author: Pee Cueiam,

text:
    French, Appellant, v. Harding.

      Corporations — Stock—Full paid stock — Bights of a bona fide purchaser.

    1. A bona fide purchaser for value and without notice, of the stock issued by a corporation as paid up, cannot be held liable on such stock in any way either to the corporation, corporate creditors or other persons even though the stock was not actually paid up as represented.
    2. Where a person in open market, in good faith and without notice, purchases certificates, such stock is to be deemed “paid up” in his hands, and he is protected as a bona fide purchaser, even though there is nothing on the face of the certificates stating that they are paid up.

      Corporations — Stockholders— Assessments— Defenses— Foreign corporations — Conflict of laws.

    3. In an action by a receiver of a foreign corporation against a stockholder, a resident of Pennsylvania, to recover an assessment authorized by a decree of a court having jurisdiction of the affairs of thei corporation, the defendant cannot question the findings of insolvency, and the foundations of the assessments, but he can set up any defense which is personal to himself in which are involved his rights as a bona fide holder of the stock.
    Argued Jau. 5,1912.
    Appeal, No. 200, Jan. T., 1911, by plaintiff, from judgment of Superior Court, Oct. T., 1910, No. 21, reversing order of C.¡ P. No. 4, Phila. Co., Dec. T., 1908, No. 2748, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Thomas E. French, Ancillary Receiver of The Agnew Company v. J. Horace Harding.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from the Superior Court.
    Head, J., filed the following opinion:
    This appeal comes from an order or decree of the learned court below making absolute a rule for judgment for want of a sufficient affidavit of defense. As, in the view we take of the case, it must go back to be tried according to the course of the common law, we follow the approved practice of the appellate courts in indicating, as briefly as we may considering the nature of the question involved, the reasons why we have determined the affidavit to be sufficient to protect the defendant from a summary judgment.
    The Agnew Company was a corporation of the State of New Jersey, with a capital stock of $250,000.00 divided into 5000 shares of the par value of $50.00 each. Upon a proper proceeding begun in the Court of Chancery of that state, having jurisdiction of the affairs of insolvent corporations, it was determined that the said corporation was insolvent; that its outstanding indebtedness, bonded and otherwise, equalled or exceeded the amount of its capital stock; that all of the shares of the said stock had been originally issued by the corporation without its receipt of anything therefor from the parties to whom it was originally issued; that it was necessary in order to pay its debts, that an assessment equal to the full par value of the stock, be levied against all the stockholders; that J. Horace Harding, the present defendant, was then the owner of ten shares of said stock; and that the receiver, who had been previously appointed, be authorized to levy such. an assessment and to proceed to collect the same from the respective stockholders. Basing his right to recover on this decree of the New Jersey court, the plaintiff, the duly appointed receiver, brought this- action in the county of Philadelphia to recover from the defendant the amount of such assessment with interest and costs.
    By way of defense the defendant set up that at the time of the institution of said proceedings, and before and since, he was and has remained a citizen of the state of Pennsylvania; that at no time was he served in the state of New Jersey with- any process from the said court; that he never appeared therein in person or by counsel, and at no-time and in no way submitted himself to the jurisdiction of that court; that he had no knowledge of - such proceedings other than that conveyed to him by notices through the mails addressed to him at his place of business in the city of Philadelphia and there received by him; that he was not an original subscriber to the stock of said company, nor was he one of the parties who promoted it, who received any stock from it, or had any knowledge of the manner in which the said stock was issued, or of the affairs of the corporation at that time, or of any fraud or wrong doing perpetrated by those who organized or promoted the said corporation or originally received the certificates representing its capital stock; that in the ordinary course of business, in the city of Philadelphia, he bought for a valuable consideration ten shares of the said stock through his broker who was making sale of an automobile for him, and who, with his consent, accepted the ten shares in part payment of the purchase price of his car; that having thus acquired his stock in the open market, for a valuable consideration, without any knowledge that it had been illegally or fraudil lently issued or would be subject to call or assessment by the corporation or its receiver, he was not legally liable to pay such an assessment as had been directed by the New Jersey court, and that notwithstanding its decree, he had a right to his day in court and to make defense on the grounds indicated. As already stated, the learned court below entered a summary judgment against him without any opinion indicating the grounds for such action.
    We may say in the outstart that we think the facts upon which his defense is predicated are fairly and sufficiently averred in Ms affidavit. The argument of the learned counsel for the appellee attacking the affidavit in this respect we do not find to be convincing. We shall consider the question in two aspects. Do the facts averred indicate a legal defense to the plaintiff’s claim? Is such defense here available in the face of the decree entered by the New Jersey court, or would its acceptance amount to a collateral attack on that decree?
    (1) From Cook on Corporations, Yol. 1, Sec. 50, where may be found a general discussion of this question, supported by many notes and citations, we quote the following: "A bona fide purchaser, for value and without notice, of stock issued by a corporation as paid up, cannot be held liable on such stock in any way, either to the corporation, corporate creditors or other persons, even though the stock was not actually paid up as represented. . . . The law goes still further and holds that where a person in open market, in good faith and without notice, purchases certificates, such stock is to be deemed 'paid up’ in his hands, and he is protected as a bona fide purchaser, even though there is nothing on the face of the certificates stating that they are paid up. This can now be laid down as the established rule. It is based on sound public policy, favoring as it does the transfer of personal property and the quasi-negotiability of stock and discountenancing secret liens and constructive notice.” The principle thus deduced by the learned author has been clearly stated and followed in the decisions of the courts of last resort of a number of the states of the Union as well as in England. In Finletter v. Appleton, 195 Pa. 349, a bill was filed by. the receiver of an insolvent corporation against the company and its stockholders to compel the payment of unpaid subscriptions to its capital stock. The bill averred in detail the manner in which the stock had been originally issued in violation of law and without the receipt by the company of any value therefor. It further averred that certain persons, who became the appellees in the reported case, were at the time of the filing of the bill the owners of certain shares, having received them by transfer from those to whom they were originally issued. "The appellees' demurred on the grounds that the bill disclosed that they were not original subscribers to the stock or promoters of the company but were purchasers of the stock in the market; . . . and that the bill fails to aver that they purchased the stock with notice of the frand alleged in the bill, or were not purchasers hereof for value.” The demurrer was sustained. In affirming the decree, Mr. Justice Mestkezat, speaking for the court, said: “The bill in this case shows that the defendants are owners of, but not the original subscribers to, certain full paid shares of stock. There is no allegation that they are not holders for value or holders with notice of the fraud alleged in the bill. It is conceded that they purchased their stock in the open market. As shown by the pleadings, therefore, the defendants are not responsible to the plaintiff for any unpaid subscriptions on the stock now held by them, and hence can safely rest upon their demurrer.” We must therefore conclude that the affidavit disclosed a legal defense.
    (2) That the New Jersey court had complete jurisdiction of the insolvent corporation and its affairs is not and cannot be denied. Its findings and decree therefore, made within the limits of that jurisdiction in disposing of the affairs of the corporation, cannot be collaterally attacked in the courts of this state. The defendant is therefore concluded by the decree in so far .as it determines the fact of insolvency; the extent of the indebtedness of the insolvent corporation; that its capital stock was issued to the original stockholders in violation of law and without the payment of any money therefor; that an assessment equal to the par value of the stock was necessary to enable its receiver to pay its debts; that this defendant, with the other persons named in the decree, were the holders of the shares of such stock named in the decree; and that the receiver was authorized to proceed with the collection of such assessment. All of these matters were necessarily determined in ascertaining the status of the corporation to its creditors and stockholders, and in so far as these determinations affected the individuals holding the stock, the court was acting within its jurisdiction because it was dealing with them only as a class, qua stockholders, and in this sense and in this respect they were within the jurisdiction.
    But the defendant as an individual was never within the jurisdiction of that court. No judgment in personam against him could therefore be entered by that court. If this were not true, no citizen of any state could with safety buy in the open market shares in the capital stock of a corporation of a distant state, because he would be compelled at all times to go to that distant state to defend or else be liable to have a personal judgment entered against him. An examination of the decree of the New Jersey court leads us to the conclusion that it does not purport on its face to amount to a personal judgment against this defendant that he pay to the receiver a particular sum of money. Decrees like the one before us are of not infrequent occurrence, and we think there is a consensus of opinion, indicated by all of the decisions, that there still remains to the individual stockholders, when sued in the courts of his domicile in a case like the present one, the right to make any defense personal to himself. That is to say, a defense which cannot be made by the entire body of stockholders as a class, with whom alone the court was dealing, but by him as an individual, such as minority, lunacy, payment or any other defense arising out of the particular circumstances incident to his personal acquisition of the stock.
    In this state the courts of Dauphin county are vested by statute with jurisdiction over the affairs of certain insolvent corporations, and decrees determining the facts of insolvency, that the indebtedness amounts to a certain sum, that an assessment of a fixed amount is necessary, and authorizing receivers to proceed to collect such assessments from the stockholders, have been frequently made. In Fire Insurance Co. v. Boggs, 172 Pa. 91, a case of that character, Mr. Justice Mitchell used the following language: “The order of the Dauphin county court is conclusive upon the validity and the amount of the assessment, but it does not touch the liability of the defendant to pay. It could not do so, as he has not been heard and therefore cannot be concluded as to defenses which are personal to himself.” In Wood v. Live Stock Insurance Co., 154 Pa. 157, the Supreme Court, in touching upon this aspect of the case then before them, said: “In view of what has been said, the remaining specifications do not require discussion. There is nothing in either of them that would justify a reversal or modification of the decree. Appellants and other policy holders are not concluded by the decree from defending on any ground that is personal and peculiar to themselves, respectively.” The same doctrine is recognized in our own case of Brown v. Spademan, 29 Pa. Super. Ct. 688.
    In determining the limitations of the fundamental principles that full faith and credit must be given by the courts of every state to the proper judgments of the courts of another state, the decisions of the courts of the United States must be regarded as of the very highest authority. A brief citation from two of such cases will suffice. In Rood v. Whorton, 67 Fed. Repr. 434, •the United States Circuit Court for the Eastern District of Wisconsin thus defined the limitations of a decree of the character of the one now under consideration. “It is true, as held in Hawkins v. Glenn, 131 U. S. 319, and in Glenn v. Liggett, 135 U. S. 533, that in the absence of fraud, stockholders are bound by a decree against their corporation in respect to corporation matters, and such a decree is not open to collateral attack, as the stockholder is to be deemed privy to the proceedings touching the body of which he is a member. But this rule applies only so far that he cannot question the findings of insolvency and the foundations of an assessment upon the stockholders. Upon any question of individual liability in which are involved his rights as a bona fide holder, or in respect to his special holding of stock, a stockholder is entitled to his day in court and cannot be bound by any ex parte adjudications of liability. There is no adjudication affecting the defense interposed by this defendant, and he is not liable upon his shares of stock.” In Great Western Telegraph Company v. Purdy, 162 U. S. 329, we quote the following language from the opinion of the court: “The whole effect of the order of assessment being to fix the amount which any stockholder under his contract of subscription should pay and to authorize the receiver to bring suits for the same, but not to determine whether the present defendant or any other particular stockholder was liable for anyhing. The Iowa court, by sustaining the defense of the statute of limitations, did not deny to the judicial proceeding of Illinois the full faith and credit to which it was entitled.”
    The doctrine of this case was recognized and followed in the very latest utterance of this court on the subject, Newton’s Estate, decided at the recent March term and not yet reported. That was an action by a receiver against a stockholder to recover an assessment authorized by a decree of a court having jurisdiction of the affairs of the corporation. The defendant interposed the plea of the statute of limitations. To determine the validity of this plea it became necessary to inquire into the nature and effect of the assessment and the decree of the court authorizing it. For if that decree had the effect of a judgment against the defendant, his plea must have been unavailing. Speaking for this court, Henderson, J., said: “The order authorizing the assessment was not a judgment. ... It was conclusive evidence of the necessity for making the assessment and bound the stockholders without personal notice to that extent, but the stockholder sued had the right to set up any defense which he might have to an action on the contract, among which defenses is the plea of the statute of limitations.” Great Western Telegraph Co. y. Purdy, 126 U. S. 329.
    As the record now stands we are of opinion that the affidavit filed exhibited a sound legal defense and that a judgment, founded on such a defense, would not be a collateral attack on the validity of the decree of the New Jersey court nor a denial, to the judicial proceedings of the courts of that state, of the full faith and credit to which they are entitled.
    Judgment reversed and a procedendo awarded.

