author: Mb,. Chief Justice Mitchell,

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

      Statutes—Repeals—Local act—General act.

    A local act is not repealed by a general act on the same subject, even with different or inconsistent provisions; but this rule being founded on a presumption of legislative intent will not apply when a contrary intent is clearly apparent.
    Where the clear general intent of the legislature is to establish a uniform and mandatory system, as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed.
    Where an act is passed to carry into effect a mandatory general provision of the Constitution, the presumption must be that it was intended to repeal even local acts inconsistent with its terms.

      Statutes — Repeal — Local and special acts—County buildings—Act of April 4, 1870, P. L. 834 and April 19, 1895, P. L. 38.
    The local Act of April 4, 1870, P. L. 834, entitled " An act relative to contracts by county commissioners in certain counties,” is not repealed by the general Act of April 19, 1895, P. L. 38, entitled “ An act to regulate the erection of county buildings.”

      County buildings—W estmoreland county—Courthouse—A dvertising contract —Specifications—Newspapers—Act of April 4, 1870, P. L. 834.
    The act of April 4, 1870, P. L. 834, provides as follows : “The county commissioners .... before malting any contract for the erection of any new building or buildings, bridge or bridges, .... shall, by public advertisement, printed in not less than two weekly newspapers of the county, if so many be published therein, where the contract is to be awarded, for not less than four weeks .... invite sealed proposals for the same according to the specifications, which shall be written or printed in a book to be kept by the commissioners for that purpose, and kept open for the inspection of all persons for at least four weeks before the time appointed by said advertisement for the opening of said sealed proposals, and which, at the time fixed, shall be publicly opened and the contract awarded to the lowest bidder or bidders.” The county commissioners of Westmoreland county fixed upon the time for opening the bids for a new courthouse as Thursday, July 19, 1903. The specifications were deposited in the office of the commissioners for a period considerably longer than the four weeks prior to July 9. Advertisements were published in two weekly newspapers of the county on Tuesdays June 16, June 23, June 30 and July 7. Held, that (1) it was the intention of the act that the advertisements should be published in the identical four weeks during which the specifications were to be on file immediately prior to the opening of the bids; (2) that the first publication was not required to be twenty-eight days before the opening of the bids; [3) that the advertisements complied with the requirements of the act.
    Argued Oct. 10, 1904.
    Appeal No. 131, Oct. T., 1904, by defendant, from judgment of Superior Court, April T., 1904, No. 114, affirming order of C. ,P. Westmoreland Co., Nov. T., 1903, No. 634, awarding writ of preliminary mandamus in case of Commonwealth ex rel. Wm. Miller & Sons v. John H. Brown, Controller of Westmoreland County.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from Superior Court.
    See 25 Pa. Superior Ct. 269.
    The opinion of the Superior Court by Porter, J., was as follows:
    The proceedings to determine the necessity for the erection of a new courthouse seem to have been conducted by those in authority in the county of Westmoreland with care, and those invested with the discretion to determine the questions arising in this important matter are conceded to have brought to the consideration thereof, painstaking deliberation.
    Plans and specifications for the proposed new building were adopted by the county commissioners in June, 1901, and approved by both the judges of the court of common pleas. On August 2 of the same year, a contract was awarded for the removal of the old building, and on August 10 of the same year, the court directed the removal of the records to temporary quarters which had been prepared for their reception. Both these undertakings were promptly carried into execution. On October 23, 1901, a contract was duly awarded for the excavation and the construction of the foundation of the new courthouse to be erected in accordance with the adopted plans. This contract has long since been carried into execution.
    Twice during the year 1902 bids for the erection of the building were duly advertised for, but no bid was received which met the approbation of all those whose approval was necessary to the contract on behalf of the county. On May 4, 1903, all of the county commissioners concurred in certain modifications of the specifications, which action was upon the same day approved by both the judges of the court of common pleas.
    With the amended specifications as a basis, bids were invited by public advertisement and on July 9,1903, seven contractors, all of whom seemed to be responsible, submitted bids for the work; the bids having been publicly opened, that of the relators was found to be the lowest and was accepted by the county commissioners. A contract for the execution of the work, according to the specifications, with sureties for its faithful performance, having been prepared, the same was approved by one of the judges of the court of common pleas on September 26, 1903, and on the 29th of the same month the county commissioners awarded the contract for the work to the relators, and executed the contract in the form in which it had been approved by said judge. The relators entered upon the ground and proceeded to execute the work according to the terms of the contract.

      The respondent does not deny that the relators did the work for which they now demand payment, nor that according to the terms of the contract the amount is due and payable ; he bases his refusal to draw his warrant for the amount upon the ground that the contract is invalid. There is no suggestion of fraud in the letting of the contract, nor that the relators were not the lowest bidders, nor that the price agreed upon was not fair and reasonable. Bids for the work had been repeatedly asked for by public advertisement, and the attention of contractors throughout the country who were capable of performing work of this character had been directly called to the undertaking.
    There is no dispute as to the facts, and it has been conceded upon the argument of this appeal that the determination of the validity of this contract involves the consideration of only two questions. (1) Was the local Act of April 4, 1870, P. L. 834, entitled “ An act relating to contracts by county commissioners in certain counties of this commonwealth,” repealed by the general Act of April 19, 1895, P. L. 38, entitled “ An act to regulate the erection of county buildings ? ” (2) If the local act of April 4, 1870, is still in force, then was its requirement as to public advertisement prior to the opening of the bids complied with ?
    The first question is so fully considered in the opinion of the learned judge of the court below, and the conclusion at which he arrived is so satisfactorily sustained by the authorities there cited that we do not deem it necessary to supplement what is said on that branch of the case. We are of the opinion that the local act of April 4, 1870, remains in force in Westmoreland county.
    This leaves for consideration the sufficiency of the public advertisement of the invitation to bidders to submit sealed proposals for the execution of the work. The provision of the statute material to the inquiry is as follows: “ The county commissioners .... before making any contract for the erection of any new building or buildings, bridge or bridges, .... shall, by public advertisement, printed in not less than two weekly newspapers of the county, if so many be published therein, where the contract is to be awarded, for not less than four weeks, .... invite sealed proposals for the same according to the specifications, which shall be written or printed in a book to be kept by the commissioners for that purpose, and kept open for the inspection of all persons for at least four weeks before the time appointed by said advertisement for the opening of said sealed proposals, and which, at the time fixed, shall be publicly opened and the contract awarded to the lowest bidder or bidders.”
    The specifications for the work in question had been of record in the office of the commissioners for a period considerably longer than four weeks. The commissioners determined to fix the time for the opening of the sealed proposals for July 9, 1903, at one o’clock p. M. The invitation for sealed proposals was first published in daily newspapers, beginning more than four weeks prior to the time fixed for the opening of the bids; The statute requires the publication to be in weekly newspapers,' a term which has a well-recognized meaning, that is, a newspaper published once in each week. A publication in a daily paper was not in accordance with the requirements of the statute, and such publication must be eliminated from the consideration of this question in its legal sense, however material it might be if the good faith of the officers representing thé county had been called in question. .
    The advertisement inviting the sealed proposals for the erection of the courthouse, according to the specifications of record in the office of the commissioners, was published in two weekly newspapers of the county on June 16, June 23, June 39, and July 7, 1903, each of said days of publication being Tuesday. The notice was in due form and the invitation was for sealed proposals until one o’clock p. M., Thursday, July 9,1903, at which time the bids were publicly opened in accordance with the terms of the notice. The only question is whether this publication in the weekly papers was in accordance with the provisions of the statute.
    The statute is to be construed with a view to the purpose which it is intended to accomplish, to effect the legislative intention, and give effect to all its provisions. The purpose of this statute is to secure competitive bidding, upon equal terms, under conditions which give to all bidders full and accurate information as to the character of the work to be performed. The means used to accomplish the end are the two requirements, (a) That the specifications shall be a matter of public record “ for at least four weeks ” before the opening of the bids; (5) That the commissioners shall “ by public advertisement, printed in not less than two weekly newspapers of the county, .... for not less than four weeks, invite sealed proposals for the same, according to the specifications.”
    The requirement in each case involves the element of time. The specifications must be of record “ at least four weeks; ” the invitation to bid on the specifications must be “ printed in not less than two weekly newspapers .... for not less than four weeks.” The invitation must refer to the specifications, in this there evidently was a purpose. An invitation to bid without a reference to the specifications as to the work to be done, would be a useless and absurd thing. The things required are intended to contribute to the same end, and in order to be effective they must be done at the same time. The record of the specifications could not accomplish the purpose of the statute if the attention of bidders was not called to the undertaking; the advertisement for bids would amount to nothing if it did not, as required by the statute, refer to the record of the specifications. The expression “not less than four weeks” is the exact equivalent of “ at least four weeks.”
    When the legislature enacted that the invitation to bid should be printed, in weekly newspapers for not less than four weeks, and in the same connection required that the specifications upon which the bids were to be submitted should be of record at least four weeks, the. legislative intention manifestly was that these periods of time should be concurrent. The four weeks during which the advertisement must be published, are the same four weeks during which the specifications must be of record; to fix one is to determine the other. The requirement as to the specifications is that they must be of record and open to the inspection of all persons for at least four weeks before the time appointed for the opening of the proposals. This requirement would not be met by having the specifications of record for months before if they were permitted to be withdrawn from the record during any part of the last four weeks immediately prior to the opening of the bids.
    The commissioners have a discretion to place the specifications of record and keep them open for inspection for a longer period, but they must do those things during the last four weeks. The requirement as to the specifications is not that they shall be of record for a certain number of days in the week, they must be of record every day of the four weeks; that is, full twenty-eight days immediately prior to the opening of the bids. This determines the four weeks during which the public advertisement of the invitation to bidders must be printed in the weekly newspapers. A weekly newspaper, regularly issued, must necessarily be printed four times, that is it must have four publications within those four weeks. The commissioners have a discretion to advertise for a longer period, but no antecedent advertisement could excuse the failure to advertise weekly during the last four weeks immediately prior to the day upon which the bids are opened.
    The relation of the things required to be done by this statute to each other, the manifest intention that the publication shall be during the same period that the specifications are on file, and the clearly defined purpose that the latter period must be the four weeks ending with the day before the proposals are opened, lead us to the conclusion that the period during which the advertisement required by this statute must be printed in two weekly newspapers, for four weeks, is the last twenty-eight days prior to the opening of the bids. Computing backward from July 9, 1903, it appears, that, under the undisputed facts of this case, the advertisement was regularly published in two weekly newspapers during each week of said period. This answered the requirements of the statute. The invitation to bidders must be published weekly, four times, in two weekly newspapers, but the first publication is not required to be twenty-eight days before the opening of the bids. The period during which the specifications are required to be of record must determine the days upon which the weeks ai’e to be considered as beginning and ending, for the purposes of this statute.
    The judgment is affirmed.

