text:
    Nicholson v. Ertel, Appellant.

      Reed estate — Sales—Contract of sale — Construction—Restriction of remedies — Defect in title — Abatement in price — Specific performance — - Equity.

    Where a contract for the sale and purchase of certain lots at a sum fixed, provides that in case the title should be defective in any manner, the vendors would take all necessary steps to have the defect remedied, and should they not be able to do so within a reasonable time, the purchaser should have the option of taking the title as it was, or having the money paid on account refunded, and the vendors notify the vendee of their inability to remove certain restrictions from the property, the failure of the vendee within a reasonable time thereafter to exercise his right to take the property subject to the restriction and make payment therefor at the stipulated price within the contract time, voids all his rights under the contract save the right to have the money paid on account refunded, and such vendee is not entitled to maintain a bill for specific performance with abatement in price for the defect in title.
    Argued Jan. 23, 1911.
    Appeal, No. 288, Jan. T., 1910, by Harry F. Ertel, from decree of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 4,939, on bill in equity in case of Elizabeth Van Hoesen Nicholson, executrix, etc., et al. v. Harry F. Ertel, Felix Isman and William S. Vare, recorder of deeds for Philadelphia county.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for the cancellation and surrender of an agreement of sale of real estate. Before Audendried, J.
    The facts as stated by the Supreme Court were as follows:
    The contract out of which this dispute arises was for the sale and purchase of certain real estate in the city of Philadelphia entered into October 9, 1909. The purchase price was $80,000. Of this sum $3,000 was paid as hand money; $12,000 was to be paid on the execution and delivery of the deed, and the remaining $60,000 was to be secured by mortgage on the premises and was payable within five years. Settlement was to be made within sixty days from the date of the contract, and time was to be considered as of the essence of the contract. The special stipulation in the contract which here calls for consideration is as follows: “Title to be good and marketable, and such as would be insured by a title company acceptable to the purchaser at the regular fixed charges, and to be clear of all incumbrances, claims, liens, restrictions, easements, demands and charges whatsoever. Should the title be defective in any manner the vendor will take all necessary steps to have such defect remedied, and should vendor not be able to do so within a reasonable time then the purchaser shall have the option of taking the title as it is or having the money paid on account refunded; except that the property is sold and purchased subject to the existing leases.” Soon after the execution of the contract the vendors discovered that the property was subject to certain building restrictions imposed for the benefit of the adjoining lots owned by others. The vendors had no knowledge of the existence of these restrictions when the contract of sale was entered into. On October 18 following, they notified the agent of the vendee that the property was subject to certain restrictions, and subsequently on the 28th like notice was served on the vendee personally, and he was asked whether he desired to accept the property subject to the restrictions at the stipulated price or desired to abandon his purchase and receive back the money he had paid. To this inquiry the vendee made no reply. Between the dates of these notices vendors applied to the owners of the adjoining lots for a release of the restrictions. The owner of one of the lots positively refused to release on any terms whatever. Since the restrictions were for the benefit of both the adjoining lots, concurrence by all parties in interest was necessary to effect an acquittance of the servient property, and the unqualified refusal of one defeated the vendors’ effort to this end. On December 15, vendors notified the vendee in writing of their inability to secure the release of the restriction, and again informed him that he might either take the property subject to the restrictions at the contract price, or have the money he had paid refunded. A check for that sum was accordingly sent him. The notice contained a request that he satisfy of record the contract of sale which on November 6 he had caused to be recorded in the office for the recording of deeds in Philadelphia county. The check sent to the vendee was retained by him, but not presented for payment. On February 8, 1910, vendors filed their bill setting forth the facts as above stated and claiming that the agreement of sale so recorded was a cloud upon their title which the defendants had no right in law or equity to create or maintain, and praying that the defendants be required to cancel and surrender the agreement, and that the recorder of deeds be required to mark the record of the same “canceled of record.” The answer of defendants, while not admitting, did not deny any of the material averments in the bill, but insisted on the defendants’ right notwithstanding to retain the agreement of sale, and the right to keep and maintain the same as a recorded instrument for their own protection, inasmuch as the default thereunder was the plaintiffs’ own default, in failing to convey such title as was required under the agreement. The answer further averred that defendants had been at all times and still were ready and willing, as the plaintiffs had been fully informed, to settle for said property according to the terms of the agreement, even subject to the restrictions which qualified the plaintiffs’ title, with an abatement from the purchase money of such amount as the court might consider would fairly compensate for such defective title. At the same time defendants filed a cross bill asking that the vendors be required to convey the property in question with such an abatement from the purchase price as would compensate for the incumbrances in the title. The answer denied 'the defendants’ right to specific performance of the contract. Issue being joined, the case was heard, with the result that the cross bill was dismissed, and a decree entered requiring the surrender and cancellation of the original contract and the return of the money paid. In addition to the facts stated above, the court found, (1) that the depreciation in the market value of the property in consequence of the building restrictions was one-sixth the price the vendee had agreed to pay for an unincumbered title; (2) that the vendors had done all it was incumbent upon them to do under the agreement in the effort to convey an unincumbered title; (3) that the period between December 15, 1909, and the date when the vendors notified the vendee of thteir inability to secure the release of the restriction, and February. 8, 1910, the date of filing of plaintiffs’ bill, was more than a reasonable time for the vendee to accept vendors’ title to the property subject to the restriction at the contract price. A decree followed dismissing the defendants’ cross bill, and directing the surrender and cancellation of the written agreement upon payment of the $3,000 check. From that decree the defendants appealed.

      March 20, 1911:

      Error assigned was decree of court.

      Morris Wolf, with him Horace Stern, for appellants.—
    Appellants have the right to demand a conveyance of the title with deduction for the restrictions: Erwin v. Meyers, 46 Pa. 96; Barnes’s App., 46 Pa. 350; Napier v. Darlington, 70 Pa. 64; Burk’s App., 75 Pa. 141; Latta v. Hax, 219 Pa. 483; Hamory v. Sargent, 25 Pa. C. C. Rep. 191.
    The wording of the contract did not limit the right of the vendee to the avoiding of the contract: Gillis v. Hall, 7 Phila. 422; Hunt v. Smith, 139 Ill. 296 (28 N. E. Repr. 809); Leatherman v. Oliver, 151 Pa. 646; Mathews v. Peoples’ Nat. Gas Co., 179 Pa. 165; Cape May Real Estate Co. v. Henderson, 42 Pa. Superior Ct. 1.

      John G. Johnson, with him James Wilson Bayard, for appellees.
    Whether specific performance of a contract for the sale of land will be decreed depends upon all the circumstances of the case: Henderson v. Hays, 2 Watts, 148.
    Ordinarily time is not of the essence of the contract, but it has been uniformly held in this state ever since the case of Gable v. Hain, 1 P. & W. 264, that parties may make the time of performance of the essence of the contract, and that, where they have done so, equity will not relieve from the effects of nonperformance at the time stipulated, and specific performance may not be enforced in favor of the defaulting party.
   Opinion by

Mr. Justice Stewart,

This was a contract for the sale and purchase of certain lots in the city of Philadelphia. It provided that in case the title should be defective in any manner the vendors would take all necessary steps to have the defect remedied, and should they not be able to do so within a reasonable time, the purchaser should have the option of taking the title as it is, or having the money paid on account refunded. The title being found subject to certain restrictions which the vendors were unable to remove, they filed their bill for a cancellation of the contract. The vendee filed a cross bill for specific performance with abatement in price for the defect in the title. A full recital of the facts appears elsewhere. The learned chancellor thus states his conclusions as to the law of the case: “The defendant had on December 15, 1909, the right to take the plaintiffs' lots at the contract price of $80,000 subject to the restriction which binds No. 114 South Twelfth street or abandon his purchase thereof and have his payment of $3,000 refunded to him. He had no right under the agreement of sale to insist on a conveyance of the lots at a price lower than the contract price, viz., $80,000.” “As the defendant failed within a reasonable time after notice of the plaintiffs' inability to remove the building restriction on No. 114 South Twelfth street to exercise his right to take a conveyance of the lots subject to the said restriction, and make settlement therefor at the stipulated price within the time provided for by the agreement of October 9, 1909, all his rights under that agreement lapsed save the right to require the return of the sum of $3,000, which he had paid to the plaintiffs. In view of the fact that he received and still retains a check for that amount, it cannot be said that the recording of his agreement with the plaintiffs in the office for recording deeds, etc., was a step necessary to enforce or secure his rights thereunder. The recording of that instrument was, under the circumstances, unjust and inequitable, constituting a cloud upon the plaintiffs to the property therein referred to.” These conclusions rest upon a construction of the agreement which necessarily limits the vendee’s remedies for failure of title, confining him to the alternative in the contract, acceptance of such title as the vendors could make at the stipulated price, or the abandonment of the contract upon the return of the money paid. It is the appellant’s contention that the language of the agreement does not import an exclusion of such remedies at law or equity as a vendee would be entitled to for a breach of a covenant to convey on the part of a vendor. The argument in support of this view strips of all meaning and force the provision in the contract that "should the title be defective in any manner, the vendors will take all necessary steps to have such defect remedied, and should the vendor not be able to do so within a reasonable time the purchaser shall have the option of taking the title as it is, or have the money paid on account refunded.” With much apparent confidence it is asserted that this provision in the contract is wholly superfluous, since a vendee always has, in a case where the title proves defective, the option of taking the title as it is or having the money paid on account refunded, and that therefore the provision is entitled to no consideration. The argument very plainly begs the question. We may concede that the provision secures to the vendee no remedy which he would not have had otherwise; but it by no means follows from this that the provision is unmeaning and superfluous. Any such conclusion would necessarily eliminate from all consideration in this connection the vendors, and could rest only on the unwarranted assumption that except as the provision advantages the vendee it is to be disregarded. Any restriction upon a vendee’s remedy in case of a vendor’s default is manifestly to the advantage of the latter, and if a purpose to so restrict can fairly be derived from the language of the agreement between the parties, such purpose being as legitimate as any other, it is to be given effect. Since it is impossible to derive from the stipulation here any purpose to advantage the vendee, we must either derive from it a purpose to advantage the vendor in some way, or treat the clause as unmeaning and superfluous. We are at liberty to adopt the latter view only in case we find the former unreasonable and repugnant to an evident intent. The parties have themselves inserted each provision in the contract, and accordingly, if possible, the contract must be construed as to give effect to each provision inserted therein: Title Ins. & Trust Co. v. Ellis, 192 Pa. 321. While this contract does not in express terms limit the vendee to any particular remedy for the vendor’s default, yet no other purpose being discoverable from what is expressed, and the language being sufficient to warrant a reasonable inference of an intention to restrict, such construction must prevail, for it is a settled rule of construction that the insertion in a contract of one or more things of a class implies the exclusion of all not expressed, although all would have been implied had none been expressed. In thus interpreting the present contract it is given an effect which defeats the appellant’s whole contention. We entirely concur in the conclusions reached by the learned chancellor, that inasmuch as the appellant failed within a reasonable time after notice of the vendor’s inability to remove the restriction from the property to be conveyed to exercise his right to take subject to the restriction, and make payment therefor at the stipulated price within the time provided by the contract, all his rights under the contract save the right to have the money paid refunded, lapsed. The view we have thus taken of the case makes it unnecessary to pass upon the question of abatement in price for defect in title. The appellant himself being in default, and his rights under the contract being forfeited, this question does not arise.