      Error assigned was the judgment of the Superior Court.

      Henry Spalding, with him David N'. Fell, Jr., for appellant.

      H. B. Gill, for appellee.
    February 19, 1912:
   Pee Cueiam,

The majority of the court concur fully in the views expressed by the learned judge of the superior court in his opinion reversing the judgment against the defendant for want of a sufficient affidavit of defense, and on that opinion the judgment of the superior court is affirmed.


source: Caselaw Access Project

author: Mr, Justice Mestrezat,

license: Public Domain

text:
    Deegan’s Estate.

      Decedents estates — Widow’s $5,000 preference — Constitutional law — Act of April 1, 1909, P. L. 87.

    The Act of April 1, 1909, P. L. 87, giving to widows of decedents $5,000 preference in distribution, applies not only to estates of intestates, but also to the estate of testates where the widow elects to take against the will. The act is constitutional.
    Argued Jan. 5, 1912.
    Appeal, No. 209 Jan. T., 1911, by Joseph Deegan, from decree of O. C. Phila. Co., Jan. T., 1911, No. 402, dismissing exceptions to adjudication in Estate of Michael Deegan, deceased.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.

      Error assigned was decree dismissing exceptions to adjudication.

      Edmund Randall, with him M. J. MeEnery, for appellant.

      Frank G. Sayre, with him Charles H. Sayre, for appellee.
    February 19, 1912:
   Opinion by

Mr, Justice Mestrezat,

The question raised on this record involves the interpretation of the act of April 1, 1909, P. L. 87, and is determined by the decision in the estate of Joseph G-uenthoer, deceased, 235 Pa. 67. For the reasons stated in the opinion filed herewith in that estate, the decree of the court below is affirmed.


author: Mr. Justice Mestrezat,

text:
    Bowling, Appellant v. Roberts.

      Negligence — Automobiles — Evidence — Identity of machine— Gase for jury.

    1. In an action against tbe owners of an automobile to recover damages for personal injuries resulting from the fright of a horse caused by the alleged negligent operation of the automobile, the case is for the jury on the question of identity of the machine, the negligence being established, where the plaintiff testifies that the machine which he saw, was a large one with a “lot of bunting and flags fluttering all over it,” and that he saw no other machine so decorated, while the other evidence in the case shows that the defendant on the day of the accident used a large machine to carry prospective purchasers of lots from a railroad station to the property they were developing, that this machine was decorated with buntings and streamers, and that pamphlets advertising the lots were distributed from it.
    2. While in such a ease the burden is upon the plaintiff to prove whose machine was responsible for the accident, and he must identify it to the satisfaction of the jury, he is not required to do an imposible thing, but only to produce such evidence as will satisfy the minds of twelve intelligent jurors of the identity of the machine.
    Mr. Justice Mosciizisker dissents.
    Argued Jan. 5, 1912.
    Appeal No. 232, Jan. T., 1911, by plaintiff, from order of C. P. No. 4, Pbila. Co., June T., 1908, No. 1247, refusing to take off non-suit in case of Ernest P. Bowling and Lorena Ms wife v. William T. B. Roberts et al., trading as William T. B. Roberts & Son.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Audenried, J.
    The facts are stated in the opinion of tbe Supreme Court.

      Error assigned was refusal to take off non-suit.

      Harry D. Westcott of Westcott, Westcott & McManus, for appellants.
    The plaintiff is entitled to every inference from every fact in the case. The case at bar presents a series of facts, which, when reasoned about, necessarily furnish room for dispute and difference of opinion. The state of facts is of such a character as to come within the law of this State, and requires their submission to a jury: Devlin v. Beacon Light Co., 192 Pa. 188; Heh v. Consolidated Gas Co., 201 Pa. 443; Spear v. R. R. Co., 119 Pa. 61; Rauch v. Smedley, 208 Pa. 175; Joyce v. B. & O. R. R. Co., 230 Pa. 1; Wessel v. Steel Co., 28 Pa. Super. Ct. 332; Fetterman v. Rush Township, 28 Pa. Super. Ct. 77; Emig v. Ry. Co., 43 Pa. Super. Ct. 432; Baker v. Gas Co., 157 Pa. 593.
    “The power to non-suit should not be exercised without great caution: Stanly v. Southwood, 4 Phila. 291; Bevan v. Ins. Co., 9 W. & S. 187; Brown v. Schock, 77 Pa. 471; Johnson v. Com., 115 Pa. 369.

