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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 6) online

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R. 43 1| ; and doubtless there are authorities to show that all stipu-
lations on the same subject, and at the same time, constitute but
one agreement. But letting and repairing are so far different that
they may be subjects of distinct contracts; and as the execution
of the lease was complete, in this instance, by the sealing and
delivery the attestation of it by witnesses being unessential the
agreement to repair was made at a time subsequent to it. The
witnesses say that the lease had been taken away ; that the lessor
had returned to have it attested ; that the lessee then mentioned
the filling up of the wharf as a thing omitted; and that the lessor
agreed that it should be done by the lessee at the lessor's expense.
It was evidently an afterthought ; but even had the written con-
tract not been closed the parol promise might, nevertheless be set
up to frustrate the lessor's meditated fraud a principle intimated
in Share v. Anderson, and asserted in cases both previous and
subsequent to it ; for since the time of Hirst v. Kirkbride, cited 1
Yeates 159, and more distinctly stated by Chief Justice Tilghman,
in 1 Binn. 616. this court has held it fraudulent to attempt an
advantage from a written agreement executed on the faith of parol
stipulations not intended to be performed. Thus in McMeen t.
Owen, 2 Dall. 173 ; S. c. 1 Yeates 185, parol evidence was re-

306 SUPREME COURT [Dec. Term,

[Caulk v. Everly.]
ce * ve d * - snow that, at the time of excuting *articles of

sale, the price was agreed to be received in any money cur-
rent at the day of payment. In Field v. Biddle, 2 Dall. 171 ; S.
C. 1 Yeates 132, an obligee was allowed to show a parol agreement
at the execution of the bond, that it should take effect only on the
happening of a contingency. So in Miller v. Henderson, 10 S. &
R. 290, declarations at the execution of a bond that the defend-
ant's signature, as a surety, was wanted as a matter of form, and
that he should not be called on for payment, were admitted as
evidence that he was entrapped; and the same principle was
ruled in Campbell v. McClenachan, 6 S. & R. 171. The proper
limitation to this, as stated in Hain v. Kalback, 14 S. & R. 159,
is that the party should appear to have been drawn in to execute
the instrument by a belief that he would have the benefit of the
part omitted; without which, the rule laid down in Bollinger v.
Eckert, 16 S. & R. 424. that whatever was agreed to but omitted,
may be shown, would be too broad. The existence of such a lim-
itation, however, is to be implied from the context of that case ;
and perhaps it was substantially expressed. There are other
decisions on the subject, but I shall refer to no more than Christ v.
Diffenbach, 3 S. & R. 464, in which a lessee was allowed to give
parol evidence of a promise to perform a covenant which had been
left out of the lease by mistake. Is not that the very case before
us ? We are not told, indeed, that the agreement about filling
was made before sealing and delivery; but one of the subscribing
witnesses testifies that, at the time of the attestation, the lessee
said, " that one thing had been omitted in the lease concerning
the repairs of the wharf;" and that the lessor "told him to go and
repair the wharf, and that what necessary work was wanting, he
should be paid for." If this be taken to have been antecedent to
the completion of the instrument, it will result that the lessor was
guilty of a fraudulent misrepresentation; and if subsequent to it,
the promise would be a separate and distinct contract.

The other point is equally clear. Upon the defendant's prom-
ise, if it be a distinct agreement, the plaintiff can certainly main-
tain an action at law ; and even if it be an omitted condition of
the lease, it might be separately enforced in equity, for which an
action at law is, with us, a substitute. The lessee might undoubt-
edly defalcate his demand from the rent ; but to enjoin the lessor,
would be an inadequate remedy in a case where rent had not accrued ;
as for instance, where the lessor had evicted the lessee before the
end of the quarter. Yet every consideration of justice requires
that, having received all for which he stipulated, his own part of
the contract should be enforced. Judgment affirmed.

