source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Bachert, Appellant, v. Lehigh Coal and Navigation Company.

      Trial — Charge of court — Setting aside verdict.

    In the trial of an action against a mining company at the time of labor troubles, it is'proper for the court to instruct the jury that their verdict should be founded on the evidence, to caution them not to be influenced by sympathy or prejudice, and to admonish them that a disregard of the latter instruction might lead to a setting aside of their verdict.

      Mines and mining — Obstruction of stream — Waters—Measure of damages.

    Where a stream is obstructed by refuse from a mine, prima facie the measure of damages is the cost of removing the refuse deposited.

      Mines and mining — Lessor and lessee — Negligence of lessee.

    A mining company which leases collieries to other parties is not liable for injuries to a stream caused by the lessees without the company’s knowledge and consent.

      Evidence — Expert—Mines and mining — Waters—Deposit of refuse.

    In an action to recover damages for injuries to a farm and mill site caused by deposit of mine refuse, a person who has merely knowledge of the value of farm lands in the vicinity, is not competent to testify as to the value of the property as a whole, including both farm and mill site.

      Appeals — Assignment of error — Evidence.
    An assignment of error "to the admission of evidence which does not set out the testimony admitted under objection, is not in accordance with the rules of court.

      Argued Feb. 15, 1904.
    Appeal, No. 146, Jan. T., 1903, by-plaintiff, from judgment of C. P. Schuylkill Co., July T., 1898, No. 354, on verdict for plaintiff in case of Elias Bachert v. The Lehigh Coal and Navigation Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for injuries caused by deposit of mine refuse. Before Marr, J.
    At the trial it appeared that the plaintiff owned a farm.and a mill situated on Little Schuylkill river, and that the property as a whole had been injured by the deposit of mine refuse in the river and mill dam, and on the land. There was evidence that there were other collieries besides those operated by the defendant from which the refuse came. Certain of the collieries were owned by the defendant but leased to other parties.
    Plaintiff presented this point:
    6. Under the terms of the lease to the Beddalls and Gerber, the defendant reserves the authority to direct the lessees in regard to disposing the slate, dirt and refuse from the breaker and mines, and the defendant is bound to answer to the plaintiff in damages for any injury that has resulted to him by reason of the negligent acts of said lessees in placing culm or muck or either into Panther creek or in such close proximity thereto that the same has been washed into it by ordinary rains and carried down upon the plaintiff’s land. Answer: This point is refused, unless the jury finds under the evidence that the alleged acts of Beddall and Gerber were done in pursuance of the authority or command of the defendant company, but the mere relation of landlord will not make the lessor liable for the tortious or negligent acts of its tenants, the lessee. [1]
    Defendant presented these points :
    2. The defendant is only chargeable for its own acts and not for those of its predecessors in title to the land or its tenants. Answer: This point is affirmed, unless it is shown that these alleged acts are or have been committed under the authority or command of the defendant. [2]
    5. The rule for the computation of damages in trespass cases for permanent injuries to land of the kind in suit, is the cost of removing the culm or coal dirt, unless the expense of removal exceeds the value of the entire property, in which case the value of the entire property is the limit of the measure of damages, and in no event can there be a recovery in excess of the value of the entire property for the permanent injury. Therefore, there being no evidence in the case that the cost of removing the culm or coal dirt from plaintiff’s land, mill dams and race would exceed the value of the entire property, the cost of such removal must be the measure of plaintiff’s damages. Answer: The point is affirmed. [8]
    8. Under the uncontradicted evidence in the case the plaintiff’s mill was running up to the time of trial with power furnished from water from his dam and race, and there is no evidence in the case that the mill was ever stopped because of want of water. Answer: The evidence shows that the mill was running up to the time of trial, with power furnished from his dam and water, but we decline to say that the mill was never stopped because of want of water. [4]
    The court charged in part as follows :
    [Jurors in the trial of cases of this kind are apt to allow their feelings of sympathy on one side, or their feelings, possibly, of prejudice upon the other, to induce them to render verdicts which the law does not consider proper, because those verdicts are frequently contrary to the law and contrary to the evidence in the ease; therefore verdicts rendered in, that way come to naught. They have to be set aside by this court. Or, by an act of assembly now, a higher court can reduce the verdicts where they are improper and not according to the evidence.
    The court of last resort has said in discussing these cases that the trial judge (myself in this case would be the trial judge) sits in some respects as a thirteenth juror, and it is his duty to see that the verdict rendered by a jury should be in accordance with the law and in accordance with the weight of evidence in the case, and not contrary to both or either. In a very recent case the Supreme Court has used this language in discussing a question of that kind. “ It is the clear duty of the court in peremptory language to hold the jury down to lawful damages, and if they disregard the instructions of the court, to set aside their verdict.”

      You see what my duty is unless you in reaching a verdict are governed by the evidence and by the law. If the court, the trial judge, in its instruction as to the law, makes a mistake or an error in its view of the law, there is a remedy. Either side can appeal to the higher court, and whatever error the trial judge has been guilty of can be corrected by the Superior Court, or the Supreme Court of this commonwealth, reversing the court below. You are the judges of the fact under the law. And if you render a verdict contrary to the weight of evidence and contrary to the law, under the peremptory instructions which the Supreme Court has laid down to us, it becomes my duty to set aside your verdict. Well, neither you nor the court want such a conclusion of a trial which has occupied now eight days. Therefore, knowing the tendency of jurors to allow their sympathies and their feelings to sway them in- rendering verdicts, I have thought proper to draw your attention to your duty under the evidence, and to our duty if you disregard your duty as we have been told it is our duty to do, by our courts of last resort.] [5]
    [The Supreme Court of this state has said: “ There is no doubt that the owner of coal lands may mine and remove his coal in a proper manner. If the drainage from the mines falls into and pollutes a stream of water, and injuriously affects lower riparian owners, this fact alone does not impose liability upon the owner of the coal.” Bear that in mind, that if the drainage of the mines falls into and pollutes a stream of water, and injuriously affects lower riparian owners, in this case the plaintiff was a lower riparian owner, owning a property below where the Panther creek emptied into the Little Schuylkill river, that this fact alone does not impose liability upon the owner of the colliery.] [6]
    [It is apparent to all of us that the mining operations of Schuylkill county are important not only to the owners of the collieries, but to all who live in this county; that if you were to shut up the mines of the county and stop mining operations, it might work a great deal of injury to most all other persons, or all other property, situated within the county. The great industry of the northern part of the county is its mining operations, and, practically speaking, without those mining operations in the upper end of the county a great deal of that territory would be useless, possibly almost uninhabitable. Therefore when you come to pass upon the negligence of the defendant, and upon the rights of the plaintiff, it is your duty to bear in mind that the defendant company has a legal right to mine its coal upon its own land. The very fact of there being collieries in this county is an important thing to the people who live in those neighborhoods. It is right for you to take that into consideration with the evidence in the case.] [7]
    [That'washeries caused most of the pollution of the stream.]

    Verdict and judgment for plaintiff for $8,020. Plaintiff appealed.

      Errors assigned were (1-8) above instructions, quoting them; (5-16) rulings on evidence in various matters.

      Jt. H. Koch, with him W F. Shepherd, for appellant.-
    It is error for a judge, in his charge, to use strong expressions of opinion or extravagant language, likely to prejudice the jury, or to comment in a way calculated to arouse their sympathies: Sampson v. Sampson, 4 S. & R. 329; Coal Co. v. Schuyler, 3 Leg. Gaz. 106; Burke v. Maxwell, 81 Pa. 139.
    When a witness is shown to have personal knowledge of the market value of certain land or lands in the neighborhood of that in question, he is competent to give his opinion as to the value of said land, and as to the extent of damages thereto: Curtin v. Nittany Valley R. R. Co., 135 Pa. 20; Pittsburg, Virginia, etc., Ry. Co. v. Vance, 115 Pa. 325.

      Q-eorge M. Roads, with him F. Gr. Farquhar, for appellee,
    cited: Robb v. Carnegie, 145 Pa. 324; Penna. Coal Co. v. Sanderson, 113 Pa. 126; Seely v. Alden, 61 Pa. 302.
    March 7, 1904:
   Opinion by

Mr. Justice Fell,

This action was to recover damages for loss sustained by the plaintiff, a lower riparian owner, by reason of the deposit of coal dirt in his mill dam and race and on a portion of his land. The plaintiff’s property was on a bank of the Little Schuylkill river, from which his water power was derived. The defendant owned a number of collieries near the banks of Panther creek, which flowed into the river some distance above. It was not disputed that the plaintiff’s property had been injured by the deposit of refuse matter from collieries, and that this refuse matter came mainly from the creek and was carried into the river at times of unusually high water. The defendant denied that it had been negligent, and claimed that its mining operations had been carried on in the most skilful manner, and it showed that it had built retaining walls by the side of its culm banks and had constructed settling dams, mud banks and other appliances to protect Panther creek and its tributaries^ and had.spent a half million dollars in its efforts to prevent refuse from its collieries from passing into the river. The controverted questions at the trial were (1) whether the defendant was liable at all; (2) if liable, for what part of the loss sustained, since there were collieries in the valley of Panther creek not operated by it; (3) the measure of damages, whether the cost of removing the deposit of refuse or the depreciation in the value of the property.

