author: Mr. Justice Potter,

text:
    Corgan, Appellant, v. George F. Lee Coal Company.

      Master and servant — Dismissal of servant — Grounds for dismissal.

    Where a person is employed by a mining company as foreman “for so long a time up to five years that he satisfactorily performs his duties as foreman,” the company has the absolute right, whenever it becomes in good faith dissatisfied with the services of the foreman, to discharge him; and if the company discharges him for a cause assigned and not sufficient, and it appears that at the time the company had the right to discharge him for another cause, such discharge will not be unlawful because a wrong reason had been given for it.
    The master is not bound to give any reason for the dismissal at the time, and if he does, he is not thereby estopped from setting up any other, or different cause, which really existed when the servant was discharged.

      Corporations — Dividends and profits — Suit for dividends.

    A shareholder cannot ordinarily sue the corporation- for his share of accumulated profits until a dividend has been declared, a matter which generally rests within the sound discretion of the directors, which discretion the courts will not control unless it has been plainly abused.
    The sale of the stock of a corporation carries to the vendee the right to all dividends thereafter declared, and this is the case, although the profits from which such dividends have been declared, may have accrued prior to the sale of the stock.

      Mines and mining — Mine foreman — Mine superintendent.

    A person who was employed as a “mine foreman” and whose duties as such are confined to the underground portion of a colliery which constitutes the mine proper, is not the superintendent of the colliery withiii the meaning of the Act of June 2, 1891, P. L. 176, and is therefore not required to give the notices prescribed by article 14.

      Appeals — Review—Reasons for judgments.

    The appellate court does not review reasons for judgments. If the judgment be right, even though the reasons given wholly fail to sustain it, or would logically lead to a different one, it must stand.
    Argued April 15, 1907.
    Appeal, No. 335, Jan. T., 1906, by plaintiff, from order of O. P. Luzerne Co., May T., 1904, No. 271, refusing to take off nonsuit in case of Michael II. Corgan v. The George F. Lee Coal Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      Assumpsit for breach of contract of employment, and also to recover undivided profits. Before Halsey, J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Richard B. Sheridcm, with him James L. Lenahan, James P. Costello and John T. Lenahan, for appellant.
    It was not appellant’s duty to give the notice to the mine inspector : Durkin v. Kingston Coal Co., 171 Pa. 193.
    Appellant’s employment being an inside foreman, his neglect to perform the duties of superintendent would not justify his discharge.
    The uncontradicted evidence in the case is that appellant was discharged, not because of any neglect of duty, but because he refused to relinquish his claim against the company arising out of a collateral matter : Hand v. Clearfield Coal Co., 143 Pa. 408; Clay Commercial Telephone Co. v. Root, 17 W. N. C. 200; Henderson v. Hydraulic Works, 9 Phila. 100.
    We offered to show that instead of declaring dividends, all parties interested agreed that the earned surplus was to be distributed. They adopted this method of paying or distributing the profits, and when Mr. Lee set aside a surplus it was in reality the declaration of a dividend, according to the method adopted. Of the amount set aside appellant did not receive his share, although distribution was made among the other stockholders : Lehigh Crane Iron Co. v. Com., 55 Pa. 448.
    Even if the contract be construed as making the employer the sole judge of the performance, the genuineness of his dissatisfaction is for the jury : Boiler Works v. Schnader, 155 Pa. 394; Singerly v. Thayer, 108 Pa. 291.

      John McQahren, with him Frank Donnelly, for appellee.—
    The defendant being guilty of gross negligence and incompetence, according to his own testimony, should not be allowed to question the dissatisfaction of the defendant: Campbell Printing Press Co. v. Thorp, U. S. C. Ct. 1 L. R. A. 645; McCarren v. McNulty, 73 Mass. 139; Frary v. American Rubber Co., 18 L. R. A. 644; Delahunty Dyeing Machine Co. v. Penna. Knitting Mills, 19 Pa. Superior Ct. 501; Kennedy v. Poor, 151 Pa. 472; Matthews v. Park Brothers & Co., 146 Pa. 384.
    The managing agents of the company have a discretionary power to determine the time, and manner of making the payment, and they are in many instances authorized to reinvest the profits in the business of the company. This discretion cannot be impaired by the courts : 1 Morawetz on Corporations, p. 211; McLean v. Plate Glass Co., 159 Pa. 112.
    May 27, 1907:
   Opinion by

Mr. Justice Potter,

This is an appeal from the refusal to take off a judgment of compulsory nonsuit. Complaint is also made of the rejection of certain evidence, offered to show the withholding of dividends or profits alleged to be due to appellant. The plaintiff was employed as “inside foreman” by the defendant, a corporation operating a colliery. He was engaged at a salary of $125 a month, under a contract which provided that his appointment was to be “ for so long a time up to five years, that said M. H. Corgan satisfactorily performs his duties as foreman for said company.” Plaintiff also purchased seventy-five shares of the capital stock of the defendant company, par value $100 per share, for which he paid $1,500. He entered upon his duties under the contract of employment and so continued until February 13, 1904, when he was discharged. He then brought this suit, claiming to recover damages for the breach of the contract of employment, and certain dividends and profits which he alleged had wrongfully been withheld from him upon the seventy-five shares of stock which he had purchased.

Upon the trial, plaintiff testified that Mr. Lee, the manager, had expressed no dissatisfaction with his work; but that, in January, 1904, plaintiff had made demands, through his attorney, for the pt'oportionate profits which he alleged were due him on his stock, and thereupon Lee came to him and said that he could not have a man in his employ who was lawing him, and asked plaintiff to withdraw the threatened suit, or else resign. Plaintiff refused to resign, and Lee then said he would have to discharge him, which he did after thirty days’ notice. He testified that no complaint was made as to his work, and no other reason was given for the discharge, except the threatened suit. Prior to the discharge, the plaintiff- had sold his stock to Mr. Lee, for the sum of $5,000, and had transferred it to him. It also appears from the testimony that while he held the stock, he received upon it, not as dividends formally declared, but as a division of earnings or profits, made by general consent, more than $2,500. On cross-examination plaintiff admitted that while he was in charge, there were two squeezes or “cave-ins” at the mine, which resulted in considerable loss to the defendant company. He also admitted that he had given no notice to the mine inspector of the fact that he was going to rob or skip the pillars in the mine, which action was the cause of the caving in. Nor did he give the mine inspector notice of the squeezes. He did, however, make regular monthly reports to the mine inspector in his capacity as mine foreman.

The contract of employment was for a definite term, provided the duties of the employment were satisfactorily performed; and the only reasonable inference from the language used, is that the services were to be satisfactory to the management of the employer, the defendant company. Under such a contract, it is well settled that the employer “has the absolute right, whenever he becomes in good faith dissatisfied with the services of the employee, to discharge him; and it has been held immaterial in such a case that in fact no valid grounds for discharge exist. Under a contract of this character the dissatisfaction of the master must be genuine: ” 20 Am. & Eng. Ency. of Law (2d ed.), 15. It is suggested here, that dissatisfaction with the manner in which plaintiff performed his duties as foreman was not alleged, as a reason for the discharge; but in Allentown Iron Co. v. McLaughlin, 1 Monaghan, 726, it was held by this court, that while the master might not have the right to discharge his servant for the cause assigned by him, “ if, at the time, the defendant company had a right to discharge him for any cause, such discharge would not be unlawful because a wrong reason had been given for it.” The same principle is laid down in Wood on Master & Servant, sec. 121: “ The master is not bound to give any reason for the dismissal at the time, and if he does, he is not thereby estopped from setting up any other or different cause which really existed when the servant was discharged.” Other authorities to the same effect are numerous. Thus in Rossiter v. Cooper, 23 Vt. 522, where a contract of employment provided that the employer, if he became dissatisfied, had the right to dismiss the employee upon giving him one day’s notice, it was held that the employer was at liberty at any time to put an end to the contract, without informing the employee of the ground of his dissatisfaction, and without in fact having any satisfactory reason for it. In Koehler v. Buhl, 94 Mich. 496, it was said: “ It is settled law that, where a person contracts to do work to the satisfaction of his employer, the employer is the judge, and the question of the reasonableness of his judgment is not a question for the jury.” As we coincide with this view of the case, it is unnecessary to examine the grounds, which the court below regarded as sufficient to justify the defendant company in discharging the plaintiff from its employment. The evidence is ample to show that the dissatisfaction was genuine, and there is nothing to show that it was malicious. Whether or not it was well founded, we need not inquire.

As to the question raised by the second assignment, we can see no error in the exclusion of the evidence which was offered to show that the plaintiff had not received the share which he claimed, of the surplus funds in the treasury of the company. In his statement, the plaintiff claims dividends or profits. But he does not allege that dividends as such have been declared by the corporation. On the contrary, the offer of evidence which was excluded, expressly admitted that no dividends had been declared. Until they were, the plaintiff was in no condition to lay claim to them in this suit. “ A shareholder cannot ordinarily sue the corporation for his share of accumulated profits until a dividend has been declared, a matter which generally rests within the sound discretion of the directors, which discretion the courts will not control unless it has been plainly abused:” 10 Cyc. L. & Pr. 566. If any such agreement was made, as plaintiff sets forth in his statement, under which the dividends and profits were to be declared and paid monthly, it could be enforced only in a court of equity. It will be remembered also that the plaintiff had sold his stock prior to the bringing of this suit; and as admittedly no dividend had actually been declared prior to the transfer of the stock, it is difficult to see how the plaintiff has any standing in this respect. Nor would he have any right to participate in any distribution of profits made after the transfer. The law in this respect is thus summed up in 2 Cook on Corporations (5th ed.), sec. 539: “As between the vendor and vendee of shares of stock, it is a settled rule that the vendee is entitled to all the dividends of the stock which are declared after the sale of the stock. Even though the transfer has not been recorded, the transferee has a right to the dividends as against the transferer. The law, moreover, refuses to investigate the question when the dividend was earned. In contemplation of law the net profits are earned at the instant the dividend is declared. This rule is just, inasmuch as the accrued profits and expected dividends enter into the value and price at which the stock is sold.” Citing Coleman v. Columbia Oil Co., 51 Pa. 74, and numerous other cases.

