The announcement to which reference is made, however, contains no mention of the existence of a corporation, and we are at a loss to see how any one could have been led by it to believe that the Item Publishing Company was necessarily a corporation. Referring to the evidence, it appears that at the time of the trials Hildebrand Fitzgerald was dead. Harrington Fitzgerald was present at the trials, and apparently was active in the defense. He testified that no such corporation as was in question was in existence, and he cannot now, therefore, be held to be estopped by anything which he said in this respect at the trials; the result of those trials can only be regarded as establishing the existence of a corporation de facto. It would appear, therefore, that the court below erred in concluding upon any ground that defendants were estopped from denying liability for their stock subscriptions. [4, 5] It is argued on behalf of the appellant, Frances L. Fitzgerald, executrix, that defendants were estopped, not from denying liability on their stock subscriptions, but from denying liability as executors, or individuals, and partners. This argument seems to be based on the assumption that plaintiffs were "misled into the belief" that defendants were incorporated. No testimony is pointed out which indicates that they were so misled, and we do not find any such evidence in the record, unless it be in the fact, which is conceded, that the defendants printed in their newspaper a notice that all communications should be addressed to the Item Publishing Company; but, as we have said, there was no statement in this notice that the company was a corporation, and the notice was not in itself inconsistent with the fact that the concern was conducted as a partnership. The plain requirement of the act of 1874 is that the certificate of incorporation shall be recorded in the recorder's office in the county where the business is to be carried on. If the record in that office had been examined in behalf of plaintiffs before commencing suit, it would have readily appeared whether or not such a corporation as the "Item Publishing Company" was in existence. Such an examination would have shown that an essential statutory requisite to the existence of such a corporation had been omitted, in that no certificate of its incorporation had been recorded, and it would follow that the subscribers to the stock were not liable on their subscriptions. If they were carrying on the business as a corporation de facto, they would be liable as partners (Guckert v. Hacke, 159 Pa. 303, 28 Atl. 249); but they were not sued as such, and no service of process was made upon them individually. individually. In Hill v. Epley, 31 Pa. 331, 333, a leading case on the subject of estoppel, Mr. Justice Strong said: "The doctrine of equitable estoppel by matter in pais has doubtless been greatly extended by the courts in modern times; yet it is not entirely without limits, and it professes to be founded upon the principles of natural justice. The general principle * * is that, where the conduct of the party has been such as to induce action by another, he shall be precluded from afterwards asserting, to the prejudice of that other, the contrary [fact] of that of which his conduct has induced the bethat it would be a fraud in a party to assert lief. The primary ground of the doctrine is what his previous conduct had denied, when on the faith of that denial others have acted. The element of fraud is essential, either in the of the evidence which he attempts to set up. intention of the party estopped, or in the effect ** * * If, therefore, the truth be known to both parties, or if they have equal means of knowledge, there can be no estoppel. Accordingly it has been held that one is not relieved who had the means of becoming acquainted with the extent of his rights. Crest v. Jack, 3 Watts, 238 [27 Am. Dec. 353]; Hepburn v. McDowell, 17 Serg. & R. 383 [17 Am. Dec. it was ruled that silence does not estop when 677]. And in Knouff v. Thompson, 16 Pa. 357, the party's deed is on record. It should never be forgotten that there is a wide difference between silence and encouragement.” In Brandmeier v. Coal Co., 219 Pa. 19, 22, 67 Atl. 951, 952, our Brother Brown said: "If the real truth had been known to both [parties], or if their means of knowledge had been equal, there would be no estoppel." In the present case there is no evidence that defendants actively induced the plaintiffs to believe that they were incorporated, and it is apparent that the plaintiffs had the means of ascertaining the truth of the matter by consulting the record, and for their own protection it was clearly their duty to do so. The opportunity for ascertaining whether or not the certificate of incorporation had been recorded was open. Therefore under the authority of these decisions there can be no estoppel upon the ground suggested. [6] Reference is made by