text:
    Harrisburg, Appellant, v. Harrisburg Gas Company.

      Taxation — Cities of the third class — Corporations—Statutes—Repeal— Acts of March 19, 1860, P. L. 175, April 22, 1868, P. L. 1136, May 23, 1874, P. L. 230 and May 23, 1889, P. L. 277.
    The local Acts of March 19, 1860, P. L. 175, and April 22, 1868, P. L. 1136, authorizing the city of Harrisburg to impose taxation on corporations for city purposes, are repealed by the Acts of May 23, 1874, P. L. 230, and May 23, 1889, P. L. 277, which provided for the creation of cities of the third class, and for a complete system of taxation therein.
    Argued June 3, 1907.
    Appeal, No. 3, May T., 1907, by plaintiff, from judgment of Superior Ct., March T., 1905, No. 11, reversing judgment of C. P. Dauphin Co., Mechanic’s Lien Docket No. 1, No. 171, for plaintiff on case stated in suit of City of Harrisburg v. Harrisburg Gas Company.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Appeal from the Superior Court. See 31 Pa. Superior Ct. 530.
    The opinion of the Superior Court by Porter, J., was as follows:
    The case stated presents but one question — whether the city of Harrisburg, a city of the third class, has the power to tax for general revenue purposes the real estate of the Harrisburg Gas Company, a duly organized public corporation, authorized under its charter to manufacture gas, for heating and illuminating purposes, and supply the same to the public in said city; said property being used by the gas company exclusively in its business of manufacturing and supplying gas to the public in the city of Harrisburg, as authorized by its charter, and necessary and indispensable to the exercise by the company of its franchise and the discharge of the public duty imposed by its charter.
    The Act of March 19, 1860, P. L. 175, incorporating the city of Harrisburg, in section 24 provides for the election of an assessor by the qualified voters of each ward of the city, the manner in which property subject to taxation shall be assessed, and “ That the assessors, in making such assessment of property in the city of Harrisburg, shall assess all the property which is now by law subject to taxation for borough purposes in the said borough of Harrisburg, and shall also assess for taxation, for city purposes, the real estate of all incorporated companies within the limits of the said city, except the real estate of the Pennsylvania Railroad Company, the Harrisburg & Lancaster Railroad Company, the Cumberland Talley Railroad Company, the Reading Railroad Company, and the several cemeteries, together with the buildings thereon erected.” The charter of the city was amended, and its taxing power increased by the Act of April 22, 1868, P. L. 1136, which contained the following provisions : “ That all real estate situated in said city, owned or possessed by any corporation except religious and educational corporations, shall be and is hereby made subject to taxation for city purposes, the same as other property in said city ; any law or laws contrary to or' inconsistent with this section are hereby repealed. That the city councils are hereby empowered to levy, assess and collect for the use of the city, an annual tax, not exceeding one-third of one mill per dollar on the average quarterly business of all insurance companies, insurance agencies, express and telegraph companies, or other agencies or corporations doing business in said city, which do not now pay city tax.” The above recited provisions of the statutes are very clear and comprehensive, and, unless they have been repealed by later legislation, the real estate of the appellant company is by them rendered subject to taxation: Pennsylvania Railroad Company v. Pittsburg, 104 Pa. 522; Philadelphia v. Philadelphia Traction Company, 206 Pa. 35. The city of Harrisburg duly accepted the provisions of the Act of May 23, 1874, P. L. 230, entitled “ An act dividing cities of this state into three classes .... and providing for the incorporation and government of cities of the third class,” in the manner provided by sec. 57 of said statute; and the governor of the commonwealth, on August 25, 1874, duly certified the surrender of the former charter of the city and the acceptance of the provisions of the act of 1874. The city of Harrisburg is, therefore, a city of the third class, and subject to the provisions of the Act of May 23, 1874, P. L. 230, and the Act of May 23, 1889, P. L. 277, entitled “ An act providing for the incorporation and government of cities of the third class.” The question is whether these statutes relating to the classification of cities and the government of cities of the third class repeal the local and special provisions relating to taxation contained in the act of 1860 and the act of 1868, above recited, conferring peculiar powers of taxation upon the city of Harrisburg.
    The act of 1874, in dealing with the taxing power of cities of the third class, authorized such cities, in clause 1 of sec. 20, “ To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar, in any one year, on all the real, personal and mixed property within the limits of said cities, taxable according to the laws of the state of Pennsylvania, the valuation of such property to be taken from the assessed valuation of the taxable property therein made under the provisions of law regulating the same.” This statute did not designate the property which should be subject to taxation, nor provide for the manner in which the valuation of that property should be assessed; the property subject to taxation, the mode in which the assessors should be chosen and the manner in which their duty should be discharged were left to be determined under the laws already in force in the several cities, respectively. This statute was, however, inconsistent with the acts of 1860 and 1868 in that it fixed the limit of the levy in any one year at ten mills, no such limitation being found in the earlier statutes, and, further, in that, in sec. 36, it provided a new and entirely different manner of collecting taxes. The act of 1871 provided that the powers of cities of the third class “ shall be and remain as now provided by law, except where otherwise provided by this act.” It is not asserted that the city has attempted to levy taxes to exceed ten mills on the dollar in any one year upon the property of the appellant, and if the power of the city to levy a tax upon the real estate of the corporation has been taken away, it must be because of a later statute.
    The Act of 1889, P. L. 277, provided a complete system of taxation for cities of the third class, designated the property and occupations which should be subject to tax, enacted that the assessors who should fix the valuation of such property should be chosen by the qualified electors of the city, not of the several wards, ordained the manner in which such assessors should discharge their duties, created a board to hear and determine appeals from such assessments, designated the officer to whom taxes should be paid, provided a manner for enforcing payment, and fixed penalties for failure to pay the tax after it became due. The system thus provided is from beginning to end inconsistent wfith that which was authorized by the local acts of 1860 and 1868 applicable to the city of Harrisburg alone. The provision wTiich is material to the present inquiry is that which designates the property which shall be subject to tax. The act of 1889 authorized and empowered cities of the third class : “ To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar in any one year, on all persons, real, personal and mixed property within the limits of said city, taxable according to the laws of the state of Pennsylvania for county purposes ; the valuation of such property to be assessed as hereinafter provided.” The statute also authorized the collection of a tax, upon the same property, for the purpose of paying interest on bonded indebtedness and for the payment of loans to support the government and make the necessary improvements in said city, and it also authorized the imposition of a poll tax not to exceed $1.00 and a license tax not exceeding $100 annually upon certain businesses and occupations. The real estate which under this act is subject to be taxed for city purposes, by a city of the third class, is such as is taxable for county purposes. This provision is'inconsistent with the provisions of the acts of 1860 and 1868, which authorized the city of Harrisburg to levy taxes upon property which had been subject to taxation “ for borough purposes in the borough of Harrisburg,” and upon the real estate of corporations located within said city. The act of 1889 provided that: “ All acts or parts of acts inconsistent herewith, or supplied by the provisions hereof, be and the same are hereby repealed.”
    The parties have expressly agreed in the case stated that the real estate of the Harrisburg Gas Company, which the city seeks to tax, is not taxable according to the laws of the state of Pennsylvania for county purposes, that this agreement but states the law is well settled: Bridge Co. v. Frailey, 13 S. & R. 422; Schuylkill Navigation Co. v. Berks County, 11 Pa. 202; Wayne County v. Canal Co., 15 Pa. 351; West Chester Gas Co. v. County of Chester, 30 Pa. 232; Coatesville Gas Co. v. County of Chester, 97 Pa. 476; Southern Electric Light & Power Co. v. Philadelphia, 191 Pa. 170; People’s Passenger Railway Co. v. Taylor, 22 Pa. Superior Ct. 156; Philadelphia v. Electric Traction Co., 208 Pa. 157; Railway Co. v. Venango County, 5 Pa. Superior Ct. 304. Real estate held and used as is that of the appellant would not be taxable for city purposes, under the provisions of the act of 1889, in any city of the third class in the commonwealth other than Harrisburg. The legislature of the commonwealth, in the act of 1889, defined and limited the powers of cities of the third class for purposes of taxation, and the special provisions of the acts of 1860 and 1868 are inconsistent with and repugnant to the provisions of the later statute.
    Chief Justice Mitchell, in Commonwealth v. Brown, 210 Pa. 29, in dealing with the question of the repeal of a local and special act by a later general statute, after a painstaking review of the authorities, thus summarizes his conclusion :
      “ First, the rule that a general statute does not repeal by implication a local act with different or inconsistent provisions, is still the prevailing rule. Secondly, but the rule being founded on a presumption of legislative intent, will not apply when a contrary intent is clearly apparent. Thirdly, where the clear general intent of the legislature is to establish a uniform and mandatory system as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed. Fourthly, where an act is passed to carry into effect a mandatory general provision of the constitution, the presumption must be that it was intended to repeal even local acts inconsistent with its terms.” The learned Chief Justice says, in the same opinion, “ What the cases decide and are authority for, is that as the legislative intent in the classification of municipalities is apparent, to make a uniform system and framework of government, public officers, powers and duties in each class, the presumption is that as to such matters local acts must give way to the general act of classification whenever they conflict.” When the legislative intention to provide a uniform system for all subjects to which it relates clearly appears, no repealing words are necessary: Chalfant v. Edwards, 176 Pa. 67; Quinn v. Cumberland County, 162 Pa. 55. This case is squarely ruled by Commonwealth ex rel. McKirdy v. Macferron, Treasurer of Allegheny City, 152 Pa. 244. The city of Allegheny had not accepted the provisions of the act of 1874, and had continued to be governed under its special charter and laws until 1890, when because of increase in population it became a city of the second class, and it no longer had the option to continue its old form of government, but must pass into and be governed by the laws relating to cities of the second class. Among the local and special laws by which it had been governed under its old charter was a complete taxing system, which, like that of the city of Harrisburg, was somewhat peculiar. The relator in that case attempted to pay his taxes in the old manner, the city treasurer refused to accept the tax, and McKirdy, the relator, proceeded by mandamus. The case reached the Supreme Court and is reported as above cited, and it was held : “ It is clear, therefore, that in order to adjust itself to the class into which it has come, this city must leave its. old system behind it, and take on that which the law has prescribed for it as a member of the second class. This is rendered still more apparent when we remember that the power to levy and collect taxes is one of the ‘ corporate powers ’ which the classification acts have undertaken to regulate, and that the officers through whom such levy and collection are made are £ corporate officers,’ whose powers and duties are defined and adjusted by the same acts. If no provision for the levy and collection of taxes in cities of the second class had been made, the system previously in existence in such cities would have remained undisturbed under the express declaration of the first section of the act of 1874; but to the extent to which the law has regulated the exercise of the taxing power, or modified the powers and duties of the officers through whom it is exercised, to that extent the old system is superseded by the new.” Mr. Justice Williams, who spoke for the Supreme Court in Commonwealth v. Macferron, thus states the rule : ££ Whenever, therefore, any law regulating the municipal affairs of cities of a given class shall be found to conflict with a previous local statute applicable to any member of the class relating to the Same subject, the .latter must give way by reason of the nature and purposes of class legislation. In this manner existing diversities will gradually disappear, and uniformity throughout the class will be finally secured.”
    The power to levy and collect taxes is one of the corporate powers of cities of the third class, which the classification acts have undertaken to regulate ; the act of 1889 provides a complete system for the levy and collection of taxes in cities of the third class, and as the local acts relating to the city of Harrisburg come into conflict with that statute, “ the latter must give way by reason of the nature and purposes of class legislar tion.” The local acts, authorizing the city to impose taxes upon the real estate in question having been superseded by the classification acts, the city was without authority to impose the taxes which are the subject of this litigation.
    The judgment of the court below is reversed, and judgment is now entered for the defendant with costs.

