text:
    Pittsburg Coal Company of Pennsylvania v. Cook, Appellant.

      Vendor and vendee — Deed—Acreage—Estimate—Contract—Evidence— Amendment.

    A vendor and vendee of coal were both aware that the acreage mentioned in the deed of conveyance was only an estimate; it was agreed, therefore, that the coal should be surveyed, and if the acreage fell short, deduction was to be made from the purchase price at a certain amount per acreage, and if it overran, the surplus was to be paid for at the same rate. The agreement was set forth in a settlement certificate, and the deed was then delivered and the purchase money paid. A subsequent survey by the vendee showed that there was a deficiency in the acreage. A suit was then brought against the vendor to recover for the deficiency, but in this suit the settlement certificate was not set forth or annexed to the statement of claim. At the trial there was evidence that the parties had selected surveyors and met at the mine to survey the coal and determine the acreage. One of the defendants testified that he did not regard himself as called upon, under the contract, to make the survey and calculation; but this objection was not made until after a dispute as to the method of calculation had arisen. There was testimony of a conversation between one of the defendants and the attorney for the purchasers at the time the contract was signed, to the effect that the price per acre fixed for the coal was a mere formality. Held, (1) that the settlement certificate was properly admitted in evidence as the statement of claim would be considered as amended by incorporating in it the certificate after a trial on the merits; (2) that the parties by their action had so construed the contract as to show that a survey was to be made after the delivery of the deed, and a deficiency accounted-for if discovered; (3) that no weight was to be given to the stateménts of the defendants as to their understanding of the agreement; and (4) that a verdict and judgment for the plaintiff for the amount of the deficiency should be sustained.
    Argued Nov. 6, 1907.
    Appeal, No. 116, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Allegheny Co., July T., 1904, No. 803, on verdict for plaintiff in case of Pittsburg Coal Company of Pennsylvania v. J. V. H. Cook, R. M. Cook and S. C. Cook, Partners, as J. V. H. Cook & Sons.
    Before Mitchell, C. J., Brown, Potter and Stewart, JJ.
    Affirmed.

      Assumpsit to recover for a deficiency in coal acreage.
    Before Shafer, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points:
    1. That under the pleadings and evidence in this case the plaintiff cannot recover, and their verdict should be for the defendants. Answer : Refused. [6]
    3. From the pleadings and evidence in this case there is shown the following :
    (a) Each of the contracts of July 11, 1899, was for the sale of the unmined coal in gross, within a tract of coal land operated at the time as a coal mine, together with all the mine equipment, including tipple, tramways, tracks, cars, miners’ houses, and all personal property operated and used therewith, as enumerated in each contract, for a gross sum, and without any covenants or warranty as to the quantity of unmined coal.
    (b) The words in the schedule attached to the contract as to the Allison mine, to wit: “ coal unmined about 325 acres available coal,” are merely descriptive of the un mined coal within the tract, and did not import a covenant or warranty as to the quantity of such coal, nor that the unmined coal could all be mined and taken out at a profit, but embraced all the un mined coal which might be reached and removed,' whether capable of being mined at a profit or not.
    (c) The survey provided for in each contract contemplated a completed survey made jointly by the vendors and purchaser, or made by one party after due notice to the other and an opportunity to attend; — a survey which should embrace all the unmined coal owned by the vendors within the limits of the body or tract and available for mining and’removal whether at a profit or not, and such survey that any competent’civil engineer might ascertain accurately the excess' or deficiency to be accounted for and added to or deducted from the consideration befóte the same shall be payable in full.
    (d) And there is no averment and-proof of fraud and deceit on the part of the defendants, or of mutual mistake on the part of both parties.
    -Wherefore, the undisputed evidence showing that the en-; tire purchase money was voluntarily paid to the defendants and the bill of sale and conveyance of date September 27, 1899, delivered, on November 4, 1899, without such a survey as required having been made before that date, and, the final deed of date July 10, 1903, having been accepted on July 17, 1903, and this suit brought November 26, 1904, without any averment and proof of fraud and deceit upon the part of the defendants, the action cannot be maintained and the verdict should be for the defendants. Answer: Refused. [7]
    4. If the jury believe from the evidence that it was agreed between J. Y. II. Cook, representing the defendants, andJ.G-. McConnell, Esq., representing the purchaser under the contract, that the insertion of the sum of $200 for each acre of coal owned and $100 for each acre of surface, in the parts of the contracts providing for a survey, were merely formal or immaterial, and would cut no figure in the matter, and that J. Y. II. Cook would not have signed said contracts but for such agreement, then, if the jury also find that all the purchase money was voluntarily paid to the defendants on or before November 4, 1899, and the bill of sale and deed of date September 27, 1899, were then delivered to the plaintiff, without a survey having been made, and there being no averment and proof of fraud and deceit upon the part of the defendants, the plaintiff cannot recover, and the verdict should bo for the defendants. Answer: Refused. [9]
    5. The terms of the settlement certificate of September 27, 1899, providing, inter alia, for the payment of the consideration under the contracts of July 11, 1899, contemplated an adjustment of the consideration on a survey to be made before the defendants were entitled to the payment of the said consideration, and said certificate of settlement did not create any covenant as to quantity of coal in said mines upon which the plaintiff can, after payment of the consideration, recover back any portion thereof because of any deficiency in the acreage, no fraud on the part of the vendor or mutual mistake between the parties to this action having been averred or proved. Answer : Refused, because while dated September 27, it was not delivered nor intended to be delivered until the deed was delivered being put in escrow along with the deed — and the deed was not to be delivered till the purchase money was paid. [4]

      6. That if the jury find from the evidence as to the survey made, by the plaintiff and the results reached in the calculation of Mr. Donalson made at the time of the survey, it has appeared that. from said calculation there were excluded bodies. of unmined coal owned by the defendants, which were accessible for mining and were within the boundaries of the coal conveyed, without showing the quantities so excluded, then the calculation is vitiated* the plaintiff cannot recover, and the verdict should be for the defendants. Answer: Refused. [16]
    7. The evidence showing that by the bill of sale and deed of date September 27, 1899, and the deed of date July 10, 1903, delivered on July 17, 1903, all the unmined coal owned by the defendants in both the Enterprise mine and the Allison mine was conveyed to the plaintiff, and the plaintiff not having shown the acreage of unmined coal within the coal territory comprising the Enterprise mine conveyed by said bill of sale and deeds, the plaintiff cannot recover, and the verdict should be for the defendants. Answer: Refused. [18]
    Verdict and judgment for plaintiff for $8,500. Defendants appealed.

      Errors assigned among others were (1) admitting in evidence settlement certificate, and (4, 6, 7, 9,16, 18) above instructions, quoting them.

      Boyd Crumrine, with him E. E. Crumrine and J. P. Patterson, for appellants.
    The money was voluntarily paid and cannot be recovered: Murphy v. Hubert, 16 Pa. 50; Light v. Stoever, 12 S. & R. 431; Ludlam’s Est., 1 Pars. 116; Edgar v. Shields, 1 Grant, 361; Christ Church Hospital v. Phila. County, 24 Pa. 229; Gaw v. Wolcott, 10 Pa. 43; Dawson v. Tibbs, 4 Yeates, 349; Greenwalt v. Horner, 6 S. & R. 71; Von Storch v. Griffin, 77 Pa. 504; Bldg. Assn. v. McKnight, 35 Pa. 470; Hopkins v. West, 83 Pa. 109; Heath v. Page, 63 Pa. 108.
    The plaintiff, having purchased certain operating coal mines, in gross, described, only, as containing about so many acres of unmined coal, but with no covenant as to quantity or contents, for a gross consideration, but with privilege of a survey and an addition or deduction for an excess or deficiency at so much per acre, and having paid the consideration in full and accepted the defendants’ sufficient deeds, without any survey until after such payment and acceptance, the plaintiff — even with the certificate of settlement of date September 27, 1899, in evidence — should not have been allowed to recover: Smith v. Evans, 6 Binn. 102; Boar v. McCormick, 1 S. & R. 166; Frederick v. Campbell, 13 S. & R. 136; Cronister v. Cronister, 1 W. & S. 442; Dickinson v. Voorhees, 7 W. & S. 353; Haggerty v. Fagan, 2 P. & W. 533; F. & M. Bank v. Galbraith, 10 Pa. 490; Riddle v. Foster, 32 Pa. 163; Coughenour v. Stauft, 77 Pa. 191; Kreiter v. Bomberger, 82 Pa. 59; Landreth v. Howell, 24 Pa. Superior Ct. 210; Manson v. Thacker, L. R. 7 Ch. D. 620.

