of the appeal.