Cited by counsel, 2 Barr 14.

|j The cases cited supra, by Gibson, C. J., show, that when a written con-


[Caulk v. Everly.J

tract would not have been signed, except on reliance of a cotemporaneous
oral agreement, the latter may be proved to defeat a claim on the written
contract, whether such claim is the subject-matter of an action, or of a
defence to an action ; and this on the ground of fraud, mistake, &c. Such
oral agreement may itself be sued on : Campbell . McClenachan, 6 S. & K.
171 ; Shugart v. Moore, 28 Smith 469, s. c. 1 W. N. C. 598. The general
principle is reaffirmed in Greenawalt v. Kohne, 4 Norris 369 ; Hoopes v.
lii-ili', 9 Id. 82, where negotiable paper in the bands of an innocent holder
for value is stated to be the only known exception. Callan v. Lukens, 8 Id.
134, recognises that the signature, &c., must have been obtained on the faith
of the oral promise; and see Keough c. Leslie, 11 Norris 424.||

*[ PHILADELPHIA, FEBRUARY 20, 1841.J [*307

Yan Meter and Others against Hankinson.


By a plan of partition of certain lots between A. and B., under whom both
the plaintiff and defendant claimed, an alley was left open for the accom-
modation of the several lots. Afterwards, in 1815, A. and B. conveyed to
the defendant a lot bounding on the alley, " together with the common use
and privilege of the said alley," &c. In 1832 A. conveyed to the plaintiff a
lot adjoining that of the defendant, described as bounded by the said alley,
" Together with all and singular the streets, alleys, ways, &c. Held, that the
plaintiff was entitled to the use of the alley, in common with the defendant
and others.

ERROR to the District Court for the city and county of Phila-
delphia, in which an action on the case was brought by the defend-
ants in error against the plaintiff in error, and a case was stated,
which was to be considered in the nature of a special verdict, as
follows :

" This is an action on the case brought by the plaintiff against the
defendants, for obstructing an alley or right-of-way and water-
course, for the space of fourteen feet, which alley is part of the
southern boundary of the plaintiff's premises.

Joseph Jaquett, by indenture dated the 31st day of July, 1832,
granted and conveyed to James B. White, under whom the plain-
tiff claims; and James B. White granted and conveyed unto the
plaintiff, in fee, in the following words : " All that certain lot or
piece of ground, situate on the west side of Delaware Fourth street,
twenty feet in front, and extending that breadth one hundred and
nineteen feet seven inches and a half in depth to a twenty feet
wide alley : bounded on the south, partly by a messuage and lot of
John Patterson, and partly by a four feet wide alley. Together
with all and singular, the streets, alleys, ways, water-courses," &c.,
in the usual manner.


308 SUPREME COURT [Dec. Term,

[Van Meter v. Hankinson.J
*The defendants have erected, for the space of fourteen

feet, over and upon the easternmost end of said four feet
alley, where it bounds the above property, a frame building, shut-
ting up said alley to that extent.

The said four feet wide alley was left open, by the plan of par-
tition, between the said Joseph Jaquett and William Bryant and
wife, for the accommodation of their estate, which plan is herewith
shown and under whom also the defendant claims.

If the court shall be of opinion, that upon these facts, that the
plaintiff has a right to have the said alley kept open, or to the use
of the same, then the judgment is to be entered in favor of the plain-
tiff ; if not, in favor of the defendants.

The defendant claimed under certain conveyances not stated in
the case, but copies of which were produced on the argument, in
this court.

The lot on Fourth street, belonging to the defendant, and adjoin-
ing the plaintiff's lot, was conveyed to John Patterson by Rachel
Jaquett and Joseph Jaquett, by indenture dated the 30th of May,
1815, by the following description :

"A certain lot or piece of ground, situate on the west side of
Fourth street, at the distance of eighty-eight feet northward from
the corner of the said Fourth street and Poplar lane, in the
Northern Liberties, containing in breadth or front on the said
Fourth street, eighteen feet ; and in length or depth extending
thence westward, keeping the same width at right angles with
the said Fourth street, sixty-six feet eleven inches and a half;
bounded northward and southward by other ground of the said
Rachel and Joseph Jaquett, westward partly by another lot
granted or extended to be granted to the said John Patterson,
and partly by the end of a four feet wide alley, leading westward
into a twenty feet wide alley, which extends from Poplar lane
northward and eastward by the said Fourth street ; being part of a
lot of ground which Joseph Piper, late of the said Northern Liber-
ties, deceased, by his last will and testament, bearing date the 22d
of September, A. D. 1803, devised to his two grandchildren, the said
Rachel and Joseph Jaquett, children of his late daughter, Mary Ja-
quett, deceased, and to their heirs and assigns, in equal parts as
tenants in common ; together with the common use and privilege of
the said four feet and twenty feet wide alleys respectively, and
together with all and singular, the ways, waters, water-courses,
rights, members, liberties, privileges, hereditaments, and appur-
tenances whatsoever thereunto belonging, and the reversions,
remainders, rents, issues, and profits thereof," &c.