In the Act of June 2, 1891, P. L. 176, article 12, rule 1, it is provided that “ The owner, operator or superintendent of a mine or colliery .... shall place the underground workings thereof, and all that is related to the same, under the charge and daily supervision of a competent person who shall be called ‘ mine foreman.’ ” Article 14, section 2, provides that “ The owner, operator or superintendent of a mine or colliery” shall give notice to the mine inspector of the district in certain cases, among others, “ Fifth. Where the pillars of a mine are to be removed or robbed,” and “ Sixth. Where a squeeze or crush or any other cause or change may seem to affect the safety of persons employed in any mine.” It would seem, therefore, that the court below was in error in holding that the plaintiff who was employed as a “■ mine foreman,” and whose duties as such were confined to the underground portion of the colliery which constituted the mine proper, was the superintendent of the colliery within the meaning of the act. If he was not superintendent, he was not required under the law to give the notices prescribed by article 14. Even had he been so required, the same duty rested upon the owner and operator of the mine, and the consequences of their default could not justly be visited upon the plaintiff unless the performance of that particular duty had been delegated to him, and of this there was no evidence. However, if the plaintiff failed to make out a case that entitled him to go to the jury, the court below committed no error in refusing to take off the nonsuit, even if it did assign an erroneous reason for its entry. To quote from Brew v. Hastings, 206 Pa. 155, “ As we have more than once said, we do not review reasons for judgments. If the judgment be right, even though the reasons given wholly fail to sustain it, or would logically lead to a different one, it must stand.”

The judgment of compulsory nonsuit entered in this case is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Mosten v. Lake Shore & Michigan Southern Railway Company, Appellant.

      Negligence — Railroads—Grade crossing — “Stop, look and listen.”

    Where a person approaches a grade crossing where there are ten tracks, early on a dark winter morning, and presumably stops, looks and listens, and when he has crossed several of the tracks, is stopped by a passing freight train which he was not able to see before, because of the darkness, and while in this position of peril is suddenly struck by a passenger train going at the rate of over fifty miles an hour, the question of the railroad company’s negligence is for the jury, and a recovery for the death of the deceased will be sustained.
    Argued April 29, 1907.
    Appeal, No. 164, Jan. T., 1907, by defendant, from judgment of C. P. Erie Co., May T., 1906, No. 22, on verdict for plaintiff in case of Frances Mosten for herself, Julia Mosten'and Yincent Mosten v. The Lake Shore & Michigan Southern Railway Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and.Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Walling, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned, among others, was in refusing binding instructions for defendant.
    Yerdict and judgment for plaintiff for $1,383.33. Defendant appealed.

      T. A. Lamb, for appellant.

      John B. Brooks, with him Brands T. NagorsM and Paul. A. Benson, for appellee.
    May 27, 1907 :
   Opinion by

Mr. Justice Mestrezat,

This action was brought by the widow of Joseph Mosten to recover damages for the death of her husband, who was killed by defendant company’s train at a grade crossing on German street, in the city of Erie, at about 6 :45 o’clock on the morning of January 10, 1906. German street runs north and south, and ten railroad tracks, covering a space of about 125 feet in width, cross the street at this point at right angles. There are safety gates on the north and south sides of the crossing, the two gates being 145 feet apart. They are not operated, before seven o’clock in the morning. Seven of the tracks belong to the defendant company, and the .other three, lying immediately south, are operated by the Pennsylvania Railroad Company. The defendant has four main tracks and three side tracks. Its main tracks are numbered 1, 2, 3 and 4, Track No. 1 is the southernmost track, and is a short distance north of the Pennsylvania tracks. It is a west bound freight, No. 2 a west bound passenger, No. 3 an east bound passenger, and No. 4 an east bound freight track. Mosten was killed by a west bound passenger train, No. 19, on track No. 2. The plaintiff’s statement alleges that her husband’s death was caused by the excessive and unlawful speed of the train, and by the failure to give warning of its approach to the crossing. The learned trial judge submitted to the jury the question of the defendant’s negligence, and also the contributory negligence of the plaintiff. The verdict was for the plaintiff, and, under the charge, that establishes the negligence of the defendant company and relieves the plaintiff from the charge of contributory negligence. The defendant has appealed, and the two assignments raise the single question whether the court, under the evidence, should have declared the plaintiff guilty of negligence as a matter of law.

The morning Mosten was struck by the train was dark and very foggy. An east bound passenger train, No. 18, on track. No. 3, at a speed of from twenty to thirty miles an hour, and. a west bound freight train on track No. 1, at a speed of about ten miles an hour, were passing the crossing just as Mosten was struck by the west bound passenger train No. 19, on track No. 2. The testimony warranted thefinding that train No. 19 was running at the rate of from fifty to sixty miles an hour. One witness, speaking of the speed of the train at the crossing, says “ it was like a flash of lightning, and it was gone; I have been there for more than- twenty years at that crossing, and I never saw a train go like that.”

Mosten lived north of the tracks, and at the time he was killed was going south on German street to the German Stove Works, south of the tracks, where he was employed. Daniel Bowes, one of defendant’s witnesses, says he saw Mosten and Mr. Imerman standing near, and just west of him, on track No. 2, immediately before he was struck by the west bound passenger train, No. 19. Bowes and his son, like Mosten, were walking south on German street to their place of employment. The freight train passing west on track No. 1 delayed them, and, while they were waiting until it had cleared the crossing, Mos-ten was struck by the train on track No. 2. Bowes and his son saw the east bound passenger train on track No. 3 nearing the crossing and stepped out of its way and on track No. 2, when the son saw the west bound passenger train approaching two blocks away, and pulled his father off track No. 2 just intime to save him from being struck by the train that killed Mosten. Bowes says he then called to Mosten and Imerman, but they seemed to be dumbfounded, the same as I was myself.” It was not more than three to five seconds after Bowes saw the west bound passenger train approaching until it struck and killed Mosten.

We think the evidence was amply sufficient to warrant the court in submitting the deceased’s negligence to the jury. In the absence of evidence to the contrary the law presumes that Mosten did his duty and stopped, looked and listened before he went on the tracks, and that thereafter he continued to perform his duty. With this presumption in his favor, there is nothing in the case to sho w that Mosten acted other than a reasonable, prudent man would have acted under like circumstances. If, before he entered on the tracks, he had seen the freight train on track No. 1 blocking his passage, it was his duty to remain off the tracks until the train had cleared the crossing. And so the court distinctly told the jury, and hence the verdict establishes that Mosten did not see the freight train passing on track ■ No. 1 before he started to cross the tracks. In view of the conditions prevailing at the time, the jury’s conclusion is a reasonable one. The morning was foggy, smoky and dark. A witness testified that it was so foggy he could not see any lights about the crossing. There is some testimony in the case which tends to sho w that if Mos-ten had stopped before he entered upon the tracks and looked south he might have discovered the freight train passing on track No. 1, which was eighty-five feet from where he would have been. But this testimony, taken in connection with other testimony of the same witnesses, makes it extremely doubtful whether he could have seen the freight train blocking German street at that time, and, in view of the other testimony in the case, the jury was justified in finding that he could not see the freight train from the north side of the tracks.

Assuming that Mosten entered upon the tracks without knowing or being able to see that a passing freight train was blocking the street, we find no evidence that would justify the court in declaring that his subsequent conduct was negligent. When he was stopped by the freight train he was suddenly put in a place of peril. Had he attempted to retrace his steps he certainly would have been struck by the east bound passenger train, which at that moment was entering the crossing on track No. 3 over which he would have been compelled to pass. There were also four other tracks which he must have cleared before he reached a place of safety. Whether, therefore, it was more prudent for Mosten to await the passing of the freight train or attempt to retreat beyond the north track, was unquestionably for the jury and not for the court. The train which struck him was an hour late, and there is nothing to show that Mosten knew the fact, or believed that it had not passed the crossing on schedule time. Familiar with the crossing and probably knowing the train schedule, he did not anticipate a train at that time on track No. 2, and doubtless thought that it was safer for him to remain between tracks Nos. 1 and 2 than to attempt to cross five other tracks, one of which was track No. 3 on which a passenger train was then due and approaching. He had no assurance that a train would not pass the crossing on track No. 4, which lay in the path of his retreat, and endanger his safety.