      Ruby R. Yale, for appellees.
    The evidence of the identity of the machine was insufficient to submit to the jury: Lotz v. Hanlon, 217 Pa. 339.
    February 19, 1912:
   Opinion by

Mr. Justice Mestrezat,

We think it was error to enter a compulsory non-suit in this case. The controlling question for determination was the identity of the automobile which caused the accident resulting in injury to the plaintiffs, and we think there was sufficient evidence to submit to the jury on that question.

In 1907, the defendants were engaged in developing property and selling lots at Pitman Heights, a half mile from the borough of Pitman Grove, Gloucester County, New Jersey. There was a farmers’ picnic at Alcyon Park, near Pitman Grove, on August 7th and 8th, 1907, and on the occasion it appears that a White Steamer automobile was used for carrying prospective purchasers of building lots at Pitman Heights from the railroad station at Pitman Grove to the Heights. It was also used in carrying persons between Pitman Heights and Alcyon Park, a mile distant, and from the railroad station to Alcyon Park. The automobile was a large one and was decorated with bunting and streamers upon which the defendants’ name and “Pitman .Heights” appeared in large letters. The car was accompanied by one Sands whom the jury might well have found was in charge of the defendants’ business in selling lots at Pitman Heights. Pamphlets advertising the lots were distributed from the car on its- trips around Pitman Grove. Robert Mitchell, a colored man, in the employ of William T. B. Roberts a member of the defendant firm, was the chauffeur who operated the car which was seen at various times during the picnic on the highways in the vicinity of Pitman Grove, accompanied by Sands, distributing advertising materials.

Mr. and Mrs. Bowling, the plaintiffs, and their infant child were at the farmers’ picnic at Alcyon Park on August 8th, and left for their home about 4.30 p. m. of that day. They drove out Holly avenue to Pitman Grove, thence along Broadway to Pitman Avenue, and were driving on the latter highway, about one hundred yards west of the old Woodbury Road which crosses Pitman avenue, when an automobile turned from the road into the avenue and approached the plaintiffs’ wagon. The plaintiffs’ horse became frightened, ran away, threw the occupants of the wagon out and injured the plaintiffs severely. The plaintiffs claim that it was the defendants’ automobile decorated and used by them on that day for advertising purposes which frightened his horse and caused the accident. The automobile was running rapidly and as it neared the plaintiffs’ wagon it increased its speed and sounded the horn frequently. The chauffeur made no attempt to stop although signalled to do so by Mr. Bowling. The plaintiffs testified that the automobile was a large one and was decorated with flags and bunting, that the bunting was “all flopping down the sides and flags on it,” and that there was a “lot of bunting and flags fluttering all over it, just like a mass of bunting.” There were four or five persons in the car. Replying to appellants’ counsel, Mr. Bowling testified that the day of the accident was a “big day” at Alcyon Park, and further: “Q. Teams generally were decorated with bunting and other things because of that fact, were they not? A. I didn’t see any. They don’t decorate on that day.”

Alcyon Park is about one-half mile west of Pitman Grove, Pitman Heights where the defendants’ lots were located is about the same distance east of Pitman Grove, and the place of the accident is about one-half mile in a southwesterly direction from Pitman Grove. It will thus be seen that these distances are short and that an automobile could cover them in a very few minutes. If the automobile which caused the accident was being used by defendants’ employee in their business at the time, they are responsible if the party operating it was negligent and caused the accident resulting in the plaintiffs’ injuries. It is immaterial who the chauffeur was. The liability of the defendants in this action, therefore, depends upon whether the plaintiffs produced sufficient evidence to warrant the jury in identifying the automobile which caused the accident as the one which was being used by Sands in the defendants’ business on that day. In determining the question the difficulty in identifying an automobile travelling at such rapid speed must not be overlooked. If the evidence is believed, the chauffeur gave no heed to the plaintiffs’ signal to stop the machine but accelerated his speed and sounded his horn frequently until he had passed the plaintiffs’ wagon. Of course, the plaintiffs’ attention was directed to their horse in order to prevent an accident. They manifestly gave the best and only description of the machine that anyone could give under the circumstances. This description, with the other facts in the case, we think, was sufficient to warrant the conclusion by the jury that it was the Roberts automobile that frightened the plaintiffs’ horse. The decorations on this machine corresponded to a certain extent, at least, with those on the Roberts machine in use by the defendants on that day. Both were covered with “a let of bunting and flags fluttering all over the machine, just like a mass of bunting.” A machine thus decorated would attract attention and would be noticed wherever it went. Mr. Bowling says that he saw no other machine decorated with bunting in the community on that day. Of course, this is not conclusive of the fact, but it is some evidence for the jury. The Roberts machine was a large one, so was the one that caused the accident and, from the description given by the witnesses, the decorations of the two machines may well be regarded as similar.

It would be difficult for the plaintiffs to describe more accurately than they did the automobile which frightened their horse. To require a plaintiff under such circumstances to testify to the number or give a minute description of the machine which caused the accident, would frequently defeat a meritorious cause of action. It cannot be expected, and therefore it is not required. While the burden is upon the plaintiff in such cases to prove whose machine was responsible for the accident resulting in his injury, and he must identify it to the satisfaction of the jury, he is not required to do an impossible thing but only to produce such evidence as will satisfy the minds of twelve intelligent jurors of the identity of the machine. This might be done by showing the similarity between the peculiar and unusual decorations on the Roberts machine and those on the machine which frightened the plaintiffs’ horse, and the plaintiffs might thus make a prima facie case which the defendants would be called upon to answer. Had the plaintiffs’ horse been frightened by another team approaching from the opposite direction they could easily have identified the driver and the conveyance but, as suggested above, the rapidity with which an automobile travels, and especially the speed at which this one was going, would prevent a more specific identification than that given by the plaintiffs.

It may be that on the trial of the cause the defendants’ testimony may be so clear and conclusive that the court would be justified in directing a verdict for the defendants. As the case now stands, however, the testimony points to the machine, causing the accident, as the one in use by the defendants at the time in their business in promoting the sales of their lots at Pitman Heights. If this be true, and all the evidence in the case satisfies the jury of the fact, the defendants must successfully meet the question of negligence or respond in damages for the plaintiffs’ injuries.

In their printed argument, appellants’ counsel do not confine themselves to the facts disclosed by the testimony introduced on the trial of the cause. Had they done so, the testimony taken on the former trial but not offered in the present case, would not have been referred to, and the apparent conflict between the facts as stated by counsel and the testimony would probably not have occurred. It may be suggested that on the next trial the plaintiffs’ case should be, as manifestly it can be, more fully developed. The relative position of the different places involved in the case and the distances from each other should at least be approximately shown.

The judgment is reversed with a procedendo.

Mr. Justice Moschzisker, dissents.


author: Pee C deiam,

text:
    Kinsey v. Locomobile Company of America, Appellant.