The main objection urged to the charge is that it tended unduly to lead and control the jury, and was prejudicial to the plaintiff. In the part objected to the learned judge told the jury that their verdict should be founded on the evidence, and cautioned them not to be influenced by sympathy or prejudice, and in clear and distinct but temperate language admonished them that a disregard of this instruction might lead to a setting aside of their verdict. This was followed by a statement of the rights of each of the parties, the ground of the defendant’s liability if any existed, and the measure of damages in the event of a recovery. It was the right of the judge to give this caution, and in view of the passions and prejudices that grew out of the labor troubles in the anthracite coal regions in 1902 and which existed at the time of the trial, it may be said to have been his duty to charge as he did. In the recent case of Stevenson v. Ebervale Coal Co., 203 Pa. 316, it was said : “ It was the clear duty of the court below in peremptory language to hold the jury down to the lawful damages, and if they disregarded the instruction to set aside the verdict. What the plaintiff had a right' to ask was that he be made whole-, not rich. It was the duty of the court to see that this result and this alone was reached.” This is always the rulé. It was much better to reach a proper result by an instruction in advance of the verdict than by granting a new trial after it had been rendered. No question of fact was taken from the jury, and there was no attempt to control them except by pointing out their plain dut3r and advising them that their action was subject to review, and that it was not in the power of a jury to plunder at will. The charge as a whole was a very clear and able presentation of the questions involved and of the law applicable to them, and we see no valid ground of objection to any part of it.

Prima facie the measure of damages was the cost of removing the refuse deposit, and the instruction on this subject was in accordance with the rule stated in Stevenson v. Ebervale Coal Co., 201 Pa. 112. The defendant was not answerable for the acts of its lessees who operated collieries in the basin of Panther creek done without its knowledge and consent. The objection was properly sustained to the plaintiff’s witness called as an expert as to the value of the property, since his knowledge was limited to the value of farm lands in the vicinity, and the property was to be considered as a whole, including both the farm and the mill site. The assignments to the admission of expert evidence offered by the defendant are not in compliance with the rule that the testimony admitted under objection should be set out in the assignment.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Long v. Long, Appellant.

      Promissory notes — Indorsement—Affidavit of defense.

    In an action on promissory notes by an indorsee against the maker, an affidavit of defense is sufficient, which avers that the plaintiff is not the real owner of the notes, but that they are owned by a bank, and that the defendant has a good defense against the bank by way of a set-off in damages arising out of a breach of contract collateral to the notes in suit.
    Argued Feb. 15, 1904.
    Appeal, No. 147, Jan. T., 1903, by defendant, from order of C. P. Lebanon Co., Sept. T., 1902, No. 417, making absolute rule for judgment for want a sufficient affidavit of defense in case of D. B. Long v. F. B. Long.
    Before Mitchell, C. J., Fell, Brown, Potter and Thompson, JJ.
    Reversed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material averments of the affidavit of defense are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      George B. Woomer and Thomas H. Gapp, for appellant.—
    An affidavit of defense, to a suit on a promissory note by an indorsee against the maker is sufficient which avers that the plaintiff is not a bona fide holder for value : Bacon v. Scott, 154 Pa. 250; Moeck v. Littell, 82 Pa. 354; Devlin v. Burns, 147 Pa. 168.
    Although the set-off in damages claimed by the defendant in his affidavit of defense arises out of a breach of a contract, collateral to the notes, in suit, yet the defendant may avail himself of this defense as a set-off, and the supplemental affidavit of defense in this case, alleging damages, by reason of the breach of the collateral agreement therein stated is sufficient to take the case to the jury: Halfpenney v. Bell, 82 Pa. 128; Weixel v. Lennox, 179 Pa. 457; Devlin v. Burns, 147 Pa. 168.
    No paper-book filed nor appearance entered for appellee.
    March 7, 1904:
   Opinion by

Mr. Justice Potter,

The error here alleged is the entry, by the court below, of judgment for want of a sufficient affidavit of defense.

It is averred by the defendant, who is the maker, that-the plaintiff, who is the indorsee, is not the real holder or owner of the notes in suit, and that he has no valid title to them, but that the Lebanon National Bank is the real holder and owner. And in a supplemental affidavit of defense he alleges that he has a good defense as against the bank, by way of a set-off in damages arising out of a breach of contract collateral to the notes in suit.

It was held in Bacon v. Scott, 154 Pa. 250, that in an action on promissory notes by an indorsee against the maker, an affidavit of defense is sufficient which avers that the plaintiff is not the holder or owner for value before maturity, but that the notes were handed by the payee to him for the purpose of debarring defendant from a defense.

If the defendant had gone no further than the averments of the first affidavit he would probably have come within the principle of the case just cited. But when we take into consideration the supplemental affidavit, we find that the defendant has averred positively that the plaintiff is not the bona fide holder of the notes, but was merely an accommodation indorser, without loss by reason thereof. That the real owner is the Lebanon National Bank, against which a good defense is averred consisting of a set-off for breach of contract, in a collateral matter. Under the decisions in Halfpenny v. Bell, 82 Pa. 128, Devlin v. Burns, 147 Pa. 168, and Weixel v. Lennox, 179 Pa. 457, the defendant is entitled to set off against a claim by the bank, the damages arising from the breach of a collateral contract by it, if, as is averred, it be the owner of the notes.

For the present purpose we must accept the allegations of the affidavits as true. It may be that upon the trial the evidence will fall short of establishing the contention of the defendant. But that question will have to be determined when the proof has been submitted. All that we now decide is that the affidavits of defense are sufficient to prevent a summary judgment, and carry the case to a jury.

Judgment reversed and a procedendo awarded.


author: Per Curiam,

text:
    Betterly v. Scranton, Appellant.

      Negligence — Municipalities—Break in sewer — Sewers—Notice.
    Where a break occurs in a sewer constructed by a city, and the sewage flows on to the lot and into the cellar of a property owner, and the city although frequently notified of the nuisance, does nothing to abate it, the property owner has a good cause of action against the city for the injuries sustained.

      Argued Feb. 22, 1904.
    Appeal, No. 117, Jan. T., 1908, by-defendant, from order of C. P. Lackawanna Co., May T., 1896, No. 193, dismissing exceptions to referee’s report in case of A. E. Betterly v. City of Scranton.
    Before Dean, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for injuries caused by the break of a sewer.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to referee’s report.

      David J. Davis, city solicitor, for appellant.

      S. B. Price, with him George L. Peck, for appellee.
    March 7, 1904:
   Per Curiam,

The plaintiff owned a house on Bromley avenue in Scranton. In 1888 the city built a sewer on that street and plaintiff was requested to connect his service pipe with the sewer, which he did. In 1890, by the mining of coal under the street it caved in and the sewer was broken ; as a consequence plaintiff’s cellar was frequently flooded with sewage. Defendant was several times notified of the nuisance and requested to abate it but neglected to do so. In 1891 the city put in a new sewer pipe but at a higher level than the broken one and did not compel property owners along the line to connect with it. The lowest place in the old sewer and the place where the sewage most collected was directly in front of plaintiff’s house ; as a consequence his family were made ill and he otherwise suffered from the nuisance. He thereupon brought suit against the city for damages. The case was tried three times before a referee who found for plaintiff in the sum of $1,617 damages and his report was approved by the court below.

As this is a report of a referee, the appeal brings up no questions of fact; on such appeal we can only review questions of law: Bradlee v. Whitney, 108 Pa. 362. The referee found that the city constructed the sewer, that there was a b"eak in it, and that the sewage flowed on plaintiff’s lot and into his cellar. He also found that as to all of these facts the city had notice, yet made no attempt to remedy them. The break in the sewer was not caused by plaintiff; he gave the city notice more than once but it still neglected its duty in this particular. This neglect constituted a good cause of action.

All the assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Thompson,

text:
    Canfield, Appellant, v. Baltimore & Ohio Railroad Company.

      Negligence — Railroads—“ Stop, look and listen ” — Proper place to stop.

