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that the trench or ditch was properly filled, and that the improper condition of the street on the morning of August 24th was caused

6. NEGLIGENCE (§ 121*)-BURDEN OF PROOF. The burden of proving negligence is upon plaintiff; it not being presumed. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228; Dec. Dig. by an unusual heavy rainfall that began at 121.*]

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SUFFICIENCY - PREThe verdict in a civil action should be for the party in whose favor the evidence preponder

ates.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dec. Dig. § 598.*] 8. DAMAGES (§ 103*)-MEASURE-INJURIES TO PROPERTY.

Plaintiff's measure of damages, in an action against a city for damage to property caused by a defective street, is such sum as will compensate him for the injury or destruction of his property, including any reasonable sum shown by the evidence to have been expended by him

incident to the accident.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 260-264; Dec. Dig. § 103.*]

Action by Stanley Schelich against the Mayor and Council of the City of Wilming

ton. Verdict for plaintiff.

JJ.

Argued before CONRAD and HASTINGS,

David J. Reinhardt, for plaintiff. W. Brady, City Sol., for defendant.

5 o'clock in the afternoon of August 23d. The corporation defendant, by its agents, had control of all of the streets of the city of Wilmington, and was bound to exercise due and reasonable care and diligence to keep the same in such condition as to be safe for persons driving or walking along the same. The care and diligence required of the defendant is reasonable care and diligence, proportioned to the danger or mischief liable to ensue from such omission; and if the traveler, exercising due care, does not see or know that the street is in a dangerous condition, he has a right to assume that the defendant has done its duty, and that the street is in a safe and passable condition for travel. Where the obstruction in the

street was not caused by one of the agents of

the defendant, such as the board of water held liable unless the plaintiff shows that it commissioners of Wilmington, it cannot be had actual notice, or by the exercise of reaJohn sonable care and caution should have had notice; but, if it is shown that the obstruction complained of was caused by one of the defendant's own agents, no notice whatever is required. The contention here is whether the trench or ditch was properly, and not carelessly, filled by the agents of the defendant. This is for your consideration, and in coming to your conclusion you are to determine whether the defendant corporation did its work in a careful and prudent manner.

HASTINGS, J. (charging the jury). This is an action by the plaintiff, Stanley Schelich, against the defendant, the mayor and council of Wilmington, a municipal corporation of this state, for the loss and injury to certain property, alleged to have been occasioned by the negligence of the defendant. It is conceded that Claymont street, where the accident occurred, was at that time a public street of the city of Wilmington, and it appears from the evidence that while the plaintiff in the early morning, and before daylight, of August 24, 1909, was driving along said public street, near Peach street, in a delivery wagon drawn by two horses, that the said horses and wagon fell or sank into a trench or ditch, and that the property of the plaintiff was injured thereby.

In so determining, if you are satisfied that the defendant corporation had notice of the condition of the street with respect to drainage before the trench or ditch was dug, you should take such condition into consideration, and you should also bear in mind its duty to the public, as we have just stated it to you. If the bad condition of the street where the accident occurred was caused by an extraordinary rainfall, which the defendant by the use of reasonable care and caution could not foresee, then the plaintiff cannot recover, because the damage in that event resulted from an act of God, and not from the negligence of the defendant. Negligence is not presumed, and the burden of proving it is upon the plaintiff.

The plaintiff contends that the trench or ditch was caused to be excavated by one of the agents of the defendant, to wit, the board of water commissioners of the city of Wilmington, and that the defendant was negligent in filling said trench or ditch with earth, mud, and ashes, and leaving said materials loose, and not properly rammed or packed, The verdict should be for that party in so that when the same was covered with whose favor is the preponderance or greater surface or drainage water the street became weight of the evidence. If your verdict unsafe and dangerous, and would not support should be for the plaintiff, it should be for horses and wagons traveling thereon. The such sum as will compensate him for the inplaintiff contends, further, that the defend-jury or destruction of his property, includant permitted the said street to remain in an ing therein such reasonable sum as he may unsafe and dangerous condition, without have expended incident to such accident, as proper warning or safeguards to notify trav- the same may appear from the evidence. elers of the existence of said trench or ditch. The defendant contends, on the other hand, Verdict for plaintiff for $336.08.

principal upon the bond, the successful bid

ÆTNA INDEMNITY CO. et al. v. GEORGE der, the Southern Construction Company." A. FULLER CO.

