(2) the evidence was not sufficient to warrant it; and (3) the allowance to counsel was excessive. The denial of the power of the court to make the order is sufficiently answered by Trustees v. Greenough, 105 U. S. 527, in which it was held, in an elaborate and well-considered opinion by the late Justice Bradley, that "one jointly interested with others in a common fund, and who in good faith maintains the necessary litigation to save it from waste and destruction and secure its proper application, is entitled, in equity, to reimbursements of his costs, as between solicitor and client, either out of the fund itself or by proportional contribution from those who re ceive the benefits of the litigation." In that case the allowance was made by the circuit court; and Justice Bradley, referring to the amount of it, said: "The court below should have considerable latitude of discretion on the subject, since it has far better means of knowing what is just and reasonable than an appellate court can have." We think these principles are applicable to the case before us, and that it would be an affectation of research to cite the long line of cases, English, and American, which recognize and enforce them. In view of the question reserved in the order complained of, and the fact that it is squarely raised by the bank on its appeal from the decree confirming the auditor's report, we need not now consider whether it has an equity which requires that the counsel fees shall be paid by the successful litigants.

The learned court below might have appointed a master or an auditor to report on the question of the amount of allowance proper for the services rendered, but it was not bound to do so. It might have derived some assistance from the report of a master or auditor on the question, but it would have been advisory, and in no sense conclusive. Hence, if the court was willing to hear evidence on the subject, and determine the question of compensation without the aid of a master, there could be no insuperable objections to its doing so. Such method of meeting and disposing of the question has, at least, the merit or advantage of saving expense to the estate. There was a hearing by the court, at which evidence was taken in reference to the value of the professional services rendered to the estate, and an opportunity was afforded to the appellant to introduce evidence in reply. The latter refused to do so, saying, through its counsel: "We object to the form of the proceedings, and it will be incompetent for us to produce witnesses." The learned court, upon the evidence before it and the knowledge acquired by its review, upon exceptions to the master's reports, of the cases in which the services were rendered, fixed the compensation to be paid for them. In view of the principles stated, the nature of the services, and the benefits derived from them by the estate, we cannot say the allowance was excessive or unreasonable.

The specifications of error are overruled. Judgment affirmed, and appeal dismissed, at the costs of the appellant.

FIRST PRESBYTERIAN CONGREGATION OF EASTON v. SMITH et al. (Supreme Court of Pennsylvania. Oct. 1, 1894.)

NEGLIGENCE-BURSTING SEWER-LIABILITY OF

CONTRACTOR.

1. A contractor is not liable for damages caused by the bursting of a sewer completed by him, under direction of the city, in a manner claimed to have been negligent.

2. A contractor is not liable for damages caused by the bursting of a sewer, where he had completed the work, and the city had assumed control thereof, though it had not formally accepted it.

Sterrett, C. J., dissenting.

Appeal from court of common pleas, Northampton county.

Action by the First Presbyterian Congregation of Easton against Smith & Minnahan to recover damages caused by the bursting of a sewer. There was a judgment for defendants, from which plaintiff appeals. Affirmed.

R. C. Stewart, R. I. Jones, and O. H. Meyers, for appellant. Henry W. Scott and W. S. Kirkpatrick, for appellees.

DEAN, J. The church of plaintiff is a large brick building on the northwest corner of Second and Bushkill streets, in the city of Easton. On January 2, 1891, Bushkill street, in front of the church, commencing at the line of Second street, and extending along the street for 75 to 80 feet, caved in, taking with it a portion of the pavement. A large sewer and the water main of the Lehigh Water Company were located longitudinally on Bushkill street, and after the cave-in were found to be broken. A great quantity of water from both flowed towards the church, undermined the pavement, and saturated the foundation, causing very serious damage to the property. The plaintiff alleged the damage was caused by the negligent construction of the sewer, in this: The church service pipe connecting with the water main had broken, and the water flowing therefrom had broken in the sewer, undermined the pavement, and damaged the foundation, before being perceptible from the surface. The ground being frozen at the time, until the cave-in the crust was not disturbed. The service pipe broke, it was alleged, because, in constructing the sewer, the trench was negligently filled up; the plank sheeting, supporting temporarily the sides of the excavation during construction, being left in, and the cross timbers permitted to remain resting on the service pipe, and then the filling up done by puddling instead of tamping. As a result, when the earth settled the weight wrenched off the service pipe from its connection, and the injury followed. The plaintiff held the defendants answerable for the consequences of this

