text:
    Chisholm, Appellant, v. Thompson.

      Appeals — Assignments of error — Evidence—Exceptions.
    1. In an equity ease, assignments of error complaining of rulings on the evidence which fail to state where the testimony referred to can be found in- the paper-book, and assignments complaining of findings which fail to specifically show that an exception was taken and pressed in the court below, or, if taken, to indicate how finally disposed of, are defective and will be dismissed.

      Equity — Bill to quiet title — Title—Boundaries—Deeds—Description— Monuments — Courses and distances.

    2. Upon a bill to quiet title, to fix the line between two adjoining pieces of real estate, and to restrain the defendant from constructing a building, where both parties claim through common grantors and where the dispute is over the ownership of a strip of ground partly covered by a partition wall between the buildings on the respective lots and running of that width the entire depth of the properties, and where the grant to the defendants was several years prior to that of the plaintiff, the former’s property being described as “all that certain lot with the buildings thereon erected” and “having erected thereon a three-story brick store” and containing a given number of feet front sufficient to include the ground in dispute, and the latter’s property being described without fixed dimensions as bounded on the west by the lot of the defendants; and where the facts show that, although the wall in its original state belonged at first to the house erected on the plaintiff’s lot, for more than three-quarters of a century it had been used and treated as though belonging to the property of the defendants, a decree in favor of the defendants will not be disturbed.
    3. The particular mention of a building in the description of a lot conveyed may constitute a monument which will include all the ground covered by such building and fix the lines of the land. While monuments capable of being identified must always control courses and distances, the measurements of the lines whose courses and distances are given should not be disregarded in determining the identity of the monuments claimed to be found with those referred to in the deed.
    Argued May 8, 1911.
    Appeal, No. 245, Jan. T., 1910, by plaintiff, from decree of C. P. Fayette Co., Equity No. 552, on bill in equity in case of Daniel Chisholm v. Josiah Y. Thompson et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Bill to quiet title, to fix the line between two adjoining pieces of real estate, to restrain the defendants from constructing a building, and to ascertain and award damages.
    The bill averred that the defendants were about to erect a building the easterly wall of which would encroach upon the westerly side of the adjoining lot belonging to plaintiff. The defendants answered that the strip of land upon which the plaintiff claimed they were about to encroach belonged to them and not to the plaintiff.
    The case was heard on bill and answer and the court below filed an opinion in which the principal material facts were found, and the respective contentions of the parties were stated, as follows:
    “In the early part of the nineteenth century Isaac Beeson owned in fee simple, inter alia, a lot in the borough of Uniontown, Pa., situate in the block between what is now Beeson avenue and Morgantown street on the south side of and fronting about sixty-four feet five and one-half inches on Main street, extending back the same width, 150 feet to South street. The first improvement on the said lot was a two-story brick dwelling house, which extended from what has long been known as the Harah lot on the east, along Main street westwardly twenty-seven and fifteen one hundredths feet. The west end of this dwelling was a regular nine-inch brick wall, and from the square of the building up, was a triangular gable, highest in the center, sloping to the north and south with the pitch of an-ordinary comb roof.
    “ About 1832, some years after the erection of the said dwelling, Mr. Beeson erected on a part of the said lot a partly one and a partly two-story brick building for a business block, including in part and extending from the west wall of the dwelling on the east side to the adjoining property on Main street on the west. At the eastern end of the business block it was so constructed that there was a passage or small alleyway to the immediate west of the dwelling, which alley or passageway was open to about the height of the first story, and there was operated through it for many years a tramway for the transportation of merchandise, etc., from Main street to and from the warehouse in the rear. At the top of the Main street end of this passage or alleyway an arch was constructed and above it the business block was extended eastwardly to and connected with the west wall of the dwelling. The front or Main street wall of the business block was built flush or even with the front wall of the dwelling, and from the top of the passage or alleyway the construction was such that the brick were interlocked so that from the aforesaid arch up to the square of the dwelling the two front walls were so joined as now to appear and look like a single wall all built at the same time. The business block extended southwardly beyond the south line of the dwelling at its southwest corner, and from that comer southwardly the east wall of the business block was built so as that its western side was even and flush with the western side of the west end wall of the dwelling and its eastern side was about nine inches east of the said west side of the west end wall of the dwelling, and it was built on the strip of land in dispute.

      “ From the aforesaid, it will be observed that at the time of the erection of the business block, that part of it immediately west of the dwelling had no east wall of its own separate from the west wall of the dwelling, from the top of the passage or alleyway to the top of the dwelling— the west wall of the dwelling serving for that purpose— but south of and beyond the south line of the dwelling the business block did have a separate and distinct east wall and standing upon the strip of land in dispute. About 1851 a third story was added to a part of the business block and its construction from the top of the old said west end wall of the dwelling it was just built above the gable, so that the east wall for that part of the third story of the business block was only the said west wall of the dwelling extending upwards. Eventually the tramway in the passage or alleyway was abandoned and the opening bricked up by extending that part of the north and south walls of the business block eastwardly to the west end of the dwelling and thus taking the alleyway space into the éast first floor room of the business block, and thereafter the west wall of the dwelling from the ground up was the east wall of the business block. When the alleyway was closed and the walls extended the brick were not interlocked in the front and west wall of the dwelling as they had been from the top of the alleyway .to the top of the square of the dwelling when the business block was originally constructed, but left a broken joint and as a consequence it is not difficult to determine the original outline of the foundation and walls of the dwelling.
    “ Mr. Isaac Beeson or his lineal descendants owned the fee simple title to the entire lot during all the time of the construction of the said buildings and the making of the said and other changes. In effect when the said changes were completed the two said buildings were really but one building, partly one, partly two and partly three stories high, part used for a dwelling and part for business purposes, so that the west wall of the dwelling and that part of the east wall of the business block were one and the same and was in fact nothing more nor less than what is termed a cross wall, up to the top of the dwelling. If the entire structure be considered as two buildings this cross wall is just as much a part of one as of the other, as without it the dwelling has no west wall, and without it the business block has no east wall, at least the extent of the dwelling, and none at all if plaintiff’s contentions prevail.
    “ By due process of law it so happened that in 1890 the fee simple title to the whole of said lot and improvement was vested in Miss Jennie B. Beeson and her sister, Mrs. Louisa Mathers, subject to the dower rights of their mother, Mrs. Amanda L. Beeson. At and for some considerable time before the date last aforesaid R. F. Hop-wood, Esq., acted as-agent for the sale of yarious pieces of real estate for the said Jennie B. Beeson and her sister, and as such agent he negotiated with the representatives of the Uniontown Young Men’s Christian Association, and at least one other party, for the sale of the western part of the said lot, which was proceeded in so that on September 10, 1890, a written agreement was concluded between the Beesons and a representative of the Y. M. C. A. for the sale and purchase of all that part of the said ■ lot described as follows, viz.: ‘All that certain lot of ground with the dwelling thereon erected, situate on the south side of Main street, Uniontown, Pa., bounded and described as follows: Beginning at corner of lot of C. Claggett’s heirs and running thence eastwardly along Main street about thirty-eight feet to corner of the house lately used as a dwelling by said first parties, now used for offices; thence southwardly at right angles with Main street 150 feet to South street, thence westwardly along said street about thirty-eight feet to corner of Claggett lot aforesaid; thence northwardly by said lot 150 feet to Main street, the place of beginning. It being the property known as the Beeson store property, having erected thereon a three-story brick storehouse on Main street and a brick warehouse and stable on South street.’ Which said agreement on August 12, 1907, was assigned by the proper authorities of the Y. M. C. A., with the approval of the court of common pleas of Fayette county at No. 185, September Term, 1907, to Josiah V. Thompson and John D. Ruby, and in pursuance thereof on December 12, 1907, the said Jennie B. Beeson et al. executed a deed for the said premises to the said Thompson and Ruby, subject to the dower interests of Mrs. Amanda L. Beeson, and at a later date the said Thompson and Ruby sold and agreed to convey the said premises to Lee Stern, Joseph Stern and Samuel Stern, the other defendants. On December 29, 1893, more than three years after the Y. M. C. A. had purchased and taken possession of the ‘three-story storehouse,’ the plaintiff herein purchased by articles of agreement the remainder of said lot, described as follows, viz.: ‘All that certain lot of ground situate on the south side of Main street in the borough of Uniontown, Fayette county, Pa., and running through from Main to South street, bounded on the east by lot of John S. Harah and on the west by lot of Y. M. C. A., being the same property heretofore used as a dwelling by said first parties, now occupied by offices of O. P. Marldey et al.’ Which article of agreement was followed by a general warranty deed dated April 2, 1894, recorded in the recorder’s office of Fayette county, in Deed Book, vol. 128, p. 334, in which said deed the description is the same as that quoted above from agreement.
    “ The aforesaid facts developed the contentions between the parties to this action as to the ownership of the said cross wall, the entire east wall of the business block and the strip of ground about nine inches wide extending from Main street through to South street. It is contended on the part of the plaintiff that his agreement and conveyance called for and carried the entire ‘property heretofore used as a dwelling’ and all that part of the lot covered by it, and since the first two stories of the said west or cross wall were built as a part of the dwelling house his lot must of necessity extend to and include everything to the line that was the out and west side of the dwelling house when it was originally constructed, which was the east side of the aforesaid passage or alleyway when the business block was first completed, and he further claimed that the aforesaid purchase by the Y. M. C. A. was only to the corner of the said dwelling and did not include the east wall of the business block. The defendants contend that the contract for the sale to the Y. M. C. A. antedating that to the plaintiff, and ‘it being the property known as the Beeson store property, having erected thereon a three-story brick storehouse on Main street’ and the distance expressed, while it says ‘about thirty-eight feet,’ being within the fractional part of an inch to carry the strip of land in controversy to the Y. M. C. A.
      and through it to the defendants, the said wall and strip of ground belonged to them. And in support of their contention the aforesaid R. F. Hopwood testified as representing the Beesons, to having made the actual measurement on the ground so as to include the said wall and strip of land in the sale to the Y. M. C. A. and that it was clearly and distinctly the purpose to sell to the Y. M. C. A. the three-story building, and there is other evidence to the same effect. And in addition there is evidence of a fence having once been maintained from the rear of the building toward South street on the line claimed by the defendants, indicating such division of the said lot by the Beesons years ago — which appeared by marks on the ground and by reference to plan No. 2 attached to defendants’ answer. There is some conflict in the testimony regarding the agency of Mr. Hopwood but in our opinion none of a positively serious character, and we cannot conclude otherwise than as testified by Mr. Hopwood in that regard, and also as to measurements made by him on Main street, as, if it had not been the intention to include the wall and strip of ground in dispute in the Y. M. C. A. agreement, the measurement to the broken joint where the alleyway was walled up and the point to where it would then have extended, would have been a very simple matter and could easily have been determined exactly. If that had been the intention, Mr. Hopwood’s measurement was off eight and one-fourth inches, whereas taking what we find the intention to have been, his measurement was correct to within three-eighths of one inch.

