text:
    Greenwich Coal & Coke Company, Appellant, v. Learn.

      Gift — Goal lands — Title—Parol gift — Statute of Frauds — Exclusive possession — Adverse possession — Improvements—Receipt of produce — Payment of taxes — Statute of Limitations — Declarations of occupant — Evidence—Charge—Appeals.
    1. In an action under the Act of June 10, 1893, P. L. 415, on an issue to determine the title to coal under a certain piece of land, in which plaintiff claims under a deed from defendant’s father and defendant claims under a prior parol gift from his father followed by possession and valuable improvements made, a verdict for the defendant will be sustained where the evidence produced by him is full, complete, satisfactory and clear; and upon a favorable view the Jury could have definitely found the boundaries and the quantity of land claimed; that the parties to the gift had been brought face to face; that the gift had been made in express, direct, positive and unambiguous language, that it had been repeatedly acknowledged by the donor, and as often asserted by the donee; that, in pursuance of the gift, the latter had gone upon the property and made valuable improvements, the cost of which he had defrayed out of his own and his wife’s money, with the knowledge and approval of the donor; that the change from father to son was notorious, and the defendant had maintained open, adverse and exclusive possession of the property continuously for more than twenty-one years; and that it was understood and agreed between the father and the son that the delivery of certain grain grown on the land by the son to the father during his life was in payment for work done by the father in clearing the land.
    2. When, in such a case, it appears that at the time of the gift to the defendant there had not been any severance of the title to the coal, the actual possession of the surface carried with it the actual possession downward perpendicularly through the various strata.
    3. A verdict for defendant in such a case will not be reversed on appeal, although the trial judge in speaking of the character of possession required of the defendant failed to use the term “exclusive possession” in a particular part of his charge, where there was nothing in the language used in this portion of the charge, or in that employed in any of the instructions, which excluded the idea of the necessity for “exclusive possession” and there appears no doubt, taking the charge as a whole, but that the jury must have understood the necessity for absolute possession by the defendant.
    4. Where in such a case a conflict in the evidence leaves in doubt the nature of the arrangement whereby the father received one-third of the grain grown by the son on the land, whether it was given as rent or otherwise, the court commits no error in leaving it to the jury to find what the real bargain was.
    5. In such a case whether the bargain to pay the one-third of the grain to the father was made at the time of the gift or later on would not necessarily fix the nature of the obligation. It might have been made after the son went into possession, independently of the gift, out of appreciation of services performed by the father in clearing the property, without of necessity being a rent or acknowledgment of the father’s continued control over the land, or it might have been a unilateral contract made at the time of the gift, and yet not be a rent or in the nature thereof.
    6. In such a case the trial judge commits no error in refusing to instruct that “the statute of limitations would not run in favor of the son so long as he paid any of the proceeds of the farm to the father” and in answering that this depended on how the jury might find the fact as to whether or not the son paid rent.
    7. In actions involving the character of the occupancy of land, the occupant’s own declarations while in possession of the premises as well as the understanding of his neighbors are proper evidence of the character of his claim. Such declarations accompanying his acts, constitute part of the res gestae, and as such are always received in evidence in questions of possession.
    8. Payment of taxes is an element in the proof of possession under a claim of title.
    Argued Oct. 23, 1911.
    Appeal, No. 209, Oct. T., 1911, by plaintiff from judgment of C. P. Indiana Co., Dec. T., 1907, No. 233, on' verdict for defendant in case of Greenwich Coal and Coke Co. v. Elias Learn.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschiszker, JJ.
    Affirmed.
    Action under the Act of June 10, 1893, P. L. 115, on an issue to determine the title to coal under a certain piece of land. Before O’Connor, P. J., specially presiding.
    The plaintiff' claimed under a deed from Peter Learn dated September 9, 1902. The defendant claimed under a parol gift from Peter Learn made in 1880 or 1881 followed by possession and valuable improvements made. The plaintiff proved its title by deed and rested. The defendant produced testimony that his father, Peter Learn, had the land surveyed and gave it to him, saying, “to go and rid it up and put his buildings on it, it was his,” and “go on and farm it; it is yours, but give me one-third of the grain.” Prior to this Peter Learn had taken the timber brush and logs off a considerable part of the land, but the stumps had not been removed; and he said to his son, “I give it to you, but you clear it out....” The son took possession, built a house, took out the stumps, improved the land, and has lived continuously upon the premises with his family ever since. For the greater part of the time the land was assessed in his name, and he paid the taxes upon it. The change of assessment was made at the request of Peter Learn who told the tax assessor that his son owned the land. Peter Learn had also made gifts of about the like number of acres to other of his sons, and the defendant produced a witness who testified that Peter had said to him “that the other boys had to go into the woods and clear it. Elias was to give him one-third because part of his was clear before he went on.” And, “He said Elias owned it (meaning the land).” And further, “That Elias was to farm the land to suit himself as it was his own.” To another witness Peter said that “He expected one-third of the grain that Elias raised because he had cleared part of the land for him.” A host of witnesses were produced who gave testimony of declarations made to them by Peter Learn that the farm belonged to Elias as his own property, and that Elias was giving him one-third of the grain for the work that he Peter had done in clearing the land. When Elias desired to make improvements upon the property, he said to his father, “My wife has money and I could get the money from her, but we have no deed for this property and she don’t like to use her money;” to which Peter replied, “Do you think that I would give you a piece of land and turn around and take it from you? It is yours. Tell her to use her money.” Other witnesses testified that in their presence Peter had said to Mrs. Learn to go ahead and put her money in the land; that it was Elias’s property. In 1902 Peter Learn said to the agent of the parties to whom he subsequently sold the coal, referring to the land under which it lay, “At one time I owned all this; I gave them to the boys.” And he then pointed out the various tracts and showed where the several boys lived. The agent, who was upon the land for the purpose of renewing an option which his principals afterwards took up, asked Peter how he could lease the coal under such circumstances, and Peter replied, “When I gave them this land there was nothing thought or said about the coal; we did not know anything about coal then.” Testimony was produced to show that Elias always and repeatedly referred to the land as his own, that it was generally known throughout the district as his property, and that before the purchaser paid for the coal Elias had notified it not to do so because his father did not have the right to sell. The plaintiff produced witnesses to rebut parts of this testimony, but the only evidence which attacked the exclusive possession of Elias was the fact that the father usually went upon the land each year at threshing time and received his one-third of the grain, together with the tax records showing that no land was assessed to Elias until the year 1892.

      The court submitted the case to the jury. Verdict for defendant and judgment thereon. Plaintiff appealed.

      Errors assigned: (1) refusal to direct verdict fpr the plaintiff; (2) refusal of judgment non obstante veredicto for the plaintiff; (3) a portion of the charge stating the elements necessary to a verdict for the defendant, in which the term “exclusive possession” was not used; (4) part of the charge in which the trial judge told the jury they were to decide in what capacity defendant occupied the land, whether as tenant or owner, and that if he occupied it as a tenant the verdict would have to be for the plaintiff; that the plaintiff contended the delivery of one-third of the grain by Elias to his father “was an acknowledgment that he was there only as a tenant and that the father still exercised control over that property, and that of itself should be sufficient to find that the defendant was not there claiming it absolutely as his own;” adding, “this is replied to by the defendant saying that in as much as a certain amount of clearing had been done upon this farm, that in order to even him up with the rest, he should make some return____he was not bound to make any specific return, but nevertheless one-tldrd of the grain that he raised upon that place should be given to his father in payment of the amount he was relieved from clearing-on that property;” after which the court said, “You will be required to find that fact so that you may have the entire matter before you.” (5) Part of charge making reference to the testimony concerning the assurance given by Peter Learn to Mrs. Elias Learn that she could safely put her money in the property, and adding, “that is argued by the defendant as convincing, and from what they say you will have no difficulty in finding that Peter Learn did give absolutely, this property to Elias.” (6) Part of charge in reference to the testimony as to tax assessments in which the court calls attention to the fact that 53 acres were transferred in 1895 from the name of Peter Learn to that of Elias Learn. (7) Refusal to instruct that if Peter after the date of the alleged gift required a share of the proceeds of the land and Elias complied, “this shows that Peter Learn still retained control over the land and that he had not made an absolute gift,” adding, “If the jury find, therefore, that the payment of rent was imposed on Elias after the gift or after he took possession, the verdict must be for the plaintiff.” (8) Refusal to instruct that “the Statuté of Limitations would not run in favor of Elias so long as he paid any of the proceeds of the farm to Peter Learn.” And answering, “The answer to this point depends upon the finding of fact.” (9-10-11 and 12) The affirmance of certain points submitted by the defendant in which the word “possession” is used without the word “exclusive” in connection therewith. (13) The affirmance of a point of defendant, “Time is a powerful factor in cases of parol gift or sale of land. Equity is loath to undo a gift or contract for one who has failed to move for its rescission until passing years have grafted new equities upon the transaction, until the donee is grown old, spent the vigor of his age in the use and improvement of a property long regarded as his own;” the answer being, “This point is affirmed. It is the language of the Supreme Court in Sower v. Weaver, 84 Pa. 262.” (14) The admission of testimony as to the general reputation in the community concerning ownership of the property. (15) The admission of testimony of declarations by the defendant while upon and in possession of the land in dispute, as to the character of his ownership.

