author: Mr. Justice Potter,

text:
    Kann v. Bennett, Appellant.

      Contract — Building contract — Completion of work by owner — Evidence ■ — Declarations.
    1. Where an owner, in a building contract, alleges that the contractor has failed to prosecute the work with due diligence, enters upon the building, completes the work, and sues the contractor for an amount expended in excess of the contract price, the important question which lies at the threshold of the inquiry is whether the defendant had failed to furnish a sufficient number of skilled workmen, and proper materials for the erection of the house, and whether he had prosecuted the wprk with due diligence,

      2. In such a case the plaintiff cannot in support of his contention introduce letters addressed by the architect, the plaintiff’s agent under the contract, to the defendant, setting forth an argumentative presentation of plaintiff’s contention, there being nothing on the record to show that they were actually received, or that they were ever replied to in any manner by the defendant. Such letters amount to nothing-more than declarations by plaintiff in his own behalf; nor can the plaintiff introduce certain schedules attached to the statement of claim, for the purpose of showing a statement of account against the defendant, where the correctness of the items of the schedule are denied by the affidavit of defense. Such schedules amount to nothing more than plaintiff’s own assertion of what was due to him.
    3. Where an owner takes over from the contractor and finishes a building intended as a residence and his reason for doing so is alleged undue delay on the part of the contractor, where no actual loss is shown by the owner from delay in getting it ready for occupancy, there is no basis for the admission of proof of the rental value of the house as one of the elements of damage suffered by the owner.

      Evidence — Cross-examination—Contents of letter — Extracts from letter.

    4. It is not allowed under cross-examination in the statement of a question to a witness, to represent the contents of a letter, and to ask the witness whether he wrote a letter of such contents, or contents to that effect without having first shown the letter to the witness, and asked him whether he wrote the letter, and then offering the letter in evidence.

      Trial — Charge—Mare specific instructions.

      5. If counsel at a trial desire that the attention of the jury be more specifically and emphatically directed to particular questions raised by the evidence, than was done by the court in the general charge, he should frame points for charge accordingly, and submit them to the court to be given to the jury.
    Argued Oct. 19, 1908.
    Appeal, No. 3, Oct. T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1903, No. 862, on verdict for plaintiff in case of William L. Kann v. William B. Bennett.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit by owner against contractor for failure to complete building contract. Before Young, J.
    The facts are stated in the opinion of the Supreme Court.

      At the trial the plaintiff offered in evidence a letter signed by his architect.
    Mr Bane: We object to the introduction of the letter in evidence for the reason that it is incompetent, irrelevant and immaterial, and for the reason further that it is not evidence of any violation of the contract by Bennett. It is not evidence of any of the averments contained in it, and it is not evidence of any neglect or refusal of Bennett to supply a sufficient number of men and materials, or to otherwise perform his duties under the contract.
    Mr. Wendt: We propose to show that the architect gave the contractor notice of his default, and ample timely warning.
    Objection overruled. To which ruling of the court counsel for defendant except, and thereupon at their request exception noted and bill sealed. [1]
    Exhibit 4 read to the jury.
    “Exhibit 4.
    “Pittsburg, Pa., July 10, 1901.
    “Mr. W. B. Bennett, Contractor,
    “5708 Rural Ave., E. E.,
    “Pittsburg, Pa.
    “ Dear Sir: I wish to call your attention by this letter, as I have frequently done personally, to the unsatisfactory and dilatory way in which you are proceeding with the erection of Mr. W. L. Kami's residence on Dithridge St., Pittsburg, Pa. Notwithstanding my constant efforts on you and the subcontractors, to have the work go along, it appears that you pay no attention to the same. It is now five (5) months since the work has been started, and the building is far behind its state of completion, and there remains but three (3) months' time for you to complete and deliver the building.
    “I hereby give you notice that on and after this date, you must keep a sufficient number of people on the job in the various branches that are required, both for your own work and-for the subcontractors under you, according to the contract and agreement. I shall accept no further excuses for the noncompliance of the same, and if you disregard this notice, I shall be compelled to use the authority given me under the contract to have the work done.
    “ Yours truly,
    “Wm. Henry Sims.”
    Counsel for plaintiff offered in evidence a letter from the architect; this to be followed by evidence that the contractor neglected' and refused to supply a sufficiency of properly skilled workmen, and to prosecute the work with diligence after this notice was given, being a letter dated August 26, 1901.
    Mr. Bane: We object to the introduction of the letter of date August 26,1901, marked exhibit 7, for the reason that there is no sufficient evidence on the record to warrant the delivery of such a letter by the witness and architect to Bennett, the defendant; and for the reason that the letter contains statements of which there is no proof on the record, and for the reason that the letter is not substantive evidence of any of the alleged facts contained in it; and generally, as incompetent, irrelevant and immaterial.
    The Court: The objection is overruled, but there will be omitted in the reading of the letter any reference of the bond. To which ruling of the court counsel for defendant except, and thereupon at their request, exception noted and bill sealed. [2]
    Exhibit 7 read to the jury, omitting the part referring to the bond.
    “Exhibit 7.
    “August 26, 1901.
    “Mr. Wm. B. Bennett,
    “Contractor, City.
    “Dear Sir: I have urged you a number of times to have the work on the W. L. Kann house on Dithridge St., Pittsburg, Pa., pushed along with promptness and diligence as called for in your agreement with Mr. Kann, dated the 28th day of February, 1901.
    “The building has been standing unprotected from the weather for several weeks, and for over a week, there has been no work done on the building.
    “I have given you several written notices to proceed with the work and to have the building closed in and roof covered with tar paper, and to have the stone and brick work properly-protected from the weather and from other injuries that were liable to happen from neglect, and numerous other matters.
    “The whole contract has been carried along in a careless, improper, unskilled and unworkmanlike manner, and in utter disregard of the specifications and of my directions, and you have failed to give a bond as required by the contract.
    “This failure is so flagrant that I have no hesitation in certifying further, as I now do, that it is sufficient ground for W. L. Kann to proceed under the terms of the contract, and if all the different work is not started by Friday, the 30th day of August, 1901, I shall give W. L. Kann the necessary notice to employ some other person, or persons, to finish the building and provide the materials therefor, according to the terms of the contract.
    “Certified by my hand attached hereto this 26th day of August, 1901.
    “Wm. Henry Sims,
    “Architect.”
    Mr. Wendt: In connection with the testimony of W. L. Kann, and W. H. Sims, I offer in evidence the following schedules of exhibit “X,” attached to the supplemental statement of claim, being schedules “A,” “B” and “C,” for the purpose of showing the statement of the account of the plaintiff against the defendant. All those items have been called to the attention of witnesses.
    Objected to as incompetent, irrelevant and immaterial for the reason that the items named in the schedules are denied in the affidavit of defense.
    The Court: Objection overruled. These schedules are admitted as some aid to the jury in understanding the case, and because they are part of the pleadings in the case. To which ruling defendant’s counsel except, and at their request exception is noted and bill sealed. [3]
    W. H. Sims was asked this question:
    “Q. Mr. Sims, do you know what the rental value of this house of Mr. W. L. Kann was in the years of 1901 and 1902?”

      Objected to as incompetent, irrelevant and immaterial.
    Objection overruled. To which ruling defendant’s counsel except, and at their request exception is noted and bill sealed. [4]
    Question read. “A. Well, I would say a house of that character — ”
    Mr. Bane: We object to the proof. If the witness answers it, he should answer yes or no, and then we desire to object to his competency.
    The Court: We will allow you to cross-examine on that subject, if you wish to.
    Mr. Bane: “ Q. Mr. Sims, are you engaged in the real estate business? A. No, sir. Q. Engaged in buying and selling real estate? A. No, sir, I am not. Q. Are you engaged in renting houses? A. No, sir, I am not. Q. Were you so engaged in 1901 and 1902? A. I was not.”
    Mr. Wendt: “Q. As an architect, in 1901 and 1902, were you familiar with the rental value of houses in the East End, in the city of Pittsburg? A. Yes, sir, I might say I was. Q. You constantly, as I understand, are planning houses and supervising the construction of them, and you know the cost of them? A. Yes, sir. Q. In various parts of the city? A. Yes, sir. Q. In your work of planning and locating and building houses, do you become familiar with the rental value of houses of this kind? A. Yes, sir, quite often I had occasion-to consult with the owners.”
    Mr. Bane: In addition to our former objection, we object to the testimony of the witness for the reason that the witness has not shown sufficient knowledge to enable him to testify to rental values.
    Objection overruled. To which ruling defendant’s counsel except, and at their request exception is noted and bill sealed.