    The duty of one using a public highway and approaching a railroad crossing is to stop, look and listen, and the exigency arising from obstacles surrounding the crossing may on some occasions require such stopping to be at a point considerably distant from it, but where no such exigency exists, and where the view of the tracks becomes more extended by a nearer approach to them, the stopping at a point which is reasonably near and within which an extended view of the tracks may be had is clearly the requirement of the rule.
    In an action against a railroad company to recover damages for personal injuries, sustained at a grade crossing, it appeared that plaintiff while driving stopped at a point 150 feet from the crossing. From this point he was able to see trains approaching from the east for a distance of 600 feet, intercepted for a short distance by a station building, and from the west several hundred feet. At a point sixty feet from the crossing a view of the trains approaching from the east was unobstructed for a distance of 445 feet, and approaching the crossing nearer it became more extended. Having stopped at a distance of 155 feet from it, plaintiff moved on at a walk toward it, without looking east, and having reached a point in close proximity to the tracks, the ends of the shafts <5f his buggy were struck by a train coming from the east, resulting in his being thrown out of his buggy, injured, and his horse running away. He testified that he did not see the train until it was within a short distance of him, because he was looking westward. Held, that a nonsuit was properly entered.
    Argued Feb. 11, 1904.
    Appeal, No. 277, Jan. T., 1903, by plaintiff, from order of C. P. Delaware Co., Dee. T., 1903, No. 47, refusing to take off no.nsuit in case of Thomas J. Can-field v. Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Affirmed.

      Trespass for personal injuries. Before Savidge, P. J., specially presiding.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      O. B. BieJcinson, for appellant.
    Where there was a stop made the questions of proper place and whether there should have been a second stop are for the jury: Worthington v. P. & R. Ry. Co., 23 Pa. Superior Ct. 195; Kuntz v. N. Y., etc., R. R. Co., 206 Pa. 162; Doud v. Delaware, etc., R. R. Co., 203 Pa. 227; Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Cookson v. Pittsburg, etc., Ry. Co., 179 Pa. 184; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Elston v. Delaware, etc., R. R. Co., 196 Pa. 595.

      W. B. Broomall, for appellee.
    A nonsuit was properly entered : Urias v. Penna. R. R. Co., 152 Pa. 326; Holden v. Penna. R. R. Co., 169 Pa. 1; Corcoran v. Penna. R. R. Co., 203 Pa. 380.
    March 7, 1904:
   Opinion by

Mr. Justice Thompson,

The appellant’s failure to follow the rule to stop, look and listen at a proper point while approaching upon a public highway a crossing over the railroad of appellee, negatives his right to recover, and therefore the learned trial judge was clearly right in entering a nonsuit.

The appellant with his wife was riding along the public road which runs at right angles with appellee’s railroad, and while approaching the crossing stopped at a point 155 feet from it. From this point he was able to see trains approaching from the east for a distance of 600 feet, intercepted for a short distance by a station building, and from the west several hundred feet. At a point sixty feet from the crossing a view of the trains approaching from the east was unobstructed for a distance of 445 feet,, and approaching the crossing nearer it became more extended. Having stopped at a distance of 155 feet from it, appellant moved on at a walk toward it, without looking east, and having reached a point in close proximity to the tracks, the ends of the shafts of his buggy were struck by a train coming from the east, resulting in his being thrown out of his buggy, injured, and his horse running away. He testified that he did not see the train in question until it was within a short distance of him because he was not looking eastward, the direction from which it came, that he was leaning forward, and looking westward, and again that he was looking the other way when the train came upon him and he substantially directed his whole attention to the west for a distance of more than sixty feet from the crossing. It is clear that if he had looked to the east when within a distance of fifty feet from the crossing he could have seen the train coming from that direction, and could manifestly have avoided the accident. The duty of one using a public highway and approaching a railroad crossing is to stop, look and listen, and the exigency arising from obstacles surrounding the crossing may on some occasions require such stopping to be- at a point considerably distant from it, but where no such exigency exists, and where the view of the tracks becomes more extended by a nearer approach to them, the stopping at a point which is reasonably near and within which an extended view of the tracks may be had is clearly the requirement of the rule.

In the present case appellant stopped at a distance of 155 feet from the crossing and from such point to within sixty feet of it, and thereafter the view of the tracks continued to become more and more extended, and within the latter distance the view of an approaching train was such that if he had paid any attention to the trains from the east, he could have readily seen the train and avoided the collision, but he drove on until close to the tracks without stopping or looking in that direction and was then struck by its caboose which extended over the track some nine inches. With these facts established the conclusion of appellant’s negligence became one of law and the learned trial judge was right in so determining- it.

In the case of Corcoran v. Penna. Railroad Company, 203 Pa. 380, in which there were binding- instructions, Mr. Justice Dean says: “ An adult thoroughly familiar with the movements of trains at a crossing, knowing that it was about time for a train coming from the east, drives to within fifty feet of the tracks, stops and looks east but sees nothing because of a temporary obstruction to seeing in that direction, then rushed across and is struck by a train coming from the direction where he could not see; if this be not a deliberate taking of great risks rather than submit to a slight delay, we do not know what it is. It is one which the ordinary prudent man would not take, and there is no other reasonable inference to be drawn froin his conduct. It was not care according to the circumstances; the plaintiff’s own evidence disclosed a case of contributory negligence. The language of the learned judge of the court below, in the concluding paragraph of his opinion on the motion for a new trial, states the controlling facts with precision.

“ The plaintiff himself says that he made but one stop and when asked, ‘ You did not look east again after you started?’ answered, ‘ I might have looked that way,’ while all the witnesses who testified upon the subject say that he looked continuously to the west, and that such was undoubtedly the fact is evident from his driving directly in front of the train that he must have seen at any time after passing the baggage room had he looked to the east.”

In Holden v. Pennsylvania Railroad Company, 169 Pa. 1, Mr. Justice Green in considering Myers v. B. & O. Railroad Company, 150 Pa. 386, and Urias v. Penna. R. R. Co., 152 Pa. 326, said:

“ In the case of Myers v. B. & O. R. R. Co., 150 Pa. 386, the same doctrine was applied to a person attempting to cross the track in a wagon. Our Brother Williams, delivering the opinion said: “ The plaintiff says lie complied with the rule. At about fifteen or twenty feet from the track he says he stopped his team, looked each way along the railroad and listened, and that he neither saw nor heard a train approaching. He then drove on and while upon the track was struck and injured. If this is true he did all the rule requires and all that is possible to be done. Is it true ? This question the court below left to the jury, and they promptly found that it was true. . . . The fact that four or five seconds after he says he looked and listened he was struck by a train that must have been plainly visible and almost on him at the time he alleges he looked, is so palpably and absolutely irreconcilable with the truth of his statement that he did stop, look both ways and listen, before driving upon the crossing that it is trifling with justice to permit a jury to find that it is true. Such a finding is absurd. It is simply and flatly impossible that one can stop, look and listen for an approaching train that is in plain view and close at hand and be unable to see or hear it, if he possesses the sense of sight and hearing.

In the case of Urias v. Penna. R. R. Co., 152 Pa. 326, the rule was again enforced against a person traveling in a wagon who was struck and killed the moment his horse stepped upon the track. The previous decisions were recognized and reaffirmed. There is no difference therefore in the application of the doctrine as between foot passengers and carriage passengers. In either case if the person injured testifies that he stopped and looked both ways and listened and neither saw nor heard an approaching train, yet in fact he is struck and injured the moment he or his horse gets upon the track, it is conclusive proof that he could not have used his senses and he cannot recover.”

As appellant did not stop, look and listen as required by the rule, he was clearly not entitled to recover.

The assignment of error is not sustained and the judgment is affirmed.


text:
    Canfield, Appellant, v. Baltimore & Ohio Railroad Company.
    Argued Feb. 11, 1904.
    Appeal, No. 276, Jan. T., 1903, by plaintiff, from order of C. P. Delaware Co., Dec. T., 1903, No. 47, refusing to take off nonsuit in case of Thomas J. Can-field and Bridget Canfield, his Wife, v. The Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Mestbezat and Thompson, JJ.
    Affirmed.
    March 7, 1904:
   Opinion by

Mr. Justice Thompson,

For the reasons given in Thomas J. Canfield v. The Baltimore & Ohio Railroad Company, No. 277, of January term, 1903, the assignment of error in this case is not sustained and the judgment is affirmed.


text:
    Mitchell v. Baker, Appellant.

      Contract — Sale—Delivery to carrier — Indorsement of bill of lading.

    Where under a contract of sale the goods sold are shipped by the manufacturer to the purchaser under directions from the seller, and the bill of lading is made out in the name of the seller who indorses it over to the purchaser, the title to the goods upon delivery to the carrier and upon indorsement of the bill of lading, passes to the purchaser.
    Bills of lading are symbols of property, and when properly indorsed operate as a delivery of the property itself, investing the indorsees with a constructive custody which serves all the purposes of an actual possession, and so continues until there is a valid and complete delivery of the property, under and in pursuance of the bill of lading, and to the person entitled to receive the same.

      Contract — Sale—Breach—Measure of damages.

    In a contract for the delivery of chattels upon a special stipulation as to quality and quantity, where the vendor is ready and willing to deliver, the measure of damages is the difference between the contract price and the cost of manufacture and delivery.
    Argued Feb. 15, 1904.
    Appeal, No. 47, Jan. T., 1903, by defendant, from judgment of C. P. Schuylkill Co., July T., 1901, No. 27, on verdict for plaintiff, in case of James E. Mitchell, trading as James E. Mitchell & Company, v. E. H. Baker.
    Before Mitchell, C. J., Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    The opinion of the Supreme Court states the case.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $1,758.21. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      W. E. Shepherd and R. H. Koch, with them George W. Gise, for appellant.