The assignments of error are overruled, the appeal is dismissed and the decree is affirmed.


source: Caselaw Access Project

author: Me. Justice Elkin,

license: Public Domain

text:
    Petition of Liberty Bell Lodge.

      Corporations — Charters of first class — Beneficial and protective organizations — Amendments to charter — Change of name — Subordinate lodges— Act of May 8, 1899, P. L. 160.

    1. A petition for an amendment of the charter of a beneficial and protective organization by having its name changed must be refused where it appears that prior to its incorporation the society had existed as an unincorporated body for a period of several years subject to the laws, rules and regulations of a certain fraternal organization, that after its incorporation some controversy arose between it and the supreme lodge of the order, that some of its members and officers were endeavoring to transfer whatever corporate rights and franchises it possessed as a subordinate lodge to another fraternal organization by merely making application to the court for a change of name and that the petition presented in court asking for the amendment was signed by the officers and was under the seal of a subordinate lodge of such other fraternal organization.
    2. When application is made to alter or amend the charter of a corporation it must appear that it is the act of the corporation in its corporate capacity, and not the act of individual members thereof, or of another organization.
    3. Since the passage of the Act of May 2,1899, P. L. 160, the change of the name of a corporation of the first class is to be treated as an amendment to the charter and the proceedings to accomplish this purpose are the same as if application were made to improve, amend or alter the charter in any other respect, and it is therefore not necessary to serve notice upon the auditor general before filing the petition in court asking that the name of the corporation be changed.
    Argued Jan. 30, 1911.
    Appeal, No. 359, Jan. T., 1910, by Liberty Bell Lodge No. 42, Order of Shepherds of Bethlehem, from decree of C. P. Lehigh Co., Jan. T., 1909, ordering a change of corporate name in Re Petition for Amendment of Charter of Liberty Bell Lodge, No. 42, Order of Shepherds of Bethlehem, certified to the Supreme Court by the Superior Court at No. 139, Oct. T., 1910.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition for an amendment to a charter of a corporation of the first class. Before Geo. W. Aubrey, Esq., as master.
    The facts appear in the opinion of the Supreme Court.
    The court decreed the amendment as prayed for.

      Error assigned was the decree of the court.

      Milton C. Henninger, with him W. LaMonte Gillette, for appellants.

      Claude T. Reno, with him Richard W. Iobst, for appellees.

      March 20, 1911:
   Opinion by

Me. Justice Elkin,

This proceeding was instituted in the court below for the purpose of securing an amendment to the charter of a beneficial and protective organization by having its name changed. The- pow;er of the courts to alter and amend charters of corporations of the first class, including the change of name, has been expressly conferred by statute. It was, .therefore, within the jurisdiction of the court below to hear and determine the questions presented by this record. . However, we are not convinced by an examination of the record that a prima facie case upon which to base a decree amending the charter of the corporation by changing its name, was made out. The charter name of the corporation which it is sought to have changed is “Liberty Bell Lodge No. 42, Order of Shepherds of Bethlehem.” Prior to its incorporation it had existed as an unincorporated society for a period of several years subject to the laws, rules and regulations of the fraternal organization known as the Shepherds of Bethlehem. After its incorporation some controversy arose between the subordinate and supreme lodge of that order and while the nature of the controversy does not appear in this record, nor is it either material or important that it should, it does appear that some members and officers of the subordinate lodge undertook to transfer whatever corporate rights and franchises the subordinate lodge possessed to another fraternal organization known as the Shepherds of America, and this result was sought to be accomplished by simply making application to the court for a change of name. The petition presented in the court below asking that this thing be done is signed by the officers and is under the seal of Liberty Bell Lodge No. 6, Shepherds of America. In other words, upon the face of the record it appears that a subordinate lodge of the Shepherds of America, not yet incorporated under our statute, asks the court to amend the charter by changing the name of an incorporated subordinate lodge of a distinct and separate fraternal organization. This court has uniformly held that when application is made to alter or amend the charter of a corporation, it must appear that it is the act of the corporation in its corporate capacity, and not the act of individual members thereof. The petition in this case does not comply with this rule. Again, it is a general rule recognized by courts and by officers of the commonwealth having the power to alter and amend charters, not to exercise the power so as to change the original purpose for which the corporation was created. In the present case the effect of granting a change of name is to entirely change the original purpose for which the charter was granted. This cannot be done. As originally chartered, Liberty Bell Lodge No. 42 was a component part of the Order of Shepherds of Bethlehem, but if the change of name is allowed to stand it is intended by this simple process to make it a component part of the Shepherds of America, This changes the entire purpose of the original charter and we know of no authority to warrant such a result by a simple change of name.

We do not agree with the contention of appellant that it was necessary to serve notice upon the auditor general, as required by the Act of April 20, 1869, P. L. 82, before presenting the petition to the court. Such notice was required by that act and this court held, In re Application of First Presbyterian Church for Change of Name, 107 Pa. 543, that failure to serve the notice was fatal to such a proceeding. That case was decided in 1884 but since that time the Act of May 2, 1899, P. L. 160, was passed. This later act is a substantial re-enactment of the act of 1869, except that the provision requiring notice to be served upon the auditor general was omitted. This omission is significant, and as we view the two statutes, the intention of the legislature to re-enact the provisions of the act of 1869, omitting the proviso which required notice to be served upon the auditor general clearly appears. If this was not the intention of the legislature the act of 1899 served no purpose at all, in so far as conferring power upon courts to change the name of a corporation is concerned. The act of .1899 gave this power in almost the same words as the act of 1869. As to corporations of the .first class there is no reason or necessity for serving notice of change of name upon the auditor general. These corporations do not pay a state tax. They are not required to file reports in the office of the auditor general. The accounting officers of the commonwealth do not exercise any authority or supervision over corporations not for profit. The auditor general has no duty to perform in connection with the change of the name of this class of corporations.. The records of his office are not public records in the sense of affecting the public, or those dealing with the corporation, with notice. Under such circumstances it was a vain and useless thing to serve notice of a purposed change in the name of a corporation of the first class upon the auditor general. Of course, when the legislature provided, as it did provide in the act of 1869, for the service of such notice before proceeding in the court of common pleas to have the corporate name changed, failure to observe the statutory requirement was held to be fatal to the proceeding. No doubt the legislature in passing the act of 1899, omitting the service of notice upon the auditor general, intended that thereafter this vain and useless service of notice would not be required. This intention is not left to mere inference because the act of 1899 provides that: "It shall be lawful for the several courts of Common Pleas of this Commonwealth to change the name, style and title of any corporation of the class named in the first section of this act within their respective counties with the same proceedings and in the same manner as they are now authorized to improve, amend or alter charters of such corporations.” At the time of the passage of this act amendments to charters were made under the provisions of the Act of April 29, 1874, P. L. 73, as amended by the Act of April 17, 1876, P. L. 30. In other words at the time of the passage of the act of 1899, the authority to amend charters was found in the acts of 1874 and 1876, and this is the authority to which the act of 1899 refers. Since the passage of the act of 1899 the change of the name of a corporation of the first class is to be treated as an amendment to the charter and the proceedings to accomplish this purpose are the same as if application were made to improve, amend or alter the charter in any other respect. As to corporations, not of the first class, this view was clearly expressed by Chief Justice Sterrett in Fort Pitt Bldg. & Loan Assn. v. Bldg. & Loan Assn., 159 Pa. 308. What was said by this court in that opinion as applied to corporations of the second class, applies with equal force as to corporations of the first class since the passage of the act of 1899. We therefore hold that it was not necessary to serve notice upon the auditor general before filing the petition in the court below asking that the name of the corporation be changed.

For the reasons stated in the first part of this opinion we conclude that the change of name in the case at bar was improvidently made and that the assignments of error must be sustained.

