text:
    Olyphant Sewage-Drainage Co., Appellant, v. Olyphant Borough.

      Sewers—Boroughs—Sewer company—Permissive right—Contract—Act of May 16,1891, P. L. 75.
    A mere permission, by a borough, to a sewer company, organized under the Act of June 10, 1893, P. L. 435, to construct a system of sewers under the borough streets, does not give to the sewer company the exclusive right to use the streets for such purposes; but the borough may thereafter install a sewer system of its own, using some or all of the same streets without any liability to the sewer company for indirect or consequential damages for the reduction of the earning power of the company’s system.
    The provisions of the Act of May 16, 1891, P. L. 75, relating to sewers, which requires the viewers “to determine the damages for property taken, injured or destroyed,” means the actual and physical appropriation of or injury to the property of persons injured, and does not cover indirect or consequential damages to the business of a sewer company with which the municipality had no contract.
    The Act of April 3, 1851, P. L. 320, confers no power upon boroughs to provide a sewage system by contract. In this particular the rights of a borough as to a sewage system and a water supply are essentially different.
    Argued Feb. 20, 1905.
    Appeal, No. 38, Jan. T., 1904, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1904, No. 38, dismissing exceptions to report of referee in case of Olyphant Sewage-Drainage Company v. Olyphant Borough.
    Before Mitchell, C. J., Dean, Bbown, Potteb and Elkin, JJ.
    Affirmed.
    Petition for appointment of jury of view.
    Exceptions to report of R. L. Levy, Esq., referee.
    The referee reported in favor of the defendant on exceptions. Newcomb, J., filed an opinion in which he stated the essential facts to be as follows :
    In August, 1900, the borough of Olyphant, under the power and authority conferred by the general borough act of April 3, 1851, P. L. 320 and the Act of May 16, 1891, P. L. 75, in and about the construction of sewers and drains, enacted an ordinance providing for' the extension of such system of sewers and drains as it then had in what ivas designated as the first sewer district. At that time the plaintiff company— a corporation organized under the Act of June 10, 1893, P. L. 435, was engaged in the construction of a sewer on certain streets in the borough named in the ordinance upon which the borough sewer was to be extended. It was exercising its corporate rights under permission to use the streets for that purpose granted by the borough by ordinance in 1894. For the same reason its construction was not begun until 1899, its time limit having been extended in the meantime by proceedings in this court.
    The ordinance of 1894 is fully set forth in the report and is in terms nothing more than a mere permission to the company to enter upon and use the streets for the necessary purposes of construction and maintenance. It contains no conditions nor other terms suggestive of inducement to the company or intention to contract with it in the premises other than so far as it may be possible to imply such contract from the language of the second section of the ordinance which purports to “ grant permission, to enter upon, etc., ... as in the judgment of the board of directors of said company may be necessary, etc., . . . for the sewering, draining and sanitary improvement of said borough.” Neither is there a word to indicate the intention to grant an exclusive privilege.
    The ordinance of 1900 neither expresses intention nor indicates the purpose to take, injure or destroy any of the property, works or material of the company. It is not pretended that anything has been done in pursuance of the ordinance directly or indirectly resulting in such injury.
    It is claimed first that by reason of its grant to the company the borough has deprived itself of the power to make the improvement in question, and therefore its proposed construction is unlawful.
    The court dismissed the exceptions.

      Error assigned was order dismissing exceptions and entering judgment for defendant.

      Harold A. Watres and Everett Warren, of Willard, Warren Sp Knapp, for appellant.
    Irrespective of the question of physical invasion, if the property is injured in the exercise of the right of eminent domain, just compensation must be .awarded.
    The words “taken,” “injured” and “ destroyed ” all are applicablyappropriate to this case: Gas & Water Company v. Tyrone Boro., 195 Pa. 566 ; White v. Meadville, 177 Pa. 643; Downington Gas & Water Co. v. Downington Boro., 175 Pa. 341; Pusey v. City of Allegheny, 98 Pa. 522; Chester Co. v. Brower, 117 Pa. 647; Butchers’ Ice & Coal Co. v. Phila., 156 Pa. 54; Boom Co. v. Patterson, 98 U. S. 403; Monongahela Nav. Co. v. United States, 148 U. S. 312 (13 Sup. Ct. Repr. 622) ; Water Works Co. v. Kansas City, 28 Fed. Repr. 921; Butchers’ Union Slaughter House Co. v. Crescent City Live Stock Landing Co., 111 U. S. 746 (4 Sup. Ct. Repr. 652).
    These Pennsylvania cases familiar to the court hold that a municipality with the power to exercise some public function having once performed that function by a contract through another creature of the same sovereign cannot thereafter exercise that function adversely to the contract let for that purpose unless it pay therefor in the same manner provided by law: White v. Meadville, 177 Pa. 643; Metzger v. Beaver Falls, 178 Pa. 1; Wilson v. Rochester, 180 Pa. 509; Gas & Water Company v. Water Company, 182 Pa. 17; Water Company v. Centre Hall Boro, 186 Pa. 74 ; Welch v. Beaver Falls, 186 Pa. 578, Carlisle Gas & Water Co. v. Carlisle Water Co., 188 Pa. 51; Harlow v. Boro. of Beaver Falls, 188 Pa. 263; Philipsburg Water Company v. Citizens’ Water Co., 189 Pa. 23; Gas & Water Co. v. Tyrone Boro., 195 Pa. 566; Gas & Water Company v. Downingtown Boro., 175 Pa. 341; and Water Company v. Millvale Boro., 200 Pa. 613.

      F. M. Lynch, for appellee.
    Municipal corporations, by virtue of their power to make and maintain streets, and by the powers conferred upon them to do all necessary acts for the protection of the health of the community, may construct sewers, drains and culverts.
    The general borough Act of April 3, 1851, P. L. 320, and the Act of May 16, 1891, P. L. 75, give full, ample and complete authority to the borough of Olyphant to construct a system of sewers.
    The power to construct the sewer is a sovereign power which cannot be bartered away or surrendered, and parties who contract with a municipal corporation upon matters involving such a use or occupation of the streets do so subject to the future use of this power: Tiedeman on Municipal Corp., sec. 294, p. 566; Elliott on Roads & Streets, p. 368; Louisville City Ry. Co. v. Louisville, 8 Bush (Ky.), p. 415; Waterworks Company v. Kansas City, 28 Fed. Repr. 921.
    The borough of Olyphant did not and according to the authorities just cited, could not confer exclusive rights or privileges upon the Olyphant Sewage-Drainage Company. The right of the borough to construct a system of sewers is no wise impaired by grant of franchise to the Olyphant Sewage-Drainage Company, nor has the state by its grant of corporate privileges to Olyphant Sewage-Drainage Company impaired or diminished in any way the former powers and privileges conferred upon the borough: Scranton Electric Light & Heat Co.’s App., 122 Pa. 154 ; Emerson v. Com., 108 Pa. 111; Luzerne Water Co. v. Toby Creek Water Co., 148 Pa. 568; Water Co. v. Centre Hall Borough, 186 Pa. 74.

      The construction of the extension to its sewer system by the borough is only a reasonable use of the borough’s right and, though it be to the injury of another, no action will lie: Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. R. R. Co. v. Marchant, 119 Pa. 541; Pittsburg & Lake Erie R. R. v. Jones, 111 Pa. 204; R. R. Co. v. Yeiser, 8 Pa. 366.
    April 17, 1905:
   Opinion by

Mb. Justice Elkin,

This proceeding is instituted under the Act of May 16, 1891, P. L. 75, which provides for the ascertainment of damages for property taken, injured or destroyed by a municipality in the construction of a sewage system therein. This act was intended to provide a complete system of remedy and course of proceedings for the ascertainment of damages and the assessment of benefits in all cases of street improvements, including the construction of sewers in the municipalities of the commonwealth, except where a different method was provided by local or special laws. In the present case we have only to consider the act so far as it relates to the construction of a sewer in said borough.

