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dence of the particular matter in controversy, In answering the defendant's first point, the and therefore not admissible. The question at court below defined the duty of the agent in issue was whether the contract between the respect of giving information to his principal of parties was a sale or a consignment. The de- the sale of goods, and charged that a violation fendant was a competent witness and could of this duty was negligence on the part of the prove by his own testimony and by that of any agent. This was in accordance with the deother person having knowledge what the con- fendant's request and covers all the abstract law tract was. All this he did. Had he not been that is contained in the second and third points. a competent witness, the case would have been | These latter points were refused, because there quite different. It might well be that in such was no evidence that the loss on the sale of the a situation the book entries would have been butter was occasioned by neglect, or that any competent from the necessity of the case. But loss was incurred by the failure of the plaintiff's as he was competent and did testify, the neces- to keep the defendant informed either for a sity of introducing evidence of a secondary whole year or for any unreasonable time. The character no longer existed. In these circum- counsel for the plaintiff in error has not pointed stances the entries are nothing but the defend out to us the evidence necessary to sustain these ant's unsworn declarations in writing of the points, and after carefully reading the testisame fact which he could and did prove by his mony, we fail to discover it. The trouble seems own oath. The case of Welsh v. Cooper, 8 Barr, 1 to have been that the butter was not sold for a 217, is not applicable. There the very question long time after it was shipped on account of the at issue was whether a certain person was the very low price which prevailed, and the absence owner of a stock of store goods at a certain place of demand. When it was sold it was necessaand it was held competent to prove that a store rily at a loss, for which neither the plaintiffs business was carried on at that place, by that nor the foreign consignees were responsible. person, and with the goods there kept. . Of When the account sales were received by the course the fact that books of account, showing plaintiffs does not appear, but the plaintiffs' sales of goods there and by that person were book-keeper, Shoester, testified that they were constantly kept in the name of that person, was sent to the defendant, who retained them, a fact proper to be proved as part of the res / shortly after they were received. The witness, gesta. The same offer of proof was proper and Hobson, testified that he communicated confor the same reason in the case of Welsh v. stantly with the defendant from the time of Speakman, 8 W. & S., 257. But this does not shipment to the time of receipt of account, and touch the present case or the present question. that he kept him advised of the condition of the The utmost that could be proved by these en- English market. The case was tried chiefly tries could be and actually was proved by testi- upon the question whether the transaction was mony of a superior order, and therefore this a sale or a consignment. The evidence was inferior and unnecessary testimony was prop- conflicting, but the jury have determined, and erly rejected.

| upon sufficient testimony, that it was a conThe seventh assignment is not pressed nor signment. As we see no error in the record, could it be with any force, as it was a proposi

The judgment is affirmed. tion to prove with the agent that he had no | SHARSWOOD, C. J., and TRUNKEY, J., dissent. authority to do the act which he did do, and as a consequence of which the money of the plaintiffs was paid by them and received by him.

Western District of Pennsylvania,
The case of Mundorff v. Wickersham, 13 P. F.
Smith, 87, goes further than this and holds that

IN EQUITY. if an agent obtains possession of the property of

ALLEGHENY BASE BALL CLUB V. CHAS. another by making a stipulation or condition which he was not authorized to make, the prin

W. BENNETT. cipal must either return the property, or if he receives it, it must be subject to the condition

| Bill to enforce compliance with agreement to enter upon which it was parted with by the former

into contract to give personal serrices. owner. In the present case, the defendant was Bill in equity by the Allegheny Base Ball allowed to prove by the agent all the facts Club, a corporation of Pennsylvania, against which transpired when the receipts were given, Charles W. Bennett, a citizen of Michigan, to and this was as far as he could go.

com pel the respondent to execute a formal conThe eighth and ninth assignments are not tract, to give his exclusive services as a base ball pressed and there is nothing in them.

| player to the complainant, during the base ball

Circuit Court, United States.

season of 1883, and also for an injunction to re 1st. That the bill was prematurely brought. strain him from executing a like agreement with 2d. That the agreement was a mere prelimithe Detroit Base Ball Club, and from performing nary arrangement, anticipating the making of such services for any other person or corporation a final contract, and that, therefore, there was than the complainant, during the season named. no contract before the court capable of specific