      “ In view of the foregoing and of the fact that at the date of the contract with the Y. M. C. A., the said Jennie B. Beeson and Louisa Mathers were the owners of the entire lot, we conclude and find as a fact that it was the purpose and intention of all parties in interest to sell and purchase the entire three-story brick building and the ground on which it and its necessary walls stood, and having concluded that the wall in controversy is a necessary part of the business block or three-story building, the sale of the said three-story building included the said wall, and this being a fact, we find, conclude and hold as a fact that the title to the said wall and the nine-inch strip of ground passed from Jennie B. Beeson and Louisa Mathers when they sold the ' Beeson store property, having erected thereon a three-story brick store-house,’ to the Y. M. C. A.
    “ There is no question but that on September 10, 1890, the date of the agreement with the Y. M. C. A., all the parties in interest were under the impression, so far as the matter was given consideration, that at the point in dispute there were two walls — one for the west end of the dwelling and one for the east end of the business block, instead of being merely a single cross wall. While we are satisfied and find as a fact that it was the intention to sell and purchase the whole three-story building by the agreement of September .10, 1890, yet we are equally well satisfied that it was not the intention to sell and purchase a wall- that was supposed to be there as the west wall of the dwelling, yet we do not think that the absence of such wall could affect the sale to the Y. M. C. A.”
    On May 24, 1910, the court below dismissed plaintiff’s exceptions and confirmed the decree previously entered refusing the injunction, fixing the line between the lots as contended for by the defendants, and dividing the costs between the parties. Plaintiff appealed.

      Errors assigned were (1) finding of fact that Hopwood acted as agent for the Beesons in negotiating with the Y. M. C. A. for the lot subsequently deeded to the defendants; (2) admission of Hopwood’s testimony showing how he made the measurements of the front of defendants’ lot so as to include the wall in dispute; (3) admission of Hopwood’s testimony to the effect that at the time of the conveyance to the plaintiff he had explained to him the prior conveyance to the defendants, that he had declined to permit his clients, the plaintiff’s grantors, to make a deed to the plaintiff describing the property as containing any defined frontage, and that this was done for the purpose of not expressly including the wall in such conveyance to the plaintiff; (4) finding of fact that the sale to the Y. M. C. A. passed the title of the .strip of land and wall in dispute; (5) conclusion that monuments upon the ground designated by the parties sufficiently marked the measurements so as to include the strip of land in dispute in the property conveyed to the defendants; (6) conclusion of law that the principle “that where one of two or more innocent parties must suffer, the loss must be sustained by those who are most to blame” applied in this case in favor of the defendants; (7, 8) form of decree; (9) final order dismissing exceptions and confirming the decree.

      D. M. Hertzog, with him A. D. Boyd, for appellant.
    Parol testimony cannot be introduced to modify or explain descriptions embraced in deeds for real estate except in cases of latent ambiguity in the descriptions themselves, or fraud, accident or mistake: Shepherd v. Watson, 1 Watts, 35; Duffield v. Hue, 129 Pa. 94; Fuller v. Weaver, 175 Pa. 182; Hunter v. Hunter, 37 Pa. Superior Ct. 311; Root’s Est., 187 Pa. 118; Henry v. Huff, 143 Pa. 548; Hughes v. Westmoreland Coal Co., 104 Pa. 207.
    The fifth assignment is supported by Thompson v. Kauffelt, 110 Pa. 209; Breneiser v. Davis, 134 Pa. 1.

      W. J. Sturgis, with him E. H. Reppert and S. J. Morrow, for appellees.
    Appellant’s counsel lay much stress on the wording of the contract of sale to the Y. M. C. A. As Chisholm, the appellant, does not claim under this contract, it is not clear that it is a vital matter to him: Province v. Crow, 70 Pa. 199.
    That parol evidence is competent in such a case is well established: Safe Deposit & Trust Co. v. Mfg. Co., 229 Pa. 295; Swartz v. Moore, 5 S. & R. 257; Carroll v. Miner, 1 Pa. Superior Ct. 439.
    The mention of a building may constitute it a monument so as to carry the limits of the land conveyed by a deed beyond the distance mentioned therein: White v. Williams, 48 N. Y. 344; Cecconi v. Rodden, 147 Mass. 164 (16 N. E. Repr. 749); Tyler v. Fickett, 73 Me. 410.
    October 9, 1911;
   Opinion by

Mr. Justice Moschzisker,

The manner in which the appellant’s paper-book was prepared and printed has added greatly to the difficulty of review. Many pages of testimony are duplicated in such a way as to lead to confusion; connected and essential words are left out of the findings and several important exhibits are omitted. Scarcely any of the assignments of error conform to the equity rules or the rules of this court. Equity rules 64-67 provide that after the adjudication is filed exceptions may be taken in the court below, “which exceptions shall cover all objections to rulings on evidence, to findings of fact or law or to the decree;” and if no such exceptions are filed, “all objections shall be deemed to be waived.” If exceptions are filed, they must be heard and passed upon by the court below “as upon a rule for new trial,” and “upon appeal to the Supreme or Superior Court such matters only as have been so excepted to and finally passed upon .... shall be assignable for error:” New Cumberland Borough v. Riverton Cons. Water Co., 232 Pa. 525. Court rule 29 provides that “each error relied upon must be specified particularly and by itself,” and rule 31 provides that when the error assigned is to the admission or rejection of evidence, the specification must give “a reference to the page of the paper-book where the matter may be found in its regular order in the printed evidence,” and “any assignment of error not according to this rule will be disregarded:” Kaufman et al. v. National Lumber Ins. Co., 000 Pa. 000. Each of the specifications of error, except the ninth, in some way offends against these rules, in that it fails to state where the testimony referred to can be found in the paper-book, or specifically to show that an exception was taken and pressed in the court below, or, if taken, to indicate how finally disposed of.

While we will not pass separately upon each of these faulty assignments, we have examined the matters covered by all of them and are not convinced that the decree of the court below should be disturbed. The deed to the plaintiff was made more than three years after the sale of the defendant’s property to the Y. M. C. A., and the grantors used especial care in describing the property conveyed to the plaintiff so as not expressly to include the wall in dispute. The frontage is not stated in the description and no dimensions are given, the lot simply being mentioned as “bounded on the .... west by lot of Young Men’s Christian Association.” The plaintiff now contends that the property so described included the wall claimed by the defendants as embraced in the conveyance to the Y. M. C. A. The description in the deed to the latter was, “All that certain lot ... . with the buildings thereon erected .... beginning at the corner of the lot of C. Claggett’s heirs and running thence eastwardly along Main street about thirty-eight feet to the corner of the house lately used as a dwelling . , being the property known as the Beeson store property, having erected thereon a three-story brick store on Main street. ...” The testimony shows that the dwelling house referred to was originally erected upon the premises of the plaintiff in or about the year 1824, two stories in height; that a building was erected on the adjoining lot, now belonging to the defendants, in about 1832, and that the wall in dispute from that time on was used in common; that about 1852 the wall was run up one additional story in order to place a third floor upon the defendants’ property; and that about 1872 a one-story structure was added in the rear of the defendants’ three-story building, the wall in question being extended for that purpose. Thus it appears that for almost three-quarters of a century the wall was used and treated as though it belonged to the premises now possessed by the defendants rather than to the adjoining dwelling house, and the frontage of thirty-eight feet in the defendants’ deed is sufficient to embrace it, within the fraction of an inch. The court was not bound to ignore all of these circumstances and to construe the deed of the defendants as excluding, and that of the plaintiff as including, the ground covered by the wall.

No question of jurisdiction was raised in the court below or on this appeal. As the case was tried, its determination was made to depend upon the construction to be placed upon the description of the defendants’ property, the strip of ground occupied by the wall and running of that width to the rear line of the property being the subject-matter in controversy. The plaintiff’s title and that of the defendants came from the same common grantors, and neither conveyance specifically referred to the wall; the question was, which of them included it. If the prior conveyance under which the defendants claimed, included the wall, of course the later one to the plaintiff did not. Had the description in the former conveyance plainly excluded the wall, then no outside evidence could have been considered; but .as the wall was not mentioned, we are not prepared to hold that the court below was bound to construe the words “to the corner of the house lately used as a dwelling,” which occur in such description, as excluding it. A description, “running to the corner of a property,” ordinarily would mean to the outside wall of the premises referred to; but if the property did not happen to have an outside wall, such description could not be taken to intend that which was not there. The court below has found that the premises in question did not have such a wall, but on the contrary that the only one in existence at that point had been treated as belonging to the lot conveyed to the Y. M. C. A and subsequently deeded to the defendants. This property was described as a lot “with the buildings thereon erected .... a three-story brick store-house.” The mention of a building may constitute a monument (White v. Williams, 48 N. Y. 334; Carroll v. Miner, 1 Pa. Superior Ct. 439), and we cannot say that the mention of the building in question could not be taken as constituting a monument which would include all of the ground covered by the structure and indicate the lines of the land.