The general corporation act of 1874, as amended by the Act of June 10, 1893, P. L. 435, provides for the incorporation of companies for the construction and maintenance of sewers in the cities, boroughs and townships of the commonwealth. The plaintiff company was incorporated under the provisions of said act on February 27, 1894, and soon thereafter applied for and secured an ordinance granting it permission to construct a sewer system in the defendant borough. The ordinance only gave the plaintiff company permission to enter upon, occupy and use the public highways within said borough for proper sewer drainage. Plaintiff at a later date petitioned for and obtained a decree from the court of common pleas of Lackawanna county, extending the time in which to complete the construction of the sewer until April, 1899, at which time it commenced to excavate the streets and lay pipes in said borough. On August 16, 1900, the town council of said borough passed an ordinance, which was duly approved, for the construction by the borough authorities of a system of sewage in said borough, some parts of the proposed sewer system being located on the streets on which the plaintiff company had been granted permission and had laid its pipes and conduits. The viewers appointed to ascertain the damages and assess the benefits found “ that none of the properties abutting on said proposed sewer will be damaged by its construction.” Exceptions were filed to and an appeal taken from this report by plaintiff. A referee was appointed before whom testimony was taken and parties heard. The referee decided against the contention of the plaintiff, and his report was affirmed by the court below.

The evidence produced fully justified the referee in finding as a fact that the construction of the sewer system by the defendant did not cause any physical injury to the property of the plaintiff. The provision in the act of 1891, which requires the viewers “to determine the damages for property taken, injured or destroyed ” means the actual and physical appropriation of or injury to the property of persons injured, and cannot be held to cover indirect and consequential damages that may result to the plaintiff by reason of the construction of a new system of sewage by the borough, the effect of which would be to reduce the earning power of the sewer system of the plaintiff. The appellee, therefore, contends that any loss or damage sustained by the plaintiff company under these circumstances is damnum absque injuria. The referee and the court below have both so found, and properly so.

It is argued by learned counsel for appellant that a municipality with power to exercise public functions having once exercised that power by contract with a private corporation, cannot thereafter exercise that function adversely to the contract so made, unless it pay damages to the corporation injured by the competition thus created. The cases cited under the principle asserted have no application to the facts of the present case. It is true that in the water company cases relied upon by the appellant this court held that a borough by legislative authority could only at the same time adopt one of two methods to supply itself with water. In Carlisle Gas and Water Company v. Carlisle Water Company, 188 Pa. 51, Mr. Justice Dean said: “ In all these cases we held that by the present legislation on the subject a municipality was authorized to adopt one of two methods to supply itself with water: (1) It could construct and operate its own works by municipal taxation; or (2) It could contract with a private corporation to construct works and to supply the municipality with water. We further held that it could not adopt both methods and have them in operation at the same time; the selection of one was necessarily, under the law, a final rejection of the other as long as the first continued the supply according to law.”

In these cases it was recognized as a fundamental principle that municipalities had no power to construct and operate a system for water supply or to contract with a private corporation for a water supply without legislative authority, and that whatever power municipalities had in this respect was conferred upon them by legislative enactment. The Act of April 3,1851, P. L. 320, among other things, authorized boroughs “ to provide á supply of water for the use of the inhabitants.” Here then was the legislative authority under which boroughs could provide a water supply. The act does not say in express terms how the supply of water is to be provided. This court construed that provision of the act to mean that a borough could exercise its power in this respect in one of two ways, either by constructing its own plant and maintaining it by taxation, or by making a contract with a private company or corporation for a water supply, and that when a borough had exercised its authority in either way it was precluded from adopting the other method at the same time.

The provisions of law in reference to the construction and maintenance of sewers are materially different. The act of 1851 provides that boroughs incorporated thereunder shall have the power “ to survey, lay out, enact and ordain such roads, streets, lanes, alleys, courts and common sewers as they may deem necessary.” It will be observed the act does not confer the right upon boroughs to provide a sewage system by contract. In express terms it is provided that the proper officers shall have the power to survey, lay out and ordain common sewers, and this language can only mean that such sewers must be ordained, laid out or constructed by the borough authorities. Nor does the act of 1891, supra, enlarge the powers of boroughs in reference to the construction of sewers except in the matter of conferring the right to take, use, occupy or injure private lands, property or material necessary in the construction of the same. There is no proper rule of construction by which these words can be extended to mean that in a matter of this character the defendant borough had a right to contract with the plaintiff company to provide a sewer system for the citizens thereof, much less that said borough could grant, or the plaintiff company acquire, an exclusive right to construct and maintain such a system.

The fatal weakness of the plaintiff’s case, however, arises from the fact that no contract was entered into between the appellee and the appellant in reference to the sewage system. The only right the appellant claims is under the ordinance passed by the borough on February 27, 1894, and a reference to that ordinance shows that plaintiff company was simply granted permission to construct and maintain a system of sewage in said borough. It would do violence to every rule of construction to hold that a permission granted by a municipality to a private corporation to use its streets for certain purposes constitutes a contract so as to make the borough liable in damages in case a loss should result to the private corporation by reason of the installation of a rival system. No contractual relation exists between the parties to this controversy. The plaintiff company does not enjoy or possess, either by the act of its incorporation, or by legislative enactment, or by contractual relation, any exclusive right to maintain a system of sewage in the borough of Olyphant. The act of 1893, under which plaintiff company was incorporated, did not confer any special rights, privileges or powers upon it, except the right to enter upon and occupy public highways with the consent of local authorities. The naked grant of permission to use streets to lay pipes confers no exclusive right. It cannot be doubted under our well established rules of law that whatever right the plaintiff had under the ordinance of 1894 was subject to the future use of the highways by said borough whenever it chose to construct a sewage system of its own.

A reversal of this ease would write into our decisions a rule of law squarely at variance with an unbroken line of legal precepts. Such a rule would have the effect of impairing the powers of municipalities and abridging the rights and privileges of the citizens thereof.

Assignments of error overruled and judgment affirmed.


source: Caselaw Access Project

author: Mb. Justice Elkin

license: Public Domain

text:
    Singer Manufacturing Company, Appellant, v. Christian.

      Principal and agent—Scope of agency—Province of court and jury— Measure of damages—Contract.

    The fact of the agency and the scope of the power of an agent are questions for the coux-t, where the authority is created by an instrument in writing, but where such authority is to be implied from the conduct of the parties, or where the agency is to be established by witnesses, the fact and scope of the agency are for the jury.
    In an action by a sewing machine manufacturing company against a shirt manufacturer, to recover for the price of a number of machines the defendant alleged that he had bought the machines under an oral contract with plaintiff’s agent, by which it was agreed that the plaintiff would furnish work to keep the machines going and that they were to be paid for out of the profits of such work, and that sufficient work was not furnished. Evidence was given that the agent in question had entire charge of an extensive district, that the business under his direction was large, that he exercised a wide discretion, sold on cash, on credit and on lease, and that his authority was not limited by any writing. Held, that it was for the jury to say whether the agent had authority to make the contract in question.
    In such a case the measure of damages for the breach of the contract which might be set off was the profit which the defendant might have made, together with the expense of maintaining the plant in idleness caused by the neglect or refusal of the plaintiff to furnish work continually, according to the terms of the contract.

      Principal and agent—Evidence—Declarations of agent—Res gestee.

    While it is true that agency cannot be established by the declarations of the agent, it is not reversible error to admit such declarations in evidence, if they are followed with independent proof of such agency. In such a case the declarations are admissible as showing the inducing cause of the contract.
    Where one seeks to enforce a contract made by his agent, even if the agent exceeded his authority, if the principal seeks to take the benefit of the bargain so made he must adopt the contract as his agent made it.
    Argued Feb. 21, 1905.
    Appeal, No. 335, Jan. T., 1904, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1902, No. 615, on verdict for defendant in case of Singer Manufacturing Company v. Frank P. Christian.
    Before Mitchell, C. J., Dean, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Edwards, P. J.

