text:
    DeForest v. Northwest Townsite Company, Appellant.

      Corporation — Power of president — Contract of employment— Ratification by directors — Question for jury.

    Although a contract of employment made by the president of a corporation may not be binding upon the company because of the lack of power of the president to make it, yet if the directors accept services under the contract, and fail to disavow within a reasonable time, their acquiescence in the arrangement may operate as ratification, and bind the company. Ratification may be made by formal action, or by passive acquiescence, but in either event, such acts must be established as will warrant the proper finding. The burden is on the plaintiff to show such acquiescence in, knowledge of, and adoption of his services by the corporation, as will warrant a jury under instructions as to the law, in finding a ratification.
    Argued March 19, 1912.
    Appeal, No. 3, Jan. T., 1912, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1911, No. 3850, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles M. DeForest v. Northwest Townsite Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover damages for breach of a contract to employ the plaintiff for a stated period.
    Daniel F. Deal, the treasurer of the defendant, filed an affidavit of defense which was as follows:
    In and by said statement plaintiff avers that on or about the 26th of May, 1911, the defendant, through its president, George M. Bailey made a proposal to the plaintiff which was accepted, offering to hire him for the term or period of one year from the 26th of May, 1911, a copy of said proposal and acceptance being annexed to his statement as Exhibit A thereof; that in and by said proposal, reference thereunto being had, it will appear that the position, of fiscal agent or assistant treasurer of this company was tendered to the said plaintiff, and his compensation provided for as follows:
    “We will pay you an overwriting commission of 2% per cent, on all sales of stock above described effected by you and your agents. On the amount of treasury stock remaining unsold this commission would amount to more than $5,000. We will allow you a drawing account at the rate of $50 per week, if you wish, from the commencement of your work, and will credit your account with the 2% per cent, commission as fast as sales are made.
    “In further consideration for your services, and as evidence of our confidence in your ability, we guarantee that your income from this work will be at least $5,000 by the end of a year.”
    The by-laws of said corporation, a copy of which are hereunto annexed as Exhibit 1 of this affidavit of defense, provide, among other thing’s, as follows:
    “Article II.

      “Board of Directors.

    “1. The business and affairs of the company shall be managed and controlled by a board of directors, three in number.
    “Article V.

      “Officers.

    “2. Subordinate Officers. — The board may appoint such other officers as it may deem necessary, who shall have such authority and shall perform such duties as, from time to time, may be prescribed by the board.
    “4. Tenure of Officers, Removal. — All officers and agents, except the president, shall be subject to removal at any time by the affirmative vote of a majority of the whole board. The board may delegate the power of removal of subordinate officers and agents to the executive committee or to any officer.
    “5. The President. — The president shall be the chief executive officer of the company. He shall preside at all meetings of the stockholders and the board of directors. He shall have general charge of the business of the company, shall sign and execute all authorized bonds, contracts or other obligations in the name of the company, and with the treasurer shall sign all certificates of stock of the company, he shall do and perform such other duties as from time to time may be assigned to him by the board.”
    On the 14th of June, 1911, without the letter, “Exhibit A” or its contents, as aforesaid, being communicated to the board of directors, I having no knowledge of its contents and being a member of the board of directors and personally present at that time, the plaintiff was elected assistant treasurer of the corporation defendant, a copy of the minute electing him such treasurer being in the following language:
    “Upon motion, duly seconded, Mr. William S. Reed was elected secretary of the company in place of Mr. Franklin Vreeland, resigned, and Mr. Charles M. DeForrest was elected assistant treasurer under the provisions of Article V, Section 2, of the by-laws of the Northwest Townsite Company.”
    Thereupon the said plaintiff accepted the position of assistant treasurer to which he had been elected, and entered upon the performance of his duties. Immediately prior to the 1st of August, 1911, I learned of the existence of this contract contained in plaintiff’s Exhibit A for the first time and I thereupon informed the plaintiff that I was going to bring it to the attention of the board of directors for their action. The next meeting of the board of directors of the company was on August 1st, 1911, and at that meeting I brought the matter to the attention of said board of directors, who thereupon disapproved of said contract. The minute in reference thereto being expressed in the following language :
    “The matter of making advances to the stock selling force was then taken up and the letter of agreement between Mr. Charles M. DeForest and Mr. George M. Bailey, president of the company, was then read, and the entire matter disapproved of. Upon motion of Mr. John P. Whitney, seconded by Mr. Daniel F. Deal, a resolution was adopted authorizing Mr. Daniel F. Deal, vice-president of the company, to secure the services of a competent attorney for the purpose of passing an opinion upon the legality of and how far the actions of the president in entering into this agreement with Mr. Charles M. DeForest without consulting the board of directors was binding on the company.”
    At a meeting of the board of directors, held August 29th, 1911, the following resolution was passed:
    “Upon motion of Mr. Reynolds, seconded by Mr. Whitney, a resolution was passed declaring the office of assistant treasurer now held by Mr. C. M. DeForest vacant, and the secretary instructed to notify Mr. DeForest of such resolution, also the banks and trust companies.”
    And in accordance with this resolution the plaintiff was notified that he was removed from the office of assistant treasurer and the office declared vacant. Deponent further says that plaintiff made sales of stock for account of the defendant and from time to time rendered statements of account for the same, his commissions thereon amounting to $1,095.50, which have been paid to him, and the sales of stock so made by plaintiff was the only benefit conferred by the said plaintiff upon the said defendant, which has been accepted by it and the same has been fully compensated for at the price and value which the plaintiff claimed and demanded.
    Deponent further avers that the said George M. Bailey, president of the company, had no authority of any kind whatsoever to execute said agreement, Exhibit A of plaintiff’s statement, so as to make the same binding upon the company defendant except as provided in the by-laws hereinbefore referred to, and deponent is advised by counsel, verily believes and therefore avers that the said by-laws do not confer authority upon the said George M. Bailey as president of the corporation defendant to make the contract sued on, wherein and whereby among other things the defendant should be bound to guarantee to the plaintiff that his income from his work will be at least f5,000 by the end of the year. And he is further advised, verily believes, and therefore avers, that said contract in any of its particulars, is not binding upon the corporation defendant save and except only as it has accepted the benefits thereof, which benefits have been fully paid and satisfied, as is hereinbefore set forth.
    All of which deponent verily believes and expects to be able to prove on the trial of the cause.

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

      M. Eampton Todd, for appellant.
    Under the by-laws of the corporation defendant the president was not authorized to make or execute the contract sued on: Cooper v. Lampeter Twp., 8 Watts 125; Allegheny County Workhouse v. Moore, 95 Pa. 408; Twelfth Street Market Co. v. Jackson, 102 Pa. 269; Millward-Cliff Cracker Co.’s Est., 161 Pa. 157.
    Plaintiff having been elected assistant treasurer of the company and having accepted that office he thereby became subject to Section 4, Article 5 of the by-laws, and under this by-law the board of directors had a right to terminate his employment and remove him from office at any time.
    There was no ratification: Allegheny County Workhouse v. Moore, 95 Pa. 408; Schurr v. Investment Co., 18 N. Y. Supp. 454; Pacific Rolling Mill v. Dayton, Etc., Railway Co., 5 Fed. Repr. 852; Russell v. Erie R. R. Co., 67 L. R. A. 433.

      April 15, 1912:

      H. D. Wescott, of Wescott, Wescott & McManus, for appellee.
    The facts constitute a ratification by acquiescence after knowledge: Moller v. Fibre Co., 187 Pa. 553; Watts’s App., 78 Pa. 370; Gordon v. Preston, 1 Watts 385; Allen v. Colliery Engineers Co., 196 Pa. 512; Hand v. Coal Co., 143 Pa. 408; Pittsburgh, Cincinnati & St. Louis Ry. Co. v. Keokuk, Etc., Bridge Co., 131 U. S. 371 (9 Superior Ct. Repr. 770); Pannebaker v. Tuscarora Valley R. R. Co., 219 Pa. 60; Bellman v. Ry. Co., 31 Pa. Superior Ct. 389; Andersen Coal Mining Co. v. Sloan, 46 Pa. Superior Ct. 320.
   Opinion by

