.

tiffs each month, beginning with June 14th, up | defendant anything beyond the rental already to February, 1915, statements of the number of paid or accounted for, as set out in the bill. The cubic feet of gas which passed according to the bill must therefore be dismissed, with costs to readings of the meter, and paid the plaintiffs be paid by the plaintiff. Let a decree be drawn therefor at the rate of 2 cents per thousand accordingly. on these readings; the amounts of gas and the payments thereon being set out in the eighth paragraph of the bill.

We are clearly of opinion that when the parties contracted that the gas should be measured by meter at the well, without anything being said about the pressure and without any obligation on the part of the lessee to keep any measurement of record of the pressure, they must be deemed to have meant that a meter should be put upon the line and the gas passed through it from the well, and that it should be paid for according to the readings of the meter. Having 4. MINES AND MINERALS found that there was no custom to the contrary, LESSEE-INSTRUCTION-DAMAGES. it will follow that the plaintiffs have no right The court in such case properly charged the to a disclosure of the readings of the pressure jury that plaintiffs could recover damages suffergauge of defendant, and no right to recover from ed, by reason of the stoppage of their mine, pro

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

vided the loss was caused by the harmful acts | mained unmined. Nothing further was done of defendants, and not otherwise.

[Ed. Note.-For other cases, see Mines and

Minerals, Cent. Dig. § 247; Damages, Cent.
Dig. § 273.]

5. MINES AND MINERALS ~55(7) — LEASE ·
RIGHT TO REMOVE.

The fact that mine operations had been discontinued for years before plaintiffs took possession under their mining lease did not deprive them of the right to remove coal through the entry under defendants' land, where there was still remaining a considerable quantity of coal which plaintiffs had the right to remove, where the deed under which plaintiffs' lessor claimed gave the perpetual privilege of passing through and under the land with other coal, and where the deed to defendants of the surface reserved the coal with the right to use the entries for transportation of coal lying under the surface.

until December 9, 1911, when a lease of the remaining coal was made to plaintiffs, who proceeded to put the mine in repair and began taking out the unmined coal. In doing so they were obliged to pass through the entry under defendants' property. The surface covering the entry or tunnel was quite shallow, not over three or four feet at many places. A small stream ran through defendants' land, and to carry its flow of water over the tunnel a plank roof was constructed which served the purpose of supporting the bed of the stream and preventing its waters from breaking through into the mine. Near the creek and on defendants' property was a break in the surface or cave-in, forming what is termed a "pit-hole." There is evidence that in 1907 defendants dug a trench or ditch on their land from the creek to the pit-hole and diverted the water, mud, and sewage of the creek into the mine. Following plaintiffs' possession under their lease, they turned the water of the creek into the original channel, thereby preventing it from flowing into the pit-hole, whereupon defendants again changed the natural course of the run, causArgued before BROWN, C. ing the water to flow into the mine through MESTREZAT, POTTER, STEWART, and the pit-hole opening. Defendants also made FRAZER, JJ.

Appeal from Court of Common Pleas, Allegheny County.

Trespass by John L. Sorg and others against Edward Frederick and Anna Sophia Frederick, his wife, for injury to plaintiffs' mines. Verdict for plaintiffs for $1,620, motions for new trial and for judgment non obstante veredicto overruled, and judgment on the verdict, and defendants appeal. Affirmed.

J.,

and

John P. Patterson, J. H. W. Simpson, and Crumrine & Patterson, all of Pittsburgh, for appellants. W. H. Pratt, of Pittsburgh, for appellees.

