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nally to pass.

ally construed the records for themselves, the controversy is litigated is competent fiChesman v. Cummings, 142 and granted or refused specific performance according as they found the title good or Mass. 65, 7 N.E. 13. We think this is such bad. A title cannot be considered doubt- a case. ful where there is no question of fact involved in a decision as to its validity, but one of law only, upon which the court where

Order affirmed.

Rehearing denied.


Benjamin TAYLOR


Margaret EVANS, Appt.

(177 Pa. 286.)

Payment of the money cannot be enforced under a contract to purchase real estate which stipulates that the property shall be clear of all encumbrances, if the title has not been accepted, and there is an existing right on the part of a municipality to open a platted street over the property, which will destroy the buildings without making compensation for them.

(October 5, 1896.)

PPEAL by defendant from a judgment A of the Court of Common Pleas, No. 2, for Philadelphia County in favor of plain tiff in an action brought to recover the amount alleged to be due on a promissory note, in which defendant set up a counterclaim for damages for breach of contract to purchase certain real estate. Affirmed.

The facts are stated in the opinion. Mr. J. Howard Morrison, for appellant:

An encumbrance is a burden upon land depreciative of its value, such as a lien, easement, or servitude, which, though adverse to the interest of the landowner, does not conflict with his conveyance of the land in fee.

10 Am. & Eng. Enc. Law, p. 361.

The mere existence of Hilles street upon the plan of the city of Philadelphia, it never having been opened, would not bring it within the definition of an encumbrance, for the reason that, upon its opening, whoever is the owner is entitled to be repaid for the damage which he suffers.

2 Greenl. Ev. ¶ 242; Bailey v. Miltenberger, 31 Pa. 37, 41; Ake v. Mason, 101 Pa. 17; Memmert v. McKeen, 112 Pa. 319, 4 Atl. 542: Patterson v. Arthurs, 9 Watts, 152; Dobbins v. Brown, 12 Pa. 75; Wilson v. Cochran, 46 Pa. 229; Peck v. Jones, 70 Pa. 83.

an encumbrance upon the physical condition of the property, or merely a circumstance affecting its physical condition, the fact that it was confirmed and upon the city plans is notice.

Notice, to bind in law, must be given by a person interested in the property, and in the course of the treaty for the purchase.

3 Sugden, Vendors, pp. 451, 452; Kerns v. Swope, 2 Watts, 75; Boggs v. Varner, 6 Watts & S. 469; Peebles v. Reading, 8 Serg. & R. 484.

Notice should be actual in the transaction.

Hottenstein v. Lerch, 104 Pa. 454.

Green, J., delivered the opinion of the court:

It was agreed upon the trial that Hilles Frankford avenue and street, between Thomas street, was laid out on the city plan as a public street 40 feet wide, and was confirmed, in 1858. It was never opened, and at some time after it was laid out, and be

If the existence of the strect was either fore the title of Mrs. Evans accrued, certain

NOTE. As to what is a marketable title, see the preceding case of Ladd v. Weiskof, and note.

Bailey v. Miltenberger, 31 Pa. 41; Ake v. Mason, 101 Pa. 21.

Mr. William H. Peace, for appellee: The case is to be governed according to the principles of law governing actions for specific performance.

Herzberg v. Irwin, 92 Pa. 48; Nicol v. Carr, 35 Pa. 381; Lesley v. Morris, 9 Phila. 110.

If Mrs. Evans was not entitled to specific performance, she could not recover in this action.

The presence of Hilles street running through the whole length of the lot was an encumbrance or a restriction that affected the title.

People's Sav. Bank v. Alexander, 2 Sadler (Pa.) 287, 3 Atl. 821.

Where there is serious doubt as to the meeting of the minds, equity will not decree performance.

