Kidder v. Boom Company

• Decision Date: 01 January 1855
• Citation: 24 Pa. 193
• Parties: Kidder versus Boom Company.
• Court: Pennsylvania Supreme Court

24 Pa. 193

Kidder versus Boom Company.

Supreme Court of Pennsylvania.

ERROR to the District Court, Philadelphia.

COPYRIGHT MATERIAL OMITTED

Parsons, for plaintiff in error.

Mallery, for defendant in error.—Though a turnpike company cannot collect tolls on the ground of an implied assumpsit arising from the mere user of the road, where the charter contemplates collection at the toll-houses (2 Penn. Rep. 462), yet an action at law can be maintained on an express agreement to pay toll: 2 Harris 164, Beeler v. Turnpike; 3 Watts 128, Dorman v. Turnpike Company. The proprietors of a canal bridge may commute the toll for a certain sum by the quarter or year: 1 Pick. 304. In English cases collected in Grant on Corporations 160, assumpsit on engagements express or implied, has been allowed to recover duties incident to a port.

The opinion of the Court was delivered by KNOX, J.

In the Turnpike Company v. Brower, 2 Pa. Rep

462, Dorman v. The Turnpike Company, 3 Watts 128, and The Chestnut Hill Turnpike Company v. Martin, 2 Jones 361, it was held that the law would imply no promise to pay for the use of a turnpike-road, as a statutory remedy was given through the medium of toll-gates.

In Beeler v. The Turnpike Company, 2 Harris 164, actions were held to be maintainable upon express agreements to pay for the use of turnpike-roads. So that the rule may be considered as settled that, in the absence of an express contract, and where a means of enforcing payment is given by the Act of incorporation, the statutory remedy is exclusive of all others.

In the case before us the jury have found that there was a valid contract between the parties, that the defendant should pay for the use of plaintiff's boom. The instruction of the learned judge, as to what would constitute a contract, is unexceptionable. True, the contract must be express, but its existence may be shown by either positive or presumptive evidence. It is said by the plaintiff in error, and this is the burden of his complaint, that there was no evidence of an express contract. The Court below thought there was sufficient evidence to submit to the jury, and we are not satisfied that any mistake was committed in this respect. To submit to the jury a fact, without any evidence of its existence, is error; but the burden of showing the error is entirely with the party alleging it. And before effect will be given to such an assignment, it must be most clearly established. The Court before whom a cause is...