ZIMMERMAN v. CITY OF YORK.

GREIMAN v. SAME.

(Supreme Court of Pennsylvania. July 19, 1893.)

Appeal from court of common pleas, York county.

Actions by John F. Zimmerman and Frederick Greiman against the city of York. Judgments for plaintiffs, and defendant appeals. Affirmed.

V. K. Keesey and Robert F. Gibson, City Sol., for appellants. W. F. Bay Stewart, Henry C. Niles, and George E. Neff, for appellees.

MITCHELL, J. By agreement of counsel, these cases, raising the same question as Devers v. City of York, 27 Atl. Rep. 247, are to be decided in the same way. For the reasons, therefore, expressed in the opinion filed herewith in that case, these judgments are affirmed.

(156 Pa. St. 384)

TIMMES v. METZ.

(Supreme Court of Pennsylvania. July 19,

1893.)

LANDLORD'S LIEN ENFORCEMENT AGAINST PROCEEDS OF EXECUTION SALE-WAGES OF EMPLOYES-NOTICE OF CLAIM.

1. Under Act June 16, 1836, providing that after sale under execution of goods and chattels on leased premises rent due the landlord shall first be paid from the proceeds, the landlord, in notifying the sheriff of his claim, is not required to state the amount due with absolute precision.

2. The execution creditor has no right to require the landlord to distrain on goods on the premises, under penalty, if he fail so to do, of their value being deducted from the amount claimed by him out of the proceeds of sale.

3. Under Act April 9, 1872, as amended by Act June 13, 1883, providing that wages due hotel clerks and servants shall be first paid from the proceeds of an execution sale, on their giving notice in writing of their claims, a notice is sufficient which sets out a levy on all the goods and chattels of the employer, his business of hotel keeping, the character of the labor and services, and when rendered, and that the claimant has a lien on the property in execution under the acts of assembly.

Appeal from court of common pleas, Northumberland county; E. R. Ikeler, Judge.

Fieri facias by Nicholas Timmes against Jesse G. Metz. From a decree distributing the proceeds of sale under the writ, said execution plaintiff appeals. Affirmed.

Jesse G. Metz became the lessee of the National Hotel, sometimes called Weaver's Hotel, in the borough of Shamokin. He did not have sufficient money to buy. He called on Nicholas Timmes, who loaned him the amount necessary, and gave his judgment exemption note, upon which, on the 15th day of February, 1892, the execution in question was issued. The sheriff made a levy February 17 and 24, 1892, on personal property found on premises, and advertised the same for sale. On the day of sale William M. Weaver, the landlord, gave notice to the sheriff that there was due him for rent the sum of $1,250, and demanded payment. Miss Ellen B. Weaver, a sister to Mrs Jesse G.

Metz, gave also a notice to the sheriff that certain personal property on the premises, and levied upon by the sheriff, belonged te her, which was appraised to be reasonably worth $410. She also gave a notice that she had been, and was at the time of the levy, a domestic in the employ of Jesse G. Metz, and claimed $121.29 for wages due her. David Griffith gave also a wages notice to the sheriff for $18. After Mr. Weaver gave notice that there was due him as landlord $1,250 for rent, Nicholas Timmes, the execution creditor, served a notice on Weaver to distrain the goods belonging to Alice E. Metz and Miss Ellen B. Weaver, and credit the same on account of rent, etc., which he refused to do.