      At the trial when F. P. Christian, the defendant, was on the stand, the following offer was made :
    The defendant offers to prove by the witness on the stand that the Singer Manufacturing Company, through C. Lament, its agent or general manager, came to him and induced him to purchase certain machinery upon the following condition, to wit: He informed Mr. Christian that a manufactory at Binghamton was about to close, which employed sixty hands, all trained for the business ; that if he would open a factory at Binghamton he would get the benefit of the services of these trained hands, and that the Singer Manufacturing Company would place the machinery with him and agree to furnish work continuously for all the machines sold to him at profitable prices, and that he would not be responsible to the Singer Manufacturing Company except that out of the net profits realized from the work furnished by the Singer Manufacturing Company, provided that the defendant should not charge any salary against the operation until the machinery was paid for; that upon this inducement he took the machinery, and that subsequently the Singer Manufacturing Company neglected and refused to furnish work continuously to keep the machinery busy, but did furnish several contracts, which in part, for short periods of the year, did keep the machinery occupied; that there never was a net profit through the years, and except for the few months that they furnished the contracts agreed to be furnished was there an3r net profits shown ; that as fast as he received any profit he paid it to the plaintiff.
    Mr. Reedy: This is objected to; first, there is no offer to prove the agency of Mr. Lament and the extent thereof, nor to prove the authority under which the alleged agent acted; second, the witness is incompetent to testify to the agency of Lament, the authority under which he acted or the extent of his authority; third, the offer to show what was done b3»- Lament is incompetent until the defendant shows a delegation to Lament by the Singer Manufacturing Company to act in this matter, and the mere offer to show that Lament was in the employ of the Singer Manufacturing Company is not'sufficient; fourth, it is not proposed to show that the said Lament was authorized to represent the Singer Manufacturing Company in all matters, or that he was especially delegated to represent the company in this particular transaction, and therefore the evidence is incompetent; fifth, the best evidence of the defendant’s transactions, his charge for salary, etc., is the books of the concern; sixth, the entire offer is incompetent, irrelevant and immaterial.
    The Court: I overrule the objection.
    Exceptions noted for plaintiff, at whose request a bill is sealed. [1]
    The court charged in part as follows :
    If you should find that the contract was as testified to by the defendant, then there is one other question in connection with the making of that contract which I propose to leave to this jury, and that is, did the agent, Mr. Lament, have the authority to make such a contract as the defendant claims that was made on behalf of the company ? The testimony in this case, taking the testimony of Mr. Lament, is that he was sent here by the Singer Manufacturing Company to effect a sale of this machinery to the defendant. He came to Scranton; he met Mr. Christian and, with him, Mr. Redman. He, himself, says that he had the right to make a sale on certain terms ; he could sell for cash ; he could sell on time, and he could sell or agree to deliver the machinery on lease. That is his testimony. But you must remember that one dealing with the agent, Mr. Christian, in this case, is not informed as to the extent of the authority of the agent, and therefore if the agent, in making this contract, was acting within the apparent scope of his authority, then the company is bound by such a contract, whether the agent had express authority to enter into such a contract or to make such a contract. I will read to you the law on that point: “ A party seeking to enforce a contract made by his agent is bound by his declarations made at the time, although he exceeded his authority. If he would have the benefit of the bargain, he must adopt it as his agent made it.” That law is taken from the books, taken from the decisions of our Supreme Court, and I simply add to it that if you find that the agent, Mr. Lament, was acting within the apparent scope of his authority, then, although he exceeded the express authority that he had from the company, the company is just as liable as if he had the authority to do what was said by the defendant that he did in this case. [19]
    Defendant presented this point:
    2. The measure of damages would be the profit which the defendant might have made, together with the expense of maintaining the plant in idleness caused by the neglect or refusal of the plaintiff to furnish work continuously according to the agreement, if such agreement is found by you to have been made between the parties. Answer: I affirm this point. [29]
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (1) ruling on evidence; (19, 29) above instructions, quoting them.

      David J. Reedy, for appellant.
    The burden was on the defendant to establish the agency: American Steamship Co. v. Landreth, 102 Pa. 131; Underwriters’ Ass’n v. George, 97 Pa. 238; Union Refining, etc., Co. v. Bushnell, 88 Pa. 89; Insurance & Trust Co. v. Shultz, 82 Pa. 46: Moore v. Patterson, 28 Pa. 505 ; Hampton v. Matthews, 14 Pa. 105; Hays v. Lynn, 7 Watts, 524; Brewing Co. v. Schmidt, 24 Pa. Superior Ct. 396 ; Langenheim et al v. Anschutz-Bradberry Co., 2 Pa. Superior Ct. 285 ; Slease v. Naysmith, 14 Pa. Superior Ct. 134; Ludwig v. Gorsuch, 154 Pa. 413.
    The defendant, Christian, was not competent to prove the agency of Lament by any acts or declarations of Lament: Clark v. Baker, 2 Wharton, 340; Chambers v. Davis, 3 Wharton, 40; Relief Assn. v. Post, 122 Pa. 579; Plumsted v. Rudebagh, 1 Yeates, 502; Beal & Simons v. Express Co., 13 Pa. Superior Ct. 143; Pepper v. Cairns, 133 Pa. 114 ; Central Penna. Telephone & Supply Co. v. Thompson, 112 Pa. 118.
    The loss of possible profits, which might have been made, was not a proper subject of damages: Pennypacker v. Jones, 106 Pa. 237.
    Lament’s authority rested in parol, there was no dispute as to its terms, and no ambiguity which needed explanation, and it was the duty of the court to determine its meaning and effect : Elliott v. Wanamaker, 155 Pa. 67; Brewing Co. v. Schmidt, 24 Pa. Superior Ct. 396.

      Only where the existence and scope of the agency are controverted must those questions be determined by a jury : Savings Fund v. Hagerstown Bank, 36 Pa. 498; Williams v. Getty, 81 Pa. 461; Seiple v. Irwin, 30 Pa. 513; Jordan v. Stewart, 23 Pa. 244 ; Shriver v. Stevens, 12 Pa. 258 ; Peries v. Aycinena, 3 W. & S. 64; Slease v. Naysmith, 14 Pa. Superior Ct. 134.
    An authority to act as an agent confers no authority to form a partnership for the principal with a third person: Wright v. Boynton, 37 N. H. 9.
    Authority to sell “ upon credit ” means a reasonable credit: Brown v. Central Land Co., 42 Cal. 257.
    A person who claims damages for the loss of a contract is as much bound to prove that he sustained damages as to prove the contract itself. And the jury cannot be asked to guess. They are to try the case upon the evidence, not upon conjecture : Rightmire v. Hirner, 188 Pa. 325; Lentz v. Choteau, 42 Pa. 435.

      S. O. Reynolds, for appellee.
    Where a principal is bound for the acts or declarations of his agent, it is generally for the reason that said acts or declarations have led up, or been the inducement to, or explain, or qualify, or form part of some contract, or have caused some act to be done upon the faith thereof: B. & O. Relief Association v. Post, 122 Pa. 579; The Brig Odorilla v. Baizley, 128 Pa. 283 ; Stewart v. Climax Road Machine Co., 200 Pa. 611.
    The law holds a party who is seeking to profit by the acts of its agent to be responsible for his acts, although he exceeded his authority. If he would have the benefit of the bargain he must adopt it as the agent made it: Keough v. Leslie, 92 Pa. 424; Jones v. Building Association, 94 Pa. 215; Caley v. Railroad Company, 80 Pa. 363; McNeile v. Cridland, 168 Pa. 16; Penna, Natural Gas Co. v. Cook, 123 Pa. 170.
    One who authorizes another to act for him in a certain class of contracts undertakes for the absence of fraud in the agent within the scope of his authority: Brooke v. R. R. Co., 108 Pa. 529; McNeile v. Cridland, 168 Pa. 16; Smalley v. Morris, 157 Pa. 349 ; Keough v. Leslie, 92 Pa. 424; Caley v. R. R. Co., 80 Pa. 363.

      Profits which are the direct and immediate fruits of the contract are part of the contract itself, entering into and forming a part of its very elements: Fessler v. Love, 48 Pa. 407; Pittsburg Coal Co. v. Foster, 59 Pa. 365 ; Hoy v. Gronoble, 34 Pa. 9; Wolf v. Studebaker, 65 Pa. 459 ; Hunter v. Land, 81* Pa. 296.
    The question of authority is a question for the jury where authority is alleged upon the one side and it is denied upon the other; Watson v. Lukins, 126 Pa. 630; Langenheim v. Anchutz-Bradberry Co., 2 Pa. Superior Ct. 285.
    April 17, 1905 :
   Opinion by

Mb. Justice Elkin

The learned counsel for the appellant has specified thirty assignments of error to the rulings of the court below in the admission of testimony, charge to the jury and answers to points. No useful purpose would be served by a consideration of the separate assignments of error. For the purpose of review we will only consider two questions. First, had Lament, acting as the agent of the appellant, authority to make the alleged contract set up by the defendant in the court below; second, was the defendant entitled to recover damages for the loss of profits and the maintenance of the plaint in idleness arising from the failure of the plaintiff company to keep the machines sold by it to defendant, continuously employed in accordance with the terms of the alleged agreement.

