author: Me. Justice Moschziskee,

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

      Public officers — Township supervision — Election law — Constitutional amendments of 1909.

    Where a person i_s elected to the office of township supervisor at the February election of 1910, such person is entitled under the constitutional amendments of 1909 and the schedule thereto, to hold his office until the first Monday in December, 1913, although the ballot used at his election specified the term of the office to be one year.
    Argued May 9, 1912.
    Appeal, No. 127, Jan. T. 1912, by defendant, from judgment of C. P. Fayette Co., March T., 1912, No. 69, for relator on demurrer to answer in case of Commonwealth ex rel. David Cole v. N. E. Murphy.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Demurrer to answer to petition for quo warranto. Before Van Swearingen, J.
    The petition for the writ set forth that the relator was elected road supervisor of North Union township at the election held on the third Tuesday of February, 1910; that a certificate of election was given to him, and that he subscribed to the oath of office and continued to discharge the duties of the office until the defendant usurped the office.
    The respondent by his answer objected that the petition did not show the relator entitled to the office, and further set forth that on the third Tuesday of February, 1908, William C. Bowers was elected road supervisor for the term of three years, and that he served for the period of one year, when he resigned and N. E. Murphy was appointed to fill the vacancy. That at the regular election in February, 1910, the relator was elected on a ballot, which specifically mentioned a term of one year. That the term of the relator expired on the first Monday of December, 1911, and that in November, 1911, respondent was duly elected township supervisor , under the Act of 1911 to fill the vacancy caused by the expiration of the term of relator.
    The relator demurred to the answer, and the court entered judgment of ouster.

      Error assigned was the judgment of the court.

      E. G. Eigbee, of Sterling, Eigbee & Matthews, with him George Patterson, for appellant.
    It has been held in a number of cases, among which may be noted Milligan’s Appeal, 96 Pa. 222; Chamberlin v. Hartley, 152 Pa. 544; North Union Twp. School Directors’ Case, 23 Pa. C. C. R. 593, that if candidates for the same office are to be elected for different terms the ballot must designate the term for which each candidate, if elected, is to serve, or the votes cannot be counted for that office.
    It appears from the facts as stated by the court that at the election in February, 1910, a supervisor was elected for a term of three years. It therefore appears that the official ballot was made up by designating certain candidates for the term of one year and certain candidates for the term of three years. It is therefore apparent that the commissioners and the electors construed the statute as the appellant claims it should be construed.
    The electors are bound by this construction, because the statute provides a method by which errors in the official ballot may be corrected, Section 15 of tbe Act of June 10, 1893, P. L. 419.
    May 22, 1912:
    A person elected to an office, the term of which is specified on the official ballot, does not, in the absence of constitutional or legislative provision extending the term, get any longer or greater term than that specified on the ballot.

      H. S. Dumbaul, with him David, E. Bane, for appellee.
   Opinion by

Me. Justice Moschziskee,

The learned court below correctly stated the question for decision to be, “Whether or not the term of office of the relator expired in 1911, leaving a vacancy to be filled at the November election of that year?” The relator was chosen a township supervisor at the February election, 1910. There was a vacancy in the office to be filled by election at that time and the ballot specified the term to be one year. But the court below decided that the constitutional amendments of 1909 and the schedule thereto, which were then in force and effect, had expressly fixed and determined the period during which all such officers elected in February, 1910, should serve, and that they gave the relator the right to hold the office to which he had been elected until the first Monday in December, 1913.

The fourth paragraph of the schedule [5 Purdon’s Dig. (Stewart’s Ed.) 5197, Sec. 13],provides: “In the year 1910 the municipal election shall be held on the third Tuesday of February, as heretofore; but...... all officers chosen at that election to offices the term of which is now four years, or is made four years by the operation of these amendments or this schedule, shall serve until the first Monday in December in the year 1913.” The office of supervisor is one whose term was made four years by the operation of the amendments, and the case of the relator is affected thereby. The language of the schedule is not that persons elected to offices for a term of four years, or for a term of any number of years, shall hold until December, 1913, but that “all officers chosen at that election to offices the term of which is now four years or is made four years” shall serve until December, 1913. The regular fixed term of the office and not the length of the term as stated on the ballot determines whether or not a person chosen at the February election, 1910, is affected by this provision of the schedule. The words are clear and “it is not for the courts to say that the people did not mean what is so plainly said in the amendment to the constitution which by their votes was adopted in 1909”: Etter v. McAfee, 229 Pa. 315, p. 318. It is to be noted that the legislative scheme of adjustment of the terms of supervisors of the grade of the relator (Act of June 14, 1911, P. L. 942) appears to follow this construction of the constitutional amendments.

We conclude that the court below committed no error; the assignments are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Keys v. Uniontown Radial Street Railway Company, Appellant.

      Street railway companies — Eminent domain — Common carriers —Act of June 1,1901, P. L. 868.

    1. A street railway company incorporated in 1910, under the Act of May 14, 1889, P. L. 211, and the amendments thereof “for the purpose of constructing, maintaining and operating a street railway for public use in the conveyance of passengers by power other than locomotive,” has the power of eminent domain conferred by the Act of June 1, 1907, P. L. 368, and may re-locate its route in part by the exercise of such power, although its certificate of incorporation and letters patent do not state that it shall be a common carrier “of express matter, farm produce, garden truck, milk, merchandise, and other light freight and property.”

      2. As tbe Act of April 22, 1907, P. L. 96, gave to street railway companies incorporated to carry passengers tbe right and privilege to transport light freight, the purpose stated in the articles of association as quoted was sufficient, to indicate the right to carry light freight as incidental to the primary purpose of the corporation.
    3. Whenever a street railway company, whether incorporated before or after the Act of June 1, 1907, P. L. 368, serves notice on a landowner of its purpose to condemn his land under the right of eminent domain, and files in court its petition and bond as required by the act it becomes bound as a common carrier of light freight from which duty nothing but performance will relieve it.

      Equity — Equity practice — Preliminary injunction — Corporations —Charier power.

