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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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called it fifty-five, and compared it with the time of the rectan-
gular opening, and found that the quantity flowing through the
ajutage in a given time was one and nine thousand three hundred
and thirty-four ten-thousandths. I compared the smallest of the
experiments, and found it showing that it is about double through
the ajutage than through the rectangular opening ; the rectangu-
lar opening contains five and two-tenth square inches. The rec-
tangular plane like this will give a greater quantity of water than
the circular opening. The flow of liquids is not as the heights,
but as the square root of the heights. The rectangular being
placed vertically, would give a different result. We can't compare
*4891 we ^ two to g etner f Different *form. The stream was
J smaller out of the rectangular opening than the orifice
itself."

Besides this parol testimony, the plaintiffs gave in evidence 23
deeds, most of which bore date previously to the grant of the
defendant, containing clauses similar to that in the defendant's
deed ; and they alleged that the ajutages had not been used at
any of the other mills, at Manyunk. The defendant also gave in
evidence a letter addressed to Mr. J. S. Lewis, as Chairman of the
Watering Committee of Philadelphia, dated in the year 1819, in
which the effects of the funnel-mouth were stated and discussed.
He also exhibited various works on hydraulics and hydronamics,
showing that the mode of drawing water complained of, had been
known and taught for many years.

The learned judge who tried the cause, reserved for the court
in bane, the construction of the terms of the grant ; but he
charged the jury that the turning-point of the cause before them
was, whether the preceding purchasers of similar privileges had
omitted to use the ajutages, because it suited their convenience
to receive the water without them, in which case it would have
little or no effect ; or whether these other purchasers took the water
in the way they did, because they considered that to be the true
meaning of the contract. In the latter case he instructed the jury
that the defendant would be bound by this practical construction,
and the verdict ought to be against him.

The jury having found a verdict for the plaintiff, the defendant
moved for a new trial, and filed the following reasons:

1. Because the privilege of drawing water is limited only by
492



1837.] OF PENNSYLVANIA. 489

[Schuylkill Nav. Co. v. Moore.]

the size of the aperture and the head of water ; and the true con-
struction of the deed authorized the use of the ajutages.

2. Because the power of procuring a supply of water by means
of ajutages, was an extrinsic circumstance, which entered into and
formed part of the contract.

3. Because the acts of the other purchasers of water privileges
at Manayunk, could not affect the rights or vary the contract of the
defendant.

4. Because the jury should have been instructed that if the state
of the improvement in the mechanic arts was such as to render the
delivery of water as practised by the defendant, a matter of ascer-
tained principle, the exercise of that knowledge was lawful and
proper.

5. Because there was no concealment, fraud or misrepresentation
on the part of the defendant.

6. Because at the time of executing the grant, the manner of
*receiving the water contemplated by the defendant, was r**ar\
known to the plaintiffs, and no restriction was introduced "
into the deed.

7. Because the attention of the jury was drawn to a wrong point,
when it was especially called to the exercise of the privileges
granted by the plaintiffs to the owners of mills at Manayunk.

8. Because there was no evidence of usage in favor of the con-
struction of the terms of the grant, as the jury has construed them
by their verdict.

9. Because the verdict is against the weight of the evidence.

10. Because the learned judge erred, in not telling the jury that
upon the face of the deed, the defendant had a right to draw the
water in the way he did. The jury in their consideration of the
extrinsic circumstances had a right to be informed, and to know
that according to the legal construction of the deed per se, the
defendant had a right to draw the water in the way he claimed to
draw it.

11. Because the verdict is for the plaintiff when it should have
been for the defendant.

Mr. Meredith, and Mr. J. R. Ingersoll, in support of the rule,
contended, that by the true construction of the contract between
the parties, the defendant was entitled to 300 square inches of
water outside of the aperture ; that, as in consequence of the vena
contracta he did not obtain that amount, he had a right to make
use of such an opening as would secure a sufficient flow of water ;
and that as it appeared by the correspondence and other evidence
produced at the trial, that the use of ajutages was well known, espe-
cially to the officers of the Schuylkill Navigation Company, before
the contract was made, it was to be supposed that this method of

493



490 SUPREME COURT [March

[Schuylkill Nav. Co. r. Moore.]

