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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 5) online

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mination of the said court.

Upon the hearing of the said complaint before the Mayor's Court,
the defendant pleaded in bar thereto the previous order of the said
court, of the 17th day of October 1834, and the said discharge
under the insolvent laws ; and the Mayor's Court, on the 27th day
of June 1835, made the following order :

"June 27th 1835. The court adjudge that the defendant
pay to the guardians of the poor, for the use of his wife, Harriet
Newhouse, the sum of one dollar and fifty cents per week, com-
mencing from the 10th day of February 1835 ; give security in
the sum of three hundred dollars to comply with this order,
and indemnify the guardians of the poor ; pay the costs of prose-
cution ; and stand committed, until judgment be fully complied
with."

Between the said first and second proceedings and orders, the
said defendant and Harriet his wife had not cohabited, or dwelt
together ; nor had the defendant contributed or paid in any man-
ner towards the maintenance and support of his said wife ; nor
did he maintain and support her; but the said defendant, from
previous to the said first order of the Mayor's Court, until after
the second order, remained in the same state of desertion towards
his said wife ; having between the first and second sentence
taken the benefit of the insolvent laws, as aforesaid, in his peti-
tion for which he returned the decree of the court so as aforesaid
made.

The question is, whether the first judgment or order, and the
said discharge under the insolvent laws are not a bar to the second
proceedings ; so that the said Mayor's Court could not make the
second order, as respects the whole thereof ; and especially that
the defendant a second time should give security in the sum of
three hundred dollars, and stand committed until judgment be
complied with ; and whether the second order for committal was
not illegal.

The second proceedings and decree to be quashed or confirmed,
as the court shall determine the law on the above facts.

Mr. Miles, for the plaintiff in error, referred to the act of 21st
*March 1812 ; and cited Commonwealth v. Keeper of the
Jail, &c., 4 S. & R. 505. ,

Mr. ffanna, for the guardians of the poor, &c.

PER CURIAM. The sentence prior to the defendant's insolvency



1839.] OF PENNSYLVANIA. 84

[Newhouse . Commonwealth.]

was not discharged by the discharge of his person from arrest.
The order of the insolvent court affected nothing but the payments
then due, and certainly did not discharge him prospectively from
duties to accrue. For the latter he remained liable by force of the
sentence, as if he had not become an insolvent debtor; conse-
quently, the first sentence, remaining as it did unreversed, was a
bar to any new proceeding.

Sentence of the 17th October 1834, affirmed; the sentence of
the 27th June 1835, reversed.

Cited by Counsel, 9 P. F. Smith 323.

|| The discharge of an insolvent, who had been convicted of fornication
and bastardy, and sentenced to pay a weekly stipend, leaves a liability for
future instalments ; but quaere as to the mode of enforcing that liability :
Com. o. Miller, 3 W. N. C. 301 (Q. S.) ; Com. v. Faulkner, Id. 540 (Q. S.) ;
Com. v. Cook, 4 Id. 333 (Q. S.).||



[PHILADELPHIA, JANUARY 4, 1840.]

Green against Eoberts and Others.

Where an agreement under seal stipulates for the construction by the
plaintiff of a steam engine for the defendants within a certain time, " una-
voidable accidents only excepted," and the defendants covenant to pay for
the same by instalments at certain periods after the commencement and
completion of the work ; and an unavoidable accident happens by which
the completion of the work is delayed ; and the time of performance is en-
larged by parol ; the plaintiff must proceed in covenant and cannot maintain
an action of assumpsit, although the accident should happen after the time
for performance has expired.

THIS was an action on the case brought by Jacob Green against
Israel Roberts, Richard Jordan and Archibald Robinson.

The plaintiff declared in assumpsit for work and labor, and the
other money counts and on an account stated, &c. The defendants
pleaded non assumpsit and payment, &c.

On the trial before Rogers, J., at a Court of Nisi Prius held in
Philadelphia, on the 28th of November 1839, the plaintiff's coun-
sel stated that the action was brought to recover the price or value
of a certain steam engine and machinery, made by the plaintiff for
the defendants in pursuance of a certain agreement between them,
which was given in evidence as follows :

"Articles of agreement made and concluded the twenty-first day
*of December, Anno Domini one thousand eight hundred r*oc
and thirty-five, between Jacob Green, steam engineer and *-
iron founder, Joseph Oat, coppersmith, and Robert Barrett, brick-
layer, all of the county of Philadelphia, of the one part; and Israel
Roberts, Richard Jordan and Archibald Robertson, of the city of



85 SUPREME COURT [Dec. Term,

[Green . Roberts.]