      A. M. Neeper, with him C. M. Johnston and C. E. Woods, for appellee,
    cited as to amendment: Erie City Iron Works v. Barber, 118 Pa. 6; Chapin v. Cambria Iron Co., 145 Pa. 478.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

In the present case the contract for the sale of the Allison Mine contemplated the conveyance of about 325 acres of available coal, but when the contract was made both parties were aware of the fact that this was only an estimate, and it was therefore agreed that the coal should be surveyed, in order to determine accurately the amount of acreage. If it fell short of the stipulated amount, deduction was to be made from the purchase price at the rate of $200 per acre, and if it overran, the surplus was to be paid for at the same rate. If this survey had been made before the delivery of the deed, and the payment of the purchase money, there could have been no question whatever of the right to make deduction for the deficiency in the amount of the coal. But by reason of the fact that a deed was prepared and delivered by the vendors, and the purchase money was paid to them before the surveying was done, the appellants contend that they are released from any obligation to make good the amount of coal stipulated for, as the basis of the contract. As the trial judge says, if the original contract stood alone, either party desiring to have the benefit of the survey and adjustment of the acreage, must have made application therefor, prior to the passing of the deeds and the payment of the price. But for reasons satisfactory to themselves, the parties to the agreement chose not to delay the entire settlement until the surveys could be made, but instead adjusted between themselves everything but the amount of the acreage, and that was held open by the execution of a settlement certificate by the defendants in which it was expressly agreed that such adjustment as might be necessary upon the property conveyed being surveyed should be held open for future settlement. Upon this express condition then, the deed, bond, bill of sale, certificate, etc., were delivered and the purchase money paid. The trial judge, speaking. of the' original contract and these papers, says in his charge to the jury, you will observe that they “ are all practically the same as if they were one paper, and part of these papers is that that survey shall go on past the payment of the money. That is practically the only matter in this case that is very important,” and he went on to say that his interpretation of the papers required him to instruct the jury that the settlement certificate required and contemplated a survey to be thereafter made, and that the parties were to pay to each other whatever the result of that survey might show to be due.

Unquestionably, the trial judge was right in his construction of the language of the settlement certificate. It is contended, however, by counsel for appellants that as the settlement certificate was not set up in the statement of claim the plaintiff was not entitled to prove it, or offer it in evidence as a basis of recovery in this suit. The declaration was no doubt defective in this respect, but as the cause of action here was the deficiency in the amount of the coal which was to have been conveyed under the contract, and as the effect of the settlement certificate was only to extend the time for ascertaining the amount of the coal, and thus to preserve the rights of the parties in this respect under the contract, it cannot be said to change in any way the cause of action. It would, therefore, have been entirely proper for the plaintiff at the trial to have moved to amend the declaration, and for the court to have entertained the motion. The propriety of such action is fully discussed in Erie City Iron Works v. Barber, 118 Pa. 6. And this court there further said (p. 19): “ After a trial on the merits, no defect of pleading which could have been raised by a demurrer will be fatal to the judgment, unless it is shown to have injuriously affected the trial. The proper amendment will be considered to have been made. This is the outgrowth of the policy which has prevailed in practice in the allowance of amendments. The effect of our statutes has been to give more prominence to the trial of the cause had on its intrinsic merits, in the interest of a rational and speedy administration of justice, than to the exact and precise observance of the artificial forms originally devised for this purpose.” In the present case the defendants had, of course, full knowledge of the settlement certificate, having executed it themselves, and they refer to it in their affidavit of defense as providing the method by which they were to be paid the purchase money. If the settlement certificate was rightfully admitted as evidence, and we think it was, then it shows clearly by its terms a recognition by the parties of the right to have the survey made, after the settlement, and adjustment of all other matters was made under the original contract. This method was a construction by the parties as between themselves of the terms of the original contract. The terms of the settlement certificate not only provided for extending the time for the survey, but the subsequent conduct of the parties, in selecting surveyors and meeting at the mine to survey the coal and determine the acreage, all goes to show ratification of this feature of the agreement. As we said in Sherman v. Dental Mfg. Co., 202 Pa. 446, “ the parties themselves thus gave a practical demonstration of their mutual understanding of the agreement, which neither one can now be allowed successfully to dispute.” It is true that one of the defendants tried to break the force of this acquiescence in the arrangement for the survey by stating that he did not regard himself as called upon, under the contract, to make the survey and calculation. But this objection does not seem to have been made until after a dispute as to the method of the calculation had arisen. We see no error in the refusal by the court below to attach any weight to the testimony of a conversation between one of the defendants and the attorney for the purchasers, at the time the contracts were signed, to the effect that the price per acre fixed for the coal was a mere formality. Even if the testimony was deemed sufficient in itself to go to the jury to vary the terms of the written contract, it certainly should not have been submitted for that purpose after the contract had been expressly recognized and ratified by the settlement certificate of September 27, 1899. There is no merit in the contention that the court below should have given binding instructions for the defendants on the ground that the surveys were not properly made. That was for the jury. The facts were fully developed by the testimony, and there was ample from which the jury might find whether or not there was a deficiency in the amount of available coal contracted for. Defendants had no survey made, and presented nothing to impeach the correctness of the figures of plaintiff’s witnesses. The matter was properly submitted to the jury, and that body evidently used some discrimination, for the verdict was very much smaller than would have been justified by the evidence.

Our examination of the whole case leads us to the conclusion that it was fully and fairly tried upon the merits, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Himrod, Appellant, v. Kimberly.

      Statute of limitations — Breach of contract — Acquiescence.
    Where a purchaser of iron ore has full knowledge that the seller cannot and will not deliver the ore and perform his contract, and with such knowledge acquiesces in the breach of the contract for eight years, he is barred by the statute, and cannot thereafter maintain an action to recover damages for the breach.
    A party cannot stop the running of the statute of limitations by any arrangement for his own convenience.
    The limitation of the statute is not usually to be extended by the negligence of the party who claims to be excused from it. A debt is not saved from it because made payable on demand. A demand will be presumed to have been made in a reasonable time. Acquiescence with knowledge is equivalent to demand and refusal.
    Argued Nov. 7, 1907.
    Appeal, No. 97, Oct. T., 1907, by plaintiff, from judgment of C. P. Mercer Co., June T., 1901, No. 42, on verdict for defendant in case of Charles Himrod v. P. L. Kimberly, now George Baird, John C. Owsley and Ira B. Bassett, Executors of last will and testament of P. L. Kimberly, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract.
    Before Miller, P. J.
    The action was based upon a verbal contract.
    Facts made in 1892 and afterwards reduced to writing in two letters which passed between the parties, as follows:
    “ Oct. 22, 1892.
    “ Mr. P. L. Kimberly,
    “ Sharon, Pa.
    “ Dear Sir:
    “ As you have not been here, as expected, I write you my understanding of the agreement that we have made. A Company is to be organized to operate the West Duluth Furnace with a capital stock of say $45,000.00. Of this capital stock you and I are each to have one-third. The payment for this stock is to be made by you in iron ore, at price and terms hereinafter mentioned. The stock is to be issued to you or to any person you may designate, and all dividends paid on it to be paid to you until you have received pay for the ore furnished without any charge for interest. When you have received this sum of money the dividends or profits on the one-third of the capital stock taken by us shall be paid to us, and the stock shall belong to us. You are to furnish us with 16,666 tons of ore from the Biwabic mine containing an average of 64 per cent metallic iron when dried to a temperature of 212 Fahrenheit, and to be sufficiently low in phosphorus to make a pig iron with Connelsville coke, containing a maximum of not over .08 in phosphorus. The price to be paid to you for this ore is to be $3.00 per gross ton, delivered on the cars at the furnace. Of this $3.00 there is to be paid by the Furnace Company the freight and a sufficient sum in addition total of $1.00 per gross ton, the remainder $2.00 per gross ton to be applied towards the payment of stock, as heretofore mentioned, until $30,000 shall have been paid.

      “ Please advise me whether this is your understanding, as we are taking steps to operate the furnace at once.
    “Yours truly,
    “ Chas. Himbod.”
    “Nov. 1, 1892.
    “ Chas. Himbod, Esq.,
    “ Chicago, III.
    “ Dear Sir:
    “ In reply to your letter of the 22nd ultimo, my understanding of our conversation in Pittsburg is as stated in your letter. I will agree to furnish you the Ore upon terms stated providing the time of delivery of the Ore is extended until May 1893, if I so desire to extend it until that time, but will deliver the Ore sooner, if the Biwabik Ore Co. are in shape to mine it without any inconvenience to them.
    “Yours truly,
    “P. L. Kimbebly.”
    Himrod was a stockholder in the company that had been operating the West Duluth furnace and still held a lease on it. The furnace was not in operation at the time these letters were written.
    About a month after this correspondence the Minnesota Blast Furnace Co. was incorporated, with capital stock of $45,000, all paid in, of which Himrod «testified he contributed $30,000. The stock for this contribution was issued to Charles Himrod & Co. This company purchased ore of some of the mines in the neighborhood of the furnace and sold its manufactured products to the West Superior Steel Co. About May 1,1893, the steel company failed, and by its failure compelled the furnace company also to make an assignment. The latter never resumed business, nor operated its furnace.
    Subsequently to the original contract, the following letters passed between the parties.
    “Nov. 9, 1892.
    “ Chables Himbod, Esq.,
    “Chicago, III.
    “ Dear Sir:
    “In reply to your letter of the 7th inst. Iam pleased to know that you met with such good success while in Duluth, in securing Ore at satisfactory price for operating your furnace with. If you have secured all the Ore that you need to operate the furnace, I would just as soon withdraw, but if you can wait until such time as we are ready to ship the Ore, I will join you, as I wrote you some time ago, but I do not want to issue any paper as you suggest.
    “Yours truly,
    “P. L. Kimbebly.”
    “Nov. 12, 1892.
    “ Mr. P. L. Kimbebly,
    “ Siiabon, Pa.
    “ Dear Sir:
    “ I am in respect of yours of the 9th. While we have engaged such ores as we will want until you can mine yours, we will still expect yours as soon as you can supply them, and that the agreement with you will be carried out.
    “Yours truly,
    “ Chas. Himbod.”
    “Apeil 29, 1893.
    “ Mr. P. L. Kimbebly,
    “Shaboh, Pa.
    “ Dear Sir:
    “According to the terms of our agreement, you were to commence delivering the ore from the Biwabie mine in May. We wish that you would give the proper instructions to ship us about six cars a day of your Standard Bessemer ore to apply on this contract, and notify us how soon we may expect shipments to begin. The ore should be consigned to the Minnesota Blast Furnace Company, West Duluth, Minn.
    “Yours truly,
    “ Chas. Himbod.”
    “ May 11, 1893.
    “Mb. P. L. Kimbebly,
    “ Shaboei, Pa.
    “Dear Sir:
    “ On account of the temporary stoppage of the Furnace at West Duluth, we will not want any ore shipped on account of our contract with you. If you desire to ship immediately advise us, and we will make arrangements to take care of the ore by shipping to Lower Lake ports.
    “ I have requested Mr. Butler to call and see you, and he will explain the situation to you.