      Error assigned was the judgment of the Superior Court.

      James 8. Moorhead, with him John B. Head and H. G. Beistel, for appellant.

      W. H. >$. Thomson, with him Trank Thomson and Denna O. Ogden, for appellees.
    November 4, 1904:
   Opinion by

Mb,. Chief Justice Mitchell,

The Act of April 4, 1870, P. L. 834, is entitled “An act relative to contracts by county commissioners in certain counties of this commonwealth,” and is a local and special act applying only to eleven counties named. The Act of April 19, 1895, P. L. 38, is entitled “ An act to regulate the erection of county buildings,” and is a general act applying in terms to the whole state. The first question in this case is whether the prior act is repealed by the later. ■

Repeal is wholly a question of legislative intent. Where, as here, no such intent is expressed but must be found, if at all, in necessary inference, certain general principles or presumptions have been established as aids in the discovery of the actual intent. The one with which we are concerned is that a local is not repealed by a general' act'on the same subject, even with conflicting provisions. A local law presumably was passed to meet local and exceptional conditions, and a general statute to meet general conditions does not imply that the local conditions have changed, or that the législature intends to change the law which it had previously deemed necessary or appropriate to such conditions. • “ Rarely, if ever, does a case arise where -it can' justly be held that a general statute repeals a local statute by mere implication: ” Malloy v. Com. ex rel. Reinhard, 115 Pa. 25; Com. v. P. & E. R. R. Co., 164 Pa. 252, 261; Com. ex rel. v. Summerville, 204 Pa. 300.

This principle has been so repeatedly declared that it would not be necessary to reiterate it here, except to recall its application in connection with the claim of the appellant that a different rule should prevail in the present case. The argument is very clearly expressed in the following quotation from appellant’s supplementary paper-boolc : “ It will bé conceded that the parties are squarely at issue on the question whether or not, since the adoption of the new constitution, our courts, in determining that a general Act of Assembly regulating the affairs of counties, .boroughs or townships, does or does not repeal a special or local act on the same subject passed prior to 1874, are to be guided by precisely the same rules of construction theretofore existing, or whether such rules have, since that date, been modified and changed ? ”

On this point a number of cases have been cited by both parties, and as it is likely to arise frequently in the future it is desirable to notice briefly the decisions most directly bearing on it, with a view to a definitive settlement of the rule.

Appellant relies largely on Com. ex rel. v. Macferron, 152 Pa. 244; Quinn v. Cumberland Co., 162 Pa. 55 ; Chalfant v. Edwards, 176 Pa. 67, and particularly Com. ex rel. v. Wunch, 167 Pa. 186.

Com. ex rel. v. Macferron and Quinn v. Cumberland Co. were decided on the legislative intent in the acts on classification of municipalities. In the former it was said that the rule as to local and general acts was not questioned, but “ the nature and purpose of the classification acts and the laws enacted for the separate classes are of a character to exclude the operation of the rule. They are intended to revise the laws relating to municipal affairs so as to reduce all former types and forms of municipal government, almost as numerous as the cities in the state, to three, one for each class; and to substitute the class form in lieu of the previously existing form in every city of the class.”

Of Com. ex rel. v. Wunch it might be enough to say that it has been overruled as having overlooked the limited scope of the act there in question, and the saving clause of another to which it was in effect only a supplement: Com. ex rel. v. Couch, 209 Pa. 354. The decision, however, was founded on the same principle as Com. ex rel. v. Macferron, but an improvident expression in the brief per curiam opinion has led appellant to give the case much too wide a scope. “ Since the adoption of the present constitution,” said Justice Williams, “ the legislature has sought to bring about uniformity in the administration of the affairs of counties and townships as well as those of cities and boroughs. The constitution requires this, and we have felt constrained to interpret statutes relating to these subjects in the light of the constitutional requirements.” This was an inadvertent slip in expression. The constitution makes no requirement of uniformity, and the courts have neither desire nor authority to bring about such a result except in obedience to a statutory expression of the legislative intent. What the constitution does require as to legislation upon the affairs of counties, municipalities, etc., under sec. 7 of article 3, is that it shall not be local or special, but general. Uniformity is not in itself a requirement, but one of the tests, judicially established, of the question whether an act is local, special or general, and it is nothing more : Stegmaier v. Jones, 203 Pa. 47.

What these cases decide and are authority for, is that as the legislative intent in the classification of municipalities is apparent, to make a uniform system and framework of government, public officers, powers and duties in each class, the presumption is that as to such matters, local acts must give way to the general act of classification, wherever they conflict.

This modification of the rule, however, must not be pushed too far, but confined to the subjects to which the legislative intent clearly applies. The constitution itself does not compel uniformity by the repeal of local laws, even in the article prohibiting local legislation. It was held in Evans v. Phillipi 117 Pa. 226, that “ the constitution in its prohibitions of special legislation is prospective only, and does not effect a repeal of local statutes with inconsistent provisions in force at the time of its adoption; nor was its intent and meaning that all future legislation should be conditional on the repeal of such local laws.” Even in Com. ex rel. v. Macferron, which perhaps goes farthest in that direction, the decision is carefully limited and it is held that classification of cities is for the purpose of regulating “ the exercise of certain corporate powers, and the number, character, powers and duties of certain corporate officers ” and that the legislative intent is equally plain “ to leave each city in the full enjoyment of all its powers, rights and privileges not superseded by the uniform scheme or plan of municipal government provided for the class into which such city may come. As was held in Com. ex rel. v. Wyman, 137 Pa. 508 the transition of. a city from one class to another works such change in its government as the law makes necessary to adjust it to the class into which it goes. In other respects it works no change, but the city brings all its municipal belongings with it into the new class.”

Chalfant v. Edwards, supra, and McCleary v. Allegheny Co., 163 Pa. 578, are based on a similar modification of the rule that where as said by our Brother Dean in the latter case, the general act is in harmony with the constitution and clearly passed to carry it into effect the local must give way.

In Malloy v. Com. ex rel., 115 Pa. 25, it was said, “the constitution upon many subjects prohibits local or special legislation, but it changes no rule relative to the repeal, by legislation, of local laws existing when it was adopted.” No subsequent case is in conflict with the principle of this decision.

The result of the cases may be summed up as follows :

First, the rule that a general statute does not repeal by implication a local act with different or inconsistent provisions, is still the prevailing rule.

Secondly, but the rule being founded on a presumption of legislative intent, will not apply when a contrary intent is clearly apparent.

Thirdly, where the clear general intent of the legislature is to establish a uniform and mandatory system as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed.

Fourthly, where an act is passed to carry into effect a mandatory general provision of the constitution, the presumption must be that it was intended to repeal even local acts inconsistent with its terms.

Regarding the acts of 1870 and 1895 in the light of these rules it is clear that the former is not repealed unless there is evidence in the language of the latter that such was the intent. The act of 1870 is a local act, and could not now be passed in view of the prohibitions in section 7 of article 3. But the constitution did not repeal it, nor did it command the legislature to do so. The act of 1895 was not passed to carry out any constitutional mandate, and its effect therefore must be limited by the rule as to local and general acts, unless its language and purpose indicate an intent to establish a uniformity on the subject of its provisions that shall be compulsory even upon local and special acts.

We do not find any sufficient ground for the inference of such intent. The scope of the two acts is not the same nor do either the titles or the language of the two indicate that the legislature had the same subject in contemplation. The title of the act of 1870 relates to contracts by county commissioners and the act is primarily a limitation on the commissioners’ power. Prior to its passage, and in counties to which it did not apply, the commissioners being duly authorized by two grand juries and the quarter sessions under the act of 1884 to build a courthouse or county building, made the contract at their own discretion as to size, style, cost, etc., without- reference to the approval of any other official: Mahon v. Luzerne Co., 197 Pa. 1, 18. But by the provisions of the act of 1870, before .making any contract for the erection of new buildings, or bridges, or for alteration or addition thereto, the commissioners' are required to take certain proceedings, among which is obtaining the approval of one of the judges of the common pleas.' It is a carefully drawn act covering the subject with much particularity and detail. There may have been a reason why the commissioners in the counties named should be deprived of some of the powers exercised by commissioners in other counties. Whatever the reasons may have been, we must assume that special and local conditions required this special and local change in the law, and there is nothing to show that the legislature regarded these conditions as having ceased in those counties or having newly arisen in the rest of the state.