Decree reversed and petition dismissed at the cost of appellee.


author: Per Curiam,

text:
    John Hancock Ice Company v. Perkiomen Railroad Company, Appellant.

      Negligence — Railroads—Sparks — Fires — Defective appliances — Circumstantial evidence.

    In an action for damages for property destroyed by a fire alleged to have been caused by the negligent operation of a locomotive, the case is for the jury and a verdict for the plaintiff will be sustained where the evidence clearly shows that the property was destroyed by a live spark emitted by an ascertained engine of the defendant, that the engine in question had thrown sparks shortly after the fire as big as shellbarks, which caused fires in grass and fences, and there is some evidence by experts and practical locomotive engineers as to the inefficiency of the spark arrester on the engine.
    Argued Jan. 30, 1911.
    Appeal, No. 151, Jan. T., 1910, by defendant, from judgment of C. P. Montgomery Co., March'T., 1908, No. 6, on verdict for plaintiff in case of John Hancock Ice Co. v. Perkiomen Railroad Co.
    Before, Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for damages to property by fire.
    Verdict and judgment for plaintiff for $28,080.25.
    The facts appear in the report of the same case in 224 Pa. 74, and in the opinion of Swartz, P. J., refusing new trial and judgment n. o. v., as follows:
    This action was brought to recover damages for the destruction of the plaintiff’s ice house and its contents. The plaintiff company contended that engine No. 846 threw a spark or sparks on the roof of the ice house, that the fire which destroyed the building and the ice stored therein, was caused through the negligence of the defendant railroad company.
    That the property was destroyed by a live spark emitted from engine 846 was clearly established. While it was not formally admitted by the defendant, there was no denial of the allegations. In fact, if counsel for the defendant company had disputed the origin of the fire, so clearly shown, he would have injured his defense before the jury on the other branches of the case. No. 846 stood on the siding running along the ice house. It pulled put five loaded cars, on a curve and on an up grade. The engine labored and there was a heavy exhaust. The smoke was emitted in large volumes, and the wind carried it right over the roof of the ice house. There was no stove or fire in the building and no fire in the neighborhood of the ice house. The fire started on the roof of No. 9 compartment of the building, that is at a point almost immediately above the smokestack when the engine started to pull out the loaded cars.
    The building was thirty-five feet high, and the siding was six or seven feet aboye the floor of the ice house.
    The roof was nearly flat, for the first twelve feet, and covered with tar paper, and gravel. Beyond this point the shingle roof began and had a much steeper pitch. The fire started on the shingle roof just beyond the junction of the gravel roof and the shingle roof. The fire was discovered about fifteen minutes after the engine pulled from the siding and when the men ran up to put it out, it had eaten a hole through the shingle roof.
    At the trial the real issue resolved itself into the single inquiry, was the spark thrown upon the roof through the negligence of the defendant company?
    At a former trial, reported in John Hancock Ice Co. v. Perkiomen R. R. Co., 224 Pa. 74, we held there was not sufficient evidence for submission to the jury that the spark arrester was not of a proper style, form or pattern. In so ruling we were in error. At that trial there was no evidence by any witness making a direct attack upon the style, form or pattern of the spark arrester used in engine 846. There was evidence which showed the bad conduct of this engine for fire throwing. In other words there was negligence shown by the plaintiff company, and the burden was cast upon the defendant company not only to satisfy the jury that the spark arrester was in good repair, and that the engine was operated with due care, but also that the spark arrester in use was of a proper design or pattern.
    Upon the second trial there was some evidence by experts and practical locomotive engineers who attacked the efficiency of the vertical screen in engine 846. The criticism was not very serious, in our opinion, but the jury may have taken a more favorable view of this testimony.
    The plaintiff also found a new witness for the second trial in Grover Carl. This man knew 846 and had worked on the engine. He says that shortly after the fire at the ice house, he noticed the engine, near Hosensack, throw sparks as big as a shellbark, and that they set the grass and fence on fire. All the other witnesses of the first trial repeated their evidence of fire throwing at the second trial.
    Counsel for the defendant, at the argument for a new trial, contended very earnestly that the evidence of negligence was so meager and doubtful that the plaintiff should not be permitted to recover.
    We do not see how this case could have been taken from the jury; especially so, in the light of the declarations by the Supreme Court when this question was under review, in John Hancock Ice Co. v. Perkiomen R. R. Co., 224 Pa. 74. The railroad company contended there was no negligence or that it was so meager that it did not raise a presumption of negligence. The court then said, “The .evidence was sufficient to send the case to the jury on the question of whether the fire from the engine had been communicated to the house, and the court properly held that it was also sufficient for submission to the jury on the question of the defendant’s negligence.” Again, “When the learned judge ruled the question, the plaintiff had shown, not by a presumption of law arising from the fact that the building had been fired by sparks from the engine, but by affirmative evidence, that through the negligence of the defendant sparks had been emitted which set fire to the plaintiff’s building and caused its destruction.”
    The additional witness on fire throwing and the new evidence which attacked the efficiency of the style, form and pattern of the spark arrester, certainly strengthened the presumption of negligence, on the second trial.
    It is claimed that the late case of American Ice Co. v. Penna. R. R. Co., 224 Pa. 439, rules that our case should not have been submitted to the jury. There is a marked difference at the very threshold of these cases. In the American Ice Company, “there was no direct evidence to show that the railroad company caused the fire.” “ No locomotive was identified as being near the building when the fire started. Indeed there was no testimony to show how or exactly where the fire started or from what cause it originated.” In our case the conclusion was inevitable that engine 846 caused the fire. It was shown where and how the fire started. The locomotive stood beside the building, and when it moved out, the smoke, and exhaust, the curve, the grade and the puffs, indicated that the engine labored. At such time it throws fire, if at any time. The fire almost immediately followed, as the engine moved by the building. No other possible explanation of the fire could be given. ‘ ‘ It was not all a guess or conjecture,” as in American Ice Co. v. Penna. R. R. Co., 224 Pa. 439. In that case the jury was asked to find that the fire was caused by the railroad company because of negligent fire throwing before and after the fire. In our case it was shown that the fire was caused by engine 846, and this fact was established clearly, before any evidence was given of negligent fire throwing. The concluding sentence of the opinion in American Ice Co. v. Penna. R. R. Co., 224 Pa. 439, points out the distinction between that case and the one now under consideration: “There can be no recovery in this case, because appellant failed to prove what caused the fire or that the railroad company had anything to do with starting it.”
    In the case before us the fire occurred at noon time. The air may be full of live sparks at midday and yet the eye cannot detect them. If the defendant’s contention is sound, then there can be no recovery in any case unless sparks are seen to fall on or about the building, immediately before the fire, although there is absolute certainty that a particular engine caused the fire and abundant proof of negligent fire throwing both before and after the fire, by the particular engine in question. If it is necessary to show sparks of unusual size at the building at the time of the fire, then we fail to see any necessity for proof of negligent fire throwing, before and after the fire. The negligence of the company is established by throwing the unusual sized sparks at the time of the fire, without showing the negligent habit of fire throwing.
    American Ice Co. v. Penna. R. R. Co., 224 Pa. 439, is also distinguishable from the fact that the cause of the fire was not charged against any particular engine.
    We think the cases in Pennsylvania show, that the cause is for the jury where the evidence is conclusive that the fire was caused by the railroad company, although there is no direct proof of fire throwing at or immediately before the fire, if there is proof that the particular engine or engines which caused the fire threw sparks of unusual size, within a short time before and after the fire. In Erie Ry. Co. v. Decker, 78 Pa. 293, there was proof that engine 458 caused the fire. There was no evidence of negligent fire throwing just before the fire. The plaintiff was not allowed to recover because he could not show any negligent conduct of engine 458, before and after the fire, although he showed negligent fire throwing by some engines, but did not identify any one of them as 458. In Penna. R. R. Co. v. Stranahan, 79 Pa. 405, the evidence was conclusive that the fire was caused by the engines of the railroad company. There was no proof of fire throwing at the time of the fire. The barn was destroyed in the afternoon. The plaintiff recovered, by showing the negligent action of the engines of the company about the time of the fire but at points removed some miles from the place of the fire. In Jennings v. Penna. R. R. Co., 93 Pa. 337, the fire was caused by a particular engine. There was no evidence of negligent fire throwing at the time of the fire. The plaintiff was defeated in his action because the evidence as to the bad conduct of engines before and after the fire did not relate to. the special engine which caused the fire. In Phila. & Reading R. R. Co. v. Schultz, 93 Pa. 341, the plaintiff’s woodland and rails were destroyed by fire caused by the 10:30 passenger, train. There was no evidence of fire throwing at the time of the fire, except the existence of fires along the railroad. The plaintiff recovered by showing the bad fire throwing of the particular engine for a period of two weeks before the fire. In Gowen v. Glaser, 3 Cent. Repr. 109, the plaintiff’s rags were spread out in a field and destroyed by fire from some engine of the railroad company. The only evidence of negligence offered was the proof that the engines of the company repeatedly threw , out sparks of excessive size. A verdict for the plaintiff was sustained.
    The distinguished jurist who prepared the opinion in Henderson v. Railroad Co., 144 Pa. 461, in his usual clear and comprehensive decision, covered all the various questions that ordinarily arise in these railroad fire cases. His careful review of the law and its application to the Henderson case leaves no room for doubt upon the proposition we have endeavored to consider. “Where the injury complained of is shown to have been caused, or, in the nature of the case could only have been caused by sparks from an engine which is known and identified, the evidence should be confined to the condition of that engine, its management and its practical operation.” “Of course, the inquiry in all such cases is as to the existence or condition of the spark arrester at the precise time of the injury; but in order to make this practicable, by proof that it was defective, or threw out sparks of unusual size, a reasonable latitude must be allowed to show its management and operation both before and after.” In the Henderson case a watchman stood by the mill as the engines passed. He did not notice any sparks thrown. The evidence of negligence covered only other times and places when the engines threw sparks or coals of unusual size. The case was reversed and a new trial allowed because the time was not limited by the court during which these other fire throwings occurred. The proof that the Henerdson mill was destroyed by the fire from an engine was not so conclusive as the proof in our case.
    We conclude that the plaintiff, under the testimony in the case before us, was entitled to go to the jury.
    If this was a proper case for submission to the jury, the question still arises — is the verdict so clearly against the evidence that it should not be allowed to stand?
    We think the evidence was sufficient to sustain the verdict. The case was tried with great care and ability, by counsel on each side. This being a second trial, each party knew what the other would offer before the jury. There were no surprises of any moment. The defendant company had the advantage in preparing to meet the evidence submitted at the former trial. It had its records of the movements of 846 and was prepared to test the credibility of the evidence given as to fire throwing. Another jury might reach a different conclusion from the same testimony, but this is true in most cases where the charge.is negligence in fire throwing by an engine. There are few cases where the proof of negligence consists of direct or positive evidence of eyewitnesses who saw the spark fall that destroyed the building. The very nature of the case ordinarily admits of nothing more than circumstantial evidence to establish the negligence. As was said in Henderson v. Railroad Co., 144 Pa. 461, 480 “on account of the great difficulty in proving negligence in such cases, any proper evidence from which negligence may be inferred is sufficient to throw the burden on the defendant.” “It is not required that the fact of negligence be established by direct or positive proof; like any other fact, it may be established by circumstantial evidence.”
    It is true the evidence of the witnesses who testified to the negligent fire throwing was contradicted by the records produced by the defendant company. The train, however, was known as the pick up and 846 was the engine ordinarily in use. The witnesses, or some of them, identified the engine by its number. Where a witness testifies to fire throwing of an identified engine, he may make a mistake as to the particular night he saw the engine, but unless he is corrupt, it is difficult to believe that he made a mistake as to what he swears he actually saw. The important inquiry is — did he see sparks or live coals within a very short time of the fire, as big as a shellbark, or as big as the end of your thumb?
    If.the jury believed these witnesses who testified to the negligent fire throwing, then engine 846 did not have a proper spark arrester in good condition, or the engine was negligently operated. If it was bad a few days before the fire, and a few days thereafter, the jury could fairly infer it was bad at the time of the fire. There was no evidence of any change or repair of the spark arrester, about the time of the fire. Even if a verdict for the defendant would, perhaps, be more in accord with our view of the evidence, we see no good reason for disturbing the trial when we are satisfied that the evidence of the plaintiff, if believed by the jury, fully justified their verdict. In the conflict of evidence, it was the province of the jury to determine whom they would believe. We have no desire to usurp the functions of a jury.
    We think our answer to the plaintiff’s third point was not misleading to the jury. There was an expression in Mr. Fenstermacher’s testimony which may mean that holes of an inch or three-quarters of an inch were not patched in the screen or netting. We left the matter to the jury to determine what meaning should be given to his evidence. We were careful to say that the jury must consider his whole testimony to determine his meaning. We did not affirm this point, except to say that a witness must not be judged by one sentence or one expression in his testimony, the jury are to determine his meaning and this must be done upon a consideration of his whole evidence. We do not see how the defendant was hurt, in any manner, by this instruction. The witness Fenstermacher was called back to make clear his reports and his notes on the reports as to repairs and other matters. The questions were simple and he must have understood them. He testified that he made repairs to the screen but if the holes were as big as six inches then the screen was sent to the boiler shop. It follows that holes under six inches were within his care. The question was then asked “How big would the holes have to be before you would begin to notice them to repair them? A. If they would be only an inch or three-quarters of an inch I would repair them.” This answer was unsatisfactory. It was not clear. Inasmuch as he repaired all holes under six inches, his answer might well mean that holes less than three-quarters of an inch or an inch would be passed without repair. The next question and answer made such a meaning still clearer. “If they get as big as an inch, then you would repair them? A. Yes, sir.” His whole evidence may well show that this meaning was not intended. It was, therefore, that we directed the jurors’ attention to his whole testimony.
    We can see no good cause of complaint in our answer to the plaintiff’s third point. Surely, proof that the spark arrester was of a proper mesh was not sufficient to overcome the plaintiff’s evidence of negligence. This evidence of negligence attacked the pattern of the spark arrester, its repair and the operation of the engine, John Hancock Ice Co. v. Perkiomen R. R. Co., 224 Pa. 74. The answer gave no intimation that a screen with two and one-half meshes to the inch might be an improper screen, and the jury could draw no such inference from our answer. There was no attack upon the netting by any witness or by counsel. We said to the jury: “As I understand the witnesses, they all agree that a screen two and one-half meshes to the inch is a standard mesh and is recognized in general use as the proper mesh for the use in spark arresters.”
    The sixth and eighth points were refused. They asked for binding instructions in favor of the defendant. These reasons for a new trial we have already considered.
    The seventh point was refused. We were asked to say that the plaintiff could not recover for the loss of the ice stored in the building that was burned down. The statement claims damages for the loss of the “ice house and the contents of said ice house.”
    The building was filled with natural ice. One of thé compartments was empty, because the cars of the defendant company had taken away the ice as a railroad carrier of freight. On the day of the fire the defendant company was attempting to remove more of this ice. That the contents of this building consisted of ice was a fact known to the defendant company. The fire occurred on March 30, 1907. That the winter storage of ice still remained was also pretty evident. The “contents” of an ice house would naturally consist of ice, if it had any' contents at all;

