text:
    Ryon, Appellant, v. Starr
    (No. 1).

      Affidavit of defense — Practice, C. P. — Contracts.
    Where plaintiff’s claim depends upon written contracts and papers set out in the statement and the affidavit of defense raises no issue of fact by denying any part of the statement except the inference from the face of the papers, it is a question of law for the court to decide upon the statement and affidavit.
    Where the statement of claim contains a copy of the contracts on which the action is based, and all other papers and accounts between the parties relating to the matter in dispute, and the affidavit of defense does not deny a single material averment in the statement, the case is for the court and not for the jury.
    Argued Feb. 12, 1906.
    Appeal, No. 297, Jan. T., 1905, by plaintiff, from order of C. P. Schuylkill Co., March T., 1904, No. 22, refusing to enter judgment for full amount of plaintiff’s claim in suit of George W. Ryon v. David Starr.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Assumpsit on a contract. Before Bechtel, P. J.

      The court below filed the following opinion:
    From the plaintiff’s statement it appears, that the defendant by writing dated January 21, 1902, authorized and empowered him to sell or lease, a certain tract of land, and agreed to pay to him the sum of $20,000 in case of a sale, for the price therein named. This writing also gives the plaintiff power to lease, subject to the approval of the defendant, and upon the terms therein named. The plaintiff did, subsequently, effect a lease with the Black Diamond Anthracite Coal Company, for a period of 999 years, upon terms which were satisfactory to the defendant, and of which he approved, as appears from the instrument which he signed. This though termed a lease, would perhaps be more properly termed a sale. It recites the payment of $1.00, and the further consideration of 900,000 shares of stock, of the par value of $1.00 per share, with the same “ privileges and rights as of deed.” The 900,000 shares of stock were in due course of time delivered, under this written instrument which is dated June 17, 1902. Upon the same day (June 17, 1902) David Starr, the defendant, executed an instrument, in which he sets forth that he is the owner of the 900,000 shares of stock of the Black Diamond Anthracite Coal Company, and agrees to deposit said stock in such trust company as Peter Whitney, the other party to the agreement, may select, to be held in escrow, and to be delivered to said Whitney, when he paid therefor at the rate of ten cents per share, or to such parties as said Whitney might select. The said shares of stock were deposited, in pursuance of this agreement in the Trust Company of the Republic, and subsequently in the Commonwealth Trust Company on November 2,1908. On July 15, 1902, David Starr, the defendant, entered into an agreement with the plaintiff, in which he promises and agrees to pay to the plaintiffj one-fourth of all the money received by the said trust company and placed to the credit of Starr, until the amount thereof equaled the sum of $20,000. The agreement made between Starr and Whitney, dated June 17, 1904, and the agreement dated July 25, 1904, do not change or in any way affect the plaintiff’s rights. In pursuance of the sales of stock thus deposited in the trust company the defendant received $37,640, and of this sum he paid to the plaintiff the sum of $9,140, or one-fourth, being the exact proportion or sum he contracted and agreed to pay, under the agreement of July 15, 1902. The copy of account filed shows, that Starr began to receive money, arising from the sale of stock, as early as July 15, 1902, and continued to receive money almost every month, down to and including September 19, 1904. Out of these moneys he paid the exact portion required by his contract of July 15, 1902, .thereby recognizing his contract obligation and its binding force, down to and including September 19,1904, the time of the last payment. •Up to this point no difficulty arose, as far as this record shows, between the plaintiff and the defendant. In December, 1904, according to the affidavit of defense, about the 6th or 7th, Starr, without the knowledge or consent of the plaintiff, sold to Peter Whitney all his right, title and interest in the stock remaining unsold, and gave him full power to transfer the same to any party or parties. In addition he says, “ I do relinquish now and forever, on behalf of myself and my heirs at law, all claim whatsoever to said shares of the stock, of the said Black Diamond Anthracite Coal Company.” He also agrees to deliver a quitclaim deed to said Whitney, or anyone he may elect,' of all claim to the property. In this agreement the 'shares .of stock are mentioned as being •“ Five Hundred Thousand more or less.” As a consideration for this action, on the part of the defendant, he received $12,500, and of this sum be has paid nothing to the plaintiff. The plaintiff now claims $3,125, as one-fourth of the $12,500, received by Starr; and $7,465, which with the sum paid, to wit: $9,140, would make tbe $20,000 provided for in the agreement of July 15, 1902. And the defendant denies his liability, for any further sum than the amount already paid. Just here and in this way, arises the real question, the pinch in the case. The plaintiff’s statement is sufficient to call upon the defendant for an affidavit of defense. We turn now, to the affidavit to learn what is therein given as a defense to the plaintiff’s cause of action. The defendant admits the execution of all the instruments referred to, and the receipt of the amounts, set out in the copy of the account. The defendant alleges that the agreement of lease, and the agreement with Whitney, both of June 17,1902, were illegal and says “ this affiant avers cannot be made the .basis for recovery in this action.” The statement is based upon the assertion, that these instruments created a fictitious valuation of the leasehold premises. Just how these agreements created a fictitious valuation of the leasehold premises does not seem clear. In effect the stock was to be sold to secure Starr’s purchase money and could not be sold save through him; he gave an option to Whitney and thereafter extended it, and subsequently sold the stock to him. We cannot see how this created “a fictitious valuation of the leasehold premises.” The leasehold premises were worth just as much after the sale to Whitney as before and were not worth anything more. The sale furnished no quotation of price, or value for the stock; it was a private transaction in which Starr sold the stock which he owned, at a price satisfactory to himself, and this he' had a light to do, as far as Whitney or the coal company are concerned, in fact as to them, he had a right to give it away if he wished. His relation to the plaintiff is, however, different, but of this we do not wish to speak now, save to say, that Starr contracted to account to him (the plaintiff) for the money arising from said stock sale, and he (Ryon) is no party to the Whitney agreements. The defendant denies that he owes anything to the plaintiff, upon the ground that the amount paid him is an adequate compensation for the services rendered. But the amount paid him is not the amount Starr contracted to pay, nor is it the proportion he contracted to pay, of the money he has already received. After the plaintiff rendered the services he was employed to render, and Starr received the benefit thereof, he now proposes to alter the contract, under which they were rendered, and say to the plaintiff, your services are worth less than half what I contracted to pay you, and I will simply repudiate my contract. This may be a convenient, but does not seem to be a legal, way of disposing of his contract liability. We next have the suggestion, that the agreement or sixty-day option given to F. P. Christian, and the agreement with the plaintiff, providing for the disposition of the money, arising from the said option, to some extent modified the plaintiff’s agreement of January 21, 1902, how or to what extent is not even suggested. But it is difficult to-understand how it affected the said agreement of January 21, 1902. It was but an option given to Christian, which' was never taken up, n'ever completed, nothing paid in pursuance thereof, and which expired in sixty days. If, however, the agreement made to protect Ryon under Christian’s option, were to be substituted, for the one under which he now claims, Starr’s liability would be just twice as great, hence he, Starr, can profit nothing by setting it up as a defense. The next statement of defense is, that the “ plaintiff has received one-fourth of all the money received by the Trust Company of the Republic of the City of New York which was put to the credit of this affiant.” This simply means that unless the money was placed to the credit of Starr in the trust company the plaintiff could receive none of it. This is apparent not only from this paragraph but a subsequent one, in which he admits he received the $12,500 and has paid none of it over to the plaintiff. Starr is the only party who possessed the power to transfer the shares of stock, they belonged to him, he could if he wished, require the purchase money to be paid, in every instance, to the trust company, and tlieb receive it from that source, and he was the only person who could dispose of it, and take the money without passing it through the trust company. It is immaterial in which of these ways he received the money, so that he did receive it, as the proceeds of the shares, for he has contracted to pay over one-fourth thereof to the plaintiff. As to the claim of damages offered as set-off, it is alleged to arise out of a failure to claim the 100,000 shares, which Peter Whitney was to have without charge, after he paid for all the other unsold shares at ten cents per share. We see no reason why either the plaintiff or defendant should make any formal claim or demand, for the 100,000 shares. Whitney never acquired any title to said shares, either under his agreement of June 17, 1902, or June 17, 1904, for he never complied with either, and they expired by the limitation of time mentioned in the instruments. But if Whitney ever had acquired any claim, and consequently disputed defendant’s right to the stock, the defendant has put it out of his own power, as well as the power of his attorney, to make any claim to said 100,000 shares, because he sold the same to Whitney, and forever released both Whitney and the coal company. Having done this, without the knowledge or consent of the plaintiff, and having by this act disarmed both himself and his attorney, how can he now claim set-off in damages, because his attorney did not claim the 100,000 shares? Over and above this, however, is the fact that there was nothing to claim, as Whitney had acquired no title, and as far as now appears nobody ever disputed his title to these or any of the 900,000 shares. This entire difficulty arises out of the defendant’s act in entering into the contract of sale, and actually selling the stock on December 7, 1904. He seeks to excuse himself by saying that “ Frank P. Christian induced this affiant to leave his home on December 6, 1904, and took him to the coal company’s office in New York, and then and there Christian and Whitney made statements as to the title, and threats of suits, and charges of fraud, and he fearing trouble executed the writing of December 7, 1904.” If this be true it might afford him some ground for proceeding against Christian, Whitney, and possibly the coal company, to relieve him from the written instrument thus secured. But can it relieve him from liability to Ryon, this plaintiff? He had no part in this transaction. Why should he suffer.in consequence thereof? That the defendant was conscious of the position he was placing himself in, with reference to the plaintiff, is evident from his affidavit in which he says he “ especially stipulated that whatever interest the plaintiff might have in the transaction was to be provided for, by the said Whitney and the said Christian,” and that they “ represented that they would satisfy, and take care of any interest, the said plaintiff might have, growing out of the subject-matter.” If the plaintiff had already been paid all he was entitled to, and if his claim was covered by set-off, or if he had no claim, why was he (the defendant) seeking to make Whitney and Christian responsible for its payment ? It is a significant fact, that the writing given to Whitney is silent upon this subject, but carefully releases said Whitney and the coal company in this language “ arid to surrender all claim of any nature whatsoever against either Peter Whitney or the Black Diamond Anthracite Coal Company or their heirs or assigns now and forever.” If the defendant’s statement is correct, then the transaction of December 7, 1904, is, to say the least of it, not creditable to the parties concerned, and wears the appearance of an intention to circumvent the plaintiff and his claim. We have thus considered the affidavit, and now briefly refer to the requirements of a sufficient affidavit. The general rule may be stated in this language: “An affidavit of defense should aver distinctly every fact necessary to constitute a defense, nothing should be left to inference : ” Peck v. Jones, 70 Pa. 83, and Gas Co. v. Construction Co., 30 W. N. C. 222. Nothing should be left to conjecture.-; that which is not stated is taken not to exist: Class v. Kingsley, 142 Pa. 636 ; National Bank v. Stadehnan, 153 Pa. 634; Kaufman v. Iron Co., 105 Pa. 537 ; Noble v. Kreuzkamp, 111 Pa. 68, and Sanders v. Sharp, 153 Pa. 555. We regard the affidavit as insufficient, at least so far as the money actually received is concerned, especially in view of the above cases and the decisions in Savings Bank v. Miller, 179 Pa. 412; Erie City v. Butler, 21 W. N. C. 459 ; Vollmer v. Mago wan, 180 Pa. 110; Moore v. Ins. Co., 196 Pa. 30, and Penna. R. R. Co. v. Steel Co., 201 Pa. 624, and numerous other authorities. We are therefore of the opinion that the affidavit of defense is not good, not sufficient as to the money received and that the plaintiff is entitled to judgment for one-fourth of the $12,-500 or $3,125. The remaining part of plaintiff’s claim rests upon different ground, and under the statement and affidavit of defense, will likely involve questions of fact, that must be passed upon by a jury. In pursuance of the views herein expressed, we now make the following order under the act of 1897, upon the motion of the plaintiff:
    And now, April 24, 1905, the affidavitis adjudged insufficient as to the money received and sustained as to the balance of the claim. We therefore direct judgment to be entered for $3,125 in favor to the plaintiff and against the defendant, and grant permission to proceed as to the balance of the claim, under the provisions of the Act of July 15,1897, P. L. 276.

