text:
    Duplex Printing Press Company, Appellant, v. Clipper Publishing Company.

      Practice, C. P. — Reservation of question of law — Receiver’s sale — Replevin.

    In replevin by a vendor against a purchaser at a sale by the receiver of a conditional vendee where the real issue is which has the better title, the reservation of a point whether there is any evidence on wfifich the plaintiff can recover is improper in form. The question should be reserved explicitly, or on a request to the court to direct a verdict for the defendant. If the court, however, treats the reservation as if it were based upon such a direction, the error in form is not fatal.

      Contract- — Sale—Conditional sale- — Rights of creditors — Receivers.
    Whatever rights the vendor in a conditional sale may reserve as between himself and the conditional vendee, the goods in the hands of the latter are subject to levy by his creditor; nor is it material that the purchaser at a receiver’s sale of such goods had notice of the vendor’s continuing title.
    When on a creditor’s bill, a receiver is appointed for an insolvent corporation, he is not limited like an assignee for the benefit of creditors by the rights of the debtor corporation as to property held by it under a conditional sale, but has the rights of a levying creditor, and a sale by him passes a good title against the vendor irrespective of the purchaser’s status as a creditor either with or without notice.
    Argued Oct. 10, 1905.
    Appeal, No. 76, Oct. T., 1905, by plaintiff, from judgment of C. P. Westmoreland Co., May T., 1908, No. 68, for defendant non obstante veredicto in case of Duplex Printing Press Company v. Clipper Publishing Company, John S. Sell, receiver, and James K. Clarke, intervener.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Replevin for a printing press.
    McConnell, J., found tlie following facts :
    The property involved in controversy in this case was delivered to the Clipper Publishing Company on the footing of a conditional sale. The plaintiff proposed to build for that company and have delivered in running order at Greensburg, Pa., November 13, 1901, a printing press of defined mechanism and construction for the price of $6,500, $500 of which was payable on acceptance of the proposal, and $1,500 when the press was set up in good running order. It was further stipulated in the plaintiff’s proposal that the Clipper Publishing Company “shall give to us your notes for the balance of the purchase' price, dated and drawing interest payable annually at six per cent, per annum from the date of the shipment of the press,” as therein set out in detail.
    The terms of the proposal were accepted and agreed to by the Clipper Publishing Company, and delivery was made on that basis. There was no attempt made to hire or lease the press on any defined terms. Only terms of barter and sale are employed by the parties. Nothing that could constitute the transaction a bailment, as distinguished from a .conditional sale, appeal’s in the contract, unless it is to be found in the following concluding paragraphs of the proposal, viz : •
    “ You shall immediately, upon its receipt, insure and keep the press insured for our benefit, as our interest may appear, for $6,500, and send the policy to us, and the right, title and ownership to and of this press does not, and shall not, pass from us until all of the above payments have been fully paid. If you shall fail or neglect to pay any of the foregoing payments or notes for the space of thirty days after any of the above payments, interest or notes become due, then we or our representative may enter the premises wheresoever the press may be, and take the same into our possession, and remove it therefrom, at our discretion, and all the payments that may have been made previous to the time of such default in payment shall be held by us, under the legal principles applicable thereto, as a just compensation for the use of said press to the time of such default in payment, and for our loss and trouble in the matter.
    “ The delivery by you to us of any collateral, promissory note or commercial paper, either your own or of any third person, shall not be deemed a payment of any of the aforesaid sum until such is paid, and shall not prevent us from enforcing the foregoing agreement. When all payments hereunder shall have beeen made, then we will execute and deliver a bill of sale of said press.

      “It is to be understood that if this proposal be accepted both parties shall be governed solely by the terms and conditions herein expressed, and not by any verbal agreement.”
    The defendant became insolvent and a receiver was appointed. The receiver, under order of court, sold the press to James K. Clarke. In a replevin brought by the Duplex Printing Press Company against the Clipper Publishing Company, Clarke was allowed to intervene to protect his title.
    At the trial the court reserved the point whether there was any evidence on which the plaintiff could recover.
    The court entered judgment for defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      V. E. Williams, with him A. M. Sloan and W. F. Wegley, for appellant.
    A conditional sale is valid and binding between the parties thereto, or between the vendor or any third party except a creditor or a bona fide purchaser for value without notice, and James K. Clarke, not being a creditor but only a purchaser with notice, he takes only such title as the Clipper Publishing Company had in the machinery and subject to all the vendor’s equities therein : Simpson v. Shackelford, 49 Ark. 63 (4 S. W. Repr. 165) ; Kohler v. Hayes, 41 Cal. 455 ; Tomlinson v. Roberts, 25 Conn. 477; Roof v. Chattanooga Wood Split Pulley Co., 36 Fla. 284 (18 So. Repr. 597); Sims v. James, 62 Ga. 260; Lanman v. McGregor, 94 Ind. 301; Moseley v. Shattuck, 43 Iowa, 540 ; Lynds v. Winkler, 23 Kans. 697; Brown v. Haynes, 52 Me. 578; Armour v. Pecker, 123 Mass. 143.
    A fortiori under this rule a purchaser from a conditional vendee with notice can acquire no title : Waterston v. Getchell, 5 Me. 435; Gerow v. Castello, 11 Col. 560 (19 Pac. Repr. 505); Jones v. Clark, 20 Col. 353 (38 Pac. Repr. 371).
    On a sale by a receiver only such title and interest passes as was passed by the party whose interest was being sold. The rule of caveat emptor applies, and it is for the purchaser to ascertain what that interest is.

      Replevin will lie against a receiver to recover goods in his custody to which the defendant had no title or to which the plaintiff had a title superior to that of the vendee defendant: Corn Exchange Bank v. Blye, 101 N. Y. 303 (4 N. E. Repr. 635); Leighton v. Harwood, 111 Mass. 67.

      A. II. Bell, contra, filed no printed brief.
    January 2, 1906:
   Opinion by

Mr. Chief Justice Mitchell,

This is an- action of replevin to try the title to a perfecting press manufactured and delivered .by plaintiff to defendant under agreement that the title should not pass until the press was fully paid for. The purchaser (defendant) became insolvent but before plaintiff had retaken possession under its retained title, a creditor of the purchaser filed a bill, under which a receiver was appointed, who under direction of the court sold the press to- one Clarke. By leave of the court this suit was brought and Clarke allowed to intervene for the protection of his title.

At the trial the judge reserved the point whether there was any evidence on which the plaintiff could recover. While this is a permissible form of reservation in appropriate cases it was not a good or convenient one here. The real issue was whether the receiver’s sale gave Clarke a better title than that of plaintiff under its agreement, and it would have been much better to have reserved the question explicitly in that form. The facts not being disputed this was a question of law. Or the point could have been raised, though less explicitly, by a request to the court to direct a verdict for the defendant. This being reserved and the verdict taken for plaintiff the whole case would have been under control of the court, on the exact issue. The learned judge, however, in his opinion treated it on this basis and this being correct in substance the error in form was not fatal: Williams v. Crystal Lake Water Co., 191 Pa. 98.

The contract between the original parties here was clearly one of conditional sale,, and not of bailment: Ott v. Sweat-man, 166 Pa. 217. This indeed is practically conceded by the course of appellant’s argument. The references to decisions in other states upon the rights of the vendor as against creditors of the conditional vendee are therefore irrelevant. The law of Pennsylvania is settled that whatever rights the vendee may reserve as between liimself and the conditional vendee, the goods in the hands of the latter are subject to levy by his creditors : Brunswick, etc., Co. v. Hoover, 95 Pa. 508; Forest v. Nelson, 108 Pa. 481.

Nor is it material that Clarke, tbe intervening purchaser, bad notice of tbe vendor’s continuing title, which is the main ground of appellant’s argument. Clarke’s title docs not depend on his status as a bona fide purchaser without notice, hut on the powers of the receiver who made the sale.

We come, therefore, to the real point of the case, which is the title that passed to the purchaser by the sale. The authority of a receiver and the effect of his action depend almost entirely on the purpose of his appointment and the extent of his powers conferred by the decree appointing him. The paper-book of the appellant is quite defective in failing to print the hill on which the receiver was appointed, the decree appointing him, or even the order of the court authorizing the sale, and as the appellee furnished no paper-book we get no assistance from that quarter. The learned judge below, however, has stated the facts very clearly, that the proceeding in which the receiver was appointed was made part of the evidence in this case and “ the bill and answer show that complainants therein proceeded in behalf of themselves as creditors, and on behalf of the other creditors of the Clipper Publishing Company, on account of the alleged insolvency of the defendant, which allegation of insolvency was admitted by the defendant corporatipn. The appointment of a receiver was, therefore, professedly made for the protection of creditors of an insol vent corporation, and the order of sale by the receiver was made to subserve their rights. The authority-conferred on the receiver came not from the creditor or from the debtor, but from the law itself.”

From this it must be assumed that the receiver in this ease represented the creditors in whose interest he was appointed, and was clothed with all the powers the creditors would have had in acting for themselves.

