author: Mr. Justice Stewart,

text:
    New York & Cleveland Gas Coal Company v. Graham, Appellant.

      Deed — Warranty—Covenant for quiet enjoyment — Defect in title— Cloud on tiñe — Mortgage—Evidence—Equity.
    1. The mere fact that the grantee in a deed containing a general warranty and a covenant for quiet enjoyment had knowledge of an existing defect in the title at the time he accepted, does not of itself impair the covenants. Such fact is a circumstance to be considered when it becomes a question whether it was understood and intended that the covenants were to extend to that particular defect, and the truth with respect to this may always be shown.
    2. When the covenants in a deed are general with nothing expressly excepted, the burden is on the grantor who seeks to escape from a liability fairly covered by the general terms of the covenants to show that his grantee accepted the title notwithstanding the defect, and, cum onere.
    3. The general covenant of warranty may be broken as soon as made. The existence of a better title with an actual possession under it in another, is of itself a breach of this covenant.
    4. A covenant for quiet enjoyment is broken by the very commencement of an action on the better title.
    5. Where a grantee of land under a deed containing a general warranty and a covenant for quiet enjoyment takes the land subject to a mortgage which can only be paid off after the death of a living person, and such grantee is compelled to pay treble damages for mining coal, to the owner of a better title, and such damages are in excess of the amount of the mortgage, the grantee is entitled to maintain a bill in equity against the grantor to cancel the mortgage which he holds on the land.

      Words and, phrases — Maxims—Ignorance of the law — Deed.
    6. The rule ignorantia juris neminem excusat does not apply to a matter of law arising upon the doubtful construction of a grant.
    Argued Oct. 21, 1909.
    Appeal, No. 124, Oct. T., 1909, by defendant, from decree of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 427, on bill in equity in case of The New York & Cleveland Gas Coal Company v. W. H. Graham.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to cancel á mortgage and quiet title.
    Miller, J., specially presiding, found the facts to be as follows:
    FINDINGS OF FACT.
    . 1. On December 27, 1895, W. H. Graham, the defendant, and Lizzie, his wife, conveyed to the plaintiff company, a corporation, a tract of land in Penn and Wilkins townships, containing about eighty acres underlaid with coal, for the consideration of $6,173.75; in addition to which the plaintiff assumed the payment of a mortgage on the premises of $1,643.75, all of which is shown in the deed between the parties. The above-named purchase money seems all to have been paid or provided for save the sum of $2,530, for which the plaintiff gave to the defendant a purchase-money mortgage, interest payable semiannually, the principal to be paid two years after the death of William Robb and Mary Anne Robb, his wife, or the survivor of them, as appears by said purchase-money mortgage on which mortgage there still remains due the sum of $1,900 with interest from June, 1905.
    In addition to the covenants of general warranty contained in the said deed there was also a covenant for quiet possession, and likewise a covenant of indemnity, as follows:
    “And the said William H. Graham, and Lizzie Graham, his wife, parties of the first part, for themselves, their heirs, executors and administrators, do covenant to and with the said New York & Cleveland Gas Coal Co., its successors and assigns, by these presents, that it, the said New York & Cleveland Gas Coal Co., its successors and assigns shall and may from time to time, and at all times forever hereafter, peaceably and quietly have, hold, and enjoy all and singular the said premises hereby granted and released, without the hindrance, denial or interruption of any person or persons lawfully claiming or to claim any right, title, estate or interest at law or in equity in, to, or out of the same, or any part thereof. And they, the said William H. Graham, and Lizzie Graham, his wife,'parties of the first part for themselves, their heirs, executors and administrators do further covenant and agree, that they the said William H. Graham and Lizzie Graham, their heirs and assigns, will hold and save harmless and indemnify the said party of the second part, its successors and assigns, of and from all damages, costs, expenses, attorney's fee or other charges that may arise or be caused in consequence or by reason of any claim or any person or persons claiming any right, title, estate or interest at law or in equity, in, to or out of the premises hereby conveyed, or any part thereof, or by reason of any knowledge of the said warranty of quiet possession.''
    3. Prior to, and at the time of closing said transaction, the plaintiff in the examination of the title found of record the following agreement:
    “Know all Men by These Presents, That Whereas William Robb and Mary M. Robb, his wife, of the County of Allegheny and State of Pennsylvania, have this day by deed of even date herewith, sold and conveyed unto W. H. Graham, all that certain tract or piece of land situate partly in Wilkins Township and partly in the Township of Penn, in the County of Allegheny and the State of Pennsylvania, containing 80 acres and 60 perches more fully and at length described in said deed of conveyance, now this agreement witnesseth, That he, the said W. H. Graham contracts and agrees that the said William Robb and his wife, Mary M. Robb, shall have the privilege and right to remain on said property during their natural lives, or the natural life of the survivor of them, free from the payment of any rent, taxes, assessments or encumbrances of any kind, and the said William Robb and wife, Mary M. Robb, to have the rights and privileges as above set forth of said property for and during that time. Witness our hands and seals this 16th day of February, A. D. 1884.” Duly signed by the four parties and sealed and acknowledged. A written notice from William Robb was also served upon the plaintiff at the time protesting against the sale of the coal under said tract and claiming a life estate in the land.
    4. The defendant Graham was a son-in-law and his wife, Lizzie, was a daughter of William Robb and Mary Robb. It appears from other proceedings hereafter referred to that Graham, for the purpose of relieving Robb of his pressing liabilities, purchased said farm or tract of land, and as a part consideration therefor, in the nature of a family arrangement, executed the foregoing contemporaneous agreement which he construed to be a mere right of occupancy, with a home, for his father-in-law and mother-in-law during their lives.
    5. The plaintiff company and its counsel, with Graham at the time of the purchase, with said agreement before them, construed the same to grant a mere right of occupancy to the Robbs; but in view of its existence and the notice received the special covenants in said deed were inserted therein for the purpose of protecting the plaintiff in the event that the Robbs, or either of them, should have a greater right in said property than the mere right of occupancy of the surface during their lives; the plaintiff purchasing said tract of land for the coal thereunder.
    6. At No. 387, January Term, 1897, in the court of common pleas No. 2, of this county, the said Mary Robb and her husband filed a bill in equity against their son-in-law, W. H. Graham, with notice to the plaintiff company, praying that their deed to Graham should be construed as a mortgage. On hearing the bill was dismissed; Graham paying the attorneys’ fees in the proceedings. In the fourth paragraph of the plaintiff company’s answer in said suit appears the following:
    “But the notice which said plaintiff did give was that they were in possession of said land under the agreement hereinbefore referred to and attached to this answer, and the said defendant purchased said property subject to whatever rights said plaintiff might have under said agreement.”
    7. At No. 232, June Term, 1898, in the court of common pleas No. 1 of the county, the plaintiff company Sled its bill against William Robb and Mary, his wife, to restrain them from interfering with its mining of coal under said tract of land. This bill was dismissed on demurrer for want of jurisdiction, the parties being relegated to their action at law.
    8. At No. 729, August Term, 1904, in this court, the said Mary Robb brought suit against the defendant company and recovered a verdict on her claim as a life tenant of said land in the sum of $5,250 damages for coal mined by the plaintiff under this tract. This verdict was sustained by a divided court on appeal as reported in 216 Pa. 418.
    CONCLUSIONS OP LAW.
    1. The recovery of a judgment against the plaintiff and its payment in the sum of $5,250 in favor of Mary Robb, as set forth in the last finding of fact, constituted a breach of the covenant made by the defendant and his wife of the deed of December 27, 1895.
    2. The mortgage of December 27, 1895, given by the plaintiff to defendant, should be decreed satisfied, the defendant to pay the costs.
    The court entered a decree canceling the mortgage.

      Error assigned was the decree of the court.

      B. 8. Martin, with him W. A. Hudson, for appellant.
    It is well settled that where a vendee with knowledge of the existence of incumbrances accepts a deed with a warranty against them and gives his bond for the purchase money, the continued existence of such incumbrances is no defense to an action on the bond: Fuhrman v. Loudon, 13 S. & R. 386; Lighty v. Shorb, 3 P. & W. 447; Allen v. Getz, 2 P. & W. 310; Roland v. Tierman, 8 W. & S. 193; Bradford v. Potts, 9 Pa. 37; Lukens v. Jones, 4 Phila. 18: Powell v. Barrington, 1 Clark, 239.

      January 3, 1910:
    The special covenants were against a known defect or incumbrance in the title, viz.: the rights of Mary M. Robb and William Robb in the coal, as determined in Robb v. New York & Cleveland Gas Coal Co., 216 Pa. 418.
    Where there is a covenant against a known defect, the vendee may not detain purchase money unless the covenant has been broken: Wilson v. Cochran, 46 Pa. 229.