The lot on Poplar lane belonging to the defendant, aud adjoining
to the four feet wide alley, was conveyed to John Patterson by


[Van Meter v. Hankinson.]
Joseph *Loughead and wife, by indenture dated the 2d of

June 1835, by the following description.

" All that certain piece of ground situate in the Northern Liber-
ties, beginning at a point or corner of ground of the said John
Patterson, at the distance of forty-six feet six inches and one-quarter
of an inch from the north-easterly side of Poplar lane, and also at
the distance of sixty-six inches and a-half from the west side of
Delaware Fourth street ; thence south-westward at right angles
with the said Poplar lane, four feet six inches and a-quarter, to the
middle of the partition wall of a certain privy, as the same is
erected on the said lot and the adjoining ground of the said Joseph
Loughead ; thence north-westwardly, parallel with the said Poplar
lane, fifteen feet three inches, to an alley two feet nine inches wide,
(which said alley leads north-eastwardly, and communicates with
another alley four feet wide, which runs east and west into and
from a twenty feet wide alley leading into the said Poplar lane) ;
thence along the south-eastwardly side of the said two feet nine inches
wide alley, thirteen feet more or less to the southwardly line or side
of the said four feet wide alley ; thence along the same at right
angles with the said Fourth street, eleven feet to the said ground
of John Patterson ; thence along the same southward, parallel with
the said Fourth street, fourteen feet to the place of beginning :
together with the common use and privilege of the said privy, and
the well underneath the same, as the same are erected and sunk at
all times hereafter forever ; and together with the free and common
use, right, liberty, and privilege of the three above mentioned
alleys at all times respectively, at all times hereafter forever ; and
together also with all and singular, the buildings, improvements,
ways, alleys, passages, waters, water-courses, rights, liberties, privi-
leges, hereditaments and appurtenances whatsoever thereunto be-
longing or in any wise appertaining, and the remainders, reversions,
rents, issues, and profits thereof," &c.

The District Court gave judgment for the plaintiff on this case
stated ; whereupon the defendant took this writ of error and
assigned the following errors.

The court erred in rendering judgment in favor of the plaintiff.

1. Because the plaintiff, by his own showing, never had con-
veyed to him any right to use the alley in question.

2. Because the plan of partition referred to showed the alley to
have been opened for the use of the lot of the defendants and the
other lot holders, but not of this plaintiff.

3. Because the plaintiff had only a boundary upon part of this
alley, which neither gave a right of way nor water-course.

*4. Because the plaintiff sustained no damage from the r*q-in
act of the defendants.

5. Because describing a lot as bounding upon an alley does not,

310 SUPREME COURT [Dec. Term,

[Van Meter v. Hankinson.]

in law, convey, without express words, the right to the use of the

Mr. Jack, for the plaintiff in error, cited Jackson v. Hathaway,
15 Johns. 447; Wyman v. Mayor, &c., 11 Wend. 502; Grant v.
Chace, 17 Mass. 443 ; Jackson v. Striker, 1 Johns. Gas. 284 ;
Hob. 161 ; Howell v. McCoy, 3 Rawle 271.

Mr. Kennedy having cited Shepherd v. Watson, 1 Watts 35 ;
Kirkham v. Sharp, 1 Whart. 323; Hill v. West, 4 Yeates 153;
Blaines v. Chambers, 1 S. & R. 172 ; Hall v. Benner, 1 P. & W.
411 ; Stiles v. Curtis, 4 Day 338; Peck v. Smith, 1 Conn. 146;
3 Kent's Com. 432 ; was stopped by the court.