      Negligence — Elevator—Unguarded shaft — Chauffeur.
    In an action for personal injuries against the owner of an automobile garage, a verdict and judgment for the plaintiff will be affirmed where there is evidence that the plaintiff was a chauffeur in the employ of a customer of the garage, that he was lawfully on the premises in his employment, and that without negligence on his part he fell down an elevator shaft which the defendant had negligently left unguarded.
    Argued Jan. 8, 1912.
    Appeals, Nos. 178 and 179, Jan. T., 1911, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 2669, on verdict for plaintiff in case of Sherman Kinsey, by his father and next friend, John H. Kinsey and John H. Kinsey v. The Locomobile Company of America.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carr, J.
    At the trial the jury returned a verdict for plaintiff for $5,000.
    On motion for judgment for defendant n. o. v. Carr, J., filed the following opinion:
    The defendant’s motion for judgment non obstante veredicto presents two questions: the duty which the defendant owed the plaintiff, and the degree of care which the plaintiff, Sherman, exercised at the time of the accident.
    The plaintiffs contend that Sherman, who was injured, was on the premises of the defendant for the purpose of his employment as chauffeur for Dr. Stewart, and that while working on the second floor of building he was engaged in his lawful employment, and that it was a question of fact for the jury to determine whether he was there by virtue of an implied invitation from the defendant, and that, if so, it was the duty of the defendant to keep the premises in a reasonably safe condition so that he might not be exposed to injury.
    The defendant claims that Sherman was upon its premises as a licensee merely, and that therefore it owed him no duty except not to wilfully injure him or negligently permit him to encounter hidden peril.
    The determination of the respective rights and duties of the parties depends in the first place upon the fact of employment as chauffeur of Sherman by Dr. Stewart, and, in turn, his rights and those of his chauffeur to the use of the second floor of the building, and the degree of care thereby owing to Sherman from the defendant.
    The defendant is an owner and proprietor of a public garage for the storing and repairing for pay of automobiles, situated on the east side of Broad street between Race and Vine streets, and extending eastward to Watts street. The building consists of a basement and three stories. In the basement the automobiles were washed and polished. The first floor was used as a salesroom, and its rear opened upon Watts street. An elevator was operated for carrying automobiles to the several floors, on the third of which was a repair shop, and the second of which was used for storage purposes.
    The contract of storage between Dr. Stewart and the defendant does not appear in evidence. It was offered by neither side. Sufficient evidence, however, appears in the case to support the finding of the jury that Sherman was in fact employed as chauffeur by Dr. Stewart, who, in turn, had storage rights with the defendant.
    If such rights did not exist the proof was readily at the defendant’s command. No effort was made to disprove it by testimony. Sufficient proof also appears to support the jury’s finding that Sherman wa,s in the employ as chauffeur of Dr. Stewart, whose automobile was upon storage with the defendant on the second floor of its building. The defendant did not show rules and regulations between it and Dr. Stewart, the employer of the chauffeur, which forbade the use of the second floor by Sherman upon the evening in question. In fact, his presence there and his use of the place was known to and apparently acquiesced in by the employees of the defendant in charge upon the afternoon and evening of the accident. The evidence, therefore, supports the finding of the jury that Sherman, being upon the premises, was more than a mere licensee.
    The principle of law which controls this case is that one who maintains a building for the purpose of trade or doing business with other persons, no matter what the business is, is bound to use reasonable care in keeping the premises safe: Kay v. Railroad Co., 65 Pa. 269; McKee v. Bidwell, 74 Pa. 218; Connelly v. Faith Co., 190 Pa. 553; Reid v. Linck, 206 Pa. 109.
    The averment of the statement is that the defendant kept and maintained the elevator shaft in a negligent condition, without safeguards, railings or lights, so that Sherman, who was not in the employ of the defendant, but who was lawfully about the second floor , of the building fell through the shaft while using due care in leaving the building. Sufficient evidence appears on the record to show, as the jury have found, that the averments of negligence were well founded and that the second floor of the building was not properly lighted, nor the elevator shaft properly guarded to the reasonably careful degree, which was owing from the defendant under the circumstances.
    The jury having found by their verdict that Sherman was upon the second floor of the building, not as a mere licensee, but upon the implied invitation arising from the relation of Dr. Sewart, the owner of the automobile, and the defendant, the question of Sherman’s contributory negligence was necessarily submitted to the jury also, and from the testimony produced upon both sides, and upon the record, the finding of the jury upon this point is also warranted. Nor do we find that the verdict is grossly inadequate.
    ' The plaintiff’s motion for a new trial is refused; and the defendant’s motion for judgment non obstante veredicto is also refused.

      Error assigned was in overruling motion for judgment n. o. v.

      W. W. Smithers, with him II. A. Talbot, for appellant.

      William T. Connor, with him John R. E. Scott, for appellee.
    February 19, 1912:
   Pee C deiam,

This judgment is affirmed on the opinion of the court •below refusing a new trial and judgment for the defendant non obstante veredicto.


author: Pee Cubiam,

text:
    Malone v. Stewart, Appellant.

      Principal and surety — Contribution among sur e-ties — Contract.
    Where several persons are sureties on separate bonds and for varying amounts, for the completion of a building, and are compelled for their own protection to complete the building left unfinished by the contractor, they are compellable to contribute in proportion to the amounts of their respective bonds, and if one has paid more than his share, he may compel contribution from the others by a suit in equity, although at the time the suit is instituted there are pending and „ undetermined certain contested claims arising out of the construction of the building.
    Argued Jan. 9, 1912.
    Appeal, No. 152, Jan. T., 1911, by defendant Patrick S. Smith, from decree of C. P. No. 2, Phila. Co., June T., 1909, No. 903, in equity in case of Edwin B. Malone v. Amelia Stewart and Patrick S. Smith.
    Before Brown, Mestrezat, Elkin, Stewart and Mosohzisker, JJ.
    Affirmed.
    Bill in equity for contribution.
    Sulzberger, P. J., filed the following opinion in overruling a demurrer to the bill upon which, after hearing, there was a decree in favor of the plaintiff:
    The Stewart Contracting Company contracted with the city of Philadelphia to build a schoolhouse, and gave bonds for faithful performance with the Title Guaranty and Surety Company as surety. Before assuming the suretyship, the latter demanded counter-bonds in the sum of $70,000. Edwin B. Malone, the plaintiff, executed one of these for $10,000, and the defendants, Amelia Stewart and Patrick S. Smith each executed one of the said bonds for $30,000.
    The Stewart Contracting Company abandoned the work before completion, and the three counter-sureties, to save themselves from loss, jointly agreed to finish the work.
    At this point the controversy arises.

      The plaintiff contends that the loss by the contractor’s default should be finally adjusted by charging each of the counter-sureties his proportion thereof, as fixed by their bonds to the surety.
    The defendants, on the other hand, maintain, in support of their demurrer to the bill, that on the face of the bill itself it appears that no contract relation existed between the plaintiff and defendants establishing as between themselves any proportionate liability; that the averments of the bill show that the plaintiff and defendants jointly agreed to complete the work, and that the legal inference from this state of facts is that their interests were equal. They further contend that as the plaintiff paid one-third of the outlay hitherto made and each of the defendants also paid one-third thereof, such payment is in law a mutual ascertainment of their true relations at the time, and a waiver of any contract theretofore made or of any other relation subsisting between them.
    As additional grounds of demurrer it was urged that there are pending and undetermined certain contested claims arising out of the building of the schoolhouse, and that no bill can lie until all such shall have been finally determined, and that therefore the bill must be dismissed.
    In Deering v. Earl of Winchelsea (2 Bos. & Pul. 270), decided in 1800, it was held that if A, B and C became •( bound as sureties for D in three separate bonds, and : any one of them be compelled to pay the whole debt of the principal, the two others are compellable to contribute in proportion to the penalties of their respective bonds.
    Lord Chief Baron Eyre based his conclusion on the view that “The bottom of contribution is a fixed principle of justice, and is not founded in contract.” The reasoning and the judgment in that case have not been disturbed or questioned.
    Indeed, in Craythorne v. Swinburne, 14 Yes., Jr., 160 (decided in 1807), Lord Eldon (page 169) stated that he argued the former case and had been much dissatisfied with the judgment, but had since been convinced that the decision was upon right principles.
    It follows that when the Stewart Contracting Company abandoned its work, the plaintiff and defendants were, as between each other, co-sureties responsible to the surety in the proportions of one-seventh, three-sevenths and three-sevenths.
    At this point they jointly agreed to reduce the loss by agreement between themselves to finish the work. This agreement was not in writing and may have included no other specific terms than those set forth in the bill. These were, in substance, that the money required for completing should be raised by procuring from the defaulting contractor its four promissory notes to the order of plaintiff and defendants and having them discounted by a bank for the defendant, Smith. These notes were for the amounts of $1,500, $4,500, $3,500 and $3,000, respectively, and their proceeds were properly applied. The notes were not paid at maturity, because the defendants refused to admit that the plaintiff was liable only for one-seventh, but insisted that he was liable for one-third. To prevent judgment and execution, he, under protest to defendants, paid one-third, or $4,349.20, to the bank, and the defendants each paid the same amount. As the whole amount paid in settlement of the promissory notes was $13,047.60, it would follow on the principle laid down that the plaintiff was liable only for one-seventh thereof, viz., $1,863.94. As he actually paid $4,349.20, he claims that he has thus far exceeded his true share by $2,485.26, which he may rightfully call upon his co-sureties to pay to him.
    At the time when the co-sureties undertook to complete the building, they were not partners and did not intend to create a partnership. They were mutually engaged in the one purpose to reduce their loss, and this purpose rested on the fact that they were co-sureties.
    It was quite possible at that moment to enter into an agreement whereby the unequal proportions established by the co-suretyship should be altered and the losses should be borne in equal thirds. No such agreement, however, can be inferred from the bill, and if it ever was made, the defendant must set it forth by answer.
    In the absence of such an averment, the legal presumption is that the status of the three-co-sureties remained unchanged and that the completion of the work was not a separate business enterprise but a mere mode of protecting themselves in regard to their co-surety-ship.
    This disposes of the main point of the demurrer.
    The contention that the payment of one-third by the plaintiff warrants a legal inference that the old proportions of the co-sureties were changed, seems to be without force. The question is one of fact and not of law.
    The final contention that the bill is premature is equally untenable. That the plaintiff has paid more than his one-seventh is clearly averred. The contention of the defendants that the existence of additional claims against the co-sureties which are contested and have not yet been decided exempts them from present contribution is based on the idea that a present decree could only be partial and that equity will not favor a multiplicity of suits. Their inference is unwarranted. The decree can be so moulded that all litigation will end with it, though, of course, subsequent motions oy orders may have to be made. In any event, the fact that the defendants may be held to further liability hereafter, is no equitable reason why they should subject their co-surety to indefinite delays in reimbursing him for what he has already paid on their account. In no event can these pending claims reduce the defendants’ liability. They can only increase it.