The act of 1895, on the other hand, is a single section of eleven lines, in general terms, with little detail, and of narrower scope. Its provisions are confined to “ the erection of a court house, -jail or other county building.” The building of bridges and of alterations or additions to county buildings, is left under the act of 1870 or under the general powers of commissioners in other counties to which that act does not extend. The subjects of the two acts, therefore, though closely related, are not identical, and it does not seem reasonable to suppose that the legislature regarded them as the same’and meant the later act to repeal part of the earlier one, leaving so important a portion of the subject admittedly untouched.

We are of -opinion, therefore, that the act of 1870 is not repealed by the act of 1895.

' The second question raised, by the assignments of error, whether the provisions of the act of 1870 as to advertisement, etc., were complied with, is so satisfactorily answered in the opinion o£ tlie Superior Court that we need not attempt to add anything to it.

Judgment affirmed.


source: Caselaw Access Project

author: Mb. Chief Justice Mitchell,

license: Public Domain

text:
    Melvin, Appellant, v. Summerville.

      Poor laws—Poorhouse—Aeis of April 4, 1870, P. L. 834; June 4, 1879, P. L. 78 and April 19, 1895, P. L. 38.
    Neither the local Act of April 4, 1870, P. L. 834 nor the general Act of April 19, 1895, P. L. 38, apply to the erection of a poorhouse on a contract made for the Clarion county poor district by the county commissioners under the general Act of June 4, 1879, P. L. 78.
    Under the Act of June 4, 1879, P. L. 78, the poor district, although coterminous with the county, is a separate quasi municipal corporation, and it acts through county officers merely for convenience of administration.
    Argued Oct. 11, 1904.
    Appeal, No. 164, Oct. T., 1904, by plaintiff from decree of C. P. Clarion Co., Feb. T., 1904, No. 1, on bill in equity in case of P. 11. Melvin v. J. A. Summer-ville et al., Commissioners of Clarion County.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity to restrain the erection of a poorhouse under a contract not approved by the court of common pleas as required by tlie act of April 19, 1895.
    Wilson, P. J., found the facts to be as follows :
    Under the provisions of the Act of June 4, 1879, P. L. 78, a petition and recommendation signed by a majority of tlie overseers of the poor then in office in the county of Clarion was presented to tlie court of quarter sessions praying for the purchase of real estate and the erection of a poorhouse. A submission of this question to an election resulted in a majority of the qualified electors of the poor district of Clarion county voting in favor of a poorhouse to be erected in the county of Clarion. In pursuance of this the county commissioners selected and purchased a farm in Piney township, employed an architect to draw plans and specifications for a poorhouse, and after due advertisement and opening of the competitive bids on November 3,1903, awarded the contract for the erection of the poorhouse on said farm to William Zortman at the price of $69,950, which was the lowest and best bid, who forthwith complied with the terms of said bid, furnished a bond and entered into a contract with the commissioners of the county of Clarion, acting for the Clarion county poor district, for the erection and completion of said buildings, and immediately commenced work thereon, entering into contracts with various parties for the purchase of materials necessary for the completion of the same and went to large expense and incurred legal responsibility to large amounts by reason of said contract.
    The county commissioners did not copy the specifications for said poorhouse in a book kept by them for that purpose, or keep said book open for the inspection of all persons for at least four weeks prior to the time specified in their advertisement for the opening of the bids, although the specifications and plans were on file in the commissioners office from October 7, 1903 ; the commissioners did not submit to the judge of the court of common pleas of Clarion county, for the approval of the same, either the said location, plans and specifications or the aforesaid contract and bond of Mr. William Zortman.
    The court dismissed the bill.

      Error assigned was the decree of the court.

      Don C. Corbett and J. T. Maffett, with them C. Gr. Sloan and A. A. Geary, for appellant,
    cited : Brown v. County Commissioners, 21 Pa. 37 ; Malloy v. Com., 115 Pa. 25; Rose v. Beaver Co., 20 Pa. Superior Ct. 110; Shaefer v. Commissioners of Schuylkill County, 19 Pa. C. C. Rep. 508.

      J. S. Shirley and W. A. Hindman, with them E. J. Maffett and II. M. Dimer, for appellee, relied on the same cases.
    Nov. 4, 1904:
   Opinion by

Mb. Chief Justice Mitchell,

The question in this ease is thus concisely stated by the learned judge below, does either the local Act of April 4, 1870, P. L. 834, or the general Act of April 19,1895, P. L. 38, apply to the erection of a poorhouse on a contract made for the Clarion county poor district by the county commissioners under the general Act of June 4, 1879, P. L. 78.

In Com. ex. rel. v. Brown, 210 Pa. 29, it is held that the act of 1870 is not repealed by the act of 1895, and we have now to consider whether either of them applies to and controls the act of 1879.

The act of 1879 is entitled “ an act to create poor districts and to authorize purchase of lands and erection of buildings to furnish relief and give employment to the destitute, poor and paupers in this commonwealth.” It provides an elaborate and complete system of poor law to carry out the objects set forth in the title. Its principal feature is the creation of a general plan of poor districts, to acquire and hold title to real estate and to manage the district affairs relating to the poor. The boundaries of the districts are made generally coterminous with the counties in which they are situated, but not universally so, for section 20 provides that when any county embraces within its limits an incorporated city, the city and its territory shall not be included in the district. The district is a separate quasi municipal corporation with special and limited powers and it is manifest that it is made generally coterminous with the county and to act through county officers merely for convenience of administration. Other examples of the same kind will be found in boroughs or townships coterminous with their respective school districts, townships and township poor districts, and other such districts excepted from the operation of the act, and one notable instance in the case of the city and county of Philadelphia, which though coterminous have their separate municipal, powers and public officers.

The act requires that the title to the real estate purchased under its provisions shall be taken in the name of the poor district, the bonds, etc., for the purchase money shall be payable by the district, taxes both for the building of the poorhouses and their- maintenance shall be separately assessed, levied and collected, and separate accounts shall be kept of all such moneys by the county commissioners. All these are indicia of separate corporate existence : Township of Cumru v. Directors of Poor, 112 Pa. 264; Com. ex rel. v. Coyle, 185 Pa. 198.

It is true that the county commissioners and the county treasurer are ex officio made the officers through whom the district acts, but they are none the less district officers and not county officers while so acting. The treasurer is to have a specific compensation for his services under the act, and the commissioners are entitled “ to charge in their account as compensation the same rate per day for time necessarily employed about the business that they are entitled to receive as county commissioners.”

The act of 1895 is entitled “ An act to regulate the erection of county buildings ” and specifically refers to court houses, jails and “ other county buildings.” A poorhouse under the act of 1879 is not erected, owned or maintained by the county, but, as already discussed, by the poor district, a separate corporation, and therefore is not a county building within the act of. 1895 which cannot have any operation toward the repeal of the act of 1879.

The act of 1870 is entitled “ an Act relative to contracts by County Commissioners,” etc., and the same considerations already discussed, that under the act of 1879 the county commissioners while acting in relation to the poor district are district and not county officers, show that the act of 1879 cannot be affected by the prior act of 1870, which though naming them does so wholly in their county capacity.

Even if this were much less clear than it is and the commissioners could be regarded as county officers the provisions of the acts of 1870 and 1879 would negative any inference of a legislative intent that the later should be subordinated to the earlier act. The act of 1870 only requires the commissioners before making any contract for the erection of a new building, etc., to advertise for proposals, keep the specifications open for examination, and award the contract after approval by one of the judges of the common pleas. The act of 1879 provides that the commissioners shall not move until, on petition by two thirds of the overséers of the poor in the district, the court of quarter sessions has submitted the question of purchase to the qualified electors and a majority of such electors have approved the project. It cannot be supposed that the legislature intended that, after such a reference of the matter to the people of the district themselves, their decision should be subject to be nullified by the failure of a judge of the common pleas to approve the contract to carry it out.

Judgment affirmed.


author: Per Curiam,

text:
    Kirchner, Appellant, v. Oil City Street Railway Company.

      Negligence—Street railways—Standing on platform—Infants.

    Standing on the platform of an electric car in motion, when there is room inside, is negligence per se.
    An infant over the age of fourteen is presumed to have capacity to be sensible of danger, and the presumption can only be overcome by clear and positive evidence of want of capacity usual in persons of that age.
    Where a boy over fifteen years of age, of intelligence and capacity enough to be sent out to earn his living in outside employment, and to go from and to his home on cars, stands on the platform of a moving electric car and is injured, the evidence of the want of capacity must be clear to absolve him from the rule as to negligence in riding on the platform.
    Argued Oct. 12, 1904.
    Appeal, Nos. 58 and 59, Oct. T., 1904, by plaintiffs, from order of C. P. Venango Co., Aug. T., 1902, No. 48, refusing to take off nonsuit in case of Daniel F. Kirchner, by his next friend Anthony Kirchner v. Oil City Street Railway Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a boy fifteen years old, sustained while riding on the platform of a moving electric car. Before Criswell, P. J.
    The trial judge, on a motion to take off the nonsuit, filed an opinion in which he summarized the evidence as to the plaintiff’s capacity as follows :
    What is the evidence as to the capacity or want of capacity in Daniel F. Kirchner ?
    Dr. Coulter says that “ the boy was a good patient. He observed instructions carefully and did as he was told. ... I had full confidence in the boy to not run and jump, and felt safe in discharging the boy at that time.” “ Did you find the boy apt and intelligent and bright, able to understand your instructions ? ” “ Yes, sir; I think he is quite a bright little boy.”
    The father says that before the injury the boy used to go with him right along and assist about the oil wells, which the father was pumping, but that the boy was not as bright as a boy of his age ought to be, and that he couldn’t tell what time it was by a watch; that he never heard any complaints from anyone for whom the boy worked, and' that the boy brought his money home; knew when he got his money and got the right amount, and that he (the witness) never told any of the persons for whom the boy worked that he was dull; that he got along all right at school, but not as fast as he thought he should. The mother says that she does not think that he is as bright as some of the boys she has ; that it is hard to make him learn; that she doesn’t think he knows anything about care. On cross-examination she says that he can read and write, but don’t pick up and learn like other boys ; seems as though he couldn’t get along as fast as other boys; couldn’t keep up with his classes, but says she can’t tell in what way he isn’t as bright as the general run of boys. Aside from this it appears from the evidence of the boy that prior to the time of his injury he worked for a Mrs. Hunt in Oil City, and worked for a dairy company about a year and a half, delivering milk and butter to customers, collecting money, and getting 13.50 per week and boarding for his services. The mother further says that he went to work at Siverly when he was seven years old, and worked for about a year or a year and a half before he went to work for the dairy.

      jError assigned was refusal to take off nonsuit.