Mr. Justice Elkin,

Judgment was entered in the court below for want of a sufficient affidavit of defense, and the question here is whether this was error. Suit was brought to recover an alleged balance claimed to be due on a guaranteed annual salary. The contract sued on was made by the president of the corporation without the authority of the board of directors. It is contended for the corporation that no liability attaches to it because the contract was made without authority; while, on the other hand, the appellee here, who was a party to the contract, urges that even if the contract was made without authority in the first instance, the board of directors assented to its terms by acquiescence and thus bound the corporation by ratification. There is no doubt that the board of directors had the power to make the contract relied on to sustain this action, and although that power may not have been exercised in a manner to make it binding on the corporation in the first instance, subsequent ratification may give it binding effect: Kelsey v. National Bank, 69 Pa. 426; Manhattan Hardware Co. v. Phalen, 128 Pa. 110; Wayne Title & Trust Co. v. Railway Company, 191 Pa. 90; Greensboro Gas Co. v. Oil & Gas Co., 222 Pa. 4. We cannot agree with the argument of the learned counsel for appellant, that upon the facts disclosed by this record, the court should say as a matter of law that no liability attached to the defendant corporation under the contract upon which suit was brought. The president may have exceeded his authority, and no doubt did so, but the question still remains whether the board of directors accepted the services of appellee under the terms of that contract, and by failing to disavow it within a reasonable time, acquiesced in the arrangement to such an extent as to operate as a ratification. Then, again, who shall determine whether there was a ratification? Shall the court say as a matter of law that there was a ratification, or shall this question be submitted to the jury under proper instructions? In some cases this question is for the court and in others for the jury. It depends upon the facts in each particular case. In the case at bar, we have concluded, upon the facts presented by the pleadings, the court was not warranted in holding as a matter of law that there was a ratification. The affidavit of defense was sufficient to prevent judgment and to make it necessary for a trial upon the merits. We agree that ratification may be made by formal action, or by passive acquiescence, but in either event, such facts must be established as will warrant the proper finding. In the present case the ratification relied on by appellee depends upon certain facts and as we view the record these facts are for the jury. The burden will be on the plaintiff to show such acquiescence in, knowledge of, and adoption of his services by the corporation, as will warrant the jury under instructions as to the law, in finding a ratification.

Judgment reversed and record remitted in order that the case may be tried on its merits.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Wright v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Street railways — Damages.

      1. The general rule is that only compensatory damages can be recovered in negligence cases, and juries are not at liberty to go farther and find exemplary damages unless the injury was done wantonly and wilfully, or was the result of such reckless indifference to the rights of others as amounts to a violation of them. Evil intent lies at the foundation of the right to claim punitive damages.
    2. In an action against a street railway company to recover damages for personal injuries resulting from a collision between two of defendant’s cars, it is reversible error for the trial judge to submit the question of punitive damages to the jury, where there was no attempt by the plaintiff to show that the accident was wilfully intentional on the part of the motorman, or that the collision was the result of anything more than negligent operation and control of the car.
    Argued March 22, 1912.
    Appeal, No. 111, Jan, T., 1911, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 5303, on verdict for plaintiff in case of Carrie S. Wright, Administratrix of the Estate of Robert E. Wright, Jr., deceased, and Carrie S. Wright, individually, v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for .personal injuries. Before Wiltbank, J.
    At the trial after the plaintiff had proved the fact of collision and the injury to the plaintiff, the defendant’s counsel announced that the defendant would admit the liability. The plaintiff then offered medical evidence, after which the court charged in part as follows:
    “I was strongly inclined when I began to charge you to instruct you that, as this was so grave a case of gross negligence, you might find punitive damages, which would be damages in the nature of punishment of this company for a gross assault upon the safety of the woman, with no reparation since, and the holding of her in jeopardy, as it were, three years and two months before she can get her remedy from you. I instruct you that that is not to impress you at all. I say, I at one time thought I should so charge you, but I do instruct you that if under the evidence, confining yourselves entirely to the evidence, you believe this to have been a wilful and wanton collision, you may charge them with punitive damages. You must as judges of the facts be very calm and temperate in considering the point. You must be entirely without feeling, and if, viewing all the evidence and the evidence alone, you come to the conclusion that this was wilful and wanton, you may find an award to the woman of damages which we call punitive, that is to say, in excess of compensatory damages. If you do not so find it will be your duty to allow her only fair and reasonable compensation under the instructions which I have given you as to the items.”
    Verdict and judgment for Carrie S. Wright for $10,000 and verdict for Robert E. Wright for $1,000, upon which judgment was entered for $500, all above that amount having been remitted. Defendant appealed.

      Error assigned was portion of charge quoted above.

      Bussell Duane, with him Bernard J.. O’Connell, for appellant.
    The use of such inflammatory expressions in the charge as “so grave a case of gross negligence,” “punitive damages,” “punishment......for a gross assault,” “the holding of her (plaintiff) in jeopardy” was calculated to divert the minds of the jury from the only issue in the case, viz: the assessment of compensatory damages and to create a prejudice against defendant which was not removed by the subsequent retracting language, “I instruct you that that is not to impress you at all”: Monier v. Philadelphia Rapid Transit Co., 227 Pa. 273; McTaggart v. Thompson, 14 Pa. 149; Burke v. Maxwell, 81 Pa. 139; Heydrick v. Hutchinson, 165 Pa. 208; Fineburg v. Passenger Ry. Co., 182 Pa. 97; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. 306; Kehler v. Schwenk, 144 Pa. 348; Dooner v. Del. & Hudson Canal Co., 164 Pa. 17; Lerch v. Bard, 177 Pa. 197; Larzelere v. Tiel, 3 Pa. Superior Ct. 109.
    April 15, 1912:

      Eugene Raymond, for appellee.
    The verdict is a fair verdict rendered under an impartial charge Collins v. Leafey, 124 Pa. 203; Hall v. Vanderpool, 156 Pa. 152; Hersinger v. R. R. Co., 25 Pa. Superior Ct. 147; Wills v. Hardcastle, 19 Pa. Superior Ct. 525.
    The case was one warranting the award of punitive damages: Lake Shore & Mich. South. Ry. Co. v. Rosenzweig, 113 Pa. 519; Funk v. Kerbaugh, 222 Pa. 18; Peoples Nat. Cas Co. v. Millbury, 2 Monaghan 145; Louisville & Nashville R. R. Co. v. Roth, 130 Ky. 759 (114 S. W. Repr. 264); Louisville & Nashville R. R. Co. v. Smith, 135 Ky. 462 (122 S. W. Repr. 806); Buford v. Hopewell, 140 Ky. 666; Thomasson v. Ry. Co., 72 S. C. 1 (51 S. E. Repr. 443); Nickles v. Ry. Co., 74 S. C. 102 (54 S. E. Repr. 255).
    But even conceding, for the sake of argument, that the instructions as to punitive damages were erroneously given, as appellant argues, it was not reversible error, for the verdict was not influenced by it: Walsh v. Ry. Co., 232 Pa. 479; Adams v. Traction Co., 41 Pa. Superior Ct. 403.
   Opinion by

Mr. Justice Elkin,

The only question raised by this appeal is whether the learned trial judge erred in instructing the jury on the question of punitive damages. The general rule is that only compensatory damages can be recovered in negligence cases, and juries are not at liberty to go farther and find exemplary damages, unless the injury was done wantonly and wilfully, or was the result of such reckless indifference to the rights of others as amounts to a violation of them. Evil intent lies at the foundation of the right to claim punitive damages. The allowance of such damages is restricted to cases of wanton injury. There must be wrong motive accompanying the wrongful act: 1 Sedgwick on Damages, Sec. 363. Vindictive damages may be given in cases of actual malice as a punishment to the defendant: Barnett v. Reed, 51 Pa. 190. Where there is no evidence to warrant a finding that the wrongful act of the servant was the result of feelings of violence, outrage or reckless indifference, the question of exemplary damages should not be submitted: Phila. Traction Company v. Orbann, 119 Pa. 37. In torts committed through mistake, ignorance, or mere negligence, the measure of damages is compensation; but in cases where the negligent acts are committed wilfully, maliciously, or so negligently as to indicate a wanton disregard of the rights of others, exemplary damages may be awarded: Pitts., C. & S. L. Ry. Co. v. Lyon, 123 Pa. 140; Lynch v. Troxell, 207 Pa. 162. The rule that permits a recovery of punitive damages in 'certain cases is a harsh one, and the plainest principles of justice call for caution in its application: Funk v. Kerbaugh, 222 Pa. 18. The right to recover punitive damages is the exception, not the rule; and he who undertakes to bring himself within the exception has the burden of establishing the necessary facts upon which the right to recover punitive damages depends. We have examined this record in vain for evidence, showing or tending to show malice, or wanton violation of the rights of others, or evil intent, or wilful misconduct. There was no attempt to show that the accident was wilfully intentional on the part of the motorman, or that the collision was the result of anything more than negligent operation and control of the car. The measure of damages was compensation and there was no occasion to submit the question of punitive damages to the jury. For this reason the assignment of error is sustained.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Mestrbzat,

text:
    Richardson’s Estate.

      Decedent’s estates — Assignment of contingent interest — Consideration — Good faith.

