text:
    Reed, Appellant, v. Broad Top Lumber Company.

      Land law survey — Warrant — Titles—Trespass for cutting timber.

    In an action to recover damages for cutting timber the plaintiffs were compelled to rely on a paper title. They claimed two tracts under a deed made in 1854; the title to one of the tracts failed because it was shown that a survey made in 1787, on which the title was based, was void. The deed made in 1854 recited that the title of the grantors to the second tract was based upon a certain improvement right. The plaintiffs disclaimed any right to recover on the improvement right. They claimed that the title of the second tract was based on a survey made in 1805, but produced no evidence to contradict the recital in the deed of 1854. Held,-that the plaintiffs, having failed to establish title, were not entitled to recover damages for the timber cut.
    Argued. April 17, 1912.
    Appeal, No. 302, Jan. T., 1911, by plaintiffs, from judgment of C. P. Huntingdon Co., May T., 1909, No. 33, for defendant non obstante veredicto in case of William W. Reed et al. v. Broad Top Lumber Company.
    Before Pell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for cutting of timber.
    At the trial the jury returned a verdict for plaintiffs. Subsequently the court entered judgment for defendant n. o. v. Woods, P. J., filing the following opinion:
    The plaintiff brought this action of trespass to recover damages alleged to have been sustained by reason of cutting timber from land which they claim. The statement as filed, relied upon what was called, during the trial the Benj. Penn survey, and upon what has been called Arnold Houpt Improvement relying in their chain of title, upon a deed of Arnold Houpt’s heirs to Mickley & Cresswell dated May 5, 1854, in Deed Book “M” No. 2, page 12. The case was submitted to a jury who found for tbe plaintiff and is now before us on a motion for judgment non obstante veredicto. This being tbe only question for our determination we are confined to the facts as they appear in tbe evidence. Did tbe plaintiffs show such a title as would justify a verdict in tbeir favor? During tbe progress of tbe trial tbe plaintiffs amended tbeir statement so as to conform, as they allege, to wbat was called, in tbe trial, tbe Benj. Penn survey. Tbe defendants claimed under tbe John Musser title, but under tbe motion for judgment non obstante veredicto, tbe defendant’s title need not be considered, tbe question being tbe sufficiency of tbe plaintiffs’ claim to recover under tbe pleadings and evidence. Does tbe Benj. Penn survey relied upon conform to tbe deed of Arnold Houpt’s heirs to Mickiey & Cresswell? If it does then tbe motion for judgment cannot prevail, if it does not then our only conclusion would be to sustain tbe motion. During tbe trial of tbe case there appeared two surveys under tbe name of Benj. Penn, one containing 107 A. and 87 per. and allowance and tbe other containing 101 A. and 142 per. and allowance. In tbe course of tbe trial tbe plaintiffs amended tbeir statement and abstract shifting tbeir position from one survey to tbe other. Tbe land was unimproved and while tbe plaintiffs’ claim to part of tbe land rested upon a so-called improvement, and designated, Arnold Houpt’s improvement, we determined that under tbe evidence, which does not meet tbe requirements upon which to sustain a recovery by reason of possession, there could be no recovery on that branch of tbe case, and if an action could be sustained it must be through tbeir paper title. In tbe statement as originally filed tbe plaintiffs rested tbeir claim on wbat was called at tbe trial tbe First Benj. Penn, as described and referred to in tbe deed to Mickiey & Cress-well, tbe recital in said deed being, “Containing one hundred and seven acres, eighty-seven perches and allowance of six per cent, surveyed tbe second day of October 1787, in pursuance of a warrant to Benjamin Penn, dated July 9, 1787.” This description of tbe survey and warrant does not tally witb the Second Benj. Penn on wbicb tbe plaintiffs rely as shown by their amended statement. In said deed both tbe description by courses and distances and tbe reference to tbe date of tbe warrant and survey conform to tbe First Benj. Penn and in no place, either in tbe deed, pleadings or abstract of title is there any reliance by tbe plaintiffs on tbe Second Benj. Penn. In short tbe proof as produced by tbe plaintiff does not conform to tbe pleadings as can be readily seen by examining tbe statement as amended, the deed to MicMey & Cress-well and tbe two Penn surveys. Under tbe evidence as produced tbe plaintiffs have failed to show title to tbe locus in quo and under this state of facts as shown by tbe evidence it becomes our duty to sustain tbe motion for judgment non obstante veredicto. Our answer, therefore, to tbe first point submitted to us by tbe defendant and reserved by us is answered in tbe affirmative; also we affirm the fourth point wbicb we reserved. Tbe fifth and sixth of defendants’ points have reference to the defendants’ title and under tbe conclusion reached by us it is not necessary to determine these.
    And now November 8th, 1911, upon due consideration it is ordered and directed that judgment be entered in favor of defendant non obstante veredicto. Tbe motion of tbe plaintiffs to double tbe verdict is overruled and refused, to wbicb decree tbe plaintiffs except and bill sealed.

      Error assigned, among others, was in entering judgment for defendant n. o. v.

      TTios. F. Bailey, witb him H. H. Waite and Chas. C. 'Brewster, for appellants.
    There was evidence sufficient to sustain plaintiff title. Drinker v. Holliday, 2 Yeates 87; Deal v. McCormick, 3 S. & R. 343; Cassidy v. Conway, 25 Pa. 240; Evans v. Nargong, 2 Binney 55; Hastings v. Wagner, 7 W. & S. 215; Warner v. Tenyb, 48 Pa. 187.
    May 22, 1912:

      'A. L. dole, with Mm John D. Dorris, for appellee.
   Opinion by

Mr. Justice Mestrezat,

We have examined tMs record very carefully and are not convinced that tbe court below erred in entering judgment for tbe defendant notwithstanding the verdict. In his opinion the learned judge inadvertently says that the plaintiffs in amending the statement shifted their position. What he intended to say was that the plaintiffs’ testimony did not sustain their title as set forth in the statement and abstract. The action was brought under the Act of March 29, 1824, P. L. 152, 4 Purd. 4755, to recover damages which the plaintiffs allege they sustained by reason of the defendant having cut timber upon a certain tract of land in Carbon township, Huntingdon county. The cutting is admitted, but the defendant denies that the plaintiffs are the owners of the land. The statement describes the land by courses and distances and concludes by stating that the tract contains “two hundred and eight acres and thirty-seven perches and allowance, being composed in part of a survey of one hundred and one acres and one hundred and forty-two perches and allowance, made the nineteenth day of April, 1805, in the name of Benjamin Penn and by some additional lands cleared, cultivated and held under an improvement by Arnold Houpt.” The plaintiffs in their abstract of title set forth a deed from Arnold Houpt’s heirs to Mickley & Cresswell, dated May 5, 1854, through which they claim and on which they rely to sustain their title. That deed purports to convey two tracts of land, one containing one hundred and seven acres and eighty-seven perches, “surveyed the second day of October, 1787, in pursuance of a warrant to Benjamin Penn, dated July 9, 1787”; and the other, an adjoining tract, containing one hundred and one acres and one hundred and forty-two perches and allowance he the same more or less, “being the tract on which John Houpt, party hereto lately resided as tenant at will of the other heirs and legal representatives of Arnold Houpt, deceased, and Which tract was first improved by the said Arnold Houpt about the year A. D. 1804, and by improvement been ever since held by actual resident settlement and occupancy, title thereto having been completed.”

It is conceded that the survey of October 2, 1787, was void for want of jurisdiction in the officer making it, and, therefore, the land contained in that survey is eliminated from the plaintiffs’ title. The plaintiffs also now disclaim any right-to recover on a title under the Houpt improvement right. Their claim is confined to the title under the Benjamin Penn warrant and the survey of April 19, 1805. If the claim is under the survey made in 1805, as set forth in the statement, the plaintiffs failed to sustain their title by evidence in the case. As we have already said, they rely upon the Mickley & Cresswell deed. They have been compelled to abandon the first tract conveyed by that deed and which was surveyed on the second of October, 1787 in pursuance of the warrant of July 9, 1787. The second tract was not held, so far as the evidence discloses, upon the survey made in 1805 in pursuance of the warrant of July 9, 1787, but was held under the Houpt improvement right. This is clearly and distinctly disclosed by the quotation from the deed which we have made. There is nothing in that deed to indicate, as set forth in the plaintiffs’ statement, that the one hundred and one acre tract was included in the survey made on April 19, 1805, under the Benjamin Penn warrant. On the contrary, the deed itself avers that the one hundred and one acre tract conveyed by it was held under the Houpt improvement. The plaintiffs have, therefore, failed to show title to the land on which the timber was cut, and it follows that they cannot recover in this action.

We have examined the testimony in this case and entirely agree with the learned court below that it was not sufficient to justify the jury in finding that Houpt had the survey of 1805 made under the Benjamin Penn warrant, or that the land on which the cutting was done is held by the plaintiffs under that official survey. A discussion of the evidence bearing on the question is regarded as unnecessary. In the view we take of the case, the sufficiency of the defendant’s title becomes immaterial, as the plaintiffs, not having a title to the premises, cannot complain of the alleged trespass. The question of the right of the plaintiffs to recover double damages, raised by the third assignment, becomes unimportant and need not be considered.

We are of the opinion that the learned court below committed no error in entering judgment for the defendant.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Russell v. Philadelphia, Appellant.

      Costs — Stenographers compensation — Testimony in divorce and charter cases — Act of May 1, 1907, P. L. 1S5

    Under the Act of May 1, 1907, P. L. 135, a duly appointed stenographer of the Court of Common Pleas is entitled to have his fees paid by the county in a divorce case or in a case involving an application for a charter, where the court in the exercise of its discretion has directed that the fees shall be paid by the county.
    Argued April 23, 1912.
    Appeal, No. 167, Jan. T., 1912, by defendant, from judgment of the Superior Court, No. 131, Oct. T., 1911, affirming judgment of C. P. No. 2, Phila. Co., March T., 1911, No. 3726, for plaintiff on case stated in suit of James H. Eussell v. City of Philadelphia.
    May 22, 1912:
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from judgment of Superior Court.
    The opinion of the Supreme Court states the case. See also Eussell v. Philadelphia, 48 Pa. Superior Ct. 622.