      Error assigned was the order of the court.

      H. B. Bartholomew and James B. Reilly, for appellant,
    cited: Bardsley v. Delp, 88 Pa. 420; Sanders v. Sharp, 153 Pa. 555; Moore v. Phillips, 154 Pa. 204; Savings Bank v. Miller, 179 Pa. 412; People’s Street Ry. Co. v. Spencer, 156 Pa. 85; Penna. R. R. Co. v. Midvale Steel Co., 201 Pa. 624; Seiple v. Life Ins. & Trust Co., 84 Pa. 47; Chain v. Hart, 140 Pa. 374.

      Greorge M. Roads, for appellee,
    cited: Rhoads v. Com., 15 Pa. 272; Holt v. Green, 78 Pa. 198; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173; Zuver v. Clark, 104 Pa. 222; Land & Improvement Co. v. Mendinhall, 4 Pa. Superior Ct. 398; Griffith v. Sitgreaves, 81* Pa. 378; Murphy v. Cappeau, 147 Pa. 45; Ensign v. Kindred, 163 Pa. 638; Ætna Ins. Co. v. Confer, 158 Pa. 598.
    March 5, 1906:
   Opinion by

Mr. Justice Elkin,

This court has held in Ashman v. Weigley, 148 Pa. 61, that the procedure act of 1887 made a material change in the affidavit of defense law. By the-terms of that statute the statement of claim takes the place of a common-law declaration, and in an action of assumpsit requires an affidavit to be filed to prevent judgment. The material averments of the statement of claim are to be taken as admitted wherein they are not specifically denied by the affidavit. In Odd Fellows Savings Bank v. Miller, 179 Pa. 412, it was held that an affidavit of defense was insufficient which was largely made up of irrelevant and immaterial matters contained in loose and evasive averments of fact. ' Where plaintiff’s claim depends upon written contracts and papers set out in the statement and the affidavit of defense raises no issue of fact by denying any part of the statement except the inferences from the face of the papers, it is a question of law for the court to decide upon the statement and affidavit : People’s Street Railway Company v. Spencer, 156 Pa. 85. In Penna. Railroad Company v. Midvale Steel Company, 201 Pa. 624, it was held that inasmuch as the statement of claim contained an exact copy of the accounts and all other data relied on to support it, while the affidavit of defense did not deny the correctness of the accounts and papers so set out, but on its face set up certain reasons for the delay, there was no issue of fact calling for the intervention of a' jury, and the sufficiency of the affidavit was for the court as a question of law.

In the case at bar the statement of claim contains a copy of the original and supplemental contracts, and all other papers and accounts between the parties relating to the matter in dispute, while the affidavit of defense does not deny a single material averment therein. No issue of fact was raised by the affidavit calling for the intervention of a jury, and it was the .duty of the court to decide the question on the statement and affidavit. The learned court below in an able and well-considered opinion, properly defined the rights and relations of the parties, but inadvertently committed the error of saying: “ The remaining part of plaintiff’s claim rests upon different grounds, and under the statement, and affidavit of defense will likely involve questions of fact that must be passed upon by a jury.” The questions of fact must be raised by the affidavit itself, and .nothing must be left to conjecture or inference: Bardsley v. Delp, 88 Pa. 420.

The claim of set-off for damages is without merit and will not avail the appellee as a defense to this action. This branch of the case comes within the rule stated in Chain v. Hart, 140 Pa. 374. The affidavit of defense was clearly insufficient and the rule for judgment should have been made absolute.

The decree or order awarding a procedendo as to the balance of the claim for which the affidavit of defense was deemed sufficient is reversed, the rule for judgment for want of a sufficient affidavit of defense is made absolute, and it is directed that judgment be entered for plaintiff in the court below for the balance shown to be due by the statement of claim, in accordance with this opinion.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Ryon v. Starr, Appellant
    (No. 2).

      Contract — Commissions for sale of real estate — Affidavit of defense.

    In an action to recover commissions on the sale of real estate, it appeared that the defendant agreed to pay plaintiff $20,000 if he sold certain coal land for a price named. Plaintiff secured a purchaser, the land was sold, and the plaintiff received the consideration in stock of a corporation. The defendant agreed that out of the proceeds of the stock as it was sold, he would pay plaintiff one-fourth of the proceeds of each sale until the sum of $20,000 was paid. This arrangement was carried out until the defendant sold for a reduced sum the whole balance of the stock which he had. Held, that plaintiff was entitled to receive out of the sum paid for the balance of the stock, whatever portion of the $20,000 had not been paid to him.
    Argued Feb. 12, 1906.
    Appeal, No. 148, Jan. T., 1905, by defendant, from order of C. P. Schuylkill Co., March T., 1905, No. 22, making absolute rule for judgment for a sum apparently due under affidavit of defense in case of George W. Ryon v. David Starr.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for commissions on the sale of real estate.
    The facts appear in the case of Ryon, Appellant, v. Starr, ante p. 310.

      Error assigned was the order of the court.

      George M. Roads, for appellant.

      James B. Reilly, with him H. B. Bartholomew, for appellee.
    March 5, 1906:
   Opinion by

Mr. Justice Elkin,

The question raised by this appeal is the sufficiency of the affidavit of defense as to the sum of $3,125, being the difference between $12,535, amount claimed by appellee as his share of the money actually received by appellant under the contract, and $9,410 paid appellee on account before suit was instituted. As to this amount the affidavit was so clearly insufficient that no useful purpose can be served by a discussion of the merits of the claim.