      The defendant cannot say it was unprepared to meet this claim. At a former trial the contents of the ice house were shown as well as the value of the same per ton in the building. We think the plaintiff was entitled to recover for the ice destroyed. The statement filed in the case covered the ice under the claim for “the contents of said ice house.”
    The defendant filed his plea and went to trial without asking for a bill of particulars or a more specific statement. The. test is, did the statement inform the defendant of the nature of the demand so that he was not misled in the preparation of his defense.
    The remaining reason for a new trial relates to the question put to the witness, William F. Kiesel. The defendant attempted to give all the circumstances in evidence relating to the fire, and then asked the witness whether the fire could have been caused by a spark from the locomotive stack with a most approved spark arrester and in perfect condition.
    In the first place the conditions attending the fire were not fully given. In the second place the answer would not help the jury. Again and again the jury was told that no spark arrester had as yet been discovered which would prevent the throwing of sparks or that would prevent fires. We said “ that the defendant’s locomotive communicated fire to the plaintiff’s premises raises no presumption of negligence.” Therefore, that the fire could have been caused without negligence was not the issue. This was not a matter for an expert opinion. If the witness had given us his experience as to the size and distance sparks may be thrown by an engine properly operated and properly equipped with an efficient spark arrester, the jury would have had all the information the witness was entitled to give upon that branch of his evidence. This we allowed him to do, but when counsel learned that the witness had no practical experience upon the subject whatever, he did not even press the questions which we allowed. Without some experience upon the subject, the opinion of the witness would be no more than a guess. To give us what he read in the books would be mere hearsay.
    To allow the witness to give an opinion upon the evidence in the case, even if fully stated to him, would mislead the jury. They would consider it as an opinion that the fire, under the circumstances, was caused without any negligence. This was, in effect, the purpose of the question. That fires, along the railroad, occur constantly without negligence, can not be disputed. Ño opinion evidence is needed to establish this proposition. Where there, is an approved spark arrester in use the company “cannot be made liable though it fire every rod of the country through which it runs:” Phila. & Reading R. R. Co. v. Schultz, 93 Pa. 341.
    If the witness had answered the question which we allowed the jury could then have formed an opinion upon all the facts and circumstances just as well as the witness.
    It is always dangerous to cast into the jury box the opinion of witnesses when they can give facts that will enlighten the jurors so they may form their own opinion. Courts, more and more, reject opinion evidence: Reese v. Clark, 198 Pa. 312. Especially is this so where the opinion of the witness is not founded upon experience, but is based upon theory alone: Lineoski v. Susquehanna Coal Co., 157 Pa. 153,172. Counsel for defendant realized this difficulty and when the witness said he could only answer from his study and not from any practical knowledge or experience the questions that we allowed were not pressed. No exception was taken to our ruling at the time. Some time later, on the next day, counsel asked for an exception. We said we would grant it. We made no examination of the record at the time, but in giving the exception, we certainly did not mean to grant an exception to a ruling that was never made. We refused the original question except as modified in our ruling, and to that ruling we now note an exception for the defendant.
    Upon the question whether the witness was competent or not to give his opinion as to the distance a live spark may communicate fire, in a high wind, we were not asked to make a ruling. What our ruling would have been, at the time, had it been necessary to make it, we are unable to say at this time. We always grant exceptions regardless of technicalities, but in fairness to all parties we cannot allow an exception where no ruling was made.
    March 20, 1911:
    And now, April 4, 1910, the reasons for a new trial are dismissed and a new trial is refused. The motion for judgment non obstante veredicto is also dismissed. It is ordered that judgment be entered for the plaintiff and against the defendant upon the verdict of the jury.

      Error assigned was in refusing to enter judgment n. o. v.

      Montgomery Evans, with him John M. Dettra, for appellant.

      Nicholas H. Larzelere, with him Robert D. Maxwell, Harold B. Beitler, and Franklin L. Wright, for appellee.
   Per Curiam,

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


author: Mr. Justice Elkin,

text:
    Bullock Electric Manufacturing Company, Appellant, v. Lehigh Valley Traction Company.