* * *

FRAZER, J. Previous to 1896 the heirs of William Stone owned and operated a coal mine in Allegheny county underlying a tract of land, a part of which they acquired under a deed conveying to them "all the coal and all other minerals lying in and under the surface" of the land without liability "for any damage done to the surface of said described tract of land, in consequence of mining and working out said coal by the usual mode of mining and working the same." The grantees also to have the "perpetual right and privilege of passing through and under said described tract of land with other coal and minerals," etc. Subsequent to the deed to the Stone heirs, the surface of the tract was conveyed to Anna S. Frederick, one of the defendants, the deed "excepting and reserving therefrom and thereout all the coal underlying the same and the right to mine, take, and carry away all said coal, and also the right to use and occupy any and all entries under said tract of land and the right to enter upon said tract of land for the purpose of repairing any entry or entries when it becomes necessary, and the right to use said entries for the transportation of any coal that lies in that vein or stratum" and without liability for surface support. The work of mining the coal was suspended in 1896, at which time about fourteen acres re

two other openings in the bed of the stream, thus permitting water and sewage to enter the mine at these additional places. One was made March 10, 1914; another July 16, 1914. They also deposited sewage and rubbish in the air shaft leading into the mine. Plaintiffs alleged these acts of defendants put them to great expense to keep the passageway clear, and that at one time a cessation of operations in the mine was made necessary until the débris could be removed. Following a number of ineffectual attempts to induce defendants to desist from interfering with the operation of plaintiffs' mine, an action of trespass was begun to recover the cost of cleaning the mine and for a loss due to suspending operations while the work was being carried on. There was also a claim for punitive damages. The actual loss, cost of cleaning the mine, as claimed by plaintiffs was $4,967.55. There was a verdict for plaintiffs for $1,620, followed by motions for a new trial and judgment non obstante veredicto, which were overruled, and judgment entered on the verdict. Defendants appealed. [1] The assignments of error are principally to various parts of the charge of the court below, the chief complaint being raised by the second assignment, which alleges the trial judge erred in submitting to the jury the question of damages, so far as the cost of cleaning the mine was concerned, for the reason that a portion of the obstruction had accumulated before the date of the lease to plaintiffs, for which they admittedly could not recover, and, further, there was not sufficient evidence to submit to the jury fixing

that clear to your satisfaction, of course you cannot allow damages for it. It is the business his damages are, and if this money was spent of a plaintiff who claims damages to show what generally cleaning out the mine, and part of it was due to a condition that existed before they rented, they cannot claim that. They rented it as they found it. So you will keep that clearly in your minds in figuring the damages, if you come to the question of damages."

In view of the fact that all damages claimed were the result of the same character of wrongful acts on the part of defendants, the jury could not have been misled as to the basis on which they were to compute their finding, even though the court did not spe

discussing the separate acts of defendants.

[3-5] In regard to the measure of damages suffered by reason of the stoppage of plaintiffs' mine, the court properly charged that plaintiffs could recover such compensation provided the loss was caused by the wrongful acts of defendants and not otherwise.

the proportion of the expense due for removing rubbish, etc., accumulated subsequent to that date. Plaintiffs however contended they removed only the débris accumulated after December 9, 1911, when they went into possession under their lease. If this be true, there can be no question of division of the damages. Although the evidence is not clear on this point, it seems the cleaning required almost constant attention to keep the entries in usable condition. One witness testified to rubbish and sewage being deposited in the mine as a result of defendants' acts almost continuously between December, 1911, and 1914, and another that the amount claim-cifically repeat the standard of measure in ed was the expense plaintiffs were put to in removing the débris collected between those dates. While the latter witness subsequently admitted he did not see the mine before the date of the lease, it was for the jury, and not for the court, to say whether the testimony that only accumulations resulting subsequent to the lease had been removed was to be be Defendants also allege error on part of the lieved or disregarded. The trial judge prop- court below in allowing the jury to impose erly instructed the jury that the burden was punitive damages. There was evidence of on plaintiffs to show the damage arose sub-repeated wrongful acts on the part of desequent to the time they took possession un- fendants, notwithstanding plaintiffs' frequent der their lease, and, if part accumulated protest that their mine was being injured previous to that time, show what part of the and its operation interfered with, and that damage claimed was due to the removal of defendants disregarded these protests and subsequent accumulations. In Zehner v. threatened plaintiffs or their employés with Shepp, 54 Pa. Super. Ct. 529, cited by de- bodily harm if they attempted to close the fendants, the damage was caused by a de- openings and prevent the water of the stream posit of coal dirt in a dam or millrace. No from flowing into the mine. Under these claim was made that plaintiffs' mill had been circumstances the court was justified in damaged by defendants before the time plain-charging that, if the jury concluded the trestiffs took possession of the mine for which pass was willful and malicious on the part of damages had been recovered. The only proof, however, of damage was the cost of removing the entire accumulation without evidence of cost of taking out the part which had previously collected. Here there was evidence that the actual cost was for the removal of débris accumulated since plaintiffs took possession of the mine.

