Weekly Notes of Cases. VOL. I.] THURSDAY, FEBRUARY 4, 1875. [No. 19. Supreme Court. Jan. 73, 132. LEA V. CITY OF PHILADELPHIA, to use, etc. Lien for repaving sidewalk-Construction of Ordinance of Jan. 10, 1870. Error to the District Court of Philadelphia Co. Sei. fa. sur municipal claim. Plaintiff in error, in 1870, received notices from the Highway Department to repave sidewalks of a lot fronting on Twentieth St. and two other streets. The repaving on Twentieth St. was not begun within the time limited. The equitable defendant in error, under order from the Chief Commissioner, tore up and relaid the Twentieth St. sidewalk. Upon suit brought on his claim, the Court below charged that the lien filed was conclusive as to notice, failure to repave, and authority of Brooks, the equitable plaintiff, to do the work; and prima facia evidence that the work was done, and the price a proper one; which, not being disputed by defendant, must be taken for granted. That the verdict must be for the plaintiff below. To which charge the defendant below excepted. Gendell (with whom was Miller), for plaintiff in error. The city could not lawfully charge the relaying of a sidewalk by a vacant lot to the owner, under Hammett v. Philada., 15 P. F. Smith, 146. Brooks was not in the employ of the city, and his only authority was the order from the Chief Commissioner. This order was a contract forbidden by Act April 21, 1855, ₹ 20 (P. L. 269). Reilly v. City, 10 P. F. Smith, 467, explaining- The ordinance of 1870 applies to the whole street. When the cartway only is intended, it is always explicitly mentioned in acts and ordinances. Under the Act of 1843, plaintiff may deny that the work was legally done. Reilly v. City, 10 P. F. Smith, 467. Willson (with whom was Collis), contra. Jan. 18, 1875. PER CURIAM. Judgment affirmed, on the ground that the work done on the pavement was substantially a repair, and not a renewal of the pavement, falling under the ordinance, to be paid for by the owner of the frontage, and to be done by the supervision of the highway by means of labor and not by contract. Sei. fa. sur judgment. Kames applied to Thomas for a loan, and was refused. Subsequently Thomas gave Kames Reading Railroad bonds at 90 per cent., and took a bond and mortgage for the amount; the bonds were then selling in the market at 80. Judgment was entered on the bond, but subsequently opened by the Court, and the defendant let into a defence on the ground of usury, as upon a writ of sci. fa. on the judgment. The Court below left the question to the jury as to whether the transaction was a loan at usurious interest, or a bona fide sale of the bonds. Verdict and judgment for plaintiff. Darlington & Cornwell, for plaintiff in error. [AGNEW, C. J. Is not this an attempt to review the finding of a jury on a question of facts? There was no request to the Court to give a binding instruction.] The Court below left it to the jury to find that it was a sale, when there was no sufficient evidence of a sale. Whether in the form of a sale or not, if there was a unsurious consideration the defence is pro tanto good. Chesterfield v. Jansen, 2 Ves. 155. Downes v. Green, 12 M. & W. 490. Fitzsimons v. Baum, 8 Wr. 41. Evans v. Negley, 13 S & R. 218. Heath v. Page, 12 Wr. 130. Eagleson v. Shotwell, 1 Johns. Ch. R. 536. Morgan v. Schumerhorn, 1 Page, 544. J. J. Pinkerton and R. N. Wilson, for defendants in error, were not called on. Feb. 1. PER CURIAM. "The assignments of error in this case present only questions of fact, which were properly left to the jury. The law of the transaction depended on the nature of it, and so it was left to the jury." Judgment affirmed. brought out on direct examination-How far a subscribing witness may be impeached by party calling him-Merger of bond in judgment entered thereon. Error to Common Pleas of Chester County. This was an amicable action of trover for a bond made by one Whitesides and others to Isaac Wynn as guardian, who was plaintiff below and defendant in error. The bond in question came into the hands of Leonard, the defendant below, through an alleged assignment indorsed on it by Wynn transferring it to Leonard. This assignment Wynn at first asserted to be a forgery. The two subscribing witnesses to the assignment were I. Newton Wynn, a son of Wynn, and Davis, an attorney and agent of Wynn. I. Newton Wynn, upon being called by the defend the assignment, but was the agent through whom Jan. '75, 1. G. PAINTER. Jan. 22. Decedent's estates-Liability of executor to account to executor of legatee-Security to be entered by lifetenant