      “ Q. State what, in your judgment, was the fair rental value of the W. L. Kann house as it was to have been constructed under this contract, in the years 1901 and 1902? A. Well, I would consider that house would rent for from $1,500 to $1,800 a year.”
    The plaintiff’s counsel, during his cross-examination of a witness, William S. Callen, read a portion of a letter in the presence of the jury:
    “Q. I show you a letter signed 'Morrison Bros., Allegheny,’ dated August 21, 1901. Perhaps that will refresh your recollection.”
    Objected to as-not proper cross-examination.
    Objection overruled. To which ruling of the court defendant’s counsel except, and at their request exception is noted and bill sealed.
    Question read.
    Mr. Wendt: “ Q. Do you recall the difficulties referred to in that letter? A. I believe I do. Q. Explain to the jury what that was.”
    Mr. Bane: We renew the objection.
    Objection overruled. To which ruling of the court defendant’s counsel except, and at their request exception is noted and bill sealed.
    “A. I don’t know as I can recollect just what this trouble was now that we referred to in this letter. Probably some labor trouble of some kind. Q. Do you remember how long you were delayed by that? A. No, I do not. Q. Can you give us any approximate idea of how many weeks or how much in any way, expressed in any way, you were delayed during that summer by the troubles referred to in that letter? A. I couldn’t; I couldn’t tell you that. Q. You were'obstructed by that trouble? I notice you say in that letter — ”
    Mr. Bane: I object to his reading that letter; the letter is not in evidence. The plaintiff’s counsel being about to read a portion of an alleged letter, to which reference is made, defendant’s counsel object to the reading of any portion of the letter, for the reason, first, it is not in evidence, and for the reason that it is incompetent, irrelevant and not proper cross-examination.
    Objection overruled. To which ruling of the court defendant’s counsel except, and at their request exception is noted and bill sealed. [5]
    “Q. Mr. Callen, in this letter you say, ‘with reference to completing our work on W. L. Kann house, would say that we do not see how it is possible for us to proceed as long as the present state of affairs exists, as our men absolutely refuse to work on this job until the trouble is settled.’ Is it true your men refused to work on the house out there? A. It probably is; it states so in the letter. I suppose it is true.”
    The court charged in part as follows:
    [But, if you should find that the defendant did neglect or refuse, or failed in the performance of its contract, then you would pass, in the second place, to a consideration of what the plaintiff lost by reason of that, and you would inquire, in the first place, what was the contract price, and in the second place, what extra work was done. And this is a matter of serious consideration, because the plaintiff claims it was a certain sum, and defendant claims it was a certain other sum. Therefore, you would have to determine what sum would be added to this contract price for the purpose of getting a basis on which you would figure; and having determined that, the contract price and the extra work, then you would proceed to deduct from it the omitted work. And you will notice there is a matter of special inquiry there, the plaintiff saying the omitted work was so much, and the defendant saying the omitted work was much less than that; and then you would try to find out, in the way I have described to you, what the omitted work was, and you would deduct that from the total of the contract price and the extra work, and then you would deduct from that such payments as have been made, and you would deduct from it such cost of labor and material as the plaintiff h.as shown you he has expended money for, and you would add to that such damage for delay,- — not necessarily the delay after the plaintiff took possession, but the delay that occurred during the time that the contract was in the defendant’s hands, from March 15 to September 8; because you will recollect that the plaintiff had possession of the building and finished the work after September 8; therefore, you would inquire how much delay was added to the time that Mr. Kann, the plaintiff, did not get his house, caused by delay within that period, between March 15 and September 8.] [6]

      [Now, all this is if you find that the defendant was guilty of neglect and refusal and failure to perform his contract. That is the measure of damages, as I have given it to you for the plaintiff, and your verdict would be such amount as might be left, or such an amount as these claims of the plaintiff exceeded the amount of money then due or coming to the defendant. Of course, if the amount thus proved was less than the amount remaining due the defendant (and the burden is on the defendant to satisfy you of that by the weight of the evidence) then your verdict would be for the defendant in that sum; but if the amount was greater than the amount coming to him, then your verdict would be for the plaintiff in that excess.] [7]
    [Now, after having examined the testimony, if you should find that the defendant did not delay, then you would come to a consideration of the case in a little different way; much similar, in many respects, but slightly different. In that case, you would take first the contract-, and to that you would add the extra work as found from the evidence, and from that you would deduct the omitted work, as found from the evidence; and from that you would deduct the payments, just as you did in the other case. And you would then subtract from that amount such sum as the evidence indicates to you it would cost to finish the building, and you will recollect the evidence of the defendant and his witnesses that it would cost so much, and the evidence of the plaintiff and his witnesses that it had cost so much, and the expert evidence as to what it would have cost, and you will examine that evidence carefully, if you find the defendant was not guilty of any default, and of . course if you should so find, you would not add any damages for delay; because the plaintiff had no right to take the building from him and furnish the labor and material himself, unless the defendant was in default. Therefore, if you find that the defendant was not in default, you would take the contract and the extra work, which would be your total on one side, and from that you would deduct the omitted work, the payments, the cost of finishing, what it would have cost to finish it by Mr. Bennett, and the amount that remained — if there is such an amount — would be what your verdict would be; and, of course, if it was greater, then your verdict would be for the plaintiff for the excess.] [8]
    Verdict and judgment for plaintiff for $5,523.01. Defendant appealed.

      Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions; (6-8) above instructions, quoting them.

      John C. Bane, with him J. McF. Carpenter, for appellant.—
    The inadmissibility of exhibit 4 and exhibit 7 is shown by the following authorities: Dempsey v. Dobson, 174 Pa. 122; Bush v. Ferry, 7 Phila. 195; Huckestein v. Kelly & Jones Co., 139 Pa. 201.
    The schedules are a part of the plaintiff’s pleadings; they are a part of his statement of his claim; the items therein are denied in the defendant’s affidavit of defense; and they could not be considered by the jury as evidence in favor of the plaintiff to prove facts required to establish the plaintiff’s alleged right of action. They are before the court, not as evidence, but to point out the object to which the evidence is to be directed. To admit them in evidence is to allow the assertion to be taken as proof of the thing asserted: Kaiser v. Fendrick, 98 Pa. 528; Corcoran v. Trich, 20 W. N. C. 372; Hultz v. Gibbs, 66 Pa. 360; Scales v. Ry. Co., 35 S. W. Repr. 205; Green v. Morse, 57 Neb. 391; Lehn v. Lehn, 9 S. & R. 57; Jacoby v. North British & Mercantile Ins. Co., 10 Pa. Superior Ct. 366; Hottle v. Weaver, 206 Pa. 87.
    The rental value was inadmissible: Crawford v. Becker, 13 Hun (N. Y.), 375; Pittsburg Coal Co. v. Foster, 59 Pa. 365.

      John S. Wendt, with him Johns .McCleave, for appellee.—
    As the defendant did not raise the specific objection in the court below that the letters were not entitled to admission because not the original it is too late for him to raise it here: Farr v. Swan, 2 Pa. 245; Marsteller v. Marsteller, 93 Pa. 350; Wolverton v. Commonwealth, 7 S. & R. 273; Unger v. Wiggins, 1 Rawle, 331; Lovett v. Mathews, 24 Pa. 330; Messmore v. Morrison, 172 Pa. 300.

      The admission in evidence of the schedules did the defendant no harm because the oral testimony, taken in connection with the vouchers identified by the witnesses as representing money expended, showed the expenses to be as shown in the schedules, and the court did not admit the schedules as independent evidence of the facts set forth therein: Frazier v. Funk, 15 S. & R. 26; Com. v. Lebo, 13 S. & R. 175; Kline v. Gundrum, 11 Pa. 242; Tarry v. Drabenstadt, 68 Pa. 400; Shultz v. Seibel, 209 Pa. 27; Hall v. Rupley, 10 Pa. 231; Donahue v. Connor, 93 Pa. 356; Charles v. Bishoff, 1 Atl. Repr. 572; Henry v. Martin, 32 Legal Int. 100; Reynolds v. Caldwell, 51 Pa. 298; Hostetter v. Pittsburg, 107 Pa. 419.
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

The defendant in this case entered into a written contract with the plaintiff for the erection of a residence, in accordance with the plans and specifications .of an architect, and under the direction and to the satisfaction of the latter. The plaintiff alleged that the defendant failed to prosecute the work with due diligence, and that he was thereby justified under the terms of the contract in taking the work out of defendant’s hands and finishing it himself. And that having done so, he was entitled to recover the amount necessarily expended by him in excess of the contract price, in completing the contract. The defendant contended that this action upon the part of the plaintiff was high-handed and entirely without justification; and he denied that the plaintiff had any right to take possession of and finish the building, and claimed that upon a reasonable and just settlement a balance was due him upon the contract.

Upon the trial the verdict of the jury was in favor of the plaintiff. The defendant has appealed, and his assignments of error relate entirely to the admission of certain matters in evidence, and to portions of the charge.

In construing the contract the trial judge held that the burden was on the plaintiff to satisfy the jury by the weight of the evidence, that the defendant had neglected, or refused, or failed to comply with the contract; and with this view counsel for appellant find no fault. They do complain, however, that the trial judge instructed the jury to give the plaintiff the benefit of all sums expended by him in the completion of the house, without considering the necessity for the outlay, and the good faith of the expenditures.

Under the theory upon which the case was tried, the important question which lay at the threshold of the inquiry was whether the defendant had failed to furnish a sufficient number of skilled workmen, and proper materials for the erection of the house, and whether he had prosecuted the work with due diligence. In attempting to establish the contention of the plaintiff in this respect there were offered and, as counsel for defendant claim, erroneously admitted in evidence, two letters from the architect to the defendant, written during the progress of the work, in which complaint was made of the unsatisfactory and dilatory way in which it was alleged the defendant was proceeding. The letters set forth a number of specific grounds of dissatisfaction. Under the contract, the architect was made the agent of the owner, and these letters must therefore be regarded as the letters of the plaintiff, written in his behalf by his agent. They set forth an argumentative presentation of the plaintiff’s contention, and there seems to be nothing in the record to show that they were actually received, or were ever replied to in any manner by the defendant. The letters therefore amounted to nothing more than declarations by the plaintiff in his own behalf, and as such they should not have been admitted in evidence: Dempsey v. Dobson, 174 Pa. 122; Huckestein v. Kelly & Jones Co., 139 Pa. 201; Fraley v. Bispham, 10 Pa. 320.

The trial judge also admitted in evidence, against the objection of defendant’s counsel, certain schedules attached to the statement of claim, for the purpose of showing the statement of the account of the plaintiff against the defendant. In overruling the objection to their admission, the court below said: “These schedules are admitted as some aid to the jury in understanding the case, and because they are part of the pleadings in the case.” The fact that the schedules were part of the pleadings Would not render them admissible in evidence on behalf of the party who filed them. As to him they were merely self-serving declarations which should not be allowed to affect the rights of his adversary. The correctness of the various items of charge set forth in the schedules was denied as a whole by the defendant in his affidavit of defense; and many of them were taken up item by item, and their correctness in the amount stated, denied in whole or in part. So that the schedules amounted to nothing more than plaintiff’s own assertion of what was due to him. We think they should have been excluded as evidence.