Philadelphia, trustees of the Canal Steam Transportation Com-
pany, of the other part, witnesseth : that for and in consideration
of the sum hereinafter expressed, the said Jacob Green doth prom-
ise, covenant and agree to and with the said trustees, to make,
furnish and erect, two complete and perfect high pressure steam
engines, on the most improved and approved plan, with two loco-
motive iron boilers of thirty-six inches diameter each, containing
seventy-eight copper tubes of two inches diameter and six feet long
each, to be made on the same or on an improved plan as the one lately
made by Messrs. Long and Norris, at Bush-hill, for Messrs. Garrett
and Eastwick, in Wagner's alley, (unless the parties to this agree-
ment should mutually agree to differ their construction, in conse-
quence of their being considered too large or too small :) the
arrangement of engines and boilers, &c., &c., to be directed by the
patentee and superintendent of the work. The engines to be of
the following dimensions and descriptions, that is to say there
shall be two cylinders of twelve inches in diameter of bore each,
and four feet stroke each, both to work on the same shaft at right
angles, and to work from the bottom of the boat, at an angle of
about forty degrees ; the gudgeon beds, valves, valve seats, and all
other parts, where necessary, to be of brass ; she must have two
governors, one for each engine ; two forcing pumps, one of which
to work with the machinery, the other to work by hand ; two bilge
pumps, one to work with the machinery, the other to work by hand;
all the leading and supply pipes, inlets and outlets of every sort
and description appertaining to the engines and boilers, all the
tools necessary to use about the engines and boilers, all the framing
for the engines and boilers, all wood work, bolts and bracing for
the same, as well as for the water wheels : the whole to be of a
proper proportion and strength ; all arrangements and plans to be
decided by, and upon, by the building committee ; everything to
be of good materials, of good style, and of substantial workman-
ship, and to be ready to commence the putting of them on board
of a boat (to be provided for the purpose by the said trustees), in
two months and a half from the date of this agreement, and to be
" completed and put into operation in three months and a half from
the day of the date hereof, unavoidable accidents only excepted.
And the said Jacob Green doth hereby further promise, covenant
and agree to and with the said trustees, to warrant the said engines,
boilers and machinery for the space of four months from the day
of its being put into operation ; and in case of failure in any of its
parts, in consequence of a defect in materials or workmanship, to
repair the same, during the time aforesaid, free of any charge
*H61 * *^ e * 8a ^ trustees. In consideration whereof, the said
trustees of the aforesaid company, do hereby covenant, pro-
mise and agree, to, and with the said Jacob Green, to pay him the



1839.] OF PENNSYLVANIA. 86

[Green v. Roberts.]

just and full sum of six thousand and fifty dollars (two hundred
and fifty dollars of said sum is to be paid by said Jacob Green, tak-
ing that amount of the capital stock of said company, at par,) in
manner following, to wit ; one equal fourth part of fourteen hun-
dred and fifty dollars, in thirty days from the commencement of
the work ; one other equal fourth part of like amount, in sixty days
from the commencement of the work ; one other equal fourth part
of like amount, in ninety days from the commencement of the
work ; and the remaining equal fourth part of like amount, in a
negotiable note at four months from the time the engine, machinery,
&c., &c., &c., goes into operation ; the instalments on the capi-
tal stock aforesaid to be deducted from the payments, should
any instalments be due thereon. And for the true and faith-
ful performance and fulfilment of all and every, the covenants
and promise of this agreement, the said parties do bind themselves,
each unto the others, in the penal sum of fifteen hundred dollars.

" In witness whereof, the said parties have hereunto set their
hands and seals, the day and year first above written."

The instrument was sealed by the several parties.

The plaintiff then proved that immediately after the agreement
was executed, he began making the engines, &c., and continued to
work at them till the summer or autumn of 1836, when they were
delivered ; that during the progress of the work, the plaintiff made
frequent demands for payment of money according to the terms of
the agreement ; and he proved the service of the following order
on the treasurer of the defendants, and a demand for the money
therein mentioned, which demand was not then complied with.

" March llth 1836.

Mr. Potts, of the firm of Potts & Cooper.