Cortelyou's Appeal, 102 Pa. 576; Herman v. Somers, 158 Pa. 424, 38 Am. St. Rep. 851, 27 Atl. 1050.

buildings were erected on the front of the lot, and upon the part of it which was the bed of Hilles street. This was the situation

of the property when Mrs. Evans contracted, to sell it to Taylor. Under the act of April 3, 1851 (P. L. 327), no damages could be recovered for the loss of these buildings by the opening of the street, because they were erected after the street was laid out and plotted on the city plan. The contract of sale by Mrs. Evans to Taylor, as expressed in the receipt for $50 of the purchase money, was that the property was to be "clear of all encumbrances;" and the question is whether the right of the city to open the street without paying any damages for the buildings which were on the lot, and within the bed of the street, was an encumbrance, so as to constitute a breach of the condition against encumbrances contained in the receipt. So far as the offers of testimony to show knowledge of the encumbrance on the part of Taylor are con cerned, we think they were immaterial, because he protected himself by a positive covenant that there was to be no encumbrance on the title, and he would, therefore, be entitled to the benefit of his contract, whether he had knowledge of an encumbrance or not. It is also to be borne in mind that the contract was executory, and not executed, and the case therefore involves the question whether the contract is to be enforced against the will of the purchaser. That the purchaser, if obliged to take the title, will or may suffer a serious detriment, is very manifest from the consideration that the buildings on the lot naturally constituted a large part of the value of the property. If these may be taken from him without compensation, he has no equivalent for their loss in a reserved right to have damages for the taking. He is therefore by that much a direct loser upon the terms of his contract as it was made, and presumably he would not have made it. But whether he would or would not have made it, if he had had knowledge of the contingency, he saw proper to stipulate for a title free of any encumbrance; and that feature of his contract cannot be rejected without altering the contract itself. This equity will not do, even when the title is clouded only, because specific performance is matter of grace, and not of strict right. But when a positive term of the contract must be disregarded, neither equity nor law will interfere, where the contract is executory. These considerations eliminate much of the discussion, and distinguish the present contention from the authorities relied upon for the appellant. While an existing street upon a lot, or the mere liability to have a street opened upon it, is matter of which a purchaser is bound to take notice, and therefore, on that account, cannot defend against an action for the pur

chase money after the deed has been accepted, the case is very different when no deed has been accepted, no mortgage or other lien for the purchase money has been given by the purchaser, no possession has been taken, nor any other act done by the purchaser in affirmance of the contract. And when, in addition to all this, a large loss of the actual consideration of the contract may, and probably will, be suffered by the enforcement of the contract against the will of the purchaser, surely an express provision against the possibility of such loss, embodied in the written terms of the contract, will not be violated or disregarded by the courts, when they are asked to enforce it as an executory contract only. This reasoning was followed and enforced in People's Sav. Bank v. Alexander, 2 Sadler (Pa.) 287, 3 Atl. 821, decided in 1886, in which the decree of the court refusing specific performance was affirmed by this court. The facts in that case were very similar to the facts in this, except that here buildings had already been erected on the lot, the loss of which could not be replaced by an assessment of damages when taken. In People's Sav. Bank v. Alexander, the master said: It has been stated in the findings of fact that this street has been laid out thirty feet wide over a portion of the lot. This fact presents a most serious obstacle to the granting of a decree for specific performance of the contract between the parties. It is true, the street is not opened, but is laid out on the city plan. The effect of this is to give notice to whomsoever takes the lot of the possibility, or rather the probability, that the street will be opened at any time; and therefore he cannot claim damages from the city should he erect improvements upon it. See act April 3, 1851 (P. L. 327). He finds himself in the awkward position of not being able to claim damages, as there has been as yet no physical taking, and yet he cannot improve except at his peril. At the best he is subject to uncertainties, and is liable to a lawsuit to test the question of benefits or damages to which he may be entitled, or for which he may be liable. This would seem to present a very similar state of facts to that governed by the decision of the supreme court in Speakman v. Forepaugh, 44 Pa. 374. This is an executory contract, and the rights of the vendee are more jealously guarded than if it were executed; or, perhaps more accurately, the presumptions of law are different from those arising where a contract has been executed. In the last case cited it is said: "In this state, when contracts for the sale of land have been executed, and securities for the purchase money have been taken, if there be a known defect of title, and no covenant

against it in the deed, there is a presump-A of the Court of Common Pleas, No. 2, PPEAL by defendant from a judgment

for Philadelphia County in favor of plaintiff in an action brought to recover damages for the alleged negligent killing of plaintiff's husband. Reversed.