    1. A person, sui juris, owning a contingent remainder in land or in personal property, may sell the same for such sum as may be agreed upon between himself and the purchaser, provided the former does not stand towards him in a trust relation, and in making the purchase acts in good faith.
    2. Where a grandson owning a contingent interest in his grandfather’s estate, at a time when he was heavily indebted and in danger of losing his whole interest by executions, sells and assigns his interest which was subject to prior liens of $32,000 under an agreement by which the assignee was to apply $5,000 to the payment of certain particular, urgent debts and return any of the balance of the $5,000 to the assignor, the assignee has no standing when the estate is before the Orphans’ Court for distribution to claim that the assignment should be set aside, where it appears that there was no trust relation between the assignor and the assignee, that at the time of the assignment both parties had equal knowledge as to the válue of the interest, that the value of such interest was subject to certain contingencies, and that the increased value of the interest at the time of distribution, which was $51,000, was due to the unexpected death of the life tenant.
    3. In such a case the assignment cannot be defeated because the assignee, through a misunderstanding applied a small portion of the $5,000 to payments not intended by the assignor. The court will surcharge the assignee as to such payments, but will not declare the assignment void because of them.
    ATgued March 25, 1912.
    Appeal, No. 45, Jan. T., 1912, by William Richardson, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of William Richardson, deceased.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that on May 12, 1906, William Richardson assigned by writing duly witnessed, his contingent interest in his grandfather’s estate to John Lloyd. At the time of the assignment this interest was subject to prior liens aggregating $32,000. Under the assignment Lloyd agreed to apply the sum of $5,000 which was the purchase money of the interest to the payment of certain urgent claims, and if there should be any balance $5,000 remaining after the payment of such claims to pay the same to Richardson. At the time of the assignment Richardson was involved financially and ‘a sale of his interest was threatened by executions. In distributing the $5,000 Lloyd paid out three items of $381.00, $378.24 and $15.85 in a way which the Orphans’ Court found improper, and he was accordingly surcharged with these amounts at the audit. When the estate of the grandfather came up for distribution after the death of the life tenant, it was found that the value of Richardson’s interest was $51,000.
    Other facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Charles E. Burr, with him Monroe Buckley and Michael Francis Doyle, for appellant,
    cited: Whelen v. Phillips, 151 Pa. 312; Baeder’s Est., 224 Pa. 452; Jackson’s Est., 203 Pa. 33; Phillips’s Est., 205 Pa. 511; Singer’s Est., 217 Pa. 295; Frey’s Est., 223 Pa. 61.

      April 15, 1912:

      Henry LaBarre Jayne, of Biddle, Paul & Jayne, for appellee.
   Opinion by

Mr. Justice Mestrbzat,

The denial by.William Richardson, the assignor and appellant, of the validity of the sale and assignment of his contingent interest in his grandfather’s estate to John Lloyd raises the only question in the case.

The appellant attacks the assignment on the ground that it was procured by oppression, extortion, and bad faith of the assignee. ■. Á person, sui juris, owning a contingent remainder in land or in personal property, may sell the same for such sum as may be agreed upon between himself and the purchaser, provided the former does not stand towards him in a trust relation, and, in making the purchase, acts in good faith : Whelen v. Phillips, 151 Pa. 312, 322. There was no trust relation between Richardson and Lloyd. The agreement and assignment disclose fully the facts showing the estate of the grandfather and the interest of the assignor therein, and how such interest was acquired and held. Both papers were executed in the presence of witnesses. Richardson was ■ cognizant of all the essential facts necessary to enable him to deal intelligently with the assignee. There doubtless was some difference of opinion as to the value of the assigned interest, but both parties had the same knowledge of the matter and, hence, stood on an. equal footing. Subsequent events of which neither party could know show that the consideration was possibly inadequate. But that of itself cannot defeat the assignment. The interest was contingent and its value necessarily uncertain. The life tenant, while quite old, was still living, and non constat that he would not survive his son and defeat the latter’s interest in the estate. As said by the learned court, owing to the several contingencies on which the estate depended, the price paid was more favorable to the assignor than many which have been sustained. It is true that nothing was paid to the assignee at the time the assignment was executed, but this is satisfactorily explained. The agreement of the parties required the assignee to pay out of the purchase price certain indebtedness of the assignor, and only the balance, which was subsequently ascertained, was to be directly paid to the assignor. This was done, and a complete and satisfactory settlement for the full consideration was made within three months of the assignment.

If there was oppression, Richardson’s creditors and not Lloyd, were responsible for it. At the time of the assignment Richardson was much involved financially, and a sale of his interest was threatened to satisfy a part of the indebtedness. To meet this situation and to prevent a compulsory sale and consequent sacrifice of his property, he was compelled to dispose of his interest in his grandfather’s estate. This placed Richardson in an unfortunate position, but he alone was primarily responsible for it and must accept the consequences. He cannot be permitted to charge Lloyd with his own improvident conduct and thereby invalidate a contract made for the very purpose of relieving him from his self-produced situation. As to the alleged oppression the court in banc said: “It is not pretended that Lloyd induced Richardson to become intoxicated in order to obtain any advantage over him; there was no evidence of any oppression exercised by Lloyd over Richardson at the time of the transaction. The assignment was witnessed by Alfred L. Wanamaker, Esq., a member of the bar, who was or had been counsel for Richardson, and, as he expressed it, was attempting to act as Richardson’s guardian; he had, indeed, actually endeavored to negotiate a loan from a trust company to Richardson upon the security of his interest; and, in addition, the papers were executed by Richardson’s wife, who made no objection thereto.”

The transaction, as declared in the agreement, was “an absolute and indefeasible sale” of the interest of the assignor in Ms grandfather’s estateyand the failure to "“'"account for the three items with which the court charged the assignee does not invalidate it. By the agreement, the assignee was authorized to apply a sufficient amount of the purchase price to the liquidation of the assignor’s debts due to certain specified creditors. He paid this indebtedness which required all but a small portion of the consideration money, and it was his duty to pay all the balance in his hands to Richardson. The retention of a part of it resulted manifestly from a misunderstanding by both parties as to Lloyd’s right to apply it to other purposes. In the release Richardson approved the payment by Lloyd of the disputed items, but the court properly held that the payments were unauthorized and should be accounted for. This carried out the terms of the sale and assignment and gave Richardson the consideration price in full. (The title to the property was absolutely vested in Lloyd by the sale,/and while the evidence may show a mistake in the application of part of the purchase money it does not show bad faith in the purchase, the execution of the contract and assignment, or in the performance of the agreement by the assignee.

The decree is affirmed


author: Mr. Justice Moschziskee,

text:
    State Road.

      Road law — Widening of street — Dedication of street by plan of lots — Act of May 9, 1889, P. L. 178.

    1. The Act of May 9, 1889, which provides that streets laid out upon a plan of lots, if unopened for twenty-one years shall not be opened without the consent of the owner, has no application to an old road or street opened and used prior to the passage of the act. If the road is dedicated by the plan of lots as of the width of sixty feet, but at the date of the recording of the plan is actually opened and used by the public to the width of fifty feet, the road may be subsequently widened to the width of sixty feet and the Act of May 9, 1889, P. L. 173, cannot be used by the owner to defeat such widening.
    2. The act relates to what, qua the particular land, would be new streets laid out by owners thereof but not opened or used by the public for “twenty-one years next after the laying out of the same,” and its purpose is to relieve land upon which streets have been laid out by the owner from the servitude thus imposed.
    Argued March 25, 1912.
    Appeal, No. 86, Jan. T., 1912, by the City of Philadelphia, from order of C. P. No. 3, Phila. Co., June Term, 1894, No. 1609, dismissing exceptions to report of referee In re Widening of State Road, Thirty-fifth Ward.
    Before'Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to report of Harold B. Beitler, Esq.
    The opinion of the Supreme Court states the ease.

      Errors assigned were in dismissing exceptions to report of referee.

      Edwin O. Lewis, assistant city solicitor, with him Eenry J. Gibbons, assistant city solicitor, and Michael J. Ryan, city solicitor, for appellant.
    The Act of May 9, 1889, does not apply to streets opened and used prior to its passage: Osterheldt v. Philadelphia, 195 Pa. 355;
      Hileman v. Hollidaysburg Borough, 47 Pa. Super. Ct. 41.
    April 15, 1912:
    The case of Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555, relied upon by appellees is not in point, for State road was actually opened on the ground.