[2] Defendants also allege the court failed to adequately instruct the jury regarding the measure of damages. The case was tried on the theory that defendants were liable for the cost of removing such part of the obstructions as had collected or were deposited in the mine by reason of acts subsequent to the time plaintiffs took possession under their lease. The large volume of testimony taken indicates clearly that all parties understood this to be the proper measure of damages; the only dispute being the amount and extent of liability. The jury could therefore not well have been misled as to what damages, if any, they should allow. The court, after referring to the figures given by plaintiffs bearing on the cost of removal of the accumulations, charged that:

"The expense was something very large; it amounted to the employment of one man for a very considerable length of time, and it is for the plaintiffs to satisfy you that they actually spent that money as a result of the wrong done

defendants, they might allow punitive as well as actual damages. Nagle v. Mullison, 34 Pa. 48; Pittsburgh, Cin. & St. Louis Ry. Co. v. Lyon, 123 Pa. 140, 16 Atl. 607, 2 L. R. A. 489, 10 Am. St. Rep. 517; Rider v. York Haven Water & Power Co., 251 Pa. 18, 95 Atl. 803.

Defendants also deny the right of plaintiffs to sue for trespass committed by defendants long after the original operation of the mine ceased, and rely in their argument on Webber v. Vogal, 189 Pa. 156, 42 Atl. 4, and Patterson v. Graham, 164 Pa. 234, 30 Atl. 247. These cases are not in point, for the reason that in the present case the deed under which plaintiffs' lessor claimed gave to the grantees the perpetual right and privilege of passing through and under the land with other coal and minerals and the deed for the surface to defendants contained a reservation of the coal with the right to use the entries for transportation of any coal that lies in that vein or stratum. And, although mining had actually ceased for a period of about 15 years, there was still remaining a considerable quantity of coal which plainUnder these tiffs had the right to remove. circumstances, the fact of discontinuance of operations for a time is immaterial.

The assignments of error are all overrul

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 943, 946, 957-959, 979.] 2. CORPORATIONS 244(2) LIABILITY OF

STOCKHOLDERS-TRANSFER-REGISTRY.

Where a stockholder who transfers his stock fails to have the transfer registered on the corporate books, he remains liable as a stockholder to the creditors of the corporation, and this is true though he had purchased for other parties, where there was no evidence of notice to corporation that he held the stock as trustee. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 962.]

3. CORPORATIONS m227

STOCKHOLDERS-INTEREST.

-

LIABILITY OF

Where the amount of the liability of a stockholder is ascertained, such liability from that date will bear interest.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 875, 881, 882, 886, 892.] 4. LIMITATION OF ACTIONS 65(2)-STOCKHOLDER'S LIABILITY-ACTION TO ENFORCE.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 261, 346.] 5. BANKS AND BANKING

47(1)—LIABILITY

OF STOCKHOLDERS-INTEREST. In such case, the stockholders were properly held liable for interest on the demand against

them from the date of assessment.

Trust Co. William A. Challener and Clarence Burleigh, both of Pittsburgh, for appellee.