Sir : You will please pay the bearer, Charles D. Colladay, the
balance of the second payment, which was due February the
twenty-first eighteen hundred and thirty-six, which is one thous-
and two hundred and twenty-two dollars and fifty cents, and
oblige, Yours, respectfully,

$1222.50 JACOB GREEN.

Mr. Potts, treasurer of the Canal Steam
Transportation Company."

The plaintiff then called on the defendants to produce their
receipt book ; which being done, the plaintiff read receipts therein,
given by him for moneys paid at various dates from the 22d of
January, to the 16th of September 1836.

It was proved that much delay was caused in the making the
*engines and performance of the work in part, by the fact r*Q7
of a flaw having been discovered in one of the boilers, -



87 SUPREME COURT [Dec. Term,

[Green v. Roberts.]

which obliged the plaintiff to re-cast it, and in part, by the inter-
ruptions to the work, caused by one Captain Crocker, under whose
superintendence as agent of the defendants, the work was done,
and engines put up, &c., on board the boat. The plaintiff
claimed six thousand and fifty dollars, deducting the payments
made, and closed ; whereupon the court ordered a nonsuit to be
entered, with leave to move to take it off, deciding that covenant,
and not assumpsit, was the only action which could be sustained by
the plaintiff.

The case now came before the court on a motion to take off the
nonsuit.

Mr. Fallon and Mr. St. Gr. T. Campbell, for the plaintiff, cited Jor-
dan v. Cooper, 3 S. & R. 564 ; Vickery v. Moore, 2 Watts 456 ;
Shaw v. Turnpike Co., 2 P. & W. 461 ; Little v. Holland, 3 Term
Rep. 590 ; Brown v. Goodman, Id. 592, in note ; Philips v. Rose,
8 Johns. 392; Freeman v. Adams, 9 Id. 115; Jewel v. Schroep-
pel, 4 Cowen 564 ; 4 Brown Ch. 391 ; 3 Madd. Rep. 447 ; 6 Id.
36; 1 Wash. Rep. 170 ; 1 East 619 ; I Maule & Selw. 575 ; 3
Harr. & Johns. 438.

Mr. Miles, fbr the defendant, cited Cutter v. Powell, 6 Term
Rep. 320, and referred to the note to that case in Smith's Selection
of Leading Cases, vol. 2, p. 10, where the authorities are collected
and reviewed.

Tae opinion of the court was delivered by

GIBSON, C. J. That a stipulation for performance, within a
specified period, of a condition precedent to an action at law, must
be strictly satisfied, is an elementary principle which is familiar
even to the sciolist ; and that the acceptance of subsequent per-
formance is taken for an equivalent for it in equity, is equally
known. In this instance, however, the stipulation for a time of
performance, was not put, without qualification, into the shape of
a condition. The plaintiff covenanted that all things should be
ready to put the engines and boilers aboard at a day named, and
that the work should be finished within a specified period after-
wards, " unavoidable accidents only excepted ;" it was not finished,
however, till four or five months had elapsed beyond the period ;
but an unavoidable accident was shown to have happened by the
discovery of a flaw in one of the boilers, which, if it necessarily
occasioned the plaintiff's performance to be incomplete at the end
of the time limited for it, dispensed with it as a condition by the
very words of the contract, and made the subsequent arrangements
consistent with the instrument; consequently he might in that
state of the case recover on it without averring his own perform-



1839.] OF PENNSYLVANIA. 88

[Green v. Roberts.]

ance by alleging the accident as an excuse *for it. If, how- r*oo
ever, as has been alleged in the argument, the accident did L
not happen till the time for performance had expired, and conse-
quently was not the cause of the delay a matter determinate by
the time when the defect in the boiler was discovered the plaintiff
might still recover on the instrument, according to Jordan v-
Cooper, by superadding a count to meet proof of subsequent
performance under a parol enlargement of the time of it ; and thus
he may still proceed securely in an action of covenant adapted to
the alternative. This case of Jordan v. Cooper has been errone-
ously supposed to be overruled by Vickery v. Moore, as a glance
at the latter will serve to show. Even were the alteration clearly
such, in this instance, as to reduce the contract to parol, the equita-
ble remedy on the instrument, which according to Jordan v. Cooper,
the plaintiff may at least elect to have, where strict performance of
a precedent condition has been dispensed with, and which he can-
not choose but have when he goes for such relief as is granted in
the case of payment after the day would still be the preferable
one, because a specialty is of higher degree than a simple contract.
There are cases, however and Vickery v. Moore was ono ef them
in which the alteration has not regard to the performance of a
precedent condition out of time, but to the covenants on which
breaches are assigned ; and such a case admits not of election as to
the remedy, for the whole has been turned into parol. Such was
not the case here ; and we cannot say that the plaintiff was impro-
perly nonsuited. Motion disallowed.

