Pennsylvania Canal Company v. Burd.

great freshets and tempests, or other events, which, in the exercise of reasonable and ordinary care, would not be anticipated, or could not be provided against. An injury resulting from an unknown obstruction, which could not be guarded against, without the exercise of extraordinary or unreasonable care, must be considered an accident for which no one is specially to blame, and for which the company is not liable. It would be unreasonable to require a canal company to sound and drag the whole length of its canal continually, to ascertain what obstructions might lie at the bottom, or to keep guards along the banks, to prevent the commission of injuries by careless or designing persons. But it is bound, annually at least, when the water is out of the canal, to inspect the bed and remove obstructions. Exchange Ins. Co. v. Delaware Canal Co., 10 Bosw. 180.

As the basis of his claim, the plaintiff below charged that the company was guilty of negligence in permitting a sunken log to lie in the bottom of the canal, on which his boat settled and was destroyed. It may be conceded, that if the company knew, or by exercising reasonable care and diligence might have known, that the obstruction existed, and neglected to remove it, a clear case of liability would be presented; but it is claimed that there was no evidence of either knowledge or culpable ignorance on the part of the company, and that the learned judge erred, not only in submitting the question of negligence to the jury, on wholly insufficient testimony, but in suggesting a state of facts not arising out of the evidence, and thereby gave the jury an unwarrantable license to speculate as to how the log came there, and to infer there from that the company knew, or should have been aware, of its presence, as a dangerous obstruction to navigation.

An examination of the testimony before us fails to disclose any evidence upon which the jury could reasonably and properly conclude there was negligence. In the concluding part of his charge, the learned judge says, "There is no evidence that the company had any knowledge of this log being there until the water was drawn off, in May 1876, and Burd's boat was sunk. The case thus stands on very narrow ground, * and you must, in order to find for the plaintiff, be satisfied that the persons whose duty it was to inspect the canal in the spring of 1876 did not perform that duty in a careful manner, and overlooked the log if it was then visi, ble in this deep part of the canal. These inspecting parties say it

* *

Pennsylvania Canal Company v. Burd.

was not visible then, and we have said, if it was not, or if there and invisible, the plaintiff cannot recover; and if it floated from Henlock creek, waterlogged and unseen after the navigation opened, in the spring of 1876, the company is not liable." While the question of knowledge on the part of the company is thus practically set at rest, for want of evidence thereof, the jury could not fail to understand that it was still incumbent on them to inquire whether the duty of inspection was carelessly or negligently performed. We discover nothing in the testimony to justify the court in submitting this question to the jury.

While refusal to enter judgment of nonsuit is not assignable for error, it may not be amiss to say that the court would have been justified in entertaining the motion. Viewing the testimony in the most favorable light, it was manifestly insufficient to sustain the allegation of negligence on which his claim is founded; in other words, there was no evidence from which the jury might reasonably and properly conclude there was negligence.

In that part of the charge, covered by the fourth assignment, the learned judge said to the jury, that if plaintiff's "boat was sunk in settling on a log, there would be a prima facie case of negligence made out against the company, because a log, unlike a stone, would float along before it would sink, and if a floating log escaped the attention of the company for any considerable time, long enough, say, to become waterlogged and sink, the fact of negligence could hardly be denied." "In determining this question should it be found by you that this log floated on the surface of the canal at any point, and was not taken out, but permitted to float until it sank, then it would be negligence in the company, and the plaintiff should recover the value of his boat."

*

If there had been any testimony to prove such a state of facts as is here suggested to the jury, the principles of law applicable to them would perhaps not be disputed, but the vice of this portion of the charge, as well as the answers complained of in the second and third assignments, is that there is no testimony tending to prove where the log came from, or that it "floated on the surface of the canal at any point, and was not taken out, but permitted to sink," etc. The suggestion of these as possible or probable facts, was wholly unwarranted by the testimony, and could only tend to lead the jury into a field of vague speculation, resulting in a verdict unsupported by the evidence. Judgment reversed.

In a sale of a drug establishment, if the purchaser has no knowledge of the business and relies on the seller's statement as to the value, and the seller knows of such reliance, and those statements are false, to the purchaser's injury, although the seller believed them true, the purchaser may be relieved.*

EJEC

\JECTMENT on a mortgage given for the purchase-price of the stock, lease and fixtures of a drug store. The purchaser had no knowledge of the business or property. The seller represented the stock and fixtures as worth $9,000 and at first asked $12,500 for the whole establishment, but finally abated $2,000. The purchaser relied on this representation, and no inventory was taken, the seller objecting to it on the ground that he did not want his clerks and customers to know of the sale, and because of the time and trouble it would involve. The whole establishment was afterwards sold at sheriff's sale for $2,000. The jury made an abatement to the defendant. The opinion states the instructions. The

plaintiff appealed.