Assignments of error overruled and judgment affirmed.


text:
    Commonwealth ex rel. v. James, Appellant.

      Mandamus — Legal right — Legal remedy — Practice, C. P.

    The remedy by mandamus is a strictly legal one; and the relator must establish a specific legal right as well as a want of a specific legal remedy.

      Mandamus — Quo warranto — Boroughs.
    Where a person claiming that the office of councilman of a borough had been vacated by reason of the removal of the member from the borough, has his own name placed on the official ballot by some method not prescribed by law, and at the ensuing election his name is voted for by a majority of the electors, he cannot maintain mandamus against the councilmen to compel his admission to office; and this is the ease although the petitipn for mandamus was not filed until there was an actual and admitted vacancy in the office created by the resignation of the previous member.
    Argued Feb. 13, 1906.
    Appeal, No. 301, Jan. T., 1905, by defendant, from judgment of C. P. Schuylkill Co., Sept. T., 1905, No. 18, on petition for mandamus in case of Commonwealth ex rel. Samuel Stahl v. David R. James, President, and Wm. Neiswender, John Fishbur'n, Wm. Lewis, Paul W. Houck, John Schaefer, Peter Kirk, Henry J. Muldoon, Patrick Burke, John J. Burns, Michael Durkin, Jacob Shane, Anthony Nawvitski, Corby Stack,’Members of the Town Council of the Borough of Shenandoah.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Petition for mandamus.
    The facts are stated in the opinion of the Supreme Court.
    The court in an opinion by Marr, J., entered judgment for the petitioner.

      Error assigned was the judgment of the court.

      M. M. Burke and Geo. M. Roads, for appellant.
    Mandamus does not lie in such a case: Com. v. County Commrs., 5 Rawle, 75; Com. v. Perkins, 7 Pa. 42; Com. v. Swasey, 133 Mass. 540; Hammer v. State, 44 N. J. L. 667; People v. Loomis, 8 Wend. (N. Y.) 396; Com. ex rel. v. Cullen, 13 Pa. 133.
    We earnestly urge that the “ vacancy ” contemplated is one existing at the time relator acquired his title to the office, and has no application whatever to one occurring after relator’s title thereto is complete, be it good or bad: State v. Taylor, 12 Ohio St. 130.
    The writ of mandamus in this case should have been quashed for the reason that the relator did not make out a clear prima facie legal right to the seat: Com. v. Anthony, 4 W. & S. 511; Com. v. County Commrs., 16 S. & R. 317; Mercur v. Light, Heat & Power Co., 19 Pa. Superior Ct. 519; Com. v. Henry, 49 Pa. 530; James v. Commrs. of Bucks Co., 13 Pa. 75; Com. v. Mitchell, 2 P. & W. 217; Heffner v. Com., 28 Pa. 108; Reading v. Com., 11 Pa. 196.
    Magargle’s seat was not vacant, by reason of his removal to an adjoining township in November, 1904, his intention being to retain his residence in the ward: Pfoutz v. Comford, 36 Pa. 420; Casey’s Case, 1 Ashmead, 126; Fry’s Election, 71 Pa. 302.

      James J. Bell, for appellee.
    Stahl was duly elected: In re Nominations, 6 Pa. Dist. Rep. 670.
    Where a vacancy exists in an office and the voters have actual notice that it is to be filled, and the election is held at the proper time and place by the proper officers, and there is a reasonably large number of votes polled, the election is valid, although the office is not mentioned in the election proclamation: Bongard’s Petition, 41 Legal Int. 124; Com. v. Reynolds, 5 Kulp, 547; Battis v. Price, 2 Pearson, 456; Porter Twp. Election Case, 5 Pa. C. C. Rep. 217.
    Where the election officers issue a certificate it is prima facie written title to the office: High on Extraordinary Legal Remedies, sec. 638; Kerr v. Trego, 47 Pa. 292; Com. v. Baxter, 35 Pa. 263.
    Council has no power to judge of the qualifications of its members, except where there is positive law giving them that power: Commonwealth v. Allen, 70 Pa. 465; Lamb v. Lynd, 44 Pa. 336; Commonwealth v. Leech, 44 Pa. 332.
    The kind of residence which is to govern in this case, is that meant in art. VIII of the constitution: Chase v. Miller, 41 Pa. 403; Com. v. Clark, 7 W. & S. 127; Page v. Allen, 58 Pa. 338.
    Members of a borough council must be residents of the ward which they represent; when a member moves out of his ward his seat in council is vacated and he will be ousted therefrom upon quo warranto: Com. v. Yeakel, 13 Pa. C. C. Rep. 615; Com. v. Allen, 70 Pa. 465.
    The forfeiture occurs whenever the union of facto takes place- — -being a councilman and becoming a nonresident: Cleaver v. Com., 34 Pa. 283; Com. v. Leech, 44 Pa. 332; Lamb v. Lynd, 44 Pa. 336; Com. v. Allen, 70 Pa. 465; Leaman’s App., 8 Lane. 405; Hindman’s App., 85 Pa. 466; Mintzner’s Est., 13 Pa. C. C. Rep. 465; Holmes v. Greene, 73 Mass. 299; Bennett v. Watson, 47 N. Y. Supp. 569; Hart v. Kip, 26 N. Y. Supp. 522; State v. Allen, 50 L. R. A. 284.
    Proceedings in quo warranto will not be entertained when the writ of mandamus affords the appropriate and fitting remedy: State v. Lewis, 10 Ohio St. 128; High on Extraordinary Legal Remedies, sec. 645.
    March 5, 1906:
   Opinion by

Mr. Justice Elkin,

This proceeding is like a house built on sand, the foundation being swept away, the superstructure crumbles and falls. At the February election in 1904 Magargle was duly elected councilman from the second ward of the borough of Shenandoah, for a period of three years, commencing the first Monday of March, 1904, and ending the first Monday of March, 1907. He qualified as a member, participated in the organization of council, was assigned to certain committees like other councilmen, performed his duties and continued to act in his official capacity and assert his title to the office until May 10, 1905, when he tendered his resignation. He was a resident of the second ward and conducted his business as a merchant therein for a period of thirteen or fourteen years. He not only claimed a residence in the ward at the time of the February election in 1905, but actually voted at that election. That he was well known to and enjoyed the confidence of the electors is shown by the fact that he was elected to four successive terms of councilman in his ward. Having suffered financial reverses, it became necessary for him to dispose of his real estate, located in the ward, which he sold in the summer of 1904, and gave possession to the purchaser thereof on November 9, following. Not having been successful in renting a house, he made temporary arrangements to lodge his family at Lost Creek until a permanent place in the ward of his residence could be secured. In the meantime under an agreement with the purchaser of his property he left a bed, couch and some chairs therein so that he could make use of the house as a place to lodge until he had secured a permanent place for himself and family. Under this arrangement he made his former place of residence headquarters for the settlement of accounts, receiving of mail and transaction of business. He denied any intention of changing his place of residence, continued to act in his official capacity, attended meetings of council, and voted upon measures before that body. This was the condition of affairs when the February election of 1905 was held. At that time Magargle was a sitting, acting, de facto member of tbe borough council, actually performing his duties as such, with his right to so act unquestioned and unchallenged by anyone in a regular and legal proceeding. Under these facts there was no vacancy to be filled by the election of his successor.

The relator, acting on the assumption that Magargle’s seat in council either was or would be declared vacant by reason of his alleged removal from the ward under the circumstances hereinbefore stated, concluded to fill the alleged vacancy by having himself elected at the February election. Notice of a vacancy was not given by anyone in authority so to do, and none of the political parties or organizations nominated candidates for said office at their primaries, nor was the name of the relator placed on the ballot by nomination papers in the regular way, nor did his name appear in the election proclamation. By some'method' not prescribed by law and not satisfactorily explained by the testimony, the official ballot when certified by the county commissioners contained his name and he received a majority of the votes cast at the election, which fact was certified by the election officers. This is the foundation upon which the relator relies to compel by mandamus the members of the borough council to admit him to participate in the proceedings thereof and to receive and count his vote. This court has frequently announced the rule that the remedy by mandamus is a strictly legal one, and that the relator must establish a specific right as well as a want of a specific legal remedy: Commonwealth v. Mitchell, 2 P. & W. 517; Reading v. Commonwealth, 11 Pa. 196; James v. Commissioners of Bucks County, 13 Pa. 72; Heffner v. Commonwealth, 28 Pa. 108; Commonwealth v. Henry, 49 Pa. 530.