      Error assigned was the judgment of the Superior Court.

      Daniel S. Seitz, city solicitor, for appellant.

      A. C. Stamm, with him M. E. Olmsted, for appellee.
    June 25, 1907:
   Per Curiam,

The judgment is affirmed by a majority of the court on the opinion of the Superior Court.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Bolton v. Central Pennsylvania Traction Company, Appellant.

      Negligence — Damages—Exaggeration of injuries — Evidence.
    In an accident case where the defense charges simulation or at least gross exaggeration of injuries, and where the medical evidence is conflicting, it is proper for the trial judge in his charge to refer specifically to the subject of interest in the plaintiff, and to dwell somewhat on the weight of the other evidence; but he is not bound to do so. If he correctly instructs the jury as to their duty, in considering the weight of the evidence and the credibility of the witnesses, he cannot be charged with error in not going further.
    Argued June 3, 1907.
    Appeal, No. 2, May T., 1907, by defendant, from judgment of C. P. Dauphin Co., January T., 1905, No. 507, on verdict for plaintiff in case of Edwin G. Bolton et al. v. Central Pennsylvania Traction Company.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Kunkel, P. J.
    The opinion of the Supreme Court states the case.
    Verdict for Sadie Bolton for $3,000, and for Edwin G. Bolton for $500. Defendant appealed.

      Errors assigned among others were (1, 2) the instructions quoted in the opinion of the Supreme Court.

      Wolfe & Bailey, for appellant.

      C. H. Bergner, for appellees.

      June 25, 1907:
   Per Curiam,

It was conceded by the defendant at the trial that the conductor had negligently started the car while the plaintiff was getting off. As said by the judge in. his charge “the real question in the case is what were the injuries, if any, which the plaintiff received.” These were claimed to be bruises on the elbow, the back and the knee, only the last being at all serious or continuing, and their existence resting on the testimony of plaintiff herself, supported to some extent by that of one of the doctors. On the other side ivas rather a strong array of medical testimony that her knee was not injured' at all and her leg had all its normal sensation and action.

.The defendant presented a point for charge that “ it is the duty of the jury, in considering the relative value attaching to the testimony of the witnesses in this case, to bear in mind that the plaintiffs, Mrs. Bolton and her husband, have a direct' and pecuniary interest in the outcome of the case,” to which the judge answered “ That we affirm-. Of course, gentlemen of the- jury, the credibility of the witnesses is for you; you are to determine their credibility from the manner of their testifjdng, from the inherent probability of their statements, and from any matter that may suggest itself to you as throwing light upon the credibility of the witnesses not only,of the plaintiff and her husband, but of all the witnesses, those on the part of the plaintiff and those on the part of the defendant.”

And a further point, that “ the, unanimous testimony, of the four medical witnesses, Drs. Stevens and Hamilton, Drs. Ellenberger and Coover — the last two called by the court — being that there is no evidence of a present injury to Mrs. Bolton, or of a permanent injury, except that furnished by her own statements and to some extent by Dr. Best, such. testimony should not be lightly disregarded by the jury,” was answered: “ To that we say, gentlemen of the jury, you will consider, as we have already said, the testimony of these phj'sicians who examined the plaintiff, you will consider the circumstances under which the examination took place, the character of -the examination and the conclusions reached by the physicians, and we say to you that the weight which ought to 'be attached to the opinions they have given is entirely for you. Tou are to consider how far they may be relied upon and what weight shall be given to them in the determination of the case. We have no right to say to yon that you are to consider the testimony of one witness as more weighty than the testimony of anothor. The credibility of the witnesses, the weight of the evidence, is entirely for you. ”

In a case of this character, resting so largely on the plaintiff’s own testimony and where the defense charges simulation or at least gross exaggeration of injuries, it would be quite proper for the judge to refer specifically to the subject of interest in the witness, and to dwell somewhat on the weight of the other evidence. But he was not bound to do so.' The ease was necessarily for the jury, and having given them correctly the general rules on the subject it was not error to go no further. If the jury rendered an unsatisfactory verdict the remedy was a new trial.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Kemper, Appellant, v. Fort.

      Libel — Libelous matter in pleadings — Privileged communication.

    When alleged libelous matter in pleadings is relevant and pertinent there is no liability for uttering it. Where the question of the relevancy and pertinency of matters alleged in pleadings is to be inquired into, all doubt should be resolved in favor of relevancy and pertinency.
    Where a testator devises and bequeaths a portion of his estate to his executors, to pay over the income to a daughter for life, and after her death to divide the principal among her children, and á guardian of one of the two children of the daughter files a petition for a review of the accounts of the executors, and the other son of the daughter notifies the executors that he was her only legitimate child, and that the petitioner’s ward was illegitimate, and the executors set up this matter in their answer to the petition, the daughter cannot maintain an action against them for an alleged libel.
    Argued Jan. 15, 1907.
    Appeal, No. 348, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1903, No. 3,736, on verdict for defendant in case of Mary Kemper v. Thomas R. Fort, Jr.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass for libel.
    Before Audenried, J.
    At the trial it appeared that one Austin W. Bennett, as guardian for Jesse C. Claggett, filed a petition in the orphans’ court as of January Term, 1896, No. 473, to review the accounts of William S. Price and Thomas R. Fort, Jr., executors and trustees under the will of Thomas W. Price, deceased. It was claimed by Jesse O. Claggett that as a child of Mary S. Claggett, daughter of the testator, and a remainder-man under his grandfather’s will, he had a standing to maintain the petition.
    The executors filed an answer in which they used the following language:
    “ And they further aver that the said Jesse O. Claggett denies that the said Jesse O. Claggett, minor, is his child, and aver that the mother of said minor, Mary S. Claggett, has confessed both by word of mouth and by writing that her son, the said minor, on behalf of whom this petition is presented, is not the son of the said Jesse O. Claggett; basing upon these and other facts known to the respondents the respondents aver that the minor represented by Austin W. Bennett as guardian is not the legitimate issue of Mary S. Claggett, but is an illegitimate child, and hence is in no wise entitled to take under the bequest in the will of Thomas W. Price, deceased, to the issue of Mary S. Claggett, and is not entitled to maintain the citation in this case.”
    The court gave binding instructions for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Joseph Gilfillan, with him W. E. Chapman and George S. Graham, for appellant.
    A party or witness is not absolutely privileged for any and everything that he may say in the course of a judicial proceeding, whether pertinent or otherwise: Com. v. Culver, 1 Clark, 361; Gray v. Pentland, 2 S. & R. 23; Chapman v. Calder, 14 Pa. 365.
    A witness or party is not protected from a charge of libel if the' libelous matter is not pertinent to the issue: Scottish Rite, etc., Aid Assn. v. Union Trust Co., 195 Pa. 45.