It is contended by the defendant that if Mosten had been exercising the care required of him he would have seen the west bound passenger train on track No. 2 in time to prevént the accident. It is true that witness Hart says that as he was approaching the crossing, he stopped at the north gate and saw the west bound passenger train. But this was when it was passing the crossing. He testifies he saw it, “ it went by so fast; like a flash; the wést bound train I didn’t see at all until it came up.” At that time Mosten had crossed part of the tracks and was standing near track No. 1 waiting for the freight train on that track to pass west. As the witnesses say, the passenger train passed the crossing at an extraordinarily rapid speed, in the language of Hart: “it was like a flash of lightning, and it was gone.” Kempf says that as it approached the crossing, “ it shot by at the rate of about sixty miles an hour.” John Bowes, who with his father was standing near Mosten when the latter was struck, testifies that from the time he saw the headlight of the approaching train until it went over the crossing, “ it was so quick you couldn’t hardly see it.” Daniel Bowes, who also was near Mosten at the time of the accident and who had stepped from in front of the east bound passenger train on track No. 3, was snatched from track No. 2 by his son just in time to escape being struck by the west bound train, says that he and his son first saw the headlight of the latter train two blocks distant and that in three to five seconds it had passed the crossing. He also says that owing to the darkness he couldn’t tell which way Mosten and Imerman were looking while they were standing there. From the testimony, therefore, it is manifest that whether Mosten could have seen the train which struck him in time to prevent the accident was for the jury and could not have been determined by the court as a matter of law. The train approached the crossing without giving any warning whatever and at very great speed. While waiting for the freight train to pass, Mosten was required not only to look for a train from the east on track No. 2, but also for a train from the west on track No. 3. In fact, as we have seen, a train was approaching at rapid speed from each direction and passed the crossing at the same time. Bowes stepped from track No. 3 to track No. 2 to escape the east bound passenger train, and says he would then have been struck as Mosten was by the west bound passenger train on No. 2 track, if his son had not pulled him from the track. It is, therefore, apparent that Mosten was in a perilous position, and his conduct on the occasion must be considered as the conduct of one suddenly placed in such a position without fault of his own. In Hoffmeister v. Pennsylvania Railroad Company, 160 Pa. 568, Mr. Justice .Djsan, speaking for the court, says (p. 571) : “ Assuming the deceased exercised care according to the circumstances, before going upon the tracks, stopped, looked and listened for a warning which it was defendant’s duty to give, but which it neglected, then, was she negligent when she discovered danger was imminent after she got upon the crossing ? True, she was still bound to exercise care, but care according to the circumstances, and these had changed from the time she stopped and listened before going upon the tracks; then she was in a place of safety and if defendant had given proper warning, she was bound to hear and heed it; but, being upon a crossing, over five tracks, without negligence, then it was for the jury to say whether she was negligent in not turning back, or in not hastening her steps, or in not stopping between the tracks with a locomotive four to six seconds off.”

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


text:
    Warren, Appellant, v. Mount.

      Vendor and vendee — Exchange of real estate — Articles of agreement— Payment of taxes — Time—Contract.
    Where two persons enter into articles of agreement for the exchange of land, and each agrees to pay the current taxes on the land he is conveying, but the agreement does not state when such taxes are to be paid, the law will presume that the parties contemplated a reasonable time within which the payment was to be made. If mutual possession has been delivered, and all of the covenants of the agreement have been performed, except the payment of taxes by one of the parties, and the delivery of the deed to him, a delay of a few weeks in making such payment will not justify an action of ejectment against him brought twenty-five days after the taxes were actually paid.
    Argued April 30, 1907.
    Appeal, No. 51, Oct. T., 1907, by plaintiff, from judgment of O. P. Beaver Co., March T., 1904, No. 272, on verdict for defendant in case of Robert R. Warren v. Charles F. Mount.
    Before Mitchell, C. J., Pell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in Big Beaver township. Before Holt, P. J.
    The opinion of the Supreme Court states the facts of the case.
    The court directed a verdict for defendant.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was the instruction to the jury.
    - R. P. Lewis, with him Dan H. Stone, for appellant.

      J. M. Hunter, with him John M. Buchanan and James L. Hogan, for appellee.
    May 27, 1907:
   Opinion by

Mr. Justice Mestrezat,

By the contract of August 4, 1903, Mount sold and agreed to convey to Warren the Sheridan avenue properties in Pitts-burg subject to a $34,000 mortgage. He also agreed to transfer the rents from the properties on and after September 1,1903, to give possession of the properties subject to the rights of the tenant, to pay the taxes for the year 1903, to transfer to Warren the insurance then in force, to pay all bills for repairs that had been contracted for, and to pay all interest on the mortgage, subject to which the properties were to be conveyed, to August 1, 1903.

In consideration .of which, Warren agreed to convey the Beaver county farm to Mount, subject to a $4,500 mortgage, to pay all interest on the mortgage, subject to which it was sold, to August 1, 1903, to transfer to Mount all insurance on the farm buildings, to pay the taxes for the year 1903, and give possession on or before October 1, 1903, reserving the grain and hay then on the farm with right to harvest and remove it on or before the same date. Mount had the privilege of putting out fall crops on the farm. Warren was also to transfer to Mount the oil and gas lease on the farm, and also the rent of the tenement house on the farm on delivery of the deed.

The contract stipulated that deeds were to be executed and delivery of possession given on or before September 1, 1903.

In his opinion refusing a new trial, the learned judge of the court below says: “Upon the trial the plaintiff admitted that on August 24,1903, he received from the defendant the deeds for the Sheridan avenue properties and the transfer of the insurance thereon, that all interest upon the $34,000 mortgage was paid by the defendant according to the agreement, and that he received the rents on the said Allegheny county property from and after September 21, 1903; that on or before August 24, 1903, he transferred to the defendant the insurance and oil lease on the said farm, and that he did not thereafter collect or receive any rents from the tenement house on the farm. In fact, it is conceded by the plaintiff that both parties performed all the stipulations in the agreement except he alleges that the deed for the farm was left by him with A. C. McComb, who he alleges was his agent, or trustee, Avith instructions not to deliver it to Mount until the taxes on the city property, amounting to $500 or $600, should be paid by the defendant. The plaintiff also admits that he did not pay the taxes on the farm according to the agreement until about October 11, 1903, some forty-eight days after he had received his deeds from the defendant. . . . The plaintiff admits in his testimony that the defendant paid the taxes on the Allegheny county property on January 21, 1904, twenty-five days before this action Avas brought.” Mount took possession of the farm in October or the early part of November, 1903, and on the third day of October purchased of Warren the personal property on the farm.

On the undisputed facts, disclosed on the trial, the plaintiff was not entitled to recover. This ejectment Avas brought on February 15, 1904, not to enforce the payment of any part of the purchase money, but to recover possession of the land on the ground that the deed wTas not delivered to Mount because of his failure to pay the taxes of 1903 on the Sheridan avenue properties. The plaintiff admits that Mount was entitled to the deed on the payment of the taxes. He alleges that the latter forfeited the agreement and his rights under it because in the payment of the taxes time was of the essence of the contract and that they should have been paid by September 1, 1903, when the deeds were to be exchanged. An examination of the agreement does not support this contention. Mount was “to pay all taxes that were assessed against the said property for the year 1903,” but there is nothing whatever in the contract fixing the time within which the taxes were to be paid, or anything to indicate that the time of payment was of the essence of the contract. Not only does the agreement fail to specify a date for paying the taxes, but as showing that to be the plaintiff’s construction of it, he did not pay the taxes on the farm until the middle of October, 1903, although the provision in the agreement requiring him to pay the taxes on the farm was the same as that imposing a like duty on Mount as to the taxes on the Sheridan avenue properties. Each party was to pay the taxes of 1903 on the real estate he sold to the other, but it was not stipulated in the agreement when they should be paid, and hence the parties had a reasonable time in which to comply with this covenant of the agreement.

Mount paid the taxes on the Sheridan avenue properties on January 21, 1904. He was then entitled to a deed from the plaintiff conveying the Beaver county farm, subject to the $4,500 mortgage. There was then a complete equitable title to the property in Mount and he was in possession and had the right to the possession as against the plaintiff. The writ in this case was not issued until February 15,1904, twenty-five days after the taxes had been paid. At that time, every covenant of the agreement had been complied with by Mount, and if we concede the plaintiff’s contention that he had not delivered a deed to Mount for the farm, yet the latter having a complete equitable title and the right to the legal title had a perfect defense to the ejectment brought by the plaintiff for the Beaver county farm.

For the reasons stated, without determining the other questions raised by the appellant, the learned court below was right in directing a verdict for the defendant.

The judgment is affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Yoho, Appellant, v. Allegheny County.