    4. On an appeal from a decree refusing to dissolve a preliminary injunction, the established practice is not to consider the merits on appeal until after final hearing, but where the decree restrains a street railway company from exercising the right of eminent domain, and it appears that the court below based its decree upon the ground that the appellant company was not vested by its charter with the power of eminent domain, that question is raised by the record, and will be considered by the appellate court.
    Argued May 9, 1912.
    Appeal, No. 150, Jan. T., 1912, by defendant, from decree of C. P. Payette Co., In Equity No. 661, continuing preliminary injunction in case of Jobn Keys v. Uniontown Radial Street Railway Company.
    Before Pell, C. J., Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Reversed.
    Bill in equity for an injunction. Before Umbel, P. J.
    Tbe opinion of tbe Supreme Court states tbe case.

      Error assigned was decree continuing tbe injunction.

      E. G. Eigbee, of Sterling, Eigbee & Matthews, with bim L. B. Brownfield, for appellant,
    cited: Com. v. Attorney General, 30 Pa. C. C. R. 53; Pottstown Passenger Ry. Co. v. Electric Street Ry. Co., 21 Montg. County, 152; Lehman v. Ry. Co., 224 Pa. 276; Economy Imp. Co. v. Woodlawn Electric St. Ry. Co., 57 Pitts. Leg. J. 273.
    May 22, 1912:

      H. 8. Dumbauldj with him Charles A. Tuit, for appellee,
    cited: Com. v. Erie, Etc., R. R. Co., 27 Pa. 339; Packer v. Sunbury, Etc., R. R. Co., 19 Pa. 211; Bank of Penna. v. Com., 19 Pa. 144; Woods v. Gas Co., 204 Pa. 606; Com. v. Pass. Ry. Co., 52 Pa. 506; Millvale Borough v. Evergreen Ry. Co., 131 Pa. 1; Haines v. Ry. Co., 1 Pa. D. R. 506.
   Opinion by

Mr. Justice Elkin,

This is an appeal from a decree continuing until final hearing and further order of court, a preliminary injunction restraining appellant from exercising the right of eminent domain. In the court below, at the hearing to continue, and upon the motion to dissolve the preliminary injunction, testimony was taken and an exhaustive opinion filed on the principal question in controversy between the parties. When it appears from the record that there was sufficient ground for the action of the court in awarding the preliminary injunction, the established practice is not to consider the merits on appeal until after final hearing and dectee in the Common Pleas. But in this case, the learned court below having based its decree on the ground that appellant company was not vested by its charter with the power of eminent' domain, that question is squarely raised by this record, and may be properly considered now. All of the facts necessary for a determination of this question are before us, and it may be disposed of without any infringement of the rule.

Appellant company was incorporated in 1910 for the purpose of constructing, maintaining and operating a passenger street railway, under the Act of 1889 and the amendments thereto. It is contended that a street railway company incorporated after 1907 for the transportation of passengers cannot engage in the business of transporting farm produce, garden truck, milk, merchandise and other light freight and property over its lines; and that in order to be vested with the power to exercise the right of eminent domain it must be a common carrier of light freight and property of this character. Prior to the Act of 1907 street railway companies did not have the power of eminent domain. This act conferred a power not theretofore possessed, upon all such companies “now or hereafter chartered” under the Act of May 14, 1889, P. L. 211, and the several amendments thereof and supplements thereto. In Section 1 of the Act of June 1, 1907, P. L. 368, it is provided, that a company incorporated either before or after that date, “may locate or relocate its tracks and lines of railway so that the same may be in whole or in part on a public highway, or in whole or in part over private property; and shall have the right of eminent domain, which is hereby conferred; and by virtue of such right may take and occupy so much land or material as may be necessary for the location, construction and operation of its railway either as an extension or relocation of an existing line, or as a new line......” It is too plain for argument that the right of eminent domain is conferred upon all street railway companies without reference to the time of their incorporation. It is true the act does provide “that all street railway companies that shall avail themselves of the right of eminent domain shall be common carriers of express matter, farm produce, garden truck, milk, merchandise, and other light freight and property.” Any company that avails itself of the right has imposed upon it the duties of a common carrier of light freight by the express terms of the statute. The only question that can possibly arise under the act is in what manner shall a company be required to avail itself of the right. Shall it be required that the purpose to carry light freight be stated in the articles of association, or in the letters patent, or in the constating instruments, before the right can be asserted? The appellee so contends. The Act of 1907 does not so provide, and to so hold, it will be necessary to read into the act by interpretation this requirement. In our opinion, neither the language of the Act of 1907 conferring the right of eminent domain, nor the historical view of the legislation authorizing the incorporation of street railway companies, warrants such a conclusion. The primary purpose of these acts is to authorize the incorporation of companies for the transportation of passengers, and the carrying of light freight is made by the Act of 1907 incidental to this general purpose. Under existing law there is no authority to incorporate a street railway company for the transportation of light freight alone. This is a privilege conferred, or a duty imposed, as the case may be, upon street railway companies incorporated for the transportation of passengers. The power is conferred upon companies incorporated to transport passengers, when they elect to avail themselves of the right, and is not restricted to those originally incorporated as carriers of freight and passengers. It would seem to follow that the statement of purpose for which the company is primarily incorporated is sufficient to include those incidental duties which the legislature thought proper to impose upon corporations so created. It must not be overlooked that eminent domain is the sovereign power vested in the Commonwealth, and that its exercise is always regulated by constitutional and statutory law. In dealing with this subject the legislature, within constitutional limitations, has very great power to grant or withhold. It was within the power of the legislature to confer the right of eminent domain upon corporations already created, as well as upon those to be subsequently incorporated. It did this thing in express terms, and it would seem somewhat violent for courts to say that corporations may not exercise the right conferred until charters have been amended, or other acts antecedently done, which the act does not require. We are not advised of any statutory provision for amendment of the statement of purpose in charters of street railway companies, and if it now be held that the purpose to carry light freight must be stated in the articles of association before exercising the right of eminent domain, all such companies incorporated prior to the Act of 1907 would be denied a right which the legislature has expressly conferred. There is nothing in this record to warrant such a result, nor is there anything to indicate that the legislature intended to thus restrict the power granted. Nor is it apparent why any distinction in this respect should be made between companies incorporated before and after the Act of 1907. The legislature treated these corporations as a class, without reference to the date of their incorporation, and this being primarily a legislative question, there does not seem to be any sufficient ground for applying one rule to companies incorporated after the Act of 1907, and another to those created prior to that time. It is clear that the legislature intended the right to be exercised by all street railway companies if they choose to avail themselves of it. When they do avail themselves of the right they are bound as common carriers during their corporate existence. When, as in the case at bar, the company served notice on the land owner of its purpose to condemn his land under the right of eminent domain, and filed in the court below its petition and bond as required by the act, it became bound so far as appellee is concerned at least as a common carrier of light freight from which duty nothing but performance would relieve it. This was a declaration in a court of law of its election to assume the duties of a common carrier, and to be vested with the right of eminent domain. It was not required to make the election, but when it did so, the right to exercise the power vested, and the duties of a common carrier were assumed. After that election the rights and duties of the corporation were fixed, with respect to the privileges and burdens resulting as a legal consequence.

