Imagens da página

this character is not susceptible of settlement. Bowman v. Coffroth, 6 P. F. Smith, 19, was That is not the question here. Conceding the an action by an attorney to recover compensaright of settlement, the important question tion for his services before the department in arises whether a court of law will enforce a procuring the discharge of a drafted man. It contract by which an attorney at law under- was held that the contract was against public takes, for a contingent fee, to procure a settle- policy and void, whether the compensation for ment of such a criminal charge, and thus pre- the services was fixed or contingent. vent its coming into court.

Other cases might be cited were it necessary. The stifling of a prosecution for a criminal | Those referred to establish the principle that offense, even where it is a mere misdemeanor contracts which have for their subject-matter and of such a character as to be within the con- | any interference with the creation of laws, or trol of the parties, is not a proper subject of a their due enforcement, are against public policy, bargain for a fee. This is especially the case and therefore void. The law guards with jealwhere the crime is one which concerns publicousy every avenue to its courts of justice, and morals. It would lower the standard of the strikes down everything in the shape of a conprofession and impair its dignity and useful- | tract which may afford a temptation to interfere ness were the principle contended for by the de- / with its due administration. That the case in fendant to receive judicial sanction. Its mere hand comes within the principle referred to is statement implies an understanding that some too plain for argument. The defendant may means are to be used that are not professional. / have rendered some professional services to the Such contracts, if sustained, can not fail in many plaintiff' for which he would be entitled to cominstances to interfere seriously with the admin-1 pensation. But the contract which he sets up istration of public justice..

by way of defense to the note being void, as There is a line of authorities which do not against public policy, the learned judge comdiffer in this case from principle. Thus, it was mitted no error in directing a verdict for the held in Hatzfield v. Gulder, 7 Watts, 152, that plaintiff. This view of the case renders a dis"a contract founded upon a promise or engage-cussion of the remaining assignments of error ment to procure signatures and obtain a pardon unnecessary.

Judgment affirmed. from the Governor for one convicted of a criminal offense and sentenced to punishment is un DUNHAM & SHORTT V. KIRKPATRICK. lawful, and cannot be enforced by an action." It was said by HUSTON, J., in delivering the A grantor of land excepted and reserved from his grant, opinion of the court: “It is not necessary to

inter alia, "all minerals." say whether, after the whole transaction is ther after the whole transaction is | Held, that the exception did not include petroleum or

mineral oil. closed, a person who incidentally paid some postage, or who, under special circumstances,

Error to the Court of Common Pleas of Warren carried a petition, the signatures to which were | county. spontaneously made, may not receive his actual Trespass quare clausum fregit, by James Kirkexpense and daily pay. I would say, it must | patrick against C. Dunham and Alfred Shortt, be a very special case, however, to justify this. for entering upon and boring for petroleum oil But this is not such a case, and we do not wish upon the plaintiff's premises. to see advertisements that pardons will be ob- ' The following facts were agreed upon, in the tained at the lowest price, nor anything which nature of a case stated, for the opinion of the approaches to it; and generally, all contracts to court: By articles of agreement the plaintiff change the course of trials, or the effects of trials, purchased from E. G. Wood and others a tract whether to obtain a liberation of a prisoner by of land, and went into possession thereof. On money to the jailor, or to obtain a pardon by November 8, 1881, A. B. Butterfield and E. L. the use of money directly or indirectly, must be Butterfield, in whom the legal title of the origivoid." Yet it is admittedly lawful for a gov- nal vendors had become vested, conveyed the ernor to pardon and for a citizen to solicit a same land to the plaintiff in pursuance of the pardon in a proper way.

agreement, the purchase money having been For a similar reason this court held, in Clip paid in full. pinger v. Hepbaugh, 5 W. & S., 315, that a con Both the article of agreement and the deed tract with an attorney to procure, or endeavor contained the following clause: “Excepting to procure, the passage of an Act of the Legisla- and reserving all the timber suitable for sawing; ture is void, as being inconsistent with public also all minerals; also the right of way to take policy and the integrity of our political in- | off such timber and minerals.". stitutions.

| In February, 1881, the defendants entered

upon said land, erected a derrick and engine all these things, it is as extensive as the grant, house and drilled an oil well thereon, from and therefore void. If, then, anything at all is which they have continually taken oil up to the to be retained for the vendor, we must by some present time. They also cut a small amount of means limit the meaning of the word “mintimber. The defendants claimed by virtue of a erals.” But the rule by which this may be done lease for oil purposes from the said A. B. Butter- is well stated by Chief Justice Gibsox in the field and E. L. Butterfield, dated December 15, case of the Schuylkill Navigation Co. v. Moore, 1880.

