text:
    Rathfon v. Locher, Appellant.

      Practice, C. P. — Statement of claim — Receiver—Suit by receiver — Record.
    In a suit brought by a receiver in the court which appointed him, the statement of claim will not be held insufficient, because it merely refers to the record of the proceedings appointing the receiver. The statement need not have attached to it a copy of the whole record.

      Married woman — Promissory notes — Surety for husband — Moral consideration.

      A promissory note given by a married woman as surety for her husband’s debt, although legally invalid, imports a moral consideration, which will be sufficient to support a renewal note given by the married woman after her husband’s death; and this is the case although the renewal note was of a date prior to the husband’s death, if it appears that there was no fraud in the transaction.
    Argued May 14, 1906.
    Appeal, No. 40, Jan. T., 1906, by defendant, from order of C. P. Lancaster Co., June T., 1905, No. 22, making absolute rule for judgment for want of a sufficient affidavit of defense in case of J. H. Rathfon, Receiver of the City Saving Fund and Trust Company, v. Lila Reno Locher.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    Hassler, J., filed the following opinion:
    In her affidavit of defense, the defendant questions the sufficiency of the plaintiff’s statement in that it is not accompanied by a copy of the records and proceedings showing his appointment as receiver of the City Saving Fund and Trust Company. As the plaintiff would not he entitled to a judgment for want of a sufficient affidavit of defense, even though no legal defense is contained in such affidavit, if it is necessary to have such record and proceedings attached to the statement, it is proper to dispose of this question before examining the sufficiency of the defense contained in the affidavit of defense.
    The plaintiff, in his statement, avers that on February 16, 1905, he was appointed receiver of the City Saving Fund and Trust Company by the court of common pleas of Lancaster county, in suit to Equity Docket, No. 4, page 183.
    The Act of May 25, 1887, sec. 3, P. L. 271, requires that in an action of assumpsit the plaintiff’s statement should be accompanied “ by copies of all notes, contracts, book entries, or a particular reference to the records of any court, within the county in which the action is brought, if any, upon which the plaintiff’s claim is founded,” etc.
    Stockley v. McClurg, 14 Pa. Superior Ct. 629, relied on by the defendant, decides that the whole record must be attached to the statement where the decree or judgment was entered in the court of another county. In Campbell v. Pittsburg, etc., Ry. Co., 137 Pa. 574, on the authority of which Stockley v. Mc-Clurg was decided, it is expressly stated that a particular reference to the records of the court of the county where the suit is brought is all that the act of 1887 requires the plaintiff to attach to his statement.
    The plaintiff having been appointed receiver by this court such a reference to its record of his appointment, as he has made, is all that is required to accompany his statement.
    The statement declares on two promissory notes, one dated April 8, 1904, made by the defendant on November 16, 1904, and on the same day delivered by her to the plaintiff company, for $19,500 with interest from April 8, 1904, the other dated April 8, 1904, made by defendant on November 22, 1905, and on the same day delivered by her to plaintiff company, for $9,200 with interest from April 8, 1904. Credits are admitted on each note.
    The defense is that the notes are without consideration, and is in substance that she, the defendant, is the widow of Charles H. Locher, who, on April, 1903, was the president of the City Saving Fund and Trust Company; that for his accommodation and benefit and at his request she gave two notes to the said company in April, 1903, for amounts in excess of the two notes in suit; that she received none of the money realized from said notes; that the City Saving Fund and Trust Company knew the notes were given to raise money for her husband; that on November 22,1§04, as set out in plaintiff’s statement, she gave the notes in suit in renewal of the notes given by her for her husband’s accommodation in April, 1903, dating the notes back to April 8,1904. Defendant’s husband died on October 13, 1904, more than a month prior to her making and delivering the notes in question.
    The Act of June 8, 1893, P. L. 344, sec. 2, permits a married woman to make all contracts except that “ she may not become accommodation endorser, maker, guarantor or surety for another.” The defendant was an accommodation maker for her husband on the notes given in April, 1903, and consequently could not be held liable for their payment. There was, however, a moral obligation on her to pay them, as the City Saving Fund and Trust Company advanced the money to her husband because of the notes signed by her.
    The notes in suit were made after the death of her husband when she was a feme sole, and when all restriction on her right to contract was removed. The question, then, for our consideration is, would the original notes which imposed no legal liability on her, but which she was under a moral obligation to pay, be such a consideration as would make any contract she made, after the death of her husband, to pay them binding on her.
    In making the original notes the defendant, although at that time a married woman, as we have said, assumed a moral obligation to pay them. A moral obligation is defined in Bailey v. Phila., 167 Pa. 569, to be an obligation “ which cannot be enforced by action, but which is binding on the party who incurs it, in conscience, and according to natural justice.” And again, “ A duty which would be enforceable by law, were it not for some positive rule, which, with a view to general benefit, exempts the party in that particular instance from legal liability. ... In this state it is held that such a moral obligation will sustain an express promise to pay.”
    In Hemphill v. McClimans, 24 Pa. 367, it is held that a moral obligation is sufficient consideration for a direct promise, and that a married woman who promised to pay for work done for her son was not liable on such promise, but such promise is a sufficient consideration to make her liable on a new promise to pay made after she had been divorced. In Kelly v. Eby, 141 Pa. 176, a loan was made to a married woman, who, after the death of her husband, promised to pay it. Justice Mc-Cullom says: “ If the loan was made to the appellant as claimed, she was under no legal obligation to pay it; but the moral duty arising therefrom was a sufficient consideration to support an express promise made after coverture.” In Brooks v. Merchants’ National Bank, 125 Pa. 394, a married woman who, as a member of a firm, signed notes which she was under no legal obligation to pay, was held to have rendered herself liable to pay renewals of the notes made after the death of her husband, the moral obligation to pay the original notes being a sufficient consideration for the renewals.' These authorities effectually settle the question of the sufficiency of the consideration for the notes here sued on and render the defendant liable for their payment.
    It is contended by the defendant further, that because the notes were dated back to a time when her husband was alive, a time, therefore, when she could not make a contract that would be binding on her, she cannot now be held liable for their payment, as they speak from their date.
    May 24, 1906:
    There being no allegation in the affidavit of defense that the notes were post-dated for an illegal or fraudulent purpose, the Act of May 16, 1901, ch. 1, art. 1, sec. 12, P. L. 194, settles this contention. It is as follows: “ The instrument is not invalid for the reason, only, that it is antedated or post-dated provided this is not done for an illegal or fraudulent purpose. The person to whom an instrument so dated is delivered acquires the title thereto as of the date of delivery.” The notes, therefore, speak from the date of delivery, which was after the defendant was discovert. At that time there was no limitation on her power to make any contract. If she choose to date the notes back to render herself liable to pay back interest, it did not make the notes invalid. We are of the opinion that the affidavit of defense does not contain a legal defense, and we, therefore, make absolute the rule for judgment for want of a sufficient affidavit of defense, and enter judgment for the plaintiff and against the defendant for the sum of $22,857.25.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      JError assigned was the order of the court.

      W. U. Hansel and Malcolm Lloyd, of Burr, Brown Lloyd, for appellant.
    The plaintiff’s statement of claim is insufficient and defective in that it does not attach a copy of the record and proceedings showing the plaintiff’s appointment as receiver of the City Saving Fund and Trust Company: Stockley v. McClurg, 14 Pa. Superior Ct. 629 ; Campbell v. Ry. Co., 137 Pa. 574; Smith, Kline & French Co. v. Smith, 166 Pa. 563.
    There was no consideration for the notes: Wiltbank v. Tobler, 181 Pa. 103; Stewart v. Stewart, 207 Pa. 59.

      William Keller, of Coyle Keller, with him John H. Malone, for appellee.
   Peb Curiam,

The judgment is affirmed for the reasons stated in the opinion of the learned judge of the common pleas.


source: Caselaw Access Project

author: Peb Cttbiam,

license: Public Domain

text:
    Levenite, Appellant, v. City of Lancaster.

      Negligence — Municipalities—Defect in street — Independent contractor— Nonsuit.