We agree that in the consideration of this case some confusion has arisen by reason of failure to distinguish between the purpose of a corporation as stated in the articles of association and the powers of such corporation conferred by statute. No matter what the charter contains, or what is stated in the articles of association, the powers of a corporation depend upon statutory grant. The purpose must be stated in the constating instruments, but the powers are conferred by statute. The Act of April 22, 1907, P. L. 96, gave to street railway companies the right and privilege to transport light freight of the kind specified over their lines, and it is important to bear in mind that this privilege was conferred upon street railway companies incorporated to carry passengers. This is a legislative declaration that the carrying of light freight by street railways is to be considered as incidental to the general purpose of their incorporation. When so regarded the purpose stated in the articles of association in the case at bar is sufficient not only to indicate the right to transport passengers, but to include the right to carry light freight as incidental to the primary purpose of the corporation.

We, therefore, conclude that appellant company, in so far at least as the provisions of the Act of 1907 are involved, was in position to exercise the right of eminent domain when it filed its petition and bond in the court below with notice to the land owner of its purpose to condemn. Several other grounds are set forth in the injunction bill asking for relief, but upon the record presented here they cannot be considered. Upon the main question hereinbefore discussed, the merits of the controversy are with appellant, although for other reasons indicated by the record the right to condemn may not have existed at the time the bill was filed. We do not pass on any of these questions except the one considered. They may be brought to the attention of the court below if it is so desired. Under these circumstances, and because the right to locate the line of street railway through land of appellee may not have existed when the bill was filed, we think appellant should pay the costs in the court below and here up to the present time.

Decree reversed, preliminary injunction dissolved, and record remitted for further hearing on the bill, if for any of the reasons not considered here, the appellee desires to be heard in the court below. Costs to be paid by appellant.


author: Mr. Justice Mosci-izisker,

text:
    Friend, Appellant, v. Kramer.

      Negligence — Dentist — Malpractice—Evidence—Nonsuit.
    In an action against a dentist to recover damages for physical injuries, where the plaintiff avers in her statement of claim that the defendant in extracting a root of a tooth had fractured her jaw, and that by the use of unclean instruments had introduced poisonous germs into her jaw, a nonsuit was properly entered where the plaintiff produces no evidence that her jaw had in fact been fractured, and it appears from the testimony of the expert witnesses called by herself that she was not in her normal state of health at the time the defendant treated her; that her vitality had been weakened from a recent attack of typhoid fever; that her jaw at the time was not healthy and sound; and that the infection of which she complained might have come from the air, from drinking water, from food taken into the mouth, or from some other decayed tooth in her mouth.
    Argued May 10, 1912.
    Appeal, No. 179, Jan. T., 1912, by plaintiff, from order of C. P. Fayette Co., March T., 1911, No. 100, refusing’ to take off nonsuit in case of Mary E. Friend v. Arthur Raymond Kramer.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.

      May 22, 1912:
    Trespass to recover damages for personal injuries. Before Umbel, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      S. S. Dumbauld, with him Robinson & McKean, for appellant.
    One suing for a personal injury negligently inflicted is not bound to exclude the possibility that the accident might have happened in some other way than alleged, but is required only to satisfy the jury by a fair preponderance of the evidence that it occurred in the manner in which he claimed it did: Woodall v. Ry. Co., 192 Mass. 308 (78 N. E. Repr. 446); Boucher v. La Rochelle, 74 N. H. 433 (68 Atl. Repr. 870); Beauchamp v. Saginaw Mining Co., 50 Mich. 162 (15 N. W. Repr. 65); Hoehle v. Heating Co., 5 Pa. Superior Ct. 21; Davies v. McKnight, 146 Pa. 610; Guskavan v. Traction Co., 203 Pa. 521; Brashear v. Traction Co., 180 Pa. 392; McCafferty v. R. R. Co., 193 Pa. 339; Lenahan v. Mining Co., 225 Pa. 218.

      R. P. Kennedy, with him George Patterson, for appellee.
    The burden at all time is upon the plaintiff to show by the weight of the evidence that the defendant failed to treat her with reasonable and ordinary professional skill: English v. Free, 205 Pa. 624; Wohlert v. Seibert, 23 Pa. Superior Ct. 213; McClain v. Henderson, 187 Pa. 283; Salerno v. Ry. Co., 46 Pa. Superior Ct. 243; Price v. R. R. Co., 202 Pa. 176; Ewing v. Goode, 78 Fed. Repr. 442.
   Opinion by

Mr. Justice Mosci-izisker,

The plaintiff sued in trespass to recover damages for physical injuries suffered by her through the alleged negligence of the defendant, a practicing dentist. She averred that the defendant “negligently and unskilfully” injected cocaine into her “gum or jaw” and applied to one of her teeth “a pair of powerful forceps which had not been properly cleansed, and extracted said root or tooth, or a part thereof, applying such force as to fracture the plaintiff’s jaw-bone in so doing”; and that “by the use of the unclean instruments aforesaid, her jaw was affected by poisonous germs.” The court below nonsuited the plaintiff, and the error assigned is the refusal to take off the nonsuit.