      Mortgage — Real Estate — Fixtures—Electrical generators — Lien of mortgage — After acquired property — Vendor and vendee.

    A manufacturing company made a conditional sale of four generators to a traction company, which, were installed in the power plant of the latter, replacing other generators removed, being built into the building as an essential part of the construction for which the plant was erected. Previous to the sale, the traction company had made a general mortgage, duly recorded, to a trustee for the security of its bondholders, covering among other property “All its power plant, equipment .... and other property, real, personal and mixed, now owned .... or which may hereafter be acquired, either by purchase, lease, or otherwise,” and also “All electric machines, generators, and all other apparatus” then owned or thereafter to be acquired, and containing a description of the ground upon which the power plant was erected. Subsequently a bill in equity was filed in the circuit court, asking for a receiver for the traction company; and the next day the vendors issued a writ of replevin for the generators. A receiver was later appointed, and finally the trustee acting under order of the circuit court foreclosed the mortgage and all the property described therein was sold, and purchased in the interest of the bondholders. In an action of replevin by the vendor against the vendee, in which the receiver and a bondholder intervened, the court below found as a fact that the generators were permanently installed as a necessary part of the power plant. Held, (1) that as between the vendors and the bondholders, the generators became part of the realty, and were bound by the lien of the mortgage; and (2) that the receiver and bondholder had a right to intervene in the suit.
    Argued Jan. 30, 1911.
    Appeal, No. 228, Jan. T., 1911, by plaintiff, from judgment of C. P. Lehigh Co., June Term, 1903, No. 16, for defendant on case tried by the court without a jury in suit of Bullock Electric Manufacturing Co. v. Lehigh Valley Traction Company and R. E. Wright, et al., receivers, and R. E. Wright, a bondholder, defendants, intervening.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Replevin for four electric generators. Before Heydt, P. J., specially presiding, without a jury.
    The facts appear in the opinion of the Supreme Court.
    The portion of the opinion of Heydt, P. J., relating to the intervention of the receivers was as follows:
    The next contention is that the receivers have no standing to defend in this suit; that they have no title in these generators; that they were appointed receivers after the bringing of the replevin suit and that therefore the verdict must be for the plaintiff. It this sound? It is no doubt .law that a receiver has no legal title in the assets which he is appointed to collect: Singerly v. Fox, 75 Pa. 112.

      The purpose of a receivership being to preserve the property contested for pendente lite, it has no effect of itself upon the title to such property, either to change it or to create a lien upon it: Beach on Receivers, 2.
    A receiver of partnership effects cannot maintain an action of trover in his own name against a person who had converted assets of the firm, before his appointment; he must sue in the name of the firm in whom was the legal' right of action: Yeager v. Wallace, 44 Pa. 294.
    The qualified title of a receiver to the property he is directed to take and hold relates back to the time of his appointment: Ltjkton, Circuit Judge, in Horn v. Railroad Co., 151 Fed. Repr. 626, 633.
    The receiver acquired no title, but only the right of possession as the officer of the court. The title remained in the corporation in which it was vested when the appointment was made: Sigua Iron Co. v. Brown, 171 N. Y. 488 (64 N. E. Repr. 194); Decker v. Gardner, 124 N. Y. 334 (26 N. E. Repr. 814); United Glass Co. v. Vary, 152 N. Y. 121 (46 N. E. Repr. 312); Stokes v. Hoffman House, 167 N. Y. 554 (60 N. E. Repr. 667).
    Conceding the principles stated in the foregoing authorities, does it follow that the verdict must be for the plaintiff in this suit?
    The receivers were appointed May 4, 1903, by the United States circuit court for the eastern district of Pennsylvania, upon proceedings by bill in equity filed by Tom. L. Johnson, executor, and others, against the Lehigh Valley Traction Company, on their own behalf as creditors, and on behalf of all other “creditors secured or unsecured, of name and nature whatsoever” alleging the insolvency of the Lehigh Valley Traction Company, and its inability to pay its floating indebtedness (enumerating that such “floating indebtedness consists mainly of loans from banks, trust companies and individuals, the proceeds of which have been used in the improvement of the railway lines of said defendant company, the purchase of equipment and in the extension of the incompleted portions thereof, and many of said loans are secured by pledge of stocks and bonds belonging to said defendant”) and stating specifically in paragraph 6 that “the Lehigh Valley Traction Company has created and issued its first mortgage four per cent, thirty-year gold bonds to the amount of $3,000,000,” etc. All of which allegations were admitted by the defendant corporation in its answer.
    When the receivers were appointed it became their duty to protect and preserve for the persons ultimately entitled to it, the estate which came into their hands as the executive officers of the court. They represented not only the corporation but all its creditors as well, and as to the creditors it was their duty to secure all the assets available for their payment. They succeeded to all the rights, and the powers to enforce such rights, that the creditors had before their appointment. The appointment of the receivers, under the facts hereinbefore stated, was made professedly for the protection of the creditors of the insolvent corporation, and the order for the intervention of the receivers in the present suit was made to subserve the rights of such creditors. They then represented the creditors in whose interest they were appointed and they were clothed with all the powers the creditors would have had in acting for themselves.
    The receivers, being appointed for the insolvent corporation, on a creditor’s bill, are 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 have the rights of a levying creditor. And so are the Pennsylvania authorities.
    In Cushing v. Perot, 175 Pa. 66, 76, Chief Justice Mitchell thus states the general rule as to the pówers of receivers: “A receiver represents not only the corporation but all its creditors, and as to the latter it is his duty to secure all the assets available for their payment. For this purpose he succeeds to their rights, and has all the powers to enforce such rights that the creditors before his appointment had in their own behalf, even though such powers be beyond those which he has as the representative of the corporation alone. As each creditor may sue, the right is equal in all, and common to all, and hence the receiver who represents all alike is the proper party to assert the common right and pursue the common remedy for the common benefit.”
    In Schwartz v. Keystone Oil Co., 153 Pa. 283, Mr. Justice Williams in restating some “venerable elementary principles applicable” to receivers, says: “A receiver is the officer, the executive hand, of a court of equity. His duty is to protect and preserve, for the benefit of the persons ultimately entitled to it, an estate over which the court has found it necessary to extend its care.”
    In Duplex Printing Press Co. v. Pub. Co., 213 Pa. 207, it was held after reciting the facts found by the court below (which facts were almost identical with the facts in the case at bar): “From this it must be assumed that the receiver in this case 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. . . .
    “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 has the rights of a levying creditor.”
    From all of which we conclude that the intervening bondholders or the receivers, or both, are legally entitled and empowered to defend in the present suit.

      Errors assigned among others were in holding that the generators were fixtures and in entering judgment for defendants.

      Edward Harvey, with him W. La Monte Gillette and Waite & Schindel, for appellants.
    Annexation is a question of intention: Hill v. Sewald, 53 Pa. 271; White’s App., 10 Pa. 252; Piper v. Martin, 8 Pa. 206; Harlan v. Harlan, 15 Pa. 507; Ferguson v. Lauterstein, 160 Pa. 427; Raymond v. Schoonover, 181 Pa. 352; Kinnear v. Scenic Rys. Co., 223 Pa. 390; Carver v. Gough, 153 Pa. 225.
    March 20, 1911:
    The machinery and appliances of a plant do not pass with the real estate upon which it is operated on a sale under mortgage judgment, unless it was the intention to make the plant part of the realty when it was erected: Vail v. Weaver, 132 Pa. 363; Wick v. Bredin, 189 Pa. 83; York Mfg. Co. v. Cassell, 201 U. S. 344; Kinnear v. Scenic Rys. Co., 223 Pa. 390; Tyson v. Post, 108 N. Y. 217, (15 N. E. Repr. 316); Sisson v. Hibbard, 75 N. Y. 542; General Electric Co. v. Transit Equipment Co., 57 N. J. Eq. 460 (42 Atl. Repr. 101).