      Henry Budd, with, him R. D. Maxwell, for appellee.
    — The language on the answer was privileged: Revis v. Smith, 18 C. B. 126; Henderson v. Broomhead, 4 H. & N. 569; Lake v. King, 1 Saund. 120; Bartlett v. Christhilf, 69 Md. 219 (14 Atl. Repr. 518); Runge v. Franklin, 72 Texas, 585 (10 S. W. Repr. 721); Abbott v. Nat. Bank of Commerce, 20 Wash. 552 (56 Pac. Repr. 376); Hartsock v. Reddick, 6 Blackf. (Ind.) 255; Griffith v. Slinkard, 146 Ind. 117 (44 N. E. Repr. 1001); Hoar v. Wood, 44 Mass. 193; Warner v. Paine, 4 N. Y. Super. Ct. 195; Moore v. Bank, 123 N. Y. 420 (25 N. E. Repr. 1048); Wilson v. Sullivan, 81 Ga. 238 (7 S. E. Repr. 274); Hardin v. Cumstock, 2 A. K. Marsh. 480; Gains v. Ætna Ins. Co., 47 S. W. Repr. 884; Lea v. White, 36 Tenn. 110; Strauss v. Meyer, 48 Ill. 385; Ash v. Zwietusch, 159 Ill. 455 (42 N. E. Repr. 854); Jones v. Brownlee, 161 Mo. 258 (61 S. W. Repr. 795); Hart v. Baxter, 47 Mich. 198 (10 N. W. Repr. 198); Johnson v. Brown, 13 West. Va. 71.
    October 21, 1907:
   Opinion by

Mr. Justice Brown,

The libelous matter of which the appellant complains appears in two answers in the orphans’ court of Philadelphia county to petitions filed by Austin W. Bennett, guardian of Jesse C. Claggett, for a review of the accounts of Thomas R. Fort, Jr., the appellee, and William S. Price, executors and trustees under the will of Thomas W. Price, deceased, and for an order to set aside the sale of certain real estate made by them. Thomas W. Price, the father of the appellant, died in 1895. At that time she was the wife of Jesse C. Claggett, and by her father’s will the sum of $50,000 was given to his executors in trust, the income to be paid to her during life, and at her death to be devoted to the maintenance of her issue ” for a certain time, after which there was to be an equal division of the principal “ to and among the children ” of the said Mary S. Claggett. In 1900 she was divorced from her husband, Jesse C. Claggett, and was subquently married to L. S. Kemper. In the answers filed in the orphans’ court by the two executors and trustees there was an averment that Jesse C. Claggett was the illegitimate child of the said Mary S. Claggett, as she has “ confessed both by word of mouth and by writing,” and, in view of this confession and other facts known to the respondents, they denied the right of the said Jesse C. Olaggett to take under the bequest in the will of the said Thomas W. Price, deceased, and of his guardian to ask for the citations.

On the trial it appeared that the allegation of the illegitimacy of Jesse C. Claggett, Jr., -was false. It was shown, however, that Jesse O. Claggett, the former husband of appellant, had told the appellee that the child was not his, .but another’s, and that his wife had so admitted to him. This information was conveyed by Claggett to the appellee as a result of an investigation instituted by him upon being informed by Thomas Claggett, the brother of Jesse O. Claggett, that the latter was illegitimate, and, therefore, not interested in the estate of Thomas W. Price. Thomas Olaggett notified Fort that he was the sole party in remainder after his mother’s death, and gave further notice to him as executor and trustee to see to it that Jesse O. Claggett was not permitted to share in the trust estate. It was as the result of this notice that Fort set inquiries on foot in relation to the legitimacy of Jesse O. Claggett, Jr., and, in the course of his investigation, the statement of the boy’s illegitimacy was made to him by the appellant’s former husband. The information acquired by Fort was communicated to his counsel and his co-trustee, who was also a member of the bar, and by the advice of their counsel, and with the consent of William S. Price, the alleged libelous statement was set forth in the answers. On this state of facts the court directed the jury to find in favor of the defendant, holding that whether the allegation of illegitimacy was true or false, it was, under the undisputed facts, privileged, and for making it in the answers the defendant was not responsible to the plaintiff.

In England, as far back as the time of Coke, anything said, or written in legal proceedings was absolutely privileged. In Cutler and Dixon, Coke’s Reports, Part IV, p. 14, it was adjudged, “that if one exhibits articles to justices of peace against a certain person, containing divers great abuses and misdemeanors, not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good-behavior; in this case the party accused shall not have for' any matter .contained in such articles any action upon the case, for they have pursued the ordinary course of Justice in such case; and if actions should be permitted in such cases, those who have just cause of complaint, would not dare to complain for fear of infinite vexation.” And on the same page, in Buckley and Wood, “It was resolved per totam curiam, that for any matter contained in the bill that was examinable in the said court, no action lies, although the matter is merely false, because it was in course of justice.” In The King v. Skinner, Lofft, 55, on a motion to quash the indictment against the defendant, who, as one of his majesty’s justices of the peace, was charged with having said to a grand jury before him in the general sessions of the county, “Yon are a seditions, scandalous, corrupt and perjured jury,” Lord Mansfield remarked: “ Neither party, witness, counsel, jury or judge, can be put to answer, civilly or criminally, for words spoken in office. Tf the words spoken are opprobrious or irrelevant to a case, the court will take notice of them as a contempt, and examine on information. If anything of mala mens is found on such enquiry it will he punished suitably.” In comparatively recent times, in Revis v. Smith, 86 E. C. L. 127, it was held that no action will lie against a man for a statement made by him, whether by affidavit or viva voce, in the course of a judicial proceeding, even though it be alleged to have been made “ falsely and maliciously, and without any reasonable or probable cause.” That case was followed by Henderson v. Broomhead, 4 H. & N. 569, and it was there said by Crompton, J.: “ ho action will lie for words spoken or written in the course of any judicial proceeding. In spite of all that can be said against it, we find the rule acted upon from the earliest times. The mischief would be immense if the person aggrieved, instead of preferring an indictment for perjury, could turn his complaint into a civil action. By universal assent it appears that in this country no such action lies. Cresswell, J., pointed out, in Revis v. Smith, 18 C. B. 126 (E. C. L. R. vol. 86), that the inconvenience is much less than it would be if the rule were otherwise. The origin of the rule was the great mischief that would result if witnesses in courts of justice were not at liberty to speak freely, subject only to the animadversion of the court. The attempts to obtain redress for defamation having failed, an effort was made in Revis v. Smith to sustain an action analogous to an action for malicious prosecution. That seems to have been done in despair. The rule is inflexible that no action will lie for words spoken or written in the course of giving evidence.” Another case that may be cited is Seaman v. Netherclift, L. R. 1 C. P. Div. 540, where it was said by Lord Coleridge, C. J.: “ Now, a long course of authorities, of which perhaps the best known, as the most remarkable, is the case of Astley v. Younge (2 Burr. 807), has decided that no action of slander can be brought for any statement made by the parties either in the pleadings or during the conduct of the case. The law is so stated very clearly by Lord Eldon in Johnson v. Evans (3 Esp. 32); it is so stated also, not indeed with absolute certainty, in a note to the well-known case of Hodgson v. Scarlett (1B. &r Ald. 232), the author of which note, we learn from Baron Alderson in Gibbs v. Pike (9 M. & W. 351) to have been Mr. Justice Holboyd himself. But I conceive the law on this point to be now quite certain, although most men of any experience in the profession must have seen many instances in which judicial proceedings have been made by parties to them to serve the ends of private malignity. It is equally certain, however, nor has any question ever been raised, that the privilege of parties is confined to what they do or say in the conduct of the case.”