      Wm. E. Schoyer, of Lyon & Hunter, for appellee.
    Equity certainly has jurisdiction to compel the satisfaction of a mortgage which has been fully paid: Fertig v. Henne, 197 Pa. 560; Goldbeck’s App., 8 Atl. Repr. 29; Walsh v. Leonard, 8 Luz. Leg. Reg. 282; Prosser v. Guarantee Title & Trust Co., 56 Pitts. Leg. Jour. 215.
    In McCune v. Scott, 18 Pa. Superior Ct. 263, it was held that a grantee who had gone into possession and had to pay treble damages for cutting timber to one having the paramount title could hold his grantor on the latter’s covenant of warranty.
    There is no question but that the appellee suffered great damage from the breach of this covenant, and had thereafter the right to detain the purchase money due, or to become due, on its mortgage. It took a covenant against a known defect, and that covenant has been broken: Lighty v. Shorb, 3 P. & W. 447; Bradford v. Potts, 9 Pa. 37; Wilson v. Cochran, 48 Pa. 107; Jackson v. Juvenal, 14 Pa. 519; Wilson v. Ott, 173 Pa. 253.
   Opinion by

Mr. Justice Stewart,

William H. Graham, the defendant, and Lizzie, his wife, by deed dated December 27, 1895, conveyed to the plaintiff company a tract of land in Allegheny county containing about eighty acres, for the consideration of $6,173.75, the plaintiff, in addition, to assume the payment of an existing mortgage on the premises for $1,643.75. The entire purchase money has been paid excepting $1,900 which remains in the mortgage given defendant as part of the purchase price, and which does not become due until two years after the death of William Robb and Mary, his wife, or the survivor of them. By its terms, the deed from Graham and wife to the plaintiff company is a present conveyance of the entire estate in the land described, without reservation or exception. It contains not only a clause of general warranty, but several special warranties, one for quiet enjoyment and «another for indemnity against- disturbance or interruption of any kind. There is nothing equivocal or ambiguous- in any of the terms of the deed; nor is any fraud, accident or mistake alleged in connection therewith. Under this deed the plaintiff began to mine coal on the premises conveyed. Mary Robb, surviving her husband, and claiming a life estate in the premises under a conveyance from William H. Graham, earlier in date than the deed to the plaintiff, brought an action in trespass against the plaintiff, to recover triple damages for the coal mined, and recovered a judgment for $5,250. The defense set up was liberum tenementum. On appeal to this court, the case being reported in 216 Pa. 418, the title of Mary Robb to the coal in the tract, as life tenant, with the right to exhaust, was held good, and the judgment was affirmed by an equally divided court. The plaintiff asks in view of this recovery against it, that the defendant be required to cancel and surrender the mortgage which he holds against it for the unpaid balance of the purchase money. The company’s right to this release is denied on several grounds; first, because when plaintiff accepted the deed for the property, it had knowledge of the existing earlier deed to Mary Robb, and fully understood that the covenants in its deed were not intended to protect or indemnify against the earlier deed; and, second, that even though the covenants be held to extend to the Mary Robb deed, there has been no breach of any of the covenants which would entitle plaintiff to recover against defendant anything more than nominal damages. With respect to the first: the mere fact that a grantee had knowledge of an existing defect in the title at the time he accepted, does not of itself impair his covenants. Such fact is a circumstance to be considered when it becomes a question whether it was understood and intended that the covenants were to extend to that particular defect, and the truth with respect to this may always be shown. When the covenants are general, with nothing expressly excepted, the burden is on the grantor who seeks to escape from a liability fairly covered by the general terms of the covenant, to show that his grantee accepted the title notwithstanding the defect, and, cum onere. That is what the defendant here undertook to do; and the first question in the case is, did he offer evidence sufficient to establish the fact? Besides the circumstances adverted to, — the character of the outstanding title, and plaintiff’s knowledge of the deed under which it was derived, — there was but a single piece of evidence introduced in support of his claim. William and Mary Robb had been the owners of this tract of land and had conveyed to Graham by deed dated February 16, 1884. On the same day Graham and wife executed a written agreement with Robb and wife, granting to them the privilege and right to remain on the property described in the deed during their natural lives or the natural life of the survivor. In 1897 Robb and wife filed a bill in equity against Graham, with notice to this plaintiff, praying that the deed to Graham should be construed and held to be a mortgage. The answer filed by the plaintiff to the bill contains the following admission, “ and the said defendant purchased said property subject to whatever rights said plaintiff might have under said agreement.” The agreement here referred to was the agreement between the Grahams and the Robbs. The admission goes so directly to the point, and is so precise and definite in its terms, that if it stood alone and not otherwise explained than by its own language it would certainly go far toward establishing plaintiff’s contention. As explained, however, by the president of the company who made it, and the general situation as disclosed by the evidence, it loses entirely the significance it otherwise would have. The fifth finding of the learned chancellor is as follows: “The plaintiff company and its counsel, with Graham, at the time of the purchase, with said agreement before them, construed the same to grant a mere right of occupancy to the Robbs; but in view of its existence and the notice received, the special covenants in said deed were inserted therein for the purpose of protecting the plaintiff in the event that the Robbs, or either of them, should have a greater right in said property than the mere right or occupancy of the surface during their lives; the plaintiff purchasing said tract of land for the coal thereunder.” The evidence which supports this finding was offered and received not to control the effect of the covenant, or to define the extent of the grant to the Robbs, but as interpreting the written admission of the plaintiff in the answer filed to the Robb bill above referred to, and relied on by the defendant. For this purpose it was entirely proper. In the light of this finding, in which we concur, it becomes evident that plaintiff’s admission introduced by the defendant, meant no more than that the property had been purchased subject to such rights of the Robbs as- plaintiff ’ was. advised were expressed in the agreement between them and Graham; that is, occupancy of the surface for life. It was not intended as an admission of any right in the Robbs to the coal. With this out of the case, defendant offered nothing to support the contention that plaintiff bought subject to the incumbrance. The learned chancellor was entirely correct in concluding that the covenants in the deed extended to this particular defect of title. Was there any breach? The general covenant of warranty was broken as soon as made. The existence of a better title with an actual possession under it in another, is of itself a breach of this covenant. “The rule therefore, as best supported by reason and authority, would seem to be this — where at the time of the conveyance, the grantee finds the premises in possession of one claiming under a paramount title, the covenant for quiet enjoyment or of warranty will be held to be broken, without any other act on the part of either the grantee or the claimant; for the latter can do no more towards the assertion of his title, and, as to the former the law will compel no one to commit a trespass in order to establish a lawful right in another action:” Rawle on Covenants for Title, p. 269. So, too, there was a breach of the special covenant which insured to the plaintiff that it “should at all times peaceably and quietly have, hold and enjoy all and singular the said premises without the hindrance, denial or interruption of any person or persons lawfully claiming or to claim any right,” etc. “A covenant'for quiet enjoyment,” says Gibson, C. J., in Stewart v. West, 14 Pa. 336, “which resembles the modern covenant of warranty, differs from it in this, that the former is broken by the very commencement of an action on the better title.” The plaintiff then being in position to avail itself of its covenants, and having been compelled, because of the outstanding paramount title, to pay in damages double the amount of the mortgage given for the unpaid purchase money, of course there could be no recovery on the mortgage. Why then shall the mortgage, which will not be due until two years after the death of-Mary Robb, remain during all this time a cloud upon the plaintiff title? If it be said that as between Graham and the plaintiff it was simply a mistake of law in supposing that the agreement between the former and Robbs granted only a surface right, and that against such mistakes equity does not relieve, a sufficient reply is found in Beauchamp v. Winn, L. R. 6 H. L. 223, — a widely recognized authority governing in cases of this kind, — ■ where Lord Chelmsford says: “With regard to the objection that the mistake was one of law, and that the rule ignorantia juris neminem excusat applies, I would observe, upon the peculiarity of this case, that the ignorance imputed to the party was of a matter of law arising upon the doubtful construction of a grant; this is very different from ignorance of a well-known rule of law.” He further observes in the same case, that “although when a certain construction has been put by a court of law upon a deed, it must be taken that the legal construction was clear, yet the ignorance, before the decision, of what was the true construction, cannot, in my opinion, be pressed to the extent of depriving a person of relief on the ground that he was bound himself to have known beforehand how the grants would be construed.” The relief plaintiff seeks is the removal of a cloud upon its title. Against the menace of this mortgage it cannot immediately protect itself, or maintain its right to defeat the mortgage, by any course of proceeding at law. Under such circumstances equity will afford relief. Wc need only cite Dull’s App., 113 Pa. 510, in support.

In what we have said the questions raised by the assignments of error have all received consideration, and they are overruled.