In the case at bar the relator had no legal right to the office, the enjoyment of which he seeks to compel by mandamus, and under the rule stated this is the end of his case. There was no vacancy to be filled at the February election in 1905, and his certificate of election was a nullity and conferred no rights on him. His certificate of election cannot be recognized as valid without disregarding the- safeguards with which the legislature has protected the ballot and treating our election laws as a farce. There was only one method of testing Magargle’s right to the office when the election in 1905 was held, and that was by quo warranto. He was then an acting member, performing his official duties and asserting his right to the office. It cannot be seriously contended that his title to the office to which he had been regularly elected can be tried and determined by popular vote. It is important that the citizens of a borough should enjoy all their privileges in the election of competent and faithful public servants, but it is just as essential that these privileges be exercised in the orderly and legal manner provided by act of assembly. Not to do so would mean endless confusion and constant irritation.

The learned court below and counsel for appellee rely principally on the ground that when the petition for the alternative writ was filed July 3, 1905, there was a vacancy in the office, and that by reason of this fact the court could inquire into the whole question and enforce its conclusions by mandamus. It is true there was a vacancy at this time, but it was a vacancy occasioned by the resignation of Magargle in May, and this fact could not put relator in any better position than he occupied at the time of the February election. The rights of relator, whatever they be, are derived from his so-called election in February, and must be determined under conditions as they existed at that time. If he had no rights then he acquired none subsequently; if he had rights derived under that election he continued to enjoy them irrespective of what Magargle did later. He must stand or fall by the conditions existing when he received his certificate of election under which he claims the office. At that time the proper remedyto determine the title to the office as between the relator and Magargle was by quo warranto under the Act of April 13, 1840, P. L. 319; Commonwealth v. Cullen, 13 Pa. 133; Commonwealth v. Anthony, 4 W. & S. 511; Gilroy v. Commonwealth, 105 Pa. 484; High on Extraordinary Legal Remedies (1st ed.), sec. 633.

The fact that a vacancy in the office occurred some months later by the resignation of Magargle does not confer any rights upon the relator which he did not enjoy in February when he claims to have been elected. When the vacancy occurred in May by the resignation of Magargle, it could only be filled under the Act of June 1, 1883, P. L. 54, wherein it is provided “the members of the town council shall have power to fill any vacancy which may occur therein by death, resignation, removal from the borough or otherwise, until the next annual election for members of town council, when such vacancy shall be filled by electing a qualified citizen to supply the same for the balance of the unexpired term.” It is clear, therefore, that when the vacancy occurred by the resignation of the incumbent in May, it was the duty of the members of the borough council to fill it. If they refused to make an appointment they might be compelled by mandamus to perform their duty as required by the act of assembly. In any event, however, mandamus would not lie to compel them to appoint a particular person, but only to do a particular thing, to wit: fill the vacancy by the appointment of some person. In such cases the members of council can exercise their discretion in the selection of a qualified person and the court is without power to compel the appointment of a particular person, as, for instance, the relator in this case.

Judgment reversed at the cost of the appellee.


author: Mr. Justice Potter,

text:
    Murtland, Appellant, v. English.

      Landlord, and tenant — Lease—Extension of term — Expiration of term by limitation — Notice—Holding over.

    Where a lease for a term of five years gives to the lessee the privilege of extending the term for five years longer upon three months’ notice, the lease will expire by its own limitation at the end of the five years, if no notice is given. A mere holding over is not in itself an acceptance of the option upon the part of the lessee for an additional term of five years.

      Appeals — Assignments of error — New trial.

    The power of the appellate court to grant a new trial under the Act of May 20, 1891, P. L. 101, is exceptional in character, and only to be exercised in very clear cases of wrong or injustice which the court should have remedied.

      Appeals — Assignments of error — Charge.
    Assignments of error to a portion of the charge which do not quote the part of the charge complained of “ totidem verbis ” violate Rule 30.

      Appeals — Assignments of error — Charge—Bequests for instructions.

    Assignments of error to the effect that the court below did not specifically charge as to certain matters, will not be considered where no requests for instructions as to such matters were made.

      Landlord and tenant — Practice, C. P. — Verdict—Judgment.
    On the trial of an appeal from a judgment of a justice of the peace in landlord and tenant proceedings, where the jury returns a verdict for the plaintiff for an amount stated, for the use and occupation of the premises after the expiration of a lease, the court in entering judgment for the money award may also enter judgment for plaintiff for possession of the premises.
    Argued Jan. 9, 1906.
    Appeal, No. 87, Jan. T., 1906, by defendant, from judgment of O. P. No. 5, Phila. Co., March T., 1903, No. 848, on verdict for plaintiff in case of Christine K. Murtland et al v. Joseph J. English.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from justice of the peace in landlord and tenant proceedings. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $1,800, upon which the court entered the following judgment: “Judgment for plaintiff for possession of the premises and $1,800, the amount of the verdict.”

      Errors assigned were as follows :
    1. The learned court erred in instructing the jury “thatthe lease expired by its own limitation.”
    2. In discharging the rule for a new trial.
    3. In instructing the jury that the defendant became a tenant from year to year after the expiration of the term of five years provided for in the original letting and hiring.
    4. In not instructing the jury that defendant having held over after the end of, five years without notice amounts to an election by him to claim the privilege to hold the premises for five years, the extended term as provided in the lease.
    5. In not instructing the jury that the option in the lease for an extended term of five years was in favor of the lessee, and both parties having assented to it, the lessee holding over and paying the rent and the lessor accepting the rent for two years in the extended term amounted to an extension of the term of five years, as is provided in covenant nine of the lease.
    6. In not saying to the jury, if the landlord had a right to re-enter at the end of five years, because of the failure of the lessee to give notice, as provided in covenant nine of the lease, but thereafter accepted rent under the same covenants and upon the same terms, such acceptance of rent was a waiver of any right of forfeiture on the part of the lessor, and that the lessee became a tenant for the extended term of five years.
    7. In changing the verdict of the jury from a money verdict to a verdict as follows : “ Judgment for plaintiff for possession of the premises and $1,800, the amount of the verdict.”
    8. In not instructing the jury that the terms of the lease fixed the rental value of the property.
    9. In not finding as matter of law that the words in the lease, “ When and as soon as the term hereby created shall have expired by its own limitation,” must be held to mean after the expiration of the term of ten years as contemplated in the lease.
    10. In entering judgment for the plaintiff.

      George Bradford Carr, for appellant.
    The holding over gave the tenant a right to an additional term of five years: Leatherman v. Oliver, 151 Pa. 646; Newman v. Rutter, 8 Watts, 51; Sheaffer v. Sheaffer, 37 Pa. 525; Lauman v. Young, 31 Pa. 306; Duffield v. Hue, 129 Pa. 94; Helme v. Phila. Life Ins. Co., 61 Pa. 107; McMillan v. Philadelphia Co., 159 Pa. 142; Harding v. Seeley, 148 Pa. 20; Creighton v. McKee, 7 Phila. 324; Delashman v. Berry, 20 Mich. 292; Cairns v. Llewellyn, 2 Pa. Superior Ct. 599; Gillion v. Finley, 22 W. N. C. 124; McBrier v. Marshall, 126 Pa. 390; McClelland v. Rush, 150 Pa. 57; Gilbert v. Price, 18 Pa. Superior Ct. 359; Williams v. Ladew, 171 Pa. 369.

      Aug. B. Repetto, for appellees.
    The following authorities clearly decide that when a covenant or option for renewal requires a specified notice to be given, that notice must be given, otherwise the renewal is not acquired: McMillan v. Phila. Co., 159 Pa. 142; Swank v. Fretts, 209 Pa. 625; Neill v. Hitchman, 201 Pa. 207.
    Where notice of an intention to claim an extended term is required, a naked holding over is not sufficient: Pollman v. Morgester, 99 Pa. 611; McClelland v. Rush, 150 Pa. 57; Cooper v. Joy, 105 Mich. 374 (63 N. W. Repr. 414); Bradford v. Patten, 108 Mass. 153; Atlantic Nat. Bank v. Demmon, 139 Mass. 420 (1 N. E. Repr. 838); Stone v. St. Louis Stamping Co., 155 Mass. 267 (29 N. E. Repr. 623).
    The mere holding over and acceptance of rent, made the defendant a tenant from year to year: Hollis v. Burns, 100 Pa. 206; Harvey v. Gunzberg, 148 Pa. 294; Williams v. Ladew, 171 Pa. 369.
    March 12, 1906:
   Opinion by