      Charles B. Harding, with him Joseph Mellors, for appellees.
    The mere making of a plan, even if recorded, does not constitute a complete dedication until the rights of third parties have accrued, or by public use; that plan remains under the control of the owner and it may be modified or abrogated by him at will: Smith v. Union Switch & Signal Co., 17 Pa. Superior Ct. 444; Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318.
    The case of Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555, conclusively rules the application of the Act of 1889 to apply both to “whole streets” and “parts of streets.”
    The act has been held to apply to Philadelphia: Cotter v. Philadelphia, 194 Pa. 496; Quicksall v. Philadelphia, 177 Pa. 301.
    The case of Osterheldt v. Philadelphia, 195 Pa. 355. was decided not to be within the Act of 1889, because the ordinance of councils was passed and the street opened under it in 1884, the court holding that the act was not retrospective.
   Opinion by

Mr. Justice Moschziskee,

The plaintiffs recovered damages for two strips of land five feet wide, claimed to have been taken from their property on each side of State road, formerly Aramingo street, in the widening thereof from fifty to sixty feet.

It appears from the evidence and the report of the referee that on June 26, 1856, the then owners of a large tract of land, of which the plaintiff’s property was a part, executed and recorded a deed-poll with a plan attached sub-dividing the tract into lots and streets and providing that the latter were “laid out and partially opened for the use and benefit of all persons who have heretofore purchased or hereafter may purchase lots of ground, parts or portions of said tract.” Aramingo street was named and appeared of the width of sixty feet, being at that time an open, occupied and used road fifty feet wide; subsequently a considerable number of lots was sold off the plan. In 1870 the plaintiffs built fences in the bed of the plotted street along the fifty feet line, thus enclosing the two strips of land now in controversy. In 1863 the municipality confirmed a plan of that section of the city whereon State road appeared sixty feet wide at the point in question, and several other confirmations were afterwards made showing the street of that width, but no physical work was done or actual possession taken of the two five feet strips until 1893; in that- year, by virtue of an ordinance which declared that State road “should be widened to the full width of sixty feet” the city tore down the plaintiffs’ fences and occupied the land. The plaintiffs claimed before a road jury in 1894, which refused damages; an appeal was taken to the Common Pleas, and in 1903 a referee was appointed to try the case. The referee’s report was filed in 1911, awarding $3,600 to the plaintiffs, which by agreement of counsel filed in this court was reduced to $2,190. Exceptions were dismissed and the report confirmed by the court below, and from this confirmation the city has taken the present appeal.

The referee held that the Act of May 9, 1889, P. L. 173, applied and relieved the plaintiffs’ land from the dedication of 1856. This statute is entitled “An act relating to unused streets,” and provides, “T,hat any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been or shall be, laid out.” The controlling question is, under the facts in this case, does the act apply.

The making and recording of the deed-poll and plan in 1856 and the subsequent sale of lots therefrom would constitute a dedication of all the land in the bed of the street: Quicksall v. Phila., 177 Pa. 301, 304; Smith v. Union Switch & Signal Co., 17 Pa. Superior Ct., 444, 450; Osterheldt v. Phila., 195 Pa. 355; Scott v. Donora South. R. R. Co., 222 Pa. 634, 641; including the two strips of five feet each now claimed by the plaintiffs. The plan of 1856 was never formerly changed by the dedicators or their successors in title, and the building of the fences in 1870 and their subsequent maintenance would not serve to defeat the dedication: Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92, 102. Aside from the Act of 1889 the city was unlimited in the time given by law in which to accept this dedication, “acceptance by the public need not be immediate but may be made when public necessity or convenience arises:” Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318, 328; “the act established a limitation of time where none before existed:” Quicksall v. Phila., 177 Pa. 301, 305. Granting that the first real acceptance of the land in controversy was in 1893 when the city took physical possession of the dedicated strips, the act in question has no application to an old road or street opened and used prior to its passage: Osterheldt v. Phila., 195 Pa. 355; or to the widening thereof through land previously dedicated as a part of the highway; and it should not have been given such a construction. The act relates to what, qua the particular land, would be new streets laid out by owners thereof but not opened or used by the public for “twenty-one years next after the laying out of the same”; and its purpose is “to relieve land upon which streets have been laid out by the owner” from the servitude thus imposed: Quicksall v. Phila., 177 Pa. 301, 305. The statute does not in terms include property given to widen an old street in existence at the time of the dedication of the land, as in this case, nor is there any intimation therein of a purpose so to do. The evidence plainly indicates that in 1865 State road at the location of the plaintiffs’ property was an open existing highway; but if this were not the case, and in point of fact the road was first opened by the dedication in that year, since it appears that the public then had and after-wards kept possession and actually used the bed of the highway throughout its entire length, even if they did not occupy its whole width, such user and possession would carry the full benefit of the dedication of sixty feet: Hielman v. Hollidaysburg Boro., 47 Pa. Superior Ct. 41; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; which could not be defeated by subsequent encroachments upon any part of the road, no matter how long continued: Com. v. Moorehead, 118 Pa. 344, 354; McGuire v. Wilkes-Barre, 36 Pa. Superior Ct. 418; so again the act would not apply Washington Female Seminary v. Washington Boro., 18 Pa. Superior Ct. 555, relied upon by the appellee, rules nothing to the contrary; the real purport of that case is explained by Judge Head in Hileman v. Hollidaysburg Boro., 47 Pa. Superior Ct. 41, 49.

For the reasons given, we are brought to the conclusion that the plaintiffs had no right to recover and that error was committed by the court below in confirming the report of the referee. The assignments are sustained, the judgment for the plaintiff is reversed, and judgment is here entered for the defendant.


author: Me. Justice Mestrezat,

text:
    DeHaven’s Estate.

      Assignment — Insurable policy — Assignment to secure debt— Future indebtedness — Collateral security.

    1. An assignment as collateral security should be strictly construed.
    2. An assignment of a policy of insurance “as collateral security for indebtedness” covers only a present indebtedness existing at the time of the assignment and not indebtedness to be created in the future.
    3. Where an insured assigns endowment policies on his life “as collateral security,” and the indebtedness in existence at the date of the assignment is subsequently paid, the fact that the assignee continued to hold the policies until they became due and were paid, is not proof that the assignment was intended to cover indebtedness created after the date thereof. The assignee had a right to retain the policies until the premiums advanced by him had been paid.
    Argued March 26, 1912.
    Appeal No. 341, Jan. T., 1912, by Thomas Batley, from decree of O. C. Phila. Go., sustaining exceptions to adjudication in Estate of Holstein DeHaven, deceased.
    Before Fell, O. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to adjudication.
    From the record it appeared that on April 10, 1896, Thomas Batley assigned two endowment policies of insurance to the Provident Life and Trust Company, to Holstein DeHaven. The assignments were practically identical and the material portion of one of them was as follows:
    For value received, I hereby transfer, assign and set over unto Holstein DeHaven and his assigns, all my right,» title and interest in policy of insurance issued by The Provident Life and Trust Company of Philadelphia, No. 28,992, dated October 23, 1886, and all advantages to be derived therefrom as a collateral security for indebtedness.

      April 15, 1912:
    The other material facts in the case appear by the opinion of the Supreme Court.

      Error assigned was in sustaining exceptions to adjudication.

      Samuel W. Pennypacker, with him J. Whitaker Thompson, for appellant.
    The assignments of the insurance policies being “as collateral security for indebtedness” cover only a present indebtedness existing at the time of the assignment and not indebtedness to be created in the future: Munn v. McDonald, 10 Watts 270; Seanor v. McLaughlin, 165 Pa. 150; Brown v. James, 114 N. W. Repr. 591; Clement v. Houck, 113 Iowa 504 (85 N. W. Repr. 765); Penna. Co. for Ins. on Lives & Granting Annuities App., 18 W. N. C. 469; Robinson v. Frost, 14 Barb. (N. Y.) 536; Shroder v. Hatz, 47 Pa. 528; Selden v. Nat. Bank, 69 Pa. 424; Price v. Fire Ins. Co., 13 W. N. C. 312; Smuller v. Union Canal Co., 37 Pa. 68; Bank of U. S. v. Maclester, 9 Pa. 475; Beyer v. Fenstermacher, 2 Whart. 95; Peterson v. Height, 3 Whart. 150.
    There is no evidence in the case to justify an inference that the purpose of the assignments was to protect future indebtedness, nor sufficient evidence that such indebtedness remained unpaid. .

      J. Claude Bedford, with him William N. Trinkle, Charles H. Downing and John C. Bell, for appellees.
    The assignment covered future indebtedness: Merchants’ Nat. Bank v. Hall, 83 N. Y. 338; Simons v. First Nat. Bank, 93 N. Y. 269; Farr v. Nichols, 132 N. Y. 327 (30 N. E. Repr. 834).
   Opinion by

Me. Justice Mestrezat,

The single question raised by this appeal is whether the word “indebtedness” in the assignments of the two life insurance policies means an indebtedness existing at the time of the assignment, or also includes any future indebtedness that might be contracted and become due from Batley to DeHaven. The learned auditing judge held that the assignment was intended to and did secure only a present existing indebtedness. The court in banc reversed the auditing judge, and held that the assignment is broad enough to include any present and future indebtedness.

