text:
    Cunningham v. Frey, Appellant.

      Negligence — Master and servant — Elevator.
    In an action by an employee against his employer to recover damages for personal injuries sustained as the result of the fall of an elevator, a verdict and judgment for the plaintiff will be upheld where the evidence tends to show that the elevator was old, wabbled, was loose in its bearings, that its safety clamps or clutches failed to work, and that the plaintiff was not guilty of interfering with the cable or rope, so as to cause the fall.
    Argued May 20, 1909.
    Appeal, No. 166, Jan. T., 1909, by defendant, from judgment of C. P. York Co., April T., 1908, No. Ill, on verdict for plaintiff in case of Joseph S. Cunningham v. Edgar A. Frey and Chester H. Thomas, copartners, trading as Frey & Thomas.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bittenger, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,500. Defendants appealed.

      June 22, 1909:

      Error assigned amongst others was refusal of binding instructions for defendant.

      J. S. Black, with him V. K. Keesey, for appellants.
    The evidence as to the cause of the fall of the elevator, and therefore as to the cause of the injury complained of being undisputed, the question of proximate cause became one of law for the determination of the court: Douglass v. New York Central & Hudson River R. R. Co., 209 Pa. 128; West Mahanoy Twp. v. Watson, 116 Pa. 344; Hoag v. Lake Shore R. R. Co., 85 Pa. 293; Herr et ux. v. Lebanon City, 149 Pa. 222; Ford v. Anderson, 139 Pa. 261; Simpson v. Pittsburg Locomotive Works, 139 Pa. 245; Ballard v. N. Y. C., etc., R. R. Co., 126 Pa. 141; Erie & W. V. R. Co. v. Smith, 125 Pa. 259; Kepner v. Harrisburg Traction Co., 183 Pa. 24; Philadelphia & Reading R. R. Co. v. Schertle, 97 Pa. 450; Rotsell v. Warren Bro., 10 Pa. Superior Ct. 283; Hayes v. R. R. Co., 195 Pa. 184.

      Henry C. Niles, with him William B. Gemmill, for appellee.
    The case was for the jury: Gerding v. Standard Pressed Steel Co., 220 Pa. 229; Penna. R. R. Co. v. Ogier, 35 Pa. 60; Schiglizzo v. Dunn, 211 Pa. 253; Hughes v. Mfg. Co., 214 Pa. 282; McGeehan v. Hughes, 217 Pa. 121; Penna. R. R. Co. v. Hope, 80 Pa. 373; Quinlan v. Philadelphia, 205 Pa. 309; Cameron v. Traction Co., 216 Pa. 191; Thomas v. Cent. R. R. Co. of New Jersey, 194 Pa. 511; Gudfelder v. R. R. Co., 207 Pa. 629; Cohn v. May, 210 Pa. 615; Dannenhower v. Western Union Telegraph Co., 218 Pa. 216; Provident Life & Trust Co. v. Philadelphia, 202 Pa. 78; Kuntz v. R. R. Co., 206 Pa. 162; Medis v. Bentley, 216 Pa. 324; Com. v. Razmus, 210 Pa. 609; Kyle v. Southern E. L. & P. Co., 174 Pa. 570; Bolton v. Traction Co., 219 Pa. 83.
   Opinion by

Mr. Justice Stewart,

A freight elevator which defendants used in their warehouse became lodged on the third floor of the building, in consequence of its being pushed so far out of its true place that the floor of the elevator rested to some extent on the floor of the building. Defendants’ foreman called upon the plaintiff to assist in righting it. Together they released the elevator, but it failed to respond. To ascertain the cause, they went to the floor below to examine the pulleys and the drum on which the cable was wound. They found that the cable was partially unwound and hanging down in a loop. The foreman directed the plaintiff to pass back of some boxes which interfered with the full view of the drum, and see if the drum had not been revolving the wrong way. When in a position to see, the plaintiff passed his hand through the loop to catch one of the cables, in order to see if the cables were twisted. As-he did so the elevator suddenly fell from the floor above, with the result that the loop of the cable was drawn up, catching plaintiff under his extended arm and carrying him violently against the drum. The accident can only remotely be attributed to the lodging of the elevator on the third floor. If such lodging was the result of negligence, that particular negligence had spent its force without injury to anyone, for the elevator had been returned to its proper place. The immediate, proximate cause of the accident was the sudden and unexpected fall of the elevator. Was this due in any degree to the negligence of the defendants? The evidence fully warranted the inference that the elevator fell because the clamps or clutches in the uprights at either side of the elevator failed to do what was expected of them. There was no evidence of intefference from outside except as we shall refer to later on. While great latitude was allowed in admitting testimony as to the condition of the elevator for a period before the happening of the accident and the difficulties attending its operation, this evidence was not without legitimate bearing upon the immediate cause, and therefore could not properly have been excluded. If there was no outside interference it is clear that the safety clamps or clutches failed to work, either because they were defective in themselves, or because the elevator was not properly adjusted with respect to them or they to it. Plaintiff’s evidence was to the effect that the elevator was old, and that from continued use, or for other reason, was loose in-its bearings, and “wabbled,” which we take to be but another way of saying that it played to either side, that it was not close fitting against the uprights in which were placed the clamps and clutches. This was the theory advanced by the plaintiff, and unquestionably it found strong support in the evidence. If outside interference be excluded, every other fcause would seem to be eliminated. Whether negligence was chargeable to .the defendants in connection therewith was a question wholly for the jury, and it was submitted to them in a fair and impartial manner. The plaintiff testified that a few days before the accident, one of the defendants had assured him and other employees that the elevator could not fall in the way it afterwards did, because the clamps and clutches would hold it securely in place. It was upon such evidence, under proper instructions, that the jury found the cause of the accident was the defective condition of the elevator, and that the defendants were chargeable with negligence. There can be no sufficient ground for complaint with respect to this branch of the case. The theory advanced by the defendants was that the elevator fell because of plaintiff’s interference; that all he was ordered to do was to look and see if the drum was turning in the right direction, and that in taking hold of the cable, which he was not required or expected to do, he released the clamps from the elevator and was thus responsible himself for his injury. It was little better than a theory. The only witness who testified to the interference was the plaintiff himself, and all that he said on the subject was as follows: “When I got around the elevator to where the rope or this cable was, I looked up to see how the cable was, and reached out at arm’s length this way (indicating) to catch hold of the cable, and I didn’t know anything more until I was jerked up against the cable.” On cross-examination the witness having said that he touched with his hand the rope or cable, he was asked why he said “touched;” his reply was, “Because I reached out at arm’s length and caught the rope, and saw that both ropes came down pretty near together, and I reached out to the rope and I didn’t know nothing until I was up against the drum.” He was then asked, “You reached then for that rope and put your weight on it, and that is the last you know?” His reply was, “No, sir, I didn’t put my weight on it.” A witness called by defendants testified that it was possible to release the clamps by pulling upon the cable with one hand. Upon this meager evidence defendants urged their contention that plaintiff’s interference caused the accident. The instructions to the jury were even more favorable to defendants than they had a right to demand. The learned judge charged, “If he went behind there without aby order from McCollum (the foreman) and put his hand upon the rope, and that had anything to do with causing the fall of the elevator, why then the plaintiff cannot recover in this case. The law is that when the plaintiff contributed in any degree to an accident which causes his injury, he cannot recover any damages from the defendant, because it becomes a mixed question of negligence, and the law cannot determine who was most negligent about the matter. If Cunningham was guilty of any negligence in this matter in placing his hand upon this rope, and causing the elevator to release whatever secured or fastened it when the rope was slack; if he bore two pounds upon it) or put his hand upon it, and by the additional weight caused the elevator to start and fall, why, then, he was guilty of contributory negligence, and cannot recover.” This was allowing the defendants the fullest opportunity to make good their contention. As the evidence has impressed us it is not surprising that failure attended their effort. We do not feel called upon to consider separately each of the numerous assignments of error. A number of them relate to the admission of evidence with respect to prior condition of the elevator. In what we have said these we have disposed of. Of those remaining none impeached the correctness of rulings with respect to anything material in the case or which could have affected the result. Several of them suggest minor and technical errors, but nothing which would justify a reversal. They call for no discussion.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Steinruck’s Insolvency.