      The whole subject has been treated with thoroughness by Sir R. S. Wright, J., in Wolmershausen v. Gullick, L. R. 2 Ch. Div. (1893), 514. After reviewing all the authorities, he comes to the conclusion (page 529): “I think I can declare the plaintiffs right, and make a prospective order under which whenever she has paid any sum beyond her share, she can get it back, and I therefore declare the plaintiff’s right to contribution, and direct that upon the plaintiff paying her own share, the defendant Gullick is to indemnify her against further payment or liability, and is by payment to her or to the principal creditor or otherwise, to exonerate the plaintiff from liability beyond the extent of her own share. The plaintiff must have liberty to apply in chambers and generally to apply.”
    This case was cited with approval in Shepheard v. Bray, L. R. 2, Ch. Div. (1906), 235.
    In this country, too, we are not without respectable authority.
    In Ferrer v. Barrett (4 Jones Equity, N. C., 455, decided in 1859), it was held that a surety, upon the principle of quia timet, may file a bill against a counter-surety to enforce his (surety’s) exoneration, though he may not have paid the debt.
    We are aware that there are jurisdictions in which this doctrine has not been fully accepted, but there is no case which goes as far as the defendants here ask us to go.
    In Gourdin v. Trenholm (25 S. C. 362), the court put its decision on the express ground that Trenholm had at the time of suit brought not paid more than his proportionate share of the debt, and in Washington v. Nor-wood (128 Ala. 383, 30 So. Repr. 405); it was held that “the right of action for contribution at law or in equity accrues when one surety pays more than his share of the common liability.”
    These are the leading cases that are usually cited against our view. To hold that when, as in this case, a surety has actually paid more than his share, he may proceed against his co-sureties, is quite consistent with these authorities.
    The only ground on which the extreme doctrine contended for by the defendants could be based would be that the surety first sued owes a duty to his co-sureties to stand in the breach, to defend all suits and to pay out his own moneys in order that they may be freed from annoyance and loss. As they all stand on an equality, the existence of such a duty on his part and a correlative right on theirs is purely inconceivable.
    We think that none of the defendant’s grounds of demurrer can be sustained.
    The demurrer is overruled with leave, &c.

      Error assigned was in overruling the demurrer.

      Theodore F. Jenkins, with him J. Washington Logue, for appellant.
    Complainant was not entitled to contributions: Deering v. Earl of Winchelsea, 2 Bos. & Pul. 270; Agnew v. Bell, 4 Watts 31; Craythorne v. Swinburne, 14 Ves. Jr. 160; Ex parte Gifford, 6 Ves. Jr. 805; Cherry v. Wilson, 78 N. C. 164; Martin v. Frantz, 127 Pa. 389; Gourdin v. Trenholm, 28 S. C. 362; Washington v. Norwood, 128 Ala. 383 (30 So. Repr. 405); De La Cuesta v. Ins. Co., 136 Pa. 62; Harvey v. Girard Nat. Bank, 119 Pa. 212; Union Ins. Co. v. Allegheny, 101 Pa. 250; Colwell v. Peden, 3 Watts 327; Boas. v. Updegrove, 5 Pa. 516; Espy v. Allison, 9 Watts 462; Taylor v. Phila. Board of Health, 31 Pa. 73; Peebles v. Pittsburgh, 101 Pa. 304.

      Preston K. Erdman, with him Edwin O. Michener, for appellee.
    The liability of the three sureties was in proportion to the amounts of their respective bonds: Deering v. Earl of Winchelsea, 1 Cox Ch. 318; Ellesmere Brewery Co. v. Cooper, L. R. 1 Q. B. Div. (1896) 75; Loring v. Bacon, 57 Mass. 465; Armitage v. Pulver,

      37 N. Y. 494; Williams v. Reihl, 127 Cal. 365 (59 Pac. Repr. 762); Springs v. Brown, 97 Fed. Repr. 405; Bell v. Jasper, 2 Ired. Eq. (N. C.) 597; Moore v. Hanscom, 103 S. W. Repr. 665; Bond v. Bishop, 18 La. Ann. 549.
    February 19, 1912:
   Pee Cubiam,

The facts in this case are not in dispute and the law applicable to them was correctly stated in the opinion of the learned president judge of the court below overruling the demurrer to the bill. On that opinion the decree is affirmed with costs.


author: Mr. Justice Mestbezat,

text:
    Fox’s Estate.

      Executors and administrators — Commissions—Legacies.
    1. A bequest in a will made to one who is appointed executor is presumed to be a bounty and not compensation for services to be rendered in settling the estate, unless it appears expressly or by clear implication that the testator intended that the legacy should be received by the executor in lieu of his commissions.
    2. Where a testator leaving an estate of $800,000 appoints four executors, three of whom are his sons and gives “to each of the executors named in this will, who shall enter upon their duties as such executors, the sum of $5,000 absolutely,” and all of the executors qualified and administered the estate, such executors are not entitled to any commissions or compensation above the amount of the legacies given to them by the will.
    Argued Jan. 9, 1912.
    Appeal, No. 223, Jan. T., 1911, by Horace Yardlev, from decree of O. C. Phila. Co., April T., 1911, No. 160, sustaining exceptions to adjudication in Estate of Henry C. Fox, deceased.
    Before Bbown, Mesteezat, Elkin, Sxewabi and Moschziskeb, JJ.
    Affirmed.
    Exceptions to adjudication.

      The facts appear by the opinion of the Supreme Court.

      Error assigned was decree sustaining exceptions to adjudication.

      Alex. Simpson, Jr., with him James S. Alcorn, for appellant.
    For faithful services executors are entitled to commissions unless they have waived the right to claim them.
    A legacy given by a will is presumed to be a bounty, and will be so held unless the language used shows a clear intent otherwise.
    In construing a will the intention of the testator is to be derived from the meaning of the words used by him, and not from supposed but unexpressed intention: Hancock’s App., 112 Pa. 532; Bender v. Bender, 226 Pa. 607.
    As a corollary from the foregoing it follows, in the present case, that unless in construing the words in fact used an intent appears therein to require the executors to take the legacies of $5,000 each, in lieu of commissions, this appeal must be sustained: Clark’s Estate, 10 Pa. D. R. 378.

      John Gt. Johnson, with him Maurice Bower Saul, for appellee.
    The legacies to the executors about equal the amount of commissions which would be allowable.
    The legacies are contingent upon the legatees acting as executors: Hill’s Estate, 34 Pa. C. C. R. 493; Mason’s Account, 98 N. Y. 527; Hays’ Estate, 183 Pa. 296; Harper’s App., 111 Pa. 243; Sweatman’s Est., 223 Pa. 552.
    The daughter not named as executor is given a legacy in the same amount as each executor.
    February 19, 1912:
   Opinion by

Mr. Justice Mestbezat,

There is but one question in this case, and it is a narrow one and of easy solution.

Henry C. Fox died on March 1, 1910, leaving to survive him four children and the children of a deceased son. He left a large estate, the balance for distribution shown by the account being more than $800,000, the residue of which he divided into five equal parts, three of which he gave to his three sons, one to the children of his deceased son, and the remaining part to a trustee for his daughter. The fifth clause of the will is as follows: “I give and bequeath to each of the executors named in this will, who shall enter upon their duties as such executors, the sum of five thousand dollars absolutely. I also give and bequeath the sum of five thousand dollars to my daughter Adaline C. Rommel absolutely.” The testator appointed his three sons and his friend Horace Yardley executors of the will, and the four executors qualified and administered the estate.