    Where an independent contractor employed by a property owner makes an excavation in a street in the construction of a sewer under a permit from the city, and a person is injured by reason of the negligent character of the work, the city is not responsible in damages for the injuries sustained.
    Argued May 15, 1906.
    Appeal, No. 278, Jan. T., 1904, by plaintiff, from order of C. P. Lancaster Co., Aug. T;, 1902, No. 68, refusing to take off nonsuit in case of Abraham B. Levenite v. City of Lancaster.
    Before Fell, Bbown, MesTEEZAT, Potteb and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Landis, P. J, filed the following opinion:
    The facts of this case were not doubtful. J. B. Kreckel, who was the owner of a lot of ground situated on West King street, in the city of Lancaster, which had an old sewer connection, tore down the old house and erected some new brick houses in its stead. He made a contract with Charles F. Stauffer, a contractor, to close up the old sewer and put in a new one lower down the street, and this work was done under a permit taken out in connection with one for the building of the houses. In making the new sewer connection, Mr. Stauffer dug a ditch, extending some distance into the street, and, on the night of November 3, 1901, the plaintiff, as he says, in driving along the street in a careful manner, came in contact with the ditch, his team was upset, and he was dragged a considerable distance, and seriously injured. He thereupon brought suit against the city of Lancaster to recover damages, alleging a want of care in the supervision of its streets, whereby he sustained the injuries complained of. A judgment of nonsuit was entered, because I was of opinion that, under the law no liability rested upon the city under such circumstances, and the request is now made that it be taken off.
    A review of the case has fully convinced me that such a course would be error, and that, under the evidence, no other conclusion can be properly reached than the one arrived at on the trial. In Smith v. Simmons, 108 Pa. 32, it was held that the authorities of a borough may, in cases justified by necessity or custom, license private individuals to occupy public highways to a reasonable extent and for a reasonable time, for private purposes, in a manner which would otherwise constitute a nuisance, and that a ditch dug in a street of a borough, for the purpose of laying a water pipe from a spring to a private dwelling house, in pursuance of a municipal license, is not a public nuisance per se, nor does it make all parties concerned in sinking it liable for any damages that may result from it; and, in Borough of Susquehanna Depot v. Simmons and wife, 112 Pa. 384, which involved the same facts, but was against the borough, instead of against the individual, the Supreme Court decided that a municipal corporation granting to one a license for a purpose proper and lawful, is not liable for any injury by reason of the mistakes or abuse of that license, whether the same be done by an independent contractor for the work from the licensee, or by the licensee himself. In Eby v. Lebanon County, 166 Pa. 632, Judge McPherson entered a judgment of nonsuit on the ground that a county was not liable for an injury caused by negligence of an independent contractor where the county commissioners have not interfered with the conduct of the work so as to control its methods and become responsible masters, notwithstanding the contract, and his judgment was sustained upon appeal; and in Thomas v. Altoona and Logan Valley Electric Railway Company, 191 Pa. 361, a street railway company which let out the construction of its road to an independent contractor and reserved no control over the work than to approve or disapprove it when completed, was determined not to be liable for personal injuries by the negligence of an employee of the contractor. In the leading case of Painter v. Mayor, etc., of Pittsburg, 46 Pa. 213, the court held that a municipal corporation was not responsible for an injury occasioned by the negligence of contractors with it, or of their agents and servants, and that the remedy for the injury was against the contractors alone. See, also, Patton v. McDonald, 204 Pa. 517.
    It would seem to be needless to cite more of the numerous authorities in order to prove so plain a proposition. If rtegligence there was in this case, it was solely that of Stauffer, who was an independent contractor, employed by Kreckle to do his woxk. The city of Lancaster was not concerned with it and was not liable to respond on the contractor’s account. I am, therefore, of the opinion that the nonsuit was properly entered, and I must accordingly discharge the rule to take it off.
    May 24, 1906 :
    Rule discharged.

      Error assigned was refusal to take off nonsuit.

      B. E. Davis, for appellant.

      E. M. Gilbert, O. Reese Eaby and Geisenberger Rosenthal, for appellee.
   Peb Cttbiam,

At the trial the plaintiff proved that the excavation in the street was made by an independent contractor under a permit from the city. He might have done better by stopping with the proof of his own case. The argument in support of this appeal is that the city was not relieved from liability because no lawful permit had been obtained. This is a clear shifting of position because of after-discovered law and raises a question not involved in the trial. The case was properly tried on the issue raised, and the judgment is affirmed on the opinion of the learned judge of the commoxi pleas. '


author: Per Curiam,

text:
    York County v. Thompson, Appellant.

      Public offlcers — County treasurer — Warrants—Evidence.
    On an appeal from the report of county auditors settling the account of a county treasurer, it is proper to exclude offers of warrants, where it appears that the alleged warrants were not delivered to the several persons entitled to payment, and paid by the treasurer on presentation to him, but that they were warrants issued by the county commissioners for the aggregate amount of various bills previously paid by the treasurer, and that ■many of such bills were altered, raised and forged.

      Argued May 15, 1906.
    May 24, 1906:
    Appeal, No. 153, Jan. T., 1906, by defendant, from judgment of C. P. York Co., Jan. T., 1901, No. 195, on verdict for plaintiff in case of York County v. William O. Thompson.
    Before Fell, Bbown, Mestbezat, Potteb and Elkin JJ.
    Affirmed.
    Appeal from report of county auditors. Before Bittengeb, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $12,692.10. Defendant appealed.

      Error assigned among others was in rejecting the warrants referred to in the opinion of the Supreme Court.

      Henry C. Niles, with Mm Greorge E. Neff, for appellant.

      J. S'. Black, with Mm 11. Q. Brenneman, county solicitor, and Charles A. Hawkins, for appellee.
   Per Curiam,

The proceeding in the common pleas was on an appeal, allowed nunc pro tunc on proof of fraud, from the report of county auditors settling the account of a county treasurer; see Zeigler’s Petition, 207 Pa. 131; York County v. Thompson, 212 Pa. 561. Under the issue framed, in which the treasurer was made plaintiff, and by agreement of counsel filed, the burden of proof was on him affirmatively to make out a prima facie case as to all of the items excepted to. At the trial the treasurer offered in evidence warrants drawn by the commissioners covering the amounts of payments alleged to have been previously made at different times to different persons. The reasons for not admitting these warrants as evidence of proper payments by the treasurer is thus stated by the learned judge: “ It appeared on investigation by admissions and otherwise, that these were not issued to creditors of the county as orders on the county treasurer, the plaintiff, for the payments of the amounts due creditors of the county, out of the county’s moneys in his custody, as county treasurer, and on which he paid the amount thereof to the holders of the orders or warrants; but that payment was made on the bills of such creditors of the county, when presented, the said bills placed in the treasurer’s cash drawer, and afterwards, from time to time, packages of said bills were fastened together and delivered to the county commissioners who made out warrants for the aggregate amount of such packages, naming one or more of the claimants named in the bills, adding the words “ et al.” It was legally ascertained that many of these claimed warrants were issued on altered, raised and forged bills, a more particular notice of which need not now be taken. The court rejected these warrants because the alleged warrants were not delivered to the several persons entitled to payment, and by them presented to the treasurer and said bills paid on such orders; because they were not legal warrants for the payment out of the public moneys of the county in the hands of the treasurer; that these orders could not be admitted as evidence under the claim of ratification by the county commissioners of payments of amounts embraced in the bills for which said warrants purported to be issued.”

There was no error in this ruling. The offers did not show payments made on warrants drawn by the commissioners as required by law but payments made without authority and in violation of law. Warrants subsequently drawn to cover the aggregate amounts of unlawful payments were not an acquittance to the treasurer. He was afforded every opportunity to prove by competent testimony that the payments made by him, although unauthorized at the time, were for debts justly due by the county.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Davis v. Pennsylvania Railroad Company, Appellant.

      Railroads — Condemnation proceedings — Witness—Expert—Cross-examination — Evidence.
    On the trial of a proceeding to assess damages for land condemned by a railroad company, it is error to refuse to permit the counsel for the railroad to cross-examine the landowner’s witnesses as to their competency before they testify in chief as to the value of the land and the damages sustained.
    In such a case, as the competency of the witnesses is a primary question for the court, it should be made to appear and be passed upon by the court before the witnesses are permitted to express any opinion. It is not sufficient that if, after the witnesses have testified in chief as to the damages in the case, it should appear on cross-examination that they did not have the requisite knowledge to make them competent, their testimony could then be struck out. The harm done by the submission of their opinions to the jury cannot be cured.
    In a railroad condemnation case it is error to deny to the counsel of the railroad the right to interrogate the landowner’s witnesses on cross-examinafion as to the value of a part of the plaintiff’s land after it had been cut by the railroad. Although such questions cannot be asked the witnesses in their examination-in-chief, they are entirely proper on cross-examination.
    In a railroad condemnation case counsel for the railroad company cannot be permitted to show the price at which the plaintiff purchased the land seventeen years prior to the time when the railroad company entered upon it.
    Argued May 15, 1906.
    Appeal, No. 355, Jan. T., 1905, by defendant, from judgment of C. P. Lancaster Co., Sept. T., 1903, No. 8, on verdict for plaintiff in case of Joseph W. Davis v. Pennsylvania Railroad Company.
    Before Fell, Bbown, Mestbezat, Pobteb and Elkin, JJ.
    Reversed.
    Appeal from award of jury of view. Before Landis, P. J.
    The opinion of the Supreme Court states the case.
    When J. Martin Good was on the stand he was asked the following question:
    Question by plaintiff: “ What, in your judgment, was a fair market value of this farm as a whole, before the railroad was built?”
    Objected to by the defendant.
    Mr. North: I want an opportunity to cross-examine him as to his qualifications.