      Insolvency — Petition—Jurisdiction—Act of June 4, 1901, P. L. 404.
    1. An allegation of the insolvency of a debtor and his failure to make an assignment for the benefit of creditors contained in a creditor’s petition is not all that is necessary to give the court jurisdiction to appoint a receiver of an alleged insolvent’s estate upon the application of a creditor under the Act of June 4, 1901, P. L. 404. The petitioner must go further and allege and prove that the alleged insolvent has committed one or more of the acts of insolvency enumerated in sec. 7 of the act. On the other hand, the court has no jurisdiction to appoint a receiver where it is not alleged'or shown that the debtor is in fact insolvent, although he may have committed one or more of the acts enumerated in sec. 7.

      Wards and phrases — “And” and “or.”

    2. “And” will be construed “or” only when it appears from the context of the statute that the intention of the lawmaking power can only be given effect by so construing it.
    Argued May 24, 1909.
    Appeal, No. 3, May T., 1909, by John Steinruck, from order of C. P. Dauphin Co., Sept. T., 1908, No. 179, appointing a receiver in the Matter of John Steinruck, an alleged insolvent.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition for the appointment of a receiver of an alleged bankrupt. Before McCarrell, J.
    The petition was as follows:

      “ The petition of the Farmers’ Bank of Middletown and the Citizens’ National Bank of Middletown, respectfully represents :
    “ That they are respectively creditors of John Steinruck, the defendant in the above stated proceedings, who is a resident of Dauphin county, and aver and expect to be able to prove that the said John Steinruck is insolvent; that he has not made an assignment for the benefit of his creditors and is a resident and carrying on business in the said county of Dauphin.
    “ They further represent that he is a farmer or one who is principally engaged in the tilling of the soil and is and for some time past has been a tenant on the farm owned by Christian Brinser, the plaintiff in the foregoing proceeding.
    “ That recently, to wit, upon June 9,1908, a judgment upon a single bill was entered upon confession in the above stated proceeding in the sum of $1,200 and immediate execution was issued thereon, under and by virtue of which the sheriff of Dauphin county has levied upon the general farm stock, cattle, farming implements belonging to the said defendant and also upon his interest in the crops in the ground and that the said property has been advertised for sale on June 18, at ten o’clock A. M.
    “ Your petitioners further aver and believe that the said proceeding was had, the judgment permitted to be entered and the levy permitted to be made upon the personal property of said defendant for a debt then existing and with a view and in effect to give a preference to the creditor, the plaintiff in the said action, and they accordingly aver that the said John Steinruck has acknowledged thereby his insolvency; second, his endeavoring by suffering an execution to proceed unstayed against himself to dispose of all or a greater portion of his property with intent tó hinder, defeat or delay his creditors or certain ones of them, and third, has made there an incumbrance of the whole or a greater part of his stock in trade or property without being able to meet his liabilities and without the consent of his creditors done in payment of a debt then existing and with the intent to. prefer one creditor to another and not in his usual course .of business but for the benefit of himself and family.
    “ Wherefore they pray your honorable court to grant a rule to show cause why a receiver should not be appointed of the alleged insolvent and all legal proceedings thereon against him, if any, be set aside and in the meantime they pray that an order may be made upon C. L. Brinser, the plaintiff'in this action, and the sheriff of Dauphin county, staying the execution, pending the determination of this matter, the lien of the levy to remain.”
    Other facts appear by the opinion of the Supreme Court.

      June 22, 1909:

      Error assigned was order appointing receiver. •

      Leroy Wolfe, of Wolfe & Bailey, with him W. F. Darby, for appellant.
    A court has no jurisdiction under the Act of June 4, 1901, P. L. 404, to appoint a receiver for the estate of an alleged insolvent, upon finding of insolvency alone, where he has not committed any one of the acts of insolvency enumerated in sec. 7 of the act: Re Empire Metallic Bedstead Co., 98 Fed. Repr; 981; Jones v. Sleeper, 13 Fed. Cases No. 7,496, p. 1030; Wilson v. Nelson, 183 U. S. 191 (22 Sup. Ct. Repr. 74); Buckingham v. McLean, 54 U. S. 150; Wilson v. Bank, 84 U. S. 473; Clark v. Iselin, 88 U. S. 360; Bank v. Warren, 96 U. S. 539; Sleek & Blackburn v. Turner, 76 Pa. 142; Kemmerer v. Tool, 78 Pa. 147; Louchheim Bros. v. Henzey, 86 Pa. 350; Duncan v. Landis, 106 Fed. Repr. 839; Jones v. Rash and Maloy, 8 Pa. Dist. Rep. 714; Miller v. Shriver, 197 Pa. 191.

      John R. Geyer, with him Swartz, Umberger & Swartz and F. J. Schaffner, for appellees.
   Opinion by

Mr. Justice Mestrezat,

We are of the opinion that the learned court below was in error in holding that an allegation of the insolvency of a debtor and his failure to make an assignment for the benefit of creditors contained in a creditor’s petition is all that is necessary to give the court jurisdiction to appoint a receiver of an alleged insolvent’s estate upon the application of a creditor under the Act of June 4, 1901, P. L. 404; 2 Purd. (13th ed.) 1924. The proceeding to compel an involuntary insolvency is statutory, and the statute having designated the facts which are required to be averred and proven in order to give the court jurisdiction, a petitioner must comply strictly with the provisions of the statute before he can invoke the authority of the court to place the debtor’s estate in the hands of a receiver. We think there is no difficulty in determining the prerequisites of a sufficient petition under the statute or the proofs necessary to sustain the petition. The act of 1901 is not obscure or doubtful; on the contrary, the language is clear and certain, and the statute provides specifically what is requisite to give the court jurisdiction to appoint a receiver of an insolvent’s estate.

By the seventh section of the act, the creditor must aver in his petition that the debtor (a) is insolvent, (b) has not made an assignment for the benefit of his creditors, (c) is resident or is carrying on business in said county, (d) and has committed one or more of the acts enumerated in the eight following paragraphs of the section. These are the acts of in¿ solvency which must be averred in the petition in order to give the court jurisdiction. It will be observed that the debtor must not only be insolvent but he must have committed at least one of the several acts named in the separate paragraphs of the section. We can see no reason or ground for substituting “or” for “and” which connects the first and paragraphic parts of the section, thereby making either the insolvency of the debtor or his commission of one of the several acts named in the paragraphs sufficient to confer jurisdiction. “And” will be construed “or” only when it appears from the context of the statute that the intention of the lawmaking power can only be given effect by so construing it: Robinson v. Southern Pacific Co., (Cal.) 28 L. R. A. 773. There is nothing in the context of this statute that shows a legislative intent to use the word “and” in the sense of “or,” or that the legislature intended to give the court jurisdiction to appoint a receiver of a debtor’s estate under this section of the act upon the simple averment of his insolvency. Section 8 cannot be so construed, as that would supply and render useless the first part of sec. 7 which, it will not be presumed, the legislature intended. It would have been very easy if the legislature had so desired, to have simply declared that upon the averment by the creditor of the insolvency of the debtor and the failure to make an assignment for the benefit of his creditors, the court should assume jurisdiction. The presumption is that if such had been the intention of the legislature, it would have so declared in the brief language suggested. On the contrary, the seventh section of the act in addition to insolvency specifically sets out certain jurisdictional facts which are required to be averred in a petition by a creditor to have his debtor’s estate delivered to a receiver; and the legislature having the authority to determine on what conditions a creditor may have his debtor declared insolvent, it is not for the court to defeat the legislative intention by construction.

The learned court, we think, was likewise in error in holding that the legislature intended that if the debtor was not actually insolvent he could be proceeded against under the act of 1901 by a creditor if he had committed any of the acts specified in the separate paragraphs of sec. 7. Néither the language of the act nor its manifest intention, we think, will support this interpretation of the statute. There could be no reason for the creditor invoking the aid of the statute if the debtor was not insolvent. He could utilize the ordinary processes of the law, and collect his debt without resorting to the appointment of a receiver under the statute with the consequent delay in securing his claim. It was not the intention of the legislature in the enactment of the statute of 1901 to create a new remedy for the collection of an ordinary debt from a solvent debtor. The legislative purpose was to permit the creditor to protect himself by having the estate of an insolvent debtor who had committed one of the enumerated prohibited acts placed in a receiver’s hands so that it would be distributed among all the creditors without preference to any one creditor. The insolvency of the debtor therefore, is a prerequisite to the right of a creditor to have a receiver appointed under the act of 1901.