      Arthur G. Dewalt, for appellees.
   Opinion by

Mr. Justice Elkin,

For the purpose of determining the principal and underlying question raised by this appeal, the case at bar may be considered a controversy between the holders of bonds secured by a first mortgage on the lines, property and franchises of the traction company, and a manufacturing corporation that sold four generators to the traction company to be installed in its power plant and used to generate electric current. The sale was made under the terms of a contract in writing which the court below held, and the parties concede, constitutes a conditional sale. This view of the transaction is concurred in here. We, therefore, start with the proposition that as between the vendor and vendee the agreement entered into constituted a conditional sale of the property in dispute. If the rights of creditors had not intervened, appellant clearly acted within its legal rights in proceeding to reclaim the four generators under the terms of the contract. It is asserted on one side, and denied on the other, that the rights of creditors had attached in such manner as to subject the four generators to sale by proper legal process as part of the realty. A brief recital of the facts is necessary to a proper understanding of the legal principles involved. In 1899, the traction company duly executed, delivered and caused to be recorded a first mortgage upon its lines, property and franchises. After the mortgage was recorded all parties dealing with the traction company had constructive notice of the terms and conditions of the lien thus created as a security to the holders of the bonds. The mortgage had been of record for more than two years at the time appellant agreed to sell and appellee company agreed to purchase the four generators in dispute. The mortgaged property was generally described as follows: “All and singular its lines of railway now constructed, or which it may hereafter construct, or acquire, and all its power plant, equipment, cars, rights, privileges, franchises and other property, real, personal and mixed, now owned and held as hereinafter set forth, or which may be hereafter acquired, either by purchase, lease or otherwise.” The mortgage also contains a description of the lot of ground upon which the power plant, including machinery, electrical equipment and the four generators in dispute, was erected. Another clause of the mortgage declared it to be the intention of the mortgagor to grant to the trustee named in the mortgage not only the lines either constructed or to be constructed, and the real estate owned or to be acquired, but also, “all passenger cars, and all other rolling stock and equipment, engines, boilers, dynamos, electric machines, generators and all other apparatus,” then held by the company or which might thereafter be acquired for use in operating the lines of street railway. At the time the mortgage was recorded the contract to purchase these four generators had not been made, but when the agreement for the sale of the generators was concluded, the contracting parties had record notice of the security given to the bondholders under the terms of the mortgage. One of these terms was that all generators as well as other equipment and apparatus then held by the traction company, or that might thereafter be acquired by it, for use in operating the street railway system, were subject to the lien of the mortgage. The learned court below has found as facts that the generators were permanently installed in the power plant; that they replaced other generators removed; that they were necessary to the operation of the business of the company; and that they were part of the realty described in the mortgage. It is true these generators were not part of the realty, and did not belong to the traction company when the mortgage was executed, but they were subsequently acquired and permanently installed and therefore came within the express terms of the mortgage. It is perfectly clear that if the claim of ownership had not been set up by appellant, the purchaser at the foreclosure sale would have taken title to the generators as part of the realty. This proposition cannot be seriously questioned. The generators were permanently built into the power plant and were an essential part of the construction for which the plant was erected. They were as permanently attached to the realty as any other machinery or apparatus of this character can be attached to a building. On this branch of the case there is no escape from the conclusion that the generators were permanently installed in the power plant and were attached in such manner and for such a purpose as to make them a part of the real estate. While this is true in fact, it does not follow as a matter of law, that the contract made by appellant whereby it sold the generators to the appellee company upon the condition that title should not pass until all of the installments of the purchase price were paid in full, is not binding as between the parties themselves. Such contracts are binding and the law will enforce them as between the contracting parties. But a different question arises when the rights of creditors intervene. This brings us to the consideration of another question raised by this appeal. The appellee company became financially involved, defaulted in the payment of interest on its bonds and as a result of these conditions, a bill in equity was filed in the circuit court of the United States for the eastern district of Pennsylvania asking for the appointment of receivers. The bill was filed May 1, 1903, and receivers were appointed May 4, 1903. The receivers filed their bonds and proceeded to take charge of the business of the insolvent corporation under the direction of the court. Subsequently to the appointment of receivers the trustee named in the mortgage acting under an order of the circuit court proceeded to foreclose the mortgage on the interest of the bondholders. The mortgage was foreclosed and all of the property described therein, including the generators in dispute, that is, if these generators are considered within the description of the mortgage and were part of the real estate described, was sold. We assume the property was purchased in the interest of the bondholders and that they claim the benefit of whatever security the mortgage gave them. Appellant sued out the writ of replevin May 2, 1903, one day after the bill asking for the appointment of receivers had been filed and two days before the receivers were in fact appointed. It is contended that there were no execution creditors at the time the writ of replevin issued and that no other class of creditors can dispute the title of a vendor who makes a conditional sale reserving title until the purchase price is fully paid. As to personal property, unless in exceptional cases, this position correctly states the general rule of law not only in our own state but in many other jurisdictions. But even as to personal property a vendor who makes a conditional sale cannot assert his title against an execution creditor who has levied upon the property so sold. Such a sale is within the meaning of the law fraudulent as against a levying creditor. When a general creditor has obtained a judgment upon which an execution has been issued and a levy has been made, a lien is created against the property so seized. In such a case the rights of the levying creditor are superior to those of a vendor of personal property who makes a conditional sale of the same, reserving title in himself until the purchase price is paid: Ott v. Sweatman, 166 Pa. 217. Unsecured creditors have no lien until judgment has been entered and execution issued, but when these steps have been taken their rights are superior to a vendor who sought to retain a lien upon the property sold until the purchase price was paid. The situation is necessarily different where the machinery sold is intended to be permanently attached to a building, or power plant, as an integral and component part of the construction necessary in conducting the business for which the structure was erected. When the generators in dispute here were permanently installed in the power plant, they became part of the realty, and as such were subject to the lien of the mortgage. The learned court below has found as a fact that they were permanently installed and were a necessary part of the power plant. The evidence fully warrants this finding which in our opinion controls the rights of the parties to this controversy. As to all the property bound by the mortgage, the rights of the bondholders are superior to those of appellant. Duplex Printing Press Co. v. Publishing Co., 213 Pa. 207, in many of its features rules the present case. A writ of replevin is effectual for the delivery of personal property only: Roberts v. Dauphin Deposit Bank, 19 Pa. 71. If the article, or thing, the possession of which is sought to be recovered in such an action, has been so changed in character as to be no longer in the category of personal property, but has become a component, permanent and necessary part of the realty, this form of action would not lie. This rule is subject to some modification as between a vendor and vendee who covenanted otherwise in a case where the rights of creditors are not involved. In the case at bar the generators as found by the court were part of the realty and the title to the same passed to the purchaser at the foreclosure sale. If authority need be cited to sustain the position of appellees, namely, that the generators being subsequently to the execution of the mortgage permanently attached to the realty, thereby becoming subject to its lien, and that a foreclosure sale divested this lien and passed title to the purchaser, it may be found in the following cases: Morris’s App., 88 Pa. 368; Albert v. Uhrich, 180 Pa. 283; Muehling v. Muehling, 181 Pa. 483; Shmaltz v. York Mfg. Co., 204 Pa. 1; Kinnear v. Scenic Rys. Co., 223 Pa. 390.

We cannot agree with the contention of counsel for appellant that this is a case between the vendor company on one side and the vendee company on the other. It was the duty of the receivers to intervene for the purpose of protecting the rights of creditors. This doctrine has been recognized and asserted in many of our cases: Cushing v. Perot, 175 Pa. 66; Duplex Printing Press Co. v. Publishing Co., 213 Pa. 207; State Bank of Pittsburg v. Kirk, 216 Pa. 452; People’s Bank v. Stroud, 223 Pa. 33.

As to the intervention of the receivers and the bondnolders, the learned court below acted clearly within its discretionary powers, and in the opinion filed has given convincing reasons for every position taken. The case was considered with very great care by the learned judge who heard it in the court below and his findings of fact and conclusions of law are amply sustained by the evidence and the settled rules of law applicable to such cases. No useful purpose will be served by discussing several other incidental questions raised by this appeal. The opinion of the learned court below properly disposes of all of them.

Assignments of error overruled and judgment affirmed.


text:
    Allentown, Appellant, v. Roth.

      Municipalities — Municipal claims — Personal action against owner— Assessments — Act of April 4,1907, P. L. 40-

    The Act of April 4, 1907, P. L. 40, providing “that hereafter all municipalities of the commonwealth of Pennsylvania may proceed for the recovery or collection of any municipal claim or claims whatsoever by lien or by an action of assumpsit,” is not retroactive and does not apply to cases in which the improvements were completed and the assessments made thereon prior to the enactment of that statute.
    Argued Jan. 31, 1911.
    March 20, 1911:
    Appeal, No. 4, Jan. T., 1911, by plaintiff, from judgment of C. P. Lehigh Co., Jan. T., 1910, No. 59, sustaining defendants’ demurrer to statement in case of city of Allentown to use of Warren Brothers Company v. Henry Roth et al.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover an assessment for street paving. Before Trexler, P. J.
    The opinion of the Supreme Court states the case.
    The court sustained defendants’ demurrer to the statement of claim and entered judgment for defendants.

      Error assigned was the order sustaining demurrer.

      Frank Jacobs, for appellant.

      Thos. H. Diefenderfer, for appellees.
   Per Curiam,

This is an action in assumpsit by the appellant to recover from a number of property owners in the city of Allentown the amount of assessments against their properties for certain municipal improvements. It seeks to recover under the Act of April 4, 1907, P. L. 40. That act is not retroactive, as is clearly pointed out in Barnesboro Borough v. Speice, 40 Superior Ct. 609. The improvements for which the appellant sues were completed and the assessments made thereon prior to the passage of the act of 1907, and its provisions cannot, therefore, be invoked. The judgment for the defendants on their demurrer is affirmed.


text:
    Warner, Appellant, v. Coatesville Borough.

      Municipalities — Boroughs—Street improvements — Method of procedure — Act of May 16, 1891, P. L. 76, Act of May 33, 1896, P. L. 106.

    1. Section 10 of the Act of May 16, 1891, P. L. 75, prescribing the method of procedure and the kind of notice necessary to effectuate the power given to municipalities by sec. 9 of the act to make street improvements on petition of abutting owners was not repealed by the Act of May 22, 1895, P. L. 106, giving municipal corporations power to make street improvements without any petition of property owners. The proviso to the act of 1895, relating to the passage of the ordinance, and to the kind of notice required, is restricted in its application to ordinances passed by borough councils providing for street improvements without a petition from abutting property owners. When the proceeding is instituted by the petition of abutting owners, sec. 10 of the act of 1891 applies.

      Boroughs — Councilmen—Ouster from office — Officers de facto.

    2. Where a borough councilman, ousted from office by decree of court because a stockholder in a corporation furnishing supplies to the borough, forthwith sells his stock, resigns his office, and is, on the evening of the same day, re-elected by council to fill the vacancy thus made, it having authority to fill vacancies in its body, and these actions are all taken bona fide, such person has a colorable title and becomes and continues a councilman de facto until a second ouster later decreed, and during such period the votes and acts of such councilman de facto are as forceful and binding, where public interests are concerned, as though de jure.

      Boroughs — Borough council — Burgess—Veto—Action on veto — Act of May 33,1893, P. L. 113.

