WISE and another, Adm'rs, v. WALKER,1

(Supreme Court of Pennsylvania. May 30, 1887.)

ADMINISTRATORS-ACTION-Vendor and Vendee-Parties.

A. agreed, by written articles, to sell to B., his heirs and assigns, certain real estate for a certain sun, part of which was paid on account. After the death of B., A. tendered to his administrator a deed wherein the heirs of B. (without naming then) were the grantees. This deed the administrator refused to accept, whereupon A. stated that, unless it was accepted, he would take immediate possession of the property, which he did. The administrator then brought suit against A. to recover back the money paid on account. The court, on the trial, entered a compulsory nonsuit. Held, this was correct; the heirs of B. not being parties to the action, and their interest not being shown to have been legally divested.

Error to common pleas, Lancaster county.

Assumpsit by Maggie G. Wise and Thomas G. Wise, administrators of Henry Wise, deceased, against Joseph C. Walker.

On October 8, 1884, Joseph C. Walker and Henry Wise entered into articles of agreement, the former covenanting that he will, on or before the first day of April, A. D. 1885, at the proper costs of the latter, "his heirs and assigns, by such deeds of conveyance as he or they, or his or their counsel, learned in the law, shall advise, well and sufficiently grant, convey, and assure unto the said Henry Wise, his heirs and assigns, in fee-simple, clear of all incumbrances,' his farm of 122 acres and 31 perches; in consideration whereof the said Henry Wise, for himself, his heirs, executors, and administrators," covenanting that he will pay, or cause to be paid, unto Joseph C. Walker, his heirs, executors, administrators, or assigns, "the sum of one hundred dollars per acre,-total, $12,219.373; to be paid as follows: $1,219.37 to be paid on the signing and sealing the articles of agreement; the balance of $11,000 to be paid on or before the first day of April, 1885, on the delivery of a properly prepared and signed deed of conveyance, "-the said Joseph C. Walker to allow $5,000 or $6,000 to remain secured on the property at 5 per cent. per annum. The $1,219.37 was paid to said Walker as agreed upon. The property was then in the possession of a Mr. Glick, as tenant of Mr. Walker. On March 12, 1885, Henry Wise died, leaving surviving a widow, one of the plaintiffs in this case, and issue, five children, all minors excepting Thomas G. Wise, the other plaintiff, who with his mother became administrator of the said Henry Wise, deceased.

On April 1, 1885, Mr. Walker called on Mrs. Wise, and, in the presence of some of the children and a friend, tendered a deed, drawn under his directions, in which "the heirs" (without naming them) of Henry Wise were made parties grantees. Mrs. Wise expressed some doubts as to the validity of the deed, drawn up in the form it was; at the same time expressing their entire willingness to complete the purchase, including the payment of the purchase money, as provided in the articles of agreement, and asked sufficient time to go to Lancaster, a distance of about 20 miles, to consult counsel, and return that evening. Mr. Walker said that they could appoint guardians over the minor children, and insisted that the deed so tendered should be then accepted, or never; and, further, that on refusal he would take possession of the property that evening, which he did. The property had been provisionally leased by Mrs. Wise to Mr. Glick, whose term was to commence on April 1, 1885. Mr. Glick, however, continued to attorn to Mr. Walker, just as he had before. Neither Wise's estate nor Mrs. Wise received any rent. In May then following Mr. Walker again tendered the same deed. Mrs. Wise and the family considered that said agreement to sell was rescinded, and, on Walker refusing to refund the $1,219.37 which had been paid on it by Wise in his

1Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

life-time, the administrators brought this action of assumpsit on the common counts to recover it.

On the trial in court below, the court, on motion of the defendant's attorney for a compulsory nonsuit, said: "The court thinks the case is broad enough, if the facts come within the law. The court cannot se suflicient evidence to let this case go to the jury as a question of fact upon a rescission of the contract; and the only point we have any doubt about is the point of the vendor declining to give the other party time to look at the title. That seems to have been a very prominent point in one of the cases, and that is not very strong here; but under all the facts and the law, as we see it now, we will have to grant a nonsuit, and, on a motion to take it off, the court in banc will hear the whole case.

The court in banc subsequently refusing to take off the nonsuit, this writ was taken.

