text:
    Steamboat Co. versus Atkins & Co.
    1. Though a mere agent without interest, with whom a contract is made on behalf of another, cannot support an action thereon, yet when he has a beneficial interest in the performance of the contract or a special property in the subject-matter of the agreement he may support an action in his own name upon the contract.
    2. A. & Co., forwarding merchants of Philadelphia, paid freight from New York to Philadelphia on goods which were in transit from New York to Cincinnati, and they delivered the goods to the defendants, The Baltimore and Philadelphia Steamboat Company, to be conveyed to Baltimore and there delivered to The Cumberland Railroad Company for carriage to Cumberland, and there to be delivered to the agents of the plaintiffs for carriage in the line of their destination. Held, that A. & Co. could maintain assumpsit on the contract against the defendants for damage to the goods whilst under their charge, and. recover the entire amount of the loss for the benefit of themselves and the owners of the goods, especially as the latter were parties to the record and precluded from further claim.

      Error to the District Court, Philadelphia.

    This was an action of assumpsit by S. R. Keemle and II. E. Atkins, in business as Atkins & Co., for the use of John Beal and P. McArthur & Co., v. The Baltimore and Philadelphia Steamboat Company.
    The material question in the case was, whether the plaintiffs, Atkins & Co., had such an interest in the subject-matter of the suit, as entitled them to bring, the action m their own names, for their own use, and to the use of the owners of the goods having distinct claims.
    The legal plaintiffs, Atkins & Co., were in the forwarding business, their place of business being in Philadelphia. The owners of the goods, named as equitable plaintiffs, were merchants in Cincinnati, but not connected with each other in business or in the ownership of the goods in question. The defendants ran a line of barges and steamboats between Philadelphia and Baltimore.
    In the first count of the declaration it was alleged that the plaintiffs, Atkins & Co., at defendants’ special instance and request, caused to be delivered to the defendants, divers goods and merchandise, viz.: 2 boxes, marked, &e., to be carried by the defendants to the city of Baltimore, and to be delivered to the Cumberland Railroad Company at Baltimore. The breach alleged -was non-delivery.
    The second count was for the same subject-matter, counting against the defendants as common carriers. Negligence was alleged.
    The plea was non assumpsit, payment, and set-off, with leave, &c.
    The goods in question were received in Philadelphia, on 7th February, 1851, from the New Jersey Transportation Company, who carried between New York and Philadelphia, by Atkins & Co., who sent them to the wharf of the defendants, and got a receipt, by which it was acknowledged that the goods were received of Atkins & Co., and defendants, by their agent, promised to deliver them in good order to Cumberland Railroad .at Baltimore, to forward to Messrs. McKaig & Agnew, Cumberland. In the receipt dangers of the sea, fire, leakage, breakage, and the acts of Grod, were excepted.
    It appeared that the plaintiffs paid the freight on the goods in question from New York to Philadelphia, and that the defendants would have been paid their freight by the Baltimore Railroad Company at Baltimore, who would have collected it again at Cumberland from McKaig & Agnew, the agents of the plaintiffs for conveyance from Cumberland to Pittsburgh. The plaintiffs had ' no interest in the goods beyGnd transporting them. It was the practice of the plaintiffs to collect the freight at Pittsburgh from the captain of the steamboat to whom goods were delivered for conveyance down the Ohio, which are repaid by the owners of the goods on delivery.
    The goods were addressed to the respective vendees at Cincinnati, and thus addressed were severally delivered by the respective vendors to the New Jersey Transportation Company at New York; marked to be forwarded by “ O’Connor’s five day line;” this mark having reference to the general line of transportation west of Philadelphia.
    On the 7th of February, 1851, the defendants despatched the goods in a steam propeller, to be conveyed via the Chesapeake and Delaware Canal. On the passage down the Delaware, the steamboat encountered large quantities of floating ice, and when a few miles below New Castle, her progress was arrested. The action of the waves caused the ice to operate against its hull, openings were made in the sides, and it filled with water and sunk. The defence set up at the trial was two-fold: 1st, That the damage was the result of inevitable accident; and 2d, That it happened by reason of the perils of the navigation. It was further contended, that the plaintiffs, being mere transportation agents, had not sufficient interest in the goods to maintain the action; and that they could not in one action sue for the damage done to the goods of different parties, having no common interest.
    The judge charged the jury that the plaintiffs could maintain the action in their own name, and left the case to them on the question of negligence.
    Verdict was rendered for the plaintiffs for $>3651, the whole amount of the claim.
    It was assigned for error: 1. That the Court erred in charging that the plaintiffs had a sufficient property in the goods to maintain the action; 2. It was alleged that the plaintiffs could not recover in one action' for the goods belonging to the several .parties for whose use the action was brought, who had not a common interest in the property.

      Webster and Fallon, for plaintiffs in error.
    It was contended as follows:—
    The New Jersey Transportation Company having made the original contract with the shippers for the benefit of the consignees, were the agents of the consignees, the owners of the goods, and all other parties were merely intermediate agents or employees, to aid in carrying out the first engagement, but not bearing the relation to each other of consignor or owners of the goods and common carriers, nor liable to one another as persons would be who held to each other such relations. While these different carriers had charge of the goods, they held a certain control over them as against third persons and wrongdoers, hut the property in the goods still remained in the vendees. So soon as one carrier delivered the goods to another, his interest, whatever it might be, ceased—but the liability of the first carrier still remained. It was contended that, as the New Jersey Transportation Company made the original contract, any action brought should have been in their name.
    It was said that being an action of assumpsit, two things must concur to enable the plaintiffs, Atkins & Co., to maintain it in their own names, to wit, property in the goods, either general or special, and a promise express or implied.
    The goods in question were sold in New York to merchants living in Cincinnati, and in the regular course of business the title would by law vest in the vendee from the moment of delivery to the carrier, subject to the vendor’s right to stop them in transitu, in the event of the vendee becoming insolvent. This principle is grounded upon the fact, that the carrier is considered as the agent of the consignee, and delivery to an agent is delivery to the principal. It has been held that payment of the freight, by the consignor, can make no difference. (See 1 Saund. Pl. & Evid., p. 689, and cases there cited.) In Gunn v. Cantine, 10 Johns. 387, it was decided that a mere agent or attorney, having no beneficial interest in the contract, cannot maintain an action, in his own name, on a contract, although it was made with him. Reference was also made to Angell on Carriers, sec. 491; Ib. 492, 348; Story on Bailments, sec. 93.
    The question in respect to consignors and consignees of goods forwarded by one to the other, as to which is the proper party to bring suit for a loss of goods in the course of transportation, has caused discussion. By the delivery of goods to a carrier on behalf of the consignee and to be at his absolute disposal, the presumption is that he is the owner, and in the event of loss, he, the consignee, and not the consignor, must bring the action: Story on Bail. 497. Reference was also made to 5 Denio 497, Green v. Clark, and to the same case reported in 13 Barbour 57.

      Hirst and Dickerson, for defendants in error.
    The real owners of the goods might have maintained assumpsit; certainly they could have maintained case against the defendants. But the plaintiffs and the defendants were the contracting parties, the ownership of the goods being shown incidentally and for the purpose of describing them and fixing their value. Atkins & Co. were common carriers, and as such they had a property in'the goods; and having a special property in them, and there being a promise, either express or implied, they can maintain the action: Angell

      on Carriers, sec. 491—2; same point, 3 Camp. 320; 1 Nev. & Man. 420; Angell, sec. 493; 6 Howard 344; 6 Bin. 129. These cases show that the suit may be brought by the bailee or agent of the contracting party having a beneficial interest in the property, or by the principal himself: Story on Bailments, sec. 93.
    Some of the authorities cited on part of the plaintiff in error do not apply to the question existing here, but relate to the question of ownership as between vendor and vendee, consignor and consignee. It was not decided in Green v. Clark, 5 Denio and 13 Barbour, that the carrier could not maintain the action; but 1. That the owners might maintain an action in their own names; and 2. That a suit by the owners in which there was a verdict for the defendants, was a bar to a suit by the carrier; and it is there intimated by Justice Allen, that the contract is that created by the bill of lading, and reference must be had to it to determine with whom and for whose benefit it was made. The contracting parties are the proper parties to litigate, subject to the exception, arising from a superior equity, of allowing the principal to take the place off his agent, and to substitute himself as the contracting and therefore the litigant party.
   The opinion of the Court was delivered by

Knox, J.

The plaintiffs below, Atkins & Co., delivered to the plaintiff in error, the Baltimore Steamboat Company, certain goods, which they promised to deliver in good order to Cumberland Railroad Company at Baltimore, to forward to Messrs. McKaig & Agnew, Cumberland, who were agents of Atkins & Co.

The goods were damaged whilst in the custody of the steamboat company, by their negligence, as established by the verdict of the jury.

This action of assumpsit is brought by Atkins & Co., for the use of the legal owners of the goods, to recover the damages sustained; and whether their action can be sustained, as brought, is the only point properly raised by the record before us. To determine this question, we must first inquire into the manner in which Atkins & Co. became possessed of the goods, and the extent of their interest in them.