    3. The Act of May 23, 1893, P. L. 113, does not require action to be taken by a borough council upon an ordinance vetoed by the burgess at any particular meeting or within any specified time; and such vetoed ordinance need not be reconsidered at the next regular meeting after its return.

      Boroughs — Drainage system — Approval of state board of health.

    4. A borough drainage system designed to provide solely for rain, snow and surface waters does not require approval by the state board of health.

      Boroughs — Borough streets — Vacation—Highways extending beyond borough limits.

    5. A borough has no power to vacate a portion of a borough street forming part of a public highway extending beyond the borough limits.
    Argued Feb. 6, 1911.
    Appeal, No. 145, Jan. T., 1910, by plaintiffs, from decree of C. P. Chester Co., in equity, No. 524, on bill in equity in case of Michael Warner et al. v. Coatesville Borough, Jesse Shallcross, Burgess, and John E. Way et al., members of town council of said borough.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to declare certain ordinances and contracts invalid and to restrain the laying out and vacation of certain streets, thereby.
    Hemphill, P. J., filed an opinion in part as follows:
    This bill seeks to have the defendant borough enjoined from enforcing or carrying out the provisions of two ordinances, finally passed by its council on November 16,1909.
    findings of facts
    The ordinances were enacted, apparently, for the improvement of the borough and the protection of the lives and property of the traveling public — both commendable and desirable objects.
    One provides for the vacation, alteration and extension of portions of certain streets, to avoid grade crossings over the Pennsylvania railroad and to connect with subways to be constructed by said railroad company.

      The other authorizes the execution of a contract by the borough with the Pennsylvania Railroad Company, for the purpose of carrying out the first named ordinance, upon condition that said company shall construct the subways, build and macadamize certain streets and construct sidewalks, drains, etc., as therein specified.
    Both ordinances were passed by council, September 27, 1909, were vetoed, October 4, 1909, by the chief burgess and finally passed over his veto, November . 16, 1909.
    On October 4, 1909, William H. Hamilton, who had been elected to council, was its president, and had voted for the ordinances upon their original passage, was, by decree of this court, ousted from his office as councilman and at a meeting of council that evening, resigned, but was, with the advice of the borough solicitor, immediately re-elected by the council to fill the vacancy thus caused, he having in the meantime sold his stock in a corporation, the ownership of which, the court held, disqualified him for membership in the council. At this meeting consideration of the veto message was postponed by adjournment to October 25, 1909, and then again, by adjournment, to November 1, 1909, Mr. Hamilton voting in favor of both adjournments.
    New quo warranto proceedings against Mr. Hamilton had been instituted in the meantime, and on October 26, 1909, by decree of this court, he was again ousted from his office of councilman; and his place was subsequently filled by the election of Joseph Gallup.
    On November 1, 1909, when council met pursuant to adjournment, it again adjourned, by a majority of one (without counting Hamilton’s vote), to November 15, 1909, when councilman Kirk, who all this time had been absent by reason of illness, was present, and the ordinances were considered and passed over the veto, by a vote of five to two.
    The first ordinance provides inter alia for the vacation of Second avenue in said borough from the north side of Railroad street (a street on the south side of and parallel with the present tracks of the Pennsylvania railroad), to a point on the north side of said tracks, which originally constituted part of a public highway beginning about eight hundred feet north of the borough line, and extending south, to what is known as Main street in said borough; and was ordained by the court of quarter sessions of this county some time before the incorporation of the borough of Coatesville in 1867.
    CONCLUSIONS OP LAW
    Numerous objections have been raised and urged against the validity of these ordinances, which wre shall consider and dispose of in order.
    One, however, viz: that they are void because they require and authorize the expenditure of borough funds outside its limits — in an adjoining township — has been removed, since the filing of the bill, by the Pennsylvania Railroad Company filing a stipulation or agreement, whereby, it agrees to pay all expenses and damages that may be occasioned or recovered outside the borough and releasing it from all responsibility or liability for the same.
    Another is based upon the conduct and votes given by William H. Hamilton, because as plaintiffs allege ineligible to the office of councilman, Mr. Hamilton had been duly elected to council and was serving as president of that body on September 27, 1909, when the ordinances were originally introduced and passed — and voted in the affirmative. He was, therefore, at the time, an officer de facto, if not de jure.
    On October 4, 1909, he was ousted by decree of this court, because a stockholder in a corporation furnishing supplies to the borough, which under the law disqualified him from serving as councilman. He forthwith sold his stock, resigned his office and was, the evening of the same ■day, re-elected by council to fill the vacancy thus made; it having authority to fill vacancies in its body.
    We are satisfied, that in thus acting, neither Mr. Hamilton or the council, intended any disrespect towards the court or disregard of its decree, but believed, after consultation with the borough solicitor, that Mr. Hamilton having sold his stock was eligible for re-election. And the relators also, seem to have considered their actions bona fide, for instead of asking for an attachment for contempt they instituted new quo warranto proceedings to test his title under his election by council.
    These proceedings terminated October 26, 1909, — -in a second decree of ouster, the court holding that the first was for the term for which he had been elected; and that the legal presumption that disqualified him then, still continued, viz: that a stockholder in a corporation furnishing supplies to a borough, would by reason of that interest, be controlled or influenced in the discharge of his duties as councilman.
    At the same meeting (October 4,1909), the chief burgess returned the ordinances with his veto, which was spread upon the minutes; and a motion made to sustain the veto, which was amended by a motion to postpone consideration to an adjourned meeting on October 25, 1909, — that carried.
    Further adjournments were made to November 1, 1909, and November 15, 1909, when after Joseph Gallup had been elected to fill the vacancy caused by Mr. Hamilton’s second ouster, both ordinances were passed over the veto by a vote of five to two.
    For all these adjournments Mr. Hamilton voted in the affirmative, and in all, excepting the last (November 1, 1909) his vote was necessary to constitute a majority.
    Elected by council, duly empowered to fill vacancies in its body, Mr. Hamilton had a colorable title and becapae and continued, a councilman de facto until his second ouster. And as the votes and acts of officers de facto are as forceful and binding, where public interests are concerned as though de jure, we are of opinion that all of Mr. Hamilton’s votes during that period were effective and the adjournments legal.

      Why he voted at the meeting of November 1, 1909, the second decree of ouster having been filed October 26, 1909, does not appear. Whether because the writ had not been served upon him up to that time, or other reasons, is immaterial as there was an affirmative majority without his vote.
    Upon the final passage of the ordinances over the veto, Mr. Hamilton did not vote, his place having been filled by the election of Joseph Gallup.
    Other objections urged by the plaintiffs are that the ordinances “were not acted upon at the next regular meeting of council after the said ordinances and veto were returned to council,” and that they “did not receive the affirmative votes of three-fourths of the members elect composing the council.”
    The Act of May 23, 1893, P. L. 113, does not require action to be taken upon a veto at any particular meeting or within any specified time, only that after a veto has been returned and spread upon the minutes, that the “council shall proceed to a reconsideration of such ordinance.”
    Public interest requires deliberation rather than haste, in legislation, as is evidenced by the constitution of our state and others; for haste too often results in the enactment of ill advised, improvident and some times vicious or injurious laws.
    Nor does this act require that the ordinance shall be passed over the veto by a three-fourths or even a two-thirds vote of the members elected to make it operative, but specifically provides, “that when the number of councilmen is less than nine (in Coatesville the number is seven,) a majority of council and one vote more, shall be required to pass an ordinance over the veto.” These ordinances were passed over the veto by a vote of five to two —a majority of council and one vote more.
    Another objection is that the proposed drainage system has not been approved by the state board of health as required by law.
    The drainage contemplated, is to provide solely for the rain, snow and surface waters, and we know of no act of assembly requiring drainage systems for such uses to be approved by the state board of health, nor have we been referred to any. . . .
    There remains but one other objection for consideration, viz.: “That the borough council had no jurisdiction or authority to lay out or vacate streets on the dividing line between the borough and township or beginning in the borough and ending in the township or vice versa, which the ordinances propose to do in the vacation of Second avenue and the street on the dividing line between the borough and Amos S. Scott and S. Horace Scott.”
    So much of this objection as relates to the Scott property need not be considered, as it was not urged upon the trial, and all the parties interested in the two rights of way across the Pennsylvania Railroad at Eleventh avenue have sold and released their rights in the same to said railroad company by agreement duly executed on November 2, 1909; and the stipulation or agreement first above referred to executed and filed by said company releases and relieves the defendant borough from any expense or damages outside the limits of the same.
    The sole remaining question is — has the borough the power to vacate that portion of second avenue which crosses the tracks of the Pennsylvania Railroad Company?
    The Acts of May 16, 1891, P. L. 75, and May 22, 1895, P. L. 106, in granting to municipalities power to open, vacate, etc., streets and alleys, restricts it by the words “within its limits,” while the Act of April 23, 1856, P. L. 525, in making a similar grant to boroughs, use the word “therein,” both meaning the same thing and restricting the jurisdiction to streets and alleys “therein” or “within its (the borough) limits.”
    The judicial construction therefore given the word “therein” is equally applicable to the words “within its limits,” and the former has been held to apply only to streets, etc., wholly within the limits of the borough.
    In Somerset & Stoystown Road, 74 Pa. 61, the court says: “But by streets and alleys ‘therein’ that is within the borough limits — must necessarily be meant such as begin and end therein, and not such public roads as are or may be opened through the borough, of which a part only is within the borough limit.’ ”
    In South Chester Road, 80 Pa. 370, the court says: “The public road lies within the borough of South Chester as laid out by the viewers, and as is manifest from the entire record. Being wholly within the borough, the court of quarter sessions had not jurisdiction, as is well shown in the case of the Somerset & Stoystown Road, 74 Pa. 61.”
    Both these cases are cited with approval by the court in Parkesburg Borough Streets, 124 Pa. 511.
    In Palo Alto Road, 160 Pa. 104, the proceedings were in the court of quarter sessions and exception was taken to the report of the reviewers on the ground, that said court had no jurisdiction, because the portion of the road or street to be vacated was within the borough of Palo Alto. The part to be vacated, however, having been, before the incorporation of said borough, a portion of a public road beginning and ending outside the borough and passing through it, the court, after reviewing the authorities above cited, held, “We are therefore led to the conclusion that under these authorities, the jurisdiction in this case is in the quarter sessions, since the road is not one wholly within the borough limits.”
    In view of these decisions and the construction they place upon the word “therein,” we are of the opinion that the borough of Coatesville has no power to vacate that portion of Second avenue, before described, it forming part of a public highway extending beyond the borough limits, and therefore within the jurisdiction of the court of quarter sessions.
    To much of the writ of injunction heretofore issued, as restrains the borough from vacating that portion of Second avenue, must be made perpetual; and as to the remaining portions of the plaintiff’s bill and prayers, they are dismissed and the injunction dissolved.