      Ernest Stewart, with him John A. Scott and Samuel Cunningham, for appellant,
    cited Allison v. Burns, 107 Pa. 50; Greenlee v. Greenlee, 22 Pa. 225, Hill v. Meyers, 43 Pa. 170, and Rankin v. Simpson, 19 Pa. 471.

      William Banks, with him Harry White and J. N. Banks, for appellee.
    — A parol gift of land from a parent to a child, properly executed by possession and improvement, is valid, notwithstanding the Statute of Frauds and Perjuries, especially, where in pursuance thereof, possession has been taken and improvements made; this a fortiori, where this possession has been undisturbed for a great length of time, or where improvements have added largely to the value of the property. Sower v. Weaver, 84 Pa. 262; Syler v. Eckhart, 1 Binn. 378; Matthews v. Matthews, 11 Pa. Super. Ct. 381; Caldwell v. Caldwell, 24 Pa. Super. Ct. 230; Hart v. Carroll, 85 Pa. 508; Mahon v. Baker, 26 Pa. 519.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

The evidence produced by the defendant was full, complete, satisfactory and clear, and upon a favorable view the jury could have definitely found the boundaries and the quantity of land claimed; that the parties to the gift had been brought face to face; that the gift had been made in express, direct, positive and unambiguous language; that it had been repeatedly acknowledged by the donor, and as often asserted by the donee; that, in pursuance of the gift, the latter had gone upon the property and made valuable improvements, the cost of which he had defrayed out of his own and his wife’s money, with the knowledge and approval of the donor; that the change from father to son was notorious, and the defendant had maintained open, adverse and exclusive possession of the property continuously for more than twenty-one years; and that it was understood and agreed between the father and the son that the delivery of one-third of the grain by the latter to the former during his life was in payment for work done by the father in clearing the land. These findings would have been sufficient to sustain a verdict for the defendant: Mahon v. Baker, 26 Pa. 519; Sower v. Weaver, 84 Pa. 262; Hart v. Carroll, 85 Pa. 508; Allison v. Burns, 107 Pa. 50; Hyde-Murphy Co. v. Boyer, 229 Pa. 7; Caldwell v. Caldwell, 24 Pa. Superior Ct. 230. So much has been written upon the general law applicable to the subject in hand that it would serve no good purpose to review it here. The authorities all hold that a case such as the present is not within the Statute of Frauds, and that where a man under circumstances like these has spent the best part of his life improving a piece of land for a home, compensation in damages is not adequate.

At the time of the gift to the defendant there had not been any severance of the title to the coal, and, therefore, the “actual possession of the surface carried with it the actual possession downward perpendicularly through the various strata:” Caldwell v. Copeland, 37 Pa. 427. While there was some evidence that the defendant was in possession of the land before the completion of the gift, there was evidence to the contrary; hence that issue was for the jury: Hyde-Murphy Co. v. Boyer, 229 Pa. 7; Mahon v. Baker, 26 Pa. 519. The court could not have directed a verdict for the plaintiff, and no error was committed in refusing judgment non obstante veredicto in its favor. The first two assignments are overruled.

Although the trial judge failed to use the term “exclusive possession” in the particular part of the charge called to our attention by the third assignment, yet there was nothing in the language there used, or in that employed in any of the instructions, which excluded the idea of the necessity for “exclusive possession.” The jury were told that they must inquire “Was there an absolute gift.... ? Did Elias go into possession of the land, following this gift; do as his father had suggested, build his buildings upon it, pay taxes for a time, have it all to himself and claim it absolutely as his own.... ? If the gift was not of that character____and Peter Learn held control of this property during the occupancy of his son, Elias, then he is not entitled to a verdict, and the verdict will be for the plaintiff.” Again, in the defendant’s points the terms used are “undisturbed possession” and “claiming it as his own against every person and has so continued in such possession.” There is no doubt but that the jury must have understood the necessity for exclusive possession by the defendant. The assignment in question is overruled.

There is no merit in the fourth assignment. The trial judge left it to the jury to find what the real bargain was between the father and son as to the delivery of the one-third of the grain. He called attention to the contention on each side, and the language employed at the end of the instruction was evidently intended to convey to the jury the thought that they were to find which was true in point of fact, so that they might consider the entire case from that vieAV-point. The assignment is overruled.

The fifth assignment fails to quote all that was said by the court in connection with the instruction complained of therein. If the language employed is taken with its context, it is not likely that the jury could have understood it as a direction to find the particular fact referred to in favor of the defendant; it is more probable they understood that the court merely meant to call their attention to the fact that the defendant argued that they should have no difficulty in finding that Peter Learn made an absolute gift of the land to Elias. While this portion of the charge was not as nicely phrased as it might have been, we are not convinced that the plaintiff suffered any harm therefrom, and the assignment is overruled.

; We see no error in the sixth assignment. All the cases hold that the payment of taxes is an element in the proof of possession under a claim of title, and if the plaintiff desired the court to call attention to the fact that the land was assessed to Peter Learn prior to the date mentioned in the instruction, it should have so requested. The assignment is overruled.

Had the court affirmed the point in the seventh assignment it would have been equivalent to instructing the jury that the delivery of the grain was the payment of a rent, and that the verdict should be for the plaintiff. Whether or not the one-third of the grain was a rent depended upon the facts. It nowhere appeared in the evidence that Peter Learn had ever so designated it, and all his declarations were inconsistent with such an idea. As before indicated, that issue was for the jury and was properly submitted. This assignment is overruled.

The eighth assignment criticises the answer made by the trial judge to the effect that the running of the Statute of Limitations in favor of the defendant depended upon how they might find the fact as to whether or not Elias paid rent. We see no error in this, and the assignment is overruled.

The matters covered by the next four assignments are sufficiently disposed of in our discussion of the third assignment. These assignments are overruled.

Although there was no testimony to show that the defendant had “grown old,” yet we cannot say that any substantial harm was done by the instruction complained of in the thirteenth assignment; it is overruled.

The testimony quoted in the next two assignments, concerning declarations by the defendant and others, was properly admitted. As to the admission of such testimony, we have said, “His (the occupant’s) own declarations while in possession of the premises as well as the understanding of his neighbors, was proper evidence of the character of his claim:" Kennedy v. Wible, 11 Atl. Repr. 98. “Such declarations accompanying his acts, constitute part of the res gestas, and as such are always received in evidence in questions of possession:" Potts v. Everhart, 26 Pa. 493. “The character of possession of a party as stated by himself while in possession is part of the res gestee”: Susquehanna & Wyoming Valley R. R. & Coal Co. v. Quick, 68 Pa. 189. These assignments are overruled.