      Constitutional law — Soldiers’ monument — Memorial building — Title of statute — Local legislation — Acts of May 22, 1895, P. L. 96, and April 3, 1903, P. L. 136.
    The Act of April 3, 1903, P. L. 136, amending the Act of May 22, 1895, P. L. 96, and reciting in its own title the title of the act of 1895, in full, gives sufficient notice of a provision contained in the amended act authorizing county commissioners in counties having a population of over 500,000 and less than 1,000,000 inhabitants to erect “ a suitable memorial hall or building in memory of the soldiers and sailors of the late War of the Rebellion from such counties.”
    The title of an amending or supplementary act is sufficient if it declares itself to be such, and its provisions are germane to the subject of the original.
    While a monument is not a building, a building may be a monument.
    The Act of April 3, 1903, P. L. 136, is not a local act regulating the affairs of Allegheny county, but is pro tanto a classification of counties according to population for the purposes of authorizing the expenditure of public money in a specified way.
    Argued April 30, 1907.
    Appeal, No. 57, Oct. T., 1907, by plaintiffs, from decree of O. P. No. 2, Allegheny Co., Jan. Term, 1907, No. 302, dismissing bill in equity in case of George D. Yoho and Henry Werries v. Allegheny County, and Charles B. Price, I. K. Campbell and James A. Clark.
    Before Mitchell, C. J., Pell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Shaker, J., stated the case to be as follows :
    The bill in this case is by citizens and taxpayers of the county against the county commissioners, to enjoin them from erecting a memorial hall under the provisions of the act of April 12, 1905, upon the allegations that the act is unconstitutional and void. The bill alleges that under the provisions of an Act of April 12, 1905, P. L. 140, the proceedings mentioned in that act have been taken up to, and including a vote of, the qualified electors of the county in favor of the erection of a memorial hall, and that the county commissioners are proceeding to carry out the provisions of that act by purchasing a site and engaging architects to submit plans for the same, and that they intend to levy a tax to provide for the cost of it, and that this tax will be a charge upon the plaintiffs, together with all other taxpayers of the county. The plaintiffs in this case claim that the act of 1905 above mentioned is unconstitutional and void. The respondents claim that it is valid, and they further claim that whether it is or not they are fully authorized to erect a memorial hall as a monument to the soldiers and sailors of the rebellion by the Act of May 22, 1895, P. L. 96, the bill showing that the requisites of that act have been complied with by them. To the latter claim the plaintiffs reply that a memorial hall is not a monument within the meaning of the act of 1895, to which the respondents rejoin that it is such a monument within the meaning of that act, and that in addition they have power to erect a memorial hall by the Act of April 3, 1903, P. L. 136, which provides, as an amendment to the act of 1895, that in a class of counties of which Allegheny county is one a memorial hall maybe erected under that act, and to the latter part of this claim the plaintiffs allege by way of surrejoinder that the act of 1903 is also uncon stitu tion al.
    The court upheld the constitutionality of the act and dismissed the bill.

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

      R. S. Martin, with him Jere Garney, for appellants.
    The Act of April 12, 1905, P. L. 140, is unconstitutional: Bennett v. Sullivan County, 29 Pa. Superior Ct. 120; Portuondo’s Estate, 20 Pa. C. C. Rep. 209; Otto Twp. Road, 181 Pa. 390; Phœnixville Borough Road, 109 Pa. 44; Scranton School District’s Appeal, 113 Pa. 176; Morrison v. Bachert, 112 Pa. 322; Frost v. Cherry, 122 Pa. 417; Perkins v. Philadelphia, 156 Pa. 554.
    The cases of Society of Cincinnati’s Appeal, 154 Pa. 621, and Spangler v. Gallagher, 182 Pa. 277, hold that a monument in the general use of the word is not a building.

      W. A. Stone, of Stone <& Stone, with him A. B. Hay, for appellees.
    The title of the act is sufficient: Com. v. Green, 58 Pa. 226.
    The act is not local in character : Perkins v. Philadelphia, 156 Pa. 554; Morrison v. Backert, 112 Pa. 322.
    May 20, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

As a matter of strict pleading, the demurrer setting up, inter alia, laches after notice was bad as a speaking demurrer and should have been overruled. But as the only questions in the case are of law, there being no facts in dispute, and the subject-matter is one involving considerable expenditure of public money which should not be kept in unnecessary suspense, the court, with the acquiescence of counsel, has considered the legal question on its merits.

The decree might well be affirmed on the view of the learned judge below that the proposed building is a monument within the act of 1895. Appellants quote Society of Cincinnati’s Appeal, 154 Pa. 621, and Spangler v. Gallagher, 182 Pa. 277, as holding that a monument is not a building, but neither case holds that a building may not be a monument. On the contrary, it is said in the former that “ a monument may take the shape of a memorial hall or other building, though that is not the general sense of the word and will not be presumed.”

But a clear authority to sustain the decree, free of all question of strained construction, is found in the Act of April 3, 1903, P. L. 136, which expressly authorizes the erection of a memorial hall. That act is entitled an act to amend the act of May 22, 1895, and after reciting the first section for re-enactment, proceeds “ Provided, however, that in counties having a population as computed by the United States census of the year one thousand nine hundred, of over five hundred thousand and less than one million inhabitants, said petition may pray for the erection of a memorial hall, and, if approved as above provided, the county commissioners of said county shall be authorized to acquire by purchase or by the exercise or right of eminent domain, the necessary site, and shall be authorized to erect and maintain thereon, at the county seat, a suitable memorial hall or buildings, in memory of the soldiers and sailors of the late war of the rebellion from such counties.”

It is argued by appellants that this act is unconstitutional in two respects, first, that the title gives no notice of the proviso that a memorial hall may be erected, which is the real amendment introduced; and, second, that the amendment makes it a local act regulating the affairs of Allegheny county. Neither objection is tenable. The title to an act is not required to be a complete index to its contents, and the title of an amending or supplementary act is sufficient if it declares itself to be such, and its provisions are germane to the subject of the original : In re Boro. of Pottstown, 117 Pa. 538; Philadelphia v. Ridge Ave. Pass. Ry. Co., 142 Pa. 484.

The title of the Act of May 22, 1895, P. L. 96, is “An Act authorizing the county commissioners of the several counties of this commonwealth to erect or complete and maintain a suitable monument at the county seat of each county, in memory of the soldiers and sailors of the late Avar.” There can be no question that this act deals Avith a single subject and that it is clearly expressed in the title. The title of the act of 1903 is “an act to amend” the act of 1895 reciting the title in full. The subject of both acts, to wit: a monument to the soldiers and sailors of the late Avar, is the same, and the provisions of the later act are entirely germane for they do no more than define for certain counties Avbat the word monument may be construed to cover. There is no serious difficulty in so construing the original act, as was done by the learned judge beIoav, but the legislature, either thinking itself that the construction might be doubtful or that it might be the subject of challenge in the courts, put it at rest by the amending act.

It is argued by appellants that the substantial amendment is introduced under a proviso and that that is not the office of a proviso. But the objection is merely Amrbal and without substance. The first part of the section authorizes the county commissioners, under certain conditions, to erect a monument, and the new clause provides that in certain counties the monument may take the form of a memorial hall. Whether the addition Avas introduced by the words “ provided, however,” or the Avords “ and further ” or any similar phrase, makes no difference Avhatever in the meaning or the notice to the legislators passing the act or to the parties interested in and to be affected by its passage.

It is further objected that the act is unconstitutional because it is local and regulates the affairs of Allegheny county. But on this point it is only necessary to say that the act is pro tanto a classification of counties according to population for the purpose of authorizing the expenditure of public money in a specified way: Com. v. Gilligan, 195 Pa. 504; Seabolt v. Commrs. of Northumberland County, 187 Pa. 318.

The decree is affirmed.


author: Mr. Chiee Justice Mitchell,

text:
    Commonwealth v. Karamarkovic, Appellant.

      Appeals — Assignments of error — Trivial assignments — Criminal cases.

    The multiplication of assignments of error upon trivial points having no substantial bearing on the merits of the issue, is always injurious to an appellant’s case, by their inevitable suggestion that the record has been hunted over less to discover real error or injustice than to pick a flaw on which to hang an objection. Assignments of error in criminal cases are particularly open to this inference.

      Criminal law — Murder—Evidence—Expert—Opinion.
    Where on a trial of an indictment for murder it is shown that the prisoner when arrested was wearing a hat which belonged to the murdered man, a doctor who has examined both may express an opinion that the location of certain cuts in the hat corresponded to cuts on the head of the murdered man.
    Where a knife is offered in evidence, and it is shown that it was found at the exact spot where the prisoner was arrested, and it also appears that the murder was committed with a knife, the connection of the knife with the crime is for the jury.
    Where several objects are offered in evidence and objection is made to the offer as a whole, and certain of the objects are properly admissible, there is no error in overruling the objection.
    Circumstantial evidence is always admissible on the trial of an indictment for murder, whether there were eyewitnesses of the crime, or not.
    On the trial of an indictment for murder, the district attorney is not bound to call as a witness everybody that anybody else may think desirable. The responsibility is upon him, and a large measure of discretion must be allowed him in meeting it. While he should try the case fairly in all respects, yet he is the commonwealth’s officer with a duty to take the commonwealth’s view, and present it with zeal.

      Where there is nothing to show that the commonwealth knew anything about an alleged eyewitness until another witness went on the stand, and no objection is made at the trial because of the nonproduotion of the eyewitness, an assignment of error based upon the non-production of such witness will not be sustained.
    Argued May 6, 1907.
    Appeal, No. 80, Oct. T., 1907, by defendant, from judgment of O. & T. Cambria Co., Dec. T., 1905, No. 7, on verdict of guilty of murder of the first degree in case of Commonwealth v. Marko Karamarkovic.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before O’Connor, P. J.
    The opinion of the Supreme Court states the case.
    Yerdict of guilty of murder of the first degree upon which sentence was passed.

      Errors assigned were various rulings and instructions sufficiently set forth in the opinion of the Supreme Court.

      Walter Jones and M. B. Stephens, for appellant.

      J. W. Leech and JD. P. Weimer, for the appellee.
    May 20, 1907:
   Opinion by

Mr. Chiee Justice Mitchell,

Counsel seem to be slow in learning that the multiplication of assignments of error upon trivial points, having no substantial bearing on the merits of the issue, are always injurious to an appellant’s case by their inevitable suggestion that the record has been hunted over less to discover real error or injustice than to pick a flaw on which to hang an objection. Assignments of error in criminal cases are particularly open to this inference.