Upon a review of the English authorities the rule, as deduced from them in Starkie on Slander and Libel, sec. 213, is that, “ On grounds of public policy, no action, either for slander or libel, can be maintained against a judge, magistrate, or person presiding in a judicial capacity, of any court or other tribunal, judicial or military, recognized by and constituted according to law; nor against suitors, prosecutors, witnesses, counsel or jurors, for anything said or done, relative to the matter in hand, in the ordinary course of a judicial proceeding, investigation or inquiry, whether civil or criminal, by or before any such tribunal, even if it be false and malicious, and without reasonable and probable cause: and the same with regard to statements contained in affidavits, pleadings and other proceedings in the usual and regular course of procedure.” In sec. 196, it is said by the same learned author : “ As to defamatory statements and other publications made in the course of proceedings in courts of justice; by the general policy of the law, the occasion is such that it not only repels the presumption of malice, but, as it appears, excludes all evidence of malice; and allows the occasion and circumstances to supply an absolute and peremptory bar to an action of slander or libel in respect of any such statements or publications. And the reason is founded on the principle that ‘ the law will rather suffer a private mischief than a public inconvenience ’: and that persons engaged in the administration of the law, or who bring offenders to justice, or who do or seek justice in respect of wrongs or injuries suffered, or give evidence as to any such, or make defense thereto, may be unfettered in the discharge of duties of such paramount public importance; and may not be deterred from so doing by the fear of actions of defamation. And accordingly the law, without regard to the question of intention, and on grounds of obvious policy, repels the claim to damages in respect of any publication, whether oral or written, made in the ordinary course of a judicial proceeding, whether civil or criminal; and this rule applies to j udges, juries, witnesses, suitors, and prosecutors, in respect of anything stated by them in the course of a judicial proceeding.” In some of the English cases, under a qualification of this rule, protection is given from a slander or libel suit to counsel or a party to a cause for what may be said or written in it (outside of the pleadings) only when the same be pertinent to it.

Some of the courts in this country — among them those of Indiana, Maryland, Texas and Washington — have followed the English rule, that for any defamatory matter appearing in pleadings no action can be maintained, the immunity being absolute. In Bartlett v. Christhilf, 69 Md. 219, it is said : “ This privilege, protecting against a suit for libel or slander, is founded upon what would seem to be a sound public policy which looks to the free and unfettered administration of justice though as an incidental result it may, in some instances, afford an immunity to the evil disposed and malignant slanderer. . . . It is better, therefore, where the statements are false and knowingly false, to leave the party injured to the redress which the criminal court may apply, than to open the door for the institution of civil suits which may be successfully used as an efficient means to obstruct the full and fearless pursuit and administration of justice; ” and, in Runge v. Franklin, 72 Tex. 585 : “We believe it is and ought to be the law that proceedings in civil courts are absolutely privileged. Citizens ought to have the unqualified right to appeal to the civil courts for redress without the fear of being called to answer in damages for libel.” After reviewing the authorities in support of this view, Townshend, in his work on Libel and Slander, sec. 221, subscribes to it as follows: “ The right of appealing to the civil tribunals is more extensive than the right of appealing to the criminal tribunals. In a civil action, whatever the complainant may allege in his pleading as or in connection with his grounds of complaint can never give a right of' action for libel. The immunity thus enjoyed by a party complaining extends also to a party defending ; whatever one may allege in his pleadings by way of defense to the charge brought against him or by way of countercharge, counterclaim, or set-off, can never give a right of action for libel. The rule as thus laid down has been doubted by some, and it has been said that if the tribunal to which the complaint be made has no jurisdiction of the subject-matter, or if the defamatory matter be irrelevant to the matter in hand, or if the party complaining or defending maliciously inserts defamatory matter in his pleading, in such cases the party aggrieved may maintain his action for slander or libel. Notwithstanding the dicta to the contrary, we believe the better and the prevailing opinion to be, that for any defamatory matter contained in a pleading in á court of civil jurisdiction, no action for libel can be maintained; the power possessed by courts to strike out scandalous matter from the proceedings before them, and to punish as for a contempt, is considered a sufficient guaranty against the abuse of this privilege; but whatever may be the reason, it seems certain that where there is a perversion of the right, the policy of the law steps in and controls the individual right of redress.’ ”

Other courts in the United States have not followed the foregoing view. In McLaughlin v. Cowley, 127 Mass. 316, it was held that defamatory statements not pertinent or material to the issue are not privileged; and, in Garr v. Selden, 4 Comstock, 91, the New York court of appeals decided that whether the matter alleged in the pleadings was privileged depended upon whether it was pertinent or material. A most exhaustive opinion is found in Johnson v. Brown et al., 13 W. Va. 71, and, after a review of all the authorities, it was held that “ the public policy, on which is based this absolute exemption from suit for libelous matters contained in the proceedings, or spoken in a regular course of judicial proceedings, is not violated by the qualification, that matter complained of must be pertinent, even though it be contained in the pleadings in the cause; and that the rule, that it must be pertinent, which is applied to the words of counsel, or to other proceedings in a case, to make them absolutely privileged, should also on reason and authority be applied to the pleadings of parties. ” In Wilson v. Sullivan, 81 Ga. 238, the alleged libelous matter was contained in a sworn bill asking for an injunction. In an action for damages the court thus generalizes the law: “ All charges, all allegations and averments contained in regular pleadings addressed to and filed in a court of competent jurisdiction, which are pertinent and material to the redress or relief sought, whether legally sufficient to obtain it or not, are absolutely privileged. However false and malicious, they are not libelous. This privilege rests on public policy, which allows all suitors (however bold and wicked, however virtuous and timid) to secure access to the tribunals of justice with whatever complaint, true or false, real or fictitious, they choose to present, provided only that it be such as the court whose jurisdiction is involved has power to entertain and adjudicate. The alleged libelous matter in the present case, being contained in a bill praying for an injunction, was relevant and material; consequently, absolutely privileged.”

We are inclined to the view that, for false and malicious defamatory allegations appearing in pleadings filed in a court having jurisdiction of what is set forth, in them, there is absolute immunity from a suit for libel at the instance of the defamed party only when the defamatory words are relevant and pertinent to the matter or matters to be inquired into by the court; but whether this rule or that of absolute immunity is the correct one, we are not called upon to decide in this case, for the authorities, though differing as to when immunity is absolute, are uniform that when alleged libelous matter in pleadings is relevant and pertinent, there is no liability for uttering it. Public policy requires this, even if at times the privilege of immunity for false and malicious averments in pleadings is abused. Justice can be administered only when parties are permitted to plead freely in the courts and to aver whatever ought to be known without fear of consequences, if a material and pertinent averment should not be sustained. Wrong may at times be done to a defamed party, but it is damnum absque injuria. The inconvenience of the individual must yield to a rule for the good of the general public.

Where the question of the relevancy and pertinency of matters alleged in pleadings is to be inquired into, all doubt should be resolved in favor of relevancy and pertinency. In the present case the averment of illegitimacy was clearly pertinent. The testator, Thomas W. Price, directed that upon the death of his daughter the income for awhile, and ultimately the principal, should go to her “issue,” to her “children.” That under the common law these words mean legitimate issue and children, 'cannot be questioned, and the testator is presumed to have so used them: Ellis v. Houstown, L. R. 10 Ch. D. 239; McNaughtan’s Trust, 35 Law Times Repr. 114. The avei-ments of illegitimacy would not be pertinent if the question was as to the right of Jesse C. Claggett to take or inherit from his mother, for under the act of 1855 illegitimates take from their mothers; but appellant’s children will take nothing from her under the will of her father. They take under it directly from him and, when he designated the issue or children of his daughter as his legatees, he must be understood as having meant legitimate issue or children. When notified by Thomas Claggett that the right of Jesse C. Claggett to participate in the estate of the father of the appellant was questioned, the appellee properly questioned it in the answers filed. The assignments of error are all overruled and the judgment is affirmed.


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    Hartenstine, Appellant, v. United Telephone & Telegraph Company.

      Negligence — Electric law — Telephone and telegraph companies — Master and servant — Fellow servant.