Mr. Justice Potter,

On January 31, 1896, the plaintiffs, in writing, leased certain premises to one Eranldin S. Gibson, for the term of five years to be computed from February 1, 1896, at the yearly rental of $600, payable in monthly installments of $50.00 each. Subsequently, with plaintiffs’ assent, the lease was assigned to J. J. English, the defendant in this case. In the ninth clause of the lease it is “ expressly covenanted and agreed that if the lessee, his heirs and assigns, shall perform all the covenants of this lease, then he, his heirs and assigns, shall have the privilege of extending the term of this lease for five years longer, upon their giving to the lessors, their heirs and assigns, three months’ notice of their intention to avail themselves of this covenant, upon the terms herein contained.” English entered into possession of the leased premises and remained therein until the expiration of the term of five years. He did not give the three months’ notice required by the lease, nor any notice of his intention to exercise the option to extend the lease for another term of five years. But after the first five years had expired, he remained in possession of the leased premises, and continued to pay the same rent each month, which was accepted by the lessors, apparently without question, until August 22, 1902, when the lessors served defendant with a notice to"vacate at the expiration of his current term which was stated to be January 31, 1903. He did not vacate at the date named, but tendered a month’s rent falling due February 1, 1903, at the same rate which he had been paying, which the lessors refused to accept. The lessors then brought proceedings before a magistrate, to recover possession, and oil February 21, 1903, judgment was entered against defendant for $50.00 damages and costs. He appealed from this judgment to the court of common pleas. On the trial the court instructed the jury that defendant having failed to give three months’ notice of his intention to extend the lease, it was not renewed but expired by its own limitation. By holding over after the expiration of his term, defendant became a tenant from year to year. Notice to quit was admittedly given to him more than three months prior to the end of the current year, and, therefore, the only question left to the jury was the amount of damages to be awarded. The jury were instructed that plaintiffs were entitled to recover, first, the possession of the premises ; and, second, a sum of money to compensate them for the occupation of the premises during the time for which defendant had paid nothing. There. was evidence that the premises ha'd a rental value of $75.00 per month. The jury found a verdict for plaintiffs for $1,800, being at the rate of $75.00 a month, for the two years defendant had paid no rent.

The first assignment of error complains that the learned court below erred in instructing the jury that the lease expired by its own limitation. This raises the main question in the case. The trial judge is sustained in this statement of the law by the great weight of authority. In Trickett’s Landlord and Tenant, sec. 550, the rule in Pennsylvania is thus stated: “ The lease may confer the privilege of renewal or of continuing in possession for a prescribed time beyond the term, upon giving previous notice to the landlord of the intention to claim" it. Giving the notice in such a case is requisite. The burden is upon the tenant if he claims any rights upon the renewal clause, to prove the giving of the notice.” Citing Pollman v. Morgester, 99 Pa. 611; Burgwin v. Bishop, 91 Pa. 336 ; McClelland v. Rush, 150 Pa. 57. In 2 Wood on Landlord and Tenant, sec. 413, it is said: It very often happens that the lease gives the lessee an option to remain as tenant for another term. ... In such cases, if the lease requires that notice of a certain description must be given of a tenant’s election, the requirement in this respect must be strictly complied with.” Counsel for appellant has cited in his argument many cases which illustrate the law as to forfeitures; but, in the present case, there was no forfeiture or breach of covenant. It was merely a matter of the lease expiring by its own limitation, as was stated by the court below, without any intimation by the lessee that he desired another term. The tenant had the option of renewal, but he did not see fit to exercise that option.. We can see no merit in the suggestion that mere continuance in possession of the premises after the lease had expired, was in itself an acceptance of the option upon the part of the tenant for an additional term of five years. The authorities cited on behalf of the appellant apply only to cases in which no specific notice of an intention to exercise the privilege of renewal is prescribed in the lease. There might be conduct, such as the payment of an increased rental, which would be equivalent to an acceptance of the option. Thus, in Stone v. St. Louis Stamping Co., 155 Mass. 267, where the lease provided for a renewal at an increased rental, the holding over and payment of the increased rent by the lessee was considered evidence of his election to renew although no proof was offered of the notice prescribed in the léase having been given. But in the case at bar, the tenant neither gave notice nor paid any increased rental. There was nothing to indicate that the tenant had any intention of binding himself to stay upon the premises for another full term of five years. And, when he held over after the expiration of the term, without making any new arrangements, the tenancy became one for another year upon the same conditions as before: Harvey v. Gunzberg, 148 Pa. 294. This continued until the plaintiffs, by giving the proper notice, three months prior to the end of the current year, prevented any further renewal. The first specification of error is dismissed.

The second assignment of error complains of the refusal of the court below to grant a new trial. The reasons for which a new trial was asked are not printed in appellant’s paper-book. It was pointed out in Smith v. Times Publishing Co., 178 Pa. 481, that the power of this court to grant a new trial under the act of May 20, 1891, is exceptional in character, and only to be exercised in very clear cases of wrong or injustice which the court below should have remedied. No such compelling reason exists here.

The third assignment violates rule 80, in that it does not quote the part of the charge complained of “totidem verbis: ” Crawford et al. v. McKinney, 165 Pa. 605.

The fourth, fifth, sixth, eighth and ninth assignments complain that the court below did not specifically charge, as therein stated, although no request for such instructions was made. These assignments are, therefore, bad, and will be disregarded: Burkholder v. Stahl, 58 Pa. 371; Kaufman v. R. R. Co., 210 Pa. 440.

The seventh assignment complains of the form in which the judgment was entered by the court. It was for possession of the premises, as well as for the money damages found by the jury. This was what the plaintiffs were entitled to recover under the instructions of the, court to the jury, and the form into which the judge moulded the verdict no doubt expressed the real finding of the jury. The action of the court in thus amending the verdict was clearly within his power. See Cohn et al. v. Scheuer, 115 Pa. 178. The damages awarded to the landlord for the detention of the premises, after the end of the term, do not arise out of contract, but they are indemnity. Compensation is the proper measure of such damages.

We see nothing in the record of this case which would properly convict the trial court of error, and, therefore, the judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Bordentown Banking Company v. Restein, Appellant
    (No. 1).

      Promissorij notes — Affidavit of defense — Practice, C. P.

    In an action on a promissory note an affidavit of defense is insufficient which avers that a part of the consideration moving from plaintiff to defendant for the note in suit and without which the note would not have been delivered, was the purchase of a claim held by the plaintiff against a person named, amounting to a sum stated, “which claim the plaintiff agreed to assign to such person or persons as the parties on the note sued upon should request. Plaintiff has not, however, assigned the claim, but neglected so to do, and the obligation executed by the defendant is not due or payable until the said claim has been assigned according to the above agreement, due request having been made for the same.”
    Argued Jan. 12, 1906.
    Appeal, No. 231, Jan. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1905, No. 547, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bordentown Banking Company v. Rebecca Restein, trading as E. P. & L. Restein Co.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The affidavit of defense was as follows:
    Deponent is informed, believes, and expects to be able to prove, that a part of the consideration moving from plaintiff to defendant for the note recited in plaintiff’s statement upon' which the above suit has been brought, and without which the said note would not have been delivered to plaintiff, was the purchase of a claim then held by the plaintiff against one William Brown, amounting to over $4,000, which claim the plaintiff agreed to assign to such person or persons as the parties on the note sued upon should request. Plaintiff has not, however, assigned the claim, but neglected so to do, and the obligation executed by the defendant is not due or payable until the said claim has been assigned according to the above agreement, due request having been made for the same.

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

      Alex. Simpson, Jr., with him Francis Shunk Brown, for appellant.
    That a partial failure of consideration is a defense, is clear, and needs no citation of authority to sustain it.
    It would have been difficult, if not impossible, to have averred the value of the claim which plaintiffs refused to assign. Until it was assigned we could make no attempt to collect it. It was their act which prevented us from determining its value, and they cannot aver their own wrongdoing as an excuse for not making the affidavit more specific. If by their neglect we lose a recovery against Brown the loss is theirs, not ours: Bishop v. Reed, 3 W. & S. 261; Guthrie v. Horner, 12 Pa. 236.

      Henry Wolf Biklé with him John H. Hutchinson, for appellee.
    The alleged failure on the part of the plaintiff to transfer the claim being merely part of plaintiff’s obligation could not bar plaintiff wholly and forever from recovering what it had advanced on the note in question, or at least some part thereof: Gould v. Bush, 13 W. N. C. 29; Ogden v. Beatty, 137 Pa. 197; Gausler v. Bridges, 13 Pa. Superior Ct. 646; Louchheim v. Becker, 3 W. N. C. 449; Carnahan Stamping, etc., Co. v. Foley, 23 Pa. Superior Ct. 643; Cosgrave v. Hammill, 173 Pa. 207.
    The alleged defense is not sufficiently set forth, but the averments of the affidavit are shifty, evasive and incomplete, and some of them mere conclusions of law: Cumberland B. & L. Assn. v. Brown, 4 W. N. C. 494; Bank v. Stadelman, 153 Pa. 634; McCracken v. First Reformed Presby. Congregation, 111 Pa. 106; Marsh v. Marshall, 53 Pa. 396.
    That the defendant should seek to overthrow the express provisions of this solemn instrument by setting up a collateral oral agreement without alleging any fraud, accident or mistake is a flagrant attempt to secure a disregard of well-settled principles: Homewood People’s Bank v. Heckert, 207 Pa. 231; Clarke v. Allen, 132 Pa. 40; Wolf v. Rosenbach, 2 Pa. Superior Ct. 587; Marsh v. Marshall, 53 Pa. 396.
    March 12, 1906:
   Opinion by

Mr. Justice Stewart,

. If the facts stated in appellants’ history of the case had been distinctly averred in the affidavit of defense, the sufficiency of the latter could not have been questioned. If they are true, it is simply remarkable that they should be so absolutely hidden or avoided in the affidavit. It is with the latter only that we have to deal. The averments there are that part of the consideration moving from plaintiff to defendant for the note in suit, and without which the note would not have been delivered to plaintiff, was a claim held by plaintiff against one William Brown, amounting to over $4,000 which plaintiff agreed to assign to such person or persons as the parties on the notes sued on should request; that plaintiff has not assigned said claim, and that “ the note sued on is not due or payable until said claim has been assigned according to agreement, due request for the same having been made.”'