counsel to "a judgment recovered against several in common name." We do not, however, find any such judgment in the damage suit. The judgment which was recovered by plaintiffs was against the corporation. No individuals were named as defendants, and none were served with process. We find nothing in the record to justify the statement that the judgment obtained was "against several in a common name." A suit against a partnership in the firm name only, without naming the individual partners, will support a verdict, and judgment, and execution against partnership property. Seitz v. Buffum, 14 Pa. 69; McDonald v. Simcox, 98 Pa. 619; Moore v. Moore, 153 Pa. 495, 25 Atl. 763. But such a judgment will not bind individually a partner not served with process in the action | if so, it was to that estate that appellees against the firm, nor can execution be issued against him. See 2 Troubat & Haly's Practice, § 2145, and cases there cited. In 30 Cyc. L. & Pr. 560, the rule is thus stated: "Except where it is otherwise provided by statute, a suit cannot be brought by or against a partnership in the firm name alone; but it is necessary that the name of each member of the firm should be set forth." And in 1 Black on Judgments (2d Ed. 1902) § 237, the same rule appears. It is there said: "At the common law, where a partnership is sued, each member of the firm must be brought within the jurisdiction of the court by due citation. Hence, where an action is instituted against several persons constituting a partnership, and one partner is not served with process, and judgment is rendered against them all, such judgment will be voidable so far as concerns the partner who was not served." [7] Another suggestion which does credit to the sense of fairness of counsel for appellant Frances L. Fitzgerald, executrix, is that a liberal right of amendment might enable plaintiffs to convert their creditors' bill into a bill to subject individual property to execution under the judgment against the corporation. No authority is, however, cited in support of the right of the court below to decree "an equitable execution" against the property of the individual defendants. In Girardi v. Lumber Co., 232 Pa. 1, 81 Atl. 63, it was said, per curiam: "This appeal is from an order discharging a rule to amend the record by making new parties defendants after the statute of limitations had become a bar to a new action. The action was brought against the Laquin Lumber Company, a corporation. The amendment proposed was to name as defendants a partnership, composed of six persons, trading as the Laquin Lumber Company. The allowance of the amendment would have brought new parties on the record. Under the rule established by our cases this cannot be done. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action, or bring in a new party, or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused. Wright v. Copper Co., 206 Pa. 274 [55 Atl. 978]." [8] The cases cited related to pending actions, in which no judgment had been entered. The principle applies more forcibly to a case like the present, where judgment had been entered against the alleged corporation. The effect of the amendment suggested would be to change the judgment which has been entered against the corporation to a judgment against individuals trading under the firm name. As such an amendment could not have been allowed in the original suit before verdict and judgment, the same result cannot be reached after judgment by amending the present bill. According to the contention of appellants, the business of publishing the Item was carried on solely by the estate of Thomas Fitzgerald, deceased; and, should have looked for damages, instead of to any corporation or partnership. If such was the case, it is possible that the appellees may be able to obtain relief by the presentation of their judgment in the orphans' court, which has jurisdiction of the accounts of the executors of that estate. Our decision here is without prejudice to any right that appellees may have to appeal to that tribunal, to substantiate their claim, if it be possible for them to do so. But in the present case, however much we may regret the fact, we are unable to discover any ground upon which the court below, sitting in equity, can grant the relief for which complainants have prayed in this bill. The decree of the court below is reversed, and the bill is dismissed. The costs of this appeal to be borne by appellants. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4015-4018; Dec. Dig. § 1022.