At the time of the Y. M. C. A.’s purchase the common vendors owned both properties, and they could have conveyed according to any line they might have chosen: Breneiser v. Davis, 134 Pa. 1. It is more reasonable to believe that they retained a building without a west wall than that they sold one with no east wall. The expressed dimensions of the lot conveyed and the specific mention of the building in the description of the defendants’ property could well be construed as including the wall, unless the reference to the corner of the adjoining property plainly indicated otherwise; and what was meant by this reference was in dispute. “ The identity of a monument existing on the face of the earth with one referred to in a deed is always a question of fact” and “While monuments capable of being identified must always control courses and distances, the measurements of the lines whose courses and distances are given should not be disregarded in determining the identity of the monuments claimed to be found with those referred to in the deed:” Tyler v. Fickett, 73 Me. 410.

Under the circumstances, we are not satisfied that the chancellor committed error by considering the surrounding facts in determining the ownership of the wall and strip of land in question (Safe Deposit & Trust Co. v. Mfg. Co., 229 Pa. 295), and while we do not agree with the learned court below as to the applicability of some of the principles of law relied upon, we are not convinced of error in the conclusion reached.

The first eight specifications are dismissed, the last is overruled, and the decree is affirmed; the appellant to pay the costs of this appeal.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Shannon, Appellant, v. Lancaster.
    October 9, 1911:

      Municipal contracts — Sewers—Right to use materials on default of contractors.

    Where a municipal contract for a sewer provides that in case of default by the contractor the city shall have the right to complete the sewer at the expense of the contractor “and use such materials as may be found on the works,” the city has the right, on such default, to use the materials. In such a case, unless rejected by the city, the contractor has no right to dispose of the materials to other parties.
    Argued May 15,1911.
    Appeal, No. 342, Jan. T., 1910, by plaintiffs, from judgment of C. P. Lancaster Co., Aug. Term, 1908, No. 104, for defendant non obstante veredicto in case of J. Jacob Shannon & Company v. Lancaster City.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass for an alleged wrongful taking of material. Before Hassler, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $3,237.25. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      W. U. Hensel, with him S. R. Zimmerman and William A. Carr, for appellants,
    cited: Muscrelli'v. Mercantile Trust Co., 219 Pa. 602.

      Bernard J. Myers, city solicitor, for appellee,
    cited: Hazard v. Hamlin, 5 Watts, 201; Fell v. Fortner, 3 Del. County, 568.
   Opinion by

Mr. Justice Potter,

William G. Stall’s Sons entered into a contract with the city of Lancaster to construct a sewer. The agreement provided that in case Stall’s Sons failed to complete the work in accordance with the contract, the city of Lancaster should have the right to complete the sewer at the expense of the contractors, “and use such materials as may be found on the works.” Stall’s Sons did fail to construct the sewer, and notified the city that they could not complete it. The city then proceeded with the work, and took possession of a quantity of metal lathing which had been purchased by Stall’s Sons from the plaintiffs in this case, and delivered along the line of the sewer.

The plaintiffs claimed the property under an oral agreement made with Stall’s Sons after they became embarrassed, by which they were to take back the materials in question. It is admitted that if at the time of its appropriation by the city, the metal lathing belonging to Stall’s Sons, the city was entitled under the contract to take over the materials, and use them to complete the sewer. As stated by the learned judge of the court below, the plaintiffs allege in their statement of claim that they sold, furnished and delivered the materials to Stall’s Sons, to be paid for as used, and that afterwards when the latter became unable to complete the work, they agreed to take the goods back, and reassumed the title to the goods. The court below very properly held that if as plaintiffs alleged in their statement, they sold and delivered the goods to Stall’s Sons, they became the property of .the latter, without regard to the time of payment. Whether or not the plaintiffs could subsequently reacquire title to the materials would depend upon the action of the city. They had been proffered to it for use in the sewer, and if it accepted the materials under the terms of the contract, there would be no room for the plaintiffs to enter with any claim of title. Counsel for plaintiffs contended in the argument, that the sale was a conditional one, not to be complete until inspection and acceptance of the goods by the city. Even if this be conceded, the privilege of inspection and rejection was that of the city, and it was entitled to a reasonable time in which to exercise that privilege. As a matter of fact, it did not reject these materials but accepted them, and used them in the construction of the sewer, and thus carried out, to that extent, the exact purpose and intention of the parties to the contract. The city, of course, would pay the contractors for this material, when it made a settlement with them of the amount due on the contract, and the plaintiffs should look for payment of their claim, to the party to whom they sold the goods, for the precise purpose and use to which they were applied.

The decision in Muscrelli v. Trust Co., 219 Pa. 602, cited by counsel for appellant, does not apply to the facts of this case, for the reason that there the material furnished was inspected by the city, and was rejected by it, and the city made no claim upon it, and the material was sold at sheriff’s sale. In the present case, as above stated, the city did not reject the materials, but accepted them, and used them as it had a right to do under the contract, and it was of course bound to account for their value, in its settlement with the contractors. The title to the materials left the plaintiffs when they sold and delivered them to the contractors; and when the goods were delivered along the line of the work, they came within the terms of the contract with the city, subject to its right to inspect and approve and retain, if satisfactory. Unless the goods were rejected, there would be no break in the title of the contractors, to the goods, and the consequent right of the city to take possession of the materials found upon the works, as the property of the contractors, would be unimpaired, under the contract.

Judgment for the defendant, non obstante veredicto, was properly entered. The assignments of error are overruled, and the judgment is affirmed.


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

      Appeals — Final decree in equity suit — Assignments of error — Interlocutory decree — Opinion of court — Findings of fact — Conclusions of law — Exceptions.
    1. No appeal can be taken in an equity suit involving the dismissal of a bill until the final decree dismissing the bill has actually been entered; and when such a decree has been entered, it must be assigned as error.
    2. Assignments of error to the opinion of the court below are improper. It is the decree of the court which is assignable as error, and not the opinion.
    3. A decree suggested by the trial judge dissolving a preliminary injunction on condition that the defendant should file a bond, is not a final decree, and a dismissal of exceptions thereto is therefore not assignable for error.
    4. An assignment of error to the admission of the statement of certain facts will not be considered where there was no exception taken to the findings of facts, and the facts themselves are admitted in the assignment, and the real objection is to the conclusion of law reached by the court.
    5. A mere general allegation in an assignment of error that the court below erred in its findings of fact, or conclusions of law, without setting forth the specific findings, or exceptions thereto, is improper and will not be considered.

      Equity — Injunction—Laches.
    6. A suitor who by laches has made it impossible for a court to enjoin his adversary without inflicting great injury upon him will be left to pursue his ordinary legal remedy. This rule is especially applicable where the object of the injunction is to restrain the completion or use of public works, and where the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought.
    7. Where a property owner stands by and sees a railroad company expend |50,000 on the faith of a borough ordinance authorising the vacation of a street crossing, his laches will deprive him of relief by injunction regardless of what his original equities may have been.
    Argued May 17, 1911.
    Appeal, No. 182, Jan. T., 1910, by plaintiff, from decree of C. P. Blair Co., Equity Docket D. No. 588, dismissing bill in equity in case of Joseph B. Condron v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain the vacation and abandonment of a crossing at Montgomery street in the borough of Hollidaysburg.
    From the record it appeared that the plaintiff was the owner of a planing mill, lumber and coal yard south of the Montgomery street crossing. On August 28, 1905, the borough council of Hollidaysburg passed an ordinance authorizing the vacation and abandonment of the crossing. Plaintiff was a member of the borough council and voted against the ordinance. All the other members voted in its favor. There was evidence that the plaintiff stood by while the defendant company spent $50,000 in vacating the crossing and erecting an overhead bridge at the point in question.
    The case was heard on bill, answer and proofs by Bell, P. J., who concluded his opinion in favor of defendant as follows:
    A decree is therefore suggested dissolving the injunction heretofore granted, upon a condition that the Pennsylvania Railroad Company will file a bond in the sum of $6,000 conditioned for the payment to Joseph B. Condron of any damages which he may lawfully recover by reason of the vacation of said crossing at Montgomery street.
    The prothonotary is directed to file this opinion, and enter a rule nisi in accordance with equity rules Nos. 63 and 64, and give notice to the attorneys for the respective parties.
    No final decree was entered by Judge Bell. An appeal, however, was taken, but the case was remitted by the Supreme Court back to the court of common pleas, so that a final decree might be entered. In the meantime Judge Bell died, and thereafter a final decree was entered on May 5, 1910, by Reed, P. J., specially presiding.

