We Judgment reversed and new venire awarded. Evans v. Taylor. Taylor v. Evans. March 26, 1896. Real estate-Contract-Covenant-Encumbrance -Street-Specific performance. dant through its authorized agent that the policy induced by their own declarations and acts. was good as it was until a deed was made to the cannot understand why the testimony of Hiram purchaser, and the defendant having claimed an Highlands was stricken out, or why the amendassessment for a loss which occurred not only ment asked for was refused, but as no assignafter the assignment but also after the sale was ments of error on that account were made, those made by the assignee, and that assessment having questions are not before us. been paid, the case comes clearly within the operation of at least three of our decisions, the last of which was made only one year ago. These cases are Mentz v. Lancaster Fire Ins. Co., 79 Pa. 475; July, '95, 222. Wachter v. Phoenix Assurance Co., 132 Pa. 428; and Light . Mutual Fire Ins. Co., 169 Pa. 310. In all of these cases we held the company estopped by declarations of their agent of a character precisely similar to those made in this case. In the Mentz case, because the agent told the policy holder that the proper endorsement had been made on the policy, we held the company estopped by his declaration. The Wachter case was almost precisely similar to this, and the company was estopped, because the agent assured the policy holder that the policy was properly transferred on the plan. to the mortgagee, and that nothing more need Where a contract is executory, neither equity nor law be done. In the Light case we expressly held will enforce it against a positive term in the contract; that there was no insurable interest in the policy specific performance is a matter of grace not of strict holder after the sale of the property, but we reright. fused to permit that defence to be made. There Appeal of Margaret Evans, plaintiff, from the as here, the policy holder informed the agent of judgment of the Common Pleas No. 2, of Philathe sale and wanted to know what was to be done delphia County, in an action of assumpsit wherein regard to the policy. The agent told him he in Benjamin Taylor was defendant. had better hold the policy and have the assess- Appeal of said Margaret Evans, defendant, ments sent to him, which was done, and they from the verdict of the said Court in an action of were paid by the insured, who delivered the deed assumpsit, wherein the said Benjamin Taylor was to the purchaser without transferring the policy plaintiff. Where in an agreement for sale and purchase of real estate there is a covenant to convey "clear of all encumbrance," a street laid out on the premises in a confirmed prevent a recovery of the purchase money and this even city plan, but not opened, is such an encumbrance as will though the street was known by the covenantee to exist in pursuance of the advice of the agent. Al- The two cases by agreement were consolidated though the defence of want of insurable interest and tried together and it was further agreed that at the time of the fire was a perfectly good de- the verdict of the jury should govern both cases. fence, and although there actually was no insur- On the trial, before PENNYPACKER, J., the facts able interest in the plaintiff when the fire oc- appeared as follows: Benjamin Taylor at the incurred, we refused to allow such a defence to be stance of Margaret Evans, built some houses in made solely because of the declaration of the Frankford, Philadelphia. At the completion of agent and the subsequent acceptance of assess- the work the said Margaret Evans owed him a ments by the company from the insured. We balance of $844.60, for which she gave him a can see no difference between that case and this. promissory note. Mrs. Evans agreed to sell TayHere the assignee of the insured went to the lor certain premises situated on the southeast side agent of the company shortly after the assign- of Frankford avenue, 50 feet in width and in depth ment and informed him of the assignment, and about 230 feet. Thirty-eight feet of the northeastproposed to have a transfer made. But the agent ern portion of this lot and extending the full told him it was not necessary and therefore it was depth is covered by a street called Hilles street, not done. Subsequently the company demanded which had been placed upon the confirmed plan an assessment from the assignee and it was paid. of the streets of the city of Philadelphia in 1858, These were the exact facts upon which the Light but which has not been opened. A memorancase was ruled and they rule this. The company dum in writing was made of this agreement and treated the policy as an active subsisting policy $50 paid by Taylor on account of the purchase after the assignment, and after the sale by the as- money. The receipt for this money stipulated signee, and they shall not now be permitted to "the whole amount of the purchase money being escape liability by asserting