Nor are we satisfied that there was any sound basis shown for the admission of proof of the rental value of the house as one of the elements of damage to the plaintiff. At the time when the plaintiff took possession of the building and proceeded upon his own account to carry it forward to completion, more than six weeks yet remained of the period within which the house was to have been completed by the defendant. It does not appear but that the defendant, if he had been permitted to do so, might have put on sufficient force to complete the building within the required time; nor was it shown why the plaintiff, after he took possession, did not complete the work within the time limit. In Crawford v. Becker, 13 Hun (N. Y.), 375, it was held that where the owner takes possession of a building and completes it himself, he thereby waives his right to claim from the contractor the damages provided for in the contract for a failure to complete the building by a specified time. In the present case no attempt was made to claim the liquidated damages stipulated for in the contract in case of delay, and it was incumbent upon the plaintiff to furnish proof of his actual loss, if any, in this respect. It is apparent from the contract and the testimony, that the building was intended for a residence, and no loss to the plaintiff was shown from the delay in getting it ready for occupancy as such.

In the fifth assignment of error, complaint is made that the trial judge permitted plaintiff’s counsel,' against objection on the part of the defendant, to examine the witness Callen upon the contents of a letter which had not been offered in evidence, and permitted him to read an extract from such letter. This was clearly in violation of a fundamental rule of evidence. “It is not allowed, on cross-examination, in the statement of a question to a witness, to represent the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or contents to the like effect; without having first shown the letter to the witness and having asked him whether he wrote that letter; because, if it were otherwise the cross-examining counsel might put the court in possession of only a part of the contents of a paper, when a knowledge of the whole was essential to a right judgment in the cause. If the witness acknowledges the writing of the letter yet he cannot be questioned as to its contents, but the letter itself must be read:” 1 Greenleaf on Evidence (Lewis’ Edition 1896), sec. 88. If counsel for plaintiff desired to show the contents of the letter, and to cross-examine upon it, he should have identified it, and offered it in evidence, and if admitted, introduced it as part of his cross-examination.

The sixth, seventh and eighth assignments of error relate to the portions of the charge referring to the computing of the damages. If counsel for defendant desired more specific instructions in this respect, they should have submitted points. In affirming the plaintiff’s ninth point, his right to charge for finishing the house was restricted to the reasonable cost and expense incurred by him in the process. But if counsel for defendant desired that the attention of the jury should be more specifically or emphatically directed to the requirement that in reaching a verdict they must be satisfied from the evidence not only that the expenditures in completing the house were actually made as claimed, but that the outlay was reasonably necessary to complete the building in accordance with the plans and specifications, and that the outlay was made honestly and in good faith, then it was the duty of counsel to frame points for charge accordingly, and submit them to the court to be given to the jury.

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


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

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

      Negligence — Railroads—Passengers — Stations — Crossing intervening tracks to train.

    1. Where there are several tracks at a station and passengers are expected to pass over intervening tracks to get upon a train, there is a positive duty upon the railroad company to provide a reasonably safe passage over the intervening tracks, and not to permit locomotives or trains to pass over them while passengers are on the crossing. Negligence in the performance of this duty will subject the company to liability for any resulting injury.
    2. In an action against a railroad company to recover damages for death of plaintiff's husband, it appeared that the deceased on the day of the accident went to a station where there were four tracks of a railroad running east and west. The station was on the south side of the four tracks. The track next to the station was the east-bound passenger, the next track, fifteen feet distant, was the west-bound passenger track, and the two tracks beyond were for freight traffic. There was a track platform between the west-bound and the east-bound tracks, and at this point the space between the rails of the east-bound track was planked for a distance of about thirty feet. The deceased entered the station, and while purchasing a ticket the gong sounded, giving notice of the approach of a west-bound train which he desired to take, and the ticket agent immediately announced to the deceased and other passengers, “train going west.” The deceased started with the other passengers following, proceeded down the steps to the platform, and while the deceased was about stepping from the planks between the rails of the eastbound track and the track platform from which he was to enter the west-bound train, he was struck and killed by an express train going east on the east-bound track running from twenty-five to thirty miles an hour, and twenty-seven minutes late. The other passengers who were following the deceased saw the situation in time to save themselves. Held that the plaintiff was entitled to have a judgment entered in her favor on a verdict for her.
    Argued Oct. 19, 1908.
    Appeal, No. 6, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 1,026, for defendant non obstante veredicto in case of Maria Keifner, in her own right and for use of John Keifner, William Keifner, Annie Keifner, George Keifner and David Keifner v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and' Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Brown, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for 13,500. The court subsequently entered judgment for defendant non obstante veredicto.

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

      W. C. Stillwagon, with him Pier Dannals, for appellant.—
    If the way provided is across a track he may rely upon the performance by the company of the duty to keep the track clear while passengers are in the act of passing between the train and the station: Penna. Railroad Company v. White, 88 Pa. 327; Flanagan v. Philadelphia, etc., Railroad Company, 181 Pa. 237; Betts v. Lehigh Valley Railroad Company, 191 Pa. 575; Harper v. Pittsburg, etc., Railroad Co., 219 Pa. 368; Besecker v. Delaware, etc., Railroad Company, 220 Pa. 507; Atlantic Railroad Company v. Goodin (N. J.), 45 L. R. A. 671; Chicago, etc., Ry. Company v. Lowell, 151 U. S. 209 (14 Sup. Ct. Repr. 281).
    And the rule is the same when the passenger is passing from the station to the train: Harper v. Pittsburg, etc., Railroad Company, 219 Pa. 368; Atlantic City Railroad Company v. Goodin (N. J.), 45 L. R. A. 670; Jewett v. Klein, 27 N. J. Eq. 550; Penna. Railroad Co., v. White, 88 Pa. 327; Harper v. Pittsburg, etc., R. R. Co., 219 Pa. 368; Besecker v. R. R. Co., 220 Pa. 507.

      Wm. S. Dalzell, of Dalzell, Fisher & Hawkins, for appellee,
    cited: Besecker v. D., L. & W. R. R. Co., 220 Pa. 507.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

We are all of opinion that the court below erred in entering judgment for the defendant non obstante veredicto.

The defendant company’s station at Carnegie is on the south side of its four tracks of railroad which run east and west and parallel each other at that place. The track next the station is the east-bound passenger, the next track, fifteen feet distant, is the west-bound passenger track, and the two tracks beyond are for freight traffic. The station platform extends to the rail of the east-bound track, is eight or nine feet wide, and about 150 feet long. Three or four steps lead from the door of the station down to the platform. There is a track platform between the west-bound and the east-bound tracks from which passengers enter and on which they alight from the west-bound train. At this point, the space between the rails of the eastbound track is planked for a distance of about thirty feet. This is the way provided by the company for passengers to enter a west-bound train from the station and for passengers alighting on the platform between the west-bound and eastbound tracks to enter the station. There is a gong in the station, operated by an electric button in an adjoining telegraph tower, which gives notice of trains approaching the station.

On the morning of December 3, 1901, John Keifner, appellant’s husband, went to the station at Carnegie to take a westbound train for Iffley, a station three miles west of Carnegie. It was due at 7:05. While he was at the window purchasing his ticket, the gong sounded giving notice of the approach of the west-bound train, and the ticket agent immediately announced to Keifner and the other twelve or fifteen passengers intending to take that train: “Train going west.” Keifner and the other passengers started at once on the announcement of the agent for the platform from which the west-bound train was to be entered. They passed through the door leading out of the station, and down the steps to the station platform. Keifner was in advance of the other passengers and as he was about stepping from the planks between the rails of the eastbound track to the track platform from which he was to enter the west-bound train he was struck and killed by an express train going east on the east-bound track, running from twenty-five to thirty miles an hour. This train was twenty-seven minutes late. The ticket agent testified that from the time the gong sounded it requires about a minute and a half to two minutes for the train to reach the platform.

On the trial of the cause, the court submitted to the jury the negligence of the defendant company and also the contributory negligence of the deceased. The jury returned a verdict for the plaintiff, but the court entered judgment for the defendant non obstante veredicto, citing as authority for its action the cases of Carroll v. Pennsylvania Railroad Company, 12 W. N. C. 348, and Irey v. Pennsylvania Railroad Company, 132 Pa. 563. The learned judge held that as matter of law the deceased was guilty of contributory negligence under the facts of the case.

This case is ruled by the doctrine announced in Harper v. Pittsburg, etc., Railroad Company, 219 Pa. 368, and Besecker v. Delaware, etc., Railroad Company, 220 Pa. 507. There, as here, the only question presented for the consideration of this court was whether the plaintiff’s negligence was so clear that the court was justified in declaring it as matter of law.

• The deceased having purchased a ticket for his transportation and being in the defendant’s station awaiting the arrival of the train was a passenger and entitled to the company’s protection until he entered the train. It was therefore the duty of the defendant company to use care in providing a safe way or approach to the platform from which its west-bound train could be entered. His right to a safe transit over the east-bound track is the same in attempting to reach his train from the station as a passenger who, having alighted from a train, attempts to cross intervening tracks to enter the station. There is a positive duty imposed upon the company in such cases to provide a reasonably safe passage over intervening tracks, and not to permit locomotives or trains to pass over them while passengers are on the crossing. Negligence in the performance of this duty will subject the company to liability for any resulting injury.