The appeal is dismissed at the costs of appellant, and the decree is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Damms v. Humboldt Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Sole ownership — Waiver—Estoppel.
    1. Where, at the time of issuing an insurance policy, the company knows that one of the conditions thereof is inconsistent with the facts, and the insured has been guilty of no fraud, the company is estopped from setting up the breach of said condition. The same rule prevails when the insurance company ought to have known the facts constituting the alleged breach.
    2. Where at the time of issuing a fire insurance policy the owner submits to the manager of the company for his inspection his deed to the property proposed to be insured, and the deed on its face shows that it was dependent upon a tax title, the company cannot after the destruction of the property by fire, allege that the insured had no title under the tax sale because the property was sold as unseated land, when in fact it was seated.
    Argued Oct. 21, 1909.
    Appeals, Nos. 125 and 126, Oct. T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, Nos. 480 and 481, on verdict for plaintiff in case of Caroline Damms v. Humboldt Fire Insurance Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Frazer, P. J.
    At the trial a verdict was returned for the plaintiff for $2,201.50.
    On a motion for judgment non obstante veredicto, Frazer, P. J., filed the following opinion:
    This was an action to recover upon a policy of insurance upon buildings located upon certain real estate situated in Derry township, Westmoreland county, and also personal property contained therein. The testimony showed that the real estate was sold as unseated land at the instance of the treasurer of Westmoreland county for taxes levied against the property for the .years 1895 and 1896, and purchased byCanfield, the deed of the treasurer of Westmoreland county being dated June 13, 1898. On February 14, 1903, Canfield and wife conveyed the property to plaintiff, who thereupon took possession of and occupied the same until the buildings were destroyed by fire, November 24, 1905. The buildings erected upon the land were a dwelling house, barn, spring house, and other outbuildings, a portion of the land had been cultivated, and the property was occupied by tenants at least for a portion of the years 1895 and 1896.
    On or about July 26, 1904, defendant issued to plaintiff a policy insuring the buildings upon the property to the extent of $1,425 and the household furniture contained therein to the extent of $500. Plaintiff’s claim is, that the property .was entirely destroyed by fire November 24, 1905, with the exception, of a spring house which was insured to the extent of $75.00. The insuring of the property was not denied, defendant contending, however, that plaintiff was not the sole and unconditional owner, its claim being that the property was seated land in the years 1895 and 1896, and that Canfield took no title under the sale by the treasurer of Westmoreland county. Plaintiff’s answer to this contention was, the defendant was fully aware of the circumstances under which she purchased the property, and also of the nature of her title to the same, she having submitted to the manager of the company at the time the policy was issued the deeds under which she claimed title. Whether the company was aware that plaintiff’s interest was dependent upon a tax title was, under the testimony, a question of fact for the jury, which was determined against defendant after being, in our opinion, fairly submitted. We must, therefore, now assume, that the manager of the company had actual knowledge of Mrs. Damms’ interest in the property, and the circumstances under which it was acquired.

      The reasons relied upon to sustain the motion for judgment non obstante veredicto are (1) the interest of the insured was not that of unconditional and sole ownership, and (2) a waiver of that condition was not made in writing and attached to the policy. The clauses upon which these reasons are based are:
    “1. This entire policy shall be void if .... the interest of the insured in the property be not truly stated herein . . . ., or if the interest of the insured be other than unconditional and sole ownership.

      “ 2. This policy is made and accepted subject to the foregoing stipulations and conditions, and together with such other provisions, agreements, or conditions as may be indorsed or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or other representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so.'written or attached.”
    In support of its contention defendant cites Beddall v. Citizens’ Insurance Co., 28 Pa. Superior Ct. 600. That case, in our opinion, does not rule this. There the policy was written by an agent with limited authority and was based upon a written application made by the insured which did not convey to the company the fact that the building insured was located upon leased ground. Under the circumstances of that case it was held the company was not liable. Here, instead of a written application for insurance, the husband of insured visited the office of the company with a person who acted as an agent for the company, and exhibited to the manager of the company the deeds under which plaintiff held title to the property. These deeds fully acquainted the manager of the company with the extent of Mrs. Damms’ title to the property, and with that information that officer having issued the policy wc are of opinion this case comes within the rule laid down in Caldwell v. Fire Association, 177 Pa. 492, in which Mr. Chief Justice Sterrett says: “Where, at the time of issuing an insurance policy, the company knows that one of the conditions thereof is inconsistent with the facts, and the insured has been guilty of no fraud, the company is estopped from setting up the breach of said conditions. The same rule prevails when the insurance % company ought to have known the facts constituting the alleged breach: Wood on Ins., sec. 497; People’s Ins. Co. v. Spencer, 53 Pa. 353.”
    Under the case last above cited defendant is, in our opinion, estopped from setting up a breach of the condition referred to, if there was a breach, especially as no fraud or bad faith can be rightfully charged to either Mrs. Damms or her husband who acted for her.
    And now, May 12,1909, the motions for judgment non obstante veredicto and for a new trial arc overruled.

      Errors assigned were in refusing binding instructions for defendant and in overruling motion for judgment for defendant non obstante veredicto.

      Charles W. Dahlinger, for appellants.
    None of the conditions set out in the policy can be waived unless it is done in writing indorsed on the policy: Beddall v. Citizens’ Ins. Co., 28 Pa. Superior Ct. 600; Moore v. Fire Ins. Co., 141 N. Y. 219 (36 N. E. Repr. 191); Gilbert v. Phœnix Ins. Co., 36 Barbour, 372; Conway Tool Co. v. Hudson River Ins. Co., 66 Mass. 144; Parker v. Ins. Co., 162 Mass. 479 (39 N. E. Repr. 179); Northam v. Ins. Co., 166 N. Y. 319 (59 N. E. Repr. 912); Pottsville Mut. Fire Ins. Co. v. Horan, 11 W. N. C. 198; Allegheny County Workhouse v. Moore, 95 Pa. 408; Abington Dairy Co. v. Reynolds, 24 Pa. Superior Ct. 641.

      L. K. Porter, with him S. G. Porter and Frank H. Kennedy, for appellee.
    This case comes within the rule laid'down in Caldwell v. Fire Ins. Assn., 177 Pa. 492. See also People’s Ins. Co. v. Spencer, 53 Pa. 353; Philadelphia Tool Co. v. Assurance Co., 132 Pa. 236; Imperial Fire Ins. Co. v. Murray, 73 Pa. 13.
    January 3, 1910:
    Contracts of insurance should be liberally construed in aid of the indemnity which was contemplated by the parties: McKeesport Machine Co. v. Ben Franklin Ins. Co., 173 Pa. 53.
   Per Curiam,

These cases were tried together and involve the same questions. The judgment in each is affirmed on the opinion of the learned judge of the common pleas.


author: Mr. Justice Mestrezat,

text:
    Willson, Appellant, v. Canevin.

      Mechanic’s lien — Notice to owner by subcontractor — Contract—Acts of June 4, 1901, P. L. 431 and April 17, 1905, P. L. 172.
    1. When a subcontractor notifies the owner of his intention to file a mechanic’s lien, he must do so in substantial compliance with the Act of June 4,1901, P. L. 431, as amended by the act of April 17, 1905.
    2. Where a contract between a contractor and subcontractor is a written bid for a lump sum for an itemized list of articles without prices given for each item, a notice by the subcontractor to the owner is sufficient if the sworn statement accompanying it sets forth the written bid for the lump sum, and that such bid was accepted, and there is attached to the statement as a part thereof the itemized list of materials, but without any prices fixed for the various items.
    3. In such a case if the claim for a mechanic’s lien filed after such notice contains exactly the same matters set out in the sworn statement accompanying the notice, it will not be held defective because it does not set out the price of the particular materials furnished. The Act of April 17, 1905, P. L. 172, changed the provisions of the Act of June 4, 1901, P. L. 431, requiring a detailed statement of the prices to be attached to the claim.
    Argued Oct. 21, 1909.
    Appeal, No. 129, Oct. T., 1909, by plaintiffs, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 37, making absolute rule to strike off mechanic’s lien in case of F. E. Willson and Alex. Willson, Copartners, trading as the Standard Lumber Company, v. Rt. Rev. Regis Canevin, Bishop of the Diocese of Pittsburg, Trustee et al.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule to strike off mechanic’s lien.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was order making absolute rule to strike off mechanic’s lien.

      A. S. Mahon, for appellants.
    The notice of intention contains a sufficient statement of the contract or bid without attaching thereto a copy of the bid: Este v. R. R. Co., 27 Pa. Superior Ct. 521; Day v. R. R. Co., 35 Pa. Superior Ct. 586; American Car & Foundry Co. v. Water Co., 215 Pa. 520; Beam v. Geiselman, 22 Montg. 106.
    Where the contract is for a lump sum, it is not necessary that the sworn statement of the materials furnished give the price of each item of material: Day v. R. R. Co., 35 Pa. Superior Ct. 586; Louis Werner Sawmill Co. v. Chemical Co., 50 Pitts. L. J. 193; Maddocks v. McGann, 12 Pa. Dist. Rep. 701; American Car & Foundry Co. v. Alexandria Water Co., 215 Pa. 520.
    Since the amending Act of April 17,1905, P. L. 172, it is not necessary to set forth in the lien the price of each item of material furnished, where contract is for lump sum, or to attach a copy of the written contract bid to the lien.