      “ Yours truly,

      “ Chas. Himrod.”
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in, charging the jury that if they found that suit was not brought within six years from May, 1893, the verdict should be for the defendant.

      S. S. Mehard, with him C. B. Mehard, for appellant.
    Kimberly’s obligation being not to pay in money, but in iron ore of a specified kind and quality; and the time and place when deliveries of ore were to begin not having been determined, a demand by Himrod and refusal by Kimberly were a condition precedent to Himrod’s right of action: Bobdell v. Hopkins, 5 Cowen, 516; Bolles v. Stearns, 65 Mass. 320; Frazee v. McChord, 1 Ind. 224; Martin v. Chauvin, 7 Mo. 277; State v. Mooney, 65 Mo. 494.
    As plaintiff’s right of action would not accrue until after such demand had been made, the statute of limitations would begin to run only from that time.
    The statute of limitations does not begin to run in this state until after the right of action accrues: Overton v. Tracey, 11 S & R. 311; Jones v. Trimble, 3 Rawle, 381; Evans v. See, 23 Pa. 88; Van Horn v. Scott, 28 Pa. 316; Girard Bank v. Bank of Penn Township, 39 Pa. 92; Wickersham v. Russell, 51 Pa. 71; Finkbone’s Appeal, 86 Pa. 368; McGough v. Jamison, 107 Pa. 336; Smith v. Bell, 107 Pa. 352; Swearingen v. Dairy Co., 198 Pa. 68; Cook v. Carpenter, 212 Pa. 165; Act of March 27, 1713, sec. 1, 1 Sm. Laws, 76, Stewart’s Purdon, 2282.
    As an actual demand was necessary in this case to the plaintiff’s right of action, and as the statute of limitations 'would not begin to run until after such right had accrued, the action would not be barred by the statute. even. though the demand were not made within six years from the date of the contract: Girard v. Bank of Penn Twp., 39 Pa. 92; Finkbone’s Appeal, 86 Pa. 368; McGough v. Jamison, 107 Pa. 336; Smith v. Bell, 107 Pa. 352; Cook v. Carpenter, 212 Pa. 165.

      Q. A. Gordon and S. W. Dana, with them Templeton, Orr & Whiteman, for appellees.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

This action was brought to recover damages for the breach of a contract to deliver iron ore. The contract was set out in the letter of Himrod to Kimberly, dated October 22, 1892, and in the reply from Kimberly, dated November 1,1892. Under the express terms of the contract, no ore was to be delivered until May, 1893. This was recognized by Himrod in his letter to Kimberly, dated April 29, 1893, in which he wrote : “ According to the terms of our agreement you were to commence delivering the ore from the Biwabic Mine in May.” The ore was to be delivered at the "West Duluth Eurnace, and in this letter of April 29, Himrod directs that it be consigned to the Minnesota Blast Eurnace Co., West Duluth, Minn. But before any ore had been delivered, the furnace company failed, and the West Duluth furnace ceased to be operated. On May 11, 1893, Himrod wrote Kimberly, “ On account of the temporary stoppage of the furnace at West Duluth, we will not want any ore shipped on account of our contract with you.” The stoppage of the furnace turned out to be, not temporary, but permanent. But the letter contained the direct statement that no ore was wanted on account of the contract. It is true that Himrod went on to say that if Kimberly desired to ship, he would make arrangements to take care of the ore at lower lake ports. But it -was no part of the contract that Kimberly should furnish ore to be used at other places, and the terms of the letter merely make this course optional with Kimberly. Kimberly did not see fit to accept the suggestion to ship ore to other points or to furnish ore to Himrod, notwithstanding the failure of the furnace company, and the stoppage of the plant. It would have been strange had he done so. Why should he ship ore to an insolvent corporation, which had shut down its furnace, and made an assignment for the benefit of its creditors ? There is no suggestion that the furnace company was at that time, or ever afterwards, able to pay the cash portion of the purchase price or that it was ever in condition to use the ore in its furnaces. It would seem that the trial judge might very properly have directed a verdict for defendant on the ground that the evidence showed that the contract was rescinded by the plaintiff. It is argued forcibly by counsel for appellant that a demand was necessary before Kimberly was required to ship the ore, and that a demand and refusal were necessary before Kimberly was liable in damages for breach of the contract. If that be so, the testimony of appellant shows a demand and refusal in 1893, more than six years before suit was brought, leaving out of sight the letter of April 29, 1893, which as the court suggested in its charge, would have been sufficient demand had it not been modified by the later letter of May 11. But Himrod testified that he met Kimberly once or twice in 1893, and gave the substance of the conversation as follows : “ I was desirous of, as I explained to him, of having the ore shipped in order that the margin between the cash payment to him and the value of the ore, could be used to pay the debts I had contracted in taking the stock in the furnace. And his reply always was, ‘ I cannot.’ ” And then Himrod adds that he concluded that Kimberly was telling the truth when he said he could not ship the ore, and Himrod dropped the matter. But this was plain evidence of demand and refusal at that time. It was not until 1899 or 1900 that Himrod again approached Kimberly on the subject and not then with a demand for delivery of ore, but because as he said, I wanted him to make good my loss in subscribing for the stock.” Kimberly finally refused to pay anything, and afterwards this suit was brought, in which plaintiff claims damages for a breach of contract to ship iron ore. There was no contract to indemnify plaintiff against loss on the stock, and the only way in which the fact of loss in that respect could be material here, would be as evidence of the amount of damages sustained by the alleged failure to furnish ore. The testimony of the plaintiff, that in 1893 the defendant said repeatedly that he could not ship any ore under the contract, seems to us to demonstrate that whatever breach of contract there was, in this case, was complete in the. year 1893, under every aspect in which the evidence can be viewed.

But the ground upon which the trial judge rested his instructions to the jury, was that granting there was a breach of the contract, it occurred more than six years before suit, and the bar of the statute of limitations had intervened. We think the point was well taken. The contract was to furnish ore or to begin furnishing in May, 1893. Unless there was legal excuse, Kimberly broke the contract when he failed to furnish ore in that month. But even by plaintiff’s story Kimberly was not at fault in failing to deliver then, and it is settled law in Pennsylvania that a party cannot stop the running of the statute of limitations by any arrangement for his own convenience: Steele’s Administrators v. Steele, 25 Pa. 154.

In Waterman v. Brown, 31 Pa. 161, Chief Justice Lowrie said (p. 165): “ The limitation of the statute is not usually to be extended by the negligence of the party who claims to be excused from it. A debt is not saved from it because made payable on demand. It is often said that, where a demand is necessary to the right of action, the statute does not begin to run till the demand is made. But this almost sets aside the statute in such cases, and hence it is decided, that a demand will be presumed to have been made in a reasonable time.”

In Barnes v. Hardware Co., 203 Pa. 570, defendant gave a note for the purchase money of real estate, payable in six months, and containing the following clause : “ Provided all liens not assumed in the purchase of the warehouse property from the said Pickett and Company, are then paid, or removed, and if not then so removed, payment is to be made as and when they are removed.” It was held that the statute began to run as against the entire note at the end of the six months, notwithstanding the fact that the liens referred to in the proviso had not all been paid and removed at that time. The present chief justice said (p. 573): “ The disability to sue until the liens were removed was not a privilege of the payee to delay its running, but an obligation precedent to suit by him, a disability of his own making, removable at any time by his own act.”

Acquiescence, with knowledge, is equivalent to demand and refusal: Mifflin County Nat. Bank v. Bank, 199 Pa. 459. In this case there was during the period froth 1898 to 1901 admitted knowledge on the part of plaintiff, that defendant could not, or would not, make delivery of the ore as provided in the original contract. This determination was known and acquiesced in, without any attempt to enforce the agreement, until the bringing of this suit. The delay was too great. The bar of the statute of limitations had intervened. The assignments of error are overruled and the judgment is affirmed.


author: Per Curiam,

text:
    Jacoby’s Estate.