At the time the contract was entered into Lament was the manager of the Philadelphia district of the manufacturing department of the plaintiff company. With the exception of the general agent, lie was the highest officer of the company in Pennsylvania. The territory over which he exercised supervision as agent was extensive, embracing eastern Pennsylvania and New Jersey. The business under his management was large, and its conduct necessarily involved the exercise of wide discretion. According to the testimony of plaintiff, Lament had the right to sell sewing machines for cash, on time, or on lease, and on at least two occasions prior to the making of the alleged contract had sold the defendant machines oh credit. It was conceded that his authority was not limited by any writing. Under these circumstances, the court below properly submitted the question of the scope of his agency to the jury to determine whether he had the right to enter into the kind of a contract set up by the defendant. The learned trial judge directed the attention of the jury to the testimony relating to the scope and character of the agency of Lament in transacting the business of the plaintiff company. There was no error in such submission. The fact of agency and the scope of the power of an agent are questions for the court where the authority is created by ah instrument in writing, but where such authority is to be implied from the conduct of the parties, or where the agency is to be established by witnesses, the fact and scope of the agency are for the jury: 1 Am. & Eng. Ency. of Law (2d ed.,) p. 968.

The jury were left to determine the authority conferred upon the agent as a question of fact, and there was ample evidence to support a conclusion that his powers were general. We must, therefore, treat the case as if this fact were established. The learned counsel for appellant earnestly contends that the court erred in admitting in evidence the declarations of Lament as proof of his general authority. It is true that agency cannot be established by the declarations of the agent, but this court has decided as late as Stewart v. Climax Road Machine Company, 200 Pa. 611, th.at it .is not reversible error to admit such declarations in evidence if they are followed with independent proof of such agency. When the agency of Lament was established his declarations were material in the case for the reason that they constituted part of the alleged contract and were the inducement which led the defendant to purchase the machines. In this view of the case the plaintiff company was as much bound by these inducing causes of the contract as if made by itself. “ The declarations or admissions of an agent in such cases are admissible, not for the purpose of establishing the truth of the facts stated, but as representations by which the principal is as much bound as if he made them himself, and which are equally binding whether the fact be true or false: Phillips on Evidence, 73; Hannay v. Stewart, 6 Watts, 487 ; and where a principal is bound for the acts or declarations of his agent, it is generally for the reason that said acts or declarations have led up, or been the inducement to, or explain, or qualify, or form part of some contract, or have caused some act to be done upon the faith thereof: ” B. & O. Relief Association v. Post, 122 Pa. 579.

This principle clearly covers the theory of the case relied upon by the defendant. The contention of the appellee depends upon the representations of the agent made at the time the contract was entered into and as the inducing cause thereof, and therefore, under the authorities cited the declarations of the agent were admissible, not for the purpose of establishing the scope and character of his agency, but as showing the inducing cause of the contract relied upon by the defendant, and binding upon the plaintiff company. The plaintiff in the present action is seeking to enforce the contract made by its agent, and even if as a matter of fact that agent exceeded his authority, yet if the plaintiff company seeks to take the benefit of the bargain so.made, it must adopt the contract as its agent made it: Keough v. Leslie, 92 Pa. 424; Caley v. Railroad Company, 80 Pa. 363. This principle is very well stated in Bristow v. Whitmore, 9 H. L. Cases, 391, wherein Lord Kingsdown said: “ The principal cannot approbate and reprobate the contract. He cannot at the same time take the benefit which it confers and repudiate the obligations which it imposes.”

A very large number of the assignments of error raise the question as to what is a proper measure of damages in the case at bar. If the contract wras as the defendant contends, that the plaintiff company undertook to keep the machines purchased by him continuously employed until the price for the same should be paid, such contract was predicated on the assumption that profits would be made to an extent sufficient to pay the plaintiff the price of said machines, and when it was broken by the plaintiff it needs neither extended argument nor the citation of authorities to show that the measure of damages would be the profit which the defendant might have made, together with the expense of maintaining the plant in idleness caused by the neglect or refusal of the plaintiff to furnish work continuously according to the terms of the contract. The evidence shows that the defendant was prepared to perform his part of the contract. He maintained his plant, kept his foreman and forewoman, and paid their salaries. The question of expense and profits as a measure of damages was left to the jury under full and complete instructions by the court below. In this there was no error: Hydro-Carbon Fuel Company v. Plumb, 182 Pa. 463; Nixon v. Myers, 141 Pa. 477. The credibility of the witnesses, the fact and scope of the agency, what contract if any was made, and the measure of damages were all submitted to the jury in a fair, impartial and adequate charge by the learned trial judge.

Assignments of error overruled and judgment affirmed.


author: Pee Cueiam,

text:
    Commonwealth v. Spahr, Appellant.

      Criminal law—Murder—Jury—Opinion of jurors—Challenges.

    Where on the trial of an indictment for murder, the prisoner has not exhausted his peremptory challenges, the acceptance of jurors challenged on account of opinions formed and expressed by them, does him no harm, and is no ground for reversing a verdict and judgment of guilty.
    In determining whether a juror should be rejected for an opinion formed, the established test is whether or not he can throw aside his impression or opinion and render an impartial verdict on the evidence alone. That question the juror alone can answer, and the weight of his answer is not to be determined exclusively by his words as they appear in print in the record, but by his words, manner and bearing, as to which a fair measure of discretion must be allowed by the court below which had the juror before it.

      Criminal law—Murder—Evidence—Dying declaration.

    On the trial of an indictment for wife murder, where the killing is admitted and the only defense is insanity, the dying declaration of the deceased, when offered as a whole and only a general objection is made, is admissible although in addition to matters relating to the res gestae it contains statements as to prior threats. Whether it would have been admissible even if specifically objected to, not decided.
    Argued Feb. 27, 1905.
    Appeal, No. 1, Jan. T., 1905, by defendant, from judgment of 0. & T. Cumberland Co., on verdict of guilty of murder of the first degree in case of Commonwealth v. David Spahr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Indictment for murder. Before E. W. Biddle, P. J.
    At the trial it was shown that the deceased was killed on May 31, 1904, by shooting with a revolver. The defense was insanity.
    Several jurors were challenged for cause because of opinions formed and expressed by them. The challenges were overruled. [1-3]
    The court admitted as a whole under objection and exception the dying declaration of the deceased.
    As to this question the court in an opinion in a motion for a new trial, said:
    Under the circumstances, there was no error in admitting the entire document sworn to by the deceased, as her dying declaration. The general rule on the subject is thus laid down in 6 Am. & Eng. Ency. of Law (1st ed.), 123: “ Dying declarations are restricted to the act of killing, and to the circumstances immediately attending it and forming a part of the res geste. When they relate to former and distinct transactions, and embrace facts or circumstances not immediately illustrating or connected with the declarant’s death, they are inadmissible.” There is no doubt that the declaration in the present case was made under the solemn belief of impending death. Counsel for defendant argues that it was inadmissible because it contained the preliminary statement that when the defendant came to declarant’s house on the morning of May 31, 1904, “ he was not living with her because she was afraid of him because of his threats to do her injury and to shoot her; that at one time last summer he threatened to cut her to pieces, that on Friday one week ago to-day he threatened to shoot her and made threats to kill her at different other times.” This is immediately followed by the statement, “ that when he came into her house at the said time, to wit: May 31, 1904, he asked her why she had him arrested, that she said in reply that she was afraid of him on account of his threats and his drinking, he said that is all I want to know and then began shooting at her with a revolver,” etc.
    If the defense set up had been that the prisoner killed his wife in self-defense, or that the elements of deliberation and premeditation were absent, there would be some foundation for the complaint concerning the preliminary words of the statement. But the only defense was that the prisoner had so brooded over the suspected infidelity of his wife and. his domestic troubles, and his consequent separation from his family, that his mind became unbalanced. The portion of the dying declaration which is objected to could therefore not have injuriously affected the prisoner, because it merely emphasized the domestic disputes having been abundantly proved by other evidence. In People v. Beverly, 108 Mich. 509 (66 N. W. Repr. 379), where the defense interposed was insanity and the prisoner was convicted of murder of the second degree, a dying declaration of the murdered wife set forth that the prisoner had repeatedly threatened to kill her and others if she should leave him, and the court below struck out only the part applying to others. The admission of the declaration was assigned as error, inter alia, because a large portion of it was about matters remote as to time and place, and not a part of the res gestee. The Supreme Court overruled the assignment of error, saying: “ In this case the statement showed that the defendant repeatedly threatened to shoot his wife if she should leave him, or refuse to cohabit with him. The testimony showed that she did leave him, and that, being unable to induce her to return, he shot her. There is an obvious and intimate connection between these threats and the act. They throw light upon the cause of the shooting, and, together with the circumstances, were properly included in the statement.” The tenth reason is dismissed.
    The jury rendered a verdict of guilty of murder of the first degree upon which judgment of sentence was passed.

      Errors assigned were (1-3) overruling challenges to jurors; (7) in admitting as a whole the dying declaration of the deceased.

      Joseph S. Bhapley, for appellant.