drawing the water entered into the intention and contract of the
parties. Several works on hydraulics and hydronamics were cited,
to show the general understanding of the subject ; and on the
legal operation and effect of the instrument were cited Jordan r.
Meredith, 3 Yeates 318; Newbold v. Wright, 4 Rawle 212; Stoe-
ver v. Whitman, 6 Binn. 417 ; Rapp v. Palmer, 3 Watts 179 ; 2
Bos. & Pul. 168 ; Dougl. 277 ; 7 Term Rep. 214 ; 2 Bl. Com.
379; Wych. 93; 4 M. & Selw. 426; 11 East 643; 4 Id. 135;
7 Johns. Rep. 390 ; 2 Hovendon 238 ; 1 Merivale 502 ; 2 Powell
on Contracts 144 ; 1 Bro. P. C. 415 ; 1 Atkyns 10 ; 8 Viner 510,
pi. 14 ; Noy's Maxims 91 ; Plowden 156 ; 3 Chitty Com. Law
115, 116: Wood's Conveyances, tit. Grants, p. 677 : 2 Rolle's
Abr. 56; 1 Powell on Contracts 237, 241 ; Shep Touch. 100 ; 2
Wheat. 195 ; Sugden on Vendors 38 ; 3 Barn. & Cres. 623.

Mr. W. B. Heed, and Mr. Sergeant, for the plaintiffs, argued,
that the intention of the parties was that the defendant should
receive a certain quantity of water through a rectangular aperture
at its ordinary flow, and without any artificial draught that as it
*-iQ11 a PP eare d *from the books of science (which were produced
J and commented upon), that the vena contracta was known
at least as early as the time of Sir Isaac Newton, the parties were
to be supposed to have entered into the agreement with the knowl-
edge that an aperture of 300 square inches would not deliver at
the point of contraction more than 200 ; and that the understand-
ing of the community in relation to it was shown by the 23 deeds
given in evidence from the company to other individuals, in which
no ajutage was used. On the question of the construction of the
contract they cited, Willes 332 ; Hob. 277 ; Plowden 140, 290 ; 6
East 290 ; Hadr. 294 ; 2 Brod. & Bingh. 46 ; 4 Cruise Dig. 291 ;
10 Mass. 461 ; 4 Id. 205 ; 2 Comyn on Contracts 535; 2 Blackst.
Comm. 380 ; Plowden 134 ; Wood's Conveyances (Powell's ed.)
note p. 385 ; 8 Mass. 172 ; 1 S. & R. 380 ; Shep. Touch. 88.

The opinion of the court was delivered by

GIBSON, C. J. The best construction is that which is made by
viewing the subject of the contract, as the mass of mankind would
view it; for it may be safely assumed that such was the aspect in
which the parties themselves viewed it. A result thus obtained,
is exactly what is obtained from the cardinal rule of intention ;
of which many instances might be adduced. By it, a tenant is
restrained from changing the nature of the thing demised, even
to the enhancement of its value. Equity has enjoined him from
converting a corn-mill into a fulling-mill, and a meadow into an
orchard, and from making other alterations entirely consistent
with the letter of the contract ; because it was supposable, from
494



1837.] OF PENNSYLVANIA. 491

[Schuylkill Nav. Co. . Moore.]