      A. B. Osmer, with him J. II. Osmer and N. F. Osmer, for appellant,
    cited: Rauch v. Lloyd, 31 Pa. 358; Oakland Ry. Co. v. Fielding, 48 Pa. 320; Kehler v. Schwenk, 144 Pa. 348; Kohler v. Penna. R. R. Co., 135 Pa. 346 ; Gibson v. Western N. Y. & P. R. R. Co., 164 Pa. 142; Lautner v. Kann, 184 Pa. 334.

      William J. Breene, with him Fdmond O. Bréene, for appellee were not heard.
    November 4, 1904:
   Per Curiam,

Standing on the platform of an electric car in motion, when there is room inside, is negligence per se: Thane v. Scranton Traction Co. 191 Pa. 249 ; Woodroffe v. Roxborough, etc., Ry. Co., 201 Pa. 521.

An infant over the age of ‘fourteen is presumed to have capacity to be sensible of danger, and this presumption can only be overcome by clear and positive evidence of want of the capacity usual in persons of that age: Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35 ; Kehler v. Schwenk, 144 Pa. 348. In the case of the plaintiff, a boy over fifteen years of age, of intelligence and capacity enough to be sent out to earn his living in outside employment, and to go from and to his home in the cars, the evidence of want of capacity should be very clear indeed to absolve him from the rule as to negligence in riding on the platform. The evidence produced fell far short of the required standard.

Judgment affirmed.


text:
    Patterson v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, Appellant.

      Negligence—Railroads—Grade crossing—■“ Stop, look and listen ”—Death— Presumption—Rebuttal of presumption—Evidence.

    In au action against a railroad company to recover damages for death at a grade crossing, the presumption is that the deceased did his duty to “stop, look and listen ” before driving on the tracks. Whether that presumption is rebutted is for the jury unless the evidence to the contrary is clear, positive, credible, and either uncontradicted or so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside as a matter of law.
    In such a case the court cannot say as a matter of law that the presumption had been rebutted where three witnesses testify to having seen the deceased as he approached the crossing, and that they did not see him stop, but none of them covered the entire approach, and one of them stated that there was a bump in the road, and that the deceased was back of this long enough to stop.
    Argued Oct. 20, 1904.
    Appeals, Nos. 79 and 103, Oct. T., 1904, by defendant, from judgment of C. P. Washington Co., Nov. T., 1903, Nos. 121 and.122, on verdicts for plaintiffs in cases of Josiah Patterson and Clara B. Patterson v. Pittsburg, Cincinnati, Chicago and St. Louis Railway Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.'
    Trespass to recover damages for the deaths of John T. Patterson, husband of plaintiff, Clara B. Patterson, and Samuel W. Patterson, son of Josiah Patterson. Before Mc-Ilvaine, P. J.
    At the trial it appeared that on July 4, 1903, at about noon, John T. Patterson and Samuel Patterson while riding in a wagon were killed at a grade crossing by a collision between the wagon and a passenger train. The defendant claimed that the presumption that the deceased stopped, looked and listened before driving upon the tracks had been rebutted b}r the proofs. The testimony on this subject is summarized in the opinion of the Supreme Court. In both cases the court refused binding instructions for defendant.
    Verdict for Josiah Patterson for $10,000 on which judgment was entered for $6,000, all above that sum having been remitted.
    Verdict and judgment for Clara B. Patterson for $11,000.

      Errors assigned in both cases were in refusing binding instructions for plaintiff.

      Alex. M. Todd, with him James A. Wiley, for appellant.

      T. F. Birch, for appellee.
    November 4, 1904:
   Per Curiam,

These two cases grew out of the same accident and raise the same question.

The plaintiff was entitled to go to the jury on the presumption that the deceased did his duty to “ stop, look and listen ” before driving on the tracks. Whether that presumption was rebutted was for the jury unless the evidence to the contrary was clear, positive, credible, and either uncontradicted or so.indisputable in weight and amount as to justify the court in holding that a verdict against it* must be set aside as a matter of law. The testimony in this cáse falls short of that standard; Three witnesses testified to having seen the deceased as he approached the crossing, and that they did not see him stop, but none of them covered the entire approach. Even Wise, the most important witness of all, testified there was a “ bump ” (a dip) in the road where he lost sight of the deceased, and in answer to the question “ before they (the deceased) went on the track that day did they stop or did they not?” answered “ they was back there long enough to stop behind that bump ” and being asked to give his best judgment, said “ I would say they must have stopped for they was back there long enough to stop.” While there was testimony persuasive that they did not stop, it was not so positive or so complete as to justify the judge in saying as a matter of law that the presumption had been rebutted.

Judgment affirmed.


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    Pennsylvania Mining Company v. Smith, Appellant.

      Vendor and vendee—Sale of coal—-Option—Interest.

    Where an agreement for the sale of coal provides that “ this agreement or option to last only and be binding for a period of nine months from the date hereof,” the purchaser may within the nine months, by an acceptance of the coal, secure an equitable title to it without tender of the purchase money. If upon the last day of the nine months a deed is tendered and the purchase money demanded, and the vendee objects in good faith to what he claims are defects in the title, his delay in paying the purchase money will not enable the vendor to rescind the contract, but will impose upon vendee the payment of interest on the purchase money from the date when the deed was tendered-.
    Submitted Oct. 20, 1904.
    Appeal, No. 150, Oct. T., 1904, by defendant, from decree of C. P. Washington Co., No. 1287, in equity, on bill in equity in case of Pennsylvania Mining Company v. A. W. Smith.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for specific performance. McIlvaine, P. J., found the facts substantially as follows:
    1. That A. W. Smith, the defendant, made with Cavanagh & Company a written article of agreement containing this clause:
    “ This instrument being intended to give the parties of the second part the exclusive option or privilege of buying the coal heretofore described for a price or sum of thirty-five ($35) dollars per acre, at the option of the parties of the second part, this agreement or option to last only and be binding for a period of (nine months) from the date hereof, and is payable in cash when sale is made or within nine months from date hereof.”
    2. Cavanagh & Company, for a valuable consideration, assigned over to the Pennsylvania Mining Company, the plaintiff in this case, their rights under said agreement.
    3. That on March 13,1900, the defendant had notice of this assignment and that the plaintiff elected to purchase the coal described in the agreement on the terms and conditions therein named.
    4. That the plaintiff’s election to purchase under said agreement the coal described therein was made in good faith, and it was on March 27, 1900, and always has been since that date, able, ready and willing to pay, and has offered to pay to the defendant the purchase price of said coal, upon receiving from the defendant a deed of conveyance, such as it would be bound to receive under the requirements of said agreement.
    5. That the defendant ever since March 27,1900, has denied the right of the plaintiff to a deed for the coal in controversy, and has refused to receive the purchase money therefor when tendered him.
    6. That during the afternoon of March 27, 1900, the defendant tendered a deed to the plaintiff company in Pittsburg, Pa., and demanded full payment to himself of the amount of the purchase money he alleged to be due and payable under the terms of his agreement. At the time this demand was made certain legacies bequeathed by Andrew Van Eman, deceased, who died seized of part of the land described in the deed tendered to the plaintiff, according to the averments of a petition signed and sworn to by A. W. Smith, the defendant, filed to No. 38, February Term, 1901, in the orphans’ court of Washington county, on March 19, 1901, were then a charge on said land under the terms of the will of the said Andrew Van Eman, and on May 14, 1901, the said orphans’ court on this petition made and filed a final decree in which it set out that it is “ satisfied that the allegations made in the petition of A. W. Smith are true ” and directed “ the land referred to and specified in said petition which were subject to the charge of incumbrance of said legacies and every part of said land shall be and hereby is released and discharged therefrom,” etc.
    7. That the deed tendered to the plaintiff company had not upon it the revenue stamps required by the act of Congress then in force.
    8. That at the time the defendant tendered his deed and demanded the full payment of his purchase money, a dispute arose between him and the attorney, who was acting for the plaintiff company, as to allowing him time to examine the records for title, liens, etc., which resulted in the defendant insisting that the plaintiff should then and there accept the deed tendered and pay the purchase money or otherwise the contract between them would be at an end, and the attorney insisting that he was not legally bound under existing circumstances to then accept the same and pay the amount demanded, but that the company wanted the coal and were ready, able and willing to pay for it, when the defendant would comply with his part of the contract, and they would have it if they had to resort to legal means to get it. They parted, the defendant claiming that the contract was at an end and the plaintiff’s representative claiming that the defendant had not made such a tender of performance as required it to pay the sum demanded and that the contract was not at an end, but would be legally enforced.
    Upon these facts he found the following conclusions of law:
    1. That the plaintiff had the exclusive option of buying the coal described in said agreement at the rate of $85.00 per acre for a period of nine months from the date of said agreement.
    2. That the acceptance of said coal under said agreement was the closing of a binding contract in writing, which thereafter existed between A. W. Smith and the Pennsylvania Mining Company, and under the terms of which the company was, after that date, the equitable owner of the coal in controversy.
    3. That the plaintiff company is entitled to a deed of conveyance for this coal, in accordance with the terms of said agreement,