      Errors assigned were in the following form: 1. The learned court below erred in refusing to affirm the plaintiff’s first exception, said exception and the court’s ruling thereon, being as follows:
    The learned court erred in its findings of fact, as follows:
    During the recent depression in business, freight traffic fell off greatly, but has partially revived, and is likely in the near future to equal, if not to exceed, the figures testified to by Mr. Smith.
    2. The learned court below erred in refusing to affirm the plaintiff’s second exception, said exception and the court’s ruling thereon being as follows:
    The learned court erred in its legal discussion and conclusion as follows:
    But I am of the opinion that said act of assembly is in pari materia with other legislation regulating borough ordinances. We find that the Act of May 23, 1893, P. L. 113, sec. 3, provides in relation to the duties of chief burgess, as follows: “May veto Ordinances, etc. Every Ordinance and Resolution which shall be passed by said Council shall be presented to the Chief Burgess of such Borough. If he approve, he shall sign it, but if he shall not approve, he shall return it to said Council at the next regular meeting thereof, when said, objection shall be entered at large in the minute book, Council shall proceed to a re-consideration of such Ordinance or Resolution. If after such re-consideration, two-thirds of all the members elected to said Council, shall vote to pass such Ordinance or Resolution, it shall become and be of full force and effect, as if said Burgess had signed it.” Third. This act of May 23, 1893, we think applies to the matter now in consideration. Two-thirds of the members elect did vote to pass the ordinance over the burgess veto. This being so, it became “ of as full force and effect as if the said Chief Burgess had signed it.” To give to the burgess the power contended for the plaintiff, would make him a veritable Czar. He could prevent a street being vacated by ordinance, even if every member of council were in favor of such vacation. We will not adopt such a construction of the act of assembly unless driven to do so by words so unequivocal as to leave no doubt as to their meaning. But as we have said before, we think the act allowing the vacation of streets must be read in connection with said act of 1893, giving the councils a right to override the veto of the burgess, said two acts being in pari materia.
    3. The learned court below erred in refusing to affirm the plaintiff’s fourth exception, said exception and the court’s ruling thereon being as follows:
    The learned court erred in its legal conclusions, as follows:
    Moreover, we think that Mr. Condron, at the time of the filing of this bill, was estopped from raising any question as to the invalidity of said ordinance of August 28, 1905. The councils of Hollidaysburg certainly would have been estopped. It was their duty, or the duty of their proper officers to see that this ordinance was properly advertised. They accepted from the Pennsylvania Railroad Company the fruits produced by the ordinance. The railroad company did just what it agreed to do — put up an overhead bridge at Jones street, at a large expense of money, and paid the borough the $10,000 provided for in the ordinance in question. It would be grossly inequitable after the borough had received the benefit produced by the ordinance to allow the council to repudiate, and does not the same rule as to estoppel prevail as to Mr. Condron? He knew of the ordinance of August 28, 1905, and its passage, because he was present when it was finally enacted and voted nay. He could not fail to see the railroad company erecting the overhead bridge at Jones street. Under such circumstances is he not estopped from now coming in and claiming the aid of a court of equity? Should he not have moved more promptly if he desired to take advantage of technicalities in regard to the passage of said ordinance of August 28,1905?
    4. The learned court below erred in refusing to affirm the plaintiff’s fifth exception. Said exception and the court’s ruling thereon being as follows:
    October 9, 1911:
    The court erred in its legal conclusions, as follows:
    A decree is therefore suggested, dissolving the injunction heretofore granted, upon condition that the Pennsylvania Railroad Company will file a bond in the sum of $6,000, conditioned for the payment to Joseph B. Condron of any damages which he may lawfully recover by reason of the vacation of said crossing at Montgomery street.

      Robert W. Smith, for appellant.

      J. D. Neff and J. D. Hicks, of Neff, Riley & Hicks, for appellee.
   Opinion by

Mr. Justice Potter,

When this case was first called for argument in this court, it appeared that no final decree had been entered, dismissing the bill, and the record was therefore remitted to the court below for further hearing and the entry of a final decree. The case was then heard again before Judge Reed presiding specially, who entered a final decree, in which he overruled the exceptions to the findings of fact and conclusions of law, and dissolved the injunction and dismissed the bill. As the case is now presented, it appears that the specifications of error are defective, in that the final decree of the court below is not assigned for error. Such an assignment is requisite: Clymer v. Roberts, 220 Pa. 162; Kenworthy v. Trust Co., 218 Pa. 286. We refused to hear argument when the case was brought here without a final decree; and now that such a decree has been entered, it has not been assigned for error. This leaves the case substantially as it was before in so far as the decree is concerned.

In the first specification, complaint is made that the court below erred in dismissing an exception to a finding of fact. This assignment is not pressed in the argument, and the matter to which it refers does not seem to be material to the issue. It does not seem to be warranted by anything in the evidence, but the finding could not have harmed appellant in any way.

In the second and third assignments, complaint is made of the dismissal of the exceptions to portions of the opinion of the court below; but it has been repeatedly pointed out that it is the decree of the court which is assignable as error, and not the opinion: Seltzer v. Boyer, 224 Pa. 369; Johnston’s Estate, 222 Pa. 514; Fullerton’s Estate, 146 Pa. 61.

The alleged error set forth in the fourth assignment is the dismissal of plaintiff’s exceptions to the decree suggested by the trial judge, dissolving the preliminary injunction on condition that the defendant should file a bond. This was not a final decree, and is therefore not assignable for error. It was merely a suggestion of the trial judge of what he considered a proper requirement before the entry of a decree.

In the fifth assignment, it is alleged that the court below erred in the admission of a statement of certain facts. There was, however, no exception taken to the findings of facts, and in the assignment itself they are admitted; but it is denied that the legal effect given to them was proper. It is apparent, therefore, that the objection here raised is to the conclusion of law reached by the court, rather than to the admission of the facts in question.

In the sixth assignment there is a general allegation that the court below erred in its findings of fact and conclusions of law. But no findings of fact or conclusions of law, to which objection was made, are definitely set forth, nor does it appear that any exceptions were taken to the findings and conclusions. In United Electric Co. v. East Pittsburg Boro., 230 Pa. 65, we pointed out (p. 70) that, “The assignments should be to the final action of the court upon exceptions to the rulings of the trial judge. Each assignment should show an exception filed and the disposition made of it by the court.” And in Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, it was held, as set forth in the syllabus, “Assignments of error to findings of fact and law, although showing that exceptions were filed, are defective if the dismissal of the exceptions is not assigned for error.”

In the seventh assignment of error complaint is made of the overruling of the exceptions of the plaintiff to the order of the court below made on May 5, 1910, and to the form of decree then suggested by the court. As we havé already held that this order was not a final decree, to which an appeal would lie, it is not therefore properly to be made the subject of an assignment of error. Especially is this true, since a final decree was afterwards entered, after final hearing in the court below.

The only question here involved is as to the right of the plaintiff under the circumstances to claim the benefit of a remedy which is solely equitable in its nature. The court below was of opinion that the plaintiff by his conduct, had precluded himself from applying for relief through equity. Judge Reed says, “The plaintiff stood by and saw the defendant expend $50,000 on the faith of the original ordinance in question, and he cannot now be heard to question its validity. He was a member of the body that enacted it, and the somewhat technical objection which he now raises to strike it down was as well known to him before the defendant had spent a dollar on the faith of the ordinance as it was at the time he filed this bill. He was silent then and the law will not permit him. to speak now. In these circumstances the plaintiff’s complaint does not come within the province of equitable relief.”

Without anticipating in any way the consideration of the legality of the ordinances involved, as that may be properly raised by the plaintiff in an action at law, we are of opinion that upon the ground of laches by the plaintiff, the injunction asked for in this case was properly refused. The court below, probably through inadvertence, spoke of plaintiff as being estopped. But the doctrine of estoppel can hardly apply here, for the reason that the defendant company had the same opportunity to know the facts with regard to the passage of the ordinance as the plaintiff had. It was not deceived in that respect. In Woods v. Wilson, 37 Pa. 379, Mr. Justice Thompson said (p. 384) that the law of estoppel operates “only in favor of those who, after the exercise of diligence, are still ignorant of an opposing title, and against those who, aware of their own title and knowing it to be secret, are silent. When both parties are aware of their respective rights, it has no place in law or equity.” But the inexcusable delay of the plaintiff, in asserting his rights, is another matter, and the consequent injury and prejudice to the defendant company, in permitting it to expend large sums in reliance upon its contract with the borough council, may well be held to bar his right to recover in a court of equity.

In 2 Pomeroy on Equity Jurisprudence (3d ed., 1905), sec. 817, it is said: “Acquiescence in the wrongful conduct of another by which one’s rights are invaded may often operate, upon the principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which he would otherwise be entitled. This form of quasi estoppel does not cut off the party’s title, nor his remedy at law; it simply bars his right to equitable relief, and leaves him to his legal actions alone. . . . The equitable remedy to which this quasi estoppel by acquiescence most frequently applies is that of injunction, preliminary or final, when sought by a proprietor to restrain a defendant from interference with easements, from committing nuisances, from trespasses, or other like acts in derogation of the plaintiff’s proprietary rights.” In 1 High on Injunctions (4th ed., 1905), sec. 643, it is said, “As in all cases of the exercise of the strong arm of equity by injunction, the right to the relief may be lost by one’s own negligence and delay in seeking protection.” As an instance of the application of the rule, the author says (sec. 618): “Where a property owner, who seeks to enjoin a railway company from using its tracks upon a street in front of his premises, has permitted the company to expend large sums of money in the construction of its track, and has acquiesced in their use for a considerable number of years without objection or complaint, such acquiescence will deprive him of relief by injunction regardless of what his original equities may have been.”

The general principle is thus stated in 16 Am. & Eng. Ency. Law (2d ed.), 356: “A suitor who by laches has made it impossible for a court to enjoin his adversary without inflicting great injury upon Mm, will be left to pursue his ordinary legal remedy. TMs rule is especially applicable where the object of the injunction is to restrain the completion or use of public works, and where the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought.

