author: Mr. Justice Stewart,

text:
    Anders, Appellant v. Philadelphia.

      Municipalities — Municipal contract — Conspiracy—Competitive bidding — A ccounting — E quity.

    1. On a bill in equity by tax payers against a city, certain of its officers, and a municipal contractor, to declare a contract void because it was the product of an unlawful combination entered into with the view to prevent competitive bidding, and for an accounting from the contractor, the prayers of the bill cannot be granted where the court finds as a fact based on sufficient evidence, that there was no improper understanding among the bidders, and that the close approximation in the bids showed that there was competitive bidding in fact; and such prayers will be refused although the court finds as a fact that the contractor failed to comply strictly, or fully with the requirements of the contract, that this failure was known to the officers of the city, and that it was not expected or contemplated by such officers when the contract was awarded that there would be a strict and literal compliance by the successful bidder, whoever he might be, with all the requirements of the contract. The fact that there was such an understanding on the part of the city officers is not evidence of an unlawful combination to defeat competitive bidding.
    2. The complainants in such a bill have no standing to demand an accounting of the contractor of moneys which he received for work which he had not done. Such an accounting can be required from him only by the city itself.
    Argued Jan. 12, 1912.
    Appeal, No. 241, Jan. T., 1911, by plaintiffs from decree of C. P. No. 4, Phila. Co., Dec. T., 1910, No. 807, on bill in equity in case of Howard S. Anders et al. v. City of Philadelphia. John E. Reyburn, Mayor of the City of Philadelphia, John M. Walton, Controller of the City of Philadelphia, George R. Stearns, Director of the Department of Public Works of the City of Philadelphia, Wm. R. Benson, Chief of the Bureau of Highways of the City of Philadelphia, John Virdin, Chief of the Division of Street Cleaning of the Bureau of Highways of the City of Philadelphia and Edwin H. Yare.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Míoschzisker, JJ.
    Affirmed.
    Bill in equity to declare a contract void and for an accounting.
    Willson, P. J., filed an opinion in which he found the facts and law as follows:
    FINDINGS OF FACT.
    a. The contract was entered into between the defendant Yare and the City on the 18th day of February, 1910. After due advertisement, it had been awarded to him on the 7th day of December, 1909. It called for work to be done from the first of January, 1910, until the end of the same year, and work was done under the contract from the date of its execution. Work was also done between January 1st and February 18th, which the defendants have treated as covered by the contract.
    b. In competition for the contract four bids were presented to the City in response to the advertisement asking for such bids. The bidders were Peoples Brothers, Mack Paving and Construction Company, David McMahon, and the defendant E. H. Yare. Vare, to whom the contract was awarded, was the lowest bidder. We are not able to find anything in the proofs which would warrant us in reaching a conclusion that these bids, or any of them, were collusive as between the bidders and Vare.
    c. The contract and specifications called for the doing of work which has been substantially detailed in the second section of the previous recital of the plaintiffs’ bill. It does not seem to us that there would be any advantage in a repetition of what is therein set forth. We are satisfied by the proofs, and we find that, in numerous respects, which we need not now detail, but which will be set forth more fully in our answers to the plaintiffs’ requests for findings of fact, the contractor Vare failed to comply strictly or fully with the requirements of the contract. And we further find that his failure fully to comply with the provisions of the contract must have been known, and, in point of fact,, was known to the officers of the City who had supervision over the work which the contractor had agreed to do.
    d. We further find, as a fair deduction from the proofs, and particularly from the previous experience of the City officers with the carrying out of contracts relative to the same subject-matter, that, at the time when bids for the work in question were asked for, and also at the time when the contract was awarded to Vare, it was not expected or contemplated by those officers that there would be a strict and literal compliance by the successful bidder, whoever he might be, with all the requirements of the contract.
    e. At the same time we are not able to find in the proofs sufficient reason for holding and finding that there was any real combination or conspiracy or collusion between the officers of the City and Vare, either in the awarding of the contract to him, or in the manner in which he carried out or was allowed to carry out the provisions of the contract. Upon this particular point, a crucial one in the case, we may be permitted to enlarge somewhat and to express our views with some elaboration.
    The whole subject of contracts for the cleaning of streets is attended with many inherent difficulties. This has been demonstrated in the history of this and other municipalities. There may be no impropriety in its being said that when, many years ago, the writer of this adjudication was connected with the Law Department of the City, questions arose and were brought before the courts involving the practical possibility and propriety of a strict interpretation and enforcement of various provisions in contracts for the cleaning of streets. The difficulties connected with such a severe standard of requirement then necessitated some laxity of construction, and any practical method of dealing with the subject matter is likely to make it necessary that a certain amount of flexibility and the exercise of a good honest judgment shall be permitted in the enforcement of contracts of the nature referred to. The object to be attained in the making of such contracts is, of course, the cleaning of the streets, and the doing of such other work as is incidentally connected therewith. That is the main end to be had in view, and officers of the City who supervise such work would naturally keep it in mind. Whether or not a form of contract for the work of cleaning streets could be devised which would enable the desired object to be attained without holding the contractor to the furnishing of any particular number of implements or of men or of day’s work, is a question thát we need not now discuss. When the contract contains specific provisions . such as are embraced in the contract now in question there can be no doubt thát it is the duty of the City officers to require a substantial performance of those provisions. We are far from holding that the contract obligations can be ignored or disregarded. The pertinence of what we have referred to, however, is this, that it is not unnatural thát municipal officers entrusted with the supervision of the cleaning of streets should look mainly to the ends to be accomplished, rather than to the particular means employed for the purpose of reaching those ends. It may and must be said also that, unless proofs before the court compel a conclusion that municipal officers entrusted with the supervision of the cleaning of the streets were influenced, not by the general purpose of obtaining clean streets, but by a desire to favor a contractor and relieve him of work which he was bound to do under his contract, then a court ought not to find such officers guilty of an improper and illegal confederation in the nature of a conspiracy. We find nothing in the circumstances connected with the awarding of the contract to

      Vare which would justify the thought that there was any collusion between the City’s officers and him in regard thereto. It was doubtless the fact that Vare had a plant or appliances whereby the work of street cleaning could be done, and that other bidders probably were not so well situated and therefore could not bid to the same advantage. It is also true that this disparity might have been overcome if the bids had been asked for at an earlier date than that at which, in point of fact, they were requested. At the same time, it should be said not only that other bids were made for the contract in question, notwithstanding the disadvantage of position, but that the time of the asking for bids had been for many years customary with the City authorities. Unless we should be disposed to put an unfavorable constuction on such a state of affairs merely for the sake of reaching a conclusion derogatory to the City’s officers, we would not be justified in adopting that construction. At the same time, it is proper for us to say that there seems to be no reason why, in all such cases, and in cases of a similar character, bids could not be asked for at a period of time when, to the advantage of the city as well as for the convenience of the bidders, all bidders would have an opportunity to bid intelligently and to equip themselves with the necessary appliances to carry out any contract which might be awarded to them.
    As to the performance of the contract by Vare after it was awarded to him, notwithstanding we have already found, as our conclusions from the proofs, that he failed substantially to comply with the provisions of his contract, in its details and particular obligations, yet we are unable to find sufficient ground to sustain the plaintiffs’ contention that this failure on his part was either the result-of a previous understanding or collusion with the officers of the city, or was permitted by reason of any such understanding or collusion. We by no means question the accuracy of the proposition that a conspiracy or combination of the nature referred to may properly be inferred from a series of significant acts or omissions which naturally and necessarily lead to the conclusion that the acts or omissions constituting or evidencing the violation of a contract were the result of an actual understanding and agreement between the contractor and those entrusted with the supervision of his work, that such acts or omissions should be allowed without objection and without abatement of compensation by reason of his failure to do work that ought to have been done. In every case where such a question arises, it becomes necessary for the tribunal hearing the case to exercise a candid and intelligent judgment as to whether the facts developed in the case warrant a conclusion that the alleged collusion existed. We have endeavored to apply such a judgment to the proofs in this case. Notwithstanding we are of the opinion that there were serious departures on the part of the contractor from a strict and full compliance with the specific provisions of his contract, and that these must have been known, and should have been the subject of proper treatment, by the City’s officers, we still are unable to find that these officers were in a guilty combination or conspiracy with the contractor. In this connection, it must be borne in mind that the question before us is not to be settled by any views which we may have as to the sufficiency of the work done by the contractor to keep the streets clean, or as to the full fidelity and efficiency of the officers of the City in supervising the work of the contractor, or as to the manner in which the contractor performed his work, or even as to whether or not, if he had strictly complied with the terms of his contract, he would have made or lost large sums of money. The simple and single questions now under consideration is whether or not the proofs in the case ought to lead us to the conclusion that there was an agreement or combination between the contractor and the supervising officers of the City whereby he should be favored and allowed to draw money under the contract without doing the work which would justify the payment to him of the money received by him. The affirmative of this question was assumed by the plaintiffs when they filed their bill, and it was incumbent upon them to establish it by sufficient proofs before we can properly be asked to sustain their position.
    f. We find it to be true, although the contract in question was awarded to Vare on the 7th of December, 1909, that he did not, in point of fact, receive or enter into the formal contract until the 18th day of February, 1910, and, therefore, that whatever work he did between January 1st and February 18th of that year was done without any formal or written contract having been entered into for the doing of such work.
    FINDINGS OF LAW.