      4. That the defendant, in tendering the deed on March 27, 1900, did not tender such performance on his part as to make it obligatory on the plaintiff company then and there to pay the sum demanded, or submit to a rescission of the contract.
    5. That the legal penalty of the plaintiff company for not paying the purchase price on March 27, 1900, under the facts of this case, is not a forfeiture of its vested rights under its contract, but the payment of interest on the purchase money from that date.
    6. That by the acceptance of the said coal under the said contract made on March 18, 1900, by the Pennsylvania Mining Company, assignee of Cavanagh & Company, the said contract became a binding agreement for the sale of the said coal to the Pennsylvania Mining Company, and the said company became the owner thereof subject to the payment of the price stipulated : Frick’s Appeal, 101 Pa. 485; Siter, James & Co.’s Appeal, 26 Pa. 178.
    7. That under the terms of the said contract the Pennsylvania Mining Company was entitled to a conveyance of the said coal free and clear from all encumbrances and liens before it paid the purchase price therefor.
    8. The plaintiff was entitled, before being called upon to make payment of the purchase money, to have the satisfaction or discharge of encumbrances, which had been placed upon the property, evidenced by matter of record, and it was the duty of the defendant, before demanding payment of the purchase money, to cause to be entered of record evidence of the payment or release of the legacies charged on said property by the will of Andrew Van Email, deceased, or else to procure a discharge of the property therefrom by proceedings under the Act of May 8, 1895, P. L. 44. Not having done so, the defendant had no right to rescind the contract on March 27, 1900, for noncompliance on that date with such demand.
    9. That under all the evidence in this case the plaintiff is entitled to a conveyance from the defendant of the coal, in accordance with the terms of the said contract.

      Error assigned was decree of specific performance.

      T, F, Biroli, with him T, Jeff Duncan, for appellant,

      John G-. Mac Connell, with him John IF. and Alvin Donnans and James 1. Brownson, for appellee.
    November 4, 1904:
   Per Curiam,

This judgment is affirmed on the opinion of the court below.


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    Pennsylvania Mining Company v. Martin, Appellant.

      Vendor and vendee—Sale of coal—Option—Laches — Specific performance.

    Where an agreement for the sale of coal states that it is the intent of the agreement to give the purchaser " an option or privilege of buying said described coal .... at any time within nine months from the date hereof,” the vendee may complete the purchase and secure an equitable title for himself, by giving notice without tender of purchase money, within the nine months, of his acceptance of the coal. In such a case a delay of two years on the part of the vendee to begin suit will not deprive him of his right to the specific performance of the contract.
    Argued Oct. 20, 1904.
    Appeal, No. 154, Oct. T., 1904, by defendant, from decree of C. P. Washington Co., No. 1238, in equity, on bill in equity in case of Pennsylvania Mining Company v. Charles E. Martin et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for specific performance.
    McIlvaine, P. J., found the facts substantially as follows.
    1. On June 17, 1899, the defendants signed, sealed and delivered to John R. Cavanagli,, doing business as Cavanagh & Go., an agreement whereby they agreed “ to sell and upon the acceptance of the option and privilege hereafter set forth convey unto said purchasers, tlicir nominees or assigns, all the coal underlying ” a certain tract of land.
    “ Said vendor hereby covenants and agrees that they shall and will on payment of purchase money hereafter provided by good and sufficient deed, clear of all liens and encumbrances whatsoever unto said purchasers, their heirs or assigns, the above described coal, together with the coal rights and privileges connected herewith.”
    “ In consideration whereof said purchasers agree to pay unto said vendor the sum of thirty-five dollars per acre in cash therefor as shown by said survey, on compliance by said vendor with all the foregoing and above mentioned covenants and agreements.”

      “ It is hereby agreed that the true intent and meaning of this agreement is to give to said purchasers, their nominees or assigns, an option or privilege of buying said described coal, coal rights and privileges, under the terms named, at any time within nine months from the date hereof.”
    “ In case said purchasers, their nominees or assigns, shall not accept the above right to purchase said coal, coal rights and privileges within the time limited herein, then this agreement shall forthwith become null and void and the said purchasers at their option be fully released from all liability and obligation of any and every kind whatsoever hereunder.”
    2. On December 20, 1899, the Pennsylvania Mining Company, the plaintiff in this case, in good faith purchased and Cavanagh & Co. sold to it, all the rights which vested in him, John R. Cavanagh.
    • 8. On March 14, 1900, the Pennsylvania Mining Company, the plaintiff, in good faith, intending thereby to become the purchaser of said coal, served upon the defendants a written notice of its purchase and its intention to take under the agreement and requested deeds and abstracts of title for examination.
    4. That since March 14, 1900, up to the filing of the bill in this case, the Pennsylvania Mining Company has always been •ready, willing and financially able, and before the filing of the bill offered to pay to the defendants the purchase price for the coal upon their complying with their covenants, but that defendants have claimed that the right of the Pennsylvania Mining Company, to receive a deed of conveyance for said coal had ceased to exist and have refused and now refuse to convey said coal to the said Pennsylvania Mining Company for the reason that the right of the Pennsylvania Mining Company to pay the purchase money and demand a deed of conveyance expired on March 17, 1900.
    On these facts the court found as conclusions of law:

      1. That tlie Pennsylvania Mining Company on March 14, 1900, when it served the written notice upon the defendants, became the purchaser of said coal and vested with an equitable title thereto.
    2. That the defendants’ denial of the plaintiff’s right to make payment and receive a deed of conveyance after March 17, 1900, estops the defendants from claiming that the plaintiff was guilty of laches in making its tender and in bringing suit.
    8. That the plaintiff is entitled to a decree of specific performance against the defendants upon its paying the purchase price of said coal with interest from March 17, 1900.
    After a very careful reading of the article of agreement given by the defendants to Cavanagh & Co., and a thoughtful consideration of the able argument found in the brief of defendants’ counsel, we are of the opinion :
    1. That the article of agreement when given was unilateral, or in other words a nine months option to purchase the . coal in question on certain terms.
    2. That when the plaintiff as assignee of Cavanagh & Co., on March 14, 1900, gave to the defendants the written notice that it accepted said coal, the article of agreement and written notice together thereafter constituted an inter partes agreement for the purchase of said coal, which vested in the plaintiff an equitable title and made it liable for the purchase price named.
    Time was of the essence of the unilateral agreement and had the Pennsylvania Mining Company not accepted the coal until after March 17, 1900, the defendants could have successfully claimed that the acceptance came too late—that the option to purchase only extended to March 17, 1900, and that time was of the essence of the contract. But the acceptance within the time named converted the unilateral agreement—the option—■ into an agreement inter partes—a binding agreement for the sale of real estate. And in this binding agreement thus consummated, there is no covenant that if the purchase money is not paid and deed of conveyance passed on March 17,1900, the contract of sale consummated by the written acceptance shall become null and void: Pennsylvania Mining Company v. Smith, 207 Pa. 210.
    Some stress was laid at the argument on the fact that this suit was not brought until two years and one month had elapsed since the date fixed for the payment of the purchase money. The only laches that the defendants are in a position to complain of is that they were not sued as soon as they might have been; but laches of two years in bringing a suit in equity is not a bar to the suit. A claim otherwise just does not become “ stale ” because the'plaintiff has not brought suit as soon by two years as he might have done. And as to the tender of the purchase price, the defendants are not in position to complain of laches on the part of the plaintiff, for their claim is that since March 17, 1900, the plaintiff had no right to tender the purchase money and demand a deed and they would not have made a deed if the purchase money had been tendered. After March 17, 1900, the defendants were not ready and waiting to make a deed when the purchase price would be paid; on the contrary, after that date they were adverse to the performance of the contract. Pomeroy, in his Equity Jurisprudence, Yol. Ill, sec. 1408, states the rule in these words : “ the party who desires to maintain an objection founded upon the other’s laches must show himself to have been ready, desirous, prompt and eager for performance.” The defendants’ claim is that the plaintiff failed “ to buy ” the coal on or before March 17, 1900, and that after that date no contract existed between the parties. If no contract existed between them and the plaintiff and they were acting on that claim, then they could not claim that after March 17,1900, they were always ready and willing to perform, but that the plaintiff was not, and therefore equity ought to now relieve them of performance on account of the plaintiff’s laches.
    The argument pressed upon the court by counsel for the defendants, that the w'ords “ an option or privilege of buying said described coal ” found in the original article of agreement, meant the payment of the purchase price by the plaintiff and the delivery of a deed of conveyance by the defendant, is ingenious, but to our mind not convincing. In the first place such construction is not in harmony with other parts of the agreement. The plaintiff was “ to accept the right to purchase said coal within the time limited.” The time that the parties were to take in closing up the transaction after “ the right to purchase had been accepted ” is not mentioned in the agreement. Again, the word “ buy ” when applied to a real estate transaction more often describes the passing of the equitable title from the vendor to the vendee than it does the exchange of the full purchase price and the deed of conveyance. Usually preliminary articles of agreement, are entered into that an examination of title and for liens and encumbrances may be made before the deed of conveyance is delivered and the purchase price paid. The vendor sells a farm and the vendee “ buys ” a farm when the article of agreement fixing the price, time of payment, time of execution of deed of conveyance and time possession is to be given, is executed. After that the vendee is the beneficial owner of the land. He has bought the farm. The “ buying ” is over and what comes afterwards, at least so far as the vendee is concerned, is the giving to the vendee that which shall be evidence of the title. In equity the title has already passed.
    One reason that time in a contract for the sale of real estate is not in equity of the essence of the contract unless expressly made so by the parties, is because compensation for the delay in performance can be made in the final decree by allowing interest if the delay is in not paying the purchase price on the day named. In this case before us we are of the opinion that it is but equitable to require the plaintiff to pay interest on the contract price from March 17,1900. The defendants’ contention is not so unreasonable as to characterize their defense as trivial and vexatious and it was no doubt honestly made under the legal advice of reputable attorneys. This taken into consideration with the plaintiff’s delay of two years in bringing this suit, we are of opinion would make it inequitable to grant the plaintiff a decree of specific performance without requiring it to pay interest.
    And now, April 15, 1904, it is ordered that the foregoing adjudication be filed in the prothonotary’s office and if no exceptions be filed that a final decree be prepared in accordance therewith.