      Wesley K. Woodbury jmd John E. Whalen, for appellee.
    March 7, 1904:
   Opinion by

Mr. Justice Thompson,

The contract for the bread i of which damages in this suit were claimed was made at Schuylkill Haven, Pennsylvania. The selling agent of appellee called upon appellant and offered to sell him 20,000 pounds of a certain kind of yarn. Appellant offered to buy 20,000 pounds of such yarn at a specified price. The selling agent told appellant that he would submit this offer to appellee. This he did and appellee having ascertained from the Kingston Mills in North Carolina that they would furnish him the amount of yarn that appellant wanted to purchase, he sent a sales note on December 11, as follows : “ James E. Mitchell and Co., 122-124 Chestnut Street, Philadelphia, December 6th, 1900, No. 1059. By Hill. Sold to E. H. Baker, 20,000 lbs. cones, 10’s at 17|, Ills at 17f. Shade 97 steel grey, two cents per pound more. Frt. paid Mill, 63. Price as above. Terms 2 per cent. 10 days. Delivery 1,000 to 1,200 lbs. weekly, beginning March, 1901. Note. It is mutually agreed that if the production of the mill accepting contract be curtailed by strikes or any unavoidable accident, the delivery shall be in proportion to the production. Advise at once if this order is incorrect in any particular, otherwise shall be considered confirmed by you. Respectfully, James E. Mitchell and Co.”

Appellant did not disaffirm the contract but on the contrary on January 8, stated to the representative of appellee that it was all right. Accordingly appellee had shipped to the appellant from the mills in North Carolina, 7,145 pounds of yarn. The bills of lading were in the name of appellee and by him indorsed to appellant. This yarn l'emained with the railroad company, and was finally sold upon execution as the property of the appellant. The balance of the 20,000 pounds of yarn contracted for was not forwarded because the appellant had refused to receive it.

The present suit was to recover for the yarn shipped to Schuylkill Haven, and for damages for the breach of contract in refusing to receive and pay for the balance.

The contention of the appellant was that when the representative of the appellee received the order, it was a conditional one by which the appellant was to receive and pay for the yarn from time to time as he required it for the trade, and not from 1,000 to 1,200 pounds per week. This' was denied by the representative of appellee and the evidence would scarcely warrant that such was the case, but whether so or not, the contract was made by the letter of December 11, 1900. That letter is clear and specific and without conditions. It was accepted by the appellant and became a binding contract in consequence of which appellee entered into a contract by which he agreed' to purchase from the Kingston Mills the 20,000 pounds of yarn in question. By his contract appellant undertook to pay for the yarn in accordance with it, and as there was not sufficient evidence of any set-off he was liable to pay the contract price for that which had been shipped from North Carolina and damages for refusal to receive the balance.

Appellant contended, however, that he was not liable to pay for the former because it was never delivered to him. This yarn was shipped from North Carolina to Schuylkill Haven and bills of lading for the same were in the name of a,ppellee and by him indorsed to appellant. The shipment of this yarn to Schuylkill Haven and the delivery of the bills of lading duly indorsed were a delivery to the appellant and passed the title to him for the yarn in question. By the delivery to the carrier and by the indorsement of the bills of lading the railroad company became the agent of the indorsee and bound to deliver the goods in question.

In Pennsylvania Railroad Company v. Stern and Spiegel, 119 Pa. 24, Mr. Justice Paxson said: “ Bills of lading are symbols of property, and when properly indorsed operate as a delivery of the property itself, investing the indorsees with a constructive custody which serves all the purposes of an actual possession, and so continues until there is a valid and complete delivery of the property, under and in pursuance of the bill of lading, and to the person entitled to receive the same: Hieskell v. Farmers & Mechanics’ National Bank, 89 Pa. 155. There could be no delivery except in accordance with the bill of lading: Dows v. National Exchange Bank, 91 U. S. 618; Stollenwerck v. Thatcher, 115 Mass. 224.” The appellant was therefore liable to pay for the 7,145 pounds of yarn so shipped.

As to the damages, he was liable to pay them for his refusal to receive the balance. Appellee by reason of the contract with appellant contracted with the Kingston Mills for the special kind of yarn in question. He was bound to take it and having done so sold it. He sold it for the market prices and has suffered a loss. It is very manifest that this actual loss is a proper measure for damages. In Puritan Coke Company v. Clark, 204 Pa. 556, Mr. Justice Dean says': “The law therefore is and ought to be that in a contract for the delivery of chattels upon a special stipulation as to quality and quantity, where the vendor is ready and willing to deliver, the measure of damages is the difference between the contract price and the cost of manufacture and delivery. When on a resale he receives more than the cost of manufacture he is entitled to the difference between the price it sold for and the contract price.” The learned trial judge cannot therefore be convicted of error in directing the jury to find a verdict for appellee in the sum so found.

The assignments of error are not sustained and the judgment is affirmed.


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    Schimpff, Appellant, v. Dime Deposit and Discount Bank.

      Equity — Specific performance — Sale—Stock of corporation.

    A court of equity will not decree specific performance of a contract to sell stock of a corporation where the complainant has delayed for over three years to enforce her rights, with no explanation of the cause of the delay, and the stock in the meantime has more than quadrupled in value. In such a case the complainant’s remedy, if she has any, is at law.
    Argued Feb. 22, 1904.
    Appeal, No. 214, Jan. T., 1908, by plaintiff, from decree of C. P. Lackawanna Co., March T., 1901, No. 2, dismissing bill in equity in case of Emilie A. Schimpff v. Dime Deposit and Discount Bank and Martyn J. Stone.
    Before Dean, Brown, Mesxrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for specific performance.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      S. B. Price, for appellant.

      O. Comeyys, for appellees.
    March 7, 1904:
   Per Curiam,

The plaintiff loaned to Stone, the defendant, on August 22, 1895, $1,000 ; she took from him his personal note, secured by twenty shares of the Dime Deposit and Discount Bank of Scranton. The stock was worth about par, or, at $50.00 per share, $1,000, the face of the note. About two years afterwards, on September 14, 1897, plaintiff asked Stone to sell the stock in her hands to her, and offered $1,600, the amount of the note, with interest, to be deducted, and the balance to be paid Stone, the transaction to be closed when a formal transfer of the stock was made by the bank on its books. The next day the cashier of the bank, when asked to do so, refused to transfer the stock, alleging the bank had a lien against it. At this date Stone owed the bank $3,700, but he also owned 100 shares of stock in addition to the twenty shares in possession of plaintiff. On March 28, 1898, the bank surrendered fifty shares of the stock to Stone and received therefor $1,878, leaving fifty shares still in Stone’s hands in addition to the twenty shares in possession of plaintiff. On June 20,1900, Stone owed the bank $435.16, with interest ; plaintiff offered to pay the bank this sum on a transfer of the stock to her, but the bank refused. On June 16, 1900, Stone tendered the amount of the note, with interest, to plaintiffs, but she refused to accept the money, and on February 7 following filed this bill against both Stone and the bank praying for a specific performance of the contract, that is, a transfer of the certificates for twenty shares of stock. To this bill Stone filed demurrer, which was overruled by the court and he was directed to answer, which he accordingly did, denying that he agreed to sell the stock to plaintiff or that she had any equity on which to base a decree. The court below, after hearing dismissed the bill, mainly on the ground that the contract at best was an executory one, consequently the title to the shares of stock had never passed to plaintiff, and that if the contract was only executory, her remedy was at law, and not by bill for a specific decree.

It is not exactly clear that the contract was executory; the evidence is quite contradictory. But however this may be, the decree dismissing the bill was right; the plaintiff had no equity which it would be the exclusive province of a court of equity to enforce. Two years after she made the loan, she alleges she made the contract to purchase the stock, which by no fault of defendant was not carried out, but because the bank had a lien on the stock. She rests contented with her security for the loan for nearly three years, with no explanation of the cau'se of the delay. Then Stone tendered the amount of his debt with interest and offered to take up the stock; she refused to accept the money. Then six months afterwards she brings this bill praying that he be ordered specifically to perform the contract. In the meantime the stock had gone up to $240 per share or to about $4,800. It has now become a highly speculative transaction on her part; if she ever had a. right to a decree for specific performance, it is certainly not after this lapse of time, especially as her debt is far more secure now than it was when she made the loan. There is nothing in the undisputed facts which would move a chancellor to make such a decree as prayed for.