The plaintiff showed that after her tooth had been extracted by the defendant she had been taken ill and obliged to spend some time in a hospital, and that she had suffered great pain in the part of the jaw from which the tooth had been removed; but she did not prove that there had been negligence or unskilfullness in administering the cocaine or that her jaw-bone had been fractured. While she claimed that she did not see the defendant cleanse or sterilize his instruments, it is exceedingly doubtful from the testimony whether she was in a position to know whether or not this had been done; but assuming that there was sufficient to take that particular point to the jury, the weakness of the plaintiff’s case lies in the fact that she did not show with any degree of certainty that the direful results attributed by her to the use of the alleged unclean instruments came from that cause. The hypothetical question propounded to the expert witnesses, the answers to which were depended upon by the plaintiff to make out her case, stated that she was “in a normal state of health, that her jaw was healthy and sound and not affected or diseased at the time she visited the defendant’s office.” Counsel for the defendant objected that the question assumed facts not shown, and in overruling the objection the trial judge stated that unless more proof was produced later on, the testimony would not avail the plaintiff. In the opinion filed by the court below it is said, “We allowed the witness to answer indicating at the time that we thought there was merit in the objection, and that the answer would not avail the plaintiff unless other and further proofs were submitted on some of the assumed propositions; having in mind particularly the assumption that plaintiff’s ‘jaw was healthy and sound and not infected or diseased, and that she was in a normal state of health.’...... Therefore, instead of the proof in point inuring to the benefit of the plaintiff, it bore in the opposite direction. On cross-examination Dr. Allen says that if there were a dead root of a tooth in the mouth of the plaintiff and that if some time before she went to the defendant she had a decayed tooth partly pulled, leaving the root of that tooth in the alveolar process that the teeth are imbedded in, you would expect that root to make trouble and that the gum might become infected after it was lacerated by the pulling of the tooth just where it could not be dressed or properly treated. He says it could become infected from the air, from drinking water or from food taken into the mouth, that it would be possible for other decayed teeth in the mouth to contribute a germ or help along the condition. He further says the defendant might have treated the plaintiff to the highest standard of professional dentistry, leaving a lacerated gum from pulling the root, and yet the jaw become infected with a germ or germs after he had done all he could for her.” The testimony of the other experts was substantially the same as that given by Dr. Allen. The hypothetical question put to each of them was not a fair presentation of the actual facts concerning the plaintiff’s state of health; it appears in the evidence that her vitality was much weakened from a recent attack of typhoid fever with complications and that her jaw was far from “healthy and sound,” for she herself testified that at the time of the operation by the defendant her teeth were in such a state that she wanted to get false ones, and that the particular tooth extracted had been broken off by another dentist, “was decayed a little in the middle, ......had grown over” and hurt her when she “was eating something and would bite on it.” With the testimony in this condition, the conclusion that the plaintiff’s illness was properly ascribable to the alleged negligence of the defendant would have been a mere guess and not a finding based on evidence which, on the theory of reasonable probability, would lead the mind naturally to the conclusion contended for by the plaintiff. Under these circumstances the court below committed no error in entering the nonsuit.

The assignments are overruled and the judgment is affirmed.


author: Me. Justice Elkin,

text:
    Reichner, Appellant, v. Trust Company of North America.

      Promissory notes — Suit by indorsee against maker — Evidence.
    In an action of assumpsit the plaintiff declared as indorsee on a promissory note executed and delivered to the payee by defendant’s testatrix. At the trial plaintiff offered the note with the endorsement in blank of the payee on the back. The note also bore a ^special endorsement of the payee to the order of the plaintiff dated several months after maturity. This special endorsement was not offered in evidence at the trial by either party. The defendant proved that the note had been discounted by a bank on the day of its execution, and that some one had paid the full amount of the note to the bank at maturity. It was also shown that the proceeds of the note had been placed to the credit of the payee on the books of the bank. In rebuttal plaintiff offered the affidavit of defense to show on admission that the payee of the note had it discounted at the bank, and at maturity had paid the note in full. There was no evidence to show that the note had been signed by an accommodation maker. Held, that a verdict and judgment for plaintiff should be sustained, as plaintiff was entitled to binding instructions.
    Argued May 15, 1912.
    Appeal, No. 143, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1907, No. 1043, for defendant non obstante veredicto in case of Winfield K. Reichner v. Trust Company of North America, Executor of the. Last Will and Testament of Caroline Vautier, deceased.
    Before Fell, C. J., Bbown, Mesteezat, Potteb and Elkin, JJ.
    Reversed.
    Assumpsit by an endorsee against the maker of a promissory note. Before Mastín, P. J.
    The note in suit was as follows:
    $1,200— Philadelphia, 3, 10 — 1905
    Four months after date I promise to pay to the order of Samuel K. Reichner Twelve hundred---dollars at 1503 East Passyunk Ave. Without defalcation, for value received.
    Caroline Vautier
    No:--Due-- 1503 Passyunk Ave. Endorsed — Samuel K. Reichner
    Mar. 1st. 1906
    For value received I assign sell and transfer all my right title and interest in the within note to Winfield K. Reichner.
    Sami. K. Reichner
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for the plaintiff for $1,672.80. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      W. W. Porter, of Porter, Foulkfod & MeGullagh, with him Albert T. Bauerle, for appellant.
    Under the evidence the appellant was entitled to have a verdict directed in his favor, in accordance with his request, and judgment should now be entered in favor of the plaintiff on the verdict: McCarty v. Roots, 62 U. S. (21 Howard) 432; Kyner v. Shower, 13 Pa. 444; Riegel v. Cunningham, 9 Phila. 177; Ross v. McConnell, 13 York Leg. Rec. 21; Louchheim v. Maguire, 186 Pa. 311; Liebig Mfg. Co. v. Hill, 9 Pa. Superior Ct. 469; Second Nat. Bank v. Hoffman, 229 Pa. 429; Warne v. Johnston, 48 Pa. Superior Ct. 98; Hastings v. Speer, 34 Pa. Superior Ct. 478; Krœgher v. McConway & Torley Co., 149 Pa. 444; Oehmler v. Rys. Co., 25 Pa. Superior Ct. 617; Elder Twp. School District v. R. R. Co., 26 Pa. Superior Ct. 112; Hawk v. Maxler, 233 Pa. 337.
    May 22, 1912:

      George Henderson, for appellee,
    cited: Snyder v. Riley, 6 Pa. 164; Tams v. Way, 13 Pa. 221; Hill v. Kroft, 29 Pa. 186; Nagle’s Est., 134 Pa. 31; Hartley v. Corboy, 150 Pa. 23; Bowers v. Rineard, 209 Pa. 545; Cornog v. Wilson, 231 Pa. 281; Stewart v. DeNoon, 220 Pa. 154.
    The plaintiff has failed to establish a title after maturity.
    The plaintiff had parted with any title he possessed: Rensselaer Glass Factory v. Reid, 5 Cow. (N. Y.) 587.
   Opinion by

Me. Justice Elkin,

This suit was brought by the indorsee against the maker of a promissory note. At the trial the jury found in favor of the plaintiff and returned, a verdict for the principal and interest of the note. On motion, judgment non obstante veredicto for defendant was entered upon the whole record. The errors complained of in the first, second and third assignments, relate to the entry of judgment n. o. v. and to the refusal of the trial judge to give binding instructions; the other assignments complain of errors in the admission of certain testimony. The defendant died while the suit was pending and her executor was substituted as party defendant. Thus the record stood at the time of trial. Death having sealed the lips of the maker of the note, defendant in the suit, the indorsee, the party suing, could not be called as a witness. Plaintiff offered in evidence the original note with the indorsement in blank of Samuel K. Reichner, the payee, on the back of it and rested. Defendant made a motion for compulsory nonsuit which was overruled. Defendant then proved by a witness called for the purpose that the note in suit was discounted by the Southwark National Bank on the day of its execution, and that someone paid the full amount of the note to the bank at maturity. It also proved that the proceeds of the discounted note were placed to the credit of the payee on the books of the bank. Defendant then offered testimony relating to collateral matters, not material for consideration here, and rested. In rebuttal plaintiff offered in evidence that part of the affidavit of defense in which it was admitted that the payee of the note had it discounted at the bank and at maturity paid the same in full. Who in fact paid the note does not appear except as it is admitted by the maker in the affidavit of defense, that she did not pay it and the payee did. Upon this record the case was submitted to the jury. There was some confusion at the trial, and there is some here, as to the rights of a holder for value before and after maturity. No defense except payment is good against a bona fide holder for value before maturity; but, as to a bona fide holder for value after maturity, the maker can set up any defense which could have been made in a suit brought by the original payee. If, therefore, it appeared as a fact, or if the facts were sufficient to warrant the jury in drawing the inference, that appellant was a holder for value after maturity, it would have been a good defense to show that the note was signed by an accommodation maker. The difficulty with the case at bar is that no testimony was offered at the trial to show that the note was signed by an accommodation maker, nor was there anything on the face of the note, or in the indorsement, offered in evidence, to so indicate. The record must be taken as we find it, and when considered as presented here, the conclusion is irresistible that no matter what the merits of such a defense may have been, it was not made out. Appellee seems to take the position that the burden was not on the defendant to show that the note sued on was accommodation paper, until appellant had first established the fact that he was a holder for value. This is an erroneous view of the case. When, at the trial, the note with the indorsement in blank, was offered in evidence by the holder, a prima facie case was made out, which to defeat a recovery required a defense. The argument is made here that there were suspicious circumstances, connected with the transaction, sufficient to overcome the presumption that the plaintiff is a holder for value, and a number of cases are cited relating to this question. The answer to this position is that the defendant failed to prove the suspicious circumstances, and we are not at liberty to presume such circumstances. They must be proved like other material facts. The formal assignment on the back of the note was not offered in evidence by either party, and cannot be considered; and the same may be said of the statement of claim filed in a former suit which was discontinued. If the facts now relied on to show suspicious circumstances were material to the case, it was the duty of appellee to prove them at the trial, and failure to offer the proof, leaves the record barren of any facts upon which to base the contention.

We find nothing in this record that discloses a good defense, even against the original payee of the note, and therefore none as against the indorsee even if he acquired title after maturity. If it had been shown that the note was signed by an accommodation maker, it would have been a good defense against the original payee, or the holder for value after maturity, but such a defense depends upon the facts, and none were proved.

The jury found in favor of the appellant upon the merits of the case when it was submitted without binding instructions, to which, as we view it, he was clearly entitled. So far as the record discloses he is sustained both by the law and the facts.

The first, second and third assignments of error are sustained.

Judgment reversed and is here entered for plaintiff on verdict.


author: Mr. Justice Brown,

text:
    Brobst, Appellant, v. City of Reading.

      Equity — Taxpayer’s bill — Injunction — Municipal contract — Variance from, specifications — Authority of city officials — Extra world.

    1. A contractor who enters into a contract with a city for the construction of a sewer pipe “in strict and exact accordance with” certain specifications and who deliberately substitutes a pipe differing materially from that required by the specifications, so that leakages result, is not entitled to compensation for the work required to prevent the leakage and it is immaterial that the engineer and board of public works of the city had assented to the use of this kind of pipe, since they are merely the agents of the city to act for it in the preliminaries leading up to the contract, to formulate the terms of the same and see that they were performed, but not to change such terms. The contractor is bound to take notice of the extent and limits of the powers of the agents of the city. Such work cannot be considered extra work.
    2. In such a ease a court of equity will upon a taxpayer’s bill enjoin payment by the city for such work, and it is no defense to such a bill that the contractor acted in entire good faith.
    Argued Feb. 26, 1912.
    Appeal, No. 281, Jan. T., 1910, by defendant, from decree of C. P. Berks Co., No. 961, Equity Docket, 1908, granting a perpetual injunction in case of Francis H. Brobst v. Caleb Weidner, clerk, Obadiah Doward, controller, and Edward H. Filbert, treasurer of the City of Beading, the City of Reading and John F. Albrecht.
    Before Fell, C. J., Beown, Mesteezat, Elkin and Stewaet, JJ.
    Affirmed.
    Bill in equity by taxpayer to enjoin payment by city to contractor.

      July 2, 1912:
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree of court.