      (а) In view of our findings of fact as they have been hereinbefore set forth, it requires but few words to state our conclusions as to what is the legal position of the parties, with reference to that portion of the plaintiffs’ case which claims that the contract in question was null and void because it was either entered into or carried out under collusion and fraudulent combination with the City’s officers. It having been our conclusion that no such collusion or combination existed, no legal question of that nature arises, and we, therefore, find that the plaintiffs’ bill cannot be sustained upon any such ground.
    (б) So far as the plaintiffs’ case is based upon a claim that the contractor, Vare, failed to comply with his contract to do the work called for by the specifications, and, therefore, that he is bound to account for and repay to the City the moneys which were received by him from the City for the work which he ought to have done under the contract, we deem it sufficient to gay that in our judgment the plaintiffs have no standing to require the contractor to render any such account. If it were within the power of taxpayers in all cases wherein it might be claimed that a contractor had failed to comply with the provisions of his contract, to come into court and cause the matter to be investigated, and, in case of default of performance, to require the contractor to render such an account as is called for in this case, the affairs of the City would be thrown into endless confusion, and the proper functions of the municipal officers would, to a large degree, be devolved upon and assumed by the courts. We regard the municipal authorities as the repository of all the power that is needed to deal with such questions, as a general rule. A gross violation of duty might be sufficient ground for impeachment or prosecution. However that may be, the supervision of work done under municipal contracts and the making of payments for work done under them, in the absence of fraud of a character which would justify the interference of a court of equity, must be left to those who by law are entrusted with the responsibility over those matters.

      (c) In determining whether the contractor had a right to demand payment for work done from January 1st to February 18th, 1910, we must follow the views which have been expressed by this Court in cases recently decided and, particularly, in the case of Bullitt v. Philadelphia, 19 Pa. D. R. 1091.
    We have held that it is essential to the making of á valid contract between the City and a contractor that not only must a previous appropriation of the moneys necessary to pay the contractor for the work to be done by him have been made, but, also, that the contract itself must have been executed according to the requirements of the Act of June 1, 1885, P. L. 37.
    In the case in hand, the second of these necessary elements was entirely wanting, until the 18th day of February, 1910. Therefore, all the work done by Yare before that date must be regarded as having been done in the absence of a contract. For that reason, he had no right to demand payment for such work from the City, as a matter of legal obligation. It appears from the proofs that the contractor has received from the City a payment which was intended by the officers through whom the payment was made to cover the work done by him during the period in which no formal contract existed.
    That payment, however, was unauthorized by law, and must be accounted for by the contractor in the final settlement for the work of the year under the terms of the contract. It does not seem to us that, in that regard, it makes any difference whether the obligation to pay the contractor was entire or severable. So far as the payment for work done between January 1st and February 18th is concerned, the contract finally executed has no relation to the payment, for that contract was not in existence during that period. There is, therefore, no force in the argument that the plaintiffs are estopped from objecting to that payment, on the ground that it was made upon the basis of a certificate from the Director of Public Works that the work was done and the money due. Any such certificate was given without authority and had no effect, under the provisions of the contract as it was executed; We must regard all payments made as applicable only to work done after the contract was entered into, viz., after February 18th, 1910. The defendants contend that we should not adopt this view because of laches or delay on the part of the plaintiffs in objecting to the payment made, but we do not regard the point as well taken. There is nothing in the proofs to show that the plaintiffs had any knowledge that Yare was doing work in the absence of a contract, and, therefore, no duty or obligation rested upon them to move promptly, if they desired to move at all. We do not regard the present case as ruled by our decision in the case of Sheppard v. Philadelphia, 17 Pa. D. R. 636.
    It follows, therefore, that in the decree which shall be made in the present case, it must be ordered that the amount paid to Vare for work done in the year 1910, prior to February 18th, shall be treated as having been paid for work lawfully done under the contract, that is, for work done after the date last mentioned.
    Complainants filed the following exceptions':
    “1. The learned Court erred in finding as follows:
    'E. At the same time, we are not able to find in the proofs sufficient reason for holding and finding- that there was any real combination or conspiracy or collusion between the officers of the City and Vare, either in the awarding of the contract to him, or in the manner in which he carried out or was allowed to carry out the provisions of the contract.’ ” [1]
    10. “The learned Court erred in its answer to the fifty-seventh request for findings of fact by the plaintiffs, which request and answer were as follows:
    '57. The contract in suit was the result of an unlawful combination between the contractor and the officers of the City to defeat the provisions of law relative to competitive bidding.
    Answer: We decline to affirm this request.’ ” [2]
    “17. The learned Court erred in its answer to the fourteenth request for findings of law by the plaintiffs, which request and answer were as follows:
    '14. The contract in suit is void because it was the result of an unlawful combination between the contractor and officers of the City, to defeat the statutes relative to competitive bidding.
    Answer: Declined.’ ” [3]
    “19. The learned Court erred in not restraining defendant City from making further payments to the defendant Vare, as prayed for in the second prayer of the bill.” Answer: Declined [4]
    “20. The learned Court erred in not requiring defendant Vare to account for the sums of money illegally received by him and to pay the same into the City treasury, as prayed for in the third prayer of the bill.” Answer: Declined. [5]

      Errors assigned were (1-5) in dismissing complainant’s exceptions as above.

      Thomas Raeburn White, for appellants.
    The evidence was sufficient to establish a conspiracy: Com. v. Sanderson, 40 Pa. Superior Ct. 416; Com. v. Snyder, 227 Pa. 346; Nelson v. New York City, 131 N. Y. 4 (29 N. E. Repr. 814).

      Francis Shunk Brown, of Simpson, Brown & Williams, with him John O. Bell and James Alcorn, city solicitor, for appellees.
    The plaintiffs’ right to a decree cannot rest upon mere alleged breach of a contract, or upon a variation in the manner of performance consistent with good faith: Brown v. Philadelphia, 17 Phila. 298.
    Plaintiffs are met by the weighty presumption of honesty, the presumption of fidelity on the part of the public officials, and the presumption in favor of the award of an arbitrator: Clark v. Pittsburgh, 217 Pa. 46; Payne v. Roberts, 214 Pa. 568; Hostetter v. Pittsburgh, 107 Pa. 419; Com. v. Philadelphia, 211 Pa. 85; Com. v. Pittsburgh, 204 Pa. 219; Com. v. Pittsburgh, 206 Pa. 379; Com. v. Mitchell, 82 Pa. 343; Findley v. Pittsburgh, 82 Pa. 351; Douglass v. Com., 108 Pa. 559.
    The bill alleges a conspiracy and this must be proved in order to sustain the plaintiffs’ position.
    In the case of Ballantine v. Cummings, 220 Pa. 621, there is no basis for the charge that the specifications prevented competitive bidding: Filbert v. Philadelphia, 181 Pa. 530; Pittsburgh Terra-Cotta Lumber Co. v. Sharp, 190 Pa. 256.