While it is true that in exceptional cases equity will decree the specific performance of a contract for the sale of chattels, such as those enumerated by Judge Bell, in McGowin v. Remington, 12 Pa. 56, it will not so decree, says Beach on Modern Equity and Jurisprudence, p. 640, note 1, when “however strong, clear and emphatic the language of the contract, however plain the right at law, if a specific performance would for any reason cause a result, harsh, inequitable or against good conscience, the court should refuse such a decree and leave the parties to their remedies at law.” A decree here to hand over the stock would work a gross hardship to Stone ; it would give to plaintiff stock to the value of $4,800, which she took as security for a loan of $1,000, with ho explanation or excuse for her delay in enforcing payment. In such a case equity will simply refuse to move in favor of the speculator, but will leave her to her remedy at law. While we decline to say that on the evidence the contract was merely executory, we do say, that it is one which equity will not enforce by decree for specific performance, therefore, all the assignments of error are overruled, and the decree of the court below dismissing plaintiff’s bill is affirmed.


author: Pee Cubiam,

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    Dime Deposit and Discount Bank of Scranton v. Scranton, Appellant.

      Municipalities — Assessments—Bonds—Negligence.
    Where a city issues bonds to pay the cost of paving, and it is provided that the bonds shall be payable only out of assessments levied on and collected by the city from property owners, and the city is grossly negligent in filing liens and in failing to issue sci. fas. upon the liens, and the assessments are in many cases lost, the city is liable to the bondholders for the amount of the loss.
    Argued Feb. 22, 1904.
    Appeal, No. 229, Jan. T., 1903, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1901, No. 968, on verdict for plaintiff in case of the Dime Deposit and Discount Bank of Scranton v. City of Scranton.
    Before Dean, Bbown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Assumpsit on bonds.
    Exceptions to report of C. B. Little, Esq., referee.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to referee’s report.

      David J. Davis, city solicitor, with him H. R. Van Deusen, assistant city solicitor, for appellant.

      O. Qomegys, for appellee.
    March 7, 1904:
   Pee Cubiam,

This action is assumpsit to recover the sum of $10,900 with interest and $600 with interest due on certain improvement bonds issued by the city to pay for the cost of improvement of Washington avenue. They are of several denominations but all of them issued in 1891. The bonds were issued originally to the Scranton Trinidad Asphalt Paving Company or its assigns, payable when they should be called in witbin a period of ten years with interest at rate of six per cent. They were issued in pursuance of an ordinance for the issue of street improvement bonds as provided by the legislation then in force for the government of cities of that class. The bonds, primarily, rest for security on assessments to be made on lot holders along the line of the improvement, and they stipulate that “ it is expressly understood that the city is only to be liable for the amount collected and as fast as collected (from assessments) and as often as there are sufficient funds in the hands of the city treasurer from said assessments he shall call in said bonds for payment.”

It was the duty of the city under the law as it then stood to file liens for the assessments upon property holders of the cost of the improvement, as provided by the ordinance for the issue of bonds. As we have said the bondholders, primarily, must look to the assessments for payment as provided in his bond. But there is a duty upon the city. It must make assessments and file liens to secure payment as provided by law. In pursuance of its duty in this particular, it did make assessments on the abutting property holders September 24, 1890, and to enforce their collection filed liens within six months from the completion of the work. The greater number of the liens were paid; many were not paid; some of them were stricken from the record by the court because of irregularities, some of them by reason of the expiration of the time for filing became valueless and could not be enforced because it was held a common-law action could not be maintained for the amount assessed. The act of 1891 provides, that when the lien is filed within six months it shall remain a lien upon the properties until fully paid, provided, “that a writ of scire facias shall be issued to revive the same at the expiration of every period of five years after the lien is filed.”

We do not think it necessary to go into a discussion of the several acts of assembly, those of 1889, of 1891 and 1897, to determine in how far they conflict with or modify each other, for this fact stands undisputed, the city did not use ordinary diligence in the collection of those liens. These bonds were payable within ten years, but although twelve years have now passed the assessments have not been collected to pay them. It is conceded they cannot be collected. Whether from want of ordinary professional knowledge in filing the liens, or from neglect to issue s'ch fas. upon them, or from any one or all of the causes pointed out by the referee, the city has wholly failed to perform its duty to its creditor, this plaintiff. The creditor could not perform these duties, had no legal power to do so ; it was the bounden duty of the city to prosecute the liens with due diligence. Through its gross neglect in some instances, they are lost. While by the acceptance of the bond the creditor agrees that he will look, primarily, to the fund raised by the assessments for' payment, he agrees to do so on the condition that the city makes lawful assessments, files lawful liens, preserves them by lawful proceedings. If it neglect to do so, the case is not essentially different from O’Hara v. Scranton, 205 Pa. 142, where the court below, affirmed by this court, says: “ By one clause of the contract the city limited her liability to a particular fund, which she alone had the power to create and the specific means to secure and collect. By another clause she bound herself to exercise that power and use those means. This she did not do.” Therefore the city is held liable. In Gable v. Altoona, 200 Pa. 15, the city is held liable on the same principle. And the decided weight of authority is to the same effect in most of the states. We are of opinion that the judgment should be affirmed and it is affirmed accordingly.


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    Skivington, Appellant, v. Richards.

      Pleading — Statement of claim — Demurrer—Parties.
    Where in an action of trespass the plaintiff charges the defendants with negligence, (1) as individuals, (2) as executors, and (3) jointly as individuals and executors, but in his statement of claim does not set forth facts with sufficient certainty to inform defendants whether they are charged with negligence as individuals, or as executors, or jointly as executors and individuals, a demurrer to the statement will be sustained.
    Argued Feb. 22, 1904.
    Appeal, No. 281, Jan. T., 1903, by plaintiff, from judgment of' C. P. Lackawanna Co., Nov. T., 1901, No. 338, sustaining demurrer to statement of claim in case of Harry W. Skivington v. John T. Richards, Louis A. Watres and Henry W. Palmer, Executors of John Handley, Deceased.
    Before Dean, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The statement of claim charged that the plaintiff was seriously injured by an explosion of gas in a building owned by the plaintiffs as executors.
    The first and concluding paragraphs of the statement are as follows:
    The plaintiff, Harry W. Skivington, by his attorneys, I. H. Burns, George M. Watson, and Frank T. Okell, complain of John T. Richards, Louis A. Watres, and Henry W. Palmer, executors of the estate of John Handley, deceased, who have been summoned to answer said complaint in an action of trespass.
    ********
    And the plaintiff further avers that to enable this court to understand the relations between the above-named defendants and the estate of the said John Handley, his will under and by virtue of which the said defendants had and have the control of said building, is hereby and herein set forth in extenso, as follows:
    ********
    The plaintiff protests that in this statement, under the provisions of the statute in such case made and provided, he is not required to set forth the legal conclusions flowing from the same, but in deference to the suggestion of the court, he further avers as follow:
    1. The defendants are liable in their capacity as executors of the estate of John Handley, deceased, the judgment if any to be paid out of the assets of such estate.
    2. The defendants are liable individually, the judgment if any to be paid from their own individual property.
    3. The defendants are liable jointly as executors, and as individuals. Wherefore and by reason of the facts as heretofore stated the plaintiff has suffered damages in the sum of '$25,000, and therefore brings this suit.
    The court sustained the demurrer.

      Error assigned was in sustaining the demurrer.

      I II. Burns, for appellant,
    cited: Geddis v. Irvine, 5 Pa. 508; Filson v. Dunbar, 26 Pa. 475; Miltenberger v. Schlegel, 7 Pa. 241; Bixler v. Kunkle, 17 S. & R. 298; Kline v. Guthart, 2 P. & W. 490.

      Everett Warren, of Willard, Warren Knapp, for appellees,
    cited: Kline v. Guthart, 2 P. & W. 490; Boston Beef Packing Co. v. Stevens, 12 Fed. Repr. 279; Bogle v. Kreitzer, 46 Pa. 465; Strohecker v. Grant, 16 S. & R. 237; Crump v. Mims, 64 N. Car. 767.
    March 7, 1904:
   Per Curiam,

This suit is practically trespass on the case under our old form of pleadings. The plaintiff charges the defendant, (1) as individuals; (2) as executors of John Handley deceased; (3) jointly as individuals and executors with negligence. The defendants filed a demurrer, and among other causes of demurrer, that the facts were not set forth with sufficient certainty to inform them whether they were charged with negligence as individuals, or as executors, or jointly as executors and individuals. The court sustained the' demurrer and of this appellant complains. He cites a number of authorities to show that the court could treat the description as mere surplusage and enter judgment against them according to their liability under the evidence. But it must be noted that defendants at the threshold of the proceedings demanded by demurrer to be informed of the exact nature of their liability. Whatever judgment the court might have entered if defendants had pleaded the general issue and had gone to trial on it, they declined to plead without being informed as to in what character they are charged.

While it is ruled that if one be charged in a representative capacity such as executor or administrator and after trial the proof shows a liability as an individual, the word executor or administrator may be stricken off even after trial, and judgment be entered accordingly, yet in all the cases cited by counsel for appellant, the question was not raised in a single one by demurrer before trial. The very office of a demurrer is to settle whether the party is properly charged in the pleading.

All the assignments of error are overruled and the judgment is affirmed.