P. A. Mahan, J. W. Gillespie and S. B. Boyer, for appellant. J. Q. Adams and William W. Ryon, for appellees.

THOMPSON, J. The fund arising from the sale under the execution in this case was claimed by the plaintiff in the writ, the landlord, whose tenant defendant was, and by several persons who were employed by him. Defendant was engaged in the hotel business, and for the hotel paid rent at the rate of $125 per month, but had paid no rent from May 1, 1891. There was actually due at the time of the levy $1,168.88. The sale under the execution was completed February 24, 1892, and at the expiration of that month there would have been due to the landlord rent to the amount of $1,250. He gave notice that this sum was the amount of rent in arrear and due him. As the month had not expired, this sum was $54.17 in excess of that actually due. His right to payment out of the fund to an amount not exceeding one year's rent is clearly fixed by the act of June 16, 1836, and the fact that by mistake or accident he gave notice of a small sum in excess of the amount then due should not destroy this right. The act requires no spe cific form of notice. It provides that the goods and chattels shall be liable for the payment of any sum of money due at the time of taking such goods in execution, and makes it the duty of the officer to pay out of the proceeds of the sale the rent due, limiting the amount to one year's rent. As the landlord is entitled to be paid from the proceeds of the sale, it is manifestly proper that he should give notice of his claim to the officer, but such notice is not necessarily required to contain every element of precision. The appellant himself recognizes the sufficient accuracy of this notice of the landlord. In his notice to him he says: "You notified the said sheriff in writing that the said defendant was indebted to you in the sum of $1,250 for rent accrued and unpaid by said defendant as tenant under you within one year immediately preceding said levy." This knowledge of the extent, nature, and character of the landlord's claim as derived by the ap

pellant himself from the landlord's notice is a negation of his claim of its insufficiency. In this notice of appellant to the landlord he says "that there was at and before the levy, and still is, upon the premises certain goods liable to distress; that they are claimed by certain persons; that unless he proceeds to distrain he will hold him liable to the value, and that it shall be deducted from the amount claimed by him out of the proceeds of the sale." As the landlord disregarded this notice, it was contended that the value of these goods should be deducted from his claim, and the court below was guilty of error in not doing so. This notice was served 12 days after the sale, and sufficient money had at that time been realized from it to pay the rent due. The landlord was entitled to be paid from such proceeds, and was under no obligation to proceed to distrain because requested by appellant, the execution creditor. In his argument he admits that there is no case to be found which warrants this claim, and seeks, however, refuge in the analogy where one creditor has two funds and another has one, the former is required to exhaust the one upon which the latter has no claim; but this analogy is not well founded when it is considered that in this case the one fund amply secured him, and there was no reason or necessity for seeking another. When the levy is made upon personal property, and the sheriff has notice of a claim for rent, he has no right to stay the writ without the consent of the landlord, because his right to distrain is interfered with by the levy. Borlin v. Com., 110 Pa. St. 454, 1 Atl. Rep. 404. With his rent thus secured and to be paid out of the proceeds of the sale, it would be anomalous to deprive him of it because he declined to do an unnecessary act at the request of an execution creditor. The position of the appellant has neither equity, authority, nor analogy to support it.

While this notice of the landlord was thus sufficient, such was also the case with those of the claimants for labor and services. They set forth that all the goods, chattels, rights, and credits of the defendant were under execution, the nature of the labor and services to defendant in his business of hotel keeping, that the time when the same was done or rendered was within six months, that the amount of each was not in excess of $200, and that the respective amounts were liens upon the property levied upon, made so by the acts of assembly relating to wages. The act of 1872 made its provisions applicable to miners, mechanics, laborers, etc., while the act of 1883, amendatory of it, increased to a very large extent the class to be protected, and included clerks and servants about hotels. After providing that the money due for labor and services shall be preferred and first

paid out of the proceeds, it is enacted that it shall be lawful for them, before the sale, to give to the officer executing the writ notice in writing of their claim or claims, and the amounts of the same. The limit of the period of work to be paid for is 6 months, and the amount $200. The purpose of these acts is to protect from loss, in case financial disaster occurs to employers, a large class of persons whose dependence upon their earnings for their support and maintenance renders their loss even for a short period of time a matter of serious import. With the struggle for livelihood intensified by the progressive movements of civilized life, such legislation necessarily has its foundation in a humanity that would aid the weak, and consequently should not be restricted in its operation by requiring the highest degree of precision in the notice to be given to secure its benefits. These notices, therefore, should be such as would indicate to the officer and those interested the sum due before sale, the limit of time as to work done, the business defined by the acts, and the property subject to the lien. Allison v. Johnson, 92 Pa. St. 316; Adamson's Appeal, 110 Pa. St. 462, 1 Atl. Rep. 327. As the notice in this case set forth a levy upon all the goods and chattels of defendant, his business of hotel keeping, the character of the labor and services, the times when they were done or rendered, and their lien upon the property in execution under the acts of assembly, it is manifest that they are sufficiently particular, and contain all the requisites of proper notices.