In the present case there can be no question but that the interest and safety of the public require that such a dangerous grade crossing over so many tracks, should be abolished. As Mr. Justice Dean said in Penna. R. R. Co. v. Bogert, 209 Pa. 589 (p. 598): “The policy of the commonwealth and this court with reference to grade crossings has been frequently and in no unc'ertain terms ahnounced. It is, that the murderous grade crossing must go.”

Under the well-established principles of equity jurisprudence, as above noted, we think the court below was justified in refusing an injunction and in leaving appellant to his remedy at law. The assignments of error are all dismissed, and the decree of the court below is affirmed.


text:
    Rosenbaum, Appellant, v. Hazard.

      Banks and hanking — Checks—Delay in presentations — Proofs of loss — Burden of proof — Evidence.
    1. In an action by the holder of a check against the drawer, brought nearly six years after the date of the check, where the defendant in his affidavit of defense makes no averment of loss, and in no way shows that he has been injured by the delay in presenting the check, there is no burden on the plaintiff to prove that the defendant has suffered no loss.
    2. To hold otherwise would be to require the holder of the check to prove a negative, as to a matter peculiarly within the knowledge of the drawer.
    Argued May 16, 1911.
    Appeal, No. 251, Jan. T., 1910, by plaintiff, from judgment of C. P. Bucks Co., Oct. T., 1907, No. 5, for defendant non obstante veredicto in case of Morris Rosenbaum v. Rowland H. Hazard.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit for the amount of a check. Before Stout, P. J.
    At the trial the jury returned a verdict in favor of the plaintiff for $4,583.25.
    On a motion for judgment for defendant non obstante veredicto Stout, P. J., stated the facts to be as follows:
    This suit was brought by the plaintiff, Rosenbaum, the holder, against the defendant, Hazard, the drawer, to recover the amount of a check with interest. ■ The check is in the following form:
    "No. Bristol, September 20, 1901.
    "Farmers’ National Bank of Bucks County,
    Pay to the order of John Sparhawk, Jr.,
    Four Thousand..............x/100 Dollars.
    Rowland H. Hazard.
    (Indorsed) John Sparhawk, Jr.”

      On September 17, 1901, the plaintiff, at the request of John Sparhawk, Jr., cashed the said check, which was then duly indorsed by Sparhawk. The check, being on a country bank#dated three days after the date of the transaction, the plaintiff demanded of Sparhawk his personal check on a city bank to cover the Hazard check in the event it should be dishonored. Sparhawk gave to plaintiff,. Rosenbaum, his check in the sum of $4,000, dated September 17, 1901, payable September 23, 1901, at Merchants’ National Bank, Philadelphia. According to Sparhawk’s version of the transaction he applied, on September 17, 1901, to plaintiff, Rosenbaum, for a temporary loan of $4,000 for three days, and gave him his own check for $4,000, dated September 17, 1901, payable September 23, 1901. That he also gave him the Hazard check in suit, through which said loan was to be paid. So far as this case is concerned it makes no difference which version is correct. Subsequently, at the request of Spar-hawk, the Hazard check was not transmitted for collection. The Hazard check was never presented for payment at the Farmers’ National Bank of Bucks county, and on September 18, 1907, two days less than six years after the date of the check, suit was brought thereon in this court.
    At the trial plaintiff put the check in evidence and rested. Defendant moved for nonsuit on the ground that the plaintiff had not made out a case on which he was entitled to recover. The defendant then proceeded with his defense, to wit, payment. Not payment by the defendant, but by Sparhawk, who had given the check as collateral to secure the loan of $4,000. The plaintiff at the trial admitted two payments, aggregating to $850. Numerous checks were offered in evidence to show that the said loan was paid off in full by Sparhawk, but the plaintiff testified that some of the checks so offered were paid by him in cash for the accommodation of Sparhawk, or whoever presented them, and that the other checks were payments on account of other loans which plaintiff had made to Sparhawk. The verdict establishes that the jury adopted the plaintiff’s view of the case. The defendant offered evidence to show that he had sustained loss by plaintiff’s failure to present the check for payment by reason of his having surrendered to Sparhawk certain bonds of the Camden Consolidated Ice & Cold Storage Company which he held as collateral to secure him against loss upon said $4,000 check. These bonds were surrendered by the defendant, Hazard, with full knowledge that the check was in the hands of a third party.
    At the trial, both the plaintiff and the defendant carefully refrained from showing what the state of Mr. Hazard’s account was at the Farmers’ National Bank of Bucks county on September 20, 1901, the day on which the check was payable; whether or not there were sufficient funds there to meet the check on that day, and if there were, whether or not such funds were kept there from that date until the suit was brought. There was no evidence as to the solvency or insolvency of the bank during the period the check was outstanding unpresented. It being a home bank, such information was easily available. The plaintiff evidently assumed that the burden of proof rested upon the defendant to show that he had suffered loss by the failure to present the check for payment in order to escape liability to the extent of such loss; and the defendant, that the burden rested upon the plaintiff to show that the defendant had suffered no loss to entitle him to recover. The motion being for judgment for defendant non obstante veredicto, the court must decide the question raised upon the facts as disclosed at the trial.
    The court citing Flemming v. Denny, 2 Phila. Ill; Little v. Phenix Bank, 2 Hill (N. Y.), 425; Daniels v. Kyle, 1 Kelly, 304; Arnold v. Mangan, 89 111. App. 327; Stevens v. Park, 73 111. 387; Kirkpatrick v. Puryear, 93 Tenn. 409 (24 S. W. Repr. 1130), and Anderson v. Rodgers, 53 Kan. 542 (36 Pac. Repr. 1067), held that the burden was on the plaintiff to show that the defendant had suffered no loss, and accordingly entered judgment for defendant non obstante veredicto.

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

      Franklin S. Edmonds, with him Hugh B. Eastburn and Wm. Clarke Mason, for appellant.
    In a suit on a check less than six years after maturity, a holder in due course is not required to prove affirmatively that the drawer has been occasioned no loss, until there is evidence of unreasonable delay in presentment and also proof of the insolvency of drawee bank or other evidence of damage to drawer by competent testimony: Conroy v. Warren, 3 Johns. Cases, 259; Flemming v. Denny, 2 Phila. Ill; Robinson v. Hawksford, 9 Adolph. & El. (N. S.) 52; Hoyt v. Seeley, 18 Conn. 353; Stewart v. Smith, 17 Ohio St. 83; Cowing v. Altman, 79 N. Y. 167; Carroll v. Sweet, 128 N. Y. 19 (27 N. E. Repr. 763); Lloyd v. Osborne, 92 Wis. 93 (65 N. W. Repr. 859); Cox v. Citizens’ State Bank, 73 Kan. 789 (85 Pac. Repr. 762)'; Lynch v. Lyons, 131 N. Y. App. Div. 120 (115 N. Y. Supp. 227); Spink & Keyes Drug Co. v. Ryan Drug Co., 72 Minn. 178 (75 N. W. Repr. 18); Williams v. Braun, 112 Pac. Repr. 465.

      Howard I. James, for appellee.
    The trial court properly held that the burden of proof was on the plaintiff to show that the drawer did not suffer loss: Wisner v. First Nat. Bank, 220 Pa. 21; Hopldrk v. Page, 2 Brockenbrough, 20; Commercial Bank v. Hughes, 17 Wend. (N. Y.), 94; Little v. Bank, 2 Hill (N. Y.), 425; Syracuse, Binghamton & N. Y. R. R. Co. v. Collins, 3 Lans. (N. Y.), 29; Willetts v. Paine, 43 111. 432; Stevens v. Park, 73 111. 387; Arnold v. Mangan, 89 111. App. 327; Planters Bank v. Merritt, 54 Tenn. 177; Springfield v. Green, 66 Tenn. 301; Kirkpatrick v. Puryear, 93 Tenn. 409 (24 S. W. Repr. 1130); Ford v. McClung, 5 W. Ya. 156; McClain v. Lowther, 35 W. Va. 297 (13 S. E. Repr. 1003); Hamlin v. Simpson, 105 Iowa, 125 (74 N. W. Repr. 906).

      October 9, 1911:
   Opinion by

Mr. Justice Potter,

The plaintiff in this case, as the holder for value of a check, brought suit to recover the amount thereof from the drawer. The latter averred in his affidavit of defense that the check was given to the payee for use in a certain specific business transaction, and that it was diverted from the use for which it was intended, and was negotiated by the payee to the plaintiff, as security for a loan of $4,000, which loan was afterwards repaid. Upon the trial, plaintiff admitted that two payments, amounting to $850, had been made, for which he allowed credit. The evidence as to further payments was conflicting, and was submitted to the jury, and they found a verdict in favor of the plaintiff for the balance claimed by him, with interest. It appears from the evidence that the check was never presented for payment at the bank upon which it was drawn, and that it was held by plaintiff for nearly six years before suit was brought. It is apparent also from the evidence that through some arrangement between the drawer and the payee, it was not expected that the check would be promptly presented to the bank upon which it was drawn, for payment. The transaction was unusual and irregular, and was not explained by the testimony.

As excusing the failure to present the check, plaintiff testified that he was requested by the payee not to present it to the bank, as it would interfere with his arrangements with the drawer, and he, the payee, desired to repay the amount of the check to the plaintiff. At the trial, the payee testified that he had paid the amount, in various partial payments, and the truth of this assertion was the substantial issue between the parties. After the verdict, counsel for defendant moved for judgment non. obstante veredicto, on the ground (1) that plaintiff had not presented the check at the bank where it was payable, and (2) because, presentment not having been made, the burden of proof was on the holder of the check to show that the drawer had suffered no injury from the failure to present it, and this was not shown. The court below ruled against the first contention, but sustained the second, and held that the burden was on the plaintiff to show that no loss was caused to the drawer by the delay in presenting the check. And as there was no proof that defendant had not suffered loss, judgment was entered for defendant non obstante veredicto.