In this case the fact that the deceased was killed by stab ■wounds under circumstances that made it' murder ivas undisputed, and the defense was an alibi. The only issue, therefore, was whether the prisoner was the man who did the killing, and, if so, the degree of the crime. The case was submitted to the jury in a full and careful charge covering all the matters open to doubt. Of the seventeen assignments of error, mostly hypercritical objections to the charge, only a few need be specially referred to.

The deceased and a friend were nearing their home shortly after dark on a November evening, when a man rushed across the street or out of an alley, stabbed them both and then ran up the alley. There was no preliminary quarrel, and no motive appeared except the suggestion of racial an tipathy, all the parties being foreigners. The deceased, Homa, helped his friend into the house and then returned for their hats which had been lost in the attack. He picked up his friend’s hat and another which, on bringing into the house, he found was not his. Between the attack and Homa’s return to search for the hats, a man was seen striking matches in the alley, picking up a hat and running away. There was testimony tending to identify this man as the prisoner, and when the latter was arrested in the neighborhood an hour or so later, he was wearing a hat testified to be that of Homa, the murdered man. This was the most important single item in the chain of evidence, and has been fully recited to show the bearing of the testimony which is the subject of the first assignment of error. When the physician, who attended Homa at the hospital, was on the stand, he was asked if the cuts on Homa’s head and neck would be about the location of the cuts in the hat worn by the prisoner when arrested. He answered, very carefully and guardedly, “A. Well, it would depend altogether on how the hat was worn at the time. I, in examining the hat, could readily see how, if the hat was down over the side of the head, somewhat in this manner (illustrates same) and the knife jammed in through this cut, that it could make the cut behind the left ear as he had it. But the hat would have to be down over the back of his head somewhat like that (again illustrates same) to do it. Evident^ a cut or stab done in that way would make the cut, provided the hat was in the position I speak of, in my judgment.” This was objected to and is now argued against as a mere opinion and a conclusion from it which was not for the witness but for the jury to draw. Even as an opinion, however, it was clearly admissible, for the witness had special knowledge and means of comparison. The jury had the hat before them, but they did not have the dead man’s head, and the correspondence of the cuts on both required. an exactness of knowledge that could not be conveyed by a mere separate description of each.

But it was more than an opinion, it was testimony to a very material fact bearing on the identification of the prisoner with the murderer.

The second assignment is to the admission in evidence of a knife, two hats and some other articles. The knife was found in the alley shortly after the prisoner’s arrest, and at the exact spot where the arrest had taken place. Its connection with the crime was for the jury. The hats were clearly identified as parts of the res gestee. As to the other articles there was testimony tending to show connection and it was largely a matter within the judge’s discretion, and even if that was not well exercised, the objection was made to the offer as a whole and the knife and hats being certainly admissible, the objection was properly overruled.

The third assignment is to the admission of circumstantial evidence, and submitting it to the jury when there was an eyewitness known to the commonwealth not produced, and no effort made by the commonwealth to obtain the testimony or find the witness.” This is much too broad. Circumstantial evidence is always admissible Avhetber there are eyewitnesses or not. But the latter part of the assignment that the case was submitted to the jury on circumstantial evidence alone when there was an eyeAvitness known to the commomvealth, not produced, and not accounted for, involves a very serious charge Avhich should not be lightly made and Avhich in this case appears to have no foundation. It is settled law in Pennsylvania that the commonwealth is not a vindictive seeker for vengeance and the prosecuting officer is so far bound to a judicial attitude, that he should present to the jury substantially all the evidence within his reach that may throw important light on the case. This, however, does not mean that he must call as a Avitness everybody that anybody else may think desirable. The responsibility is upon him and a large measure of discretion must be allowed him in meeting it. While he should try the case fairly in all respects yet he is the commonwealth’s officer with a duty to take the commonwealth’s view and to press it even with zeal: Com. v. Nicely, 130 Pa. 261; Com. v. Bubnis, 197 Pa. 542.

The sole reference by the appellant to sustain this assignment is to the testimony of a witness Eorgacs, who said that at the hospital, Donich, the other man who was killed, told him that Homa was walking with one man and he with another. “ Q. Did he say who this fellow was that was walking with him ? A. He said another man; he didn’t mention the name, but said that John Homa went with the one man and he was going along with the other man. Q. Did you make an effort to find out who the other man was ? A. No, sir; one man is here; only one man missing, because one is dead. Q. You didn’t get that man? A. No, sir; he is away; he is a Hungarian, and he went away the next day. Q. Where to? A. Toward Windber. Q. Why didn’t you go after him ? A. I didn’t think it was necessary.” The only connection this witness appears to have had wfith the case was his use as an interpreter during the preliminary investigations. There was nothing to show that the commonwealth knew anything about the alleged escaping witness, until Eorgacs went on the stand, and as this point was not made at the trial, the commonwealth was not bound to take any notice of it.

The remaining assignments are to separated quotations from the charge and do not require discussion.

The judgment is affirmed and the record remitted for purpose of execution.


text:
    Frick v. United Firemen’s Insurance Company, Appellant.

      Insurance — Fire Insurance — Inventory—Statement of loss.

    Where a policy of fire insurance provides that if a fire occurs, the insured shall give the company immediate notice in writing, protect the property, “ make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon, and, within sixty days after the fire .... render a statement to the company, signed and sworn to by said insured, stating .... the cash value of each item thereof, and the amount of loss thereon,” the insured is not required to furnish the inventory to the insurance company, but if he furnishes a proper statement of loss, signed and sworn to, he will have sufficiently complied with the provision of the policy.
    In such a case the insured delivered within the proper time a statement of loss signed and sworn to. In the proof of loss, it was stated that “the statement of loss” shows “the cash value of the property insured by you, and for which claim for loss is hereby made .... as is shown in statement of loss; hereto attached.” The statement of loss showed the items destroyed, and the price of each item. The word “price” instead of “cash value” was put at the head of the column in which the value of each item was given. In a letter the insured advised the company that: “Our proofs of loss are filed upon the basis of actual cash market value at time of fire.” Held, that the statement of loss was sufficient.

      Insurance — Fire insurance — Whisky—Measure of damages.

    A policy insuring whisky against loss by fire provided as follows: “This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quantity.” It appeared that the whisky insured was all made by the same company, but was of different ages. Held, (1) that the cash value of the whisky could not be determined by taking together, the cost of material, the expense of manufacturing the whisky, the charges of carrying it in bond, insurance, and interest on the amount invested; (2) that the “cash value” within the meaning of the policy and as applicable to whisky, was the market value in the wholesale liquor market at the time the whisky was destroyed.
    A contract of insurance must have a reasonable interpretation, such as was probably in the contemplation of the parties when it was made, and when the words of a policy are, without violence, susceptible of two interpretations, that which will sustain a claim to the indemnity it was the object of the assured to obtain, should be preferred.
    Standard Sewing Machine Co. v. Royal Ins. Co., 201 Pa. 645, distinguished.
    Argued May 13, 1907.
    Appeal, No. 21, Jan. T., 1907, by defendant, from judgment of C. P. Fayette Go., June T., 1906, No. 6, on verdict for plaintiffs in case of Henry O. Frick, Andrew W. Mellon and Richard B. Mellon, copartners, trading as A. Overholt & Company, v. The United Firemen’s Insurance Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Umbel, J.
    The facts relating to the proof of loss are stated in the opinion of the Supreme Court.