The bill was filed on the 5th day of October, enforcement. 1882, and was based upon the following written 3d. That the agreement was unlimited as to instrument, to wit:

place, and was, therefore, unreasonable and void It is hereby agreed, this 3d day of August, 1882, be- as against public policy, as covenants in retween the Allegheny Base Ball Club and Charles W. I straint of trade. Bennett, that said Charles W. Bennett hereby promises

4th. That the complainant had an adequate and binds himself, that between the 15th and 31st days of October, 1882, he will sign a regular contract of the

remedy at law. Allegheny Base Ball Club, a chartered company belong

For the demurrer, Messrs. A. Tausiy, A. W. ing to the American Association of Base Ball Clubs, which contract shall bind him to give his services as a base ball

Duff and Marshall Brown. player to said club for the season of 1883, and shall bind To maintain a suit there must be a cause of said Allegheny Club to pay him the sum of $1,700 for

action when such suit is commenced. and during such season of 1883, and in consideration of

55 Georgia, 329, his agreement to sign such contract in October, the sum of $100 is now paid to said C. W. Bennett, the receipt of

29 Mlinois, 497. which is hereby acknowledged. Witness our hands and

4 Sueed (Tenn.), 583, seals this 3d day of August, 1882.

One who has anything to do on a particular The Allegheny Base Ball Club by day has the whole of that day to perform such A. G. Pratt, H. D. McKNIGHT, Pres't. (SEAL.]

| act, so that suit for a breach of performance canWitness. C. W. BENNETT. (SEAL.]

| not be instituted until the next day. * The bill averred substantially that the com 102 Mass., 65. plainant was engaged in the business of playing 6 W. & S., 179. base ball for profit, and that by the expenditure

18 ('al., 378. of much time and large sums of money it made

And in general the time within which a conpreparations for the exbibition of such games,

| tract is to be executed is as much the essence of and expected to receive large returns from the

it as any other part.

6 Wis., 120. same. That the respondent was a skillful player

43 Me., 158. of base ball, and in consequence of his agreement

18 Ind., 365. with complainant, E. N. Williamson and Jas. F.

1 1 7 Me., 316; 22 Id., 133. Galvin, two other skillful players, had entered (1.) The present bill for an injunction to reinto a similar agreement with complainant. strain the defendant from playing with the That respondent had refused to sign the “regu- | Detroit Club, as in violation of the alleged agreelar contract” referred to, and had entered into ment, will not lie for the reason the contract is a a like contract with the Detroit Base Ball Club. mere preliminary arrangement and not a final That, accordingly, Williamson and Galvin re- agreement. What are the terms of the alleged fused to keep their said engagement with com-contract: They provide and contemplate the plainant, and that the base ball season had now execution of a regular agreement in order to so far advanced that complainant could not se- bind the parties and render the contract mutual, cure other players of equal skill with said Ben-final and conclusive. The preliminary contract nett, Williamson and Galvin, whereby com- shows that it was executed with reference to a plainant " would be seriously damaged to an future and final agreement between the parties. amount of not less than one thousand dollars." A contract requires mutuality as to all its es

The bill prayed that Bennett be required to sential terms, stipulations and conditions. Is sign the “regular contract," and perform his there any allegation upon the face of the bill covenants, and also that he be restrained from that a final, regular contract was ever agreed entering into a similar contract with the De- upon between the parties? There is no controit Base Ball Club, or any other association or tract, therefore, capable of being enforced in a person, and from playing base ball “for hire," court of equity, and the present bill must be during the base ball season of 1883, for any other dismissed. than complainant.

South Walls Ry (0.1'. Wythes, 5 DeG., M. & G., 888. The complainant moved for a preliminary Specific performance will not be decreed if it injunction. The motion was argued by Jas. I is not clear that the minds of the parties have Bakewell, and was opposed by A. Tausig, and come together. was denied. The respondent then filed a gen-1 Wistar's Appeal, 30 P. F. Smith, 481. eral demurrer on the grounds:

(2.) Specific performance will not be en forced directly or indirectly unless the agreement is performance, have reference to property of sonje mutual, its terms certain, its enforcement prac- kind. There is none where a contract for perticable and the complainant is without adequate sonal services alone has been actively enforced. redress in an action at law.

