PENNSYLVANIA SUPREME COURT. Louis S. FISKE et al., Plffs. in Err., v. FIRST NATIONAL BANK of Butte, Mon tana. (......Pa.......) A letter from one expecting a consignment of goods for sale on commission to a bank, stating that the writer will honor the consignor's drafts with bill of lading attached, must be read in the light of a usage of trade known to both parties for the consignor to draw for an amount not exceeding three tourths of the value of the consigned goods, and will render the writer liable only for such amount. ERRO (March 17, 1890.) RROR to the Court of Common Pleas, No. 4, of Philadelphia County to review a judgment in favor of plaintiff in an action to recover the amount of certain drafts which plaintiff had cashed in reliance upon an alleged promise by defendants to honor them. Reversed. The case sufficiently appears in the opinion. Messrs. Frank P. Prichard and John G. Johnson for plaintiffs in error. Messrs. J. Levering Jones, Hampton L. Carson and Alfred I. Phillips, for defendant in error: A promise to accept a draft to be drawn in the future, describing it with reasonable certainty, is equivalent to an actual acceptance. ceptance was given on the sole faith and credit of the shipment. Craig v. Sibbett, 15 Pa. 238; Bockoven v. Bank, 11 W. N. C. 570. The words "with bill of lading attached," added to the acceptance, are intended to mark the transaction or serve some purpose between the drawer and acceptor, but do not concern the payee. Tassey v. Church, 4 Watts & S. 346; Merchants Bank v. Griswold, 72 N. Y. 472; Coffman v. Campbell, 87 Ill. 99: United States v Bank of Metropolis, 40 U. S. 15 Pet. 396 (10 L ed. 781). McCollum, J., delivered the opinion of the court: The defendants were engaged in the business of receiving and selling wool on commission, in the City of Philadelphia, and James R. Reid was a shipper of wool, doing business at Butte, Montana. On the 23d of May, 1887, the defendants wrote to the plaintiff as follows: "We expect to have some business with Mr. Jas. R. Reid when the wool season opens, in which case we will honor his drafts with bill lading attached.” On the 12th of August, 1887, the plaintiff cashed Reid's draft on the defendants for $4,007.80 with bill of lading attached for 22,285 lbs. of wool shipped by Reid to defendants at Philadelphia, and on the next day a like draft for $2,752.97 with a like bill of lading attached for 14,951 lbs. of wool. The defendants refused to honor these drafts, or to receive the wool described in the bills of lading attached, on the ground that Reid in drawing The payer of a draft is not bound to see that drafts for these amounts had exceeded his auan acceptor receives a consignment intended to thority. The drafts with the bills of lading cover the draft, although he knew that the ac-attached were returned to the plaintiff, and at Coolidge v. Payson, 15 U. S. 2 Wheat. 66 (4 L. ed. 185); Steman v. Harrison, 42 Pa. 49; Spaulding v. Andrews, 48 Pa. 411. NOTE.-Bill of exchange or draft; acceptance. The acceptance of a bill of exchange is the drawee's agreement to pay it when it falls due. Gallagher v. Nichols, 60 N. Y. 438; Ray v. Faulkner, 73 Ill. 469; Byles, Bills, 187; Chitty, Bills and Notes, 318; Bouvier, L. Dict. 64 Ala. 1; First Nat. Bank v. Clark, 61 Md. 401; Central Sav. Bank v. Richards, 109 Mass. 413; Coffman v. Campbell, 87 Ill. 98. An agreement on the part of a stranger to the bill to pay it at maturity if the drawee does not is an acceptance for honor or an acceptance supra It is a promise to pay it according to its terms. protest. 1 Randolph, Com. Paper, § 5: Jackson v. Bonnell v. Mawha, 37 N. J. L. 200. A promise to accept may be enforced as a valid contract. Mason v. Dousay, 35 Ill. 424; Bissell v. Lewis, 4 Mich. 450; Bank of Rutland v. Woodruff, 34 Vt. 89. An agreement for an acceptance is equivalent to an acceptance if it describes the bill particularly, and if the bill be taken on the faith of it. Coolidge v. Payson, 15 U. S. 2 Wheat. 66 (4 L. ed. 185); Payson v. Coolidge, 2 Gall. 233; Russell v. Wiggin, 2 Story, 213; Wildes v. Savage, 1 Story, 22; Read v. Marsh, 5 B. Mon. 8; Crowell v. Van Bibber, 18 La. Ann. 637; | Banorgee v. Hovey, 5 Mass. 11; Murdock v. Mills, 11 Met. 5; Goodrich v. De Forest, 15 Johns. 6; Burns v. Rowland, 40 Barb. 368; Bayard v. Lathy, 2 McLean, 462; Steman v. Harrison, 42 Pa. 49; Ulster Co. Bank v. McFarlan, 5 Hill, 432; Ontario Bank v. Worthington, 12 Wend. 593; Bank of Michigan v. Ely, 17 Wend. 508; Cassel v. Dows, 1 Blatchf. 