under Act of Feb. 24, 1834, and April 17, ant to prove the assignment, failed to do so, not recognizing his own blurred signature, and not being able to swear to that of his father, and, indeed, testifying that his father never executed such a paper in his presence. The defendant thereupon called, as he afterwards urged ex necessitati rei, Davis, the other subscribing witness. Now Davis, as has been said, was Wynn's agent, and it was through him that the sale and transfer of the bond took place. Davis having testified to the execution of the assignment, it was proposed to ask him on cross-examination what was said and done at the time of the execution of the assignment. This was objected to by the defendant. The objection was overruled, and the witness testified that a conversation took place between himself and Wynn to the effect that the bond should In re JAMES PAINTER'S ESTATE.-APPEAL OF BETSY be assigned in blank, and be left with Davis to raise money on. "I did not realize on it from Mr. Leonard," said the witness (Leonard was not present at the execution of the assignment). The defendant objected to the witness stating what he did with the bond, or how it came into Mr. Leonard's possession. This objection, also, the Court overruled. The wit Certiorari to Orphans' Court of Chester County. ness then stated that he owed Mr. Leonard money, Mary Painter was a daughter of James Painter, and when asked by him for security said that all he was entitled under his will to certain shares of Lehch had was this bond which had been left with him to Navigation stock, and to a legacy of $7000, I raise money on for Mr. Wynn's ward who was about died leaving her husband, William Jones, the execu coming of age. The jury finding for the plaintiff. tor of her will. This case came up on a petition by and judgment being entered accordingly, the defend-Jones, brought in the Orphans' Court, for a citation ant, having excepted to the above rulings, brought upon Betsy G. Painter, widow, and executrix of this writ of error, assigning these for error. James Painter, to file her account. Betsy G. Painter G. F. Smith and J. J. Lewis, for plaintiff in error, filed an answer averring that she had assets enough argued― to pay all debts and legacies, but submitted to the Court, that, as the petitioner had, under his wife's will, only a life-estate (the interest in the remainder being vested in the minor child of himself and his said wife, Mary Jones), he had no right to the legacies without entering security under the Acts of February 24, 1834, May 17, 1871, and April 17, 1869, and averred that she had proposed to pay the legacies upon security being entered. 1st. That a conversation between an assignor and a third person, the assignee not being present, was not admissible to invalidate an assignment-declarations by one to invalidate his own deed being inadmissible. Clyde v. Clyde, 1 Yeates, 92. An assignor always warrants the genuineness of his claim. Flynn v. Allen, 7 P. F. Smith, 484. 2d. That the assignment being in blank, and therefore to bearer, no assignee was to be affected by Davis's fraudulent misuse of his authority. Lefever v. Car, 2 Casey, 413. 3d. That the plaintiff below had no right to make his whole case out of Davis's cross-examination. Greenl. Ev., I. Sec. 445. Ellmaker v. Buckley, 16 S. & R. 77. 4th. That the cross-examination of Davis as to what took place between himself and the defendant below months after the execution of the assignment by the plaintiff, was not proper, the direct examination having been confined to the execution of the assignment. That this was the more injurious in that the defendant, though compelled to call Davis, yet, having made him his witness, could not contradict him. 5th. That as judgment had been entered on the bond, the latter became merged in the judgment and was mere waste paper for which no action could lie. Waddell (with whom was C. H. Pennypacker), for defendant in error, argued, among other things, that Davis was not merely a subscribing witness to 1869. The Court below having been of opinion that the answer was insufficient, and having decreed that by a given date the respondent should account unless before that time she had paid the legacies given in James Painter's will to Mary Jones, the respondent appealed. P. F. Smith (Geo. F. Smith with him), for appellant, cited The above acts of assembly. Bayard v. The Bank, 2 P. F. Smith, 232. Stanley's Appeal, 8 Barr, 431. Souder's Appeal, 7 P. F. Smith, 498. SHARSWOOD, J., remarking, that, whether the action of the Court below making an alternative decree instead of an absolute direction upon the respondent to account was correct or not, this was not for the respondeat, the appellant, to complain of. 