Tams v. Bullitt, 35 Pa. 308, was an action by trustees under the insolvent law to recover money received by a third party for the use of the insolvent. The trustees were apparently appointed under the insolvent Act of June 16, 1836, P. L. 731, though the act is not mentioned in the report. By that act the insolvent before his discharge was obliged to make an assignment to trustees, and (sec. 34) such trustees were thereupon deemed to be vested with all the estate, rights, etc., of the assignor and capable of suing in their own names for all such estate, etc. In sustaining the action this court, per Strong, J., said, “ the right of plaintiffs to recover might well depend upon the question whether the transactions between William Tams and John Tams were honest or in fraud of creditors. As between the two brothers there may have been no right in John to recover money received by William, but if the money came to William’s hands in pursuance of a fraudulent arrangement the plaintiffs who were clothed with the rights of creditors could disregard that arrangement and recover when John Tams himself could not.” And again, “If by virtue of a fraudulent arrangement between John Tams and William Tams the money of the former came to the hands of the latter, assignees acting under a compulsory assignment could recover it.”

A voluntary assignee for -the benefit of creditors is a mere representative of the debtor and is bound where he would be bound: Wright v. Wigton, 84 Pa. 163 ; but Tams v. Bullitt establishes the distinction that when the assignee, trustee, or whatever he may be called, derives his authority, not from the mere voluntary act of the assignor but from the mandate of the law, even when enforced in the language of that case, through a “ compulsory assignment ” from the debtor, in the interest of the creditors, he represents the latter and is vested with their powers. The same principle applies a fortiori to a receiver deriving his authority not at all- from the debtor, but altogether from the court acting in the interest and for the enforcement of the rights of creditors.

When, therefore, on a creditor’s bill, a receiver is appointed for an insolvent corporation, he is not limited like an assignee for the benefit of creditors, by the rights of the debtor corporation as to property held by it under a conditional sale, but lias the rights of a levying creditor, and a sale by him passes a good title against the vendor, irrespective of the purchaser’s status as a creditor either with or without notice.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Cover, Appellant, v. Hoffman.

      Practice, C. P. — Trial—Reservation of question of law.

    The rules for reserving a question of law at a trial are: 1. The question of law reserved must be one of law purely, unmixed with any question of fact. 2. It must be one that rules the case so completely that its decision will warrant a binding instruction. 3. The question must be clearly stated, and the facts upon which it arises must be admitted on the record or found by the jury. A reservation that violates any of these rules is incurably bad, and a judgment entered in pursuance of it will be reversed whether an exception has been taken or not.
    A point which asks for binding instructions because on all the evidence the plaintiff is not entitled to a verdict, or because a particular fact has not been established by a preponderance of the testimony, is incurably bad.

      Contract — Sale—Agreement to repurchase.

    On an issue to determine what was due on a confessed judgment which had been opened without terms, it appeared that the plaintiff at one time owned and conducted a country store. He was elected to a county office for the term of three years, and sold the defendant the real estate for $3,000 and the stock of goods and fixtures at a price to be determined by an appraisement, and he received a judgment note in part payment. At the time he agreed in writing that at the end of three years, if the defendant at that time desired to sell, he would purchase the real estate and the stock of goods the defendant then might have in hand on the same terms and conditions on which he had sold. The defendant agreed that he would keep up the stock of goods and, in the event of a sale to the plaintiff, that he would pay a reasonable rental for the real estate for the time ho had occupied it. The defendant gave due notice of his desire to sell, as provided by the agreement, and tendered a deed for the real estate. The plaintiff failed to purchase, and the defendant’s heirs afterwards sold the real estate at private sale for $1,500. Held, (1) that if it should be established to the satisfaction of the jury that the plaintiff’s failure to comply with his agreement was without adequate reason, he was not thereby precluded from recovering anything on the judgment; (2) that the defendant’s obligation was not to pay the purchase money if he elected to retain the store, but to pay in any event and at fixed times; (3) that the plaintiff’s obligation was not to take back what he had sold at the option of the defendant and in discharge of his debt, but to repurchase the real estate, and to purchase a stock of goods which was not then in existence, but might be on hand at the end of three years; and (4) if by reason of the plaintiff's breach of the agreement the defendant sustained damages, he might set-off his loss against any balance due on the judgment.
    Argued Oct. 11, 1905.
    Appeal, No. 3, Oct. T., 1905, by plaintiff, from judgment of O. P. Somerset Co., Feb. T., 1897, No. 178, for defendant non obstante veredicto in case of J. M. Cover to use of B. S. Fleck v. Sarah J. Hoffman, Administratrix of Jacob Hoffman, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Issue to determine the amount due on a confessed judgment. • Before Kooser, P. J.
    The facts are stated in the opinion of the Supreme Court.

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

      W. H. Koontz, with him J. G. Ogle, for appellant.
    The question of law was improperly reserved: Clark & Thaw v. Wilder, 25 Pa. 314; Irwin v. Wickersham, 25 Pa. 316; Wilson v. Steamboat Tuscarora, 25 Pa. 317; Miller v. Hershey, 59 Pa. 64; Barwell v. Wirth, 61 Pa. 133; Wilde v. Trainor, 59 Pa. 439; Campbell v. O’Neill, 64 Pa. 290; Com. to use v. McDowell, 86 Pa. 377; Patton v. Pittsburg, etc., Ry. Co., 96 Pa. 169; Yerkes v. Richards, 170 Pa. 346 ; Gordon v. Norton, 186 Pa. 168; Casey v. Penna. Asphalt Paving Co., 198 Pa. 348.

      W. H. Ruppel, with him A. H. Coffroth, for appellee,
    cited as to the propriety of the reservation: Casey v. Paving Co., 198 Pa. 348; Williams v. Crystal Lake Water Co., 191 Pa. 98.
    January 2, 1906:
   Opinion by

Mr. Justice Fell,

The rules relating to the reservation of questions of law at the trial have been so fully considered in the recent cases of Fisher v. Scbaradin, 186 Pa. 565, and Casey v. Paving Co., 198 Pa. 348, that a discussion of them is needless. They are: 1. The question reserved must be one of law purely, unmixed with any question of fact. 2. It must be one that rules the case so completely that its decision will warrant a binding instruction. 3. The question must be clearly stated and the facts upon which it arises must be admitted on the record or found by the jury. A reservation that violates any of these rules is incurably bad, and a judgment entered in pursuance of it will be reversed whether an exception has been taken or not. The question reserved at the trial in this case was raised by points for charge presented by the defendant, one of which asked for binding instructions because on all the evidence the plaintiff was not entitled to a verdict; and another because a particular fact had not been established by a preponderance of the testimony. No one of these points presented a pure question of law, arising from undisputed or admitted facts and controlling the decision of the case.

The reservation was bad and the judgment must be reversed. Since the case goes back for trial, we now express our opinion on the main question involved, whether the failure of the plaintiff to comply with his agreement to purchase the real estate sold to the defendant and the stock of goods in his possession would preclude him from recovering any part of the consideration named in the note. The issue was to determine what was due on a confessed judgment which had been opened without terms. The plaintiff owned and conducted a country store. He was elected to a county office for the term of three years, and sold the defendant the real estate for $3,000 and the stock of goods and fixtures at a price to be determined by an appraisement, and he received a judgment note in part payment. At the same time he agreed in writing that at the end of three years, if the defendant at that time desired to sell, he would purchase the real estate and the stock of goods the defendant then might have in hand on the same terms and conditions on which he had sold. The defendant agreed that he would keep up the stock of goods and, in the event of a sale to the plaintiff, that he would pay a reasonable rental for the real estate for the time he had occupied it. The defendant gave dire notice of his desire to sell, as provided by the agreement, and tendered a deed for the real estate. The plaintiff failed to purchase, and the defendant’s heirs afterwards sold the real estate at pri.vate sale for $1,500.

If it should be established to the satisfaction of a jury that the plaintiff’s failure to comply with his agreement was with■out adequate reason, he is not thereby precluded from recovering anything on the judgment. The defendant’s obligation was not to pay the purchase money if he elected to retain the store, but to pay in any event and at fixed times. The plaintiff’s obligation was not to take back what he had sold at the option of the defendant and in discharge of his debt, but to repurchase the real estate and to purchase a stock of goods which was not then in existence but might be on hand at the end of three years. If by reason of the plaintiff’s breach of the agreement the defendant has sustained damages, he may set off his loss •against any balance due on the judgment. The case is one in which it will be difficult to work out the equities of the parties by a jury trial, and it will be well if they act on the suggestion of the. learned trial judge and agree upon a form of reference by which their respective rights can be better determined.

The judgment is reversed with a venire facias de novo. ■


author: Per Curiam,

text:
    Eichbaum v. Sample, Appellant.

