Carey v. Bright

• Decision Date: 06 February 1868
• Parties: Carey <I>et al. versus</I> Bright <I>et al.</I>
• Court: Pennsylvania Supreme Court

58 Pa. 70

Carey et al. versus Bright et al.

Supreme Court of Pennsylvania.

January 23, 1868.

February 6, 1868.

January 23d 1868.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. STRONG, J., at Nisi Prius

Error to the Court of Common Pleas of Schuylkill county: to January Term 1865, No. 226.

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F. W. Hughes and H. M. Phillips (with whom was E. O. Parry), for plaintiffs in error.—As to the interest of Kirk. The property purchased by the plaintiffs was in trust for the creditors of Kirk named in the confession: Campbell v. McLain, 1 P. F. Smith 200; Campbell v. Penna. Ins. Co., 2 Wh. 64; Chorpenning's Appeal, 8 Casey 315; Leisenring v. Black, 5 Watts 304; Wolf v. Eichelberger, 2 Penna. R. 346; Twelves v. Williams, 3 Wh. 485; Wilkinson v. Pitts. F. & M. Turnpike, 6 Barr 398; Buchanan v. Buchanan, 10 Wright 186; Patterson v. Reed, 7 W. & S. 144.

As to evidence to prove the meaning of "collieries:" 2 Stark. Ev. 565; Snowden v. Warder, 3 Rawle 101; Beatty v. Roberts, 2 Penna. R. 65; Swink v. Wilson, 3 B. & Ad. 728; Clayton v. Gregson, 5 Ad. & E. 302; Astor v. Union Ins. Co., 7 Cowen 203; Coit v. Ins. Co., 7 Johns. 385; Eaton v. Smith, 20 Pick. 150; Lushington v. Sewell, 1 Sim. 435; Stewart v. Garnett, 3 Id. 308; Taylor v. Briggs, 5 B. & C. 525; 2 Phillips on Ev. 709; Farrar v. Stackpoole, 6 Greenl. R. 157.

A general assignee for creditors is not in the position of a purchaser: Twelves v. Williams, supra; Vandyke v. Christ, 7 W. & S. 374. Where the owner allows another to treat goods as his own to the injury of others, he is estopped: Gregg v. Wells, 10 Ad. & E. 90; Pickard v. Sears, 6 Id. 469.

As to the evidence that the property was not in the sight or control of the sheriff: Wood v. Vanarsdale, 3 Rawle 401; Lowry v. Coulter, 9 Barr 349; Schuylkill County's Appeal, 6 Casey 358; Duncan's Appeal, 1 Wright 500.

Under an execution at the suit of a creditor of one partner the contingent interest of the partner can be sold: Deal v. Bogue, 8 Harris 228; Reinheimer v. Hemingway, 11 Casey 432; 3 Steph. N. P. 2701.

There was no sufficient evidence of conversion: Pothouser v. Hodgson, 1 Holt's N. P. 383; Alexander v. Southey, 5 B. & Ald. 247; Berry v. Vantries, 12 S. & R. 89; Mires v. Solebay, 2 Mod. 242; 3 Steph. N. P. 2686.

As to estoppel by receipt of rent: Co. Litt. 352 b; Smith's L. Cas., Hare & Wallace's Notes 643.

The general effect of the charge was calculated to mislead: Reeves v. Delaware, L. & W. Railroad, 6 Casey 454.

There were questions of fact for the jury: Strohl v. Levan, 3 Wright 177.

W. H. Rawle and J. Bannan (with whom was J. W. Ryan), for defendants in error.—The confession of judgment by Kirk and Baum was binding on the other partners: Taylor v. Henderson, 17 S. & R. 456; Harper v. Fox, 7 W. & S. 143; Grier v. Hood, 1 Casey 430.

The actual seizure of part of the property in the name of the whole was a sufficient levy: Wood v. Vanarsdale, Lowry v. Coulter, Schuylkill County Appeal, Duncan's Appeal, supra; Wilson's Appeal, 1 Harris 427; Lewis v. Smith, 2 S. & R. 142.

It is not a badge of fraud to leave goods in the hands of a debtor after a sheriff's sale: Note to Twyne's Case, 1 Sm. L. C. 70.

As to the conversion: Featherstonhaugh v. Johnston, 8 Taunt. 237; Baldwin v. Cole, 6 Mod. 212; McCombie v. Davies, 8 East 540; Hunt v. Greenwich, 3 Stark. 306.

If the court were right in directing the verdict the judgment will not be reversed, although the reasons were wrong: Malson v. Fry, 1 Watts 433; Edgar v. Boies, 11 S. & R. 450; Lobb v. Lobb, 2 Casey 237; Lacey v. Arnett, 9 Id. 169; Johns v. Batton, 6 Id. 84; Burkholder v. Lapp, 7 Id. 322; Waltham v. Spangler, Id. 523; Tams v. Bullitt, 11 Id. 308.