      The Court: We will let him answer now, and if he does not come, up to the standard, we will strike out his testimony. He sufficiently qualified in the first place.
    Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [8]
    “ Q. What, in your judgment, was a fair market value, selling price, of this farm, ‘before the railroad entered upon it ? A. $100 per acre. Q. What, in your opinion, was the value after the railroad had taken it and left it in the condition in which it now is ? A. I think $35.00 would be very extremely high.”
    Alfred Brinton, a witness for the plaintiff, being upon the stand:
    Mr. North: I offer to ask the witness what the fifty acres south of the Lower Yalley road, according to the best of his judgment, would sell for.
    Objected to by the plaintiff.
    The Court: Disallowed, because that is not the whole farm • it is only part of it.
    Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [5]
    Mr. North: I now offer to ask him what that part of the farm lying between the railroad cut and the Lower Road, with the buildings, and said to contain somewhere from twenty to twenty-five acres, would sell for.
    Objected to by the plaintiff.
    Offer disallowed.
    Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [6]

    Mr. North: I offer to ask the witness what the twenty-five or thirty acres, the part lying between the railroad cut and the Upper Yalley Road, would sell for.
    Objected to by the plaintiff.
    Offer disallowed.
    Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [7] ■ ' -
    On the cross-examination of Benjamin H. Pownall, witness for the plaintiff, the following question was asked:
    Mr. North: I ask him now, your Honor, if the fifty acres are not worth now $50.00 an acre.

      May 24, 1906:
    Objected to by tbe plaintiff.
    Question disallowed.
    Defendant excepts. Bill of exceptions signed, sealed and filed for the defendant. [9]
    Verdict and judgment for plaintiff for $6,500. Defendant appealed.
    Errors assigned were (3, 5, 6, 7, 9) rulings on evidence, quoting the bill of exceptions.

      II. M. North, with him II. M. North, Jr., for appellant.

      B. F. Davis, with him W. U. Ilensel, for appellee.
   Opinion by

Mr. Justice Mestrezat,

It was error for the learned judge to refuse to permit the defendant’s counsel to cross-examine the plaintiff’s witnesses as to their competency before they testified in chief to the value of his land and the damages he had sustained. The competency of the witnesses was a question for the court, and if, after an examination by plaintiff’s counsel, their testimony did not disclose their competency in the opinion of defendant's counsel, the latter should have been afforded an opportunity to cross-examine them. This would have disclosed more fully the knowledge of the witnesses of the matters about which they were called to testify, and would have better enabled the court to have determined the sufficiency of that knowledge as a preliminary question. The learned judge of the court below, from his opinion filed in the case, seems to think that it was in the discretion of the court whether the defendant’s counsel should have been permitted to examine the plaintiff’s witnesses as to their competency before or after they had given their testimony in chief on the matters about which they were called to testify. This led the court into an error. As the competency of the witnesses was a primary question for the court, it should have been made to appear and been passed upon by the court before the witnesses were permitted to express any opinion: Michael v. Crescent Pipe Line Company, 159 Pa. 99. It is not sufficient that if, after the witnesses have testified in chief as to the damages in the case, it should appear on cross-examination that they did not have the requisite knowledge to make them competent, their testimony could then be struck out. After such testimony has gone to the jury it is next to impossible to eradicate it entirely from their minds by any instructions or directions by the court. The harm done the opposite party by the admission of such testimony is beyond recall with the jury then trying the cause. It is, therefore, important to determine in the first instance the competency of the witnesses, and to enable the court to do so it ought in all cases, on request, to allow the witnesses to be cross-examined for that purpose. Any other rule is unfair to the opposite party, as it permits incompetent testimony to go to, and influence, the jury against him. In all cases where a witness is called to give an opinion as evidence for the consideration of a jury, a prior cross-examination should be permitted on matters affecting his competency.'

The learned judge’s ruling on this question was in direct opposition to what this court has decided, and although it was brought to his attention before the final disposition of the case, it is probable that it was overlooked at the time of the trial when he made his ruling. In the recent case of Friday v. Pennsylvania Railroad Co., 204 Pa. 405, the right of counsel to cross-examine a witness as to his qualifications to testify was directly involved and was distinctly ruled by this court. In that case, our Brother Potter, speaking for the court, said (p. 411): “ There is also involved in this appeal, the question of the right of defendant’s counsel to cross-examine as to the qualifications of a witness before giving expression to an opinion as to land values. . . . The question of the competency of the witness is always for the court. But in deciding, it should have the benefit of every reasonable aid, and nothing could be more effective than a cross-examination, within proper limits. Aside from this, if the opposing counsel are not satisfied with the correctness of the statements of the witness as to his ability to give an opinion, they are justified in asking for an immediate opportunity to apply the test of cross-examination, and it should be allowed.”

It was also error to deny the defendant’s counsel the right to interrogate the plaintiff’s witnesses on cross-examination as to the value of a part of the plaintiff’s land after it had been cut by the railroad. It is true that the measure of damages in cases of this character is the difference in the market value before and after the construction of the road as affected by its construction. The plaintiff cannot in the first instance, in order to show the damages he has sustained, inquire as to the value of each of the parts into which the whole tract is divided by the construction of the railroad. He may show how the land is cut and how it is affected, and such other matters as will enlighten the jury as to the value of the property and the injuries sustained, but he is restricted to showing the value of the whole farm before and after the construction of the road, and the difference is the amount of his damages. But after a witness has testified in chief to such matters, the largest latitude should be allowed on cross-examination. Tho witness may then be interrogated as to any or all parts of the land and how it is affected. He may be asked as to the value or depreciation of a part or of the whole of it as affected by the construction of the road. In fact, any and every pertinent question may be put to him on cross-examination which will enable tho jury to place a fair estimate upon his testimony as to the damages sustained by the plaintiff by the construction of the road through the latter’s premises. The learned judge in his rulings failed to observe the difference between the well-recognized measure of damages in such cases and the right of the defendant’s counsel to cross-examine the plaintiff’s witnesses so as to enable the jury to give due weight to their testimony.

The court was right in excluding the offer to show by the witness Glendennin the price at which Davis purchased his farm seventeen years prior to the time when the defendant company entered upon it. Such evidence would have given the jury no proper estimate of its value “ immediately before the taking” by the railroad company. We have some doubt as to the competency of the witnesses Pownall and Stewart, but on a retrial of the cause their knowledge and their competency can be fully determined by a more thorough preliminary examination before they are permitted to testify in chief as to the damages.

The matters complained of in tho fourteenth, fifteenth, sixteenth and seventeenth assignments were not excepted to in the court below and hence cannot be assigned for error here.

The third, fifth, sixth, seventh and ninth assignments of error are sustained, and the judgment is reversed with a venire facias de novo.


text:
    Groff's Estate.

      Executors and administrators — Widow’s exemption — Misconduct of executors —Interest and counsel fees.