The averments of the petition filed against Steinruck, the alleged insolvent, are not as clear and distinct as they should be to confer jurisdiction; nor do the proofs adduced in support thereof show the commission of such acts on the part of Steinruck as would justify the court in appointing a receiver. The learned court below concedes that “it (the petition) does not contain in exact terms an averment of either of the eight matters specified in the eight paragraphs of sec. 7” of the act of 1901. The petition should aver specifically such facts as will give the court jurisdiction under the act. The form of the petition in this case seems to indicate that the learned counsel for the petitioner thought, with the court below, that the averment of the insolvency of the debtor was sufficient to give the court jurisdiction; and hence the insufficiency in the averment of jurisdictional facts. The evidence shows that Steinruck was, in October, 1906, a tenant on the farm owned by one Brinser. He needed some stock and farming implements and not having the money nor the credit to obtain them, he procured the money on a note on which Brinser became indorser. Steinruck gave Brinser a judgment note to secure him as indorser: In June, 1908, Brinser became apprehensive as to Steinruck’s solvency and entered judgment on the note and, as found by the court, “issued execution thereon upon the same day without any conference with the said Steinruck, the execution creditor being moved to take these proceedings because he had heard that Stein-ruck was involved in the financial affairs of H. K. Alwine.” There is no finding by the court below nor is there any proof to support the finding that Steinruck had any knowledge of Brinser’s intention to proceed on his judgment note; or that there was any fraud or collusion between Steinruck and Brinser; or that there was any intention on the part of Steinruck to prefer Brinser over other creditors. In other words, there was no finding or any evidence to justify the finding that Steinruck had committed any of the several acts named in the eight paragraphs of sec. 7 of the act of 190.1 which is necessary to give the court jurisdiction to appoint a receiver on the petition of a creditor. Steinruck was not insolvent, so far as the record shows, in 1906 when he gave the judgment note to Brinser whatever may have been his financial condition when judgment was entered on it in 1908. The evidence does not disclose that Steinruck gave the note or subsequently permitted its use for the purpose of giving a preference to Brinser; or that he had any intention in giving the note to defeat or delay any of his creditors in the collection of their debts. It was the ordinary transaction of a borrower, while solvent, giving security to his indorser without any intention on the part of either to defeat or delay the other creditors of the borrower. We are at a loss to see that the evidence convicts Steinru.ck of the commission of any act prohibited in either of the eight paragraphs of sec. 7. The learned trial judge makes no finding to that effect, but sustained the proceedings on the finding that Steinruck was insolvent and had not made an assignment for the benefit of his creditors. We are of opinion that the court below should not have entertained jurisdiction under the evidence, but should have dismissed the petition and refused to appoint a receiver. The other questions raised on the record become immaterial to the disposition of the case and need not be considered or determined.

The order or decree of the court below is reversed and the petition is dismissed at the costs of the petitioner.


author: Per Curiam,

text:
    Harrisburg, Carlisle & Chambersburg Turnpike Road Company v. Cumberland County, Appellant.

      Practice, C. P. — Verdict—Excessive verdict — Appeals—Act of May 20, 1891, P. L: 101.
    1. The power conferred by the Act of May 20, 1891, P. L. 101, in the appellate courts to review the action of the court below in refusing to grant a new trial because of an alleged excessive verdict, will not be exercised except in extreme cases where the injustice of allowing an excessive verdict to stand is so manifest as to show a clear abuse of discretion by the trial court.

      Turnpike companies — Condemnation of road — Damages—Evidence.
    2. In a proceeding against a county to assess damages for the taking of a turnpike road, the jury, may consider the physical condition of the roadbed, the net amount of tolls received, or that would be received under a better management, the market value of the stock, and the value which the road might have for use by an electric railway, if there is a reasonable prospect of such use.
    Argued May 24, 1909.
    Appeal, No. 5, May T., 1909, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1907, No. 150, on verdict for plaintiff in case of Harrisburg, Carlisle & Chambersburg Turnpike Road Company v. Cumberland County.
    June 22, 1909:
    Before Fell, Brown, Mestrezat, Jotter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view.- Before Shull, P. J., ' specially presiding.
    At the trial the court admitted under objection and exception the testimony of various witnesses showing the condition of the roadbed, the value of tollhouses and tollgates, the amount of tolls, the market value of the stock, and the possible use of the road by an electric railway. [1-5]
    Verdict for plaintiff for $22,000 on which judgment was entered for $17,000, all above that amount having been remitted.

      Errors assigned were (1-5) various rulings on evidence, and (10) in refusing a new trial.

      Filmore Maust, with him Millard F. Thompson, county solicitor, and Frank B. Wickersham, for appellant.

      Lyman D. Gilbert and Walter K. Sharpe, of Sharpe & Elder, with them William B. Johnston, for appellee.
   Per Curiam,

This appeal is from a judgment obtained in the common pleas in proceedings under the Act of June 2, 1887, P. L. 306, to assess damages for the condemnation of a part of the plaintiff's turnpike road. The main argument for the appellant is intended to show error on the part of the court in refusing to grant a new trial because of an alleged excessive verdict. The power conferred by the Act of May 20, 1891, P. L. 101, was first exercised in Smith v. Times Publishing Co., 178 Pa. 481, decided six years after the passage of the act, and in which it was said: “ It is a new power, a wide departure from the policy of centuries in regard to appellate courts, and so clearly exceptional in character that no case has been presented until now in which we have felt called upon to exercise it.” It has not since been exercised and it has been repeatedly said, in a line of cases extending from Wolf v. The Traction Co., 181 Pa. 399, to Murtland v. English, 214 Pa. 325, that it will not be exercised except in extreme cases where the injustice of allowing an excessive verdict to stand is so manifest as to show a clear abuse of discretion by the court in which the case was tried. The verdict rendered was not without support in the testimony, but the learned trial judge, upon a review of the whole case, was of opinion that it should be reduced and ordered that a new trial be granted unless a remittitur should be filed by the plaintiff. In this we find not an abuse but a wise exercise of discretion by the court.

The nature of the property taken and the effect of a partial taking on the remaining portion of the road made the assessment of damages exceptionally difficult; but we find no error in the rulings of the court on the admission of testimony or in the instructions to the jury. In ascertaining the value of the property taken, the physical condition of the roadbed, the net amount of tolls received or that would be received under a better management, and the market value of the stock were all elements to be considered: Mifflin Bridge Co. v. Juniata County, 144 Pa. 365; West Chester, etc., Plank Road Co. v. Chester County, 182 Pa. 40. It was also competent for the plaintiff to show the value which the road might have for use by an electric railway company if there was a reasonable prospect of such use. The owner of property taken under condemnation proceedings is entitled to have the value of the property considered for any use to which it may be adapted: Cox v. Phila., etc., R. R. Co., 215 Pa. 506.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    National Union Bank of Reading v. Shearer, Appellant.

      Bailment — Warehouseman—Warehouse receipts — Delivery—Negotiability.

    1. A warehouseman is one who receives and stores goods as a business for compensation or profit.'
    2. The Act of September 24, 1866, P. L. (1867) 1363, making warehouse receipts negotiable does not define a warehouseman, and there is nothing in it requiring him to hold himself out to the general public as such.
    3. Where a paper shows on its face that the signer thereof has in his possession designated goods of another on storage, and that he has obligated himself to deliver such goods to a person named in the paper, such a paper is a warehouse receipt within the meaning of the Act of September 24, 1866, P. L. (1867) 1363, and is negotiable; and its mere delivery without indorsement will carry title to the goods, if such was the intention of the parties.
    Argued. March 2, 1908.
    Appeal, No. 371, Jan. T., 1907, by defendant, from judgment of C. P. Berks Co., May T., 1905, No. 101, on verdict for plaintiff in case of National Union Bank of Reading v. James Y. Shearer.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Replevin for a lot of tobacco. Before Endlich, P. J.
    At the trial it appeared that the tobacco was stored in a building constructed by the defendant and intended to be rented by him for use as a cigar factory. While waiting for a tenant he took on storage therein a quantity of tobacco owned by J. L. and M. F. Greene, and issued to them a large number of certificates of which the following is a sample:
    I promise to deliver to J. L. & M. F. Greene,
    One case of Seed Loaf Tobacco included in receipt of this date. Marks, Nos. and weight as per margin.