      Chas. D. Gillespie, with him A. V. D. Watterson and A. B. Reid, for appellees.
    The notice and claim were defective: Noll v. Swineford, 6 Pa. 187; Russell v. Bell, 44 Pa. 47; Lee v. Burke, 66 Pa. 336; Brown v. Myers, 145 Pa. 17; Wharton v. Investment Co., 180 Pa. 168; Lee v. Exeter Club, 9 Pa. Superior Ct. 581; Wolf Co. v. R. R. Co., 29 Pa. Superior Ct. 439.
    The cases decided on the question of the sufficiency of notice will be found as follows: American Car, etc., Co. v. Water Co., 215 Pa. 520; Este v. R. R. Co., 27 Pa. Superior Ct. 521; Wolf Co. v. R. R. Co., 29 Pa. Superior Ct. 439; Collins v. R. R. Co., 29 Pa. Superior Ct. 547; Keeley v. Jones, 35 Pa. Superior Ct. 642; Day v. R. R. Co., 35 Pa. Superior Ct. 586; Howard v. Allison, 12 Pa. Dist. Rep. 117; Sawmill Co. v. Chemical Co., 11 Pa. Dist. Rep. 772; King v. Church, 14 Pa. Dist. Rep. 265; James v. Homoyer, 15 Pa. Dist. Rep. 957; Mock v. Roscoe, 14 Pa. Dist. Rep. 774.
    January 3, 1910:
   Opinion by

Mr. Justice Mestrezat,

This was a petition of the owners to strike off a mechanic’s lien filed by the plaintiffs, subcontractors, against the owners and contractors to enforce payment of a balance due for certain materials furnished for the erection of a parochial school building. The petition alleges that the lien is defective for the following reasons: (1) The notice of intention to file a lien does not have a copy of the contract attached thereto, and does not give the prices of the various items of materials, but fixes a lump sum for the materials alleged to have been furnished; (2) the claim avers that the contract of plaintiffs with the contractors consisted of written bids, alleged to be attached to the claim, but no copies are attached thereto and neither the claim nor bill of particulars attached thereto sets forth the prices of the several items of materials furnished, but fixes a lump charge therefor. It will be observed the owners allege that both the notice of intention to file the lien and the claim are defective in the particulars stated, and for these reasons they ask that the lien be struck from the record. The learned trial judge granted the prayer of the petition and struck the lien off. The plaintiffs have appealed.

1. Section 8 of the Act of June 4, 1901, P. L. 431, 3 Purd. (13th ed.) 2474, provides, inter alia, as follows: “Any subcontractor, intending to file a claim, must give to the owner written notice to that effect, together with a sworn statement setting forth the contract under which he claims, the amount alleged to be still due and how made up, the kind of labor or materials furnished, and the date when the last work was done or material furnished.” As we have uniformly held, a mechanic’s lien is the creature of statutory law, and he who would avail himself of the provisions of the statute must show a substantial compliance therewith. It is only upon this condition that he has the right to enforce payment of his claim against the land for the labor or materials which are used in the improvement. This is especially true when a subcontractor attempts to enforce his claim against the property of the owner. There is no privity between him and the owner. The latter has made no contract with him to supply labor or material and has no knowledge of .the contract or the terms between him and the contractor for supplying labor or materials. When, therefore, a subcontractor notifies the owner of his claim he must do so in substantial compliance with the statute.

The sworn statement accompanying the notice in the present case says: “Written bid accepted for $3,400, and extras ordered amounting to $145.50 by Snee Bros., contractors; that the amount still due and owing to him under said contract is the sum of $2,333.90, with interest from November 21, 1907, which is made up as follows, to wit:

Contract price,......$3,400.00

Extras ordered and furnished, . . 145.50

Total,......$3,545.50

Credit by cash,.....1,211.60

Balance due, ......$2,333.90

As shown by exhibit ‘A,’ contract material, and exhibit ‘B’ extras, hereto attached and made a part hereof; that the kind of materials furnished was finished mill work, and the date when the last labor (or materials) was furnished was on the 21st day of November, 1907.” Exhibit “A” is an itemized statement giving the items of materials furnished with the year, month and day of the several items, and also giving the total sum due for all the items of the materials furnished but not the price of each item. Exhibit “B” is an itemized statement of the extras which gives the year, month and day, the price for the first three items furnished on separate days, the lump sum for the items furnished on another day and the price for another item.

As we have frequently said, the purpose of giving this notice is to furnish information to the owner so that he may protect himself and not be required to pay an exorbitant price for the same labor or material. Section 9 of the act directs how the owner shall proceed when he has been served with a notice, accompanied by a sworn statement, of an intention to file a claim by a subcontractor. He may give a copy of the notice to the party personally liable for the debt and notify him that unless the claim is settled within fifteen days or he is furnished with a sworn statement setting forth wherein it is intended to be disputed, he may pay the same and deduct the amount from the contract price or hold the contractor personally liable for any loss. If the contractor approve the claim or fail to file a sworn statement of defense thereto the owner may pay the claim and deduct the amount from the contract price or hold the contractor liable for any loss. The notice and the sworn statement accompanying it should therefore be sufficiently clear and explicit to give the owner such information as will enable him to examine and investigate the claim and determine whether it is correct or not. For this reason, the legislature in sec. 8 has specifically enumerated what the sworn statement shall contain.

It is conceded that the notice and sworn statement were properly served on the owners in the present case. The statement avers that the contract under which the materials were furnished were a “written bid accepted for $3,400 and extras ordered amounting to $145.50.” This, it will be observed, shows clearly the contract between the subcontractors and the contractor under which the materials were furnished. The bid was in writing, for a lump sum, and was accepted by the contractors. It is not clear how the contract could have been more definitely stated or in what terms it could have been stated which would have furnished more information to the. owners. It was not a contract in writing executed by both parties containing prices fixed for the various items of material to be furnished. It was simply an accepted offer to furnish the material named in exhibit “A” for a specific sum without stating the prices for the various items of the materials. The notice does not allege that copies of the written bids were attached thereto but that the exhibit containing the several items of material furnished were attached to the notice. We think the contract is sufficiently set forth in the statement.

The section also requires that the statement shall set forth “ the kind of labor or materials furnished.” Exhibit “ A” contains a detailed statement of the materials furnished, showing the items and the dates when they were furnished. The exhibit is a part of the notice and statement and is clearly sufficient when read in connection with the statement proper which avers: “that the kind of materials furnished was finished mill work.” The statement also avers that the date when the last materials were furnished was November 21, 1907.

We think the notice and statement are sufficient. The statement gives the owners a detailed account of the various items of materials furnished, the total of the price to be paid and the kind of materials furnished. This is all the information he needs to enable him to deal intelligently with the contractor and protect himself. He can readily ascertain, if he desires to know, whether or not the contract price was exorbitant and beyond the fair value of the materials agreed to be furnished. If he desires, he can have a price put upon each item of the material furnished by a person competent to value it and in that way determine whether the sum total is exorbitant. While the price agreed to be paid was a lump sum, the various items of the materials furnished are specifically set forth in the statement. This differentiates it from the case where the items and character of the material are not given and the price is a lump sum. In such case the statement would not be sufficient because it would not enable the owner to ascertain the fair value of the materials furnished for which only is he liable.

2. The exhibit attached to the claim is a copy of the exhibit attached to the notice, and sets out in detail the items of materials furnished by the subcontractors for the owners’ building. It, ■ like the statement, avers that the materials were furnished on a written bid and also alleges that the bid was accepted verbally by the contractors. The claim also avers that the bid for the materials furnished was made and accepted for the lump sum of 13,400. The exhibit gives in detail the items of materials furnished but not the prices of the several items. It is alleged that the claim is defective in not setting out the price of the items and in giving only a lump sum as the price of the materials furnished. We do not, however, regard this position as tenable. Section eleven of the Act of June 4,1901, P. L. 431, was amended by the Act of April 17, 1905, P. L. 172. Paragraph two of the amended section provides that the claim shall set forth, inter alia, “The amount or sum claimed to be due, and the nature or the kind of the work done, or the kind and amount of materials furnished, or both; and the time when the materials were furnished, or the work done, or both, as the case may be." This statement avers the amount due, the kind and amount of materials, and the time when the materials were furnished. The several items of the materials furnished are given, as we have seen, but not the prices of each item. Such information enables the owners to determine whether the price agreed to be paid the subcontractors is exorbitant or not. Having the several items and the kind of materials furnished and the total price, there should be no difficulty in ascertaining whether the total sum claimed is above the fair value of the property. As in case of the notice, a failure to give the items of the property furnished and only the lump sum as the price to be paid, the owner could not determine whether the subcontractor’s claim was a fair or exorbitant value of the property. Paragraph six of section eleven of the act of 1901 required a detailed statement of the prices charged, and paragraph four of the same section required a copy of the written contract to be attached to the lien, but the act of 1905 repealed those provisions of the former act and they were not re-enacted.