335; Storer v. Logan, 9 Mass. 55; Jones v. Council Bluffs Branch Bank, 34 Ill. 313. Hudson, 2 Camp. 447; Byles, Bills, 190. See also Letters of credit. A letter requesting one person to make advances to a third person on the credit of the writer is a letter of credit. Mechanics Bank v. New York & N. H. R. Co. 4 Duer, 480, 13 N. Y. 599; Birckhead v. Brown, 5 Hill, 634; Story, Bills, § 459; 2 Daniel, Neg. Inst. 800. The liability of one who accepts or agrees to accept a bill is governed by the law of the place of acceptance. Boyce v. Edwards, 29 U. S. 4 Pet. 111 (7 L. ed. 799); Scudder v. Union Nat. Bank, 91 U. S. 406 (23 L. ed. 245). Compare Lonsdale v. Lafayette Bank, 18 Ohio, 126. See note to Hopps v. Savage (Md.) 1 L. R. A. 648. A letter promising payment of a bill amounts to Agreement to accept promise by telegram. Lindan acceptance (Wynne v. Raikes, 5 East, 514; or ley v. First Nat. Bank, 2 L. R. A. 709, 70 Iowa, a telegram. Whilden v. Merchants & P. Nat. Bank, | 629. Reid's instance the bills of lading were forwarded to Justice Bateman & Co., wool merchants in Philadelphia, who had them indorsed by the consignees, delivered them to the carrier, received the wool described in them and sold it in the market for its full value. The proceeds of this sale were received by the plain. tiff and were $1,430.82 less than the amount called for by the drafts. This action was brought to recover the difference. The rights of the parties depend on the proper construction of the defendants' letter. The plaintiff contends that it constituted an undertaking, on their part, to honor all drafts which Reid might draw upon them, with bill of lading attached, without regard to the value of the consignment. It is averred in the affidavit of defense that the plaintiff knew that the business referred to in this letter was the shipping of wool for sale on commission; that it was a usage of the trade for the shipper when he consigued the wool to his factor, to draw on the latter for any amount not exceeding three fourths of the value or selling price of the wool at the time of its arrival at the place of its destination, and for the factor to make advances on the wool by paying these drafts. It is further averred that it was understood by the plaintiff that the drafts to be honored by the defendants were to be honored on the security of the wool, bills of lading for which were attached to the drafts, and were not to exceed in amount the customary advances on such wool." A usage, if known to the parties to a transaction to which it relates, is obligatory, and, unless excluded by the terms of the contract, enters into and is regarded as a part of it, as much as though it had been written therein. Stultz v. Dickey, 5 Binn. 287; Hursh v. North, 40 Pa. 241. It is admissible to add incidents to a contract which are not inconsistent with its terms, and to ascertain the intention of the parties in reference to matters about which the contract is silent. Clarke's Browne, Usages and Customs, p. 167. The usage described in the affidavit is not unreasonable or in conflict with positive law. It does not contradict the terms of the instrument on which the plaintiff relies, but it explains them and gives effect to the intention of the parties. The letter of the defendants must be read in the light of the usage known to the parties and applicable to the transaction between them. When so read it is fatal to the plaintiff's claim for the overdraft. We think the affidavit presents a good defense to the action. Judgment reversed, and procedendo awarded. Patrick McCULLOUGH, Committee, etc., of Thomas J. McAneny, a Lunatic, Appt., V. every member who, through sickness or other disability, is unable to follow his usual business or some other occupation whereby he may earn a livelihood for himself and family, shall be entitled to certain benefits. (March 10, 1890.) APPEAL by plaintiff from a judgment of the Court of Common Pleas, No. 3, of Philadelphia County in favor of defendant upon a point of law reserved after verdict for plaintiff in an action to recover sick benefits alleged to have accrued by reason of membership in a mutual benefit association. Reversed. The case sufficiently appears in the opinion. Messrs. John F. Develin and W. Horace Hepburn, for appellant: Insanity has always been regarded as a disease and comes strictly within the meaning of the term "sickness;" when, therefore, by the laws of a society, benefits are promised on account of sickness, a member who has become insane is entitled to sick benefits. Burton v. Eyden, L. R. 8 Q. B. 295; Kelly v. Ancient Order of Hibernians, 9 Daly, 292; Niblack, Mut. Ben. Societies, § 173; Pellazzino v. St. Joseph's Society, 16 Cin. L. Bul. 27. Mr. Thomas R. Elcock, for appellee: A member of an incorporated beneficial society does not stand in the relation of a creditor to the society. St. Patrick's Beneficial Society v. McVey, 92 Pa. 510. If the benefits are not a debt, the committee of his estate cannot have