the want of a trans- $6050, clear of all encumbrance, title to be passed fer, which was not made because its omission was within 30 days." Shortly afterwards, Mr. Tay lor's conveyancer discovered the existence of or created any encumbrance whereby the estate the street on the city plan and declined to take granted by him may be defeated. Gratz v. Ewalt, 2 Binn. 95. A public street occupying a portion of a lot title. Taylor then brought suit against Mrs. Evans upon the promissory note and Mrs. Evans brought suit to recover the difference between what the property brought at a public sale of which she had given Taylor due notice, and the amount of the purchase money he had agreed to pay. The defendant called as a witness one by whom it was offered to prove that Taylor had upon which a house is erected is not an encumknown of the existence of the street prior to his brance within the meaning of the covenant of entering into the agreement to purchase the propgeneral warranty or the Act of 1715. Memmert v. McKeen, 112 Pa. 319. erty. Mrs. Evans also produced a witness to prove that the plaintiff had said on an occasion The offer of evidence that the appellee knew when the existence of the street was made known of the existence of the street before he entered to him that "the street was an old one and would into the contract to purchase the property was be never opened or put through." These were clearly proper and should have been admitted. objected to. The objections were sustained by If the existence of the street was either an encumthe Court. (First and second assignments of er-brance upon the physical condition of the property or merely a circumstance affecting its physi ror. Bailey v. Miltenberger, 31 Pa. 41. The Court charged: "I instruct you that this cal condition, the fact that it was confirmed and street upon the city plan was an encumbrance upon the city plans was notice. upon this property, and, therefore, Benjamin Taylor was not required to carry out the agreement. The Act of Assembly provides, that where a street is upon the plan, if houses are In considering Mrs. Evans's case, it is necessary erected afterwards upon the line of the street, to note that the contract on which she claims to there can be no recovery for damages against the recover damages from Taylor is an executory one. city for the erection of those houses. So that As it was to recover the purchase money, or would be a serious disadvantage to the owner of rather damages for the breach of an executory the property. He does not get what he under- agreement, the damages being based on the price took to purchase, a property clear of encum-to be paid, the case is to be governed according brance, since there was an encumbrance, or some- to the principles of law governing actions for thing which would prevent him building upon a specific performance. certain portion of the lot." (Third assignment of error.) The Court gave binding instructions in favor of Taylor, with a certificate of $50 in his favor. J. Howard Morrison, for appellant. Hilles street was not an encumbrance within the technical meaning of the term. An encumbrance is a burden upon land depreciative of its value, such as a lien, easement or servitude which, though adverse to the interest of the land-owner, does not conflict with his conveyance of the land in fee. 10 Am. & Eng. Ency. of Law, 361. Mere existence of Hilles street upon the plan of the city of Philadelphia, it never having been opened, would not bring it within the definition of encumbrance for the reason that upon its opening whoever is the owner is entitled to be paid for the damage which he suffers. Bailey v. Miltenberger, 31 Pa. 41. Such an action is a substitute for a bill in equi ty for specific performance. Herzberg v. Irwin, 92 Pa. 48. If the appellant was not entitled to a decree of specific performance, she could not recover in the present case. Bank v. Alexander, 3 Cent. Rep. 388. A building restriction has been held to be such an encumbrance to a title to real estate as to cause the Court to refuse to enforce a contract of sale of the property so encumbered which stipulated that it was to be clear of encumbrance. Anders' Estate, 5 WEEKLY NOIES, 578. Lesley v. Morris, 9 Phila. 110. The cases relied on by the appellant, namely: Bailey v. Miltenberger, 31 Pa. 41; Ake v. Mason, IOI Id. 17; Memmert v. McKeen, 112 Id. 319; Dobbins v. Brown, 12 Id. 75, were cases of vendee against vendor for breach of covenant, where the The words "grant, bargain and sell" create a contract had been fully executed by payment of covenant that the grantor has not done any act the purchase money and delivery of the deed. In an executory contract for the sale of land, fer a serious detriment, is very manifest from the the vendee is not presumed to waive any right consideration, that the buildings on the lot natuwhich the articles standing alone would give him, rally constituted a large part of the value of the hence in the absence of express proof that he property. If these may be taken from him withagreed to run the risk of defect in title he is not out compensation, he has no equivalent for their precluded from refusing to execute the contract, loss in a reserved right to have damages for the because he knew of a prior deed before the agree- taking. He is therefore by that much a direct ment was made, or because the executory con- loser upon the terms of his contract as it was tract contained no specific covenant against the made, and presumably he would not have made title. it. But whether he would or would not have made it, if he had had knowledge of the contin Spea man v. Forepaugh, 44 Pa. 363. The fact that in a conversation before the ex-gency, he saw proper to stipulate for a title free of ecution of the agreement, the appellee was informed of and commented on the existence of the street, is not such notice as will bind him. Sugden on Vendors, vol. III., p. 451, 452. Boggs 7. Varner, 6 W. & S. 469. any encumbrance and that feature of his contract cannot be rejected without altering the contract itself. This, equity will not do, even when the title is clouded only, because specific performance is matter of grace and not of strict right. But when a positive term of the contract must be disregarded, neither equity nor law will interfere where the contract is executory. These considOctober 5, 1896. GREEN, J. It was agreed erations eliminate much of the discussion, and upon the trial that Hilles street, between Frank- distinguish the present contention from the auford avenue and Thomas street, was laid out on thorities relied upon for the appellant. While an the city plan as a public street forty feet wide, and existing street upon a lot, or the mere liability to was confirmed, in 1858. It was never opened, have a street opened upon it, are matters of which and at some time after it was laid out, and before a purchaser is bound to take notice, and, therethe title of Mrs. Evans accrued, certain buildings fore, on that account, cannot defend against an were erected on the front of the lot, and upon the action for the purchase money after the deed has part of it which was the bed of Hilles street. This been accepted, the case is very different when no was the situation of the property when Mrs. deed has been accepted, no mortgage or other Evans contracted to sell it to Taylor. Under the lien for the purchase money has been given by Act of April 3, 1851, P. L. 327, no damages could the purchaser, no possession has been taken, nor be recovered for the loss of these buildings by any other act done by the purchaser in affirmance the opening of the street, because they were erec- of the contract. And when in addition to all this, ted after the street was laid out and plotted on a large loss of the actual consideration of the conthe city plan. The contract of sale by Mrs. Evans tract, may, and probably will, be suffered by the to Taylor, as expressed in the receipt for fifty enforcement of the contract against the will of dollars of the purchase money, was that the prop- the purchaser, surely an express provision against erty was to be "clear of all encumbrances"; and the possibility of such a loss embodied in the the question is whether the right of the city to written terms of the contract, will not be violated open the street without paying any damages for or disregarded by the Courts, when they are the buildings which were on the lot and within the asked to enforce it in an executory contract only. bed of the street, was an encumbrance so as to This reasoning was followed and enforced in the constitute a breach of the condition against en- case of Bank v. Alexander, reported in 3 Central cumbrances contained in the receipt. Reporter, 388, decided in 1886, in which the deSo far as the offers of testimony to show cree of the Court refusing specific performance knowledge of the encumbrances on the part of was affirmed by this Court. The facts in that Taylor, are concerned, we think they were im- case were very similar to the facts in this, except material because he protected himself by a posi- that here buildings had already been erected on tive covenant that there was to be no encum- the lot, the loss of which could not be replaced by brance on the title and he would be entitled to the an assessment of damages when taken. In Bank benefit of his contract, whether he had knowledge v. Alexander, the master said, "It has been stated of an encumbrance or not. It is also to be borne in the findings of fact that this street has been laid in mind that the contract was executory and not out thirty feet wide over a portion of the lot. executed, and the case therefore involves the This fact presents a most serious obstacle to the question whether the contract is to be enforced granting of a decree for specific performance of against the will of the purchaser. That the pur- the contract between the parties. It is true the chaser, if obliged to take the title, will or may suf- street is not opened, but is laid out on the city June 1, 1896. Nye v. Pennsylvania Railroad Co. servant-Track clearing-Unusual storm. Appeal of the Pennsylvania Railroad Company, defendant, from the judgment of the Common Pleas of Dauphin County, in an action of trespass brought by Sarah Nye. plan. The effect of this is to give notice to May, '96, 3. whomsoever takes the lot of the possibility, or, rather, the probability, that the street will be opened at any time, and, therefore, he cannot | Negligence - Risk of employment — Master and claim damages from the city, should he erect improvements upon it. (See Act of April 3, 1851, P. L. 327.) He finds himself in the awkward poTrack clearing after a snow storm in the vicinity of sition of not being able to claim damages, as and one who enters in it takes the risk thereof, he cannot moving trains is essentially a dangerous employment, there has been as yet no physical taking, and yet look to his employer to take extraordinary precautions he cannot improve except at his peril. At the for his safety, because the storm, after which he is sent best he is subject to uncertainties, and is liable out, is an extraordinary one, for the employer is entitled to a law suit to test the question of benefits and to rely on the presumption that the employee will not unnecessarily incur a danger which, though greater in damages, to which he may be entitled, or for degree, is the same in kind as that to which he is ordiwhich he may be liable. This would seem to narily exposed after a storm. present a very similar state of facts to that governed by the decision of the Supreme Court in Speakman v. Forepaugh, 8 Wright, 374. This is an executory contract, and the rights of the vendee are more jealously guarded than if it were executed; or perhaps more accurately, the presumptions of law are different from those arising where a contract has been executed." In the last case cited it is said: "In this State when contracts for the sale of land have been executed, and securities for the purchase money have been taken, if there be a known defect of title, and no Early on the morning of February 8, 1895, covenant against it in the deed, there is a pre- there was a very heavy fall of snow several inches sumption that the purchaser undertook to run in depth in the city of Harrisburg and vicinity, the risk of the defect; and if he did he cannot accompanied by a high wind from the west. As detain the purchase money on account of it. This a consequence of this the railroad tracks of the is a rule in regard to executed contracts, but even defendant company between the main depot in in them it is not a conclusive presumption. (See the city and a station about three miles west Rawle on Covenants for Title, 723-4-5-6-7.) It is inapplicable to a mere executory contract which is only preparatory." This was an action of trespass brought by Sarah Nye to recover damages for the death of her husband, Noah Nye, alleged to have been brought about by the negligence of the defendant. On the trial of the cause, before SIMONTON, P. J., the following facts appeared: named Lucknow, upon what is known as the Middle Division (extending from Harrisburg west to the city of Altoona), were so badly covIn the foregoing case of Bank v. Alexander, the ered and obstructed by the drifting snow as to report of the master was sustained by the Court be almost impassable, and rendered their conbelow, and that decree was affirmed by this Court tinued use exceedingly difficult. Between the in a per curiam opinion. There the proceeding two points named the defendant company had was a bill for specific performance, and here the two passenger tracks-known as No. 1 and No. action is assumpsit to recover the purchase 2. These tracks were near together, and No. I money. The same principles and reasoning are was used for passenger trains running east, and applicable in both. The plaintiff in this case has No. 2 was used for passenger trains running west; not conveyed, and is not able to convey, a title and near to and east of No. 2 were sundry paralclear of encumbrance, and is therefore not enti- lel tracks used for freights. tled to the purchase money. The assignments of error are not sustained. By 11 o'clock A. M., the snow storm and drifts had become so severe as to make it impossible Decree affirmed and appeal dismissed at the to longer operate track No. 1, and a working train cost of the appellant. TAYLOR V. EVANS. October 5, 1896. GREEN, J. For the reasons expressed in the opinion in the case No. 222, July T. 1895, Evans v. Taylor, the defence set up in this case must be pronounced invalid and therefore, the judgment is affirmed. W. D. N. upon it, in charge of Conductor W. H. Foulke, composed of two engines, a flat car, and a cabin car, was completely snowed up, and unable to move, at a point about three-fourths of a mile east of Lucknow; and to keep track No. 2 open it became necessary to run engines and cars over it every few minutes, which was done. King, the supervisor of that part of the road, reported the situation to Frank Ellmaker, the superintendent of the Middle division, at his office in Harrisburg, M. W. Jacobs, (with him J. W. Swartz and I. B. Swartz), for appellee. and called upon him for a force of men to shovel snow, to release the snow-bound train, and enable him to keep the trains in operation at that local- A servant by entering his master's service asity. Ellmaker responded promptly, and by an sumes all the risks of that service which the masengine and car upon one of the freight tracks, ter cannot control, including those arising from sent up a gang of twenty men for the purpose, the negligence of his fellow servants. of whom Noah Nye was one. Upon their arrival But here the assumption of risk by the servant opposite the snow-bound train King at once took ends. He assumes no risk of negligence of the charge of them, and took them all over to shovel master or of those who stand for the master. snow, and placed them at work on the dead track O'Donnell v. Railroad Co., 59 Pa. 239. No. 1, west of the cabin car (part of the snow- Patterson v. Railroad Co., 76 Id. 389. bound train), and "charged them in particular Railroad Co. v. Keenan, 103 Id. 124. to stay on No. I track to do this work." He conLewis v. Seifert, 116 Id. 628. sidered the place he thus put the men to work Among the positive duties which the law casts entirely safe; and he and other witnesses testified upon the master with respect to the servant is on the trial that none of them could have been that of furnishing him with a reasonably safe injured if they had stayed where placed; and King cautioned them repeatedly of the danger of going on track No. 2. At the same time Foulke was in charge of the snow-bound train, and had under him another gang of about twenty men, the regular crew of his train, and engaged in shoveling snow to release his train; but Nye was not one of his crew, nor was he subject to the orders of Foulke. place in which to work. O'Donnell v. Railroad Co., supra. Trainor v. Railroad Co., 137 Pa. 148, 160. Railroad Co. v. Baugh, 149 U. S. 368. Assuming the duty of the railroad company to About 3.45 P. M., same day, a train known as provide a reasonably safe working place for its No. 3, Pacific express, came west about twelve employees and its general duty not to expose hours behind time by reason of the prevailing them needlessly and carelessly to risks which snow storms and drifts, and as it passed on track might be avoided by ordinary care and precauNo. 2, opposite the place where the snow-bound tion, how does this case stand? Negligence is the train was yet blocked on track No. 1, it struck absence of care according to the circumstances. Noah Nye, inflicting injuries from which he soon afterwards died, leaving as his survivors his widow, the plaintiff, and five minor children. McCloskey v. Chautauqua Ice Co., 174 Pa. 34. It is "the circumstances of the situation," thereNo instructions were given to the engineer of fore, which must be looked to in every case to the train to look out for or warn the gangs en- determine whether or not there has been negligaged in clearing the track of the approach of gence and hence the rule of railroading set up the train, and there was evidence that no whistle by the defendant, viz.: that track hands look out was blown. for their own safety and the company is not The defendant submitted, inter alia, a point that bound to give them warning of the approach of "on the whole case the verdict must be for the its trains, however applicable it might be to ordefendant." This the Court refused. (Eighth dinary circumstances, may be entirely inapplicaassignment of error.) ble to the extraordinary circumstances developed Verdict for plaintiff $5000. A remittitur having in this case. Here the deceased was a green hand been filed, judgment was entered for $3500. The and when killed had been barely two hours in defendant took this appeal, and filed, inter alia, defendant's service; the storm in which he was the assignments of error above indicated. put to work was unprecedented, the air was so L. W. Hall, (Francis Jordan with him), for ap- full of flying snow that it was at times impossible pellant. to see objects a few yards away, the track upon A servant or employee assumes the risk of all which he was at work with forty other laborers dangers in his employment, however they may was within a few feet of that upon which the fatal arise, against which he may protect himself by train was to pass, and a part of the work of these the exercise of ordinary observation and care, men consisted in throwing over this very track and the employer is not responsible for those the snow taken from under the blockaded train, injuries to which the employee voluntarily sub- the track, according to some of the witnesses, jects himself. Kanf hold v. Arnold et al., 163 Pa. 269. could not be seen because of the snow upon it, and the train which did the damage was an extra train. Certainly the circumstances in which |