In the account filed, the executors claimed commissions of $26,212.43 as compensation for settling the estate in addition to the $5,000 bequeathed each of them by the testator. The auditing judge allowed the commissions, but on exceptions filed by the trustee of Mrs. Rommel the court in banc held that the legacies bequeathed to the executors were in lieu of their commissions for administering the estate. The correctness of this ruling is the only question in the case.

A bequest in a will made to one who is appointed executor is presumed to be a bounty and not compensation for services to be rendered in settling the estate, unless it appears expressly or by clear implication that the testator intended that the legacy should be received by the executor in lieu of his commissions. If the will discloses that it was the intention of the testator to reward the executor for his services by the legacy, it is conclusive on the executor, and if he accept the position and administer the estate by virtue of his appointment as executor he must accept the reward for his services named in the will. Of course, this does not apply to administrators with the will annexed. They are entitled to reasonable compensation for their services regardless of any declaration made by the testator in Ms will fixing commissions for administering the estate. They hold the office by virtue of the law, while an executor is appointed by the will.

We are at a loss to see any substantial ground on which the appellant in this case, one of the executors, has the right to claim commissions in addition to the five thousand dollar legacy given him by the testator. The language of the fifth paragraph of the will is unambiguous and plainly declares the purpose of the legacy bequeathed to each of the executors. It is given to the executors and not to the individual persons. The gift is to them in their representative capacity and not to them as individuals. There are two conditions attached to the gift: the legatees must be the executors named in the will, and they must enter upon their duties as such executors. Both conditions must be complied with before the parties are entitled to the legacies. Until the executors enter upon their duties they are not entitled to the bequest. If they or either of them decline to accept the office, those declining are not entitled to the legacy. In other wrords, if the executors refuse to act as such they are deprived of the legacy. This, we think, makes it manifest that the testator intended that the legacy should be received as compensation for the legatees acting as executors in the settlement of the estate. If such was not the intention, we can see no purpose in the language used by the testator. He could have bequeathed the legacies to the four legatees without restrictions or conditions, he could have simply bequeathed to them five thousand dollars which would have carried out the purpose which the appellant alleges he had in making the bequest. There was certainly no necessity for his attaching to the gift any condition whatever if it was the intention to make it a simple gratuity or bounty.

It is argued by the appellant that if the testator intended the gift to be in lieu of commissions or in full for services he would have said so. It is true that the scrivener who prepared the will could have used language which would have prevented any contest over this paragraph of the will, but he did not do so. The language, however, is sufficiently clear to leave no doubt whatever that if the persons named as executors did not accept the office and enter upon its duties, they would be deprived of the legacy. This clearly points to but one purpose of the testator and that is that the individuals named in his will as executors should not receive the legacies given them unless they administered his estate. Nor is there anything in the contention that such was not the intention of the testator because three of the executors might refuse to ¿dminister or, having administered, might die and the remaining one would only receive five thousand dollars for his services which would be entirely inadequate. That contention is fully met by what was said in Harper’s Appeal, 111 Pa. 243, that it must be presumed that the testator considered the contingency of the death or resignation of some of the executors when he fixed the compensation to be paid to each of them.

It appears from the finding of the learned auditing judge that the reasonable commissions allowable to the executors would approximate the sum given them as legacies. In view of the fact that the residuary estate was equally divided between all of the testator’s children, it cannot be presumed that the testator intended to give the three sons double commissions, which would be the effect of their receiving the legacies in addition to the commissions claimed. The testator’s purpose was to make his children equal in the distribution of his estate, and this was accomplished by giving the daughter five thousand dollars which was bequeathed the sons as compensation for performing their duties as executors. The legacy of five thousand dollars is given to the daughter in the same paragraph of the will in which the sons are each given five thousand dollars when they enter upon their duties as executors.

There is nothing in any other part of the will which gives any countenance to the contention that the legacies given to the executors were not to be in lieu of commissions, while the explicit language of the fifth paragraph in which the legacies are bequeathed leaves no doubt that such was the intention of the testator.

The decree is affirmed.


text:
    Keene Home v. Startzell.

      Mortgage — Bond and warrant — Judgment—Affidavit of ownership — Act of April 28, 1908, P. L. 261.

    1. Where a judgment is entered on a warrant of attorney accompanying a bond and mortgage after the mortgagor has parted with his title to the real estate, it is not necessary in issuing execution on the judgment to file an affidavit of ownership as provided by the Act of April 23, 1903, P. L. 261. The writ of execution in such a ease is not a writ within the intendment of the act, inasmuch as it is the entry of the judgment and not the execution which charges the land with the mortgage debt.
    2. A judgment entered upon a bond and warrant of attorney accompanying a mortgage creates a lien upon the mortgaged premises, no matter who may be the owner of them at the time of the entry of the judgment. The lien of such judgment relates back to the day the mortgage was recorded, and a sale upon it discharges the lien of the mortgage.
    Argued Jan. 9, 1912.
    Appeal, No. 238, Jan. T., 1911, by Charles E. Griffith and Katherine L. Dallas, from judgment of C. P. No. 3, Phila. Co., June T., 1910, No. 911, awarding possession in case of The Keene Home v. Edward Startzell.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Petition to deliver possession.
    Ferguson, J., stated the facts to be as follows:
    “This is a citation to deliver possession to a purchaser at sheriff’s sale under the Act of April 20, 1905 (P. L. No. 239). The citation was directed to Anna M. Griffith as the person in possession who has filed an answer, as has also Katherine L. Dallas who was peruiitted to intervene. The petition for citation avers that the petitioner acquired title by purchase at a sheriff’s sale held in August, 1910; that the sale was upon a writ of venditioni exponas issued upon a judgment entered against Edward Startzell on a bond and warrant of attorney in a proceeding in which The Keene Home, a corporation, was plaintiff; that the bond and warrant of attorney were for the same debt as that secured by an indenture of mortgage of the real estate executed by the said Startzell to Robert Pitts and by assignments the said mortgage became vested in the said Keene Home. The petition further avers that Anna M. Griffith came into possession through a title derived from the said Startzell and refuses to deliver possession to the petitioner. The answers filed by Anna M. Griffith and Katherine L. Dallas deny the averments of the petition, but an examination of the answers discloses that the denial is not such a denial of the facts alleged in the petition as an assertion of a conclusion of law that the petitioner did not acquire title by the sheriff’s sale referred to. The answers further set up that Anna M. Griffith is not in possession of the premises, but that Katherine L. Dallas acquired title thereto in May, 1909, and is the owner and that Charles E. Griffith, the husband of Anna M. Griffith, is now the occupant of the premises under a verbal lease from the said Katherine L. Dallas. They also aver that Edward Startzell was not the owner of the premises at the time the judgment was entered upon the bond and warrant and that no notice was given to Katherine L. Dallas, Anna M. Griffith or Charles E. Griffith of the pro* ceedings upon the bond. The respondents therefore pray that a trial by jury be awarded to determine the question of fact raised by the petition and answers.
    “The placing of the petition and answers upon the list for argument is an admission on the part of the petitioner that all relevant facts averred in the answers are true, and an admission by the respondents that all facts averred in the petition and not denied in the answers are likewise true. It is conceded by both sides ' therefore that the following facts are fixed: The bond and warrant upon which judgment was entered accom- j panied a mortgage of the real estate; Edward Startzell, the defendant, had parted with the title before the judgment was entered; Katherine L. Dallas was the holder of the fee, subject to the mortgage at the time the judgment was entered; no notice of the execution was given to Anna M. Griffith, Katherine L. Dallas or Charles E. Griffith; and Charles E. Griffith is now occupant of the premises under a verbal lease from Katherine L. Dallas.”
    The Court refused the prayer of the petition on the ground that Anna M. Griffith was not in possession, but gave petitioner leave to amend, whereupon an amended petition was filed for a citation upon Charles E. Griffith, one of appellants, to which petition answers Avere filed by both appellants denying the title of the petitioner, or the validity of the sheriff’s sale, setting. forth that Katherine L. Dallas, the real owner, had had no notice whatever of the proceedings and had not been made a party thereto, as required by the Acts of July 9, 1901, P. L. 614, and April 23, 1903, P. L. 261, and that the premises were occupied by Charles E. Griffith under Arerbal lease from Katherine L. Dallas.
    The Court entered judgment of possession on this petition and answers against Charles E. Griffith, to Avhich judgment an exception was taken and filed, and from which judgment this appeal is taken. ,

      Error assigned was the judgment of the court.