      February 19, 1912:
   Opinion bx

Mr. Justice Stewart,

The plaintiffs, residents and taxpayers of the city of Philadelphia, sought by bill in equity to restrain further payments under a contract between the city of Philadelphia and Edwin H. Vare, one of the defendants, by which Vare for the consideration of $1,299,000, undertook to clean the streets of the city during the year 1910 in accordance with the specifications recited in the contract, on the ground that the contract had been let as the result of a collusive understanding that Vare was not to be required to do all the work specified in the contract; that he was to be permitted to disregard the specifications without incurring the stipulated penalties, and was to be allowed to receive the entire amount of his bid regardless of the amount of work by him performed; that the purpose of such collusive understanding was to prevent competitive bidding and that such had been its effect. It was charged that Vare had performed less than one-half the work required under the contract and specifications; that notwithstanding, he had been paid ratable monthly installments, excepting for the month of December, on the full amount of his bid; that the stipulated penalties had not been enforced against him, and generally, that the contract was null and void because let pursuant to a conspiracy entered into to cheat and defraud the city. In the separate answers filed by the city and by Vare, the material averments of the bill were specifically denied, and issue was accordingly joined therein. The record before us is voluminous, but we are spared the labor and examination of the evidence by the admission on part of the appellants that the‘findings of the learned chancellor who heard the case correctly exhibit it on its facts. The ease has been submitted on these findings, and the only contention made is that it results- from the findings, as an inevitable inference, that the contract with Vare was the product of an unlawful combination entered into with a view to prevent competitive bidding, and that the chancellor erred in his conclusion therefrom that the proofs were not sufficient to warrant him in finding that there was no real combination or conspiracy to this end. We deem it unnecessary in this connection to do more than indicate in a brief way the special findings on which the appellants rely, since, however important the facts established might be in an action by the city against the defendant Vare, as we view the case, they are without controlling significance in connection with the one governing question which is squarely raised in the assignments of error. The special findings may be thus briefly summarized. There was failure on Vare’s part to comply strictly or fully with the requirements of the contract; the officers of the city had knowledge of such failure as the work progressed through reports made to them by the Inspector; there was like failure by Vare and like knowledge by the officers of the city with respect to similar contract for the year 1909; strict compliance with the specifications. in the contract of 1910 would have resulted in the loss of a very large sum of money to the contractor, amounting in all probability to more than a million dollars, and possibly to over two millions; seven thousand dollars was exacted of Vare in the way of fines for violation of specifications during 1910; when Vare submitted his bid he knew that to perform the work in accordance with the specifications at the price bid by him would necessarily result in serious loss to himself; when the contract was awarded, the main object the officers of the city had in view was the proper and sufficient cleaning of the streets during the year, and they did not expect the specifications of the contract to be strictly and in all details carried out by the contractor; the daily reports of the contractor of men and machines, employed by him were largely in excess of the actual number of men, and machines actually employed. The contention on part of appellants is two-fold; first, that applying to these facts “the interpretation consistent with ordinary human action and common sense, there is an inevitable inference that there was an understanding between the officers of the city and the contractor, when the contract was awarded, that the contractor would not be required literally to obey the specifications and would not be fined for disobedience of them;” and second, “if there was such understanding, it would amount to an unlawful combination to defeat the statutes requiring competitive bidding.” The first proposition is too plain for discussion, and is conceded; but that the second results as a conclusion from the first is clearly a non sequitur, as the facts in the case abundantly show. Nothwithstanding the above facts relied upon by appellants, we have this distinct and unchallenged finding by the chancellor: “In competition for the contract four bids were presented to the City in response to the advertisement asking for such bids. The bidders were People Brothers, Mack Paving and Construction Company, David McMahon, and the defendant E. H. Vare. Yare, to whom the contract was awarded was the lowest bidder. We are not able to find anything in the proofs which would warrant us in reaching a conclusion that these bids, or any of them, were collusive as between the bidders and Yare.” If we refer to the testimony we find nothing to impeach the correctness of this finding, but on the contrary much to support it. Conceding, as we must in the absence of evidence to the contrary, that these unsuccessful bidders were responsible parties, the burden rested upon appellants to show that they all participated in the alleged fraudulent collusion, and submitted their bids, not in good faith, but upon a fraudulent understanding that in any event the contract was to be let to this defendant. The fact that Yare had an understanding with the city officials that compliance with the specifications would not be required by him, however much this would be a departure from plain business principles, and expose tbe officials to suspicion and censure, would not show conspiracy to defeat competitive bidding in any such conclusive way as tbe law requires, except as it further appeared that in this respect Yare was advantaged over the others. If all alike bid on the same terms and with the same understanding, irregular and unbusinesslike as the transaction would be, it would lack the essential element of fraudulent conspiracy to defeat competition between bidders. Not only is there an absence of any finding that Vare bid with any understanding that the others did not have, but the close approximation in the bids would seem to indicate that each had been governed in making his bids by the same considerations which influenced the others. The defendant’s bid was $1,299,000, another was $1,350,000, another $1,403,000, while the fourth and highest exceeded the lowest by $200,000, which, as explained, included the cost of assembling a plant with which to do the work. Can it be possible that these bids were made in any different terms than those given to Vare? If they were — and here we exclude collusion because the finding of the court acquits these bidders of that — then it follows that each was willing to undertake, just as Vare, to do work for the city which each knew would cost upwards of a million dollars in excess of what they were to receive therefor. To our mind this, to say the least, is most unlikely. It would be far more reasonable to infer that all alike understood that strict compliance with the specifications was not to be required. We have dwelt on this feature of the case because of its controlling significance. The third assignment of error, which includes the second as well, fairly and squarely raises the question we have been considering. What is there assigned for error is the refusal of the chancellor to hold that “The contract in suit is void because it was the result of an unlawful combination between the contractor and officers of the City, to defeat the statutes relative to competitive bidding.” In the proposition here expressed we have the whole of appellants contention concentrated. If, as there stated, the contract resulted from any such combination, it follows necessarily that the contract was corrupt and should have been declared void; but if this be not established, according to the measure of proof which the law requires in such cases, the contention must fail, for in that event the failure to perform the work required under the contract in the manner therein provided, becomes a matter between the municipality and the delinquent contractor, as to which the former alone can be heard to complain. For, as well said by the learned chancellor, “So far as the plaintiff’s case is based upon a claim that the contractor, Yare, failed to' comply with his contract to do the work called for by the specifications, and, therefore, that he is bound to account for and repay to the City the moneys which were received by him from the City for the work which he ought to have done under the contract, we deem it sufficient to say that in our judgment the plaintiffs have no standing to require the contractor to render any such account. If it were within the power of taxpayers in all cases Avherein it might be claimed that a contractor had failed to comply with the provisions of his contract, to come into court and cause the matter to be investigated, and, in case of default of performance, to require the contractor to render such an account as is called for in this case, the affairs of the City would be thrown into endless confusion, and the proper functions of the municipal officers would, to a large degree, be devolved upon and assumed by the courts. We regard the municipal authorities as the repository of all the power that is needed to deal with such questions, as a general rule. A gross violation of duty might be sufficient ground for impeachment or prosecution. However that may be, the supervision of work done under municipal contracts and the making of payments for work done under them, in the absence of fraud of a character which would justify the interference of a court of equity, must be left to those who by law are entrusted with the responsibility over these matters.” If there was competitive bidding without collusion on part of the bidders — and this we have seen is an established fact in the case — it follows that the letting of the contract to Yare, no matter what may have been the intention of Yare and the City officials in this regard, could not have resulted from such intention; in others words, if the purpose of the parties to the contract was to avoid competitive bidding, and that purpose failed in execution, the fraud contemplated could not have entered into the contract subsequently made. While the findings on which appellees rely are most pertinent to the inquiry before us, and while they are convincing that the ordinary safe-guards against fraud were utterly disregarded in the letting of this contract, yet, remembering that the one ground of challenge is conspiracy to prevent competitive bidding, it cannot be said that they are sufficient in themselves to establish the guilt of the parties so accused. In this connection we can do no better than repeat here what was said by the learned chancellor in his opinion: “It must be borne in mind that the question before us is not to be settled by any views which we may have as to the sufficiency of the work done by the contractor to keep the streets clean, or as to the full fidelity and efficiency of the officers of the City in supervising the work of the contractor, or as to the manner in which the contractor performed his work, or even as to whether or not, if he had strictly complied with the terms of his contract, he would have made or lost large sums of money. The simple and single question now under consideration is whether or not the proofs in the case ought to lead us to the conclusion that there was an agreement or combination between the contractor and the supervising officers of the City whereby he should be favored and allowed to draw money under the contract without doing the work which would justify the payment to him of the money received by him. The affirmative of this question was assumed by the plaintiffs when they filed their bill, and it was incumbent upon them to establish it by sufficient proofs before we can properly be asked to sustain their position.” It is to this feature of the case that we have confined the discussion. Our conclusion has already been indicated, and it only remains to state formally our concurrence in the-findings and conclusions of the learned chancellor.

The appeal is dismissed at cost of appellants, and the decree is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Anders v. Vare, Appellant.
    Argued Jan. 12,1912.
    Appeal, No. 160, Jan. T., 1911, by Edwin H. Vare, from decree of C. P. No. 4, Phila. Co., Dec. T., 1910, No. 807, on bill in equity in case of Howard S. Anders et al. v. City of Philadelphia, John E. Reyburn, Mayor, etc. et al. and Edwin H. Vare.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Appeal dismissed.
    Bill in equity. Before Willson, P. J.

      Francis Shunk Brown, of Simpson, Brown é Williams, with him John O. Bell, for appellant.

      Thomas Raeburn White, for appellees.
    February 19, 1912:
   Per Curiam,

To a suggestion by the appellants, duly filed, to the effect that the question sought to be raised by this appeal has become moot, the appellees make answer admitting the facts set out in the suggestion and consenting that the appeal be dismissed at the cost of appellant, Edwin H. Vare. It is accordingly so ordered.


author: Mr. Justice Mioschziskeb,

text:
    Leuten Brick Company, Appellant v. Killen.

      Contract — Written agreement — -Parol evidence — Affidavit of defense — Payment.
    1. In an action upon a written contract for goods sold and de- ' livered, an affidavit of defense is insufficient, which merely sets up a prior parol agreement at variance with it, without any offer to prove at the trial that the parol terms were omitted by fraud, accident or mistake.
    2. In such a case it is clearly insufficient for the defendant to aver'that he was too busy to read the written contract presented to him by the clerk of the plaintiff, and took the word of the clerk that it contained the agreement which the defendant had previously made with the plaintiff, without any averment that he could not read, or that he had no opportunity to read the paper before signing it, or that the clerk had outlined certain facts to him as contained in the paper which were not there, or did any other overt thing to mislead or deceive him.
    3. An averment in an affidavit of defense that the plaintiff “accepted” something in payment of its claim is the averment of a conclusion and as such is insufficient to prevent a summary judgment.
    Argued Jan. 15, 1912.
    Appeal, No. 308, Jan. T., 1911, by plaintiff from order of C. P. No. 5, Phila. Co., June T., 1911, No. 4650, discharging rule for judgment for want of a sufficient affidavit of defense in case of Leuten Brick Company v. James D. Killen.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    The opinion of the Supreme Court states the case.

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

      Henry A. Hoefler, for appellant.