the ordinary course of things, that the property would be used
for the purposes to which it was adapted. In Bonnet v. Sadler,
14 Ves. 526, the lessee was prevented from turning a mansion
into a coach-maker's shop; and in Douglas v. Wiggins, 1 Johns.
Ch. 435, from turning a private house into a store. It is true
that in the first of these, the lease had been procured by represent-
ing that the house would be occupied as a dwelling ; and in the
second, that improvements were to be made conformably to the
wishes of the lessor ; but where the parties are silent, the pre-
sumption that the thing is to be applied to its accustomed use, is
as powerful as an explicit representation. By any other standard
of interpretation than the course of things, a parlor might be
turned into a barber's shop, and its character depreciated without
any change of its construction. A recurrence to ordinary habits
and uses for a meaning which has been obscurely expressed, is as
frequent in respect to other transactions, as those quoted ; and how
stands the construction of the contract, as it is affected by it, in the
case before us ? In hydraulics, the effect of an ajutage was
known ; and it is said that the grantor was consequently bound to
guard against the use of it, if it were meant to be precluded. The
*proof is, however, that it was known almost exclusively to r*,iqo
men of science. But actual knowledge of it was brought L
home to certain members of the company : still a corporation is
not to be affected with the private information of individuals among
those who compose it. Even actual knowledge would be no crite-
rion. In the cases quoted, the lessor knew that a mansion might
be turned into a workshop ; yet he was not required to know that
the lessee would attempt it, and to guard against it by a prohibi-
tory clause. As to the argument on the words of the grant, that
everything "can pass," which can be made to pass, it is enough to
say that the word relied upon, however emphatically enunciated,
expresses no more than is signified by " will " or " may ;" and that
an unassisted effusion could not have been more aptly defined. A
grantee may make as much profit of the thing, as it has capacity to
produce ; but he may make it, so far as the guarantee is concerned,
only by an application of it to its ordinary uses promoted by the
ordinary means. May he not, however, avail himself of discove-
ries to make it more valuable in his hands ? He may doubtless
avail himself of anything which, in its results, works no alteration
in the substance of the contract. An artificer employed at stipu-
lated wages, may use subsequently invented machinery, though the
effect of it be to make his wages inordinately high, because the
ratio of compensation for which his employer bargained, is not dis-
turbed by it ; but he may not avail himself of means not in ordi-
nary and familiar use at the time, to the prejudice of another.
For instance, a purchaser of coals at the pit's mouth, for so much

495



492 SUPREME COURT [March Term,

[Schuylkill Nav. Co. r. Moore.]

the cart load, might not introduce a railroad to increase the bur-
then at least he would be bound to pay in proportion to the
increase. The application of improvements to alter the relative
advantages of the contracts would be a perversion of it. Now the
proofs were clear that an ajutage had never been used to transmit
water from a penstock to a wheel. The patentee of the invention
testified that the application of it to that use, was exactly what he
claimed as an original invention ; and his patent is posterior to the
contract. Indeed it is impossible to imagine a reason why it
should have been used. The end to be gained by it, can be more
cheaply gained by simply enlarging the aperture than by applying
an apparatus to it. It is of convincing importance that the
improvement, so to speak, can benefit the owner of it only by
being applied to gain a surreptitious advantage from a contract
which would not have been made had the purpose subsequently
attempted to be accomplished by it, been suspected. In expound-
ing a statute, as in expounding a contract, recourse is had to the
qualities and condition of the thing to be affected as it existed in
popular contemplation. Thus it was ruled in the United States v.
Tenbrook, 2 Wheat 248, that rectified spirits were not dutiable as
a product of distillation, because rectification, though strictly a pro-
cess of secondary distillation by which alcohol is produced in its
4Q1 high 68 ' 8tate of *concentration, is not distillation in the
J sense to which Congress had regard. A convergent prin-
ciple of that case, is that the defendant might not lawfully have
produced pure alcohol by a continued process of distillation in the
first instance, and have paid duties on it in proportion to its volume
when contracted else he might have gained an advantage not
intended from the increase of its volume in reducing it again to the
standard of market proof. What else is insisted on here, but a
right to pay in proportion to the volume of the stream only at the
point of its great contraction, instead of the point of its escape. It
is of no consequence that by a contrivance unheard of before, the
point of contraction and the point of escape, were brought together.
The defendant alleges that he purchased, not the efflux of an aper-
ture, but a vein of specific dimensions; and that he has not his
quantity if it to be of less dimensions than the prescribed diameter
in any part of its course. What would be said of a pretension, on
the other side, to measure the quantity by the diameter of the
column after it had passed the point of contraction and gained its
utmost expansion ? The defendant would think it very unreason-
able ; but it is not more so than what he claims by his own inter-
pretation. The plaintiff, however, claims only for the average
diameter guaged, in the terms of the contract, by a metallic aper-
ture of given dimensions; and that its product, without regard to
subsequent expansion or contraction, be taken for the thing
496



1837.] OF PENNSYLVANIA. 493

[Schuylkill Xav. Co. c. Moore.]