Batley assigned to DeHaven the two life policies, each for five thousand dollars, “as a collateral security for indebtedness.” Whatever may have been the intention of the parties, the language of the assignment standing alone includes only an indebtedness existing at the date of the transfer of the policies. Instead of making the transfer “as a collateral security for indebtedness,” if the parties intended it to cover future advances, as claimed by appellee, they could, and we think would, have said “collateral security for any future indebtedness.” An assignment as collateral should be strictly construed, and, as thus interpreted, the language of the assignment in question does not disclose an intention to secure future advances.

The circumstances and facts surrounding the transaction confirm the view that the policies were intended to secure an indebtedness existing at the time of the assignment. Batley was engaged for several years in extensive building operations, and DeHaven was a conveyancer, manager of estates, and real estate broker. They had dealings growing out of Batley’s business as a builder. DeHaven advanced money and negotiated mortgages upon houses built by Batley. He stated an account running from May 24, 1891, to December 12, 1892, which shows receipts of money by him and payments of money made to Batley. These all grew out of Batley’s building operations. The balance shown by the account, seventy-five hundred dollars, was secured by mortgage. Batley retired from the building business in 1892. So far as appears, therefore, there was no occasion for the continuance of the same business relations between the two men. Batley gave DeHaven a second mortgage on the same premises in August, 1895, for three thousand dollars. The assignment of the policies was made on April 10, 1896. In the meantime, payments had been made on the mortgages leaving, at the date of the assignment, a balance due of eight thousand dollars. It is conceded that this indebtedness was existing at the time of the assignment. There is no evidence in the case that would warrant the conclusion that Batley was otherwise indebted to DeHaven at that time. The statement of June 28, 1901, does not show an indebtedness due DeHaven at the date of the assignment. It is entirely insufficient for the purpose. The meaning of the statement is not clear. It purports to be a full settlement between the parties as to that date “as per book account.” The appellee contends that these words show there was an indebtedness outside of the mortgage debt, but we do not regard this as at all probable. There was no occasion at that time for what is technically called a “book account” between the parties. Subsequent to 1892, the dealings between the parties, so far as the evidence discloses, did not require a book account. Batley was no longer in the building business, and the only business he had with DeHaven was a few small loans which certainly would not be the subject of a book account, but would be evidenced in another and proper way. Aside from this, however, in view of DeHaven’s letter of December 23, 1892, the account is probably a statement of the balance due on the mortgage indebtedness. Payments were made at different times on the first mortgage before it was satisfied, and DeHaven may have entered on his books the amounts and dates of the payments. At all events, there is nothing whatever to show that any part of the amount included in the sum due January 1, 1898, was an existing indebtedness or even an indebtedness contemplated on April 10, 1896. when the insurance policies were assigned. So far as the evidence discloses, the mortgage debt was the only “indebtedness” dne from Batley to DeHaven at the date of the assignment, and there is nothing that leads to the conclusion that the assignment was not to secure that indebtedness, and in the absence of the existence of any other debt due by Batley to DeHaven at the time, it must be assumed that was the debt the collateral was intended to secure.

The facts suggested in the argument of the, appellee as showing that the mortgage debt was not the indebtedness intended to be secured by the insurance policies do not sustain the position. It is true that DeHaven retained the policies after the two mortgages were satisfied in 1902. It appears that Batley paid the premiums on the policies up till the date of the assignment, and thereafter they were paid by DeHaven. The latter, therefore, had the right to retain the policies until these premiums were repaid him which was not done until they were paid out of the proceeds of the policies collected by his executors. The fact that Batley did not have the policies reassigned to him does not conclude him as to his right to their proceeds, as it may well be that he was unable to raise the money to pay the premiums. He could not and did not object to the payment of one of the policies to the executors as it required the amount to repay the premiums. That the mortgage indebtedness was of some years’ standing is not sufficient to show that it was not intended to be secured by the assignment of the policies. The creditor had the right to take as many securities for the indebtedness as he could obtain from the debtor. His purpose in doing so is immaterial. The claimant having shown that the mortgage indebtedness existed at the date of the assignment the burden was shifted to the executors to show any other indebtedness due from Batley secured by the assignment. This burden was not met by the statement of June 28, 1901.

We are of the opinion that the language of the assignment and the circumstances and facts disclosed by the evidence show that the collateral was intended to secure only an indebtedness existing at the date of the assignment, that the mortgage debt was the only indebtedness existing at that time, and that the assignments were not made to protect a future or subsequent indebtedness.

The decree of the court below is reversed, and it is ordered that the appellant receive the amount of the policies less the premiums paid by DeHaven thereon diminished by the dividends received by him.


author: Mr. Justice Mestrezat,

text:
    Lipsky v. Stolzer, Appellant.

      Practice O. P. — Disagreement of jury — Motion for judgment upon the whole record — Judgment — Appeal—Act of April 20,1911, P. L. 70.

    1. Where a jury has disagreed and the defendant moves that all the evidence shall be certified and filed, and also moves for judgment in favor of the defendant upon the whole record under the Act of April 20, 1911, P. L. 70, and the court acts upon the motion as follows: “Motion dismissed,” such action of the court is not a judgment from which an appeal lies.
    2. Under the Act of April 20, 1911, P. L. 70, the record should disclose the several steps in the proceeding. It should appear that binding instructions had been reserved or declined, that the jury had disagreed, that the party had moved the court to certify the evidence and enter judgment in his favor, that the court was of the opinion that a new trial should not be granted, and that judgment was entered in favor of the appellee. Unless these facts are found to exist, the statute does not empower the trial court to enter a judgment, nor authorize an appeal from its action in refusing judgment.
    3. The dismissal of a motion for judgment implies that the court is “of opinion that the ease should be re-tried.”
    Argued March 26, 1912.
    Appeal No. 310, Jan. T., 1911, by defendant from order of C. P. No. 1, Phila. Co., March T., 1908, No. 5443, dismissing motion for judgment in case of Lazar Lipsky v. Charles Stolzer.
    April 15, 1912:
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Appeal quashed.
    Trespass to recover damages for personal injuries.
    Motion for judgment upon the whole record.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing motion for judgment.

      G. Von Phul Jones, with him J. Frederick Martin, for appellant.

      Henry M. Stevenson, with him Joseph B. Winokur and Thomas J. Norris, for appellee.
   Opinion by

Mr. Justice Mestrezat,

This was an action of trespass by an employee against his employer to recover damages for injuries which the plaintiff alleges he sustained by reason of the negligence of the defendant. On the trial of the cause the defendant submitted a point requesting the court to instruct the jury that “under all the evidence in this case, the verdict must be for the defendant.” The point was declined, and the jury disagreed and were discharged without rendering a verdict. Thereupon the defendant moved for judgment under* the Act of April 20, 1911, P. L. 70. The motion was in the following form: “And now, November 27, 1911, the defendant, Charles Stolzer, by his attorney, C. Von Phul Jones, Esq., moves the court to have all the evidence taken upon the trial of the above mentioned case, duly certified and filed so as to become part of the record, and for judgment in favor of the defendant, upon the whole record, under the provisions of the Act of Assembly of April 20,1911.” The action of the court on the motion was as follows: “December 8,1911, motion dismissed. December 8,1911, defendant excepts to order of the court dismissing defendant’s motion for judgment. Allowed and filed.” The defendant has taken this appeal, and assigns for error the action of the court in dismissing the motion for judgment.

The proceeding in the court below and this appeal were taken in pursuance of the recent Act of April 20, 1911, P. L. 70. It provides, inter alia, that when “a point requesting binding instructions has been reserved or declined, and the jury have disagreed, the party presenting the point may......move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment in his favor upon the whole record; whereupon it shall be the duty of the court, unless it shall be of opinion that the case should be retried, to so certify the evidence, and to enter such judgment, if any, as under the law should have been entered upon that evidence at the time of trial;......(and) from the judgment thus entered the party against whom it is entered may appeal” to the proper appellate court. Under this statute, therefore, where a party has requested binding instructions which have been declined, and the jury have failed to agree, he may move the court to have the evidence certified and filed, and for judgment upon the whole record. It then becomes the duty of the court to certify the evidence and to enter judgment, “unless it shall be of opinion that the case should be retried.” If the court is of opinion that there should be a retrial of the cause, then it is not required either to certify the evidence or to enter judgment in the case. Until a judgment is entered there can be, of course, no appeal to this court. The record should disclose the several steps in the proceeding, and show that a judgment has been entered in compliance with the statute. It should appear that binding instructions had been reserved or declined, that the jury had disagreed, that the party had moved the court to certify the evidence and enter judgment in his favor, that the court was of the opinion that a new trial should not be granted, and that judgment was entered in favor of the appellee. Unless these facts are found to exist, the statute does not empower the trial court to enter a judgment, nor authorize an appeal from its action in refusing judgment.