The facts are stated in the charge of the court below by WILTBANK, J., which was as follows:

tion that the purchaser undertook to run
the risk of the defect; and, if he did, he can-
not detain the purchase money on account of
it. This is a rule in regard to executed
contracts, but even in regard to those it is
not a conclusive presumption. See Rawle,
Covenants for Title, 723-727. It is inappli-
cable to a mere executory contract
which is only preparatory." In the fore-
going case of People's Sav. Bank v. Alexan-
der, the report of the master was sustained
by the court below, and that decree was af-
firmed by this court in a per curiam opin-
ion. There the proceeding was a bill for
specific performance, and here the action is
assumpsit to recover the purchase money.
The same principles and reasoning are ap-
plicable in both. The defendant in this case
has not conveyed, and is not able to convey,
a title clear of encumbrance, and is there-
fore not entitled to the purchase money.
The assignments of error are not sustained.
Decree affirmed, and appeal dismissed, at
the cost of the appellant.



Louis SHONEMAN, Appt.

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"On the 31st of August, 1893, the defendant was carrying on business on Eighti street. He was a dry-goods merchant, and he had in his employ Thomas Service. On that day the engineer who had charge of Shoneman's engine and boiler asked Service to do something for him, which was this: He observed that the front of his boiler at a certain place at the edge of one of the plates that you have heard described to you showed evidences of leaking. There were steam and water coming out, he found, somewhere, about half the size of a lead pencil, as he described it. He called upon Service to hand him a wrench. Service's employment in that establishment was that, apparently, of porter. or general assistant, and it was in the line of his duty to hand the engineer that wrench. He handed it to him, and the engineer took it, adjusted it to the nut which was at the end of the pivot or rod which projected beyond the plate outside of the boiler, and then proceeded to so move that nut as to tighten up the plate. His object was to work on the nut on the thread on which it is usually worked, in a direction which would carry the nut towards the plate, and carry the plate closer to the head of the boiler. You will, of course, know that that thread on the nut, if worked in another way, would carry the nut away from the boiler. But the object of the engineer was to tighten the plate,-to carry the plate nearer the head of the boiler, to prevent the further emission of steam and water. Now, instead of producing that result, the plate opened. It not only did not come nearer the head of the boiler, but moved in its position so that it uncovered to a slight extent the chamber in which the steam and water were confined, and there being thus made a vent, there was, apparently, a heavy emission of steam and water. The engineer himself, standing in the direction of the current, was injured, and Service was thrown into the pit which was in front of the boiler, and so grievously injured that within a short time he died. Now, the plaintiff claims that Mr. Shoneman, who was the owner of the boiler, must answer in damages for the death of Mr. Service, and, in order to determine that question, you have to consider, under the proofs that have been produced to you, certain matters that I will submit.