      Will — Construction—Distribution.
    Where a testator after expressly stating that he leaves nothing to his widow, gives certain legacies and directs that the balance of his estate shall be held in trust to pay one-fourth of the income thereof to certain beneficiaries^ one-eighth thereof to another beneficiary, and the remaining portion to a charity, and the widow elects to take against his will, the charity is not entitled to an amount equal to five-eighths of the income from the balance of the estate, including the widow’s share, but is only entitled to five-eighths of the income from the balance of the estate after the widow’s share has been deducted.
    Argued Nov. 7, 1907.
    Appeals, Nos. 151, 171 and 207, Oct. Term, 1907, by Saint Peter’s Evangelical Lutheran Orphans’ Home of Allegheny County, Ethel Jacoby Crane and Mary H. Downs, from decree of O. C. Allegheny Co., Oct. T., 1897, No. 60, dismissing petitions for review in Estate of George T. Jacoby, deceased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for review.
    From the record it appeared that George T. Jacoby, the decedent, died testate, without issue, leaving to survive him his widow, Caroline Jacoby. He left a valuable estate, which he disposed of as follows : One. thousand dollars to his executors and trustee, the income to be applied to keeping his cemetery lot in repair ; his library to the Lawrenceville branch of the Y. M. C. A.; $1,000 to his namesake, George T. J, Folk.

      In the fifth, sixth, seventh and ninth paragraphs of his will he provided as follows :
    “ Fifth. My wife, Caroline Jacoby, having without just cause entirely separated herself from me since 1881, and by every means in her power annoyed and sought to injure mo, and willfully neglected and refused to live with me as my wife, and believing that she has forfeited all rights as such, I give and devise nothing more than the law will grant to her under the circumstances, besides this she has received already more than her share of my estate.
    “ I especially direct my executors at the expense of my estate to contest any claim she may set up, and they must use all legal means and spare no expense in their efforts to defeat any dower or other interest in or to any of my estate, real or personal, that I may die possessed of, or that may be herein mentioned.
    “ Sixth. The balance of my estate, proceeds of real estate and personal property, I direct my executors to pay the same over unto the Safe Deposit & Trust Company of Pittsburg, as trustee in trust that it will invest the same in first bond and mortgage to be approved by the court, and pay out the net income annually as follows, to wit:
    “ One-half (reduced to one-fourth by the codicil) to the children of M.ary Downs, formerly Mary Goldinger, now residing in Greenville, Mercer county, Pennsylvania, share and share alike to all children that she may have living at the time of any annual distribution. The mother shall be entitled to receive and receipt for the interest of such of her children as shall be under the age of 21 years, provided she uses the same for educating her said children; her children at the present time are Lois Mary Downs, Inez Martha Downs, Sophia Ethel Downs, Sylvester Dewitt Downs, and John Paul Downs; as each child arrives at the age of 21 years he or she shall alone receipt for his or her interest, and as each arrives at the age of 27 years the said trustee shall pay to him or her the principal. These legacies not to lapse but go to the surviving children.
    “Seventh. I give, devise, and bequeath to Ethel Jacoby, daughter of my brother Frederick, one-eighth of my estate to be held by my said trustee in the same manner and upon the same conditions as to payment of interest up to 21 years and principal at her arrival at age of 27 years, as provided in the sixth clause.
    “ Hinth. The remaining portion of my estate is to be invested in mortgages so as aforesaid approved and be known as G. T. Jacoby Protestant Orphan Belief Fund, and the net income arising therefrom paid to the various Protestant orphan asylums and institutions wherein orphans are cared for within the county of Allegheny, but only to such as are strictly under. Protestant management and that teach the Protestant religion, also to the Concordia Home of Butler county, share and share alike.
    “ If by reason of death any of said legacies should lapse by reason of the death of the legatee before the principal is paid to him or her then his or her share shall be added to the relief fund, excepting only the case of the children of Mary Do whs.
    “Ho asylum shall be entitled .to its portion until due proof has been made that in it is taught the Protestant religion.
    “ The principal must not be impaired as it is my desire so far as I am able to establish a permanent relief fund.”
    The widow elected to take against the will. The court, after deducting the widow’s share, distributed one-eighth of the remainder of the estate to the trustee for Ethel Jacoby, one-fourth thereof to the trustee for the children of Mary Downs, and the remainder to the charity. All three of the appellants filed petitions for review.
    All the petitions were dismissed in opinions by Over, J.
    The opinion dismissing the petition of the charity was as follows:
    In the decree made in this case August 15, 1899, there was distributed to testator’s widow one-half of his personalty, and to the Safe Deposit & Trust Company, trustee, one-fourth of the residue for Mary Downs and her children, one-eighth for Ethel Jacoby and five-eighths for the Orphan Belief Fund. The petitioners, two of the beneficiaries under the latter trust, now claim that it was testator’s intention to give the Orphan Belief Fund five-eighths of his entire estate, and that the decree should be so modified. If this claim be well founded, as the widow took four-eighths of the personalty and there were but four-eighths left for distribution, the whole fund for distribution should have been given to the trustee for the Orphan Relief Fund. In the sixth paragraph the testator gave the residue of his estate, after paying debts, pecuniary legacies and satisfying all legal claims of his widow, to a trustee. He then sets apart one-fourth of the trust estate for the Downs’s children, one-eighth for Ethel Jacoby, and the remaining portion, viz.: five-eighths for the Orphan Relief Fund. There is surely nothing in the will indicating any intention on the testator’s part to give the Orphan Relief Fund five-eighths of his entire estate. His direction in the will that “ the principal must not be impaired ” refers only to the preservation of the corpus of the gift and not to its amount.
    For these and other reasons given in the opinion filed August 15, 1899, the petition must be dismissed.

      Errors assigned were in dismissing the petition for review.

      Morton Hunter, for the Saint Peter’s Evangelical Lutheran Orphans’ Home of Allegheny county.

      James R. Sterrett, of Patterson, Sterrett & Acheson, for Pittsburg and Allegheny Home for Friendless.

      Samuel S. Mehard and Q. A. Gordon, for Mary H. Downs and her children.

      George E. Alter, with him G. K. Wright, for Ethel Jacoby Crane.
    January 6, 1908:
   Per Curiam,

In making a division of his estate, after the payment of specific legacies and such share of his estate as his wife might be entitled to notwithstanding his will, the testator evidently had in mind the residue of his estate for distribution, and the shares given were of it, and not of the whole estate of which he died possessed.

The order dismissing the petitions for review is affirmed on the opinion of the learned judge of the orphans’ court.


author: Mr. Justice Elkin,

text:
    Myersdale & Salisbury Street Railway Company, Appellant, v. Pennsylvania & Maryland Street Railway Company.

      Equity — Equity practice — Bequests for findings — Frivolous requests— Harmless error.

    While it is the duty of the court to make a ruling on every request for a finding of fact -or conclusion of law, failure to do so will not constitute reversible error, if the request is frivolous, or the facts asked to be found are Unimportant and not material in the decision of the case. ,

      Street railways — Contest over location of right of way — Chartered power— Parties — Equity—Act-of June 19, 1871, P. L. 1360.
    While a court of -equity may have, under the Act of June 19, 1871, P. L. 1360, jurisdiction over a contest between two rival street railway companies as to the location of their lines, when the facts show that the later company is invading the rights of the former company to the use of streets or rights of way actually occupied or in the possession of the first company, such jurisdiction does not extend to questions involving the validity of the charters of the companies, or the forfeiture of their charter rights. As to such questions the remedy is by writ of quo warranto in suit by the commonwealth.
    Where the rights, privileges and franchises of a street railway company have been sold at sheriff’s sale and bought by an individual, and subsequently there is a reorganization of the company under the provision of the statute, without the purchaser at the sale participating therein, and without any conveyance by him to the company of the rights, privileges, franchises and property bought 'at the sheriff’s sale, the reorganized company has no standing to maintain a bill in equity against another street railway company to enjoin the latter company from laying its tracks on streets and property oyer which the plaintiff company had the right to locate its line.
    A court of equity under the authority of the Act of June 19, 1871, P. L. 1360, will not grant an injunction unless a proper case in accordance with the principles and practice of equity is made out. This act was not intended to do away with or change the general principles upon which equitable relief is administered. The complainant must establish a clear legal right, not doubtful, nor uncertain, and the injury threatened must be of a permanent and irreparable character. Where the complainant’s title is doubtful equity will not relieve by injunction.
    It is the duty of the court when an injunction bill has been filed, to inquire and ascertain whether the individual, or corporation, seeking the relief, has a clear legal right to the use, occupation or enjoyment of the property or right, the invasion of which is sought to be enjoined. These are elementary principles in a proceeding in equity. The complainant must rely on the strength of his own title, or other legal right, and not on the weakness of the title or legal right asserted by the respondent.
    Argued Nov. 8, 1907.
    Appeal, No. 202, Oct. T., 1907, by plaintiff, from decree of C. P. Somerset Co., Equity Docket, 1906, No. 13, dismissing bill in equity in case of Meyersdale & Salisbury Street Railway Company v. Pennsylvania & Maryland Street Railway Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Kooser, J.
    The bill prayed equitable relief, inter alia, as follows :
    3. That defendant, its agents, employees and servants be enjoined specially until hearing and permanently thereafter, from continuing or doing any further work of any kind upon the plaintiff’s right of way through the lands of S. P. Maust, John M. Wright, H. II. and F. A. Maust, and Joseph Miller and wife.
    4. That defendant be restrained from entering upon or laying its track or erecting its poles or placing any of its equipment, or doing any work on the plaintiff’s rights of way upon the lands of Catherine and William Engle upon the following streets in the borough of Meyersdale, namely : Eleventh street, in a southerly direction, to Beaehley street; Beaehley street, from Eleventh street to Center street; Center street, from Beaehley street to Broadway; Broadway south, from Center street to the borough line, at the bridge over the Casselman river; Fourth street, from Beaehley street to Salisbury street; Salisbury street, from southerly direction.
    '5. That defendant be ordered to remove from plaintiff’s rights of way, through the lands of S. P. Maust, John M. Wright, II. IT. and F. A. Maust, and J. S. Miller and wife, any track, poles, work of any kind, and any constructions whatsoever that it may have placed or erected thereon.
    The material facts are stated in the latter part of the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Samuel J. Graham, with him A. C. Holbert, Koontz & Ogle, H. M. Berkeley and J. G. MacConnell, for appellant.
    — The court had jurisdiction over the bill: Hannum v. Ry. Co., 200 Pa. 44; Com. v. Pittsburg & C. Ry. Co., 24 Pa. 159; Shamokin Borough v. Elec. Ry. Co., 196 Pa. 166; Walters v. McElroy et al., 151 Pa. 549; Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138.