The equitable plaintiffs in the action, J. Beal and P. McArthur & Co., are merchants of Cincinnati, and purchased the goods in question in the city of New York. The vendors of the goods delivered them to the New Jersey Transportation Company, to be forwarded by that company to Philadelphia; and from thence to Cincinnati, the place of their destination, by O’Connor’s Five Day Line, which is represented in Philadelphia by Atkins & Co., the plaintiffs below.

When the goods arrived in Philadelphia, Atkins & Co. received them from the New Jersey Transportation Company, paying to that company their charges, and placed them in the hands of the defendants, without repayment, upon their agreement to deliver the goods in good order to the Baltimore Railroad Company, for the purpose of forwarding to Cincinnati, there to be redelivered to the agents of Atkins & Co.

By receiving the goods in Philadelphia, and paying the freight from New York, Atkins & Co. certainly obtained an interest in them, subject, of course, to the general property of the owner, but good as against any other person, and even superior to the general owner upon the question of possession until repayment.

If the defendants had complied with their contract, and delivered the goods to the Baltimore Railroad Company, they would again have been restored to the actual custody of the plaintiffs, through their agents at Cumberland, and by them forwarded to Pittsburgh, where, according to the evidence, upon delivery on board of- a steamboat, charges of every description would have been paid to the plaintiffs ; but from Philadelphia to Pittsburgh, they must be considered in the light of the principal carriers, using the defendants’ company and the Baltimore and Ohio Railroad Company as the means of transporting the goods from Philadelphia to Cumberland.

At the time of the injury, the interest of the plaintiffs, Atkins & Co., in the property was, first, to the extent of the advances made by them to the New Jersey Transportation Company; second, the right to receive the goods at Cumberland, and transport the same to Cincinnati, or at least, to Pittsburgh, and to retain the possession until all charges were paid. This interest gave to Atkins & Co. a special or qualified property in the subject-matter of their agreement with the Baltimore Steamboat Company; and, according to all the authorities, both in England and in this country, the action of assumpsit may be maintained in the name of one having such special property.

In general, a mere servant or agent with whom a contract is expressed to be made, on behalf of another, and -who has no direct beneficial interest in the transaction, cannot support an action thereon. But when an agent has any beneficial interest in the performance of the contract, as for commission, or a special property in the subject-matter of the agreement, he may support an action in his own name upon the contract, as in the case of a factor, or broker, or a warehouseman, or carrier, or a policy broker whose name is on the policy, or the captain of a ship, for freight: Grove v. Dubois, 1 T. R. 112; Atkyns v. Amber, 2 Esp. Rep. 493; Williams v. Millington, 1 Hen. Bl. 81; George v. Claggett, 7 Term Rep. 359; Johnson v. Hudson, 11 East 180; Sadler v. Leigh, 4 Camp. 195; Park on Ins. 403; Shields v. Davis, 6 Taunton 65; Brown v. Hodgson, 4 Taunton 189. There is nothing in the case’ of Green v. Clark, 5 Denio 497, to contravene the principles above stated. The agreement there was to deliver the property to the consignee, and no freight was to be paid by the consignor until the contract had been executed by a delivery of the property as directed. Consequently, there was neither property nor interest in the plaintiffs, who were merely acting as agents for the owners, and appeared as such upon the face of the contract.

The question as to the extent of the recovery, was not raised in the Court below; and if it had been, the defendants would not have profited by it. The whole damages were properly recoverable in this action, particularly as the owners of the general property were parties to the record, and are precluded from further claim.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Tibby Brothers Glass Company, Appellant, v. Farmers & Mechanics Bank of Sharpsburg, Pennsylvania.

      Banks and banking — Checks—Contractual relation — Payee—Drawee— Bight of action — Forged indorsement.

    In Pennsylvania, there is no contractual relation between the payee of an unaccepted check and the bank on which the cheek is drawn, and no action will lie by the payee in his own name against the bank although it has sufficient funds of the drawer at the time payment is refused.
    A check is neither a legal nor an equitable assignment or appropriation of a corresponding amount of the drawer’s funds in the hands of the drawee, and it gives the payee no right of action against the drawee, nor any valid claim to the funds of the drawer in his hands.
    Where a bank cashes, on forged indorsements, cheeks drawn on other banks in favor of one of its own depositors, and subsequently receives the amounts of such checks from the drawee banks, the depositor has no right of action against the bank to recover such moneys, as moneys received for the depositor’s benefit.
    Argued Nov. 13, 1907.
    Appeal, No. 199, Oot. T., 1907, by-plaintiff, from judgment of O. P. Ho. 3, Allegheny Co., May Term, 1905, Ho. 827, for defendant non obstante veredicto in case of Tibby Brothers Glass Company v. Farmers & Mechanics Bank of Sharpsburg, Pa.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover for moneys had and received for plaintiff’s use.
    Before Evans, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict for plaintiff for $5,618.51. On motion judgment was entered for defendant non obstante veredicto.

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

      William A. Sipe, with him Frank R. Agnew and R. P. Marshall, for appellant.
    The defendant bank acquired no title to the checks by the forged indorsements, and the plaintiff could have recovered them back in an action of trespass while they were in possession of the defendant: Ohitty on Bills & Notes, Am. ed. (1839), sec. 337 ; Graves v. Bank, 17 N. Y. 205 ; Spraights v. Hawley, 39 N. Y. 441 ; Indiana Nat. Bank v. Holtsclaw, 98 Ind. 85.
    The question of the plaintiff’s right to recover, under the facts of this case, do not appear to have ever been passed upon by the courts of last resort in Pennsylvania, but cases involving the same question have been passed upon by the courts of other states : Johnson v. Bank, 6 Hun (N. Y.), 124 ; Talbot v. Rochester Bank, 1 Hill (N. Y.), 295 ; Indiana Nat. Bank v. Holtsclaw, 98 Ind. 85 ; Shaffer v. McKee, 19 Ohio St. 526.
    Multiplicity of suits is never favored and should be avoided: Taylor v. Huber’s Executors, 13 Ohio St. 288 ; Shaffer v. McKee, 19 Ohio St. 526 ; Parsons on Bills & Notes, secs. 595, 600, 601 ; 1 Story’s Equity, sec. 593.

      George PL. CaVoert, of Rodgers, Blakeley cfi Cal/oert, with him Donald Thomyoson wadi. Ea/rle P. Carman, for appellee.
    There was no undertaking, express or implied, on the part of the appellee to pay the checks : Maginn v. Dollar Sav. Bank, 131 Pa. 962 ; First Nat. Bank v. Whitman, 94 U. S. 343 ; Clark v. Savings Bank, 31 Pa. Superior Ct. 647 ; Bank v. Millard, 77 U. S. 152 ; J. M. Houston Grocer Co. v. Farmers’ Bank of Mt. Vernon, 71 Mo. App. 132 ; First Nat. Bank v. Shoemaker, 117 Pa. 94 ; Furst v. B. & L. Assn., 128 Pa. 183 ; Bryan v. Bank, 205 Pa. 7.
    The appellant can have no right of action under the facts in this case against the bank for money had and received: Land Title & Trust Co. v. Bank, 196 Pa. 230 ; First Nat. Bank v. Whitman, 94 U. S. 343 ; Clark v. Savings Bank, 31 Pa. Superior Ct. 647 ; Grocer Co. v. Bank, 71 Mo. App. 132 ; Thomson v. Bank of British N. A., 82 N. Y. 1.
    Liability of appellee is to drawee banks only.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

The material facts in this case are admitted or established by the verdict of the jury, and, therefore, not in dispute.

The plaintiff company is engaged in the manufacture and sale of glassware in the borough of Sharpsburg, Pa., and the Farmers & Mechanics Bank, the defendant, is located and does a banking business in that borough. For some time prior to November 25, 1902, the plaintiff kept an account with the defendant, and in making a deposit of a check used a rubber stamp for indorsing it, the indorsement by the stamp being in the following form: Pay to the order of Farmers & Mechanics Bank of Sharpsburg, Pa. Tibby Brothers Glass Co.” This stamp was used only to indorse checks for deposit, and not for the cashing of checks.

The plaintiff company ceased to deposit with the defendant bank on or about November 25,1902, but before and after that date it drew checks on the bank. About the middle of September of that year the plaintiff employed a bookkeeper who continued in its employment until December 24, 1904, when he absconded. While the plaintiff was a depositor in the bank it was the duty of the bookkeeper to make up the deposits for the bank, and he was authorized to stamp the indorsement upon the back of the checks and deposit them with the bank to plaintiff’s credit. From April, 1903, to the time he left the service of the plaintiff company, the bookkeeper presented to the defendant bank several checks drawn to the order of the plaintiff by its customers and indorsed with the rubber stamp, and received the cash for the face of the checks without the knowledge, consent or authority of the plaintiff company, and without accounting to it for the proceeds of the checks. These checks were received by the plaintiff, the payee, and credited to the account of the several drawers. The defendant collected the checks through a clearinghouse, and had the amount thereof-at the date of the bringing of this suit. The plaintiff company presented the checks for payment to the defendant, and, payment being refused, it brought this action of assumpsit, basing its right to recover on an implied contract that the moneys held by the defendant bank were for the use of the plaintiff.