2 Wharton, 477, as follows: "The best construcIf the court be of the opinion that by the tion is that which is made by viewing the subarticle of agreement and deed the petroleum oil, ject of the contract as the mass of mankind with the right to take it, was excepted or re-would view it; for," continues the learned chief served, then judgment to be entered for the justice, “it may be safely assumed that such plaintiff for $15, the value of the timber cut. If was the aspect in which the parties themselves the court be of opinion that the oil was not re- viewed it." So Mr. Justice KENNEDY, adopting served or excepted by the agreement and deed, this same rule in the case of Gibson v. Tyson, 5 then judgment to be entered for the plaintiff for Watts, 34, when construing an exception in a $772.76, with interest.

deed “of all mineral or magnesia of any kind," The court being of the opinion that the words says, that by the bulk of mankind nothing is "all minerals,” used in the exception and reser- considered as a mineral except such things as vation in the article of agreement and the deed, be of a mettallic nature, such as gold, silver, do not in common and ordinary meaning, in- copper, lead, etc., and that, in looking at the clude petroleum, entered judgment for the plain-deed before him, under the general understandtiff for $773.66.

ing, he would have hesitated about classing The defendant thereupon took this writ, as chromate of iron as a mineral, except that from signing for error the said judgment.

| the parol testimony it appeared the parties themFor plaintiffs in error, Messrs. Wm. M. Lind selves regarded it as a metallic ore of some kind. sey, R. Brown, Johnson and Parmlee.

But if a doubt was raised as to the popular classiContra, Messrs. Noyes and Wetmore.

| fication of the chromate of iron, a well-known

mineral, what shall we say of oil, which is reOpinion by GORDON, J. Filed October 2, 1882.

garded even by science and law as a mineral The reservation in the agreement of December only because of its inorganic character, or, as in 5, 1870, between Wood & Co, and Kirkpatrick, Stoughton's Appeal, 7 Norris, 198, because of its is of "all timber suitable for sawing, also all forming part of the freehold from which it is minerals." The defendants, who claim under taken? Certainly, in popular estimation, petroa lease from the vendors in the agreement above leum is not regarded as a mineral substance auy stated, contend that it is their right, under the more than is animal or vegetable oil, and it can, reservation, to enter upon and take from the indeed, only be so classified in the most general premises, in said agreement described, all the pe- or scientific sense. How, then, did the parties troleum or mineral oil that may be found therein. to the contract under consideration think and This contention can be sustained only under the write? as scientists? or as business men, using hypothesis that the word “minerals" in the the language and governed by the ideas of everyreservation includes petroleum. The court be-day life? low refused to sustain the interpretation put. As we have before observed, if this reservation upon the agreement by the defendants, and is to have a strictly scientific construction, it is entered judgment on the case stated for the as extensive as the grant; hence, works it own plaintiff. In this we think it was right. The destruction ;. on the other hand, if we adopt the whole argument used for the purpose of convinc- popular understanding, we cannot regard petroing us that this decision is not correct is based leum as a mineral. Moreover, we may be very on the allegation that petroleum is a mineral. sure that when Wood & Co, made their contract It is true that petroleum is a mineral; no dis- with Kirkpatrick, they did not intend to reserve cussion is needed to prove this fact. But salt the mineral oil that might afterwards be found and other waters impregnated or combined with in the land, otherwise that intention would mineral substances are minerals; so are rocks, have been expressed in no doubtful terms. They clays and sands; anything dug from mines or were doubtless at that time unaware of the char. quarries; in fine, all inorganic substances are acter of the property as oil territory. But if classed under the general name of minerals: they did entertain such an idea, and expected Bouv. L. Dic.; Wor. Dic.; Dana's Geology; to reserve oil under the general term “mineral," Grey's Botany. But if the reservation embraces / they were mistaken, and should have known

that they were using that word in a manner not think I may say both parties--the members of sanctioned by the common understanding of the building association and the treasurer, Goldmankind; hence, in a manner that could not beck-treated it exactly as if it had been money be approved by the courts of justice.