Before concluding we note that it is not clear how much of the testimony of the defendant was intended to be stricken from the record; but we do not take it that the first part covering the language and the time of the gift was affected by the order of the court. However that may be, whether the bargain to pay the one-third of the grain to his father was made at the time of the gift or later on, would not necessarily fix the nature of the obligation. It might have been made after the defendant went into possession, independently of the gift, out of appreciation of the services performed by his father in clearing the property, without of necessity being a rent or acknowledgment of Peter Learn’s continued control over the land; or it might have been a unilateral contract made at the time of the gift, and yet not be a rent or in the nature thereof. The repeated declarations of Peter Learn to the effect that he had given the land to his son, and as to the arrangement for the delivery of the grain, made when the parties'were face to face, accompanied by the act of the assessment of the land to the defendant by the direction of his father, constituted strong evidence of a gift: Sower v. Weaver, 84 Pa. 262, 269; Matthews v. Matthews, 11 Pa. Superior Ct. 381; Caldwell v. Caldwell, 24 Pa. Superior Ct. 230. It may also be well to note that the equities of this case are with the defendant. He was not only in actual possession of the land, which was enough to put the purchasers of the coal upon inquiry as to his title (Hottenstein v. Lerch, 104 Pa. 454; Rowe v. Ream, 105 Pa., 543; White v. Patterson, 139 Pa. 429), but, if the evidence of his witnesses is to be believed, and the verdict shows that it was, he served actual notice of his claim of title before any purchase money was paid. After reading the testimony and reviewing the entire record, we feel that the evidence was sufficient to sustain the verdict and that no reversible error was committed in the trial.

The judgment of the court below is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Bellevue Borough, Appellant, v. Hallett.

      Judgments — Warrant of attorney to confess — Exhaustion of power — Striking out second judgment — Practice, O. P.

    A power to confess judgment authorized by a warrant of attorney is exhausted by entering a judgment thereon, and a subsequent judgment entered on the same warrant after the prior judgment has been stricken off for irregularities appearing on the face of the record, will be struck off upon petition.
    Argued Oct. 23, 1911.
    Appeal, No. 149, Oct. T., 1911, by plaintiff from order of C. P. No. 4, Allegheny Co., Third T., 1911, No. 222, striking off judgment in case of Borough of Bellevue v. Ebenezer Hallett.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart, and Moschzisker, JJ.
    Affirmed.
    Petition to vacate a judgment entered D. S. B. Before Cohen, J.
    It appeared from the record that the plaintiff borough had undertaken to enter a judgment by confession against the defendant at No. 117 Second T., 1911, D. S. B. on the warrant contained in a contract between plaintiff and defendant in which proceeding a statement of claim was filed but by mistake no formal confession of judgment was filed, for which reason the judgment was subsequently stricken off upon motion. The plaintiff then filed a new statement of claim and a formal confession of judgment upon the same warrant and for the same debt as that involved in the former irregular proceeding.
    The court below filed the following opinion sur petition to strike off the judgment:
    “We have studiously applied the case of Philadelphia v. Johnson, 208 Pa. 645, to the facts in this case, but cannot construe it in favor of the plaintiff as so ably urged in Ms brief. It is true the Court therein substantially states that when the purpose of the power has been fully executed by its accomplishment, it is exhausted and the authority ends when nothing remains to be done in pursuance thereof. This language apparently has reference to the purpose of the warrant being accomplished — that is, the act of confessing judgment, which is its only object — and not to the purpose of the contract or anything connected with it. The power in this case was perfectly executed the moment the first judgment was confessed on January 25, 1911, and became the subject of review by the Court, by reason of any existing facts “not entering into the mere act of execution.” An application was made and this Court, after argument and due consideration, made absolute the rule to strike off the first judgment entered on January —, 1911. True this was done because of irregularities appearing on the face of the record, but the power authorized by the warrant had nevertheless been exhausted. We cannot breathe into it the breath of life in view of the unbroken line of decisions sustaining this construction, down to the latest case of Commonwealth v. Massi, 225 Pa. 548, which approved the case of Philadelphia v. Johnson, 208 Pa. 645, cited by plaintiff in support of his argument, but which we. are unable to construe in any other way but as being against plaintiff’s position, all the other cases are so evident as not to require citation.
    “The petition and rule to strike off this second judgment, entered on May 24, 1911, is therefore made absolute.”

      Error assigned was in making absolute rule to strike off judgment.

      W. S. Dalzell, with him David L. Starr, for appellant.

      George H. Quaill, for appellee.
    — If any use is made in any manner or at any time of the warrant of attorney or the instrument containing the warrant of attorney by which a judgment has been entered, no second use can be made of the same warrant. Ulrich v. Voneida, 1 P. & W. 245; Martin v. Rex, 6 S. & R. 296; Neff v. Barr, 14 S. & R. 166; Adams v. Bush, 5 Watts 289; Ely v. Karmany, 23 Pa. 314; Banning v. Taylor, 24 Pa. 297; Osterhout v. Briggs, 37 Pa. Super. Ct. 169; Philadelphia v. Johnson, 208 Pa. 645; Commonwealth v. Massi, 225 Pa. 548.
    January 2, 1912:
   Per Curiam,

The judgment of the Common Pleas appealed from is affirmed on the opinion of that court.


text:
    Pittsburgh, Appellant, v. Pittsburgh Railways Co.

      Equity — Specific performance — Street railways — Streets—Repairs — Continuing contracts.