      T. Ralph Jacobs, district attorney, Herman Berg, Jr., Thos. E. Vale, for appellee, were not heard.
    April 17, 1905 :
   Pee Cueiam,

The first and second assignments of error are to the overruling of challenges for cause to jurors on account of opinions formed .and expressed by them. As the prisoner did not exhaust his peremptory challenges the acceptance of the jurors did him no injury: Com. v. Fry, 198 Pa. 379.

But it does not appear that challenges were improperly overruled. In the present day when everybody reads the news with the more or less conscious result of acquiring views which may vary from transitory impressions to fixed opinions, to exclude such readers from the jury box would be to exclude the most intelligent and competent members of the community. How far impressions already existing may affect the judgment upon evidence to be produced can only be known positively to the juror himself and perhaps not always with certainty to him. Much latitude must therefore be left to the discretion of the trial judge to be exercised in view of the appearance, bearing, etc., of the juror, as well as upon his literal words. “ The established test is whether or not the juror can throw aside his impression or opinion and render an impartial verdict on the evidence alone. That question the juror alone can answer, and the weight of his answer is not to be determined exclusively by his words as they appear in print in the record, but by his words, manner and bearing, as to which a fair measure of discretion must be allowed to the court below which had the juror below it.” Com. v. Eagan, 190 Pa. 10; Com. v. Roddy, 184 Pa. 274.

None of the other assignments of error are in accordance with the requirements of the rules of court, as they do not set forth the evidence or matter objected to, or even refer to the place in the record where they can be found. None of them have any merit, and the only one that is worth while to notice is the seventh, in relation to the admission of the dying declaration of the murdered wife. So far as appears the objection was to the declaration as a whole. The commonwealth as required to do offered it as a whole and as the greater part of it was clearly competent the objection should have been specific. But even if the parts objected to had been specified it is by no means clear that the objection should have been sustained. The declaration was made under the full legal sanction of belief in impending death, which the law regards as equivalent to an oath. If the wife had survived and had taken the stand on a trial for attempt at murder everything in the declaration would have been competent testimony from her. It is true that dying

declarations are admitted from necessity and not being subject to cross-examination are in general to be confined to the res gestae of the killing. But in the present case the circumstances of the killing were admitted and the only defense was insanity. The previous threats had an obvious and intimate connection with the act, and in the very closely analogous, case of People v. Beverly, 108 Mich. 509, it was held that the circumstances made the declaration admissible, even as part of the res gestee. Whether we need to go this far or not in our view of the strict law, it is manifest that the declaration did not relate to any disputed fact, and could not possibly have done the prisoner any injury.

Judgment affirmed and record remitted for purpose of execution according to law.

      Also reported 67 N. W. Repr. 379. Reporter.


author: Per Curiam,

text:
    Commonwealth v. Gibson, Appellant.

      Criminal law—Murder—First degree—Evidence—Self-defense.

    On the trial of an indictment for murder the case as presented by the commonwealth was that the prisoner and deceased while playing cards in a room got into a wordy dispute which led to a challenge to go out and fight; whether the challenge was given by the deceased or the prisoner was disputed, but the deceased got up and went out; followed by the prisoner, who as he arose put his hand to his hip pocket and partially drew a revolver; he then went out the door and almost immediately fired the shot that killed the deceased. There was other testimony that the prisoner had exhibited the revolver some time before and remarked that it was for certain persons including the deceased. The prisoner alleged that he shot in self-defense when the deceased was advancing upon him with a razor. Held, that the evidence was sufficient to support a verdict of guilty of murder of the first degree.

      Criminallaw—Murder—Malice—Presumption—Evidence—Deadly weapon.

    Legal malice as an ingredient of murder is presumed from the use of a deadly weapon against a vital part of the body.
    Where the evidence clearly negatives the crime of manslaughter the judge is under no obligation to charge the jury on that grade of homicide.

      Criminal law—Murder—Charge—Witness.

    On the trial of an indictment for murder the trial judge is under no obligation to charge the jury as to the possible or probable bias of a brother of the deceased who is called as a witness for the commonwealth.
    In general, the weight and credibility, including favor or prejudice, of witnesses, is for the jury.
    Argued Feb. 27, 1905.
    Appeal, No. 6, Jan. T., 1905, by defendant, from judgment of O. & T. Phila. Co., on verdict of guilty of murder of the first degree in case of Commonwealth v. Joseph Gibson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Indictment for murder. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented, inter alia, this point:
    The jury in considering the testimony of Noah Sanders should bear in mind the fact that he is the brother of the deceased, and that in criminal cases a near relative generally comes to the witness stand with strong feelings of sympathy and bias, which gives color to his or her testimony, however truthful the witness may even try to be, consequently the relationship should be considered in estimating the value and weight which should be given to his testimony. Answer. Refused.
    Verdict of guilty of murder of the first degree upon which judgment of sentence was passed.

      Errors assigned were various instructions, and refusal of defendant’s point as above.

      Frederick Beyer, with him Caldwell K. Biddle, for appellant.

      Chester N. Farr, Jr., assistant district attorney, with him John C. Bell, district attorney, for appellee.
    April 17, 1905:
   Per Curiam,

The case as presented by the commonwealth was that the prisoner and the deceased while playing cards in a room got into a wordy dispute which led to a challenge to go out and fight; whether the challenge was given by the deceased or the prisoner was disputed, but the deceased got up and went out, followed by the prisoner who as he rose put his hand to his hip pocket and partially drew a revolver; he then went out the door and almost immediately fired the shot that killed the deceased. There was other testimony that the prisoner had exhibited the revolver some time before and remarked that it was for certain persons including the deceased. But disregarding this last testimony the facts presented by the commonwealth-contained all the elements of murder of the first degree, and the jury found them to be proved.

The killing was admitted, and the defense was that the deceased was advancing towards the prisoner with a razor, and the latter fired in self-defense. It was a plain and single issue between murder and self-defense, and the learned judge wisely forbore to burden the jurors’ minds with irrelevant legal definitions and stated to them clearly and concisely the different views of the facts which they might find under the evidence and the proper verdict which should accompany the respective findings. In the course of the charge the law of self-defense was clearly and fully stated. This was all that the case called for.

Complaint is made that the judge declined to charge specifically that malice must be proved beyond a reasonable doubt. But legal malice as an ingredient of murder is presumed from the use of a deadly weapon against a vital part of the body. There was no evidence in the case which required any more extended discussion of this subject.

Nor was there any evidence which required a discussion of manslaughter. The undisputed facts negatived any killing in hot blood upon sufficient provocation, and the prisoner’s own testimony as already said reduced the issue to murder or self-defense.

' One of the witnesses for the commonwealth was a brother of the deceased, and it is assigned for error that the judge declined to charge the jury on his possible or probable bias. The judge was under no obligation to do so. He may do so in an advisory manner when it seems to him important to direct the jury’s attention specially to the nature and circumstances of any particular witness’ testimony, but in general the weight and credibility, including favor or prejudice, of witnesses is for the jury.

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


text:
    Commonwealth v. Furman, Appellant.

      Criminal law—Murder—Evidence—Infant—Competency of witness.

    The substantial test of the competency of an infant witness is his intelligence and his comprehension of an obligation to tell the truth. The truth is what the law, under the rules of evidence is seeking, and if a full and present understanding of the obligation to tell it is shown by the witness, the nature of his conception of the obligation is of secondary importance.
    On the trial of an indictment for murder, a boy eight years old is competent to testify where it appears from his preliminary examination that he clearly comprehends the difference between tnith and falsehood, and understands that it is his duty to tell the truth.
    Argued March 6, 1905.
    Appeal, No. 20, Jan., T., 1905, by defendant, from judgment of 0. & T. Lancaster Co., Aug., T., 1904, No. 13, on verdict of guilty of murder of the first degree in case of Commonwealth v. Lee Furman and John O’Brien.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Indictment for murder. Before Landis, J.
    At the trial Elmer Eshleman, a boy eight years old, was called by the commonwealth, and examined as follows:
    The Court: “ Q. Where do you go to school ? A. Down along the pike there. Q. Whereabouts? Down near the tollgate? A. Yes. Q. Thatschoolhouse? A. Yes. Q. How long have you been going to school? A. Three years. Q. Can you read? A. Yes. Q. Can you write? A. Yes. Q. Do you know what it is to tell the truth ? A. Yes. Q. Suppose you don’t tell it, what will become of you ? Do they tell you in Sunday school ? What do they say, if you tell lies? Where will you go to? Do you know? A. No. Q. Do you know whether you must tell the truth or not? A. Yes.”
    The prisoners object to the competency of the witness.
    The court allows the witness to be sworn.
    The Court: The weight of the testimony will be with the jury. Exception and bill sealed.
    Yerdict of guilty of murder of the first degree. Defendant, Lee Furman, appealed.