      Error assigned was decree of specific performance.

      John O. Bane, with him R. W. Irwin, for appellant,
    cited as to the construction of the contract: Patchin v. Lamborn, 31 Pa. 314; Fessler’s App., 75 Pa. 483 ; Reed v. Breeden, 61 Pa. 460; on the question of laches, Du Bois v. Baum, 46 Pa. 537 ; St. Andrew’s Church’s App. 67 Pa. 512; Washabaugh v. Stauffer, 81* Pa. 497; Rennyson v. Rozell, 106 Pa. 407.

      John G. Mac Connell and James I. Brownson, with them John W. and Alvin Donnans, for appellee were not heard,
    but cited as to the construction of the contract: Corson v. Mulvany, 49 Pa. 88 ; Kerr v. Day, 14 Pa. 112; Newell’s App., 100 Pa. 513; Frick’s App., 101 Pa. 485; People’s Street Ry. Co. v. Spencer, 156 Pa. 85; Napier v. Darlington, 70 Pa. 64; Willard v. Tayloe, 75 U. S. 557 ; Penna. Mining Co. v. Smith, 207 Pa. 210.
    November 4, 1904:
   Per Curiam,

This judgment is affirmed on the opinion of the court below.


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    Dunbar v. Washington Foundry.

      Mechanic’s lien—Act of June 4, 1901, P. L. 431—Auditor’s findings of facts.

    A finding by an auditor that a structure constituted “ a substantial addition,” which should “be treated as a new erection,” under sec. 3 of the Act of June 4, 1901, P. L. 431, when such finding is based upon sufficient testimony and confirmed by the court below, will not be reversed by the appellate court in the absence of manifest error.
    Argued'Oct. 21, 1904.
    Appeal, No. 163, Oct. T., 1904, by the McClure Company, from order of C. P. Washington Co., No. 1331, in equity, dismissing exceptions to auditor’s report in case of J. Y. Dunbar, J. H. Wallace and J. W. Wallace, trading as Dunbar & Wallace Lumber Company v. Washington Foundry and Machine Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to report of C. L. Y. Acheson, Esq., auditor.
    Before the auditor a question arose as to whether certain structures or additions built by the Washington Foundry & Machine Company were “ a substantial addition,” which should be treated as a new erection under the Act of June 4, 1901, P. L. 431, sec. 3. On this subject the auditor reported as follows :
    3. The defendant corporation, at the time of the filing of the bill, was the owner of a tract of land situated in Canton township, containing 2.928 acres, conveyed to the Washington Foundry & Machine Company by the McClure Company, by deed dated April 29, 1903. This property was sold by the receiver by order of court, divested of liens and the confirmation of the sale of the same became absolute on November 19, 1903.
    4. Prior to the time when the Washington Foundry & Machine Company acquired title to this tract of land, there was on it a building which had originally been erected as a plant for a steel foundry in which were to be made steel billets used in making tin plate. After the McClure Company had purchased it, they used it principally for a storeroom. The roof of this building was very leaky; a greater portion of the sides of the building had either never been inclosed or if so had been stripped off. At the time the Washington Foundry & Machine Company purchased this lot, the building on it contained an open hearth furnace, some ladles and a truck to carry the ladles. The McClure Company also made some steel billets in this mill. No machinery is necessary to make these steel billets except the furnace. The steel is run into pigs, and it is then removed and machined afterwards.
    5. It was the purpose of the Washington Foundry & Machine Company to convert this plant into a steel foundry in which to make steel castings. To do this a great many changes were necessary. An addition about 112 feet long by 20 feet wide was put to the building. This addition was divided by partitions into sections, and these sections were used for the storing of materials essential to the operation of the steel foundry. In the operation of the plant as a steel foundry a traveling crane was a necessity, and the only building on the ground at the time the Washington Foundry & Machine Company purchased it was unstable, and would not have supported a crane of the size necessary to use in this foundry. For this purpose, therefore, several piers, about eighteen in number, were erected inside this foundry. These piers were of brick, built around the posts, and were twenty-seven inches square and a little over twenty feet high. These piers projected a short distance outside of the building, and showed on the inside as well as the outside. The floor of the building which, prior to its purchase by the Washington Foundry & Machine Company, had been exceedingly uneven in some places to the extent of five feet, was leveled up after its purchase by the Washington Foundry & Machine Company.
    There was also put into the building a core oven which was used for the purpose of drying cores, the cores being an essential part in the equipment and operation of a steel foundry. This core oven was seventy-two feet long and eight feet high. There was also put in a “ rattler ” room in which castings were rounded. Some flasks were also put in and various articles of machinery necessary to the operation of a steel foundry, but not essential in the operation of a foundry used only for the purpose of making steel billets.
    6. It was the purpose of the Washington Foundry & Machine Company to make everything in the way of steel castings, and this intention was carried out to a certain extent before the plant went into the hands of the receiver, as cog wheels, hammer dies, plates and different kinds of castings had been molded before that time.
    The auditor found as a fact that the new structure was a substantial addition, within the meaning of the act of June 4, 1901, and that the mechanic’s lien creditors had therefore a preference.
    Exceptions to the auditor’s report were dismissed by the court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Andrew M. Linn, for appellant.

      Samuel Amspoher, with him J. C. Ewing, Hughes Hughes and Isaac W. Baum, for appellees, were not heard.
    November 4, 1904:
   Per Curiam,

The question on which this case turns is one of fact, whether the addition to the Foundry Company’s building to enable it to make steel castings, was a “ substantial addition ” within the Act of June 4, 1901, P. L. 481, so as to give the lien claimants who furnished material for its construction, a preference in the distribution of the fund. The auditor’s finding to that effect was approved by the court and we have not been convinced that they were in error.

Judgment affirmed.


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    Commonwealth v. Dardaia, Appellant.

      Criminal law—Murder—Evidence.

    On the trial of an indictment for murder the commonwealth’s evidence showed that while the deceased was walking along the railroad track in pursuit of a friend who had jokingly taken his bottle from him, the prisoner came running across the field up to the track and almost instantly stabbed the deceased three times. When caught by some of the men who had run to the scene, the prisoner explained that the deceased had hit him the night before and he had cut him for it. The commonwealth also showed that there had been a dispute over a trivial matter the night before in which the deceased had hit the prisoner, and that the latter had on the next morning inquired for the deceased and made throats that he would “ fix him.”

      Held, that the evidence showed all the elements of murder in the first degree.
    Submitted Oct. 24, 1904.
    Appeal, No. 168, Oct. T., 1904, by defendant, from judgment of O. & T. Allegheny Co., Dec. T., 1903, No. 37, on verdict of guilty of murder in the first degree in case of Commonwealth v. Reno Dardaia.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Indictment for murder.
    The defendant entered a plea of guilty of murder and the testimony was submitted to the court to fix the degree. The court adjudged the murder as of the first degree and sentenced the prisoner to death.
    The opinion of the Supreme Court states the case.
    No assignments of error were printed in paper-book.

      James Francis Burke, for appellant.

      Robert E. Stewart, district attorney, with him Wrn. D. Grrimes, assistant district attorney, for appellee.
    November 4, 1904:
   Per Curiam,

The commonwealth’s evidence showed that while the deceased was walking along the railroad track in pursuit of a friend who had jokingly taken Ms bottle from him the appellant came running across the field and up to the track and almost instantly stabbed the deceased three times. When caught by some of the men who had run to the scene, the prisoner explained that the deceased had hit him the night before and he had cut him for it; The commonwealth also showed that there had been a dispute over a trivial matter the night before in which the deceased had hit the appellant, and that the latter had on the next morning inquired for the deceased and made threats that he would “ fix him.”

All the elements of murder of the first degree were fully shown by the evidence and the court could not possibly have reached any other conclusion.

Judgment affirmed and the record is ordered to be remitted to the court below for purpose of execution.


author: Per, Curiam,

text:
    Lininger v. Westinghouse Air Brake Company, Appellant.

      Negligence—Master and servant-—Fellow-servant—Vice principal—Fixed machinery.