The case was submitted to the jury and a verdict was rendered for the plaintiff. The court, however, subsequently entered judgment non obstante veredicto for the defendant bank and the plaintiff has taken this appeal.

The plaintiff company contends that it sustained such relations to the defendant and to the moneys collected by the defendant on the checks as entitled it to recover. It raises no question of the acceptance of the checks by the drawee banks.

We think the plaintiff’s position is untenable, and that under the facts of the case the plaintiff cannot maintain this action against the defendant bank.

The checks in question were not drawn upon the defendant, but upon various other banks. The defendant simply cashed them on the forged indorsements of the payee’s name, paid the several amounts to the defaulting bookkeeper, and collected the amount of the checks through a clearing house.

In this state there is no contractual relation between the payee of an unaccepted check and the bank on which the check is drawn, and no action will lie by the payee in his own name against the bank although it has sufficient funds of the drawer at the time payment is refused: Saylor v. Bushong, 100 Pa. 23; First National Bank v. Shoemaker, 117 Pa. 94. A check is neither a legal nor an equitable assignment or appropriation of a corresponding amount of the drawer’s funds in the hands of the drawee, and it gives the payee no right of action against the drawee, nor any valid claim to the funds of the drawer in his hands: Harrisburg National Bank’s Appeal, 10 W. N. C. 41. The reason why the payee of a check cannot recover from the drawee bank is, as shown by the cases, that there is no privity of contract or other relations existing between the. payee and the bank which establishes an obligation to pay, or from which an assumption to pay arises. A check is only conditional payment until it is paid, and in the event of nonpayment the holder may resort to the original indebtedness : 2 Bolles on Modern Law of Banking, 600. Until, therefore, the check .has been presented to the bank and it has been accepted, which must now be in writing, there is no relation between the payee and the bank which establishes the former’s right to an action. The amount of the check on deposit with the bank continues to be the money of the drawer and subject to his check, and if on presentation of the check the bank refuses for any reason to accept and pay, the payee still has recourse to the drawer of the check for the amount of his indebtedness.

NTone of the checks in question, as we have seen, was drawn upon the defendant bank. It simply cashed the checks with the forged indorsements made by the bookkeeper and collected the money from the drawee banks. The action of the defendant in cashing the checks puts it upon no better ground than if it had been the drawee bank, and establishes no relations between it and the plaintiff company that would warrant the latter in maintaining an action for the recovery of the amount of the checks. A nondrawee bank is under no obligations whatever to pay a check, and it does so at its peril: 2 Bolles on Modern Law of Banking, 128, 129. The plaintiff’s contention is, however, that the defendant having received the money of the plaintiff company, due on the several checks drawn to its order by its customers, and the plaintiff having given credit to its customers for the amount of the checks, the defendant is liable in this action for money had and received for the use of the plaintiff. This contention wholly misapprehends the relations of the parties, as well as their rights and obligations arising out of the transaction. We may assume that the defendant bank' received the amounts of the several checks through a clearing house from the banks on which they were drawn. This fact, however, does not convict the defendant of having received the money of the plaintiff, or having received money for the use of the plaintiff. As we have already seen, if these checks had been presented to the drawee banks and the money had been paid on the forged indorsements and charged against the deposit account of the drawers, the plaintiff would have no right'of action against the drawee banks. And for the reason that the checks not having been accepted in writing there was no contractual relation or privity between the parties. The money paid on the checks would not be the money of the drawer of the checks; it would be the money of the banks which paid it. Such is the case here. If the defendant bank received the money on the checks from the drawee banks, the latter did not pay the money out of the deposits of the drawers of the checks, but out of their own money, and hence the money which the defendant received was not the money of the drawers of the checks nor was it the money of the plaintiff ; neither was it received for the use of the plaintiff.

The drawers of the checks and the payee were in no way affected by the payment of the amount of the checks by the drawee banks to the defendant bank on the forged indorsements. The deposits of the drawers on which they had drawn the checks were still their money, and the indebtedness of the drawers to the payee for which the checks were given still existed and warranted an action by the payee against his debtors, the drawers of the checks. The collection of the checks by the defendant bank from the drawee banks did not constitute a payment by the latter of the drawer’s checks, and hence left intact the drawers’ deposits, unaffected by the checks which they had drawn and delivered to the payee. The plaintiff’s right of action against the defendant, bank is not superior to its right of action against the drawee banks. The money paid the* defendant on the several checks was the money of the drawee banks in which neither the drawers of the checks nor the plaintiff had any interest, and having been paid on forged indorsements, it may be recovered from the defendant by the paying banks. The defendant, therefore, has received no money for or on account of the plaintiff company and for which in good conscience it should account to the plaintiff.

The fact, if it be a fact, that the bookkeeper entered a credit on the plaintiff’s books for the amount of the different checks does not affect the liability of the defendant in this action. The payment of these checks on the forged indorsements was not a payment to the plaintiff, the payee of the checks. So far as the plaintiff company is concerned, the checks are still unpaid, and it has a right of action against its customers for the indebtedness.

Under the facts of the case, we are of the opinion that the plaintiff has shown no right to maintain this action, and that the learned trial judge did not commit error in entering judgment in favor of the defendant bank.

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


text:
    Hawkins v. Pittsburg, Appellant.

      Municipalities — Highway—Road lato — Widening street — Relocation of street — Act of March 19, 1903, P. L. 35.
    An ordinance of the city of Pittsburg purporting to relocate an established alley, but having in fact the effect of widening the alley, is invalid. The city has no power to relocate a street, and if it intends to widen a street it must pursue the course prescribed by the Act of March 19, 1903, P. L. 35.
    Argued Nov. 13, 1907.
    Appeal, No. 206, Oct. T., 1907, l>y defendant, from decree of O. P. No. 3, Allegheny Co., May T., 1907, No. 583, on bill in equity in case of William G. Hawkins, Jr., v. City of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a city ordinance invalid.
    Evans, J., filed the following opinion :
    This cause came on to be heard on exceptions to the conclusions of law of the trial judge, which exceptions are, first, that the court erred in finding that the ordinance of the city of Pittsburg of July 1, 1903, is void, and, second, that the defendant is entitled to the relief prayed for.
    Yirgin Alley was a public thoroughfare of the city of Pitts-burg for very many years, extending from Grant street to Liberty avenue, and crossing on its way Smithfield and Wood streets. It was twenty feet wide, and lay midway between Fifth and Sixth avenues in the city. It was widened some years ago, from Liberty avenue to Smithfield street, to the width of forty-four feet, and on July 1, 1903, the councils of the city of Pittsburg passed an ordinance purporting to be an ordinance relocating Virgin alley, from Smithfield to Grant streets, by changing the northerly line so that the northerly line of said street should be removed twenty-four feet north and extend parallel with the present northerly line of said street.
    It is contended by the plaintiff that the city of Pittsburg has no power to relocate a street, or to locate a street that is already .opened and improved and used as a public highway by the inhabitants of the city.
    The Act of assembly of April 28, 1899, sec. 1, P. L. 100, provides that, “Every municipal corporation shall have the power to lay out, establish or re-establish grades, streets and alleys, or parts thereof, and to construct bridges, piers and abutments therefor, and sewers and drains in any street or alley, and through or on or over private property.”
    A municipal corporation is the creature of the legislature. Its powers are the powers that are expressly given to it by the legislature, and it possesses no powers except such as are so given or necessarily inferred because they are indispensable to the declared objects and purposes of the m unicipality.
    There is no power expressly given to the city of Pittsburg to relocate a street, and it is reasonably conclusive that if the legislature had considered that the power to relocate a street was necessary to the cities of this commonwealth, that power would have been expressly granted, because in the same section of the act the power to establish and re-establish the grades of streets is given. If the power to relocate a street were given, then it must necessarily follow that the act of relocation would annul and do away with the former location, as the re-establishment of the grade of a street repeals the former, and must of necessity repeal the former grade established. But this ordinance does not contemplate the doing away of the former location of Virgin alley. Virgin alley is established to-day as it has been for generations, an open, improved and traveled highway, unaffected, so far as the public is concerned, by the ordinance of July 1, 1908.