      The Greenes delivered these certificates without indorsement to the plaintiff as collateral for a loan. The court submitted to the jury the question whether the defendant was a warehouseman.
    Verdict and judgment for plaintiff for $2,621.66.
    On rule for a new trial and for judgment n. o. v. Endlich, P. J., filed the following opinion:
    This cause has been twice submitted to a jury upon substantially the same questions and under substantially the same evidence. In each instance the verdict has been adverse to the defendant. Viewed as it must be, see Mintzer v. Greenough, 192 Pa. 137, 144; Smith v. Shields, 194 Pa. 635, in the light of the charge the finding of the jury at the last trial establishes that defendant was a warehouseman; that the papers pledged to plaintiff were issued by him as such, i. e., warehouse receipts intended to represent cases of tobacco stored with him as a warehouseman; that they were delivered to plaintiff with intent thereby to transfer to it the property represented by them; that they were so accepted by the plaintiff as security for money advanced by it to the party to whom they were issued and in part still owing; and that the value of the tobacco described in them and withheld by defendant from the plaintiff was so and so much, being less than the amount remaining unpaid upon the loan.
    1. The first contention on defendant’s part is that there can be no recovery by plaintiff because its declaration avers a pledge to it of 125 cases of tobacco to secure an advance of $20.00 per case, or a total of $2,500, and a failure to pay that debt — whereas the proofs show a loan of $8,400 upon the security of 125 cases at the rate of $20.00 per case, together with other collateral, and a reduction of the initial debt by partial payments, etc., to $2,500. It may be that a statement of plaintiff’s claim in the latter form would have been more strictly in accord with the letter and intent of the Act ’of April 19, 1901, P. L. 88, and the principles applicable to the procedure under it indicated in the opinion filed in this case on November 24,1906. But the variance seems to be without any material significance whatever. For the purposes of this action, there is no substantial difference between saying that 125 cases of tobacco were accepted as a pledge for an advance of $20.00 per case “or” (meaning, of course, “that is to say”) an advance of $2,500 which remains unpaid, and saying that they were accepted at the rate of $20.00 per case as security tp the extent of $2,500 for an advance of $8,400 upon that and other collateral, and that a balance thereof of $2,500 provided for by this pledge remains unpaid. Under either form of statement the essential averment is the fact of a pledge of the entire quantity of tobacco as security for $2,500 advanced, which (aside from certain other questions raised) is conceded to be in accord with the evidence. Nor for this reason is there any pertinence in the suggestion that upon an allegation of a pledge of so and so many cases for an advance of $20.00 per case the plaintiff’s recovery must be restricted to a sum not exceeding that amount upon each individual case worth that much or more, and to the actual value’ of each worth less — a rule whose application here would reduce the verdict by something over $200.
    2. The definition of “warehouseman” given to the jury was that which is approved in Bucher v. Com., 103 Pa. 528, and Bank v. Jagode, 186 Pa. 556, and agrees with that adopted by the warehouse receipts law proposed by the commissioners on uniform state laws, in sec. 58. The defendant now seeks to import into it an element not found in it. He insists that, in order to be a warehouseman a man must not only be engaged, but also hold himself out to the general public as engaged in the business of storing goods for profit. Such for certain purposes seems to be the rule in Wisconsin: Shepardson v. Cary, 29 Wis. 34; Gailfus v. Corrigan, 95 Wis. 651; Security Warehousing Co. v. Hand, 143 Fed. Repr. 32. But that is because the statute of that state associates “warehouseman” with common carriers and others whose business involves a public profession and is therefore to be deemed construable as ejusdem generis with such. In other states the governing statutes provide for and refer to a class of warehousemen constituted public warehousemen, and the decisions proceed thereunder. Our statute does not do so and has no similar sound. It speaks of “warehouseman, wharfinger or other person.” Under the rule, noscitur a sociis, each of these terms takes its complexion from the others. But a wharfinger is simply “one who keeps a wharf for receiving goods for hire:” Rodgers v. Stophel, 32 Pa. 111. That that was his business may well be proved as against him by showing that he so held it out to the public generally and actually received and charged for whatever goods were deposited upon his wharf: Rodgers v. Stophel, supra. So, no doubt, a holding out of his warehouse to the public at large by advertisement, conspicuous signs or notices, etc., as a place for the storage of goods for hire by anyone seeldng such accommodation would be evidence to fasten upon the owner the character of a warehouseman: It would not be enough to make his receipts warehouse receipts, as was pointed out in Bank v. Jagode, 186 Pa. 556, 565, and repeated in Moors v. Jagode, 195 Pa. 163, 166, unless supplemented by proof that he was in fact a bona fide warehouseman. But in connection with that fact it would be evidence, though not indispensable. No relevant argument can be drawn from the rule as to the character of the business of a common carrier. The very essence of that business, expressed by the word “ common,” is that it involves an undertaking, to carry for all persons indifferently: Verner v. Sweitzer, 32 Pa. 208. The word “common,” or its equivalent, is, however, no part of the essential definition of warehouseman or wharfinger. In Hallgarten v. Oldham, 135 Mass. 1, much stress is laid upon the fact that a private warehouseman has “an unfettered right to choose the persons for whom he will hold,” and is thus distinguishable from a common carrier who “has no delectus personarum, but is bound to carry for anyone.” But suppose that the jury in order to find defendant to have been a warehouseman must have found that he held himself out to the public as such, a “loose expression” perhaps (Denithorne v. Hook, 112 Pa. 240, 243), but certainly the utmost that can be insisted upon. It is the uncontradicted evidence that he had his property insured as a “warehouse,” that he so described it in transactions and correspondence with others than the Greenes whose tobacco he received there, and that from the beginning of his dealings with them he knew of and permitted their use of the receipts issued by him to them as collateral for advances of money from various banks in Reading. Whilst it is true that the testimony does not show that he generally solicited the storage of goods in his place, yet all this clearly amounts to a sufficient declaration of its character to the public as a warehouse, a sufficient holding out of it to the public as such. And when upon evidence of that sort the jury was asked to decide whether he was a warehouseman and they said he was, the answer must be deemed to involve, because the evidence necessarily involved, if anything, his public profession of the business. If, however, the jury could not have found him to be a warehouseman except upon testimony which if it made him such also required a finding that he so held himself out to the public, then the omission in the charge to call their attention to this feature cannot possibly have done the defendant any harm, and constitutes no adequate ground for setting aside the verdict.
    3. The jury was instructed that “if ... . the defendant was a warehouseman and his building a warehouse, then these papers, if issued to represent cases of tobacco stored with him as a warehouseman, were warehouse receipts.”
    In order to be on its face complete and self-explanatory, a warehouse receipt might well be required (as is indeed proposed by the draft of the uniform law above referred to, sec. 2) to set forth the location of the warehouse, the date of issue, the consecutive number, a promise to deliver to bearer or to a specified person or to the order of such, the rate of storage charges, a description of the goods or the packages containing them, the signature of the warehouseman, and a statement of any claim of co-ownership or lien on his part. But under the law as presently obtaining, there is no such requirement. What is said in Bank v. Jagode, 186 Pa. 556, 563, about a receipt purporting to be issued by a warehouseman and to be for goods held in storage and deliverable on the order of the depositor and the return of the paper, is said by way of description of the particular instrument there in question, and not by way of laying down any definite rule as to what a warehouse receipt must contain. On the contrary, it is stated that no form is prescribed. Indeed, an examination of many authorities, which it would be an affectation to enumerate, seems to demonstrate the impossibility of indicating as essential any one or any combination of the above-mentioned features, so long as by express language or by fair implication from the .language understood in the light of the circumstances under which and of the intent with which the instrument was issued, it involves an acknowledgment by the signer of his possession of designated goods of another on storage and an obligation to deliver them to a specified person, or to his order, or to bearer, on return of the instrument. Upon proof that the signature is that of the party issuing the instrument, that he was a warehouseman, that the goods designated were actually stored with him, and that the instrument was given as representing the same, the instrument is to be deemed a warehouse receipt with all the qualities and incidents attaching thereto. If these facts be admitted or established by undisputed evidence, that conclusion may be one for the court. If the evidence concerning them be conflicting or susceptible of contrary inferences, it will be one for the jury. As to the papers here in question, there is no room for disputing their signature by defendant. His name was stamped upon each with a rubber stamp, and authenticated by himself writing under it the initial letter of his name, “S.” That this was a sufficient signature is evident from the rules discussed in Knox’s Est., 131 Pa. 220, and from the modern cases recognizing signature by mere stamp: Bennett v. Brumfitt, L. R. 3 C. P. 28; Robb v. Pennsylvania Co., 3 Pa. Superior Ct. 254; s. c., aff’d 186 Pa. 456. Neither is there any warrant for saying that the papers refer to another receipt. There was no other. The meaning of the words “included in receipt of this date” is either “included in this receipt,” or “included in the deposit of this date.” The nature, quantity and marks of the goods represented by each paper are set forth in it, and it contains a distinct promise to deliver them to the owner. On the part of a warehouseman such a promise obviously implies a statement that he holds the goods in storage; and the condition of delivery, the surrender of the receipt, involved in the promise itself, is further supplied by the statute, forbidding delivery except upon return of the receipt. If then the defendant was in fact a warehouseman and issued tñese papers in his capacity of warehouseman to represent cases of tobacco stored with him as such, and not as he contends as mere memoranda between himself and the Greenes, they were warehouse receipts. Clearly it was not error of which defendant can complain to leave it to the jury to say under all the evidence whether or not they were such.
    4. If they were in fact warehouse receipts the act of 1866, without prescribing and hence without reference to their form, makes them “negotiable.” The omission of words indicative of a purpose to that effect is by itself of no manner of consequence in view of the requirement of the statute that nonnegotiable receipts shall be so marked. Every contract is conclusively presumed to be made with reference to the existing law and as embodying its relevant provisions: Snyder v. Leibengood, 4 Pa. 305, 308; West. Nat. Bank’s App., 102 Pa. 171, 184; Burnett v. Railroad Co., 176 Pa. 45, 48; Silk Mfg. Co. v. Reilly, 187 Pa. 526, 532.