    1. A city is not entitled to maintain a bill in equity against a street railway company to enforce specific performance of contracts, based on ordinances, for keeping streets in repair, the prayer of the bill being for a decree that the defendant company “immediately proceed to place in repair the said streets... .to the extent it appears to be liable by the foregoing ordinances, and that it use in making such repairs first class and modern material and a modern approved methods of repairing a track construction, and rails and fittings of modern design and first class quality.”
    2. In such a case equity will leave the parties to their legal remedy.
    Argued Oct. 23, 1911.
    Appeal, No. 156, Oct. T., 1911, by plaintiff from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 501, sustaining demurrer to bill in equity in case of City of Pittsburgh v. Pittsburgh Railways Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Bill in equity for specific performance.
    On demurrer to the bill, Shaper, J., filed tbe following opinion:
    The bill alleges that the defendant company claims to be a corporation under certain letters patent, and claims the right to maintain and operate street railways in the city of Pittsburgh under certain leases and agreements from some 40 street railways companies; that by the provisions of the acts under which some of these companies were incorporated they are bound to maintain in good repair certain portions of the streets; that a large number of ordinances have been passed relating to these street railways, imposing certain duties upon them as to keeping streets in good repair, copies of some 50 ordinances being annexed to the bill, some of these ordinances being of the city of Pittsburgh, some of the former city of Allegheny, and others of a number of boroughs which have since been incorporated into the city of Pittsburgh.
    It is further alleged that these street railways are now maintained and operated by the defendant company under these agreements, and that it is therefore liable to keep the streets of the city in good repair, but that notwithstanding its liability to do so, it has neglected and refused to keep certain of the strees in good repair, and neglects to put such streets in condition of good repair, and refuses to adopt modern and improved methods of repaving and to adopt a good type of rails and fittings, and that by reason thereof the streets of the city occupied by the company are continually in a state of bad repair, being full of holes and unevenness, and that accidents are liable to happen by reason thereof, and that the plaintiff is obliged to spend more money than it should to maintain the portion of said streets which it is liable to maintain, and that a schedule of the streets so claimed to be out of repair and showing the character of the defects is added to the bill as an exhibit, the defects pointed out in the schedule being substantially, ‘paving bad,’ ‘paving bad along the tracks,’ or ‘paving bad in places.’
    The prayer of the bill is for a decree that the defendant company ‘immediately proceed to place in repair the said streets and highways in the city of Pittsburgh to the extent it appears to be liable by the foregoing acts and ordinances, and that it use in making such repairs first-class and modern material and modern approved methods of repaving and track construction, and rails and fittings of modern design and first-class quality.’
    To this bill the defendant has demurred (1) That the bill is multifarious; (2) that no demand on the company to make the repairs is alleged; (3) that no reasonable opportunity after notice was given the defendant to make the repairs; (4) that the plaintiff has an adequate remedy at law, and (5) that it does not appear that the defendant is a person or corporation competent to be sued.
    Whether a bill in equity contains too many subjects, or subjects too different from each other to be litigated in one proceeding, is a matter of convenience to be determined in each case under all the circumstances. As the subject matter of all the claims made by the plaintiff against the defendant is substantially the same in each case, though founded upon different ordinances, we are not convinced that all the matters contained in the bill may not be discussed in one proceeding without inconvenience to the parties or the court.
    The second and third grounds of demurrer, which, taken together, substantially are that the plaintiff cannot maintain a bill without showing previous demand for the making of the repairs, and the allowance of a reasonable time to make them, constitute a more serious objection to the bill.
    If this were an action at law to recover for the cost of paving done by the plaintiff, which should have been done by the defendant, we are of opinion that the objection would be fatal, but as against a bill in equity, in which the court has full power to give the defendant time to make repairs, we are of opinion that it is not necessary in the first instance to make a demand or give time to repair, but that the want of this goes only to the question of costs.
    The fourth ground of demurrer, that the court has no jurisdiction to decree specific performance of the company’s duty to repair the streets, is, however, in our opinion, well taken.
    So far as that duty is statutory it must be enforced by the remedy provided by the statute. In the present case, however, the plaintiff’s claim is founded wholly, or almost wholly, upon the contracts made with the various railway companies operated by the defendant company by which they bound themselves to keep the streets in repair. There is nothing in the fact that the plaintiff is a municipal corporation, or that the defendant is a public service corporation, which can give the plaintiff any peculiar right to a decree for specific performance different from the right of one individual against another. The only cases in which specific performance has been decreed in' Pennsylvania are the common cases of the sale of land and the very few cases concerning personal property in which it has appeared that for some peculiar reason a suit for damages for failure to perform would not give adequate relief; such as the case of Vail v. Osbourn, 174 Pa. 580, where specific performance was decreed of an agreement to cut and deliver bark to a tannery from trees close to the tannery, where it appeared that bark could not be obtained otherwise. Unless some such element appears equity leaves the parties to their legal remedy. Especially must this be the case where the contract sought to be enforced specifically is for putting streets in repair and thereafter keeping them in repair, which would involve a supervision of the court over the matter for an indefinite time. No case has been pointed out to ns wherein specific performance of snch a contract has been asked for or decreed as the principal relief sought by a plaintiff. On the contrary, there have been quite a number of cases in this Commonwealth where the breach of duty to repair streets by street railway companies has been enforced in action of assumpsit, as the cases of Reading v. United Traction Company, 215 Pa. 250; McKeesport Boro. v. McKeesport Passenger Railway Company, 158 Pa. 447; Philadelphia v. Ridge Avenue Passenger Railway Company, 143 Pa. 444, and many others.
    Counsel for the plaintiff cites as precedents for the bill two cases, McKeesport v. Pittsburgh Railways Company, 50 Pitts. Leg. J. 377, and Patton Township v. Monongahela Street Railway Company, 226 Pa. 372. In neither of these cases, however, did the bill pray for specific performance of a contract to repair. In the Mc-Keesport case the bill was to forfeit the franchise of the railways company for breach of a condition upon which it was granted, namely, that it shall keep the streets in repair, and the prayer was not for an order requiring the repairs to be made, but for a decree of forfeiture unless it was made within a reasonable time, which is a very different thing. In the Patton township case the agreement of the railways company, namely, to lay a second track, which it had agreed to do upon certain conditions, the existence of Avhich it denied, and the prayer as to the want of repair of the track Avhich was already laid was the same as that in the McKeesport case, for forfeiture unless the repair was made, it being alleged that the keeping of the street in repair was a condition subsequent to the grant of the franchise to lay the street railway and the prayer was that unless the repair was made the Avhole raihvay should be removed. The present bill contains no' allegation that the duty to repair in any of the streets mentioned in the bill was a condition of the continuance of the franchise, nor does it ask for any forfeiture on that account. It is purely and simply a bill for specific performance. Being of opinion, therefore, that the court has no jurisdiction to grant the relief sought, for the reason above stated, the demurrer is sustained and the bill is dismissed at the costs of the plaintiff.”
    An amendment to the original bill having been allowed, Shafer, J., filed the following opinion on demurrer :
    A demurrer having been heretofore sustained to the bill in this case, the plaintiff was allowed to amend by adding an additional paragraph to the bill. By the added paragraph it is alleged that the city and the railways company are unable to agree upon the extent of the liability of the defendant or the manner in which the defendant should do the work or make repairs; that it would be difficult to keep an accurate account of the cost of said work so as to properly charge the defendant, the defendant being liable to the city only for repairs and cleaning done on only a part of the street; and that it is not practicable for the plaintiff to do the work and make the repairs because in so doing it would interfere with the operation of the defendant’s cars. To the amended bill the defendant has demurred as before. Upon a careful consideration of the bill as amended we are unable to see that it differs substantially from the original bill, or that anything contained in the amendment is sufficient to give jurisdiction to decree specific performance under the circumstances.
    The demurrer is therefore sustained.

      C. Elmer Bown, with him C. A. O’Brien, for appellant,
    cited Patton Township v. Monongahela Street Railway Co., 226 Pa. 372.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him Allen H. Kerr, for appellee.
    — The remedy at law is adequate. Reading v. United Traction Co., 215 Pa. 250; Philadelphia v. Pass. Ry. Co., 169 Pa. 269; Penna. R. R. Co. v. Duquesne Boro., 46 Pa. 223.
    The proposition that specific performances of construction or repair contracts will not be granted in equity, seems well established. Fallon v. Railroad Co., 1 Dillon (U. S.) 121; Ross v. Union Pacific Ry. Co., 1 Woolworth (U. S.) 26; Beck v. Allison, 56 N. Y. 366; Oregonian Railway Co. v. Oregon Railway & Navigation Co., 11 Sawyer (U. S.) 33, (37 Fed. Repr. 733); Columbus & Shelby Railroad Co. v. Watson, 26 Ind. 50; Rutland Marble Co. v. Ripley, 77 U. S. 339.
    January 2, 1912:
   Per Curiam,

The decree is affirmed for the reasons stated in the opinion of Judge Shafer.


author: Mr. Justice Elkin,

text:
    Coates, Appellant, v. Allegheny Steel Company.

      Contracts — Wages—Discharge—Cause for discharge — Affidavit of defence — Sufficiency.
    1. In an action to recover wages for a period of months between August, 1909, and April, 1910, under a contract of employment for a definite term, judgment for want of a sufficient affidavit of defence will not be entered where it appears by the statement and affidavit of defence that the contract gave to either party the right to declare a termination upon twelve months notice; that the defendant gave notice in April, 1909, that the contract would terminate May 1,1910; that in June, 1909, defendant gave plaintiff notice that he must diligently exert himself to secure other employment, or all relations between the parties would be terminated and the payment of salary discontinued; that about the middle of August, 1909, the defendant, upon learning that the plaintiff was travelling in Europe for purposes of his own ceased to make further payments on account of salary, but no notice of discharge or refusal to pay further salary was given at that time; and that in November the defendant gave plaintiff notice of his discharge. In such a case, while the plaintiff is entitled to recover full monthly salary up to the time when notice of discharge was given, the question whether a good cause for discharge existed is, under the facts, for a jury.

      Contract — Wages—Discharge without sufficient cause — Effort to obtain employment — ■Burden of proof.

    2. Where a servant has been discharged without sufficient cause before the expiration of his term of employment, he is entitled to recover wages for the whole term, but he is bound to make reasonable efforts to obtain employment elsewhere, and in an action to recover wages under a contract for a definite period where it appears that plaintiff was discharged without sufficient cause, the burden of showing that by reasonable effort he might have found some other employment is upon the defendant.
    Argued Oct. 23, 1911.
    Appeal, No. 158, Oct. T., 1911, by plaintiff from order of C. P. No. 2, Allegheny Co., Jan. T., 1911, No. 581, dismissing rule for judgment for want of a sufficient affidavit of defense in case of Jesse Coates v. Allegheny Steel Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Eule for judgment for want of an affidavit of defense.
    It appears from the statement of claim that the plaintiff was employed by the defendant company under a written agreement, made determinable by either party upon twelve months written notice.
    Under date of April 29, 1909, the defendant company wrote to the plaintiff as follows:
    “Mr. Jesse Coates,
    Natrona, Pa.
    “Dear Sir:
    “Owing to the changes already made and others about to be introduced, by the Allegheny Steel Company, in the manufacture of its product, and especially in the manufacture of magnetic steel sheets, it is obvious that it will not hereafter have the occasion for such services, as are contemplated under the agreement between you and the Allegheny Steel Company of March 1st, 1907.
    “Therefore, the Allegheny Steel Company desires to avail itself of its privilege under the said agreement, of terminating the same on twelve months’ notice, and the Allegheny Steel Company hereby accordingly gives to you notice that it has elected to exercise its privilege and that the agreement is and will be cancelled, on and after the expiration of twelve months from the giving of this notice, that is to say, cancelled on the first day of May, 1910. The Allegheny Steel Company does not intend to hereby claim, or to assert, any right to sooner terminate your employment under the agreement, but, if agreeable to you, the Allegheny Steel Company would like to effect some amicable arrangement under which, at the earliest practicable day, you may have employment elsewhere in some field in which your skill and ability may be made available and wherein you may secure as high, or even higher salary, than is payable under our agreement. You may regard yourself as free to take up any line of employment that you may deem proper and if we can assist you in any way in so doing, we will be pleased to do so.
    “Our hope and desire is that during the intervening year prior to the termination of our agreement you will do all you reasonably can to relieve us from our obligation thereunder.
    “With best wishes for your success and assurances of our high esteem for you personally, we beg to remain,
    “Yours truly,
    “The Allegheny Steel Company,
    “(Signed) H. E. Sheldon,

      “President.