MOSCHZISKER, J. This action was instituted by Charles F. Kirschler, as receiver of the Traders' & Mechanics' Bank, a corporation under the laws of Pennsylvania, against Samuel J. Wainwright and Charles P. Walker, copartners doing business as Walker & Wainwright. Mr. Walker died, and the record was amended by substituting his administrator as a defendant. The suit was in assumpsit to recover against the defendants on their liability as stockholders of the plaintiff corporation, under the special act of March 11, 1872 (P. L. 324), incorporating the Odd Fellows Savings Bank, the name of which was subsequently changed to the Traders' & Mechanics' Bank. Section 9 of this act provides that:

"The stockholders shall be individually liable for all debts and liabilities of said bank double the amount of stock held by them."

Judgment was entered on a verdict for the plaintiff, and the defendants have appealed.

The firm of Walker & Wainwright did a An action by the receiver of an insolvent brokerage business in the city of Pittsburgh bank against certain stockholders to recover on their liability under the special act of March at the time of the transactions involved in 11, 1872 (P. L. 324), providing that stockhold- this case. In 1902, 40 shares of the capital ers of such banks should be individually lia-stock of the plaintiff bank were purchased ble for all debts in double the amount of the stock held by them, was not barred by the stat- in their name, the certificate being issued acute of limitations, where more than six years cordingly. In 1903, a similar purchase of had elapsed from the date when the receiver 50 shares was made, which was followed was appointed, but less than six years had elaps- later in 1903 by one of 20 shares. The evied from the date when it was judicially ascertained on the receiver's petition that the bank's dence indicates that all this stock was collectable assets were insufficient to pay its bought for the account of a customer, Francis debts and the enforcement of the full statutory J. Torrence, and that the certificate for each liability of stockholders was authorized by the lot was assigned in blank by Walker & Waincourt. wright and delivered to Mr. Torrence, such deliveries not being made, however, until from three days to two years after the respective purchases. Moreover, notwithstanding the execution and delivery of the several blank transfers, the stock in question continued to stand on the books of the plaintiff corporation in the name of Walker & Wainwright, and no effort was made to apprise the bank of the alleged ownership of the transferee. January 23, 1908, at the suggestion of the Attorney General of the commonwealth, a temporary receiver for the bank was appointed by the common pleas of Dauphin county. February 4, 1908, Mr. Kirschler was made permanent receiver, the order for that purpose stating that the bank was then "insolvent and in an unsound and unsafe condition to do business"; further, that "the manner of conducting its business" was "injurious and contrary to the interests of the public." The receiver was authorized "to take charge of its property and wind up its business * * under and subject to the orders of the court"; and, having duly Frederic W. Miller, of Pittsburgh, for qualified, he proceeded with his duties. Febappellant Wainwright. Thomas D. McClos- ruary 21, 1910, Mr. Kirschler presented a pekey, of Pittsburgh, for appellant Colonial tition to the proper court, in which he aver

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 62, 64, 65, 68, 341.] Appeal from Court of Common Pleas, Allegheny County.

Assumpsit on statutory liability of stockholders by Charles F. Kirschler, receiver of the Traders' & Mechanics' Bank against Samuel J. Wainwright and Charles P. Walker, partners doing business as Walker & Wainwright, amended by the substitution of the Colonial Trust Company as administrator of the estate of Charles P. Walker, deceased. Verdict for plaintiff for $15,015 by direction of the court and judgment thereon, and defendants appeal. Affirmed.

Argued before BROWN, C. J., and MESTREZAT, MOSCHZISKER, FRAZER, and WALLING, JJ.

red an insufficiency of assets to meet the bank's indebtedness, and prayed for authority to enforce the full statutory liability of its stockholders, whereupon it was ordered and decreed that the petitioner "be and he is hereby authorized and directed to assess against each of said stockholders a sum equal to their statutory liability for the indebtedness of said bank, and to collect the same." An assessment was forthwith made, and, not being able to collect the amount alleged to be due by the defendants, on May 28, 1914, the receiver instituted the present suit.