H. M. Graydon, for plaintiff in error.

Fleming & Mc Carrell, for defendants in error.

GORDON, J. The only assignment of error that has particularly drawn our attention in this case, is that embracing the answer to the plaintiff's fifth point. Complaint is made that the answer is not responsive to the point, and this, we think, is well founded. It only remains for us to consider whether the plaintiff was entitled to an affirmative answer, for if not, if it might have been negatived or refused, then he has nothing of which to complain. The point is as follows: "Even if the jury should believe that Fenn relied upon the statements as to the value of the stock, made by the plaintiff, yet if they were made in good faith, and constituted the latter's real opinion as to such value, though the estimate might

*Compare Graffenstein v. Epstein (23 Kans. 443), 33 Am. Rep. 171.

Bower v. Fenn.

have been too high, it will be no ground of defense in this action, especially as the defendant had full opportunity to verify the statements, and might have declined the purchase unless an inventory was taken."

It will be observed that this point is put upon the ground that Fenn relied upon the statements concerning the value of the property, made by Bower, and consequently, that he dealt upon the faith of those representations. This of course means that Fenn was induced to depend upon Bower's knowledge of the stock, and to trust to that knowledge rather than to information which he might have acquired by an inventory, or by other means. This statement of the question, however, settles the controversy adversely to the point put, for if as the jury have found, the statements, made by the plaintiff, of the value of the property, were false in fact, his belief that they were true was of no consequence; for because of such belief they were none the less false, neither was Fenn the less deceived thereby. If Bower chose to permit Fenn to contract with him, on the faith of his statements of value, he was bound not merely to believe, but to know, that they were true. This very point is ruled in the case of Fisher v. Worrall, 5 W. & S. 478, wherein it was held, that a misrepresentation by a vendor of an occult quality in land, though it may have been made in ignorance of the truth, and although the vendee agreed to run the risk of this, was in an action for the recovery of the purchase-money a decisive objection to the plaintiff's recovery. Here, as in the case in hand, the contract resulted from the plaintiff's representations, which in the end turned out not to be true; without these, the contract never would have been made; hence, without regard to his belief, the plaintiff was responsible for their verity. The best indeed that can be said for Bower is, that he asserted for truth what he did not know to be so, but this, as is ruled in the case above cited, is equivalent to the assertion of a known falsehood.

Weist v. Grant, 21 P. F. Smith, 95, and Watts v. Cummins, 9 id. 85, have been cited in support of the point under consideration, but in both these cases Fisher v. Worrall is recognized as authority, and the cases are so clearly distinguished, by Mr. Justice AGNEW, who delivered the opinions in the two first named, that it is unnec essary for us to attempt a re-discussion of the subject.

[Omitting a minor point.]

Judgment affirmed.

Hamaker v. Blanchard.

HAMAKER v. BLANCHARD.

(90 Penn. St. 377.)

Lost property right of finder.

A servant in a hotel found a roll of bank notes in the public parlor, and informed her master, who suggested that it belonged to a transient guest, and received the money from her to give to him. It proved not to belong to the guest, and the servant demanded it from the master, who refused to return it. Held, that she could recover it from him.*

A

SSUMPSIT. Sophia Blanchard was a domestic in a hotel, of which the defendant was the proprietor. While thus employed, she found in the public parlor three twenty-dollar bills. On finding the money she informed defendant, and upon his remarking that he thought it belonged to a certain transient guest, she gave it to him for the purpose of returning it to the guest. It proved that the money did not belong to the guest, and no claim was made for it by anyone. Sophia afterward demanded it of defendant, who refused to deliver it to her. The plaintiff had judgment below.

H.J. Culbertson, for plaintiff in error. - An innkeeper is liable for the goods of his guest, including money, and if they are brought within the inn a responsibility is created. Houser v. Tully, 12 P. F. Smith, 92; Packard v. Northcraft's Administrators, 2 Metc. (Ky.) 439; Berkshire Woolen Co. v. Proctor, 7 Cush. 417; Edwards on Bailm. (2d ed.), § 459; Story on Bailm., § 417; Jones on Bailm. 95; 1 Add. on Torts (Wood's ed.), 755, 752.

J. A. McKee, for defendants in error.

TRUNKEY, J. It seems to be settled law that the finder of lost property has a valid claim to the same against all the world, except the true owner, and generally that the place in which it is found creates no exception to this rule. But property is not lost, in the sense of the rule, if it was intentionally laid on a table, counter or other place, by the owner, who forgot to take it away, and in such case the proprietor of the premises is entitled to retain the custody. Whenever the surroundings evidence that the article was deposited

*See Bowen v. Sullivan (62 Ind. 281), 30 Am. Rep. 172, and note, 180.