    What then does the act mean by saying that warehouse receipts shall be negotiable? It is to be noted that there is, first, the substantive declaration that warehouse receipts shall be negotiable, and, second, the statement that they may be transferred by indorsement and delivery. Remembering that these provisions must be understood as having each a meaning of its own and not as being tautological, it will not do to contract them into one and read the two as meaning together nothing more than if the language were, “warehouse receipts shall be negotiable by indorsement and delivery.” Since the direction making such instruments negotiable would, without anything more, have implied that they should be transferable by indorsement and delivery, the addition that they may be so transferred indicates, according to the strictest application of the principle expressio unius est exclusio alterius, Maxwell, Int. Stat., 398, that the legislature in the first declaration had in mind something different from the mere mode of transfer and intended to impart to these instruments a quality not synonymous with or exhausted by such transferability. Now, the distinctive quality expressed in our jurisprudence by the term “negotiable” is that of passing without incumbrance or condition: Overton v. Tyler, 3 Pa. 346; Woods v. North, 84 Pa. 407. It needs no citation of authorities to show that that settled meaning is, in so far as it is applicable to the subject-matter of an enactment employing the term, the one with which it must be supposed to have been used therein. The limitations of this meaning of the word in the act of 1866 pointed out in Shaw v. Railroad Co., 101 U. S. 557 .(which was the case of a bill of lading, coordinated with warehouse receipts by the act of 1866, and thereby put upon the same footing: Sloan v. Johnson, 20 Pa. Superior Ct. 643, 648, without restriction to goods in transit; Munroe v. Warehouse Co., 75 Fed. Repr. 545), are such only as necessarily result from the peculiar nature of the instrument involved and the peculiar purposes it is designed to serve. As there decided, the rule that a purchaser without notice though under circumstances of suspicion, Phelan v. Moss, 67 Pa. 59, of a lost or stolen bill or note indorsed in blank or payable to bearer is not bound to look beyond the instrument, has no application to the case of a lost or stolen bill of lading, nor, it may therefore be added, to a lost or stolen warehouse receipt. Such an instrument performs functions different from those of a note or bill. It does not, like these, take the place of banknotes or coin. It is the symbol of the ownership of goods and a representative of those goods. If the goods themselves be stolen or lost, the owner's property therein is not divested, and neither can it be by the loss or theft of the receipt without default on his part. In principle and reasoning there is no difference between this case and Transportation Co. v. Steele, 70 Pa. 188, or the rule laid down in Decan v. Shipper, 35 Pa. 239, before the act of 1866 was passed. And similarly, in Bank v. Hurt, 99 Ala. 130 (12 So. Repr. 568), the statutory negotiability of warehouse receipts was held not to enable one taking them by way of pledge from a factor who without authority of the owner had stored his goods and obtained the receipts, to assert title to the goods superior to that of the owner. But no questions of that sort arise here. There is no question in this case at all between the owner of the goods and the holder of the receipts. The question is whether, in the face of the statute declaring them negotiable, the warehouseman who issued Them can be heard to set up a secret arrangement between himself and the owner defeating the apparent right of the holder whose protection is the very purpose of the enactment: Pig Iron Storage Warrant Co. v. Iron & Coal Co., 205 Pa. 403, 411. No authority has been pointed out for an affirmative answer to this question. Nor is it conceivable how such an answer can be made except with the effect of entirely wiping out of the statute the words “shall be negotiable.” It would seem to be going quite as far as to permit the warehouseman to deny, as against the holder of the receipt, that the goods mentioned therein were in his keeping — ■ a defense which has been adjudged inadmissible: Stewart v. Insurance Co., 77 Tenn. 104; Cathcart v. Snow, 64 Iowa, 584 (21 N. W. Repr. 94, 95). The instructions to the jury on this subject do not appear to have been wrong.
    5. Finally the jury was told that a delivery of the receipts to the plaintiff with the intent to entitle it to the tobacco represented by them, though without formal indorsement at the time, was enough to bring it, as the holder thereof, substantially within the protection of the principles just discussed. Probably the decision in Sloan v. Johnson, 20 Pa. Superior Ct. 643, that warehouse receipts will pass by such delivery alone is conclusive of the correctness of that instruction. But it is contended that the question there arose between the owner of the goods and the party to whom he had delivered warehouse receipts representing them; and that what constitutes a valid and complete transfer of them as between those parties is not necessarily a valid and complete transfer as between the warehouseman and the transferee. The reasons for such distinction are' by no means clear, though it is plain enough that if, in order to be fully available against the warehouseman, the transfer must be by indorsement as well as delivery, then where the transfer is in the first instance by delivery alone and the indorsement is added only after notice to the transferee of equities, claimed by the warehouseman, the transfer must be treated as taking effect as of the time when the indorsement is actually made, and therefore as subject to those equities in so far as they may be established by the proofs and not displaced by waiver or estoppel.
    It seems to be the general doctrine of American decisions that apart from any statutory provisions a warehouse receipt, like a bill of lading, is the symbol or representative of the goods it is issued for, and that, whether drawn to the owner’s order, or to bearer, or simply to the owner, its delivery by the latter is effective as a symbolical delivery of the goods themselves, with or without indorsement. It is sufficient to refer to the following cases as sustaining this statement by their own reasoning and by the citation of authorities collated in them: Rice v. Cutler, 17 Wis. *351; Whitney v. Tibbitts, 17 Wis. *359; Atherton Co. v. Ives, 20 Fed. Repr. 894; Banking Co. v. Peacock, 103 Ga. 171 (29 S. E. Repr. 752); Stewart v. Insurance Co., 77 Tenn. 104. The contrary doctrine apparently held in Hallgarten v. Oldham, 135 Mass. 1, at variance with earlier rulings of the same court, is founded on the ancient English view embodied in 2 Dan. Neg. Instr., sec. 1713, and upon the express assumption, contrary to the rule, obtaining here and elsewhere, that a return of the receipt to the warehouseman is not a condition of the right to take away the property stored (see p. 12). If the receipt stands as the symbol of the goods, the owner of the latter to whom it is issued has the same power to pass title to the goods by delivery of the receipt as he has to pass title to the goods in his manual possession by a delivery of them: Transportation Co. v. Steele, 70 Pa. 188, 190, 191. Delivery of the one is in law delivery of the other. Manifestly, therefore, it is immaterial whether the receipt be written to his order, or to bearer, or not — except where, as is emphasized in Hallgarten v. Oldham, 135 Mass. 1, it is by statute required to be “negotiable in form.” Neither, if the delivery of the receipt is a delivery of the goods, is its indorsement or nonindorsement of any consequence with respect to the completeness of the transaction. The effect of indorsement is not to impart original negotiability to an instrument not originally negotiable. It is not an independent contract, says Chief Justice Gibson in Patterson v. Poindexter, 6 W. & S. 227, 234, but a parasite which takes the hue of the thing with which it is connected and operates one way when attached to a negotiable instrument and another way when attached to other choses in action. As already seen, it does not when put upon a warehouse receipt import a guaranty of title. But it is asserted by defendant’s counsel with much confidence that our statute makes it indispensable to the legal transfer of title. The statute does not say so. It does not say that warehouse receipts are negotiable by indorsement. It says, in guarded and significant language, they “shall” be negotiable, and “may” be transferred by indorsement and when so transferred shall be deemed and taken, etc. In other words, it peremptorily gives to all warehouse receipts a certain quality which does not in any degree derogate from the character they had before, and then permissively provides for a specified method of transfer, not in terms exclusive of any other, and attaches to such additional method, if pursued, consequences differing, if at all, only in part from those incident to transfer by mere delivery. It is worthy of note that in Transportation Co. v. Steele, 70 Pa. 188, the decision, involving certain bills of lading, which are included in the act of 1866 with warehouse receipts, proceeded expressly without reference to that statute. Nor is it insignificant that the supplement to the same of June 13, 1874, P. L. 285, relating to attachments of goods in hands of warehouse-men who have issued receipts therefor, speaks of these as having been “negotiated and transferred by indorsement or delivery, as provided in the act to which this is a supplement, and makes “the holder .... to whom the same shall have been transferred or delivered as aforesaid” the garnishee. It is doubtless true that a mistaken opinion of the law on the part of the legislature does not avail to change the law: Bank of Pennsylvania v. Com., 19 Pa. 144, 156; Seiders v. Giles, 141 Pa. 93, 100. On the other hand, in the interpretation of a statute, it is very well settled that the understanding of it evidenced by the legislature in subsequent enactments is to be treated as of great weight: Folk v. State Capital Savings, etc., Assn., 214 Pa. 529, and cases cited at p. 538. But the cases already cited of Rice v. Cutler, and Whitney v. Tibbitts, 17 Wis. *351, *359, directly raised the question of the sufficiency of a transfer of warehouse receipts with and without words of negotiability by mere delivery and without indorsement in view of a statute apparently exactly like ours in its provision for transfer. It was pointed out that warehouse receipts were transferable by delivery independently of the statute — that the language of the latter as to the mode of transfer was permissive only — and that, for these reasons and keeping in mind the objects of the enactment (substantially the same as those ascribed to ours), if the intent of the parties was to transfer the property by the delivery of the receipts, the same was, unaffected by the statute, effective for that purpose without indorsement. It is true that the contest there was between the transferee on the one side, and the transferor or his attaching creditors on the other. But the principle of the decisions makes the conclusion equally applicable in a contest between the transferee and the warehouseman. That principle is that for all purposes the transfer of goods in storage is complete upon delivery of the receipts with intent to transfer title to the goods represented thereby; that an indorsement of the receipt adds nothing to the effectiveness of such delivery; and that the statute, whilst permitting, does not require transfer of warehouse receipts by indorsement.
    What has been said seems to cover all the positions taken by defendant and examined not without a disposition to make every permissible intendment in his favor. The result is the conclusion that there is no ground apparent for either entering judgment for him upon the whole record or granting a new trial. And in this connection it may not be out of place to suggest that, even conceding the liability of the transferee of warehouse receipts by delivery only to be affected with a secret agreement between the transferor and the warehouseman such as here alleged, the pleadings and evidence in this case are not calculated to sustain a verdict for defendant on that ground. Whatever may be the precise effect of the statutory declaration that warehouse receipts shall be negotiable, and indeed apart from that declaration, it is very certain that they are something more than and different from ordinary receipts which -are noncontractual and therefore under familiar principles open to parol explanation and contradiction. Warehouse receipts are, as pointed out in Stewart, Gwynne & Co. v. Insurance Co., 77 Tenn. 104, 109, essentially contracts and as such within the rules applicable to. written instruments — a doctrine resulting not precisely from their negotiability, but from the nature and purposes of such receipts regardless of their form, and yet all the more manifestly in point where, as here, the receipts contain a formal promise to deliver the packages described in them, unqualified except by the condition implied by law and usage that the receipt be returned and the storage charges paid. It is to be noted that the affidavit of defense, which with the declaration makes the issues to be tried in replevin under the act of 1901, neither alleges fraud, accident or mistake as accounting for the issuance of the receipts in this form, nor avers that their execution was induced by the oral agreement set up by defendant to overcome it. The evidence on the other hand relied upon to establish that agreement, denied by J. L. Greene with whom it is said to have been made, consists solely of the testimony of the defendant. It is corroborated by no circumstances, unless it be the fact that the words “ or bearer ” contained in a preyious batch of receipts were omitted in these. In view of the needlessness of those words (and in a note to sec. 37 of the proposed uniform warehouse receipt law it is said to be “not usual for warehouse receipts to be made to bearer”) and of a great variety of circumstances, which it is unnecessary here to discuss, but which strongly tend the other way, Fisher v. Scharadin, 186 Pa. 565, 568, this single item cannot be regarded as equivalent in its probative effect to the testimony of a second witness. The testimony of the remaining witnesses referring to the alleged agreement, however, is not in any sense proof of its existence. It goes to show simply that its existence was subsequently and after the plaintiff's rights had attached acknowledged by J. L. Greene, and thus went to discredit his denial of it on the stand. Of course no declarations of his after he had transferred the property to the plaintiff could avail to affect its title; and equally of course proof of his declarations as to the existence of a fact, being nothing more than hearsay evidence of the fact, cannot stand as proof of it: Com. v. Contner, 18 Pa. 439, 444. Neither has there been pointed out any statement by defendant anywhere that the alleged agreement operated as the inducement for his execution and issuance of the receipts containing the promise mentioned. The element of fraud, accident or mistake has so long been deemed and so often held an essential part of both pleadings and proofs in order to entitle a party to relief against the letter of his contract that a reference to the cases may well be omitted. Equally settled is the requirement for this purpose of both allegation and proof that a parol agreement relied on as varying a written contract operated as the inducement for its execution, without which it would not have been entered into: Myers v. Kipp, 20 Pa. Superior Ct. 311, 316. And under the very recent decision in Sulkin v. Gilbert, 218 Pa. 255, it is, where the defendant setting up such defense is himself a witness, indispensable to its establishment that he should explicitly and directly so swear.
    The rules to show cause are discharged.