      Error assigned was judgment of the Superior Court.

      Glenn G. Mead, Assistant City Solicitor, with him Michael J. Ryan, City Solicitor, for appellant.

      John G. Johnson, with him Murdoch Kendrick, for appellee.
   Opinion by

Mr. Justice Moschzisker,

This was a case stated involving the fees of a court stenographer for services rendered under and by virtue of the Act of May 1, 1907, P. L. 135. It was agreed, inter alia, that “The plaintiff served as stenographer before masters appointed in divorce cases and before a referee on application for a charter, as directed by the judges of the Court of Common Pleas, No. 5, of Philadelphia County, as set forth in exhibit A (the exhibit being attached and stating the details of the charges in a number of specified cases), and furnished accurate typewritten copies of his notes of testimony to the said masters and referee, which copies were duly filed of record. In all the said suits.....there was an absence of agreement between the parties or. their counsel as to the compensation that should be paid the official stenographer, and he has not received any compensation therefor. The court thereupon approved the plaintiff’s bill for services in the said..... cases and directed that the same be paid by the county of Philadelphia at the rate of fifteen cents per hundred words, as provided for in Section 8 of said act.” The defendant refused payment, questioning the authority of the Court of Common Pleas to incur the expense or order the payment. Judgment was given for the plaintiff and affirmed by the Superior Court.

The title of the act in question is broad and indicates an intention to deal with the appointment, employment and compensation of stenographers in all proceedings in the several courts; it reads: “Relating to the appointment of stenographers .... to report proceedings in the several courts of common pleas .... of this Commonwealth, as well as before commissioners, masters and special masters in chancery, referees, examiners, auditors, and other officers; prescribing their powers and duties; ----prescribing their compensation and allowances for expenses, when the same shall be paid by the county, .... and when by the parties to such proceedings.” Section 6 provides the per diem compensation or salary to be paid court stenographers for, inter alia, “taking notes by the direction of any judge or judges of any of the courts aforesaid,” and Section 8 that, “Every official stenographer shall be paid in addition to the compensation provided in Section 6 of this act, fifteen cents for each one hundred words of every copy of the stenographic notes of trials and of other matters in connection with the business of the court, that are furnished to the court or filed of record, ----; payment for such copies to be made by the county in which the case is pending, or for which the work is performed, upon the order of the presiding judge.” The services rendered by the plaintiff in this case are comprehended within the words “other matters in connection with the business of the court, that are furnished to the court or filed of record”; they were performed at the direction of the court and the copies were for the use of its officers; in each instance they were filed of record with such officer’s report, and the “presiding judge” of the court approved the plaintiff’s charges and ordered payment thereof. The correctness of notes of testimony upon which courts base their decisions in divorce and charter cases is a matter of vital public importance. “The statute (Act of May 1, 1907, supra) has general reference to public judicial proceedings ____ The public generally ____ have an interest in the prompt, efficient and certain administration of justice.....It is, therefore, to the interest of all the people that every proper safeguard should be provided to guard against mistakes in the administration of justice”: Clift v. Phila., 41 Pa. Superior Ct. 633, 642-643. The act having conferred authority upon the Courts of Common Pleas to order payment for services of the character performed by the plaintiff, judgment in his favor was properly rendered below and sustained by the Superior Court.

The assignments were overruled and the judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Vetter to use, Appellant, v. Meadville.

      Assignment — Partial assignment of debt — Acceptance by debtor —Municipalities—City treasurer — Authority — Power of city treasurer — Burden of proof.

    No suit can be maintained on a partial assignment of a debt unless it appears that the debtor assented to the assignment.
    An assignment by a city contractor of a portion of his claim against the city, and the assent to the assignment by the city treasurer, cannot be made a basis of an action against the city, unless it appears by the plaintiff’s case that the city treasurer had authority to assent to the assignment on behalf of the city. No such authority is implied from his office.
    Argued April 24, 1912.
    Appeal, No. 139, Jan. T., 1912, by plaintiff, from judgment of C. P. Crawford Co., May T., 1911, No. 47, sustaining demurrer to statement of claim in case of George J. Vetter for use of the Pittsburgh-Buffalo Company v. Meadville.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Demurrer to statement of claim. Before Prather, P. J.
    Plaintiff’s statement, briefly summarized, set forth that George J. Vetter, the legal plaintiff, on or about the 13th day of May, 1907, was awarded the contract by the defendant to grade, curb and pave a certain street in the city of Meadville, using Pittsburgh-Buffalo block paving brick. When the use plaintiff ivas notified by the legal plaintiff that he had secured said contract, it refused to furnish the brick to him until about the 2nd day of May, 1907, when he signed an order, authorizing the city treasurer of Meadville to pay to it, the use plaintiff, moneys becoming due on account of said brick to be furnished and used.
    That said order was accepted by said city treasurer, and thereafter the use plaintiff furnished to the legal plaintiff the brick required under said contract, to! the amount of ten thousand ($10,000.00) dollars oi,. upwards. That the brick so furnished were used in the completion of said contract; that the contract was completed on or about the 7th day of January, 1908; that the final estimate of the engineer, showing a balance due the contractor of $6,781.86, under date of January 8, 1908, was approved by the select and common councils of said city on the same date; that on the 15th day of January, 1908, the use plaintiff gave to the select and conimon councils of- the city of Mead-ville notice of the aforesaid order, directed to its city treasurer and duly accepted by him.
    The said order and acceptance are as follows:

      “Meadville, Pa., May 2, 1907.
    “The City of Meadville, Meadville, Pa.:
    “You. are hereby authorized and directed to retain from money due or to become due me under my contract with the city of Meadville, Pa., dated March 27, 1907, for the grading, curbing and paving of Park avenue from Chestnut street south to the city limits, and pay to the order of the Pittsburgh and Buffalo Coal Company eighty-five per cent, of the amount due them, as shown by their statements of account rendered for Pittsburgh and Buffalo repressed block furnished on my order, for paving Park avenue, as above described. The balance to be paid when work is completed and final estimate is made by the city engineer, and this shall be your full and complete authority for such payments.
    “(Signed) George J. Vetter,

      “Contractor

    “I hereby accept the above as authority for retaining sufficient funds and paying same to the Pittsburgh and Buffalo Coal Company.
    “Charles Schmidt,

      “City Treasurer ”

    Plaintiff’s statement also averred that statements had been rendered from time to time and payments made on account of its bill for said brick so furnished, until its claim had been reduced to a balance of $6,172.15, which had been duly demanded from the defendant company and payment refused.
    To this statement of claim and demand, the defendant demurred, assigning inter alia the following reason:
    “1. It is not shown in the statement of claim that the defendant, through Charles H. Schmidt, or through any person legally authorized or having the power so to do, ever undertook, agreed or promised to pay the claim which plaintiff sets forth in his statement of claim.”

      Error assigned was the judgment of the court.

      W. A. Stone, of Stone & Stone, with him A. L. Bates and B. B. Pickett, for appellant.
    A person upon whom an order is drawn may accept and bind himself by his acceptance if it is only a part of the fund in his hands. It then becomes his contract after acceptance to pay that part which he has agreed to pay by the acceptance. This has always been the rule.
    Meadville v. Welch, 18 U. S. (5 Wheaton) 277; Philadelphia’s App., 86 Pa. 179; Botsford v. Lull, 30 Pa. Superior Ct. 292; Phœnix Iron Co. v. Philadelphia, 2 W. N. C. 596; Philadelphia v. Lockhardt, 73 Pa. 211.
    Certainly notice to the city treasurer then is notice to the city, because no money could be paid out on the contract with Vetter except by the city treasurer. Therefore, he in the discharge of his official duty, did have to act upon it and to communicate it to his principal. Geist’s App., 104 Pa. 351; Jermyn v. Moffitt, 75 Pa. 399; Gordon v. Jefferson City, 111 Mo. App. 23 (85 S. W. Repr. 617); McClerry v. Stoup, 32 Pa. Superior Ct. 42; Concrete Co. v. Rose, 57 Pitts. Leg. J. 61; Croyle v. Gulich, 33 Pa. C. C. R. 362; Miller v. Butler, 1 Cranch C. C. 470.

      James P. Goiter and Frank J. Thomas, for appellee.
    An officer assuming to bind the municipality by contract must produce express authority for his power thus to represent the corporation in a contractual relation, and a contract made without aiithority will not bind the municipality unless it is duly ratified.
    The city treasurer has no authority to bind the city. Wright v. Weber, 17 Pa. Superior Ct. 451; Wyoming County v. Bardwell, 84 Pa. 104. Plaintiff’s statement of demand makes no averment that defendant, by any valid authority, assented to the assignment.