The Act of May 16, 1901, P. L. 194, known as the Negotiable Instruments Act, provides in sec. 186, “A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.” The fair inference to be drawn from this language is that, if the drawer has suffered no loss by the delay, he will not be discharged. A very proper comment upon this section is found in Eaton & Gilbert on Commercial Paper, sec. 167, where it is said: “This provision is declaratory of the general rule. The want of due presentment of a check does not discharge the drawer, unless he has suffered some loss or injury thereby; this is one point of difference between a check and a bill of exchange. The only way in which the drawer of a check would be hable to be injured by a failure to present it within a reasonable time is where subsequent to its delivery and prior to its presentment the bank upon which it is drawn becomes insolvent. In such a case, in respect to the check, the drawer will be discharged to the extent of the loss he has sustained thereby. In speaking on this subject, Judge Story says (Story on Promissory Notes, sec. 498): 'If a bank or banker still remains in good credit, and is able to pay the check, the drawer will still remain hable to pay the same, notwithstanding many months may have elapsed since the date of the check, and • before the presentment for payment and notice of the dishonor. So, if the drawer, at the date of the check or at the time of the presentment of it for payment, had no funds in the bank or banker’s hands, or if, after drawing the check and before its presentment for payment and dishonor, he had withdrawn his funds, the drawer would remain liable to pay the check, notwithstanding the lapse of time.’” In Flemming v. Denny, 2 Phila. 111, Judge Sharswood said (p. 112): "To an action by a holder against the drawer of a check, it is no answer that the check was not presented in reasonable time, unless, during the delay the fund has been lost by failure of the banker.”

The affidavit of defense filed by defendant in this case, contains no averment of loss to the drawer, by reason of nonpresentment, nor is there any suggestion of the failure of the bank. There was some evidence tending to show that defendant surrendered some securities to the payee of the check, with full knowledge that it was outstanding in the hands of a third party. Of course the drawer was aware at all times, from the condition of his bank account, that the check was outstanding and unpaid. The jury were permitted to pass upon the question of loss in this respect, and they found in favor of the plaintiff. The defense was made substantially upon the ground of payment. If the defendant suffered any loss by reason of the check not having been presented, either through the failure of the bank, or otherwise, that fact was something peculiarly within his own knowledge. His failure ■ to make any such allegation in his affidavit of defense was sufficient to justify a presumption that no such loss occurred. We agree with the principle set forth in the opinion of the supreme court of Minnesota, in Spink & Keyes Drug Co. v. Ryan Drug Co., 72 Minn. 178, which was a case in which the payee brought suit against the drawer, on a bank check. Mitchell, J., there said: "It strikes us that, upon both principle and reason, it should be held that loss by reason of negligent delay, either in making presentment or in giving notice of dishonor, is a matter of defense to be pleaded and proved by the drawer, instead of requiring the holder to allege and prove a negative as to a matter peculiarly within the knowledge of the drawer.”

■ In the absence of any allegation or averment of loss by the defendant, we think the court below erred in holding that the burden of proof was upon the holder of the check to show that the drawer had suffered no loss. The assignment of error is therefore sustained; the judgment entered in favor of defendant non obstante veredicto, is reversed, and the record is remitted to the court below, that such judgment may be entered as law and right require.


author: Mr. Justice Mestrezat,

text:
    Meisel v. O’Neil, Appellant.

      Elections — Public officers — Municipalities—Mayor of Pittsburg — Constitutional amendments of 1909 — Schedule.
    The schedule to the constitutional amendments of 1909, which was adopted to bridge the channel between- the old and new systems of government, applies to the terms of existing officers as well as future officers, and under its provisions the term of office of the mayor of the city of Pittsburg who was elected in November, 1909, for a term of three years, was extended for one year, thereby rendering unnecessary a primary election for candidates for that office in September, 1911, and an election for the office in November, 1911.
    Argued Oct. 5, 1911.
    Appeal, No. 212, Oct. T., 1911, by defendants, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1911, No. 703, on bill in equity in case of Jacob J. Meisel et al. v. J. Denny O’Neil, I. K. Campbell and S. J. Toole, County Commissioners of Allegheny County.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The opinion of the Supreme Court states the case.

      Error assigned was decree awarding injunction.

      John P. Hunter, with him Walter Lyon, A. B. Hay, E. B. Vaill, J. Garfield Houston and Ward Bonsall, for appellants.
    October 9, 1911:
    The schedule is not part of the constitution, but is only an auxiliary to it for the purpose of carrying its provisions into effect bridging the chasm between it and the old, and cannot be interpreted to supplant it: Commonwealth v. Clark, 7 W. & S. 127; Elton v. Geissert, 10 Phila. 330; Commonwealth v. Hartranft, 77 Pa. 154; Commonwealth v. Kilgore, 82 Pa. 396.
    A schedule is not to be construed so as to extend it beyond the fair language used in it: Commonwealth v. Kilgore, 82 Pa. 396.
    The courts will so construe the law as to shorten the term of a public officer rather than to lengthen it: Commonwealth v. McCarthy, 3 W. N. C. 477.
    The second paragraph of the schedule was introduced ex cautela: Portuondo’s Estate, 191 Pa. 28; Jones v. Tatham, 20 Pa. 398; Commonwealth v. Charity Hospital, 199 Pa. 119.
    The court will not give a proviso such an effect as to enlarge the scope of the enacting clause, or use the proviso as an enacting clause itself. Jones v. Tatham, 20 Pa. 398; Commonwealth v. Charity Hospital, 199 Pa. 119; Collner’s Estate, 22 Pa. C. C. Rep. 198.

      William A. Stone, with him Stephen Stone, for appellee.
   Opinion by

Mr. Justice Mestrezat,

This was a bill filed by certain taxpayers of the city of Pittsburg, Allegheny county, to restrain the defendants, the county commissioners, from printing the names of candidates for mayor of the city on the ballots for the primary election to be held on September. 30, 1911, on the ground that no election was to be held for the office of mayor of the city of Pittsburg in November, 1911. The court below sustained the plaintiff’s contention, and granted the injunction prayed for. The defendants have taken this appeal. If there is no election to be held in November of this year for mayor of the city of Pittsburg, it necessarily follows that no nomination for the office should be made at the primary election, and that the learned court below was right in restraining the county commissioners from printing the names of candidates for the office on ballots to be voted at the election in September, 1911.

The present mayor of the city of Pittsburg was elected at the February election in 1909 for a term of three years expiring in April, 1912. Under the constitution and laws in force at the time of his election, his successor would be elected in February, 1912, and his term of office would begin in the following April. But in November, 1909, certain amendments to the constitution of the commonwealth were adopted, by one of which the February election was abolished, and it was provided that all municipal elections should take place in November of the odd-numbered years, thereby requiring such elections to be held every two years. To avoid the confusion and inconvenience necessarily arising from the changes made by the amendments, and especially in the case of officers elected for an odd number of years, a schedule to the amendments was adopted to carry them into effect: The schedule provides, inter alia, as follows:

“In the case of officers elected by the people, all terms of office fixed by act of assembly at an odd number of years shall each be lengthened one year, but the legislature may change the length of the term, provided the terms for which such officers are elected shall always be for an even number of years.
“The above extension of official terms shall not affect officers elected at the general election of 1908; nor any city, ward, borough, township or election division officers, whose terms of office, under existing law, end in the year 1910.”

It is also directed in the schedule that after 1910 and until the legislature shall otherwise provide, all terms of city, ward, borough, township, and election division officers shall begin on the first Monday of December in odd-numbered years; that such officers holding office at the date of the approval of the amendments whose terms might end in 1911, shall continue to hold their offices until the first Monday of December of that year.

Do the provisions of the schedule extend the term of the present mayor of the city of Pittsburg, thereby preventing an election of his successor at the November election of this year? We are all of the opinion that such is the effect of the schedule to the amendments adopted in 1909. The contention of the defendants is that the schedule acts prospectively and does not apply to the terms of officers who were in office at the date of the adoption of the amendments. But this view entirely overlooks the purpose of the schedule to the constitution, which is to bridge the chasm between the old and the new systems of government, and to eliminate any conflicts between the two systems. The changes made by the amendments of 1909 in the terms of some of the officers and in the dates of holding the elections necessarily resulted in overlapping and conflict in the terms of certain officers, and to remedy that condition the schedule was adopted. It must necessarily apply to present conditions, to officers in office at the time of the adoption of the amendments, or it would entirely fail of its purpose. There could be no occasion to apply it after the new system created by the amendments had gone into effect, and officers had been elected and taken their offices pursuant to its provisions. The chasm is then spanned, the new system is in complete operation, and the schedule has served its only purpose which is always temporary.