negligent work at the sewer, because, it was averred, they had, as independent contractors with the city of Easton, constructed it under a written contract made the 1st of April, 1890, in pursuance of which contract, they had finished the work about June 12th, following. At the trial, there was much evidence on both sides on the questions: (1) Was the injury caused by the negligent construction of the sewer? (2) If so, then did this negligence consist in following the directions of the city engineer, as provided in the contract? The court, in a very full charge, submitted the evidence bearing on both questions to the jury. There was a verdict and judgment for defendants, and then this appeal, with 38 assignments of error, each one of them pressed earnestly at the bar, and in elab-❘ orate argument in voluminous paper books.

At the trial below, as the case was presented by counsel, and submitted by the court to the jury, the question of negligence was con sidered first, and that of answerability of defendants second. We reverse this order, and inquire first whether, under the contract and evidence, the defendants are answerable, regardless of proof of negligent construction.

If the negligence which caused the injury was puddling up of the sewer trench, and leaving in the sheeting which rested on the service pipe, was this the act of the city, or that of the defendants, as independent contractors? If the city, by the contract, retained control of the method of performing the work, then, to the extent defendants followed the method prescribed, certainly they were not independent. The city ordinance, under date of 29th of November, 1889, enacts: Section 1. "*** The department of sewers is hereby authorized to construct the following described sewers in accordance with the adopted map and plan on file in the of fice of the city engineer." Then follows a detailed enumeration of sewers, main and lateral, according to an elaborate plan. The sewer on Bushkill street is called "Main Sewer B." Then section 4 enacts, "The building of said sewers shall be under the supervision and management of the city engineer." Paragraph 47 of the contract stipulates that the sewer shall be constructed according to the plans on file, and according to the grades and lines given by the engineer, * and the sides of the trench shall, at the contractor's expense, be supported by proper timber work, when required by the engineer, to prevent caving, *** and, after the completion of the brickwork, shall be carefully filled up and tamped around the sewer in horizontal layers of not over six inches, until the filling reaches a height of one foot above the top of the sewer, and then carried up in horizontal layers of not over nine inches, to the surface of the street, or within such distance of the surface as the engineer shall direct. And the engineer shall have the right to make alterations in the line plan, form, or quantity of the work; and in

consideration of the completion of the work in conformity with the specifications and stipulations, and in strict accordance with the instructions of the engineer, the city agrees to pay, etc. And so, all through the contract, the intent of the city is to reserve control, not only of how the work shall be done to meet the specifications, but to change or vary the specifications as circumstances might suggest during the progress of it. The contractors had but very little authority, independent of the city engineer. In substance, they were to follow the specifications, unless the engineer directed otherwise. When the engineer did direct, then the city exercised the control it had reserved, and the contractors were, as to such work, not independent.

On turning to the evidence touching on the filling of this trench in front of the church, we find that by the ordinance the sides of the trench were to be supported by timberwork when required by the engineer, to prevent caving, and the completion of the work, by the contract, was to be in strict accordance with his instructions. The brickwork of the sewer having been finished, to complete the work required tamping or puddling, either with the sheeting left on the sides of the trench, or with it taken out. Then the engineer gives this order: "Easton, Pa., June 10th, 1830. Messrs. Smith & Minnahan: You will not remove any of the sheet piling now on Bushkill street between Front and Third streets, as I am afraid, by so doing, you will. interfere with the gas and water mains. Yours, truly, A. J. Cooper, Engineer." The city had reserved the right to make such an order, and the contractors were bound to obey it. In so far as leaving the sheeting in was negligence, the city was answerable for the consequences. The engineer further testifies that the method of filling up the trench was by his directions; that he directed them to puddle, instead of tamping, three feet above the archway to the surface, and it was done as he directed, because, in his opinion, puddling, as ordered by him, was better work than tamping. James Smith, one of defendants, who had supervision of the work in front of the church, testified that, after tamping three feet above the arch of the sewer, from there to the surface it was puddled, as directed by the city engineer. There is no evidence in the case which contradicts this testimony tending to show that the work of filling the trench was wholly controlled by the city. There may have been negligence on the part of the city in the methods adopted, but in giving such directions as were given there was no usurpation of authority, but only the exercise of an authority reserved, and to be exercised, if the city chose, independent of the judgment of the contractors.