      May 22, 1912:
    Meadville v. Welch, 18 U. S. (5 Wheaton) 277; Philadelphia’s App., 86 Pa. 179; Geist’s App., 104 Pa. 351; Botsford v. Lull, 30 Pa. Super. Ct. 292.
   Opinion by

Mr. Justice Stewart,

The plaintiff’s statement of claim discloses no cause of action; it is lacking in an essential feature. The suit was brought for and on behalf of the use plaintiff to recover from the city of Meadville a portion of the contract price for which the legal plaintiff, Vetter, had undertaken to grade, curb and pave a portion of a certain street in the city, and which amount it was averred Vetter had assigned to the use plaintiff. The assignment declared on, it will be observed, was but a partial one. The right of recovery therefore, other things being sufficient, depended on whether the city of Meadville had assented to it. Jermyn v. Moffitt, 75 Pa. 399; Philadelphia’s Appeals, 86 Pa. 179; Geist’s App., 104 Pa. 351. The averment is that “on or about May 2,1907, George J. Vetter made and signed an order upon the city of Meadville, or its city treasurer, Charles H. Schmidt, authorizing and directing him to retain money due said contractor, and pay the same to the Pittsburgh-Buffalo Company 85 per cent. as shown by its statement of account rendered;...... that the said city treasurer accepted said order and agreed to retain the said money and pay the same to the said use plaintiff, the Pittsburgh-Buffalo Company, as shown by the assignment, order or acceptance, copy of which assignment, order and acceptance is hereto attached.” The assignment, more properly speaking, the order, signed by Vetter, was directed to the city treasurer, and it simply authorized and directed him to retain from money due or to become due under his contract, and pay same to the order of the Pittsburgh-Buffalo. Company as set out in the averment for repressed block furnished on Vetter’s order. The entry on the order by the city treasurer was as follows: “I hereby accept the above as authority for retaining sufficient funds and paying the same to Pittsburgh and Buffalo Coal Company,” signed “Charles H. Schmidt, City Treasurer.” Whether this acceptance constituted a contract giving rise to duties and obligations we shall not discuss; for assuming that it was such contract, it certainly could give rise to no duty or obligation upon the defendant municipality, except as it was shown that the city treasurer had authority to act for the municipality in making the contract. There was no averment that he had other authority than that implied from his office. Certainly something more was required, for the powers and functions of that official, defined by act of assembly, are limited to the receiving moneys payable to the city and paying all warrants duly countersigned by the controller. The exercise of any authority other than this, except as specially authorized would be pure assumption on his part from which could arise no liability on the part of the city. In the case of First National Bank v. Newcastle, 224 Pa. 285, where the act of a city treasurer was the basis of a suit, Ave said, “The duties of B, as city treasurer, were limited to receiving the moneys of the city and paying them out on warrant. He had no authority by virtue of his office to do anything else for it or in its name, and was powerless to make any promise on its behalf. An obligation signed by him as city treasurer could no more commit the city to its discharge than if signed by himself as an individual.” The statement here avers that the use plantiff notified the city council of Meadville and the mayor of “this order and assignment and its acceptance by the city treasurer and his agreement to retain the money mentioned and pay it over to the Pittsburgh-Buffalo Company.” But this of itself would not fasten liability on the city. Had it been an assignment of the entire sum due in the contract, notice to the city under the authority of Philadelphia v. Lockhardt, 73 Pa. 211, would have been sufficient to charge the city therewith; but where the assignment is only of a part of the fund more than notice is required, the assent of the city must be averred and shown. The statement of claim lacking any averment of assent, and the acceptance by the treasurer being insufficient to impose liability on the city the demurrer was properly sustained. The assignments of error are overruled and the judgment affirmed


text:
    Pittsburgh-Buffalo Company, Appellant, v. Schmidt, et al.

      Public officers — Oiiy treasurer — Principal and surety.

    1. Neither a city treasurer nor his sureties can be held liable to an assignee of a part of a city contractor’s claim against the city, because he has assented to the assignment on behalf of the city without authority to do so.
    2. An official bond, such as that of the city treasurer, imposes no liability on the surety for acts not done as part of, or in connection with, official duty.
    3. When a man deals with an officer of a municipal or other corporation, and no representations are made by such officer, and he simply proposes to bind the corporation, but as a matter of fact the corporation is not bound because the contract is ultra vires, the officer is under no personal liability.
    Argued April 24, 1912.
    Appeal, No. 140, Jan. T., 1912, by plaintiff, from judgment of C. P. Crawford Co., May T., 1911, No. 48, for defendant, on demurrer to statement in case of Pittsburgh-Buffalo Company v. Charles H. Schmidt and the United Stated Fidelity & Guaranty Company.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Demurrer to statement of claim. Before Prather, P. J.
    The facts appear by the opinion of the Supreme Court and by the report of Vetter v. City of Meadville, 236 Pa. 563.

      May 22, 1912:

      Error assigned was judgment for defendant on the demurrer.

      W. A. Stone, of Stone & Stone, with Mm Arthur L. Bates and B. B. PicJcett, for appellant.
    An official who has the discretion may not be liable to third persons injured by the unlawful exercise of that discretion, but Ms malice and corrupt motives may be inferred from the circumstances. Weckerly v. Geyer, 11 S. & R. 35; Yealy v. Fink, 43 Pa. 212; Gregory v. Brooks, 37 Conn. 365; McCormick v. Burt, 95 Ill. 263; Bernier v. Russell, 89 Ill. 60; Parkinson v. Parker, 48 Ia. 667; Kinneen v. Wells. 144 Mass. 497 (11 N. E. Repr. 916); Goetcheus v. Matthewson, 61 N. Y. 420.

      Franlc J. Thomas and Manley O. Brown, with them Fred O. Kiehort, for appellees.
    When the parties deal with a public officer as a public agent and he neither asks nor receives credit as an individual, he was not personally liable on said agreement or on transactions based upon or growing out of the same. Cook v. Irvin, 5 S. & R. 492; Heidelberg School Dist. v. Hort, 62 Pa. 301; West v. Jones, 9 Watts 27; Miller v. Ford, 55 Am. Dec. 687; Parks v. Ross, 52 U. S. 362; Brown v. Austin, 1 Mass. 208 (2 Am. Dec. 11); Ogden v. Raymond, 22 Conn. 379 (58 Am. Dec. 429); Sanborn v. Neal, 4 Minn. 126 (77 Am. Dec. 502); Newman v. Sylvester, 42 Ind. 106; New York and Charleston Steam Ship Co. v. Harbison, 16 Fed. Repr. 688.
   Opinion by

Mr. Justice Stewart,

In this action the effort was to charge the defendant, Charles H. Schmidt, with personal liability for his failure as treasurer of the city of Meadville, to retain out of the money due from the city to George J. Vetter on the latter’s contract, the amount Vetter had assigned thereout to this plaintiff. The action was against the bonding company that had become surety for Schmidt as treasurer to the city, as well. The facts appear in the case of Vetter to use versus City of Mead-ville, to No. 128, January Term, 1912, 236 Pa. 563, just decided, and they need not be repeated here. The appeal is from a judgment sustaining a demurrer to plaintiff’s statement. In the case referred to, we held that in accepting the order or assignment as authority for retaining so much of the money as might become due to Vetter on his contract and paying it to the plaintiff, the defendant, Schmidt, was acting outside his duty, and that therefore his act imposed no liability on the city. The obligation of this bond was that Schmidt would well, faithfully and truly discharge his official duties as treasurer. Such an obligation imposes no liability for acts not done as part of or in connection with, official duty. It sometimes becomes a question whether the act complained of is a duty appurtenant to the office when, as was the case of McCaraher v. Commonwealth, 5 W. & S. 21, the character and bounds of the officer’s duty are left to be determined by the nature of the office, the general principles of convenience, policy and public security, by usage and by such matters of express legislation as may be connected with the subject; but where, as in this case, the duties of the office are expressly defined by law all such questions are avoided. Having decided that the act of Schmidt on which plaintiff rests its present action was not within the scope of his official duty, it follows that no cause of action was shown against the surety, the United States Fidelity and Guaranty Company, one of the defendants.

There is like insufficiency in the statement of cause of action against Schmidt, the other defendant. The plaintiff must be held to knowledge of the fact that in accepting the order from Vetter, Schmidt was acting without authority. “When a man deals with a corporation officer, and no representations are made by the latter, and he simply proposes to bind the corporation, but as matter of fact the corporation is not bound because the contract is ulta vires, the officer is under no liability.” This was said by Mr. Justice Brewer in Holt v. Winfield Bank, 25 Fed. Repr. 812. The principle here asserted cannot be disputed. The assignments are accordingly overruled and the judgment is affirmed.


author: Me. Justice Stewart,

text:
    Reed’s Estate
    (No. 1).

      Wills — Annuities — Arrearages—Deficiency of income.

    1. Where the income out of which an annuity is to be paid fails in any year or years, the arrearages on the annuity are to be paid out of subsequent accumulations unless there is a plain intent expressed in the will to the contrary.
    2. Where a testator directs that out of the net income of the residue of his estate there shall be paid to one son eight thousand dollars per annum for life, and to a second son the same sum per annum for life, if the income shall be sufficient therefor, and further directs that in any event the first son shall receive all the income until he shall have received eight thousand dollars per annum before the second son should receive any part thereof whatsoever, the first son is entitled to be paid arrearages on his annuity out of subsequent income in excess of eight thousand dollars per annum before his brother receives anything.
    Argued April 24, 1912.
    Appeal, No. 161, Jan. T., 1912, by C. M. Reed, from decree of O. C. Erie Co., Feb. T., 1911, No. 44, dismissing exceptions to auditor’s report in Estate of Harriet W. Reed, deceased.
    Before Brown, Potter, Elkin, Stewart and Moschzisker JJ.
    Affirmed.
    Exception to report of Joseph M. Force, Esq., auditor. Before Benson, P. J.
    The opinion of the Supreme Court states the case.

      May 22, 1912:

      Error assigned was decree dismissing exceptions to adnitor’s report.

      Rossiter & Thompson, for appellant,
    cited: Brewster’s Appeal, 35 Pitts. Leg. J. 449; Sell’s Est., 4 W. N. C. 14; Stevenson’s Est., 52 Pitts. Leg. J. 137; Forbes v. Richardson, 11 Hare 354; Shupp v. Gaylord, 103 Pa. 319.

      Frank Gunnison, with him Henry E. Fish, W. Pitts Gifford and A. O. Chapin, for appellees.
   Opinion by

Me. Justice Stewart,

The testatrix, after making several bequests not here involved, gave the entire residue of her estate in trust, with the following direction as to the expenditure and appropriation of the income derived therefrom. “All the rest, residue and remainder of my estate,......I give, devise and bequeath unto my executors hereinafter named, and to the survivor of them,.......in trust, .......to pay over and distribute the net income of all the rest, residue and remainder of my estate, real, personal and mixed as follows, to wit: To pay therefrom to my son Lloyd G. Reed, the sum of eight thousand ($8,000.00) dollars per annum for and during the term of his natural life, and if said income shall be sufficient therefor, then to pay therefrom to my son Charles M. Reed, for and during the term of his natural life, the sum of eight thousand ($8,000.00) dollars per annum; and if my said net income from all the rest, residue and remainder shall exceed the sum of sixteen thousand ($16,000.00) dollars per year then and in that case I direct that the amount of income in excess of said sixteen thousand ($16,000.00) dollars shall be divided equally between my said sons Charles M. Reed and Lloyd G. Reed, during their natural lives, but in any event I direct that my said son Lloyd G. Reed shall receive all the income accruing from all the rest, residue and remainder of my estate until lie shall have received the sum of eight thousand ($8,000.00) dollars per annum, before the said Charles M. Reed shall receive any part thereof whatsoever.