There are several, however, in which the court Bispham's Equity, 377, and cases cited.

has interfered negatively. Thus, in the case of a 10 Wallace, 339.

theatre, considered as a partnership, a contract 5 DeG., M. & G., 2 888.

with the proprietors not to write dramatic pieces And it will not be enforced when it is doubt

| for any other theatre is valid, and a violation of ful whether an agreement has been concluded.

it will be restrained by injunction. 14 Peters, 77,

Morris v. Colman, 18 Veasey, 437. 30 P. F. Smith, 484.

Clark v. Price, 2 Wilson, 157. Nor where the duties are continuous and re

Willard's Equity, 278. quire skill and judgment.

But where there is no partnership between 10 Wallace, 339.

the parties, and the defendant has violated his A court of chancery will not decree the spe- engagement to one theatre and formed a concific performance of a contract, where it would flicting engagement with another, a court of be impossible for the court to enforce the exe-equity will not interfere either actively to comcution of its decree, or where the literal per- pel performance of one contract or negatively formance, if enforced, would be a vain and idle

e, if enforced, would be a vain and idle to prevent the performance of the other. act.

Willard's Equity, 278. Bispham's Equity, 436.

Kemble v. Kean, 6 Sim., 333. (3.) Even if the alleged contract is legal and The cases where injunctions have issued rebinding on the defendant, the demurrer should late: (1) To partnership agreements; (2) To be sustained because the plaintiff has an ade property of some kind; (3) To express negative quate remedy at law. It may have to pay a covenants. higher salary to secure a player of Bennett's Willard's Equity, 277-8. skill, and the difference would be the measure (6.) If the court should be of opinion that the of damages for breach of contract.

alleged contract is complete, mutual, certain (4.) Even if the court should be of the opinion and final, and that under it the plaintiff has po that a contract was executed, full, final and full, complete and adequate remedy at law, the mutual as to all its terms, conditions and stipu- the present bill will not lie for the following lations, and also of opinion that negative cove- | reasons : nants not to exercise a trade, profession, or call ! (1.) It is prematurely brought. No injury to ing within reasonable limits may be enforced plaintiff (if any) can arise until the ball season by injunction, such conclusion would have no of '83 commences. As the plaintiff will not be application to enjoin and restrain the defend actively engaged under the alleged contract ant. The contract is unreasonable and void on until the regular season of 1883 opens, no damigrounds of public policy, as in cases of covenants age can result until that time from the act in restraint of trade, because it is unlimited. which it is sought to enjoin. McClurg's Appeal, 58 Pa. St., 51.

(2.) There is no right to or necessity for an Gillis v. Hall, 2 Brewster, 342.

injunction, for it cannot appear at the present Cott v. Tousle, L. R., 4 ch. app., 654.

time that defendant will play ball during the (5.) The demurrer should be sustained because

| season of '83 in violation of said alleged contract. equity will not indirectly enforce specific per

De Rivafinolli v. Corsetti, 4 Paige (N. Y.), 264. formance of a contract for personal services De Pol v. Sohlke, 7 Robertson (N. Y.), 283. where the services require a succession of acts If the injury be doubtful, eventual or conwhose performance cannot be accumulated by tingent equity will not enjoin. one transaction, but will be continuous and re Rhodes v. Dunbar, 7 P. F. Smith, 274. quire the exercise of special knowledge, skill or Huckenstein's Appeal, 24 Id., 108. judgment.

If the alleged injury is only problematical, Pomeroy on Specific Performance, & 312.

according as other circumstances may or may Ford v. Jermon, 6 Philadelphia, 6.

not arise, or if there is no pressing need for an De Pol v. Sohlke, 7 Robertson (N. Y.), 280.

injunction, the court will not grant it until a Saunquiricio v. Beneditts, 1 Barb., 315. k'emble v. Kean, 6 Sim., 333.

tort has actually been committed. Hells v. Cooke, 2 Phillips, 60.

Kerr on Injunction, 339. Ralfe 1. Ralie, 15 Sim., 88.

Contra, Messrs. James Bakewell and J. S. Fatheryill v. Rowland, L. R., 17 Eq., 132.