    In an action against a telephone and telegraph company to recover damages for death of plaintiff’s husband, a judgment for defendant will be sustained where the evidence shows that the deceased at the ’ time of his death was employed by the defendant in stringing wires, that his death was caused by a wire which he was stringing coming in contact with a heavily charged wire of an electric light company, and that the accident was caused either by the negligence of follow workmen in manipulating the wire with a rope supplied by the defendant which was apparently long enough for the purpose, or by the failure of the foreman of the gang to take from the defendant’s supply store, where a sufficient supply of rope was kept, an amount thereof sufficient for the work in hand.
    Prescott v. Ball Engine Co., 176 Pa. 459, followed.

      Negligence — Electric law — Telephone and telegraph companies — Rubber gloves — Failure to provide.

    The failure of a telephone and telegraph company to supply rubber gloves to an employee cannot be set up as negligence upon its part where it appears that the proximate cause of the employee’s death was the negligence of a fellow servant.
    Argued Feb. 5, 1907.
    Appeal, No. 5, Jan. T., 1907, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1905, No. 119, for defendant non obstante veredicto in case of Delila Hartenstine v. United Telephone and Telegraph Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    Before Swartz, P. J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      William P. Young, with him H. Wilson Stahlnecker, for appellant.
    The case was for the jury: Turton v. Powelton Electric Co., 185 Pa. 406; Butterman v. McClintic-Marshall Construction Co., 206 Pa. 82; Lewis v. Seifert, 116 Pa. 628; Penna., etc., Canal & R. R. Co. v. Mason, 109 Pa. 296; Schiglizzo v. Dunn, 211 Pa. 253; Bannon v. Lutz, 158 Pa. 166; Esher v. R. R. & Mining Co., 28 Pa. Superior Ct. 387; Stapleton v. Traction Co., 5 Pa. Superior Ct. 253.

      Irvin P. Knipe, with him Irving P. Wanger, for appellee.
    The employer, who provides at his storehouse a sufficiency of sound rope, is not liable for the consequences of an employee’s failure to take enough rope for the work in hand, or for an employee’s selection, of unsound rope: Prescott v. Ball Engine Co., 176 Pa. 459; Kinney v. Corbin, 132 Pa. 341; Hughes v. Leonard, 199 Pa. 123.
    October 21, 1907:
   Opinion by

Mr. Justice Brown,

At the time the husband of appellant was killed by an electric shock he was helping to string wires for the appellee. He was employed as a reelman. A wire from his reel and that from one alongside of it were fastened to a running board to which a rope was attached. This running board kept the wires apart and prevented their twisting as they were carried over the arms of the poles. When a pole was reached the lineman carried the rope up to a cross-arm and threw it down on the other side. A man on the ground would then carry the rope forward, pulling the wires to the cross-arm, and when the running board reached a cross-arm a man on the pole would fasten it on the pegs, so as to keep the wires back of him tight. Slack wires in the rear might have sagged and come in contact with heavily charged electric wires beneath them. The wires of the appellee were being strung six or eight feet above heavily charged wires belonging to another company — The Pottstown Light, Heat and Power Company. These lower wires were on some of appellee’s poles. Before the deceased and his fellow workmen began to string the wires they were all instructed to keep them taut, to prevent their touching the highly charged wires beneath them. The principal witness for the plaintiff so testifies. According to the finding of the jury, the wires of the appellee, which were being reeled off, were allowed to sag at a certain point and touch the dangerous wires, carrying a deadly current to the deceased, whose hand was on the wire at the reel. The verdict was for the plaintiff, but judgment was enterod for the defendant, non obstante veredicto, and from it there is this appeal. One of the reasons, and the first, given by the court below for its judgment is the absence of any proof of defendant’s negligence. From an examination of the evidence the conclusion is unavoidable that the proximate cause of the death was the negligence of fellow workmen of the deceased.

"When pole “97” was reached the running board was not kept at its cross-arm and from that point pulled over the pole “ 141 ” of The Pottstown Electric light Company, -which had to be crossed or passed to reach pole “ 96 ” of the appellee. After the running board had passed over the cross-arm of pole “ 97 ” it was pulled down to the ground and fastened to a fence at some point between that pole and pole “ 141 ” of the other company. The rope was then taken up pole “ 141,” thrown down and taken up pole “ 96,” and thence thrown down. Dellar, one of the linemen, stood at the running board by the fence, loosened it and called to Kulp, another employee, who had the rope to run. As the latter ran and pulled the rope the running board flew up into the air and the wire in the rear slacked, causing a contact, according to plaintiff’s theory, with the electric light wires, and carrying to the reel the current which killed appellant’s husband. All of the experts and experienced workmen on both sides testified that the running board should not have been carried to the ground and fastened to the fence, but been pulled directly from pole to pole, and that the method which was used by the fellow workmen of the deceased in stringing the wires from pole “ 97 ” to pole “ 96 ” was improper and very dangerous.

On the trial the appellant rested her case on the insufficiency of the rope supplied by the appellee, her contention being that its shortness compelled the workmen to adopt the method of stringing the wires from pole “ 97 ” to “ 96.” The length of the rope, as proved by plaintiff, was 150 feet, and the distance from pole “97” to “ 96” having been 137 feet, the rope was not of sufficient length to extend from a cross-arm on the first-named pole over to one on the other, and thence down to the ground; but the learned trial judge, in his opinion directing judgment for the defendant, clearly demonstrated that it was not necessary to string the wires between these two poles in the dangerous method adopted, even if the rope was but 150 feet in length. As to this he properly says : “ The plaintiff proves that the rope was 150 feet long. The running board was on pole ‘ 97.’ To take the wire to pole ‘ 96 ’ it was necessary to climb up the electric light pole 141.’ This was in fact the way the work ivas done. This pole was only 103 feet from 97.’ If Kulp had taken the rope to ‘ 141 ’ he could have taken it over c 141 ’ and dropped it to the ground while the running board remained fast at pole c 97.’ The rope was at least seven feet longer than was necessary to do the work in that way, for the electric light pole was less than forty feet high to the arm that had to be crossed. The wires of the defendant were forty feet above the ground, the electric wires eight or ten feet lower, so that a rope 103 plus 30, or 133 feet long, was all that was necessary to do the work in a proper way. That it could have been done in this way is admitted by the plaintiff’s witness Kulp. But it matters not what the witness may say, there can be no other conclusion. It is demonstrated to an absolute verity.”

Even if the rope used by the workmen was too short to enable them to string the wires in a safe and proper manner, the appellee was not responsible for its shortness, for in the storehouse at Phoenix ville from which Massey, the foreman, took it, there was more than 300 feet of rope. If the piece which he took from the sufficient supply furnished by the company was too short, it was his fault that the workmen did not have a piece of sufficient length; and under all of our cases he was but a fellow workman of the deceased. The company had furnished all the rope that was needed to so string the wires as to prevent their sagging, and the workmen had access to it. If one of them took too little, when he could have taken enough, the company is not to be blamed for not having supplied enough. In Prescott v. Ball Engine Co., 176 Pa. 459, we said: “ If good ropes were in stock, and a poor one was used because of haste, or carelessness, or mistaken judgment, it was not the fault of the rigger as vice principal, but of the workmen themselves; and the injury suffered because of the use of the unsuitable rope could not give the injured person a cause of action against Ms employer.” So, here, if sufficient rope was in the storehouse, and an insufficient piece was taken out and attached to the running board by one of the workmen, the use of the insufficient piece gives no cause of action against the employer. This is all there is in the case, notwithstanding appellant’s numerous contentions before us. One of them may be noticed. It is that the appellee ought to have furnished rubber gloves to the deceased, which would have acted as insulators to protect him from the current on the wire at his reel. The proximate cause of his death was not the omission to furnish these gloves. Even if the jury, under the evidence, could have found that they would have been insulators, the direct cause of death was the negligence of fellow employees. If the wires had been strung in a safe and proper manner, as they could have been strung with the rope supplied by the appellee, there would have been no need to insulate the hands of the reelman, for no current could have got on the wire he was unreeling. The appellee having supplied sufficient rope to enable the workmen to safely string the wires, had a right to assume that they would do so. Eo duty rested upon it to anticipate that some of its employees might be negligent and to provide appliances for the protection of another employee from their possible negligence. Eo such burden was upon it as an employer.

The assignments of error are all overruled, and the judgment is affirmed.


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    Person & Riegel Company v. Lipps, Appellant.

      Contract — Offer and acceptance — Corporations—Subscription to stock.

    Where the owner of a store building offers to lease the same to a trading corporation, and as an inducement to the company to take the lease, offers to provide a large sum of money in cash for an issue of the preferred stock of the company, and such offer is accepted by the corporation, the transaction establishes a valid contract between the parties based upon sufficient consideration, and not lacking mutuality.
    In such a case an acceptance of the offer will be implied, apart from any formal acceptance by the board of directors, where it appears that the offer was made to the director and general manager of the company by whom it was communicated to several directors, that subsequently in pursuance of the offer the board summoned a stockholders’ meeting to increase the capital stock to furnish the preferred stock contemplated by the offer, that such increase was subsequently authorized by the stockholders, and that the person making the offer was elected a director, appointed on a committee to carry out the arrangement contemplated, and made statements in writing which indicated that he understood that the corporation had accepted his offer.