“From and after the death of my said son Lloyd G. Reed, I direct the income to which he shall be entitled under this my will for his natural life, shall be paid by my said executors to his children in equal shares until such time as the youngest of them shall have reached the age of twenty-one years, then my said executors shall then assign and convey the portion of my estate to which the said Lloyd G. Reed shall be entitled to the use for his natural life, to his said children in equal shares absolutely. .

“From and after the death of my son Charles M. Reed' I direct that the income to which he shall be entitled under this my will for and during his natural life, to the extent of two thousand ($2,000.00) dollars shall be paid over by my said trustees equally to my two grandsons, Harrison Reed and Carl M. Reed, for and during the term of their natural lives, and that all of said income to which the said Charles M. Reed shall be entitled for and during his life time, in excess of said two thousand ($2,000.00) dollars shall be paid over to my grandson Carl M. Reed, for and during his natural life.”

We have given as much of the will as is necessary for an understanding of the question here raised. Testatrix died 3d December, 1901. It was not until 1907 that the trust estate yielded any net income. In 1907 it yielded $1,000; in 1908, $5,500; in 1909, $6,450; thereafter up to 1st February, 1910, $900, aggregating for this period the sum of $13,850.00, all of which was paid to Lloyd G. Reed, Charles receiving, nothing. Lloyd G. Reed died 4th April, 1910. The income accruing since his death has not only been sufficient for the payment to Lloyd G’s children of the income which their father would have received had he lived, but there remains a surplus of $9,924. The proper distribution of this surplus was the matter in controversy before the court in adjudication proceedings on the sixth account of the trustees in which they had charged themselves with it. The entire fund was awarded to the estate of Lloyd G. on the theory that Lloyd G-. by the terms of the will, was entitled to receive $8,000 annually out of the income, and failing to receive this in any year because of insufficiency of income during the year, he was entitled to recover the difference out of any excess of income beyond his $8,000 in any subsequent year or years. During the period between his mother’s death and his own he had received but $13,850.00. Under the view, adopted by the auditor and the court, no part of the annual income thereafter accruing, no matter how much in excees of $8,000 in any year, could be claimed by Charles until the difference between what Lloyd G. had received and what he would have received, had the income each year been as much as $8,000, shall have been paid. From the decree of the court awarding the fund to Lloyd G’s estate, Charles has taken this appeal.

The effect of the decree if permitted to stand will be to postpone indefinitely any participation of Charles M. in the income, and it may defeat his participation entirely. He can have no share in it until the arrearages due Lloyd G. have been paid thereout. When, if ever, accumulations of income shall be equal to this charge depends on the productiveness of the estate, a matter about which there can be nothing but speculation. At first blush this would seem inequitable, and the mind would be inclined to resist a conclusion that would work such results. It is to be remembered, however, that we are not making a will for this testatrix, but simply ascertaining from the will she has herself made what her intentions were in this respect. It may be inequitable, but if she so designed it, it is not for us to give any different effect to it. What may seem inequitable to one, unfamiliar with circumstances or conditions in which testatrix was placed, may to another with fuller knowledge of the fact, be clearly revealed as not only equitable but generous toward the party apparently discriminated against. It is impossible to read this will and not observe the radical distinction in the character of the gift to Lloyd G. and that to Charles M. The former is a gift absolute of the entire annual income of the estate within the limit of $8,000. Whatever yielded within this limit is to be his and his alone; whereas, Charles M. becomes a beneficiary only in the event that there is an excess of income above $8,000 in any year, and then he shares such excess with Lloyd G-. A definite sum of $8,000 a year is given to Lloyd G. and to the payment of this annual sum the testatrix subjects not only all income for the current year, but, having in contemplation a possible failure in some particular year or years, she provides as follows: “But in any event I direct that my said son Lloyd G. Reed shall receive all of the income accruing from all the rest, residue and remainder of my estate until he shall have received the sum of eight thousand dollars per annum.” It will be observed that what it here subjected is not simply the income for the particular year, but all the income accruing from the estate without a limitation as to time other than that which makes an end when Lloyd shall have received the sum of $8,000 per annum. Never during any one year of his life did he receive as much as $8,000. Had he received it one year and not in others, it could not be said that he was receiving $8,000 per annum. That could be said only in case he received it uniformly as the years went by; and when testatrix ordered that he should receive this much per annum, and directed that the entire income should be subjected to this charge, and that it was to be paid before Charles M. was to receive anything therefrom, she could have intended nothing else than that any deficit of income in any year or years was to be made good ont of income of succeeding years should there be excess sufficient* for it, or, pro tanto. We take the general rule to be — it is at least one resting on our own and other authorities, Rudolph’s App. 10 Pa. 34; Stewart v. Chambers, 2 Sandford Ch. 382, — that where the income out of which an annuity is to be paid fails in any year or years the arrearages on the annuity are to be paid out of subsequent accumulations, unless there is a plain intent expressed in the will ,to the contrary. In the first case above cited the trust was to apply to rents and profits to one for life and in case he should leave a widow to pay the widow an annuity of $1,000 out of the net income or proceeds during widowhood, and the residue of the income to a third party. The first taker died leaving a widow. The clear income during certain years was insufficient to pay the widow her annuity. It was held that the widow was entitled to the arrearages out of income accruing during subsequent years. But we do not need to rest the case on general rule, sufficient as it would be, since clearly no contrary intent can be gathered from this will. It speaks for itself in an unequivocal way, and a purpose to secure to Lloyd Gr. $8,000 a year during his natural life by subjecting the income during the whole of that period to this liability is, we think, unmistakable. The appeal is dismissed and the decree is affirmed.


text:
    Reed’s Estate
    (No. 2).

      Wills — Annuities — Arrearages—Accumulations.
    Where a testatrix directs that out of the net income of the residue of her estate there shall be paid to a son eight thousand dollars per annum for life, and after his death the annuity is to be paid to his children in equal shares for a period specified, and it appears from a proper construction of the will that arrearages of income in any one year was to be made up out of income in subsequent years in excess of eight thousand dollars, any excess of income after the son’s death over eight thousand dollars per annum, and applicable to the payment of arrearages, goes to the gon’s personal representatives and not to his children to whom the annuity survived.
    Submitted April 24, 1912.
    May 22, 1912:
    Appeal, No. 160, Jan. T., 1912, by Thomas M. Hemphill, Guardian of Aaron Manning Reed, from decree of O. O. Erie Co., Feb. T., 1911, No. 44, dismissing exceptions to auditor’s report in Estate of Harriet W. Reed, deceased.
    Before Brown, Hotter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of Joseph M. Force, Esq., auditor. Before Benson, P. J.
    The facts are stated in the report of Reed’s Estate (No. 1), 236 Pa. 572.

      Error assigned was decree dismissing exceptions to auditor’s report.

      J. R. Haughney and C. F. Haughney, for appellant.

      Frank Gunnison, Henry E. Fish, W. Pitt Gifford and A. O. Chapin, for appellees.
   Opinion by

Mr. Justice Stewart,

It follows from what we have said in the appeal of Charles M. Eeed to No. 161, January Term, 1912, in the same estate, 236 Pa. 572, that the right in Lloyd G. Eeed to $8,000 out of the income from the trust fund was a vested right in him. The right to receive arrearages due on this annuity was no less vested. This right passed upon the death of Lloyd G. to his personal representatives. Now that the income from the trust estate has proved sufficient to pay the arrearages in part, the fund so applicable must be distributed to them, rather than to the children of Lloyd G. to whom the annuity survives. There was no error in the court so ordering. The appeal is dismissed, and the decree is affirmed.


author: Mr. Justice Moschziskee,

text:
    Lepsch v. Barrett, Appellant.

      Practice, O. P. — Parties — Names—Joint stock association of New York — Amendments — Corporation.
    Where a joint stock association of New York is sued under the name of “Adams Express Company,” and after a trial on the merits and a verdict for the plaintiff the name of the defendant is amended so as to read “William M. Barratt, President of Adams Express Company,” to comply with the New York law, which provides that suits may be maintained against the president of such an association, and thereafter on a second trial, a verdict and judgment is again rendered in favor of the plaintiff, an execution under the judgment may properly issue against the property of the Adams Express Company.
    Argued April 30, 1912.
    Appeal, No. 81, Jan. T., 1912, by defendant, from order of C. P. Elk Co., Oct. T., 1910, No. 26, discharging rule to vacate judgment and stay writ of fi. fa. in case of J. H. Lepsch v. William M. Barrett, President of Adams Express Company.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      May 22, 1912:
    Assumpsit against common carrier for loss of goods. Before Hall, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dicharging rule to vacate judgment and stay fi. fa., and in permitting the record to be amended.

      A. L. dole, with him T. DeWitt duyler, John G. Whit-more and John Lewis Evans, for appellant,
    cited: McConnell v. Savings Bank, 146 Pa. 79; Pittsburgh v. Eyth, 201 Pa. 341.