If the note sued on is not due, it must be because of some collateral agreement not here set out. By its terms it is due, and the averment to the contrary is simply a conclusion. What is required in an affidavit of defense is a statement of facts, from which the court can derive its own conclusions^

It is distinctly averred that the transfer of the claim against William Brown, was a part of the consideration for the note in suit. Assuming the correctness of this statement, plaintiff’s failure to transfer the claim would be at best, a defense pro tanto to plaintiff’s demand. But to how much of it in dollars and cents ? For all that appears, the claim to be transferred may have been of little value; but, great or small, the affidavit furnishes no basis whatever for its appraisement. For so much of plaintiff’s demand as was outside this particular part of the consideration, there being no defense set up to it, plaintiff would be entitled to a judgment; but the indefiniteness and insufficiency of statement in the affidavit make this impossible. Whatever the value of the Brown claim, since it was only a part of the consideration of the note in suit, it should have been set out in the affidavit.

Again, the affidavit contains no distinct averment that any request had been made for a transfer of the Brown claim. The concluding sentence is the only one in which reference to a demand or request for a transfer of the claim appears, and this is so equivocal in expression, that with quite as much reason it may be taken to refer to the terms of agreement to assign, as to the fact that a request had been made. Even though it be accepted as an averment of fact, it comes far short of what is required, in not stating when the demand was made and of whom. General indefiniteness of statement characterizes the affidavit throughout, and would invite comment, except that we have indicated it quite enough to condemn it without more.

Judgment affirmed.


text:
    Bordentown Banking Company v. Sparhawk, Appellant
    (No. 2).
    Argued Jan. 12, 1906.
    Appeal, No. 232, Jan. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1905, No. 4,247, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bordentown Banking Company v. John Sparhawk, Jr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    March 12, 1906:
   Opinion by

Mr. Justice Stewart,

The cause of action here is the same as in Bordentown Banking Co. v. Restein, ante, p. 331, just decided, and the affidavit of defense is precisely the same. For reasons stated in that case, this judgment is affirmed.


text:
    Sharpless’s Estate.

      Wills — Gift to class or individuals — Intestacy.
    Testator gave life estates in his residuary estate to his wife and sister. He further directed as follows: “After the decease of both my said wife and sister, I direct my estate to be divided into two equal shares, one of the said shares I give to my uncle [naming him], and my aunt [naming her], absolutely. Should neither of them survive me, I then give said share to my cousins [naming two cousins on the maternal side], and the children of my deceased .cousin [naming another cousin on the maternal side], to be divided per stirpes. The other equal part of my estate after the death of my wife and sister, I give to be equally divided between my first cousins on my father’s side per capita.” The uncle and aunt mentioned were on the maternal side. The uncle and aunt, and one of the cousins named, died in testator’s lifetime. Held, that the cousins on the maternal side took individually, and not as a class, and that there was an intestacy as to the share of the cousin on the maternal side who died in the lifetime of the testator.
    Argued Jan. 15, 1906.
    Appeal, No. 161, Jan. T., 1905, by Anna Agnes Thomas, from decree of O. C. Phila. Co., Jan. T., 1904, No. 433, dismissing exceptions to adjudication in Estate of Nathan H. Sharpless, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The auditing judge, Penrose, J., stated the facts to be as follows :
    The decedent died, as stated in the adjudication filed October 14, 1904, of the account of Fanny M. Sharpless, administratrix c. t. a., July 8, 1903, having by Ms will, proved July 23, 1903, given Ms estate, subject to an annuity of $300 per annum to Anne McLaughlin for life, to his wife, Fanny M. Sharpless, for life, with remainder to his sister, Rachel S. Parry, for life, and at the death of both wife and sister, as follows: “ After the decease of both my said wife and sister, I direct my estate to be divided into two equal shares, one of the said shares I give to my uncle, William D. Pennell, and my aunt, Elizabeth P. Sutton, absolutely' — should neither of them survive me I then give said share to my cousins Harriet Thomas and Agnes Thomas, and the children of my deceased cousin, Robert P. Thomas, to be divided per stirpes. The other equal half part of my estate after the death of -my wife and sister, I give to be equally divided between my first cousins upon my father’s side, per capita, after deducting the sum of $5,000 to be paid by my executor to my cousin Martha Hulme — that is, she is to share equally with the others in the remainder after the deduction of the sum of $5,000 first paid to her.”
    The executor having died in the lifetime of the testator, letters of administration, with the will annexed, were granted to Mrs. Sharpless, and she having died, as set forth in the adjudication already referred to, May 27, 1904, the balance in her hands as such administratrix was awarded to the present accountants.
    The sister, Rachel S. Parry, and the uncle and aunt, William D. Pennell and Elizabeth P. Sutton, to whom, if either had survived, one-half of the estate would, at the expiration of the life estates, have gone absolutely, died in the lifetime of the testator, as did also Harriet Thomas, one of the cousins on the maternal side, to whom, if the uncle and aunt did not survive, such half was given absolutely; and the question thus arises, has the death of Harriet Thomas occasioned an intestacy to the extent of one-third of the half of the estate given to the cousins ex parte materna, or does the entire half go to Agnes Thomas and the children, per stirpes of Robert P. Thomas, by survivorship or as members of a class intended to receive that portion of the estate ?
    It is shown by the petition for distribution that the only relatives on the mother’s side other than the sister were the uncle and aunt, William D. Pennell and Elizabeth P. Sutton, who were the mother’s brother and sister, and Harriet Thomas, Agnes Thomas, Anthony J. Thomas, and the children of their deceased brother, Robert P. Thomas, the children and grandchildren' of his mother’s deceased half-sister.
    The cousins on the part of the father, to whom the other half of the estate is given, are very numerous. Their names are set forth in the petition.
    Anthony J. Thomas, the only cousin on the mother’s side not included in the half of the estate given as above, died in the lifetime of the testator shortly before the death of the latter. The children of Robert P. Thomas, as represented in the petition, are Sarah P. Raezer, Mary A. Thomas and Robert P. Thomas, of whom Sarah P. Raezer and Robert P. Thomas have assigned their shares as there stated.
    The auditing judge held that there was an intestacy as to the share given to Harriet Thomas, deceased, and made an award accordingly.
    Exceptions to the adjudication were dismissed by the court..

      Error assigned was the decree of the court.

      Clement B. Wood, with him Walter Penn Shipley and Morgan & Lewis, for appellant.
    The naming of the individuals by the testator does not necessarily make the gift one to them individually.
    There are no Pennsylvania cases directly in point. The converse, however, has been held in Reynolds’s Estate, 11 Pa. Dist. Rep. 387.
    In other jurisdictions there are a number of cases in which a gift to persons by name has been construed as a gift to them as a class on account of other facts appearing in the will: Hoppock v. Tucker, 59 N. Y. 202; Shiers v. Ashworth, L. R. 25 Ch. Div. 162; Stanhope’s Trusts, 27 Beav. 201; Aspinall v. Duckworth, 35 Beav. 307; Swallow v. Swallow, 166 Mass. 241 (44 N. E. Repr. 132); Schaffer v. Kettell, 96 Mass. 528; Springer v. Congleton, 30 Ga. 976; Bolles v. Smith, 39 Conn. 217; Warner’s App., 39 Conn. 253.
    In Pennsylvania there is not a single case, so far as counsel has been able to find, in which the court has applied the principle of the preceding cases and construed a gift to persons by name as a gift to them as a class or to the survivors, on account of the testator’s intention as shown from the entire will. The two cases most nearly in point are: Yard’s Appeal, 86 Pa. 125; Kennedy’s Appeal, 60 Pa. 511.