      G. W. Van Artsdalen, for appellants.

      John G. Johnson, with him Kinley J. Tener, for appellee.
    February 19, 1912:
   Pee Cueiam,

The real estate which is the subject of this controversey was sold at sheriff’s sale upon an execution .issued on a judgment entered upon a bond and warrant accompanying a mortgage. When the judgment was entered, Startzell, the mortgagor and the obligor in the bond, had parted with his title to the property, and it was sold by the sheriff’ without notice to the owner of it. The contention of the appellants is that no title passed to the sheriff’s vendee, because of a failure to comply with the following provision of the act of April 23, 1903, P. L. 261: “The plaintiff in any writ of ejectment, in any writ of summons to recover upon a ground-rent deed, or to recover any sum charged upon real property by will or deed, in any writ of scire facias sur mortgage, or in any writ to charge particular land with the payment of a particular debt running with the land, or some person on his behalf, shall file with his praecipe an affidavit setting forth, to the best of his knowledge, information and belief, who are the real owners of the land charged, or in the action of ejectment are claimants thereof, as the case maj be; and all such persons shall be made parties to the writ, which shall then be served by the sheriff as follows.”

A judgment entered upon a bond and warrant of attorney accompanying a mortgage creates a lien upon the mortgaged premises, no matter who may be the owner of them at the time of the entry of the judgment. The lien of such judgment relates back to the day the mortgage was recorded, and a sale upon it discharges the lien of the mortgage: Morris v. Campbell, 186 Pa. 589. When Dallas, the ¿ppellant, took title, she had record notice that the mortgage which bound her property had been accompanied by a bond upon which judgment might be entered at any time against Startzell, the obligor in it, without notice either to him or to her, for neither was entitled to such notice. After the judgment was entered no writ was issued to recover any sum charged upon the property or to charge it with the payment of any particular debt running with it. Neither the fi. fa. nor vend. ex. charged the land with the mortgage debt. It was so charged by the entry of the judgment, and the writ of execution subsequently issued thereon was clearly not a writ within the intendment of the act of 1903. The court below correctly so held, and the.judgment for the petitioner below, for possession of the property, is affirmed.


author: Peb Cubiam,

text:
    Gibson v. Johnson, Appellant.

      Equity — Findings of fact — Evidence—Review.
    On a bill in equity for an accounting of royalties alleged to be due under a license agreement where the issue turns upon an alleged oral agreement set up as a defense, a finding of the chancellor based upon sufficient evidence that no such oral agreement existed, will not be reversed by the appellate court in the absence of manifest error.
    Argued Jan. 9, 1912.
    Appeal, No. 279, Jan. T., 1911, by defendant from decree of C. P. No. 4, Phila. Co., March T., 1909, No. 4179, on bill in equity in case of Eobert L. Gibson v. Eldridge E. Johnson.
    Befoi’e Bbown, Mestbezat, Elkin, Stewabt and Moschziskee, JJ.
    Affirmed.
    Bill in equity for an accounting of royalties. Before Audenbied, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree awarding an accounting.

      John Gf. Johnson, with him Horace Pettit, for appellant.

      Ernest Howard Hunter, for appellee.
    February 19, 1912:
   Peb Cubiam,

By the terms of his written agreement of June 14, 1901, with Jones and Gibson, the appellant is liable for the royalties claimed by the appellee. To relieve himself from this liability he averred, in the fourteenth paragraph of his answer, that Gibson, on behalf of himself and Jones, when he executed the contract of August 5, 1903, with The Gramophone & Typewriter Limited, granted it “a license to have the said sound boxes, the subject matter of said agreement, manufactured as theretofore, in the United States by the said Victor Talking Machine Company, at Camden, New Jersey, free of all royalty, and without any further consideration, or royalty whatsoever.” The finding of the learned chancellor below is that this averment was not established by the evidence; that there was no oral contract for such a release of royalties by Jones and Gibson, and that no such release appears in either the written contract itself or in the letter of Trevor Williams, managing director of The Gramophone & Typewriter Limited, to J. Broad, of Cheston & Sons, its solicitors, dated July 30, 1903, giving instructions upon the basis of which the agreement of August 5,1903, was prepared. After reviewing all the evidence in the case, we have not been persuaded that error was committed by the court below in failing to find the essential fact averred and relied upon by the appellant, and the decree is, therefore, affirmed with costs.


author: Peb Cueiam,

text:
    Philadelphia to use, Appellant v. Neill.

      Principal and surely — Bond—Public contract.

    Where a contractor with a city for the grading and paving of streets gives a bond that he will pay for all labor and materials furnished to him in connection with the contract, and subsequently finding himself unable to perform the work assigns the contract to another person who agrees to complete it, and to pay to the contractor one-half of the profits resulting therefrom, the assignee cannot maintain an action against the surety on the bond for labor and materials furnished by him. In such a case the bond was not given to indemnify the contractor against his own default, but this in effect is the use which the assignee would make of it, if he were permitted to maintain a suit thereon.
    Argued Jan. 9, 1912.
    Appeal, No. 239, Jan. T., 1911, by plaintiff from order of C. P. No. 2, Pbila. Co., Sept. T., 1901, No. 552, refusing to take off non-suit in case of City of Philadelphia, to the use of John K. Dagney, Administrator de bonis non cum testamento annexo of the Estate of John Dagney, deceased v. A. M. Neill and Samuel M. Hyneman, Receiver of the Lincoln Savings & Trust Company.
    Before Brown, Mestrezat, Elkin. Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a bond. Before Wiltbank, J.
    The opinion of the Supreme Court states the case.

      Error assigned was order refusing to take off non-suit.
    W. W. Smithers, with him Edgar W. Lank, for appellant,
    cited: Philadelphia v. Stewart, 201 Pa. 526; Philadelphia v. Wiggins, 227 Pa. 343; Bowditch v. Gourley, 24 Pa. Super. Ct. 342; Philadelphia v. Nichols, 214 Pa. 265; Howes v. Scott, 224 Pa. 7; Sentinel Printing Co. v. Long, 28 Pa. Super. Ct. 608; Catanzaro v. R. R. Co., 230 Pa. 305.

      Charles E. Edmunds and M. J. O’Callaghan, for appellee,
    cited: Philadelphia v. McLinden, 205 Pa. 172; Philadelphia v. Malone, 214 Pa. 90.
    February 19, 1912:
   Peb Cueiam,

A. M. Neill entered into a written contract with the city of Philadelphia for the grading and paving of certain streets, and executed and delivered to it a bond with the Lincoln Savings and Trust Company as surety thereon, the condition of which was that he would pay for all labor and materials furnished to him in connection with the performance of his contract. Finding himself unable to perform it, Neill, on August 10, 1910, assigned it to John Dagney, who, in consideration of its assignment to him, undertook to perform it and to pay to Neill one-half of all profits that might accrue from it. Dagney furnished labor and materials to the amount of $3,380, and this action has been brought by his administrator to recover that sum on Neill’s bond. Neill’s assignment to Dagney of his contract with the city was, as the learned trial judge correctly held, “upon terms of quasi partnership.” The bond was not given to indemnify the contractor against his own default, but this, in effect, is the use which the appellant would make of it.

Judgment affirmed.


author: Mr. Justice Moschziskee,

text:
    Jewell’s Estate.

      Taxation — Collateral inheritance tax — Remaindermen—Decedents estates — Act of May 6,1887, P. L. 79 — Constitutional law.

    1. Where a testator died in 1876, leaving real estate to his daughter for life with remainder over, and the life tenant die3 in 1910, the remaindermen are liable only for the collateral inheritance tax in their respective estates on the value of the estate when they “come into actual possession” on the death of the life tenant.
    2. The Act of May 6, 1887, P. L. 79, “An Act to provide for the better collection of collateral inheritance tax” is not open to the charge of uneonstitutionality, because its title fails to give sufficient notice of the provisions of article third of the act.
    Argued Jan. 11,1912.
    Appeal, No. 310, Jan. T., 1911, by Claudius Buchanan Jewell et al., from decree of O. C. Phila. Co., Jan. T., 1911, No. 19, dismissing appeal from collateral tax appraisement in Estate of Leonard Jewell, deceased.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from collateral tax appraisement. Before Lamorelle, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the appeal.