The further objection to the claim of Ellen Weaver, based upon the ground that there is no evidence of contract, cannot be sustained. Both she and defendant Metz testified that a contract was made for her employment, that she was to be paid what her services were worth, and that they were worth $3.50 per week. The auditor finds that she was employed by defendant, and that her services were worth that amount per week. The act of assembly, in its provision making the preference, provides "that all moneys that may be due or may hereafter become due for labor or services renered, [by persons named,] whether at so much per diem or otherwise," clearly was intended to reach all classes of employment. In this case the claimant was employed under an express promise to pay, and, having performed her work, and earned her wages, she is entitled to have them paid out of the fund. Moyer's Appeal, 112 Pa. St. 290, 3 Atl. Rep. 811; Ranninger's Appeal, 118 Pa. St. 20, 12 Atl. Rep. 511.

As the assignments of error are not sustained, the decree of the court below is affirmed, and this appeal is dismissed, at the cost of appellant.

(85 Me. 352)

PALMER v. BELL. (Supreme Judicial Court of Maine. March 22, 1893.)

DECEIT FALSE REPRESENTATIONS OF Vendor.

1. In order to sustain an action on the case for deceit in the sale of real or personal property, the deceit or fraud relied upon must relate distinctly and directly to the contract, and affect its very essence and substance, and it must be material to the contract.

2. If it is extrinsic and collateral to the contract, or relates to it only in a trivial and unimportant way, it affords no ground of action.

3. Thus, where the plaintiff purchased a farm of the defendant, and a right of way was expressly reserved in the deed, the plaintiff knowing of this right of way being upon the farm, and having his attention called to it, and the defendant, during the negotiations of purchase, stated to the plaintiff that there was no trouble whatever in regard to this right of way over the premises about to be purchased, held, that such statement did not constitute a legal cause of action, notwithstanding the same may have been false, and known to be false by the defendant.

4. Such statement related to matters entirely outside the deed, extrinsic and collateral to it, not affecting the title or quality of the land, or the essence or substance of the contract of conveyance, but rather to the conduct of the parties in the use of the right of way clearly defined in the deed.

(Official.)

Exceptions from supreme judicial court, Cumberland county.

Action by Daniel F. Palmer against Samuel Bell. Plaintiff had judgment, and defendant brings exceptions, and moves for a new trial. Exceptions sustained.

S. C. Strout and J. A. Waterman, for plaintiff. J. W. Symonds and L. B. Dennett, for defendant.

FOSTER, J. This is an action on the case to recover damages for alleged deceit in the sale of a farm by the defendant to the plaintiff. The case comes before us upon exceptions and motion for a new trial.

When the defendant purchased this farm, which he afterwards sold to the plaintiff, a right of way was reserved in the deed from what may now be termed the Clifford house and land to the main road leading from Portland to Gray. In the deed which the defendant received from his grantor, the way is specifically set out, and the rights of the parties fully defined. The defendant conveyed to the plaintiff; and in his deed, by express reference to the deed he had taken, precisely the same reservation as to this right of way was made.

The writ contains two counts, both based upon substantially the same alleged misrepresentation, that, being about to purchase the farm, the defendant, during the negotiations, stated to the plaintiff that there was not, and never had been, any trouble whatever between himself and Clifford in regard to this road.

At the trial it was claimed on the part of

the defense that if these representations were made by the defendant at the time with reference to the sale of the farm, and if it was proved that they were not true, still they did not constitute a legal cause of action.

But the judge in charging the jury, among other things, instructed them, in effect, that the statement made to the plaintiff by the defendant during the negotiations for the sale and purchase of the farm-that there was no trouble in regard to the right of way which Charles E. Clifford had over the premises about to be purchased-would, if proved to have been made, and to have been false, and known to be false by the defendant, be such a material misrepresentation as would sustain the plaintiff's action.

The only inquiry which we consider essential in deciding this case, upon the exceptions raised, is whether, assuming the misrepresentations to have been proved as stated, they constitute a legal cause of action against the defendant. We think they do not.