      Corporations — New Jersey corporations — Capital stock — “Capital paid in cash or property.”

    The provision in the New Jersey corporation act prior to the amendment of 1901, that “at no time shall the total amount of preferred stock exceed two-thirds of the actual capital paid in cash or property,” is to be construed as meaning that the preferred stock shall not exceed two-thirds of the actual property of the company. The words “actual capital” in the act do not mean capital stock.
    There is a distinction between the capital of a corporation and its capital stock, though they are often used as interchangeable terms. The capital stock is clearly not the same as property possessed by the corporation; for the capital stock remains fixed although the actual property of the corporation varies in value, and is constantly increasing or diminishing in amount. What the amount of the capital shall be is within the discretion of the managers, but the amount of the capital stock is limited and determined by the charter and the law governing it.

      Contracts — Breach of contract — Agreement to purchase stock of a corporation — Measure of damages.

    Where a person agrees to purchase the preferred stock of a corporation for a large sum in cash, but fails to carry out his contract, the measure of damages for the breach is the difference between the amount of the cash mentioned and the amount actually paid by the purchaser or procured to be paid through his efforts for the preferred stock.

      Practice, C. P. — Charge—Points.
    Where a trial judge properly answers points submitted to him, he is not obliged to repeat the same instructions in the general charge.

      Practice, C. P. — Sending out statement of claim with jury.

    It is not reversible error for the court to permit the statement of claim to go out with the jury, where the statement is a mere calculation of the amount claimed by plaintiff, and the court properly cautions the jury as to the use they are to make of it.

      Evidence — Foreign document — Foreign corporation — Certificate of increase of stock.

    It is no ground for refusing to admit in evidence the certificate of the increase of the stock of a New Jersey corporation, that the certificate of the secretary of state does not have upon it the great seal of the state of New Jersey, and is not in the form required by the act of congress.
    Argued March 11, 1907.
    Appeal No. 160, Jan. T., 1906, by defendant, from judgment of C. P. Northampton Co., Dec. T., 1902, No. 27, on verdict for plaintiff in case of Person & Riegel Co. v. E. J. Lipps.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for breach of contract to purchase stock of a corporation.
    Schuyler, P. J., charged in part as follows:
    [The first question is, did the defendant enter into the contract upon which is based this action? Now, as to what that contract is alleged to be I find it stated so clearly in the statement of claim in this case in paragraphs 2 and 3 that I will adopt the language used in those paragraphs rather than substitute for that any language of my own. The allegation in these paragraphs is that the defendant in the year 1900, and for a number of years, etc., proposed to plaintiff that plaintiff lease a certain property from its owners in which defendant was interested, and increase its capital stock from $50,000 to $125,000, of which increase $75,000 should be common stock and $50,000 preferred stock; that the defendant would purchase from plaintiff $10,000 of the common stock and provide $50,000 cash for the $50,000 worth of preferred stock, with an option to defendant to purchase $5,000 additional common stock, and suggested that the proposition so made by the defendant be submitted to the officers of the plaintiff company which was done and accepted by the company. In pursuance of said agreement the capital stock of said plaintiff company was increased to $125,000 as agreed upon. Plaintiff executed as lessee a five years’ lease for said property in Milwaukee, and in all respects complied with the agreement above mentioned. That is the alleged contract upon which this action is based, and the first question for your determination is,.did the defendant enter into this contract? You have heard' the testimony bearing upon that branch of the case. It is voluminous, but it is for your determination. You are simply to determine the effect of that testimony. It has been discussed in your presence ably and fully by counsel upon both sides, and I will not attempt to improve upon what has been said by counsel with reference to the testimony bearing upon the first branch of this case.
    How, taking that testimony, you will say whether or not the defendant entered into the contract upon which the present action is based. The burden is upon the plaintiff to satisfy you by the weight of the evidence that the defendant did enter into the contract. If you find that the plaintiff has failed to satisfy you by the weight of the evidence that the contract was entered into by the defendant, then you need inquire no further, because if the defendant did not enter into the contract the plaintiff cannot recover. If, however, you find after giving this branch of the case the careful consideration which I know you will give to it that the plaintiff did enter into the contract, then the second question is, has there been a breach on the part of the defendant of the contract ?] [17]
    [How, here again the burden is upon the plaintiff to satisfy you by the weight of the evidence that there has been such a breach, but before you can pass upon that question intelligently it will be necessary for you to know from the court what the legal effect of the language used at the time it is alleged that this contract was entered into is. You will remember that the plaintiff claims that the contract was that the defendant agreed to provide $50,000 worth of cash for $50,000 of the preferred stock. I say to you as the law of this case that the contract between the parties, if such a contract was entered into at all, was a contract to provide $50,000 worth of cash, and nothing more. What is said with reference to the $50,000 of preferred stock is said for the purpose of providing a consideration for the alleged contract. But the simple question for the jury to say is, whether the defendant did provide this $50,000 worth of cash. The allegation of the plaintiff is that he did not. The allegation of the defendant is that he did provide it.] [18]
    How, I take it that under this contract it was not necessary for the defendant to provide this money out of his own cash account — out of his own pocket. It would be a compliance with this contract if the defendant by his own instrumentality was the cause of this cash being provided by others. In other words, if in addition to the cash, which it is admitted he furnished out of his own pocket, he was instrumental in raising the difference between the amount which he paid out of his own pocket and the $50,000, that would be a compliance with the terms of the contract. How, that is an important part of this case. You will give it your careful and serious attention. Did the defendant out of his own pocket, and was he instrumental in providing the full amount of the $50,000 ? If he was, then there can be no verdict against him. Then again your verdict would be a verdict in favor of the defendant. [If, however, you find that the defendant did enter into this contract and that he did not furnish the full amount of the $50,000 called for by the contract, then the next question to be considered is as to what is the proper measure of damages for the violation of the contract. Upon that point I say to you that his contract, as I have already said, was a contract to furnish cash. It was that pure and simple — furnish cash to the amount of $50,000. It was his duty to furnish that amount of cash, if you find that he entered into this contract. Then the amount of your verdict would be, if you find a verdict for the plaintiff, the difference between the $50,000 and the amount of cash which he provided out of his own pocket and the amount of cash that he was instrumental in providing for the use of the company, and that difference would be the amount of your verdict.
    Of course, as you understand, if he provided the full amount of cash and the full amount of the $50,000, either directly out of his own pocket or indirectly through his instrumentality, the verdict of the jury would be a verdict in favor of the defendant. If, however, the amount of money provided by the defendant was less than the $50,000, then your verdict would be for the difference between the amount of cash actually provided, either directly or indirectly, by the defendant, and the amount of the $50,000, together with the interest upon that balance.] [19]
    Verdict and judgment for plaintiff for $12,950. Defendant appealed.

      Errors assigned among others were (1-15) answers to various points; (16) that the charge as a whole was inadequate and misleading; (17-19) portions of charge as above, quoting them; (20) in permitting statement of claim to go with the jury; (21) in admitting in evidence the certificate of the increase of stock.