B. F. Davis and Wm. R. Wilson, for plaintiffs in error.

The duty of preparing and tendering a proper deed rested upon the vendor. McSherry v. Askew, 1 Yeates, 79; Sweitzer v. Hummel, 3 Serg. & R. 228; Callaghan v. McCredy, 48 Pa. St. 463; Gans v. Renshaw, 2 Pa. St. 34; Irvin v. Bleakley, 67 Pa. St. 24; Mervin v. McFadden, 2 Watts, 132. This was not a proper deed. Moore v. Bickham, 4 Bin. 1; Markley v. Swartzlander, 8 Watts & S. 172; Swayne v. Lyon, 67 Pa. St. 436; Gans v. Renshaw, 2 Pa. St. 36, 37; Morris v. Stephens, 46 Pa. St. 200. The vendee was entitled to a reasonable time to examine the deed. Wilson v. McNeal, 10 Watts, 422; Gibbons v. Fairlamb, 26 Pa. St. 217; Buckley v. Reed, 15 Pa. St. 83; Cleveland v. Sterrett, 70 Pa. St. 204; Crossgrove v. Himmelrich, 54 Pa. St. 203; Smethurst v. Woolston, 5 Watts & S. 106; American Life Ins. Co. v. McAden, 1 Atl. Rep. 256; Feay v. Decamp, 15 Serg. & R. 227.

J. Hay Brown and G. C. Kennedy, for defendant in error.

Performance was properly tendered by defendant to the heirs of the vendee. The administrators are in default, and have no standing in this suit. Irvin v. Bleakley, 67 Pa. St. 27; Hathaway v. Hoge, 1 Atl. Rep. 392; Murray v. Ellis, 112 Pa. St. 485, 3 Atl. Rep. 845; Adams v. Williams, 2 Watts & S. 227; Hampton v. Speckenagle, 9 Serg. & R. 212; Washabaugh v. Stauffer, *81 Pa. St. 502.

PER CURIAM. This suit was brought by the administrators of the equitable vendee against the vendor. The heirs of the vendẹe are not a party to this action, and their interest in the land is not shown to have been legally divested by any evidence before us. It follows there was no error in rejecting the evidence offered, and in ordering the nonsuit, and in refusing to take it off. Judgment affirmed.

FYAN . CESSNA and another.1

(Supreme Court of Pennsylvania. May 23, 1887.) JUDGMENT-RULE TO OPEN-ANSWER-EVIDENCE.

Where a plaintiff, in an answer under oath to a rule to show cause why the judg ment should not be opened, expressly avers that two of the defendants are sureties only, he cannot be permitted, on the trial of the issue awarded, to prove that, in their absence, the other defendant declared that he and one of the other defendants were joint borrowers.

Error to common pleas, Bedford county.

Feigned issue, wherein Albert E. Fyan was plaintiff, and J. B. Cessna, William Cessna, and W. L. Moseby were defendants, to determine whether or not William Cessna and W. L. Moseby were discharged from liability on a

'Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

certain judgment note by reason of an extension of the time of payment given to J. B. Cessna. Judgment was entered against defendants by confession on a judgment note for $630. The defendants William Cessna and William L. Moseby, upon petition, moved the court to open the judgment, upon the ground that they were bail or security for the other defendant, J. B. Cessna, and that by reason of an extension of the time of payment, granted him by plaintiff without their knowledge or consent, they were discharged from all liability on said note. To this petition plaintiff filed an answer, wherein he admitted that these defendants were sureties, but denied the extension. After argument, the court opened the judgment, and let defendants into a defense, and thereupon this issue was framed. Upon the trial, before BAER, P. J., plaintiff offered to prove that, on the day the note was signed, J. B. Cessna stated to him that he and his brother William were the borrowers, and that Mr. Moseby was a surety. Objected to on the ground that, as it already appears in the case that William Cessna was a surety, the declarations of J. B. Cessna cannot affect him. Objection sustained. Evidence rejected. Exception. Verdict and judgment for defendants; whereupon plaintiff took this writ, assigning for error the above ruling.

Wm. M. Hall and Alexander King, for plaintiff in error.

William Cessna was guilty of laches in not writing the word "surety" after his name. He is therefore bound by the declarations of his brother, which are competent evidence. Ogle v. Graham, 2 Pen. & W. 132; Sigfried v. Levan, 6 Serg. & R. 308; Wiley v. Moor, 17 Serg. & R. 438; Patterson v. Patterson, 2 Pen. & W. 200; Simpson's Ex'r v. Bovard, 74 Pa. St. 351; Garrard v. Haddan, 67 Pa. St. 82; Shaeffer v. McKinstry, 8 Watts, 258; Sterling v. Stewart, 74 Pa. St. 445.