      Error assigned was in refusing binding instructions for defendant and in refusing judgment for defendant non obstante veredicto.

      John G. Johnson, with him Isaac Hiester and B. Y. Shearer, for appellant.
    One who does not hold himself out as a warehouseman but who incidentally receives on storage two lots of goods from one person and gives memoranda therefor which without his knowledge and against his intention are pledged to a third party, does not become liable to such third party thereon as on warehouse receipts: Bucher v. Com., 103 Pa. 528; Rodgers v. Stophel, 32 Pa. 111; Beckman v. Shouse, 5 Rawle, 179; Gordon v. Hutchinson, 1 W. & S. 285; Fuller v. Bradley, 25 Pa. 120; Verner v. Sweitzer, 32 Pa. 208; Bank v. Jagode, 186 Pa. 556; Shepardson v. Cary, 29 Wis. 34; Geilfuss v. Corrigan, 95 Wis. 651 (70 N. W. Repr. 306); Security Warehousing Co. v. Hand, 143 Fed. Repr. 32; Sandford v. Railroad Co., 24 Pa. 378; Munn v. Illinois, 94 U. S. 113, 115; Budd v. New York, 143 U. S. 517 (12 Sup. Ct. Repr. 468); Brass v. North Dakota, 153 U. S. 391 (14 Sup. Ct. Repr. 857).
    It has been held in other states under statutes declaring that receipts issued by a warehouseman shall be negotiable and transferable by indorsement, that warehouse receipts transferred by delivery only are subject to any defense or set-off which the warehouseman may have against the depositor up to the time the warehouseman is notified of the transfer: Toner v. Citizens' State Bank, 56 N. E. Repr. 731; Jemison v. Birmingham, etc., R. R. Co., 28 So. Repr. 51; People's Bank v. Etting, 14 Phila. 230.
    Where a chose in action is assigned with the effect of entitling the assignee to sue in his own name, the defendant may nevertheless set off all debts and liabilities of the assignor to him contracted before notice of the assignment, for it is the duty of the assignee to give him actual notice: Bury v. Hartman, 4 S. & R. 175; Horstman v. Gerker, 49 Pa. 282; Shaw v. Railroad Co., 101 U. S. 557; Phelan v. Moss, 67 Pa. 59; Foster v. Carson, 159 Pa. 477.