We think this claim sufficient, and to require more than it contains would be imposing upon the party furnishing the material more than is necessary to protect the owner or any other interested party. As said by Bell, J., in Calhoun v. Mahon, 14 Pa. 56, 58: “We must not be hypercritical, when scanning this species of lien, and estimating its sufficiency. Such a practice must necessarily defeat a yery large majority of them; a result not to be desired where they furnish sufficient data to enable the parties subject to them, to ascertain all. that is essential for them to know.”

The order of the court below is reversed and the lien is reinstated.


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    Schuchert, Appellant, v. Canevin.
    Argued Oct. 21, 1909.
    January 3, 1910:
    Appeal, No. 138, Oct. T., 1909, by plaintiffs, from order of C. P. No. 2, Allegheny Co., July T., 1908, M. L. No. 14, making absolute rule to strike off mechanic’s lien in case of Joseph S. Schuchert et al., trading as Joseph S. Schuchert & Brothers, v. Rt. Rev. Regis Canevin, Bishop of the Diocese of Pittsburg, Trustee et al.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      James W. Kinnear, with him T. D. McCloskey and W. E. Best, for appellants.

      Chas. D. Gillespie, with him A. V. D. Watterson and A. B. Reid, for appellees.
   Opinion by

Mr. Justice Mestrezat,

The questions raised on this record are identical with those considered and determined in Willson et al. v. Canevin et al., ante, p. 362, opinion filed herewith, and for the reasons there given, the order of the court below is reversed, and the lien is reinstated.-


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    Evans, Appellant, v. Pennsylvania Company.

      Negligence — Railroads—“Stop, look and listen” — Grade crossing— Pedestrian — Contributory negligence.

    One who is struck by a moving train that was plainly visible from the point he occupied when it became his duty to stop, look and listen, will be conclusively presumed to have gone negligently into an obvious danger. This rule applies to a pedestrian about to cross at grade four tracks of a railroad, where he had a clear view of the tracks for 2,148 feet in the direction from which the train came.
    Argued Oct. 21, 1909.
    January 3, 1910:
    Appeal, No. 131, Oct. T., 1909, by-plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 786, for defendant non obstante veredicto in case of Elizabeth Evans v. Pennsylvania Company, operating the Pittsburg, Fort Wayne & Chicago Railway.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Davis, J.
    The opinion of the Supreme Court states the facts.
    At the trial the jury returned a verdict for plaintiff for $3,000. Subsequently the court entered judgment for defendant non .obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      M. H. Stevenson, with him O. Wm. Jones, Jr., for appellant.

      R. H. Hawkins, of Dalzell, Fisher & Hawkins, for appellee.
   Per Curiam,

That the death of the plaintiff’s husband was caused by his negligence in walking in front of a train which he would have seen had he looked, is clear beyond all doubt. He was an ac-live man sixty-two years of age and had good hearing and good eyesight. He went to West Bellevue station on the defendant’s road at noon with the intention of crossing the trapks at what may be regarded as a public crossing for pedestrians. It was raining, but there was nothing in the condition of the weather that materially limited his range of vision. At this place there were four tracks. He stood on the platform in front of the station nine feet from the first track, while a freight train passed east on the third track. From the place where he stood he had a clear view of the tracks east for 2,148 feet. When the freight train had passed, he started across and was struck by the engine of a passenger train running west on the first track. There was not a particle of evidence that he looked towards the approaching train, and the positive evidence on the part of the defendant was that he did not look. But if he looked, he saw the engine and took the chance of getting over.in advance of it. As stated in the opinion of the learned trial judge: “The attention of the deceased was entirely taken up by the passing freight train, and, as soon as that train had passed over the crossing, he started to cross the tracks, and was immediately struck by the passenger train, which he could have seen in time to have prevented the accident, if he had looked.” The case was clearly within the rule announced in Carroll v. Penna. R. R. Co., 12 W. N. C. 348, and since followed in a long line of cases extending from Myers v. B. & O. R. R. Co., 150 Pa. 386, to Walsh v. Penna. R. R. Co., 222 Pa. 162, that one who is struck by a moving train that was plainly visible from the point he occupied when it became his duty to stop, look and listen will be conclusively presumed to have gone negligently into an obvious danger. A verdict might properly have been directed at the trial for the defendant, and there was no error in entering judgment for it non obstante veredicto.

The judgment is affirmed.


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    Patton Township v. Monongahela Street Railway Company, Appellant.