      W. S. Kirkpatrick, of Kirkpatrick & Maxwell, with him B. F. McAtee, for appellant.
    The agreement set forth in the plaintiff’s amended statement' and as substantially testified to by plaintiff’s witnesses, is ambiguous, indefinite and uncertain and, therefore, not a binding contract: U. S. v. Burlington, 24 Fed. Cases, 1302; Ware v. Gay, 28 Mass. 106; Jones v. Vance Shoe Co., 115 Fed. Repr. 707; Mays v. Patterson, 20 Pa. Superior Ct. 92; Wall’s App., 111 Pa. 460; Sherman v. Kitsmiller, 17 S. & R. 45.
    There was no acceptance on the part of the corporation plaintiff of the alleged offer of the defendant: Joseph v. Richardson, 2 Pa. Superior Ct. 208; Clements v. Bolster, 6 Pa. Superior Ct. 411.
    The acceptance of an offer to constitute a contract must be unqualified and identical with the terms of the offer: Swing v. Walker, 27 Pa. Superior Ct. 366; Slaymaker v. Irwin, 4 Wharton, 369; Allen v. Kirwan, 159 Pa. 612; Vincent v. Woodland Oil Co., 165 Pa. 402; Mayo v. Koller, 28 Pa. Superior Ct. 91; Huber Mfg. Co. v. Smithgall, 19 Pa. Superior Ct. 641; Minn., etc., Ry. Co. v. Columbus Rolling Mill Co., 119 U. S. 149 (7 Sup. Ct. Repr. 168).
    To establish a contract by an acceptance of the proposition it must appear that the party making the proposition is notified of the acceptance: Emerson v. Graff, 29 Pa. 358; Borland v. Guffey, 1 Grant, 394; Shupe v. Galbraith, 32 Pa. 10; Warren Boro. v. Daum, 73 Pa. 433.
    There was no mutuality of obligation in the alleged contract: Transportation Co. v. Bolt & Nut Co., 114 Fed. Repr. 77; Cotton Oil Co. v. Kirk, 68 Fed. Repr. 791; R. R. Co. v. Dane, 43 N. Y. 240; Davie v. Lumberman’s Mining Co., 53 N. W. Repr. 625; Crane v. Crane & Co., 105 Fed. Repr. 869.
    There was no performance nor ability to perform the conditions of the alleged contract on the part of the plaintiff: Com. v. Lehigh Avenue Ry. Co., 129 Pa. 405; Christensen v. Eno, 106 N. Y. 97 (12 N. E. Repr. 648); State v. Morristown Fire Assn., 23 N. J. L. 195; Bailey v. Clark, 88 U. S. 284.
    The court erred as to the measure of damages: Richards v. Willard, 176 Pa, 181; Stuart v. Line, 11 Pa. Superior Ct. 345; Tietz v. Phila. Traction Co., 169 Pa. 516.

      W. E. Doster and H. J. Steele, for appellee.
    When a person agrees to take or to purchase shares, the intention is ordinarily held to be to buy the certificates representing the shares. Whether or not it is such a contract, of course, depends upon the intention of the parties. If the payment of the price and delivery of the stock are intended to be concurrent acts, the contract will clearly be that of a purchase and sale: N. Y., etc., R. R. Co. v. Hunt, 39 Conn. 75; Rhey v. Ebensburg, etc., Plank Road Co., 27 Pa. 261; Bratten v. Catawissa R. R. Co., 211 Pa. 21.
    A contract need not state the time of the performance, as it will be held that the parties meant a reasonable time: Atwood v. Cobb, 33 Mass. 227; Yan Woert v. R. R. Co., 67 N. Y. 538; Page on Contracts, 44; Worthington v. Beeman, 91 Fed. Repr. 232; Thompson v. Stevens, 71 Pa. 161; Northern Cent. R. R. Co. v. Walworth, 193 Pa. 207; Lulay v. Barnes, 172 Pa. 331.
    There was an implied acceptance of the offer: McMasters v. Reed, 1 Grant, 36; Fitzgerald & Mallory Const. Co. v. Fitzgerald, 137 U. S. 98 (11 Sup. Ct. Repr. 36); Hoffman v. R. R. Co., 157 Pa. 174; Weaver v. Wood, 9 Pa. 220; Corson v. Mulvany, 49 Pa. 88; Grove v. Hodges, 55 Pa. 504.
    The distinction between the value of the property of the incorporated companies, and their capital stock, is perfectly familia: Brown v. French, 80 Fed. Repr. 166; State v. Morristown Fire Assn., 23 N. J. L. 195.
    The measure of damages was properly stated: McDowell’s App., 123 Pa. 381; Herd v. Thompson, 149 Pa. 434; Unexcelled Fireworks Co. v. Polites, 130 Pa. 536; Guillon v. Earnshaw, 169 Pa. 463; Corser v. Halo, 149 Pa. 274.
    In a civil case, when no request is made, the mere omission to charge upon a particular point is no ground of error: Phila. & Reading R. R. Co. v. Getz, 113 Pa. 214; Fox v. Fox, 96 Pa. 60; Reeves v. D., L. & W. R. R. Co., 30 Pa. 454; R. R. Co. v. Brandtmaier, 113 Pa. 610.

      There was no error in letting the statement of claim go out with the jury: Frazier v. Funk, 15 S. & R. 26.
    As a general rule, with some exceptions, the sending out of papers with the jury is regulated by the sound discretion of the court: Navigation Co. v. Richards, 57 Pa. 142; Spence v. Spence, 4 Watts, 165.
    The certificate of increase of stock was properly received in evidence: Bartlett v. Wilbur, 53 Md. 485; Grant v. Coal Co., 80 Pa. 208; Wigmore on Evidence, sec. 1674.
    October 21, 1907:
   Opinion by

Mr. Justice Brown,

The first contention of the appellant is that the agreement declared upon is ambiguous, indefinite and uncertain and, therefore, not a binding contract. The plaintiff’s statement sets forth that in the year 1900^ and for a number of years previous thereto, it was engaged in the dry goods business in the borough of Bethlehem ; that during the month of October, 1899, the defendant called upon M. J. Person, its manager, and stated that he was interested in a store property located in the city of Milwaukee, Wisconsin, which had' been occupied for years as a dry goods store and which at that time was doing a very extensive business and making large profits; that he then proposed to the plaintiff that it lease said property from its owners and increase its capital stock from $50,000 to $125,000, of which increase $75,000 should be common stock and $50,000 preferred stock; that he would purchase from it $10,000 of the common stock and provide $50,000 cash for the $50,000 worth of preferred stock, with the option to him to purchase $5,000 additional of the common stock, and suggested that the proposition so made by him be submitted to the officers of the plaintiff company; that this proposition was submitted to its officers and accepted by it. By the terms of the agreement, as set forth in the statement, and which the jury have found that appellant made, he agreed, for a valuable consideration — the leasing by the appellee of property in which he was interested — to provide $50,000 cash for the $50,000 of preferred stock which he proposed the company should issue. There is nothing ambiguous, indefinite or uncertain about this. The terms of the agreement can be misunderstood by no one, and the first question for the jury’s consideration was whether defendant had made it. It is true the agreement fails to state how he was to provide the $50,000 cash for the stock, but that was of no concern to the appellee. It was sufficient for it to know that he had agreed to make provision for $50,000 in cash for the stock. The company was to issue the same and receive the money for it, to be provided by the party with whom it made its contract. ITe could have provided the cash by taking the stock himself and paying for it or having others take it and pay for it. This is the unambiguous meaning of the agreement. Ho time was set for providing this money, and the appellant was entitled to a reasonable time to provide it. He makes no complaint that such time was not given him. His reason for not complying with Ms agreement when asked to do so, according to the testimony submitted by the appellee, was simply that he had changed his mind.

But it is next contended that even if the proposition, as testified to by appellee’s witnesses, was sufficiently definite and certain for the purposes of a contract, there was no evidence of its acceptance by the company. There wras no action by the board of directors formally accepting the offer, and it was not necessary that there should be such action to bind the appellee as one of the contracting parties. It was necessary that the proposition be accepted before the appellee could be held to it, but its acceptance could be implied, and if, from what the company did, it intended that the appellant should understand it to have accepted his offer, and his conduct indicated that he regarded the same as having been accepted, he cannot be heard to say, in his effort to avoid his agreement, that it was not accepted. This is the rule as between natural persons, and no other applies when either or both of the contracting parties are corporations. The evidence from which the jury found that the proposition had been accepted was ample. It was first made by the appellant to Person, the director and general manager of the appellee. He called an informal meeting of its board of directors, at which four of the five were present. The appellant then repeated his proposition to these directors. A meeting of the board was thereupon regularly called for January 8,1900, at which all the members were present. The vice president of the company reported that a proposition had been made by some gentlemen to increase the capital stock by the addition of $75,000, and offered a resolution for a meeting of the stockholders, the object of their meeting being to pass upon the question of increasing the capital stock of the company. The resolution was adopted and the president was authorized to appoint a committee to confer with Mr. Krauthoefer in reference to the lease of the Milwaukee store, with power to act. He was the agent of the owners of the property. At a meeting of the stockholders held on January 22, 1900, the increase of the capital stock was authorized as proposed by the appellant. On April 9 following he was elected a director of the company. On May 15 of the same year, at a meeting of the board, the minutes show that, “ On motion of G. O. Albright, a committee, composed of Messrs. Lipps, Person and Riegel, be empowered to purchase fixtures and other necessary articles to equip the store in Milwaukee, Wis., at a cost not to exceed $2,000, and to agree with the owners upon the alterations to be made; ” and then, on motion of Lipps himself, he was appointed a committee of one to go to Milwaukee and sell the $50,000 of preferred stock of the company. What must have seemed to the jury conclusive evidence that he regarded his proposition as accepted, is his letter of August 25, 1900, addressed to Marshall Pield & Company, in which he writes: I am the trustee and one of the heirs of my father’s estate, which consists of real estate in the city of Milwaukee. . . . The Boston store occupied it for the last three years and as their lease expired last May I did not renew the same, but reorganized the Person & Riegel Company to conduct their business there. The reorganization gives them a capital of 175,000 common and $50,000 preferred stock.” Having found that Lipps made the proposition, to have found that it had not been accepted by the company would have been a finding in the very teeth of the evidence.