    Where executors attempt to take 1300 from the estate upon the claim that they had paid such sum to the widow as her exemption, when in fact the widow received her exemption in goods and chattels, the executors will not be allowed compensation for extra services performed by them in the administration of the estate.
    An executor who delays for several years in paying a judgment held by the estate against himself will be surcharged with interest thereon.
    Executors will be allowed counsel fees and costs of litigation in resisting litigation against the estate where they have reasonable grounds for believing such litigation unjust, and this is the case although they may be entitled to a remainder in the estate after the termination of a life interest.
    Argued May 16, 1906.
    Appeals, Nos. 151 and 159, Jan. T., 1906, by Abram E. Groff and Wayne I. Groff, Executors of Solomon C. Groff, deceased, and by W. U. Hensel, Transferee of Kirk Johnson & Co., from decree of O. C. Lancaster Co., April T., 1905, No. 22, upon exceptions to the executors’ accounts.
    Before Mitchell, C. J., Fell, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Exceptions to executors’ accounts.
    Smith, P. J., filed the following opinion:
    Solomon C. Groff died testate December 19, 1898. A widow and six children survived him. His sons, Wayne I. and' Abram' E., were made the executors of his will, and to them he gave his entire estate after the death of his widow, excepting that to Abram was devised a house and lot in Bareville. His death was soon followed by lawsuits. The executors were made defendants in five actions. The first was that of a daughter, Susanna E. Sprecher. Judgment was entered for $100 by a justice of the peace in her favor. On a trial in the court of common pleas there was a verdict for the defendants. Reasons for a new trial were argued and the motion refused.
    The next was the suit of L. S. Groff, a son. This was an action in assumpsit on a bond for $8,000. The writ was issued April 14, 1899. After motions, rules and continuances, the case was tried December 6,1904, resulting in a verdict of $4,170 in favor of the plaintiff. A new trial was granted, and again the verdict was for plaintiff, in the sum of $4,327.46. A second rule for a new trial was discharged, January 3, 1906. No appeal has been taken.
    Harriet L. Shaeffer, a daughter, brought suit April 19,1899, and laid her damages in the sum of $5,000. A jury was called December 5, 1900, which rendered a verdict for the defendants, December 7,1905.
    Maria Groff, the wife of George Groff, a son, brought a suit, April 19, 1899, to recover on a note. On October 5,1901, the jury disagreed and was discharged. February 12, 1903, the case was called for trial, and on February 14, 1903, there was a verdict for $4,800, in favor of the plaintiff. A new trial was refused, and an appeal was taken to the Supreme Court, which court affirmed the judgment of the lower court.
    The fifth and last case was that of Kirk Johnson, trading as Kirk Johnson & Company, to recover on a replevin bond. On December 6, 1901, a jury found for the plaintiff in the sum of $1,036. A rule for a new trial was discharged. On appeal to the Superior Court, the judgment was reversed and a new trial ordered. At the second trial, January 30,1905, the jury again rendered the same verdict.-
    Payment of the L. S. Groff and Maria Groff claims was resisted on the ground that their notes were forgeries. These cases evidently were characterized by the intensity and virulence which distinguish family contests.
    The executors exhibited their first account August 13, 1900, which shows a balance of $1,759.55. To this the following exceptions were filed:
    “ 1. The accountants have not charged themselves with all the money that came or should have come into their hands.

      “2. The following items in said account are hereby excepted to:
    “ April 1, 1899. Paid A. E. Groff, board, etc., decedent’s wife, $99.50.
    “ April 1, 1899. Paid Susanna Groff, widow’s exemption, $300.
    “ Accountant asks credit for amount of certificate of judgment note against Wayne I. Groff, not yet collected, $3,500.”
    A second account, showing a balance of $5,775.62 which includes the balance in the first account, was filed January 15, 1906. To this exceptions also were filed, the first of which corresponds with the first account. The second is to the credits, seriatim. The third assigns a reason in support of part of the second exception, — to the credits of counsel fees. The fourth reaffirms the exception to the accountants’ “ extra compensation,” and the fifth is to the payments alleged to have been made to the widow for which credits were not taken.
    The only questions before us are those incidental to the exceptions to the two accounts.
    The exception to the two credits in the first account raises the only question that needs be considered independent of those contingent upon the exceptions to the second account. The first is to the payment of $99.50 to “ A. E. Groff, board, etc., decedent’s wife.” This exception was not resisted, nor was the credit in any way explained by the accountants. The exceptants manifestly were mistaken, as there is no such credit. We find what was referred to by them, but which they incorrectly deciphered or misunderstood, to be, “Paid A. E. Groff boarding, etc., decedent and wife $99.50.” The accountants’ receipt shows that the payment was “ in full for boarding for Solomon O. Groff and wife.” The debt apparently was the testator’s, in which case, if his estate is solvent, the payment was not an improper one. If, on the other hand, the estate is insolvent, and such are the indications, only a pro rata dividend can be allowed on account of this claim. The accountants are surcharged $99.50, with the subrogated right to present the claim for payment.
    As to the other part of the exception — “ widow’s exemption, $300,” the accountants offered nothing in opposition to its affirmation. They were present and remained mute. The widow’s appraisement could not be found. An unsuccessful search was made for it. The record shows that there was an “appraisement of $300 worth of goods and chattels claimed and set apart for the use of Susanna Groff, widow of said deceased.” That “ goods and chattels ” belonging to the estate to the value of $300 were appraised and set apart for the widow, seems probable from the fact that none were inventoried nor accounted for. This exception is sustained.
    Among the testator’s investments was a loan of $3,500 to his son, Wayne I. Groff. This was secured by a judgment note, entered in the court of common pleas of Lancaster county, and which was a lien on certain real estate. This judgment was revived by the accountant himself against himself on December 11, 1903. It does not appear that it was paid before December 27, 1905, at which time a deposit of $5,089 was made to the credit of “Wayne I. Groff one of the Ex.” For about five years, until August 29, 1905, Wayne I. Groff, the active executor, deposited the money of the estate to his individual account and used it indiscriminately with his own. Authorities are unnecessary, though abundant, to support the obviously just demand that the accountants be surcharged with interest on this loan. The judgment was an interest-bearing investment made by the testator. Its payment alone could interrupt the running of interest, and even then if the money had been mixed with the accountants’ funds and used as their own, interest would be chargeable; nor would they have escaped the payment of interest had they deposited the principal to an executor’s account and permitted it to remain idle all these years. The first exceptions to both accounts are sustained, and the accountants are surcharged with legal interest on $3,500 from April 1, 1898, the time to which it had been paid, until December 27, 1905, amounting to $1,625.15.
    • The second exception to the second account embraces many credits, chiefly the costs and expenses of litigation, most prominent among which are counsel fees. The fees are $400 paid December 7, 1900; $400, October 16, 1901; $400, April 8, 1903; and $300, January 12,1906, aggregating $1,500. There is another for $100 credited against the proceeds of real estate. That executors may employ counsel will not be disputed, nor will their authority to sue and defend against suits be qúestioned, and when they act in good faith, under the advice of counsel they are generally relieved from personal liability. If an administrator acts in good faith, as a cautious, prudent man would do under similar circumstances, although the consequences may be bad, he will not be surcharged: Allam’s Estate, 199 Pa. 573.
    “An administrator who, in good faith, litigates a claim against the estate of his intestate is entitled to credit in his adminstration account for the costs and expenses of the litigation, including the amount paid for counsel fees; and also to an allowance for his time and trouble: ” Ammon’s Appeal, 31 Pa. 311.
    These accountants were placed in a trying position. Scarcely had they assumed the responsibilities of the trust when they were- beset with suits. Each of the four disappointed and disinherited children of the testator opened up on them with the batteries of the courts. Their position was precarious. Either horn of the dilemma was charged with danger. A passive yielding to the demands of the claimants guaranteed no more protection against surcharges than an active resistance of them. If they had information sufficient to support a reasonable belief that the demands were unjust, such information as would have influenced a careful, prudent man to resist them, they ought not to be punished for attempting their defeat, if it was done in a proper way and at a fair cost. Unquestionably, the way for them to proceed was to employ counsel and be guided by them. This they did. No blame can be attached to them for the manner in which the cases were tried. For this their counsel were responsible. While the costs and charges seem extravagant, we, nevertheless, are at a loss to see how-the accountants could have escaped the majority of them. They were in the hands of their lawyer, whose fees, together with those of expert witnesses, whom they wanted and personally subpoenaed, alone added over §2,200 to the expenses, in addition to fees amounting to $250 in the first account. The accountants are less censurable by reason of having made these payments by installments than they would have been had they paid a bill for the aggregate amount at the conclusion of the services. Even if the amount had been the same, the condition would have been diffierent. If, after their labors had ceased,counsel had made an unwarrantable charge, accountants would have been justified in indulging in a sixth lawsuit rather than pay it, or they could have asked the court to pass on it at the audit. They then would have acted with their eyes open and with a remedy at hand. As it was, they were hampered. It will be seen that their first fee paid counsel in the second account was on December 7,1900, the next on October 16, 1901, the third on April 8, 1908, and the last one on January 12, 1906. During this time litigation was active. Rules and trials and appeals and arguments were happening. Demands for fees, no doubt, were made and fees were paid. True, at any stage, accountants could have refused payment, and counsel could have refused to serve. Even if accountants had been willing to assume the responsibility of a suit for a balance which might be claimed by counsel, they would, in addition, have been in danger of being held accountable for an adverse determination of these suits. To discharge counsel, who are supposed to have their cases well in hand, when they are about to engage in trials, or after trials, pending motions, rules and appeals, might be regarded as a more disastrous spoiling of an estate than to pay the fees demanded. These accountants appear to have been in a trap, and one which, under the circumstances, they could not have avoided.
    It is contended that none of the credits to which exceptions have been filed can be sustained for the reason that they were for bills incurred by accountants in their own behalf for the protection of an estate of which they were the residuary legatees. This contention is not without merit. It would have more force if the bequests to these two sons were not subject to the life estate in the widow. As executors they could not afford to neglect the trust even if they appeared to be guarding their own interests. Their personal interest, nevertheless, subjects their administration acts to more than the ordinary scrutiny. Their motives are more likely to be questioned and their judgment criticised than those of one free from personal interest. Nevertheless, if their conduct has not been injuriously selfish and has been free from fraud, they ought not to be made to suffer. From what we now know it probably would have been to the advantage of all had they offered no resistance to three of the claims, but if they had so done, they might not have escaped a surcharge. The cestui que trust, who now makes no complaint, might then have taken exception to the payment of notes tainted with the suspicion of fraud.
    With the exception of a few dollars for typewriting a subpeena, depositions and the register’s fees, the last fee to counsel and accountants’ commissions, the credits excepted to were payments made before any final judgment was entered against accountants. They made these payments when they had a fighting chance to win all the cases. This strengthens the idea that they paid only what they believed proper, or that from which they could not escape. If .they had been successful, ultimately every dollar of these costs would have come out of their pockets. These credits we will not disturb.
    The court records and other evidence were offered to show the character and extent of the work done by accountants’ counsel. One of them as a witness was asked the value of specific services. He estimated those rendered in the Sprecher case, which involved about $100, to be worth $50.00. As to the other cases, he protested his inability to apportion them. We recognize a lawyer’s difficulty in attempting to fix a charge for specific professional work when it is a part of a series of services. It is less embarrassing when the services are distinguished by independent suits. A lawyer’s work cannot be measured as is a piece of calico or a cask of molasses. Usually, he makes a lump charge. ■ If the lump is not too large, nothing more is necessary. When its payment is resisted, it is incumbent upon him to make an attempt at an analysis and a particular valuation; do that, at least, which will throw the most light upon his work and its value. Disagreeable though this may be, at times it is unavoidable. The only evidence of this character which we have fixes the value of counsels’ services in the Sheaffer case at $200 to $250, in the Kirk Johnson case at $200 to $250, in the Maria Groff case at $300 to $400, and in the L. S. Groff case at $250 to $300.
    The payment of $300 to counsel on January 12, 1906, is not in the same class as the three previous payments. This was like unto the presenting of a bill at the termination of services. Accountants could and should have refused its payment. The signals indicated a storm. They had ample warning and every reason to expect the present contest. Even if they thought the bill a fair one, out of an ordinary precaution they ought to have postponed its payment until it had been allowed by the court at the audit. As to this payment, too, accountants are less free from the suspicion of being indifferent to the interests of the estate. This part of the exception is sustained.
    We have found, substantially, that this estate was burdened with litigation, that it was not the accountants’ fault, that they acted within the scope of their authority in defending against suits, and, therefore, they were put to “ extraordinary labor,” and, therefore, ought to receive extraordinary pay, unless they have in some other way forfeited the consideration to which faithful trustees are entitled. We would allow liberal compensation for accountants’ extra work excepting for the credit of $300 — widow’s exemption. This suggests bad faith and shatters confidence in accountants’ integrity of purpose. The widow’s exemption has been mislaid, concealed or lost. The record shows that goods and chattels of the value of $300 were appraised and set apart for their use; with a full knowledge of this and without having inventoried or charged themselves with anything except a judgment note, a mortgage and some money in bank, they deliberately take credit for $300 as having been paid to the widow on account of her exemption. It looks like a premeditated attempt to appropriate that amount of money. There does not seem to be a palliating circumstance. If goods and chattels were not set apart for the widow, if she elected to retain $300 out of “ bank notes, money, stocks, judgments or other indebtedness,” or out of real estate, why didn’t they say so ? They did not forget it, for it was rung into their ears with a persistency equaled only by the earnestness with which the exception Avas pressed, yet of this they did not speak nor did anyone speak for them. If any explanation was possible, the withholding of it is unpardonable. That part of the exception covering accountants’ compensation, $175, and the accountants’ claim for extraordinary labor, $500, is sustained, which with the previous surcharges will amount to $2,999.65, and make the balance in the account $8,775.27.
    The third exception — “ All counsel fees charged by accountants are objected to because the creditors of the estate warned the accountants to incur no such expense ” — is an argument rather than an exception. If claimants against an estate could quiet opposition by serving notice upon its representatives not to incur expenses in resisting their demands, an estate could easily be stripped- by any who adopted this method of intimidation. In- Ammon’s Appeal, 31 Pa. 311, such notice was given. Woodward, J., said, “We think the auditor was quite right in disregarding the notice Ammon and wife gave to the administrator, not to appeal from the award of the arbitrator, and in holding that the administrator was entitled to defend the suit at the costs of the estate.”
    May 24, 1906 :
    The fourth exception^-" All extra compensation for accountants is objected to” — was considered under the third and has been disposed of.
    The fifth exception relates to a memorandum following the account and which has nothing to do with it. It certifies that certain sums have been paid to the testator’s widow, but no credit has been taken for them.
    The cardinal principles by which the conduct of executors and administrators is gauged are common honesty and common sense. From these radiate a multitude of elements which may be qualified by the peculiar facts and circumstances of each case.