      Contract — Pledge—Conditional sale — Stock—Equity.
    ■ An owner of bank stock obtained a sum of money from another person, and assigned to such person the stock upon an agreement that as a consideration for the transfer the stock should be transferred back to the owner upon payment of the money advanced with right in the owner to redeem the said'stock at any time he could raise moneys sufficient to pay the loan. Held, that the owner had a right to redeem the stock upon proper tender, whether the transaction should be considered as a pledge of the stock for a debt, or as a sale with an option in the vendor to repurchase it on specified terms.
    In such a case the fact that the time for redeeming the stock was left indefinite, is immaterial, inasmuch as the person advancing the money, whether pledgee or vendee, could bring the transaction to a close by a notice to pay or redeem in a reasonable time, or be barred.
    Where an owner of stock pledges it, or sells it with an option to repurchase on specified terms, he may maintain a bill in equity for a retransfer of the gtock- to himself, where it appears that the stock was not purchasable in the market, that it had no quoted or ascertainable market value, and that plaintiff held it as an investment, having a peculiar value to him greater than the market price at the time of transfer.
    Argued Oct. 18, 1905.
    Appeal, No. 105, Oct. T., 1905, by defendant, from decree of C. P. Lawrence Co., Sept. T., 1908, No. 5, on bill in equity in case of William W. Eichbaum v. Lutlier LI. Sample.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to compel a retransfer of bank stock. Before Porter, P. ,1.
    The opinion of the Supreme Court states the case.

      .Error assigned was the decree directing a retransfer of the stock upon payment of tlie sum of $7,002.26 to the defendant.

      Aaron L. Rasen and Richard F. Rana, for appellant,
    cited: Lauman’s App., 68 Pa. 88 ; Spering’s App., 60 Pa. 199 ; Morgan-Gardner Electric Co. v. Brown, 193 Pa. 351.

      Janies A. Gardner, with him John M. Gardner, for appellee,
    cited as to the remedy in equity: Sitgreaves v. Farmers’, etc., Bank, 49 Pa. 859 ; Smith v. Coale, 12 Phila. 177; Guinzburg v. H. W. Downs Co., 165 Mass. 467 (43 N. E. Repr. 195).
    January 2,1906:
   Per Curiam,

The court below found as a fact that “ about March 7, 1898, the plaintiff obtained from the defendant the sum of $6,390, being the then book value of tlie stock, which money was paid over to the Citizens’ National Bank to apply on its indebtedness, and thereupon the said stock certificates were released by said bank and were by the plaintiff transferred, assigned and set over in blank to the defendant, upon an agreement then and there made as a consideration for said transfer that the said stock certificates should and would be retransferred back and returned to the plaintiff upon payment by the latter of the said $6,390 with six per cent interest thereon, less the dividends received by the said defendant on said stock during the time he held the same, with right in the plaintiff to redeem the said stock at any time he could raise moneys sufficient to pay the loan.”

The court regarded the transaction as a pledge of the stock for a loan by defendant to plaintiff and this is probably the correct view of what the parties intended, though no agreement of plaintiff to pay is specifically found, and some doubt, therefore, might have arisen as to his obligation for the balance of the debt had the stock been sold without bringing enough to pay the advance in full. But this question is not material, as the transaction, if not a pledge of collateral for a debt, was clearly a conditional sale of the stock, i. e., a sale with an option in the vendor to repurchase on specified terms.

The fact that the time was left indefinite was not fatal. In either view of the transaction, the defendant, whether pledgee or vendee, could bring it to a close by notice to pay or redeem in a reasonable time or be barred: Sitgreaves v. Farmers’, etc., Bank, 49 Pa. 859, quoting 2 Kent’s Com. *582.

The court also found as facts that the stock of the Citizens’ National Bank is limited in amount; that fifty shares, or any part thereof, are not purchasable in the market; that they have no quoted or ascertainable market value; and. that plaintiff held them as an investment having a peculiar value to him greater than the market price at the time of the transfer. Under these circumstances the jurisdiction of equity to enforce a retransfer is well settled: Goodwin Co’s. App., 117 Pa. 514 (534-5) ; Northern Central Ry. Co. v. Walworth, 193 Pa. 207.

Decree affirmed.


text:
    Logan's Assigned Estate.

      Practice, C. P. — Rules of court — Departure from rule — Discretion.
    Where a matter is within the discretion of the court and the substance of a-rüle of-court is observed, a departure by the court from the form of the rule is immaterial.

      Auditors — Auditor’s findings of fact — Decedents’ estates — Husband and wife —Gift.

    A finding by an auditor that the proceeds of a life insurance policy on the life of a husband claimed as a gift by the wife was in fact the property of the husband when tmch finding is based upon competent evidence, and confirmed by the court below, will not be reversed by the Supreme Court in the absence of manifest error.
    Argued Oct. 18, 1905.
    Appeal, No. 57, Oct. T., 1905, by Hannah I. Moulds, from order of C. P. Beaver Co., Dec. T., 1904, No. 2, dismissing exceptions to auditor’s report in case of Assigned Estate of Logan & Moulds.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of Edwin S. Weyand, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.'

      J. II. Cunningham, for appellant.

      W. A. McConnell with him Alfred P. Marshall, David A. Nelson and Winfield S. Moore, for appellee.
    January 2, 1906:
   Per Curiam,

The appellant’s claim was presented at the audit of the first account of the receiver, testimony taken in regard to it, and the auditor passed upon it adversely, but before his report was confirmed the claim and the evidence upon it were withdrawn by leave of the court. Upon the audit of the receiver’s second account the claim was again presented, and after testimony had been taken in regard to it the claimant demanded an issue. This the auditor refused on the grounds that all the facts being before him there was no occasion for an issue, and further that the demand was too late. This raises the first question in the case.

The rule of the court below on the subject of auditor’s reports, provides for a hearing on exceptions to confirmation, etc., and that “ if the court think that a question of fact ought to be tried by a jury, it may order an issue or issues for the purpose.” It would have been more regular for the auditor to have followed the rule strictly and instead of refusing the issue himself, to have reported the demand and the evidence to the court. Whether or not the demand was too late was not clear, as it might depend largely on the court’s view of its previous order allowing the withdrawal of the claim from the first audit. But this error of the auditor, whether material or not, was cured by the subsequent action of the court which reviewed the whole matter and confirmed the result arrived at by the auditor. Where a matter is within the discretion of the court, as this clearly was, and the substance of the rule is observed, a departure by the court from the form of the rule is immaterial.

The second question is upon the sufficiency of the evidence to sustain the claim. The only testimony was by the appellant herself, her husband and their son, who testified that the policy was taken out by the husband for the wife, in pursuance of a previous agreement.between them ; that when it was delivered to him he took it home and gave it to his wife saying it was hers; that she put it in a box they had “ for keeping papers in ” and she retained that possession until it matured; that she “ looked after the payment of the premiums ” though they were paid with his money, because he “ had the money lying with ■ the firm, and drew on the firm and gave her the money ; ” and that he was not in debt at that time. Against this the evidence, as summed up by the auditor, was that the policy was taken out by the husband on his life, to mature in fifteen years, payable in casé of his death before maturity, to his wife, and at maturity, to himself. He lived until the policy matured; it was paid to him, in a check to his order, deposited in his name in the bank, though the deposit was claimed to have been actually made by the wife, and shortly thereafter, a part of it checked out by him and given to the firm of which he was a ■ member. Furthermore, part of the proceeds of the policy was given by Mr. Moulds to his son, a part used by him to pay a debt of his to the bank, and a part used for payment of the household expenses of the Moulds’ home. The auditor therefore found that the title to the money had never passed out of the husband, and accordingly rejected the claim.

On exceptions the court reviewed the whole case and though taking a somewhat more lenient view of the appellant’s testimony, ■yet came to' the same conclusion as the auditor. “ The claim is contradicted ” he said, “ by every record in the case,” and conceding that every word of the appellant’s testimony and her husband’s might be true, yet as a whole it is not clear and convincing, and falls short of the standard required to establish such a claim against creditors.

This conclusion was irresistible.

Decree affirmed.


text:
    Bryan, Appellant, v. Douds.

      Statute of frauds — Agreement relating to land — Parol agreement — Trust and trustees.