As

It is well settled that, to be actionable, the fraud or deceit relied upon must relate distinctly and directly to the contract, must affect its very essence and substance, and it must be material to the contract, for if it relates to another matter, or to this only in a trivial and unimportant way, or is wholly extrinsic and collateral, it affords no ground of action. 2 Pars. Cont. *769. To entitle a party to sustain an action for deceit on account of fraudulent misrepresentations, it must appear that the statements were made in relation to some fact or facts material to the subject-matter of the transaction. was said by this court in Long v. Woodman, 58 Me. 49: "It is not every misrepresentation relating to the subject-matter of the contract which will render it void, or enable the aggrieved party to maintain his action for deceit. It must be as to matters of fact, substantially affecting his interests, not as to matters of opinion, judgment, probability, or expectation." Hence, it is the well-recognized doctrine of the courts in this state and Massachusetts, if not in many others, repeatedly recognized and acted upon in relation both to real and personal property, that the statements of the vendor as to its value, or the price which he has given or been offered for it, are so commonly made by those having property to sell, in order to enhance its value, that any purchaser who confides in them is considered as too careless of his own interests to be entitled to relief, even if the statements are false, and intended to deceive. Medbury v. Watson, 6 Metc. (Mass.) 246, 259, 260; Manning v. Albee, 11 Allen, 520, 522; Hemmer v. Cooper, 8 Allen, 334; Brown v. Castles, 11 Cush. 348, 350; Long v. Woodman, 58 Me. 49, 52; Martin v. Jordan, 60 Me. 531, 533; State v. Paul, 69 Me. 215; Richardson v. Noble, 77 Me. 390, 392; Bourn v. Davis, 76 Me. 223, 225. With regard to

such statements, the maxim of "caveat emptor" applies, and they are to be received with great allowance and distrust. It is folly for the purchaser to rely upon such statements, in disregard to his own judgment and means of information. They do not fall within that class of representations upon which actions have been held to lie when made in relation to past or existent facts, material to the contract, and pertaining to the quantity, quality, or condition of the property, as in Martin v. Jordan, 60 Me. 531, where a fraudulent affirmation was made by the defendant to the plaintiff as to the quantity of hay cut the previous year; or Rhoda v. Annis, 75 Me. 17, in relation to the quantity of hay cut in previous years; or Ladd v. Putnam, 79 Me. 568, 12 Atl. Rep. 628, where the misrepresentations related to the boundary lines, the quantity of land, and the amount of annual products; or Atwood v. Chapman, 68 Me. 38, where misrepresentations were made in regard to the title to the land sold, a fact known to the seller, concealed from the purchaser, who had not equal means with the seller of ascertaining the fact, and not ascertainable by the use of ordinary diligence; and many other cases of like nature.

Even in cases where the misrepresentations are in reference to material facts affecting the value of the property, and not merely expressions of opinion or judgment, the law holds that the person to whom such representations are made has no right to rely upon them, if the facts are within his observation, or if he has equal means of knowing the truth, or by the use of reasonable diligence might have ascertained it, and is not induced to forego further inquiry, which he otherwise would have made. Gordon v. Parmelee, 2 Allen, 212, 214; Savage v. Stevens, 126 Mass. 207, 208; Rhoda v. Annis, 75 Me. 17, 27; Brown v. Leach, 107 Mass. 364; Parker v. Moulton, 114 Mass. 99; Veasey v. Doton, 3 Allen, 380; Bradbury v. Haines, 60 N. H. 123, 125; Bowles v. Round, 5 Ves. 509. "The common law affords to every one reasonable protection against fraud in dealing, but it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information." 2 Kent, Comm. *485.

In the case before us the alleged misrepresentation was not one upon which the purchaser had a right to rely. It did not relate to any fact material to the quantity, quality, or intrinsic value of the farm, or to the validity of its title. It related to matters not en:braced within the contract of conveyance, but, on the contrary, to the conduct of Clifford in his use of the right of way, which

was clearly defined by deed. The plaintiff had full knowledge of the provisions of the deed. The negotiations for the purchase of the farm were made when upon the farm, with the way then existing pointed out to the plaintiff. He looked the farm over, as he says, and saw this road, and was told how it came to be there. He was told by the defendant that if he purchased the farm the same reservations would be made as to this right of way which had been made to the defendant when he bought. There was no misunderstanding between the parties in reference to the precise character of this right of way, or its location upon the face of the earth. The misrepresentation relied upon by the plaintiff in support of this action has reference to matters entirely outside the deed, extrinsic and collateral to it, not affecting the title or quality of the land, or the essence and substance of the contract itself, but relating exclusively to the manner of living under the defendant's deed while he and Clifford were occupants of adjoining farms.