Ferguson. Kimberly i'. Jennings, 6 Sim., 340. The personal acts with respect to which courts Oral opinion by ACHESON, D. J., November of equity entertain jurisdiction to decree specific | 18, 1882, Demurrer sustained and bill dismissed.

Pittsburgh Legal Journal.

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No. 18.

Supreme Court, Penn'a.

five years, had followed them and was then

standing upon the platform close to the edge ESTABLISHED 1853.

nearest the track. The train had been cut some E. Y. BRECK, : : : : Editor. distance west of the station and the engine, with N. S.. Vol. XIII.

some cars destined for Osceola siding, had gone 0. S., Vol. XXX.

ahead, leaving the rear part of the train to drift PITTSBURGH, PA., DECEMBER 13, 1882.

down slowly in charge of a brakeman and flagman. The speed of this detached portion of the train as it approached the platform was not more than three or four miles an hour. This

portion of the train was stopped alongside of the THE BALTIMORE & OHIO RAILROAD COM- platform and there stood for ten minutes. The PANY v. WILLIAM SCHWINDLING. | engine came back, coupled to the detached por

tion, “and pulled ahead easy." Willie, the A child between five and six years of age, not a passenger, without invitation from any one, went on the plaintiff, standing close to the train, was at that platform of the railroad company at a station and moment, according to his brother's testimony, stood so near the track as to be struck and injured by caught by a car stirrup or step, that was alleged a passing car. Held, that the child was a trespasser, 1 +

to be projecting, was thrown under the cars and the company owed him no duty and would not be liable for anything less than wanton or intentional / received the injuries complained of. injury.

On behalf of defendant it was testified by the Unless the duty of protection is owed, the omission to brakeman and conductor that the cars had been furnish it is not negligence, and no liability is incurred

examined after the accident and found in perfect therefor either to adults or children. Gillis l'. Pennsylvania Railroad Co., 9 P. F. Smith, 140:

order; that in all their experience they had Railroad 2. Hummell, 8 Wright, 375, and Kay v. Penn- | never seen a car stirrup bent out beyond the side sylıvnia Railroad Co., 15 P. F. Smith, 276, approved of the car. and followed.

There was verdict for plaintiff for $2,000 and Error to the Court of Common Pleas, No. 1, l judgment on the verdict. of Allegheny county.

For plaintiff' in error, Messrs. Ilenry M. Hoyt, The plaintiff, William Schwindling, a minor, | Jr., Welty McCullogh. Johns McCleave and Geo. sued by his father to recover for the loss of a leg shiras. Jr. and for other injuries done him by the cars of

by the cars of Contra, Messrs. M. Swartzwelder and Frank the defendant company.