    A mere parol agreement to purchase lands at a sheriff’s sale, and to resell them, and after deducting the purchase money and expenses from the proceeds to pay over the balance to tho defendant in the execution, is within the statute of frauds, and cannot be enforced.
    Argued Oct. 19, 1905.
    Appeal, No. 102, Oct. T., 1905, by plaintiffs, from decree of O. C. Beaver Co., Sept. T., 1905, No. 3, dismissing bill in equity in case of Henry A. Bryan and Aaron Boone Bryan v. Oliver A. Douds et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Bill in equity for an account.
    The bill alleged that the defendant entered into an agreement with the plaintiffs to purchase the lands of plaintiffs at sheriff’s sale, and pay off certain judgments and mortgages against the same, and hold the said lands for the plaintiffs until the same could be sold, at which time he was to pay himself whatever moneys be had advanced for the purpose aforesaid, and to pay the balance to the plaintiffs.
    The plaintiffs further alleged that the lands were sold by the defendant for $22,000; that this is very largely in excess of the amount advanced by him in the purchase of the judgments and mortgages against the same, and the costs incurred by sheriff’s sale thereof, and that the mortgage of $10,000, payable July 1, 1905, with five per cent, from William J. Mellon and others, is part of the purchase money of a part of the lands. The plaintiffs pray that a preliminary injunction be issued against Oliver A. Douds to restrain him from in any way assigning or transferring the said mortgage to any one else than the said plaintiffs, and restraining the defendants from paying the said mortgage or any sum becoming due thereon to Oliver A. Douds until this matter is finally adjusted and an accounting by Oliver A. Douds to plaintiffs for such sums of money as he has received from the sales of said real estate over and above his advancements and expenses therein, and that he be required to assign to plaintiffs so much of said mortgage as shall be found upon hearing is due under the terms of the agreement aforesaid.
    To this bill the defendants demurred and alleged that the contract mentioned in the bill was void, for the reason that the bill does not show that the same was manifested by writing, and signed by the defendant, Oliver A. Douds ; and that the bill does not allege such facts as show a resulting trust in favor of the plaintiffs, for the reason that no fraud in obtaining the title is shown, or that the plaintiffs paid or furnished any part of the purchase money or the consideration of the lands, or any of them mentioned in the bill of complaint when the title thereto was acquired by the said Oliver A. Douds.
    Wilson, P. J., after stating the facts:
    The substance of plaintiff’s bill is found in the fourth paragraph, in this language : “ The said Oliver A. Douds undertook and agreed, being a cousin of your orators, to buy in said lands at a sheriff’s sale which would be made thereof, and hold the. said lauds for your orators until the same could be sold, at which time he would pay to himself whatever moneys he had advanced for the purpose aforesaid, and to pay the balance to your orators.” It is not alleged in the bill that the contract was reduced to.writing and signed by Oliver A. Douds. The Supreme Court in interpreting the act of 1858, in Barnet v. Dougherty, 32 Pa. 371, said:
    “ The plain meaning of this enactment is, that a trust in land can now be proved in no other way than by writing. The proviso, indeed, excepts from its operation resulting trusts, such as tbe law implies. A resulting trust, however, is raised only from fraud in obtaining the title, or from payment of the purchase money when the title is acquired. Payment of the purchase money, subsequently, is not sufficient to raise a legal implication of a trust as all the authorities show.”
    In Kellum v. Smith, 33 Pa. 158, the Supreme Court said: “ When the purchaser at a sheriff’s sale promises to hold for the debtor, and afterwards refuses to comply with his engagement the fraud, if any, is not at the sale, not in the promise, but in its subsequent breach. That is too late. It is abundantly settled, that equity will not decree such a purchaser to be a trustee, unless there is something more in the transaction than the mere violation of a parol agreement.”
    In unmistakable language in the case of Phillips v. Hull, 101 Pa. 567, the Supreme Court says: “ The plaintiff owned and was interested in judgments against the defendant in error aggregating about 111,000. The latter seeks to recover on a parol agreement made with the plaintiff in error by which he was to sell the land at sheriff’s sale, buy it, and hold it until a private sale thereof could bo made, and after the amount due to him was paid, the defendant in error was to have the residue. The latter was to advance nothing, to pay nothing. Without his assent the plaintiff could have sold. The defendant made no agreement that he would afterwards purchase the land at any price. If this were the whole case it is very clear the defendant in error could not recover. As the purchase was made, and the money paid by the same person, a refusal to fulfill the agreement is no more than the violation of a parol agreement, and equity will not decree the purchaser to be a trustee.”
    In the case of Dollar Savings Bank v. Bennett, 76 Pa. 402, the Supremo Court also said : “ It is essential to maintain this action that the promise or undertaking of the defendant should be founded upon a sufficient legal consideration — either some benefit to the promisor or some injury to the promisee. Nothing is clearer in principle or better settled by authority than that a mere naked verbal agreement by a purchaser at a sheriff’s sale, with his own money, that he will hold the premises in trust for the defendant — neither vests any equitable estate in the defendant under the statute which prohibits parol declarations of trust — so that no claim to the money could exist to him under the common count, nor does it give any ground for an action, being a mere nudum pactum. The mortgagees had a legal right to proceed • on their judgment-bond and to become the purchasers at the sale, — if they were the highest and the best bidders.”
    There is no allegation in this bill that there was any fraud practised by the defendant at any time, except in withholding the residue after payment of the amount advanced by him and his expenses. He being the owner of the judgment of Margaret A. Holt, and also the Gaily mortgage, purchased the property at sheriff’s sale, the plaintiffs allege, under this agreement to hold it for them; and there being no fraud at the time the purchase was made by the defendant of the properties in question at sheriff’s sale, his agreement to hold the same for them until it was sold, and give them the residue, was clearly a nudum pactum, and the plaintiffs have no ground of action.
    In the case of McCloskey v. McCloskey, 205 Pa. 491, the Supreme Court has further said: “ Though the trust is set forth as an express one, created by parol, the applicants seek to avoid the act of 1856, on the ground that a trust has resulted to them from the fraud of the appellees and is, therefore, within the exception of the act. But the only misconduct charged is that the appellees now refuse to recognize the trust, and that, notwithstanding their promise to be bound by it, they now declare they will not regard it. This is not enough to take the case out of the plain words of the statute. If no valid trust was created in the first instance by William McCloskey, because he did not declare it in writing, there are no trustees to be bound . by their promises, nor any cestuis que trustent to be protected. The statutes of frauds would soon become a dead letter if the mere broken promises of a trustee under a trust created by parol, who had agreed to carry it out, should, without more, be held sufficient to create a trust by implication within the exception of the act. It is only when a trustee refuses to perform or recognize a trust that courts are asked to declare its existence as against him, and if a trust, which has no legal existence under the statute, can be brought into being as within the exception simply because a trustee breaks his promise to perform, no case will be without the exception. The statute of frauds would be worse than waste paper, if a breach of the promise created a trust in the promiser, which the contract itself was insufficient to raise.
    And now, December 5, 1904, the demurrer is sustained and the bill dismissed at the costs of the plaintiffs.

      Error assigned was the decree of the court.

      William A. McConnell, for appellants.

      Robert Ritchie, with him R. 8. Holt and David K. Cooper, for appellees.
    January 2, 1906 :
   Per Curiam,

Decree affirmed on the opinion of the court below.


author: Mb Justice Elkin,

text:
    Beaver Valley Water Company v. Conway Borough, Appellant.

      Water companies — Boroughs—Permit from borough.

    A borough ordinance requiring a water company to obtain a permit from the town council before proceeding to lay its mains through the streets of the borough, is a reasonable regulation. The borough has a right to know what streets are to be occupied, how long they are to be torn up while the company is excavating and laying pipes; and at what place and in what manner the mains are to bo laid.
    Under such an ordinance the application must bo made to the town council and not to the burgess.
    Argued Oct. 19, 1905.
    Appeal, No. 125, Oct. T., 1905, by defendant, from decree of C. P. Beaver Co., June T., 1905, No. 9, continuing preliminary injunction in case of Beaver Valley Water Company v. Conway Borough.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction-.
    Wilson, P. J., found the following facts:
    1. The plaintiff, the Beaver Valley Water Company, is a corporation of the commonwealth of Pennsylvania, organized and existing under an act of assembly approved April 29,1874; and the defendants are a municipal corporation in the county of Beaver.
    2. The plaintiff company has a right to lay its water mains in the streets and alleys of the borough of Conway for the purpose of supplying water to the inhabitants, subject to only such regulations as may be lawfully imposed by the proper authorities of said borough.
    3. On March 14, 1903, ordinance- No. 6, was approved by the burgess, after it was enacted by the town council and provides as .follows :
    “An ordinance regulating the opening of streets in the' borough of Conway and providing a penalty for the violation thereof.
    “Be it enacted and ordained by the town council of the borough of Conway, and it is hereby enacted and ordained by the authority of the same, that it shall be unlawful for any person or persons, corporation or corporations, to enter upon any of the streets and excavate same for the purpose of laying pipe or pipes for the transportation of gas or water or any other substance without first obtaining a perndt from the town council of said borough granting them permission so to do.
    “ Any person or persons, corporation or corporations violating the provisions of the foregoing ordinance, shall upon conviction thereof before the burgess or any justice of the peace of said borough, forfeit and pay for the use of said borough a fine of not less than $25.00 nor more than $50.00, arid in case of failure to pay said fine so imposed, shall be committed to the county jail for a period of not more than one day for each dollar of fine so imposed and not paid.”
    4. At No. 13, June Term, 1903, in the matter of a bill in equity, filed by the borough of Conway against the Beaver Valley Water Company, this court adjudicated and determined the rights of the plaintiff hi the premises, and therein held and. decreed that the plaintiff company had the right to enter upon the streets and alleys of the borough of Conway without the consent of the town council, subject only to such reasonable regulations as the proper authorities of said borough should impose.

      5. On April 12, 1905, John T. Taylor, general manager of the plaintiff company, desiring to open certain streets in said borough for the purpose of laying water pipes to supply the inhabitants of said borough, at their request, with water, applied to the chief burgess for a permit and was refused, being informed at that time that the town council had directed him, the burgess, not to grant the permit, and further stated that the plaintiff company had no rights upon the streets of the borough.
    The court entered a decree continuing the preliminary injunction.

      Error assigned was the decree of the court.

      Forest G. Moorhead, with him Edwin S. Weyand, for appellant.
    The ordinance was reasonable: Freeport Borough v. Marks, 59 Pa. 253 ; People v. Cregier, 138 Ill. 401 (28 N. E. Repr. 812) ; Municipality v. Cutting, 4 La. Ann. 335; Oil City v. Trust Co., 151 Pa. 454; Gaslight Co. v. Rahway City, 58 N. J. Law, 510 (34 Atl. Repr. 3); Fisher v. Harrisburg, 2 Grant, 291 ; Commissioners v. Gas Co., 12 Pa. 318; Lansdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490; Water Co. v. Darby Boro., 199 Pa. 400.