John N. Reynolds, for defendant in error.

The declarations were admissible against the defendant making them, but not against his co-defendants. Fulmer v. Seitz, 68 Pa. St. 241.

PER CURIAM. The answer of the plaintiff under oath, to the rule to show cause why the judgment should not be opened, expressly avers that these two defendants were sureties only. He cannot now be permitted, on the trial of this issue against them, to prove that, in their absence, J. B. Cessna declared he and his brother were joint borrowers. On no correct principle governing the admission of evidence could this be admitted. The specifications of error are not sustained. Judgment affirmed.

MYERS v. FRITZ.1

(Supreme Court of Pennsylvania. May 30, 1887.)

NEGLIGENCE-BREAKING of Dam.

A. erected, on or near the division line between his farm and that of B., a dam of stone and dirt. In consequence of a storm, the dam broke, and the farm of B. was injured by the water, and the materials of which the dan was constructed. In an action brought by B. against A. to recover damages for the injuries, the court instructed the jury that, if the dam broke by reason of an ordinary storm such as might have been anticipated, plaintiff was entitled to a verdict, but that if it broke by reason of an extraordinary storm, such as could not have been anticipated, it was damnum absque injuria. Held, there was no error in this.

Error to common pleas. Lancaster county.

Case by Benjamin B. Myers against Benjamin Fritz, to recover damages sustained by the plaintiff by reason of the breaking of a dam erected by the defendant on or near the division line between the parties. The parties, at the time the injury was sustained, were the owners of two adjacent tracts of

1Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.

land. The land of the defendant is higher than that of the plaintiff, and the natural surface drainage of the former flows from the north, east, and south into a depression, and thence flows westward over the land of the plaintiff. There was no regular stream of water on this portion of the premises. It was only after rains, or from meltage of snow, that there was a flow of water, and when there was such a flow, in its natural state, it did no injury to either of the tracts of land. During several years prior to 1883, the defendant, from time to time, hauled stones and rubbish along his side of the division line between the parties, and across the depression which formed the natural drain of the surface water, so as to form a dam. This dam, from the additions made thereto every season by the defendant, reached, in the summer of 1883, a height on the lower side, next to the plaintiff's land, of about six feet. On the upper side, owing to the gradual filling up of the pool formed by the dam, it was not so high. There is a public road on the north side of defendant's said tract of land, running east and west. The surface water from that road, in its natural course, ran northward over other lands of the defendant; but, a short time prior to the summer of 1883, the defendant, by means of a deep ditch, turned the drainage southward, so that it flowed into the pool immediately above the said dam. In the summer of 1883, in the months of July and August, there were two heavy storms, during one of which a large portion of the said dam was swept away, and the stones and rubbish were carried down on plaintiff's land, so as to destroy his crops and grass, and in addition to that the water carried away his fences, and washed out enormous holes in his fields.

Upon the trial the court, inter alia, instructed the jury that "if the injury to the plaintiff, Myers, was caused by the defendant's dam or embankment of stones breaking, by reason of a storm, under ordinary circumstances such as he might have anticipated or expected when he made it, and he was keeping it up, he would be liable in this action. But if the injury proceeded from an extraordinary storm or rain, or an act of Providence, such as could not have been foreseen or anticipated or expected, the plaintiff would not be entitled to recover. In other words, the defendant here would be liable for all damages from the ordinary recurring and expected floods or rains of the season, but not for those occasioned by uncommon, unexpected, and unusual floods or rains." Verdict and judgment for defendant; whereupon plaintiff took this

writ.

D. G. Eshleman, G. R. Eshleman, and J. E. Snyder, for plaintiff in error. It is not enough that the dam is sufficient to resist ordinary floods; for, if the stream is occasionally subject to great freshets, those must likewise be guarded against. Ang. Water-Courses, § 336; Gray v. Harris, 107 Mass. 492; Humphrey v. Irvin, 18 Wkly. Notes Cas. 449, 6 Atl. Rep. 479; McCoy v. Danley, 20 Pa. St. 85; Casebeer v. Mowry, 55 Pa. St. 419.

S. H. Reynolds and D. McMullen, for defendant in error.

The owner of a dam is not answerable for damages caused by his dam, combined with an act of Providence. Railroad Co. v. Yeiser, 8 Pa. St. 374; Gray v. Harris, 107 Mass. 492; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle, 9; Bell v. McClintock, 9 Watts, 119; McCoy v. Danley, 20 Pa. St. 85; Livezey v. Philadelphia, 64 Pa. St. 106.

