McCredy v. Schuylkill Nav. Co.

• Citation: 3 Whart. 424
• Parties: M'CREDY v. THE SCHUYLKILL NAVIGATION COMPANY.
• Decision Date: 09 April 1838
• Court: United States State Supreme Court of Pennsylvania

3 Whart. 424

M'CREDY v. THE SCHUYLKILL NAVIGATION COMPANY.

Supreme Court of Pennsylvania.

April 9, 1838

IN ERROR.

1. Evidence of the contents of an instrument alleged to have been lost cannot be given without previous proof of its due execution, which includes proof of its delivery; and where a witness called to prove the former existence of an instrument, testified that it had been put into the hands of A. as an escrow, and A. on his examination said that he could not recollect on what occasion, or with certainty to whom it was given up, and that he should not have given it up without the consent of both parties, it was held, that evidence of the contents of the instrument was properly rejected.

2. In an action of covenant on an agreement by which the defendant covenanted to raise a certain dam to a certain number of inches above its then height, and to maintain and keep it at that height, and in good order, casualties excepted, it was held, that evidence was not admissible on the part of the plaintiff, to show the condition of the dam previous to the agreement.

3. In covenant on articles of agreement by which the defendants (the Schuylkill Navigation Company,) covenanted to raise a certain dam, and to maintain it at a certain height, it was held, that persons employed as superintendents and agents of the defendants in repairing a breach in the dam were competent witnesses for the defendants, to prove that repairs were made with all due expedition, and in a proper manner.

THIS was a writ of error to the Court of Common Pleas of the County of Delaware, to remove the record of an action of covenant, brought by Bernard M'Credy, against The President, Managers and Company of the Schuylkill Navigation Company.

The action was brought in the Common Pleas of Montgomery County to August term, 1834, and removed for trial to Delaware County.

The declaration set forth,--

" That whereas by certain articles of agreement made, at Montgomery county aforesaid, the eighth day of October in the year of our Lord one thousand eight hundred and nineteen between the aforesaid " The President Managers and Company of the Schuylkill Navigation Company" of the one part, and Levi Pawling, by the name of Levi Pawling of Norristown in the county of Montgomery and state of Pennsylvania, Esquire of the other part, [the title of which said Levi to the estate in said articles of agreement mentioned and hereafter more fully recited, by virtue of divers conveyances and assurances, is now in part vested in said Bernard,] which said articles of agreement with the seal of the said " The President, Managers and Company of the Schuylkill Navigation Company" sealed, the said Bernard here into Court brings, the date whereof is the same day and year aforesaid, it was concluded and agreed by and between the said " The President Managers and Company of the Schuylkill Navigation Company" and the said Levi Pawling, in manner following, to wit: the said " The President, Managers and Company of the Schuylkill Navigation Company" did, by the same articles, promise, covenant and agree to and with the said Levi Pawling, his heirs and assigns, that they, the said " The President, Managers and Company of the Schuylkill Navigation Company," should and would, at the expense of the said company, erect and build a dam across the river from the middle of the small island near the said Levi Pawling's mill, therein mentioned, to the southwestern shore of said river, in such a direction as will pass between the lower end of an island called Barbadoes Island, therein more fully mentioned, and a small island a few perches to the southward thereof; that the said dam should be erected of good materials, and that the top of it should be in every part, as near as may be, on a perfect level and seven feet in perpendicular height above the sheeting under the water-wheels of the said Levi Pawling's wheat or corn mills aforesaid, [as in and by said articles of agreement amongst other things more fully appears.]