Thomson. Osceola, where the accident happened, is a small station on the line of the Baltimore & Ohio Opinion by GREEN, J. Filed November 20, Railroad, a few miles east of McKeesport, con- 1882. sisting of a platform and store on one side of the At the time the plaintiff received his injury tracks, and some tenement houses on the other. he was standing on the platform of the defendThe store and tenement houses belong to a com- ant, so close to its edge that, according to the pany operating coal mines in the vicinity. The theory upon which the case was tried for the platform, wholly situated within the railroad plaintiff, he was struck by a slight projection company's right of way, is the property of the from the side of a passing freight car. He was railroad company, and is used for the purpose not a passenger, he had no business of any kind of receiving and discharging freight and passen- with the defendant or any of its agents or emgers. The people living in the houses on the ployees, in fact he was a boy about five or six west or river side of the tracks trade at the store years of age amusing himself, looking at the on the east side, and for this purpose cross the moving train. He was not invited upon the tracks of the railroad company. According to platform by any agent of the defendant, and he the testimony of the plaintiff''s elder brother, was not engaged in the act of crossing either a boy of fourteen years, and another witness, the track or the platform, at the time of the acthe mother of the plaintiff, on the afternoon cident. He was simply loitering upon the edge of September 15, 1880, sent the plaintiff's two of the platform with no other purpose or motive elder brothers, including the witness, to the than his own personal enjoyment. lIis elder store above mentioned to make some purchases. brother, his principal witness, testified that he Finding the storekeeper busy they came back told him to come back from where he was standto the station platform to see a freight train ing, but he refused to do so. A passing car then approaching on its way east. When they moving at a very slow rate of speed, not exceedreached the platform they found that their ing three or four miles an hour, with an iron younger brother, the plaintiff below, a lad of) step projecting a few inches from the side of the car (as alleged by the plaintiff though denied anything negligence which is less than a failby the defendant), struck him and pulled him ure to discharge a legal duty. If the law defrom the platform under the wheels of the car clares, as it does, that there is no duty resting so that he was run over and injured. In these upon any person to anticipate wrongful acts in circumstances was there any right of recovery? others, and to take precautions against such We think clearly not. We held, in the case acts, then the jury cannot say that a failure to of Gillis v. Pennsylvania Railroad Co., 9 P. F. take such precautions, is a failure in duty and Smith, on p. 141, that, “The platform of a rail- negligence." * * * “Blowing the whistle of the road company at its station or stopping place locomotive, or making any other signal, was is in no sense a public highway. There is no not a duty owed to the persons in the neighbordelication to public use as such. It is a struct- hood, and consequently the fact that the whistle ure erected expressly for the accommodation of was not blown, nor a signal made, was no evipas-engers arriving and departing in the train. I dence of negligence." Being unenclosed, persons are allowed the privi- It will be perceived that it is entirely immatelege of walking over it for other purposes, but rial, in solving this question, whether the perthey have no legal right to do so." * * * "Still son injured is an adult or a child. even a trespasser on the land of another can! There is no question of contributory neglinaintain an action for a wanton or intentional gence involved in the inquiry, or essential to injury inflicted on him by the owner." Again, its consideration. If the defendant did not owe on page 143: “ The plaintiff may not have the duty of protection against the injury suffered been technically a trespasser. The platform in the particular case, the omission to furnish was open; there was a general license to pass | such protection is not negligence, and there is over it. But he was where he had no legal no liability on that ground. Take the present right to be. His presence there was in no way case as an illustration. connected with the purposes for which the plat- / The only duty which is, or can be, claimed, form was constructed." *** "As to all such as having been violated, was a duty to protect persons to whom they stood in such relation as the plaintiff, when standing upon the edge of required care on their part, they were bound to the defendant's platform, from injury, from a have the structure strong enough to bear all i car-step projecting a few inches beyond the side who could stand on it. As to all others they of a slowly passing car. were liable only for wanton or intentional in- But how can any such duty arise out of such jury. The plaintiffwas on the spot merely to i circumstances ? enjoy himself, to gratify his curiosity or to give The plaintiff had no right to place himself in vent to his patriotic feelings. The defendants the position in which it was possible for him to had nothing to do with that." ('pon the fore- be injured in such a manner, and the defendant going principles, and upon the authority of was not bound to take precaution against such many adjudicated cases cited in the opinion, injury. and which it is therefore not necessary to review It is not denied that this would be true if the here, it was held there could be no recovery plaintiff were an adult, how then can it be otheralthough the platform was insuficient to bear wise than true as to a child. The absence of the weight of the persons who were upon it. | duty is precisely the same in either case, and It was conceded that there would have been a the consequent absence of liability must be the right to recover if the persons on the platform same in both. It is quite true that young chilhad been there as passengers or upon business dren can recover for injuries in circumstances connected with the defendant. In the latter in which adults cannot. But even children case there would have been a violation of a duty cannot recover unless there is negligence, and owing by the defendant to the plaintiff. But there can be no negligence without a breach of there was no such: duty because of the absence duty. In Kay v. Pennsylvania Railroad Co., of the relation, and hence there was no right of | 15 P. F. Smith, on p. 276, we said: “If there action. The controlling feature of the inquiry be no negligence on the part of the company, in all such cases is, was there a duty to the then the incapacity of the child creates no liaplaintiff' which was violated by the defendant? | bility, and its injury is its own misfortune which If there was not, there is no legal liability. it must bear." This was essentially the distinction on which In Philadelphia & Reading Railroud Co. a. Railroad v. Hummell, 8 Wr., 375, was decided. Spearen, 11 Wright, 300, where a child five On page 379, STRONG, J., said: “Yet a jury years old, suddenly ran across the track in front cannot hold parties to a higher standard of care of an approaching engine, and was struck and than the law requires, and they cannot find / injured, we said, on page 303 : “The engine in

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