      William A. McConnell, with him Lyon, McKee <f- Mitchell, for appellee,
    cited: Springfield Water Co. v. Darby Borough, 199 Pa. 400; Lansdowne Borough v. Water Co., 16 Pa. Superior Ct. 490.
    January 2, 1906:
   Opinion by

Mb Justice Elkin,

The only question arising on this appeal is whether the ordinance requiring the water company to obtain a permit from the town council before proceeding to lay its mains through the streets of the borough, is a reasonable regulation within the meaning of the act of assembly.

The defendant borough, through its town council, passed an ordinance which in substance provides that before any gas or water company shall enter upon the streets or alleys thereof for the purpose of laying mains or pipes, a permit must be obtained from the town council. It is contended here, and the court below so' held, that this is an unreasonable regulation, and therefore void and of no effect.

The plaintiff averred in the bill filed that the ordinance in question was unreasonable and was passed with the expectation and intention of depriving plaintiff from exercising its right to enter upon the streets and alleys of the borough. The learned court below granted a preliminary injunction on the ground that the ordinance was unreasonable because uncertain, and made the right of the plaintiff to enter upon the streets for the purpose of laying its water mains dependent upon the humor or caprice of the town council. The facts do not justify the conclusions reached in these respects. The town council cannot act arbitrarily or capriciously in such matters, and if any such attempt be made, the courts, if applied to, would promptly and effectively grant the necessary relief. In this case, however, defendant disavows any such intention, and there is nothing in the evidence to show that it is not acting in good faith. The borough has a right to know what streets are to be occupied ; how long they are to be torn up while excavating and laying pipes ; and at what place and in what manner the mains are to be laid.

It is proper and reasonable that these things should be considered when a permit is granted. What more reasonable regulation could be made than that a water company, about to enjoy the privilege and exercise the franchise of lajdng its mains on the streets of a borough, should first apply to the town council for a permit which must issue as of course upon compliance with such reasonable regulations as may be imposed by that official body. It is argued that the provisions of the ordinance were complied with by making application for a permit to the burgess, which was refused. The answer to this contention is, an application to the burgess is not a compliance with the ordinance. The application should have been made to the town council, and this was not done. The ordinance was a reasonable regulation imposed by the proper authorities and therefore valid. It was not complied with in the matter of obtaining a permit from the town council and the plaintiff is not entitled to the relief prayed for.

Order and decree of the court reversed at the cost of the appellee.


author: Mr. Justice Mestrezat,

text:
    Little v. Central District and Printing Telegraph Company, Appellant.

      Negligence — Telephone com,parties — Highway—Act of April 29, 1874, sec. 33, P. L. 73.
    The right of a telegraph or telephone company to place its poles on the public highways of the state is statutory, and while the Act of April 29, 1874, sec. 33, P. L. 73, conferring the franchise must not be construed so as to defeat the grant, yet the company must exercise its franchise within the statutory limitations.
    The legislature did not intend by the act of April 29, 1874, sec. 33, to deprive the public of the use of the highways for any proper and reasonable means of travel, but intended that the franchise granted the companies by the act should be exercised in subordination to the rights of the public on the roads of the state.
    Where a telephone company plants a pole so near to the traveled portions of a highway, that a person seated on the side of a hay wagon with feet extending about a foot from the wagon is injured by contact with the pole, the company will be liable for the injuries sustained.
    It is not of itself negligence for a person riding in a wagon on a public highway to permit his feet or arms to extend beyond the side of the vehicle. When one is injured while occupying such position, it is for the jury to determine whether he was, at the time, exercising the care required by the circumstances, unless the danger was so apparent that a reasonably prudent person would not have taken the risk. In that event, the court may hold him negligent as a matter of law.

      Negligence — Driver of private conveyance

    The negligence of a driver of a private conveyance cannot be imputed to a person riding in the vehicle, who was not the employer of the driver.
    Argued Oct. 19, 1905.
    Appeal, No. 155, Oct. T., 1905, by defendant, from judgment of C. P. Butler Co., Sept. T., 1905, No. 65, on verdict for plaintiff in case of Eleanor C. Little v. The Central District and Printing Telegraph Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Galbreath, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    At the trial the court, after reading to the jury section 33 of the act of April 29, 1874, charged, inter alia, as follows :

      [So, gentlemen, you will see under the law the defendant company had the right to place its poles along or upon the public highway, but in so doing it must not so place them as to incommode the public use of the highway. As you all know the public highways are created in the first instance and principally for the use of the travelers upon them and that public use must not be rendered dangerous or inconvenient by telegraph companies in placing poles upon it. Now, gentlemen, the .company had therefore the right to place its poles upon the public highway; it did not have the right and would not have the right to place the poles upon the traveled portion of the road. You understand what is meant by that, the part that customary travel occupies and takes on the public highway. It would not have the right to plant its poles on that portion of the highway and I would say it would not have the right to place its poles in such near proximity to the traveled track of the highway as to render the highway unsafe or inconvenient. In placing its poles so as to not incommode the use of the highway, therefore, we think it should not place its poles in a position to render inconvenient and unsafe public travel along the highway. If in placing them they are located upon the traveled portion of the public highway, the traveled track, that, gentlemen, it would go without saying, would be placing them where they would inconvenience, at least, the travel. If placed in such close proximity to the traveled or beaten track as to make probable or natural that a person driving along in the daytime or nighttime would meet with an accident and receive an injury such placing of it would be a placing so as to incommode the public use of the highway.] [2]
    [Now, gentlemen, the company had therefore the right to place its poles upon the public highway, it did not have the right and would not have the right to place the poles upon the traveled portion of the road. You understand what is meant by that, the part that customary travel occupies and takes on the public highway. It would not have the right to plant its poles on that portion of the highway and I would say it would not have the right to place its poles in such near proximity to the traveled track of the highway as to render the highway unsafe and inconvenient. In placing its poles so as to not incommode the use of the highway, therefore, we think it should not place its poles in a position to render inconvenient and unsafe public travel along the highway. If in placing them they are located upon the traveled portion of the public highway, the traveled track, that, gentlemen, it would go without saying, would be placing them where they would inconvenience, at least, the travel. If placed in such close proximity to the traveled or beaten track so as to make probable or natural that a person driving along in the daytime or nighttime would meet with an accident and receive an injury, such placing of it would be a placing so as to incommode the public use of the highway.] [3]
    [The question as to where this pole was placed with reference to the traveled or beaten track of the highway is a matter somewhat in dispute. On part of the plaintiff it is alleged this was placed in 1896 in what was at that time a portion of the traveled track of the highway. You have heard the witnesses who testified to that effect, I believe Mr. Shannon, possibly Mr. Cash-dollar and others. They say they have known the road, for quite a number of years and at the time when the pole was placed there it was placed on a portion of the public highway then used for the driving of vehicles over it. If that were true that would, we think, be an encroachment on the highway not authorized or intended by the act of assembly, or, if the company placed it in such near proximity to that traveled or beaten track as to naturally and probably lead to results such as complained of in this case, then we think that, gentlemen, would be placing it so as to incommode the public highway and such as not warranted by the act of assembly.] [4]
    [You remember also the testimony of the witnesses for the defendant as to where the pole was located with reference to the traveled track as now and formerly was. Some state there is grass growing on the location now. You will take that fact into consideration in connection with the other testimony, and the time that elapsed since the pole was placed there, and from all the testimony you will conclude whether or not that pole was placed upon the traveled track at that time, in which case we think it would be negligence on their part, or if not placed on was in such close proximity as to render probable such an injury as complained of in this case.] [5]
    [On the part of the defendant it is argued and contended here that it was negligent of Miss Little to be riding in the nighttime in the manner in which she was. Now, gentlemen, we may say to you that public roads are made for all sorts of proper travel upon them and with all kinds of vehicles such as are usually used by persons traveling upon the roads, and we may say to you that all have a right to travel upon the public highways in parties under conditions such as the parties were traveling under in this case, and have a right to travel if they wish to travel upon hay ladders with hay upon them and also in the nighttime.] [6]
    [So that in the location of the pole on the highway the defendant may be charged with the knowledge that persons may travel with all manner of vehicles reasonable and proper, and may travel in the nighttime as well as in the daytime, and further charged with the knowledge and fact that the nights sometimes are dark. All those things enter into the question of the determination of the defendant’s negligence, and also into the question of the determination of the plaintiff’s contributory negligence.] [7]
    [It has been argued and the court has been asked to say that it was negligence on the part of the plaintiff riding on hay ladders with her feet extending out for some little distance over the bow of the wagon. We feel that we could not say this as a matter of law. That is a matter of fact to be passed upon by the jury and it is for you to say from your knowledge of affairs and your experience as men in the country and passing over the highways as to whether or not this was a dangerous or negligent position for the plaintiff to assume in riding in that way at that time.] [8]
    [And I may say to you just here that under the law as it stands in this State at this time it does not seem that the negligence of the driver of a private conveyance can be attributed to those with him. It seems to be settled in this State that the others cannot be held for the negligence of the driver. It was a matter of some controversy for a long time, but now the law seems to be settled in that way. So that even if the driver in this case was negligent that negligence could not be charged up to the plaintiff in this case as contributory negligence on her part because she would not be held for the negligence of the driver.] [9]

      Verdict and judgment for plaintiff for $4,250. Defendant appealed.