paid into the association by the members from The judgment is affirmed. whom it was due. In point of fact, however,

it was not paid by those members, and those HARMONY BUILDING ASSOCIATION v. tyo persons became insolvent about the time of GOLDBECK et al.

the annual meeting in 1878. Goldbeck, the

treasurer, found in doing this act of friendship, The minutes of a corporation are not the exclusive evi.

by paying these dues for the other members, or dence of what took place at a meeting of the stock in accounting as if they had been paid, charging holders. The action of the stockholders may be proved himself with the money, although he had not by parol evidence, where such proof is not in conflict

received it, he was likely to lose this money. with any recorded action, but merely to supply that which was omitted from the minutes.

He thought, and some others of the members of

the board of directors appear to have thought, Error to the Court of Common Pleas, No. 2,

that it was not fair, or that it was not right, nor of Philadelphia county.

kind in them to hold him liable for this money; The action was by a building association upon they thought that he ought not to be charged the official bond of its treasurer. The points of

with this loss by reason of his having done a contention in the case will appear by the charge friendly act. Therefore, in the month of Deof the court below (MITCHELL, J.):

cember, 1878, they passed a resolution refunding GENTLEMEN OF THE JURY:

this money to him, or at least directing orders You will understand the position of this case. should be drawn which should be a credit in The defendant, Mr. Goldbeck, was the treasurer, his hands; so that when they finally came to for a number of years, for the building associa- settle his accounts, and he should pay over the tion, which is now the plaintiff in this suit, and balance to his successor, it should be a credit. he gave in the year 1878 a bond for the faithful Now, these orders were not, in fact, signed by performance of his duties, and that bond was the president, as by the constitution and by-laws entered up in the court, and that bond was a they should have been, but nevertheless, they bond for security only, and did not determine are sufficient so far as the authority of the board how much, if anything, the treasurer owed the of directors goes, because they were drawn in association, and you are now proceeding to as- accordance with the resolution of the board of certain whether this defendant, as the treasurer, directors. owed the association anything. There is no After the meeting in 1879 the committee passed dispute about the correctness of his accounts, the account, and it was printed and laid upon with the exception of this one item of five the table for the members to see, as you have hundred and eighty-two dollars.

heard, at that meeting. After that meeting the Now, you will recollect the circumstances new treasurer, who had been elected in 1879, under which this arose. In stating the evidence came with his committee, examined the books on that point, I think I state what is undisputed of Goldbeck, the treasurer, ascertained the balby both parties. In August and September, ance, which was a very small one-of some 1878, John H. Goldbeck and George Berger, two twelve dollars or more-and it was paid over by stockholders in this building association, were the defendant, and a receipt taken. Now, so indebted to the association, Mr. Goldbeck in the far, gentlemen, as I have recalled the circumsum of $250, and Mr. Berger in the sum of $332, stances of this case, there is no dispute upon making the sum of $582. Now, this money, due either side, I believe. in August and September, 1878, was not paid to If this were between the ordinary debtor and the treasurer of this association, but as an act of creditor that would be an end of the case, befriendship was paid by the defendant, the treas-cause it would be a settlement with a knowledge urer of the association, on their account; that is of what were the rights of the parties, and it to say, Goldbeck, the defendant, did not actually would be final, conclusive and binding upon receive the money, but he put it into his ac- | both parties. But in this case the board of dicount-accounted for it, and when he came to rectors who passed this resolution were not the the annual meeting entered it upon his book as owners of the money; they were merely trustees, if it had been paid, and when the stockholders' they were agents, with the right to administer meeting in 1878 was held the amount was di- | the affairs of the association according to law, vided up and used in making up the estimate but with no right at all to give away the money, of the value of stock at that time; in short, I or pay back money which had once been re