[4, 5] As already noted, the bank was alleged to be insolvent on January 23, 1908, and closed its doors not later than February 4, 1908, when the permanent receiver was appointed. This suit was not brought until May 28, 1914, more than six years from the initial date of insolvency, but less than six years from February 21, 1910, when it was judicially ascertained that the bank's collectable assets were insufficient to pay its debts, and enforcement of the full statutory liability of the stockholders was authorized for that purpose. Hence the controlling question is: Does the statute of limitations Defendants assign for error the affirmance run from the initial insolvency decree, when of plaintiff's request for binding instructions, the receiver was appointed, or from the time the refusal of a like request on their own be- of the decree ascertaining the deficiency of half, and the subsequent declination to enter assets and authorizing the assessment? The judgment for them non obstante veredicto; court below determined that the latter was and they state three questions involved: the proper date to fix upon in computing the (1) When did the statute of limitations be- limitation period, and the defendants congin to run? (2) Under the circumstances of tend this was error; which contention we this case, were the defendants subject to shall now consider. assessment as owners of the stock here in controversy? (3) If subject to assessment, were the defendants liable for interest on the demand against them from the due date thereof?

[1-3] On the last two propositions the appellants contend that they were not legally liable as stockholders, and, if it should be decided to the contrary, then that no interest should be charged against them. Since we see no shadow of merit in either of these contentions, we shall first briefly dispose of them before taking up the more serious question of the statute of limitations. The governing rules of law in reference to defendants' liability, both as to principal and interest, are thus stated in 7 R. C. L. p. 393, § 378:

"A creditor of an insolvent corporation is entitled to hold liable as a stockholder him who appears to be such on the books."

Section 390:

The first statute depended upon by the appellants is the act of March 28, 1867 (P. L. 48), providing that:

"No suit at law, or in equity, shall be brought, or maintained, against any stockholder, or director, in any corporation, him with any claim for materials, or moneys, to charge for which said corporation. * could be sued, or with any neglect of duty as such stockthe delivery of the materials, or merchandise, or holder, or director, except within six years after the lending to or deposit of money with said corporation, * * or the commission of such act of negligence by such stockholder, or direc

tor."

"If the act applies so as to bar the statutory "Where a stockholder who transfers his stock liability of stockholders of an insolvent bank, fails to have the transfer registered on the corthen the statute would begin to run when the deporate books, he remains liable as a stockhold-posit is made and not at the insolvency of the er to the creditors of the corporation." See Aultman's App., 98 Pa. 505, 516.

Page 380, § 362:

"The weight of authority and reason are to the effect that, where the amount of the liability of a stockholder is ascertained, * * 串 such a liability will from that date bear interest; this is especially true if the stockholder denies and contests the question of his liability."

See Casey v. Galli, 94 U. S. 673, 677, 24 L. Ed. 168; Bowden v. Johnson, 107 U. S. 251, 263, 2 Sup. Ct. 246, 27 L. Ed. 386.

Therefore, on the admitted facts in this case, without regard to the alleged bar of the statute of limitations, under the law the defendants were liable as stockholders for the full amount of the assessment against them, with interest from the date thereof; but the question as to when the statute commenced to run against this liability presents an interesting and important point which

calls for more extended consideration.

bank; and we would have the rather anomalous position of the statute of limitations barring an action that could not be brought, because there is certainly no liability of the stockholder for the debts of the bank while the bank is solvent."

general statute of limitations of March 27, The question remains, however, Does the 1713 (Pa. Stat. at L., vol. III, p. 12) apply and bar the plaintiff's action? In disposing of this controlling point, the court below states

that in its opinion a ruling in Means' App., 85

Pa. 75, governs.

After calling attention to the fact that the charter of the bank involved in that case provided for double liability of stockholders, the learned trial judge says: holders in the court of common pleas of Frank"Certain creditors filed a bill against the stocklin county, the bank being situated in Cumberland county. A decree was entered against the stockholders and an appeal was taken. The three grounds: (1) That the court of Franklin judgment of the lower court was reversed on county had no jurisdiction to entertain the bill;