*] Appeal from Court of Common Pleas, Philadelphia County. Assumpsit on an express contract by James L. Stevenson against the Commonwealth Title Insurance & Trust Company. From a judgment for defendant entered on report of referee, plaintiff appeals. Affirmed. From the record it appeared that plaintiff sought to recover $158,905.71, with interest, upon an express agreement alleged to have been entered into between plaintiff and defendant, whereby plaintiff was to convey certain properties and mortgages to defendant, in consideration of which defendant was to pay all mortgage indebtedness on the premises and the cost of finishing and selling certain houses, and to pay plaintiff a salary of $100 a week during construction and sale, to release plaintiff from all indebtedness, and to do other things, all of which were specifically set out in the statement. Defendant denied the existence of the alleged agreement, and alleged a loss in the transaction of $71,431.04. The referee found, upon competent evidence, that there was no agreement between the plaintiff and defendant, such as was alleged in the plaintiff's statement of claim, and reported that judgment should be entered for defendant. Exceptions to the referee's report were dismissed by the court, and judgment was entered for defendant. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Ormond Rambo, Robert Mair, Wayne P. Rambo, and J. Quincy Hunsicker, all of Edgar W. Lank, Asst. City Sol., and MiPhiladelphia, for appellant. E. Cooper Shap-chael J. Ryan, City Sol., both of Philadelphia, ley, of Philadelphia, for appellee. PER CURIAM. Plaintiff below based his right to recover on an alleged contract or agreement on the part of the defendant. A learned and painstaking referee found there was none. This material finding was confirmed by the court, and we have found nothing in the 77 assignments of error calling for a reversal of the judgment. It is therefore affirmed. (245 Pa. 181) for appellants. Francis Shunk Brown and William Findlay Brown, both of Philadelphia, for appellees. PER CURIAM. The issue was raised by the traverse of the return to a writ of alternative mandamus, and the question to be decided by the trial in the common pleas was whether a payment directed by councils to be made to contractors for extra work included items which the contractors were required to furnish under the contract with the city for the consideration therein named. CUNNINGHAM et al. v. CITY OF PHILA- See Cunningham v. Dunlap, 242 Pa. 341, 89 DELPHIA et al. 1. MANDAMUS (§ 173*)-HEARING-QUESTION FOR JURY. Where, in mandamus to compel the execution of a warrant for a payment directed by the city council to be made to contractors for extra work, it appeared that, by reason of defective plans, unforeseen difficulties arose, making it necessary to change the method of doing the work, and to make numerous departures from the contract, imposing additional work and expense on plaintiffs, and that the extent of the extra work could not be determined by construction of the specifications, the question as to what part of the work constituted extra work was for the jury. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 378-380, 388-390; Dec. Dig. § 173.*] Atl. 129. It was admitted that the labor for which a claim was made was furnished. and that the price charged was reasonable; but it was contended that the trial judge should have decided as matter of law, in view of the specifications, that the work came under the terms of the contract, and came under the terms of the contract, and was not extra work. [1] Generally it is the duty of the court to determine the meaning of a written contract, and, if the question had been that of construction merely of an unambiguous written contract, the judge should have decided it. But it was not. The work undertaken by the city comprised the furnishing of pipe, the digging of trenches, and laying of pipe for its filtration system. There were 188 specifications including the whole work, and they were prepared, in the words of the written notice to bidders, "mainly to fit case of the entire work of furnishing and laying the pipe being awarded to one contractor." part only of this work, the digging of trenches and laying of pipe, was awarded to the plaintiffs; but they were required to do much Work clearly outside of their contract, and they did it by direction of the engineer of the department with the expectation on their A Appeal from Court of Common Pleas, Phil- part and on his that they would be paid for adelphia County. Mandamus by Thomas E. Cunningham and others against Fred C. Dunlap, Chief of the others against Fred C. Dunlap, Chief of the Bureau of Water of the City of Philadelphia, and others. From judgment for plaintiffs, defendants appeal. Affirmed. it as additional work. An instance is the work of testing pipe, the cost of which is the largest item of their claim. This was clearly the duty of the person who furnished the pipe, and the cost thereof was expressly included in his bid. Because of defective plans, unforeseen difficulties arose, and dur Petition for writ of alternative mandamusing the progress of the work it became necesto compel defendant to draw and execute a warrant in favor of the plaintiffs for the payment of $56,077.96 in accordance with ordinance of councils of Philadelphia of November 10, 1911. The facts are stated in the opinion of the Supreme Court, and in Cunningham v. Dunlap, 242 Pa. 341. Verdict for the plaintiffs for $43,351.37, plus damages for delay to the amount of $7,133.96, and judgment thereon. sary to change the method of doing it, and to make numerous departures from the contract by which additional work and expense were imposed on the plaintiffs. To what extent the work done because of these departures was extra work cannot be determined by construction of specifications which applied only in part to the plaintiffs. It was a question for the jury, and it was submitted with clear and adequate instructions. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [2] The second contention of the appellant [ reason of which fire was communicated to an is that the jury should not have been permit-adjoining property. The allegations in the ted to make an allowance in the nature of statement of claim on which a right of action damages for the detention of the money ap- is based are that the defendant under a conpropriated and directed to be paid the plain- tract with the city graded the street in which tiffs by ordinance of councils approved by the fire originated and did not protect the the mayor. While there were legal objec- property destroyed which was in close proxtions to the plaintiffs' claim for payment for imity to the work of grading; that the fire extra work not covered by the written con- originated during the progress of the work tract, there was a moral obligation on the of grading the street and was communicated part of the city to pay it which became a to the property destroyed; that the defendlegal obligation when its payment was as- ant was notified of the time of trial of the sumed and directed in the manner provided action against the city and allowed permisby law, and for its unjustifiable detention sion to come in and defend and was informafter that time the plaintiffs were entitled to ed that in the event of a recovery against the compensation. city an action would be brought against him for the amount the city was required to pay; and that he attended the trial and was called as a witness for the city. Reference is made to the record of the trial of the action against the city as a public record in another court, but it is not alleged that it discloses negli The judgment is affirmed. (245 Pa. 178) CITY OF PHILADELPHIA v. VARE. (Supreme Court of Pennsylvania. April 27, 1914.) INDEMNITY (§ 15*)—AFFIDAVIT OF DEFENSE-gence by the defendant in this action or that SUFFICIENCY. Where, in a city's action for the amount of a judgment obtained against it for negligently permitting inflammable materials to be used in filling and grading a street, whereby fire was communicated to adjoining property, the statement of claim set forth a street grading contract wherein defendant agreed to be responsible for damages arising from the prosecution of the work during its progress, an affidavit of defense was sufficient which alleged that the fire did not occur because of work done by defendant under his contract and was not caused by defendant's negligence, that the street was not in defendant's exclusive possession at the time of the fire, but that plaintiff had permitted its use as a public dump, that inflammable matter had been placed thereon by others, and that the ground of the recovery against plaintiff was permitting inflammable material to be placed on the street in close proximity to the property burned. [Ed. Note.-For other cases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. § 15.*] Appeal from Court of Common Pleas, Philadelphia County. Assumpsit by the City of Philadelphia against Edwin H. Vare to recover damages for breach of contract. From an order discharging rule for judgment for want of a sufficient affidavit of defense, plaintiff appeals. Affirmed. Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. Paul Reilly, Asst. City Sol., and Michael J. Ryan, City Sol., both of Philadelphia, for appellant. Francis Shunk Brown, of Philadelphia, for appellee. negligence by him was charged. Appended. to the statement was a copy of the contract between the city and the defendant by which he agreed properly to inclose the work and to place signal lights therein at night, when and where necessary, and "to be responsible for and pay all loss or damage to either person or property which may in any manner arise by reason of the prosecution of the said work during the progress of the same." It is provided by one of the specifications that the contractor shall be skilled in the kind of work bid for, shall employ skilled men, and give daily supervision to the work, that he shall maintain necessary barriers and danger signals and "be responsible for any accident that may occur during the progress of or by reason of the work." The affidavit of defense sets up a number of distinct grounds of defense, but in