(Court of Appeals of Maryland. Nov. 16, 1909.) 1. PRINCIPAL AND SURETY (§ 160*)—EVIDENCE AS TO SURETY'S DEFENSE OF FRAUD.

In a suit on a contractor's bond, defended by the surety on the ground that it was obtained by fraud, evidence of statements by the obligee to the surety as to the responsibility of other bidders is irrelevant, in the absence of proof of their falsity.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 436, 437; Dec. Dig. § 160.*]

2. EVIDENCE (§ 75*)-PRESUMPTIONS-FAILURE TO PRODUCE EVIDENCE.

No presumption arises against a party from the nonproduction of evidence to rebut what has not been testified to for the adverse party. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 95; Dec. Dig. § 75.*] 3. CONTRACTS (§ 306*) OTHER PARTY.

PERFORMANCE - BY

Where the surety on a contractor's bond was notified of his default, and failed for more than a week to elect to perform the contract, the surety was given a reasonable time to act, and the obligee could complete the work. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 1528; Dec. Dig. § 306.*] 4. EVIDENCE (§ 23*)-JUDICIAL NOTICE.

It is common knowledge that in all cities and large towns the post office is open for general delivery at certain hours on Sundays, and that there is one delivery by carriers on holidays. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 29; Dec. Dig. § 23.*]

"To be officially reported."

On motion for reargument. Motion denied.
For former opinion, see 73 Atl. 738.

PEARCE, J. A motion for reargument has been filed in this case, accompanied by an elaborate brief in support of the motion, and careful consideration has been given it by each of the judges who sat in the case, without, however, convincing the court of any error in the views expressed in the opinion heretofore filed.

The reasons for adherence to these views will be briefly stated. The eleventh plea of the Etna Indemnity Company alleged that the bond sued on "was obtained by the fraud and misrepresentation of the plaintiff," and the chief burden of complaint in the brief for reargument relates to the action of the court upon the issue raised by the traverse of that plea. The Indemnity Company attempted to show three alleged misrepresentations made by Witherspoon, the agent of the plaintiff, prior to the giving of the bond, to induce the Indemnity Company to become surety for it. These are thus stated in the brief for reargument: "(a) That the Fuller Company would finance the whole work; (b) that there would, therefore, be no financial risk to the surety; (c) that bids of three other responsible bidders had been submitted, which were within $2,000 of the contract price agreed on between the plaintiff and the

The brief concedes that, the first two representations ("a" and "b") having been ruled out of the case by the granting of the plaintiff's eighth prayer, by which the jury was instructed that "they were not such representations, even if made, as constitute a defense to this action," and this ruling having been sustained on appeal, they need not be further considered.

The evidence offered and admitted, as to the bids, was as follows: Hunter, the Etna's general agent, testified that: "Witherspoon told him there were four companies who bid on this job, and their bids were within $2,000 of each other, and the Southern Construction Company was one of those bidders, or their bid was one of them." He was then asked "How about the responsibility of the other bidders?" and the court sustained an

objection, remarking that it was leading. He was then further asked, "Did Witherspoon make any statement to you as to the responsibility of the other bidders?" and an objection to this was also sustained. Hunter also testified "I do not recall any other representation at that time." Purnell, treasurer of the Southern Construction Company, testified: "Witherspoon told Hunter, Ward, and myself that there were four bids within $2,000 of each other on the work on the Friedenwald Building, including the Southern Construction Company's." He was not asked whether any statement was made as to the responsibility of these bidders. Ward, president of the Southern Construction Company, testified: "There were several other bids than that of the Southern for the work covered by its contract. There were the Baltimore Ferro Concrete Company, the Filbert Paving Company, and several others whose names I cannot remember. These bids were received by the Fuller Company, and I had no way of seeing them, but was told by Mr. Witherspoon that the figures were lower than mine and those of my company." This witness was not asked whether there was any representation as to the responsibility of the other bidders.

At no time until after the above testimony for defendant was given were these alleged representations mentioned by the Ætna's counsel in Witherspoon's examination. But at the close of the testimony for defendant Witherspoon was called in rebuttal, and denied that he made any of the representations testified to by Hunter prior to the execution of the bond in suit. Purnell was called in surrebuttal, and said that Witherspoon did make them to Hunter in the presence of Ward and himself. If Witherspoon's denial that he made any of the representations alleged by Hunter was true, it went to the very root of the defense of fraud in procuring the bond. But even if he had made the

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

the subject-matter of rebuttal. If any unfavorable inference is to be drawn from the nonproduction of pertinent evidence in this case, it could be most properly drawn against the Etna Company for its failure to call the parties whose evidence as to their bids would have been the best obtainable, and by whom, if the alleged representations were false, their falsity could have been clearly proved. What was said in the opinion heretofore filed, as to the situation if this were an action of deceit, might have been omitted without affecting in any way the correctness of the ruling on the fourth, fifth, and sixth exceptions, or on the instructions. Without proof that the alleged representations were false, the mere fact that they were made is without any probative force upon that issue, or any other issue in the case, and the testimony there excluded was therefore properly characterized as irrelevant to the issues.

representations so testified to, that alone nell, and Ward, nor in rebuttal to go beyond would neither prove, nor tend to prove, fraud inducing the Etna Company to execute the bond in suit. To constitute a defense on that ground, it was necessary to show either (1) that no bids from other parties were received; or (2) that if such were received, they were not within $2,000 of each other; or (3) that if received, and within $2,000 of each other, Witherspoon represented these bidders to be financially responsible, when he knew they were not, or had no knowledge whatever upon that point. There was not a particle of proof upon any one of the three matters above mentioned, nor even an offer to follow up the testimony of Hunter. Purnell, and Ward as to the making by Witherspoon of the representation that such bids had been received, by proof of any one of the three matters above. If the representations they allege to have been made were not made, the defense of fraud falls to the ground, and, if made, the defense equally falls, in the absence of clear proof that they were false in fact. In the absence of such proof the representations that there were such bidders had no probative force under the plea in question, and had no legal relevancy to that issue.

We can perceive no conflict between the present case and the cases cited in the brief. Casualty Co. v. Gehrmann, 96 Md. 634, 54 Atl. 678; Bankers' Life Ins. Co. v. Miller, 100 Md. 1, 59 Atl. 116; Dulany v. Fidelity Co., 106 Md. 17, 66 Atl. 614; Mutual Life Ins. Co. v. Mullan, 107 Md. 457, 69 Atl. 385; and Same v. Rain, 108 Md. 353, 70 Atl. 87. In all those cases there was proof offered and admitted of the falsity of material representations relied on as inducing the contract. Here there was none offered.

Turning to the instructions commented on in the brief, being the plaintiff's first prayer, and the Etna's sixteenth prayer as modified by the court, no ground for reversal can be found in either. Both gave the Ætna Company more than it was entitled to, because both allowed the jury to find for the defendant, the Etna Company, if the alleged representations were untrue, when, as we have shown, there was no evidence offered of their untruth.

It must not be forgotten that these alleged representations were made to Hunter in the presence of Ward and Purnell; that Hunter said he could not say whether Witherspoon gave him the names of any other bidders, though he may have done so; nor that Ward said he named the Baltimore Ferro Concrete Company, the Filbert Paving Company, and several others whose names he could not then remember. The Etna Company could thus have informed itself, before the execution of the bond, whether the parties so named were bidders, and at what figures, and could have taken the usual and ordinary means of ascertaining their financial responsibility. Whether it did so does not appear, but it does appear that its counsel failed to call any of these parties as witnesses to prove the charge of fraud, and this failure is deeply significant that, if called, they could not have sustained the charge. It must be observed, also, that Witherspoon nowhere was asked what other bids he received, but merely whether he made the statements testified to by IIunter, and his denial of these stateRegarding the question of reasonable time ments throws no light upon the question, not for the Etna to act, the record shows that on raised anywhere in the record, as to whether August 23d the plaintiff, by letter, notified any other bids were in fact received. If the Etna Company that a bill had been filed he had, in rebuttal, attempted to prove that by a fireproofing company against the Conother bids were received, it is at least ques- struction Company, alleging its insolvency tionable whether he could have done so, and and asking for a receiver. On August 24th he was certainly not called on to deny what plaintiff wrote the Etna Company that the had not been testified to for the defendant. Southern had stopped work on the contract, Hence the reference in the brief for reargu- and that plaintiff was informed the Southern ment to the case of Hiss v. Weik, 78 Md. would consent to a receivership and be 139, 28 Atl. 400, is not in point. Witherspoon wound up. On August 29th plaintiff again could not be expected in testifying for plain- wrote, stating a receiver had been appointed, tiff, either in chief or on cross-examination, and that the Southern had answered, con

If the plaintiff had offered a prayer that there was no evidence legally sufficient to support the allegations of the Etna's eleventh plea, and that their verdict, therefore, upon the issues raised on that plea should be for the plaintiff as against the Etna Company, that issue might well have been thus disposed of.

that no reply had been received to any of these letters, and that it was imperative for the protection of the interests of the Etna that some action be taken at once. On September 1st plaintiff again wrote, stating no reply had yet been received to any of these letters; that plaintiff assumed from this silence that the Etna did not deem it to their advantage to perform the contract or sublet, and that, in order to keep the damages down as low as possible, the plaintiff would, on Tuesday, September 4th, get to work, holding them responsible on the bond. If the last letter had never been written, we are of opinion that reasonable notice had been given

for the Etna to act.

There was evidence that Monday, September 3d, was Labor Day, but there was no evidence that there was no delivery of letters in New York either on Sunday or on Labor Day, as is assumed in the brief. To the contrary, it is common knowledge that in all cities and large towns the post office is open for general delivery at certain stated hours on Sundays, and that there is one delivery by carriers on holidays. Neither is there any evidence, as is also assumed in the brief, that the Etna's office would not be open or Labor Day for the receipt of mail matter, or that no Sunday call would be made at the post office for that purpose, and it may well be regarded as surprising that a corporation engaged in so large and hazardous a business should make no such provision, especially in view of the repeated warnings from plaintiff in the letters of August 23d, 24th, and 29th of the necessity of prompt action for the protection of their own

interests as sureties on the bond.

In conclusion, we are of opinion that no injustice has been done in the disposition of this case, and that a reargument was prop

erly denied.

GOCHNAUER v. UNION TRUST CO. (Supreme Court of Pennsylvania. Oct. 11, 1909.)

it, had delivered the deed for the stock which had proved to be worthless.

Cent. Dig. 88 17, 20; Dec. Dig. § 14.*]

[Ed. Note. For other cases, see Escrows,

Appeal from Court of Common Pleas, Philadelphia County.

Action by George C. Gochnauer against the Union Trust Company. From an order refusing to take off a nonsuit, plaintiff appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

R. W. Woods, and L. M. Schoch, for appellant. James Collins Jones, for appellee.

BROWN, J. On February 28, 1901, the appellant gave to Newton Jackson a written option to purchase his mill, situated in Cumberland county, subject to a mortgage of $3,500. Jackson was the promoter of an enterprise for the consolidation of a number of mills in eastern Pennsylvania. By the terms of the option the appellant agreed to execute a deed to him, or to a corporation to be designated by him, and to accept as payment for his property $10,500 in 6 per cent. preferred stock of the Eastern Milling & Export Company, or such other company as might be organized by Jackson to acquire the said property, and, in addition, $10,500 in common stock of such company. The option provided that the deed should be deposited in escrow with the Union Trust Company of Philadelphia on or before March 15, 1901, and, upon Jackson's delivery to the appellant deed was to be recorded in the office for the of the said preferred and common stock, the recording of deeds at Carlisle, and the mill was to become the property of Jackson, or of option further provided: That the preferred some company to be designated by him. The stock issued by the Eastern Milling & Export Company should be limited to such an amount as might be necessary to purchase milling properties; that no preferred stock should be issued for profit to any attorney, underwriter, promoter, or trust company; that Jackson or the purchasing company

ESCROWS ( 14*)-WRONGFUL DELIVERY BY should pay to the appellant cash for his stock DEPOSITARY-LIABILITY.

of grain, flour, and feed on hand at the time of the transfer; and that if Jackson should fail to comply with the terms and conditions of the option, as above set forth, on or before June 1, 1901, the said trust company was to return the deed to the appellant. He exe

Plaintiff, a millowner, gave to a promoter an option to purchase the mill for stock of the company proposed to be organized; the promoter to pay plaintiff cash for his stock of grain, flour, and feed in the mill. Subsequently plaintiff deposited a deed for the mill with defendant trust company, in escrow, to be delivered on receipt of the stock of the new com-cuted a deed for his property to one Murphy. pany. After the stock had been delivered to a grantee substituted with his consent, and him, and he knew that promises of the pro- took it to the trust company, with a receipt moter had not been fulfilled, plaintiff sold his grain to the new company and received cash for the same prepared by his attorney, settherefor. Held that, having availed himself of ting forth certain terms and conditions in adone of the terms of the option after knowledge dition to those appearing in the option under that the promises of the promoter had not been which the deed was to be deposited in esfulfilled, plaintiff could not complain, in an action against defendant, that such promises had crow. The president of the trust company renot been fulfilled, and that defendant, knowing fused to sign this receipt, but gave one in

upon the trust company in connection with the issuing of the stock of the Eastern Milling & Export Company, or to supervise in any manner the management of its finances. The duty of the trust company was to hand over the deed whenever the appellant received the stock which he had agreed to take for his property. There was no at

given to him had not been regularly issued; but, whether it had been or not, it was his duty to see that it had been so issued at the time he accepted it. His acceptance ended the escrow tested by the written option.