      Leon E. Fols, with him Stanley Fols, for appellee.
    February 19, 1912:
   Opinion by

Mr. Justice Mioschziskeb,

The plaintiff sued upon a written contract under seal between it and the defendant, dated April 29, 1910. By the terms of this contract the plaintiff agreed to furnish bricks for a building operation of the defendant at stipulated prices, in quantities as ordered by the latter, and the defendant agreed, inter alia, to pay $2,400 in the form of six promissory notes dated as of the last delivery of the bricks and payable in ninety days thereafter, and to give as collateral six properties subject to certain mortgages, which properties were to be held in trust by a trust company, and in the event of the non-payment of the notes at maturity to be conveyed to the plaintiff as collateral security for the $2,400 debt. The plaintiff averred that the houses were so conveyed to its nominee and that subsequently, after notice to defendant, they were sold at public auction; but that instead of anything being realized from the collateral the settlement showed a deficit of $2,308.

The defendant filed an affidavit of defence in which he denied that the bricks were purchased under the aforesaid written contract, and averred that they were furnished in pursuance of an oral agreement made February 1, 1910, with Robert Paschall, general manager of the plaintiff company, whereby $2,400 of the account was to be paid by the conveyance to the plaintiff of the equities in the houses in question. The defendant in his affidavit admits signing the written contract sued upon, but attempts to evade his liability thereunder, by averring that his signature “was procured fraudulently through artifice and misrepresentation;” that “Sometime in June, 1910, after the plaintiff had entered upon the performance of its oral contract, and a large part of the brick work of the operation had been completed, for which it had supplied all the bricks under said contract, one Mr. Wallace, a clerk in the employ of the plaintiff corporation, called on the defendant .....and stated that be bad a paper ..... wbicb tbe Company wished bim to sign. Tbe defendant at tbe time was busily engaged in a matter with one of bis foremen wbicb preoccupied bis mind, and requested that tbe paper be left with bim, and that if it was all right tbe defendant would sign it and return it to bim tbe next day. Thereupon Wallace told tbe defendant that tbe paper in question simply contained tbe arrangement and agreement be bad made with Pascball and that tbe company would like to have it in tbe shape of a writing so that it might be filed away for future reference. Upon tbe faith of this explanation as to its contents, tbe defendant attached bis signature to tbe paper.....without reading it or having it read to bim. Tbe defendant avers that be executed tbe said agreement in tbe manner and under tbe circumstances stated, upon tbe faith and in tbe belief that tbe statement made by William Wallace was true, that he never would have signed said agreement if tbe contents thereof bad been correctly stated to him;” and, “That afterwards, upon completion of tbe operation, tbe defendant procured a conveyance to be made of tbe premises ..... to Edward Atkins, president of tbe plaintiff corporation, wbicb requested tbe conveyance to be made to said Atkins instead of to tbe plaintiff. Tbe defendant averred that the plaintiff accepted tbe said conveyance in full payment of its claim of $2,400 under said contract and that said Edward Atkins now bolds, and that be has ever since held, tbe said premises for tbe benefit of the plaintiff.” Tbe Court below held tbe affidavit of defence sufficient and discharged tbe rule for judgment; from wbicb order tbe plaintiff has appealed.

A comparison of tbe written contract and tbe alleged oral agreement shows identical terms, except in tbe important particular, that by tbe former tbe properties were to be collateral for the $2,400, and according to the latter they were to be taken “in absolute payment thereof.” The defendant did not deny the delivery of the bricks or the correctness of the prices charged, but attempted to set up the defense that the bricks were not delivered under the written contract because that document was procured by fraud, and that the properties had been accepted by the plaintiff in full payment of the $2,400. The averments in the affidavit do not bring this case within Gandy v. Weckerly, 220 Pa. 285, and like cases, dealing with broken promises which served as inducements to the signing of written contracts. In substance the defense is' a clear attempt to impeach a written instrument by showing a prior parol agreement at variance with it, without a proper offer to prove that the parol terms were omitted by fraud, accident or mistake. The substance of the averment is simply that the defendant was too busy to read the written contract and took the word of a clerk that it “contained the arrangement and agreement which he had made with Paschall.” The defendant does not say that he could not read, that he had no opportunity to read the paper before he signed it, that the clerk outlined certain facts to him as contained in the papers which were not there, or did any other overt thing to mislead or deceive him. It was the duty of the defendant to read the paper before he signed it, and the mere general statement of the clerk as to its contents did not relieve him from this obligation or constitute such an inducing cause at the time of the execution of the contract as would bring this case within the line of authorities to which we have adverted. It may well be that the paper, according to the understanding of Paschall, did represent the agreement which the defendant had made with the plaintiff, and, in the absence of the averment of facts showing or tending to show fraud, accident or mutual mistake, the defendant, by placing his signature to the paper, must be held to have adopted that understanding as his own, and prior oral agreements were merged in the written contract: Greenfield’s Estate, 14 Pa. 489; Penna. R. R. Co. v. Shay, 82 Pa. 198, 203; Hicks v. Harbison-Walker Co., 212 Pa. 437, 441; Rinker v. Ætna Life Ins. Co., 214 Pa. 608, 611; Waslee v. Rossman, 231 Pa. 219, 231; Bright v. Siggins, 2 Pa. Superior Ct. 106; Lewis v. Dunlap, 5 Pa. Superior Ct. 625; Youngstown Electric Light Co. v. Poor District, 21 Pa. Superior Ct. 95; Schmitz v. Roberts, 26 Pa. Superior Ct. 472.

The averment “that the plaintiff accepted the said conveyance in full payment of its claim of $2,400” is materially faulty in that it fails to state any date or particulars; to say that one “accepted” something in full payment, is merely to aver a conclusion. If the defendant desired to stand upon this defense, it was his duty to give the facts upon which it was based, so that the Court might determine whether such facts, if proved, were sufficient to justify the conclusion. The conveyance referred to by the defendant is evidently the same one which the plaintiff avers, and which the written contract shows, to have been a transfer of the properties as collateral. Under the circumstances we feel that the affidavit of defense was insufficient and that the judgment should have been entered for the plaintiff.

The assignment of error is sustained, and the record is remitted to the court below with directions to make the rule absolute and enter judgment for the plaintiff.


text:
    Knight’s Estate.

      Trusts and trustees — Active trust — Absence of limitation over.

    A gift by will of a share of the estate of a testatrix to her executors in trust for her daughter, with a direction that “the income arising therefrom shall be paid to her my said daughter from time to time annually during the term of her natural life freed from the obligations and control of any husband she may have” with power in the daughter to dispose of her share by will, but without limitation over, creates an active trust for the daughter for life.
    Argued Jan. 15, 1912.
    Appeal, No. 295, Jan. T., 1911, by Harriet W. Knight, from decree of O. C. Phila. Co., Jan. T., 1911, No. 308, dismissing exceptions to adjudication in Estate of Sarah J. Knight, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Gummey, J.
    From the record it appeared that Harriet W. Knight claimed an absolute interest in a share of her mother’s estate under a clause in the mother’s will which was as follows:
    “One other equal third part or share of my estate shall be held by my said executors and the survivor of them, in trust for my daughter Harriet W. Knight, and the income arising therefrom shall be paid to her my said daughter from time to time annually during the term of her natural life freed from the obligations and control of any husband she may have. But my said daughter shall have power to dispose of her said share of my estate both principal and interest by any instrument in writing in the nature of a last will and testament.”
    The appellant was not married or in contemplation of marriage at the date of the will.
    The auditing judge disallowed the claim.

      Exceptions to the adjudication were dismissed.

      Error assigned was decree dismissing exceptions.

      J. H. Brinion, with him Wm. Meharg Lilly, for appellant.

      Alex. Simpson, Jr., with him Jere J. Crowley, for appellee.
    February 19, 1912:
   Per Curiam,

Nothing could be clearer than the intention of the testatrix that the shares of her son and daughter should be held in trust for them. Her direction is that a share of her estate be held by her executors, and the survivors of them, in trust for each of her children, the income arising therefrom to be paid to them annually during the term of their natural lives. As this intention of the testatrix to create a trust and guard her bounty for her children with the protection of a trustee is so clear, the validity of the trust is not affected because there is no limitation over: Spring’s Estate, 216 Pa. 529.

Appeal dismissed and decree affirmed with costs.


author: Pee Cueiam,

text:
    Pulaski Avenue.

      Road law — Vacation of streets — Omission of street from plan— Statute of limitations — JSstoppel.
    Where tbe proper authorities in a city of the first elass adopt and confirm a new plan of streets from which a portion of a previously existing street is omitted, the confirmation of such plan operates as an immediate vacation of the portion of the street omitted, and the statute of limitations begins forthwith to run against landowners injured by the vacation. The right of an assignee of the damages can rise no higher than that of his assignor.
    Argued Jan. 16,1912.
    Appeal, No. 175, Jan. T., 1911, by Emil' Wahl Manufacturing Company, from order of C. P. No. 1, Phila. Co., June T., 1909, No. 4388, quashing petition for appointment of viewers.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for appointment of viewers.
    In addition to the facts set forth in the opinion of the Supreme Court, and in the report of Pulaski Avenue, 33 Pa. Superior Court 108, it appeared that the right to claim damages for the vacation of Pulaski avenue had been assigned by the original owners to the Emil Wahl Manufacturing Company, the petitioner, and that this assignment had been made after the decision of the Superior Court had been rendered.
    The court dismissed the petition.