      C. H. Buhl and C. H. Schaeffer, for appellee.
    A warehouseman is “one who receives and stores goods as a business for compensation, or profits:” Bucher v. Com., 103 Pa. 528.
    The defendant contends that it is essential that it appear that the defendant held himself forth to the public generally as ready to store goods for hire, without which the jury could not find him to have been a warehouseman. It is not essential that such facts appear: Moors v. Jagode, 195 Pa. 163.
    That a bill of lading passes title by delivery to the property therein described is well sustained by authority: Schmertz v. Dwyer, 53 Pa. 335; Holmes v. German Security Bank, 87 Pa. 525; Harrison v. Mora, 150 Pa. 481; Richardson v. Nathan, 167 Pa. 513.
    October 11, 1909:
    The transfer of title to the property represented by the bill of lading by its delivery was declared not because of the common law, but because of the statute: Sloan v. Johnson, 20 Pa. Superior Ct. 643.
    The further contention of the defendant that bills of lading were, and warehouse receipts were not, transferable by delivery only, independently of the statutory provision, is not sustained by authority: Gibson v. Stevens, 49 U. S. 384; Gibson v. State Bank, 11 Ohio St. 311; Shepardson v. Cary, 29 Wis. 34; Whitney v. Tibbitts, 17 Wis. *359; Rice v. Cutler, 17 Wis. *351.
    The transfer of a warehouse receipt is not a symbolical delivery, but a real delivery, to the same extent as if the goods had been transported to another warehouse named by the pledgee: Union Trust Co. v. Wilson, 198 U. S. 530 (25 Sup. Ct. Repr. 766).
   Opinion by

Mr. Justice Brown,

The Act of September 24, 1866, P. L. (1867) 1363, making warehouse receipts negotiable, does not define a warehouseman, and there is nothing in it requiring him to hold himself out to the general public as such. We have defined him to be “one who receives and stores goods as a business for a compensation or profit:” Bucher v. Com., 103 Pa. 528; Tradesmen’s Nat. Bank v. Jagode, 186 Pa. 556. There was sufficient evidence for the finding by the jury that the appellant was a warehouseman within our definition of the term as used in the act of 1866, and the learned and careful judge below properly so held in his opinion overruling the motion for a new trial and refusing judgment for the defendant n. o. v. On that opinion which clearly and correctly disposes of the questions raised on this appeal I am directed by the court to affirm the judgment.

Judgment affirmed.


text:
    Henry Taylor Lumber Company v. Carnegie Institute, Appellant.

      Mechanic’s lien — Public property — IAen against building — Act of April 23, 1903, P. L. 266.
    1. Land set apart by a city of the second class under the Act of April 23, 1903, P. L. 266, for the erection thereon of a building for educational purposes by the trustees of a private charitable trust, cannot be bound by a mechanic’s lien for labor or material furnished to the building erected thereon. '

      Constitutional law — Special legislation — Change of methods for collection of debts or enforcing judgment — Mechanic’s lien — Lien against building and loan — Act of June 4,1901, sec. 38, P. L. 431.
    2. Section 38 of the Act of June 4, 1901, P. L. 431, which permits mechanics’ liens to be filed against a building without reference to the land, and provides for the sale and removal of the building for the benefit of lien holders is unconstitutional inasmuch as it violates sec. 7 of art. Ill of the constitution, which prohibits any special legislation “providing or changing methods for the collection of debts or the enforcing of judgments.”
    Argued Nov. 3, 1908.
    Appeal, No. 204, Oct. T., 1908, by defendants, from order of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 627, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Taylor Lumber Company v. Board of Trustees of Carnegie Institute.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Scire facias sur mechanic’s lien. Before Frazer, P. J.
    The facts 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.

      Thomas Patterson, of Patterson, Sterrett & Acheson, for Edwin Gilbert & Company, now in the hands of Joel W. Hutton, receiver, appellants
    It would seem to need no argument that the public lands of the city held for park purposes, wharf purposes, or any other general public purpose such as these, cannot be appropriated to any private purpose: Illinois Central R. R. Co. v. Illinois, 146 U. S. 387 (13 Sup. Ct. Repr. 110); Reighard v. Flinn, 189 Pa. 355.
    The Carnegie Technical Schools are a public purpose: Patterson & Co. v. Penna. Reform School, 92 Pa. 229.

      Reed, Smith, Shaw & Beal, for board of trustees of Carnegie Institute, appellants.

      A. M. Thompson, Lee C. Beatty and W. B. Rodgers, for city of Pittsburg, appellant,
    cited: Sharpless v. Philadelphia, 21 Pa. 147; Murray v. Allegheny, 136 Fed. Repr. 57.

      Samuel J. Graham and George H. Rankin, for appellee.
    The board of trustees of Carnegie Institute acting as the board of trustees of the Carnegie Technical Schools is not such a “purely public agency” under the commonwealth as is meant by the provisions of the act of 1901: McLeod v. Normal School Assn., 152 Pa. 575; State Board of Education v. Greenebaum & Sons, 39 Ill. 609.
    The said building is subject to a mechanic's lien under the provision of the Act of assembly of June 4, 1901, P. L. 431, as amended by the Act of April 23, 1903, P. L. 266, and the Act of April 17, 1905, P. L. 172, whether or not the land whereon it was built is owned by the board of trustees, as aforesaid.
    The board of trustees of the Carnegie Institute and the trustees of the Carnegie Technical Schools have such ownership in and title to the land described in plaintiff's hen as to make the building erected by them on said land subject to a mechanic's hen under the act of 1901 and the amendments of 1903 and 1905: Allegheny v. Ohio & Penna. R. R. Co., 26 Pa. 355; Slegel v. Lauer, 148 Pa. 236; Farnsworth v. Perry, 83 Me. 447 (22 Atl. Repr. 373); Moulton v. Trafton, 64 Me. 218.
    The city of Pittsburg had power and authority under the Act of assembly of April 23, 1903, P. L. 266, to grant and convey to the board, of trustees of the Carnegie Institute a base or qualified fee in the land upon which the Margaret Morrison Carnegie Technical School for Women was built: Com. v. Moir, 199 Pa. 534.
    October 11, 1909:
   Opinion by