The language of the schedule removes any doubt that it was intended to apply_to officers in office at the date of its adoption. The first paragraph provides, it will be observed, that “in the case of officers elected by the people, all terms of office fixed by act of assembly at an odd number of years shall each be lengthened one year. . . .'' Language could not be clearer or more comprehensive. The terms of all elective officers fixed at an odd number of years were extended one year. Does that refer only to the terms of officers to be thereafter elected, as contended by the defendants, or does it apply to the terms of existing officers as well as future officers, so as to harmonize the two systems and prevent vacancies and other inconveniences? If there is any doubt as to the correct solution of the question, it is settled by the provisions of the second paragraph of the schedule above quoted. The first paragraph having extended the terms of all officers elected for an odd number of years, it is then provided that “the above extension of official terms shall not affect officers elected at the general election of 1908; nor any city, . . . . officers, whose terms of office, under existing law, end in the year 1910.” If the provision extending the term did not apply to officers then in commission, why follow it immediately with the clause providing that it should not apply to certain officers theretofore elected at the general and municipal elections and at that time in office? There was no necessity for this exception to the general provision extending the terms of officers if it was only intended to be prospective in its operation. It is against the established rules of construction to hold that the exception is meaningless, and it cannot be so construed in the absence of some compelling reason which does not appear. There is no ground for the contention that it was introduced into the schedule ex cautela. Again, if we hold that the provision for the extension of the terms of officers does not apply to officers in office at the date of the approval of the amendments, the schedule makes no provision whatever for officers elected in 1909. If this was clear from the language of the instrument, it would be our duty to so construe it regardless of results. It is our duty to interpret, not to make the constitution. But here, the language employed in the schedule, interpreted by the established rules' of construction, leaves no doubt that the framers of the instrument intended the provision in question to apply to the terms of existing officers. That interpretation of the schedule makes it accomplish a purpose manifestly necessary to the harmonious and effective working of the old and new systems of government.

We regret that the necessity for a speedy decision and a pressure of other official duties prevent a more elaborate discussion of the important question before us. We entertain no doubt as to the correctness of our conclusion, and what has been briefly said disposes of the controlling question in the case. The other questions discussed by the counsel in their briefs may be decided when raised on the record of a case requiring their decision.

The decree of the court below is affirmed.


text:
    Commonwealth ex rel. v. O’Neil, Appellant.

      Elections — Public officers — Cities of the third class — Treasurers—■ Constitutional amendments of 1909 — Schedule—Act of June 21, 1911, P. L. 1102.

    1. The schedule to the constitutional amendments of 1909 extended for one year the term of office of a treasurer of a city of the third class who had been elected in 1909, and therefore no valid election to fill the office could be held in November, 1911.
    2. The Act of June 21, 1911, P. L. 1102, providing that the incumbents of certain offices shall hold their 'offices until the first Monday of December, 1911, and no longer, does not affect the office of treasurer of a city of the third class elected in 1909, because it violates the schedule of the constitutional amendments of 1909, in that (1) it shortens the term of an officer whose official term was lengthened by the schedule; and (2) it cuts down the term of such an officer to a certain number of months, thus making the term an uneven number of years.
    Argued Oct. 5, 1911.
    Appeal, No. 235, Oct. T., 1911, by defendants, from order of C. P. No. 3, Allegheny Co., Nov. T., 1911, No. 12, awarding writ of mandamus in case of Commonwealth ex rel. Lewis N. Morgan v. J. Denny O’Neil, I. K. Campbell and S. J. Toole, County Commissioners of Allegheny County.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      October 9, 1911:
    Petition for mandamus. Before Davis, J.
    The opinion of the Supreme Court states the case.

      Error assigned was in awarding peremptory mandamus.

      George E. Alter, of McKee,' Mitchell & Alter, and J. B. Eichenauer, with them A. B. Hay, county solicitor, and E. B. Vaill, for appellants.
    The term in question was extended to the first Monday of December, 1913, by the schedules for the amendments to the constitution, adopted in November, 1909: Paris v. Hiram, 12 Mass. 262; Com. ex rel. v. Sharetts, 231 Pa. 525.
    The term in question having been extended prior to the passage of the act of June 21, 1911, so as not to expire in the year 1912, it could not be affected by the provisions of said act, which expressly relates to terms which “would otherwise expire in the year 1912.”

      John P. Hunter, with him Walter Lyon, for appellee.
    Article VI, sec. 2, of the act of June 21, 1911, as respects the office of city treasurer, reducing the term from the first Monday of June, 1912, to the first Monday of December, 1911, is constitutional: Allentown v. Wagner, 214 Pa. 210; Yoho v. Allegheny County, 218 Pa. 401; Dickins Twp. Road, 23 Pa. Superior Ct. 34.
   Opinion by

Mr. Justice Mestrezat,

The relator presented a petition in due form to the defendants, the commissioners of Allegheny county, requesting that his name for the office of treasurer of the city of McKeesport be printed upon the official ballots in said city for the primary election for the year 1911. The request was declined, and thereupon a suggestion was filed in the court below praying for a mandamus to compel the defendants to accept the petition and print the relator’s name on the ballots. He claims the right to become a candidate for the office of treasurer for a four-year term beginning the first Monday of December, 1911, for the reason that the term of office of the present city treasurer of the city of McKeesport has been shortened by the Act of June 21, 1911, P. L. 1102, and ends on the first Monday of December, 1911. An alternative writ was issued to which the defendants made return that the city of McKeesport became a city of the third class in .1891; that pursuant to law,, a city treasurer was elected at the municipal election in February, 1909, for the term of three years commencing on the first Monday of April thereafter; that the term does not expire on the first Monday of April, 1912, or on the first Monday of December, 1911, as averred in the petition, but was extended by virtue of the amendments of the constitution and schedule thereto, adopted in November, 1909, and the Act of assembly approved March 2, 1911, P. L. 8. A demurrer to the writ was filed on which judgment was entered for the commonwealth, and a peremptory writ was directed to issue. The defendants have appealed.

The learned trial court held that “no place in the schedule is there any enactment that applies directly to the officers elected in the year 1909. Nor does the schedule in relation to the extension of terms declare that it shall operate on the terms of officers heretofore elected, as well as lengthen the terms of officers hereafter to be elected until such terms shall be changed by an act of the legislature.” It was accordingly held that the office of treasurer of the city of McKeesport was not included in or affected by the schedule to the amendments of the constitution adopted in 1909, and that the term of the present incumbent of the office was shortened by the act of June 21,1911, and ends on the first Monday of December, 1911, “thus creating a vacancy to be voted for by the electors at the September primary election and the November election of this year.”

This case was argued with Meisel et al. v. O’Neil et al., ante, p. 213, in which we file an opinion herewith. It is there held that the schedule to the amendments to the constitution adopted in 1909 applied to officers theretofore elected and in office at the date of the approval of the amendments, and that it lengthened the official terms of such officers. That was a bill filed to restrain the commissioners of Allegheny county from printing on the ballots for the primary election to be held September 30 of this year the names of candidates for the office of mayor of the city of Pittsburg. This is mandamus to compel the same commissioners to print on the ballots for the same primary election the name of a candidate for the office of treasurer of the city of McKeesport. Both are municipal offices whose incumbents were elected in 1909 for a term of three years, and, we think, it is apparent that the reasons sustaining the conclusion in the Meisel case apply with like force to the present case, and require us to hold that the schedule extends the term of treasurer of the city of McKeesport, and that therefore no election to fill the office can be held in November of the present year. If this view is correct, the legislature has not shortened the term of the present incumbent.

The first paragraph of the schedule extends the terms of certain elective officers, but provides that "the legislature may change the length of the term, provided the terms for which such officers are -elected shall always be for an even number of years.” It is contended by the appellee that the act of June 21, 1911, was authorized by, and was enacted in pursuance of, this provision of the schedule, and that the present incumbent’s term was legally shortened and will expire on the first Monday of December of the present year. We do not regard this position as tenable. The provision of the act in question, claimed to produce this result, is as follows: "All mayors, city controllers, and members of councils now in office, whose terms of office would otherwise expire in the year 1912, shall hold their offices until the first Monday of December, 1911, and no longer.” If we are correct in holding that the schedule applies to existing officers, the terms of all such officers, éxcept those named in the second and third paragraphs were lengthened by the schedule, and this includes the terms of officers in office at the adoption of the amendments and which would otherwise expire in 1912. It was, therefore, beyond the power of the legislature to shorten the terms of such officers. There is, however, another and conclusive reason why the provision in question is not supported by the schedule. The legislature, as will be observed, is authorized to change the length of the term of office, “provided the terms for which such officers are elected shall always be for an even number of years.” This, no doubt, was intended to apply to future terms, but however this may be, the provision of the act of June 21, 1911, above quoted does not satisfy this proviso to the schedule. On the contrary, the provision does not deal with the term in question by fixing it at a greater or less number of “even-numbered years,” but cuts the term down a certain number of months which makes the term an uneven number of years. This is expressly forbidden by the schedule, and hence the legislature was not authorized' to deal in such manner with the term of the office in question.

The judgment of the court belowis reversed, and judgment upon the demurrer is now entered for the defendants.


author: Mr. Justice Brown,

text:
    Commonwealth ex rel., Appellant, v. Langley.

      Elections — Public officers — Municipalities—Cities of the third class— Constitutional amendments of 1909 — Aeis of May 28, 1889, P. L. 277, and June 21,1911, P. L. 1102.