      At the trial the plaintiffs made the following offer :
    Counsel for plaintiffs offer to prove by the witness on the stand — to be followed by other testimony and competent proof — what was the actual cash value of the whisky destroyed at the time of the fire. This to be followed by proof that it was impossible for the plaintiffs to replace the same by purchase on the market with material of like kind and quality for less than the amount which the witnesses will testify was the actual cash value of the property destroyed.
    Counsel for defendants object to the offer as incompetent and irrelevant for the reasons following: That the policies provide that the respective companies shall not be liable beyond the actual cash value thereof at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deductions for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.
    Objection overruled, with exception for the defendants. [9]
    Mr. Smith : I desire counsel to make an offer of what they propose to prove by the witness on the stand.
    Counsel for the defendant offer to prove by this witness,
    1. That he is a competent bookkeeper and has had experience in bookkeeping relating to the liquor or whisky business.
    2. That he has made an examination of plaintiffs’ books with a view of learning what it would cost the plaintiffs in November, 1905, to replace the whisky destroyed with whisky of like kind and quality. 3. That to that end he learned from the books of the plaintiff company the minimum cost of the different lots of whisky destroyed. 4. That the maximum cost of the whisky destroyed, with all the charges and ex7 penses incident thereto, up to the time of the fire on November 19, 1905, was much less per gallon than the prices claimed by the plaintiff. 5. This for the purpose of showing Avhat it Avould have cost the plaintiffs to replace the whisky destroyed on November 19, 1905.
    Objected to by counsel for plaintiffs as generally incompetent and irrelevant.
    The Court: Being of the opinion that the principle as found in the ease of SeAving Machine Company v. Insurance Company, 201 Pa. 645, does not apply under the facts as here established and the proofs submitted, and being further of the opinion that the principle declared in Mitchell v. Ins. Co., 92 Mich. 594 (52 N. W. Repr. 1017), and the cases reported or cited as being reported in Hartford Fire Ins. Co. v. Cannon, 19 Texas Civ. App. 305 (46 S. W. Repr. 851), do apply and coincide with our view regarding the matter, we will sustain the objection, with an exception for the defendants. [10]
    Counsel for defendants offer to prove by the witness on the stand, and other witnesses, that during an investigation attempted by the defendants as to what it would cost the insured to replace the whisky destroyed by the fire on November 19, 1905, the witness as a representative of defendant companies visited the office of the plaintiff company and there met the general manager of the plaintiff company’s business, who admitted that the sum of the loss claimed by him for the plaintiffs, being the sum now claimed in these suits, included at least $30,000 of profits, this for the purpose of showing that the sum now claimed by plaintiffs is greatly in excess of what it would have cost plaintiffs to replace the whisky lost on November 19, 1905.
    Objected to by counsel for plaintiffs as generally incompetent and irrelevant. '
    The Court: We are inclined to think our last ruling covers that question, and we will sustain the objection with an exception for the defendants. [11]
    The court charged in part as follows:
    [The standard then ordinarily is actual cash value which, shall not exceed what it would then cost the insured to repair or replace the property destroyed with material of like kind and quality, and the loss shall be ascertained accordingly. However, under the facts in these cases, considering that the whisky destroyed was of different inspection and of various ages and likewise of different qualities and values affected materially by its age, the principles controlling in the construction of buildings or of machinery are not applicable in these cases.] [4]
    [As we understand the law, and as we instruct you, the actual cash value of the whisky destroyed at the time of the fire is what you are to determine in these cases. The other part of the language quoted regarding the then cost to the insured of manufacturing a like quantity of whisky to the amount destroyed does not apply here. The word “then” in this contention in these policies is an important and a significant term and must be given weight in determining the true intent and meaning of the policies.] [5]
    [The defendants insist that the plaintiffs being manufacturers of the property destroyed, the measure of the damages should be the actual cost to them at the date of the fire of manufacturing a quantity of whisky equal to the amount destroyed, including carrying charges, interest, etc., for the various lengths of time corresponding to the ages of the different inspections of whisky destroyed, which construction in each drops the word “ then ” and construes the policy as intending to give the defendants the benefit of the time it would take the insured to reproduce and age that large quantity of whisky.] [6]
    [In our opinion under the facts in these cases the policy can-^ not be so construed without doing violence to the language employed. Clearly it means what it says, “ what it would then cost the insured to repair or replace it,” and that would be the actual cash value and not what it would cost the plaintiffs to purchase and collect the various kinds of materials necessary to make so large an amount of whisky and then manufacture it at their own distillery and await the delay necessarily incident for it to acquire the respective ages of the whisky destroyed; which, in our opinion, practically and legally makes it impossible to apply that part of the provisions of the policy quoted regarding “ what it would then cost the insured to repair or replace the property destroyed with material of like kind and quality,” to the facts in these cases from the view point of the cost of manufacturing or reproducing the property destroyed.] [7]
    [As we have already indicated, we do not think that the plaintiffs would be required or should be required after the destruction of property such as this to purchase and collect together the necessary materials and manufacture the quantity of whisky destroyed and then be obliged to wait the time necessarily required incident to the máturing of the goods manufactured to make them “ of like kind and quality,” such as were destroyed by the fire, and that, we think, is an important consideration as to why you should take the actual cash value as the measure of damages in these cases.] [8]
    Defendant presented these points:
    1. The plaintiffs having failed prior to the bringing of these suits to furnish to the defendants respectively a statement signed and sworn toby the insured, stating, inter alia, the cash valúe of each item of property claimed to have been destroyed by the fire in question, these actions are premature and the plaintiffs cannot recover. Answer : Refused. [1]
    2. The policy provides that if a fire occur the insured shall “. . . . make a complete inventory of the property, stating the quantity and cost of each article and the amount claimed thereon.” The uncontradicted evidence shows that such an inventory was not made or exhibited by the plaintiffs to the defendants, and upon their attention being called thereto and a request made to furnish a statement of the cost, the plaintiffs did not render to the defendants the required statement, and these actions are, therefore, premature and the verdict should be for the defendant in each case. Answer: Refused. [2]
    3. Under the law and all the evidence the verdict should be for the defendant in each case. Answer: Refused. [3]
    Yerdict and judgment for plaintiffs for $2,606.67. Defendants appealed.

      Errors assigned, amongst others were (1-8) above instructions, quoting them; (9-11) rulings on evidence, quoting the bill of exceptions.

      W. K. Jennings and S. 8. Meha/rd, with them T>. O. Jennvngs¡ for appellants.
    The plaintiffs having been notified that the proofs were incomplete and unsatisfactory and having declined to amend the inventory or proofs, the action was premature: Langan v. Ins. Co., 162 Pa. 357.
    The court erred as to the measure of damages: Standard Sewing Machine Co. v. Royal Ins. Co., 201 Pa. 645; Warmcastle v. Scottish Union & Nat. Ins. Co., 201 Pa. 302; Kountz v. Kirpatrick, 72 Pa. 376; Theiss v. Weiss, 166 Pa. 9.

      William Watson Smith, of Gordon c& Smith, with him John

      S. Christy, for appellees.
    Plaintiffs are entitled to recover the actual cash value of the whisky destroyed: Mitchell v. St. Paul German Fire Ins. Co., 92 Mich. 594 (52 N. W. Repr. 1017); Hartford Fire Ins. Co. v. Cannon, 19 Texas Civil App. 305 (46 S. W. Repr. 851).
    The proofs of loss plainly show the cash value of each item of the property destroyed. ■ ''
    Plaintiffs were not obliged under the term of the policies to furnish to defendants an inventory stating the cost of the goods destroyed.
    May 27, 1907:
   Opinion by

Mr. Justice Mestrezat,

As stated by the learned counsel for the appellant, the assignments of error properly before us raise but two questions: (1) Does the policy of insurance require the plaintiffs to furnish the defendant company an inventory of the property destroyed, stating the quantity and cost of each article and the amount claimed thereon: and (2) did the court err as to the measure of damages ?

1. The clause in the policy which the defendant company claims requires the plaintiffs to furnish such inventory is the following: “If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating .... the cash value of each item thereof and the amount of loss thereon,” etc. It will be observed that this clause imposes upon the plaintiffs the duty, inter alia, of making an inventory, but does not require the insured to furnish it to the insurance company. It simply says the insured shall “make a complete inventory.” After he has made the inventory, the policy requires, as will be noticed, that he, “ within sixty days after the fire, unless such time is extended, in writing by this company, shall render a statement to this company, signed and sworn to, by said insured, stating .... the cash value of each item thereof and the amount of loss thereon,” etc. The plaintiffs complied with this provision of the policy in their proof of loss which was “ signed and sworn to by the insured,” and delivered to the defendant company as required by the policy. That shows “ the cash value of the property insured by you and for which claim for loss is hereby made .... as is shown in ‘ Statement of Loss ’ hereto attached.” The statement attached to the proof of loss shows the date of manufacturing the whisky, the number of gallons destroyed, the price per gallon, and the aggregate loss. It is true, that in this statement the word “price” instead of “cash value” is put at the head of the column in which the value per gallon of the whisky is given, but the word is manifestly used as meaning the same as “ cash value,” and the defendant company must have understood its meaning to be such. This is apparent, not only from the fact that in the proof of loss the value given in the “Statement of Loss” is declared to be the “cash value,” but also from the two letters written by the plaintiffs to the defendant company in January, 1906, in which the defendant is advised that “ our proofs of loss are filed upon the basis of actual cash market value at time of fire, as called for by the policies.” The proof of loss was the statement required by the policy and it was entirely sufficient. In addition to the information contained in the statement, the plaintiffs invited the defendant company to inspect their books, which would have disclosed every fact with regard to the whisky which was in the possession of the plaintiffs. If the defendant did not avail itself of the invitation and obtain the additional information in the possession of the plaintiffs, the latter are not at fault, and it is no reason for defeating the plaintiffs’ claim in this action.

2. The policy contains the following provision : “ This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quantity.” This provision of the contract furnishes the measure of damages and raises the important question in the case. The policy is the contract between the parties, and must be given an interpretation which will carry out their intention. If the language of the policy is doubtful or obscure, it will be construed most unfavorable to the insurer : Merrick v. Germania Fire Insurance Co., 54 Pa. 277. A contract of insurance must have a reasonable interpretation, such as was probably in the contemplation of the parties when it was made ; and when the words of a policy are, without violence, susceptible of two interpretations, that which will sustain a claim to the indemnity it was the object of the assured to obtain should be preferred : Humphreys v. National Benefit Association, 139 Pa. 214.

The property covered by this policy is of a peculiar character, but the intention of both parties was to protect the insured against its loss by fire, and the policy must be construed so as to effect that purpose. It is not like a machine, a house, or property of that character. There is no difficulty whatever in ascertaining the cost of repairing or replacing such property as of the date it is injured or destroyed. Proof is readily accessible which will enable the insured to establish “ what it would then cost to repair or replace the same with material of like kind and quantity.” A moment’s reflection will show that this is not true of whisky which has been destroyed. From the uncontradicted evidence it appears, and, therefore, it must be taken as a fact, that the age. of whisky materially affects its character and qualify, and hence is an important factor in ascertaining or determining its value. It also appears in the case that this, like other brands of whisky, has a distinctive character and quality of its own, and that no brand of whisky can be substituted in the market for another brand.