All the authorities cited by appellant, determining the liability of an independent contractor, are to the effect that if the power to direct is only as to the results of the work,

without any control over the manner of performing it, the liability of the contractor remains. But this contract reserved far larger powers than mere direction as to results. As to many items of the specifications, the right to direct the manner in which the work should be done was retained. In very few of the many specifications was the method of carrying them out left to the skill and judg ment of the contractors. Even the right to discharge incompetent workmen was reserved to the city engineer. If these contractors had done this work in front of the church in the mode set out in the specifications,-the engineer only giving such directions as would insure his approval of it,-the cases cited (Hunt v. Railroad Co., 51 Pa. St. 475; Harrison v. Collins, 86 Pa. St. 153; and others to the same effect) would apply; but here the case is clearly within the rule laid down in Allen v. Willard, 57 Pa. St. 374, that the liability of the employer continues where he has not relinquished his control over the work to be done, and the mode of performing it. The testimony of Cooper, the engineer, and Smith, the contractor, was admissible, because it tended to show the actual exercise by the city of the right reserved under the contract, the alleged consequence of which was the damage complained of. The plaintiff alleged, "It was negligence to leave in the sheeting, and to puddle the filling of the trench." The defendants replied, "This was not negligence, but, even if it were, the city did it, not we." And there is nothing in the evidence to contradict them. True, if the puddling was negligently done after the engineer directed the contractors to follow that method, and such negligence occasioned the injury, the contractors could not escape liability because the city had changed the method, and there was some evidence tending to establish this part of plaintiff's case. It seems to be made more prominent here than in the court below. Appellant's seventh point, however, fairly embraces it, and the refusal of the court to unqualifiedly affirm it would, if another trial could be ordered, be ground for reversal.

But there is another point made by appellees to sustain their judgment, which, it seems to us, is conclusive against the appellant. The evidence shows, without dispute, that the Bushkill street sewer, in front of the church, between Second and Third streets, was finished by defendants about the 12th of June following the date of the contract, and that outlet connections were soon after made with it; further, that on August 12th, following, it was fully completed, and an ordinance was adopted regulating the connections to be made with it by residents, and permits were issued to those entitled to use it. The sewer had been in possession of and in actual use by the city for more than four months before the damage was done the church. The street, the surface of which was 20 feet

above the sewer, had been repaired, and all traces of construction at this point had disappeared. Clearly the city had in fact resumed full possession of this part of it. That a formal ordinance accepting the whole of the work done in the city under the contract was only adopted October 10, 1891, subject to the conditions of the contract, does not affect the question we are considering. This is not a contention between the city and its contractors, but between a third party and the contractors. It was the defendants' duty to construct the sewer according to their contract. That is their contract duty, and they were answerable to the city for any breach of it, under certain circumstances, even after the work was taken off their hands. But the injury was caused after the completion of this part of the work, and after it had been in full use and possession by the city for months. An action of this character, in this state, against the contractor, rests on the principle that pending the performance of the work he is in the place of his employer. Reynolds v. Brathwaite, 131 Pa. St. 416, 18 Atl. 1110. The Pennsylvania rule deducible from all the cases is that if the employer, at the time he resumes possession of the work from an independent contractor, knew or ought to have known, or from a careful examination could have known, that there was any defect in the work, he is responsible for any injury caused to a third person by defective construction. Whatever defects there were in this work, if any, must have been known to the city when they took possession, in August, and not only made connection with other sewers for outlet, but with the properties of residents for inlet. Their engineer, specially qualified, every day during its construction saw the material used, and the character of the work; besides, gave special directions as to how it should be done. In Curtin v. Somerset, 140 Pa. St. 70, 21 Atl. 244, the contractor for an hotel building had completed his contract, and it was accepted by the architect and building committee of the hotel company. Four days afterwards, when a number of the guests of the hotel, among them the plaintiff, were on the porch, witnessing a display of fireworks, one of the girders supporting the porch gave way, and plaintiff was seriously injured. He brought suit for damages against the contractor, alleging negligence, in that the girder was of hemlock, an unsuitable hemlock, an unsuitable wood to sustain weight; that it was smaller in size than the contract specification called for; that it was crossgrained; besides, had been notched with an axe. This court held that an independent contractor who builds a house, bridge, or does any other work, owes no duty to third parties after the work is taken off his hands by the owner. The rule laid down in Whart. Neg. §§ 438, 439, is decided to be the law: "There must be a causal con