PER CURIAM. We do not think any one of the specifications of error is sustained. The evidence of the magnitude of the storms was such that the counsel for the plaintiff concedes it should have been submitted to the jury. It was submitted in a clear and fair charge. In the absence of any more specific instructions being prayed for, we see no error in answers to the points, nor in the charge. It was not misleading nor inadequate. Judgment affirmed.

(116 Pa. St. 163)

BLUM v. Ross.1

(Supreme Court of Pennsylvania. April 25, 1887.)

HUSBAND AND WIFE-WIFE'S OWNERSHIP OF GOODS-FRAUD ON CREDITORS.

Where an insolvent opened a store, and carried on business in the name of his wife, who signed, for goods purchased, certain notes subsequently paid with the proceeds of the business, but was not further known in the business, held, that the obvious use of the wife's name was for the purpose of defrauding creditors, and there was no error in the court below refusing to submit the case to a jury. Error to common pleas, Bradford county.

Feigned issue, by Daniel Blum against Lewis P. Ross, to determine the ownership of property taken in execution as the property of Joseph C. Blum. The said Joseph C. Blum failed in the shoe business in Akron, Ohio, and his stock was purchased at sheriff's sale by his sister-in-law. In the following year he moved to Towanda, Pennsylvania, with his wife, who owned a house and lot there, previously given to her by Blum. The stock was purchased from his sister-in-law for $1,500, payable in three notes of $500 each, signed by Ida E. Blum. These notes were paid, at maturity, out of the proceeds of the store. Ida E. Blum testified that she knew nothing about the business, which was conducted by her husband, who was her agent. March 31, 1883, she presented her petition for a certificate entitling her to her separate earnings, under the act of April 3, 1872, and a decree was so entered. September 20, 1884, Lewis P. Ross obtained judgment against Joseph C. Blum, and, in January, 1885, issued thereon a fi. fa., under which the said stock was levied upon. The goods were claimed by Daniel Blum, by virtue of a sale by Ida E. Blum to him, January 26, 1885, for $2,700. The court instructed the jury to find for defendant. Verdict and judgment accordingly, whereupon plaintiff took this writ.

N. C. Elsbree, L. Elsbree, and H. M. Williams, for plaintiff in error. The circumstances justify the inference that the business was carried on on the credit of the wife's separate estate. Sixbee v. Bowen, 91 Pa. St. 149; Welch v. Kline, 57 Pa. St. 432; Conrad v. Shomo, 44 Pa. St. 194; Manderbach v. Mock, 29 Pa. St. 45. The certificate, by the act of 1872, was sufficient evidence of ownership. Adams v. Levy, 3 Wkly. Notes Cas. 543; Dillon v. Baker, 12 Wkly. Notes Cas. 65; Manufacturing Co. v. Goe, 1 Penny. 238; Bovard v. Kettering, 101 Pa. St. 181.

S. W. Little, Wm. Little, and H. J. Madill, for defendants in error, cited Rhoads v. Gordon, 38 Pa. St. 277; Auble v. Mason, 35 Pa. St. 261; Flick v. Devries, 50 Pa. St. 266; Walker v. Reamy, 36 Pa. St. 410; Curry v. Bott, 53 Pa. St. 400; Bucher v. Ream, 68 Pa. St. 425; Gault v. Saffin, 44 Pa. St. 307; Aurand v. Schaffer, 43 Pa. St. 363; Silveus' Ex'rs v. Porter, 74 Pa. St. 448; Pier v. Siegel, 107 Pa. St. 502.

GORDON, J. Were we to reverse the judgment of the court below, we must needs make bad work with the law heretofore governing the marital relation; for not only, in that event, would we have to allow the wife to acquire and hold property on her personal credit, but also to have and own, even as against creditors, the labor and earnings of her husband. A very brief statement of the facts of the case will, we think, demonstrate that the action of the common pleas was correct, and that the evidence adduced by the plaintiff was not of such a character as required its submission to the jury. In the first place, when the goods in controversy were bought, Joseph C. Blum, the husband of Ida E. Blum, who was the vendor of the plaintiff, was insolvent. This insolvent husband bought these goods, as she alleges, as her agent, though, so far as the evidence is concerned, it does not appear that he had any pre

1 Edited by Henry R. Hatfield, Esq., of the Philadelphia bar.