      The term “to lay out a street” is essentially a preliminary step to the establishing of a new highway: Foster v. City of Boston Park Commissioners, 133 Mass. 321. The natural and ordinary meaning of the phrase is to fix the boundaries and to establish the location of something that has not been fixed or established before. But, as we have said, Yirgin alley was an established street, graded, paved, curbed and used by the public for many, many years prior to the passage of this ordinance. In any aspect which we will view the term “ to lay out ” or “ to locate ” the purpose to be gained by the city in the passage of this ordinance is not to locate a new street or to relocate a street, but to widen an existing street. The purpose is to widen Yirgin alley, now Oliver avenue, to the width of forty-four feet. The city has this power given to it by the legislature, and there are only two ways by which a municipality may change the lines of an existing street, and that is by widening or straightening. This the city can do by passing a proper ordinance to widen Oliver avenue, but the passage of such an ordinance would be the taking of the plaintiff’s property, and the city would be compelled immediately to compensate the plaintiff in damages.
    And this brings us to a contemplation of the whole purpose and evil of this ordinance. The city is evidently not prepared at the present time to widen Oliver avenue, and it attempts by the passage of this ordinance to prevent any additional improvements being made upon the property, which lies between the proposed northerly line and the present northerly line of Oliver avenue pending the passage of an ordinance for such widening. As we have stated above, this street extends across some of the most prominent business thoroughfares of the city. The property taken from the plaintiff at the corner of Smithfield street and Oliver avenue is very valuable business property. If this ordinance be allowed to stand it ties up the property of the plaintiff for an indefinite period, prevents any improvements being made upon his property, interferes with the leasing of his property for any extended term, and is a serious cloud upon his title.
    It may be argued that all this would be true if the city were to locate a new street through a similar section of the city, but the location of a new street is a necessary preliminary step to its opening. Whether it be by provision in the same ordinance by which the street is opened, or by a separate ordinance first adopted, the lines of the street must be fixed, its location adopted by the city; in other words, the street must be laid out before it can be opened, because there is nothing on the ground by which the street boundaries may be fixed in the opening except by the ordinance of location. Such power is not essential to the widening of a street, and such power was not given to municipalities by the legislature. Therefore, it is a matter for consideration by the courts of the purpose of the legislation and the injury which it will entail to the plaintiff.
    Let the exceptions be dismissed.

      Error assigned was the decree in favor of the plaintiff.

      John D. Evans, with him W. B. Rodgers and A. If. Thompson, for appellant.
    The city of Pittsburg has power to lay out or locate streets : District of the City of Pittsburg, 2 W. & S. 320 ; Porbes Street, 70 Pa. 125 ; Bush v. City of McKeesport, 166 Pa. 57 ; Com. v. George, 148 Pa. 463 ; City of Philadelphia v. Tryon, 35 Pa. 401 ; City of Williamsport v. Commonwealth, 84 Pa. 487 ; White v. Borough of McKeesport, 101 Pa. 394.
    The councilmanic body is the sole judge as to the necessity and expediency of the exercise of the power granted to a municipality, and its decision is not reviewable by the courts: Waln’s Heirs v. Philadelphia, 99 Pa. 330 ; Oil City v. Oil City Boiler Works, 152 Pa. 348 ; Michener v. Philadelphia, 118 Pa. 535 ; Macy v. City of Indianapolis, 17 Ind. 267.
    Locating or relocating is damnum absque injuria : District of the City of Pittsburg, 2 W. & S. 320 ; Negley Avenue, 146 Pa. 456 ; McKeesport v. Bush, 166 Pa. 57 ; Volkmar Street, Philadelphia, 124 Pa. 320 ; Forbes Street, 70 Pa. 125 ; Act of May 16, 1891, section 12, P. L. 75.

      If. IF. Aoheson, Jr., of Pa,tier son, Sterrett c& Aeheson, with him Palzell, Fisher db Ilawhins, for appellee.
    Appellant has no power to relocate : Pennsylvania R. R. Co.’s Case, 213 Pa. 313; Foster v. Park Commissioners, 133 Mass. 321 ; McKay v. Water Co., 44 Pittsburg Leg. Journ. 406 ; In re Poughkeepsie Bridge Co., 108 N. Y. 483 ; Beck v. R. R. & Canal Co., 39 N. J. Law, 45 ; Philadelphia & Trenton R. R. Co., 6 Wharton, 25 ; Paul v. Carver, 24 Pa. 201 ; It re Callohill Street, 32 Pa. 361.
    January 6, 1908 :

   Opinion by

Mr. Justice Mestrezat,

The learned trial judge in the opinion filed by him, has fully vindicated the decree which he entered, and upon that opinion the decree is affirmed. ‘ .

There is another sufficient reason for sustaining the decree. The manifest purpose the city had in view in passing the ordinance was, as clearly disclosed in the ordinance itself, to ultimately widen Yirgin alley. It, therefore, should have enacted an ordinance for that purpose and should not have attempted to evade liability to injured property owners by passing an ordinance ostensibly for another purpose but in reality to widen the alley.

The ordinance in question enacts: That the northern building line of Yirgin alley, from Smithfield street to Grant street, be and the same is hereby relocated; ” and locates the line “ at a distance of 24 feet northwardly from the present north building line of Yirgin alley.” The intention of the ordinance is then declared in the following language : The intention of this ordinance is to relocate Yirgin alley, from Smithfield street to Grant street, to a width of forty-four feet by taking a strip of ground twenty-four feet in width from the properties on the northerly side of Yirgin alley.”

Yirgin alley is an old street, extending from Liberty avenue to Grant street and crossing Wood and Smithfield streets. By an ordinance, passed about six months prior to the ordinance in question, the city authorized the widening and opening of Yirgin alley from Liberty avenue to Smithfield street, and the assessment of damages caused by the grade of the street. Instead of extending this ordinance to that part of the alley between Smithfield and Grant streets, and thereby authorizing the widening of the alley, as was done in the part of it between Liberty avenue and Smithfield street, the city passed the ordinance in question which is entitled “ An ordinance relocating the northern building line of Virgin alley, from Smith-field street to Grant street.” As said by the learned trial judge in his opinion, “if this ordinance be allowed to stand it ties up the property of the plaintiff for an indefinite period, prevents any improvements being made upon his property, interferes with the leasing of his property for any extended term, and is a serious cloud upon his title.”

Notwithstanding the title of the ordinance, it is simply an ordinance for the widening of Virgin alley between Smith* field and Grant streets. The “ relocating the northern building line of Virgin alley ” is widening Virgin alley for the distance between the present and the proposed northern line. This difference is declared in the ordinance to be twenty-four feet, and the width of the alley is simply enlarged to that extent ; or the alley is widened, in the language of the ordinance itself, “ by taking a strip of ground twenty-four feet in width from the properties on the northern side of Virgin alley.” The alley remains as it has existed for many years, and it is not proposed in the ordinance to change its location or to vacate it. Its southern line is to remain as it ever has been, and the purpose of the ordinance is simply, as its title declares, to locate the northern line of the alley by a line parallel with and twenty-four feet distant from the present northern line of the alley. These are the facts of the case as declared by the ordinance itself. It is in effect, therefore, and may be said to be an ordinance to widen Virgin alley between Smithfield and Grant streets.

If the city desires to add this additional width to Virgin alley or to change and straighten the northern line of the alley,, the act of assembly prescribes the manner in which it must be done. This power is conferred upon the city by the Act of March 19, 1903, P. L. 35, 3 Purd. (13th ed.) 27M, which authorizes the city, in the manner therein pointed out, “to open, widen, straighten or extend streets or alleys, or parts thereof, within its limits, and to vacate streets or alleys, or parts thereof.” This is specific authority, conferred by an act of assembly, authorizing the city to do the act which the ordinance in question declares it intends to do, namely, to widen Virgin alley between Smithfield and Grant streets. The legislature having thus provided a method for adding an additional width to an existing alley, or for widening the alley, the method must be strictly pursued, as commanded by the act of March 21, 1806, 4 Sm. L. 326, sec. 13,1 Purd. (13th ed.) 271, which enacts that “ In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions oí the said acts shall be strictly pursued; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law, further than shall be necessary for carrying such act or acts into effect: ” White v. Borough of McKeesport, 101 Pa. 394.

It is clear from an examination of the legislation on the subject, that the legislature has made ample provision to enable the city to carry out the purpose it had in the enactment of this ordinance. The city, therefore, is not driven to invoke the aid of any implied powers, nor, as we have seen, can it invoke them so long as there is express statutory power authorizing it to accomplish its purpose. There is an abundance of legislation conferring ample power upon the city to locate, lay out and open streets; to widen, straighten, extend and vacate streets; and to grade, pave, curb, macadamize and otherwise improve streets. So long as this authority exists, so long must it be strictly pursued. Nor can the municipality evade a compliance with the method pointed out for exercising the authority. Whenever the municipality desires authority to act, it must proceed in the manner which the facts of the case require. Its council cannot escape the provisions of the statute or ignore the course of procedure directed by the statute by simply declaring in the ordinance a purpose other than the facts disclose. The facts must determine what method the city shall pursue to accomplish its purpose, and those facts requiring it to proceed in the manner provided in certain legislation, the provisions of the legislation will determine the course of procedure.

The assignments of error are overruled, and the decree of the court below is affirmed.


text:
    Lynch’s Estate.

      Deed — Consideration—Natural love and affection — Gift—Blood of the ancestor — Intestate law.