      Errors assigned were rulingson various exceptions.

      J. W. Denlinger and B. E. Davis, for the executors.

      W. U. Sensei, with him M. G. Schaeffer, for Harriett Schaeffer, Kirk Johnson f Go. et al.
   Per Curiam,

The decree is affirmed on the opinion of the court below.


author: Me. Justice Stewaet,

text:
    Commonwealth v. Shaleen, Appellant.

      Mines and mining — Registration of miner — Constitutional law — Constitution of the United States — Act of July 15, 1897, P. L. 287 — Statutes.
    Tho Act of July 15, 1897, P. L. 287, is to be construed so as to require as a qualification for registration of miners two years’ experience in the anthracite coal mines of the commonwealth, and thus construed the act is not unconstitutional as violating the constitution of the United States, as to the privileges and immunities of citizens.
    The courts may put a literal construction on a penal clause, and a liberal construction on a remedial clause in the same statute.
    Argued Feb. 21, 1906.
    June 27, 1906 :
    Appeal, No. 26, Jan. T., 1906, by defendant, from judgment of Superior Ct., Jan. T., 1905, No. 9, affirming judgment of Q. S. Lackawanna Co., Oct. T., 1904, No. 1,282, on verdict of guilty in case of Commonwealth v. John Shaleen.
    Before Mitchell, C. J., Mesteezat, Pot-tee, Elkin and Stewaet, JJ.
    Affirmed.
    Appeal from Superior Court.
    For the facts see the opinion of the Supreme Court and 80 Pa. Superior Ct. 1.

      Error assigned was the judgment of the Superior Court.

      James 11. Torrey, with him Joseph O'Brien, for appellant.

      John B. Jones for the United Mine Workers of America, with him William B. J^ewis, District Attorney, Bohert J. Murray and Gteorge 8. Korn, for appellee.
   Opinion by

Me. Justice Stewaet,

In affirming this judgment we would not be understood as adopting the interpretation placed on the act of assembly under which the case arises, by the court from which the appeal comes. That interpretation brings the act — so it is argued— in conflict with that provision of the federal constitution which guarantees equal privileges to the citizens of the several states. An interpretation which finds larger and better support in those features of the act which should determine the question, leaves it clear of any such objection as that urged, and avoids all discussion of those other questions so elaborately and ably argued by court and counsel.