ceived into the treasury of the association. So very familiar to those concerned in the adminfar, therefore, as the authority of the board of istration of justice, between what is called posidirectors to pass this resolution is concerned, it tive and negative testimony. It is very easy to was not a sufficient discharge, nor were the see, as a matter of common sense, that as a rule, orders drawn in pursuance of the order of the where witnesses are clear, honest, intelligent, board of directors a sufficient discharge to the de- conscientious-where one. man says he saw or fendant. But the stockholders of the association heard a thing, that his testimony is of more are the real owners of the money, and they weight than the testimony of four or five that might do as they pleased with their own money. | did not see or hear it. They may have been If they chose to do so, they could acquiesce or paying attention to something else, and the ratify the giving back of the money to the treas- thing may have happened without their notice. urer which he bad paid on what turned out But the plaintiffs have further the testimony of afterwards to be an unfortunate mistake, they another party; that is, of Mr. Schmidt, the had a right to do so. Therefore the only dis-president, which is in the category of positive puted point in this case, and one on which the testimony. Mr. Schmidt tells you he was the case will turn, is whether or not the stock-president; that he was at that meeting; that he holders in the meeting referred to adopted this took the chair before the business commenced, report or ratified the action of the board of di- and did not get out of the chair before the end rectors in giving Goldbeck a credit for these of the meeting. It was his duty, if any motion $582. That, I state, is the only question really was made to adopt the report, to put it to the for your determination in the case.

meeting, and he says no such motion was made, Now, unfortunately, on that question the evi- and no such motion was put by him. Then dence is very conflicting. You have heard upon there is in addition to that fact that the minutes the part of the defendant the testimony of several made up by the secretary, Muench, do not conpersons-himself and Mr. Seckinger, and others, tain any mention of this motion. as to this report which you have heard so much [Now I am not prepared to say to you, as the about. There is no doubt, as it is admitted by counsel has argued for the plaintiffs, that the all parties, that this report was printed, and a minutes are exclusive evidence of what took large number of copies were laid upon the table, | place. Mr. Muench, you will recollect, the secand that most of the stockholders saw it and retary, says that he wrote the minutes out himread it. Nearly every witness who was here self and that this action did take place, although said that he read it, and copy of it was taken it slipped his mind, and although for some reahome by him that night. In addition to that son he could not now explain, he failed to put Mr. Muench, the secretary, says be read it pub- it in the minutes. If that is so, then of course licly to the meeting, and that a motion was you must treat it as having taken place, although made that it be approved, and that motion was it does not appear in the minutes.) put and carried. Mr. Houseman, who acted as The presumption, however, is that the minutes assistant secretary on that occasion, was also are correct. They were read and approved withvery positive that the secretary read it to those out objection at the following meeting of the that were there, and he thinks that a motion was board of directors. The presumption is that made and carried, that the report be adopted. the minutes contain everything that was done. But as to that, however, he is not so positive. Now, gentlemen, the only question for you Now, gentlemen, if that was so; if the stock-in reference to the plaintiffs' right to recover holders at that meeting, on a motion that the this sum of money is, whether or not this report report which had been read be adopted or ap- was ratified or adopted at that meeting. As I proved, passed such a motion, that would be a bave said, unfortunately, the testimony is exratification by the stockholders, and no subse-tremely conflicting. It will be for you to say quent action could take away the rights of the which is the most accurate account of what took defendant; but on the other hand, you have place. the evidence of quite a number of witnesses, If you find that this report was approved or Mr. Rumberger, Mr. Kunz, Mr. Roller, Mr. adopted at that meeting then there is no dispute, Dessian, Mr. Steickes, Mr. Buchman and Mr. that in accordance with that report the defendKraft, that they were in attendance there; some ant afterwards settled his account and paid over of them during the whole evening, some of them his balance to the new treasurer. If that is so, during different parts of the evening, and that then he is discharged and owes the association tbey did not hear this report publicly read, and nothing. If, however, the stockholders did not that they did not hear any motion made. Then approve of it, then there is not sufficient authorcounsel have called your attention to a difference Iity for his retaining that credit, and he still

Court of Common Pleas, No. 2.

owes the association $582, which ought to be tofore set apart for the payment of the same, then the paid with interest from the time it was due.

said bailor shall be at liberty at any time afterwards, to

repossess itself of the said machine without any notice The verdict and judgment were for the de

or proceeding at law, and the said bailee agrees, peaceafendants below.

bly and promptly, to deliver up the same to the bailor, For plaintiff' in error, A. L. Hennershotz, Esq.

its successors or assigns, without any let or hindrance.