      Isaac Eiester, with him Adam B. Rieser, for appellant.

      John B. Stevens, for appellee.
   Opinion by

Mr. Justice Brown,

No one of the seventeen facts found by the learned court below has been assigned as error, and the case, as presented by them, is a very simple one, involving the single question to which there can be but one answer. In entering into the contract with the city of Reading for the construction of the sewer pressure pipe, the covenant of the appellant was that he would perform it “in strict and exact accordance with the terms, conditions and specifications” attached to it. The specifications called for a re-enforced concrete pipe, built monolithic, and the express stipulation was that, at the end of each days’ work of construction, the concrete should be finished to a vertical joint, against which the next day’s work should butt, the joint to be covered with’ a concrete ring or collar of designated width and thickness. The appellant, instead of intending to comply with that stipulation, entered into the contract with the deliberate intention of not doing so, but of substituting a pipe known as the Leet pipe, made up of short sections, manufactured outside of the trench. This pipe differed materially in the mode of re-enfórcement from that required by the specifications, and was two-fifths thinner. The pipe was laid by the appellant in palpable disregard of the specifications and of his declaration in his proposal for the work, that he had examined the form of the contract as approved by the city solicitor and would contract, in the form so approved, to do all the work “in exact conformity with the terms, conditions and covenants contained in said agreement and the specifications.”

As a consequence of the appellant’s failure to construct the pipe as he had contracted, it leaked at most of its joints, and, when he stopped the leaks by widening the trench and building concrete rings around the joints, he did only what he ought originally to have done. In no sense can this last work be regarded as extra work, within the contemplation of the contract, and for which compensation ought to be allowed, for, if the appellant had laid a pipe in accordance with the specifications, and there had been leaks, he was bound, by the seventy-eighth clause of the specifications, to stop them by tearing up, if necessary, the entire pipe line and relaying it at his own expense. The answer made to this is that the city’s board of public works had assented to the use of the Leet pipe. Suppose it had. Leaks in the pipe to be laid were to be stopped “at the expense of the contractor.” But, even if this were not so, the plea of the appellant to be paid is unavailing for another reason. His contract was with the city of Reading, and not with its engineers or board of public works. They were but its agents to act for it in the preliminaries leading up to the contract, to formulate the terms of the same and to see that they were performed, and the appellant was bound to take notice of the extent and limits of the powers of these agents: Roland v. Reading School District, 161 Pa. 102; O’Malley v. Olyphant Borough, 198 Pa. 525. What the city engineer and the board of public works permitted the appellant to do was not the city’s permission. He had contracted, as just stated, not with them, but with it, and they were without authority to make a new contract with him to bind it. The powers of the engineer were to interpret the contract, not to change it; and yet this is what he undertook to do. No deviations from the approved plans and specifications were to be allowed, unless by the written consent of the city engineer, approved by the board of public works. For, what was more than a mere deviation by the appellant from Ms contract with, the city, he did not even have the written consent of the engineer.

Nearly fifty years ago it was said by Mr. Justice Agnew, in Hague v. Philadelphia, 48 Pa. 527: “Now, more than ever, do we need a rigid enforcement of public contracts, and a stricter moral discipline, to defeat the varied plans by which money is taken from the treasury without authority. The older we grow as a people, the more systematized and difficult of detection do the schemes become for plundering the public; and among them all, none are more prominent or successful than those which concern contracts and jobs.” If this was true then, it is truer now, and the learned chancellor below well said, that unless contractors are held to specifications and calls for bids upon them, they will, instead of serving to guide bidders and protect the public, become, as to both, a sham and a snare.

The appellant may have acted in entire good faith, but that is not the question before us. By his contract with the city, he and it are bound, and the appellee, a taxpayer, has the right to ask that both be held to their agreement, else moneys of the public will be unlawfully paid to the appellant.

The filing of this bill was not unduly delayed, and, as none of the assignments of error call for a reversal of the decree, it is affirmed at appellant’s costs.


text:
    Goetz’s Estate
    (No. 1).

      Jurisdiction — Tower over corporations — Continuance of decedent’s business.

      1. Where the executors of an estate with the consent of the beneficiaries under the will organize a corporation for the purpose of continuing the testator’s business, and assign and transfer to the corporation the property of the estate, and thereafter the corporation makes large profits, the Orphans’ Court has no jurisdiction in auditing the account of the executors, to ascertain and distribute the profit made by the company; nor has it power to fix the compensation of one of the executors who was the business manager of the corporation, for his services as such. •
    2. In such a case the estate, even as the holder of all of the stock, would not be the owner of the corporation, but only of the shares of its capital stock, which constitute a species of property entirely distinct from the corporate property. The directors of the corporation alone have the power to determine whether profits have been earned, and if earned whether they should be divided among the shareholders; and to the directors alone is entrusted the power of fixing the compensation of the officers and employees of the corporation. Over such powers the Orphans’ Court has no supervision.
    Argued Feb. 27, 1912.
    Appeals, No. 72, Jan. T., 1912, by Ferdinand Goetz Sons’ Company, and No. 73, Jan, T., 1912, by Fred W. Goetz, Executor from decree of O. C. Berks Co., Nov. T., 1910, No. 35, dismissing exceptions to adjudication in Estate of Ferdinand Goetz, deceased.
    Before Fell, C. J., Bbown, Mestbezat, Elkin and Stewabt, JJ.
    Eeversed.
    Exceptions to adjudication. Before Bland, P. J.
    Ferdinand Goetz, a member of the firm of Winter & Goetz, tanners, died leaving a will wherein he gave to his widow for life the entire income of his estate. He named his son, Fred W. Goetz, and his son-in-law, William C. Billman, executors. He left six children, two of whom were minors.
    The executors, with the consent of the widow and adult children, purchased the interest of the surviving partner in the tanning business for $80,500 and organized a corporation under the laws of Pennsylvania, “The Ferdinand Goetz Sons’ Company,” with a capital of $75,000, divided into 1,500 shares of the par value of $50.00 each.
    In the application for a charter the said shares were set forth thus:
    “Fred. W. Goetz............747 shares.
    W.C. Billman.....!........747 «