The appellant, a citizen of the state of Illinois, was convicted in the court below of violation of the Act of July 15, 1897, P. L. 287, which makes it a misdemeanor for anyone, except he first obtain a certificate of qualification from the Miners’ Examining Board of the proper district, and has been duty registered, to engage as a miner in any anthracite coal mine. As a qualification for examination and registration, the act requires that the applicant shall have had two years’ experience as a miner or mine laborer “ in the mines of this commonwealth.” If this requirement relates to experience in the anthracite mines of this commonwealth exclusively, it is conceded that no question of conflict can arise. The construction the act received, enlarged and extended this qualification in the matter of experience, so as to make it embrace all who may have had two years’ experience in any of the mines of the commonwealth irrespective of their character, whether anthracite or bituminous. The argument is that the act is discriminatory in that it allows citizens of this state, who have had two years’ experience in bituminous coal mines of the state, to be examined and registered as anthracite miners or mine helpers, while it denies this privilege to citizens of other states who have had equal experience in mines of like character in other states. The construction here contended for would defeat utterly the manifest purpose of the act as expressed in its title, and as may be gathered from its'different provisions. What the legislature had in view was the protection of the persons and lives of those employed in the anthracite mines of the state. The safety of those so engaged depends upon the intelligent understanding by each, of those things which distinguish anthracite mines from all others, both in general design and the methods employed in working them. It will not be contended that experience even of a lifetime in an iron ore mine, or a zinc mine, would acquaint one in the slightest degree with the dangers that lurk in an anthracite coal mine. Whether experience in a bituminous mine would to any extent be helpful may be a question that admits of discussion; but the interpretation of the act that would admit the experienced bituminous miner, would admit as well every other kind of experienced miner, no matter whether he has ever seen a coal mine or not. The argument in support of this construction evidently stops short of its own logical conclusion. The effect of such construction, as we have said, would be to make the act ineffectual and futile. We are not required to put such construction upon its language. That part of the act we are considering calls for liberal construction; it is not penal but beneficial and remedial, and is to be construed so as to give effect to the legislative intent. “ There is no impropriety in putting a literal construction on a penal clause, and a liberal construction on a remedial clause in the same Act of Parliament.” This was said by Chief Justice Best in Short v. Hubbard, 2 Bing. 349, 9 E. C. L. 610. The same rule has frequently been applied in our own cases, and only very recently by the present Chief Justice in the case of Stull v. Reber, ante, p. 156. This latter case involved the construction of the act of assembly requiring under penalties the vaccination of all children attending public schools. Notwithstanding the penalties prescribed, so much of the act as was remedial in its character was allowed to receive a liberal construction so as to accomplish the legislative purpose.

The learned judge of the court below held that the act required as a qualification for registration two years’ experience in the anthracite coal mines of the commonwealth, and in this view we concur. The Superior Court, while dissenting from this view, found other reasons justifying an affirmance of the judgment. These call for no consideration here.

The judgment is affirmed.


author: Mr. Ciiiee Justice Mitchell,

text:
    Edwards, Appellant, v. Pittsburg Junction Railroad Company.

      Railroads — Tracks on streets — Condition—Breach of condition — Rights of ■private owner — Act of June 19, 1871, P. L. 1360.
    A railroad company occupying a public street without authority by legislative grant in clear words or by unavoidable implication, constitutes a public nuisance and may be enjoined at the suit of a private citizen specially injured.

      Municipal consent to the occupation of the streets of a municipality by a railroad company upon condition, and the condition broken, is no consent at all.
    When a citizen finds his property or his rights in danger of being injured or invaded by the acts of a corporation, the Act of June 19, 1871, P. L. 1360, gives him the right without waiting for the assistance of the commonwealth, to challenge the authority of the corporation to the possession of “the right or franchise to do the act from which such alleged injury to private rights results.” The corporation thus challenged must show its authority, and if such authority fails at any point, the defense fails. The language of the charter is .not the sole test of the validity of the acts complained of.
    Where a railroad company lays its tracks on streets under an ordinance of the city, which expressly provides that the company shall not use the steam whistle as a signal, and that it shall not use bituminous coal as fuel for its locomotives, and the company violates both conditions of the consent, an owner of adjoining land may under the Act of June 19, 1871, P. L. 1360, maintain a bill in equity to restrain the railroad company from the use of the whistle as a signal, and from the use of bituminous coal as a fuel for its locomotives. In such a case the complainant’s action is not to enforce the ordinance, but to prevent an unlawful course of conduct injurious to the owner’s private property rights.
    Argued March 14, 1906.
    Appeal, No. 177, Oct. T., 1905, by plaintiff, from decree of O. P. No. 2, Allegheny Co., Oct. T., 1908, No. 185, dismissing bill in equity in case of Eliza Thaw Edwards v. Pittsburg Junction Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction.
    The plaintiff, who was the owner of a tract of land in the city of Pittsburg, containing about eight acres on which was erected a three-story brick mansion house, occupied continuously for thirty years by the plaintiff and her family, complained that the defendant company entered into the city of Pittsburg with its railroad adjacent to the plaintiff’s property (after the plaintiff had acquired her property) under an ordinance of the city of Pittsburg, which made it the express condition of such occupancy that the defendant should not use its locomotive steam whistles as signals, and that bituminous-coal should not be used for fuel on locomotives on the route. Plaintiff represented among other things that the defendant company did use bituminous coal for fuel in the running of its locomotives and lines of freight to such an extent as to constantly emit great clouds of dense black smoke or soot, and signaled the running of its trains by loud and shrill whistles at all hours of the day and night; that the smoke and soot so emitted penetrated into the property and residence of the plaintiff to the great injury and depreciation thereof, and the discomfort, annoyance and injury to the health of the plaintiff and her family; and that the constant whistling of the steam whistles disturbed the sleep, quiet and comfort of her family and herself, and was annoying and greatly to the prejudice of their health and comfort; that the injury to the property has continued and is constantly depreciating the desirability of the same for residences and the value of the same for sale, should she desire to sell it, and that the health and enjoyment and comfort of her home has been seriously menaced and affected by the said grievances, and will continue to be so so long as the defendant company continue the grievances complained of.
    Plaintiff prayed that the defendant company be enjoined and restrained from using upon its locomotives upon the route of its railroad bituminous coal as fuel, and that the defendant company be enjoined from permitting signaling by steam whistles, or the pulling of steam whistles by its locomotives while upon, standing upon or traversing the route aforesaid, and for other relief.
    Defendant filed an answer, and testimony was taken before Shaker, J., who after argument entered a decree dismissing the bill.

      Error assigned was the decree of the court.

      Schoyer Hunter, for appellant.
    The condition in the ordinance that non-smoke-producing fuel should be used in the operation of its road, that steam whistles should not be used as signals, are conditions precedent in the occupation and use of the highways, the breach of which left the defendant without authority to occupy or use any portion of the streets: Courtney v. Keller, 4 Pennypacker, 38; Vanhorne v. Dorrance, 2 Dall. 317 ; Parmelee v. R. R., 6 N. Y. 74; Eckert v. Federal St., etc., Pass. Ry. Co., 27 P. L. J. 202; Price v. Grantz, 118 Pa. 402; Baltimore, etc., R. R. Co. v. Fifth Baptist Church, 108 U. S. 317 (2 Sup. Ct. Repr. 719); Reimer’s App., 12 W. N. C. 381; Potts v. R. R. Co., 161 Pa. 396; Hussner v. R. R. Co., 114 N. Y. 433 (21 N. E. Repr. 1002) ; Lahr v. Ry. Co., 104 N. Y. 268 (10 N. E. Repr. 528) ; Adler v. R. R. Co., 138 N. Y. 173 (33 N. E. Repr. 935); Abendroth v. Ry. Co., 122 N. Y. 1 (25 N. E. Repr. 496).
    'If the conditions referred to are conditions subsequent, then upon the breach, such conditions become effective and the continuing use of the highways in violation of such conditions subsequent, is a public nuisance : Com. v. Stauffer, 10 Pa. 350.
    The plaintiff is entitled to assert the breach of the condition although the right of re-entry is not reserved: Gray v. Blanchard, 25 Mass. 284; Thomas v. Record, 47 Me. 500; Osgood v. Abbott, 58 Me. 73.
    If the ordinance and its acceptance constituted a contract, then such contract was for the benefit of owners of property in that locality, and they can enforce it: Phila. & Reading R. R. Co. v. Ervin, 89 Pa. 71; Hayes v. R. R. Co., 111 U. S. 228 (4 Sup. Ct. Repr. 369); Taylor v. R. R. Co., 45 Mich. 74 (7 N. W. Repr. 728) ; Osborne v. McMasters, 40 Minn. 103 (41 N. W. Repr. 543) ; Griswold v. Brega, 160 Ill. 490 (43 N. E. Repr. 864); Aldrich v. Howard, 7 R. I. 199; Kaufman v. Stein, 138 Ind. 49 (37 N. E. Repr. 333) ; Natl. Bank v. Sarlls, 129 Ind. 201 (28 N. E. Repr. 434) ; Fields v. Stokley, 99 Pa. 306; Smith v. Lockwood, 13 Barber, 209 ; Hannum v. Ry. Co., 200 Pa. 44.
    ■ The city had the right to annex conditions to the grant, and the railroad company, having accepted and agreed to such conditions, cannot now claim they are invalid: Allegheny v. Nat. Gas & Pipeage Co., 172 Pa. 632; Phila. v. Passenger Ry. Co., 143 Pa. 444; Allegheny v. Ry. Co., 159 Pa. 411.
    The Act of June 19, 1871, P.' L. 1360, enlarged the existing equitable jurisdiction, and enabled the plaintiff to maintain her bill, irrespective of the fact that the nuisance is public, and that the ordinance prescribed a money penalty : Hopkins v. Mfg. Co., 180 Pa. 199; Barker v. Steel Co., 129 Pa. 551 ; Germantown Pass. Ry. Co. v. Citizens Pass. Ry. Co., 151 Pa. 138; Philadelphia v. River Front Ry. Co., 173 Pa. 334; Penna. R. R. Co.’s App., 115 Pa. 514; Groff’s App., 128 Pa. 621; Western Penna. R. R. Co.’s App., 104 Pa. 399.
    Plaintiff has sustained such irreparable injury to her property as entitles her to an injunction, irrespective of the public right to abate the nuisance: Penna. R. R. Co. v. Angel, 41 N. J. Eq. 316 (7 Atl. Repr. 432) ; Flynn v. Taylor, 127 N. Y. 696 (28 N. E. Repr. 418).
    June 27, 1906 :