And it is agreed that all the money paid to the said Contra, A. T. Goldbeck, Esq.

bailor, for the use and hire of the machine, shall be re

tained by it. It is also hereby agreed that until the give PER CURIAM. Filed January 15, 1883.

ing of a bill of sale, and the payment of the sum of It is not essentially necessary that the consent money hereinafter provided for, the right of property

in the said sewing machine shall be and remain in the of the stockholders should have been recorded

said bailor, its successors and assigns, and the said bailee on the minutes of the association. Their assent

covenants not to injure said machine, or remove it from and ratification may be proved by parol.

the above mentioned residence, nor in any way part The proof was not in conflict with any re with its custody and possession, without the written corded action, but to supply that which was

consent of the bailor, its successors and assigns. It is

also hereby agreed that in the event of any legal proomitted. The action of the directors seems to

ceedings being instituted for the recovery of the monthly be within a reasonable exercise of their power. payments or hire, or any portion thereof, the said bailee

Judgment affirmed. doth hereby waive the benefit of any exemption law

exempting any property whatsoever from levy and sale under execution. And the said bailee agrees upon the faithful performance of all and singular the covenants and conditions of this agreement by the said bailee, and upon payment of the sum of fifty dollars to it, the said

bailor, to execute and deliver a bill of sale for said maTHE HOWE MACHINE COMPANY v. NANCY chine, and to transfer and set over the ownershlp of it to HIXENBAUGH et al.

the said bailee and her assigns.

And it is hereby declared and understood, that no

agreement, written or verbal, exists or has been made A married woman, by virtue of the Act of 29th Feb-modifying or altering the above in any particular. ruary, 1872, has power to make a contract for the

In witness whereof, the said parties have hereunto set conditional purchase of a sewing machine, and therein their hands and seals, the day and year aforesaid. to waive the benefit of the exemption law.


(Signed] Chas. C. EMMONS, Manager. (SEAL.] Question of law on award of arbitrators.

NANCY HIXENBAUGH, This was an action of covenant brought by Witness :

Per DARTER. (SEAL] the Howe Machine Company against Nancy (Signed] H. BERGHEIMER. Hixenbaugh and Isaac Hisenbaugh, her hus The case was referred, under special agreeband, for a number of the monthly installments ment, to referees without appeal, but with a due and payable under the provisions of the provision that the award should be subject to following contract:

exceptions for error in law. It was not contro- READ THIS BEFORE SIGNING IT.

verted on the trial that the contract was duly No agent is authorized to make any contract other than executed by Nancy Hisenbaugh. The referees that printed or written in this lease.

found in favor of the plaintiff and against Nancy Memorandum of Agreement, Made this 4th day of May, Hixenbaugh for the amount claimed. They 1880, between the Howe Machine Company (hereinafter

further ruled that Isaac Hixenbaugh was not styled the bailor), of Bridgeport, Connecticut, a corpora

liable; and that the amount of the award should tion duly created and existing by and under the law of the State of Connecticut, doing business in the city of be collected only iron

be collected only from the property of the said Pittsburgh, Pennsylvania, by and through Charles C. Nancy Hixenbaugh ; "and that the latter is not Emmons, its authorized agent, of the one part, and

entitled to the benefit of the three hundred dolMrs. Nancy Jane Hixenbaugh, residing at Allentown, Thirty-first ward (hereinafter styled the bailee), of the

lar exemption act, she having expressly waived other part.

same, as appears by said agreement." Witnesseth, That the said bailor does hereby deliver Nancy Hixenbaugh filed an exception to the into the said bailee, on hire, and on the terms and con

award “in so far as said award finds that she, ditions hereinafter mentioned, one Howe Sewing Machine, style, D. L. D. B., No. 1,124,724, valued at fifty

the defendant, is not entitled to the benefit of dollars, for the use and hire of which the said bailee the three hundred dollar exemption act.” hereby agrees to pay to the said bailor, at its office in

The case came before the court on the above the city of Pittsburgh, or to its authorized agent, the sum of (one) ten ($10) dollars on the execution of this

exception. agreement, and three dollars on the fourth day of every For plaintiff, S. W. Cunningham, Esq. month hereafter, until the sum of fifty dollars shall have

For defendants. Messrs. Slagle & Wiley. been paid to the said bailor, its successors or assigns, for the use and hire of the said machine. And in case de

Opinion by WHITE, J. Filed June 9, 1883. fault be made in the payment of any monthly sum, as above provided for, on the day and at the place herein. The defendant, a married woman, by agree

« AnteriorContinuar »