      Charles E. Miller.......... 2 shares.
    Karl Goetz................. 2 u

    George Burner.............. 2 u

    Fred. W. Goetz and Wm. C. Billman were the executors as aforesaid, and Karl Goetz was a son of the testator, while Charles E. Miller and George Burner were workmen in the tannery.
    None of the said parties paid any money for their shares, the capital being paid in full by a transfer of the tanning business which had for many years been prosperous and then belonged entirely to the testator’s estate. Fred. W. Goetz was made President and Wm. C. Billman Treasurer of the corporation. In June, 1910, Mr. Billman, claiming to own in his own right the 747 shares standing in his name, took the certificates therefor from the corporation’s safe.
    George Z. Goetz, a son of the testator, a minor, having for his guardian the Beading Trust Company, compelled the filing of an inventory and account. Mr. Bill-man filed the account, refusing to charge himself with 747 shares of stock. Fred. W. Goetz, his co-executor, joined in the account with a protest that not only the 747 shares but all the shares should be embraced as part of the assets of the estate. George Z. Goetz, by his guardian, filed an exception to the account based on the omission of the shares of stock. The controversy was as to the 747 shares claimed by Mr. Billman. Testimony was submitted, Mr. Billman claiming the stock under an alleged arrangement with the widow, and the widow testified that she understood that the stock was to belong to the estate. The court below found the transaction a fraud upon the widow and children, and adjudged the shares of stock to belong to the estate. The court further proceeded to ascertain the profits .which the corporation had made from the 12th day of November, 1904, to January 1,1910, the amount thereof being $171,144.02. To this the court added the balance of the income account, $790.11, making a grand, total of $171,934.13. The court then deducted the $80,500 paid for Mr. Winter’s interest, leaving a balance of $91,-434.13, which the court distributed to the widow. In a subsequent distribution the court distributed $18,-428.80 of the said sum of Mr. Billman as compensation for services rendered to the corporation.
    July 2, 1912:
    Fred. W. Goetz, Executor, filed exceptions to the adjudication.
    The exceptions were dismissed. Both the Ferdinand Goetz Sons Company and Fred. W. Goetz, Executor, apjjealed.

      Errors assigned were is dismissing the exceptions.

      Gyrus G. Derr, for appellants,
    cited, Monongahela Bridge Co. v. Traction Co., 196 Pa. 25; Stitzel’s Estate, 221 Pa. 227.

      Jefferson Snyder, of Snyder & Zieber, for William C. Billman, appellee.
   Opinion by

Mr. Justice Brown,

These two appeals will be disposed of together. The same questions are raised by each and the assignments of error are identical. It is not necessary that we decide whether the Ferdinand Goetz Sons’ Company has any standing as an appellant, as the appeal of Frederick W. Goetz, executor, must be sustained.

What the court had before it in adjudicating the account of the executors of Ferdinand Goetz, deceased, was his estate^ and the parties before it were his executors, his widow and children; but, in awarding to the widow what it found to be the net income of the estate of the testator, it undertoolrto find what the net profits of the Ferdinand Goetz Sons’ Company, a corporation, had amounted to from November 12, 1904, to January 1, 1910, and, after fixing the compensation to be paid out of them to the business manager of that corporation, awarded the balance to the widow. In other words, without haying before it the Ferdinand Goetz Sons’ Company, the court below found that the balance of its net profits during the period stated, after paying the purchase price of the interest of Ferdinand Winter in the partnership, amounted to $90,644.02, and decreed that of this sum W. C. Billman, the business manager of the corporation, should receive $18,428.80 as the balance due him for services to the corporation, and that the remainder of the said net profits should be paid to the widow. This anomalous adjudication was made because the court found that the estate of the testator was the owner of 1,494 of the 1,500 shares of the capital stock of the Ferdinand Goetz Sons’ Company, or six shares less than the entire stock issue. Suppose the estate was the owner of all the stock, what the court below did would be none the less anomalous. The estate, as a holder of all the stock, would not be the owner of the corporation, but only of the shares of its capital stock, which constitute a species of property entirely distinct from the corporate property. A shareholder has no distinct and individual title to the moneys or property of the corporation, nor any actual control over it: Bidwell v. Pittsburgh, Oakland & East Liberty Passenger Railway Company, 114 Pa. 535. “We have been referred to no authority, and we know of none, that asserts the doctrine that the purchaser of all the shares of the capital stock of a corporation thereby becomes the owner of its property. On the contrary the principle is well established that the shares of the capital stock of a corporation are essentially distinct and different from the corporate property, and that the owner of all the stock of a corporation does not own the corporate property or become entitled to manage or control it. ‘A corporation,’ says Mr. Cook in his work on Corporations, Section 6, ‘is an entity, an existence, irrespective of the persons who own all its stock. The fact that one person owns all of the stock does not make him and the corporation one and the same person.’ In Morawetz on Private Corporations, Sec. 1009, it is said that ‘it is well settled that all the shares in a corporation may be held by a single person, and yet the corporation continues to exist; and if the charter or bylaws should require certain acts to be done by more than one shareholder, the sole owner may transfer a portion of his shares to other persons, so as to conform to the letter of the rule.’ In Bidwell v. Pittsburgh, Etc., Pass. Railway Company, 114 Pa. 535, Mr. Justice Clark, delivering the opinion of the court, says: ‘The shares in a corporation constitute a species of property entirely distinct from the corporate property; a shareholder has no distinct and individual title to the moneys or property of the corporation, nor any actual control over it; the shares represent a right to participate in profits only’”: Mr. Justice Mestrezat, in Monongahela Bridge Company v. Pittsburgh & Birmingham Traction Company, 196 Pa. 25.

How are corporate profits to be ascertained and by whom are they to be distributed? Surely not by an Orphans’ Court, to which no living manufacturing company is ever answerable for the management of its affairs, and whose jurisdiction and supervisory powers do not extend to representatives of such a dead corporation. The affairs of a corporation are managed by a board of directors, who, in the first instance, are to determine whether profits have been earned and whether, in their discretion, they ought to be divided among the shareholders; and, if such discretion is abused, the remedy for its correction is not to be found in an Orphans’ Court.