      Error assigned was order dismissing the petition.

      Theodore F. Jenkins, with him William W. Staake, for appellant.

      Abraham M. Beitler, with him Edward Eopkinson, Jr., for appellee.

      February 19, 1912,:
   Pee Cueiam,

On June 22, 1905, this appellant filed its petition in the court of quarter sessions of Philadelphia county, asking for the appointment of viewers to assess damages which it alleged had resulted to it from the vacation of Pulaski avenue. That petition was quashed, and, on the petitioner’s appeal to the superior court, the action of the court below was affirmed. The first reason given for affirming it was that, as Pulaski avenue, between Ruffner street and Roberts avenue, had been omitted from a new plan of streets adopted by the board of surveyors on June 3, 1895, that portion of the avenue had been absolutely vacated from the time of the adoption of the new plan, and the statute of limitations barred any claim for damages made more than six years after the vacation: Pulaski Avenue, 33 Pa. Super. Ct. 108. On August 10, 1909, the appellant filed in the common pleas the petition now before us. It sets forth substantially the facts that appeared in its quashed petition in the quarter sessions, and was filed for the same purpose. It was quashed because the court of common pleas was of opinion that the controlling questions involved had been passed upon by the Superior Court adversely to the petitioner in its appeal from the order of the court of quarter sessions quashing its petition filed in 1905.

Though the appellant may not have been the party legally entitled in 1905 to receive damages, if any were recoverable, for the vacation of Pulaski avenue, its right now can rise no higher than that of its assignors then, and, in the proceeding then instituted by it against the city of Philadelphia, it was definitely ruled by the Superior Court that a claim made by any one in 1905 for the first time, for damages resulting from the vacation of Pulaski avenue, was too late. From this ruling of the Superior Court, to which the appellant had appealed, it took no appeal, and the law as announced by that court became, as to the parties in that proceeding — who are the same in this — the law in the controversy between them, and the learned court below correctly so held: Bolton v. Hey, 168 Pa. 418; Pulaski Avenue, 220 Pa. 276. Interest reipublicae ut sit finis litium.

Appeal dismissed with costs.


text:
    Earley, Appellant v. Philadelphia.

      Negligence — Municipalities—Caving in of street — Independent contractor.

    In an action against a city to recover damages for personal injuries resulting from the caving in of a street, where there is evidence that the street at the time of the accident was in the control of an independent contractor, it is proper for the court to submit to the jury the question whether the city or the contractor had failed in the performance of a duty to the plaintiff, and if the jury find for the city, their verdict and the judgment thereon will not be reversed by the appellate court.
    Argued Jan. 16, 1912.
    Appeal No. 139, Jan. T., 1911, by plaintiff from judgment of C. P. No. 3, Phila. Co., Sept. T., 1900, No. 348, on verdict for defendant in case of Patrick Earley v. Philadelphia.
    Before Bkown, Mesteezat, Pottee, Elkin and Moschziskeb, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Febgtjson, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various instructions.

      Augustus Trash Ashton, with him Victor Frey, for appellants.

      W. O. Wilson, assistant city solicitor, with him Michael J. Ryan, city solicitor, for appellee.
    February 19, 1912:
   Pee Cueiam,

As the appellant was driving over one of the streets of the city of Philadelphia it caved in, and the wagon in which he was seated fell into the excavation to a depth of eight or ten feet. For the injuries sustained he brought this action, which resulted in a verdict for the defendant. Whether the caving in of the street was due to the negligence of the city, or to that of an independent contractor was submitted to the jury as a question of fact for them, the instructions being that, if they should find that the city was not in control of the street at the time of the accident, there could be no recovery, but that, on the other hand, if it was in control and had failed in the performance of a duty to keep the street safe for travel, it would be liable to the plaintiff. The court could not have instructed the jury that the relation between M. & J. B. McHugh and the city was merely that of master and servant. After a review of all the evidence in the case, we have not been persuaded that any of the assignments of error call for a reversal of the judgment, and it is, therefore, affirmed.


text:
    Sloan, Appellant v. Philadelphia & Reading Railway Co.

      Appeals — Judgment n. o. v. — Effect of reversal — New Trial.

    1. Where on an appeal from a judgment non obstante veredicto, the judgment is reversed, and the record remitted with directions to the court below to enter such judgment as law and right may require, the case then stands as though no proceedings in the court below had been taken after the rendering of the verdict, and it is for that court below to take such action as in its judgment, law and right require.
    2. If after such a reversal the court below orders a new trial unconditionally, the appellate court on an appeal from such order will assume the order was made in the exercise of a sound discretion, with a view to accomplish the ends of justice, and will not reverse it.
    Argued Jan. 16, 1912.
    Appeal, No. 309, Jan. T., 1911, by plaintiff from order of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 5020, making absolute rule for new trial in case of John J. Sloan v. Philadelphia & Reading Railway Co.
    Before Brown, ■ Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Motion for judgment on verdict.
    On the motion and rule the following opinions were filed :
    Sulzberger, P. J. Judgment for defendant n. o. v., entered by this court, was reversed by the Supreme Court, with direction that judgment be entered for the plaintiff. The defendant, thereupon, prayed the Supreme Court to modify its judgment, and the following order was made:
    “And now, June 13, 1911, so much of the judgment heretofore entered as renders judgment on the verdict for plaintiff is now reconsidered and rescinded, and the record is remitted, with directions to the court below to enter such judgment as law and right require.”

      On the interpretation of this order a conflict arises. The plaintiff moves for judgment on the verdict; the defendant moves for a new trial. The dispute hinges on the construction of the direction “to enter such judgment as law and right require.” If the word “judgment” is to be understood in its proper legal sense, it means here a judgment on the verdict. The entry of such a judgment would comply with the direction of the Supreme Court, in so far as it would be in —accordance with “law.” The order, however, is “to enter such judgment as law and right require.” We are all of opinion that the verdict is unjust, and “right” would require us to set it aside. Where law and right (equity) are thus in conflict, a judgment in accordance with both is impossible, and it is, therefore, reasonable to assume that the word “right” is used here as a mere synonym for “law,” and that judgment should be entered on the verdict for the plaintiff.
    This I take to be the meaning of Hughes v. Miller (192 Pa. 365). The worst that can be said against this construction is that the system of trial by jury, like all other human institutions, is imperfect. There have been three trials of this case. Presumably, at the last trial, the defendant presented all the evidence at command, and a new trial would not add to it. If we now enter judgment on the verdict, the defendant has Ms appeal, wherein he may take advantage of any reversible error committed. The disadvantage suffered by Mm in consequence of our erroneous judgment n. o. v. is entirely eliminated, and he stands just where he stood.
    His present position is, therefore, in effect, that we fell into error in discharging the rule for new trial, and that we should now cure it by rescinding that order, reinstating the rule and making it absolute.
    There are, it is true, dicta which says that when the court is dissatisfied with the verdict, it shall set it aside over and over again, until a jury can be found which shall adopt the court’s standard for judging facts. This, however, cannot be considered a principle of law. The jury is the constitutional tribunal for finding facts, and, though the court’s supervision of it goes far, it can scarcely be held to override it completely. When, therefore, a reasonable number of trials has been held, regard must be paid to the propriety and necessity of ending litigation, in justice as well to the parties in the cause as to other parties who, having an equal right to have their cases tried, are not to be barred by the perpetual intrusion of one case as an obstacle.
    The entry of judgment for the plaintiff would not hurt the defendant. It has had its fair opportunity here, and would have another chance on appeal, and, though none of us is satisfied with the verdict, I think that there ought not to be a right to an unlimited number of new trials.
    I would, therefore, enter judgment for plaintiff on the verdict. My brethren, however, in an opinion filed this day, have resolved that the order of the Supreme Court leaves us free to grant a new trial. In accordance with the majority opinion, it is now directed that the order discharging the rule for new trial is vacated, and the rule for new trial is made absolute.
    Wiltbank, J.: I am of the opinion that the order heretofore made discharging the rule for a new trial should be vacated, the rule reinstated, and thereupon made absolute. It is my conclusion that the record of the Supreme Court, and of this court, discloses our duty thus to act. The judgment entered by us for the defendant non obstante veredicto was erroneous, and we are directed to review the proceedings upon the last trial, and thereupon to enter such judgment as law and right require. Our refusal of a new trial to the defendant was not because the plaintiff was entitled to recover, but it was because we deemed it according to law to afford the defendant the readier and more complete relief of a final judgment in his favor. In this we exceeded our power, but had we not gone so far, it cannot be disputed that we should and would have granted a new trial. Such, obviously, would have been imperatively our duty. The discharge of the rule was, therefore, matter of form. Our adhering to that action at this stage would not eliminate the disadvantage suffered by the defendant under our error, nor would he stand just where he stood when we condemned the verdict against him. His prospect of the new trial is greater here than it would be were we to send him to the Supreme Court, which tribunal, as I understand the authorities, exercises its power only in cases of the clearest error on the trial. Our entry being merely formal, concluded nothing as matter of substance. It was a step necessary to the orderly framing of the record for the proper dismissal of the action in this court, or for the due presentation of the record to the appellate tribunal. This view of the case is, I think, beyond dispute. We had unanimously determined that two verdicts had been contrary to the evidence, viewed with regard to its substance and effect, and also with regard to the credibility of the witnesses. This is declared to be still the unanimous opinion of the court. I submit that it would not be according to law and right that we should violate precedent and now sustain the claim of the plaintiff, to subject the defendant to a pecuniary charge which the proofs did not warrant.
    As I understand the contention of the plaintiff, this view is not arguable, because we are under the peremptory mandate of the Supreme Court to enter judgment for the plaintiff pursuant to the discharge of the rule for a new trial. It is contended that we have no discretion, but that it is our duty to affirm, without modification, our previous order, and to enter judgment accordingly.
    But the order relied upon embodies no prohibition of other action should we deem such to be according to law and right. In prescribing “such judgment,” it implies more than one judgment as within our power in the exercise of our discretion, and that judgment must be such as is determined by us according to the law of the case. We are not bound immoveably by a formula involving the injustice of a negation of our three determinations against the claim of the plaintiff to adjudge a claim lawful, when we have recorded and still record that it is otherwise.
    This view does not bear unduly upon the plaintiff. It does not determine the merit of his case, nor deprive him of a remedy. He may still go to the country on the issue raised by the pleadings. The proceeding will not be affected one way or the other by what has heretofore passed in the cause; and it is of essential right that the defendant should have an appeal to another jury. The cases cited are to this effect: Hughes v. Miller, 192 Pa. 365; Hardoncourt v. Iron Co., 225 Pa. 379.
    The rule for a new trial is reinstated, and the same is hereby made absolute.
    In this our Brother Barratt concurs.