an action for their recovery. Mitchell, J., delivered the opinion of the court: The jury have found for the plaintiff, and we must therefore assume that all the necessary facts were duly proved. This disposes of a considerable part of the argument for the appellee, and leaves open to us only the question of law involved in the point reserved, whether insanity is sickness or disability within the meaning of the contract. The operative words are contained in the fol lowing passages from the constitution and by laws of the Association: Const., art. 9. "Every member. . . who through sickness or other disability is unable to follow his usual business or some other occupation whereby he may earn a livelihood for himself and family shall be entitled to such sums (as weekly benefits) as the by-laws shall specify;" and By-Laws, art. 13, § 1: "Any member who after twelve months' membership, through sickness or disability is unable to follow his usual or some other business or occupation whatso ever, . . . shall receive," etc. We cannot regard the meaning of this language as at all doubtful. That insanity is a sickness in some senses of the word is beyond question, and such legal authorities as appear to have considered the question hold that it is sickness within the meaning of such charters EXPRESSMENS' MUTUAL BENEFIT AS- and articles of association as the defendants. SOCIATION of Pennsylvania. (..... Pa.......) The insanity of a member of a benefit society brings him within the provisions of its rule that Thus, in Burton v. Eyden, L. R. 8 Q. B. 295, an action against a "friendly society," the English designation of associations like the present appellee, the words of the by-law were, "during any sickness or accident that may be fall bim." Blackburn, J., said: "I am of opin ion that lunacy is sickness within the meaning of the rules of this society. . . . Insanity depends on the state of mind and body of the person. . . . It certainly seems to me that lunacy is a sickness affecting the health of the body in such a way as to prevent a man's ability of earning his livelihood. If it were not the intention to include it, the rules of the society should be framed so as expressly to exclude it;" and Quain, J., said further: "I am also of opinion that insanity is sickness within the society's rules The words entitling the member to relief are, "during any sickness or accident," except certain excluded cases, insanity not being one. In Kelly v. Ancient Order of Hibernians, 9 Daly, 292, Van Brunt, J., says: "Insanity has always been considered a disease, and comes strictly within the meaning of the term 'sick ness. And in Pellazzino v. St. Joseph's Society, 16 Cin. L. Bul. 27, it is assumed by Harmon, J., apparently without question by either party, that insanity entitles a member of such a society to sick benefits. But even if the extent of the word "sickness" were doubtful, the present case is relieved of all difficulty by the additional phrase "other disability." The purpose of the Association is defined by article 2 of the Constitution as the accumulation of a fund to enable the members APPEAL by defendants from an order of the Court of Common Pleas, No. 3, of Philadelphia County discharging a rule to open a judgment entered against them on a judgment note, and to let them into a defense. Reversed as to the female defendant. The facts sufficiently appear in the opinion. Mr. Thomas Diehl, for appellants: The bond of a married woman is void. Dorrance v. Scott, 3 Whart. 309; Sellers v. Heinbaugh, 9 Cent. Rep. 768, 117 Pa. 224. bind their separate property are exceptions Those cases which permit married women to to a general rule of sound policy, and ought to be strictly confined within the limits pre scribed. Schlosser's App. 58 Pa. 495. June 3, 1887, should be construed in accord"The Married Person's Property " of ance with the doctrine announced in the above case. Endlich, Married Women, § 101; Mahon v. Gormley, 24 Pa. 82; Huyler v Atwood, 26 N. Eq. 504; New England Nat. Bank v. Smith, 43 Conn. 327. Ringwalt v. Brindle, 59 Pa. 51; Com. v. Hoffman, 74 Pa. 111; Post v. Wallace, 110 Pa. 125. The record and pleadings must disclose a in the provisions of the Act, and, if not, the cause of action against a married woman withdefect is fatal, and the judgment entered will be reversed. "to assist each other in cases of accident, sickness or other distress, and their families in case of death." The common class of those who are expected to need the benefits is defined in article 9, as already said, as those who, through sickness or other disability, are unable to follow their usual or some other business whereby they may earn a livelihood for themselves and their families. To this class is added anThe record