      Ernest O. Kooser, with him J. A. Berkey, C. L. Shaver and Edmund E. Kiernan, for appellee.
    Plaintiff has shown no title to the premises in controversy. It stands here in the attitude of a reorganization of a corporation whose property was sold at judicial sale. The sale it rests its claim upon was made to Harvey M. Berkeley. The plaintiff’s bill avers the property was conveyed to him. The certificate of reorganization shows that he did not participate in the reorganization. There is absolute want of any evidence as to whether he bought the property for any persons other than himself, or as to what he did with it. Plaintiff has sought to evade this point whenever it was raised, but has never undertaken to contradict the fact. We are permitted to make our own inferences from this.
    We may presume that Mr. Berkeley has sold and conveyed to other persons or individuals having other combinations and relations, or upon trusts or conditions. Or we may infer, as we repeatedly argued in the court below, that Mr. Berkeley held the title and property until after the defendant’s grade was completed, possibly still holds it, not having received his price for the premises, or possibly not having received the fees, costs and expenses due on account of said company’s transactions and sheriff’s sales. It may be supposed, also, that the plaintiff could not exhibit that deed, or give evidence of that transfer, without conclusively proving it had no rights whatever in the premises at the time complained of, or without badly exposing the insubstantial nature of its existence, or without calling forth conclusive written evidence that it had never been fully born, or had in fact expired.

      January 6, 1908:
   Opinion by

Mr. Justice Elkin,

The appellant company by injunction seeks to restrain appellee company from laying its tracks, erecting poles, placing equipment, or doing any further construction work, upon particular streets in the boroughs of Meyersdale and Salisbury and upon certain rights of way along the line of railway through the intervening townships. As the record stands this court might as well have heard the case in the first instance. It requires 357 pages of appellant’s paper-book to state the assignments of error and other preliminary matters, required by the rules of court, before beginning the argument. Requests for findings of fact and law cover sixty pages, while the exceptions to these findings are spread over 147 pages. The assignments of error are divided into two classes, first, as to findings of fact, of which there are eighty-six, covering fifty-five pages, and second, as to findings of law, which are so numerous that counsel have not thought worth while to number them. Such a record is of little value to an appellate court in determining the material and exact questions upon which the rights of the parties depend. It disregards the purpose of our system of pleading and practice. In an action at law the pleadings are so framed as to produce a definite issue and the whole case is proceeded with in such a manner as to develop the material matters relating thereto. In a proceeding in equity, it is true, common-law forms of pleading have no place, but it is nevertheless the duty of both court and counsel to limit the inquiry to the material questions of fact and law raised by the bill and answer. It is the duty of a chancellor to make his findings of fact concise, exact and definite, without making an argument to support them or amplifying the reasons which actuated him in reaching a conclusion. As to findings of fact, he takes the place of a jury, and his findings should be as distinct and definite as theirs. "Where there is a conflict of testimony, he must weigh the evidence, consider the circumstances and reach a definite conclusion, which when reached should be stated in such manner as to leave no doubt what the finding is. When opposing counsel submit requests for findings of fact, conflicting in character, the issue should be fairly and unequivocally met so that when the fact is found there will be no doubt about its meaning. In a proceeding in equity it is very difficult for a chancellor to limit the inquiry to the material questions involved without the aid of counsel. It is not good practice, nor does it result in advantage to a contending party for his counsel to file requests for 100 findings of fact, material and immaterial, relevant and irrelevant, when ten requests for material facts, concisely stated, would cover the case. In the present case it is alleged that the learned court below did not make a definite ruling on each request for findings of fact. The rule so requires, but there does seem to be justification for the position taken by the court in which it is stated that the requests were so numerous as to warrant his finding only material facts and disregarding those that were considered immaterial. While it is the duty of the court to make a ruling on every request, failure to do so will not constitute reversible error, if the request is frivolous, or the facts asked to be found are unimportant and not material in the decision of the case.

In the consideration of this case it must not be overlooked that it is a proceeding in equity to restrain a corporation from doing certain acts, and that the acts already done or about to be done, are authorized by its charter, or extensions filed in accordance with the provisions of law, and by grants secured from municipal authorities and by consents from abutting property owners. The right to maintain such a proceeding is based on the Act of June 19, 1871, P. L. 1360, which provides that in all proceedings at law or in equity, in which it is alleged that the private rights of individuals, or the rights or franchises of other corporations, are injured, or invaded, by any corporation claiming to have a right or franchise to do the act frqm which injury results, it shall be the duty of the court to examine, inquire and ascertain whether such corporation does in fact possess such rights and franchises, and if it be determined that such rights and franchises have not been conferred upon such corporation, courts in the exercise of their equitable powers restrain by injunction the injurious acts about which complaint is made. The language of the act is that the inquiry of the court should be to ascertain “ if such rights or franchises have (not) been conferred upon such corporation.” The ordinary method of ascertaining what rights or franchises have been conferred upon a corporation is to examine its charter. When it clearly appears that a street railway company is exercising powers conferred by its charter after having obtained municipal grants and the consents of township supervisors and abutting property owners, the general rule is that a court of equity will not intervene to restrain acts intended to carry out the corporate purpose. It must be conceded, however, that this act has been given a liberal construction in the attempt to reach the equities existing between rival companies in many of our cases: Germantown Pass. Railway Co. v. Citizens Railway Co., 151 Pa. 138; Allegheny City v. Railway Co., 159 Pa. 411; Homestead Street Railway Co. v. Railway Co., 166 Pa. 162; Pymouth Township v. Railway Co., 168 Pa. 181; Coatesville, etc., Street Railway Co. v. Railway Co., 206 Pa. 40; Nanticoke Suburban Street Railway Co. v. People’s Street Railway Co., 212 Pa. 395. These cases hold there that there is jurisdiction in equity under the act of 1811 to determine the rights of rival companies to the occupation and use of streets under certain circumstances. The ground upon which equity jurisdiction was sustained is that the validity of the charter or the forfeiture of charter rights was not involved in the proceedings. In no case, however, has it been held that where the proceedings undertake to challenge the validity of the charter, or claims a forfeiture of the rights and franchises granted thereby, equity has jurisdiction. The act does not authorize a private citizen or a rival corporation, to assume the position of the commonwealth, as in a writ of quo warranto for the purpose of establishing a forfeiture by nonuser or otherwise: Western Penna. Railroad Company’s Appeal, 104 Pa. 399. The act limits the inquiry to the nature and extent of the franchises prima facie conferred by the charter and does not extend it to the validity of the charter itself: Windsor Glass Co. v. Carnegie Co., 204 Pa. 459. Nor does it confer the power to determine whether the charter was originally invalid or has been forfeited: Thirteenth and Fifteenth Streets Passenger Railway Co. v. Broad Street Rapid Transit Street Railway Co., 219 Pa. 10. A street railway company may diverge from its original route, when the reason for so doing is a necessity or a great public convenience: Penna. Railroad Co. v. Railway Co., 184 Pa. 227. If, however, there is a greater deviation than neccossary from its charter route, or if the charter itself is open to objection, the commonwealth alone can raise the question: Penna. Railroad Co. v. Street Railway Co., 176 Pa. 559. Where a corporation appears to be acting regularly in the exercise of powers conferred by its charter, the general rule is that equity will not interfere: Gaw v. Railroad Co., 196 Pa. 442; Oliver v. Bridge Co., 197 Pa. 344. On the other hand, it has been held that the construction of a street railway on a public road will be enjoined at the suit of an abutting property owner whose consent has not been obtained: Mory v. Oley Val. Railway Co., 199 Pa. 152; Hannum v. Electric Railway Co., 200 Pa. 44; also that a street railway company, may maintain a bill in equity to restrain another company from wrongfully laying tracks on a street occupied by complainant: Germantown Pass. Railway Co. v. Citizens’ Pass. Railway Co., 151 Pa. 138; or when a time limit is a condition upon which the municipal grant is made and the consent of the township authorities is given, failure to complete the construction within the time limited works a forfeiture, which can be asserted in a court of equity by the municipality or township having the right to do so: Plymouth Township v. Railway Company, 168 Pa. 181; Allegheny City v. Railway Company, 159 Pa. 411; Mill Creek Township v. Railway Company, 209 Pa. 300. In many of the cases the question of jurisdiction was not raised, and in no case has a general rule upon the subject been definitely stated. The rule of all the cases is that if the validity of the charter is attacked, or a forfeiture of charter rights is asserted, or an abandonment is claimed, the commonwealth alone can raise the question by a writ of quo warranto. It would seem to necessarily follow that when two companies by oversight or otherwise, have secured a charter for practically the same route the proper procedure to test the validity of the charters is by writ of quo warranto at the suggestion of the attorney general. This is especially true when controversies arise between companies thus chartered and before the lines are graded and tracks laid. It is entirely proper for either company to petition the attorney general asking that such a proceeding be instituted. Of course, if one of the companies is in the undoubted occupation of certain streets, with the unquestioned right to use the same and another company undertakes to invade that right, equity will enjoin the invading company on the ground that the validity of the charter is not involved and that only an incidental right growing out of the power conferred is in dispute. In the present case the bill filed in effect challenges the right of the respondent to construct and equip its line of railway, and this on the ground that the appellant company has the prior right at all the disputed points at least and that its rights are being invaded by the appellee company. This is a controversy between two street railway companies, the first incorporated in 1901 and reorganized after judicial sale in 1905 ; the second incorporated in 1906 upon the assumption no doubt that the first company had either abandoned or forfeited its franchises or at least could not assert an exclusive right to occupy the streets and highways. Under the circumstances, the interests of both companies would have been better served and the rights of all parties more clearly defined in a proceeding by quo warranto instituted by the commonwealth on the relation of her attorney general. The case was heard and decided in the court below upon its merits without reference to the question of jurisdiction which, to say the least, may be considered doubtful, under the circumstances, and we have concluded to treat it as if equity had jurisdiction if the facts established warrant such intervention.