      Errors assigned among others were (2-9) above instructions, quoting them.

      S. E. Bowser, with him A. L. Bowser, for appellant.
    -The burden of proving negligence is on the party alleging it. The law will not presume it for him. There is always a presumption against it: McCully v. Clarke & Thaw, 40 Pa. 399; P. & R. Railroad Co. v. Hummell, 44 Pa. 375; Whitaker v. Del. and Hudson Canal Co., 87 Pa. 34; Federal St. and Pleasant Valley Ry. Co. v. Gribson, 96 Pa. 83; Baker v. Fehr et al., 97 Pa. 70; Leidy v. Quaker City Cold Storage Co., 180 Pa. 323; Davidson v. Humes, 188 Pa. 335; Philadelphia & Reading R. R. Co. v. Boyer, 97 Pa. 91.
    Contributory negligence in anj'- degree on part of the plaintiff will prevent recovery in an action for damages : Monongahela City v. Fischer, 111 Pa. 9; Long v. Milford Twp., 137 Pa. 122; Dougherty v. Philadelphia, 210 Pa. 591; Township of Crescent v. Anderson, 114 Pa. 643 ; Dean v. Penna. Railroad Co., 129 Pa. 514; O’Toole v. Pittsburg & Lake Erie R. R. Co., 158 Pa. 99.

      Lev. MeQuistion, with him John II. Wilson, for appellee.—
    cited: McCully v. Clark, 40 Pa. 399; Reeves v. R. R. Co., 30 Pa. 454; R. R. Co. v. Zebe, 33 Pa. 318; Carroll v. R. R. Co., 12 W. N. C. 348; R. R. Co. v. Ogier, 35 Pa. 60; Robinson v. R. R. Co., 66 N. Y. 11 ; Finnegan v. Foster Twp., 163 Pa. 135; Borough of Carlisle v. Brisbane, 113 Pa. 544; Dyer v. Erie Ry. Co., 71 N. Y. 228; Masterson v. N. Y. C. & H. R. R. Co., 84 N. Y. 247.
    January 2, 1906:
   Opinion by

Mr. Justice Mestrezat,

On the evening of July 17, 1903, a party of twenty-seven young ladies and gentlemen drove from Gallery to Harmony, a distance of about eight or nine miles, in Butler county, to attend a social function at the latter place. The vehicle was a farmer’s ordinary hay wagon, and was drawn by two horses. The rack or ladders on the wagon were covered with hay and the members of the party were seated at different places on the hay. Frank Kramer drove the team on this occasion. He was a window-glass cutter by trade, but at this time was in the employ of the Ball & Cooper Coal Company, the owner of the horses and wagon which carried the party to Harmony. While he was the driver of the team, the evidence does not show that he was a member of the party, nor does it show all the persons who composed the party. Nor is it disclosed by the evidence whether the owner of the team furnished it gratuitously for the occasion or was compensated for its use, or whether Kramer was paid for his services as driver, or whether they were rendered without compensation.

The party left Harmony about midnight to return home. As the wagon was passing along the public road it came in contact with one of the defendant’s telephone poles — “ slightly, just enough to allow it to slide past ” — and Miss Little, the plaintiff, was struck by the pole, knocked from the wagon and injured. The pole was on the west side of the highway and she was seated on that side of the wagon with her feet extending about a foot out over the bow of the hay rack, which was over the rear wheel. Kramer sat in front and was driving in a slow trot. The road where the accident occurred is a public highway and runs north and south along a hill side which descends from east to west. The width of the traveled part of the road east of the pole, exclusive of the gutter on the east side, is about thirteen or fourteen feet and is practically level, except possibly a slight descent from the west to the east side with a slight rise in the middle. Brush grows on both sides of the road. The telephone line was constructed at this point in 1896.

The plaintiff’s statement avers that the road where the accident occurred “ is a regularly ordained, laid out, opened, used and traveled public highway,” and that the defendant company negligently and unlawfully placed the pole “ in and upon the said public road and upon the usual traveled portion of the said road and the said defendant company has negligently, wrongfully and unlawfully maintained the said telegraph or telephone pole in and upon the said public road and the traveled portion thereof for several years last past and yet continues to so maintain the same.” It is claimed that the alleged negligent action of the defendant company in placing its pole on the public highway caused the injury sustained by plaintiff for which this suit was brought.

On the trial of the cause, the court submitted to the jury, with very full instructions, the alleged negligence of the defendant company as well as that of the plaintiff. The result was a verdict for the plaintiff, and the defendant has appealed, claiming that the court erred in the admission of certain testimony, in the charge to the jury, and in the answers to its first, fourth, sixth and eighth points, the last of which requested binding instructions for the defendant company.

We have read very carefully the testimony and cannot see how the case could have been withdrawn from the jury. The credibility of the witnesses was for the jury and there was sufficient testimony, if believed, to warrant the finding that the telephone company had placed its telephone pole on the traveled portion of the highway, or in such close proximity to it as to endanger the safety of persons using the road, or, in the language of the act of 1874, “as to incommode the public use of said road.” Without quoting the testimony it is sufficient to say that several of the witnesses testified to this fact. While these witnesses vary in their estimates of the distance from the west side at which the pole stands within the traveled part of the road, they all say it is on the traveled part of the highway and that it is an obstruction to the use of the road by the public. The question was therefore for the jury.

The right of the defendant company to place its poles on the public highways of the state is statutory, and while the act conferring the franchise must not be construed so as to defeat the grant, yet the company must exercise its franchise within the statutory limitations. The authority by which a telegraph or telephone company is empowered to construct its lines on the public highways of this state is conferred by the Act of April 29, 1874, P. L. 92, 2 Purd. Dig. 2001, the thirty-third section of which provides that “such corporation shall be authorized. ... to construct lines of telegraph along and upon any of the public roads, streets, lands or highways .... within the limits of this state, by the erection of the necessary fixtures, including posts .... for sustaining the cords or wires of such lines, but the same shall not be so constructed as to incommode the public use of said roads, streets or highways . . . . ” There can be no doubt as to the proper interpretation and. the meaning of this legislation. The language is explicit and the purpose of the statute is manifest. The power to construct its lines “ along and upon ” a public highway is granted to the corporation in plain terms. Such was the evident purpose of the act. But equally clear and explicit is the language employed by the legislature in the enactment in prescribing a limitation upon the power of such corporation to enter and construct its lines upon the highways of the state. Its right to use the public highways in the construction and maintenance of its lines was qualified and prohibited to the extent that the public should not be inconvenienced in the proper use of the highways. Its line, says the act, “ shall not be so constructed as to incommode the public use of said roads, streets or highways.” This limitation made the use of highways by a telegraph company secondary and subordinate to that of the public for which the roads of the state were primarily intended. The legislature did not intend, by this legislation, to deprive the public of the use o'f the highways for any proper and reasonable means of travel, but intended that the franchise granted telegraph companies by the act'should be exercised in subordination to the rights of the public on the roads of the state. Such, we think, was the manifest purpose of the act of 1874. A like interpretation was put upon a similar statute of Ohio by the supreme court of that state in Cincinnati Inclined Plane Railway Company v. Telegraph Association, 29 Am. St. Rep. 559. In that case Mr. Justice Dickman, delivering the opinion of the court, says (p. 567) : “ The authority given by statute to a telephone company to construct its lines from point to point, along and upon any public road, under the continuing prohibition that ‘ the same shall not incommode the public in the use of such road,’ would plainly indicate an intention on the part of the legislature that the company shall exercise such franchise with reference to the comfort and convenience of the traveling public, and shall not, in any manner, abridge or impair the use, by the public, of the most approved methods of travel and transportation. And a reasonable interpretation of the statute would lead to the conclusion, that to impair the public enjoyment of an approved method of conveyance on the streets -would be in derogation of the statutory prohibition that the public shall not be incommoded in the use of the roads or highways.”

The errors assigned to the charge raise the question of the proper interpretation of the act of 1874, but we think the learned judge construed the act substantially in conformity with what is said above.

In the case at bar it conclusively appeared from the evidence that there was ample space along the highway for placing the pole in question without planting it in the traveled part of the road, or so near to it that it would inconvenience or interfere with those who might use the highway. The legal width of the road is thirty-three feet, and but seventeen feet were used for the roadway and for the gutter on the east side. The evidence did not disclose on which side of the traveled part was the unused portion of the thirty-three feet. It is apparent, however, that there was no necessity for placing the pole in a position that would obstruct the use of the road.