The opinion of the court was delivered by

SERGEANT, J. It is unimportant whether the soil of the alley
passed to the plaintiff by his deeds. It is sufficient if he obtained
a right to the use of the alley. His deed conveys to him the lot,
describing it, together with all and singular, the. streets, alleys,
ways, water-courses, &c., in the usual manner. This would carry
the right to the use of the alley, though not particularly described, if
it were laid out for the accommodation of this lot as well as others,
and if Jaquett retained the right to 'convey it to the plaintiff. That
it was laid out for the accommodation of the estate by the plan of
partition, and that the plaintiff's lot was a part of the estate, is
admitted, and so stated in the case. That Jaquett had never pre-
cluded himself from granting it by any prior conveyance to others
is clear from the deeds, under which the defendant, and others
situated like him, claim ; for they obtained from Jaquett merely a
right to the common use and privilege of the alley ; not restricted
to them alone, but generally. This must be construed as a gift to
them of the right comformably to the plan of partition; according
to which the plaintiff's lot needed the accommodation of this alley
for many purposes that might be suggested, and it therefore passed
by the sweeping clause in the deed to the plaintiff. This case is
very loosely and imperfectly stated ; and a portion of the argument
for the plaintiff in error is founded on deeds not mentioned in it.
It seems to us that there was no error in the court below in giving
judgment for the plaintiff. Judgment affirmed.

See ante 207.

|| Referred to, Lindeman . Lindsey, 19 Smith 102, as an instance of an
action on the. case for a disturbance of an easement created by specialty. ||


[^PHILADELPHIA, FEBRUARY 20, 1841.] [*311

Simpson and Another against Hand and Another.

1. It is an undoubted rule that for a loss arising from mutual negligence,
neither party can recover in a court of common law.

2. And this rule governs the case of shippers of goods on board of vessels
which have come into collision, to the injury of the goods, as well as the
owners of the vessels themselves.

3. An action cannot be maintained, therefore, by the owner of goods on
board of a vessel, against the owners of another vessel to recover damages
for an injury done to the goods by the collision of the two vessels, if there
have been mutual negligence in the conduct of those who have had the ves-
sels in charge.

4. In an action to recover damages for injury done to goods on board of a
vessel while she was lying at anchor in the river Delaware, by a vessel coining
up the river in the night-time, it was held that the anchored vessel was
moored in the channel without a visible light burning at the time, or if her
watch was not on deck, and did not do what was customary for the purpose
of avoiding a collision, there was such negligence as to bar the action, though
there might have been negligence on the other side; and that the burden of
proof lay upon the plaintiff.

THIS was an action on the case brought in this court by M. H.
Simpson and G. Harrison Otis, trading under the firm of Simpson
& Otis, against Joseph Hand and Rowland Johnson.

The plaintiffs were the owners of certain goods which had been
shipped at Philadelphia on board of a schooner called the Thorn,
to recover damages from the defendants, who were the owners of a
brig called the William Henry, for injury done to these goods by
the William Henry's running into the Thorn, while the latter was
lying at anchor in the river Delaware, about one o'clock in the
morning of the 27th of November, 1832.

On the trial before Kennedy, J., at a court of Nisi Prius, held
at Philadelphia on the 16th of November 1838, it was proved that
the collision took place, and that damage to the Thorn and her
cargo ensued.

*There was contradictory testimony in respect to some r*oio
of the material facts of the case, but as the substance of the '
evidence is given in the opinion of the court, it is not necessary to
state it here.

The defendants contended that the misfortune was wholly attrib-
utable to the negligence or misconduct of the master and crew
of the Thorn ; and specified the following items of negligence
or misconduct, and produced persons for the purpose of sustaining

1. That the Thorn was anchored in the channel, which it was
conceded was an improper position.

2. There she lay at anchor without hanging out a light.

312 SUPREME COURT [Dec. Term,

[Simpson v. Hand.]

3. That she lay at anchor without an anchor watch, who could,
by the aid of the helm, have changed the position of the vessel
so as to have avoided the contact.

4. That even if there had been a light suspended from the
Thorn, as some of her crew swore, yet, as they swore it was sus-
pended behind the mainmast, it was not visible to vessels coming
with, and actuated by the tide, (the only quarter from which dan-
ger was to be apprehended), as the vessel riding at anchor would
present her bow to the current, and keep her light hid behind the
masts to those vessels running with the current.

The plaintiffs on the other hand, contended, and produced wit-
nesses for the purpose of sustaining them, that the Thorn was not
anchored in the channel, that she did hang out a lantern on her
main peak halliards, (an appendage to and behind the mainmast) :
and that there was an anchor watch duly placed.

They further attributed the collision to the negligence and mis-
conduct of the defendants ; and contended
(a 1. That it was improper to navigate the river at night.