      C. J. Hepburn, with him George Vaux, Jr., for appellee,
    cited: Gorgas’s Est., 166 Pa. 269; Kennedy’s App., 60 Pa. 511; Yard’s App., 86 Pa. 125; Gray’s Est., 147 Pa. 67; Hoopes’s Est., 185 Pa. 172; Waln’s Est., 156 Pa. 194; Neff’s App., 52 Pa. 326; Allison v. Kurtz, 2 Watts, 185; Niblock’s Est., 27 Pa. C. C. Rep. 193; Coffin’s Est., 36 W. N. C. 71; University’s App., 97 Pa. 187.
    March 12, 1906:
   Opinion by

Mr. Justice Stewart,

The proposition that a gift to several individuals described by their respective names, may be construed a gift to a class, if it is apparent from the will that the testator so intended, is not open to dispute. It is but a corollary of the larger and more comprehensive rule that subordinates everything in the construction of a will, to the expressed intention of the testator. If the diligence of counsel has not been rewarded by finding a case in our reports where such a gift has been held to be a gift to a class, it only goes to show how convincing to the common understanding the fact that the donees are severally and individually named is, that the testator meant that they should take individually and not as a class. This interpretation results in such case, not because of any technical rule which arbitrarily imposes a definite meaning upon the expression, but because the expression clearly and unequivocally imports this and nothing else. Cases where such a gift may be, and should be, construed to be a gift to a class, may readily be conceived. Following such a gift, an express direction that the parties named should take not individually but as a class, would more than countervail the fact that the gift was to them individually by name. Where there are other but less conclusive expressions or indications in the will, that notwithstanding the gift is to individuals named by the testator, they should take as a class, it becomes simply a question of relative weight of these conflicting expressions and indications. In the present case we have on one side the fact the gift is “ to my cousin, Harriet Thomas, and Agnes Thomas, and the children of my deceased cousin, Robert P. Thomas to be divided per stirpes; ” in itself clearly indicating a purpose that they shall take individually. On the other, while no expression can be found in the will conflicting with or modifying in any way this unequivocal direction for a several taking, yet it is insisted that if the whole scheme of the will be considered, it will disclose very certainly a purpose that the donees shall take as a class. Harriet Thomas, one of the donees named in the will, died during the life of the testator. If the gift was to her as an individual and not as one of a class, testator died intestate as to this portion of his estate, and it would be divided between testator’s next of kin without distinction as between those paternal and those maternal, whereas, it is so contended, the will shows unmistakably throughout a governing purpose to give one-half of the estate to relatives on the side of the mother, to the exclusion of those on the side of the father; and to give the other half to relatives on the side of the father, to the exclusion of those on the side of the mother. If this could certainly be affirmed of the will with respect to all contingencies of survivorship, and as affecting ultimate beneficiaries, including of course those interested in the present contingency, a question not free from embarrassment would arise ; and it is by no means clear that in such case the greater weight should be allowed the fact that the gift is to the individuals by name. It may be admitted that the will clearly reveals such purpose, as regards those who were to take in remainder upon the death of the widow and sister and the survivor of them, to whom the estate was given for life, that is to say, testator’s uncle and aunt; but the will furnishes indication, as we think, that testator intended to observe equality of the division between paternal and maternal relatives, only up to and not beyond the remainder gift to the uncle and aunt, upon whose death without issue maternal relatives of the whole blood would become extinct. The gift of the one-half of the estate to the uncle and aunt on the maternal side, is to them jointly, and is followed immediately by a gift over to the cousins in the same line, in case neither the uncle nor the aunt should survive testator. This by clear implication made survivorship an incident of the gift to the uncle and aunt, and so far observes equal division of the estate between the two classes of kindred; but in the gift over to cousins, nothing is said about survivorship, which incident could only attach in a gift such as this as it should be so ordered elsewhere. Testator knew how to provide for it in the gift to the uncle and aunt; he knew just as certainly how to provide in the' gift to the cousins. The fact that he did so provide for it in the one and omitted this provision in the other, is entitled to significance; especially so in view of the fact that the testator was himself a lawyer and, as is said, of extensive practice and familiar with the course of judicial proceedings. We allow this circumstance to be controlling only in the sense that it so far subtracts from the indications of a purpose conflicting with that expressed in the gift itself, as to prevent what otherwise might approach very nearly an embarrassing equilibrium. It is a close case at best, but we agree with the learned auditing judge that is the safer interpretation to hold the gift over to the cousins nominatim as individual and several, rather than to a class. It follows that Harriet .Thomas, one of the cousins, having died in the life of the testator, the gift to her lapsed, and as to it there is intestacy.

The decree is affirmed.


author: Per Curiam,

text:
    Peifly, Appellant, v. Mountain Water Supply Company.

      Corporations — Water companies — Eminent domain — Preliminary injunction — Equity.
    A water company chartered under clause 18 of the second class in section 2, of the Act of April 29, 1874, P. L. 73, is presumably a corporation for private uses which cannot constitutionally be invested with the right of eminent domain. If such a company attempts to condemn land, it will be restrained by preliminary injunction until the facts and rights of the parties are shown upon full hearing.
    Argued Feb. 26, 1906.
    Reargued March 5,1906.
    Appeal, No. 350, Jan. T., 1906, by plaintiff, from decree of C. P. Fayette Co., No. 470, in Equity, refusing to grant a preliminary injunction in case of Frank Peifly v. The Mountain Water Supply Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Pottee and Elkin, JJ., on reargument.
    Reversed.
    Bill in equity for an injunction.
    From the record it appeared that the second clause of the defendant company’s charter was as follows:
    “ 2. Said corporation is formed for the purpose of storing, transporting and furnishing of water with the right to take rivulets and land and erect reservoirs for holding water for manufacturing and other purposes and for the creation, establishing, furnishing, transmission and using of water power therefrom and of acquiring all the rights, powers and privileges conferred upon corporations for said purposes as described in the eighteenth paragraph of the second section of the said act of April 29, 1874, and the supplements thereto.”
    The plaintiff moved for a preliminary injunction filing in support thereof an affidavit of George Hantz which was in substance as follows:
    “ That he is a resident of Connellsville township, Fayette county, and familiar with the location of the property of Frank Peifly, therein located, and knows of the trespass and threatening encroachment thereon, of the Mountain Water Supply Company, and that the said company, by its agents and employees, has entered upon said tract of land and cut down and are cutting down locust, oak, maple and other kinds of trees thereon and injuring and destroying the same.
    “ That the said company threatens to place thereon, large pipes and also to dig, excavate and tear up the soil and prepare trenches to place said pipes therein and is about to take possession and appropriate a portion of said land for said pipe line, without any authority, as he is advised and believes. That said acts of trespass are of a continuing nature and said defendant is doing and threatening to do irreparable injury to the said property, by said acts. That the said trespass and appropriation for said pipe line purposes, will work serious and irreparable injury to the property of the plaintiff ”
    The court entered a decree refusing a preliminary injunction.

      Error assigned was the decree of the court.

      John E. Kunkle, with him D. W. McDonald, J. R. Cray and Edward E. Robbins, for appellant.
    If, under its right of eminent domain, the company is about to take private property, not for a public but for a private use, the appellees are entitled to relief by injunction to be awarded under the Act of June 19, 1871, P. L. 1,360, for the charter of the company cannot be perverted to accomplish objects for which it was not granted. It possesses no franchise to take private property for a private use: Deemer v. Bells Run R. R. Co., 212 Pa. 491.
    The office of a preliminary injunction is to maintain the existing status until the merits of the controversy can be fully heard and determined: Fredericks v. Huber, 180 Pa. 572.
    Under the allegations in the bill and answer the preliminary injunction should have been issued.

      Edward H. Hall, with him R. W. Playford and Hannis, Williams Bunting, for appellee.
    March 12, 1906:
   Per Curiam,

The Mountain Water Supply Company being chartered under clause 18 of the second class in section 2 of the Act of April 29, 1874, P. L. 73, is presumably a corporation for private uses which cannot constitutionally be invested with the right of eminent domain. The appellant, therefore, is entitled to protection from interference with his property by the maintenance of the status quo until the facts and the rights of the parties are shown upon full hearing.

The decree is therefore reversed and an injunction directed to be awarded as prayed.


text:
    Bridgewater Borough, Appellant, v. Beaver Valley Traction Company.

      Street railways — Boroughs—Location of track — Deflection in line — Ratification.

    Where a street railway company in laying its track on a borough street has slightly deflected from the line for the track established by the borough, and the borough has acquiesced in this location of the track for ten years, it will be presumed to have ratified the deflected line, and if the railway company in reconstructing its track lays it upon the deflected line, the borough has no standing to object.

      Equity — Equity pleading — Equity practice — Admissions—Findings of fact.

    Where in a bill in equity by a borough against a street railway company, it is charged that the defendant was building a double-track railway on a borough street to the irreparable damage of complainant, and the answer admits the construction of a double-track railway while denying irreparable damage, the court cannot find as a fact that the alleged double track was not a double track, but a turnout.