    “P. S. — Please be good enough to acknowledge the receipt of this and keep us advised as to your P. O. address.”
    Later, on November 9, 1909, the following letter was written:

      “Mr. Jesse Coates,
    “Care of Deutsche Bank, Berlin, Germany.
    “Dear Mr. Coates:
    “I have your letter of October 20th and note that you are still in Berlin. I received a cablegram from you several days ago asking me to wire reasons that your salary was stopped.
    “I believe that we had a thorough understanding at the time we gave you leave of absence, that circumstances of which neither you nor we had any control had occurred which made your services of little or no value to us, explaining this matter thoroughly to you and also explaining it to you that while we considered it our duty under the contract to continue your salary, it was also your duty to use all due diligence in procuring for yourself another position, so as to relieve us as soon as possible of the burden of paying your salary without any recompense.
    “It does not seem to us that you have made any such effort. We do not know by whose authority or instructions you went to Europe, but we most certainly know it was not instructions from the Allegheny Steel Company.
    “The Allegheny Steel Company takes the position that it had given you sufficient time to procure other employment, that you have made no effort whatever to do s.o and therefore its obligation to pay you a salary is ended. Personally I regret this very much but under the circumstances the company had no other course to pursue.
    “I remain, very respectfully,
    “(Signed) Allegheny Steel Co.,
    “Harry E. Sheldon, President.”
    Further facts appear by the opinion of the Supreme Court.

      Error assigned was in discharging rule for want of a sufficient affidavit of defense.

      Frank McC. Painter, of Young, McClintock & Painter, for appellants.
    — A discharge must be in plain, at least not in ambiguous words, or by actions fully indicating the party’s intent. L. & N. R. R. Co. v. Harvey, 15 Ky. Law Reporter 809; Daniell v. Boston & Maine R. R. Co., 184 Mass. 337 (68 N. E. Repr. 337); Isaacsen v. Andrews, 69 N. Y. App. Div. 430 (74 N. Y. Supp. 1039); Barnett v. Cohen, 110 N. Y. Supp. 835; Wheaton v. Higgins, 90 N. Y. Supp. 1041.
    But if discharged, the only ground relied upon in justification has been waived and condoned. Shaw v. Lewiston & Kishacquillas Turnpike Co., 2 P. & W. 454; Farmers’ Mut. Ins. Co. v. Taylor, 73 Pa. 342; Comes v. Beezer Brothers, 51 Pitts. Leg. J. 94; Matthews v. Park Bros. & Co., 146 Pa. 384; Jones v. Vestry of Trinity Parish, 19 Fed. Repr. 59; Leatherberry v. Odell, Ragan & Co., 7 Fed. Repr. 641; Martin v. Everett, 11 Ala. 375; Fitzpatrick Square Bale Ginning Co. v. McLaney. 153 Ala. 586 (44 So. Repr. 1023).

      Alexander J. Barron, with him McKee, Mitchell & Alter, for appellee.
    — The failure to give a reason for the discharge is immaterial. Corgan v. Lee Coal Co., 218 Pa. 386.
    There could not have been any condonation on the part of the defendant which would estop it from pursuing the course which it adopted in this case. Leatherberry v. Odell, Ragan & Co., 7 Fed. Repr. 641; Glasgow v. Hood, 57 South Western Repr. 162.
    January 2, 1912:
   Opinion by

Mr. Justice Elkin,

This is an appeal from an order dismissing the rule for judgment for want of a sufficient affidavit of defense. In our consideration of the case we do not have the benefit of the views entertained by the learned court below on the questions involved because no opinion was filed. The suit -was brought to recover wages under a contract of employment for a definite term. The contract in terms gave to either party the right to declare a termination by giving twelve months’ notice in writing. On April 29, 1909, appellee gave notice in writing to appellant of its intention to exercise this privilege by terminating the contract on May 1, 1910. In giving this notice appellee acted within its contractual rights and appellant was bound by the terms of his own agreement. As the case then stood the relation of employer and employee was to continue until the time fixed by the notice for the termination of the contract and appellant had the prima facie right to demand his salary up to May 1, 1910. If nothing had subsequently occurred between the parties, payment only would have been a defense in a suit to recover the salary for the remainder of the period named. Something did subsequently occur and the questions involved here have to do with the subsequent occurrences. Are they sufficient to overcome the prima facie case upon which appellant stands, and if so, to what extent is appellee relieved from this prima facie liability? We cannot regard the letter of Apxfil 29, 1909, as a discharge of appellant. The parties themselves did not so regard it and why should the courts? There is nothing in the language used to indicate an intention to discharge at that tixne, and the payxnent of the salary for several months after the xxotice was givexx can only mean that the party who gave it did not so understand it. It is averred in the affidavit of defense that about the middle of June, 1909, appellee notified appellant that he must diligently exert himself to secure other employmexxt, and unless he did so, all relations between the parties would be terminated and the payment of salary discontinued. In the light of this averment how can it be seriously contended that there had been a discharge ixx the preceding April? The averment was that the contract of employment had xxot been terminated at that time, bnt would be in the future, unless appellant diligently exert himself to secure other employment. There is the further averment that about the middle of August, 1909, the president of appellee company met appellant in Germany, and there learned that he was traveling in Europe for purposes of his own, and not for the benefit of appellee company. Upon learning these facts appellee ceased to make further payments on account of salary, but it is apparent on the face of the record that no notice of discharge or of refusal to pay further salary was given appellant at that time. Whatever reasons appellee had for so doing were not communicated to appellant. The record shows some time in October appellant by cablegram from Germany asked why his salary had not been paid. In answer to this cablegram appellee wrote the letter dated Nov. 9, 1909. This is the first notice served on appellant that can be considered in the nature of a discharge. It is contended that even this letter does not in any proper legal sense constitute a discharge. We cannot accept this view of the case. The rule is that no set form of words is necessary to constitute a discharge. Words which show a clear intention on the part of an employer to dispense with the services of an employee, equivalent to a declaration that the services of the employee will be no longer accepted, are sufficient. It is true the words used must convey to the servant the idea that his services are no longer required and will not be accepted. We are of opinion that nothing said or done by the appellee prior to the writing of the letter of Nov. 9, 1909, conveyed to appellant the idea that his contract of employment had terminated, and that his services as an employee would be no longer compensated. In other words, up to that time nothing done by appellee was within the meaning of the law sufficient to constitute a discharge. On the other hand we think the letter of November 9th was a sufficient notice of discharge under the rule above indicated. While we hold the letter in question to be a sufficient notice of discharge, we do not now undertake to determine the question whether there was sufficient cause for discharge. The discharge may or may not have been wrongful, depending upon the facts and circumstances. If there be no dispute as to the facts, the court may determine as a matter of laAv, whether there Avas sufficient cause, but if the facts be disputed, the general rule is that the jury must determine whether or not the discharge Avas wrongful. Appellee contends under the authority of Corgan v. Lee Coal Company, 218 Pa. 386, that it was not necessary to assign a valid reason in his notice of discharge, provided appellee had in fact a good reason for exercising the right to discharge. The rule announced in that case is sustained by ample authority, but under the facts of the present case, we think it is for the jury to say whether a good cause for discharge existed when the letter of November 9 th was written. It is also for the jury to determine in view of all the facts whether the discharge was made in good faith, and whether the reasons given therefor, were not a mere subterfuge to dispense with the services of appellant so as to relieve appellee from the payment of salary under the terms of the contract. In our view of the case under the facts presented by the pleadings, appellant is entitled to recover full monthly salary up to and including November, 1909, the month when notice of discharge was given. His right to recover salary after November depends upon what the jury shall determine as to the discharge being rightful or Avrongful. If appellant was rightfully discharged he cannot recover salary, if wrongfully, his right to recover still exists under the contract.