In consideration whereof the said Levi Pawling covenanted, promised and agreed to and with the said " The President, Managers and Company of the Schuylkill Navigation Company," that he would erect, build and finish at his own expense a dam in a line with the said company's dam, to extend from the north-eastern shore of said river near his mills to the middle of the said first-mentioned small island at a small distance from said shore: and the said dam should be erected of good materials, and that the top of it should be in every part thereof as high or higher than the top of said company's dam. Each of the said parties to uphold, support and forever to maintain and keep in good repair the dam or parts of dam to be by him or them respectively constructed as above-mentioned; and each party should cause his or their dam or parts of the said dam to be made and forever in future kept so close that not more than one-tenth part of the water of said river should be permitted to leak through or under the whole length of said dam: and in respect to the use to be made of the water of the said river, after allowing for the leakage of one-tenth part thereof through or under the said dam, it was mutually covenanted and agreed that the said Levi Pawling, his heirs and assigns, should be entitled to draw off five equal twelfth parts thereof for the use of his or their mills or other water-works then or thereafter to be erected at or near Norristown; and that the said " The President, Managers and Company of the Schuylkill Navigation Company" should be entitled to draw off five equal twelfth parts thereof to be applied for mills or other water-powers on the south-western side of said river; and two twelfth parts thereof for the purpose of navigation; neither party to be ever at liberty to draw off the water below the level of the top of said dam to be erected by the said company: and further in consideration of the covenants entered into by the said " The President, Managers and Company of the Schuylkill Navigation Company," the said Levi Pawling covenanted and agreed, that he, or his heirs or assigns, would bear, sustain and pay all damages that should, at any time thereafter, by any person or persons, be claimed and lawfully recovered either against him, his heirs or assigns, or against them the said " The President, Managers and Company of the Schuylkill Navigation Company," for or by reason of the erection of the said dam or dams, or of the swelling or flooding of the water thereby, and also, all costs, charges and expenses that should accrue from or by reason of all and every such claims forever thereafter. And further, in consideration of the covenants entered into by the said company, the said Levi covenanted and agreed for himself, his heirs and assigns, that he, his heirs, executors, administrators and assigns, should and would pay to the said " The President, Managers and Company of the Schuylkill Navigation Company" or to their treasurer, the sum of fifteen hundred dollars lawful money of the United States as soon as their part of said dam was completed and approved of by the commissioners appointed by the governor of the commonwealth, [as by the same articles of agreement amongst other things more fully appears.]

And the said Bernard in fact saith, that although the said Levi Pawling, from the time of making of the said agreement hitherto hath always been ready to perform and hath fully performed all and singular those things in the same agreement contained, which on the part of the said Levi Pawling were to be performed according to the true intent and meaning thereof; and although the said Bernard, since the vesting in him of the title of the said Levi Pawling, hitherto hath always been ready to perform, and hath fully performed all and singular those things in the same agreement contained, which on his part as assignee were to be performed according to the true intent and meaning thereof, yet the aforesaid, " The President, Managers and Company of the Schuylkill Navigation Company," their covenants aforesaid as in said agreement contained, have altogether disregarded and neglected to perform, and have not in accordance with and agreeably to the said covenants erected of good materials a dam across the said river, from the middle of a small island near the said Levi Pawling's mill above-mentioned to the south-western shore of the river, in such a direction as will pass between the lower end of said Barbadoes island and a small island a few perches to the southward thereof, on a perfect level, and seven feet in perpendicular height above the sheeting under the water-wheels of the said Levi Pawling's wheat or corn mills aforesaid; nor have they the said " The President, Managers and Company of the Schuylkill Navigation Company" upheld, supported, maintained or kept in good repair such a dam as by their covenants aforesaid they promised and agreed to uphold, support and forever maintain and keep, but on the contrary the dam erected by the said " The President, Managers and Company of the Schuylkill Navigation Company" was so badly, improperly, and inartificially erected and constructed and built, that the same was broken, and a part thereof carried away upon the ninth day of January in the year of our Lord one thousand eight hundred and thirty-two; and upon the fourth day of February in the same year, about eighty feet of the breast of the said dam was completely and entirely carried away; and the said the " President, Managers and Company of the Schuylkill Navigation Company" altogether neglected and refused to renew and put said dam into good repair for a long time, to wit, for the space of about one hundred days: by reason whereof and of the neglect of the said " The...