      Error assigned was order making absolute rule for new trial.

      Augustus Trash Ashton, with him Victor Frey and Maurice V. Daniels, for appellant.

      Wm. Olarhe Mason, for appellee.
    February 19, 1912:
   Per Curiam,

Where on an appeal from a judgment non obstante veredicto, the judgment is reversed, and the record remitted with directions to the court below to enter such judgment as law and right require, the case then stands as though no proceedings in the court below had been taken after the rendering of the verdict; and it is for the court below to take such action with respect to the verdict as in its judgment law and right require. It follows that it may either direct judgment on the verdict, order a new trial on refusal of plaintiff to accede to a reduction in amount of the verdict, or order a new trial irrespective of any such condition. Within these limits the verdict is in the power of the court. In this case a new trial was ordered unconditionally. We must assume that this was done in the exercise of a sound discretion by the court, with a dew to accomplish the ends of justice, and the action is therefore not reviewable.

The appeal is dismissed at the cost of appellant.


text:
    Burn’s Estate. Bassett’s Appeal.
    Argued Jan. 16, 1912.
    Appeal, No. 290, Jan. T., 1911, by Annie R. Wain Bassett from decree of O. C. Phila. Co., Oct. T., 1908, No. 295, confirming adjudication in Estate of William H. Burns, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    In this case, which was presented by the appellant, Annie R. Wain Bassett, in person, the paper book did not contain the names of the parties, statement of question involved, history of the case, adjudication, assignments of error or appendix. The appeal was apparently from a decree dismissing exceptions to an adjudication.

      Allen M. Stearne, for appellee.

      February 19, 1912:
   Per Curiam,

Tbe appellant was patiently beard by tbe court below, but sbe utterly failed to show anything as a basis of a claim against tbe decedent’s estate, and ber appeal is, therefore, dismissed with costs.


author: Mr. Justice Potter,

text:
    Page v. Moore, Appellant.
    Practice, C. P. — Judgment n. o. v. — Binding instructions — Bankruptcy.

    1. Where the court at the trial cannot give binding instructions, it cannot enter judgment non obstante veredicto thereafter.
    2. In an action by a trustee in bankruptcy to recover the value of bonds alleged to have been wrongfully taken from the bankrupt by the defendant, where the defendant contends that he had taken the bonds for the purpose of delivering them to their owner to whom he alleged, they had been previously assigned, and the evidence is conflicting as to whether there was a valid consideration for the assignment, the case is for the jury; and if a verdict is rendered for plaintiff, the court cannot thereafter enter judgment n. o. v. for the defendant.

      Contract — Illegal contract — Building contract — Architect.
    3. An agreement by a building contractor to pay bonds to the architect of the owner for services in overseeing the work, or for securing the award of the contract, is illegal.
    Argued Jan. 17, 1912.
    Appeal, No. 133, Jan. T., 1911, by defendant from judgment of C. P. No. 1, June T., 1909, No. 438, on verdict for plaintiff in case of Howard W. Page, Trustee in Bankruptcy of Moore & Company, Incorporated v. William G. Moore.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.'
    Affirmed.
    Trespass to recover for tbe alleged misappropriation of bonds belonging to tbe bankrupt’s estate. Before Magill, J.
    From tbe record it appeared that on January 14, 1907, William G. Moore, Russell B. Smith and Harry T. McDevitt, who were engaged in a contracting business under the firm name of William G. Moore, entered into a contract with Bridgman Bros. Co., to erect for the latter on Fifteenth street south of Washington avenue, Philadelphia, a three story and basement factory building, under the direction of Milligan & Weber, architects. The cost was to be $62,200, to be paid the contractor partly in cash, partly in promissory notes and partly in bonds secured by a second mortgage on the property. The bonds were to be fourteen in number of a value of $7,000, being half of a total cost of $14,000, twenty-eight for $500 each. The fourteen bonds were to be deposited with the Merchants Trust Company of Philadelphia, to be delivered to the contractor at various times upon certificates of the architects that the work had been completed to the extent fixed by the contract for such deliveries.
    On June 14, 1907, after work on the building had been commenced and was in progress, the partners in the firm of William G. Moore incorporated themselves in the State of New Jersey under the firm name of Moore & Company, Incorporated, and all the contracting business of the firm, including the unfinished contract with Bridgman Bros. Co., was transferred to the corporation. The building which was in course of erection, fell down in the early part of July, 1907, and it was necessary practically to rebuild it. Prior to the accident William G. Moore had received from the trust company on certificates from the architect, twelve of the fourteen bonds. He also received from the architects the day before the collapse of the building, a certificate entitling him to the remaining two bonds. This was not presented by him before the accident, and he did not receive the last two bonds until July 22, 1908, a year later.
    On June 5, 1908, Howard W. Page was appointed by the Court of Common Pleas No. 2 of Philadelphia county, receiver for Moore & Company, Inc., and subsequently that corporation having been adjudicated a bankrupt, he was made first Receiver, and then Trustee in the bankruptcy proceedings. While receiver in bankruptcy, Mr. Page entered into a contract of settlement with Bridgman Bros. Co., who had claimed a large offset to the contract price under their contract with William G. Moore, because of the delay in the completion of the work, due to the collapse of the original building. By this settlement mutual releases were to be given, and the receiver was to be paid $2,010 in cash and the two bonds for $500 each still in the hands of the trust company. William G. Moore, the defendant, was an active agent in effecting the settlement, and when it was completed, received both the cash and the two bonds from the trust company. The cash he turned over to the receiver by advice of his attorney.
    After Mr. Page was appointed receiver on June 6, 1908, he sent his representative to the office of Moore & Company, Inc., in the Drexel Building, Philadelphia, to take possession of the assets of the company. The defendant, William G. Moore, who was president of the company, took from the safe ten bonds of the Bridgman Bros. Co., gave eight of them to the receiver’s messenger, and retained two himself, saying that they belonged to the architect. It was to recover the value of these two bonds and the two subsequently received by defendant from the Merchants Trust Company, all of which he refused to deliver to plaintiff, that the present suit was brought.
    Verdict and judgment for plaintiff for $2,528.70. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant and (2) in refusing motion for defendant non obstante veredicto.

      Henry P. Brown, with him D. Howard Evans, for appellant.
    There was an equitable assignment of the bonds: Henderson v. Jennings, 228 Pa. 188; Steiner v. Turner, 45 Pa. Super. Ct. 225; Ridgway v. Iron Works, 46 Pa. Super. Ct. 267; In re Ballantine, 179 Fed. Repr. 548; Citizens’ Trust & Surety Co. v. Howell, 19 Pa. Super. Ct. 255.
    One receiving property for the purpose of distribution may make distribution thereof to the real owners, even though he, at the time, be insolvent, and though the trust be secret: Phillips v. Kleinman, 232 Pa. 571.
    The defendant was entitled to a judgment non obstante veredicto: Casey v. Canning, 39 Pa. Super. Ct. 94; Dalmas v. Kemble, 215 Pa. 410.