      Street railways — Construction—Double tracks — Turnouts.
    The law attaches no peculiar meaning to the words “double track and turnout.” They are not technical, but in common and general use. A turnout is a short line of track having connection by means of switches with the main track.
    An additional track laid in a borough street cannot be considered a turnout where it appears that the additional track taken in connection with the original track, and in connection with a double-track railway which these two tracks connected with at the borough limits, constituted one continuous, unbroken, double-track fine.
    Argued Oct. 19, 1905.
    Appeal, No. 181, Oct. T., 1905, by-plaintiff, from decree of C. P. Beaver Co., Dec. T., 1901, No. 13, dismissing bill in equity in case of Bridgewater Borough v. Beaver Valley Traction Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Wallace, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court dismissing the bill.

      J. F. Reed, and Edwin S. Weyand, for appellant.

      Arthur E. Barnett, with, him John M. Buchanan, for appellee,
    cited: Plymouth Boro. v. Plymouth Street Ry. Co., 10 Kulp, 308; Twaddell v. Chester Traction Co., 6 Del. Co. Rep. 399.
    March 12, 1906:
   Opinion by

Mr. Justice Stewart,

The Beaver Valley Traction Company, owning and'operating a line of street railway in the borough of Beaver and territory thereabout, in 1891, acquired the rights and franchises of the Central Street Railway Company in and upon the streets of the adjacent borough of Bridgewater. The borough ordinance allowing the transfer, provided that in the* construction and operation of the road, the Beaver Valley Traction Company should be subject to the restrictions and requirements of the ordinance granting the right of way to the Central Electric Street Railway Company. This ordinance, in section one, gave the last named .company the right to construct, maintain and operate a single track electric street railway upon and over certain streets in Bridgewater, beginning at the western end of the bridge of the Sharon Bridge Company in said borough, thence along the approach of said bridge to Water street in said borough, thence along the eastern side of Water street to Bridge street, maintaining on said Water street, a distance of eighteen feet between the tracks of said railway and-the curve on the west side of the street, except those parts of said street where buildings are now located, on the east side of said street, on which parts of said street the tracks of the said railway shall be laid on the center of said Water street; thence along the center of Bridge street to the foot of the hill; thence along the west side of the road leading from Bridgewater to Beaver to the western line of said borough; and in the maintenance and construction thereof to lay down the necessary tracks, poles, turn-outs and switches and to locate and maintain all the poles, wires and other appliances necessary to construct, operate and maintain the electric street railway in the most improved and successful manner. In section four, it is provided, that said company shall neither construct nor maintain any turn-outs or switches on Bridge street between the Big Beaver Bridge and the western boundary of the Presbyterian church fronting on said street.

The present contention requires consideration of so much only of the ordinance as we have quoted. It relates to territory included in the description “ thence along the west side of the road leading from Bridgewater to Beaver to the western line of said borough of Bridgewater.”

A single track of railway was laid on this road in 1891, connecting at the western boundary of Bridgewater borough, with the tracks of the Beaver Valley Traction Company, and remained as originally constructed until 1901, when, for its own purposes, whatever these were, the line was ' reconstructed, by the company. While engaged in the work of reconstruction the borough of Bridgewater, by its municipal authorities, filed a bill in the court of common pleas of Beaver county alleging, (1) that the Beaver Valley Traction Company, made defendant therein, in violation of the provisions of the ordinance granting the right of way upon the streets of said borough, was engaged in constructing a double track railway on the west end of said Bridge street, and on the road leading from Bridge street to the western boundary of the borough, there connecting with the double tracks of defendant’s railway in the borough of Beaver, without the consent of the authorities of the borough of Bridge-water ; (2) that planning to occupy the eastern portion of the Bridgewater hill, and double track the same, the defendant company had torn up the pavement along its line of tracks, and in various ways was interfering with the side of said road east of the center line. The bill prayed that the defendant company might be restrained by injunction from constructing a double track railway on the western end of said Bridge street, and on the road leading from Bridge street to the western boundary of the borough, and from constructing any turn-outs or switches, or changing in any manner the location of said street railway as at present constructed on the west end of Bridge street, and on the road leading from Bridge street to the western boundary; and further, that it be restrained from tearing up or interfering with the pavement or roadbed in any manner, east of the center line of Bridgewater hill, leading from Beaver borough line to Bridge street in Bridgewater, or using the same in repairing or altering their roadbed on the west side of the center line.

To this bill an answer was filed and considerable testimony was taken. After much delay, a final hearing was reached, when the bill was dismissed. In regard to so much of the complaint as relates to the alleged encroachments upon the eastern side of Bridge street — not including, however, the original track laid there — it is enough to say, that it is found as a fact by the court, on what we regard as sufficient and satisfactory evidence, that the reconstructed line follows substantially the line of the road as originally built in 1891. The variation, if any, is so slight as to be immaterial. If the line as originally constructed deflected from the true center of the road to the east, it is to be presumed that this was with the consent of the borough authorities. The continued acquiescense therein for a period of ten years, must be regarded as a ratification of what was done in this regard. The court very properly held that the line then established was the true line, and in relaying its tracks defendant company had the right to so regard it; and so with respect to any temporary use of the ground to the east that was necessary for the purpose of repair and reconstruction. The right to such use is implied in the grant.

On the other branch of the case, the court was asked to find as a fact that defendant company had two tracks, and as a conclusion of law that, under the ordinance granting defendant its privileges, it had no right to construct and maintain a double track electric railway on the road leading from Bridge street to the western boundary of the borough. The court’s finding was: “While there are two tracks west of the point designated in the ordinance on Beaver Hill road or Bridge-street, the double track is not what in law you would call a double track, but is recognized as a turn-out on the hill.” This finding, while a disappointment to the plaintiff, must have been a surprise to the defendant, since in its answer to the eighth paragraph in plaintiff’s bill, which charges that defendant is now engaged in constructing a double track railway on the west end of said Bridge street, and the road leading from Bridge street to the western boundary of said borough, there connecting with the double track of said railroad in the borough of Beaver, without the consent or authority, and to the irreparable damage of the petitioner, defendant admits that, the allegations so made are true, except as they allege irreparable damage to complainant. This admission on the part of the defendant company ought to be conclusive of the question, and the court should have so regarded it. Aside from this, however, the case presents no serious difficulty. The law attaches no peculiar meaning to the words double track and turn-out. They are not technical, but in common and general use, and anyone with the least familiarity with railroads or railways can distinguish between them. A turn-out in a railway is a short line of track, having connection by means of switches with the main track. By means of it a single track road may be used by cars moving in opposite directions, the turn-out affording accommodation at the side of the track for one car while the other is passing over the main track at that point. The car thus sidetracked resumes its place on the main track after the other car has passed, by the connecting switch at the other end of the siding, or it can return through the same switch that allowed it to pass from the main track. The track here complained of extends from a point on the west end of Bridge street, on the road leading from Bridge street to the western boundary of said borough, a distance of about 500 feet. Cars moving westward on the Bridgewater single track, when they reached the first named point, by means of a switch, can pass to either of the tracks on Bridge street without change, the track thereafter continuing on over the Beaver line. The conceded fact is, that to and from the point at the eastern end, the defendant company is operating its original track and this additional track, called a turn-out, with its two track system in the borough of Beaver as a double track road. Together they make one continuous, unbroken double track line. To call a track of this length and so used, a turn-out, is to give the word a significance that it has never been allowed, and confound it with another which means something totally different. If there was nothing else in the case to show that this additional track is not a turnout, the use to which it is put would be sufficient. It would never occur to one traveling from Beaver to the eastern end of Bridgewater hill, that he was traveling part of the way on a turn-out; his car would not have changed tracks at any point. The same would be true of one traveling in the opposite direction between the same points.

The suggestion upon argument that this additional track best serves the public demands, in connection with the use of the street upon which it is laid, is aside from present inquiry. Whether the privileges of defendant company should, for public considerations, be enlarged so as to permit the double track, is a matter to be determined by the municipal authorities ; our concern is to determine what privileges have been, not what ought to be, given; and to see -that they are not unduly extended beyond the terms of the grant, as they certainly would be were the decree in this case to stand.

The plaintiff was entitled to an unqualified affirmance of both propositions of fact and law; the additional track constructed by defendant on Bridge street makes a double track line between the points indicated, and is so operated ; defendant had no legal right to construct the same and its continued maintenance and use is without authority of law. .

For the reasons stated, the decree of the court below dissolving plaintiff’s bill, is reversed, the bill is reinstated and the record remitted, with direction that an injunction issue enjoining the Beaver Yalley Traction Company, the appellee, from maintaining and operating, on the west end of Bridge street in the borough of Bridgewater, on the road leading from Bridge street to the western boundary of the borough, any railway, other than its single track of railway as originally constructed. The costs on this appeal and in the court below to be paid by the' appellee.