The deceased had a right to assume that his safety would not be endangered by permitting a train to pass on the eastbound track while he was crossing to enter the west-bound train, and he could rely upon the company to keep the track clear: Harper v. Pittsburg, etc., Railroad Company, 219 Pa. 368; Besecker v. Delaware, etc., Railroad Company, 220 Pa. 507. His duty, therefore, to stop, look and listen was not the same as a footman about to cross at a public crossing: Pennsylvania Railroad Co. v. White, 88 Pa. 327; Betts v. Lehigh Valley R. R. Co., 191 Pa. 575 ; 6 Cyclopedia of Law and Procedure, 608. While he was required to exercise prudence and care in crossing the east-bound track, it was such care as the circumstances demanded. Had he been attempting to cross a railroad track at a public crossing, the failure to stop, look and listen would have been negligence to be declared by the court. There the railroad company has the right to run its trains at any time it sees proper, and persons who attempt to cross the track are required to look out for approaching trains. Under those circumstances the company does not invite the public to cross its tracks for any purpose, nor if its employees in charge of a train exercise care in approaching a crossing is it under obligation to protect the public from injury while crossing the tracks. But here the circumstances are different. In effect the company by providing this means of access to its trains makes the crossing a part of its station so far as its duty to protect the passenger is concerned. The public have no right to cross it except when they as passengers intend to take passage on the company’s west-bound train. Here, the way used by the deceased was specially provided by the company for crossing its tracks. Plank thirty feet in length had been laid between the rails of the east-bound track so as to make a proper and safe way for passengers to walk from the station to the track platform of the west-bound track. This was the only way provided by the defendant company for passengers to reach the west-bound train, and therefore every passenger who had purchased a ticket at the station for that train was invited by the company to cross the track by this way to reach the train.

The announcement of the arrival of the west-bound train by the ticket agent was a direction to the passengers in the station to proceed to the train. All the passengers in the station so treated the announcement and acted upon it accordingly. They had a right to assume that the approach to the train was reasonably safe, and they were not bound to anticipate that their safety would be endangered by the company permitting a train to be run over the crossing on the east-bound track at this time. They could rely upon the performance of the company’s duty not to permit a train to pass on that track. In fact there was no train due on the east-bound track at that time, and Keifner’s death was caused by a train running twenty-seven minutes late. He was not struck when he stepped upon the track, but he was in the act of stepping from the track when he was hit by the locomotive. He manifestly thought that he could cross the track in safety, and there is nothing in the evidence to show the contrary. The other passengers saw this train and avoided a collision, but they were in the rear of the deceased and had an opportunity to do what he did not have. .Of course if he had stopped and waited on the platform to see whether the east-bound track was clear or not, he would not have been run down by the train. But in the absence of evidence showing that he saw the train approaching and had reason to believe that his safety would be endangered, he might rely upon the presumption that the company would do its duty, and proceed to the train as he was directed by the company’s agent. The care required of him was such as the circumstances demanded, and whether he exercised that care or not a jury must determine. If when the deceased arrived on the station platform at the east-bound track, the train was approaching at a high rate of speed and so near the crossing that he should have known that it intended to pass the crossing, he should not have attempted to cross in front of it. In other words, if a reasonably prudent man would have anticipated danger in crossing from the conditions as they existed there it was negligence in the deceased to attempt to make the crossing. These were questions for the jury.

The cases relied upon by the court below have no application to the facts of this case. In the Carroll case the plaintiff when injured was crossing the railroad “ at the Queen Street crossing, which adjoins the depot on the west.” He stepped directly in front of the locomotive, which, if he had used his sense of sight or hearing, he would have known was approaching. His duty was to stop, look and listen, which manifestly if he had done he would not have been struck by the locomotive. In Irey v. Penna. Railroad Company, 132 Pa. 563, the deceased attempted to reach his train by crossing the tracks at a different place than that provided by the company. A nonsuit was entered, which was sustained by this court in a per curiam opinion. In the opinion of the trial judge it is said (p. 565): “If the accident had happened while the deceased was walking upon the planked way leading from the station to the platform on the opposite side, the question of contributory negligence would have to be decided by the jury, and not by the court; but, unfortunately for the plaintiff, this was not the case. He left a place of comparative safety, and without any invitation, actual or implied, he attempted to reach his train before it was ready to receive him, and by a way much more dangerous than the one provided for him by the company.” Keifner was killed when he, by the implied invitation of the company, was walking upon the planked way prepared by it for the use of passengers intending to board a train from the platform on the opposite side of the east-bound track.

The assignment of error is sustained, the judgment of the court below is reversed, and judgment is now directed to be entered on the verdict for the plaintiff.


author: Mr. Justice Brown,

text:
    Davis v. The Southwest Pennsylvania Pipe Lines, Appellant.

      Pipe lines — Construction of lines — Trespass—Failure to condemn— Equity — Injunction.
    An action of trespass against a pipe line company which has illegally, and without consent, laid a pipe line across the plaintiff’s land, is not res adjudicata when subsequently a bill in equity is filed by the landowner to restrain the operation of the line, and it appears that the trespass suit was brought merely to establish plaintiff’s right, and that the recovery therein was for nominal damages only.
    Argued Oct. 19, 1908.
    Appeal, No. 14, Oct. T., 1908, by-defendant, from judgment of Superior Court, April T., 1907, No. 183, affirming decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 599, on bill in equity in case of Henry A. Davis v. The Southwest Pennsylvania Pipe Lines.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court. See 34 Pa. Superior Ct. 438.

      Error assigned was the judgment of the Superior Court.

      Wm. A. Stone, with him Stephen Stone, for appellant.

      Henry A. Davis, with him C. C. Dickey and J. Charles Dicken, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

The appellant is a corporation chartered under the Act of June 2, 1883, P. L. 61, and possessing the right of eminent domain. It is engaged in the business of storing petroleum and transporting it from place to place through pipes. It laid two of them on the land of the appellee without his permission and without any authority of law. This finding, which was not assigned as error on the appeal to the Superior Court, ought to have gone further and been that the appellee had no knowledge that the pipes had been laid until some time after they had been placed upon his land. Six months or a year after he learned that this trespass had been committed by the appellant he brought suit against it in court of common pleas No. 1 of the county of Allegheny. The action was for a continuing trespass, and, no damages having been claimed for permanent injuries sustained, a verdict was directed for nominal damages. On the trial counsel for the plaintiff stated: “This action is not brought -expecting to recover more than nominal damages. We wished to bring this suit to establish our right at law.” The effect of the recovery by the appellee in this action of trespass is tersely and correctly stated by the learned president judge of the Superior Court in his opinion affirming the decree now before us: “The verdict and judgment in that case established the plaintiff’s right and the tortiousness of the defendant’s act in constructing the pipe lines. Maintaining them on the plaintiff’s land thereafter, was, under the circumstances, a trespass from day to day, for which successive actions would lie: Holmes v. Wilson, 10 Ad. & E. 503; Dill v. McCloskey, 9 Phila. 76; Pollock on Torts, 313:” Davis v. Southwest Penna. Pipe Lines, 34 Pa. Superior Ct. 438. In the face of this, sanction cannot be given to the contention of counsel for. appellant that the recovery by the appellee gave him all he was entitled to for the appropriation of his land and he now has no right to have his damages ascertained and their payment secured to him. in the mode prescribed by the act of 1883.

The guaranty of the constitution is that private property shall not be taken by a corporation having the right to take it for public use until compensation is first paid or secured to the owner, and the act of 1883, in conferring the right of eminent domain upon the appellant, directed that before it could exercise the same the landowner must have approved security for his damages; but if the position of the appellant should be sustained, this' absolute security for damages under the organic law can be taken from a landowner in any case by a corporation, if it does what was done here, and then insists that the only remedy of the injured proprietor is a recovery in trespass, though the judgment be against a worthless defendant: “The corporation had no right to take possession of the land in question against the will of the owner, without paying or securing the payment of a just compensation therefor, before such taking: Art. XVI, sec. 8 of the constitution. This protection to private property thus secured by the organic law, is not to be destroyed or frittered away by any artful device:” Philadelphia, Newtown and New York Railroad Co. et al. v. Cooper, 105 Pa. 239. The appellee might have waived his constitutional and statutory right to security for his damages and made claim in his action of trespass for the permanent injuries to his property, but he was not required to do so, and he did not.

The error alleged to have been committed by the Superior Court is that it did not follow its own ruling in Hankey v. Philadelphia Company, 5 Pa. Superior Ct. 148. No bond had been tendered to Hankey, the landowner, or any effort made to agree with him as to the damages he sustained by the laying of a gas pipe, but as it was laid in front of his property in his presence, without objection from him, and he and his son assisted in the work and were paid for their services, it was held that he was estopped from depriving the defendant of the easement it had acquired, though entitled to compensation through a common-law action for the injuries he had sustained, including those resulting from the permanent occupancy of his land. What the Superior Court held there is the undoubted law and entirely consistent with its ruling here. The case has not the slightest relevancy to the question raised by this appellant. Equally inapplicable is the case of the Philadelphia and Reading Railroad Company v. Pottsville Water Company, 182 Pa. 418, which, with much earnestness, is cited by counsel for appellant as conclusive that it ought not to have been enjoined by the court below. It is a sufficient answer to this to say that the injunction asked for by the complainant in that case was by the lessee of an individual riparian owner against a water company taking the waters of the stream under the right of eminent domain.