"You will have no difficulty, I think, in reaching the conclusion that the cause of the accident was the moving of that plate; and the proofs make it equally clear that the object of the workman—the engineer—when he went to work, was not to do what did happen, but to do the other thing; that is to say, to tighten the plate up against the front of the boiler. At all events, as a consequence of what he did do, it moved, and there was thus created this vent, and ac cordingly there resulted the accident. It is the theory of the plaintiff's case that what the engineer did at that time was properly done; that the action which he concluded was necessary under the circumstances was prudent and proper. That is the theory of the plaintiff's case, and he suggests the question to you to be that that plate slipped because, whilst the engineer took proper steps to tighten it up against the boiler, it was not itself properly made; that it was so smooth on the edge that when it pressed against the head of the boiler, instead of holding there, it slipped aside. And it is contended for the plaintiff that you are to punish Mr. Shoneman in damages because of that condition of the plate, and also by reason of the fact that the plate was triangular, instead of being circular. You will remember that that plate covered an opening in the chest, or 'header,' as it was called, of the boiler, into which the ends of three tubes were introduced, and that that plate, in a proper position, stood directly over the holes of those three tubes. You can understand, therefore, that, as it was triangular in form, and as it is conceded that it covered tubes which would open on the spaces at either end of the three angles of this triangular plate, when that plate was moved it would be reasonable to suppose that part of a tube would be uncovered, and you can also understand the force of the argument that this would not have been the result if the plate had been a round one, because then it would have been immaterial how much it moved in position, unless it had dropped off, as one of the witnesses said. It would be immaterial how much it moved in position, if it still kept its place on the rod, because, being circular, it never would have left uncovered any part of the hole at the head of the tube. You have to consider, therefore, whether there was any negligence in the construction of that boiler due to the trian- | gular form of that plate, and due to the alleged fact that the inner surface and the edges of that plate were too smooth for the purposes of its employment. Now, when you come to consider that fact, and it is a very narrow question for you, you will have to consider it by the light of certain suggestions. You must remember that both

the plaintiff and the defendant are to be regarded by you as unskilled in boilers, and as depending upon other people for their knowledge with regard to boilers. Mr. Shoneman, being a dealer in dry goods, and having charge of an establishment in which the use of a boiler may be regarded as necessary, could do no more than an ordinarily in dry goods would do, or an ordinarily prudent man unacquainted with matters of machinery would do, when he proceeded to buy a boiler. He could do no more from day to day, when people about the establishment were using that boiler. He cannot be regarded in any sense as a skilful engineer or a practical machinist, for he was neither one nor the other. He was merely a citizen, who, in the course of his business, was brought at no time into actual personal employment in the use of machinery himself as an operator; a citizen who was obliged to depend upon the information of others when he came to select the machinery and the boiler which was necessary to his establishment. You will have to remember, of course, also, that Mr. Service was a person in like position of unskilfulness. He was a carpenter by trade, and he was employed about this establishment as a man who would assist generally in the performance of the duties incident to the running of the place. He also would have to depend upon others for information. You may also, before you pass to consider the main question of the case, reflect, and very properly reflect, that if a given boiler, or one of a given class of boilers, is selected for an establishment of this character, it is necessary to consider the reputation and character of that boiler to aid in a determination whether or not there was negligence in its build and in its use. You will therefore recall the testimony as to the character of this boiler as to its age, as to its reputation, and if you find the character to be one of safety, and the age, and the number of boilers sold to indicate an ordinary general use; if you find that under such circumstances the reputation is good, that must operate favorably when you come to consider whether or not the defendant used proper care in the selection of it by the advice of those who knew about such things, and in the management of it by his engineer.

"Now, as a matter of fact, both Mr. Shoneman and Mr. Service depended upon the engineer who had charge of that boiler. Mr. Shoneman had to depend upon him as a skilful man, who knew how to manage it; and, of course, Mr. Service had to depend upon him for the same reason, Mr. Shoneman being only brought in contact with the boiler as the owner of it and the head of the establishment, and Mr. Service having