A third contention of the appellant is that there was no mutuality of obligation in the alleged contract. Of this we need say no more than that the acceptance of his proposition made the agreement mutual.

The fourth reason given by the appellant why there should have been no recovery against him is that there was no performance on the part of the plaintiff of the conditions of the alleged contract, nor ability to perform them. The only thing said in support of this that we feel called upon to notice is that the preferred stock was an over issue, and consequently illegal and ultra vires.” The appellee is a corporation organized under the statutes of New Jersey, and hy an act in that state, in force in November, 1900, at the time the appellant is alleged to have broken his contract, it is provided that “ every corporation shall have power to create two or more kinds of stock of such classes, with such designations, preferences and voting powers, or restrictions or qualifications thereof, as shall be stated and expressed in the certificate of incorporation ; and the power to increase or decrease the stock, as in this act elsewhere provided, shall apply to all or any of the classes of stock; but at no time shall the total amount of preferred stocks exceed two-thirds of the actual capital paid in cash or property.” It is to be noted that this act does not provide that the total amount of the preferred stock shall not exceed two-thirds of the capital stock, but of the “ capital paid in cash or property.” As amended in 1901, the act does contain a provision that preferred stock shall not exceed two-thirds “ of the capital stock paid for in cash or property.” It is evident, from a comparison of the original act with its amendment, that the legislature regarded the difference between the capital and capital stock of a corporation ; and there is a well-understood distinction, universally recognized, between “ the capital or property” of incorporated companies and “their capital stock.” “ The term capital ’ applied to corporations is often used interchangeably with capital stock,’ and both are frequently used to express the same thing, — the property and assets of the corporation — but this is improper. The capital stock of a corporation is the amount subscribed and paid in by the shareholders, or secured to be paid in, and upon which it is to conduct its operations; and the amount of the capital stock remains the same, notwithstanding the gains or losses of the corporation. The term ‘ capital,’ however, properly means not the capital stock in this sense, but the actual property or estate of the corporation, whether in money or property. As was said in a New York case, ‘ It is the aggregate of the sums subscribed and paid in, or secured to be paid in by the shareholders, with the addition of all gains or profits realized in the use and investment of these sums, or if losses have been incurred, then it is the residue after deducting such losses.’ It follows, that a corporation’s capital may be many times greater than its capital stock, and it is this which makes the shares of stock of a corporation worth more on the market than their par value : ” Clark and Marshall on Corporations, 1140. “ There is a distinction between the capital of a corporation and its capital stock, though they are often used as interchangeable terms. The capital stock is clearly not the same as property possessed by the corporation; for the capital stock remains fixed although the actual property of the corporation varies in value, and is constantly increasing or diminishing in amount. What the amount of the capital shall be is within the discretion of the managers, but the amount of the capital stock is limited and determined by the charter and the law governing it. It follows, therefore, that a limit imposed upon the capital stock of a corporation, does not restrict the amount of property which it may own. Upon the distinction between the capital of a corporation, which is its property, and the capital stock which represents the interests of the stockholders in the corporation, and is their property, the power of the states to subject the shares of national banking associations to taxation is based: ” 2 Beach on Corporations, sec. 466. What is the evidence as to the ability of the company to issue its $50,000 of preferred stock in compliance with the statute of New Jersey in force in 1900 ? Lipps himself furnished it. In a letter written by him to Marshall Field & Company on August 25, 1900, he wrote: “ The Person & Riegel Company’s stock at the inventory taken May 1st, at very low prices, showed a value of $64,000. Unpaid bills and all other indebtedness $6,000.” Within the four months succeeding May 1, 1900, he subscribed for 326 shares of the common stock of the company, and the same were issued to him. The par value of that stock was $16,300. During the same period there were issued to Ferdinand Weyland forty shares of the common stock, the par value of which was $2,000. Deducting from the inventoried value of the stock — $64,000—the total indebtedness of the company on May 1 — $6,000—its assets amounted to $58,000, and if to this be added the $18,300, the par value of the common stock issued to Lipps and Weyland, the capital or property of the company was $16,300 — $1,300 in excess of what was necessary to enable it to issue its preferred stock.

The fifth and sixth complaints of the appellant are to the damages recovered and the measure of them adopted by the court in its charge. According to the evidence, there was an actual breach of the contract by the appellant, resulting in great loss to the appellee, and the only measure of damages that could have been fixed was the one given to the jury. Upon this point the learned trial judge said clearly: “Isay to you that this contract, as I have already said, was a contract to furnish cash. It was that pure and simple — furnish cash to the amount of $50,000. It was his duty to furnish that amount of cash, if you find that he entered into this contract. Then the amount of your verdict would be, if you find a verdict for the plaintiff, the difference between the $50,000 and amount of cash which he provided out of his own pocket, and the amount of cash that he was instrumental in providing for the use of the company, and that difference would be the amount of your verdict.”

The sixteenth specification of error is to the charge as a whole, and appellant’s sixth complaint is that it did not adequately present to the jury the questions involved. The charge was brief, and commendably so, for it was long enough to present with great clearness the three questions involved : First, did the appellant enter into the contract upon which the action was based l Second, did he break it % And, third, what damages should be awarded to the plaintiff if there was a breach ? If instructions were desired upon certain features of the case, they could have been asked for, and, if improperly given, would be subject to correction here. That the learned counsel for appellant knew this was their privilege is evident from the sixteen points submitted by them, fourteen of which were requests for specific instructions. These were given on some of the very features of the case to which it is now contended the trial judge should have referred in his general charge. He might have done so but for the points submitted to him; and he was not called upon to do so twice. Having said to the jury all that he was required to say to them to enable them to intelligently understand what the issue was before them in this civil case, his failure to say what he might properly have said, if asked to do so, is not to be regarded as error. Mere omissions to say what might have been properly said, are no just ground of complaint by a party who submitted no propositions, and suggested no views of the testimony for the consideration of the court. Judges are entitled to expect .this kind of assistance from counsel, and when it is not rendered, counsel may still have the benefit of errors of commission, but they should not complain of omissions: ” Reeves v. Delaware, Lackawanna and Western Railroad Company, 30 Pa. 454.

The twentieth assignment of error complains of the permission given to the plaintiff to send out the statement of its claim with the jury. It was a mere calculation of the amount which the appellee claimed to be due under the evidence, and, in permitting it to go to the jury, the trial judge, with proper caution, said : “ I have permitted the plaintiff to send out a state-of what it claims to recover. I merely want to caution you by saying that that is not to be the amount of your verdict simply because the statement claims it. You will remember that the defendant claims that the whole amount of this $50,000 was paid for in, cash, and whilst the defendant does not send out a statement you are not to lose sight of what the defendant claims in that reference.” Under the circumstances there was no error in permitting the statement to go out. “ With reasonable caution on the part of the court, no unfairness can be practiced in sending out a paper such as this; of its consequences, no test is so good as experience, and that proves not only its fairness, but its great utility. Indeed, where accounts are submitted to a jury, it would be impossible to get along without it. It originated with mutual convenience and the agreement of parties; but it has prevailed, so long and so uninterruptedly, as to have grown to be a rule of practice, and as such we are not bound to disturb it. It is, .doubtless, susceptible of abuse; and the court ought to see that what purports to be a mere statement of particulars, be so in fact, that it be subservient only to purposes of calculation, and contain no item of which, at least, evidence has not been given; thus restricted, a statement of particulars will afford salutary assistance to jurors, who are seldom expert at accounts. There was, therefore, no error in permitting the paper to go out: ” Frazier’s Administrators v. Funk, 15 S. & R. 26.

By the twenty-first and last assignment we are asked to say that the court erred in admitting the certificate of the increase of the appellee’s stock, because the certificate of the secretary of state did not have upon it the great seal of the state of New J ersoy ; and, further, that it was not in the form required by the act of congress. No authority has been cited requiring a certificate of the increase of the capital stock of a foreign corporation to bear the great seal of its state, or that it cannot bo received in evidence unless certified as required by the act of congress. On the contrary, by the New Jersey statute it is declared that the certificate of the secretary of state, relating to increase of capital stock, shall be taken and accepted as evidence of such increase, if it shall certify that the assent of the stockholders to the increase has been filed in his office. Such was the certificate here, to which was affixed the official seal of the secretary of state.

All the assignments of error are overruled and the judgment is affirmed.