    A deed conveying valuable real estate from a mother to a daughter for the consideration of “one dollar (as well as in consideration of natural love and affection) ” is to be construed as a gift, and not as a bargain and sale; and if the daughter dies intestate the property will go to the next of kin on her mother's side to the exclusion of her father's relatives.
    Argued Nov. 13, 1907.
    Appeal, No. 208, Oct. T., 1907, by Orrin W. Lynch and John P. Escher, Executors, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 568, dismissing exceptions to report of auditor In re first and final account of Henry J. Lynch, Trustee for the Heirs of Susanna Lynch, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of auditor.
    From the record it appeared that by deed dated June 2, 1880, Ann Lynch conveyed a house and lot in the Ninth ward, Pittsburg, to her daughter, Susanna Lynch, the consideration expressed in the deed being “ the sum of one dollar (as well as in consideration of natural love and affection), lawful money of the United States, unto her well and truly paid.” Ann Lynch was the wife of William F. Lynch ; she died March 31, 1895. Her daughter, the grantee, Susanna Lynch, died July 19, 1898. At her death she owned two pieces of real estate, one in the Thirtieth ward of Pittsburg, which came to her from her father, and the other, the Ninth ward property, conveyed to her by her mother. Susanna died unmarried, intestate, and left no brothers or sisters or their descendants, but she did leave uncles and first cousins on her father’s side, children of her uncles, and second cousins on her mother’s side, children of Catherine Kelley, who was a daughter of Charles Kelley, brother of Ann Lynch, the grantor of the deed in question. After Susanna’s death the first cousins and second cousins united in a deed to Henry J. Lynch, authorizing him to manage and sell both properties and to distribute the proceeds to the parties as they appeared to be entitled under the intestate laws ol Pennsylvania. Henry J. Lynch sold the properties, and, dying before an account was filed, his executors filed such account, showing a balance as proceeds of the Ninth ward property of $9,227.31. George E. Alter, Esq., was appointed auditor to make the distribution among the parties entitled, and before him the first cousins (that is, appellants), claimed, as did the second cousins (that is, appellees). He held that the deed under consideration made Susanna Lynch a donee and not a purchaser, and distributed to the second cousins, who were of the blood of Ann Lynch, the grantor in the deed. On exceptions being filed the court below confirmed this report of the auditor, and from this order an appeal was taken.

      Error assigned was the decree of the court.

      William M. Hall, with him George G. Burgtoin and O. P. Metcalf, for appellants.
    The deed was one of bargain and sale : Groves v. Groves, 65 Ohio, 442 ; Brown v. Whaley, 58 Ohio, 654 ; Morris v. Ward, 36 N. Y. 587 ; Morris Canal & Banking Co. v. Matthiesen, 17 N. J. Eq. 385 ; Sharington v. Strotton, Plow. 298 ; Thatcher v. Omans, 20 Mass. 521 ; Claiborne v. Henderson, 3 Hen. & M. (Va.) 322 ; Guest v. Earley, 19 Mo. 147 ; Slifer v. Beates, 9 S. & R. 166.
    There is nothing in the idea that the $1.00 consideration is merely nominal: Clark v. Troy, 20 Cal. 219 ; Lawrence v. McCalmont, 43 U. S. 426 ; Carver v. Jackson, 29 U. S. 1 ; Brown v. Chambersburg Bank, 3 Pa. 187 ; Bell v. Scammon, 15 N. H. 381 ; Ocheltree v. McClung, 7 W. Va. 232 ; Maccubbin v. Cromwell, 7 Gill & J. 157 ; Jackson v. Alexander, 3 Johns. 484; see 3 Am. Dec. 517 ; Wood v. Chapin, 13 N. Y. 509 ; see 67 Am. Dec. 62 ; Okison v. Patterson, 1 W. & S. 395.
    It has been expressly decided by this Supreme Court of Pennsylvania in two cases that you cannot change the effect of a deed of purchase into a deed of gift: Wilt v. Franklin, 1 Binn. 502 ; Allison v. Kurtz, 2 Watts, 185.
    The act of May 28, 1715, gives a statutory effect to a deed of bargain and .sale, making it inconsistent with the statute to hold such a deed a deed of gift: Seitzinger v. Weaver, 1 Rawle, 377.
    There are three cases which touch our case very closely. These are as follows: Groves v. Groves, 65 Ohio, 442 (62 N. E. Repr. 1044); Brown v. Whaley, 58 Ohio, 654 (49 27. N. Repr. 479); Morris v. Ward, 36 N. Y. 587.

      A. V. D. Waiter son, with him A. B. Reid, for appellees.
    A devisee whose estate is a mere gratuity is not a purchaser : Hartman’s Estate, 4 Rawle, 39 ; Clepper v. Livergood, 5 Watts, 113 ; Lewis v. Gorman, 5 Pa. 164 ; Parr v. Bankhart, 22 Pa. 291 ; Lawrence v. McCalmont, 43 U. S. 426 ; Ake v. Mason, 101 Pa. 17.
    It is well settled in Pennsylvania that no form of words is required to make a valid conveyance of lands. The intention is the matter looked at: Krider v. Lafferty, 1 Whart. 303 ; Hayes v. Kershow, 1 Sandf. Ch. 258 ; Kitzman v. Spencer, 18 Pa. C. C. Rep. 60.
    A consideration of natural love and affection raises a presumption of an advancement: Lott v. Kaiser, 61 Texas, 665 ; Kingsbury’s Appeal, 44 Pa. 460 ; Sanford v. Sanford, 61 Barb. 293.
    January 6, 1908 :
   Opinion by

Mr. Justice Mestrezat,

The opinion of the learned auditor, confirmed by the court below, correctly disposes of the question at issue in this case. In his opinion, the auditor has referred to numerous cases, clearly analogous in principle, which sustain the conclusion that the deed in question is supported by simply a good, and not a valuable, consideration. In view of the consideration named in the deed and all the circumstances surrounding the transfer of the property from the mother to the daughter, it is manifest that -the conveyance of the real estate, embraced in the deed, was intended to be simply a gift, and not a bargain and sale for value.

Bridget Kelley at one time owned the land in question. She conveyed it to Ann Lynch, her daughter, in consideration of “ natural love and affection and the sum of one dollar.” Bridget Kelley had another daughter and she conveyed to her another piece of real estate in which the consideration was “ one dollar and natural love and affection.” In transferring the real estate given her by her mother, Ann Lynch observed the same form and named the same consideration in her deed of June 2, 1880, in which she conveyed the real estate which she had received from her mother to her daughter, Susanna Lynch, for the- consideration of “ one dollar (as well as in consideration of natural love and affection.) ” The title, therefore, to the premises, the proceeds of which are in dispute here, came from Bridget Kelley, the propositus, and was transferred from mother to daughter in each instance by a deed, in the usual form, and for a consideration of $1.00 and natural love and affection.

Under the admitted facts in the case, therefore, it is clear that lo-ve and affection rather than the $1.00 consideration were regarded as the real and actual consideration in the transfer of the property in both instances, from Bridget Kelley, to Ann Lynch and from the latter to Susanna Lynch. The property in question is in the city of Pittsburg and is quite valuable. Hence, in view of the consideration named in the deed, it must be regarded as having . been conveyed to Susanna Lynch simply for a good and not a valuable consideration. The sum named in the deed as having been received is so insignificant and infinitesimally small when compared with the real value of the property as to show conclusively that it was named in the deed merely as a matter of form by the conveyancer, he entertaining the mistaken notion that some consideration beyond that of love and affection was necessary to give the deed validity and transfer the title. It is a matter of common knowledge, that when parents, in their lifetime, give their children real estate, it is the practice to name in the deed a nominal consideration in addition to that of love and affection.

Such transfers of property are never regarded as a bargain and sale, although the deed contains the usual covenants and warranty employed in deeds conveying a fee simple title. So universal is the practice in this respect that the grantee in such deed is always considered as having received the property as a gift. As well said by Maynard, J., in Ten Eyck v. Witbeck, 135 N. Y. 10, 31 Am. St. Rep. 809, in considering a deed with a nominal consideration (p. 811): “We think it would be a perversion of language to say that a father who had conveyed to a daughter property of the value of twenty thousand dollars for no greater sum than ten dollars paid had sold the property to his child, or that she bought it of him. The transfer would be recognized by the popular as well as the judicial mind as possessing all the essential qualities of a gift. It has been frequently so held.” (Citing numerous cases, among which is Morris v. Ward, 36 N. Y. 587.) The same view was taken by the supreme court of California in the leading case of Peck v. Vandenberg, 30 Cal. 11, wherein the consideration recited in a deed from a mother to her eight children Avas natural love and affection and the sum of $5.00. In Salmon v. Wilson, 41 Cal. 595, a grantor conveyed to his children an undivided interest in a large and valuable ranch, the consideration named being love and affection and $461. It was held that the deed itself, taken in connection Avith all the circumstances, the relation of the parties and the small sum named as the consideration, showed the transaction was a gift and not a sale and purchase. Mr. Justice Crockett, delivering the opinion of the court, said: “ If the recital of the paltry money consideration, so insignificant as compared with the value of the estate, is to convert the transaction into one of bargain and sale, no reason is perceived Avhy the same result would not have ensued if the consideration had been one dollar or one cent for each of the children, instead of fifty-eight dollars. The disproportion between the price named and the value of the estate Avould have only been a trifle greater in one case than in the other; but in either case, it is so enormously large as clearly to indicate that the money consideration would not in fact enter into the transaction as one of its material elements. It was clearly the intentiou of Bojorgues to donate this large and valuable estate to his children in equal proportions and not to sell it to them. ... If we should hold that the insertion in the deed <?f an inconsiderable money consideration by the scrivener who drew it up had the effect to convert the transaction into one of sale, I am convinced we would give an effect to this deed which never entered into the minds of the parties to it at the time it Avas made.” To the same effect is the recent case of Sires v. Sires, 43 S. C. 266. In that case the consideration named Avas $3.00, and the court held that it was merely nominal and formal and that the property was therefore conveyed as a gift. The public press has just announced that a gentleman of Philadelphia has made a Christmas present to his grandson by conveying to him a manufacturing plant located in that city worth $300,000 and that the consideration named in the deed is one dollar and natural love and affection.” Can there be any doubt as to the character of this transaction from the facts disclosed by the deed and the known circumstances, and that it is purely a gift and not a bargain and sale ? The intention of the parties is so.manifest and property rights so imperatively demand that it be recognized and enforced, that a court would stultify itself were it to hold the transfer to be a bargain and sale.