'The counsel for appellee in his paper-book cited Barkley's Estate, 10 Barr, 390; Scott on the Intestate Law, 55, and the Act of Feb. 24, 1834; Commonwealth v. Bryan, 8 S. & R. 128; Archbishop of Canterbury v. Willis, Salk. 172, 251, 315; Commonwealth v. Snyder, 12 P. F. Smith, 157-on the question of jurisdiction; as to the necessity and pro priety of an account in this case-Act of 29th March, 1832, sec. 15; Act of June 16, 1836, sec. 16; Stanley's Appeal, 8 Barr, 431. Feb. 1, 1875. PER CURIAM. Appeal quashed. Jan. '75, 86. Jan. 22. SHOEMAKER et al. v. THE MUTUAL LIVE STOCK INSURANCE COMPANY OF CHESTER COUNTY. Mutual Insurance-Representation made by agent By-laws-Estoppel. Appeal from decree of Common Pleas of Chester County. The appellants, who were respondents below, were insured in the complainant company. On coming, in the autumn of 1869, to pay in advance their premium for the ensuing year, they were told what it was, and finding it was much higher than that of the previous year, they asked the reason, and were told by the treasurer of the company that it was to cover the losses which the company found it was making. As to what was said on this occasion, there was much dispute between the parties. The respondents, therefore, paid their premium and became insured till November, 1870, after which they ceased to be insured. In 1872 the company brought this action to recover from the respondents their share of losses incurred while they were members of the company. The respondent defended the suit on the three grounds: 1. That the accounts of the company were so badly kept that it was impossible to say what the respondents owed. 2. That the company had not complied with a by-law which required, that, when the annual payments for insurance were insufficient to meet the liabilities, a rate of contribution should be assessed and published. 3. That the company were estopped by receipts given for premiums and by the declarations made by their treasurer to the defendants, when the latter paid the premium for the year 1869-70, these declarations being tantamount to the assurance that the losses were being paid by the extra premium, that back losses as well as future liabilities were meant, and that this representation was part of the consideration of the contract by the respondents to continue insuring for the following year. The Master found for the complainants, and on exceptions the Court below confirmed his report. The respondents below appealed, assigning for error that the Court confirmed the Master's report, and that it decreed that anything was due from the defendants to the plaintiffs. AGNEW, J., remarked that the assignments of error did not specifically state the error, and in this connection called attention to the fact that the excep tions to the Master's report were all apparently to the findings of fact. J. Smith Futhey and P. F. Smith, for appellants, cited Columbia Insurance Company v. Masonheimer (not yet reported), and Price v. Mott, 2 P. F. Smith, 315, to the point that a corporation, even if a mutual company, is bound by the acts and declarations of its officers acting within the regular line of their duty. Reid and Pinkerton, for appellees, argued: 1. That as to the possibility of ascertaining the respon dents' liability from the complainants' books, the Master had, a ter a careful investigation, found pre cisely what the liability was. 2. That as to the alleged failure of the complainants to comply with the by-law given above, the Master had found that there were two by-laws, one as follows, mandatory in its character, viz.: "An account shall be kept with each member in which he shall be charged annually on the second day of eleventh month, with his proportion of the losses and expenses for the preceding years, and at the same time shall have a credit for his payments; and when such member shall withdraw from or cease to be a member of the company and shall make application to the secretary thereof, his account shall be settled and the balance (if any) due shall be paid to him." That this by-law had been complied with. The second, directory in its character, was as follows: "If the annual payments for insurance herein provided to be made shall at any time be found insufficient to pay the losses and expenses of the company, it shall be lawful for the board, etc. to settle and assess a rate of contribution, etc. etc. to make up such deficiency, and publish the same, etc., and the members of the company shall pay, etc. etc. That this was the by-law whose violation the respondents set up as a defence. In answer to a suggestion that the respondents were not bound to know the former by-law as it was not printed in their policy, the learned counsel for the appellees cited, for the proposition, that every member of a mutual company is chargeable with a knowledge of its rules. Mitchell v. Lycoming Ins. Co., 1 P. F. Smith, 402. Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348. Diehl v. Adams Co. Mut. Ins. Co., 8 P. F. Smith, 443. That in order to constitute such an estoppel as was set up by the respondents below, three things must appear: 1. That the party made an admission which is clearly inconsistent with the evidence he proposes to give. 2. That the other party acted on his admission. 3. That the latter will be injured by allowing the truth of the admission to be disproved. Eldred v. Hazlett's Admr's, 9 Casey, 307. Diller v. Brubaker, 2 P. F. Smith, 498. Meason v. Kaine, 17 P. F. Smith, 126. Reel v. Elder, 12 F. F. Smith, 308. That under these principles no estoppel arose from the receipts, which, though" in full," were evidently on their face for the annual premium. That none arose from the declaration of the officers of the company made to the respondents, inasmuch as it claimed, and the Master found, that these related to future and not to past losses, that the representations, if such, were not made under circumstances to bind the principal. Angell & Ames on Corp. 249. Custer v. Titusville Gas and Water Co., 13 P. Stewart v. Huntingdon Bank, 11 S. & R. 267. That proceedings of the company showed that the advance in the rates was designed to cover future losses, and that this respondent knew or should have known. Feb. 1, 1875. PER CURIAM. Decree affirmed. The heirs of Peter H. Snyder, deceased, advertised their farm for sale Oct. 19th, 1866. The conditions of the sale were that possession and a good title should be given on April 1, 1867, on purchaser paying one-half the purchase-money and giving security for the balance. Ten per cent. of the purchasemoney was to be paid at time of sale. The defendant purchased at the sale and paid his ten per cent. which was distributed among the heirs. On April 1, 1867, the parties met. The heirs tendered defendant a deed signed by all the heirs but Emma J. Sober, a minor, who owned one undivided sixty-third interest in the land. This deed the defendant refused, tendering on his part the one-half purchasemoney. The heirs then said that a deed would be made at the first Orphans' Court for the outstanding sixty-third in Emma J. Sober. They offered to throw off that much from the price, to give defendant a bond of indemnity in $40.000 (the farm having sold for $6900), and made various other offers, all of which defendant refused. At the first Orphans' Court, which was held May 14, 1867, the guardian of Emma J. Sober presented his petition, reciting the sale and praying decree of confirmation. Decree made and deed made for E. J. Sober's interest, which, together with a new deed from the rest of the heirs, was tendered to defendant on July 22, 1867. Defendant refused to receive it, and brought this suit to recover back the ten per cent. paid at time of sale. The suit was brought against all the heirs who had signed the conditions of sale except the married women. Two of the heirs died before trial. On Jan. 9, 1871, defendant (who was plaintiff below) suggested their death on the record. Court ordered cuse to be stricken from the list till substitution made. March 3, 1871, sci. fa. to executors of M. Sober, deceased, to show cause why they should not be made parties defendant. Oct. 9, 1871, by writing filed, S. Bonghner appeared as administrator of Hudson Sober, deceased, as party defendant. Jury sworn as to all defendants against whom action was brought except the two who had died. The Court instructed the jury to find for the plaintiff below for the full amount, with interest. Verdict and judgment for plaintiff. Hill and Wolverton, for plaintiffs in error, argued 1. That the suit should not have been tried till the representatives of the two deceased heirs were substituted on the record. 2. That the plaintiffs offered conditions of sale signed by defendants and others not sued, to show contract between the parties, which were improperly admitted. Mosher v. Small, 5 Barr, 223. Rowan v. Rowan, 5 Cas. 181. Philadelphia v. Reeves, 12 Wright, 472. Cook v. Mackrell, 20 P. F. Smith, 12. 