reveals no contract within the other in article 10, to wit: the families of mem-power of a married woman to make, and the bers who die, and members themselves whose judgment entered in the court below is irreguwives die. The latter are clearly examples of lar and void. that pecuniary distress which is enumerated in the Constitution among the ills which it is the object to relieve. But the main idea throughout is the assistance of those who are incapac itated for earning their living, and the condition that the incapacity shall be from "sickness or other disability" is as comprehensive as language could well make it. If insanity is not tin, 78 Pa., 58; Hecker v. Haak, 88 Pa. 242; Park v. Kleeber, 37 Pa. 254; Dearie v. Marsickness, it is certainly disability and clearly within the prescribed "condition for aid. Cer-Hoff v. Koerper, 103 Pa. 398; Gould v. McFall, tain excepted cases are specified, but not only 1 Cent. Rep. 853, 111 Pa. 67; Fenn v. Early, 4 is insanity not one of them, but all of those Cent. Rep. 288, 113 Pa. 268; Needham v. which are thus specified, such as want of Woolens, 14 W. N. C. 526; Baker v. Singer membership for twelve months, arrearages to Mfg. Co. 122 Pa. 370. the association, or sickness originating from intemperance, vicious or immoral conduct, either fail in some necessary requirement, or bear some taint of fault which takes them out of the category of the innocent unfortunate for whom the relief is intended. If any of these Williams v. King, 43 Conn. 6)-572; Battin exceptional facts were charged against the. Dillaye, 37 N. Y. 35; Tierne er v. Turnplaintiff, the verdict of the jury has settled quist, 85 N. Y. 521; Endlich, Married Women, them in his favor, and there is no reason shown § 131. why he should not have the relief to which, under the rules of the Association, his disability entitles him. Judgment reversed, and now judgment for plaintiff on the verdict. Clark, J., absent. Mr. John J. Ridgway, for appellees: Whenever the consideration goes into the married woman's actual or constructive possession the contract is a contract for the benefit of her estate. See note to Speier v. Opfer (Mich.) 2 L. R. A. 345. Paxson, Ch. J., delivered the opinion of the court: enlarging the powers of married women. The first section gives them the power of a feme sole as to the acquisition, ownership, possession, control, use or disposition of property of any kind in any trade or business in which they may engage, or for necessaries, and for the use, enjoyment and improvement of their separate estate, and to "make contracts of any kind, and to give obligations binding herself therefor." The only restriction upon the powers thus conferred is found in the proviso at the end of the section. It is as follows: "Provided, however, that a married woman shall have no power to mortgage or convey her real estate, unless her husband join in such mort This was an appeal from the order of the court below refusing to open a judgment entered by the Real Estate Investment Co. v. Oliver Roop and Fanny C. Roop, appellants, in the sum of $680. The said Fanny was the wife of the said Oliver Roop, but this does not appear on the face of the note upon which the judgment was entered. The petition which was filed in the court below is not printed in the paper book, hence we have no certain knowledge of the specific grounds upon which the judgment was asked to be opened, and we might well dismiss the case for this reason alone. We learn from the docket entries, how-gage or conveyance." ever, that the application was on behalf of both defendants, and from the agreements of counsel, (a) that the note was usurious; and (b) that the defendant, Fanny C. Roop, was a married woman, and as such, had no power to bind herself by a judgment note. As to the first proposition, the depositions show that only $500 was loaned to the defendants; but as the plaintiff concedes this, and also alleges that it was a loan with the judgment note as collateral, and that no more than the $500 with interest is claimed, there would seem no good reason why the court below should open the judgment and order an issue to try a fact which is not disputed. The second ground of relief is more serious. On behalf of Fanny C. Roop, it was contended "that, as the record of the judgment reveals no contract within the power of a married woman to make, it is irregular as to Fanny Roop and cannot stand." The judgment is entirely regular upon its face, as the record does not show that Fanny C. Roop is a married woman. The depositions do show it, however, and the fact is not denied. The plaintiff contends that under the Act of June 3, 1857 (Pub. Laws, 332), known as the "Married Person's Property Act," a married woman has the power