Cited by Counsel, 6 W. & S. 442; 1 Barr 57 ; 10 Harris 458 ; 5 Casey 88
Cited by the Court, 3 Casey 442. See also, 2 Whart. 79.
|| Referred to McManus v. Cassidy, 16 Smith 260, where the cases as to
when assumpsit and when covenant is the remedy are reviewed.^



*[PHILADELPHIA, JANUARY 4, 1840.] [*89

Smith and Another against Plummer.

IN ERROR.

A., living in Ohio, came to Philadelphia, and being desirous of buying
a quantity of shoes, went to the store of the plaintiff, who was a shoe dealer,
and examined his stock, and then employed the defendants, also residing in
Philadelphia, to purchase a certain quantity for him. The defendants did
so, gave the plaintiff their note for the amount, and sent the goods to A.,
and drew a bill on him for the amount, which was accepted by A. After-
wards, and before the maturity of the note, A. being again in Philadelphia,
the plaintiff requested him not to pay the bill ; told him that the shoes were
his property, and not the property of the defendants, and desired A. tc
account with him, the plaintiff. When the bill fell due, A. refused to pay
it to the defendants : Held, that these facts constituted an equitable defence
for the defendants against the suit of the plaintiff.



89 SUPREME COURT [Dec. Term,

[Smith o. Plummer.]

ERROR to the District Court for the City and County of Phila-
delphia, to remove the record of an action on the case brought by
Everett H. Plummer against Milton Smith and Edward Brown,
trading under the firm of Smith & Brown.

The plaintiff declared in assumpsit on a promissory note drawn
by the defendants in his favor, for three hundred and twenty-two
dollars and fifty cents ; with the common money counts. The
defendants pleaded non-assumpsit and payment, &c.

On the trial before Stroud, J., on the 23d of November 1835,
the plaintiff proved the note, and also gave in evidence his book
of original entries, in which the defendants were charged with
shoes purchased by them to the same amount as that in the note.
It was admitted that the note was given for the price of the shoes.

The defendants then proved that they had purchased these shoes
for a certain W. W. Blake, of Ohio ; had forwarded them, and
drawn a bill on Blake, dated the 16th of December 1833, at six
months, for the amount ; that Blake accepted the bill ; but that
before its maturity, being in Philadelphia, the plaintiff informed
him that the shoes were his property, and had never been the pro-
perty of Smith & Brown ; requested him to allow the bill to be
protested, and to hold himself accountable for the shoes to him
*qA-i (Plummer), and *not to Smith & Brown ; that Blake did
permit the bill to be protested; did not pay it; and that it
remained unpaid.

This proof was made by the deposition of Blake taken under a
commission who therein stated that he did consider himself as
debtor to Plummer, and not to Smith & Brown.

Upon the above proof the defendant rested his case ; and the
learned judge charged the jury as follows:

" This action is brought upon a promissory note ; the execution
of which by the defendant is not denied. The defence set up grows
out of the transaction or notice stated in the deposition of W. W.
Blake, in relation to the bill of exchange drawn upon him by the
defendant. It appears from the testimony, that he, a person in
business in Ohio, was acquainted with the plaintiff, a dealer in shoes
residing in this city ; but was better, and had been longer acquainted
with the defendants, leather dealers of this city, with whom also he
had had transactions of business. Having looked at the plaintiff's
stock of shoes, he wished to obtain a certain quantity of them, and
employed the defendants to purchase and forward to him the quan-
tity designated. The defendants did so, and drew upon Mr. Blake
the bill of exchange of 16th December 1833, at six months, refer-
red to in his deposition. The shoes thus forwarded and drawn for,
were those for which the note was given on which this suit is
founded. This bill was accepted by W. W. Blake. Before its
maturity, or time of payment, Mr. Blake being again in Philadel-



1839.] OF PENNSYLVANIA. 90

[Smith v. Plummer.]