2. That if the look-out on board the brig had, immediately upon
the discovery of the Thorn, given a particular order to the helms-
man, the collision would have been avoided.
t The learned judge charged the jury in substance as follows :

" This action is in case, brought by the plaintiffs against the
defendants, as the owners of the brig William Henry, to recover
compensation for a loss sustained by the former, in the value of a
quantity of Spanish hides belonging to them, on board the schooner
Thorn, in the river Delaware, on her way from this to New York ;
alleged to have been occasioned by the negligence of those em-
ployed on board the brig William Henry, by the defendants, for
*q-iq-i the purpose of navigating and directing her. The injury
complained of *was done by the brig William Henry, on
the night of the 26th of November 1832 ; while coming up the
river under sail, in running foul of the schooner Thorn, when at
anchor near Thompson's Point, on the Jersey shore. By this
collision, it seems, that the schooner was so much injured as to let
the water of the river in, in such quantities as to immerse the
hides completely, whereby they were greatly inpaired in their

The right of the plaintiffs to recover in this action is grounded,
as you must have perceived, upon the neglect of the captain und
crew of the Henry to perform their duty ; that is, to navigate her
in such a manner as to avoid causing all needless and unnecessary
injury to the Thorn, and the property on board of her. It is not
for any wilful wrong or tortious act of the captain and crew on
board the Henry that this action is brought or can be sustained.
For if the act complained of, that is, the blow given by the Henry


[Simpson v. Hand.]

to the Thorn, were wilfully caused by those intrusted with the
management of the Henry, the defendants, though owners of her,
are not answerable for the damage or loss occasioned by it. They
are only responsible for injuries arising fron the negligence or
unskilfulness of those employed to navigate and manage their ves-
sel ; and not for any wilful act done by them, amounting to a tres-
pass ; notwithstanding it may have occasioned an injury and
damage to the plaintiffs.

It may, however, be proper to notice, in the first place, some
things introduced into this cause, which, as it appears to me, are
not intimately, if at all, connected with the merits of it. It has
been shown that the plaintiffs effected an insurance on the hides in
question with the Philadelphia Insurance Company; and thence it
has been argued, by the defendants' counsel, that the plaintiffs are
not without a remedy for the loss they have sustained, because the
Philadelphia Insurance Company are liable to make it good to them,
under the policy of insurance : it being a sea damage, and there-
fore expressly included within the terms of the policy. Admitting
this to be so, I, however, do not concieve that it can or ought, with
propriety, to have any influence upon your minds in forming your
verdict ; because, it is only on the ground of neglect, or a want of
exercise of due caution and skill on the part of those employed by
the defendants to navigate their vessel, having been clearly proved
and shown to you, that the defendants in this action can be made
liable to the plaintiffs. And if it be that such neglect or want of
caution and skill, has been clearly shown as would render the
defendants liable to make good the loss sustained by the plaintiffs,
there is no reason why the liability of the Philadelphia Insurance
Company, to make good the same loss under the policy which they
subscribed, should be any defence for the defendants here, or ex-
empt them from their liability in this action. It was not through
or by their means, or at their cost, that the policy was effected, so
as to secure and indemnify the plaintiffs against the loss that has
accrued *to them. It was effected and paid for by the r*oi4
plaintiffs themselves, without the least expense to the de- L
fendants ; and the plaintiffs are at liberty to use it or not, as they
please, until they shall have obtained satisfaction. A plaintiff
may have two or more remedies for the same injury, and pursue
one or more of them at his election, until he shall have obtained

It has also been said that the defendants ought not to be made
answerable for the error merely of those employed by them to
navigate the Henry ; but only for fault or blame. To this, how-
ever, I cannot give my assent. The defendants are only called
upon to answer here in a civil point of view, and not criminally;
that is, to compensate the plaintiffs for the loss, if any, which they

314 SUPREME COURT [Dec. Term,

[Simpson v.. Hand.]

have sustained by means of the negligence or want of due caution
or skill, on the part of the servants or those in the employment of
the defendants. It is certainly the duty of every ship-owner, when
he engages hands to navigate and take the charge of his vessel, to
ascertain beforehand that they are possessed of sufficient skill for
such purpose, as well as vigilance in exercising due caution and
care in the discharge of that undertaking ; and if it should happen
that injury and damage shall accrue to any third person, from defi-

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 35 of 75)