granted. The defendant contends that such was, in fact, the aper-
ture used, being the shortest diameter of a tube placed in the per-
foration of the penstock. Its place, however, is immaterial, as it
would have delivered the same quantity had it been placed else-
where. To measure the quantity by an aperture of increased
power, however placed, would be inconsistent with the spirit of the
contract. But the apparatus used was inconsistent not only witu
its spirit, but its letter; for an aperture, in common parlance, is
one thing, and an aperture with a tube in it, is another. Beside,
an aperature equal in space to a given number of square inches,
must be rectilinear ; for till the quadrature of the circle be dis-
covered, the diameter of a circle equal in content to a given square,
will not be found. The hydraulic inch, is a circle whose diameter
is an inch ; and the recurrence to the square inch for purposes of
specification in the contract, seems to indicate the shape of the
aperture. But the question is to be determined, not by principles
of science, but by common experience directed to the discovery of
intention. The plaintiff purchased, and the defendant sold, a given
power deliverable in the ordinary way ; and on the ground of legal
construction reserved at the trial, to say nothing of the fact found,
the recovery was clearly proper.

Rule discharged.

Cited by Counsel, 5 W. & S. 121 ; 7 Barr 355; 6 Hams 449; I Casey
311 ; 7 Id. 298 ; 12 Id. 370 ; 3 Grant 89 ; 2 Wright 204; 2 P. F. Smith 151 ;
4 Id. 299 B 18 Id. 119; 12 Norris 198; s. c. 9 W. N. C. 44S.fl

Cited by the Court, 7 Barr 347. H 30 Smith 75.JJ

Followed as to the rule of construction: Dunham c. Kirkpatrick, 12 W.
N. C. 218.



^PHILADELPHIA, APRIL 29, 1837.] [*494

Ex parte Cress.



Where a guardian, about nine months after his ward came of age, stated
his account with him, and produced his vouchers, and the account with the
vouchers was examined by A. in the presence of both parties, and found to
be correct; and the ward received the balance appearing upon the account,
and some time afterwards, submitted the account and vouchers to B., who
also found them to be correct; and four years afterwards the ward applied
to the Orphans' Court for a citation to the guardian, to settle his account in
the office ; it was held that the Orphans' Court was right in refusing the cita-
tion : there being no allegation of any specific error in the account settled
between the parties.

THIS was an appeal from a decree of the Orphans' Court of
Montgomery county.
2 WHABTON '62 497



494 SUPREME COURT [March Term,

[Ex parte Cress.]

On the 16th of April 1834, George H. Cress presented his
petition to that court, setting forth that on the 17th of August
1824, Dr. George Martin was appointed guardian of his estate :
that the said guardian had never filed any settlement of his
accounts as such ; and that he had large sums of money in his
hands, for which he had not accounted with the petitioner, and
praying a citation to the said George Martin to appear and settle
his accounts. To this petition an answer was filed by the said
George Martin, setting forth that the said George H. Cress arrived
at the age of 21 years sometime before the 8th of April 1830 ; that
on that day the petitioner and respondent mutually chose a certain
Henry Daub, Esq., to examine the accounts of the respondent as
guardian ; that the said Henry Daub did carefully examine the
accounts, and struck a balance of $4701.21 ; which sum was paid
on the same day to the petitioner, who then execnted a release and
full discharge of the respondent ; which release was duly recorded;
that at the time of the settlement, it was not the practice for
guardians to file their accounts before the register, as the respondent
was informed and believed ; but the custom was to settle with the
wards and pay them the balance, c. ; and that by reason of the
lapse of time since the settlement with the petitioner, the respond-
ent's papers and vouchers were in all probability lost or destroyed, &c.

The petitioner filed a replication, admitting the settlement of
Henry Daub and the execution of a release, but alleging that he
*4/VI ^ * not concur ' n tDe appointment of Daub, who acted
J solely on behalf of the respondent; that the settlement
was made at the house of tne respondent, and that he, the peti-
tioner, at the time the settlement was made and the release executed,
was ignorant of his rights, and unacquainted with his affairs ; hav-
ing just arrived at age; that he did not receive the whole consider-
ation money mentioned in the release, and did not intend by
executing it, to discharge the respondent from responsibility as
guardian. The replication denied the existence of the custom
mentioned in the answer, and averred that if such a custom existed,
it was not binding.

To this replication a rejoinder was filed, averring that the peti-
tioner and the respondent did mutually agree in the choice of
Henry Daub to audit and settle the accounts ; that the said Henry
Daub did inform him (the petitioner) of his rights, and explain
them to him ; and that the petitioner shortly after the settlement,
submitted the papers to a certain John Hocker, who examined
them in the presence of the petitioner, and found them correct ;
and that the petitioner thereupon expressed himself satisfied with
the settlement.