Long prior to the act of April 8,1833, which prohibits land passing to others than those of the blood of the ancestor, the same policy or principle was recognized and enforced by legislation in this state. It seems to have been the policy of our state from the very beginning, and it is so recognized in our decisions. In Bevan v. Taylor, 7 S. & R. 397, it is said by Mr. Justice Duncan in delivering the opinion (p. 404): “ Under the acts of 1794 and 1797, it was the intention of the legislature, in every grade of descent, to exclude from the inheritance all who were not of the blood of the ancestor from whom the estate came, and to preserve it in the line in which it came ; in other words, that the ancestor is the commune vinculum, whether the estate ascends or descends.” And in Lewis v. Gorman, 5 Pa. 164, it is said (p. 165): “ Almost from the beginning, one great object of the framers of our system of descents has been to preserve real property in the line of those who originally acquired it.”

Such is, and unquestionably has been the policy of our state; and where anyone claims title to real estate through one who held by descent, gift or devise, he must be able to point to the fact that the blood of the ancestor flows in his veins. To carry .out this policy, we have had frequent acts of the legislature, the last one, which is substantially a re-enactment of the act of 1833, is the Act of May 25, 1887, P. L. 261, 2 Purd. (13th ed.)2000, the second section of which prohibits any person from taking an estate “ who is not of the blood of the ancestors or other relations from whom any real estate descended, or by whom it was given or devised to the intestate.” To hold that a deed from a parent to a child naming a consideration of love and affection and $1.00 impressed upon it a grant of bargain and sale would be contrary to the popular understanding of the effect of such a conveyance, and would in every case defeat the manifest intention of the parties. In construing such a deed, regard must be had not only to the deed itself, but to the consideration, the circumstances attending the transfer, and the popular understanding as to the character of the transaction. This will effect the intention of the parties and, the language of the deed disclosing no different purpose, it is the duty of the court to so construe it.

If Ann Lynch had inserted in this deed a consideration of natural love and affection only, there could be no question that it would have transferred to Susanna the real estate as a gift. What reason is there to support the contention that the deed is one of bargain and sale because the nominal sum of $1.00 was named as a part of the consideration? Would any person believe for a moment that the money consideration named was the actual or true consideration intended by the parties for property worth several thousand dollars? Reason and common sense are supposed to be the bases of judicial determination, and hence we must hold that Susanna Lynch acquired the property, the proceeds of which are in dispute, from her mother as a gift, within the meaning of the act of assembly which denies the right of any person not of the blood of the ancestor to take any estate therein.

The learned auditor, whose report was confirmed by the court, fully vindicates his conclusion in the opinion filed by him.

The decree of the court below is affirmed.


text:
    Wisner, Appellant, v. The First National Bank of Gallitzin.

      Banks and banking — Checks—Return of check within twenty-four hours —Protest—Notary public — Negotiable instruments Act of May 16, 1901, sec. 137, P. L. 194.
    Under sec. 137 of negotiable instruments Act of May 16, 1901, P. L. 194, the failure or neglect of a drawee to whom a bill is delivered for acceptance to return the bill, accepted or nonaccepted, to the holder within twenty-four hours after delivery, makes the drawee an acceptor of the bill. As sec. 185 of the act declares in express terms that a check is a bill of exchange, the provisions of sec. 137 apply to a check.
    The word “refuses” in the act does not mean tortious refusal, nor does it imply that a previous demand for the return of the check to the holder shall be made. The word is to be construed so as to cover a failure or neglect to return the check.
    The act of the bank in delivering the check to a notary public for protest is not a compliance with sec. 137 of the act, and does not relieve the bank from liability for failure to return the check within twenty-four hours.
    While protesting a bill of exchange or check is permissible it is not mandatory under the negotiable instruments act, as sec. 118 specifically provides that “protest is not required, except in case of foreign bills of exchange,” and sec. 152 declares that “where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary.
    Argued Oct. 16, 1907.
    Appeal, No. 107, Oct. T., 1907, by 'plaintiff, from judgment of O. P. Cambria Co., June T., 1905, No. 438, for defendant non obstante veredicto in case of A. L. Wisner, trading as A. L. Wisner & Co., v. The First National Bank of Gallitzin.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for loss alleged to have been caused by failure to return checks.
    Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.

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

      O. II. Hewitt, with him A. V. Barker, Fred D. Barker and S. G. Herriman, for appellant.
    Prior to the adoption of the statute an acceptance was implied from various acts and circumstances. The holding of a bill for an unreasonable time without acceptance or refusal implied an acceptance, and more than twenty-four hours was considered an unreasonable time : Northumberland Bank v. McMichael, 106 Pa. 460.
    The plaintiff in this case did not rely on an implied acceptance of the bill or on a conversion. The plaintiff relied on the statute, and evidence that the checks sued on had been placed in the hands of a notary, or that defendant had notified the sending bank of nonacceptance, was therefore utterly immaterial. No evidence of nonacceptance was material, because the statute says that detention beyond twenty-four hours shall be an acceptance : Com. v. Pratt, 132 Mass. 246 ; Leonard v. Grant, 5 Fed. Repr. 11.

      John F. Evans, with him George W. Flowers and Charles 8. Evans, for appellee.
    Section 137 of the Act of 1901, P. L. 194, does not apply to a check presented for payment.
    We urge this position for the following reasons :
    1. Section 137 of the act of 1901 is penal in its nature, and must be strictly construed.
    2. The section refers only to a bill delivered for acceptance: Westberg v. Chicago Lumber & Coal Co., 117 Wis. 589 (94 N. W. Repr. 572).
    The word “ refusal ” in section 137 of the Act of May 16, 1901, P. L. 194, means a tortious or wrongful refusal to return, amounting to a conversion of the bill: Westberg v. Chicago Lumber & Coal Co., 117 Wis. 589 (94 N. W. Repr. 572); Matteson v. Moulton, 11 Hun (N. Y.), 268, affirmed in 79 N. Y. 627 ; Dickinson v. Marsh, 57 Mo. App. 566 ; Rusch v. Duff, 35 Mo. 312.
    A notary public, in protesting commercial paper and giving notice of dishonor, is as well the agent of the holder as of the collecting bank : Bellemire v. U. S. Bank, 1 Miles, 173 ; Bellemire v. U. S. Bank, 4 Whart. 105 ; Randolph on Commercial Paper, sec. 1237.
    January 6, 1908 :
   Opinion by

Mr. Justice Mestrezat,

Samuel R. Bullock drew six checks on the defendant bank in favor of Charles W. Gallaer, Jr., who deposited them in the plaintiff bank in New York City, which credited them to his account in that bank. The first check is dated December 27, 1904, and the last, January 3, 1905. The plaintiff sent these checks to the defendant bank, two of them through the First National Bank of Altoona, Pa., and the remaining four through the Farmers’ Deposit National Bank of Pittsburg. On the day they were received, the defendant bank handed the several checks to a notary public, usually employed by it, for the purpose of protest, and he held the checks without protesting them or giving notice of dishonor. On January 9, 1905, some days after the checks had been delivered to the notary, the cashier of the Altoona bank went to Gallitzin, obtained the checks from the notary, took them to the Gallitzin bank, whose cashier gave the cashier of the Altoona bank a letter to a notary public in Altoona inclosing five of the Bullock checks with the request that they be protested for want of sufficient funds in the Gallitzin bank to pay them. One of the two checks sent by the Altoona bank to the defendant bank was returned to the former bank on the same day. It was conceded by the plaintiff on the trial below that there could be no recovery for this check. The other check sent by the Altoona bank and the four checks sent by the Pittsburg bank to the defendant bank were not returned by the defendant to the collecting banks for more than two days after their delivery to the latter bank. With the one exception, the Bullock checks were not returned to the defendant bank by the notary public to whom they were delivered for protest within twenty-four hours after their receipt from the transmitting bank. The checks, therefore, with the one exception were not returned to the collecting banks within twenty-four hours after their delivery to the drawee bank, the defendant in this action.

This is an action of assumpsit brought by the plaintiff, the holder of the check's, to recover the amount of the checks on the ground that the drawee bank, the defendant, bad accepted the checks by its refusal and failure to return thetn within twenty-four hours after their receipt, as required by sec. 137 of the Act of assembly of May 16,1901, P. L. 194, 3 Purd. (13th ed.) 3250, known as the negotiable instruments law. The defendant claims that it is relieved from liability on the checks because it had refused to accept them and had, on the day of their receipt, delivered them to a notary public for protest and dishonor. The learned trial judge was of the opinion and so instructed the jury that the defendant had not by its conduct “ relieved itself from the presumption that it had accepted these checks by any evidence which it had produced in the case,” and that the verdict should be for the plaintiff for the amount of the five checks. Subsequently, the court on motion of defendant’s counsel entered judgment for the defendant non obstante veredicto on the entire record. The learned court in its opinion entering judgment for the defendant held that under the negotiable instruments law it was necessary for the holder in order to recover against the drawee bank, to prove a conversion of the checks, and that the mere retention of them for more than twenty-four hours, without a demand for their return, is not a refusal within the .meaning of the statute. The plaintiff has taken this appeal.

Unaffected or uncontrolled by statute, an acceptance of a bill of exchange or check may be implied from the conduct of the drawee. Such acts or conduct on his part which indicate clearly jin intention to honor the bill and from which the drawer may infer such intention is regarded as an acceptance, and will impose liability on the drawee. In First National Bank of Northumberland v. McMchael, 106 Pa. 460, the essential facts of which are strikingly similar to those of the case in hand, this court held that where a check had been sent by the collecting bank to the drawee bank in another city and the latter did not pay or accept it on presentation, the bank was bound to refuse within the proper time, and failing to do so, was deemed to have accepted the check and was liable to the pay'ee. But the rule, however, well established, gives rise to great uncertainty as to what conduct or acts of a drawee are the equivalent of an acceptance of negotiable paper. Unreasonable detention as well as the destruction of the bill, retaining sufficient funds to meet an outstanding check by the drawee id settling the drawer’s account, and other circumstances are regarded as an implied acceptance. But what are a prolonged or unreasonable detention of the bill and the other circumstances which should be considered or held to be an acceptance by implication are necessarily questions of fact for a jury, Northumberland Bank v. McMichael, supra; and hence the liability of the drawee on an alleged acceptance is not determined by any fixed rule or standard, but whether a jury thinks that the drawee’s conduct amounts to an implied acceptance. This necessarily leaves the question of acceptance of the bill in the domain of uncertainty and affects very seriously its value. It is true there is an implied obligation on the drawee to act promptly in accepting or refusing a bill of exchange, but the law merchant gives no definite or fixed method by which to determine whether he has performed the imposed duty.

Within the last few years, the legislatures of several of the states have codified the law on the subject of negotiable instruments. Some of the provisions of the several statutes are simply declaratory of the existing law, while others have altered or changed the law as heretofore declared. The purpose of the legislation is to produce uniformity on the subject among the several states, and to make certain and definite by statute the rules of the law governing negotiable paper. The acts in the different states are very similar, many of their provisions being identical in language, and the manifest purpose of all is, as far as possible, to prescribe definite and fixed rules regulating the entire subject. In closing the opinion of the supreme court of appeals of Virginia in Baltimore & Ohio Railroad Company v. First National Bank of Alexandria, 102 Va. 753, a case involving the construction of certain provisions of the negotiable instruments law of that state, Keith, President, very aptly said (p. 757): “This opinion might be greatly prolonged by citation of conflicting cases, and a discussion of the discordant views entertained by courts and text-writers of the greatest ability upon these questions; but the object, as we understand it, of the codification of the law with respect to negotiable instruments was to relieve the courts of this duty, and to render certain and unambiguous that which had theretofore been doubtful and obscure, so that the business of the commercial world, largely transacted through the agency of negotiable paper, might be conducted in obedience to a written law emanating from a source whose authority admits of no question.” In view of the rulings in some of the decisions interpreting the negotiable instruments law, however, it may not be inappropriate to note the suggestion in the address of the learned president of the fourteenth annual conference of commissioners of uniform state law. He said: However clear the statute (negotiable instruments law), there is an unfortunate tendency of the courts to fall back to the old law.”

The negotiable instruments law of this state was approved May 16,1901, and went into effect on the first Monday of September of that year. The part of the act requiring interpretation in this case and on which the plaintiff relies to recover,. is section 137, P. L. 212, 3 Purd. (13th ed.) 3307, and is as follows : “ "Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within'such other period as the holder may allow, to return the bill accepted or nonaccepted to the holder, he will be deemed to have accepted the same.” The plaintiff claims that the failure or neglect of the defendant bank- to return the five checks in suit to the holder or the collecting bank within twenty-four hours after their delivery was a refusal to return the checks within the meaning of this section of the act, and that, therefore, the defendant must be deemed to have accepted the same.” The defendant contends that the section of the law just quoted does not apply to a check presented to a drawee for payment; that if it does, the “ refusal ” in the act means a tortious or wrongful refusal to return, amounting to a conversion of the check; that there was no refusal by the defendant bank to return the checks, either express or implied ; and that the defendant bank did not hold the checks, but “ promptly refused payment and passed each of them on to the notary public, the next person to receive a dishonored bill under the custom of banks.”

The contention of the defendant that section 137 of the act does not apply' to a check, presented to the drawee bank for payment, is answered adversely to its position by the act itself. Section 185, P. L. 219, 3 Purd. (13th ed.) 3314, provides as follows : “ A check is a bill of exchange drawn on a bank, payable on demand. Except as herein othewise provided, the provisions of this act applicable to a bill of exchange, payable on demand, apply to a check.” No provision of the act has been pointed out, and we know of none, making section 137 inapplicable to bank checks presented for payment. On the contrary; there is every reason why the section should apply, and the drawee should give prompt notice of acceptance or refusal. The reasons for such notice are pointed out in First National Bank of Northumberland v. McMichael, supra. The holder of a check, is interested in knowing at the earliest time whether the drawer has sufficient funds in the bank for payment of the check, and especially should he be advised as promptly as possible if the drawer has no funds and the check is to be dishonored. Delay in furnishing this information may result in the loss o f the amount of the ch eck to the holder. We think it apparent that it is quite as important to have a check, payable on demand, returned promptly to the holder as to require the prompt return of an ordinary bill of exchange. As the act of .1901 abolishes implied acceptances of bills and checks and thereby changes the law as declared by this court, there is no protection for the holder against unreasonable detention of a check by the drawee bank if this section does not apply. "We cannot assume that the legislature intended such results in the passage of the act.

If the section applies to the checks presented to the drawee bank in the case in hand, and this question will be considered and determined later, the act. of the bank in delivering the checks to a notary public for protest was not a compliance with the section and did not relieve the drawee from liability. "While protesting a bill of exchange or check is permissible, it is not mandatory under the negotiable instruments -law, as section 118 specifically provides that “ protest is not required except in the case of foreign bills of exchangé,” and section 152 declares that “ where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary.” In view of the fact that the act declares a check to be a bill of exchange drawn on a bank, payable on demand, and that the provisions of the act apply to checks, protesting the checks for nonacceptance by the drawee bank in this case was wholly unnecessary and could in no way affect its liability on the checks under section 137 of the act.

We come now to the principal and controlling question in the case and that is, whether the failure to return the checks to the holder or the collecting bank within twenty-four hours after their delivery to the defendant was a refusal to return the checks within the meaning of section 137 of the act, or did the act contemplate a tortious refusal to return, amounting to a conversion of the checks, as claimed by the defendant and as held by the court below ?

The drawee to whom a bill is delivered for acceptance is deemed or taken to have accepted it under this section of the act: (a) where he destroys it, (b) where he refuses within twenty-four hours after delivery to return the bill accepted or nonaccepted to the holder, and (c) where he refuses within such other period as the holder may allow to return the bill accepted or nonaccepted to the holder. When either of these conditions exists, the drawee becomes an acceptor of the bill and assumes liability as such. An implied or a verbal acceptance of a bill is abolished by the act, and there are now only two modes of accepting a bill: (1) By writing, signed by the drawee, as provided in section 132, and (2) by a nonreturn of the bill which is declared by the section under consideration to be the equivalent of an acceptance.