Until a dividend of the profits of a corporation has been declared by its board of directors, a stockholder has no legal title to any interest in them. The shares of stock which he holds represent only a right to participate in the profits, and that right is to be enforced ordinarily only after a dividend of the profits has been declared: Corgan v. Lee Coal Co., 218 Pa. 386; Hyatt v. Allen, 56 N. Y. 553; Goodwin v. Hardy, 57 Me. 143; Phelps v. Farmers & Mechanics Bank, 26 Conn., 269; Cook on Stock and Stockholders and Corporation Law, Sec. 4. As just stated, the Ferdinand Goetz Sons’ Company was not even before the court at the adjudication, and yet it assumed to ascertain its profits, and, in effect, to make a cash distribution of them, though they were not represented by money in the treasury, but existed only in the form of materials on hand, manufactured goods, accounts receivable, etc. And even more than this was done, for the court assumed to fix the compensation of William C. Billman, the business manager of the corporation, for his services, and ordered that out of the profits he should be paid the sum of $18,428.80, in addition to what he had already received. All this was coram non judice. The common law was ignored, as were the express words of the act of May 14, 1891, P. L. 61, which declare that the business of every corporation created under the general corporation act of April 29,1874, P. L. 73, shall be managed and conducted by a president and a board of directors or trustees.

If profits have been earned by the Ferdinand Goetz’ Sons’ Company, to which the widow of the testator is entitled through dividends paid, or to be paid, to his executors, she will receive them; and, if William C. Bill-man is entitled to compensation for his services as business manager of the corporation, he has his remedy to compel it to pay him. Neither he nor Mrs. Goetz will be prejudiced by reversing the decree which the court below was powerless to make.

The first, second, thirteenth and fourteenth assignments of error filed in the appeal of Frederick W. Goetz, Executor, are sustained, and the decree of the court below, in surcharging the accountants with profits of the Ferdinand Goetz Sons’ Company, and in directing that William C. Billman be paid out of the same, as compensation for Ms services as business manager, is reversed, the costs on these two appeals to be paid out of the funds of the estate.


author: Me. Justice Beown,

text:
    Goetz’s Estate
    (No. 2).
    Argued Feb. 27, 1912.
    July 2, 1912:
    Appeals, No. 71, Jan. T., 1912, by George A. Goetz, and No. 74, Jan. T., 1912, by Anna K. Goetz, from decree of O. O. Berks Co., Nov. T., 1910, No. 35, dismissing exceptions to adjudication in Estate of Ferdinand Goetz, deceased.
    Before Fell, C. J., Beown, Mesteezat, Elkin and Stewaet, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts of the case appear in Goetz’s Estate No. 1, 236 Pa. 630.

      Errors assigned in overruling exceptions to adjudication.

      Cyrus C. Derr, for George Z. Goetz, appellant.

      Henry P. Keiser, for Anna K. Goetz, Appellant.

      Jefferson Snyder, of Snyder & Zeiber, for William C. Billman, Appellee.
   Opinion by

Me. Justice Beown,

The assignments of error filed in these two appeals are sustained, so far as they complain of the decree of the court below directing that, out of the profits of the Ferdinand Goetz Sons’ Company, William C. Billman be paid the sum of $18,428.80 as the balance due him for compensation as the business manager of the corporation, the costs on each appeal to be paid by the estate.


text:
    Goetz’s Estate
    (No. 3).

      Orphans’ Court — Findings of fact — Evidence — Executors and administrators — Ownership of stoch — Corporation.
    1. Findings of fact by the Orphans’ Court that executors who had organized a corporation to carry on the business of the decedent held the stock of such corporation as trustees for the estate and not as their own personal property, will not be reversed where such findings are based upon sufficient evidence, and there is no manifest error.

      Orphans’ Court — Jurisdiction — Corporation organized "by executors — Distribution of profits.

    2. The Orphans’ Court has no jurisdiction to ascertain and distribute the profits of a corporation organized by executors to carry on the business of a decedent.
    Argued Feb. 27, 1912.
    Appeal, No. 77, Jan. T., 1912, by William C. Billman, from decree of O. C. Berks Co., Nov. T., 1910, No. 35, dismissing exceptions to adjudication in Estate of Ferdinand Goetz, deceased.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    ^Reversed.
    Exceptions to adjudication.
    The facts appear in Goetz’s Estate, No. 1, 236 Pa. 630.

      Errors assigned were, among others,
    4. The court erred in not sustaining the ninth exception to the adjudication which was as follows:
    “9. The court erred in surcharging the accountants with 1,494 shares of stock of the Ferdinand Goetz Sons’ Company and directing that the same be held subject to the uses of the will of decedent.”
    5. The court erred in not sustaining the appellant’s tenth exception to the adjudication, which was as follows:

      July 2, 1912:
    “The court erred in surcharging the accountants with $171,934.13, profits of the tannery business.”
    7. The court erred in entering a decree distributing to Anna Catharine Goetz $72,951.17.

      Jefferson Snyder, of Snyder & Zeiber, for appellant.

      Henry P. Reiser, with him Gyrus G. Derr, for Anna K. Goetz, et al., appellees.
   Opinion by

Mr. Justice Brown,

In view of the admitted and undisputed facts in this case — to say nothing of those correctly found by the court below — not a word is needed from us in vindication of its surcharge of the executors with 1,494 shares of the capital stock of the Ferdinand Goetz Sons’ Company. From the time the inventory was filed, Frederick W. Goetz, one of the executors, with a due sense of fidelity to his father’s estate, insisted that these shares belonged to it, and not to them, and it is almost inconceivable that his co-executor, the appellant, should claim to be the individual owner of one-half of them. From the day the 1,494 shares were issued they formed part of the estate of the testator and were held in trust for it by his son and son-in-law. To enter upon any discussion to show that this is so would be a work of supererogation. The facts speak for themselves, and, without saying more, appellant’s complaint of the surcharge is dismissed.

For the reasons stated in sustaining the appeal of Frederick W. Goetz, executor, 236 Pa. 630 filed herewith, appellant’s fifth and seventh assignments are sustained. The first, second, third, fourth, sixth and eighth are dismissed, the costs on this appeal to be paid by the estate.