his acquaintance with it by reason of the | in use at that time? To answer that quesfact that he had to work around about it at tion you have the aid of much testimony times in the performance of his ordinary either way. I charge you that, if it was of duty. If you proceed to consider the ques- the ordinary character, your verdict must tion by the light of these suggestions, it be for the defendant. If it was not of the seeins to me that you can resolve the prob- ordinary character, you must consider two lem of the case without much difficulty. other points, to which I shall later advert. The defendants were not bound to provide The boiler was what is known as a 'waterthe safest or the newest and most approved tubular boiler,' by which description is appliances. If this boiler was of an ordi- meant a boiler made up of parallel tubes nary character, and such as could, with rea- communicating with each other, with spaces sonable care, be used without danger by a between the tubes to hold water and the competent engineer, that is all that can be spaces between to hold fire, so that the cperrequired of the defendants. As has been ation of the heat might change the water to shown here by some of the witnesses, the steam. Such tubes, it is clear, must be attempt to tighten up the plate or cap was kept closed, just as any boiler must be kept dangerous,--the taking of a risk, as it was closed when so active and forcible an agency called; but such attempt, according to the as steam is engendered in it. Was this plaintiff's proofs, was incident to the plate or cap an appliance for the closing of employment, and was prudent under the cir- these tubes of the ordinary character, and cumstances. Therefore, by the plaintiff's such as could, with reasonable care, be used theory, the question is, not whether the de- without danger to this man? Was it a reaceased was exposed to danger, but whether sonably safe appliance? If, as I have al he was so exposed through neglect of Mr. ready said, you find from the evidence that Shoneman to provide a reasonably safe boil it was such as was in ordinary use upon er. There is no contention that Mr. Service tubular boilers at that time, that is, at was exposed to danger by reason of any act the time of the accident, then it is your of Mr. Shoneman's in employing Rubner. duty to conclude that the defendants used That you may dismiss from your minds. due care in having it; that they acted ac The theory of the plaintiff is that Rubner cording to the usages, habits, and ordinary was a wholly competent engineer, and there- risks of men using boilers in their establishfore it cannot be contended for a moment ment,-in an establishment of that characthat any liability arose on the part of Mr. ter. The testimony on this head was given Shoneman by reason of the employment of you by witnesses for the plaintiff and the Rubner, skilful and competent as, it is con- defendant, quite a considerable number of tended by the plaintiff, he was. The test cach. Mr. Simmons, Mr. O'Donnell, Mr. of reasonable safety is ordinary use. The Cree, Mr. Motson, and Mr. Eckman have all complaint of this boiler is directed exclu- testified that the appliance called the trisively to the style of plate or cap, and it is angular plate or cap was not such as at that claimed that the triangular form of this time, in the state of the art in the manufacplate or cap, in connection with the smooth- ture and use of tubular boilers, was in genness of its inner edge, induced the injury eral and ordinary use. On the other hand, when Rubner used the wrench upon the nut, Mr. Moore, Mr. Hodges, Mr. Overn, Mr. the smooth edge permitting the plate or Fett, and others, whom I need not name, becap to move around with the circular mo- cause I propose to dwell on the testimony of tion of the nut, and, as a consequence, the three of those gentlemen, specially, testify triangular shape permitting a vent, perhaps that there was nothing out of the ordinary three vents, to appear at the head of the in this plate and in its use at that time. three tubes which the plate would have held Mr. Moore, the manufacturer of the boiler closed if it had remained in its proper po who devised the triangular plate, has so sition. These results, the plaintiff con- testified. He has stated the number of boiltends, could not have arisen had there been ers that he had at that time made and put asbestos about the inner edge of the plate in use, and the number that have been since to present a roughened surface to the head-made and he has stated positively, independ

er upon which it pressed, or had there been flanges or other device there for the same purpose; and they further contend that, even in the absence of such precaution, even had the plate or cap remained smooth, the escape of steam and water would have been avoided had the plate been round, and not triangular. It is for you to answer, Was this plate or cap, subject as it was to this criticism, of the ordinary character of those

ently of his special statement to which I shall call attention, that the triangular plate was such as was not without the ordinary use at that time; that it was a plate which might be considered a proper one for an ordinarily careful and prudent man to have at the head of the boiler. Mr. Hodges and Mr. Overn, who were the official inspectors of the city, and who examined that boiler inside and outside, and who made a

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