The plaintiff’s negligence was a question for the jury. It is not of itself negligence for a person riding in a wagon on a public highway to permit his feet or arms to extend beyond the side of the vehicle. When one is injured while occupying such position it is for the jury to determine whether he was, at the time, exercising the care required by the circumstances, unless the danger was so apparent that a reasonably prudent person would not have taken the risk. In that event, the court may hold him negligent as a matter of law. Here the testimony clearly sent the question to the jury. Nor can the driver’s negligence be imputed to the plaintiff under the facts disclosed by the testimony in the case. The evidence shows simply that at the time plaintiff' was injured she was being carried in a private conveyance owned by the coal company, which was driven "by a person engaged in the company’s service. Under such circumstances it is settled by recent decisions of this court that the negligence of the driver is not imputable to one who is injured while being carried in the conveyance : Carlisle Borough v. Brisbane, 113 Pa. 544; Dean v. Pennsylvania Railroad Co., 129 Pa. 514 ; Jones v. Lehigh & New England Railroad Co., 202 Pa. 81.

We see no error in the court’s answers to the defendant’s first, fourth and sixth points. If there was error in admitting the testimony of John Ficht, a witness for the plaintiff, which is the subject of the first assignment, it was cured by the immediate order of the court striking out the testimony.

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


text:
    Wilmington. Avenue.

      Road law — Assessment for damages — Widening—Grading.
    An assessment of damages, costs and expenses of a street improvement against land, is not illegal because there were included in one proceeding the opening of part of a street on a new location, the widening of the part that hadjoeen opened before, and the grading of the whole, where it appears that the whole improvement was provided for by one ordinance and done under one contract.
    Argued Oct. 18, 1905.
    Appeal, No. 47, Oct. T., 1905, by Joseph S. White, from order of C. P. Lawrence Co., March T., 1903, No. 33, dismissing exceptions to report of viewers In re Wilmington Avenue.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Wallace, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to report of viewers’.

      S. W. Dana, with him Robert K. Aiken, W. H. Falls and Richard F. Dana, for appellant.
    This case is clearly within the principle established by the following authorities: Morewood Avenue, 159 Pa. 20 ; Park Avenue Sewers, 169 Pa. 433 ; Beechwood Avenue Sewer, 179 Pa. 494 ; 54th St. Pittsburg’s Appeal, 165 Pa. 8; Witman v. Reading, 169 Pa. 375; Speer v. Pittsburg, 166 Pa. 86 ; Appeal of Verona Boro., 4 Pa. Superior Ct. 608; Orkney Street, 9 Pa. Superior Ct. 604; William Street, 18 Pa. Superior Ct. 266 ; Atlantic Avenue, 14 Pa. Superior Ct. 117; Winter Avenue, 28 Pa. Superior Ct. 853.

      James A. Gardner, city solicitor, for appellee.
    It is very usual to open, widen and grade a street in a single proceeding, and wlien said work is done at the same time, the rule is, that it is a single improvement, and all damages are assessable in the one proceeding; the one view covers the whole improvement and the landowner must present his whole claim for damages, both for opening and grading, — otherwise he will be estopped: Pusey v. Allegheny, 98 Pa. 522 ; Plan 166, 148 Pa. 414; Jones v. Bangor Boro., 144 Pa. 638; O’Brien v. Phila., 150 Pa. 589 ; Rodgers v. Phila., 181 Pa. 243 ; Clark v. Phila., 171 Pa. 30-34; Winter Avenue, 23 Pa. Superior Ct. 353; Righter v. Phila., 161 Pa. 73; Chatham Street, 16 Pa. Superior Ct. 103.
    January 2, 1906:
   Opinion by

This appeal is from an order confirming the report of viewers assessing the damages, costs and expenses of a street improvement. The single question raised by the appeal is whether the assessment against the appellant’s land is illegal because there were included in one proceeding the opening of a part of a street on a new location, the widening of the part that had been opened before, and the grading of the whole.

Wilmington road enters New Castle from the north, and formerly connected with Jefferson street at Wallace avenue. The line of the road was a few degrees west of the line of the street, and an obtuse angle was formed at the point of connection. Jefferson street was extended, of its full width of eighty feet, 350 feet north of Boyles avenue, and was opened and graded under a separate ordinance and contract, and the damages were assessed under a separate proceeding. At Boyles avenue the location of the road was changed for a distance of 500 feet so as to meet Jefferson street as extended. The new part was laid out of the width of sixty feet, and it was provided that the old part should be widened to correspond with this width. The result of the change was that in place of the road fifty feet wide an avenue, partly on new land and partly on the old roadbed, was laid out of the width of sixty feet in a straight line from Jefferson street to the north limit of the city. The opening of the new part, the widening of the old part, and the grading of the whole were provided for by one ordinance and done under one contract. .

The appellant’s contention is that the extension of Jefferson street and the construction of the new part of Wilmington avenue constituted one improvement, and the widening and grading of the old part of the avenue another and distinct improvement, and that in a proceeding to assess costs and expenses there could not be included with the latter the opening and grading on the new location. To this contention it is sufficient answer that the appellant has no just ground of complaint unless his property at the north end of the avenue was improperly assessed for damages for land taken at the south part, or for costs to which it should not have been subjected. No objection is based on this ground. There were no exceptions to the amount of the assessments made by the viewers, and it appears from their report that the properties at the north end of the avenue were not assessed to pay for the taking of land on which they did not abut. Presumably the costs of widening and grading were properly apportioned and assessed. But the improvement of Wilmington avenue north to the city line was a single improvement which included the opening and widening to established lines, and the grading for the entire length, including the bed of the old road. It was so treated by the city authorities in directing the work to be done and in contracting for it as a whole.

The order dismissing exceptions and confirming the report is affirmed at the cost of the appellant.


author: Mb,. Justice Fell,

text:
    Milleman, Appellant, v. Kavanaugh.

      Equity — Jurisdiction—Remedy at law — Partnership.
    The creditors of a deceased partner who were not creditors of the partnership, agreed with the surviving partner and the widow of the deceased partner, who was also his administratrix, that the surviving partner should purchase the partnership property, pay the partnership debts, and pay the administratrix whatever should be due to the deceased partner’s estate. He was also to furnish to the deceased’s creditors a statement of the amounts paid. By a second agreement dated one day after the first, between the creditors and the widow as an individual, and not as administratrix, it was agreed that if the interest of the deceased’s estate in the surplus after the payment of the partnership debts, was not sufficient to discharge the debt of the creditors, she would pay it with the profits to be derived from a new partnership between herself and the surviving partner. The creditors agreed that they would not demand payment of her in any other manner. Subsequently, the creditors, who were not paid, filed a bill in equity against the administratrix, the members of the new partnership, and a corporation that succeeded to the partnership, praying for an account of the second partnership and the payment of their debts. Held, that the bill was properly dismissed, inasmuch as the creditors’ remedy was against the widow alone, as an individual, and as to her they had an adequate remedy at law.
    Argued Oct. 19, 1905.
    Appeal, No. 75, Oct. T., 1905, by plaintiff, from decree of C. P. Butler Co., Dec. T., 1902, No. 3, dismissing bill in equity in case of H. C. Milleman and J. C. Milleman, trading as Milleman Bros., v. Mary S. Kavanaugh, administratrix of Win. Kavanaugh, deceased, Mary S. Kavanaugh et ah, trading as William Kavanaugh & Company, and the Wm. Kavanaugh Company, incorporated.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account. Before Patten, P. J.
    The opinion of the Supreme Court states the case.

      .Error assigned was decree dismissing the bill.

      J. B. Marshall, for appellant.
    In order to oust equity jurisdiction the remedy, or supposed remedy, at law must be full, adequate and complete : Kirkpatrick v. McDonald, 11 Pa. 387; Warner v. McMullin, 131 Pa. 370 ; Johnston v. Price, 172 Pa. 427 ; Gray v. Citizens’ Gas Co., 206 Pa. 303 ; Penna. R. R. Co. v. Bogert, 209 Pa. 589 ; Bierbower’s App., 107 Pa. 14.
    A court of equity will entertain a bill for an account where the bill does not contemplate a dissolution of the partnership : Hudson v. Barrett, 1 Parsons, 414.

      W. H. Lusk, with him W. I). Brandon, for appellees,
    cited : Williams’s App., 101 Pa. 474; Coatesville, etc., St. Ry. Co. v. Ry. Co., 206 Pa. 40; Bovaird v. Seyfang, 200 Pa. 261.

      January 2, 1906 :
   Opinion by

Mb,. Justice Fell,

The right which the plaintiffs seek to enforce by the bill filed arises from two agreements made under the following circumstances: William Kavanaugh had been one of three members of a partnership which had been dissolved by his death. Letters of administration on his estate had been granted to his widow, Mary S. Kavanaugh. One of the surviving partners proposed to purchase the property of the partnership, the purchase money to be applied to the payment of the partnership debts, and the balance, if there should be any, to be divided according to the interests of the partners. It was also proposed to form a new partnership, composed of the surviving partners and the widow of the deceased partner, to continue the business. The plaintiffs were creditors of the deceased. partner but not of the partnership, and their assent to the proposed method of closing the affairs of the partnership was desired.