One more question should be adverted to so that when the case is tried in the court below it may finally be disposed of. The rule is that where a servant has been discharged without sufficient cause before the expiration of his term of employment, he is entitled to recover wages for the whole term, but he is bound to make' reasonable efforts to obtain employment elsewhere. We have held that the letter of April 29, 1909, was not a discharge but was in effect a leave of absence with salary attached. That it was a leave of absence and not a discharge, is shown by the letter of November 9th, in which it is expressly stated that appellant was given a leave of absence. If the jury shall determine that the discharge of November 9th was made without sufficient cause, the burden of showing that appellant by reasonable effort might have found other employment is upon, the appellee. Such a defense is by way of mitigation and the burden is upon him who asserts it. Emery v. Steckel, 126 Pa. 171. Whether this defense is sufficient to overcome the prima facie case of appellant, or to what extent it may be considered to reduce the amount to be recovered, are questions of fact to be determined by the jury. The duty of making a reasonable effort to secure other employment did not arise until there had been a final discharge. Prior to that time the parties were acting under and bound by their contractual obligations.

The learned court below simply refused to enter judgment for want of a sufficient affidavit of defense and under the motion nothing else could be done. Appellant was not entitled as a matter of law to judgment for the whole sum demanded. The averments of the affidavit of defense raise some questions of fact to be submitted to the jury.

Order of the court below dismissing the rule for judg-. ment for want of a sufficient affidavit of defense is affirmed and the record is remitted for the purpose of having a trial upon the merits,


text:
    American Conduit Manufacturing Company, Appellant, v. Kensington Water Company.

      Equity — Water companies — Customer's right to service — Cross-bills — Misappropriation of water — Decree.
    On a bill in equity filed by a customer against a water company to enjoin the shutting off of water, where the defendant company files' a cross-bill for an accounting for water alleged to have been stolen by the plaintiff from the defendant company by means of a meter device, and the chancellor finds .the wrongdoing as a fact, and further finds from the evidence introduced by the defendant that it was not unreasonable to believe that an average of 9,000 gallons a day for twenty-six days each month during a certain period had been misappropriated by means of the device, a decree holding that the plaintiff should pay the defendant for this amount of water during the period in question at the market value of water during that time, and enjoining the defendant company from shutting off the water supply of plaintiff providing the plaintiff should comply with the rules of the water company and pay the amount found to be due will be sustained on appeal.
    Argued Oct. 23, 1911.
    Appeal, No. 161, Oct. T., 19li, by plaintiff from decree of C. P. No. 2 Allegheny Co., Jan. T., 1911, No. 456, on bill and cross bill in equity in case of The American Conduit Manufacturing Company v. Kensington Water Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction. Cross-bill to recover for water misappropriated.
    Shaper, J., filed the following opinion:
    The bill is by a customer of a water company to enjoin the shutting off of the water by it. The defendant company filed a cross-bill for an accounting for water alleged to be stolen by the plaintiff from the defendant company by means of a device connecting the main with the company’s works without passing through the meter.

      First. The plaintiff is a manufacturing company, having its works located in the Borough of Kensington, Westmoreland County, and the defendant is a water company incorporated for the purpose of furnishing water to the Borough of Kensington under the laws of Pennsylvania relating to water companies.
    Second. In September, 1903, and for sometime prior thereto, the water company furnished water to the plaintiff at a certain rate per month, without measurement. Sometime before October 1, 1903, the plaintiff was notified by the water company that they desired to install a meter, and that the flat rate theretofore prevailing would cease on October 1, 1903.
    Third. From that time until the following May there appear to have been negotiations of some character between the plaintiff and defendant as to the method of furnishing water and no meter was in fact put in until May 16,1904, and it was agreed by the parties sometime before that, that after the meter was put in a test should be made for a certain length of time and the water furnished after October 1, 1903, and up to May 16, 1904, should be paid for by a rate to be established by the average readings of the meter for a certain time.
    Fourth. The meter was put in by the plaintiff company and either by the addition of new pipes or the adaptation of those which were already in use, or both, the arrangement of the pipes conducting the water from the water main into the works of the plaintiff, at and immediately after the installation of the meter was as follows: the street on which the water main lies runs north and south. From this main to the south side of the plaintiff’s works a pipe was run at right angles to it for some distance into the ground of the plaintiff. From this pipe there extended north, and parallel with the street, three pipes; the first of which, counting from the street, passed through the meter; the second extends some distance into the yard and ends in a hydrant; and the third extends northward to a part of the plaintiff’s works including a gas engine. From the third pipe to the first, after the first passed through the meter, extended another pipe, in a southerly direction, connecting the first and third pipes. The stop-cocks on these pipes were, one near the street, which would shut off all the water; one on the third pipe and going to the branch pipe leading south to the first pipe; another one on the third pipe after that branch; one on the branch itself; and one on the second pipe. The last four mentioned valves being within a foot or so of each other and enclosed in a box, which could be reached with a proper instrument from the surface of the ground, so as to turn them on or off.
    Fifth. The object of this device was to enable the plaintiff to take the water without its passing through the meter, and the effect of the construction was that none of the water which passed through the second pipe could pass through the meter; that all the water which passed through the third pipe might be allowed to pass through the meter or none of it pass through, as might be desired, and that all the water which passed through the first pipe might be made to pass through the meter or part of it might be allowed to pass through the meter and a part to pass through the branch pipe, as desired.
    Sixth. According to the readings of the meter from May 16, 1904, to June 30, 1904, a settlement was made for the water used between October 1, 1903, and May 16, 1904, the parties having agreed to settle for this water, not actually measured, according to the readings of the meter for a month and a half after May 16th.
    Seventh. The water company continued to furnish water and render monthly bills therefor, according to the readings of the meter, on its schedule of rates, until about October 22, 1910; the same being paid by the plaintiff company.
    Eighth. The present officers of the plaintiff company were none of them connected with the company at the time the device above mentioned was installed. The president of the company at that time, by whose direction the device was pnt in, being dead. The fact of its existence was known to some of the employes.
    Ninth. The bill in this case alleges that the first knowledge any of the officers of the company had of the existence of the by-pass “which caused it to make an investigation,” was on or about May 1,1910. The present president of the plaintiff company who has held that office since January, 1910, and immediately before that time was secretary and treasurer of it, testified that Armstrong, who was then a foreman for that company, said to him as he saw a check made out for the water company, that the water company had done him a wrong and he had gotten even with them, saying, “I fixed it down at the fixture so we are getting a lot of water we are not paying for.” This is denied by Armstrong, who says he never told the president of the company anything about it until May, 1910. The fact is, however, that no steps were taken to investigate any supposed method of stealing water until May, 1910, when Armstrong, who had in the meantime gone out of the service of the plaintiff company, and had had some contention with them; informed the president of the company of the nature of the by-pass, giving him a sketch of it.
    Tenth. At that time, or sometime later in the summer, the president of the plaintiff company directed one of the valves to be turned so that the water could not pass through the gas engine, and ordered it to be cut off so that it could not be re-turned, and one of the valves was so cut off.
    Eleventh. The officers of the plaintiff company did not communicate to the water company the existence of the by-pass and it became known to them only by information from Armstrong, given in October, 1910. On October 22, 1910, the water company made an examination of the plant, taking off the meter and substituting for it a piece of pipe with a stop-cock in it, and making tests at different parts of the plant, from which it was ascertained that in addition to the water at the hydrant, which could not pass through the meter, water was running to the gas engine, although the stop-cock in the pipe substituted for the meter was closed. The valves were then closed so that, so far as appears, no water went through the by-pass since that time except what may have gone by way of the hydrant.
    Twelfth. It is obviously impossible to determine with accuracy, or any approximation to it, the amount of water which went through the by-pass and was therefore not measured by the meter during the time from May 16,1904, to October 22,1910, and we have no evidence of the amount which could have so passed. The best that can be done under the circumstances, in view of the rule that everything is to be presumed against the party by whose fault the want of more accurate measurement arose, is to take the various uses of the different parts of the plaintiff’s works and the amount of water probably used by them and in that way ascertain the amount of water which may well have passed through the by-pass and been used by the plaintiff.
    Thirteenth. The defendant has given evidence as to the amount of water probably used in the gas engine and at the hydrant, and also of the amount probably wasted by a leak alleged to be in the gas engine, together with the number of hours and days when these sources of loss to the defendant were probably in operation, and the plaintiff has given evidence tending to show that the estimate of the defendant is too large. No attempt was made on the part of the defendant to show anything about the water which may have passed into the other parts of the works through the connection which, when open, competed with the connection through the meter. The evidence on the part of the defendant shows that it is not unreasonable to believe that an average of 9,393 gallons was lost to the defendant daily for twenty-six days of each month during the period in question, amounting in a month to 244,218 gallons, the total amount so taken being obtained by multiplying this amount by the number of months from May 16, 1904, to October 22, 1910.
    Fourteenth. As to the amount of water supplied by the defendant to the plaintiff: from October 1, 1903, to May 16, 1904, it appears that the gas engine and hydrant were in use during that time substantially as they were afterwards; that no meter was then in use, although the flat rate had been discontinued, and that the water so supplied was paid for by the plaintiff company upon the average of the meter readings for a certain time after May 16, 1904. The defendant company was therefore deceived in its settlement for the water furnished during these months. No water was, however, stolen during these months.
    Fifteenth. The market value of water during all the time in question was 30 cents per thousand gallons. The meter rates charged by the defendant company were, for 500 gallons or less daily, 30 cents per thousand; from 1,000 to 5,000 gallons daily, 25 cents per thousand; from 5,000 to 15,000 gallons daily, 15 cents per thousand. The rate, however, at which water was actually furnished to the plaintiff by meter was by special contract, under a schedule known as the “Manufacturers’ Schedule of Meter Bates,” in which the price of 500 gallons per day is 30 cents per thousand; 5,000 gallons per day, 12.31 cents per thousand; 9,000 daily is 10.94 cents per thousand, and of 10,000 gallons per day is 10.75 cents per thousand. The whole of the last mentioned schedule being set out in the seventh paragraph of the answer.
    Sixteenth. Sometime before the filing of the bill, the defendant company made a claim upon the plaintiff company for a sum of money, amounting to something less than |6,000, for the water alleged to be stolen, and demanded payment of it, and threatened if the same were not paid, to shut off the water altogether. The plaintiff refused to make the payment demanded, and thereupon filed this bill.

