Pennsylvania Railroad v Kerr.

been decisions, it is true, imposing liability against the reasons we have expressed above, but in none of them is the question of proximate and remote cause of the injury discussed at all. Such is the case in Piggot v. The Eastern Counties Railroad Co., 54 E. C. L. R. 229, cited by the counsel for the defendant in error; and such is the recent case of Smith v. The London and Southwestern Railway Co., Law Rep., March, 1870, p. 98. In this case, BOVILL, C. J., and KEATING, J., affirmed the recovery. BRETT, J., dissented. Both these cases were in the court of common pleas. I find no review of the question in the exchequer chamber. I regard these cases as passing over the question that was decided in the court of appeals in New York, and which is before us now, sub silentio. HUNT, J., expresses, to some extent, my experience, when he says: "I have examined the authorities cited from the Year Books, and have not overlooked the English statutes on the subject, or the English decisions, extending back for many years. It will not be useful further to refer to the authorities, for it will be impossible to reconcile some of them with the views I have taken." I entirely agree, that if they shed any light, it is too uncertain and dim to be followed with safety; while, on the other hand, the concurrence of principle, with a just measure of responsibility, we think, is best subserved by the rule we suggest. With every desire to compensate for loss when the loser is not to blaine, we know it cannot always be, without transcending the boundaries of reason, and, of course, of law. This we cannot do, and we fear we would be doing it, if we affirmed the judgment in this case. The limit of responsibility must lie somewhere, and we think we find it in the principle stated. If not found there, it exists nowhere. We have not been referred to any case, in any the state courts, excepting those noticed; and I have not myself discovered any which, in the least, militates against the foregoing views. We are, therefore, constrained to follow the result of our conclusions, and reverse the judgment in this case. At present we will not order a venire de novo, but if the plaintiff below and defendant in error desire, we will order it on grounds shown for it, if made in a reasonable time.

Judgment reversed.

of

Schmertz v. Shreeve.

SCHMERTZ et al. v. SHREEVE et al.

(62 Pa. 457.)

Partnership-contracts under seal of partner.

A partner has no authority to bind his firm by an instrument under seal, even where the seal is not essential to the validity of the instrument.

But where the contract is independent of the instrument, and has been executed on behalf of the firm, the making for the purposes of evidence of an instrument, under seal, by a partner, will not vitiate such contract.

ERROR to court of common pleas, Venango county.

Action on an agreement for the sale of petroleum by defendants to plaintiffs, which agreement was in writing signed by the plaintiffs' firm name, and also by defendants' firm name of Shreeve & Say. The instrument was also under seal. The defendant Say signed the name of his firm and affixed the seal, for which acts he had no authority from his partner, who never recognized the agreement.

The jury found for the plaintiffs, but in no specific sum. The plaintiffs appealed. The specifications of error assigned appear sufficiently in the opinion.

S. C. T. Dodd and Myers & Kinnear for plaintiffs, cited Fichthorn v. Boyer, 5 Watts, 159; Bond v. Aitkin, 6 W. & S. 165; Johns v. Battin, 6 Casey, 84; Deckard v. Case, 5 Watts, 22; Hennessy v. Western Bank, 6 W. & S. 300; Dubois' Appeal, 2 Wright, 231; Story on Partn. 122; Tapley v. Butterfield, 1 Met. 515; Milton v. Mosher, id. 244; Baum v. Dubois, 7 Wright, 260; Jones v. Horner, 10 P. F. Smith, 214.

Taylor & Mackey and McCalmont & Osborn, for defendants.

SHARSWOOD, J. It is admitted, in the printed argument of the plaintiffs in error, that the first four assignments of error raise but a single question for decision, and this dispenses with the necessity of considering them separately. That question, as stated in the plaintiffs' first point, which the learned judge below answered in the negative, is, whether, when a partner signs with a seal the firm -ame to a contract, to the validity of which a seal is not essential, it

Schmertz v. Shreeve.

binds the firm. This question, of course, has reference to the particular instrument which formed the groundwork of the action. It was a contract to deliver merchandise at a future time, for a certain price, to be paid by the plaintiffs; and the suit was to recover damages for the failure of the defendants to fulfill that engagement. It was, therefore, an executory contract, imposing a new and original liability on the firm. It is certainly true, that a seal was not essential to its validity. But that is not the test. It rather is, did it change its nature? This is unquestionable. A seal imports consideration; and a contract under seal requires no consideration to support it. Moreover, there is no limitation prescribed by law to an action on a specialty or a covenant under seal. The law is too well settled to be now disturbed, that the general implied power of a partner does not extend to binding the firm by instruments under seal. There are some exceptions to this rule, none of which, however, impair the rule itself; for it is true in this instance as in all others, that exceptio probat regulum. The terms, indeed, in which the rule is stated exclude all cases of express authority to make the contract, and of subsequent ratification. Still, the authorities, in thus holding, confirm the general doctrine; for, where is the necessity of proving either prior assent or subsequent ratification, if the power is implied? Fichthorn v. Boyer, 5 Watts, 159; Bond v. Aitkin, 6 W. & S. 165; and Johns v. Battin, 6 Casey, 84, are, therefore, determinations in point. These were all cases of contracts, to the validity of which a seal was not essential. Bond v. Aitken, indeed, was a simple promissory note. But they were executory contracts. Executed contracts, such as assignments, stand on another ground. They form but the evidence of the act. The sale and delivery of merchandise, for example, is within the implied power of a partner. That he superadds a transfer, or bill of sale under seal, is but evidence of the act of disposition, and does not change its nature. When the property has been delivered, it matters not whether the instrument of transfer be under seal or not. Deckard v. Case, 5 Watts, 22. By the execution of the contract, consummated by delivery, the property is transferred to the assignees, which cannot be avoided by the fact that the instrument, which is the evidence of the agreement, is under the seal of one of the partners only. Hennessy v. The Western Bank, 6 W. & S. 300. In Dubois' Appeal, 2 Wright, 236, STRONG, J., takes the distinction between an executed and an executory contract. "The partnership relation," said he,

Burrell Township v. Pittsburg Guardians of the Poor.