Now, under the clause of the policy, above quoted, how should the plaintiffs’ loss be measured ? The whisky insured by the several policies issued to the plaintiffs was of different inspections. Theije were 6,910 barrels destroyed. The most of it was manufactured about six months prior to the fire; some of in 1903 and 1904, and some in 1898 and 1899. The defendant company is not liable beyond the actual “ cash value.” What is that value ? That is fixed by the uncontradicted testimony of a number of witnesses. It ranges’ from fifty cents to $1.05 per gallon, according to its age. This was the cash value of the A. Overholt & Company whisky in the wholesale liquor market on November 19, 1905, when it was destroyed. As appears in the evidence there was whisky of that brand of the different inspections on the market at that date. It must be conceded, we think, that if the cash value of the whisky at the date of the loss is the only practical standard for measuring the plaintiffs’ damages, the court and jury must accept the value fixed by the plaintiffs’ witnesses. It will be observed, however, that the policy provides that the cash value of the whisky “ shall in no case exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.” The defendant company contends that the loss could not be estimated at more than it would have cost the insured to replace the whisky. In other words, the position of the defendants is, that under this provision of the contract the plaintiffs’ right of recovery is limited to the cost of material, the expense of manufacturing the whisky, the charges for carrying it in bond, insurance and interest on the amount invested in the whisky. This provision of the policy is simply a limitation on the former provision, which fixes the loss at the cash value of the property. In estimating the loss the insured is entitled to the cash value of the property destroyed, provided it does not exceed what it would cost to replace it with material of like kind and quality at the date it was consumed. How shall this cost be ascertained ? It is doubtless true that the cost of manufacturing a gallon of whisky is easily ascertained. But that does not meet the requirements of this case. The .plaintiffs are not restricted to the simple cost of reproducing the whisky. They are entitled to have the whisky which was destroyed replaced as of the date of the loss with the same material of like kind and quality. The whisky consumed by the fire was, as we have seen, of different inspections. It had age which gave it character and quality. It was of the A. Overholt & Company brand, dissimilar in character and quality from other brands, and for which there is no substitute. The cost of whisky of like character, quality and age is the measure of the plaintiffs’ right of recovery. It is manifest that this cost cannot be ascertained by simply taking into consideration the cost of the elements suggested by the learned counsel for the defendant company. It omits from the calculation the effect which age has on that particular brand of whisky, which is a most important factor in determining its cost. Nor can any witness, as is apparent, definitely estimate what the age of each of the several inspections in this case will add to the actual cost of the material entering into the particular brand of whisky. It is an important element entering into its value, but the precise extent to which its value is increased cannot be fixed by testimony. There is, therefore, but one way to ascertain the cost of replacing the whisky at the date it was destroyed, considering the brand, character, quality and age of the whisky, and that is to ascertain by competent evidence its actual- cash value on the day of the fire. By that method of computing the cost the whisky destroyed will be replaced “ with material of like kind and quality ” as of the date it was consumed, and that is, therefore, the measure of the plaintiffs’ damages.

The rule adopted in ascertaining the cost of replacing the insured property in Standard Sewing Machine Company v. Royal Insurance Company, 201 Pa. 645, is not applicable here for the reasons above stated. To enforce it under the circumstances of this case would deprive the plaintiffs of the protection against loss of their property by fire which the policy stipulates. In the sewing machine case there was no difficulty in applying the rule. Here, owing to the peculiar character of the property insured, the cost of replacing it must be determined by its value at the date of the loss.

The judgment of the court below is affirmed.


text:
    Frick v. Svea Fire & Life Insurance Company. Frick v. British America Assurance Company. Frick v. German American Insurance Company. Frick v. Phœnix Insurance Company. Frick v. Niagara Fire Insurance Company. Frick v. London & Lancashire Fire Insurance Company. Frick v. Orient Insurance Company. Frick v. Providence Washington Insurance Company. Frick v. Hamburg Bremen Fire Insurance Company. Frick v. Commercial Union Assurance Company. Frick v. North German Fire Insurance Company. Frick v. London Assurance Company. Frick v. Concordia Fire Insurance Company. Frick v. Sun Insurance Office. Frick v. Prussian National Insurance Company. Frick v. St. Paul & Marine Insurance Company. Frick v. Standard Fire Insurance Company. Frick v. Federal Insurance Company. Frick v. Assurance Company of America. Frick v. Star Insurance Company. Frick v. Michigan Fire & Marine Insurance Company. Frick v. German Alliance Insurance Company. Frick v. Rochester German Insurance Company, Appellants.
    May 27, 1907:
   Opinion by

Mr. Justice Mestrezat,

For the reasons given in the opinion handed down herewith in the case of Henry C. Frick and others against the United Firemen’s Insurance Company, No. 21, January Term, 1907, 218 Pa. 409, the judgment of the court below is affirmed.


author: Per Curiam,

text:
    Johnson v. Capital Fire Insurance Company, Appellant.

      Trial — Charge—Failure to object — Inadvertent error — Harmless error — - Insurance.

    In an action on a policy of fire insurance it appeared that the limit of the defendant's liability under the terms of the insurance policy was the actual cash value of the building insured, not in any event to exceed “what it would cost the insured to repair or replace the same with materials of like kind and quality.” At the trial the court used the word “restore” instead of “repair” in the charge, but the trial judge’s attention was not called to the mistake at the time. Held, that the mistake was an inadvertent error which would have been corrected, and that it was not a ground for reversal.
    A party may not sit silent and take his chances of a verdict, and then if it is adverse complain of a matter which if an error would have been immediately rectified and made harmless.
    Argued May 13, 1907.
    Appeal, No. 56, Jan. T., 1907, by defendant, from judgment of C. P. Fayette Co., June T., 1906, No. 394, on verdict for plaintiff in. case of Daniel J. Johnson and Charles H. Gorley v. The Capital Fire Insurance Company of Concord, N. II.
    Before Fell, Brown, Mes.trezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Umbel, J.
    At the trial it appeared that under the terms of the policy the defendant’s liability was limited to the actual cash value of the building insured, not in any event to exceed “ what it would cost the insured to repair or replace the same with materials of like kind and quality.”
    The court charged in part as follows:
    [On the part of the plaintiff a number of witnesses have been called to give you their opinion and judgment as to what was necessary to be done and what it would cost to restore and replace the building in as good condition as it was before the fire.] [2]
    [Mr. Sembower told you that he had made a very careful examination of the character and quality and put it in as good condition as it was before the fire.] [3]

      . [Tbe walls might be safe. That, however, does not comply with the requirements or the obligation on the part of these defendant companies, to restore them in the condition they.were before the fire or make them of materials of equal character or quality and to be of equal cash value.] [4]
    Yerdict and judgment for plaintiff for $1,901.10. Defendant appealed.

      Errors assigned among others were (2-4) above instructions, quoting them.

      W. K. Jennings, with him £>. O. Jennings and Jones <& Henderson, for appellant.

      W. J. Sturgis, with him J. O. Work and Robinson do McKean, for appellees.
    May 27 1907:
   Per Curiam,

The limit of the defendant’s liability under the terms of the insurance policy was the actual cash, value of the building insured, not in any event to exceed “ What it would cost the insured to repair or replace the same with materials of like kind and quality.” It is urged that the use of the word “ restore ” instead of the word “ repair ” in the charge may have niisled the jury as to the measure of damages. If counsel thought the use of the word was objectionable, they should have called the attention of the court to it at the time. At most it was an inadvertent error which would have been corrected. “ A party may not sit silent and take his chances of a verdict, and then if it is adverse complain of'a matter which if an error would have been immediately rectified and made harmless: ” Commonwealth v. Razmus, 210 Pa. 609. The assignments of error are overruled and the judgment - is affirmed.'


text:
    Johnson, Appellant, v. Royal Insurance Company of Liverpool.

      Judgment — Setting aside judgment — Record—Opening judgment.

    A judgment can be set aside or struck off only on the ground of irregularity or invalidity appearing on the face of the record. The court may for sufficient cause under its equitable powers open a judgment, and let the defendant into a defense. The two proceedings are entirely different.
    No court has power to strike off a judgment regular on its face; and no facts dehors the record will justify a court in setting aside, or striking off a judgment.

      Judgment — Striking off judgment — Judgment for want of a plea — Acts of May 25,1887, P. L. 271, and April 22,1889, P. L. 41.
    Where a rule of court adopted under the authority of the Act of April 22, 1889, P. L. 41, provides that a judgment may be entered in an action of assumpsit against a defendant who has failed to plead within fifteen days after the return day, a judgment entered for such default cannot be struck off. The rule of court in no way conflicts with the procedure Act of May 25,, 1887, P. L. 271, which merely provides a system of practice regulating the filing of affidavits of defense, except that it abolishes special pleading.
    It is error to contend that the defendant has no right to file a plea until the plaintiff has had an opportunity to signify his election as to the affidavit of defense, and that until that time the plaintiff has no right to take judgment in default of the plea.
    Argued May 13, 1907.
    Appeal, No. 139, Jan. T., 1907, by plaintiffs, from order of C. P. Fayette Co., Dec. T., 1906, No. 325, making absolute rule to strike off judgment in case of Daniel J. Johnson and Charles EL. Gorley v. Royal Insurance Company of Liverpool.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Rule to strike off judgment.
    The facts appear by the opinion of the Supreme Court.

      W. J. Sturgis, with him J. G. Worlc, for appellants.
    No court has power to strike off a judgment regular on its face: O’Hara v. Baum, 82 Pa. 416; Breden v. Gilliland, 67 Pa. 34; North v. Yorke, 174 Pa. 349; Muir v. Ins. Co., 203 Pa. 338.

      A judgment entered by default for want of a plea, in an action of covenant, is a final judgment: Friese v. Insurance Co., 107 Pa. 134.