      CONCLUSIONS OK LAW.
    First. Upon a state of facts such as appears in this case it seems to ns that there is a single principle of law upon which the rights and duties of the parties is to he determined, and that is the principle embodied in the maxim, “Omniapraesumunter contra spoliatorem.” We deem it unnecessary to cite cases to show the applicability of this maxim to the case in hand.
    Second. A strict application of this maxim might justify a finding against the plaintiff for all the water which the device installed by it could have taken from the defendant. The defendant company had not undertaken to show how much this might be, but has taken a view of the matter more favorable to the plaintiff and shown the amount which, considering the construction of the pipes and apparatus through which water was taken, and the uses to which it was put in the operation of the plaintiff’s works, may reasonably be supposed to have been taken by the plaintiff. As it is evidently impossible to ascertain with any approach of accuracy the amount of water actually taken, and as this impossibility was created solely by the wrong of the plaintiff, we '.think the plaintiff is chargeable at least with the amount .which it may have probably taken, to say nothing of what it may possibly have taken.
    Third. As to the water supplied from October 1, 1903, ¿o May, 1904, we do not see how under the pleadings the defendant is entitled to recover anything in this proceeding. The bill alleges the stealing of water to have taken place from October, 1903, down to the present time, whereas, in fact, the actual taking of water by means of a by-pass began in 1904, and the wrong done to the defendant was the procuring of a settlement with it for the water theretofore supplied upon a false basis. As no relief is prayed for on this ground in the cross-bill, we are of opinion that the defendant is not entitled to recover anything in this proceeding for any loss of water which occurred before May 16,1904.

      Fourth. As to the price which the plaintiff! should pay for the amount of water so determined to have been taken, it is contended by the plaintiff that it is liable only for the price which the defendant would have been entitled to receive for the same if it had passed through the meter, according to the schedule of rates published by the company. The defendant’s contention is that it is entitled to recover the market price of the water taken by the gallon, without reference to the rates at which water was furnished to customers by meter. The only evidence on the market value of water during the time in question was that it was 30 cents per thousand gallons, which is much greater than the schedule of rates published by the company. We do not well understand how the plaintiff company can claim any rebate from the ordinary or market price of water because it stole a large quantity, and are therefore of opinion that the measure of defendant’s damage is the market value of water, namely, 30 cents per thousand gallons.
    The defendant is obviously entitled to interest or its equivalent upon the value of the water so taken, the delay in payment being caused entirely by plaintiff, and as the payments for water delivered should have been made monthly, the interest ought to be calculated upon the amount found to be taken each month.
    Fifth. The relief prayed for by the plaintiff is an injunction to prevent the defendant from shutting off the supply of water now furnished by it by meter, which the defendant had threatened to do unless it were paid the sum demanded by it for the water taken as above described. As the defendant company is a public service corporation it seems to us to be bound to furnish water to the plaintiff, notwithstanding thé matters above set forth. To hold otherwise would be to make it the judge in its own cause and to enable it to impose upon the plaintiff a penalty for its wrongdoing different from that which is provided by law.
    We are therefore of opinion that the plaintiff is entitled to an injunction restraining the defendant company from ceasing to supply water to the plaintiff by meter so long as the plaintiff company shall comply with the reasonable rules of the defendant company in regard to the supply of water.
    Sixth. No question of the jurisdiction of the court to entertain either the bill or the cross-bill was raised by either party.
    Seventh. Let a decree be entered that the defendant be enjoined from cutting off the supply of water to the plaintiff so long as the plaintiff shall comply with the rules of the water company and pay according to its rules for the water supplied according to the meter readings, provided that the plaintiff company shall pay to the defendant company, within thirty days hereafter, all arrearages for water supplied since the filing of the bill; and, further, that the plaintiff company pay to the defendant company for the water taken by it at the rate of 30 cents per thousand gallons, with interest to be calculated from the end of each month, upon the amount due for that month; the amount of each month to be ascertained by taking 9,393 gallons of water taken each day for 26 days in each month, the calculation to begin with May 16, 1904, to October 22, 1910, and that the plaintiff pay the costs.
    And now, to wit, June 24,1911, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, viz: — that the defendant, Kensington Water Company, is enjoined from cutting off the supply of water to the American Conduit Manufacturing Company, the plaintiff, so long as the plaintiff shall comply with the rules of the Water Company and pay, according to its rules, for the water supplied, according to the meter readings; provided, that the American Conduit Manufacturing Company, the plaintiff, shall pay to the Kensington Water Company, the defendant, within thirty days hereafter, all arrearages for water supplied since the filing of the bill, and it is further ordered, adjudged and decreed that the American Conduit Manufacturing Company, the plaintiff, has unlawfully taken from Kensington Water Company, the defendant, through the by-pass arrangement complained of in the cross-bill, water to the amount of nine thousand, three hundred and ninety-three (9,393) gallons for each day for twenty-six days in each month, during the period beginning with May 16, 1904, and ending October 22, 1910; further, that the American Conduit Manufacturing Company, the plaintiff, shall pay to Kensington Water Company, the defendant, for the water so taken by it at the rate of thirty (30) cents per thousand gallons, with interest to be calculated from the end of each month upon the amount due for that month, being the sum of six thousand nine hundred sixty-six dollars and fifty cents ($6,966.50); it is also further ordered, adjudged and decreed that the American Conduit Manufacturing Company, the plaintiff, shall forthwith remove the system or arrangement of pipes constituting the by-pass complained of in the cross-bill filed in the above entitled suit, or shall make such changes in the arrangement of the pipes constituting the by-pass, as shall render the operation of the same as a by-pass physically impossible, and that this shall be done under the supervision and subject to the reasonable inspection of the employees of the Kensington Water Company, the defendant, in accordance with the rules of the said Water Company; and it is further ordered, adjudged and decreed that the American Conduit Manufacturing Company, the plaintiff, pay the costs.
    Plaintiff appealed.