A court of equity, under the authority of the act of 1871, will not grant an injunction unless a proper case in accordance with the principles and practice of equity is made out. This act was not intended to do away with or change the general principles upon which equitable relief is administered: Becker v. Street Railway Co., 188 Pa. 484; Gaw v. Railroad Co., 196 Pa. 442; Oliver v. Bridge Co., 197 Pa. 344. The complainant must establish a clear legal right, not doubtful, nor uncertain, and the injury threatened must be of a permanent and irreparable character. Where the complainant’s title is doubtful equity will not relieve by injunction: Commonwealth v. Rush, 14 Pa. 186; Bunnell’s Appeal, 69 Pa. 59; Commissioners v. Long, 1 Pars. Eq. Cases, 143. It is the duty of the court when an injunction bill has been filed, to inquire and ascertain whether the individual, or corporation, seeking the relief, has a clear legal right to the use, occupation or enjoyment of the .property or right, the invasion, of which is sought to be enjoined. These are elementary principles in a proceeding in equity. The complainant must rely on the strength of his own title, or other legal right, and not on the weakness of the title or legal right asserted by the respondent. Keeping in mind these principles, let us briefly examine the facts to ascertain whether appellant has shown such clear legal right as to justify a court of equity in granting the injunction prayed for. This company filed articles of association in the office of the secretary of the commonwealth August 7, 1901, and on the same day letters patent were issued. Extensions were subsequently filed June 16, 1902, and June 14, 1904. It secured ordinances from the borough of Meyersdale approved March 10, 1903. These ordinances provide that work shall begin within three months and be completed within nine months from the commencement of the work. It is contended that this ordinance was amended May 31, 1904, so as to extend the time for the completion of the work eighteen months from the commencement thereof. Even under the amended ordinance the time limit for completing the work would be December 10, 1904. The ordinance secured from the borough of Salisbury dated February 24, 1903, provides that work shall begin within ninety days from the date thereof and be completed within nine months from the commencement of the work. There was an attempt to prove that the time limit fixed by this ordinance had been extended, but the evidence produced Was not sufficient to justify such a finding. Nothing done by the appellant company subsequent to the time when these ordinances expired by their own limitation as to the time could be considered sufficient in law to renew, revive or extend them. The company got into financial difficulties, became insolvent, and its rights, privileges, franchises and property were sold by the sheriff in the summer of 1905, anda deed was executed and duly acknowledged in open court to the purchaser. This deed was recorded in the sheriff’s deed book and was considered by the learned court below in this case. The advertisement for sale contained a separate description for each of nineteen different parcels of land, or rights of way, and the deed followed the descriptions contained in the advertisement, so that the record shows the title to all of the rights, privileges and franchises of the complainant company as well as the nineteen parcels of land or rights of way to be in Harvey M. Berkeley, the purchaser at the sale. The learned court below found as a fact that “ there is no evidence that title has ever passed out of Harvey M. Berkeley for anything he may have acquired at said sheriff’s sale. He did not organize or participate in the organization of the company after the sheriff’s sale, and there is no evidence that the title to the property he acquired ever became vested in the plaintiff reorganized company.” There was ample evidence to support this finding; indeed, there is no evidence to show anything else. It is true appellant company contends that there was a reorganization after the judicial sale under the provisions of the statute, and that by reason of such reorganization the title of the purchaser at the sale became vested in the reorganized company. This might bo true if the record showed that the purchaser had been a party to the reorganization proceeding, but it does not show this fact, nor did Berkeley nor anyone else testify that he assented to or in any way participated in the reorganization. Here, then, is a public record showing that the title to all the rights, privileges, franchises and property of the original company is vested in a purchaser at ,a judicial sale and the record in this case is absolutely silent as to what disposition he ever made of the property thus acquired by him, nor does it show title in appellant. IIow, then, can it be said to have established such a clear legal right, either of title to the property or of the franchises of the corporation as to justify a court of equity in making a decree restraining the appellee company in the exercise of powers, privileges and franchises conferred upon it by the commonwealth. Even if Berkeley had been a party to the reorganization proceedings, which so far as the record shows he was not, in order to complete a record title careful conveyancing would seem to require that he make a conveyance to the reorganized company at least for those parcels of land or rights of way purchased by him and for which he held a deed.

The appellant is seeking equitable relief and has the burden of establishing a clear legal right to the use and occupation of the streets and the possession of the rights of way in dispute. It has failed to show that it has any valid or existing ordinances giving it the right to the use of the streets in question, nor has it proven title to the disputed rights of way, and it necessarily follows that the clear legal right necessary to sustain this proceeding has not been established. Art. XVII, sec. 9 of the constitution and the act of 1889 and its supplements require municipal consent. This is a condition precedent, and without it a company incorporated thereunder has no right, present or future, to occupy streets. The prior company not having obtained such consent, has no standing by bill of injunction to question the right of a later company to occupy such streets, because it cannot be said within the meaning of the law to have suffered special damage: Larimer, etc., Street Railway Co. v. Street Railway Co., 137 Pa. 533. If the prior company did obtain municipal consent in the first instance, but lost it by failure to perform the conditions precedent, it is just in the same position as if it had not obtained consent at all: Plymouth Township v. Railway Co., 168 Pa. 181. It is no answer to say that the municipalities have acted unfairly or that the company has become involved financially and has thus been prevented from constructing and completing its line. These are questions for the municipalities and the parties themselves and not for the courts.

Decree affirmed at cost of appellant.


text:
    Maust, Appellant, v. Pennsylvania & Maryland Street Railway Company.