generally of confessing judgments, and refers us to the third section of said Act as confirming it. Said section is as follows: "A married woman may make, execute and deliver leases of her property, real and personal, and assignments, transfers and sales of her separate personal property, and notes, bills, drafts, bonds or obligations of any kind, and appoint attorneys to act for her, and it shall not be necessary for her husband to be made a party thereto or joined therein." This language is certainly very broad, and is a part of the legislation, commencing in 1848, the object of which evidently is to emancipate married women from the restraints of the common law to a certain extent, and to enable them to act as a feme sole in respect of their property. It is not necessary for us to express an opinion of the wisdom of this legislation. We have followed the Legislature cautiously, and have, as was our duty, given effect to these Acts to the extent of their plainly expressed meaning; but it is so radical in its character, and so wide a departure from the common law, that we have been careful not to extend the force of any of these Acts by judicial construction. The Act of 1887 certainly does go very far in The second section declares that a married woman may bind herself by contracts relating to any trade or business in which she may engage, or for necessaries, and for the use and enjoyment of her separate estate, and may sue and be sued, etc., in all respects as if she were a feme sole; "provided, however, that nothing in this or the preceding section shall enable a married woman to become indorser, guarantor or security for another." Then follows the third section, which I have already quoted. It was contended that this section gives her the general power to contract, which would of course include the power to confess a judgment. If, however, it was intended to confer this broad power, and place a married woman on the same plane with a feme sole it could have been done in a few lines, declaring that hereafter a feme covert should have the same power to contract debts as a feme sole. For such a purpose it was unnecessary to frame an Act with seven sections. We do not think it was intended to confer a power to contract generally. Of what use would be the restriction, contained in the first section, that she shall have no power to mortgage or convey her real estate without her husband joining in such mortgage or conveyance, if she may bind her real estate by confessing a judgment for general purposes? The third section must be read in connection with the other sections and the Act considered as a whole. Viewed in this light, it unfetters a married woman, subject to the restrictions before mentioned, for three purposes, viz., (1) where she engages in trade or business; (2) in the management of her separate estate; and (3) for necessaries. For any of these purposes she may bind herself and her estate or business by her contract, and I have no doubt may lawfully confess a judgment. But beyond this we do not think the Act confers any power. It is entirely proper that the law should clothe her with sufficient power to properly manage her separate estate. And when it authorizes her to embark in business it is right that she should be held to her contracts, which can only be done by authorizing her to make such contracts. So in regard to necessaries. If she may purchase them she should be authorized to bind herself and her estate for them in the usual manner and by the usual forms by which contracts are made by persons sui juris. But we are not disposed to say that for every purpose she may make contracts and bind her estate generally, as may a 'feme sole. The Legislature must say so in language too clear to be misunderstood before | done so, and at certain seasons of the year the we will subject the estates of married women to such a peril as this. It was conceded that this judgment was given by a married woman. It was not pretended that it was done in the management of, or for the benefit of, her separate estate; or in the prosecution of any business in which she was engaged, or for necessaries. On the contrary, if not given as surety for her husband, it was given upon his importunity, and to aid him in his business, one of the very perils from which the law ought to protect a married wo man. The judgment, having been confirmed without authority, is void as to Fanny C. Roop. The order of the court below is reversed as to Fanny C. Roop, and the judgment against her is stricken from the record. Levi S. UPDEGROVE, Appt., v. PENNSYLVANIA SCHUYLKILL (....Pa.....) quantity became so great that it overspread the banks of the ditch and deposited earth and stone upon plaintiff's land and left the same