      Error assigned was the above ruling on evidence.

      Willis Gr. Eendig and John E. Malone, for appellant.

      W. U. Hensel, with him J. W. Brown, district attorney, Frank S. Groff,\ ex-district attorney, and W. R. Brinton, for appellee.
    April 17, 1905:
   Per Curiam,

No question is raised by this appeal as to the guilt of the prisoner, or the justice and propriety of his conviction; The single assignment of error is to the admission as a witness of a boy of eight years whose testimony was not material to the establishment of the prisoner’s guilt and had no practical bearing on it. The objection raises no more than a question of technical error in theoretical law.

The substantial test of the competency of an infant witness is his intelligence, and his comprehension of an obligation to tell the truth. The truth is what the law, under the rules of evidence is seeking, and if a full and present understanding of the obligation to tell it, is shown by the witness, the nature of his conception of the obligation is of secondary importance. Each witness must be qualified by an obligation that has a solemn sanction to him, though like the breaking of a plate or beheading a chicken as in case of some nationalities it appears frivolous or offensive to others. In the present case the witness clearly comprehended the difference between truth and falsehood, and his duty to tell the truth. That was the substance of qualification as a witness. The trial judge in whose discretion the matter very largely rested was satisfied of the competency of the boy, and we are of opinion that his discretion was well exercised. After quoting from 8 Wigmore on Evidence, sec. 1821, he added: “ It seems to us that the crude and shadowy beliefs of small children concerning God and the hereafter, are so uncertain, that the tests, based upon religious instruction, even though given by the trial judge himself, are of little or no moment, and should rather be discarded than followed in this enlightened age. The whole purpose of the trial is to ascertain the truth, and the oath is in pursuance of that object. If the witness understands that this is demanded and that punishment will follow its violation, it is sufficient. It is the substance, instead of the form, that is required, and if we secure this, there would seem to be little benefit in pursuing the shadow. A witness may easily show intelligence and understanding, without being asked each perfunctory question. In this case, it appeared to us that the boy understood perfectly the position in which he was placed, and that the truth was what was demanded of him. There was no reason why he, nor anyone connected with him should testify except from their actual knowledge, and the testimony itself shows the care with which the respective stories were told.”

Judgment affirmed and record remitted for purpose of execution according to law.


author: Mr. Justice Fell,

text:
    Carpenter v. Vulcanite Portland Cement Company, Appellant.

      Contract—Letters—Telegrams—Copy.

    Under the procedure Act of May 25, 1887, P. L. 271, a plaintiff must set out in his declaration the whole of his contract and his proofs will be limited to his allegations. If he has not set out the whole of his contract and his evidence offered in support of his averments, discloses the fact, the evidence will be stricken out as being at variance with the allegations, but a plaintiff is not bound to set out in his declaration all his written evidence and it cannot be said that there has been a variance between the averments and the proofs because the writing offered in support of the contract declared on, also contains words not pleaded if those words do not in themselves alter the meaning of the words pleaded.
    In an action of assumpsit plaintiff declared on a contract consisting of an offer by the defendant contained in a telegram. At the trial plaintiffs offered a letter from the defendant of the same date as the telegram, containing a copy of the telegram but with the additional words “letter received.” The letter confirmed the telegram. The admission of the letter was objected to on the ground that the copy of the telegram contained in it, differed from that set out in the statement and that it disclosed prior correspondence which plaintiff was bound to set out as a part of the written contract. Held, that the letter was properly admitted inasmuch as the words “letter received” did not alter the effect of the defendant’s offer.
    In such a case the additional words did not in themselves indicate that the letter referred to related to the defendant’s offer or even to the same subject.

      If the contract declared on and established by the plaintiff was not the whole of the contract between the parties, this was a matter of defense. As long as the plaintiffs’ testimony tended to prove the contract they had pleaded and did not disclose any other, the defendant could not complain.
    Argued Jan. 17, 1905.
    Appeal, No. 217, Jan. T., 1904, by defendant, from judgment of C. P. No. 4, Pliila. Co., JuneT., 1903, No. 415, on verdict for plaintiffs in case of F. A. Carpenter & Co., Limited, v. Vulcanite Portland Cement Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for breach of contract of sale. Before Will-son, P. J.
    The opinion of the Supreme Court states the ease.
    Verdict and judgment for plaintiff for $2,890. Defendant appealed.

      Error assigned was the admission in evidence of the letter quoted in the opinion of the Supreme Court.

      M. Hampton Todd, for appellant, cited: Wilkinson Mfg. Co. v. Welde, 196 Pa. 508.

      S. Gr. Birnie, with him Francis Gr. Taylor, for appellee.
    April 24, 1905 :
   Opinion by

Mr. Justice Fell,

All questions raised by the testimony and essential to the decision of the case were submitted to the jury by the court in an exceptionally clear and adequate charge. If there was any error, at the trial it was in the admission of a single item of written evidence, which was objected to on the ground that it was a part of the contract on which suit was brought, and had not been fully set out in the declaration.

The action was to recover damages for the alleged breach of a contract to sell the plaintiffs 15,000 barrels of cement at a stipulated price. The plaintiffs declared on a contract consisting of an offer by the defendant contained in a telegram dated November 8, 1901, accepted by the plaintiffs by letter. The telegram as set out in the statement was as follows : “We will sell you 15,000 barrels Vulcanite, delivered Hamilton, Canada, one sixty-one per barrel, three hundred and fifty pounds including freight and duty, in cotton sacks charged extra. The above price is net and does not include any commissions.” At the trial the plaintiffs offered in evidence a letter from the defendant dated November 8, 1901, containing a copy of its telegram of the same day and confirming it. The copy of the telegram as contained in the letter was the same as that set out in the plaintiffs’ statement, except that in the former were the additional words, “ Letter received.” The admission of this letter was objected to for the reason that a copy thereof was not filed with the declaration, as required by the procedure act of 1887; that the copy of the telegram in the letter differed from the telegram as set out in the declaration, and that the words “ Letter received ” indicated a previous correspondence which the plaintiffs were bound to set out as a part of the written contract in the case. The objection was overruled, as was also a motion afterwards made to strike the letter from the evidence.

A plaintiff must set out in his declaration the whole of his contract, and his proofs will be limited to his allegations. If he has not set out the whole of his contract and his evidence, offered in support of his averments, discloses this fact, the evidence will be stricken out as being at variance with the allegations. But a plaintiff is not bound to set out in his declaration all his written evidence, and it cannot be said that there has been a variance between the averments and the proofs because the writing offered in support of the contract declared on also contains words not pleaded, if those words do not in themselves alter the meaning of the words pleaded. The words “ Letter received ” in the telegram of November 8 did not alter the effect of the defendant’s offer. They indicated a prior correspondence, but did not in themselves indicate that the letter referred to related to the defendant’s offer or even to the same subject.

If the contract declared on and established by the plaintiffs was not the whole of the contract between the parties, this was a matter of defense. As long as the plaintiffs’ testimony tended to prove the contract they had pleaded, and did not disclose any other, the defendant could not complain.

The judgment is affirmed.


text:
    Sutton, Appellant, v. Pennsylvania Railroad Company.

      Railroads—Eminent domain—Dwelling house—Curtilage—Widening road —Act of March 17, 1869, P. L. 12.
    Under the Act of March 17, 1869, P. L. 12, relating to the widening of rights of way of railroad companies, a single taking does not exhaust the power.
    A railroad company will not be restrained from taking a strip of land from the curtilage of a dwelling house, for the purpose of widening its roadbed, where there is no evidence to show that there was an abuse of power, nor that the facilities and capacity for the transportation of traffic did not require the widening of the road, nor that any less ground would answer for the safety of persons and property in the operation of the railroad, in view of the elevation of the railroad and the necessity for embankments to support the slope.
    Argued Jan. 30, 1905.
    Appeal, No. 55, Jan. T., 1904, by plaintiff, from decree of C. P. Montgomery Co., Oct. T., 1903, No. 1, dismissing bill in equity in case of Hannah Anderson Sutton v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    In addition to the findings of fact quoted in the opinion of the Supreme Court, it appeared that the proceeding for widening in question was a second exercise of the power under the Act of March 17, 1869, P. L. 12.
    Swartz, P. J., filed an opinion containing the following conclusions of law:
    1. The talcing of the strip of ground from Mrs. Sutton is lawful even if it is a second talcing under the Act of March 17, 1869, P. L. 12, along the defendants’ railroad between Ardmore and Bryn Mawr, for the purpose of widening and straightening or otherwise improving its roadway. A single talcing does not exhaust the power of the company granted by the act of 1869, but the talcing or widening may be repeated as often as in the opinion of the board of directors, the same is necessary for the better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic. Such power, however, must not be abused by the company.