Mr. Justice Brown,

By the Act of April 23,' 1903, P. L. 266; a city of the second class thereafter acquiring, by purchase, donation, condemnation or otherwise, any real estate for public park purposes is authorized and empowered to set aside such part or parts of said real estate, as it may elect, for a building site or sites for technological schools and institutions for the promotion of arts and sciences and to permit the use of such site or sites for the purpose of establishing and maintaining thereon such schools and institutions. The city of Pittsburg, by virtue of the authority given it by this act, enacted an ordinance on September 14, 1903, authorizing the board of trustees of Carnegie Institute, and their successors, to enter upon, use, occupy and hold certain real estate for the purpose of establishing and maintaining thereon a technological school or schools, and the said board and their successors were authorized to erect thereon such building or buildings as from time to time they should find desirable or necessary for the purposes of said school or schools. The land having been accepted by the board of trustees for the purposes stated, they entered into a contract with Edwin Gilbert & Company, a corporation, for the erection of the Margaret Morrison Carnegie Technical School Building. The Henry Taylor Lumber Company, the appellee, furnished lumber and mill work to the contracting company, which failed, and a receiver was appointed to take charge of its affairs. At the time of the failure it was largely indebted to the appellee for lumber and work furnished in the erection of the building, and to secure the payment of the same the lien which is the subject of this controversy was filed, the board of trustees of the Carnegie Institute and the city of Pittsburg being named as owners, or reputed owners, of the building, and Edwin Gilbert & Company, in the hands of Joel W. Hutton, receiver, contractor. The hen is filed not only against the building, but upon the ground covered by it and so much more immediately adjacent thereto as may be necessary for its ordinary and useful purposes. The record title to the land is in the city of Pitts-burg. The affidavits of defense filed by the board of trustees of the Carnegie Institute and the receiver of the contractor, deemed insufficient by the court below, averred that the said board was not the owner or reputed owner of the property against which the lien was filed, and that, as the title to the real estate and the building against which the lien was filed was in the city of Pittsburg, and the premises were held and used for a purely public purpose, they were exempt from a mechanic’s lien under the second section of the Act of June 4, 1901, P. L. 431. The court below, in entering judgment for want of sufficient affidavits of defense, passed upon the single question of the alleged purely public purpose of the building, and, in deciding that it was not of such a character and, therefore, subject to a mechanic’s lien, followed McLeod v. Central Normal School Association, 152 Pa. 575. If this were all that was in the case, the judgment would not be disturbed, for the building is not to be regarded as one for purely public purposes as very clearly appears from the following extract from the opinion of the court: “If the purpose of the building is purely public, this rule must be discharged. If not, then it must be made absolute for the amount of the claim less the amount of the set-off claimed. It seems to us the legislative intention was to limit the clause quoted above to buildings erected by public funds for the use of the public. While the Margaret Morrison Carnegie Technical School is, to some extent, a public institution, in that students are educated upon payment of a nominal tuition fee, yet, in our opinion, its purposes cannot be said to be ‘purely public.’ The funds for its erection and maintenance were contributed by a private citizen, neither the commonwealth, the city, nor any public agency thereunder furnishing any of the funds necessary therefor, and instead of the school being managed or directed by the public through public officials, it is under the charge of a board of trustees, specially created, with exclusive authority to prescribe the qualification for admission of pupils, the course and terms of study, and make and enforce such rules and regulations for the management of the school as they may deem proper. Under these circumstances, it seems to us, the public enjoys the benefits of the school, not by right, as it should if the purpose was public, but by permission only. The meaning of the words ‘for public use’ has frequently been passed upon by our courts, and it has invariably been held that these words do not include every use from which a benefit may incidentally be derived by the public. In Market Company v. Railroad Company, 142 Pa. 580, the court said: ‘The test whether a use is public or not, is whether a public trust is imposed upon the property, whether the public has a legal right, which cannot be gainsaid, or denied, or withdrawn, at the pleasure of the owner. A particular enterprise, palpably for private advantage, will not become a public use because of the theoretical right of the public to use it. The question is, whether the public have a right to the use. The general public must have a general and fixed use of the property, a use independent of the will of the private person or corporation in which the title is vested, a public use which cannot be defeated by the private owner, but which is guarded and controlled by the law.’ ”

The city of Pittsburg conveyed no title to the board of trustees of Carnegie Institute to the land on which the school building was erected. The act of April 23, 1903, did not authorize it to do so, and what it undertook to do by the ordinance was simply to exercise the power conferred upon it by that act. That was all it could do. Its power was limited to setting aside a part of the real estate which it held for public purposes, that the said building might be erected thereon for certain educational purposes, and no matter what the terms were upon which its permission to the board of trustees to use this land was accepted either by the said board or Mr. Carnegie, what it did is to be regarded merely as a permission, granted under statutory authority, to use the land for a specific purpose. What it so set aside could neither be incumbered nor conveyed by the party licensed to use it, and no lien of a mechanic could bind it. To what the owner of a base or qualified fee may be compelled to subject his estate is but an academic question in this proceeding, for the title to the land remained in the city. Evidently entertaining this view, the learned president judge of the court below sustained the lien as good against-the building. He carefully avoids any reference to it as attaching to the land. On the argument at the October Term of last year, of the appeal from the judgment for want of sufficient affidavits o'f defense, counsel for appellee urged that it be sustained, even if the land upon which the building was erected was not owned by the board of trustees, because the lien was enforcible against the building under sec. 38 of the act of June 4, 1901. Upon consultation we entertained grave doubts as to the constitutionality of that section, in view of the seventh section of the third article of the constitution, which prohibits any special legislation “ providing or changing methods for the collection of debts, or the enforcing of judgments,” and, on our own motion, directed a reargument, that we might consider and pass upon that question, for if the lien is not enforcible, it is inoperative. It is no lien: Foster v. Fowler, 60 Pa. 27.

The thirty-eighth section of the act of 1901 is as follows: “Any claimant for an entirely new erection and construction of a structure or other improvement, having recovered judgment upon his claim, may, except where the property named is essential to the business of a quasi-public corporation, file a petition in the court in which such claim is filed, setting forth that the party contracting for the structure or other improvement was not capable of binding the land, has forfeited or otherwise lost all interest therein, that the prior estate, charges and encumbrances exceed the value of the land, or that, by reason of any other facts in said petition averred, it is advantageous to the lien claimants that the structure or other improvement should alone be sold for the benefit of the claimants; whereupon a rule shall be granted upon all parties interested, having filed or being entitled to file claims upon the defendants therein, and upon every person having an interest in the property, including the then owner and any ground-rent owner, mortgagee, lien claimant or encumbrancer, to show cause why the prayer of the petition should not be granted. From the pleadings, aided as to the material disputed facts, if any, by depositions or a hearing at bar, the court shall determine the questions raised ; and if it is decided that it would be advantageous to the claimants to have the structure or other improvement alone sold, then the court shall enter a decree, upon equitable terms, that the land upon which the structure or other improvement stands shall be exonerated from the lien of the claims, and the structure or other improvements shall alone be sold to pay the claims, unless the owner shall, within a time fixed, pay all claims that have ripened into final judgment, and give approved security to pay all subsequent judgments recovered thereon, the lien of such claims to remain in the meantime; or, unless within such time he shall, by writing filed, agree to pay into court for the benefit of the claimants, and of himself in case of a surplus, the appraised value of the structure or other improvements, as determined by a majority of three appraisers, selected by the parties or appointed by the court. If the structure or other improvement is alone sold, only those who labored thereupon or furnished labor or other materials thereto, shall be entitled to come in on the fund realized at the sale, and the purchaser thereat shall have sixty days within which to remove the same from the land which was exonerated from the claim.” This legislation goes far beyond any prior enactment relating to mechanics’ liens. Nothing approaching likeness to it was upon our statutes at the time of the adoption of the present constitution. The right of a claimant to have a building sold, the sale carrying with it a right in the purchaser to remove the same from the land, is not limited to a case in which the party contracting for it is not capable of binding the land, but may be exercised whenever, for any reason, it is advantageous to the hen creditors that the structure alone shall be sold, and when the court so decides, the building becomes a piece of property separate from the land of which it had formed a part. Mechanics’ liens prior to the act of 1901 bound the land as well as the building erected on it, but by the thirty-eighth section of that act the building alone may be bound. From the proceeds of the sale of it, when ordered sold by the court, those only are to be paid who furnished labor or materials in its erection. The owner of the land must submit to the removal of the building from it, with the injuries incident to the removal, unless he pays, within a fixed time, all claims for labor and materials that have ripened into final judgment and gives approved security to pay all subsequent judgments recovered, or shall, by writing filed, agree to pay into court, for the benefit of the claimants, the appraised value of the structure or other improvement as determined by a majority of three appraisers selected by the parties or appointed by the court. It is difficult to conceive more drastic legislation upon the subject of mechanics’ liens, and while unprohibited statutes relating to them had become a fixed system at the time of the adoption of the constitution of 1874, and that instrument does not interfere with the system, it does declare that the general assembly shall not pass any local or special law providing or changing methods for the collection of debts or the enforcing of judgments, and any special legislation for mechanics’ lien creditors — a special class of creditors — for the collection of debts due them or the enforcement of judgments recovered by them is within the prohibition. The whole act of 1901 is legislation for a special class of creditors, some of the provisions of which are permissible because the constitution of 1874 did not intend to wipe out the system to which they relate; but those providing special methods or changing old ones for the collection of the debts due the special class of creditors or for the enforcement of judgments recovered by them are prohibited by the organic law. By no prior statute not disturbed by the constitution was there any such provision for the collection of a mechanic's lien debt or the enforcement of a judgment thereon, as is found in sec. 38 of the act of 1901, and as that section clearly falls within the spirit and reason of the rule as laid down in Portland Cement Company v. Allison, 220 Pa. 382, and Vulcanite Paving Company v. Philadelphia Rapid Transit Company, 220 Pa. 603, we are required to declare it unconstitutional.

Judgment reversed.