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    Handley’s Estate.

      Will — Life estate — Devise.
    Where a testator gives to his housekeeper “for and during her natural life, the use of the premises occupied by me, together with the use of all the furniture and fixtures now in and upon such premises free of charge,” and it appears that at the time of the testator’s death a portion of the premises referred to in his will were occupied by him as a residence, and a portion occupied by a bank as a tenant paying a money rental, the will will be construed as giving to the housekeeper the use for life of the portion of the premises occupied by testator, and not an estate for life in the whole property.
    Argued Feb. 23, 1904.
    Appeal, No. 18, Jan. T., 1904, by Annie Hafey, from decree of O. C. Lackawanna Co., Series A, No. 692, dismissing petition for citation in estate of John Handley, deceased.
    Before Dean, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Petition for citation.
    Sando, P. J., filed the following opinion:
    The petitioner claims that she is a life tenant of the property, known as 420 Lackawanna avenue, in the city of Scranton, and as such is entitled to the use and occupancy of the whole.
    Judge Handley died on February 15, 1895, testate, the city of Scranton being at the time of his death his place of residence. By virtue of the will the estate of the testator, real and personal, is under the management and control of his executors and their successors.
    The validity of the petitioner’s contention must depend on the intention of the testator, under the provisions of whose will she claims. The words of the will to be construed are:
    “ Item. I give and bequeath to Annie Hafey, my faithful housekeeper, for and during her natural life, the use of the premises occupied by me, Situated at No. 420 Lackawanna avenue, Scranton, Pennsylvania, together with the use of all the furniture and fixtures now in and upon said premises free of charge and in addition thereto I hereby bequeath her the sum of five thousand dollars, and I direct my executors to pay the said Annie Hafey the sum of one thousand dollars per year for and during her natural life, said annual sum to be paid monthly on the first day of each month.”
    The building, No. 420, Lackawanna avenue, was occupied by the testator as a dwelling house and law office, and by the Merchants’ and Mechanics’ Bank. The bank occupied on the first floor, the large bank room, bank vault, together with the use of the room in the rear for the directors or the officials to transact the business of the bank, and the use also of one coal vault in the front. Judge Handley occupied a portion of the cellar, the hall and rear room on the first floor; and the second, third and fourth floors for dwelling purposes.
    After Judge Handley died, the bank continued to occupy the part of the building leased and used for banking purposes; the executors collected and distributed the rents, as by the will directed; and the petitioner occupied the part used by testator before his death and used the furniture and fixtures until August 4,1900, when the building was demolished by an explosion, the cause unknown.
    The testator’s executors have from the date of his death, until August 4,1900, collected the rents from the bank, and in their annual account, have credited the same among the assets of the estate.
    The petitioner claims, under the provisions of the will, a life estate in the -land and building, and the rents heretofore collected by the executors from the Merchants’ and Mechanics’ Bank, the tenant occupying the building before it was destroyed, and also any rents which may' be hereafter collected, and for use and occupancy.
    In Hunter’s Estate, 6 Pa. 106, Coulter, J., says:
    “ If anything is distinctly and authoritatively settled in our law, it is, that in the construction of wills the intent of the testator, collected from the words and language of the whole will, must be the guide to legal conclusion, and the governing principle of judgment. The intent must therefore be gathered from the words of the will, as such words are understood and accepted by the common mind.” Again he says:
    “ It is true, that in cases where the courts have established a construction upon a given collocation of words, such decision would be entitled to great respect and consideration, where words of similar collocation, and like import, occurred in another will; but it would only be regarded as a key and help to the true construction. Shades of difference, will always occur, and therefore, as absolute authority, cases are of little authority in the true construction of testamentary dispositions by will.”
    Wills must be conformable to the rules of law; but this is not and cannot be applied to the construction of words; it relates to the nature and extent of the estate or interest granted; Bagshaw v. Spencer, 2 Atk. 577.
    The plain and unambiguous words of the will must prevail and cannot be controlled or qualified by any conjectural or doubtful constructions growing out of the situation, circumstances or condition of the testator, his property or the natural objects of his bounty: Schouler on Wills, 520.
    All things being equal, the natural and literal import of words and phrases is presumed to have been intended; each word is to have its effect, if the general intent be not thwarted thereby: Schouler on Wills, 529.
    The inconvenience or absurdity of a devise is no ground for varying the construction, where the terms of it are unambiguous ; nor is the fact, that the testator did not foresee all the consequences of his disposition a reason for varying it: 3 Jar-man on Wills, 706.
    The first thing is to ascertain what the object of the testator is ; the next, whether it is such as the rules of law and equity admit. This is the substance of the common sense and the law on the subject.
    In the present case, what was the true intent of the testator, according to the common acceptation and meaning of the words which he uses for the purpose of expressing that intent ?
    The petitioner is described as the testator’s faithful housekeeper. It was the testator’s intention to provide her with a home at the place where she then lived, with the furniture and fixtures to make her comfortable. His bequest of $1,000 a year was for maintenance and the bequest of $5,000 was for emergencies. If he had intended she should have in addition the rent received from the bank, he would have said so. In this case there seems to be no ambiguity latent or patent.
    The intention of the testator was to give the petitioner, “ for and during her natural life, the use of the premises occupied by ” him “ situated at 420 Lackawanna avenue,” and not an estate for life.
    If he had intended to give the whole property the language would have been “ I give and bequeath to Annie Hafey, my faithful housekeeper, for and during her natural life the use of the premises, situated at 420 Lackawanna avenue, together with the use of all the furniture and fixtures now in and upon said premises.”
    That he did not intend to give the whole is very clear because the gift is limited to “ the premises occupied by me.” Either these words must be expunged from the will, or they must be given their full weight.
    What then were the premises occupied by the testator ? He certainly did not occupy that portion of the building used by the bank. The possession of that portion of the building was not in him but in the bank. The occupancy was not in him. When he used the words of limitation, it was with some purpose. Had he intended otherwise, he would have said so.
    The subject of the gift is described as “the use of the premises,” and the premises are defined by the phrase “ occupied by me,” and “situated at 420 Lackawanna avenue.”
    The estate given to the petitioner is expressly limited to an estate for life in the premises “ occupied by me,” and we have no difficulty in reaching the conclusion that the intention was that she should take only an estate for life, in the part or portion occupied by the testator.
    The testator has used apt and explicit words of limitation to express his intention. If he had intended to give a life estate in the whole building he would have expressed that intention by the use of equally apt and explicit words and terms.
    By the terms of the will the petitioner took an estate for life in the “ premises ” occupied by the testator. The estate in the premises cannot be enlarged to an estate for life in the entire property, 420 Lackawanna avenue.
    The words “ the use of the premises ” and “ occupied by me” are expressive of the purpose for which the testator desired the property to be used and are explanatory of his bounty, and clearly express a restrictive condition or stipulation that cannot be construed in any other way.

      A larger estate will not be implied where a smaller one is expressly granted: Schouler on Wills, 682.
    The most comprehensive words of description applicable to real estate are tenements and hereditaments, as they include every species of realty, as well corporeal as incorporeal. The word “lands” is not equally extensive; it would not comprehend incorporeal hereditaments: 2 Jarman on Wills, 382.
    The word “premises,” which literally denotes that which-is already stated, should depend for its breadth upon the expression to which it refers: Schouler on Wills, 553.
    A devise of the house “ now occupied by me,” or my house lot will not include adjoining property occupied by tenants: Brown v. Saltonstall, 44 Mass. 423. .
    In Doe v. Parkin, 5 Taunt. 321, and 1 Marsh. 61, the testator devised in these words: “ All my messuages in T., now in my occupation.” The testator had two messuages in T., of which he occupied only one; and it was held that only one passed by the devise.
    In the present case the words of the bequest are clear and entirely sufficient to control their obvious meaning. In no sense could the testator be considered to have the occupation of that part of the building in the tenure of the bank. What the testator did occupy was certain. There is no ambiguity in the will itself. The intention and the language are both clear. The words used are not the land or building, but “ the use of the premises occupied by me.” He meant merely to limit and locate the premises “ occupied by ” him. “ Occupied” implies actual possession, not constructive possession. This limitation must stand as it was, true or false, at the time it was made. If the testator did not occupy the part in the tenure of the bank at the time he made his will, though he might afterwards have acquired the actual possession of it, yet it would not pass under the will. The lease to the bank was for rent reserved in money. Had Judge Handley entered without leave of the tenant, he would have been liable as a trespasser.
    The word “ occupied ” has a legal meaning. It is where possession and management is in a person.
    The bank, therefore, and not the testator, must be considered as in possession and occupation of such part of the building in question as was described in its lease.