    In an action by an employee against his employer to recover damages for personal injuries, the plaintiff is entitled to recover where it appears that the accident was due to the negligence of a millwright in putting up some fixed machinery in the nature of shafting and a grinder. In such a case the millwright is a vice principal and not a fellow-workman of the plaintiff.
    Argued Oct. 24, 1904.
    Appeal No. 72, Oct. T., 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1902, No. 641, on verdict for plaintiff in case of Benjamin Lininger v. Westinghouse Air Brake Company.
    Before Mitchell, 0. J., Dean, Fell, Brown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the jury returned'a verdict for $4,828 subject to question of law reserved.
    On motion for judgment non obstante veredicto, Fbazeb, P. J., filed the following opinion :
    Plaintiff, an employee of defendant, brought this action to recover damages for injuries received while employed as an oiler at defendant’s works at Wilmerding. On the morning of March 11,1902, while in the discharge of his duties, plaintiff was injured by being caught between the main or line shafting and timbers used to support counter shafting. The counter shafting, not being properly bolted and fastened to the “ I ” beams which supported it, was drawn toward the main shafting by reason of the belting from some unknown cause becoming wrapped around the shafting which at the time was revolving at a rapid rate. Plaintiff had ascended his ladder, which was placed between the main and counter shafting, and was in the act of oiling the latter when^the belting became entangled on the shafting, and by the moving toward the main shafting of the timbers used to support the counter shafting, was thrown against the main shafting and held between the two in a space of from ten to fourteen inches wide until released by other employees. The accident was the result of negligence upon the part of the millwright who put up the counter shafting, in failing to bolt the timbers to the “ I ” beams which supported them. The allegations of contributory negligence on the part of plaintiff were determined by the jury in his favor, and as no motion for a new trial was made by either party, we now have before us only the question of defendant’s liability, which is raised by the question of law reserved, to wit: “ Whether there is any evidence which entitles plaintiff to recover.” Plaintiff’s contention is that defendant failed to provide him with a reasonably safe place in which to work, and because of such failure is liable for his injury, while defendant’s contention is that plaintiff’s injury was the result of negligence upon the part of a fellow workman and consequently it is not responsible for the accident. If the millwright was a fellow workman judgment must be entered for defendant. A determination of this question, it seems to us, depends upon whether or not the counter shafting and the grinder operated by it are fixed machinery, a permanent part of the plant of defendant company. If of a permanent nature, defendant was bound to see that they were reasonably safe, and would be responsible to those who use or work about them for any injury resulting from negligence in their construction. If the counter shafting and grinder attached to it were portable appliances, what are generally known as tools, defendant would not be responsible. The testimony shows the counter shafting and grinder operated by it were put in place about two years ago and have been used constantly since that time as then constructed, except that the grinder’s location on the floor of the factory has been changed a few inches. It also appears from the testimony that the part of the factory in which the grinder was located had previously been used as a wareroom, that the materials stored therein had been removed and a number of grinders, including the one at which the accident to plaintiff happened, installed, and that the machines were “ a part of the development of the works” and were put in-“for the purpose of increasing our capacity.”
    While there appears at first glance to be some conflict in our Supreme Court decisions in regard to the employer’s liability for injuries received by an employee engaged in the course of his employment, it is clear: (a) that the employer must provide reasonably safe machinery, and (6) that the employee who constructs or puts up fixed appliances is not a coemployee of those who operate them. In support of these conclusions a reference to the following cases will be sufficient. In Lewis v. Seifert, 116 Pa. 628, it is said: “ But there are some duties which the master owes to the servant and from which he cannot relieve himself except by performance. Thus, the master owes to every employee the duty of providing a reasonably safe place in which to work, and reasonably safe instruments, tools and machinery, with which to work. This is a direct, personal and absolute obligation; and while the master may delegate these duties to an agent, such agent stands in the place of his principal, and the latter is responsible for the acts of such agent.” In Canal & II. E. Co. v. Mason, 109 Pa. 296, which was an action to recover damages for the death of an engineer caused by the explosion of the boiler of a locomotive which had recently come from the repair shops of the company, where it had been insufficiently repaired, in sustaining a verdict against the company the court said : “ Nor are those agents who are charged with the business of supplying the necessary machinery to be regarded as fellow servants, but rather as charged with the duty which the master owes to the servant, and the neglect of such agent is to be regarded as the neglect of the master. So is the employer equally chargeable whether the failure is found in the original tool or machine, or in a subsequent want of repair by which it becomes dangerous.” In the late case of Finnerty v. Burnham, 205 Pa. 305, in referring to the duty of employers to furnish, maintain and inspect, appliances and instrumentalities used by their employees, the court says the master’s duty does not end with furnishing reasonably safe appliances and machinery, “ the law imposes upon him the further obligation of using reasonable care to keep such place of work and such instrumentalities in a reasonably safe condition and this, of course, is to be accomplished by a proper and timely inspection for defects and the repair thereof. In case of structural defects knowledge thereof by the master will be inferred. This doctrine is no more than the application of the general rule that it is the master’s duty to exercise ordinary care in providing tools, machinery and appliances that are reasonably safe.”
    In this case it seems clear to us that the counter shafting and grinder operated by it were fixed machinery. They were put in place fully two years ago for the purpose of increasing the capacity of defendant’s works and have been since that time in constant use. Both are of substantial and permanent erection and cannot be used at any other place except by a tearing down and reconstruction. Under these circumstances it was the duty of defendant to see that both the shafting and grinder were reasonably safe as put up, by having them properly inspected after the millwright had completed his work. This it failed to do. On the contrary, after the shafting had been put up and the grinder installed and the millwright had notified the foreman of the department that the machinery was ready for use, the foreman without either inspecting or examining the work, detailed a man to operate the machine and immediately put it in operation. The shafting and grinder being fixed machinery, it follows under the cases above referred to that the millwright who erected them was the agent of defendant in their erection and not a fellow-workman of plaintiff. Consequently, defendant is responsible for the millwright’s negligence in failing to bolt the timbers to the “ I ” beam, and thereby make the shafting reasonably safe.
    And now, January 5, 1904, judgment is entered on the verdict in favor of plaintiff, to which defendant excepts and at its instance bill sealed.

      ¡Error assigned was in entering judgment for plaintiff on the verdict.

      William S. Balzell of Balzell, Seott 3? Grordon, for appellant,
    cited: National Tube Works Co. v. Bedell, 96 Pa. 175; Keystone Bridge Co. v. Newberry, 96 Pa. 246; Reading Iron Works v. Devine, 109 Pa. 246; R. R. Co. v. Hughes, 119 Pa. 301; Bemisch v. Roberts, 143 Pa. 1; N. Y. L. E. & W. R. R. Co. v. Bell, 112 Pa. 400 ; Prevost v. Citizens’ Ice, etc., Co. 185 Pa. 617.

      Wm. B. ¡Rodgers, with him W. JE. ¡Newlin, for appellee,
    cited: Finnerty v. Burnham, 205 Pa. 305.
    November 4, 1904 :
   Per, Curiam,

The judgment is affirmed on the opinion of the court below.


author: Pee Cubiam,

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

      Public officers—Petroleum inspector—Appointment—Act of May 15, 1874, P. L. 189—Municipalities.

    The Act of May 15, 1874, P. L. 189, entitled "An act to provide for the better security of life and property from the dangers of coal and petroleum oils,” confers upon courts of common pleas the power to appoint petroleum inspectors with the proviso that “ in any county wherein is situate a city of more than 300,000 inhabitants, in such case .... the appointment of inspector shall be made by the mayor of said city.” Held, that the act is to be construed to apply only to those cities which answered the description at the time of the passage of the act.
    Argued Oct. 25, 1904.
    Appeal, No. 94, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1903, No. 393, on demurrer to petition for quo warranto in case of Commonwealth ex rel. William Shore, Jr.,v. John Bradley.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrbzat, Potter and Thompson, JJ.
    Affirmed.
    Demurrer to petition for quo warranto.
    The court filed the following opinion :
    The relator claiming to be lawfully appointed inspector of petroleum in Allegheny county, has filed a suggestion for a quo warranto against the defendant, John Bradley, who is in actual possession of that office, and to the answer of Bradley the relator has demurred.
    The question of law upon which the whole case is to be determined arises upon the proper construction and the validity of an Act of assembly of May 15, 1874, P. L. 189, which forbids the sale of refined petroleum unless the same shall have been subjected to a certain fire test, and that fire test shall be determined by an inspector, and that said “ inspector shall be appointed by the courts of common pleas, one in each county in the commonwealth, wherein said burning oils or fluids as before mentioned are manufactured; provided that in any county where there shall be more than one court of common pleas the said appointment shall be made by court No. 1 in said counties, and in any county wherein is situate a city of more than 300,000 inhabitants, in such case, in lieu of court No. 1, the appointment of inspector shall be made by the mayor of said city,” and then provides a penalty for sales made in contravention of the act.
    The defendant claims the office under an appointment made January 10, 1903, by the court of common pleas No. 1 of the county of Allegheny. The relator claims it by an appointment made May 9, 1903, by the mayor of the city of Pittsburg, and it appears from the pleadings that in the county of Allegheny, there is situate the city of Pittsburg, a city containing more than 300,000 inhabitants. It is not alleged that there is not in said county of Allegheny another city or cities containing that number of inhabitants. At the time of the appointment of defendant, there was no officer known as mayor of the city of Pittsburg, the chief executive officer of that city being at that time designated as city recorder under the provisions of the Act of March 7, 1901, P. L. 20, which act abolished the office of mayor in that city. The Act of April 23, 1903, P. L. 284, is entitled “ an Act changing the title of the chief executive officer in cities of the second class from City Recorder to Mayor.” The body of the act follows the title, adding, however, “ But this shall in no way change the power or duties pertaining to such office or offices.”
    At the time of the passage of the act in question, there was but one county in the state in which was situate a city of more than 300,000 inhabitants, and that city was coterminous with the county. There wei'e two counties in which there were more than one court of common pleas, axid the constitution provided for the erection of other courts of common pleas by the legislature from time to time. The proviso in question directs that in axiy county where there shall be more than one court of common pleas, the appointment shall be made by court No. 1, and in any county “ wherein is situate ” a city, etc., it shall be made by the mayor. While it is no doubt true that generally words in the present tense used in provisions such as those of this act are ordinarily to be interpreted to include the future or to speak as of the time when the application of the act is called for, yet if such interpretation would give rise to anomalous situations such as could not have been in contemplation of the legislature, and the words are fully suited by application to the state of affairs existing at the time of the passage of the act, we are of the opinioxi that it is not necessary or proper to interpret thexn so as to produce such results. It is plain that as the city of Pittsburg is by no means coterminous with the county of Allegheny, and that county, in fact, contains another large city of the same class, and a third city, which with the addition of contiguous territory may at any time be raised to that class, and contains a great number of inhabitants, that it is quite possible there may be two or even three cities in the county of Allegheny answering the description of the proviso. How, under the relator’s contention, an inspector of petroleum could be appointed with two or three cities of the required size in existence is not very obvious, and the sale of petroleum in the county of Allegheny would therefore be entirely prevented. Considering these circumstances, and the fact which we think is entitled to considerable weight, that the legislature has used the words “shall be” in reference to the courts of common pleas and the word “ is ” in reference to the city of 300,000 inhabitants in the same sentence, we are of opinion that the proviso as to the appointment by the mayor of the city is to be confined to those cities which answered the description at the time of the passage of the act, and does not, therefore, apply to the county of Allegheny, which, so far as appears by the pleadings, contained no such city at the time of the passage of the act. W e deem it unnecessary, therefore, to discuss the other questions raised on the argument.
    The demurrer is therefore overruled and judgment is entered for the defendant with costs.