boggy, wet and unfit for cultivation a large part of the year. Plaintiff presented his petition to the Court of Common Pleas of Chester County for a jury of view to assess the damages which he claimed by reason of this alleged appropriation of his land and the essential damages to his farm which resulted from this action of the Railroad Company. Viewers were appointed who reported adversely to his claim and he then appealed to the Court of Common Pleas. fendant admitted the injury, but claimed that no action would lie for the recovery of damages therefor by reason of a release which it had received from plaintiff at the time that it purchased from him its right of way. The court charged the jury in substance that this release would bar a recovery in that action and directed them to return a verdict for defendant. Plaintiff thereupon took this appeal. De The material portions of the release appear in the opinion. Messrs. J. Howard Jacobs, William M. Hayes and R. Jones Monaghan, for appellant: If the release in this case had been an absolute A release to a railroad company of a right deed of the land to the Railroad Company, to of way across certain land, with a further release be used by it for the construction of a railroad, of the company from all claims for damages by it is entirely clear that the action of the Railreason of the taking and using of the land for said road Company in diverting the surface water railroad, or by reason of the construction and which accumulated on the appellant's farm maintenance of the said railroad on and over said from its ordinary course, where, by the natural land, will bar the owner of the land from sub- declivity of the land, it was accustomed to flow, sequently recovering damages for the overflow-through artificial ditches constructed for that ing of his land by water by reason of the construction of a ditch and culvert by the railroad company in the particular manner for drainage purposes long after the original construction of the road. (February 24, 1890.) purpose, would render it liable to respond in damages for their injury to the appellant's lands. Ang. Watercourses, § 108 J; Kauffman v. Griesemer, 26 Pa. 407; Miller v. Laubach, 47 Pa. 154; Pennsylvania Coal Co. v. Sanderson, 4 Cent. Rep. 475, 113 Pa. 146; Huddleston v. APPEAL by plaintiff from a judgment of West Bellevue, 1 Cent. Rep. 861, 111 Pa. 110. the Court of Common Pleas of Chester County entered upon a verdict directed for defendant in proceedings arising upon an appeal by plaintiff from the report of a jury of view refusing to assess damages against defendant for the alleged taking and occupying of certain of plaintiff's land. Affirmed. With much greater force must this be true in the case in hand where their only right is that of a right of way for the construction and maintenance of a railroad. Pennsylvania S. V. R. Co. v. Walsh, 124 Pa. 544; Pennsylvania S. V. R. Co. v. Ziemer, Id. 571. No such contract as the one in question is ever understood or could lawfully be made to release one of the contracting parties from its acts of negligence or its wrongful injuries to the rights or property of the other. An express release to a carrier does not include acts of negligence. Plaintiff was and still is the owner of a farm in Chester County, Pa. In 1882 the defendant Company constructed its line of railroad across his farm so cutting the same as to leave about fifteen acres of land between the railroad and the Schuylkill Canal. The natural slope of the land was toward the canal. In 1888, nearly six years after the original construction of the 3 Wood, Railway Law, § 425; Am. Exp. Co. railroad. the Company dug a ditch on the v. Sands, 55 Pa. 140; Pennsylvania R. Co. v. upper side of its road-bed by which the natural Butler, 57 Pa. 337; Grogan v. Adams Exp. Co. drainage of the water was diverted from the 5 Cent. Rep. 298, 114 Pa. 528; Pennsylvania R. places where it had formerly been into other Co. v. Raiordon, 12 Cent. Rep. 177, 119 Pa. 581. and different places. The ditch was com- There have been an injury and destruction, as menced at the point nearly a half mile distant well as a taking of the appellant's land, by this from a point upon the land which the Com-action of the Railroad Company, which renders pany had obtained from plaintiff at which a it a trespasser subject to ouster, but appellant culvert was constructed under the railroad and may waive the trespass and proceed under the from which a ditch was run through plaintiff's Statute. land to the canal. By reason of this ditch large quantities of water were made to run over plaintiff's land which would not otherwise have McClinton v. Pittsburg, Ft. W. & C. R. Co. 66 Pa. 409; Delaware, L. & W. R. Co. v. Burson, 61 Pa. 369. |