Turning to the record in the present case, we find that the jury disagreed and were discharged, and that the appellant moved the court to certify the evidence and to enter judgment in his favor on the whole record. The only action of the court taken in pursuance of the motion was: “Motion dismissed.” This was not a judgment in contemplation of the act. It was simply the denial of the motion to certify the evidence and to enter judgment which was proper if the court was of the opinion that the case should be retried. We must assume that the motion to certify the evidence and for judgment was denied for that reason, otherwise the court would have entered a judgment in the case. If the evidence is conflicting the court cannot enter judgment under the statute. It does not, and could not, constitutionally, authorize the court to invade the province of the jury and pass upon the credibility of witnesses and determine questions of fact, but confers upon the court the power to enter judgment for the plaintiff or the defendant upon the whole record where there is no conflict of evidence and where binding instructions should have been given on the trial. If, however, the court is of opinion that the case should be submitted to another jury, it should dismiss the motion for judgment and direct the case to be retried. In taking such action, however, the record should disclose the reason for dismissing the motion and refusing judgment as from such order no appeal lies. It is only when the court thinks there should be no new trial and enters judgment “upon the whole record” that the defeated party has the right to be heard in the appellate court.

It appearing from the record in the case that no judgment was entered from which an appeal lies, this appeal is quashed at the costs of the appellant.


author: Mr. Justice Brown,

text:
    Welsh v. Dick, Appellant.

      Contract — Time as essence of contract — Waiver — Vendor and vendee.

    1. The right to insist upon time as the essence of a contract may be waived as effectually by implication as by express agreement, and whether there has been an implied waiver in any case depends upon whether the conduct of the party seeking to invoke the strict provision of the contract had been such as to lead the other party to believe he would not be held to it, but might, notwithstanding it, proceed to perform.
    2. By a contract in writing dated May 11, 1906, plaintiffs agreed to sell land to the defendant. The contract provided that “The taxes and rents to be apportioned to the date of settlement which is to be within three months from this date, and time, it is hereby agreed, shall be of the essence of this contract.” By a later, writing dated August 4, 1906, the time for settlement was extended to September 20, 1906. On account of certain legal proceedings, which were necessary, the deed was not executed until November 3, 1906, and was not tendered until some months thereafter. There was evidence of acts and conduct not only of the defendant, but also of his authorized attorney after September 20, 1906, which were inconsistent with an intention on the part of the defendant to hold the plaintiffs to strict compliance with the contract, and indicated to them that he would still perform if they would. Held, in an action for breach of contract that the question of defendant’s waiver of the time limit was for the jury.
    3. In an action for the breach of a contract to sell land, where the contract was signed by the defendant himself, and there is no disclosure of any other person in interest than the defendant, it is proper for the trial judge to refuse to permit the defendant to show that he had no beneficial interest in the purchase of the property; nor is it error for the trial judge to refuse to permit the defendant to show that immediately after the execution of the contract he assigned it to another person, where there is no offer to prove notice of such assignment to the other parties, and where tbe evidence, if admitted, would contradict a later act of the defendant in signing an extension agreement.
    Argued Jan. 17, 1912.
    Appeal No. 226, Jan. T., 1911, by defendant from judgment of C. P. No. 5, Pbila. Co., Sept. T., 1907, No. 2634, on verdict for plaintiffs in case of William L. Welsh and Virginia C. Welsh, to the use of Virginia C. Welsh, trustee under the will of Elvina L. Cartwright, deceased, v. John Dick.
    Before Fell, C. J., Brown, Mestrezat, Stewart, and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover purchase price of real estate. Before Staake, J.
    The opinion of the Supreme Court states the facts of the case.
    At the trial when Lewis Lawrence Smith, Esq., was on the stand the following question was asked him:
    “By Mr. Jones:
    Q. Do you know what was done by Mr. Dick with that contract immediately after its execution?
    A. I do.
    Mr. Brown: I object to this.
    The Court: How long after its execution?
    Mr. Jones: Dick assigned the contract immediately upon its execution to Harris.
    The Court: Unless it is intended to show that immediately after the execution of the contract Dick assigned the contract and notice of the assignment was given to the other party, . I cannot see the relevancy of it.
    Mr. Brown: Not only notice but acquiescence.
    Mr. Jones: It is contended here that Mr. Smith represented Mr. Dick.' There is no evidence that he represented Mr. Dick and we are put in the position of proving a negative proposition — of showing that Mr. Dick had no connection with the transaction except the formal part of signing the agreement, and that he assigned it to Mr. Harris, and we wish, to go further and show that Mr. Smith represented Mr. Harris.
    The Court: If you will say to the court that you propose showing not only that Mr. Dick made the assignment, but that the fact of the assignment was promptly communicated to the other parties, I would not feel that I should sustain the objection to the evidence. But, if you mean to say that there was simply an assignment made of this contract which was kept entirely from the knowledge of the other party — and apparently, so far as the case has gone up to this time it is the first we have heard of such an assignment — and especially as it would contradict the act some months later of Mr. Dick in signing the extension agreement, I shall have to sustain the objection.”
    The defendant, John Dick, was asked this question:
    Q. Did you have any beneficial interest in the purchase of this property?
    (Objected to as irrelevant and immaterial.)
    The Court: The difficulty I have is as to his contradicting the terms of his actual agreement. It is a question of law as to whether he had or had not a beneficial interest and whether any interest that any other person would have, would not be an interest which he would have to take through Dick.
    Mr. Jones: What the question means is was he the principal or acting for somebody else in the transaction — I will frame it that way.
    Q. Were you the principal in the transaction for the purchase of this property, or did you represent somebody else?
    (Objected to.)
    Mr. Brown: The paper speaks for itself. This cannot be relevant in this case as respects this plaintiff.
    The Court: This is the man who has made this agreement, and if he had no beneficial interest I do not see how any other person could have under this agreement. I think I will have to sustain the objection.

      Mr. Jones: My question is whether he was acting for himself in this transaction or as agent for somebody else. (Objected to.) (Objection sustained.) (Exception for defendant.)
    Verdict and judgment for plaintiffs for $96,541.57. Defendant appealed.

      Errors assigned, among others, were (1) refusal of binding instructions for defendant; (2) refusal of defendant’s motion for judgment n. o. v.; (3, 4, 5) portions of charge quoting them; (6, 7) that the charge was inadequate and misleading, and (9, 10) rulings on evidence as above, quoting the bill of exceptions.

      John Gf. Johnson, with him James Collins Jones, for appellant.
    In this case the parties have made time of the essence of the contract, and it was, therefore, necessary for the plaintiffs to show their readiness to perform within the stipulated period: Dauchy v. Pond, 9 Watts 49; Westerman v. Means, 12 Pa. 97.
    The fact that it does not appear that the defendant called upon the plaintiffs for performance within the stipulated time does not excuse the plaintiffs from showing their readiness to perform within such time.
    The evidence in this case shows that the plaintiffs were not ready to perform until the time fixed for performance had expired, that is to say, until after the contract was dead by its own terms.
    There is no evidence in this case on which the defendant can be charged as principal by Mr. Smith’s acts of waiver.

      Francis Shunlc Brown, of Simpson, Brown & Williams, for appellees.
    The defendant’s claim that he was not the real purchaser but was acting for Enon M. Harris does not affect his liability under Ms contract: Beymer v. Bonsall, 79 Pa. 298.
    The supplemental agreement extending the time for settlement operated to waive the provision of the original agreement making time of the essence of the contract: Dauchy v. Pond, 9 Watts 49; Westerman v. Means, 12 Pa. 97; Forsyth v. North American Oil Co., 53 Pa. 168; McNish v. Reynolds, 95 Pa. 483; Margut v. Mut. Aid Society, 148 Pa. 185.
    The conduct of defendant alone constituted a waiver as to the time for performance: Graham v. Dempsey, 169 Pa. 460; Packer Co. v. Mfg. Co., 157 Pa. 342; Com. v. Turnpike Co., 153 Pa. 47.
    Where time for performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to his part of the agreement, will be taken to have waived it altogether: Forsyth v. Oil Co., 53 Pa. 168; McNish v. Reynolds, 95 Pa. 483; Margut v. Mut. Aid Society, 148 Pa. 185; Burchfield v. Alpha Process Co., 45 Pa. Superior Ct. 254; Moore’s Estate, 191 Pa. 600; Webb & Co. v. Novelty Hosiery Company, 231 Pa. 297; Focht v. Rosenbaum, 176 Pa. 14; Dauchy v. Pond, 9 Watts 49; Westerman v. Means, 12 Pa. 97.
    The acts of Mr. Smith clearly constituted a waiver of the condition as to time of performance. The acts of defendant amounted to a holding out to plaintiffs that he was represented in the negotiations by Mr. Smith; DeWitt v. DeWitt, 202 Pa. 255; Hubbard v. Tenbrook, 124 Pa. 291; Mecouch v. Loughery, 12 Phila. 416; McDowell v. Meredith, 4 Whart. Pa. 311; Kelsey v. National Bank, 69 Pa. 426; Berger’s App. 96 Pa. 443; Wachter v. Assurance Co., 132 Pa. 428; Hotchkiss v. Roehm, 181 Pa. 65; Curtis v. Richards, 40 Pac. Repr. 57; Himes v. Herr, 3 Pa. Superior Ct. 124; McMahon v. Bardinger, 18 W. N. C. 112.
    The defendant herein was in no position to rescind the contract because he had not demanded performance of the plaintiff nor himself tendered performance in his part: Boyd v. McCullough, 137 Pa. 7.