      Johns Me Cleave, with him John S. Wendt, for appellee.
    Whether the ordinance in question be regarded as an assent of the city to the occupancy of its streets upon the terms and conditions mentioned therein or as a contract, it is manifest from the language of said ordinance that a violation of the terms forbidding the use of bituminous coal as fuel and the use of the steam whistle, does not ipso facto annul the right of the railroad company to maintain and operate its railroad or make the same a public nuisance: Atkinson v. Water Works Co., L. R. 2 Exchequer Div. 441.
    The plaintiff cannot obtain relief by virtue of the city ordinance or anything therein contained, for the reason that the city ordinance does not and cannot create a civil duty towards the plaintiff or create a civil right as against the defendant in the plaintiff: Phila. & Reading R. R. Co. v. Ervin, 89 Pa. 71 ; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Millcreek Twp. v. Rapid Transit Co., 209 Pa. 300 ; Heeney v. Sprague, 11 R. I. 456 ; Taylor v. Dunn, 80 Texas, 652 (16 S. W. Repr. 732).
    Since the year 1900, the city of Pittsburg has acquiesced in the operation of the defendant’s railroad in violation of the terms of the ordinance aforesaid : Potter v. Scranton Traction Co., 176 Pa. 271; Knight v. R. R. Co., 70 Mo. 231; Hovelman v. R. R. Co., 79 Mo. 632; Philadelphia v. Bowman, 175 Pa. 91.
   Opinion by

Mr. Ciiiee Justice Mitchell,

The substantial question in this case is one of remedy. On the admitted facts it is beyond dispute that the defendant is acting without legal authority. It entered upon and occupied with its tracks the streets adjacent to the plaintiff’s property by the consent of the councils of the city of Pittsburg expressed in an ordinance passed November 30, 1881. The consent as shown by the ordinance was given on the clearly expressed and continuing conditions, inter alia, “ that the said company shall not use the steam whistle as a signal ” and “ that bituminous coal shall not be used for fuel in locomotives of said road, but that coke or other non-smoke-producing fuel shall be used.” It was found by the court below as a fact that both these conditions had for several years past been disregarded by the defendant. If therefore a bill had been filed by the city of Pittsburg either under its right to rescind expressly reserved in the ordinance, or its general right for condition broken there would be no defense. The question is whether the plaintiff as a private citizen has standing to maintain this bill.

A railroad company occupying a public street without authority by legislative grant in clear words or by unavoidable implication constitutes a public nuisance and may be enjoined at the suit of a private citizen specially injured : Penna. R. R. Co.’s Appeal, 115 Pa. 514. On this principle a railway company already occupying a street may question the right of another company seeking to put its tracks on the same street: Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138. An abutting landowner may enjoin the construction of a street railway where the right of way has not been fully acquired: Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62. Or where the proposed line passes through several municipalities and all have not granted consent: Penna. R. R. Co. v. Electric Ry. Co., 179 Pa. 584; Hannum v. Ry. Co., 200 Pa. 44.

These authorities establish that except for the ordinance giving the consent of the city of Pittsburg, the acts of the defendant company would constitute a public nuisance which the complainant or any other citizen specially injured could require to be abated. But a consent upon condition, and the condition broken, is no consent at all. The breach makes the continued use as unlawful as if the condition had never been performed at all.

It is strongly urged that as the condition was made by the city of Pittsburg, and may be repealed or waived by the city, it alone can take advantage of the breach. Regarded as a contract or agreement between the railroad company and the city, this may be conceded, and it maj^ for present purposes be further conceded that a private citizen cannot in his individual right sue to enforce a public ordinance. But that is not the underlying and substantial purpose of the present bill. The complainant’s action is not to enforce the ordinance but to prevent an unlawful course of conduct injurious to her private property rights. This she is entitled to do under the Act of June 19, 1871, P. L. 1360. If the consent of the city had never been given the cases above cited show that the complainant could raise this objection and it must prevail. But as already said, consent on condition and condition unperformed or broken is no longer a valid consent. When a citizen finds his property or 1ns rights in danger of being injured or invaded by the acts of a corporation the act of 1871 gives him the right, without waiting for the assistance of the commonwealth, to challenge the authority of the corporation to the possession of “ the right or franchise to do the act from which such alleged injury to private rights results.” The corporation thus challenged must show its authority, and if such authority fails at any point the defense fails. What the plaintiff complains of is a want of authority to do the thing complained of, and complete present existing authority must be shown to support the right asserted: Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138.

In some of the earlier cases effort was made to stretch the act to confer on private parties the authority previously exercised by the commonwealth to inquire into the abandonment or forfeiture of franchises, but it was held that the act did not confer on the individual the general authority of the commonwealth but that under it the inquiry must be restricted to the existence of franchises as shown by the charter: Western Penna. R. R. Co.’s Appeal, 101 Pa. 399. Hence the terms of the grant in the charter were usually spoken of as the test of the validity of the corporation’s action, and so far as the grant is concerned that is still as it always has been, the conclusive test. But it was never decided or intended to be that the failure of the grant could not be shown either from the charter itself or aliunde. Thus in the case last cited it was held that the complainant might show from the charter that the franchise had lapsed or expired, and the cases on passenger railways cited supra rest on proof outside of the charter that other legal requirements for the validity of the challenged action were wanting. The language of the charter therefore is not the sole test of the validity of the acts complained of. The purpose of the act of 1871 was to enable individuals to protect their private property and rights against unlawful and unauthorized interference by corporate action directly and without the necessity of invoking the aid of the commonwealth. The injury to the complainant is the same whether the illegality or want of authority arises from the charter or otherwise. What he challenges is the existence of present lawful authority to do the thing that injures him, and to that end he may avail himself of any defect in the authority set up, however arising.

The right of the complainant in the present case, therefore, does not rest on any claim to enforce the ordinance of the city of Pittsburg. But the ordinance is an existing fact material to the validity of the defendant’s action which without it would be a public nuisance enjoinable on the suit of anyone specially injured. If complainant could have shown that the ordinance had been repealed the whole defense would have failed. By showing that the ordinance though not repealed granted a privilege only on condition, and that the condition has been broken, complainant shows that the defendant’s action is without a present complete legal justification. For the purposes of this suit that is all that is necessary.

The city of Pittsburg is not interested in the present question. It may modify or altogether repeal the conditions of its consent in the ordinance. If it should do so the status of complainant in the present suit would be changed, but there would still remain the question of her right to damages at law, and perhaps other questions which we need not consider now.

The decree is reversed at the costs of the appellee, and the injunction directed to be awarded as prayed.


author: Mr. Justice Potter,

text:
    Hayes v. Sturges, Appellant.

      Equity — Jurisdiction—Waiver of jurisdiction — Public office — Quo warranto.

    While a bill in equity is not the proper proceeding to determine title to public office, yet if the parties waive the question of jurisdiction, and the court considers the case as if it had been brought before it by a writ of quo warranto, the appellate court will consider a decree awarding an injunction as equivalent to a judgment of ouster.