"will not authorize one partner to execute an instrument, under seal, whereby a new and original obligation is imposed on the firm." See, also, Bewley v. Tams, 5 Harris, 485, and Snyder v. May, 7 id. 235. The cases of Baum v. Dubois, 7 Wright, 260, and Jones v. Horner, 10 P. F. Smith, 214, do not, as supposed, conflict with this doctrine. All that they determine is, that a parol authority to an agent to make a contract may be executed by him under seal; the seal, being beyond his authority, may be rejected as surplusage. It never has been decided, and probably never will be, that, where one partner expressly authorizes his co-partner to make a certain contract, his affixing a seal would vitiate it. The rule in question, accurately stated, extends only to the implied, not to the express, power of one partner to bind the firm. There was no error, therefore, in the answers and charge of the learned judge below, which form the subjects of complaint in the first four assignments of error.

But the judgment must be reversed, for the verdict is bad. This was expressly decided by this court in Miller v. Hower, 2 Rawle, 53, that a verdict, in an action of debt, finding no specific sum, is void, and the judgment was reversed on that ground alone; and this is again recognized and approved in Whitesides v. Russell, 8 W. & S. 47. Judgment reversed, and venire facias de novo awarded.

BURRELL TOWNSHIP V. PITTSBURG GUARDIANS OF THE POOR.

(62 Pa. 472.)

Settlement-child's settlement follows that of parent.

The settlement of the parents determines the settlement of an unemancipated child, and, where the head of the family changes his settlement, that of his children changes with him. This is the case when, upon death of the father, the mother becomes head of the family.

N. W., the widowed mother of A. K. W., removed from the township of Burrell where she had a settlement, to Pittsburg. She there leased a house, and resided in it until her death. In the meantime A. K. W. became deranged, and after the death of his mother became a pauper. Held, that by the act of the mother changing her settlement, that of A. K. W. was also changed, and that Burrell township was not liable for the support of the pauper. Although the father and mother stand upon a different footing as to their children, in relation to private parties, in regard to the public their standing is the same.

VOL. I. 56

Burrell Township v. Pittsburg Guardians of the Poor.

ERROR to court of quarter sessions of Indiana county.

Nancy Weir, the widow of McKee Weir, at the time of the death of her husband, resided in Burrell township, Indiana county. After her husband's death she removed to Cambria, and then to Pittsburg, her two sons accompanying her. In the spring of 1860 she leased a house in the ninth ward of that city, and was, at the time of her death, which took place about two years afterward, a resident of said ward.

Her son, Aaron F., aged about twenty, a year or so after coming with her to Pittsburg became deranged, and, subsequent to her death, up to which time he resided at home, was placed in a hospital, as a pauper.

An order having been made by two justices of the peace of Indiana county, adjudging the ninth ward of Pittsburg to be the pauper's legal settlement, which order was vacated by the court of quarter sessions, the township took a writ of error to this court.

Stewart & Clark, for plaintiffs, cited Mifflin v. Elizabeth, 6 Harris, 17; Act of June 13th, 1836, § 9, Pamph. L. 542; Purd. 797, pl. 16; 3 Burn's Just. 373; St. George v. St. Catharine's, 1 Settlement Cases, 69; Woodend v. Paulspury, 2 Ld. Raym. 1473; Barton Turfe v. Happisburg, Burrows Sett. Ca. 49; Oulton v. Wells, id. 64; St. Mutthew v. St. Catharine, id. 482; Dedham v. Natick, 16 Mass. 135; Bradford v. Lunenberg, 6 Verm. 481; Norwich v. Saybrook, 7 Conn. 384; Great Barrington v. Tyringham, 18 Pick. 264; Freetown v. Taunton, 16 Mass. 52; Hebron v. Colchester, 5 Day, 169; Lebanon v. Hebron, 6 Conn. 45; Nippenose v. Jersey Shore, 12 Wright, 402; Toby v. Madison, 8 id. 60; Marion v. Spring, 14 id. 308; Oxford v. Ramsey, 3 N. H. 331; Washington v. Bear, 3 W. & S. 548.

J. M. Thompson, for defendants, cited Act of 1836, §10, Pamph. L. 543; Purd. 797, pl. 18; Washington v. Bear, supra; Lewis v Turbut, 3 Harris, 147; Leech v. Agnew, 7 Barr, 21; Fairmount Pass. Railway v. Stutler, 4 P. F. Smith, 378.

THOMPSON, C. J. There was no dispute below about the fact that the father of the pauper Weir, had, at the time of his death, which occurred in the minority of the latter, a legal settlement in Burrell township. The dispute was, whether the mother had gained