The decree of the Superior Court, affirming the decree of the common pleas, is affirmed at appellant’s costs, the stay granted by the common pleas to run from this date.


text:
    Sawyer v. The Southwest Pennsylvania Pipe Lines, Appellant.
    Argued Oct. 19, 1908.
    Appeal, No. 16, Oct. T., 1908, by defendant, from judgment of Superior Court April T., 1907, No. 185, affirming decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 750, on bill in equity in case of John H. Sawyer v. The Southwest Pennsylvania Pipe Lines.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

The decree of the Superior Court is affirmed, with costs, for the reasons stated in the opinion this day filed in Davis v. The Southwest Pennsylvania Pipe Lines, ante, p. 56.


text:
    J. Charles Dicken v. The Southwest Pennsylvania Pipe Lines, Appellant.
    Argued Oct. 19, 1908.
    Appeal, No. 15, Oct. T., 1908, by defendant, from judgment of Superior Court April T., 1907, No. 184, affirming decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 600, on bill in equity in case of J. Charles Dicken v. The Southwest Pennsylvania Pipe Lines.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

The decree of the Superior Court is affirmed, with costs, for the reasons stated in the opinion this day filed in Davis v. The Southwest Pennsylvania Pipe Lines, ante, p. 56.


author: Per Curiam,

text:
    Frey’s Estate.

      Decedent’s estates — Sale of interest in estate — Fraud—Inadequacy of price — Evidence.
    Where a man twenty-five years of age having a vested and undivided interest in a decedent’s estate persists against the advice of his father, brothers-in-law, and aunts, in selling to them his interest at a price fixed by two real estate companies with the consent of all parties, he cannot, in the absence of any fraud or imposition upon him, have the vendees surcharged in his favor at the final distribution, because the interest was subsequently sold at a price of twice the amount which he received.
    Argued Oct. 19, 1908.
    Appeal, No. 27, Oct. T., 1908, by William E. Kramer, from decree of O. C. Allegheny Co., Sept. T., 1907, No. 221, dismissing exceptions to the adjudicar tion in Estate of Ernest Frey.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication. Before Miller, P. J.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      James 8. Campbell, for appellant,
    cited: Brooks v. First Presbyterian Church, 128 Pa. 408; Darlington’s App., 86 Pa. 512; Miskey’s App., 107 Pa. 611; Worrall’s App., 110 Pa. 349; Shea’s App., 121 Pa. 302; Reinhard v. Keenbartz, 6 Watts, 93; B. & O. R. R. Co. v. Hoge, 34 Pa. 214; Kauffman v. Swar, 5 Pa. 230; Krupp v. Scholl, 10 Pa. 193; Woods v. Gummert, 67 Pa. 136; Hartman v. Shaffer, 71 Pa. 312; Glessner v. Patterson, 164 Pa. 224; Hirsh v. Wenger, 182 Pa. 246; Van Sciver Co. v. McPherson, 199 Pa. 331; Stauffer v. Young, 39 Pa. 455.

      W. B. Rodgers, with him John M. Goehring, for appellees.

      January 4, 1909:
   Per Curiam,

Appellant under his grandfather’s will was entitled to an undivided eighth of certain real estate, the other heirs being his aunts and his sister. In September, 1905, when he was twenty-four years old and had been in business for himself for a year, he was in financial difficulties and consulted with Brahm who was the husband of one of his aunts, was one of the grandfather’s executors, had been one of appellant’s guardians, and was a man of means and business experience. At first appellant desired to raise money by mortgage, but being told that in Brahm’s opinion he could not do this as his interest was an undivided one, he announced to Brahm that he had determined to sell his interest. He was asked to give the other heirs the first chance; thereupon it was agreed between them that a family conference should be held; this took place about September 15, at the home of the claimant’s father; at this meeting there were present, appellant’s father, his aunt, Mrs. Brahm, with her husband, his aunt, Mrs. Lotz, with her husband, Mrs. Beegle, with ‘her husband, and his sister, Augusta Kramer. The latter was invited to join in the negotiation, but declined for lack of funds. Appellant told those assembled that he was there to sell his one-eighth interest in this real estate; they all urged against it, telling him they did not believe he was qualified to take up the study of medicine, which he contemplated, and that holding the realty secured him a fixed income; upon his persistence and expressed determination to dispose of his interest the parties discussed the price, he asking $10,000 for his interest, which they thought was too high; thereupon it was mutually agreed between him and them that a valuation be obtained from two real estate trust companies. This was done and the average .valuation by these companies was adopted and the sale made.

Several months later the property was sold by the executors for double the amount of the price paid to appellant and after-wards resold by the vendee at another advance;

On the filing of the executors’ account the appellant made claim against Brahm and certain heirs of the decedent for the payment to him of the difference between the amount at which he had sold his interest, and the amount they received for it, on the ground that fraud and undue advantage was taken of him; the difference claimed was about $7,000.

The auditing judge (Miller, J.) after finding the facts, of which the foregoing is a condensed statement, filed the following opinion:

“Nothing is better settled than that fraud vitiates a contract; the courts will go far to set aside or otherwise rectify a result obtained by imposition, overreaching, undue influence and especially a violation of a trust or confidence relationship.
“ But when the minor was of age and the duties of accounting for and distributing the fund had been performed there no longer existed the relationship of guardian and ward; what Kramer subsequently received prior to the sale of his interest in the real estate was in his own right, a share of rents through the hands of his father who acted for his coexecutors in keeping the accounts; there was nothing further to account for as guardian; the original testamentary appointment carried no further duties.
“The facts found are based upon claimant’s own testimony. He did not ask Brahm’s advice as to the propriety of selling; he came to all with the expressed determination to sell and refused the advice proffered that it was not wise to do so; notwithstanding the efforts of his father, of Brahm and of his aunts, he was persistent to receive the money for his interest in .this land. He agreed upon the method of fixing the price; was a party to the arrangement by which this was done and himself named the amount.
“There is no approach to fraud or bad faith in these appraisements or valuations; it is wholly immaterial what they were called or whether any record was made of them; he had notice of them, saw them, and acted upon them. It appears that they were made by the companies themselves through their accredited representatives as the evidence and the signatures to the letters attest.
“There was no evidence or offer of evidence tending to show that Brahm or any of the other parties had any knowledge of the value of this real estate which they concealed from Kramer, or that they had placed any. value thereon, or that they were parties to any negotiation with knowledge reserved, of a price or purchaser therefor, in excess of that received by Kramer; nor is there any evidence or offer of evidence that they had information which they ought to have disclosed to him; they owed him no duty which required them to take more care of him than he did of himself.
“While Brahm was mistaken in telling Kramer he thought he could not mortgage his undivided interest in the land, there is nothing in the evidence to warrant a finding that this was a fraudulent statement or carried with it an intent to deceive. This opinion is held by many who have no special knowledge on the subject. It was as much the duty of Kramer to find out from competent authority whether this could be done, and was as easy to ascertain, as was his inquiry and discussion of the probable value of this land prior to the time of his sale.
“It is wholly immaterial what was asked for the property after Kramer sold it, or what the owners did for the purpose of obtaining a higher price, if there was no fraud perpetrated or imposition practiced' upon him in obtaining his interest.
“Every opportunity was given him to show an arrangement or prior knowledge or a concealment of material facts in Brahm or any of the others by which imposition might be presumed. Failing to present any evidence or offers of evidence to substantiate his naked allegation of fraud, undue influence or violation of a trust at and prior to his sale, the attempt to bring into the case the subsequent value of this property could have no possible bearing upon the issue as raised.
“It may be conceded that gross inadequacy of price is not only suspicious but fraudulent per se as between a guardian and ward; so in any other relationship of trust and confidence where guardian or trustee directly or indirectly profits by the imposition he has practiced: Eberts v. Eberts, 55 Pa. 110; the best faith must be observed between parties occupying this relationship: Wills’s Appeal, 22 Pa. 325.
“But 'if the vendor was thoroughly acquainted with every fact which it was necessary for him to know; if he was 21 years of age and of sound mind; if there were no circumstances which gave the vendee an improper control over him amounting to mental imprisonment; if in short the vendee behaved honestly and the vendor was able to act like a free man with his eyes open, then the one had a right to sell and the other to buy on any terms they saw proper to agree upon. The law will never interfere between the parties themselves to set aside an honest contract which they have voluntarily made:' ” Davidson v. Little, 22 Pa. 245, or as stated in Whelen v. Phillips, 151 Pa. 312, “in the absence of a trust relation any person sui juris may sell upon any sum agreed upon.
“Here as in Jackson’s Estate, 203 Pa. 33, 'The vendor is dissatisfied with and repents the bargain he made, but he has no one other than himself to condemn.’ Kramer was not an heir expectant, the estate was fully vested in him, no one exercised any improper control over him, and he was long past the age when the law made him competent to transact business as he saw fit.
“Inadequacy of price, improvidence, surprise, and mere hardship, none of these, nor all combined, furnish an adequate reason for a judicial rescission of a contract. For such action something more is demanded — such as fraud, mistake or illegality:” Graham v. Pancoast, 30 Pa. 89.
“This claimant, in his 25th year, against the advice of his father, brothers-in-law, and aunts persisted in selling and did sell to them on terms which he himself fixed. In the absence of any color of fraud, or violation of trust, he dealt with them at arm's length. He has therefore no standing in a court of equity for relief, and his claim must be dismissed.
“It is doubtful whether on the pleading and record even if the semblance of a case had been made out, relief could have been granted in this proceeding. But the question is not raised; we have accepted the issue as presented and have disposed of the question on its merits.”

The court in banc dismissed exceptions to the adjudication and on it the decree is affirmed.


text:
    Burns v. Armstrong, Appellant.

      Practice, C. P. — Affidavit of defense — Amended statement.

    1. Where after a rule for judgment for want of a sufficient affidavit of defense has been discharged, the plaintiff files an amended statement to which the defendant voluntarily files an affidavit of defense, and a second rule for judgment is taken, the defendant will not be heard to say that the court has no power to entertain the second rule.

      Promissory notes — Suit against indorser — Protest—Notice of protest— Affidavit of defense.