The opinion of the court was delivered, February 6th 1868, by SHARSWOOD, J.

It is clear that James S. Kirk was an interested witness, and incompetent to testify on behalf of the plaintiffs below. They had been the plaintiffs in a judgment confessed by the witness and his partner Baum to them in trust for certain of their creditors. By a sheriff's sale under an execution issued on this judgment they had become the purchasers of the personal property which was the subject-matter of this action of trover. Of course they could only hold it as trustees, and the witness Kirk had a direct interest in the property as a fund or means of paying his debts. His release could only reach his right to the surplus after the object of the trust had been accomplished, and left him still as directly interested as before in increasing or preserving the fund so as to discharge by means of it his personal liability to his creditors. The case of Wilkinson v. The Pittsburg Farmers' and Mechanics' Turnpike Company, 6 Barr 398, is an authority in point if one were needed. The determination of this question sustains the 1st and 3d assignments of errors, and renders unnecessary the consideration of the 2d, 4th, 5th, 6th and 12th, all which relate to evidence proposed and allowed by the court below to be given by this incompetent witness.

The 7th error assigned is in the admission of a notice by Mr. Parry, who was the attorney of the defendants below, addressed to the sheriff, claiming rent by them out of the proceeds of the sale. One of the questions in the cause was whether the subject-matter of the action, or some part of it, had been included in the levy, and passed to the plaintiffs below, and as the defendants rested their claim upon a subsequent purchase from the defendants in the execution, it was certainly material to show that they had notice of the sale. The objection seems to have been rested principally upon its being out of time, as the defendants' case had not then been opened. But we do not reverse on account of errors or irregularities in the mere order of giving testimony. The plaintiff may, if he pleases, with the court's permission, anticipate the defendant's case and defeat it. The court in their discretion will regulate the order in which the evidence shall be given. But for a court of error to enter minutely into matters of that kind would be to intrude unnecessarily on the right of the court below, and to embarrass the administration of justice, instead of assisting it: Salmon v. Rance, 3 S. & R. 311; Harden v. Hays, 2 Harris 91.

The 8th error assigned is because the court rejected the evidence contained in the offer of the defendants below to inquire of the sheriff, who was under examination as a witness for them, whether he was ever down the slope or shaft of St. Clair Collieries, to be followed with evidence that a large part of the property included in the levy and sale was in the mines, and that the defendants below had purchased such part subsequently to the sale. That it is essential to constitute a good levy under an execution that the personal property levied on should be in the power, or at least in the view, of the officer at the time it was made has often been held in this court, for which it will be sufficient to refer to Duncan's Appeal, 1 Wright 500. It is in truth a relaxation of the rules of the English common law, which required actual and exclusive possession to be taken by him. The defendants below had then a right to ask this question, and that though the witness had before said that he had no recollection of having made the levy, which seems to have been the reason it was overruled, for they might afterwards be able to prove aliunde that he was mistaken — and in point of fact the deputy did afterwards testify that he was. Though he may have forgotten that part, he might well be able to say that he had never been down the shaft. This assignment of error is therefore sustained.

The 9th error assigned is in the rejection by the court of an offer by the defendants below to show by their agent the condition of the mines when he took charge of them — that they were in an unworkable and dilapidated state, and would cost many thousand dollars to repair. This was entirely irrelevant to any question in the cause. The value of the personal property in the mines, which was the subject in controversy, had nothing whatever to do with the value or condition of the mines themselves. The court below was therefore perfectly right in rejecting it.

The 10th error assigned is that the court erred in rejecting evidence offered to be given by persons concerned in the working and sale of collieries, that the term colliery embraces all the movable property at the mines used or placed there to be used in the working of them, and that it has been so understood for twenty-five years by all engaged in mining in Schuylkill county. The words of the agreement under which the defendants below claimed the personal property were, "that Kirk & Baum and Baum, Ogle & Co. sell and assign all their interest in the Shaft and Slope Collieries to Henry C. Carey, Abraham Hart and Eliza C. Baird, the lessors in the lease." If this evidence was admissible, it was certainly very relevant and important. Whatever objections may exist in general to evidence of particular customs or usages, it seems to be within the scope of all the cases, both in this state and elsewhere, to show by the testimony of persons engaged in any particular trade or business what is the meaning which belongs to a term or name given to any particular class of objects or property in such trade or business, when that term or name is used in a contract, whether written or verbal. Though the construction of written instruments is exclusively with the court, yet they cannot and are not expected to understand the meaning of all terms used in art, science or commerce. Experts then may be called in, and the question upon their testimony must necessarily be referred to the jury. Mr. Starkie has stated the rule with great precision: "Where terms are used which are...