      April 29, 1912:
   Opinion by

Mr. Justice Brown,

The contract upon which this action was brought was entered into in writing May 11, 1906. By its terms the appellant agreed to purchase from the appellees a tract of land in Delaware county and to pay them for it $79,-000. The clause in the agreement upon which he relies for relief from the judgment recovered against him in the court below is as follows: “The taxes and rents to be apportioned to the date of settlement, which is to be within three months from this date, and time, it is hereby agreed, shall be of the essence of this contract.” By a supplemental written agreement, dated August 4, 1906, the time for settlement was extended to Sepember 20.1906. The appellees, however, did not tender a deed to the appellant until August 3, 1907, and the real question involved in this controversy between them is whether he had waived his right to insist that a deed should have been tendered to him on or before September 20,1906, if he is to be compelled to pay for the property. The learned trial judge, though so requested, refused to direct the jury to return a verdict for the defendant, because the appellees had not performed their contract within the time fixed for its performance, and the finding was that he had waived the clause which provided that time was to be of the esssence of the contract.

The right to insist upon time as the essence of a contract may be waived as effectually by implication as by express agreement, and whether there has been an implied waiver in any case depends upon whether the conduct of the party seeking- to invoke the strict provision of the contract had been such as to lead the other party to believe he would not be held to it, but might, notwithstanding it, proceed to perform. If in the case before us the conduct of the appellant after September 20.1906, was inconsistent with an intention on his part to hold the appellees to strict compliance with the contract, and indicated to them that he would still perform if they would, the jury were justified in finding that he had waived the clause upon which he now would stand. In support of their contention that the appellant had waived the performance of the contract within the specified time, the appellees submitted evidence, not only of what he himself had done, but of what had been done by Lawrence Smith, Esq., a member of the bar. who, they allege, was acting as his counsel. The instruction to the jury was that, if they should find, that Smith had actually been acting for appellant, or that the latter had led the appellees to believe he was counsel for him, Smith’s conduct might be regarded as a waiver of the appellant’s right to be released from the contract under its time limit provision. We need not refer to all of the evidence submitted by the appellees as to the authority of Smith to act for the appellant. It is sufficient to say that certain portions of it justified the finding that he was either the actual counsel for the appellant or that the latter was estopped by his own conduct to deny Smith’s authority to act for him. If Smith did have authority to act for him, his acts clearly constituted a waiver of the time limit in the contract.

A. J. Wilkinson, Esq., a member of the bar and counsel for the appellees, prepared the agreement of May 11, 1906, and on that day he and his clients met Smith and Dick, the appellant. Wilkinson submitted the agreement to Smith, who, after reading it, had some conversation with Dick, and Wilkinson was then informed that the agreement was ail right. It was immediately signed by the parties, and Dick, in accordance with the terms of the contract, gave his check to one of the vendors for $1,000 in part payment of the purchase money. It was subsequently found necessary to get a decree of the Orphans’ Court of Delaware County, authorizing or confirming the sale, and a petition for that purpose was presented to the court on June 21, 1906, to which was appended a draft of the land, furnished to Wilkinson by Smith. It having become evident that the decree conld not be obtained within three months from May 11, 1906, Smith, on July 21st, wrote Wilkinson as follows: “Upon an examination of the contract between Mr. and Mrs. Welsh and John Dick I find that the limit of the contract is rather definitely stated to be three months and that time shall be of the essence of the contract. I think under the circumstances that while so far as you and I are concerned it will be entirely satisfactory, it will be better to have Mr. Welsh on the one hand in his own right and as attorney sign an agreement or extension and I will have Mr. Dick on the other side sign a similar agreement. If this meets with your approval I would suggest that the time be fixed as on or before September twentieth, unless you prefer to have it go to the first of October, in which event you are at liberty so to state it.” On August 4, 1906, an agreement was signed by the appellees and the appellant, extending the time for “settlement for the premises” to September 20, 1906. Dick’s signature to this agreement was witnessed by Smith. The decree of the Orphans’ Court was not made until October 6, 1906, and by it the conveyance was directed to be made, not to Dick, but to Thomas B. Hartman, whose name had been given by Smith to Wilkinson as Dick’s appointee. The original agreement provided that he might so ap-, point. After the sale was confirmed, Smith prepared and sent a deed to Wilkinson for execution by his clients, the appellees, and they executed it on November 3, 1906 — a month and a half after the expiration of the time limit fixed by the supplemental contract of August 4, 1906. After the deed had been executed there were several meetings, at which Smith and Wilkinson were present, for the purpose of closing out the purchase, and, though Dick had knowledge of these meetings, he never notified Smith nor intimated to anyone else that he no longer considered himself liable under the contract. The question of Smith’s authority to commit Dick to a waiver of the time limit was, under all the evidence, for the jury, and that Dick’s own waiver of it could not have been taken from them, calls for no discussion, in view of the testimony of Wilkinson, whose credibility was for the jury. He testified that on August 3, 1907, he tendered the deed to Dick, but it was not accepted, Dick expressing Ms regret that he had allowed himself to be used for the benefit of other parties in executing the contract. It may be well to note here that the appellees, at the time they contracted with the appellant, had no intimation that he was not acting for himself alone, and nothing done by them before or after September 20, 1906, was inconsistent with their right to hold him to the terms of the agreement. A day or two after the tender of the deed Wilkinson met Dick again and asked him what he was going to do “about the Welsh matter.” His reply was, “I am trying to arrange the matter and hope to be ready in two or three days.” The testimony of Wilkinson clearly tended to show a waiver by the defendant himself of the condition as to the time for performance.

The court below correctly held that the tender of the deed was good, if the testimony of Wilkinson was to be believed. True, the name of the grantee was Hartman, but he was named as the appointee of Dick, who had the right to appoint under the contract. The name of this appointee was inserted in the petition to the Orphans’ Court at the request of Smith, presumably acting for Dick at the time the latter was still admittedly liable on the contract, and the deed was not declined because it had not been executed to the proper person.

The offers which are the subjects of the 9th and 10th assignments were properly excluded, for the reasons intimated by the learned trial judge in overruling them. The 6th and 7th assignments complain of the inadequacy of the charge. We find no merit in them. The case was essentially one of fact, and every question raised by the evidence went to the jury under full and fair instructions, leaving them free to find for or against the defendant.

Judgment affirmed.


author: Mr. Chief Justice Fell,

text:
    Kost v. Ashland Borough, Appellant.

      Negligence — Boroughs — Infant—Fall of pole — Evidence — Electric light company — ■Secondary liability of borough.

      1. In an action against a borough to recover damages for the death of a child caused by the fall of a pole in a street, where it appears that the pole had been standing in the street for many years, and had become decayed, but with little indication of decay on the surface of the pole, it is reversible error to refuse to permit the borough to show that the pole had been erected by an electric light company that had authority under its charter to erect poles in the borough streets.
    2. In such a case the fact that the pole was erected by a light company, does not relieve the borough from .the duties of supervision and inspection, but its duty is secondary, and the rule in relation thereto is less stringent than that which would apply if the pole had been unlawfully on the street, or had been erected by the borough, and was under its sole management. The duty of the borough in the care of its streets is not to seek for defects, but to observe them when they become observable in the exercise of reasonable supervision.

      Negligence — Infant — Damages—Excessive verdict.