      Hrror assigned was decree dismissing the bill.

      Hampton L. Carson, with him W. Henry Sutton and Hillegas § Larzelere, for appellant.

      H. H Larzelere, with him C. H. Stinson, for appellee.
    April 24, 1905:
   Per Curiam,

The learned judge below found as facts that “ all the land that the company proposes to take from Mrs. Sutton is needed to make the contemplated railroad improvements. There is no evidence from which we can find that there is any abuse of power in taking the land. Nor is there any sufficient evidence to show that the facilities and capacity for transportation or traffic do not require the widening and straightening of the roadway. Nor is it shown that any less ground will answer for-the safety of persons and property in the operation of the railroad. The new driveway will not take up any more space than the existing one. The use of the old has not demonstrated that a narrower one will answer. The elevation of the roadbed and the consequent embankments to support the railroad and driveway require slopes and these require a wider roadbed or right of way than is ordinarily needed.” And further that “ the uses heretofore made of the ground taken, considered in connection with all its surroundings, do not show that it is a part of the curtilage necessary to the reasonable enjoyment of-the house.”

None of these findings has been successfully attacked and on them the judgment is affirmed.


text:
    Yerkes v. Stetson, Appellant.

      Practice, C. P.—Service of process—Summons—Infants—Dwelling house —Act of July 9,1901, P. L. 614.
    Service of summons in trespass against a minor will not be set aside where the return is as follows: “Served S., Jr., by handing, November 19,
    1903, a true and attested copy of the within writ to an adult member of his family at his dwelling house, said adult being his father S., Sr.,” and the only ground for setting the service aside is that the dwelling house was that of the father and not that of the son.
    Argued Jan. 30, 1905.
    Appeals Nos. 135 and 136, Jan. T., 1904, by defendant from order of C. P. Montgomery Co., Dec. T., 1903, No. 76, overruling motion to set aside service of process in case of A. Addis Yerkes and Anna R. Yerkes, his wife, v. John B. Stetson, Jr.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.
    Motion to set aside service of process.
    Weand, J., filed the following opinion :
    The writ in this case is in the ordinary form, and, according to the return of the sheriff, was served as follows, viz.: “Served John B. Stetson, Jr., by handing November 19, 1903, a true and attested copy of the within writ to an adult member of his family at his dwelling house, said adult being his father, John B. Stetson, Sr.”
    The reason for setting aside the service as set forth in the petition of John B. Stetson is, that said John B. Stetson, Jr., party defendant in said suit is a minor between the age of fourteen and twenty-one years; that said minor was at the time of service and still is absent in a distant state, for his protection ; and that the house referred to in said return is not the dwelling house of the infant, but of your petitioner, and is his exclusive property.
    By the Act of July 9,1901, P. L. 614, a writ of summons is to be served, “ (a) By handing a true and attested copy thereof to him personally; or, (b) by handing a true and attested copy thereof to an adult member of his family at his dwelling house; or, (c) by handing a true and attested copy thereof at his place of residence, to an adult member of the family with which he resides.”
    All the material facts necessary to a decision of this case are set forth in the petition to set aside the service and the answer thereto. It is not necessary to cite authority to show that the defendant, being a minor, has not by a mere temporary absence acquired a domicile or residence separate from his father—the only question being as to the regularity of the service which was made under clause (5). If the “dwelling house ” of the father is also within the meaning of the law, the “ dwelling house ” of a minor son, living with his father, then the service was strictly in accordance with the requirements of the act. In personal actions in this state, the law makes no distinction as to the method of service of original process between a minor and an adult; but after service, before judgment can be taken against a minor he must have a guardian.
    It is claimed by counsel for this motion “ that the service upon a minor must be personal,” and that the dwelling house of the father was not the dwelling house of the son.
    To hold the first proposition to be true, would be equivalent to saying that by mere temporary absence service could be avoided, if by personal service is meant service upon him individually, and not by leaving a copy with others.
    If so, in this case, if the minor is fourteen years of age, by remaining away at school, or for his health, for seven years, he would not lose his domicile or residence in the county (his father remaining), and thus prevent service. We cannot so construe the law.
    By clauses (5) and (o) the act provided for different classes. In the first (5) where the defendant has a dwelling house, or, what is known generally as a home, where a person resides permanently with his family. By (e), where the defendant resides or lives with others—with persons not members of his family—not at his own home or dwelling house—a distinction being drawn between “ residence ” and “ dwelling house.”
    A person may have a dwelling house without being the owner, and hence the term in clause (5) is not used in the sense of ownership, but of occupation. A minor’s home, habitation, or domicile, whichever term is used, is prima facie with his parent, and it is therefore his dwelling house or place of abode.

      Anderson’s Law Dictionary defines “ dwelling ” in these words : “ A person has his dwelling where he resides permanently or from which he has no present intention to remove.”
    “ Dwelling house, a description of realty.”
    This service therefore was made at the dwelling place of the defendant, being at the house where he lived, and the house or place recognized by law as his home, or domicile.
    If this position is correct, then the service upon his father was also “ upon an adult member of his family,” else it could not be made upon him at his dwelling house, unless handed to him personally. A minor, unless married, strictly speaking, has no family of his own, but he is a member of his father’s family, and, in that sense, every member of the father’s family is also a member of the family of the others comprising the household.
    The Century Dictionary defines “ family ” to mean : “1. The collective body of persons who form one household under one head and one domestic government, including parents, children, and servants, and, as sometimes used, even lodgers or boarders. 2. Parents with their children, whether they dwell together or not; in a more general sense, any group of persons closely related by blood, as parents, children, uncles, aunts, and cousins : oftener used in a restricted sense only of a group of parents and children founded upon the principle of monogamy. 4. In the most general'sense those who descend from a common progenitor.”
    It is no answer to say that the son resides with his father, and that, therefore, it is “ his place of residence,” within the meaning of clause (c). It is his place of residence; but it is also “ his dwelling house,” within the meaning of the act of assembly. The law did not intend to change the family relationship in this regard when it merely provided for a method of service of process in a personal action; and clause (<?) in speaking of service at his place of residence did not place a minor living with his parents on the same basis as a defendant residing or living with others, and not at his own home or dwelling house.
    And now, April 18, 1904, the motion to set aside the service is overruled.

      Error assigned was the order of the court.

      N. H. Larzelere. with him John Cr. Johnson, for appellant.

      Russell Duane, with him Theodore Lane Bean, Algernon B. Roberts and Harry T. Bauerle, for appellees.
    April 24, 1905 :
   Per Curiam,

This appeal being taken shortly after the close of the Montgomery county list last year the appellees in May, 1904, made a special motion to quash on the ground that there was no final judgment in the court below from which an appeal would lie.

The motion being somewhat unusual as to time and out of the ordinary course of practice was dismissed temporarily and the consideration of the matter postponed until the case should appear in its regular place on the Montgomery county list where it has now been reached. The appellees now withdraw their motion and ask to have the question raised on the record decided, so as to relieve them from further delay on this ground. As there has already been a considerable delay for which the action of the court is partly responsible, and as the question has now been fully argued and the court is advised upon it, we think it right under the special circumstances to make an exception to the general rule and express our opinion.

The order discharging the rule to set aside the service is affirmed on the opinion of the learned judge below.


text:
    Lower Merion Township v. Cline, Appellant.

      Appeals—Township—Treasurer—Settlement of accounts.

    A judgment of the court of common pleas on an appeal by a township treasurer from a settlement of his accounts by the township auditors, is final and conclusive, and no further appeal lies to either of the appellate courts.
    Argued Jan. 30, 1905.
    Appeals, Nos. 373 and 374, Jan. T. 1904, by defendants, from order of C. P. Montgomery Co., Oct. Term, 1904, No. 70, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lower Merion Township v. Levi S. Cline and the Bryn Mawr Trust Company.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.
    Appeal from settlement of accounts of township treasurer. Before Weand, J.
    The opinion of the Supreme Court states the case.

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

      Wm. Righter Fisher, with him Henry M. Brownbach and A. A. Hirst, for appellant.