      W K. Jennings, with, him D. G. Jennings and Jones & Henderson, for appellee.
    The rule of court is in conflict with the procedure act of May 25, 1887: Marlin v. Waters, 127 Pa. 177.
    The Supreme Court has held in several cases that the statement may be filed before the return day, and that fifteen days after notice judgment may be taken for want of an affidavit of defense if the return day has intervened : Marlin v. Waters, 127 Pa. 177.
    We contend that no action of the defendant, and no rule of court, can deprive the plaintiff of his statutory right, first, to secure an affidavit of defense ; second, to determine in his own mind as to its sufficiency ; third, to either take a rule for judgment for want of a sufficient affidavit of defense, or to rule the defendant to plead : Bordentown Banking Co. v. Restein, 214 Pa. 30; O’Neal v. Rupp, 22 Pa. 395; Duncan v. Bell, 28 Pa. 516.
    May 27, 1907:
   Opinion bt

Mr. Justice Mestrezat,

This is an action of assumpsit, brought in the court of common pleas of Fayette county. The writ was issued on November 13, 1906, and was made returnable on the first Monday of the following December, being the third day of that month. It was served on November 19. On November 30, counsel for defendant entered an appearance of record. The plaintiffs filed a statement on December 1, two days before the return day of the writ. On December 19, sixteen days after the return day of the writ, judgment was entered in default of a plea on praecipe of plaintiffs’ counsel, setting forth the nature of the default and the amount for which judgment was to be entered. The defendant company presented a petition on December 21, praying the court to set aside and strike off the judgment entered for want of a plea, whereupon a rule was granted upon the plaintiffs to show cause why the prayer of the petition should not be granted. On February 27, 1907, the court made absolute the rule and struck the judgment from the record. The plaintiffs have appealed.

It is well settled, and it needs no citation of authorities to sustain the proposition, that a judgment can be set aside or struck off only on the ground of irregularity or invalidity appearing on the face of the record. The court may for sufficient cause under its equitable powers open a judgment and let the defendant into a defense. But, as said by Sharswood, J., in Breden v. Gilliland, 67 Pa. 34, “ Opening a judgment and striking it off are two entirely different things. No court has power to strike off a judgment regular on its face.”. No facts dehors the record will justify a court in setting aside or striking off a judgment. The action of the court below, therefore, must have been based on some irregularity or invalidity which the learned judge thought appeared on the face of the record.

No opinion was filed by the court in making absolute the rule to strike off the judgment. The principal reason assigned by the defendant company in its petition for the rule, and the one it relies upon here to sustain the action of the court, is that the rule of court under which the judgment was taken is in conflict with the procedure Act of May 25, 1887, P. L. 271, 2 Purd. (12th ed.) 1728. We may say in passing that the other reasons assigned in the petition for striking off the judgment are without merit. The only question, therefore, before us is whether the rule of court under which the judgment by default was entered against the defendant is in conflict with the act of 1887.

By the Act of April 22, 1889, P. L. 412, Purd. (12th ed.) 1730, it was enacted : “ The courts of this commonwealth may, by rule or standing order, authorize the prothonotary to enter judgment upon praecipe for want of an appearance, for want of a declaration or plea, or for want of an affidavit of defense, and to enter judgment thereon with the same effect as if moved for in open court.” By virtue of this authority, the court of common pleas of Fayette county in 1894, adopted rule 24, sections 3, 4 and 10 of which are as follows:

Sec. 3. In actions, personal and real, except ejectments, if the plaintiff has filed a declaration before the return day he may have judgment against the defendant, in default of appearance, at any time after the return day and ten days service of the writ.
“ Sec. 4. When defendant has appeared, and a declaration has been filed before the return day, the defendant must without rule plead within fifteen days, else the plaintiff may have judgment at any time after the expiration of the fifteen days, for want of a plea: Provided, that the court, if in session, or a law judge in vacation, may, upon sufficient reasons shown, extend the time.
“Sec. 10. Judgments by default shall be entered by the prothonotary on praecipe of the party or his attorney setting forth the nature of the default and the amount for which judgment is to be entered, which praecipe shall be filed.”

Recurring to the facts of this case, it will be seen that the judgment for want of a plea was entered against the defendant company strictly in accordance with the rule of court adopted by the common pleas in pursuance of the authority conferred by the act of 1889. The writ was issued twenty days and served fourteen days, before the return day, an appearance was entered of record by counsel for the defendant before the return day, and a statement of the plaintiffs’ cause of action was filed before the return day. The judgment for want of a plea was entered sixteen days after the return day. ITnder these facts, disclosed by the record, the judgment taken for want of a plea was clearly regular upon its face. It is, therefore, manifest that the learned court was in error in striking the judgment from the record unless, as claimed by the defendant company, the rule of court contravened the act of 1887.

It is apparent that the learned counsel for the defendant have confused the functions of a plea and those of an affidavit of defense. This has led them into error in this case. The functions of an affidavit of defense and of a plea are wholly different. It will be sufficient to quote what has been recently said on the subject by the present Chief Justice in Muir v. Preferred Accident Ins. Co., 203 Pa. 338. “ An affidavit of defense in Pennsylvania practice,” says the Chief Justice, “ is no part of the pleadings, and has an entirely different function. It is a mere step or incident of the proceedings x-equired in order to prevent a summary judgment by default. When it has served that purpose its function is ended, unless further enlarged by express rule of court. ... Its sole use is to prevent a summary judgment bjr default under the statute, and its function in this respect is precisely analogous to that of an appearance required to be entered after service of a writ in order to avoid a judgment by default for want of it. The wholly different function of a plea is to raise and make certain the issue on which the controversy between the parties is to be fo'ught out. With this the affidavit of defense has nothing to do, and it may be entirely disregarded and the case put at issue' on other grounds.”

The procedure act of 1887 provides a system of practice regulating the filing of affidavits of defense and the entry of judgment against the defendant in default of his filing an affidavit. But in the case at bar we have no concern whatever with the procedure act so far as it provides for filing an affidavit of defense or for entering judgment for want of one. We have only to do'with the act. so far as its provisions affect the pleadings in the'case. It abolishes special pleading, but directs what pleas shall be entered in actions of assumpsit and trespass. It provides that the defendant shall plead in fifteen days after the return day. Except in so far as the act has thus regulated the pleadings in assumpsit and trespass, they remain as they Avere at'the time of the enactment of the statute. The well-established practice in the state at the time of the passage of the act authorized- the plaintiff to enter judgment for want of an-appearance or plea, provided the Avrit had been duly issued and served and the declaration had been filed. The act of 1887 did not change the practice as it then existed, except in the manner pointed out above. It in río Avay or manner withdrew from the courts the power to enter judgment in default of an appearance or of a plea. It fixed fifteen days after the return day as the time in which the plea should be filed, and of course, no default could be entered before the expiration of that time. But the act does not prevent the plaintiff from entering judgment for Avant of an appearance under the Act of June 13, 1836, P. L. 568, nor deprive the plaintiff of his right to judgment for want of a plea in accordance Avith the established practice of the courts at the date of the passage of the act.

The learned counsel for the defendant are in error in their contention that the defendant has no right to file a plea until the plaintiff has had an opportunity to signify his election as to the affidavit of defense, and that until that time the plaintiff has no right to take judgment in default of a plea. As pointed out above, this contention fails to recognize the distinction between the practice as to affidavits of defense and as to pleading. The parties must comply with the rules governing the practice both as to the affidavit and as to the plea, and if they fail, judgment may be entered for the default. The affidavit is no part of the pleadings, while a plea is a part of the pleadings, and is the only way to raise an issue between the parties which is to be submitted to and decided by a court and jury. The defendant is required to file an affidavit of defense in an action of assumpsit and judgment may be entered against him if he fail to do so, but the plaintiff may disregard the affidavit of defense and await a trial by jury after the case has been put at issue by a proper plea. He may prefer to submit the case to a jury, and the act of 1887 does not prevent him from doing so. It is wholly discretionary with him whether he will take a summary judgment in default of an affidavit of defense, or whether he, after a plea has been entered, will go to trial before a jury.

There can be no doubt about the authority of the common pleas to make the rule under which this judgment was entered. It is expressly conferred by the act of 1889, and the rule is strictly in accordance with the act.

For the reasons stated, the order of the court below of February 27, 1907, making absolute the rule to show cause why the judgment entered for want of a plea should not be set aside and stricken from the record, is reversed at the costs of the defendant company, and the judgment in favor of the plaintiffs and against the defendant.for want of a plea is reinstated.


text:
    Johnson, Appellant, v. Agricultural Insurance Company of Watertown, New York. German Insurance Company of Freeport. Providence Washington Insurance Company. Northern Assurance Company of London, England. Citizens Insurance Company of Missouri. Aachen & Munich Fire Insurance Company of Aix-La-Chapelle, Germany. Saint Paul Fire & Marine Insurance Company.
    May 27, 1907:
   Opinion by

Mr. Justice Mestrezat,

For the reasons given in the opinion handed down herewith in the case of Daniel J. Johnson and Charles H. Gorley v. Royal Insurance Company of Liverpool, No. 139, January Term, 1907, 218 Pa. 423, the order of the court below of February 27, 1907, making absolute the rule to show cause why the judgment entered for want of a plea should not be set aside and stricken from the record, is reversed at the costs of the defendant company, and the judgment in favor of the plaintiffs and against the defendant for want of a plea is reinstated.