The statement that the defendant said there was no trouble about a right of way, and which is relied on as the gist of this action, was too vague and uncertain in its meaning to warrant the plaintiff to rely upon it. Its weight, when legally considered, can be no more than though the defendant had stated that Clifford was an amiable Juan, and a good neighbor, and would make no trouble in the use of the way. The statement can be considered no more than mere seller's statement, and furnishes no ground for an action for damages, any more than statements in regard to value, price paid, or offers received. They are, strictly speaking, gratis dicta,-mere affirmations of the vendor, on which the vendee cannot safely rely, -and will not excuse his own want of vigilance and care, in omitting to ascertain whether they are true or false, or what credit should be given to the assertions. As the case shows, no suit was pending in relation to this way; and any misrepresentations as to what may or may not happen in the future are merely promissory in their nature, and afford no legal cause of action. Long v. Woodman, supra. No reason is shown why the plaintiff might not have readily ascertained from Clifford the truth or falsity of the statement of which he complains.

With the view of the case which we have taken in reference to the alleged misrepresentation, it becomes unnecessary to consider the remaining exceptions, or the motion for new trial.

Exceptions sustained.

PETERS, C. J., and WALTON, LIBBEY, and HASKELL, JJ., concurred.

FOSTER, J. The appellant, a minor above the age of 14 years, nominated a guardian, in accordance with the provisions of Rev. St. c. 67, § 2. Upon hearing before the judge of probate the nomination was not approved, and thereupon he nominated and appointed Isaac D. Newman as guardian. From this decree an appeal was seasonably taken to the supreme court of probate, under Rev. St. c. 67, §§ 23, 24, the reasons of appeal being duly filed. On the second day of the term of the appellate court, Isaac D. Newman, by his attorney, appeared, and filed a motion to dismiss the appeal for the reason that no bond had been filed with the reasons of appeal. The court overruled the motion, and the adverse party excepted.

The only question to be settled, as the case is presented to us, is whether the appeal was properly taken, no bond having been filed.

We think it was.

It has been settled that a ward may appeal from a decree granting or refusing the guardianship over him. Lawless v. Reagan, 128 Mass. 592, 594.

Our statute in relation to the requirement of bonds by appellants in probate proceedings is based upon, and substantially the same as, the Massachusetts act of March 12, 1784, the fourth section of which provided that bonds should be given and filed in the probate office by the appellaut from any decree, order, etc., of the judge of probate, for the prosecution thereof, and for the payment of costs, etc. The provisions of that act were general, and no exception was made in favor of infants or insane persons. Yet the court of that state, in the earliest case reported in which that act was invoked, and objection raised, as in this case, that no bond had been filed, held that on an

appeal from a decree of the judge of probate in relation to the guardianship of a person non compos, on application to have the guardianship revoked, the applicant need not give bonds to prosecute the appeal. McDonald v. Morton, 1 Mass. 543. The reasons why no bonds are necessary in such cases are fully stated by the court in that

case.

An exception was incorporated into the statute in this state, (Rev. St. 1841, c. 105, § 26,) which expressly provided that "in case of any controversy between a supposed insane person or other person under guardianship, with his guardian, the supreme court may, at their discretion, sustain an appeal on the part of the ward, although no bond may have been executed, or filed, as aforesaid."

And our present statute (Rev. St. c. 63, § 24) is substantially like the foregoing, though more condensed, and in which is this exception: "But in case of controversy between a person under guardianship and his guardian, the supreme court may sustain an appeal on the part of the ward without such bond."

This statute is in the furtherance of justice, and is to receive a liberal construction. There can be no doubt that it was the intention of the legislature to relieve appellants who were incapable of contracting from the necessity of filing bonds in cases of appeals where the guardian was a party. If the reasons are correct why no bond should be required in the case of an insane person appealing under a statute general in its provisions in regard to the requirement of bonds, as was the case of McDonald v. Morton, supra, a fortiori the same reasons would apply in the case of an infant under a statute which excepts that class, and expressly provides that they need not furnish bonds.

The reasons given by the court in the case to which we have referred are pertinent to the case before us, notwithstanding the appointment was made by the probate judge, and an appeal taken therefrom. It falls within the spirit of the statute exception.