deciding the question raised it is unnecessary to consider but one of them. It is averred that the fire did not occur because of work done by the defendant under his contract, and that it was in no manner caused by his negligence or that of his employés or in the prosecution of the work or by any failure to comply with his contract; that the street at the time was not in his exclusive possession or control; and that the city had permitted its use as a public dump and that inflammable matter had been placed thereon by other persons; that the ground of the action in which a recovery had been had against the city was its negligence in permitting inflammable rubbish to be placed on the street in close proximity to the property burned; and that the judgment against it was based on the finding of its negligence. The averments of the affidavit were to be taken as correct, and they were ample to prevent judgment against the defendant. PER CURIAM. This appeal is from an order discharging a rule for judgment for want of a sufficient affidavit of defense in an action to recover from the defendant the amount of a judgment obtained against the city for negligence in permitting inflammable materials to be used in filling and grading a street by *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes The judgment is affirmed. . (245 Pa. 136) Counsel have called our attention to numerDEVEREUX v. PHILADELPHIA & R. RY. ous cases in other jurisdictions in which a CO. different rule has been adopted, but in most (Supreme Court of Pennsylvania. April 20, of these jurisdictions the question was con 1914.) 1. RAILROADS (§ 405*)-TRESPASSING ANIMALS-LIABILITY OF RAILROAD. Owner of animals trespassing on the right of way cannot recover for injuries sustained by them unless he shows gross negligence. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1393-1398; Dec. Dig. § 405.*] 2. RAILROADS (§ 446*)-TRESPASSING ANIMALS -NONSUIT. In an action to recover for death of horses trespassing on the right of way, a judgment of nonsuit held properly entered. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.*] Appeal from Court of Common Pleas, Philadelphia County. Action by A. J. Antelo Devereux against the Philadelphia & Reading Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Stevens Heckscher, of Philadelphia, for appellant. Wm. Clarke Mason, of Philadelphia, for appellee. trolled by statutory requirements. In many tled rule than to attempt the doubtful expe- one. This is a case in which a whole volume might be written without aiding in the solution of the question involved, and we will therefore refrain from further discussing the merits of the rule which we consider decisive of this controversy. Judgment affirmed. (245 Pa. 128) SULGER v. PHILADELPHIA & R. RY. CO. CARRIERS (§ 320*)-INJURY TO PASSENGER- baggage car in the center fixed up with a place ELKIN, J. [1, 2] We have read with interest and care the very able argument of learned counsel for appellant, but cannot agree that what has been considered the settled rule of our cases should be disregarded in order to meet the exigencies of the case at bar. It is frankly conceded that, if the doctrine of our earlier cases is still the law in Pennsylvania, appellant can only recover on the ground of gross and wanton negligence. If a trespasser upon the right of way of a railroad company, not at or near a public crossing, can only recover damages for injuries sustained on the ground of willful, wanton, or gross negligence, it is clear appellant has no case under the facts disclosed by this record. The argument of appellant is intended to suggest that this rule has become obsolete and should no longer be adhered to in determining the liability of a railroad company. The horses, the value of which this suit was brought to recover, were killed while trespassing upon the right of way of the defendant company, and this is conceded, but it is contended that under all the facts disclosed by the testimony it was for the jury Action by Virginia Grace Sulger against to say whether the railroad company exercis- the Philadelphia & Reading Railway Comed proper and reasonable care under the cir-pany. Judgment for plaintiff, and defendant cumstances. We see nothing in the case to take it out of the rule which has been recogappeals. Affirmed. nized and followed in our state for more than half a century. For a general discussion of the doctrine upon which the rule was based, see Railroad Co. v. Skinner, 19 Pa. 298, 57 Am. Dec. 654; No. Penna. Railroad Co. v. Rehman, 49 Pa. 101, 88 Am. Dec. 491. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*] Appeal from Court of Common Pleas, Philadelphia County. Argued before BROWN, MESTREZAT, POTTER, ELKIN, and MOSCHZISKËR, JJ. Wm. Clarke Mason, of Philadelphia, for appellant. Thomas A. Fahy, Walter T. Fahy, and Lawrence F. McOwen, all of Philadelphia, for appellee. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |