reversed The indorsement of the bonds is a contract of guarantee. Such are the words of the indorse- Judgment reversed, and a procedendo awarded. C. P. No. 2. C. K. Z. Common Pleas. Edward A. Anderson, for the rule. This claim is filed under the Act of June 17, 1887 (P. L. 413). The first section enacts "that the provisions of" certain Acts, which are referred to by their titles only, "shall be construed to include claims for labor done by mechanics and laborers." This is an extension of the provisions of these Acts. The second section provides that "all buildFebruary 11, 1888. ings and machinery made liable to a mechanic's lien by the laws of this Commonwealth, to a contractor or material man for work done," etc., .."shall also be liable. . . for any work done," etc. 'by any sub-contractor, mechanic, or laborer." This is an extension of the provisions of these laws, which must be referred to in order to ascertain what buildings and machinery are so liable. Roseman v. Haydock. Practice-Act of May 25, 1887—If the copy of plaintiff's statement be served fifteen days before the return day, he is entitled thereafter to judgment for want of a sufficient affidavit of defence, although the writ was served within fifteen days of the return day. Assumpsit. Rule for judgment for want of a sufficient affidavit of defence. The record showed that the writ issued January 19, 1888, returnable first Monday of February (February 6, 1888), and was served Monday, January 23, 1888; that the statement of plaintiff's claim was filed January 19, 1888, and a copy served on defendant January 20, 1888. The affidavit of defence averred said facts, and suggested, in substance, that the service of the copy of the statement before the service of the writ, was not such service as the Act contemplated; and that the writ not being served fifteen days before the return day, this rule was premature until fifteen days thereafter. Samuel M. Hyneman, for the rule. The writ was issued, and statement filed and copy thereof served fifteen days before the return day. The Act of May 25, 1887 (P. L. 271), does not require the service of the writ fifteen days before return day. Frank M. Cody, contra. I. T. M. 66 The provisions in this section as to the notice required of material-men, and the time within which sub-contractors, etc., must file their claims, would seem to be amendments of "the laws of this Commonwealth." In all these points this Act violates Art. III. sec. 6 of the Constitution, in not reciting at length those parts of the old laws which are affected. Donohugh v. Roberts, 11 WEEKLY NOTES, 190. Putting in electric-light wires is not the kind of work contemplated by the mechanics' lien laws. Edward P. Bliss, showed cause. Whatever may be said of the first section of the Act, the second section, which by itself, supports this case, is constitutional. It does not revive, amend, extend, or confer the provisions of former Acts. It gives a lien to certain classes of laborers, who had none before, and in order to define their lien and illustrate its operation, reference is made to "the laws of this Commonwealth.” The constitutional prohibition must be taken strictly. If it were necessary to recite all former laws that might in any way be affected by a new Act, it would be made wholly impracticable. The object of the prohibition is to enable the | kill Navigation Company, nor by the defendant Legislature to know what laws are being amended herein upon said days, or at any time, or at all, or extended, and the Legislature is presumed to by reason whereof there is due and owing by the know what are "the laws of this Commonwealth" with regard to mechanics' liens. Very many Acts have been passed since 1874 referring to the laws of this Commonwealth," "existing, laws," etc. This Act has been held constitutional by Common Pleas No. 4. Roth v. Hobson, 21 WEEKLY NOTES, 64. The work in question was a necessary part of the erection and construction of the building. This brought it within the mechanics' lien law. The wires were run through the walls, and are not personalty. C. A. V. defendant to the plaintiff the sum of three thousand two hundred and forty dollars, payment of which was demanded before suit brought by J. W. M. Cardeza, Esq., attorney for plaintiff, and refused." The contract of defendant (indorsed upon a loan certificate of the Schuylkill Navigation Company) was as follows: "Know all men by these presents, that for a valuable_consideration the Philadelphia and Reading Railroad Company hereby guarantee the punctual payment of the principal and interest of the within obligation, when and as the same shall respectively fall due." And according to the face of the instrument the February 24, 1888. THE COURT. The first days of payment of interest and principal are section of the Act is plainly in contravention of fixed and definite, the defining clause being as section 6 of Article III. of the Constitution, but follows: "This certificate bears interest at the the second section can fairly stand without assist-rate of six per cent. per annum, payable clear of ance from the first, and is not so clearly uncon- all taxes thereon, semi-annually, on the first day stitutional as to compel us to declare it bad on of May and November, and the principal therethis motion. on is payable on the first day of November, A. D. 1913.' As to the nature of the work, if it is a proper part of the "erection and construction" of a modern house, it is the subject of a mechanic's lien, and that if doubtful is a question for the jury. Rule discharged. C. C. B. Practice-Statement under Procedure Act of May 25, 1887-Affidavit of defence-When a copy of a written contract is filed, it is not necessary to repeat in the statement any of the matters which appear in the copy of contract filed-Suretyship-An agreement to guarantee the punctual payment of the debt of another when due, is a contract of suretyship, on which suit may be maintained before suing the principal debtor. Rule for judgment for want of a sufficient affidavit of defence. The plaintiff's statement was as follows: "Thomas Drake, being duly affirmed, deposes and says that he is the plaintiff in above suit, and that the interest due him, according to the terms of the contract, a copy of which is hereunto annexed, upon the first days of May and November in the years 1885, 1886, and 1887, viz., five hundred and forty dollars upon each of said days, was not paid by the therein-mentioned Schuyl The affidavit of defence contained, inter alia : "Third. The statement of claim filed in this case is not sufficient to require the defendant to file an affidavit of defence, because there is no averment as to the power of the defendant to make the guarantee sued upon." "Fourth. The indorsement of the bond, a copy of which is filed, is a contract of guarantee, and there is no averment in the statement of claim of any proceedings against the principal debtor." James W. M. Cardeza, for the rule. There is a most pronounced difference between Timlow v. The P. & R. R. (3 Out. 284), and the case at bar. In Timlow's case the authority of the Reading R. R. to guarantee the bonds of the Reading Coal and Iron Co. was conferred by Act of March 20, 1872, which is clearly a pri vate Act and was so held to be by the Supreme Court. The fourth claim of the affidavit, to wit, that the indorsement of the bond is a contract of guarantee, and that therefore there should be an averment of proceedings against the principal debtor, is not sustainable; the contract is one of suretyship or original obligation; much less explicit instruments have been held to be original obligations of indorsers. Snevily v. Johnston, I W. & S. 307. Roberts v. Riddle, 29 P. F. S. 468. Thomas Hart, Jr., contra. The statement under the new Procedure Act of May 25, 1887, must contain within itself the averment of such facts as are necessary to enable the plaintiff to recover, although the Act provides for copies of notes, contracts, etc., upon which the plaintiff's claim is founded. The statement must be perfect in itself, and its deficiences of averment cannot be helped out by the copies. The statement under this Act is something more than a mere filing of copies under the old affidavit of defence law. It is the beginning of the pleading and stands in place of or is indeed the declaration. tract of guaranty sued upon; and that the defendant is not a surety, but a guarantor, and therefore, that it is not liable to be called upon until proceedings have been taken to exhaust the principal debtor. Upon the third objection, we are of the opinion that the statement contains all the requisites of a legal demand under the procedure Act of May 25, 1887. That Act, by providing that the plaintiff's declaration shall consist of a concise statement of the plaintiff's demand, accompanied by a copy of the contract upon which the plaintiff's claim is founded, authorizes such a statement and copy of contract as has been filed in this case. A copy of the contract and a statement of the items of interest claimed, the days on which it became due, the demand of payment by the plaintiff and the refusal of the defendant to pay, constitute a concise and complete statement of demand under the Act. The contract, which is in writing, contains all the essential parts of a declaration, such as the venue, the parties, the consideration, the agreement, and the amount which may be recovered. It is not necessary to repeat in the statement any of the matters which appear in the copy of the contract filed. The defendant is informed by the statement and copy of contract what it is sued for, and the exact amount claimed, instead of being subjected to an extortionate demand for damages not honestly due nor legally recoverable. merly, in pleading, it was not essential to set out a copy of the contract in the declaration; conWhile the Acts of 14th April, 1868, and 14th sequently the substance of the contract had to be April, 1870, are clearly general Acts and do not pleaded. Under the new practice a copy must require to be pleaded, yet as they do not em- be filed, and there is no necessity for repeating brace all guarantees by a railroad company of the it in the statement. This will dispense with bonds of a canal company, clearly the facts of the deed or writing in many cases, oyer bringing the particular case and the instrument delays for that cause will cease. sued on within the statutes must be pleaded. This is not done in the present case. The Act of April 14, 1870 (P. L. 75), provides that a railroad company may do three specific things: (1) Purchase and hold the stock and bonds of a canal company; (2) lease its canal and property; and (3) become consolidated and merged with it in the same manner as such purchases, leases, and consolidation are allowed by the law between railroad companies. It must appear in the statement that the Schuylkill Navigation Company is a canal company, that its works and those of the defendant company connect with each other, and that there was a lease of the canal by the railroad company. These is no mention of any one of these facts in the statement. In Railroad Co. v. Pennypacker (42 Leg. Int. 395; ante, p. 118) an instrument substantially the same as that in the present case was held to be a guarantee. For and In this case, the certificate of loan, of which a copy has been filed, states that it was issued in exchange for a certificate of like amount" which has been surrendered and cancelled, pursuant to an agreement, under which a lease of the canal, works and franchises of the said (Schuylkill) Navigation Company, for the term of nine hundred January 21, 1888. THE COURT. The ques- and ninety-nine years, and an absolute transfer tions for consideration in this case are purely of all its real and personal property, were by legal. Neither the magnitude of the interests deed, dated the 12th day of July, A. D. 1870, dependent upon our judgment, nor a criticism made to the Philadelphia and Reading Railroad of the plaintiff's refusal to assent to the terms of Company; in consideration whereof, the paythe re-organization of the Philadelphia and Read- ment of the principal and interest of this certifiing Railroad Company, have any weight in cate is guaranteed by the said Philadelphia and deciding those questions. Reading Railroad Company, as indorsed hereon." No one who reads this can reasonably say that there is no averment of a lease of the canal property to the railroad company. The defendant having abandoned the first two objections to the right of the plaintiff to judgment, we have to consider the third and fourth objections, to wit, that there is no averment of the power of the defendant to enter into the con The objection that no reference is made to the Act of Assembly authorizing railroad companies as the amount. If, with the words "shall fall due" used in the contract sued upon in this case, we consider the other words "punctual payment" we have no hesitation in coming to the conclusion that the contract is one of primary and not of secondary liability. No words fixing the time of payment were used in the guaranty considered in the case of the Camden & Atlantic R. R. v. Pennypacker (42 Leg. Int. 395), cited by the defendant (ante, p. 118). to lease canal properties of navigation companies" promptly when due and payable" (McBeth v. and guarantee the payment of obligations due by Newlin, 15 WEEKLY NOTES, 129). The reason them, is answered by a reference to the Act of is that the time of payment is guaranteed as well April 14, 1870 (P. L. 75), which authorizes any railroad company to lease the canal, navigation, and property of any canal or navigation company, in the same manner and on the same terms as leases are allowed by and between railroad companies under existing Acts. An existing Act, approved April 14, 1868 (P. L. 100), authorizes railroad companies to indorse, guarantee, and become liable for the bonds of any other railroad company, whose road is leased by it; and another existing law, approved February 17, 1870 There are in this case other and perhaps (P. L. 31), makes it lawful for railroad companies stronger reasons for ruling as we do. The Philto lease other railroads, and guarantee the pay-adelphia and Reading Railroad Company has ments and covenants of the lease. These are taken a lease and absolute transfer of all the progeneral laws, which it is not necessary for the perty of the Schuylkill Navigation Company, pleader to set out in his statement. If the pro- and thereby has in its possession the means of viso to the Act of February 17, 1870, that there paying the obligation it has assumed. As between shall be a connection between the railroads of these two companies, the railroad company may the lessor and lessee, has any application to the be the ultimate debtor; so that, if the navigation case of a lease of a canal by a railroad company, company should be compelled to pay this claim, we do not think that it is necessary for the plain- it would have recourse to the railroad company. tiff to allege that there is such a connection so as Numerous decisions of the Supreme Court estabto authorize the lease. If, indeed, an objection lish the rule that where a promise is made to pay to the legality of the lease could be made by the the debt of another person who transfers prolessee, so that it could repudiate the lease and perty to the promissor, in consideration of his thereby take advantage of its own wrong, the promise, suit may be brought by the person for objection should come from the defendant by way whose benefit the promise was made, without first of defence. The plaintiff is not required to avoid suing the original debtor, because the promissor it in his statement. Matters of defence must be has the means of payment in his hands (Torrens pleaded by the defendant. Having the right to v. Campbell, 74 Pa. 470; Townsend v. Long, make the lease and guarantee, it will be presumed, 77 Id. 143; Wynn v. Wood, 97 Id. 216; Zell's in a suit by a holder of its obligations, that the Appeal, 111 Id. 532). The only dispute in such defendant acted within the law and not contrary cases has been upon the question whether the to it. (Commonwealth v. Pittsburgh, 34 Pa. contract was within the Statute of Frauds, which 496; San Antonio v. Mehaffy, 96 U. S. 312.) requires that the contract shall be in writing. As the contract in the present suit is in writing, nó such question arises here. The Upon the fourth objection, that the contract sued upon is not a contract of suretyship, and that the plaintiff should exhaust the navigation company before proceeding agninst the railroad company, we agree with the plaintiff. words of the contract are: "The Philadelphia and Reading Railroad Company hereby guarantees the punctual payment of the principal and interest of the within obligation, when and as the same shall respectively fall due." It is a well settled rule