nection between the negligence and the hurt; and such causal connection is interrupted by the interposition between the the negligence and the hurt of any independent human agency. * Thus, a contractor is employed by a city to build a bridge, and after he has finished his work, and it has been accepted by the city, a traveler is hurt, when passing over it, by a defect caused by the contractor's negligence. Now, the contractor may be liable on his contract to the city for his negligence, but he is not liable to the traveler, * because, between the

traveler and the contractor intervened the city, an independent, responsible agent, breaking the causal connection." In the case cited it was held by this court that the court below should have instructed the jury that, as the accident happened after the work had been accepted and the owner had resumed possession, there could be no recovery by a third party against the contractor for negligence. The English cases, as well as those in this state, were noticed, and it was decided that none of them were in conflict with this principle. The "causal connection," as Mr. Wharton terms it, is broken, not by a resolution or ordinance, but by a fact. Has the contractor abandoned his temporary possession, and the owner resumed his permanent one? If so, the answerability of the contractor for breach of duty is to the owner, under his contract, not to third parties, for as to them he no longer owes any duty. He no longer stands in place of the owner, for the latter has resumed his relation to the public. On this ground alone the defendants were entitled to a peremptory instruction in their favor; and, while the instructions on the first question were not as full and explicit as appellants had a right to ask, no harm was done them, for they, on the whole evidence, were not entitled to a verdict. The judgment is affirmed and appeal dismissed, at costs of appellant.

A subcontractor for a house on a lot apparently owned by the contractor, in whose name the deed stood, and who was in possession and represented himself to be the owner, is entitled to a lier for materials furnished prior to the time he knew or should have known that another was the owner, notwithstanding a secret agreement by the apparent owner to build and not allow any liens.

Appeal from court of common pleas, Lycoming county.

Action by M. D. L. McCollum against James A. Riale, owner or reputed owner, and

W. H. Messenger, contractor, to enforce a mechanic's lien. Judgment for defendants. Plaintiff appeals. Reversed.

W. M. Stephens, for appellant. H. T. Ames and T. H. Hammond, for appellees.

MCCOLLUM, J. Four-fifths of the materials for which this claim was filed were furnished on the order of Messenger while he was the apparent owner of the lot, and all of them, except the transom door frame, were furnished before the material man was informed that Riale had any legal or equitable title to or interest in it. All the appearances were in accord with Messenger's representations, when he ordered the materials, that they were for a house he was building on his lot on Park avenue. His deed for the lot was on record, and there was no visible change in his possession of it. There was absolutely nothing discernible anywhere to suggest, or in the remotest degree indicate, any change in his relations to the property, or that in erecting a house upon it he was the representative or agent of another. In short, the record, the appearances, and Messenger's representations to the appellant united in presenting the case of an owner of a lot ordering the materials for and erecting a house upon it. But it is urged that the appellant is not entitled to a lien for his claim because (1) in August, 1889, Messenger verbally agreed with Riale to sell the lot to him, and that in pursuance of this agreement a deed of it was made and delivered to the latter on the 5th of October following; and (2) that soon after the agreement to sell the lot he verbally agreed with his vendee to build for him a house upon it, and "not to allow any lumberman's or mechanic's lien to be entered against it." The agreement in respect to the erection of the house was not reduced to writing and signed until September 26, 1889, or six days after the materials were ordered, nor was anything paid on the lot until that time. The appellant, while conceding the principles enforced in Schroeder v. Galland, 134 Pa. St. 277, 19 Atl. 632, and kindred cases, contends that upon the facts above recited he is entitled to a lien upon the building for materials furnished and used in its construction. In considering this contention it must be remembered that when Messenger ordered the materials for the house he was the owner of the lot, and his title to it was shown by the record. Riale had then no enforceable equity or claim in or upon the lot, because the verbal agreement gave him none, and he had done nothing in pursuance of it which prevented his vendor from successfully repudiating it. Messenger's possession of the lot when he commenced the erection of a house upon it was in accord with his title, and so were his representations that the materials he ordered were for a house he was building on his lot on Park avenue. What was there in the cir