    2. In an action by the last indorser against a prior indorser on a promissory note, an affidavit of defense is insufficient, where the defendant does not deny the making and indorsing of the note in suit, denies that the copy attached is a correct copy, but does not show in what respect it is incorrect, does not deny that the plaintiff is the holder of the note in suit; does not deny that the note at maturity, was presented at the place named in the note for payment, and that payment was refused; does not deny that the note was protested; and does not deny that he received notice of dishonor, but merely avers that the notice was not sent by the plaintiff.
    Argued Oct. 19, 1908.
    Appeals, Nos. 47, 48, 49 and 50, by defendants, from orders of C. P. No. 4, Allegheny Co., Jan. T., 1908, Nos. 252, 253, 254 and 255, making absolute rules for judgments in cases of T. Burns v. John H. Armstrong, A. I. Cooke, C. A.- Muehlbronner and Thomas McGovern.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Assumpsit upon a promissory note.
    Rules for judgments for want of sufficient affidavits of defense. Swearingen, P. J., filed the following opinion:
    In this case, after an affidavit of defense was filed, a rule for judgment was taken, which, upon argument, without objection of plaintiff’s counsel, was discharged. Thereupon ’ the plaintiff, by leave of court, filed an amended statement of demand. In this amended statement, the plaintiff declared upon a promissory note, of which a copy was attached, marked “A.” The following is a copy of the note:
    “Pittsburg, Pa., May 1st, 1907.
    “$6,000.00.
    “Four months after date I promise to pay to the order of James E. Glass, Six Thousand Dollars, at the Treasury Trust Company, Pittsburg, Pa., without defalcation, for value received.
    “Jambs E. Glass.
    “Indorsed:—
    “James E. Glass,
    “A. I. Cooke,
    “Chas. H. Muehlbronner, “Thos. McGovern,
    “Edward Schenk,
    “Jno. H. Armstrong,
    “T. Burns.”
    The plaintiff averred that, prior to May 1, 1907, he became the holder in due course of a certain promissory note, of which one James E. Glass was maker, and the defendant, among others, indorser; that, being such holder, he had said note discounted at the Lincoln National Bank of Pittsburg; that, upon maturity thereof, the aforesaid note, now marked “A,” was made and indorsed as aforesaid and delivered to the Lincoln National Bank in payment of said note previously discounted by it; that, upon maturity of said note, now marked “A,” payment thereof was refused, and it was protested, notice of which was given to the defendant and to the other indorsers and to the maker; that plaintiff has been obliged to pay and lift said note, which he now holds.
    To this amended statement of demand the defendant filed what he called a protest, in which he denied the right of the plaintiff to require him to file an affidavit of defense to said amended statement; and then the defendant filed an affidavit of defense to said amended statement of demand.
    In the latter affidavit, the defendant “on information received” denies that the Lincoln National Bank discounted the note executed prior to May 1, 1907; but the defendant does not allege that he believes such information, and.that he expects to prove it. He denies that the note in suit was delivered to said bank in payment of the prior note. He, "on information received,” denies that exhibit “A” is a true and correct copy of the note, upon which suit is brought; but he does not state wherein said copy is incorrect, nor that he believes the information, and expects to prove it. He, “on information received,” denies that the plaintiff had the note in suit protested; and he denies that the plaintiff, as junior indorser, gave notice of protest or dishonor to defendant. But the defendant does not deny that notice of protest was sent to him and to the other indorsers.
    Thereupon the plaintiff entered a second rule for judgment for want of a sufficient affidavit of defense. The defendant now takes the position, that the court has no power to entertain the second rule. But we cannot agree with him. The purpose of the practice is to avoid delay, by having the court, upon a rule, determine, what it must determine upon trial, whether or not, assuming all that is alleged in the defense as true, the plaintiff is entitled to binding instructions. The reason for the practice applies to a case where an amended statement is filed and an affidavit of defense thereto is filed, equally as strong as it does in the first instance. It will be observed that the defendant voluntarily filed his affidavit of defense to the amended statement. There is no question here as to the right of the plaintiff to compel the defendant to file such an affidavit of defense. He has filed it. But we think the point is decided in the case of Cook v. Forker, 193 Pa. 461.
    The defendant has not denied the making and indorsing of the note in suit, and he has not sufficiently denied the copy attached; he has not demanded inspection of the original. The defendant has not denied that the plaintiff is the holder of the note in suit. He has not denied that said note, at maturity, was presented at the place named in the note for payment, and that payment was refused. He has not denied that said note was protested. He does say that the plaintiff gave him no notice of dishonor. But this is immaterial. It was the duty of the Lincoln National Bank to protest the note, upon nonpayment, and to give the notice. There is no averment that said bank did not do so; and there is no averment that notice of dishonor was not sent to the defendant: Odd Fellows’ Savings Bank v. Miller, 179 Pa. 412.
    The defendant indorsed this note, gave the credit of his name to all subsequent indorsers, and he cannot avoid liability by proving the allegations in this affidavit of defense.
    The rule for judgment is made absolute.

      Errors assigned were the orders of the court making absolute rules for judgments for want of sufficient affidavits of defense.

      T. L. Gartner, for appellants.
    — Plaintiff had no right to demand a second affidavit: Webster v. Coal & Coke Co., 201 Pa. 278; Anderson v. Nichols, 29 P. L. J. (O. S.) 231; Com. v. McCutcheon, 4 Pa. C. C. Rep. 309.
    The affidavit of defense was sufficient: Kirkpatrick v. Muirhead, 16 Pa. 117; Penna. Iron Works Co. v. Greger, 19 Montg. 110; McConeghy v. Kirk, 68 Pa. 200; McPherson v. Allegheny Nat. Bank, 96 Pa. 135.

      C. C. Dickey, with him Robert T. McElroy and Arthur D. Hamden, for appellee.
    — Where a defendant, not bound to file an affidavit of defense, does so, he thereby waives his right to refuse to file the affidavit and must rest upon his affidavit: Newbold v. Pennock, 154 Pa. 591; Louchheim v. Maguire, 6 Pa. Superior Ct. 635.
    The allegation in the supplemental affidavit of defense that defendant “on information received denies that ‘Exhibit A,’ of plaintiff’s statement is a true and correct copy of the note with indorsements sued on,” is evasive,-and goes for naught, in the absence of any demand for inspection of the original: Woods v. Watkins, 40 Pa. 458; Allen v. National Bank of Germantown, 10 W. N. C. 188; 1 Tr. & H. Pr., sec. 415.
    The defendant must allege that no notice of dishonor was sent to him: Odd Fellows’ Savings Bank v. Miller, 179 Pa. 412; McConeghy v. Kirk, 68 Pa. 200.

      January 4, 1909:
   Per Curiam,

The judgments are affirmed on the opinion of the court below.


author: Me. Justice Stewaet,

text:
    East End Savings & Trust Company, Appellant, v. Chadwick.

      Contract — Sale—Offer—Withdrawal of offer.

    In an action by a trust company against executors for breach of a contract to sell a mortgage belonging to the estate, it appeared that one of the executors made an offer to the president of the trust company to sell the mortgage to the company at a price named, but before there was any acceptance in writing or otherwise, he called up the president on the phone, and according to his own testimony stated to the president that he called off the sale of the mortgage. The president testified that the executor’s words were, that he wanted to withdraw from the mortgage proposition. Both executor and the president testified to the effect that the president said to the executor that the executive committee of the board had approved of the purchase, but that he wanted to get the directors together to have their approval also. It appeared as a fact that the written notice of the acceptance was not prepared or mailed until after the meeting of the directors. Held, that the question whether defendants had withdrawn the offer before the acceptance was a question for the jury and that a verdict and judgment for the defendants should be affirmed.
    Argued Oct. 20, 1908.
    Appeal, No. 55, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1908, No. 447, on verdict for defendants in case of East End Savings & Trust Company v. May Chadwick and E. W. McKee, executors and trustees under the last will of Samuel Chadwick, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, .Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract to sell a mortgage. Before Young, J.
    The facts are stated in the opinion of the Supreme' Court.
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were various instructions.

      W. T. Tredway, for appellant,
    cited: Scottish Rite, etc., Aid Assn. v. Union Trust Co., 195 Pa. 45; Winans v. Bunnell, 13 Pa. Superior Ct. 445; Loeb v. Mellinger, 12 Pa. Superior Ct. 592.

      John P. Hunter, of Lyon, Hunter & Burke, with him Sion B. Smith, for appellees,
    cited: Bosshardt & Wilson Co. v. Crescent Oil Co., Ltd., 171 Pa. 109; Vincent v. Woodland Oil Co., 165 Pa. 402; Lansdowne v. Light & Power Co., 206 Pa. 188; Hudson v. Buck, L. R. 7 Chan. Div. 683; Hussey v. Horne-Payne, L. R. 8 Chan. Div. 670; Corcoran v. White, 117 Ill. 118 (7 N. E. Repr. 525).
    January 4, 1909:
   Opinion by