      Thomas Raeburn White, for appellee.
    Not only was there abundant evidence upon which the jury might have founded their verdict, but under the evidence no other verdict was reasonably to be expected: Morningstar v. Jamieson, 2 Sadler 80.
    The alleged assignment was not an assignment, even if validly made, but was a mere agreement or promise to pay these bonds at some time in the future: Henderson v. Jennings, 228 Pa. 188; Penna. R. R. Co. v. Hughes, 39 Pa. 521; Newport & Shermans Valley R. R. Co. v. Seager, 19 Pa. C. C. R. 465.
    February 19, 1912:
   Opinion by

Mr. Justice Potter,

In this action the trustee in bankruptcy of Moore and Company sought to recover the value of four bonds which it was alleged were wrongfully taken from the bankrupt by the defendant and converted to his own use. The defendant contended that he had taken the bonds for the purpose of delivering them to their owner, Frederick Webber, to whom he alleged they had previously been assigned. The controversy turns upon the correct interpretation, and the legal effect, to be given to a letter written by the defendant to Mr. Webber on December 29, 1906. The subject matter of the letter is as follows: “I am about to erect a four-story factory building for Bridgman Bros, at 15th and Washington avenue. The payments will include $7,000 in second mortgage six per cent, three year bonds against this property, endorsed by Bridgman Bros, individually. I hereby agree to assign to you irrevocably $3,000 of these bonds.” Counsel for appellant contend that this letter constituted an equitable assignment of the bonds to Webber. The trial judge construed the letter to be sufficient in form to constitute an equitable assignment of the bonds, but submitted to the jury the question whether there was a valid consideration for such assignment. There was testimony on behalf of defendant, tending to show that Webber had secured certain sub-contracts for the firm of William G-. Moore, on better terms than the firm could have secured them for itself, and that in recognition of his service in this respect, the firm had agreed to give him the bonds referred to in the letter. The trial judge instructed the jury that if they found that Webber did render such services, that fact would constitute a good and sufficient consideration for the bonds. The verdict of the jury was however against the contention of the defendant in this respect. We do not agree with the view of the trial judge that the letter from Moore to Webber in itself constituted an assignment of the six bonds in question: Henderson v. Jennings, 228 Pa. 188, is cited in support of that contention. There it was agreed that a mortgage was to be given as part consideration for a building contract, and it was held that the contractor might assign his interest in it before it had been executed, or was to be delivered under the terms of the contract. But it should be noted that one particular mortgage was the thing sold in that case. In the present instance the alleged assignment covers six bonds out of fourteen, without specifying any particular or specific bonds. Nor was the wording of the contract in the present tense. It was not “I hereby assign,” but “I hereby agree to assign.” There was much, therefore, to support the contention of counsel for appellee that the letter was but an executory contract, and was not an assignment of the specific bonds in controversy. But appellant had the benefit of the ruling in his favor upon this question, and cannot complain of it here. We' need not, therefore, give this point further consideration.

The only error alleged in the assignments is the refusal of the trial judge to give binding instructions, or to enter judgment non obstante veredicto for the defendant. As the establishing of facts material to the issue depended upon, oral testimony, it would have been error if the court had taken the case from the jury: Second National Bank v. Hoffman, 229 Pa. 429; Fry v. National Glass Co., 219 Pa. 514. Where the court could not have given binding instructions, it cannot enter judgment non obstante veredicto thereafter. In Dalmas v. Kemble, 215 Pa. 410, Mr. Chief Justice Mitchell said (p. 412) that under the Act of April 22, 1905, P. L. 286, the court “is to treat the motion for judgment as if it was a motion for binding directions at the trial, * * * (p. 413) If it should appear that there was conflict of evidence on a material fact, or any reason why there could not have been a binding direction, then there can be no judgment against the verdict now.” In the present case there was a conflict of evidence. The consideration suggested by defendant for the assignment of the bonds, was questioned at the trial. It was shown that Webber was the architect of the building, and the agent of the owner, and- as such it was his duty to award the contract, and to see that the building was erected in accordance with the plans and specifications. He awarded the contract to appellant. Obviously an agreement by a contractor to pay bonds to an architect for services in overseeing his work, or for securing the award, would be illegal. The circumstances called for inquiry by the jury. It was also shown that upon another occasion, when testifying before the referee in bankruptcy, appellant had stated that the agreement was that this $3,000 was to be paid to Webber on account of his services as architect. In the present case appellant testified that this former evidence was given under a misapprehension. But his testimony was for the jury. It also appeared that in proceedings before the referee in bankruptcy, Webber had stated under oath that the bonds alleged to be assigned in the letter were given to him on account of services rendered as architect. It is not pretended that the transfer of bonds for such a consideration by the contractor would have been proper. There was also some evidence that defendant at first made claim to the bonds under an assignment to himself, and it appeared also that two of the bonds were entered in the investment account of Moore & Company, Incorporated, and remained there until the appointment of a receiver. All this was inconsistent with the claim that the bonds were the property of Webber, or that they were so considered, prior to the bankruptcy. It is olear therefore that the evidence was conflicting as to the real consideration for the assignment of the bonds. That the evidence offered upon the part of the plaintiff was, if credited by the jury, sufficient to support the verdict, we have no doubt.

Counsel for appellant also urge that the appellee is precluded from assailing the validity of the alleged assignment from Moore to Webber, by the fact that in his statement of claim he averred that the defendant, after taking and converting the bonds to his own use, “used them in the payment of an obligation personally owing by him to one Frederick Webber, who had done certain work for him,” &c. The record does not show that the fact, or effect of this averment was raised in the court below. But at any rate the averment goes no farther than to charge that defendant used the bonds to pay his own obligation. It does not in any way admit the validity of the claim of Webber to the bonds as against Moore & Company, Incorporated. In his testimony defendant alleged that when the bonds were delivered to Webber, they were the property of the latter, as he had become the owner by reason of the alleged assignment in the letter made some time previously. The essential question then presented for determination upon the trial was whether at the time when the bonds were delivered to Webber, they belonged to him, or were the property of the bankrupt estate. The verdict of the jury determined that question in favor of the estate, and thereby fixed the liability of the defendant. The burden was upon appellant at the trial to sustain his right to the bonds which he had taken, and the verdict shows that he failed to establish that right, to the satisfaction of the jury.

We find no merit in the assignments of error. They are dismissed, and the judgment is affirmed.


text:
    Green v. Thresher, Appellant.

      Nuisance — Encroachment on public highway — Equity—Injunction — Signs.
    Where one of the occupants of a commercial building sets up on a portion of the pavement of the public highway in front of the building a show case and signs, which attract such crowds as to obstruct an entrance used by another occupant of the building, and to cut ofE the view of such occupant’s show windows, the latter may maintain a bill in equity to compel the removal of the show case and the signs as a nuisance.
    Argued Jan. 18, 1912.
    Appeal, No. 273, Jan. T., 1911, by defendants, from decree of C. P. No. 4, Phila. Co., March T., 1911, No. 5022, on bill in equity in case of Green and Green Company v. Carl H. Thresher et al. Co-partners, trading under the firm name of Thresher Brothers.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Atjdenried, J., filed an opinion containing the following findings of fact and law:
    FINDINGS OF FACT.
    1. The plaintiff, Green & Green Company, is a corporation organized under the laivs of the state of Massachusetts for the manufacture and sale of muslin underwear, &c. It has complied with the requirements of the Acts of Assembly of Pennsylvania, and is authorized to transact business within this Commonwealth.
    2. The defendants, Carl Thresher, Burton E. Thresher and Avery A. Thresher, are . co-partners trading under the firm name of Thresher Bros. They are engaged in the sale of various articles made of silk for women’s wear. Thresher Bros, are now and on November 11th, 1910, were lessees of a four-story building known as No. 1322 Chestnut street, in the city of Philadelphia. This building is situated on the south side of Chestnut street, its north or front wall standing on the new line of that street. The defendants’ business is carried on upon the third and fourth floors of the building leased by them, and they use also a part of its basement.
    3. On November 11th, 1911, the defendants sublet to the plaintiff a part of the basement of No. 1322 Chestnut street, for a term of two years and one month, from December 1st, 1911 (with the right to renew the lease for a further term), at the annual rental of $12,000, payable by monthly instalments.
    The plaintiff was to use that part of the building covered by this lease as a place for the sale of ladies’ and children’s underwear, white waists, corsets and similar goods. It was agreed between the parties hereto on March 24th, 1911, that the lease above mentioned should be modified by the insertion therein of a covenant that no white waists except white waists made of silk should be offered for sale by the defendants during the continuance of the plaintiff’s term or any renewal thereof.
    4. Pursuant to the terms and conditions of its lease the plaintiff entered into possession of the first and second floors and part of the basement of No. 1322 Chestnut street, and has continued in possession thereof up to the present time.
    It has fully complied with all the terms and conditions of its lease. Until within a few weeks ago it carried on upon the demised premises the' business of selling underwear and white goods for women and children.
    5. The property known as 1322 Chestnut street is bounded on the east by another store building known as No. 1320 Chestnut street, in front of the latter building has not been widened to its full width as recently established by the city of Philadelphia and the front wall of No. 1320 Chestnut street stands on the old line of that street which is five feet farther north than the line of the front wall of No. 1322 Chestnut street. The west wall of No. 1320 Chestnut street, consequently projects five feet beyond the front of No. 1322 Chestnut street. This wall is solid and without openings. It stands on the line which formerly bounded the two properties just referred to. Against this wall the defedants have set up a show case above five feet wide eight feet high and twelve inches deep. This show case stands within the lines of Chestnut street projecting westward from the west wall of No. 1320 Chestnut street and northward from the front wall of No. 1322 Chestnut street. It is made of glass set in iron or wooden frames and is used for the display of samples of silk skirts, waists and other wares offered for sale by the defendants. On the top of this show case the defendants have set up and fastened to the wall above mentioned a large business sign about five feet wide and six or eight feet high and upon this sign they have erected and secured against the wall an upright sign extending from the top of the sign last mentioned to the top of No. 1320 Chestnut street. The signs which surmount the show case as well as the show case itself encroach upon the space included within the lines of Chestnut street. They are located directly north of the doorway situated on the east side of No. 1322 Chestnut street by which entrance is had to the elevator used for conveying visitors to the second, third and fourth floors of that building.
    The front of the first floor store room that the plaintiff occupied at No. 1322 Chestnut street, consists of two windows fitted up as show cases one on either side of the centre door by means of which entrance is obtained to the store. Neither the signs nor the show case set up by the defendant as above described had been erected on November 11th, 1910, and the plaintiff has never consented expressly or impliedly to their erection.