      Fred E. Ely, with him D. J. Driscoll, for appellee.
   Opinion by

Mr. Justice Moschziskee,

The plaintiff delivered diamonds to the defendant company for transportation from Ridgway to Philadelphia, and they were lost or stolen in transit. An action in assumpsit was brought against the defendant, describing it as Adams Express Company, and service was had on its local agent at Ridgway, to whom the diamonds had been delivered. The defendant entered a general appearance and filed an affidavit of defense. The case was tried and defended on its merits, and a verdict was rendered in favor of the plaintiff for the value of the diamonds. Subsequently on application of the defendant the court granted a new trial. Pending the motion for a new trial an amendment to the defendant’s name was granted so that it was made to read, “William M. Barrett, President of Adams Express Company.” The petition for the amendment averred “That the Adams Express Company......is a joint stock association organized and existing under the laws of the state of New York..... ; that under the laws of the said state of New York a suit may be maintained against the president......of such associa tion......; that William M. Barrett, of the city of New York, is president of the Adams Express Company, defendant above named.” This petition was sworn to and duly served. On the second trial counsel for the defendant withdrew from the case, stating, “We do not represent Mr. Barrett, president of the Adams Express Company, at all in this case and we withdraw from any further participation in the case as the record now stands.” A second verdict was rendered for the amount of the plaintiff’s claim. After the entry of judgment, execution was issued and the property of the Adams Express Company in Elk county, Pa., was levied upon. Thereupon the express company served notice upon the sheriff of Elk county that the property levied upon belonged to it and not to William M. Barrett, president of Adams Express Company. The sheriff asked for an interpleader and William M. Barrett petitioned the court to vacate the judgment as to him; after hearing, both applications were refused.

In disposing of these matters the court below filed an opinion in which it, inter alia, said: “The Adams Express Company is a joint stock association organized under the laws of the state of New York. Such an association organized under our law could be sued by its corporate title and the Adams Express Company has always been sued by that title in this state...... The joint stock association law of the State of New York (Con. Laws of New York, 1909, Vol. 3, p. 1874, Sec. 4) provides that such association shall file yearly with the secretary of state a certificate stating the names and places of residence of its officers, but there is no provision requiring the names of its stockholders to be filed. Our own laws provide that all foreign joint stock associations shall file annually with the auditor general a statement giving the name and address of its president and treasurer only. See Act of May 8, 1901, Sec. 2, P. L. 150. There is no means, therefore, of knowing who are the individual stockholders of the Adams Express Company, and we doubt if anyone does know, aside from its own officers. Under these circumstances we are satisfied that the title ‘Adams Express Company’ was a sufficient designation of the defendant company and that there existed no necessity for amendment. Under the New York Code of Civil Procedure, however, it is provided in Chapter 15, Title 5, Article I, Sec. 1919, .that in any case against such an association, in which the plaintiff might maintain an action against all the members of the association jointly or in common, an action may be maintained against the president or treasurer of such association, and Section 1921 provides that in such case a judgment against an officer does not authorize either his arrest or an execution against his property but only against the property of the association. It was for this reason that the amendment in the name of the defendant in this case was made...... It is not denied that the goods levied upon were the goods of the Adams Express Company; the shipment in suit was made by the Adams Express Company, the goods were lost by it, suit was brought against it and service was made upon its authorized agent. William M. Barrett, president of the Adams Express Company, was not sued in his individual capacity as president of this company. The amendment complained of works no change in the actual parties but only a change in their corporate designation...... We are of the opinion that for the purposes of this suit the agents of the ‘Adams Express Company’ were also the agents of ‘William M. Barrett, president of the Adams Express Company.’ He is not hurt by these proceedings as no property of his is or can be levied upon by virtue of this execution. The company that did the damage and against whom judgment is rendered is the company whose goods are to be sold and this meets the demand of both law and equity...... We consider it immaterial whether the title of the defendant in this suit is the ‘Adams Express Company’ or ‘William M. Barrett, president of the Adams Express Company’; the result is the same, but if it would make any difference we would permit the plaintiff now to amend, either by withdrawing his former amendment or by such other amendment as may be necessary, for whatever the proper title of the defendant in this case may be service has been regularly made on the authorized agent of such defendant...... Under the facts and circumstances of this case we are satisfied that the claim is mala fides and collusive and, as there are no facts in dispute, it would be idle to grant an issue. There is no dispute here between rival claimants, all parties admit that the goods levied upon are the goods of the Adams Express Company. The claim is that these goods are subject to execution under this judgment and as we concur in this view we regard these proceedings as frivolous.”

We agree with the learned court below that there is no merit in the contention of the appellant, and upon the record as presented we are not convinced of any reversible error.. The petition of the plaintiff to amend the name of the defendant expressly averred the status of the Adams Express Company as a New York joint stock association; that Barrett was its president, and that under the laws of New York actions were to be brought in the name of and against the president or treasurer of such an association; and upon the trial of the case the laws of New York were proved. It clearly appears from this petition that the purpose was not to sue Barrett personally but simply to name properly the defendant express company. While under our laws joint stock associations may “be sued in their association name” (Act of May 1, 1876, Sec. 3, P. L. 89) and service may be made on an agent (Act of June 10, 1881, Sec. 1, P. L. 115), which was the course pursued in this case, yet since the amendment simply designated the defendant for the purpose of the suit as provided in the law of the state of its origin, we fail to see what harm was done to either the Adams Express Company or Barrett, its president.

In Dinsmore, President of Adams Express Company, v. Phila. & Reading R. R. Co., 2 W. N. C. 275, this very defendant brought an action in the United States Circuit Court for the Eastern District of Pennsylvania, wherein, for the purposes of the suit, it designated itself in the manner pursued by the plaintiff in the present case; and in Edgeworth v. Wood, 58 N. J. Law 463, the Supreme Court of New Jersey held that an action might be maintained in New Jersey against the United States Express Company, a joint stock association formed under the laws of New York, in the manner prescribed by the laws of the latter state, viz: in the name of its treasurer. McConnell v. Apollo Savings Bank, 146 Pa. 79, cited by the appellant, is readily distinguishable from the present case; there the action was brought against “the Apollo Savings Bank, a corporation, etc.”; an amendment was allowed striking out that part of the title which alleged the defendant to be a corporation, and there was nothing upon the record to show in what capacity the bank was sued. Whereas in the case at bar the petition to amend plainly sets forth the fact that the Adams Express Company is a joint stock association organized and existing under the laws of the State of New York.

Despite the fact that counsel for the defendant refused to participate in the trial the cause seems to have been fairly and properly presented to the jury; the assignments of error are overruled and the appeal is dismissed at the cost of the appellant.


author: Per Curiam,

text:
    Beatty, Appellant, v. E. I. DuPont de Nemours Powder Company.

      Negligence — Oil well — Torpedoing oil well — Nonsuit.
    In an action by a boy twelve years old to recover damages for personal injuries against a corporation employed to torpedo an oil well, a nonsuit is properly entered where the evidence shows that defendant was employed merely to torpedo the well without having charge of it; that its duty was to lower the torpedo in the well and explode it; that after the well was torpedoed the gas therefrom became ignited from some cause not shown; that all the fires in and about the boiler had been carefully extinguished; and that the boy instead of staying upon a public road forty to sixty feet away from the well, where he would have been safe, had gone close to the well merely out of curiosity and was injured when the gas ignited.
    Argued April 30, 1912.
    Appeal, No. 121, Jan. T., 1912, by plaintiff, from order of C. P. McKean Co., Dee. T., 1909, No. 189, refusing to take off nonsuit in case of Jobn Beatty, et al., v. E. I. DuPont de Nemours Powder Company.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass by a boy twelve years old to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Bouton, P. J., filing the following opinion:
    Prom the pleadings and evidence, it appears that sometime prior to April 2, 1909, Hooker and O’Donnell drilled an oil well on a vacant lot abutting on School street, in the city of Bradford. This lot was located between the lots of H. Bryman and Mrs. Bernstein. The well was from fifty to sixty feet from the sidewalk running along School street. The owners of the well secured permission from Bryman and Mrs. Bernstein, as well as from other property owners in the immediate vicinity, to drill the well on this lot.
    On April 2, 1909, the well owners employed the defendant company to torpedo the well with solidified nitro-glycerine. Permission to torpedo the well was given by the city authorities, and the city sent several police officers to keep the people away from the well, while the same was being torpedoed.
    It appears that after the well was torpedoed, the gas therefrom became ignited, and several boys, including the plaintiff, were seriously burned, and this action was brought by the plaintiff, John Beatty, to recover damages for injuries thus sustained. At the close of the plaintiff’s case we were asked by defendant’s counsel to grant a compulsory nonsuit on the grounds that there was no negligence shown against the defendant.
    We were then of opinion that the motion was well taken and granted the nonsuit, which we are now asked to take off. What we said in granting the nonsuit we now in substance repeat. The evidence clearly showed that the defendant did not have charge of the well; that they were employed to torpedo it, and that their duty was simply to lower the torpedo in the well and explode it. This they did and with it their duty ended. The injury to the plaintiff, it will be observed, was not caused by any act or omission on the part of the defendant or its employees. The plaintiff was not injured while on a public highway or thoroughfare of the city, but was from forty to sixty feet off the highway in close proximity to the well. There were numerous people on the highway, none of whom were injured by this gas explosion. The plaintiff went down near this well merely out of curiosity. There was a sign on the derrick and one or two other signs immediately near, warning people in the following language: “Danger, keep out!” The police officers, as well as Mr. Hooker, one of the well owners, and other employees, it appears from the evidence, did their best to keep these boys away from the immediate locality. But, as testified by one witness, “they ran by the officers like a flock of sheep.”
    May 22, 1912:
    We fail to see how the defendant owed the plaintiff any duty, which was not performed. The evidence shows that all fires in and about the boiler, which was used for operating the well, had been carefully extinguished; that gas would not explode unless it came in contact with a flame of some description. The explosion occurred about ten minutes after the well had been successfully torpedoed, and what caused the explosion does not appear from the evidence; whether it came from some one carelessly lighting a match, smoking a cigarette or otherwise, we can only conjecture. But the evidence fails to show that the gas was ignited from any act, negligent or otherwise, on the part of the defendant, or those in its employ. We are still of opinion that the plaintiffs entirely failed to show any negligence on the part of the defendant, which caused the injury.
    And now, to wit, January 17, 1912, the rule to show cause why the compulsory nonsuit should not be taken off is discharged.

      Error assigned was refusal to take off nonsuit.

      John Q. Johnson, with him Mullin & Mullin, W. E. Burdick and Jones <& Wick, for appellant.

      J. E. Mullin, with him D. H. Jack & Son, R. B. Stone and Thomas J. Laffey, for appellee.
   Per Curiam,

This judgment is affirmed on the opinion of the learned president judge of the court below refusing to take off the nonsuit.


text:
    Corydon Township Election.
    , Election law — Poll tax — Payment of tax — Act of July 15, 1897, P. L. 276.