phia, Mr. Plummer requested him not to pay that bill, told him the
shoes for which it was drawn were not ever the property of Smith
& Brown, and were and had been his, Mr. Plummer's property ;
and desired Blake to account with him, Plummer, for the price of
the shoes. When the bill of exchange fell due, Blake suffered it
to be protested ; and it remains unpaid. These facts are detailed
more at large in the deposition of Blake. This cause, then, turns
on one question of fact. If, at the time when Smith & Brown pro-
cured the shoes from Plummer, he, Plummer, did not know that
they were obtaining them for another person, the defence set up is
good, and must exonerate the defendants ; because it is well settled,
that a person who supposes that he is parting with his property to
one man, and afterwards discovers that man to be a mere agent for
another, may follow his property into the hands of that other, and
hold him as his debtor ; and in such a case, a notice to the party
not to pay the agent would be available and would also release
that person or agent from his liability to the vendee. But on the
other hand, if at the time the shoes were delivered to Smith &
Brown, Plummer knew they were really intended for W. W. Blake,
then, by taking Smith & Brown's note, he elected to make them
his debtors. This election he could not afterwards alter ; and
therefore his notice to Blake not to pay * Smith & Brown, r*a-t
could not be legally given or be available. Smith & Brown
would still remain his debtors, and Blake be liable to Smith &
Brown. If, therefore, you shall think that Plummer was ignorant
of the defendant's agency when he delivered them the shoes, and
discovered it afterwards, your verdict should be for the defendants.
If you think he knew of that agency at the time the shoes were
delivered, and that they were purchased for Blake, and he deliber-
ately elected to make Smith & Brown his debtors, and not Blake,
your verdict should be for the plaintiff."

The jury found for the plaintiff.

The defendants' counsel excepted to the charge ; and the case
was removed to this court.

The plaintiff in error filed the following specifications.

That part of the charge of the judge which commences with the
expression, "This cause then turns on one question of fact" and
from thence on to the conclusion.

And more especially, that portion of it which follows, and the
principles which it asserts.

" But on the other hand ; if, at the time the shoes were deliv-
ered to Smith & Brown, Plummer knew they were really intended
for W. W. Blake, then, by taking Smith & Brown's note, he
elected to make them his debtors. This election he could not
afterwards alter ; and, therefore, his notice to Blake not to pay
Smith & Brown, could not be legally given, or be available. Smith



91 SUPREME COURT [Dec. Term,

[Smith v. Pluinmer.]

& Brown would still remain his debtors, and Blake be liable to
Smith & Brown.

" If, therefore, you think Plummer was ignorant of the defend-
ant's agency when he delivered them the shoes, and discovered it
afterwards, your verdict should be for the defendants.

" If you think he knew of that agency at the time the shoes were
delivered, and that they were purchased for Blake, and he deliber-
ately elected to make Smith & Brown his debtors, and not Blake,
your verdict should be for the plaintiff."

It is also deemed error, that it should have been put to the jury
as a question of fact, whether Plummer had, or had not such
knowledge ; without the further instruction, that in the absence
of all evidence (none having been given on the point) the presump-
tion of law was, that he had no other knowledge than such as was
to be derived from the face of the transaction ; which was one on
its face with Smith & Brown, and not with Blake.

Mr. Scott, for the plaintiff in error, cited Campbell v. Knox, 3
P. & W. 1.

Mr. Hanna and Mr. Clarkson, for the defendant in error, cited
*Q21 * Patterson v. Gandesequi, 15 East 62 ; and the note to 2
J Smith's Selection of Leading Cases 222.

The opinion of the court was delivered by

GIBSON, C. J. If the plaintiff below, apprised that the shoes
were ordered by the defendants for Blake, delivered them on their
credit, he would be concluded by his election ; and, without more,
he could not turn round to any one else. But might he not sub-
sequently release the defendants by accepting Blake as their
substitute ; as he might have done had he not known bim to be the
actual purchaser. It is conceded, as it must be, that ignorance of
Blake's connection with the purchase, would have authorized a
pursuit of him as the actual debtor, and a consequent abandonment
of the credit given to the defendants ; and there is no reason why
the same result might not be effected with the assent of Blake,
who is the only person that could object to a change of the original
credit in any circumstances. At the plaintiff 's instance and request,
he promised to pay the debt, in consideration that the plaintiff
would accept him as the debtor : and this consideration would
undoubtedly sustain an action on the promise. If, then, Blake
became liable, the defendants were released ; for that was an implied
condition of Blake's promise, which, as it did not benefit him, and
would not else have prejudiced the plaintiff, would have been with-



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) → online text (page 10 of 71)