the following form: "No. 1901. Received of George C. Gochnauer, depositor, deed dated March 25, 1901, from George C. Gochnauer and wife to Joseph C. Murphy for property situated in Monroe township, Cumberland county, Pa., to be held in escrow under terms of agreement dated February 28, 1901, between the depositor and Newton Jackson. The Union Trust Company." Hav-tempt to prove that the stock which was ing been notified that the stock which he had agreed to take for his property was ready for him, the appellant accepted the same on May 15, 1901, and surrendered the receipt which had been given to him by the trust company. The enterprise which Jackson had undertaken to promote met the common fate of most of such ventures, and the appellant in time became dissatisfied with the stock which he had taken in exchange for his property. Having ultimately found it to be worthless, he brought this suit against the Union Trust Company to recover $10,500, the supposed cash value of the stock at the time he accepted it. Ilis allegation is that his loss is due to the failure of the trust company to perform its duty to him. In support of his claim, he insists: That certain promises were made to him by Jackson as the inducements to him to give the option; that these promises were that there would be placed on the consolidated mills a mortgage securing bonds, the proceeds of which would be used solely for working capital; that, whenever it might become necessary to furnish money to pay off the indebtedness on mills, Jackson and those interested with him would furnish the money and take preferred and common stock in place of the millowners, that the scheme of consolidation might not be interfered with; that the deeds for all of the properties would be deposited in a trust company which would hold the same until Jack-of one of the terms of the option, and, in son and those interested with him would carry out their part of the plan, in which event the deeds would be delivered and recorded, but, if the plan was not carried out, they would be returned to the owners; that the foregoing promises, which did not appear in the option, were made known to the president of the trust company at the time the deed was deposited with it in escrow, and he agreed, on behalf of the company, that they should be performed.

At a meeting of the stockholders of the Eastern Milling & Export Company held in July, 1901-early in July is the time fixed by the appellant-he heard from a written report read by C. L. Harper, a director of the company and the president of the Union Trust Company, the appellee, that the promises of Jackson, which had induced the execution of the option, had not been kept. The learned trial judge was of opinion that there was proof of a failure on the part of the appellee to keep its promise to have Jackson's agreements carried out, and that, but for what the appellant did after he learned that this promise had not been kept, the question of the appellee's liability would be for the jury. We express no opinion as to the sufficiency of any legal proof of any duty imposed upon the appellee to the appellant which it failed to perform, but are of one mind that, for the reason given for entering the nonsuit, it cannot be taken off. full knowledge obtained by the appellant in the early part of July, 1901, that the appellee had not done what he alleges it had agreed to do as a protection to him, on the last day of that month he availed himself

With

doing so, affirmed the delivery of the deed to the Eastern Milling & Export Company and estopped himself from thereafter questioning the performance of any duty to him on the part of the appellee. Jackson or the milling company was to pay him the cost value for his stock of grain, flour, and feed on hand at the time of the transfer. On July 31, 1901-nearly a month after he knew the matters of which he now complains-he sold, in accordance with the terms of his contract with Jackson, his stock of grain on hand to the milling company and received the money for it from the funds of that company. Instead of repudiating his contract with Jackson and insisting upon the return of his property or the payment of its value, he re

The appellant admits that when he took the deed to the trust company he had with him a receipt prepared by his attorney, which set forth terms and conditions in addition to those in the option, upon which the trust company was to accept the deed in escrow. These differed materially from those appear-affirmed the agreement under which his deed ing in the option, and the president of the had passed and tacitly approved all that trust company not only refused to sign the had been done. He evidently thought that receipt, but declined to give one in any other the combination of the mills would still prove form than the one which the appellant ac- to be a financial success, making his stock cepted. It recites that the deed would be valuable, and when, two years later, bankheld in escrow under the terms of the agree- ruptcy overtook it, and disappointment came ment with Jackson of February 28, 1901. to him, his loss resulted from the risk that

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