Both of the agreements are inartificially drawn, but their meaning is obvious. The first, signed by the plaintiffs and the surviving partner who purchased the property and paid the partnership debts, recites the terms of the purchase and his agreement to pay to the administratrix whatever should be due her husband’s estate, and by it he agrees at the completion of the settlement to furnish the plaintiffs with a statement of the amounts paid with vouchers. To this method of winding up the partnership the plaintiffs agreed. The second agreement, dated one day after the first, is between the plaintiffs and Mrs. Kavanaugh, as an individual and not as administratrix. It recites the terms of the sale, the purpose of the surviving partners and Mrs. Kavanaugh to form a new partnership, and by it she agrees that if the interest of her husband’s estate in the surplus after the payment of the partnership debts is not sufficient to discharge the debt of the plaintiffs, she will pay it with.the profits she derives from the new partnership. The plaintiffs agree that they will not demand payment of her in any other manner.

The bill is against the administratrix, the three members of the new partnership, and a corporation that succeeded to the business of the partnership. Its prayers are for a decree directing the partner who purchased the property and paid the debts of the first partnership to render a statement showing the amounts paid; for an account of the affairs of the second partnership and a decree that it pay the plaintiffs the amount due the estate of the deceased partner after the payment of partnership debts, and Mrs. Kavanaugh’s share of the profits; for a decree that Mrs. Kavanaugh transfer so much of the stock she holds of the corporation as may be required to pay the plaintiffs’ claim; for the appointment of a receiver for the corporation. The demurrers are on the ground that the bill sets forth no ground of equitable relief, and that it is multifarious.

The purpose of the first agreement was to secure the consent of the plaintiffs to the sale of the partnership property and its only effect is to estop them as creditors of a deceased partner from asserting that the price was inadequate and that more could have been secured by the administratrix if the affairs of the partnership had been wound up and an account rendered by the surviving partners to the administratrix of the deceased partner. JBy the second agreement they secured an additional security in the personal obligation of Mrs. Kavanaugh to make up any deficiency out of the profits she should receive from the new partnership. She, and she alone, was to pay. The liquidating partner was not to pay them nor to pay her for their use, but to pay her as administratrix for distribution among all the creditors of her husband’s estate. There was no substitution of the liability of the liquidating partner nor of the new firm for that of the estate of the deceased partner, nor were assets received by either under a promise to pay. The new partnership had not been formed when the agreement was made, and the only obligation assumed by the partner who purchased the property was to furnish an itemized account, with vouchers, after the settlement of the business of the partnership. It is not averred that the business has been settled, nor that an account has been demanded and refused. The bill shows no right except against one of the defendants, for a breach of her promise to pay the profits arising from the new partnership. The remedy for this at law is plain and adequate. It is unnecessary to consider the other ground of demurrer.

The decree is affirmed at the cost of the appellant.


author: Mr. Justice Bbown,

text:
    South Western State Normal School's Case.

      Deed — Plan of lots — Streets and alleys — Dedication.
    A sale of lots according to a plan implies a grant or covenant to each purchaser that the streets and alleys on the plan shall be forever opened to the use of the public, and operates as a dedication of them to public use. Such dedication cannot be revoked by the vendor, and the purchaser of each lot abutting on one of the streets or alleys, as well as all other persons purchasing and owning lots on the plan, may assert the public character of the streets and alleys, and the right of the public to use them.

      Eminent domain — State normal school — Condemnation of streets — Act of July 10,. 1901, P. L. 632.
    There is nothing in the Act of July 10, 1901, P. L. 632, which authorizes a state normal school to condemn for a campus, streets and alleys dedicated by a plan of lots to public use.
    Property already devoted to public use is subject to eminent domain and may be taken for other public uses; but, while this is true, it cannot be taken without legislative authority expressly conferred or arising by necessary implication.
    Argued Oct. 20,' 1905.
    Appeal, No. 16, Oct. T., 1905, by Southwestern State Normal School, from judgment of Superior Court, April T., 1904, No. 55, affirming judgment of' C. P. Washington Co., May T., 1902, No. 13, dismissing petition for approval of bond in In re Acquisition of Real Real Estate for Campus Purposes by the South Western State Normal School.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Petition in condemnation proceedings for approval of bond.
    Appeal from judgment of Superior Court.
    The facts appear by the opinion of the Supreme Court and by 26 Pa. Superior Ct. 99.

      Error assigned was the decree of the Superior Court.

      T. F. Birch,, for appellant,
    cited: Long v. Fuller, 68 Pa. 170 ; Jessup v. Loucks, 55 Pa. 350 ; Pittsburg & L. E. R. R. Co. v. Bruce, 102 Pa. 23 ; P. W. & B. R. R. Co. v. Williams, 54 Pa. 103 ; Brocket v. Ohio & Penna. R. R. Co., 14 Pa. 241; Smedley v. Erwin, 51 Pa. 445; Market Co. v. R. R. Co;, 142 Pa. 580 ; Edgewood R. R. Co’s. App., 79 Pa. 257; Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.

      Norman E. Clark, with him W. S. Parker and Winfield Mc-Ilvaine, for appellee,
    cited : McLeod v. Central Normal School Assn., 152 Pa. 575 ; Market Co. v. R. R. Co., 142 Pa. 580; Quicksall v. Philadelphia, 177 Pa. 301; Smith v. Switch & Signal Co., 17 Pa. Superior Ct. 444; Trickett’s Boro. Law, 328 et seq.
    January 2, 1906:
   Opinion by

Mr. Justice Bbown,

The facts in this case appear in the opinion of the Superior Court, 26 Pa. Superior Ct. 99, and need not be repeated here. In its petition to the court below, the South Western State Normal School set forth that a plot of thirty-six lots, known as Morgan’s Addition to California, Pa., and recorded in the office of the recorder of deeds for Washington county, was lately laid out by Lewis W. Morgan, and lots were sold therefrom with reference to certain streets and alleys marked upon the said plan; that it had purchased twelve of these lots for campus purposes ; that through them run Main street, fifty feet wide, and other streets and alleys of different widths, all being on the said plan ; that after it had purchased these lots it proceeded to condemn the streets and alleys running through them and adjoining them on the north and south, and prayed, first, for the approval of its bond to secure to the owners of other lots on the plot having rights of way or easements over the said streets and alleys the damages sustained by its condemnation of them; and, second, that the title to the real estate, which it held within the boundaries described in its petition, be decreed to be free of any easement or right of way on account of the location of the said streets and alleys thereon, subject to the payment of such damages as may be agreed upon or assessed according to law. The petition was filed under the Act of July 10, 1901, P. L. 632, authorizing the condemnation of real estate needed for the use of state normal schools. Whether the act is invalid for the reason that the ground which it authorizes to be so taken is not for a public use, is not the question raised in this proceeding. It is whether the appellant is authorized by the act to do what it has undertaken to do.

. The sales of the lots according to the Morgan plan, which showed them to be on streets and alleys, implied a grant or covenant to each purchaser that the streets and alleys should be forever open to the use of the public, and operated as a dedication of them to public use. Such dedication cannot be revoked by the vendor, and the purchaser of each lot abutting on one of the streets or alleys, as well as all other persons purchasing and owning lots on the plan, may assert the public character of the streets and alleys and the right of the public to use them : Transue v. Sell, 105 Pa. 604 ; In re Opening of Pearl Street, 111 Pa. 565 ; Quicksall v. Philadelphia, 177 Pa. 301. The finding of the court below is that Main street has been used by the public as well as the lot owners for over twenty-one years as a way of access to and from the Monongahela river. What the appellant seeks to do is not to take land belonging to and in the use of a private owner, but is to condemn property already dedicated to public use and used by the public as public highways, and to devote the same to what it claims to be another public use. Property already devoted to public use, including franchises, is subject to eminent domain, and may be taken for other public uses ; but, while this is true, it cannot be so taken without legislative authority expressly conferred, or arising by necessary implication : Groff’s Appeal, 128 Pa. 621. There is no such express power conferred upon the appellant by the act of 1901, and surely none exists by implication in view of our cases upon power arising by implication. Of this power it is clearly and forcibly said by Mr. Justice Gordon : “ This plea of necessity is so frequently used to cover infractions of both public and private rights that, prima facie, it is suspicious, and must be closely scrutinized, especially where it is used to carry corporate privileges beyond charter limits. This plea, in the first place, must be tested by the rule, now of universal acceptation, that all acts of incorporation, and acts extending corporate privileges, are to be construed most strongly against the companies setting them up, and that whatever is not unequivocally granted must be taken as withheld. This rule is to be held in all its rigor where the attempt is so to construe a corporate grant as to interfere with a previous grant of the same kind: Packer v. The Railroad Co., 7 Harris, 211. It is true that a franchise is property, and, as such, may be taken by a corporation having the right of eminent domain, but in favor of such right there can be no implication unless it arises from a necessity so absolute that, without it, the grant itself will be defeated. It must, also, be a necessity that arises from the very nature of things, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity, such as this, to be used as an excuse for the interference with, or extinction of, previously granted franchises would be to subject these important legislative grants to destruction on a mere pretense, in fact, at the will of the holder of the latest franchise: ” Pennsylvania Railroad Co’s. Appeal, 93 Pa. 150.

For the reason that the appellant has not been authorized to condemn the streets and alleys set forth in its petition, the decree of the Superior Court affirming the decree of the court below is affirmed, with costs to the appellee.