      6. The show case maintained by the defendants as above mentioned attracts the attention of passersby and frequently causes so many persons to gather in front of it as to interfere seriously with the approach to the elevator by means whereof the plaintiffs’ employees and customers have access to the second floor of No. 1322 Chestnut street, and to prevent other persons using the street from seeing the goods exposed to view in the show windows of the plaintiffs’ store on the first floor of that building. The value to the plaintiff of the advertisement afforded by the display of its goods in the front windows of its place of business is very great and any interference with this means of bringing its wares to the attention of the public involves a serious injury to the plaintiff and entails a loss which falls on it alone.
    Applying the law to the facts thus ascertained our conclusions are as follows:
    FINDINGS IOF LAW.
    1. The plaintiffs’ lease from the defendants covered “first and second floors and part of the basement of No. 1322 Chestnut street.” It did not and necessarily could not include any portion of the street in front of that building except so far as the right to use the street was an incident or appurtenance thereof.
    2. As was said by the Superior Court in Commonwealth v. Kembel, 30 Pa. Super. Ct. 199, “Highways belong to the Commonwealth in trust for the great body of the people and that anyone who claims a peculiar privilege to invade t'hem must establish beyond the peradventure his title under some act of legislative power to do so as is well settled. * * *' One who appropriates the space above the footway creates a purpresture by making several to himself that which ought to be common to many.” Show cases or sign boards located in the public street, as are those that the defendants have set up against the west wall of No. 1320 Chestnut street, constitute a public nuisance unless the city which has control of its streets has by general ordinance permitted their maintenance: Frey and Forker v. Norristown, 16 D. R. 136; Wilkes-Barre v. Burgunder, 7 Kulp 63; Commonwealth v. McCafferty, 145 Mass. 384.
    No city ordinance authorizing such constructions in the highways was offered in evidence at the trial. The court has no light to assume that such an ordinance exists: Commonwealth v. Kembel, supra.
    It follows therefore, that neither of the parties hereto has the right to erect or maintain show cases or signs in the position in which the defendants have placed this of which the plaintiff complains.
    3. The invasion of the common right by the taking for private use of that which belongs to the public as by a continuing encroachment on or over the highway may be punished by indictment or may be restrained by injunction: Reimer’s Appeal, 100 Pa. 182; Penna. R. R. Co.’s Appeal, 115 Pa. 514; Thomas v. Inter-County St. Ry. Co., 167 Pa. 120.
    4. While the plaintiff has no standing to question the act of which it complains on the part of the defendants upon the ground that they are evicting it from a portion of the space to the possession of which it is entitled under its lease from them, the special injury that it sustains through the maintenance of the nuisance that the defendants have set up gives it the right to invoke relief at the hands of a court of equity: Philadelphia and Trenton R. R. Co. v. Phila. & Bristol Pass. Ry. Co., 6 Pa. D. R. 487; Faust v. Second and Third St. P. Ry. Co., 3 Phila. 164; Reighard v. Flinn, 189 Pa. 355.
    1. The plaintiff is entitled to a decree that the defendants be enjoined from maintaining in Chestnut street in front of the building occupied by the parties hereto the signs and show case above referred to and requiring the defendants to pay the costs of these proceedings.

      Error assigned was decree awarding injunction.

      Francis G. Gallagher, for appellants.

      J. Quincy Hunsicker, with him J. Quincy Hun-sicker, Jr., for appellees.
    February 19, 1912:
   Per Curiam,

The first five facts found by the court below are not open to dispute, and, in view of the sixth, which was fully justified by the evidence, the relief asked for could not have been withheld. Decree affirmed at appellants’ costs.


author: Pee Curiam,

text:
    McFillin’s Estate.

      Wills — Construction—Remaindermen.
    1. Where a testator directs that in a certain event after the expiration of a particular interest, the estate shall go to his heirs and next of kin, or to the persons who would take under the intestate laws, he is to be understood as meaning the persons who would have taken at the time of his death, and not at the time appointed for their taking, unless a different intent is plainly manifested in his will.
    2. Where a testator leaves one-fourth of his residuary estate in a spendthrift trust for his son for life, and upon the son’s death without issue, to pay and distribute the principal to such persons as should be entitled as the testator’s next of kin, the testator intends his next of kin as of the date of his death and not his next of kin as of the date of the death of the life tenant.
    Argued Jan. 18, 1912.
    Appeal, No. 303, Jan. T., 1911, by Deborah C. Lucas, from decree of O. C. Phila. Co., April T., 1906, No. 470, dismissing exceptions to adjudication in Estate of James McFillin, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that James McFillin died on April 10, 1905, leaving two children, Deborah C. Lucas and James W. McFillin. The latter died on April 23, 1911, intestate, unmarried, and without issue.
    The material paragraph of the will was as follows:
    “And the other full equal fourth part or share thereof I give, devise and bequeath unto my Executors hereinafter named in Trust to hold, invest and from time to time re-invest the same, collect the income and profits thereof and pay the said income and profits to my son James W. McFillin during Ms life but free and discharged of Ms debts, liabilities and engagements and free from the right of anticipation:— And upon the decease of my said son upon the further trust to divide, distribute and pay the said part or share to and among the children of my said son equally share and share alike the issue of any of his deceased children who may be living at the time of his decease shall take the same share as their parent would have taken if then living:— And upon the further trust in the event of my said son dying without leaving any children or the issue of any deceased child living at his decease to divide, distribute and pay the said part or share to such person or persons who shall be entitled thereto as my next of kin under the intestate laws of the State of Pennsylvania.”
    The account of Bernard F. McFillin and James F. Lucas, trustees under the will of James McFillin, having been filed and called for audit, the Auditing Judge awarded one-half of the one-quarter of the estate held in trust for James W. McFillin to Deborah C. Lucas individually and the remaining half to Deborah C. Lucas, administratrix of James W. McFillin, deceased, holding that the persons who were to take the principal of the fund held in trust for James W. McFillin were the next of kin of James McFillin at the time of his death and not his next of kin at the time of the death of James W. McFillin, which was fixed as the time of distribution. Exceptions were filed on behalf of Deborah C. Lucas, who claimed the whole fund as testator’s next of kin at the time of distribution.
    The court below on October 28, 1911, filed an opinion dismissing the exceptions and confirming the adjudication.

      Error assigned was decree dismissing exceptions to adjudication.

      Bernard Gilpin, for appellant.
    No printed brief for appellee.

      February 19, 1912:
   Pee Curiam,

Tbe thoroughly settled rule of construction is that where a testator directs that in a certain event after the expiration of a particular interest the estate shall go to his heirs or next of kin, or to the persons who would take under the intestate laws, he is to be understood as meaning the persons who would have so taken at the time of his death, and not at the time appointed for their taking, unless a different intent is plainly manifested in his will: Buzby’s Appeal, 61 Pa. 111; Stewart’s Estate, 147 Pa. 383; Fitzpatrick’s Estate, 233 Pa. 33. Nothing in the will before us shows a clear intent of the testator that his next of kin were not those who were such at the time of his death, and the decree is, therefore, affirmed with costs.


author: Mr. Justice Mestrezat,

text:
    Mercer’s Estate.

      Decedents estates — Widow’s $5,000 preference — Act of April 1, 1909, P. L. 87 — Constitutional law.

    The Act of April 1, 1909, P. L. 87, applies to the estate of a testate whose widow has elected to take against the will. The act is constitutional.
    Submitted Feb. 6, 1912.
    Appeal, No. 276, Jan. T., 1911, by Farmers & Mechanics Trust Company, Committee of Theodore Mercer, from decree of Q. C. Chester Co., dismissing exceptions to widow’s preference in Estate of J. Edge Mercer.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exception to widow’s preference. Before Hemp-hill, P. J.

      Error assigned was in dismissing exception to widow’s preference.

      Thomas W. Pierce, for appellant.

      Walter 8. Talbot, with him Jos. 3. Baldwin, for appellee.
    February 19, 1912:
   Opinion by

Mr. Justice Mestrezat,

The question raised on this record involves the interpretation of the act of April 1, 1909, P. L. 87, and is determined by the decision in the estate of Joseph Guenthoer, Deceased, 235 Pa. 67. For the reasons stated in the opinion filed herewith in that estate, the decree of the court below is affirmed.