The deposition of Henry Daub, which was taken on the part of
the respondent, was as follows :
498



1837.] OF PENNSYLVANIA. 495

[Ex parte Cress. J

" I was called upon by Dr. George Martin to draw a release
from George H. Cress to him, and present it at his house on a
certain day, at which time George H. Cress would be present, in
order to execute the release. I attended, and before the execu-
tion of the release took place, I went over the addition of the
account that had been stated by Charles Martin (as was said) in
which I discovered an error of ten dollars, the error was rectified,
and moneys paid in part, and part in an obligation, and Cress
appeared very well satisfied. His rights were then stated to him
by me, as far as I could state them ; then he signed and executed
the release, and then the loose receipts were placed into his hands
by Martin, and the account as stated, so that he might get any other
person to examine and see that the account that was stated at
that time, was correct, which he said he would do ; and the doctor
said to him, if there was any error in it, that he should call on
him, and it should be rectified. I have acted as a guardian, but
not got through with it; and as a guardian, and of my knowledge
of the rights due him, the said Cress, I believe the doctor acted
in the manner as an honest man would do in the management
of his own affairs." Cross-examined. " The release was executed
on the 8th day of April, A. D. 1880. The settlement was made
at Dr. Martin's house. George H. Cress was present. I don't
know who gave him notice to attend. Dr. Martin requested me to
come. I don't recollect that Cress asked me to come, but it might
be possible he did. Dr. George Martin laid before me an account
said to be prepared by Charles -Martin. *Charles Martin r*4qc
is a son of Doctor Martin's. The paper hereunto annexed, '
marked A, is the account I alluded to as having been laid before
me by Doctor Martin. I merely went over the addition of said
account, but did not examine the items. I counted up the figures
on the Dr. and Cr. sides is what I mean by the addition. I therein
discovered an error of ten dollars against the doctor, and had it
rectified. I saw the receipts or vouchers, and don't know whether
they were all there or not, but what was there was satisfactory to
both parties, and acknowledged by the said George Cress. I looked
over all the receipts, I think. I compared the amounts of the
receipts with said statements, and found them to correspond from
beginning to the end. I looked at the amount charged in said
account, and added both up and struck the balance. I can't state
the balance from recollection. I can't tell without looking at
the release, In looking at the said release I find the balance is
$4701. 21, being the full sum of his share. He gave the release
in full for the moneys coming from his father's and also from his
uncle's estate; the above sum of $4701. 21| was the balance, after
the expenses were deducted I mean the whole expenses of said
guardianship and including the expenses of the ward. I don't

499



496 SUPREME COURT [March Term,

[Ex parte Cress.]

recollect the amount deducted for the expenses of the ward. I
can't say how much was paid Mr. Cress on that day in money
there was some paid. The moneys that I saw paid on that day are
included in the release there was an obligation given in as so much
cash I can't say who it was against. George Cress said he was
of age when that settlement was made. I don't know how much
he was over age." Re-examined. " When I was acting between
the said parties, I acted as umpire for them both, as I considered,
and not for one alone. I don't consider George Cress as smart as
some, but he is likely to know his own rights. I can't recollect
whether George Cress gave me any information about the estate at
the settlement. I thought he was acquainted with his affairs, from
the conversation he and the doctor had at the time."

John Hocker, a witness on the part of the respondent, deposed
that at the date of the settlement, viz., the 8th of April 1830, the
petitioner was 21 years and 9 months of age. That about a month
after that date the account of Dr. Martin was submitted to him
by the petitioner, together with the vouchers, when he examined
and compared them, and was satisfied with the accuracy of the
settlement; that be explained the business to the petitioner, who
appeared well satisfied.

William Powell, Esq., who was the register of wills for the
county of Montgomery, testified that it had not been the practice
theretofore for guardians to file their accounts in that office ; that
the general practice was for guardians to take a release from their
wards, when they arrived at age, to get the release acknowledged
before a justice of the peace, and put it on record.
*4971 *The account as settled on the 8th of April 1830, by
' Henry Daub, and the release executed on that day by the
petitioner, were also produced.

The Orphans' Court refused to grant the prayer of the petition
for a citation to Dr. Martin ; and the petitioner thereupon appealed



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) → online text (page 56 of 68)