of law that when the parties fix the terms of their contract, so that no conditions are required to be added by judicial construction, it is a contract of suretyship, although the word guarantee is used to express it (Riddle v. Thompson, 104 Pa. 330). A guaranty of payment of the note of another person "when due," is a contract of suretyship and not of guaranty merely (Campbell v. Baker, 46 Pa. 244); so is a guaranty of payment of a bond "according to its terms" (Roberts v. Riddle, 79 Pa. 468); or WEEKLY NOTES OF CASES. Adams, to recover the amount of a debt originally due and owing to the plaintiff by Weaver Bros., but for which, it was alleged, defendant had become responsible. The facts of the case, as they appeared on the VOL. XXI.] THURSDAY, MAR. 15, 1888. [No. 5. trial, before ALBRIGHT, P. J., are fully set out in Supreme Court. Jan. '87, 228. January 31, 1888. Adams v. Kuehn. the opinion of the Supreme Court. The defendant presented points to the effect that as the evidence disclosed no privity of contract between the plaintiff and defendant the verdict must be for defendant. The Court declined so to charge, and instructed the jury, inter alia, as follows:"The main question in the case is whether the Contract-Suit thereon by a third party- When promise set up by the plaintiff was made or not. sustainable and when not-Practice. When one person enters into a contract with another to pay money to a third person, or to deliver some valuable thing, and such third party is the only one interested in the payment or the delivery, he can release the promisor from performance or compel performance by suit. If, on the other hand, a debt already exists from one person to another, a promise by a third person to pay such debt is for the benefit of the original debtor to whom it was made, and can only be released or enforced by him. The following are among the cases in which it has been held that a promise to pay the debt of a third person may be enforced directly by the original creditor. (1) When money or property is placed in the hands of the promissor for the particular purpose of paying the debt, and his promise rests upon that fact. (2) When the promissor has bought out the stock of a tradesman and undertaken to take the place, to take the contracts and to pay the debts of his vendor. In these cases as well as the case of one who receives money or property on the promise to pay or deliver to a third person, said third person though not a party to the contract may be fairly said to be a party to the consideration on which it rests. The promissor is virtually turned into a trustee and said third person may therefore sue in his own name. But when the promise is made to and in relief of the original debtor upon a consideration moving from him, no particular fund or means of payment being placed in the hands of the promissor, out of which the payment is to be made, there is no trust arising in this promissor, and no title passing to the third person which he can assert by suit. A firm becoming insolvent confessed to A., who was an accommodation indorser for them to the extent of $40,000, a judgment of $25,500, upon which A. issued execution. In consideration of this judgment A. promised the firm to pay all their existing debts without regard to their number or amount. B., who was a creditor of the firm, subsequently brought suit in his own name against A. upon this agreement to recover the amount owing to him by the firm : Held, that as no fund was specially provided for the payment of plaintiff's debt and no property set apart for his benefit, he was not entitled to maintain an action against A. on the alleged contract, either in his own name or in the name of the firm to his use. Held, therefore, that the defendant was entitled to judgment. Error to the Common Pleas of Lehigh County. Assumpsit, by David Kuehn against Samuel [Upon this question of the indebtedness of the Weavers to Adams considerable evidence has been introduced and has been commented upon extensively. On the part of Adams it was shown to rebut the idea that the promise was made, and to show possibly the improbability of its being made; that the Weaver Bros. were indebted to him for the amount of this judgment and had prethe amount of a judgment which viously been given of $11,500, and much more, and on the part of the plaintiff to meet that theory of the defendant it has been attempted to be shown that the indebtedness to Adams was not that much; nothing like it. If that is true it helps you to determine as to whether this You can use it as a promise was made or not. circumstance for that purpose; excepting its bearing upon that question it has nothing to do with the case.] "We say to you that the confession of the judgment to Mr. Adams was an advantage to him, and if at the same time there were other creditors of the Weaver Bros., it was a detriment to them, and if the inducing cause to give the judgment, to confess it, was the promise of Adams-a demand made by the Weaver Bros. that the other creditors should be paid, and assented to by him-then if David Kuehn was at that time a creditor, he can recover; and if that promise was not a consideration moving the Weaver Bros. to confess the judgment, then the plaintiff cannot recover." Verdict and judgment for the plaintiff. The defendant thereupon took this writ, assigning for error, inter alia, the refusal of his points and the portions of the charge above cited in brackets. Edward Harvey, for the plaintiff in error. A party cannot separate one entire cause of action into two parts and bring two separate suits thereon. Carvill v. Garrigues, 5 Pa. St. 153. |