      Street railways — Consent of owner — Construction of road — Notice— Laches — Injunction—Equity.
    Where a landowner by words and deeds, not in express language or specific acts, but in effect consents to the grading of a line of street railway and the laying of the track thereof over a public highway on which his lands abutted, and makes no objection to its construction, he is guilty of such laches as will prevent him from maintaining a bill in equity to compel the line to be torn up and its operation enjoined.
    In such a case, evidence to the effect that the complainant said to the general manager of the defendant company when the latter was looking over the proposed route “I know where you want to go, and go ahead, and I will see you in a few days,” is sufficient to base a finding that the complainant had in fact consented to the construction of the railway over the proposed route.
    Where street railway companies have been permitted to proceed in the construction of their lines by abutting property owners, or township officers, and largo sums of money have been expended thereon, it would be inequitable and unjust to compel the lines to be tom up or their operation enjoined at the instance of a party who either gave his written or oral consent, or who stood by and said nothing while the work of construction was going on and the expenditures were being made.
    Argued Nov. 8, 1907.
    Appeal, No. 203, Oct. T., 1907, by plaintiff, from decree of C. P. Somerset Co., Equity Docket, 1906, No. 14, dismissing bill in equity in case of Samuel P. Maust v. Pennsylvania & Maryland Street Railway Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    From the record it appeared that plaintiff owned twenty-six acres of land in Elklick township which abutted upon one side and at other places on both sides of a public highway.
    Kooser, P. J., found as follows as to the plaintiff’s knowledge of the location and construction of the railway:
    6. That on the last of September, 1906, — perhaps the last day of September — in the progress of its work from the borough of Salisbury toward the borough of Meyersdale, the defendant company by its agents and employees, having proceeded regularly from the borough line of Salisbury, a distance of about two miles, entered upon the said township road in Elklick township, where plaintiff’s property abuts on both sides of said road, and began the work of grading its roadbed without the consent of plaintiff first had in writing or without specific verbal consent, first obtained, but with the knowledge of the plaintiff and without his objection or protest.
    7. That the plaintiff resides along the route of the defendant company’s road between Salisbury borough and Meyers-dale borough and about two miles from Salisbury borough where Harvey H. Maust, the defendant’s general manager, and John M. 'Wright, the defendant’s assistant manager, both reside; that the plaintiff knew for at least thirty days prior to the time the defendant commenced work on that portion of its road located upon and over his lands, that it was the intention of the defendant company to build upon and over the land complained of and described in the plaintiff’s bill. Yet, notwithstanding such knowledge on his part, the plaintiff made no objection until the defendant had laid out large sums of money in the construction of its road.
    Before the bill was filed, the road was graded, ties laid and the rails in place, but not all spikes driven, and poles were erected over the said Maust land.
    8. That at and before the last day of September, 1906, there were, and yet are two corporations, the defendant company, and the Meyersdale & Salisbury Street Railway Company, each claiming a charter route between Meyersdale and Salisbury, with surveyed routes on opposite sides of the river near this farm of plaintiff, and that between the date of the beginning of the survey of defendant’s route and October 3, 1906, with knowledge of defendant’s location, its charter and of its operations, the plaintiff told officers of defendant company that he did not know if he had any objections to the building of defendant’s road, but would let them know within a few days; that he entered no objections earlier than October 3 (the notice yet to be found), but told officers of the road after the survey was completed that it made no difference to him which company built the road just so a trolley road was built; that he would like to see it built, no matter which company built it. Plaintiff’s bill was not filed until defendant’s grading was completed from Salisbury borough to Meyersdale, a distance of about five and one-half miles, December 5, 1906.
    9. That the plaintiff consented to the entry by defendant upon the road in question at the place complained of, and by his words, acts and laches led the defendant to entry upon the road at said point, and induced it to lay large sums of money and contract still larger obligations by his said words, acts and laches.
    A decree was entered dismissing the bill.

      Error assigned was the decree of the court.

      J. G. MacConnell and W. H. Koontz, with them Samuel J. Graham, A. C. Holbert, J. G. Ogle and H. H. Berkeley, for appellant.
    In the light of the foregoing facts this case is ruled by Hannum v. Media, M. A. & C. Electric Ry. Co., 200 Pa. 44, and Penna. R. R. Co. v. Turtle Creek Valley Electric Ry. Co., 179 Pa. 584.
    The defendant, it must be admitted, had invaded the plaintiff’s rights in an illegal and unauthorized manner, and when private rights have been invaded in an unlawful manner by a corporation the court will inquire into and pass upon the legal status of the latter and its right to do the act complained of: Germantown, etc., v. Citizens’ Ry. Co., 151 Pa. 138; Edwards v. Pitts. Junc. R. R. Co., 215 Pa. 597; Hannum v. Media, M. A. & C. Electric Ry. Co., 200 Pa. 44.

      Ernest O. Kooser, with him J. A. Berkey, C. L. Shaver and Edmund E. Kiernan, for appellee.
    The bill was properly dismissed: Heilman v. Street Ry. Co., 175 Pa. 188; Becker v. Street Ry. Co., 188 Pa. 484; Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; Messner v. Lykens, etc., Street Ry. Co., 13 Pa. Superior Ct. 429; Shimer v. Easton, etc., Street Ry. Co., 7 Northampton, 249.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

Maust, the appellant, an abutting property owner, has filed this bill to enjoin the defendant company from laying down or placing ties and rails or constructing its track upon the township road running through his farm. After a full hearing the preliminary injunction was dissolved, and a decree entered dismissing the bill. The learned court below based its decree upon the ground that appellant by words and deeds, not in express language or specific acts, but in effect, consented to the grading of the line and the laying of the track over the public highway and through the abutting lands of appellant. It is further held that appellant was guilty of laches under all the circumstances of the case, and could not in good conscience ask a court of equity to protect him in the enjoyment of a legal right when he himself had consented to, or acquiesced in, the construction of the line of street railway over the highway through his property. It is true no consent in writing, or in express words, was given, and there is a conflict of testimony as to what was said and done by appellant when the agents or representatives of the appellee company made the survey, and subsequently came upon his lands to grade and construct the line. As to findings of fact we are confronted with the rule that they come before this tribunal with the force and effect of the verdict of a jury, and will not be disturbed unless for manifest error. Under the settled rule it is not sufficient to say that if the testimony had been before us in the first instance we might have found differently: Plankington’s Estate, 212 Pa. 235. The learned court below saw the witnesses, heard their testimony, observed their manner, was familiar with the whole situation and the circumstances which surrounded it, and was in better position to correctly ascertain and determine the facts than we are. This court would not be justified in reversing a finding of fact unless there was clear error: Lazarus’s Estate, 142 Pa. 104. In this connection the testimony of "Wright, an assistant manager, cannot be overlooked. He testified that when the survey was being made, while appellant and the general manager were looking over the proposed route, Maust said : “ I know where you want to go and go ahead, and I will see you in a few days.” This testimony is substantially corroborated by two other witnesses and by other circumstances in the case, and in our opinion is sufficient to justify the findings of the court below on this question.

Again it must not be overlooked, that appellant has come into a court of equity to seek its aid by injunction, which is of grace and not of right. The prayer in every such bill is to the conscience of a chancellor. As a general rule relief will not be granted where the benefit to the complainant is entirely disproportionate to the injury complained of, Becker v. Street Railway Company, 188 Pa. 484; or where there is an adequate remedy at law or where the party seeking redress has placed himself in such a position that to grant his request would work an injustice to the other party whom he has led to believe could do the particular thing which he now undertakes to restrain. An injunction will not be issued when upon a broad consideration of the situation of all the parties in interest, good conscience does not require it: Messner v. Railway Co., 13 Pa. Superior Ct. 129. Where street railway companies have been permitted to proceed in the construction of their lines over highways by abutting property owners, or township officers, and large sums of money have been expended thereon, it, would be inequitable and unjust to compel the lines to be torn up or their operation enjoined at the instance of a party who either gave his written or oral consent, or who stood by and said nothing, while the work of construction was going on and the expenditures were being made. On this question see Pennsylvania Railroad Company v. Montgomery County Passenger Railway Company, 167 Pa. 62. These companies are local modern conveniences and their extension through rural communities in recent years has been of great benefit to the public generally, and to abutting property owners in particular. The interest of the public must be taken into consideration by a chancellor when passing upon the equities and legal rights of the parties involved in the controversy: Heilman v. Street Railway Company, 175 Pa. 188. Of course, street railway companies, like all other corporations, only possess such privileges and powers as are conferred upon them by the acts of assembly under which they are incorporated. They are required to assert their charter rights in an orderly and lawful manner. They cannot violently take possession of public highways or private property and appropriate either or both to their corporate use. They should always secure the consent of township officers and private landowners in advance of the work of construction. If, however, an abutting landowner says to an agent in charge of construction, or of the survey, “You go ahead and construct your lines, I will see you later,” or by other words and deeds consents to such construction over his lands, or if he sits by while the grading is being done and track laid, saying nothing, and by his acquiescence leads the company to believe that he has given his consent, he will not be permitted after all this work has been done and expenditures incurred, to come into a court of equity and secure through its processes the enforcement of a supposed legal right. In such a case he will be remitted to an action at law for the recovery of such damages as he may have sustained.

Decree affirmed at cost of appellant.


author: Mr. Justice Brown,

text:
    Allen, Appellant, v. Kirk.

      Equity — Specific performance — Misrepresentations—Innocent statements tending to mislead — Discrepancy in size of lot.