Me. Justice Stewaet,

The action was for the recovery of fixed damages for an alleged breach of contract. The case afforded but narrow ground for controversy; it turned on a single question of fact, easy and simple of determination under the evidence. Which antedated the other, the withdrawal by defendants of their offer to sell, or the notice to the defendants of the plaintiff’s acceptance of their offer? If the latter was first in point of time, then the negotiation between the parties had ripened into a contract binding on the defendants, and the plaintiff would be entitled to recover; if the former, then no contract resulted and plaintiff was without cause of action. And this is exactly the way the case was submitted to the jury. The subject of negotiations between the parties was a $70,000 mortgage held by the estate of Samuel Chadwick, deceased. Mr. McKee, one of the executors, called on Mr. Rush, president of the trust company, on the evening of June 15, 1901, and proposed to sell the mortgage, stating the price demanded. Rush asked him to put the offer in writing so that he could submit it, using his own language, “to the Bank folks,” and promised an answer in a very few days. This was on Saturday. On the morning of the following Tuesday McKee called at the office of the company, and left with Rush a note addressed to him as president which, after indicating the mortgage and describing the property on which it was a lien, reads as follows: “The heirs wish to dispose of this mortgage and would be willing to give a bonus of $5,000 to the purchaser, or would take $65,000 for the $70,000 mortgage. — Please submit this to your Board, and let me know at your early convenience, and oblige,” etc. Between eight and nine o’clock of the following Thursday morning McKee called Rush over the phone, and a conversation ensued between them in regard to the matter. They do not entirely agree as to what was said by each. According to Rush’s version, McKee said, “ I want to withdraw the Chadwick mortgage proposition,” to this Rush says he replied, “You don’t mean it, Mr. McKee, our executive board has acted on this and we are going to take it, and I want to get some directors together and have the approval of the directors also.” After reciting some other parts of the conversation not necessary here to repeat, he says, “That is about the gist of the conversation; except that McKee said, 'Well, I’ll see you again, and I said, all right.”’ McKee testified that what he said to Rush was, “I call you up to say I call off that proposition I made you the other day in regard to the Chadwick mortgage;’’’that to this Rush replied, “Oh, you can’t do that, we are going to take it;” that he answered back, “Oh, yes, I can; you have made no answer to my offer up to this time. I have a right to recall the offer at any time before it is accepted by you; ” that Rush then said, “ Our committee has met and passed on it, and we are going to have a meeting of the board this afternoon, and I feel sure they will take it;” that to this McKee replied, “Well, Mr. Rush, I am sorry but you are too late, I have another party,” etc. In the course of the same morning McKee called at the office of the trust company. His conversation there was with the secretary, Rush not being in at the time. According to the testimony of this officer McKee expressed himself in regard to the withdrawal of the offer in very much the same language as Rush says he used when conversing with him over the phone; that is, that he said he came to withdraw his offer, and wanted to withdraw it. The variance is unimportant. Whether McKee said he “called off” the offer of the mortgage, or “wanted to call it off” to the ordinary mind the meaning would most likely be the same, denoting in either case a withdrawal. But however this may be, the jury either accepted the latter expression as the equivalent of the former, or else accepted McKee’s version of the conversation; for by their verdict they found that in these conversations McKee had withdrawn his offer. Now what does the evidence show with respect to the acceptance of the offer by the plaintiff? The time of the acceptance is important only as it aids in determining when notice of the acceptance was given the defendants; for until such notice was given, defendants were free to withdraw their offer if they so chose. If acceptance came only with the approval of the members of the board who were called together in the afternoon to consider the offer, then it necessarily follows that defendants’ withdrawal of their offer preceded their receipt of notice of acceptance. It is a fact in the case that the written notice of acceptance was not prepared or mailed until after the meeting of the directors in the afternoon. The contention of -appellant, however, is that the approval of the offer by the executive committee of the board was an acceptance of it, and that the fact of such approval was communicated to McKee by Rush in the conversation over the phone, before McKee had made any direct and unequivocal withdrawal. It is wholly immaterial whether this committee had or had not the power under the laws of the company to take final action with respect to matters of this kind. That its action in this particular case was not conclusive, and was not so regarded by Rush, appears from his own testimony. In his conversation with McKee he told him that notwithstanding the committee’s approval of the offer, he yet wanted the approval of the board of directors, and that he would call them together that afternoon for the purpose. How in the face of such testimony as this can it be contended for a moment, that the action of the committee was an acceptance by the plaintiff, or that Rush intended his statement of the fact to McKee as a notification of acceptance? It is this latter feature that has special significance. If Rush did not understand the action of the committee to be acceptance, — and we have his own word for it that he did not, — he could not have intended that McKee should understand from what he said about the committee that his offer had been accepted. Clearly, it was not a notice of the company’s acceptance, and was not so intended. There was nothing in the case which would have warranted a finding that there was an acceptance of the company within the understanding of any of the parties, until the afternoon of the day when the members of the board who were called together for the purpose gave their approval. This acceptance came too late; defendants’ offer had then been withdrawn.

It required much ingenuity to construct from this record a dozen assignments of error. That is the number here; we have carefully examined them all, and each has been sufficiently answered in what we have said. Special separate consideration is unnecessary. The case turned upon questions of fact, and these were submitted to the jury in a very careful charge, free of all error. The assignments are overruled.

Judgment affirmed.


text:
    Commonwealth v. Samuel Black Company, Appellant.

      Taxation — Mercantile tax — Corporation—Real estate broker — Acts of May 15, 1850, P. L. 772, June 7, 1901, P. L. 534, and April 14, 1905, P. L. 161 — Constitutional law — Statutes—Amendments.
    1. Under the Act of April 14,1905, P. L. 161, a corporation engaged in the business of a real estate broker must pay a license tax or fee to the commonwealth.
    2. The Act of April 14,1905, P. L. 161, does not violate sec. 3 of art. Ill of the constitution, relating to the title of statutes, nor sec. 6 of art. Ill of the constitution, relating to amendments.
    3. The act of April 14,1905, applies an established system of procedure to a new class of cases by a general reference to existing laws.
    Argued Oct. 20, 1908.
    Appeal, No. 19, Oct. T., 1908, by defendant, from judgment of the Superior Court, April T., 1907, No. 103, by defendant, affirming judgment of O. P. No. 3, Allegheny Co., Nov. T., 1906, No. 503, for plaintiff on case stated in suit of Commonwealth v. Samuel W. Black Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court.
    The opinion of the court of common pleas by Evans, J., was as follows:
    This case comes before the court as a case stated in the nature of a special verdict. The defendant is a corporation of the state of Pennsylvania, organized for the purpose of “carrying on the general business of real estate agent,” and is doing business in the city of Pittsburg in the county of Allegheny. On April 25, 1906, the mercantile appraiser of Allegheny county rated the said defendant corporation as “real estate broker” and appraised its receipts at $32,000 per annum and assessed thereon a license tax for the year commencing June 1, 1906, of $961.50, being three per cent of said appraisement with the legal fees added. The amount of the appraisement is agreed to as correct, but the defendant disputes its liability to be rated, assessed and taxed as a real estate broker. “It is agreed that this case be decided as though it were before the court on an appeal from the rating and assessment of the mercantile appraiser; the commonwealth expressly waiving, for the purposes of this case, any appeal on the part of the defendant company from the said rating and assessment.”
    The Act of April 14, 1905, P. L. 161, entitled, “An act to amend an act entitled ' an act to amend the seventh section of an act, entitled “ a supplement to an act, entitled ' an act to create a sinking fund and to provide for the gradual and certain extinguishment of the debt of the Commonwealth’ and to authorize a loan,” approved the fifteenth day of May Anno Domini, one thousand eight hundred and fifty, relieving stockbrokers, bill brokers and exchange brokers from the provisions of said act,’ approved the seventh day of June, one thousand nine hundred and one, by extending the provisions of said act to all merchandise brokers and real estate brokers, whether persons, firms or corporations,” after quoting the seventh section of the Act of May 15, 1850, P. L. 772, as amended by the Act of June 7, 1901, P. L. 534, for amendment, provides: “Section 7. That hereafter all merchandise brokers and real estate brokers, whether persons, firms or corporations in each and every city and county of this commonwealth shall be required to pay annually to the use of the commonwealth for his, their or its respective commissions or licenses granted in pursuance of the several acts of assembly now in force relating to the same, upon his, their or its annual receipts from commissions, discounts, abatements, allowances, or other similar means in the transaction of said business three per centum.” Prior to the passage of the act of 1905 it is admitted there was no liability on the part of a corporation engaged in business of a real estate broker to pay a license tax or fee, and unless the act of 1905 imposes that tax, the judgment in this case must be for the defendant.
    The language of the act of 1850, namely, “all merchandise brokers and real estate brokers, ” taken by itself is unquestionably as broad as the language of the act of 1905, namely, “all merchandise brokers and real estate brokers, whether persons, firms or corporations;” but in ascertaining the question whether the act was intended to extend the class of persons required to pay a license fee or merely to change the mode of arriving at the amount of the fee, the conclusion reached by the court in the case of Commonwealth v. Trust Company, 211 Pa. 51, is the natural one, namely, that the expression “all merchandise brokers and real estate brokers” meant all merchandise brokers and real estate brokers which by existing laws were required to take out a license shall thereafter pay the fee prescribed. But a careful reading of the opinion of the court in that case is convincing that if the language of the act of 1850 had been the language of the act of 1905, the conclusion would have been different. Unquestionably, when the legislature provided that “all merchandise brokers and real estate brokers, whether persons, firms or corporations,” it intended by express terms to include corporations in the class that was required to pay a license fee to do business. And this is particularly true when we consider that the act of 1905 was passed immediately following the decision of the court in Commonwealth v. Trust Company, 211 Pa. 51. In connection with this it must be borne in mind that the act of 1905 is an amendment to the act of 1850 as amended by the act of 1901, and therefore the act of 1905 is now sec. 7 of the act of 1850; that the act of 1850 is a supplement to the Act of April 10, 1849, P. L. 570, which was itself an amendment to the act of May 27, 1841, and therefore the act of 1850, as amended by the acts of 1901 and 1905, is incorporated into and is a part of the act of 1841.
    But it is claimed by the defendant that even if the fair interpretation of the act of 1905 does include corporations doing a real estate business, the act is unconstitutional for the reason that it offends against sec. 3, art. Ill, and sec. 6, art. Ill, of the constitution of 1874. It is claimed that the title is misleading in that it is an amendment to an act to relieve stockbrokers, bill brokers and exchange brokers from the provisions of the act of 1850. By the wise provision of the constitution of 1874 all amendments to existing acts of assembly must be complete in themselves, and the act of 1901 enacts the seventh section of the act of 1850 as it is intended to be after amended by that act. Now the act of 1905 amends the provisions of the act of 1901, it does not amend its title; and when one reads the title of the act of 1905 in view of the provisions of the act of 1901, it is perfectly clear. To any man of ordinary intelligence on reading the title to the act of 1905 he will interpret it to mean an act to amend the seventh section of the act of 1850 as amended by the act of 1901; and taking that meaning of the title of the act of 1905 it is perfectly clear. Neither does it offend against sec. 6 of art. Ill of the constitution; and we need only cite the opinion of the Supreme Court in the case of Smith Woolen Machinery Co. v. Browne, 206 Pa. 543: “The constitutional. objection that the act trangresses the prohibitions of sec. 6, art. Ill, cannot be sustained. Section 4 of the act provides that ‘proceedings-to enforce the collection of claims shall be as is now provided by law in case of mechanics’ liens,’ except that in certain cases publication is required in addition to posting on the premises. And this is not a violation of the letter or spirit of that section of the constitution which has reference to express amendments only. When there is an established system of procedure in certain cases, whether it be by common law or statute or joint operation of both, a new act applying such system to a new class of cases by general reference to it, is not a violation of sec. 6, art. Ill, although it may operate to some extent as an extension of a previous statute;” citing In re Greenfield Avenue, 191 Pa. 290. The act of 1905 clearly applies an established system of procedure to a new class of cases by a general reference to existing laws.
    We are of opinion that on the case stated judgment should be entered for the plaintiff with costs. To which conclusion defendant excepts. Exception allowed and bill sealed.
    The opinion of the Superior Court was as follows:
    Per Curiam. The judgment is affirmed upon the opinion of the learned judge of the common pleas.