      Equity — Specific performance — Street railways — Municipal consent— Paving — Construction of an additional track — Boroughs.
    A borough may maintain a bill in equity against a street railway company specifically to perform a contract by which in consideration of the borough's consent to the laying of a track on a street, the company agreed to repair the pavement of the street in a particular manner, and after the happening of a particular event to lay an additional track.
    Argued Oct. 21, 1909.
    Appeal, No. 134, Oct. T., 1909, by defendant from decree of C. P. No. 2, Allegheny Co., Oct. T., 1907, No. 197, on bill in equity in case of Patton Township v. Monongahela Street Railway Company and Consolidated Traction Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance of a contract.
    Miller, J., specially presiding, found the facts and conclusions of law to be as follows:
    1. The township of Patton is one of the second class under the laws of the state of Pennsylvania.
    2. The Pitcairn & Wilmerding Street Railway Company, duly incorporated under the laws of the state of Pennsylvania, is authorized to build and maintain a street railway on certain highways in said • township; it with other companies was merged or consolidated into a corporation by the name of the Monongahela Street Railway Company on December 24,1901, which company subsequently leased all its rights and privileges for a term of 900 years to the Consolidated Traction Company, duly incorporated for the same purpose, which lease included the franchises granted to the Pitcairn & Wilmerding Street Railway Company next referred to.
    3. By written agreement dated August 19, 1901, between the supervisors of Patton township and the aforesaid Pitcairn & Wilmerding Street Railway Company it was stipulated, inter alia, that the railway company might “ also occupy that portion of the Township road with single dr double track, including the necessary turnouts and switches, beginning at the easterly line of the Borough of Pitcairn and continuing to the Township line at Westmoreland County and the stream known as Turtle Creek, or so much of either of said roads as may be necessary in the construction of said railway.
    “Within one year after the establishment of the proposed Westinghouse foundry at Stewart Station said Company agrees to make that part of its line between the easterly line of the Borough of Pitcairn and the Westmoreland County line a double track.”
    The agreement also provided, “The road shall be paved with vitrified brick between the tracks, with planks placed on the outside of the rails and level up to tracks so as to permit of vehicles driving on or off the same with ease.”
    It also provided, “In constructing said roadway said company shall lay its tracks as near as may be to the grade of the present road, and where it is necessary that tracks shall be laid at a lower or higher grade the remainder of the road shall be either cut or filled to conform with the grade of the tracks at the cost and expense of the Street Railway Company.”
    It was also agreed, “That the said Street Railway Company shall at all times keep in good repair at its own expense said part of the public road occupied by its tracks and one foot on the outside of each rail thereof.”
    4. At and prior to the time of the execution of the foregoing agreement a large portion of the land in and about what is designated therein as Stewart station, at or near the boundary line between Allegheny and Westmoreland counties, was acquired by the East Pittsburg Improvement Company, and a portion thereof was laid out in lots under the name of Trafford City.
    5. The defendant railway company constructed a single track on the public highway under and by virtue of the terms of said agreement between the eastern limits of the borough of Pitcairn and the western limit or boundary of said township or county line, in length slightly over a mile, with two sidings for the passage of cars. At present two cars, making thirty-six trips each per day, averaging from four to six persons per trip, seem to be all that are in use for the purpose of accommodating the travel between said points.
    However the roadway may have been graded, the space between the tracks paved and the space outside for the distance of one foot secured with planks, constituting a level grade enabling vehicles to easily draw on or off the said tracks, it is now apparent that the condition of the roadway has not been maintained; at present the top of the tracks at many places is not on a level with the grade of the road, nor for a foot on each side, so that teams can pass on and off with ease; the planks stipulated for in the contract, or ties which seem to have been substituted along the tracks on the outside, are not in place at many points; the railway ties upon which the tracks are fastened are at some places either decayed and rotten or have been withdrawn; the slope from the top of the rails to the roadway is abrupt; spaces between the tracks and ties are depressed by the sinking of the brick pavement, making travel upon the tracks difficult and rough. At or about or since the filing of this bill certain repairs have been made between the tracks and roadway of defendant company, but it is apparent that neither the roadway nor the tracks are in the condition of repair stipulated for bj^ the agreement, and it is further apparent that the condition of the highway along the track, owing not only to the lack of repairs but to the grade from the railway tracks to the edge of the highway, has resulted in making the public roadway less desirable for travel than before the railway tracks were placed thereon as maintained at present.
    6. In 1902 upon ten acres of land at or in what is now said Trafford City, the Westinghouse Foundry Company, having secured title therefor from the East Pittsburg Improvement or the Securities Investment Company, built a foundry plant. This consists of a main building about 600 feet long by 200 feet in width, and four other buildings of about the same length but different widths, in which five buildings are housed, the machinery and works of the foundry people, its power house and various other works and operations, constituting a part of said foundry plant. Operations were begun in October, 1903; the number of employees has run from 200 to 600 men; the products turned out are complete castings, shipped from there by a private railway system to the other Westinghouse interests at Wilmerding, and other points in that vicinity. The town of Trafford City has about 1,500 population, with paved streets, stores and a bank; the number of houses is about 200.
    7. It is estimated that the construction of an additional track between Trafford City and Pitcairn, including the improvements of the highway caused by the building of said additional track, is about 134,000. There is no evidence tending to show that there is a present demand for the additional track; nor is there any evidence tending to show that if the additional track were built and the public were better accommodated by re'ason thereof that increased traffic would not result. The defendant company’s road now connects with, or has a traffic arrangement with, another street or passenger railway at Trafford City, extending eastwardly to Irwin and Greens-burg in Westmoreland county, forming a complete line from these easterly points through and into the city of Pittsburg.
    CONCLUSIONS OF LAW.
    1. In consideration of the grant of the use of the public highway from Pitcairn to what is now Trafford City by the supervisors of Patton township, to the defendant railways company, the latter agreed specifically as to the construction of the roadway, the character of pavement, the conditions outside of the rails, the grade of the road to be in conformity with the grade of the tracks so as to permit easy access to or from the same, and also within one year after the proposed Westinghouse foundry at Stewart station was erected to double-track said road.
    The terms of the contract are clear and explicit. The defendant company obtained, and is now in possession of the right to the highway and of the highway itself; the plaintiff township of Patton is entitled to compliance with every stipulation contained in the contract; if there has been nonperformance or breach of contract in any part thereof equity has jurisdiction to decree the specific performance of the contract in all its details.
    2. It clearly appearing that the brick pavement between the tracks is uneven and rough, sunken between the ties; that the additional foot on the outside of the tracks is not constructed as the contract provided for and is below the level of the top of the rails; that the grade of the tracks does not correspond with the grade of the road; that cross ties have decayed and disappeared; that the slope from the top of the rails to the outer edge of the road is far too steep, as a result of which defects, caused by the noncompliance with the provisions of the contract, vehicles cannot drive on or off the tracks with ease; the terms of the contract require, and the duty of the defendant company is to put its pavement, roadbed, track-level, the space outside and the grade outside of the tracks in the exact conditions specifically set forth by the contract on every part of said line within three months of the date of final decree.
    3. The Westinghouse foundry, including all the buildings, tracks and operations conducted at Trafford City, with its finished daily product and number of employees, fulfills the condition as to the proposed foundry that the contract said should be established; this, coupled with the development and growth of the town of Trafford City as shown by its population, number of houses, both private and business, has fully met the reasonable proposition contemplated and provided for by the parties when the contract was executed. The existence of the foundry, its various buildings, operations, etc., are a fact which cannot be overcome by the theory that other and additional plans were in the contemplation of parties in no way connected with those who' entered into the contract which is before us — conditions which at least the supervisors had no knowledge of and which were not in their minds when they executed this grant. Specific performance to the extent of requiring the defendant company to double-track its road from Pitcairn to Trafford City necessarily follows.
    DECREE.
    And now, to wit, May 26, 1909, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows:
    January 3, 1910:
    1. That the said defendant companies shall within one year begin and complete the construction of a second track between the easterly borough line of Pitcairn and Trafford City, formerly Stewart station, in the manner provided for in the contract.
    2. That within three months after final decree the defendants shall repair the pavement, roadbed and one foot on the outside of each rail, on that part of the public road now occupied by its track between the easterly borough line of Pitcairn and the Westmoreland county line, in the manner specifically provided for in the contract.
    3. That the defendants pay the costs of this case.

      Error assigned was decree of the court, quoting it.

      Samuel McClay, of Reed, Smith, Shato & Beal, for appellant.

      W. H. S. Thomson, with him Frank Thomson and S. M. Myers, for appellee.
   Per Curiam,

The decree is affirmed on the findings of fact and law by Judge Miller, specially presiding.


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    Black, Appellant, v. Rinn.

      Principal and agent — Commissions for the sale of land — Evidence.
    In an action to recover commissions for the sale of land alleged to have been earned under an oral agreement with the defendant, the plaintiff will not be permitted to offer in evidence letters written to and by him relating to the land, prior to the verbal agreement, and when he himself had an option from the defendant to purchase the land.
    Argued Oct. 22, 1909.
    Appeal, No. 135, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., Oct. T., 1904, No. 521, on verdict for defendants in case of Alex. D. Black and Milton I. Baird, trading as Black & Baird, for use of Milton I. Baird v. S. A. Rinn and H. G. Bowers, trading as The Gaskill Coal Company.
    January 3, 1810:
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover commissions for the sale of land. Before Brown, J.
    At the trial the court refused under objection and exception to admit in evidence certain letters written to and by the plaintiffs and particularly referred to in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned among others were (11-13) ruling on evidence as above, quoting the bill of exceptions.

      Harvey A. Miller, with him U. G. Vogan, for appellants.

      B. M. Clark, with him A. B. Reid, for appellees.
   Per Curiam,

This was an action to recover a commission of $6,000 for the sale of the defendants’ coal lands, alleged to be due under a verbal agreement between the parties. The main argument for the appellants is intended to show error at the trial in rejecting certain offers of testimony made by the plaintiffs. The plaintiffs averred in their statement of claim that on February 4, 1903, they were given by the defendants a written option to purchase the land within twenty days; that upon the expiration of that time the option was verbally extended; that on March 10,1903, the defendants agreed verbally to pay them $6,000 if they would effect a sale of the land, and that in pursuance of this verbal agreement they effected a sale by bringing together the defendants and the parties who purchased from them. These allegations, except as to the option of February 4, were denied, and the issues at the trial were whether a verbal agreement for the payment of a commission had been made and, if so, whether a sale had been effected in pursuance of it.

' The plaintiffs offered in evidence two letters written to them by the agent of the purchaser relating to the purchaser of the land, one dated February 25 and the other March 6, and a letter from the plaintiffs to the defendants dated January 28, relating to the same subject. The most that is claimed for these letters as evidence is that they corroborate the plaintiff’s testimony that they are instrumental in bringing together the seller and the buyer. Whatever other valid objections there may be to these offers, they were properly rejected for the reason stated by the learned trial judge that the letters were all written before the verbal agreement for commission was alleged to have been made, and were entirely consistent with the right claimed by the plaintiffs -under their option. The sole basis of the action was the verbal agreement of March 10. Proof of negotiations with prospective buyers before this time, when no relation of agency existed and the plaintiffs were acting on their own rights as owners'of the option, was not competent.

The complaint that the charge was inadequate is without merit. The issues were very simple ones of fact, and they were stated with great clearness and precision in the charge, and no amount of elaboration could- have made them more plain.

The judgment is affirmed.


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    Vilsack’s Estate.