      The application of the words to the proper subject of the bequest support the inference that the testator meant to give a life estate in the “ premises occupied by ” him, and not in the entire building.
    The term “ occupied ” both in a popular and legal acceptation, has a known, certain and definite meaning. It cannot be said that any person occupies a building which is in the tenure, actual possession and management of another. The term, in legal acceptation, implies use and possession. We must understand the “ premises occupied by me ” as used in the common and popular sense, according to which the part of the building in possession of the bank was separate and distinct from that occupied by the testator.
    There is no question, whether the testator was in point of fact, in the actual possession of the part used by the bank, at the time of making his will, or at the time of his death.'
    We are asked to say that the premises in the occupation of the testator meant also the part in the occupation of the bank as a tenant. It would be requiring us to understand more by the phrase “ premises occupied by me ” than the ordinary or legal sense would warrant. It would be extending it to a part in the possession of another. The phraseology of the bequest shows that the testator intended to limit it to that of which he himself was then in possession.
    By applying the bequest to the premises in the actual possession of the testator, there would be harmony and consistency between the thing and the subject, and every part of the description. The incongruity would be created by applying the bequest of the premises, which were in the possession of the bank. The convenient enjoyment and use of the premises devised show no necessity for the part used by the bank.
    There can be no doubt that the only subject in the mind of the testator, when he made the gift, was “ the use of the premises occupied by” him as it then was and always had been, and that he intended to give the petitioner the use of the premises, “ together with the use of all the furniture and fixtures now in and upon said premises free of charge,” and that he did not intend to include in the gift a life estate in the building situate at 420 Lackawanna avenue. The word “now” seems to be used emphatically, so as to leave no possible doubt as to the identity of the thing devised.
    In Wusthoff v. Dracourt, 3 Watts, 240, the Supreme. Court construed a devise of a house, in which the testator said, “ reserving, however, two of the rooms of said house for the use and during the life of W. I devise by this fourth article, that the widow W. may have the choice of those two rooms which shall best suit her, because I desire that the said W. should be sure of a shelter during the time she may have to live.” This reservation, the court says, vests in W. an estate in the two rooms for life, of which she may make any disposition. It does not create a mere easement for her personal use ; she might occupy it herself, or let it to another, receiving from it the rent it produces.
    We think we perceive the clear intent of the testator manifested in the whole, and every provision of the will taken together, and that is the light we have followed in arriving at the conclusions we adopt.
    'The intention of the testator was to give Annie Hafey, the petitioner, the use for life of the premises occupied by him “ situate at ” No. 420 Lackawanna avenue, and not an estate for life in the whole property.
    Entertaining' these views we hold that the petitioner is not entitled to the specific relief prayed for and her petition is therefore dismissed.

      Error assigned was the decree dismissing the petition.

      S. B. Price, with him II. A. Fuller, for appellant.

      L. A. Watres and II W. Palmer, for appellee, were not heard.
    March 7, 1904:
   Per Curiam,

We can add nothing of value to the able opinion of the court below. On that opinion the decree of the orphans’ court is affirmed.


text:
    Price v. Davis Coal and Coke Company, Appellant.

      Appeals — Practice, C. P. — Interlocutory order — Dismissal of suit.

    No appeal lies from an order discharging a rule to show cause why a suit should not be dismissed for want of jurisdiction, the alleged want of jurisdiction being based on an affidavit and plea that the same cause of action had been pleaded by plaintiff as a set-off in another suit between the parties which is still pending. Such an order is not a final judgment.
    Argued Jan. 7, 1904.
    Appeal, No. 228, Jan. T., 1903, by defendants, from order of C. P. No. 1, Phila. Co., March T., 1900, No. 887, discharging rule to dismiss for want of jurisdiction in case of James E. Price, Jr., trading as the the Acme Coal Company, v. Davis Coal & Coke Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Appeal quashed.
    Assumpsit for breach of contract to deliver coal.
    Defendant filed the following affidavit of defense :
    Fred. B. Lott, being duly sworn according to law, deposes and says he is manager of the Philadelphia office of the Davis Coal & Coke Company, the above named defendant, and that there is a just, true, full and legal defense to the whole of the plaintiff’s claim of the following nature and character, to wit: That said plaintiff has used this identical claim of $2,447.04, as a set-off in an affidavit of defense in another proceeding between the same parties, in which the said James E. Price, trading as the Acme Coal Company, is defendant, and the Davis Coal & Coke Company is plaintiff, in the court of common pleas, No. 3, for Philadelphia county, to September term, 1895, No. 228, and said defendant brings said record into court. And the defendant further avers the said plaintiff ought not to have or maintain said action whereby said defendant is subjected to unnecessary costs.
    The defendant subsequently pleaded non assumpsit, with leave, etc. Afterwards he entered a rule to show cause why the suit should not be dismissed for want of -jurisdiction.
    The court discharged the rule.

      Error assigned was the order of the court.

      John V. McGeoghegan, for appellant.

      Arthur G. Dickson, for appellee.-
    March 7, 1904:
   Per Curiam,

This is an appeal from the discharge of a rule to show cause why the suit should not be dismissed for want of jurisdiction, the alleged want of jurisdiction being based on an affidavit and plea that the same cause of action had been pleaded by plaintiff as a set-off in another suit between the parties which is still pending. This is not good even as a plea of lis pendens, in abatement: Stroh v. Uhrich, 1 W. & S. 57; Gilmore v. Reed, 76 Pa. 462. The discharge of the rule was in no view a final judgment from which an appeal would lie.

Appeal quashed.


author: Mr. Justice Mestbezat,

text:
    Carpenter v. Yeadon Borough, Appellant.

      Municipalities — Power to contract — Manner of contracting.

    The authority of a municipal body to legislate or to contract is conferred by the lawmaking power of the state; hence it must be exercised in the manner provided in the statute conferring it.

      Boroughs — Ordinance—Publication—Act of April 3,1851, sec. 3, P. L. 320.
    The provision in the third section of the Act of April 3, 1851, P. L. 320, relating to the publication of borough ordinances is mandatory, and until the provision of the statute has been complied with an ordinance is not effective, and is as wholly inoperative as if the municipal legislative body had not acted in the matter. Publication is a duty imposed upon the corporate officers, and until it is performed no rights are granted, and the observance of no duties is enjoined by the ordinance, which can be enforced by or against the municipality.
    If the ordinance incorporates a contract with an individual, the contract is not complete and binding upon either the borough or the individual until after publication. As the contract is incomplete the courts have no power, by mandamus, to compel the borough to make publication of the ordinance so as to complete the contract.
    The court will enforce by mandamus the performance of a mandatory ministerial duty, but it has no authority to compel a municipal corporation to execute an agreement which is a discretionary act, or to take any steps towards-the consummation of such an agreement.

      Practice, C. P. — Trial by court without a jury- — -Act of April 22, 1874, P. L. 109 — Findings of fact — Conclusions of law.

    Where a case is tried by the court without a jury under the provisions of the Act of April 22, 1874, P. L. 109, it is the duty of the court to make separate and distinct findings of fact and conclusions of law. If the court fails to do this and the failure is assigned as error, the judgment will be reversed.
    A mere “verdict” in favor of one or the other party is not a conclusion of law within the meaning of the act. A verdict is a conclusion on the facts as well as the law.
    Argued Feb. 9, 1904.
    Appeal, No. 168, Jan. T., 1908, by defendant, from order of C. P. Delaware Co., Dee. T., 1900, No. 6, dismissing exceptions to adjudication in case of Joseph L. Carpenter, Jr., v. Yeadon Borough etal.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Reversed.
    Mandamus to compel publication of an ordinance.
    Exceptions to adjudication.
    The case was tried by the court without a jury under the provisions of the act of April 22, 1874.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication and in entering judgment for plaintiff.

      O. B. Dickinson, with him Isaac E. Johnson, for appellant.—
    The act does not take from the borough officials, acting for the borough, the right to say whether they will “ prescribe ” the enactments of the council, but only designates the manner in which they are to “ prescribe ” those which they want to take effect. So far as the public is concerned, an enactment by a borough council, not published, is akin to a thought of the mind, never expressed. Until expressed, one’s thoughts are nobody’s concern, and the same is true of an enactment of a council never advertised. Until published and crystalized into something recognized by the law, there is nothing tangible for the law to take hold of and of a very necessity the matter must be left to the discretion of the borough authorities.
    The issuing of a mandamus is in the sound discretion of the court and should not compel a ministerial officer to perform an'act of his office, which when done, would only give completeness in form to what in the end would be illegal and of no force: Edison Elec. Illuminating Co. v. Jacobs, Controller, 8 Kulp, 125; Com. v. Bullock, 2 Mont. Co. Law Rep. 5.