3. That under the circumstances time was not of the essence of the contract. Haverstick v. Gas Co., 5 Cas. 256. Hilliard on Contracts, ii. 208. Pickering v. Stapler, 5 S. & R. 106. Cassell v. Cook 8 S. & R. 268. Packer, for defendants in error. 1. The representatives of the two deceased heirs were not parties on the record, and the jury were properly not sworn as to them. Act 24 Feb. 1834 (Purdon, 424, % 95). 3, etc. As to third assignment of error. Feb. 1, 1875. PER CURIAM. Judgment affirmed. The objection as to non-joinder should have been made by plea in abatement. This was a case in which punctual performance was of the essence of the contract. Jan. '75. LINTON V. CITY OF CHESTER. Error to Common Pleas of Delaware County. Trespass on the case. Plaintiff was walking at night along Second Street, in the city of Chester. Lamokin Run flows at right angles across Second Street. The roadway of the street was continued by a bridge across the run, but the sidewalk stopped at the run. There was no fence, guard or lamp at the end of the sidewalk. The plaintiff walked off the sidewalk into the run, falling seven or eight feet, and sustaining injuries for which he brought suit. There was evidence that he had been drinking, and was excited by liquor; that as he approached the run a companion called, "Look out for the bridge," to which he replied that he knew the road. The Court below charged that if the plaintiff was familiar with the street, was warned, etc., and was intoxicated, these facts would tend to show contributory negligence, which would prevent his recovering damages. Evidence was admitted of the number of drinks taken that evening by the plaintiff. Verdict and judgment for defendant. Wm. J. Harvey (with him Muginn), for plaintiff in error. The city must maintain its streets in safe condition for travel, irrespective of the condition of wayfarers. Card v. Railroad Co., 50 Barb. 39. Davenport v. Burkman, 10 Bosw. 20, 34. S. C., 37 New York, 568. Lower Marion Township v. Merkhoffer, 21 P. F. Hayes v. Griffith, 22 P. F. Smith, 136. Hanlon v. Keokuk, 7 Iowa, 488. Smith v. Lowell, 6 Allen, 39. Collins v. Dorchester. 6 Cush. 396. Alger v. Lowell, 3 Allen, 402. Robinson v. Pioche, 5 Cal. 460. Shearman & Redfield on Negligence, page 31. The number of drinks taken that evening is irre Boudron v. Street Railway, Leg. Int., vol. 31, C. P. No. 3. page 164. Alger v. Lowell, 3 Allen, 402. Negligence is generally for the jury. Penna. Railroad Co. v. Barret, 59 Pa. St. R. 264. McCully v. Clark, 40 Pa. St. R. 406. Glassey v. Pass. R. Co., 57 Pa. St. R. 174. Railroad Co. v. McElvee, 67 Pa. St. R. 315. Feb. 1, 1875. PER CURIAM. Judgment affirmed. Plaintiff's condition cannot save him from the charge of contributory negligence. The number of drinks he had taken was good evidence to determine his condition. The test is whether the streets are safe and convenient for ordinary pedestrians. Jan. '73, 190. RAFFERTY V. HALDORN. Defendants in error, desiring to sell their mare, The Court below instructed the jury that if the trainer was a special agent, and the sale was at once repudiated by the original owners, the property in the mare remained in them; and that if the defendant below obtained possession of the mare by fraud, the jury might find vindicatory damages. The jury found for plaintiff below for $258.75. Wright v. Burbank, 14 P. F. Smith, 247. Jan. 18, 1875. Judgment affirmed. PER CURIAM. Writ of error-Supersedeas-Affidavit. Speakman, for the rule, claimed that the writ of error was a supersedeas. Dixon and C. E. Morris, contra, argued that this writ was not a supersedeas, inasmuch as 1. The recognizance was not signed by the principal, nor was there any affidavit that the writ was not taken for delay, and cited McGile v. Kauffman, 4 S. & R. 2. That a non pros. had been entered in the Supreme Court. Speakman, in reply, showed that a motion had been made to take off the non pros. Jan. 11. Rule absolute. C. A. V. C. P. No. 1. Jan. 16. SHERMAN V. BRENNER. These were suits against the maker and endorser of a promissory note for $1572.50, dated May 24, 1874, payable six months after date, drawn to the order of S. J. Sherman, signed by Jos. C. Brenner, Jr., and endorsed by Jos. C. Brenner, Sr., before the endorsement by the payee. The consideration was forty or fifty Blees Sewing Machines. The depositions on behalf of the plaintiff set forth that the machines were in a fair salable condition, with the exception of one or two second-hand machines. Negotiations were pending two or three months. Brenner, Jr., carefully examined them. Defendant owed plaintiff $300 reat for store. Before VOL. I.-13 |