      Public officers — Boroughs—Councilmen—Act of June 1, 1883, P. L. 54.
    The Act of June 1, 1883, P. L. 54, relating to the classification of councilmen of boroughs applies to boroughs divided into wards.
    Argued Feb. 19, 1906.
    Appeal, No. 256, Jan. T., 1905, by defendant, from decree of C. P. Lackawanna Co., Sept. T., 1905, No. 3, on bill in. equity in case of John Hayes, Burgess, v. Frank Sturges et al.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Newcomb, J.
    The court found the facts to be as follows :
    1. The borough of Old Forge was incorporated by decree of the quarter sessions of this county in 1899. In accordance with the Act of May 22, 1895, P. L. 109, it had seven councilmen to be elected at large, three of whom were elected at the February election in 1900 for three years, two for two years, and two for one year. As these terms expired the vacancies were filled by the election of the corresponding number for three years.
    2. By subsequent proceedings in accordance with the Act of May 14, 1874, P. L. 159, and its supplements, the borough was divided into six wards by decree of the court of quarter sessions. It was ordered that each ward should be entitled to elect two councilmen, but not so as to interfere with the terms of those already elected, and that at the next municipal election the qualified voters should elect councilmen for terms of three years in all but the first ward, to wit: two each in the second, third and fifth, and one each in the fourth and sixth wards, a total of eight. It will be noted, by reference to the next finding, that for the year 1904 the borough had thirteen councilmen, but that circumstance is not material to this case.
    3. Three members had been elected at large in 1903, for three years, viz.: Philip Swartz, William H. Jones, A. Constanzo. Their term expires in 1906. Two had been elected in 1902^ viz.: Martin O’Malley, Daniel Dougherty. Their term expired this year. These five under the law continued in office after the ward elections in 1904, in pursuance of the decree, at which the following were elected without designating by the- ballots or otherwise, any specific terms :
    Second Ward, Frank T. Sturges,
    Eugene Mott.
    Third Ward, John H. Conway,
    Patrick F. Coyne.
    Fourth Ward, Clarence Snyder.
    Fifth Ward, James Melvin,
    Thomas Pickerell.
    Sixth Ward, P. J. Conway.
    It may be noted in this connection that two of the “ holdovers,” Constanzo and Swartz, lived in the first ward; Jones lived in the fourth ward; and Dougherty in the sixth ward. In which ward O’Malley lived doesn’t appear.
    4. Dougherty died in 1904, and Jonah Hapgood was appointed to fill the vacancy thereby created.
    5. In 1905, at the Spring election, the following were elected councilmen for specific terms noted as follows :
    Second Ward, Frank T. Sturges, 3 years.
    Edward Priest, 2 years.
    Third Ward, James Bonner, 3 years.
    Antonio Ripa, 3 years.
    Fourth Ward, Clarence Snyder, 1 year.
    Fifth Ward, William Allen, 2 years.
    Richard E. Gray, 2 years.
    Sixth Ward, William Thomas, 2 years.
    Jonah Hapgood, no term.
    6. With the exception of Hapgood, these, together with the three members elected at large in 1903, claim to be the town council. Hapgood declined to recognize the body so constituted, refused to attend their meeting, they declared his seat vacant and appointed Robert White in his place. The evidence doesn’t show that Hapg'ood was elected in 1905 for any specific term, and it is agreed by counsel that his election is not in controversy.
    May 24, 1906:
    7. Mott, Coyne, Melvin, P. J. Conway and JohnH. Conway, claim to be eouncilmen by virtue of their election in 1904, and with Hapgood claim that they, together with the “hold-overs ” and Sturges, Snyder and Pickrell elected in 1904, form the legal council. They claim that because the decree dividing the borough specified an election for three years, they were elected for that term. The other body claims that the Act of June 1, 1883, P. L. 54, governs the election of eouncilmen in all boroughs, and that the decree was erroneous in specifying such term generally; that it should have provided for the election of one-third for three years, one-third for two years, and one-tliird for one year, and not having done so the voters had the right, at the following election, to put the act in operation by electing for specific terms, so that the terms of one-third the whole number shall expire each successive year.
    Pickrell is postmaster of the village, and claims that he has given up his seat because of advices from the post-office department. But as the case now stands we can take no notice of that in determining the composition of the council.
    The court entered a decree in accordance with the prayer of the bill.

      Error assigned was the decree of the court.

      A. A. Vosburg, with him John II. Bonner, for appellants,
    cited : Young’s App., 153 Pa. 34; O’Reilly v. Craft, 153 Pa. 36; Strasburg Borough, 8 Pa. Dist. Rep. 544; Com. v. Vamloon, 4 Kulp, 338.

      M. J. Martin, with him John J. Toohey, for appellee,
    cited: Com. ex rel. v. Morgan, 178 Pa. 198 ; Com. ex rel. v. Dolphin, 2 C. P. Rep. 85; Bangor Town Council, 5 Northampton Co. Rep. 222; Com. v. O’Neal, 203 Pa. 132.
   Opinion by

Mr. Justice Potter,

In this proceeding the legality of the election of the persons assuming to act as eouncilmen of the borough of Old Forge, was attacked, upon the ground that there was no legislative authority for the election of members of council for any term longer than one year, in boroughs which are divided into wards. It was alleged that the provisions of the law as to classification do not apply to such boroughs. The appropriate remedy in this case would have been quo warranto. Equity has no jurisdiction to determine the right to hold and exercise a public office: Gilroy’s App., 100 Pa. 5 ; Dayton v. Carter, 206 Pa. 491. But the parties here have agreed upon the record to waive the question of jurisdiction and the court below has considered the case as if it had been brought before it by writ of quo warranto. The decree awarding an injunction is therefore to be regarded as equivalent to a judgment of ouster in quo warranto proceedings.

The decision of the court below that the defendants are not legally members of council of the borough of Old Forge is based upon the conclusion of law, that the act of 1883 applies only to boroughs not divided into wards, and has no application to Old Forge borough. “ This case,” the court says, “ turns upon the question whether the Act of June 1, 1883, P. L. 54, applies to boroughs divided into wards.”

The court below assumes that the act of 1883 cannot be applied to boroughs divided into wards, but it gives no reason for this assumption, except a quotation from the opinion of Judge Hand, in a case in the court of common pleas, to the effect that no provision is made as to which wards are to elect for the different terms, and until the law provides for this, no elector will know how to vote.

The difficulty in this ease seems to arise out of a mistake made by the court of quarter sessions in 1903 when the borough was divided into six wards, each ward to elect two councilmen, but so as not to interfere with the terms of those already elected. But the decree also provided that at the next election, two councilmen should be elected in each of the second, third and fifth wards, and one in each of the fourth and sixth wards, all for terms of three years. There seems to have been no statutory authority for directing the terms to be all for three years.

The Act of May 13, 1889, P. L. 193, provides that if the court increases the number of councilmen they shall at the next succeeding municipal election, “ be elected as is provided for by existing law.” And the act of 1883 which was existing law, authorized classification, so that one-third of the councilmen should be elected each year. This provision was disregarded by the court of quarter sessions in dividing the borough of Old Forge into wards, and the election of councilmen in 1904 for terms of three years would seem to have been illegal, as being without authority of law. But the court having failed to designate the manner in which councilmen should be elected, the voters themselves seem to have done so, and as a matter of fact, in 1905, they elected a council whose terms are classified in accordance with the act of 1883, thus accomplishing the result intended by the legislature, and atoning for the failure of the court to make the proper order in the premises.

The Act of April 13, 1903, P. L. 171, by its terms, applies only to boroughs which were divided into wards at the time of its passage, and therefore it does not include the borough of Old Forge, but it indicates the intention of the legislature that all boroughs, including those divided into wards, should elect their councilmen in classes. It also shows that it is not impracticable to elect the council of a borough divided into wards by classes. In Com. v. Fletcher, 180 Pa. 456, the court divided a borough into wards and directed that the school directors should bo elected by classes, as provided by the act of June 1, 1883. They had already been classified, as had the councilmen in the present case, prior to the division into wards. The question of the application of the act of 1883 was not discussed, apparently being taken for granted. But the case shows that it was possible to make such a division under circumstances which were practically the same as those in the present case.

We see nothing in the act which would justify the assumption that it was intended to apply exclusively to boroughs not divided into wards. The language both of the title, and the body of the act indicates that it is intended to apply to all boroughs in the commonwealth.

The assignments of error are sustained, and the decree of the court below is reversed, and it is ordered that the injunction restraining the defendants from acting as councilmen of the borough of Old Forge, be dissolved, and the bill be dismissed.