      Will — Construction—Advancements.
    Testator divided the residue of his estate into shares and gave to each of his children a share, but directed as to one son that one-half of the share should be given to the son absolutely, and the other half should be held by his executors for such son during his life with remainder over to his surviving children. Testator’s books showed certain advances of money to this son. • Certain notes of the son which the testator had indorsed and subsequently paid were not shown by the books, but appeared amongst testator's records by means of a card system. By his will testator directed as follows: “ I have heretofore given to several of my sons and daughters certain sums of money, and I will probably give further sums to them, and to others of my sons and daughters. Now I direct that all such sums of money as shall be noted in my books shall be taken into account before making any allotment, assignment or conveyance of any part of my estate, and said advancements, charged and adjusted by my said executors and the survivors and survivor of them, in such manner as to make an equal division of my said trust estate, so far as relates to said advancements, among all my sons and daughters per stirpes.” Held, (1) that the notes shown by the card system were advancements within the meaning of the will; (2) that the whole of the advancements to the son should be deducted from his whole share, and not merely from the one-half given to him absolutely.
    Argued Oct. 22, 1909.
    Appeal, No. 143, Oct. T., 1909, by Commonwealth Trust Company of Pittsburg, from decree of O. C. Allegheny Co., March T., 1909, No. 150, dismissing exceptions to adjudication in Estate of Leopold Vilsack, deceased.
    Before Fell, Br own, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Miller, J., filed the following opinion:
    The questions in this case are:
    (a) Whether notes indorsed by decedent for his son and paid by the estate are advancements, or charges against his distributive share; and
    (b) Whether a devise absolutely to the son of one-half of his share, and the direction that the remaining half shall be held in trust for him, involves the charge of the advancements against the whole or half of the share.
    Leopold Vilsack died December 26, 1907, leaving twelve children. His will is dated August 10, 1907; his wife having died prior, his entire estate is disposed of in the fifth clause, each child to have one-twelfth; a trust is created, which after specifically directing his trustees to have the full management and control of his estate, he directs that they shall apportion, allot, assign and convey to his surviving children as they attain the age of thirty, his or her aliquot part or share of said trust estate absolutely and in fee simple, “except to my son Leopold W. Vilsack, whose aliquot part or share shall be distributed as hereinafter provided.”
    By the sixth clause the direction is that one-half of the aliquot part or share of his son Leopold shall be conveyed to said son and that the other one-half shall be held in trust by his executors for his said son during his life, the income thereof to be paid to him and at his death said one-half so apportioned and allotted shall be conveyed to his surviving children, share and share alike.
    By the seventh clause he directs that the manner of effecting and equalizing his trust property shall be by apportionment, allotment or conveyance through and by his trustees, giving them absolute discretion and power with respect thereto.
    In the ninth clause testator uses the following language: “ I have heretofore given to several of my sons and daughters certain sums of money, and I will probably give further sums to them, and to others of my sons and daughters. Now I direct that all such sums of money as shall be noted in my books shall be taken into account before making any allotment, assignment or conveyance of any part of my estate, and said advancements, charged and adjusted by my said executors and the survivors and survivor of them, in such manner as to make an equal division of my said trust estate, so far as relates to said advancements, among all my sons and daughters per stirpes.” ' •
    Upon the decedent’s books is the assertion that certain sums were advanced to his children as follows: “The foregoing entries on pages 203 and 204 represent the amounts advanced each of my children to this date, August 1st, 1907.” This is signed by him and witnessed; there appears a charge, inter alia, against Leopold W. Vilsack of $23,500. ’ At the time of testator’s death he had indorsed or held notes of this son Leopold, to the extent of $53,500. All these- indorsements have been paid by the executors or trustees, and the notes are chai’ged against his share. In addition the testator held a mortgage for $12,000 against this son. No interest was charged on the advancement of $23,500; but interest was paid by the son upon the notes, and also upon the mortgage, up to and since the father’s death.
    These notes for which the testator was liable appear amongst his records by means of a card system, which shows the parties to the notes, the amount thereof, and the time when payable.
    Testator frequently stated to his son and to Jos. G. Vilsack, and it was so understood by him, that any indorsements or loans or debts owing by this son or any of his children unpaid, should be taken from the distributive share when that period arrived. The total amount charged by the executors and trustees against the share of Leopold W. Vilsack which includes the foregoing distinct advancements, the notes and the mortgage, is $89,000.
    A guardian ad litem was properly appointed to represent the interest of Leopold W. Vilsack’s children, whose contention is that:
    (a) Only the $23,500 are advancements, and
    (b) That the whole of this advancement and the notes and mortgages which are mere evidences of indebtedness must be taken from the half of his share to be allotted to him directly.
    The language of the will, empowering the executors to make the allotment of each child’s share, coupled with the direction to charge and adjust the advancements, is indicative of the discretion in them to charge against Leopold W. Vilsack’s share the whole of his indebtedness, as they have done.
    At the time the testator made note of the several advancements as charged in his book, he had not paid the indorsements, nor charged up the personal notes and the mortgage against this particular share; but he said in his will that he may “give further sums to them. ... All such sums of money as shall be noted in my books shall be taken into account before making any allotment.”
    The record of the indorsed notes kept by the card system, and the personal notes and mortgage are all written evidence of sums of money formerly given to, or for this son, and evidence of further sums to be given. When testator spoke of books he did not limit charges to any one book, or any particular kind of books; the card system of keeping record of the notes is another form of entering them into a regular book; the mortgage and the personal notes certainly do not need any further evidence by record in books; these existing as found, coupled with the language of the will, and especially with testator’s oral declarations to L. W. Vilsack and to Jos. G. Vilsack that all the money which he had received, or for which his father was liable himself, be taken from his share, establishes clearly the intent to charge all manner of indebtedness against each child’s share, otherwise no equal division was possible.
    The clear intent of the will being that each child’s indebtedness or advancements shall be adjusted as against his or her whole share of the estate, rebuts the contention that it should be charged only against the one-half share.
    Granted that the notes and mortgage represented business transactions between this son and his father, whereby the son was the father’s debtor, how can equality of distribution be adjusted if the debt is not deducted from the share? There is no trust estate until the indebtedness of the son is deducted from his share; only one-half of what is left constitutes the trust. Suppose this son’s indebtedness and. advancements should exceed his entire one-half of the absolute estate given to him, how would equality be attained, if the debt or advancements could only be collected from the one-half and the residue remain uncollected because protected by the trust?
    In Wainwright’s Est., 37 Legal Int. 104, a similar direction was held as authority for the deduction from a child’s share of all he owed to his father’s estate before a fund arose which constituted the trust.
    The whole of the one-twelfth of this estate constitutes Leopold W. Vilsack’s share; one-half to him absolutely; the income of the other one-half for life. There is no devise of one-half of one-twelfth to him as his share of testator’s estate; he being the primary object of testator’s bounty is entitled to the full benefit of the share, part absolutely and part by income, after deducting from his share what he has already received; this must be deducted from his whole share as devised and not from a part thereof.
    January 3, 1910:

      Error assigned was in dismissing exceptions to adjudication.

      George H. Stengel, for appellant.

      Wm. A. Stone, of Stone & Stone, for appellee.
   Per Curiam,

The majority of the court are of opinion that the decree appealed from should be affirmed for the reasons stated in the opinion of the orphans’ court.


author: Mr. Justice Brown,

text:
    Exler, Appellant, v. American Box Company.

      Bankruptcy — Illegal preference — Judgment—Striking off judgment — • Jurisdiction — Practice, C. P.

    1. In a proceeding to strike off the lien of a judgment as an unlawful preference, state and federal courts have concurrent jurisdiction under the bankruptcy act, but when relief is sought in a state court and its jurisdiction is exercised, the rules of practice as established in the courts of that state prevail.
    2. The court of common pleas has no power to strike off a judgment or to strike off the lien of the judgment against real estate, because the judgment was entered within four months of the bankruptcy of the defendant, and at a time when the defendant is alleged to have been insolvent, when the fact of insolvency is denied. The court may, however, open the judgment so that a jury may pass upon the question of the insolvency of the defendant on the day that the judgment was entered.
    3. It is only when the fact upon which the court is asked to strike off a judgment regular on its face, is admitted or not questioned that it may be stricken off.
    4. An order declaring the lien of a judgment void and the real estate of the defendant not bound by it is in effect an order striking off the judgment.
    Argued Oct. 22, 1909.
    Appeal, No. 147, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Allegheny Co., D. S. B. No. 205, March T., 1908, making absolute rule.to strike off lien of judgment in case of Joseph Exler v. American Box Company, and Th. Geisclhart, otherwise known as Theodore Geiselhart.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule to strike off lion of judgment.. Before Macfarlane, J.
    The opinion of the Supreme Court states the facts.

      Error assigned was order making absolute rule to strike off lien of judgment.

      John M. Freeman, with him D. T. Watson, Alexander Gilfillam and Harry F. Stambaugh, for appellant.
    When a trustee in bankruptcy asks relief in a state court, the controversy is determined according to the rules of procedure of the court in which the suit is brought: Bardes v. Hawarden Bank, 178 U. S. 524 (20 Sup. Ct. Repr. 1000); Westall v. Avery, 171 Fed. Repr. 626; Andrews v. Mather, 134 Ala. 358 (32 So. Repr. 738); Redd v. Wallace, 145 Ala. 209 (40 So. Repr. 407); Sheldon v. Parker, 66 Neb. 610 (92 N. W. Repr. 923); Lyon v. Clark, 129 Mich. 381 (88 N. W. Repr. 1046); Merritt v. Halliday, 107 N. Y. App. Div. 596; Loveland on Bankruptcy, sec. 203a.
    A judgment may not be stricken off except for irregularity appearing on the face of the record: Lawrence v. Smith, 215 Pa. 534; Hall v. Publishing Co., 180 Pa. 561; France v. Ruddiman, 126 Pa. 257; Davidson v. Miller, 204 Pa. 223; Stevenson v. Virtue, 13 Pa. Superior Ct. 103.
    On a rule to strike off or open a judgment, disputed issues of the fact must be submitted to a jury: Stahr v. Brewer, 186 Pa. 623, 627; Morgan’s App., 163 Pa. 195; Humphreys v. Rawn, 8 Watts, 78; Knox v. Flack, 22 Pa. 337.
    Depositions taken under a rule to strike off a judgment are not a part of the record and will not be considered by the appellate court: Reynolds v. Barnes, 76 Pa. 427; Philadelphia v. Jenkins, 162 Pa. 451; Stoke v. McCullough, 107 Pa. 39; Heist v. Tobias, 182 Pa. 442; Massey v. Clarke, 3 Penny. 401.