    Where one of two parties to an agreement for an exchange of lands innocently and unintentionally-misleads the other as to the size of the lot which he is to receive, equity will not specifically enforce the contract.
    On a bill- in equity for specific performance it appeared that plaintiff and defendant entered into an agreement to exchange real estate. Plaintiff’s land was a city lot. Plaintiff drew a rough sketch of it which was practically a rectangle. The southerly line was indicated to be 191- feet, the westerly line, 156 feet, and the easterly fine, 155 feet. The length of the northerly fine was not indicated. This sketch was delivered by the plaintiff to the real estate agent who was effecting the deal. The agent gave it to defendant. The sketch was made without fraud by plaintiff, and without knowledge of the length of the northerly line. There was no deed on record at the time the agreement was made which indicated the length of this line, nor were there any monuments, marks or corners upon the ground, and no buildings adjoining it, which in any manner indicated the northern or easterly lines. The defendant visited the lot on a cold and stormy day, when there was snow on the ground, and made only a casual examination of it. After the agreement was signed, and when the title was being examined, the deed to plaintiff was placed on record, and a survey was subsequently made, and there was found to be a discrepancy of about twenty-one feet between the real length of the northerly line and the length which the defendant supposed it to be. When plaintiff at first tendered a deed it was refused on the ground that the alleged shortage of the northerly line was five feet. Upon the filing of the bill the reason for refusing was that the northerly line of the property was twenty-one feet shorter than defendant expected it to be. Held, that the plaintiff was not entitled to specific performance.
    Argued Nov. 6, 1907.
    Appeal, No. 132, Oct. T., 1907, by plaintiff, from decree of C. P. No. 1, Allegheny Co., June T., 1905, No. 436, dismissing bill in equity in case of Edward Jay Allen v. David Kirk and Ella B. Kirk.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Before Macfarlane, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court dismissing the bill.

      William A. Way, with him Albert J. Walker, Alvin A. Morris and Harold Allen, for appellant.
    If a purchaser chooses to judge for himself and does not thoroughly use all the opportunities and sources of information open or offered to him, he cannot be permitted to set up his own carelessness and imprudence and claim to have been misled: Phipps v. Buckman, 30 Pa. 401; Clark v. Everhart, 63 Pa. 347; Morgan v. Scott, 26 Pa. 51; Hostetter v. Daly, 25 P. L. J. (N. S.) 223; Fisher v. Worrall, 5 Watts & Sergeant, 478.

      A. Leo Weil, with him Charles M. Thorp, for appellees.
    The defendants were misled by the plaintiff as to matters which were material, which were not patent and which were not readily discoverable by inspection. Even if some doubt upon these questions existed, still defendants should not be held to specific performance, because this equitable remedy is a matter of grace and not of right, and where there is a reasonable doubt in the mind of the chancellor as to the intention of the parties and as to whether their minds actually met in the contract, specific performance should not be decreed: Reilly v. Gautschi, 174 Pa. 80; Cortelyou’s Appeal, 102 Pa. 576; Brown v. Pitcairn, 148 Pa. 387; Friend v. Lamb, 152 Pa. 529.
    January 6, 1908:
   Opinion by

Mr. Justice Brown,

By no one of the assignments of error in this case are we asked to disturb any finding of fact of the court below, and under its findings a decree of specific performance could not have been equitably made. The contract which the appellant would have thus enforced was for the exchange of real estate. The lot which he agreed to convey to Kirk, the appellee, is situated in the city of Pittsburg, at the northeast corner of Penn and Brushton avenues, and in the agreement is described as “ having a frontage of 191.52 feet on Penn Ave., and a depth of 156.41 feet on Brushton Avenue.” The decree asked for was refused, because the dimensions of the lot as given in the deed tendered to the appellee varied materially from those which the court found he had understood them to be.

. ' The contract between the parties was effected by a real estate agent, who had been authorized by Kirk to sell his property for cash. After sundry negotiations he submitted to Kirk an offer of the appellant to exchange for it the lot described and $10,000 in cash. During the negotiations the appellant prepared and furnished Minnemeyer, the agent, a pencil sketch of his lot, not purporting to be drawn to scale. This sketch showed the southerly line on Penn avenue to be 191.525 feet, the line on Brushton avenue 156.415 feet, and the easterly line 155 feet. It did not show the measurement of the northerly line of the property. The sketch was practically a rectangle. Minnemeyer delivered it to Kirk. At the time the appellant made it he did not know the exact dimensions of the northerly line, its length, as given in the deed from his grantor, having been but an estimate between them, and the length of this line was omitted from the sketch by the appellant for the reason that he did not wish to make a statement thereon. The sketch was drawn by the appellant without any fraud and without intent to deceive the appellee. During the negotiations and before the agreement was signed, Minnemeyer offered to show Kirk the lot, but he declined to look at it. Later, however, he visited it on a cold, stormy day, when there was snow, on the ground, and made a casual examination. There were no monuments, marks or corners upon the ground and no buildings or erections adjoining it which in any manner indicated the location of the easterly line opposite Brushton avenue, or the northerly line opposite Penn avenue, and there was nothing to indicate that the easterly line was not parallel to the line on Brushton avenue or that the lot was not practically a parallelogram. The angle at Penn and Brushton avenues' appeared upon the ground, but was not noticed by the appellee. The deed from Walker, the appellant’s grantor, executed on March 4, 1904, gave the dimensions of the northerly line as 175.09 feet. This deed was not recorded until March 30, 1905. Kirk, upon examining the property, decided not to make the exchange, and so notified the agent, but several weeks thereafter, negotiations were renewed, and, without 'any further information as to the shape and dimensions of the lot, the contract was executed. At the time of its execution Kirk believed he was to secure the conveyance of a lot of the dimensions shown upon the sketch, that its northerly line was about 191 feet long and that it was practically rectangular. He was led to this conclusion by the plan or sketch prepared by the appellant. The appellee employed a title company to examine the title to the appellant’s lot, when it was discovered by the company that his deed was not upon record, and Kirk was notified that a survey should be made. This was made and a draft of the lot sent to the appellee on March 15, 1905. As soon as he learned its actual dimensions and the discrepancy between its actual size and shape and what he believed them to be, he notified the appellant that the contract could not be performed because of such discrepancy and the misrepresentations which he claimed had been made with reference to the size and shape of the property. The discrepancy between the size of the lot for which the appellant tendered a deed and the size which the appellee believed he was to obtain was material and sufficient to affect his mind in making his agreement, and, had he known the facts, he would not have executed the contract. When the appellant, on March 30,1905, tendered to the appellee a deed, it was refused, and the reason for the refusal of the tender was an alleged shortage of five feet in the northerly line. Upon the filing of the bill the reason for refusing was that the northerly line of the property was some twenty-one feet shorter than he had expected. Upon the foregoing facts, found by the court and not challenged, the bill for specific performance was dismissed.

The contention of the appellant is that the appellees ought not to be permitted to resist specific performance of their contract on the ground that the actual dimensions of the lot varied materially from what they believed them to be at the time the agreement for the exchange was made, because prior thereto David Kirk had personally viewed the land and had full opportunity to inform himself as to the angle made by the streets, it appearing clearly defined on the ground ; and it is urged that a misconception as to the angle resulting from the sketch made by the appellant, without any attempt to deceive, though susceptible of the construction put upon it by the appellees, is no excuse for their non-performance of their agreement. It is true Kirk did go and view the lot before entering into the agreement, but it was on a cold, stormy day, snow was on the ground and the examination made was but a casual one. There were no monuments, marks or corners upon the lot, and no buildings or erections adjoining it in any manner indicated the location either of the easterly or northerly line of the property, and there was nothing to indicate that the easterly line was not parallel to the line of Brushton avenue or that the lot was not pratically a parallelogram. The angle at Penn and Brushton avenues was not noticed by the defendant. Before he viewed the lot he had been shown the sketch of it prepared by the appellant himself, indicating it to be practically a rectangle, and he was led to believe from this sketch that the northerly line was about 190 feet long and that the lot was practically rectangular. These are undisputed facts, and, in the face of them, it is ungracious to ask that the appellees be compelled to take that which, under a further unchallenged finding of the court, they would not have agreed to take if they had known its real dimensions.

It does not appear that when the agreement was entered into any deed was on record from which the length of the northerly line could have been ascertained. The lot was part of a larger tract originally owned by the appellant and Walker as cotenants. Their deed ivas on record, but from it the dimensions of the part subsequently sold by Walker to the appellant could not have been ascertained. In the deed from Walker to Allen the dimensions of the lot are given, but that deed was not placed on record until March 30, 1905 —more than a month after the date of the agreement. It was only after the title company discovered that a survey was necessary and the same was made that the discrepancy was discovered. That this is a material one is not disputed. Instead of getting a lot of equal width throughout, it is between twenty and twenty-one feet shorter in the rear than on the front. The lot is a corner city.one, and, as to such, a variation much less would be most material. Some stress is laid upon the fact that the tender of the deed was first refused on account of an alleged shortage of only five feet. Such a shortage in such a lot might be material, but whether it was or not, the appellees had a right, on coming into court, to defend on the real measurement in the case, giving them twenty-one feet less than they had a right to expect under their agreement.

The learned judge below cited authorities to support his correct conclusion that the bill ought to be dismissed, but he needed none. The equities were all with the appellees. The appellant, who sought relief, came into court with none. He had innocently and unintentionally, as found by the court, misled the parties with whom he contracted, but out of their mistake, so induced, no contract arose which equity would enforce. Wherever the defendant’s mistake was, either intentionally or not, induced or made probable or even possible, by the acts or omissions of the plaintiff, then, on the plainest principles of justice, such error prevents a specific enforcement of the agreement: ” 2 Pomeroy’s Equity, sec. 860.

Decree affirmed at appellant’s costs.