    3. In an action to recover damages for the death of a little girl ten years old a verdict of $3,500 for plaintiff is excessive, where the total loss proved, including all expenses incurred, was $122.69, and the only other proof on the subject of loss was that she assisted an older sister in household work, and the care of younger children of the family. In such a case a recovery must be based on proofs, and without them, no verdict should be permitted to stand.
    Argued February 12, 1912.
    Appeal No. 156, Jan. T., 1912, by defendant from judgment of C. P. Schuylkill Co., Sept. T., 1909, No. 381, on verdict for plaintiff in case of Charles Host v. Ashland Borough.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed,

      Trespass to recover damages for personal injuries to a little girl ten years old. Before Shay, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the following offer was made:
    Mr. Reilly: We now make a formal offer of the letters patent and the charter of the Ashland Illuminating Company for the purpose of showing that they have the authority to erect their poles on the streets, lanes and alleys of the borough of Ashland.
    The Court: There is no doubt about that proposition.
    Mr. Freiler: We object to that as being incompetent.
    The Court: Subject to such regulations as the borough may adopt. But I do not see that it is evidence in this case.
    Mr. Reilly: I hope to satisfy your honor that it is very important, the point being that this pole was lawfully upon the public highway. Then the liability of the municipality raises a very different question.
    Mr. Freiler: We object to the offer of the charter at this time on the ground that it is incompetent, irrelevant and immaterial.
    The Court: We sustain the objection.
    Defendant excepts. Bill sealed. (1)
    We propose to show that the pole was placed there by the Ashland Electric Illuminating Company, a corporation duly incorporated by law, which had, under its corporate rights and by the laws of the Commonwealth, the right to place its poles upon the public streets, lanes and alleys of the borough of Ashland.
    The Court: Subject to such regulation and supervision as the borough would lay down by ordinance.
    Mr. Reilly: That may or may not be the case.
    The Court: That is the law.
    Mr. Reilly: Our position will be that this company had the right of eminent domain to go there, of course, subject in its exercise to the regulations of the town council, but the council could not prohibit them from a reasonable exercise of their rights. And further, we propose to prove by the witness on the stand that he had a familiar knowledge of the pole in question and its condition for some time prior to the accident and immediately preceding the same, and that a short time prior to the accident he inspected and examined the pole and found it then to be apparently in safe condition, no evidences of any weakness or to be in a bad or unsafe condition. This is offered as evidence for the purpose of showing that the defendant here was not negligent.
    Mr. Freiler: The first part of the offer is objected to for the reason that it is incompetent, irrelevant and immaterial, the borough of Ashland having the burden placed upon it under the law to keep safe passage-way along its highways, and for the further reason that they are primarily liable to all travelers on the highways of that borough. With regard to the inspection of the pole, I do not think any objection would lie.
    The Court: No. I think they would have to show that. We sustain the objection as made to the first part of the offer; the second part you can prove; and we give you a bill.
    Defendant excepts. Bill sealed. (2)
    Verdict and judgment for plaintiff for $3,500. Defendant appealed.

      Errors assigned, among others, were (1, 2) rulings on evidence quoting the bill of exceptions and (5) refusal of binding instructions for defendant.

      James B. Reilly and W. O. Devitt, for appellant.
    It was pertinent and material in the issue being tried to show by way of defense that this pole was a lawful structure — not an obstruction or nuisance per se, as well as to show that it was apparently in safe and sound condition. It had a significant bearing upon the vital question in the case — defendant’s liability primarily.

      No negligence was shown on the part of the borough: Burns v. Bradford, 137 Pa. 361; Del. & Atl. Tel. & Tel. Co.’s Petition, 224 Pa. 55; Lohr v. Philipsburg Borough, 156 Pa. 246.
    Under the evidence appellant contends that it had no notice, actual or implied, of the defect in this pole, and therefore negligence cannot be imputed to it: Yeager v. Berwick Borough, 218 Pa. 265; Lohr v. Philipsburg Borough, 156 Pa. 246; McLaughlin v. Kelly, 230 Pa. 251; Lindstrom v. Penna. Co., 212 Pa. 391; Murdaugh v. Oxford Borough, 214 Pa. 384; Johns v. Penna. R. R. Co., 226 Pa. 319; Burns v. Bradford, 137 Pa. 361; Garland v. Wilkes-Barre, 212 Pa. 151; Brader v. Lehman Twp., 34 Pa. Super. Ct. 125.
    The verdict was excessive: Hollinger v. York Rys. Co., 225 Pa. 419; Penna. R. R. Co. v. Kelly, 31 Pa. 372; Penna. R. R. Co. v. Zebe, 33 Pa. 318; Caldwell v. Brown, 53 Pa. 453.

      W. L. Kramer and R. A. Freiler, for appellee.
    Under the charter of a municipal corporation the repair of its streets and the removal of nuisances therefrom, is a duty clearly enjoined by statute, and it is authoritatively ruled, that a corporation which is bound by its charter to keep its streets in repair, and remove nuisances therefrom, is liable for an injury occasioned by its neglect to do so, and it is immaterial whether the neglect was wilful or not: Erie v. Schwingle, 22 Pa. 384; Dean v. New Milford Township, 5 W. & S. 545; Pittsburg v. Grier, 22 Pa. 54; Norristown v. Moyer, 67 Pa. 355.
    Nowhere in the evidence is it contended that the borough ever made any inspection of this pole but the uncontradicted evidence of the officers, whose duty it was to make such inspection, shows clearly that they never made any: Born v. Allegheny and Perryville Plank Road Co., 101 Pa. 334; Lohr v. Philipsburg Boro., 156 Pa. 246; New Hope Borough v. Western Union Tel. Co., 16 Pa. Superior Ct. 306.
    April 29, 1912:
    The verdict was proper: Hoon v. Traction Co., 204 Pa. 369; Hollinger v. York Rys. Co., 225 Pa. 419.
   Opinion by

Mr. Chief Justice Fell,

This action was by a parent to recover for the loss occasioned by the death of a child, ten years of age, who was killed by the falling of a pole in a public street. The pole was erected some fifteen or twenty years before the accident and its use was to sustain an electric light pole on the opposite side of the street with which it was connected by a steel cable. It broke at or near the surface of the ground where it was much decayed, but the decay was from the inside and there was but little if any indication of decay on the surface of the pole. It was undoubtedly in a dangerous condition, there being only a mere shell of sound wood on the outside. The question of the exercise of reasonable care in the supervision and inspection by the borough was, under the circumstances, for the jury and the general instruction in relation thereto was free from error.

The case, however, was tried by the plaintiff and submitted by the court to the jury on the theory that the duty of the borough was the same whether the pole had been erected by the borough or by a corporation having the right to use the streets of the borough for that purpose. The defendant offered testimony to show that the pole had been placed at the side of the street by an electrict light company that had authority under its charter powers and the laws of the Commonwealth to erect poles in the borough streets. These offers were overruled. It was competent for the defendant to show that the pole was not unlawfully upon the street, but had been erected by a corporation that had a legal right to erect it and upon whom the duty to maintain it in a safe condition primarily rested. This fact would not have relieved*the defendant from the duty of supervision and inspection, but its duty would have been secondary and the rule in relation thereto is less stringent than that which would apply if the pole had been unlawfully upon the street or had been erected by it and was under its sole management. The duty of a municipality to keep its streets in a reasonably safe condition extends to cases where an unsafe condition of its streets is brought about by others than its agents. But as the basis of an action against it is negligence and its duty is that of inspection, it must be shown that it had notice of the defect or might have known thereof by the use of reasonable care and watchfulness: 28 Cyc. 1353. Its duty in the care of its streets was not to seek for defects but to observe them when they became observable in the exercise of reasonable supervision: Lohr v. Philipsburg Boro., 156 Pa. 246.

The objection that there was no evidence of the probable earnings of the child during minority that would sustain a verdict for the amount awarded by the jury is not based on an exception, but as the case goes back for trial it is proper to say that we find no evidence to justify the amount of the verdict. The total loss proved, including all the expenses incurred was $122.69. The verdict was for $3,500.00. The difference betweeen these amounts presumably represents the jury’s estimate of the present worth of the services of a school girl ten years old or her probable earnings, during minority, less the cost of maintenance and education taking into consideration the uncertainties of health and sickness and of life and death. It is inconceivable that the amount of the verdict was the result of an intelligent effort to ascertain or approximate an amount which would be compensation for pecuniary loss. The only proof upon the subiect was that she assisted an older sister in household work and the care of younger children of the family. So many uncertain elements enter into any estimate of the pecuniary loss of a parent by the death of a minor child that the subject is always one of difficulty, but as in otber cases, a recovery must be based on proofs, and without them no verdict should be permitted to stand. This subject has been considered in two recent cases, Peters v. Besser, Etc., R. R. Co., 225 Pa. 307, and Beck v. Balt. & Ohio R. R. Co., 233 Pa. 344, in which it was held that there could not be a recovery for items of loss not proved.

The first and second assignments of error are sustained, and the judgment is reversed with a venire facias de novo.