      E. O. Michener, for appellant.
    It is submitted that the law as it existed at the time of the death of the testator in 1876 should govern this case: Finnen’s Estate, 196 Pa. 72; Com. v. Smith, 20 Pa. 100; Com. v. Eckert, 53 Pa. 102; Mellon’s App., 114 Pa. 564; Commonwealth’s App., 127 Pa. 435; Commonwealth’s App., 128 Pa. 603.
    The Act of 1887, as to its third section, if it does attempt to alter the law as it existed prior to its passage, as to estates in which the collateral inheritance tax had already accrued and could be paid, is unconstitutional in that the title does not give any notice of any such intention nor is1 it broad enough to cover any such action of the legislature: Com. v. Hazen, 207 Pa. 52; Potter County Water Co. v. Austin Boro., 206 Pa. 297; Com. v. Kemort, 212 Pa. 289; Brown’s Estate, 152 Pa. 401; Pierie v. Philadelphia, 139 Pa. 573.
    In re Hancock St., 1 W. N. C. 112; Commonwealth v. Nihil, 4 Pa. D. R. 582; Barnes v. Phila., &c., R. R. Co., 27 Pa. Superior Ct. 84; Quinn v. Cumberland County, 162 Pa. 55; Gackenbach v. Lehigh County, 166 Pa. 448; Payne v. Coudersport Borough School District, 168 Pa. 386; In re Otto Township Road, 181 Pa. 390; Weiss v. Swift & Co., 36 Pa. Superior Ct. 376.

      J. Lee Patton, for appellee.
    The act of 1887 controls: Coxe’s Estate, 193 Pa. 100; Strode v. Com., 52 Pa. 181; Mellon’s App., 114 Pa. 564.
    The act is constitutional: Campbell’s Registration, 197 Pa. 581; Phoenixville Borough Road, 109 Pa. 44; Mauch Chunk v. McGee, 81 Pa. 433; Allegheny County Home, 77 Pa. 77; Commonwealth v. Beatty, 15 Pa. Super. Ct. 5; Commonwealth v. Jones, 4 Pa. Super. Ct. 362; Commonwealth v. Moore, 2 Pa. Super. Ct. 162.
    February 19, 1912:
   Opinion by

Mr. Justice Moschziskee,

The testator died in 1876, owning certain real estate in the city of Philadelphia which he devised to a daughter for life with remainder over; the life-tenant died in 1910. The questions are, (1) Must the remainder-men pay collateral inheritance taxes on the value of their estates in this property as of 1876 plus interest at six per cent., or on its value at the time they entered into possession in 1910? (2) Is the Act of May 6,1887, P. L. 79, unconstitutional because of defect in title?

The third section of the statute in question reads as follows: “In all cases where there has been or shall be a devise, descent or bequest to collateral relatives or strangers, liable to the collateral inheritance tax, to take effect in possession, or come into actual enjoyment after the expiration of one or more life-estates, or a period of years, the tax on such estate shall not be payable, nor interest begin to run thereon, until the person or persons liable for the same shall come into actual possession of such estate,- by the termination of the estates for life or years, and the tax shall be assessed upon the value of the estate at the time the right of possession accrues to the owner as aforesaid: Provided, That the owner shall have the right to pay the tax at any time prior to his coming into possession, and, in such cases, the tax shall be assessed on the value of the estate at the time of the payment, of the tax, after deducting the value of the life-estate or estates for years: And provided further, That the tax on real estate shall remain a lien on the real estate on which the same is chargeable until paid.....”

The Act was before this Court in Coxe’s Estate, 193 Pa. 100, and after quoting its third section, we said (p. 105): “It is desirable.....to consider the plain meaning of the foregoing words ..... The act says, ‘The tax on such estate shall not be payable, nor interest begin to run thereon, until the person or persons liable for the same shall come into actual possession of such estate.’ If the tax shall not be payable until that event it does not arise, it has no beginning, and hence the Commonwealth has no title to it and cannot demand its payment until the estate itself ‘comes into actual possession’ of the person entitled. And such coming into actual possession must be ‘by the termination of the estates for life or years.’ And again, in the same direction, it is positively provided that, ‘the tax shall be assessed upon the value of the estate at the time the right of possession accrued to the owner aforesaid.’ That is, although the estate in remainder may have had a definite value at the time of the death of the testator....., it is not that valuation that is to be the test of the tax, but the valuation of the estate at the time it comes into possession. This is the plain, actual, common-sense meaning of the words we are considering, and this meaning is not at all impaired by the language of the proviso .....: ‘Provided that- the owner shall have the right to pay the tax at any time prior to his coming into possession, and in such cases the tax shall be assessed on the value of the estate at the time of the payment of the tax, after deducting the value of the life-estate or estates for years......’ (p. 111). We are clearly of the opinion that the tax..... will not become due and payable until (after the expiration of the life estates)......, and that it is the value of the property as it will then appear to be, that must constitute the basis upon which the tax must be declared.”

After considering all the prior legislation and the numerous cases called to our attention in the most excellent paper-book of counsel for the appellant, we are not convinced of any error in the construction placed upon the Act of 1887 in the case just referred to. It is true that in Coxe’s Estate, the decedent died after the Act of 1887, but the statute by its express terms applies not only to future devises, but also to those already made, “in all cases where there has been a.....devise” are the words used. The question of the tax or the amount to be retained by the Commonwealth upon the transmission of decedents’ estates is peculiarly for the law making power of the State; no authority has been cited to us, and we know of no rule or principle which forbids the Legislature to make changes in the statutory law affecting the time or manner of assessing an inherited estate, and incidentally to affect the sum of the tax to be paid, at any time before the estate comes into the actual possession of the person liable for the tax prior to an actual payment thereof. Cooper’s Estate, 127 Pa. 435, simply determined that the debts of the decedent, chargeable against his real estate because of a deficiency in personal assets, should be deducted from the value of the real estate in determining the clear value of the estate that passed from the decedent to the person liable for the tax; but the report shows that the appraisement in this case was made “as of the ninth day of July, 1884,” which was the date of the death of the last tenant for life.

The third section of the Act of 1887, taken as a whole, clearly shows that the legislature intended to make a change in the law as to the time for fixing the value of estates in remainder, and that the purpose was to affect all such estates then subject or to become subject to the payment of collateral inheritance taxes. Under the Act, the death of the testator, as theretofore, establishes the right to the tax, but it does not become due and collectible until the remainderman enters into “actual possession.....by the termination of the estates for life or years;” and when he so enters he must pay the tax upon the value at that time. On the whole no hardship is worked by this provision, for, as suggested in Coxe’s Estate, supra at page 110, in many instances the value of the real estate may greatly depreciate after the death of the proprietor and thus affect the value of the estate of the remainderman when it comes into his actual possession. The Act tends toward equality and uniformity in that it makes each person pay the tax upon the value of the estate which he actually takes into his possession; that this was the intention of the Legislature and that it had the right so to enact, we entertain no doubt.

But the appellant contends that, “The Act of 1887, as to its third section, if it does attempt to alter the law as it existed prior to its passage, as to estates in which collateral inheritance taxes are already accrued and could be paid, is unconstitutional in that the title does not give any notice of any such intention, nor is it broad enough to cover any such action of the Legislature.” The statute is entitled, “An Act to provide for the better collection of collateral inheritance taxes.” It makes no change in the tax itself, and the section in question deals with the time when, under given circumstances, such tax shall be due, collectible and payable, and in this connection when and how the value of the estate taxed shall be fixed. There is nothing in the title to mislead, and it gives fair and reasonable notice to any person subject or liable to become subject to the payment of a collateral inheritance tax that its provisions might affect him, — that is, notice sufficient to put such a person on inquiry, and this is all that is required: Allegheny County Home’s case, 77 Pa. 77; Mauch Chunk v. McGee, 81 Pa. 433; Campbell’s Registration, 197 Pa. 581; Commonwealth v. Clymer, 217 Pa. 302; Commonwealth v. Moore, 2 Pa. Superior Ct. 162; Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Commonwealth v. Beatty, 15 Pa. Superior Ct. 5. We have considered all the authorities cited by the appellant to support his contention but feel that they do not rule the present case.

The assignments of error are overruled and the judgment of the Court below is affirmed.