      March 20, 1911 :
    We therefore make the following decree:
    It is hereby ordered and decreed that the writ of preliminary injunction heretofore issued be made perpetual in so far as it enjoins and restrains defendants from vacating that part of Second avenue crossing the tracks of the Pennsylvania railroad, and is dissolved as to the remainder of the bill and prayers, which are dismissed; the costs to be paid equally by the plaintiffs and defendants.

      Error assigned was decree of the court.

      George B. Johnson, with him Granville L. Retlew and Wm. Meade Fletcher, for appellants.
    -As the ordinances were adopted only seventeen days after their introduction and as they did not receive the votes of three fourths of the members elect of council nor the approval of the burgess as required by the Act of May 22, 1895, P. L. 106, and its re-enactment in the Act of March 19, 1903, P. L. 35, they are void: Dorrance v. Borough of Dorranceton, 181 Pa. 164; Evans’s Petition, 7 Del. County Rep. 77; Focht v. Lebanon City, 4 Dauphin County Rep. 12.

      Alfred P. Reid, for appellees.
    The provisions of the act of 1891 are not inconsistent with the provisions of the act of 1895 and are therefore still in force: Haspel v. O’Brien, 218 Pa. 146; Ursinus College v. Collegeville Borough, 10 Pa. Dist. Rep. 642.
   Opinion by

Mr. Justice Elkin,

This controversy grows out of the efforts made by the borough authorities in connection with the railroad company to eliminate grade crossings by substituting at the cost of the railroad company subways therefor. As a protection to the public and as a means of avoiding the dangers incident to their use the abolition of grade crossings is insisted upon by the courts in all cases where the conditions are such as to make it practicable to eliminate them. When, therefore, the local authorities undertake in the interest of the public to do that which the law favors, courts should not be astute to seize upon technical refinements in order to defeat such a worthy purpose. Of course, positive and mandatory requirements of the statutes regulating such matters cannot be ignored even if a worthy purpose is to be served. We must inquire whether the proper statutory steps were taken by the appellee borough to authorize the street improvement necessary to avoid grade crossings. The ordinance authorizing the vacating, laying out, extension and opening of the new streets was adopted by the borough council upon the petition of abutting owners. The procedure as to notice followed the provisions of the tenth section of the Act of May 16, 1891, P. L. 75, which appellants contend was repealed by the Act of May 22, 1895, P. L. 106. If this position is well taken, it would mean that the provisions of the act of 1895 as to procedure and notice, being the only ones in force at the time the ordinance was passed, must be followed in order to give validity to the ordinance. The most important question to be determined on this appeal is, whether the act of 1895 repealed the tenth section of the act of 1891. The act of 1891, relating to the laying out, opening, widening, straightening, extending or vacating streets and alleys, and the grading, paving and improving the same, applies to the several municipalities of the commonwealth. It is, therefore, applicable to boroughs. The ninth section of this act conferred upon all municipal corporations the power to open, widen, straighten or extend streets or alleys, or parts thereof within their limits, and to vacate the same, upon the petition of a majority in interest and number of owners of property abutting on the line of the proposed improvement. The tenth section provides that within ten days after the passage or approval of the ordinance notice thereof shall be given by handbills posted in conspicuous places along the line of the proposed improvement. It also provides what the notice shall contain as well as the method of procedure in the event of an appeal to the court of common pleas. It will thus be seen that the main purpose of sec. 9 was to confer upon municipalities the power to make street improvements on petition of abutting owners, and sec. 10 prescribes the method of procedure and the kind of notice necessary to effectuate the purpose intended. In the case at bar the borough council followed the procedure and gave the notice prescribed in sec. 10 of the act of 1891. If this section has not been repealed and is still in force the ordinance, notice and procedure were in strict compliance with the law, and, therefore, a valid exercise of borough power. The learned counsel for appellants contend with much force and ability that secs. 9 and 10 of this act were either repealed or supplied by the act of 1895. This exact question has not been passed upon by the Supreme Court and the courts below seem to entertain different views about it. It is a close question and good arguments have been made on both sides of the contention. We have concluded after a review of the authorities, a consideration of the arguments and an examination of the several statutes relating to this subject, that the two acts may stand together. In other words, there is nothing repugnant in the existence of two methods of initiating street improvements nor in the kind and character of notice to be given in each instance. The Act of May 22, 1895, P. L. 106, purported to be and was an amendment to sec. 9 of the Act of May 16,1891, P. L. 75. It re-enacts totidem verbis all of sec. 9 and then adds as a new and additional power that: “Every municipal corporation shall have power, whenever the councils or authorities thereof shall deem it necessary, to open, widen, straighten or extend streets or alleys, or parts thereof, and to vacate streets or alleys, or parts thereof, without any petition of property owners.” It is perfectly clear that the legislature did not intend to limit the power of municipalities in providing for street improvements by the passage of the act of 1895. In express terms the later act re-enacts all the provisions of sec. 9 of the former act and in addition confers the power to proceed whenever the authorities shall deem it necessary without the petition of property owners. These acts provide two methods of initiating street improvements, the act of 1891 upon the petition of property owners, and the act of 1895 upon the initiation of the municipal authorities without such petition. The methods are separate and distinct and each serves a useful public purpose. The act of 1895 took away no power in any municipality that existed before its approval, nor in our opinion did it interfere with any method of procedure already authorized, but let the provisions of the former statute stand except where there was an irreconcilable repugnancy: Hanover Borough’s App., 150 Pa. 202. It will be observed, that the act of 1895 is entirely silent as to sec. 10 of the act-of 1891. This section of the former act is not repealed in express term by the later act, nor does such repeal arise by necessary implication. The act of 1895 contains no repealing clause and there is no such clear inconsistency or repugnancy between the two acts as to require that the later act be held to repeal sec. 10 of the former: Somerset and Stoystown Road, 74 Pa. 61. It is true that the act of 1895 contains a proviso requiring such ordinances to be passed by the affirmative votes of three-fourths of the members elect composing the councils of the'municipality. It also provides, that no such ordinance shall be finally passed in a less period than thirty days from the date of its introduction into councils, and for publication in the newspapers. The contention now made is that the proviso to the act of 1895 as to procedure and notice repealed by implication sec. 10 of the act of 1891. To sustain this position it is necessary to point out an irreconcilable repugnancy and this has not been done. Indeed as to cities the very opposite has been held. The Act of May 22, 1895, P. L. 105, No. 78, empowering cities to improve public streets contains a proviso in almost identical language, and this court, in Greenfield Avenue, 191 Pa. 290, held that the restrictions of the act were introduced as a substitute for the petition, and that the old proceeding remained without modification. The Act of May 22, 1895, P. L. 106, relied on by appellants in the present case, was approved on the same day as the act of 1895, relating to cities and construed in the Greenfield avenue case. As has been pointed out by a learned judge of one of the lower courts, it is perfectly clear that the amended ninth section of the act of 1891 was passed in order to include boroughs with cities in legislation relating to street improvements. As a result of these statutes cities and boroughs have the same general powers relating to street improvements. If, therefore, cities have the power to make street improvements by petition without the restrictions found in the proviso of the Act of May 22, 1895, P. L. 105, as declared in the Greenfield avenue case, it necessarily follows that the same power still rests in boroughs to be exercised according to the procedure and subject to the notice provided in sec. 10 of the act of 1891. Nothing contained in the act of 1895 indicates a legislative intention to interfere in any manner with sec. 10 of the act of 1891. The two acts provide two kinds of notices; the one by handbills posted in conspicuous places along the route of the proposed improvement, the other by publication of the ordinance in newspapers. The first applies where the abutting property owners take the initial steps by petition, and the second where the borough council proceeds of its own volition without such petition. This makes an orderly system and gives full force and effect to the provisions of each statute. For these reasons, we think the sounder view is, that the proviso to the act of 1895, relating to the passage of the ordinance, and to the kind of notice required, is restricted in its application to ordinances passed by borough councils providing for street improvements without a petition from abutting property owners. When the proceeding is instituted by the petition of abutting owners, sec. 10 of the act of 1891 applies.

No useful purpose will be served by discussing several other interesting questions raised by this appeal. The learned court below has disposed of each one of them in an opinion fully justifying the conclusion reached. As to all the questions not discussed in the present opinion the reasoning and conclusions of the court below are adopted.

Decree affirmed at the cost of the appellants.