    1. The officers of a borough which had been granted letters patent as a city of the third class, but which had not, at the date of the passage of the Act of June 21, 1911, L. P. 1102, elected the officers appropriate to the city government, hold their offices until the first Monday of December, 1913, under sec. 3, art. I of the Act of May 23, 1889, P. L. 277, as amended by the Act of June 21,1911, P. L. 1102, which provides that the officers of such a borough shall “hold their respective offices until the first Monday in December of the first odd-numbered year next succeeding the issuing of-letters patent to the said city, at which time the officers of said city chosen at the preceding municipal election shall enter upon their respective terms of service, and the city government shall be duly organized.”
    2. The plain words of the amended third section of art. I of the act of 1889 do not create a borough which has received letters patent at once into a full-fledged city of the third class. From the date of the letters it becomes an embryonic city, but its full development into á city of the third class does not take place until the new municipal officers chosen at a municipal election shall enter upon their respective terms and organize the city government.
    3. Section 2 of art. VI of the Act of May 23, 1889, P. L. 277, as amended by sec. 6 of the Act of June 21, 1911, P. L. 1102, applies to existing cities of the third class, and not to boroughs which are in the course of transformation into cities.
    4. The words “next succeeding” as used in sec. 1 of the act of 1911, amending sec. 3 of art. I of the act of 1889, are not to be construed as qualifying the word “December,” but are to be construed as qualifying the words “the first odd-numbered year.”
    Argued Oct. 12, 1911.
    Appeal, No. 259, Jan. T., 1911, by petitioner, from order of C. P. Fayette Co., Dec. T., 1911, No. 175, refusing writ of mandamus in case of Commonwealth ex rel. William A. Bishop v. John S. Langley et al., Commissioners of Fayette County.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for mandamus. Before Van Swearingen, J.
    The petition averred that the petitioner was a resident and citizen of the fifth ward of what was formerly the borough of Connellsville, now the city of Connellsville; that on May 12, 1911, the governor by letters patent had created the borough of Connellsville a city of the third class; that the petitioner had tendered to the defendants a proper nomination paper as a candidate for the office of select councilman of the fifth ward of the city of Connellsville and that such paper had been refused, and that the commissioners had also refused to print the name of the petitioner as a candidate. It was further averred that the act of June 21, 1911, provided for the election of city officers in the city of Connellsville at the municipal election in November, 1911. The court dismissed the petition.

      Error assigned was the order of the court.

      E. C. Higbee, of Sterling, Higbee & Matthews, with him D. M. Hertzog, for appellant.
    The charter may be in abeyance for every other purpose, but for the purpose of electing officers it is in full force and effect: Com. v. McGroarty, 148 Pa. 606.
    Connellsville having received letters patent on May 12, 1911, is not within the provisions of sec. 1 of the act of 1911. The city of Connellsville at the date of the passage of the act of June 21, 1911, had the right under existing law to elect city officers at the municipal election of 1911, and appellant confidently submits that this act did not destroy that existing right.

      Wm. M. Fausset, with him C. E. Berger, for interveners.
    It is the policy of the law of this state that public officials both state and local, be elected at fixed times for definite terms, and that they should assume the duties and exercise the powers of their respective offices within a short time after their election, so that state and local governments will be established on a systematic and orderly basis. And especially, that they may operate without jar or friction, and that no interregnums shall occur. The words, “next succeeding,” and the words, “next preceding,” are found in the act of June 21, 1911. The words, “next succeeding,” appear in the old and new sec. 3, of art. I, sec. 5, art. Ill, and sec. 16, art. IV. The words, “next preceding,” appear in the old and new sec. 16, art. IV.
    An examination and analysis of these sections will show that, in every instance, in both old and new sections, the words, “next succeeding,” and the words, “next preceding,” qualify the name of a month.

      R. F. Hopwood, for appellees.

      October 17, 1911:
   Opinion by

Mr. Justice Brown,

After it appeared from the last United States census that the borough of Connellsville had a population in excess of 10,000, it took the steps made necessary by the Act of May 23, 1889, P. L. 277, to become a city of the third class, and, on May 12, 1911, letters patent were issued to it under that act, constituting it the city of Connellsville. But for the amendments to the constitution which were adopted in 1909 and the Act of June 21, 1911, P. L. 1102, passed in view of them, the terms of all councilmen in the borough of Connellsville would have continued under the act of 1889 until the first Monday in April, 1912, and their successors, as members of the city councils, would have been elected on the first Tuesday in February of that year. All this was changed by the constitutional amendments, and the legislature of 1911 was confronted with the duty and necessity of amending the act of 1889. Section 3, art. I, of that act provided that, “all the property and estates whatsoever, real and personal, of the towns or boroughs which shall have thus become a city of the third class, are hereby severally and respectively vested in the corporation or body politic of said city, by the name, style and title given thereto as aforesaid, and for the use and benefit of the citizens thereof forever; and the charters of the said towns or boroughs shall continue in full force and operation, and all officers under the .same shall hold their respective offices, until the first Monday of April following the third Tuesday of February next succeeding the issuing of letters patent to the said city, at which time the officers of said city chosen at the preceding municipal election shall enter upon their respective terms of service, and the city government shall be duly organized under this act.” The foregoing section was amended by the act of 1911, and there is now in it the following substitutionary provision: “The charters of the said towns or boroughs shall continue in full force and operation, and all officers under the same hold their respective offices until the first Monday of December of the first odd-numbered year next succeeding the issuing of letters patent to the said city, at which time the officers of said city chosen at the preceding municipal election shall enter upon their respective terms of service, and the city government shall be duly organized.” The very narrow question before us, as we regard it, is whether those holding offices in the borough of Connellsville at the time the letters patent were issued constituting it a city of the third class, shall continue to hold those offices until the first Monday in December, 1913. If they are to continue to hold them until that time their successors must be elected at the November election of that year, and the appellant’s petition was properly dismissed by the court below.

It is to be noted from the plain words of the amended third section of art. I of the act of 1889, that the issuing of letters patent authorizing a borough to become a city of the third class does not at once create it a full-fledged city of that class. From the date of the letters it becomes an embryonic city, but its full development into a city of the third class does not take place until the new municipal officers chosen at a municipal election shall enter upon their respective terms and organize the city government. When the act of 1911 was passed the city of Con.nellsville was in a formative process. It had not yet become a city authorized to manage its own affairs. True, it had become a city of the third class in the sense that letters patent had issued to it under the second section of art. I of the act of 1889, but the charter of the borough was still supreme within the municipal limits, and, the borough not having been a city in fact at the time of the passage of the act of 1911, and not having been able to become so until provision was rfiade for the election of city officers at a municipal election in an odd-numbered year, as the legislature might direct, it must be regarded as within the provisions of the act of 1911. And what are the provisions of the act relating to the terms of the councilmen of the borough of Connellsville? They shall “hold their respective offices until the first Monday of December of the first odd-numbered year next succeeding the issuing of letters patent to the said city, at which time the officers of said city chosen at the preceding municipal election shall enter upon their respective terms of service, and the city government shall be duly organized under this act.” Councilmen of the borough are to hold their offices until the first Monday in a certain December, designated by the act as December of the first odd-numbered year next succeeding the issuing of letters patent to the said city. He who runs must so read the amended third section of art. I of the act of May 23, 1889, and, unless there be some other provision in the act of 1911 clouding the clear intention of the legislature, it must be given effect. Nothing is to be found in any other part of the act which would justify a disregard of the legislative intent so clearly expressed.

Section 2 of art. VI of the act of 1889 as amended by the act of 1911 relates to existing cities of the third class— those fully developed and actually operating as cities of that class. It speaks of “mayors, city controllers, city treasurers,” and members of select and common council “now in office.” A borough about to become a city has no such officers. As to this we quite agree with the following conclusion of the learned judge below: “A careful reading of both sections convinces us that section 6 is not applicable to this case. It is to be noticed that sec. 3 of art. I of the act of 1889, and sec. 1 of the act of 1911, pertain particularly to cases where towns or boroughs are in the course of transformation into cities, while sec. 2 of art. VI of the act of 1889, and sec. 6 of the act of 1911, relate to elections and terms of office in cities of the third class generally, without special reference to cities in the course of erection as such from towns or boroughs. There are many cities of the third class in Pennsylvania other than those incorporated under the act of 1889. The mind of the legislature in the consideration of sec. 6 of the act of 1911 evidently was riveted on cities of the third class then having city officers, while in the consideration of sec. 1 of that act the legislature had in mind cities of the third class in the course of development from towns or boroughs.' Most of the provisions of sec. 6 relate to the terms of those holding offices in cities of the third class at the time of the passage of the act. The point is that Connellsville, in its present status, is not a city of the third class within the meaning of sec. 6 of the act of 1911, not yet having elected municipal officers under its charter as a third class city and organized a city government. ... In other words, the city in name becomes a city in fact, under sec. 1 of the act of 1911, when its charter actually goes into operation, upon the election and entry upon their respective terms of service of the city officers and the organization of the city government. It may seem unreasonable that the election of city officers and the organization of a city government under the city charter shall be postponed for more than two years after the granting of the letters patent, but that is the effect in this case of what the legislature has enacted, and by that enactment the courts are bound. If sec. 3 of art. I of the act of 1889 were still in force, city officers in Connellsville would not be elected until February, 1912, and the city government would not be organized until April of that year. The purpose of the act of 1911 was to amend the act of 1889 so as to conform with the constitutional amendments of 1909.”

On the argument upon this appeal, counsel from the county of Schuylkill, interested in sustaining it, were heard.as interveners. With much earnestness they contended that the words “next succeeding” qualify “December,” and not “the first odd-numbered year,” and insist that “the phrase: ‘the first Monday of December of the first odd-numbered year next succeeding the issuing of letters patent’ means the same thing as ‘the first Monday of December following the first municipal election succeeding the issuing of letters patent.’” The unambiguous words of the act of 1911 are not to be so read. It was first insisted by the interveners that their construetion of the act of 1911 should prevail, because it is the policy of the state that public officials, both state and local, shall assume the duties and exercise the powers of their respective offices a short time after their election; but in making this contention they entirely overlooked the fact that if, immediately after a municipal election in an odd-numbered year, letters patent should issue to a borough constituting it a city of the third class, the city officials concededly could not be elected for two years— until the municipal election in the next odd-numbered year.

We dismiss this appeal because to sustain it would be to do violence to the intention of the legislature as expressed in an act which it was duly authorized to pass. If the legislation of 1911 is unwise the legislature alone can correct it. The duty of courts is to enforce constitutional legislation. They have nothing to do with the wisdom of it. That is entirely for the legislature. The appeal is dismissed because the words of the first section of the act of 1911 have but one meaning.

Appeal dismissed with costs.