    1. The payment of an occupation or poll tax with the money of the taxable at his request by another person without a written and signed order of the elector as required by the Act of July 15, 1897, P. L. 276, will prevent the taxable from voting on a tax receipt which he has acquired in such a manner.
    2. The eligibility of a candidate for public office cannot be adjudicated in an election contest. The proper method of determining a question of eligibility is by quo warranto.
    Argued April 30, 1912.
    May 22, 1912:
    Appeal, No. 164, Jan. T., 1*912, by O. J. Tome, from judgment of C. P. Warren Co., Dec. T., 1911, No. 25, in election contest In re Election of Supervisor in Corydon Township, Warren County.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    'The opinion of the Supreme Court states the case.

      Error asigned was in entering judgment for Frank Kennedy.

      Edward Lindsey, with him O. E. Bordwell, for appellant.

      D. I. Ball, with him A. G. Eldred, for appellee.
   Opinion by

Mr. Justice Moschzisker,

This was an election contest under the Act of May 19, 1874, P. L. 208, over the office of supervisor of roads of Corydon township, Warren county. On the face of the returns Frank Kennedy received 53 and O. J. Tome 54 votes. The court below found that one of the votes cast for the former and seven of those for the latter were illegal. This made the count, Kennedy 52, Tome 47, and the certificate of election was given accordingly; Tome has appealed.

One of Tome’s votes was rejected because the voter “had not paid any state or county tax within two years prior to the state election,” and four of those rejected fell within the following findings of fact and conclusions of law made by the court below: “Prior to that date (November 7, 1911) each of those persons had been duly assessed with a valuation based on occupation only, and a county tax levied upon same in each instance was paid by some other person than the respective elector, and none of the persons paying the said tax presented to the collector, at least thirty days prior to the date of holding the said election, in either instance, any written and signed order of the elector authorizing such payment to be made. No other taxes were paid by any one of the said electors within two years prior to November 11, 1911 (November 7, 1911?)...... The tax in each instance was paid with the elector’s own funds...... The votes of Earl Hook, Walter Mason, Fred Slater, Grant Wilcox.......should be excluded from the count,......because the payment of their occupation tax, upon which their right to vote depended, was not in accordance with the provisions of the Act of July 15, 1897, P. L. 276.”

This raises the question stated by the appellant, “Will the payment of an occupation tax with the money of the taxable at his request by another without a written and signed order as required by the Act of July 15, 1897, P. L. 276, disfranchise the taxable so paying?” In disposing of this question the court below says: “The act provides that, -from and after its passage, ‘It shall be unlawful for any person or persons to pay or cause to be paid any occupation or poll tax assessed against any elector, except on the written and signed order of such elector authorizing such payment to be made, which written and signed order must be presented at least thirty days prior to the date of holding the election at which such elector desires to vote.’ The second section makes it ‘unlawful for any officer, clerk or other person authorized to collect taxes and receipt therefor, to receive payment of, or receipt for any occupation. or poll tax assessed for state or connty purposes from any person other than the elector against whom such tax shall have been assessed except upon his written and signed order authorizing such payment to be made.’ The third section declares that, ‘It shall be unlawful for any person to vote or attempt to vote at any election upon a tax receipt obtained in violation of this act.’' And the fourth section makes any violation of the act a misdemeanor punishable by fine or imprisonment. There can be no doubt that a tax paid in disregard of the provisions of this act will not qualify the voter, being prohibited, under a penalty, and made a misdemeanor. However it may discharge the party from the tax so far as the state or county entitled to collect it is concerned, it is not a legal payment of which the party can avail himself to qualify his vote. ...... Not only is the payment of the tax of another without a written order prohibited and made a misdemeanor, but so also is the attempt by the voter to vote on the strength of it, which is the material thing. The law having put its most solemn condemnation on every step of the transaction, the ballot which the voter cast in violation of it is clearly illegal and ought not to be counted...... We do not think the Act of 1897 offends against the constitutional provisions as to the requirements necessary to qualify a lawful voter. It does not in itself deprive any elector of his franchise. It is but a regulation of the manner in which the occupation tax shall be paid and to provide an absolutely certain and unimpeachable method of determining the essential fact that the voter has paid his occupation tax with his own money. In Cusick’s Election, 136 Pa. 459 (1890), the principle is there settled that ‘the constitution having fixed the qualifications of voters, it is not in the power of the legislature either to enlarge or abridge them; but legislation may be enacted which merely regulates the exercise of the elective franchise and does not amount to a denial of the franchise itself. The constitution having provided no machinery for ascertaining whether a particular voter possesses the requisite qualifications, the legislature has power to prescribe the form and nature of the proof by which......electors must establish the existence of a right to vote under the Constitution...... The legislature has from time to time passed various laws to regulate elections, their object has always been to preserve the purity of the ballot. It is too late to question the constitutionality of such legislation so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself.7......77

We agree with the views so well expressed by the learned court below. The constitutional requirement is that the elector “shall have paid his state or county tax77 before he is qualified to vote. The prime purpose of the legislation creating occupation and poll taxes is to enable persons to become qualified as voters rather than to raise revenue, and the legislature having afforded this opportunity may in all reasonable ways prescribe and regulate the manner of the payment of such taxes. The Act of. 1897, supra, was no doubt passed to remedy a public evil which had come into existence through the wholesale purchase of tax receipts by organized political parties, contrary to the intent of the Constitution that each elector should individually pay a tax. The object of the act was to see to it that each elector should in good faith pay such taxes with his own funds; there is nothing in the statute which serves to disfranchise the citizen, for it rests with each man properly to qualify himself to exercise the franchise of an elector, and the act affords him ample opportunity so to do, without unreasonable restraints. It comes to this, the Constitution requires that each elector shall pay a tax in order to qualify himself, the legislature has afforded that opportunity, at the same time hedging it around with proper and reasonable safeguards, and only payment in the manner prescribed by this legislation constitutes a payment of the tax in a legal sense, so as to give the voter the requisite constitutional qualification.

The real point in this case is whether or not error was committed in awarding the certificate of election to Kennedy instead of to Tome. The qualifications of only one other of Kennedy’s electors seem to have been in question, which left him at least 51 admittedly valid votes. Whereas, deducting the votes of the five electors whose qualifications we have discussed from Tome’s total, he only has left to his credit 49; therefore, it becomes unnecessary to consider the questions involved in the rulings on the remaining two votes cast for Tome and rejected by the court below.

Kennedy’s eligibility to hold the office of road supervisor cannot be questioned or adjudicated in this proceeding. Under the Act of 1874, supra, the court merely determined which candidate received the highest number of legal votes and is entitled to the certificate. The proper method of determining a question of eligibility is by quo warranto.

The appeal is dismissed at the cost of the appellant.


author: Mr. Justice Mestbezat,

text:
    Keily v. Saunders, Appellant.

      Vendor and vendee — Sale of real estate — Deeds — Suit for purchase money — Equity.
    1. An action of assumpsit to recover purchase money under a contract for the sale of real estate is a substitute for a bill in equity to enforce specific performance of the contract; and the plaintiffs, in invoking the equitable powers of the court to compel the defendant to pay the purchase money must be ready and willing to convey to the plaintiff the land which he purchased.
    2. Where a decedent acquired in her lifetime by separate conveyance two adjoining city lots fronting on the same street, and at her death there had been built on the larger lot a stable, and on the smaller one a house which encroached three feet on the stable lot, and the executors of the decedent advertise for sale at public auction the stable lot, describing it under the heading of the word “stable” with its street numbers, followed by a description of it by its distance from a cross street, and its width and depth, all in conformance with the deed to the decedent, but without giving the actual width of the stable, a purchaser at the sale cannot be compelled to take a deed for a lot three feet less in frontage than the width advertised, and three feet more in distance from the cross street than that mentioned in the advertisement.
    3. In such a case the conditions on the ground and the fact that the vendee saw the premises are not sufficient to prevent the latter from demanding a conveyance of a lot of the full width advertised, inasmuch as the decedent owned both lots and her executors had full power to sell all of her real estate subject to a certain condition as to the house lot, and also because a simple inspection would not have disclosed to the vendee a discrepancy of three feet in the frontage of the premises.
    Argued May 1, 1912.
    Appeal, No. 138, Jan. T., 1912, by defendant, from order of C. P. No. 2, Pliila. Co., Dec. T., 1911, No. 3552, making absolute rule for judgment for want of a sufficient affidavit of defense in case of James P. Keily and William J. Kelleher v. Harry T. Saunders.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.