      Errors assigned were dismissal of plaintiff’s exceptions and the decree of the court.

      Edward Schreiner, for appellant.

      William Watson Smith, of Gordon & Smith, with him Alexander Black, for appellee.
    January 2, 1912:
   Per Curiam,

The decree is affirmed on the findings of fact and conclusions of law by Judge Shaper,


author: Mr. Justice Stewart,

text:
    Catanzaro v. Pennsylvania Railroad Company, Appellant.

      Common carriers — Railroads—Contract for freight — Evidence —Subsequent dealing with another railroad — Question for jury.

    1. In an action against a railroad company, a terminal carrier, for damages for breach of a contract of shipment, the case is for the jury and a verdict for the plaintiff will be sustained where it appears that the plaintiff, who spoke but little English, was at his own request taken to the office of the defendant’s freight solicitor at Boston, who was told by a broker, who was plaintiff’s agent, that the plaintiff wanted a shipment of his goods from Boston to Pittsburgh over the lines of the solicitor’s company; that the solicitor took upon himself the task of making all provisions for the shipment and told the plaintiff that he would see that the kind of cars he wanted were furnished, the place and time when they would be assembled and that he would “take care;” that ears were subsequently furnished and loaded under the solicitor’s personal supervision; and that the solicitor had authority to make such a contract.
    2. In such a case binding instructions for defendant are not justified by the fact that subsequently, after the plaintiff had left for Pittsburgh leaving his agent in charge, the latter gave to the initial carrier orders filled out on the blanks of that company for the shipment of the goods routed over the defendant’s line to Pittsburgh and a day or two thereafter accepted receipts or bills of lading from the initial company; and this is especially the case where the plaintiff’s agent testifies that the giving of the orders was a mere matter of form and that they were given, as he supposed, pursuant to a contract already made with the defendant company.

      Argued Oct. 24, 1911.
    Appeal, No. 171, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., Second T., 1908, No. 97, on veridict for plaintiff in case of Salvatore Catanzaro, doing business as S. Catanzaro & Company v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for the value of a consignment of fruit damaged in transit. Before Cabnahan, J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $8,270.92, and judgment thereon. Defendant appealed.

      Error assigned was in refusing motion for judgment non obstante veredicto.

      Thomas Patterson, of Patterson Sterrett & Acheson, with him James R. Miller, for appellant.

      J. Roy Dickie, with him Wm. W. Wishart, for appellee.
    January 2, 1912:
   Opinion by

Mr. Justice Stewart,

When this case was before us in 230 Pa. 305, we held —though not the point on which our decision of the case rested — that notwithstanding there appeared in evidence orders for shipment from the plaintiff addressed to the Boston & Maine R. R. Co., and receipts given for the goods by the latter company, on the evidence presented it remained a question for the jury to decide whether the contract for shipment had been made with the defendant company. On a second trial the case was submitted to the jury in accordance with the views expressed by us, and resulted in a verdict for the plaintiff. It is now contended on part of the defendant that, in view of the evidence on second trial, binding instructions should have been given in favor of the defendant. The facts are so fairly and accurately stated in appellant’s history of the case that we can do no better than repeat them as they are there stated. In December, 1906, the plaintiff went from Pittsburgh to Boston, Mass., where he purchased a large consignment of fine grapes and lemons. After the purchase, at his request, he was taken by the broker through whom he had bought the fruit, to the office of W. O. Brown, District Freight Solicitor of the Pennsylvania Railroad. The negotiations from this on were conducted entirely for the plaintiff, who spoke but little English, by DiCola, the fruit broker, who was admittedly plaintiff’s agent in the premises. The plaintiff claimed that he told Mr. Brown that he wanted to ship four cars of grapes and two cars of lemons to Pittsburgh by Pennsylvania Railroad; that the grapes had come in on the steamer Republic and were at the White Star Dock in Charlestown; that they wanted dry, warm refrigerator cars, and that Mr. Brown replied that he would take care and about eleven o’clock A. M. would furnish some cars at the dock, that is, on December 4, the day of the conversation, and would ship one or two cars, and the next day, the 5th, they would ship the other cars. During the conversation Mr. Brown called up some one by telephone but DiCola did not hear or attend to the conversation. On that day the plaintiff and his agent, DiCola, went to the Charles-town dock about two o’clock in the afternoon and there found a car in process of loading. Mr. Brown came on the dock while the car was being loaded and told them that if the car had finished loading not later than three o’clock it would be shipped on the fast freight. On the afternoon of that day, December 4th, at three o’clock, Catanzaro, the plaintiff, left Boston leaving his agent DiCola in charge of the shipment of the fruit. On the same day DiCola, on behalf of Catanzaro, made out in his own office and on forms kept by him, the regular and formal orders for the shipment of the goods over the Boston & Maine Railroad, routed to Pittsburgh over the Pennsylvania Railroad, signed them and delivered them to the Boston & Maine Railroad and received in return formal shipping receipts from the Boston & Maine Railroad, identical with the shipping orders, except that in the shipping orders, the date, number of car and number of barrels were left blank. What follows in appellant’s history of the case is more or less argumentative and we omit it. What we have given is sufficient for present purposes. The cross examination of DiCola, who testified to the facts above recited, developed certain features not wholly consistent with the claim that a contract had been made with defendant company for a through shipment of the fruit from Boston to Pittsburgh, yet it left unqualified quite enough to warrant an inference that such contract had been entered into by the defendant’s freight solicitor. The cars furnished proved defective, and as a result plaintiff’s fruit was damaged to an extent that made it valueless. We do not understand that the authority of the defendant’s freight solicitor to make such contract as plaintiff alleges was made, that is, for a through shipment from Boston to Pittsburgh, was denied. The question in the case therefore was, did he make snch contract? If DiCola’s testimony as to what occurred in the solicitor’s office be accepted, it might well be argued that a final understanding was then and there reached and that a through shipment was contracted for. The solicitor was told that what plaintiff wanted was a shipment of his goods from Boston to Pittsburgh over the lines of the company the solicitor represented. Not a word was said by the solicitor which would give the plaintiff to understand that any other than himself was to be consulted in the transaction. The conversation was in an office maintained by the defendant company and in charge of this solicitor. The solicitor took upon himself the task of making all provisions for the shipment; he told the plaintiff that he would see that the kind of cars he wanted were furnished, the place where and the time when they would be assembled, and that he would take care, whatever that meant. With nothing else appearing in the evidence no other conclusion could be reached than the contract was with the defendant company. Except as DiCola knew or had reason to believe that there were regulations of the Boston & Maine Company which would prevent the defendant’s solicitor from effecting a through shipment on the account of the defendant company, a jury might well derive from what was there said and done a contract for through shipment. Certainly an uninformed shipper would under such circumstances naturally rest in such belief. Subsequently, on the same day that the conversation occurred, the plaintiff, through his agent DiCola, gave to the Boston & Maine Railroad Company orders filled out on the blanks of that company for the shipment of the goods, and a day or two thereafter accepted receipts or bills of lading from that company. It may well be argued, as doubtless it was upon the trial, that -these orders and receipts make against plaintiff’s claim that a through contract had been made with the defendant’s agent, or that the transaction was so understood. It might be further argued, as again it doubtless was, that even if such contract had been made the orders and receipts from the Boston & Maine Company showed an abandonment of such contract and the creation of a new one with the Boston & Maine for the shipment. But it can hardly be contended that such inference resulted from the orders and receipts as would have justified the trial judge in holding as matter of law that they negatived conclusively the making of the contract alleged, especially in view of DiCola’s testimony that the giving the orders was mere matter of form, and that they were given as he supposed pursuant to a contract already made with the defendant company. The case on its facts was for the jury. The only error assigned was the refusal of ■ the court to enter judgment for the defendant non obstante. As we view the case it would have been error to have done so.

The assignment is overruled and the judgment is affirmed.