      A. Lewis Smith, with him A. J. Wilkinson, for appellee.—
    As between the borough and Mr. Carpenter the ordinance was a completed contract requiring him to do certain important and far-reaching things, which he did, and providing in effect that when he paid the cost of the ministerial act of advertising the ordinance, it should be advertised.
    The act provides that it shall be the duty of the “ corporate officers ” to advertise ordinances, and the provision that they shall advertise at least ten days before the ordinance shall take effect, plainly means that they shall not pass an ordinance to take effect immediately on its passage and without notice to the citizens of its enactment. It would be a strained construction to hold, as contended by the appellant, that the borough council may retain control of an ordinance and indefinitely suspend its operation after it has passed through all the legislative forms prescribed by the law and by the by-laws of the council itself and has thus become a completed structure, and the court below was clearly right when holding that the duty of publication was merely ministerial.
    March 14, 1904:
   Opinion by

Mr. Justice Mestbezat,

This was an application in the court below by Joseph L. Carpenter, Jr., the appellee, for a mandamus commanding the borough of Yeadon, the chief burgess and the council of the borough “ to forthwith cause the ordinance of said borough entitled, ‘An ordinance granting permission under certain conditions for the use for cemetery purposes of the tract of ground owned by the North Mount Moriah Cemetery Company and providing for the opening of a certain street through the same and the vacation of a portion of another street therein; ’ passed the sixteenth day of October, A. D. 1899, and known as Ordinance No. 50, to be published according to law so as to render the same operative or show cause why the same should not be done, or that a rule be granted on said respondents to show why a mandamus should not be issued for the purpose aforesaid.” The ordinance referred to was passed by council, vetoed by the burgess, and then passed over the veto. It granted to Carpenter the right to use his land in the borough for cemetery purposes on condition that a permit be obtained for the interment of each body and that he pay $6,000 to the borough. The ordinance also provided that a street should be laid out and opened for public use through the land and that a portion of an avenue near the land should be vacated; that the ordinance should not become operative unless Carpenter should within ten days after its passage execute and deliver to the borough an agreement to comply with the terms of the ordinance and should give security for the payment of the $6,000. It was further provided that the ordinance should not be published until the execution and delivery of the agreement and the costs of publication had been paid to the borough; and that it should not affect or impair the provisions of another ordinance so far as that ordinance affected other parts of the borough. The agreement was delivered and the costs of publication of the ordinance were paid to the borough. Carpenter tendered security for the payment of the $6,000 which was declined. On September 10, 1900, after this proceeding was begun, the council by resolution, not approved by the burgess, “ resolved that the borough of Yeadon doth hereby rescind, revoke, annul and repeal the legislative ordinance, contract or action of the borough council of the borough of Yeadon as embodied in the alleged Ordinance No. 50 of said borough, said to have been passed October 16, 1899.”

The court overruled a motion to quash the writ and directed the defendants to file a return which they did. The case was tried by the court without a jury under the act of April 22, 1874. The court found a “ verdict in favor of the plaintiff against the corporate authorities of the borough of Yeadon requiring them to advertise and publish Ordinance No. 50 in accordance with the provisions of the third section of the act of assembly of April 3, 1851.” Subsequently the exceptions filed by the defendants were dismissed and judgment was entered on the finding of the court. The defendants have appealed.

The authority of a municipal body to legislate or to contract is conferred by the lawmaking power of the state, hence it must be exercised in the manner provided in the statute conferring it. A municipal corporation is simply the agent or instrumentality of the state to administer local government and to exercise certain powers and to perform certain duties within defined territorial limits in conformity with the method and to the extent delegated in the legislation creating and applicable to the corporation. Its contractual powers are derived from the same source and are circumscribed by the same limitations. As said by the learned author of Dillion on Municipal Corporations (4th ed.), sec. 21, such corporations possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them or by other statutes applicable to them.

We think the learned trial judge was in error in entering judgment against the defendants. The 3d section of the Act of April 3, 1851, P. L. 320, Purd. Dig. vol. 1, p. 246, provides that “ it shall be the duty of the corporate officers, a majority of whom shall be a quorum : . . . . IV. To publish in at least one newspaper, if such be printed in the proper county, and by not less than twelve advertisements, to be put up in the most public places in the borough, every enactment, regulation, ordinance or other general law, at least ten days before the same shall take effect.” This is mandatory and until the provision of the statute has been complied with, an ordinance is not effective and is as wholly inoperative as if the municipal legislative body had not acted in the matter: 1 Dillon on Munic. Corp. sec. 331; Marshall v. Commonwealth, 59 Pa. 455; Waln v. Philadelphia, 99 Pa. 330; Clark v. City of Janesville, 10 Wis. 119. Publication is a duty imposed upon the corporate officers, and until it is performed no rights are granted, and the observance of no duties is enjoined, by the ordinance which can be enforced by or against the municipality. Before the statute has been complied with in this respect, the ordinance remains in the hands of the officers of the corporation awaiting the performance of an act by them essential to give it validity as a law of the borough.

Conceding that the purpose and intention of the council was by this enactment, to contract with the plaintiff on the terms therein set forth, yet if publication was necessary to make it operative, as is recognized by the plaintiff in instituting this proceeding, it is apparent that the contract was not consummated and is not yet obligatory on tbe borough. A statutory prerequisite to its completion and validity is concededly wanting, and the power of the court is invoked to compel one of the parties, the borough, to consummate the agreement. In other words, we are asked to compel the corporate officers of the borough to complete negotiations pending between the parties so that the negotiations will become effective as a contract and obligatory upon the borough. This, in effect, is the prayer of the petition for the mandamus. If, therefore, we award the writ commanding the borough to cause the ordinance “ to be published according to law so as to render the same operative,” as prayed for in this application, the court will compel the execution of an agreement which is simply discretionary with the corporation. This we cannot do. The court will enforce by mandamus the performance of a mandatory ministerial duty, but it has no authority to compel a municipal corporation to execute an agreement which is a discretionary act, or to take any steps towards the consummation of such an agreement.

It is contended by the appellee that publishing the ordinance is a private contractual duty which he has a right to enforce by mandamus, and that as between him and the borough, “ it (ordinance) was a completed contract requiring him to do certain important and far-reaching things which he did, and providing in effect that when he paid the cost of the ministerial act of advertising the ordinance, it should be advertised.” As we have endeavored to point out above, there is no contract between Mr. Carpenter and the borough until the corporation has consummated, in the manner required by the statute, the negotiations pending between the parties. The appellee, as is apparent from his argument, is misled by assuming the existence of a contract and that he is invoking the aid of the court to compel the performance of the contract by the borough. If this were true, another and altogether different question from the one presented for consideration here would arise. His petition, however, does not aver the existence of a valid contract and ask the aid of the court to enforce it against the borough, but, on the contrary, concedes the noncompletion of the agreement and prays the court to compel the corporate officers to complete it by requiring them to publish the ordinance “ according to law so as to render the same operative.” Our authority, is therefore invoked to compel the borough to consummate an imperfect agreement, and not to comply with the terms of a duly executed and completed obligation. This would not be enforcing the performance of a ministerial duty by the municipal officers, but would be a command to them in their official capacity to do an act making obligatory an imperfect agreement.

We need not consider nor determine whether or not the ordinance is within the class required by the statute to be published. The appellee manifestly so regards it or he would not have instituted this proceeding. If it is not within this class, however, the refusal of the mandamus can do him no harm as the ordinance would be effective without publication, and any rights accruing to him under it can be enforced in a proper proceeding.

This case was tried by the court without a jury under the' act of 1874. It was the duty of the learned trial judge to find the facts with at least as much fullness and certainty as is required in a special verdict, and to state clearly and distinctly his conclusions of law. In the decision filed by the learned judge, he seems to have given little attention to the requirements of the act as shown by the act itself and the numerous decisions construing it. This would have been fatal if the appellants had assigned it for error. As said by the late Chief Justice Green in Lewars v. Weaver, 121 Pa. 268, we have held in all the cases that the decision must contain a distinct and separate finding of facts, and also the conclusions of law. The act itself says : “ The decision of the court shall be in writing, stating separately and distinctly the facts found, the answer to any points submitted in writing by counsel and the conclusions of law.” In the decision filed by the trial judge, which is called an “opinion,” he does not state “distinctly the facts found,” but in his findings of facts he copies in full the ordinances and agreement, including the signatures and acknowledgments, and also the minutes of the borough council. The result is that the decision is incumbered with wholly unnecessary matter tending to confusion instead of distinctness. If the facts found by the trial judge had been “ separately and distinctly ” stated, excluding irrelevant and immaterial matter, his decision would not have exceeded' one third its present length, and doubtless the necessity for finding other facts material to the determination of the issue would have occurred to him.

The decision contains no statement of the “ conclusions of law ” if we except what is denominated in it as the “ verdict,” which is a conclusion on the facts as well as the law. There were many legal questions raised on the trial of the cause, and it was the duty of the court to state separately in writing “ his conclusions of law ” thereon. This is the plain requirement of the statute, and is so held to be in all our cases. Either party may file exceptions to the findings of facts or conclusions of law,” but not to a “ verdict ” and the court is then required to pass on such exceptions as may be filed and to direct judgment to be entered on his decision. That this may be done and the cause may be determined on its merits, the facts and the law should be clearly and distinctly stated in the decision.

The judgment is reversed and the writ of alternative mandamus is dismissed at the cost of the appellee.