      Assumpsit to recover the balance of purchase money of real estate.
    The facts are stated in the opinion of the Supreme Court.
    The affidavit of defense was as follows:
    This lot I was desirous of purchasing and I bid for the same the sum of $9,600. I desired said premises for the purpose of an automobile garage. Its width as advertised of fifty feet was barely sufficient for said purpose and if I had known that the plaintiffs when advertising the lot they had to sell as fifty feet in front on Lancaster avenue intended to convey a lot of less frontage, I would not have bid for the same.
    After the property had been knocked down to me by the auctioneers at my bid of $9,600, plaintiffs delivered to me the title deeds to the property, in order that I might have the deed I desired them to execute prepared. These title deeds described the property as situate on the northeasterly side of Lancaster avenue two hundred feet southeasterly from Wyalusing avenue and containing in front on Lancaster avenue fifty feet.
    In addition to the lot above described plaintiffs were the owners of another lot adjoining the same on the west and described as beginning on the northeasterly side of Lancaster avenue at a distance of one hundred and eighty-three feet southeastwardly from the southeasterly side of Wyalusing street and containing in front on Lancaster avenue sixteen feet eight inches.
    Subsequently to the date when I bid for the property first above described, I learned that the dwelling house which was erected on the lot last above described extended nearly three feet eastwardly over the lot first above described, for which I had bid at the auction sale. If this fact had been known to me at the time of the sale I would not have bid for the property.
    Since the date of said auction sale I have also learned that in the wall between the lot occupied by the dwelling house and the property first above described, there are a number of windows and also a door opening into the yard of the dwelling house and thus indicating the existence of some right by the owner of the property first above described over the lot adjoining the dwelling house.
    For the first time, after I had made the bid and paid in the $500, called to be paid at the time of the sale, I learned that plaintiffs proposed to convey to me only a lot beginning at a point on the northeasterly side of Lancaster avenue two hundred and two feet eleven and one-quarter inches southeastwardly from Wyalusing street, instead of two hundred feet southeastwardly therefrom, and containing in front on said Lancaster avenue only forty-seven feet and' three-quarters of an inch instead of fifty feet.
    As the plaintiffs are the owners of property of the full width described in the said advertisement and as the point at which their property as described in said advertisement commences is within the line of the properties owned by them, I caused to be prepared and tendered to the plaintiff’s through their attorney, Thomas H. McCaffrey, at the same time that they, through said attorney, tendered to me the deed described in plaintiff’s statement, a deed for the premises which they had advertised for sale and which I purchased, described (as hereinbefore set forth) as commencing on the northeasterly side of Lancaster avenue at the distance of two hundred feet southeastwardly from the southeasterly side of Wyalusing street and extending southeastwardly along said northeasterly side of said Lancaster avenue fifty feet to a point.
    The plaintiffs, through their attorney, declined to execute said deed. Through my attorney, therefore, I declined to accept the deed tendered by plaintiffs as in accordance with the agreement of sale, and demanded from the plaintiffs the repayment of the $500 deposited by me in accordance with the terms of sale. The plaintiffs, through their attorney, refused to repay me said sum.
    I deny that the deed tendered by the plaintiffs to me is in accordance with the agreement of sale to which I was a party or that I am in any way bound to accept a deed for the property described therein or to pay the plaintiffs anything with respect thereto.
    I therefore owe the plaintiffs nothing at the present time. On the contrary, they are indebted to me in the sum of $500, being the amount of the deposit which I made in accordance with the terms of sale. For this amount I shall ask a certificate at the trial of this cause.
    I make the foregoing affidavit in part of my own knowledge and in part upon information received from others. I believe all the facts herein set forth to be true and expect to be able to prove the same at the trial of this cause.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      John G. Johnson, with him James Wilson Bayard, for appellant.
    The equities of the case as between the parties is in favor of the defendant.
    It is very clear that if this contract is to be enforced either the purchaser must receive something different from what he intended to buy or the sellers must give something different from what they intended to sell. As the mistake was caused by the sellers, it is submitted that they at least cannot enforce the contract to the detriment of the purchaser.
    The appellees cited to the court below five eases. A somewhat careful search of the digests has failed to disclose any case which comes any nearer to the present issue than those which the appellees have so cited. An examination of these cases will show that they wholly fail to support the appellees’ contention.

      We have here a case the like of which we believe has not yet been brought before the courts of this Commonwealth in any reported case, viz: where a person who owns an entire lot, which he describes by courses and distances in his offer to sell it, refuses to convey the lot as he describes it; but offers to convey a less lot, because in his offer he also showed that the property was improved with a stable which bore certain street numbers, and that stable as actually erected starts at a different point and does not cover all the land which he offered to convey.
    This is not a case where the vendee is trying to get out of his bargain. He is before this court stating that he is ready to carry out the bargain in accordance with its expressed terms. Such a specific performance of the agreement has been refused him.
    If the appellees believe it for the interest of the estate not to convey the land which they offered to convey to him, how can they demand from him an acceptance of a different lot, which, as the affidavit expressly avers, was one he would not have bought, and which would not be available for the purpose for which he was endeavoring to purchase?
    The appellant is not anxious to injure the estate which the appellees represent, and, if they believe the conveyance of the lot which they offered to sell will be detrimental to the estate by reason of its embracing part of the adjoining dwelling house, he is willing to surrender his agreement of sale, provided the deposit he made is returned to him. This is shown by his demand in his affidavit for a certificate for the amount of the deposit money. He is not here demanding his pound of flesh.
    We submit that he should not be called upon to take title to a lot of a different size from that which he bought, thus giving to the appellees the advantage of selling a part of a lot they own for a price based upon the size of the whole lot, and yet retaining the residue of that lot, so that it will enhance the value of the adjoining property which they own.
    May 22, 1912:

      Thomas S. McCaffrey, for appellees.
    The case at bar falls within the class of cases dealing with sales of farms as entireties, that they may contain a greater number or a less number of acres than the parties so understood at the time of the agreement of sale, both parties are nevertheless, bound. So with city properties sold by number: Coughenour v. Stauft, 77 Pa. 191; Kreiter v. Bomberger, 82 Pa. 59; McCullough v. Manning, 132 Pa. 43; Shattuck v. Cunningham, 166 Pa. 368; Spiving v. Printy, 54 Pitts. Leg. J. 33.
   Opinion by

Mr. Justice Mestbezat,

This is an appeal by the defendant from a judgment entered against him for want of a sufficient affidavit of defense. The action was assumpsit to recover the purchase money alleged by the plaintiffs, the executors of Margaret Donnelly, deceased, to be due for a city lot sold by them to the defendant. Margaret Donnelly died in September, 1909, seized of certain premises on the northeasterly side of Lancaster avenue, in the city of Philadelphia, described in the statement as follows: “Beginning at a point on the northeasterly side of Lancaster avenue at the distance of 183 feet 4 inches southeastwardly from the southeasterly side of Wyalusing street......thence extending southeastwardly 66 feet 8 inches to a point, thence along the line parallel with Wyalusing street 228 feet to a point in the southwesterly side of Merion avenue,......at the distance of 250 feet southeastwardly from Wyalusing street, thence extending northwestwardly along the southwesterly side of the said Merion avenue fifty feet to a point, thence extending southwestwardly along a line parallel with the said Wyalusing street 114 feet to a point, thence northwestwardly along a line parallel with the said Lancaster avenue 16 feet 8 inches to a point, thence extending southwestwardly along a line parallel with said Wyalusing street 114 feet to a point in the said northeastwardly side of Lancaster avenue and place of beginning.” Lancaster avenue and Merion avenue are 228 feet apart and are at right angles with Wyalusing street, which is southwest of the premises, described. On the northeasterly part of the premises is a large three-story brick stable, and on the other or southwesterly part of the lot is a brick dwelling house encroaching nearly three feet on the other part of the premises, both buildings fronting on Lancaster avenue. The stable has three street numbers, and the dwelling one street number, 4553. The premises were conveyed to the decedent in two parcels, the eastern part fronting or having a width of 50 feet on Lancaster avenue and extending the same width 228 feet to Merion avenue, and the western part fronting 16 feet 8 inches on Lancaster avenue and extending back the same width a distance of 114 feet.

The decedent by her will empowered her executors, at their discretion, to sell any or all of her real estate at the best prices which could be obtained for the same, providing, however, that the part of the premises numbered 4553 be not sold until her sister was provided with a home or she gave her consent to the sale. In pursuance of this authority the executors offered for sale at public auction by the hands of an auctioneer and at his salesroom in the city a part of the premises above described. The sales catalogue of the auctioneer and the hand-bills described the premises to be sold as follows :

“Valuable Three-Story Brick Stable 4545-4551 Lancaster Avenue.

All that certain lot or piece of ground with the improvements thereon erected, situate on the northeasterly side of Lancaster avenue, at the distance of 200 feet southeastwardly from the southeasterly side of Wyalusing street, in the Forty-fourth ward of the city of Philadelphia; containing in front or breadth on the said Lancaster avenue 50 feet, more or less, and extending northeastwardly between lines parallel with Wyalusing street 228 feet, more or less, to Merion avenue.” The advertisement then describes the brick stable as the improveprovement on the premises to be sold. The terms provided that the sale should not be invalidated by errors or misdescription of the size of the parcel of land sold or of the improvements which may be thereon. The defendant was present at the sale, purchased the property for nine thousand six hundred dollars, and in compliance with the terms of sale paid five hundred dollars on the purchase money. Shortly thereafter the plaintiffs tendered to the defendant a duly executed deed and demanded payment of the balance of purchase money. Payment was refused because the deed did not convey to the defendant the premises which he had purchased at the sale. This action was then brought by the plaintiffs to enforce payment of the purchase money.

The deed tendered to the defendant contained a description of the premises according to a recent survey. Briefly stated, it describes a lot beginning at a point in the northeasterly side of Lancaster avenue two hundred and two feet and eleven and one-fourth inches southeasterly from Wyalusing street, thence forty-seven feet and three-fourths inches along the north side of Lancaster avenue, thence parallel with Wyalusing street two hundred and twenty-eight feet to Merion avenue, thence fifty feet along Merion avenue, then southwestwardly on a broken and an irregular line to Lancaster avenue, the place of beginning.