      January 3, 1910:
    There is no difference between striking off a judgment and declaring a lien null and void: Reynolds v. Barnes, 76 Pa. 427.

      Ralph Longenecker, of Gordon & Smith, for appellee.
    The lien of the judgment, not the judgment, became null and void and was deemed wholly discharged and released from the property affected thereby: In re Richard, 94 Fed. Repr. 633; Mencke v. Rosenberg, 202 Pa. 131; Clarke v. Larremore, 188 U. S. 486 (23 Sup. Ct. Repr. 363).
    The lien became absolutely void, not simply voidable, and was deemed wholly discharged and released from the property affected thereby.
    The proper remedy is the one that was adopted by the appellee in this case, namely, a rule to show cause why an order should not be made declaring the lien of the judgment null and void, and that the said lien was deemed wholly discharged and released from the property affected thereby: Humphrey v. Tozier, 154 Pa. 410; Blauvelt v. Kemon, 196 Pa. 128; Kelber v. Plow Co., 146 Pa. 485.
   Opinion by

Mr. Justice Brown,

On January 20, 1908, Joseph Exler, the appellant, entered a judgment in the court below against Theodore H. Geiselhart for 13,219.30 upon a warrant of attorney contained in a judgment note dated September 3, 1907, and payable three months after date. On March 5, 1908, involuntary proceedings in bankruptcy were instituted against Geiselhart, and on April 25, 1908, upon his having been adjudged a bankrupt, Justus Mullert was appointed trustee of his estate. On June 13, 1908, the trustee presented his petition to the court below, setting forth that at the time the judgment was entered Geiselhart was insolvent, that, having been entered within four months of the institution of the bankruptcy proceedings, its existence and enforcement would work a preference in violation of the bankruptcy act, and an order was asked for,, directing that it be stricken from the record so far as it affected the bankrupt estate of Geiselhart and the lot of land described in the petition. On July 25, 1908, the prayer of the petition was amended and the relief asked for was an order declaring the lien of the judgment to be null and void and releasing and discharging therefrom the property described in the petition. The rule granted on the amended petition was made absolute, on the ground that Geiselhart was insolvent on January 20, 1908, the court holding that if he was solvent at that time, the lien was valid, but, if insolvent, it was void.

In a proceeding like this, to set aside an alleged unlawful preference, state and federal courts have concurrent jurisdiction under the bankruptcy act, but when relief is sought in a state court and its jurisdiction is exercised,' the rules of practice as established in the courts of that state prevail: Collier on Bankruptcy, 7th ed., 406, 674; Bank of Commerce v. Elliott, 109 Wis. 648.

The judgment was regular on its face and the appellant denied the right of the trustee to have it stricken off for any reason dehors the record. The fact upon which the court was asked to so summarily dispose of it- — -the insolvency of Geiselhart on January 20, 1908 — was a disputed one, the supplemental answer averring unqualifiedly that on that date he was not insolvent within the meaning of the bankruptcy act. Under the unbroken line of our cases the court could not have stricken the judgment from the record. It is only when the fact upon which the court is asked to strike off a judgment, regular on its face, is admitted or not questioned that it may be stricken off. A judgment entered upon an admittedly forged warrant of attorney has no right to be on the record, and, upon admission of the forgery, the court having control of the record has power to strike it off. In such a case there is nothing to send to a jury: Humphreys v. Rawn, 8 Watts, 78; Bryn Mawr National Bank v. James, 152 Pa. 364; Long v. Lemoyne Borough, 222 Pa. 311.

But it is contended that the rule as to striking off judgments ought not to apply in the present case, because all the court was asked to do, and all that it did under the amended petition, was to declare the lien of the judgment void and that the property mentioned in the petition was not bound by it. We confess our inability to recognize this distinction. In declaring the lien to be null and void and that the real estate of Geiselhart was nob bound by it the court summarily struck it down. The very purpose of entering the judgment was to acquire the lien.' As an obligation of the debtor the judgment note was as valid unrecorded as recorded, but it could become absolute security to the appellant only by being recorded and thereby becoming a lien upon the real estate of the obligor. The lien thus acquired became the most valuable incident to the obligation, and, in striking it down, the practical effect was to strike off the judgment itself upon which it was based. With the lien gone the bare judgment remaining on the record was of no more value to the appellant as a claim against the bankrupt’s estate than a duebillor a demand note. The life was taken out of the judgment and it became a dead thing by the order of the court below. Its extinction was as complete as if the order had been one striking it from the record, and the rule with us as to such an order must prevail. It is to be remembered that the relief asked for was not equitable, but legal. The trustee stands upon what he alleges is his legal right under the bankruptcy act to have the lien of the judgment wiped out because Geiselhart was insolvent on the day it was entered. As this is the disputed question in the case, the court below was without authority to settle it. It was a question of fact upon which the alleged legal right of the trustee depended. In an equitable proceeding the learned judge might have found facts as a chancellor, but not so when he is asked on the common-law side of the court to enforce a legal right depending upon a disputed fact. Before such a right can be enforced the disputed fact upon which it depends must be established by the verdict of a jury.

The order of the court below is reversed and the rule to show cause discharged.


text:
    Garland Chain Company, Appellant, v. Rankin Borough.

      Sewers — Wrongful construction — Trespass—Waiver of trespass— Viewers.

    Where a borough, in constructing a sewer, does not follow the line prescribed by the ordinance authorizing the construction, a property owner injured by the illegal act may maintain an action of trespass against the borough; but if such owner petitions for the appointment of viewers, he cannot in the proceedings before the viewers recover for the tortious acts of the borough arising from the unlawful entry.
    Argued Oct. 22, 1909.
    January 3, 1910:
    Appeal, No. 106, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1901, No. 562, on verdict for defendant in case of Garland Chain Company v. Rankin Borough.
    Before Fell, Brown, Mestrezat, Potter, Elion and Stewart, JJ.
    Affirmed.
    Appeal from award of viewers. Before Shafer, J.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were in overruling the various offers of evidence referred to in the opinion of the Supreme Court.

      J. M. Stoner, for appellant.

      Jos. F. Mayhugh, with him Robert F. Graham and James A. Nugent, for appellee.
   Per Curiam,

On July 6, 1900, the borough of Rankin passed an ordinance providing for the location and construction of a sewer on land owned by the plaintiff. In constructing the sewer the courses and distances described in the ordinance were not strictly followed, and the sewer was built on one side of the line fixed by the ordinance and on the bed of an ancient water course in the bottom, of a gully that crossed the land and had a depth varying from ten to twenty-five feet. After the completion of the sewer the plaintiff filed a petition for the appointment of viewers to assess its damages, thus electing to waive the trespass committed and to proceed for compensation. The proceeding in the common pleas was on appeal from the report of the viewers.

It was claimed by the plaintiff that at the time of the passage of the ordinance it was arranging to make improvements of property, and that it had prepared plans with reference to the location of the sewer as fixed by the ordinance; that the change in location made the preparation of new plans necessary, causing delay and additional expense and loss of material that had been prepared, and forced upon it a plan of construction that injuriously affected the value of the property; and also that the discharge of sewage polluted the atmosphere around its works and the water in the river where its intake pipe was located. The assignments of error mainly relate to the overruling of offers of testimony to establish these claims.

The plaintiff could have treated the unlawful entry on its land outside of the location fixed by the ordinance as a trespass, and have maintained an action therefor. It chose not to do this and presented a petition for the appointment of viewers to fix the compensation to which it was entitled. To this petition it affixed a copy of the ordinance of condemnation of July 6, 1900, and the proceeding it instituted was in conformity with the act of assembly for the assessment of damages in cases of condemnation. In this proceeding there could be no recovery for the tortious acts of the borough arising from an unlawful entry. It was a ratification of the location as of the date of the ordinance: McClinton v. R. R. Co., 66 Pa. 404.

We find no merit in the assignments, and the judgment is affirmed.