      Error assigned was the judgment of the court.

      George H. Calvert, with him W. B. Rodgers, for appellant,
    cited: Lloyd v. Smith, 176 Pa. 213; Kilgore v. Magee, 85 Pa. 401.

      E. H. Stowe, with him E. E. Cotton, for appellee,
    cited : Com. v. Patton, 88 Pa. 258; Com. v. Erie & N. E. R. R. Co., 27 Pa. 339.
    November 4, 1904 :
   Pee Cubiam,

It is not necessary to consider the question whether at the time of defendant’s appointment by the court of common pleas, No. 1, the chief executive of the city of Pittsburg, though called the recorder, had the power of appointment conferred by the act of 1874 on a mayor, or if he had not at that time, whether such power was conferred or revived by the Act of April 23, 1903, P. L. 284, restoring the title of mayor, and on these questions we express no opinion.

No construction of the act suggested is free from difficulty but that given to it by the court below, as intended to apply only to the city fitting the description at the time of its passage, in other words, that .the act, though informal in that respect, was intended as a classification of cities with reference to public officers exercising a function of the police power of the state seems most in accord with the general intent of the legislature, and the judgment is affirmed on that portion of the opinion of the court below.

Judgment affirmed.


text:
    Heuber v. Consolidated Traction Company, Appellant.

      Negligence—Street railways—Wagon on track—Contributory negligence— Evidence—Question for jury.

    In an action against a street railway company for damages for personal injuries, it appeared from the plaintiff’s proofs that prior to the accident plaintiff was driving on the left side of a street on which the defendant operated a double track railway. Meeting an oil wagon, he was obliged by the rule of the road to turn to the right, and accordingly pulled on to the first track. Before he had fully passed the oil wagon he saw a car on the same track as he was, apparently coming toward him, and at the same time looked and saw a car on the second track also coming towards him, but in the same direction that he was going, coming slowly and farther off than the other car. Thereupon he continued to pull to the right to get on the right side of the street, but before he had got quite clear of the second track his hind wheel was caught by the car following him, and the accident occurred. Held, that the case was for the jury, and that a verdict and judgment for the plaintiff should be sustained.
    Argued Oct. 25, 1904.
    Appeal, No. 102, Oct. T., 1904, by defendant from judgment of C. P. Nó. 8, Allegheny Co., Feb. T., 1900, No. 712, on verdict for plaintiff in case of Michael Heuber v. Consolidated Traction Company.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Pottbb and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,122. Defendant appealed.

      Errors assigned, among others, were in refusing binding instructions for defendant.

      William A. Qhallener, with him Clarence Burleigh and James C. Gray, for appellant.

      E. H. Break, with him Edward B. Vaill, for appellee.
    November 4, 1904:
   Per Curiam,

Plaintiff on the left side of Atwood street as he was driving was obliged by the rule of the road to turn out to the right when he met the oil wagon, and accordingly pulled onto the first track. Before he had fully passed the oil wagon he saw a car on the same track as he was, apparently coming toward him, and at the same time looked and saw a car on the second track also coming towards him but in the same direction that he was going, coming slowly and farther off than the other car. Thereupon he continued to pull to the right to get on the right side of the street, but before he had got quite clear of the second track his hind wheel was caught by the car following him and the accident occurred.

This is his own version and the other testimony does not make the situation much clearer. He might have turned to the left again to get back to the side of the street he had been on, but whether he should have done so depended on whether he was sufficiently clear of the oil wagon, and on the danger from the car approaching on the first track. The distance he had to go in crossing the second track was not much greater and the car on that track was further off. He was evidently paying attention to his duty and it is not so clear that he could have done any better, as to justify the court in saying that he was negligent. That was for the jury.

Judgment affirmed.


text:
    Hunter v. Baxter.

      Deed—Husband and wife—Evidence—Presumption.

    A deed of real estate to a married woman in the absence of proof that it was made as a gift to her, or that it was paid for out of her separate estate will be presumed to have been made in the interest of her husband, and the real estate will be subject to the claims of her husband’s creditors.
    Argued Oct. 25, 1904.
    Appeal, No. 126, Oct. T., 1904, by Margie Gaertner, from decree of O. P. No. 1, Allegheny Co., Sept. T., 1903, No. 766, on bill in equity in case of David Hunter v. A. B. Baxter et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Brown, J., filed the following opinion:
    Upon August 12, 1903, David Hunter filed a bill of equity against A. B. Baxter for the specific performance of a contract, for the sale and conveyance, by the former to the latter, of a lot of ground in the twentieth ward of the city of Pittsburg. The defendant in his answer admits the contract and declares his willingness to carry it out, but alleges by way of defense that plaintiff’s title is not a marketable one in fee simple, as called for by the contract—in this, that there is an outstanding title in Frederick Gaertner and Margie Gaertner, his wife.
    In order that this outstanding title might be determined in this proceeding, the defendant on September 23, 1903, filed a cross bill against the Gaertners and said plaintiff in the original bill.
    To the cross bill the plaintiff in the original bill filed a demurrer and the Gaertners an answer; and thereafter on November 23,1903, at the written direction of counsel for plaintiff and defendant, the cause was ordered down on the argument list and heard on bill, answer and the other pleadings.
    The answer to the cross bill is exceedingly lengthy, much of it a repetition of the subject-matter of prior bills in equity that had been adjusted by decrees and settlements referred to in the pleadings; and all of the matters set out in the answer to the cross bill are matters that might have been and should have been raised by the Gaertners—for they have asserted no reason why they were not raised by them by intervenor or otherwise— in the proceedings at No. 230, May Term, 1901, brought by W. L. Sloan for use of David Hunter against William S. Robinson, with notice to N J. P. Yost, terre-tenant—being a foreclosure of the $22,000 purchase money mortgage given by William L. Robinson to W. L. Sloan, dated July 28, 1900, and recorded in the recorder’s office in mortgage book 1106, page 26; upon which judgment was obtained April 6, 1901, and subsequently thereon upon lev. fa. 66, May Term, 1901, property sold to David Hunter, to whom sheriff’s deed was executed and delivered.
    The alleged property interest of Mrs Gaertner arose after the execution of said $22,000 mortgage and long prior to the foreclosure at No. 230, May Term, 1901, and was divested by the sale under said mortgage.
    Presumptively any interest she had in the property was the interest of her husband and subject to seizure aud sale by his creditors (Jack v. Kintz et al., 177 Pa. 571)—for she has not alleged that she had any separate estate as a basis of ownership in her own right.
    The Gaertners are barred from asserting any title or interest in the realty in controversy, because (a) presumptively their interest, whatever it was, was solely that of the husband (Jack v. Kintz et al., 177 Pa. 571); (5) without allegation to the contrary the defense made by them was the subject-matter in part of the bills in equity filed by Frederick Gaertner against W. L. Sloan, and the sole defense might have and should have been set up in said proceedings foreclosing the $22,000 mortgage. True, they were not parties to that foreclosure, but in the light of their allegation that said foreclosure was in bad faith and for the purpose of defrauding them, they must have had knowledge of the suit in time to intervene and defend— presumptively must have had knowledge of it, for they do not allege the contrary; (c) the charges of fraud, so far as affecting David Hunter, are not specific in form, are vague and indefinite, and wholly insufficient, aud the remedy upon the charges of fraud against other persons who are not parties to the bill—as to said other parties—is not through the present bill.
    From these conclusions it follows :

      (a) That the Gaertners have no right or interest in the real estate in controversy or in its proceeds, so far as affecting David Hunter and A. B. Baxter.

      (by That the sole legal title in fee simple is in David Hunter, and that a deed of conveyance from him to said A. B. Baxter, in accordance with the terms of the written agreement between them, dated July 1, 1903, will vest a good, marketable and indefeasible title in fee simple clear of all incumbrances.
    In accordance with this opinion let a decree nisi be drawn and entered for specific performance of the contract.

      Error assigned was the decree of the court.

      W. A. Hudson, with him James Fitzsimmons and Joseph Howley, for appellant.

      J. 8. Ferguson, with him E. Gr. Ferguson, for appellee.
    November 4, 1904:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.