The manifest purpose in requiring the prompt return of the bill is in the interest of and for the protection of the holder. It is immaterial to the drawer when the bill is returned, as he is protected by notice of dishonor, and hence this section of the act, requiring prompt action in returning the bill, was obviously enacted for the benefit of the holder of the bill. The act declares in section 136 that twenty-four hours is sufficient time for the drawee to decide whether or not he will accept the bill, and the section under consideration, having allowed this time, it requires him to return the bill accepted or non-accepted. If a demand and refusal are conditions precedent to an acceptance under this section, then the holder must not only present the bill for acceptance, but he must make a demand for its acceptance and await a specific refusal before the drawee is deemed an acceptor. This would certainly not be to the convenience or the interest of the holder, but in direct opposition to both. It would afford the holder less protection and would in effect prevent the return of the bill within twenty-four hours; or it would require the holder in transmitting the bill with instructions to present it for acceptanee to send at the same time a demand for its acceptance. It is obvious that such demand accompanying a presentation of a bill for acceptance is wholly unnecessary, and certainly was not in contemplation of the legislature in enacting the section.

The presentation of a bill for acceptance is a demand for its acceptance which, if the bill is retained by the drawee, implies a demand for its return if acceptance is declined, in contemplation of the negotiable instruments law. The purpose of presenting a bill of exchange to the drawee is to require him to accept and assume liability for its payment, or to refuse its acceptance and thereby avoid liability. When the bill .is presented, action by the drawee is, therefore, demanded of him, and he cannot remain silent and inactive without incurring the statutory penalty prescribed for such conduct. If he is permitted to retain the bill, he must return it accepted or not accepted at the expiration of twenty-four hours. If he accepts, he is required to do so in writing and must return the bill. If he refuses, he must return the bill not accepted. If he fails to do either — return it accepted ®r not accepted — he is “deemed to have accepted the bill ” under this section of the act, and is liable thereon to the holder. It is apparent, we think, that in the enactment of this section of the statute, the legislature regarded the presentation for acceptance as a demand for an acceptance, which when the bill is retained by the drawee, implies a demand for its return within the time specified, and that, therefore, the neglect or failure to return is a refusal to return the bill. As said by this court in First National Bank of Northumberland v. McMichael, supra, if a bank does not pay or accept a check, it is bound to refuse it. And this is more clearly disclosed as the true interpretation of the word “ refuses ” in this connection, when we consider that the consequences to the holder of the nonreturn of the bill is the same whether it follows a demand, additional to the presentation for acceptance and a refusal, or simply a neglect or failure to return after the demand implied by its presentation for acceptance. If the section has in view the protection of the holder, as it manifestly has, then it was evidently the intention of the legislature that the nonreturn of the bill within the specified time, regardless of the cause, will make the drawee an acceptor.

The law merchant discourages laches, in parties to negotiable paper, and demands prompt action in the performance of the duties imposed upon them. It was not the intention of the legislature in the enactment of the negotiable instruments law to abolish this rule, and to encourage delay or inaction in the holder or drawee of such paper. The intention of the section in question was to expedite action by the drawee in accepting or refusing a bill, presented and retained by him, and to fix a definite time, which had previously been uncertain, in which he should act on the bill. He is granted twenty-four hours after delivery, and not after a demand for a return of the bill, in which he must accept or decline to honor it. The time for returning the bill to the holder does not begin to run from the demand for its return, but from the date of its delivery. The drawee must, therefore, act within twenty-four hours from, the date of the delivery of the bill, whether his action be an acceptance or a refusal. The section gives no other alternative and makes no other provision either for failure or neglect. Hence, action being required of the drawee, and one of the two alternatives being open to him, if he does not accept and return the bill, it will be deemed accepted if the bill by his default remains in his hands beyond the time limit. He refuses to return the bill in contemplation of the act when for any cause within the drawee’s control it is not sent to the holder in the specified time. There can be no reason, and we will not assume that the legislature intended to do an unreasonable thing, why the law should make a distinction between the nonreturn of the bill by the refusal to return after a specific demand, and the failure or neglect to return after a demand implied by presenting the bill for acceptance. If such should be the proper interpretation of the section and a formal demand be necessary, then there is no provision in any part of the entire act imposing a penalty for the default or neglect of the drawee to return the bill, although the consequence of such act on the part of the drawee is as prejudicial to the holder as if a refusal to return the bill had followed a prior specific demand. There is, however, no such casus omissus in the act, but the enforcement of the return of the bill, accepted or nonaccepted, within the time designated, being the primal object of the section, the cause of its detention is wholly immaterial, and cannot affect the drawee’s liability as an acceptor.

The construction we place on section 137 is necessary to protect the holder of checks and other negotiable paper, it furnishes a complete statutory remedy for any default of the drawee in acting on the paper when retained by him, and does no violence to the language employed in the section. It carries out the obvious intent of the legislative mind in the enactment of the section, and establishes a fixed and certain rule to govern the drawee and the holder in the former’s action on negotiable paper presented to and retained by him.

Our interpretation of the statute coincides with the legislative construction placed upon a similar statute in the state of Wisconsin. In enacting a negotiable instruments law, the legislature of that state added to a section of it similar to section 137 of our act a proviso “ that the mere retention of the drawee will not amount to an acceptance.” The logical inference is that the mere retention of the bill would be an acceptance within the meaning of the language of our statute which contains no such proviso.

It is not accurate to say, as suggested by the appellee, that under the negotiable instruments law a bill can only be accepted by writing, signed by the drawee. It is true that verbal and implied acceptances have been abolished by section 132, which provides that the acceptance must be in writing and signed by the drawee. But section 137, involved in this case, declares that the action of the drawee in destroying a bill or in not returning it, as required by the section, shall be deemed an acceptance of it. A constructive acceptance of a bill under this section is as effective to charge the drawee as an acceptance in writing under section 132. Nor do the two sections in any way conflict. The former section requires affirmative action on the part of the drawee by assuming liability by a writing, the latter section declares his liability if he destroys the bill, or if by inaction he retain the bill beyond the specified time. An acceptance under either section obligates the drawee to pay the bill.

In the state of New York, a negotiable instruments law has been enacted, and a section similar to section 137 of our act is included in the statute. The supreme court of that state in State Bank v. Weiss, 91 N. Y. Supp. 276, has construed this section of the statute in conformity with the meaning we have given our own act. The case was decided in 1904 and it does not appear to have been carried to the court of appeals of the state. It was an action on a check drawn on a branch bank of the plaintiff and was paid by plaintiff by the allowance of a credit at the clearing house. It was after-wards discovered that the drawer had had no funds in the bank, and this suit was brought to recover from the indorsers six days later. It was held there could be no recovery; that a check was a bill of exchange, payable on demand; and that under the negotiable instruments law a drawee will be' deemed to have accepted a bill when he does not return it within twenty-four hours after its delivery for acceptance.

Matteson v. Moulton, 79 N. Y. 627, relied upon by the court below and the appellee here, was decided by the court of appeals in 1880, and the syllabus of the case states that the court held that “refusal” in the New York statute is “an affirmative act, or is made up of conduct tantamount to one (and) it is also a willful or wrongful act.” But the facts of the case did not require the court tp determine whether the failure or neglect to return the bill within twenty-four hours was a refusal to return it within the meaning of the act. The bill was sent to the office of the defendant who retained it for three or four months with the consent of the plaintiff, and under a promise to pay, relied on by the plaintiff. It will, therefore, be observed that the facts of the case did not require the court to determine whether the mere retention of a bill of exchange for twenty-four hours after its delivery to the drawee would constitute an acceptance. Again : if the case is still authority in that state for an interpretation of the act, it is singular that it is not cited or referred to in the very recent case of State Bank v. Weiss, supra, in which the court gave an interpretation of the same section of the negotiable instruments law of that state diametrically opposite to the construction of the act announced in the Matteson case.

In construing similar acts, the supreme courts of Arkansas and Missouri seem to have held that a nonreturn of the bill was not a refusal in the absence of a demand or proof that the drawee had refused to return the bill. The learned counsel for the appellee also cites, in support of this construction of the act, Westberg v. Chicago Lumber & Coal Co., 117 Wis. 589. But this case is not authority for the proposition. The learned justice who delivered the able, if not convincing, opinion in the case, discussed the question and arrived at that conclusion, but the instrument sued on was a nonnegotiable bill of exchange, and hence the question was not involved in the case. This is conceded by the learned judge in closing, his opinion, reversing and remanding the case for new trial, wherein he said (p. 595): “ It seems clear from the title that the codifying law of 1899 is intended to regulate only negotiable instruments. It, therefore, does not affect or control the rights of the parties upon this paper.”

We are of the opinion that under section 137 of the negotiable instruments law of this state, that the failure or neglect of a drawee to whom a bill is delivered for acceptance to return the bill, accepted or nonaccepted, to the holder within twenty-four hours after delivery, makes the drawee an 'acceptor of the bill. It, therefore, follows in the case in hand that the defendant bank, having failed to return the fiv.e checks to the collecting bank, within twenty-four hours after their delivery to the drawee, that the latter must be deemed tó have accepted the checks, and is, therefore, liable to the plaintiff for the amount of them.

The judgment non obstante veredicto in favor of the defendant is reversed, and judgment is now directed to be entered by the court below on the verdict in favor of the plaintiff and against the defendant.