The statement of facts relieves the solution of the question at issue from any difficulty. This is an action to recover purchase money, and, hence, is a substitute for a bill to enforce specific performance of the contract for the sale of the lot purchased by the vendee. If, therefore, the plaintiffs invoke the equitable powers of the court to compel the defendant to pay the purchase price, they must be ready and willing to convey the lot of ground which they sold him. Equity will not permit them to recover the price agreed to be paid unless they can and will convey to the vendee the lot he purchased. The contention of the plaintiffs is that the defendant bought a stable property regularly numbered according to the system of street notation established by the city, and that, therefore, he is required to pay for and accept the lot on which the stable is erected. That contention, in the light of the conceded facts, we do. not regard as tenable. It can only be sustained by disregarding the description of the lot contained in the sales catalogue and hand-bills, and the other important facts disclosed by the pleadings. The decedent, as will be observed, owned at the time of her death two lots of ground, one fronting 50 feet, and the other 16 feet 8 inches, on Lancaster avenue, or a piece of ground aggregating a frontage on the avenue of 66 feet and 8 inches.' The larger lot, fifty feet in width, was conveyed to her by a deed describing it as lying at a point 200 feet southeastwardly from Wyalusing street, and extending the same width between lines parallel with Wyalusing street to Merion avenue. In purchasing the other lot it was described as beginning at a point on the north side of Lancaster avenue 183 feet 4 inches sou'theastwardly from Wyalusing street. In advertising the fifty-foot lot for sale it will be observed that the plaintiffs described the lot in accordance with the description in the deed to their testatrix. The lot sold at auction was described as beginning at a distance of 200 feet from Wyalusing street on the north side of Lancaster avenue, containing in front or breadth, 50 feet, more or less, on the avenue, and extending between lines parallel with Wyalusing street 228 feet to Merion avenue. That is the lot that was purchased by the testatrix and was the lot sold to the vendee. Had the description in the hand-bills described the premises simply as “a valuable three-story brick stable 4545-4551 Lancaster avenue,” there would he something in the plaintiffs’ contention that it was “the brick stable property” which was advertised and which was sold to the vendee. If property is sold by a street number, the vendee takes what the number represents, and he cannot complain if there is a slight discrepancy in the frontage of the lot. But that is not this case. ,What we have quoted was simply the heading of thd advertisement, and the description did not stop with it but set forth specifically the size of the lot which was to be sold. To locate on the ground the lot described in the hand-bills it is absolutely necessary to begin at a point 200 feet distant from Wyalusing street. The lot sold at auction fronted on Lancaster avenue “50 feet, more or less,” and, there being no monuments on the ground referred to in the description in the hand-bills, it is obvious that the precise frontage on the avenue could not be definitely ascertained without commencing the survey on the avenue at the exact distance southeast of Wyalusing street named in the description. Had the description in the hand-bills described the property as beginning at a distance of 250 feet from Wyalusing street, and the frontage as “50 feet more or less” extending southeasterly from that point, the plaintiffs might have some ground, for their contention. The vendee might then have been compelled to accept the stable lot notwithstanding it is about three feet less in width than the original lot purchased by the testatrix. The indefinite description of the frontage might then have been determined by locating it between the easterly line of the lot and the wall of the dwelling house erected principally on the other lot, which would have given the vendee about three feet less than the fifty-foot frontage on Lancaster avenue. But there is no such description in the advertisement of the premises sold, and unless that description is adhered to and the lot sold is located by beginning at a point 200 feet distant from Wyalusing street there can be no location of the lot on the ground.

It is urged on the part of the plaintiffs that the description in the hand-bills stated that the improvement was a three-story brick stable, and that, therefore, it necessarily follows that it was the lot occupied by the stable which was advertised and which was sold to the vendee. That contention, however, has no merit. The advertisement does not state the length of the stable nor what part of the lot it occupied. It might have been 10 feet or it might have been 50 feet in length, and there is nothing whatever to indicate its real length. When improvements on the premises are referred to in the advertisement of sale it does not necessarily follow that they cover the entire property to be sold. They are stated in the advertisement for the purpose of showing the value and not the size of the premises.

The conditions on the ground and the fact that the vendee saw the premises are not sufficient to prevent the latter from demanding a conveyance of the fifty-foot lot. The testatrix owned both lots and empowered her executors to sell all her real estate, coupled, however, with the condition that they should furnish her sister with a home, or not sell the other lot without the sister’s permission. When the purchaser saw the advertisement he had the right to presume that in the exercise of the power conferred on the executors, they had provided a home for the sister and intended to sell the whole of the fifty-foot lot. Nothing contrary to that presumption was announced at the sale. Again: a simple inspection would not have disclosed to the defendant a discrepancy of three feet in the frontage of the premises. Nothing short of an actual measurement on the ground would have told him that the lot to be sold was less than fifty feet frontage or did not begin at a point 200 feet éast of Wyahising street. While the difference of three feet in the frontage of the lot on Lancaster avenue unquestionably would injuriously affect the value of the lot, it could not be detected without a close examination made for the special purpose of determining the exact frontage of the premises.

There was no error in the description' in the sales catalogue. The plaintiffs owned the land therein described at the time of the sale. The deed tendered the defendant does not contain the description in the advertisement but a description from a recent survey which was made by beginning at a point on the north side of Lancaster avenue, not 200 feet east of Wyalusing street, as set forth in the hand-bills, but at a point 202 feet 11% inches east of Wyalusing street. The deed conveys a lot, not containing a frontage on Lancaster avenue of 50 feet, more or less, between a point 200 feet east of Wyalusing street and the easterly line of the plaintiffs’ premises and extending the same width to Merion avenue, but a lot having a frontage of only 47 feet and % inches on Lancaster avenue and not ex tending the like width to Merion avenue. The lot sold was necessarily a rectangular piece of ground fronting on Lancaster avenue and extending back to Merion avenue, as it is described in the hand-bills as fronting on Lancaster avenue and extending between lines parallel with Wyalusing street to Merion avenue. The lot offered to be conveyed is not rectangular in shape but 50 feet wide on Merion avenue, 47 feet and % inches on Lancaster avenue, having a broken and irregular western line, and containing a less quantity of land than the lot sold. The plaintiffs, therefore, tendered a deed conveying to the defendant, not the premises described in the advertisement of the sale and sold to him, but a lot of ground described from a recent survey and substantially different in description and value from the one purchased by the vendee.

The purchaser, through his counsel, states that he is willing to carry out his bargain and take the lot described in the advertisement and sold to him. So far as the record discloses he has done nothing to estop him in any way from demanding of the plaintiffs a conveyance of tbe lot as described in tbe hand-bills. If tbe plaintiffs are unwilling or unable to. give tbe vendee wbat he purchased, they have no standing in law or equity to demand that tbe contract of sale shall be modified to tbe extent of permitting them to convey a different lot and recover tbe price bid by tbe vendee for tbe lot advertised. It is tbe contract in its original and not in its modified form that tbe plaintiffs have tbe right to demand shall be specifically enforced. When they tender performance of tbe agreement on their part, equity will compel performance on tbe part of tbe vendee.

Tbe learned court below committed reversible error in entering judgment against tbe defendant for want of a sufficient affidavit of defense, and tbe judgment is now reversed with a procedendo.


author: Mr. Justice Elkin,

text:
    Church v. Baer, Appellant.

      Wills — Construction — Legal heirs — Issue of the body — Estate in fee simple.

    Where a testator devises land to his wife for life, and after her death to his daughter, and further provides that if his daughter shall “not outlive her mother, and leave no legal heirs,” then the land was to belong to his son, the daughter after the death of the mother takes an absolute estate in fee simple in the land. In such a ease the testator used the words “legal heirs” in the sense of “issue of the body,” and they refer to the death of the daughter without issue during the life of the wife.
    Submitted May 7, 1912.
    Appeal, No. 178, Jan. T., 1912, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1911, No. 158, for plaintiff on case stated in suit of Isabella D. Cburcb v. Joseph J. Baer.
    Before Fell, C. J., Potter, Elkin and Moschzisker, JJ.
    Affirmed.

      May 22, 1912:
    Case stated to determine marketable title to real estate. Before Van Swearingen, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant on case stated.

      John 8. Christy, for appellant,
    cited: Hoopes’s Est., 231 Pa. 232; Fox’s App., 99 Pa. 382; Stoner v. Wunderlich, 198 Pa. 158; Seibert v. Butz, 9 Watts 490; Miller’s Est., 145 Pa. 561.

      Thomas H. Hudson, for appellee,
    cited: Smith’s App., 23 Pa. 9; Mickley’s App., 92 Pa. 514; Mayer v. Walker, 214 Pa. 440; Fahrney v. Holsinger, 65 Pa. 388; Hannon v. Fliedner, 216 Pa. 470; Drum v. Millar, 18 Pa. C. C. R. 318; Shearer v. Miller, 185 Pa. 149.
   Opinion by

Mr. Justice Elkin,

This in effect is an action for purchase money, and the right to recover depends upon whether the plaintiff took an indefeasible estate upon the death of her mother, under the will of her father. The clause of the will under which plaintiff claims title is as follows: “I give and bequeath to my wife, Margaret, one hundred acres of the home farm, with the house and stabling thereunto belonging during her lifetime, and after her death I desire the same shall belong to my daughter Isabella Church. Should my daughter Isabella not outlive her mother and leave no legal heirs, then the said one hundred acres of land is to belong to my son, John Church, subject to the conditions hereinafter stated. It is also my desire, my daughter, Isabella shall have a home and equal interest with her mother in the property set apart for the latter, during the lifetime of her mother.” This is followed by conditions imposed upon his son John in event that he outlive his mother and sister and take title under the will. After the death of the testator in 1883, his widow and the daughter Isabella took possession and lived together upon the home farm as directed by the will until the death of the widow in 1887; since that time Isabella has been in enjoyment' and possession of the farm. She has agreed to sell and convey the property and the purchaser agrees to buy if she can convey the fee. The testator gave a life estate to his wife and upon her death an absolute estate in the first instance to his daughter Isabella. The question is whether that absolute estate is cut down by the subsequent provisions of the will. Appellant relies on the provision, “should my daughter Isabella not outlive her mother and leave no legal heirs, then the said one hundred acres of land is to belong to my son John Church,” to sustain his contention that Isabella did not take an absolute estate upon the death of her mother. This depends upon what the testator meant by the words “not outlive her mother and leave no legal heirs.” There can not be the slightest doubt that the testator used the words “legal heirs” in the sense of “issue of the body.” This appears from the context and the manifest intention of the testator in providing for the different members of his family. When an absolute estate is followed by these words, they will be understood as referring to death without issue in the lifetime of the testator, if the devise is immediate; or during the continuance of the life estate, if it is not: Mayer v. Walker, 214 Pa. 440. In the case at bar the words “leave no legal heirs” are equivalent to “leave no lawful issue” and refer to the death of the daughter Isabella without issue during the life of his wife Margaret. The testator evidently contemplated that his daughter might die before his wife without lawful issue, in which event he made provision against a lapse by giving the farm to his son John. Isabella outlived her mother, and therefore the situation did not arise against which the testator made provision. We are of opinion that the testator intended his daughter to take an absolute estate if sbe survived her mother, and only-meant his son John to take if Isabella died before her mother without leaving lawful issue.

The learned court below gave the case thorough and exhaustive consideration and properly disposed of it.

Judgment affirmed.