      Error assigned was the judgment of the Superior Court.

      Watson B. Adair, for appellant.

      Ira J. Williams, J. M. Magee, Donald Thompson, George H. Calvert and M. Hampton Todd, attorney general, for appellee, were not heard.
    January 4, 1909:
   Per Curiam,

The judgment is affirmed on the opinions of the common pleas and Superior Court.


author: Mr. Justice Fell,

text:
    Wettengel, Appellant, v. Allegheny County Light Company.

      Electric light companies — Right to extend wires over street — Equity—Injunction — Corporation.
    1. An electric light company has by virtue of its charter privilege and municipal consent the right to extend its wires across a street, and any interference with the safe and convenient use of its wires is an encroachment upon a public right that is paramount to any right in the abutting owners to extend wires over the same street.
    2. Where a wire maintained by an individual in a street interferes with and endangers the wires of an electric light company engaged in furnishing electric light to the public the individual will be enjoined from maintaining the wire.
    Argued Oct. 20, 1908.
    Appeal, No. 62, Oct. T., 1908, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., April T., 1906, No. 1,252, on bill in equity in case of William F. Wettengel and Frank L. Wettengel, trading as Wettengel Brothers, v. Allegheny County Light Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Shafer, J., filed the following opinion.
    This bill is for an injunction to restrain the defendants from cutting and destroying a wire stretched across a street in the nineteenth ward of the city of Pittsburg by the plaintiffs, for the purpose of conducting electricity. A cross bill was thereupon filed by the defendants, praying for an injunction to restrain the plaintiffs in the original bill from maintaining any wires on any highways of the city of Pittsburg, above, below or near the wires of the light company, and to require the removal of wires already put up.
    FINDINGS OF FACT.
    1. The Allegheny County Light Company, the defendant, is a corporation of the state of Pennsylvania engaged in manufacturing and supplying electricity to the public, and is authorized by law to maintain poles and wires upon the public highways.
    2. By an ordinance of the city of Pittsburg passed in the year 1881 the defendant company is authorized to erect and maintain poles and wires for the purpose of supplying electricity to the public, on any of the streets, lanes and alleys of the city of.Pittsburg.
    3. The plaintiffs in the original bill are the owners of a small plant for producing light by means of electricity. Before the time of the grievances complained of in the bill they had obtained the permission of the respective owners of the properties on opposite sides of Kirkwood street in the nineteenth ward of the city of Pittsburg, to stretch a wire directly across the street between these two opposite properties, attached to the houses on each side of the street, for the purpose of conveying electricity to persons residing on the other side of Kirkwood street from their electric plant, and in pursuance of this permission arid license they had stretched such a wire and were using it for the conveyance of electricity. The wire was at such a height above the ground that it could not interfere with any use of the street for vehicles.
    4. The defendant company had a wire or wires strung longitudinally on Kirkwood street, whether put up before or after the wire of the complainants does not seem to be material. The defendant company on one or more occasions cut the wire maintained across the street by complainants, and this bill was filed to prevent a threatened cutting of the wire by the defendant company, which thereupon filed its cross bill for the removal of the wire as a nuisance.
    5. The defendant company has two wires, as we understand it, on Kirkwood street, running along one side of the street, at a considerable distance one above the other, and the wire of the complainants passes across the street between them as above stated, so that one wire of the light company is above and the other is below that of the complainants. It is claimed by the light company that there is danger to the public and to those who use the electric light from the possible sagging or breaking of any of these wires so as to bring them into contact. We find the fact to be that if the upper wire of the light company, should fall on that of the plaintiffs, or if that of the plaintiffs should fall on the lower wire of the light company, some damage would be done to the light company’s wires by the contact, and there would be great danger to the persons using the electricity supplied by either party, and that the maintenance of the wire across the street by the plaintiffs interferes in some measure with the use of the street by the light company for the purpose of conducting electricity, and requires of it a closer inspection of its wires than would otherwise be sufficient, and therefore an additional expense.
    CONCLUSIONS OF LAW.
    1. A wire stretched across the street by the two opposite owners or by their licenses is not necessarily a nuisance, but may be or become such according to circumstances. The owners of the opposite lots are presumed to own each to the middle of the street, and may each use the street for any purpose that does not interfere with the public user. .Their use, however, must be completely subordinate to that of the public. While the wire complained of in this case has not been shown to interfere with the ordinary use of the street by the public, it does interfere in some measure, as has been found, with the use of the street by the light company, which is a public user. The user by the light company is concurrent with that of the public who use the street for passage of vehicles and foot passengers and with other electric and telegraph companies who may have a right similar to their own to use the street. It is not, however, concurrent with, but is superior to, that of the owners of the soil over which the street passes, and if the user attempted to be made by those owners interferes in any degree with a public user it will constitute a nuisance.
    2. To constitute an interference with the public user of the street by the light company, it is not necessary that the wire complained of should be in contact with those of the light company or physically obstruct the wires or poles of that company. We are of opinion that if its existence endangers wires of the light company to any appreciable extent, it must be deemed to be a nuisance.
    3. The light company being specially injured by the maintenance of the wire of the complainants, being in fact the only party who is injured thereby, has standing to maintain the bill for its removal.
    It is therefore ordered that the bill of the complainants be dismissed, and that upon the cross bill of the defendants the complainants in the original bill be enjoined from maintaining the wire in question described in the bill, and that the defendants in the cross bill be ordered and directed to remove the wire in question within ten days after the entry of a final decree in this case.

      Error assigned was decree awarding an injunction on the cross bill.

      W. S. Miller, for appellants,
    cited: People’s Nat. Gas Co. v. Pittsburg, 1 Pa. C. C. Rep. 311; American Union Telegraph Co. v. Town of Harrison, 31 N. J. Eq. 627; Wandsworth Board of Works v. United Telegraph Co., L. R. 13 Q. B. Div. 904; Finchley Elec. Light Co. v. Finchley Urban Dist. Council, 1 Chancery L. R. (1903) 437; Brigantine Borough v. Holland Trust Co., 37 Atl. Repr. 438; Coal Co. v. Mellon, 152 Pa. 286; Brown v. Radnor Twp. Electric Light Co., 208 Pa. 453; Wees v. Ry. Co., 54 W. Va. 421; R. R. Co. v. Prudden, 20 N. J. Eq. 530.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him Wm. M. Robinson, for appellee,
    cited: Fitzgerald v. Illuminating Co., 200 Pa. 540; Daltry v. Light, Heat & Power Co., 208 Pa. 403; Alexander v. Light Co., 209 Pa. 571; Crowe v. Light Co., 206 Pa. 374; Ry. & Illuminating Co. v. Foulds, 81 Ill. App. 322; Electric Co. v. Lawrence, 73 Pac. Repr. 39.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

The findings of fact and the conclusions of law, clearly and concisely stated by the learned judge of the common pleas, fully sustain the order dismissing the original bill and the decree entered on the cross bill. It is to be observed that the decree asked for by the cross bill is broader than the decree entered. The prayer of the bill is that the defendants be forever enjoined from constructing or maintaining any wires upon the highways of the city of Pittsburg, above or below or among any of the wires of the plaintiff. The decree made enjoins the defendants in the cross bill from maintaining the wire described in the findings of fact, and directs the removal of the same. The wire described in the findings of fact is one that passes across the street near the plaintiff’s wires, the maintenance of which interferes in some measure with the use of the street by the plaintiff, endangers the lives of its customers, imperils its property, and entails an additional expense for inspection. The right to maintain the wire in this place, and incidentally any wire in any place where it would interfere with the use of the street by the plaintiff or endanger its property or entail upon it additional expense, was the right adjudicated.

This was as far as the decree could properly go and, with this understanding of it, we affirm it. The plaintiff’s right was based on a public use of the street' by virtue of charter privilege and municipal consent, and any interference with the safe and convenient use of its wires was an encroachment upon a public right that was paramount to any right in the abutting owners. Its standing in equity to maintain its bill was that it sustained a material and specific injury different in kind from that sustained by the public at large. The broader question of the right of the defendant to maintain a wire across the street where it would neither interfere with nor endanger the public use of the street, if this is practicable, was not involved in the proceeding.

The decree is affirmed at the cost of the appellants.