      Rowland Evans, for appellee.
    April 24, 1905:
   Per Curiam,

The condition of the official bond of appellant Cline, as treasurer of Lower Merion township, was that he should “ faithfully perform the duties of his office; keep a just account of all money belonging to the funds of said township that may come into his hands; deliver to his successor in office all papers, books, documents and other things held in right of his office ; and pay to such successor any balance of money belonging to said township that may remain in his hands on settlement of his account.”

The plaintiff’s statement in the present action, sets forth the bond, and a settlement of the treasurer’s account by the township auditors in which they found him indebted to the township in the sum sued for. From this settlement of his account the treasurer took an appeal under the statute to the court of common pleas which gave judgment against him, and from such judgment we have this appeal.

Counsel have argued the construction of the Act of April 28, 1899, P. L. 104, involving the method of stating the account appellant contending that the auditors erred in charging him prima facie with the full sum of the uncollected taxes. It is admitted that that is the rule under other and prior acts on the same subject, but it is claimed that the act of 1899 contemplates a different method.

Before we reach this question, however, we are met with the objection to our jurisdiction. The system of accounting by township officers is entirely statutory, and consists of a settlement in the first instance with the township auditors with a right of appeal to the court of common pleas. No further appeal is provided for, and therefore none lies to the Supreme Court from the judgment of the common pleas: Gangewere’s Appeal, 61 Pa. 342; Thomas v. Upper Merion Twp., 148 Pa. 116.

Even if we consider the case as if on common-law certiorari there is no irregularity on the record to show error. It is admitted that a considerable amount of the taxes placed in appellant’s hands for collection, remains uncollected. This may have been because they were uncollectable, or because the treasurer failed to exert due diligence in their collection. If the latter was the cause then there was a breach of official

duty within the condition of the bond, and he and his surety were properly held liable. The facts have been examined and determined by the only tribunals having jurisdiction to pass upon them, and we have no authority to review their judgment.

Appeal quashed.


text:
    Beltz, Appellant, v. City of Pittsburg.

      Constitutional law—Classification of cities—Plumbing and house drainage —Cities of second class—Act of June 7, 1901, P. L. 493.
    The Act of June 7, 1901, P. L. 493, relating to the examination, licensing and registration of plumbers, and prescribing rules and regulations for plumbing and house drainage in cities of the second class, relates to a subject which is a legitimate basis for the classification of cities, and is constitutional.
    Argued Jan. 31, 1905.
    Appeal, No. 14, Oct. T., 1905, by plaintiff, from judgment of Superior Court, April T., 1904, No. 110, affirming judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 113, affirming justice of the peace in case of John Beltz v. City of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ.
    Affirmed.
    Appeal from judgment of Superior Court.
    The only question raised in the lower court was the constitutionality of the Act of June 7, 1901, P. L. 493.

      Error assigned was the judgment of the lower court.

      J. McF. Carpenter, for appellant.

      L. S. Levin, with him W. B. Rodgers, for appellee.
    April 24, 1905:

   Per Curiam,

The Act of June 7, 1901, P. L. 493, is an act relating to the public health as affected by the matters of plumbing and drainage and of general sanitation resulting therefrom. In its nature it is a definition and regulation of the police power on a subject which is one of municipal concern. All the cases agree that such subjects are the principal basis of the legitimate classification of cities. That the control and regulation of cesspools and of drainage in general are more important and require different conditions in closely built up neighborhoods from those sufficient for the open country does not need discussion. And for the same reason the regulations may require to be different in cities of different volume and density of population. It is no objection therefore to the act in question that it applies only to cities of the second class. Cities of other classes may require other regulations of more or less stringency. That is a matter for the legislature. The subject being one which is germane to the proper basis of classification its regulation and application to one or more classes are within the legislative discretion. No valid objection to the constitutionality of the act has been shown.

Judgment affirmed.


author: Pee 'Curiam,

text:
    Harvey v. Chester, Appellant.

      Negligence—Municipalities—Defect in street—Independent contractor.

    The primary duty of keeping its streets in travelable condition is on a municipality, and while it may turn over their control to an independent contractor for specified purposes and limited time, it cannot by contract relieve itself indefinitely from its duty in that regard.
    The fact that a city contractor is required to keep a street in repair three years does not relieve the city from liability for an accident happening more than a year after the city had resumed coni rol of the street, where it appears that the accident was caused by a defect in the street.
    Where a city is sued for damages for personal injuries resulting from a defect in a street and a contractor who was under a contract with the city to keep the street in repair for three years is called upon to defend and intervenes, such contractor can only be heard upon matters which raise a defense against the plaintiff. He cannot ask the jury to find specially that the accident was due to the action of the city in paving with slag over trenches in the street after they had been filled in by him.
    In an action against a city to recover damages for personal injuries alleged to have been sustained by reason of depressions in a street, testimony was given by witnesses for plaintiff acquainted with the locality, as to the size, depth, etc., of the depression. It was disclosed later in the case that the plaintiff had had the depressions measured by a surveyor. The defendant thereupon asked to have the testimony as to the eye measurements stricken out. Held, that this request was properly refused, inasmuch as the testimony was competent when it was admitted, and that the more exact evidence subsequently produced tended to discredit its weight, but not its competency.
    Argued Feb. 6, 1905.
    Appeal, No. 83, Jan. T., 1904, by-defendant, from judgment of C. P. Del. Co., Dec. T., 1902, No. 20, on verdict for plaintiff in case of William B. Harvey v. City of Chester.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,897.88. Defendant appealed.

      Errors assigned were rulings on evidence referred to in the ■ opinion of the Supreme Court, and in refusing to enter judgment for defendant on the question of law reserved, whether any evidence had been submitted to the jury which entitled the plaintiff to recover.

      A. A. Qoohran, city solicitor, for appellant.

      Joseph II. Uinkson, for appellee, was not heard.
    April 24, 1905:
   Pee 'Curiam,

The plaintiff, driving at night an open express wagon loaded with furniture and seated in front on a somewhat raised open seat, was jolted off by the wagon crossing two depressions running across the street at right angles with it, about twenty-five feet apart, each from one and a half to two feet wide and between two and ten or twelve inches deep, according to the testimony of the different witnesses. Except on this last point there was no substantial dispute about the facts. The case presented two questions: first, was the plaintiff negligent in driving as he did; and, second, was the city negligent in permitting the depressions or ruts or gullies, whichever they may be termed, to exist in the street. Both were questions of fact and both were submitted to the jury with correct and adequate instructions.

The defendant claimed that the depressions in the street were caused by the insufficient filling in of trenches dug for putting in water connections by one Riley, a plumber and contractor, and offered in evidence the permit issued to Riley in connection with the ordinance of the city requiring the contractor to keep the street in repair for three years. The purpose of the offer was stated to be to show that Riley and not the city did the filling in, and the city was not responsible for the depressions. On objection the offer was properly excluded. If proved it would have been no defense. The primary duty of keeping its streets in travelable condition is on the city and while it may turn over their control to an independent contractor for specified purposes and limited time, it cannot by contract relieve itself indefinitely from its duty in that regard. The evidence was undisputed that Riley had completed his work in November, 1901, and the city had resumed its control of the street for a year when the accident happened in November, 1902: Rimby v. Philadelphia, 208 Pa. 119. The fact that Riley might still under his contract be answerable over to the city was no defense to the latter against the plaintiff.

The city called upon Riley to defend, and he intervened at the trial for that purpose. But it soon appeared that his chief effort was to show that the defect in the street which caused the accident was due to the action of the city in paving with slag over the trenches after they have been filled in by him. His counsel asked to have the jury find specially on that point. This the court refused to permit and held that Riley could only be heard upon matters which raised a defense against the plaintiff. This was clearly correct. The issue was between the plaintiff and the city and could not be diverted or embarrassed by a subordinate contest between the defendant and its contractor as to their responsibilities between themselves, with which the plaintiff had nothing to do.

Testimony was given by witnesses acquainted with the locality, as to the size, depth, etc., of the depressions. It having been disclosed later in the case that the plaintiff had had them measured by a surveyor, the defendant asked to have the testimony as to the eye measurements stricken out. This was properly refused. The testimony was competent when it was admitted, and the more- exact evidence subsequently produced tended to discredit its weight not its competency. The judge very fully explained to the jury their right to draw an unfavorable inference if they believed that the plaintiff having the exact evidence within his reach had declined to produce it and relied on the inferior, calling attention at the same time to the plaintiff’s explanation that the actual measurements were not made until seven days after the accident and in the meantime the city had made changes in the street.

Judgment affirmed.