author: Mr. Justice Elkin,

text:
    Schuldice, Appellant, v. Pittsburg.

      Municipalities — Equity—Injunction—Increase of indebtedness — Two per cent, limit — Refunding bonds — Assets in sinking fund.

    1. The entire indebtedness which may be created by a municipality under the constitution is limited to seven per centum of the assessed value of the taxable property, but acting within this general limitation, the municipal authorities may create new indebtedness, or increase old indebtedness thus created, not to exceed two per centum, without the assent of the electors. In computing the borrowing capacity of two per centum not requiring the assent of the electors all indebtedness existing prior to the adoption of the state constitution of 1874 should be excluded, and this exclusion applies to refunding bonds issued since that time to take the place of bonds outstanding when the constitution went into effect and also to both bonds and cash paid into municipal sinking funds for specific purposes under statutory authority.

      Equity — Injunction—Municipalities—Increase of indebtedness— Street improvements.

    2. A decree refusing to declare null and void city ordinances providing for the widening of certain streets will not be disturbed on appeal, where it appears that the pleadings on which the decree was based did not furnish sufficient data to warrant the granting of such relief.
    Mr. Justice Mestrezat dissents.
    Argued Oct. 18, 1911.
    Appeal, No. 111,
    Oct. T., 1911, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1911, No. 45, dismissing bill in equity in case of Charles A. Schuldice v. The City of Pittsburg, William A. Magee, Mayor, and Eustace S. Morrow, City Controller.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Taxpayer’s bill to enjoin a city from negotiating a loan without the assent of the electors, and to have declared void ordinances providing for the widening of certain city streets.
    From the bill and answer Frazer, P. J., found the following facts:
    1. Plaintiff is a resident and taxpayer of the city of Pittsburg.

      2. The city of Pittsburg is a city of the second class under the laws of this commonwealth. William A. Magee is the mayor, and. Eustace S. Morrow is the city controller thereof.
    3. The assessed value of the taxable property of the city of Pittsburg is $751,226,965, and the amount of the indebtedness of the city created and incurred without the express assent of the electors as provided by law, is $19,664,641.05.
    4. By an ordinance duly passed by the select and common councils of the city and approved by the mayor, the proper officers of the city are authorized and directed to issue and sell bonds of the city, amounting in the aggregate to $81,000, for the purpose of providing funds to purchase water mains belonging to the Monongahela Water Company, and now laid in that portion of the city which was formerly known as the boroughs of Espíen and Elliott, and also for the purchase of water to be supplied to consumers in territory annexed to the city, now supplied by the South Pittsburg Water Company.
    5. By ordinances of the city of Pittsburg, duly passed by select and common councils and approved by the mayor the widening of Diamond street from Smithfield street to Gala alley, of Oliver avenue from Smithfield street to Grant street, and of Cherry way from Fifth avenue to Sixth avenue, was authorized, each of the ordinances authorizing the improvement of these highways providing "that the costs, damages and expenses occasioned thereby, and the damages caused by the change of grade of said public highways be assessed against and collected from the properties specially benefited thereby.”
    6. The highways referred to in the previous paragraph are located in the business center of the downtown district of the city of Pittsburg, where the value of real estate is greater than in any other locality of the city.
    7. The damage to property abutting on these highways, resulting from land taken and change of grade, is estimated at $2,216,000 in the bill. To what extent that sum will be offset by benefits collected by the city is problematical. The defendants, however, in their answer aver that the ultimate liability of the city will not exceed the sum of $951,000 on account of the proposed improvements.
    8. Included in the indebtedness of the city of Pittsburg of $19,664,641.05, as found in the third finding of facts, are the following items:
    (a) The sum of $382,977.07, being the preliminary estimate of the cost of grading, paving and curbing certain public highways and constructing certain public sewers. For the purpose of completing those improvements contracts have been let. The work, however, is not finished and final estimates have not been made. The ordinances under which these improvements are being made provide that the cost and expenses of the same shall be paid and collected from property benefited thereby.
    (b) The sum of $2,183,201.87, being the amount of a legal indebtedness of the city, evidenced by certain bonds known as the “Railroad Compromise Bonds.” The indebtedness for which these bonds were issued was incurred, and the bonds issued, prior to the adoption of the present constitution.
    (c) The sum of $121,000, evidenced by certain funded debt bonds, bearing date of January 1, 1872, and payable January 1, 1912, which indebtedness was incurred, and the bonds therefor issued, prior to the adoption of the present constitution.
    (d) The sum of $5,214,700, evidenced by refunding bonds as follows:
    Refunding bonds, dated June 1,1882, maturing June 1, 1912, . . . . $ 77,000
    Refunding bonds, dated June 1,1883, maturing June 1, 1913, .... 1,403,000
    Refunding bonds, dated Dec. 1,1885, maturing Dec. 1, 1915, .... 3,734,700
    These refunding bonds were issued by the city without the consent of the electors, in pursuance of the provisions. of an act of assembly entitled: “An Act authorizing cities of the second class to issue bonds to an amount equal to the street bonds and temporary loan bonds now outstanding, not exceeding $6,000,000, for the purpose of retiring or paying temporary loan bonds and street bonds,” approved May 9, 1879, P. L. 49. Of these bonds $2,933,500 were issued for the purpose of extinguishing and paying off certain prior bonds issued by the city for work done under contracts made for street improvements previous to the adoption of the present constitution; and $2,281,200 were issued for the purpose of extinguishing and retiring certain prior bonds issued by the city after January 1,1874, for the improvement of certain streets. The indebtedness for which these bonds were issued was created under the provisions of an act of the general assembly, entitled: “An Act to provide for the improvement of Penn Avenue, and other avenues and streets in the City of Pittsburg,” approved April 2, 1870, P. L. 796. Of the bonds refunded $2,134,600 were actually issued prior to January 1, 1874, for streets improved prior to that date, and the remainder were issued for improvements made subsequent to that date or immediately preceding it. The indebtedness created by issuing bonds under the Penn avenue act, for improvements made both before and after January 1, 1874, was refunded by the refunding bonds bearing date June 1, 1882, June 1, 1883, and December 1, 1885, referred to above. The refunding bonds are all of like form and character, and the indebtedness created by the city under the provisions of the Penn avenue act, whether created before or after January 1,1874, was refunded indiscriminately by the issues of the refunding bonds herein referred to, so that the identity of the original issues was obliterated.
    (e) Bonds to the amount of $1,566,400 purchased by the sinking fund commission, under the provisions of the Act of March 7, 1901, P. L. 20, and now held by that commission, which bonds were issued by the city since January 1, 1874, without the consent of the electors.
    (f) Defendants further contend that the following items should be deducted from the aggregate indebtedness: (a) cash in the hands of the sinking fund commission for the redemption of bonds issued without the consent of the electors, amounting to $865,938.92; (b) the sum of $576,802.31, outstanding special assessments made against property benefited by municipal improvements. Of this latter sum $381,291.31 is due the city under special assessments, lawfully made and municipal liens already filed for the recovery of the same, but which still remain open and unpaid; and $195,511 consists of assessments lawfully made against properties benefited by improvements, which still remain open and unpaid, but where liens have not as yet been filed, the time in which the same are required by law to be filed not having expired. These assessments can be used for no other purpose than in the payment of the amounts due contractors for the improvements. .
    The court dismissed the bill.

      Error assigned among others was the decree of the court.

      Guy D. Wallace, for appellant.
    — “Indebtedness” is to be taken in its ordinary meaning, and as used in the constitution means what the municipality is bound to pay or perform and does not mean the difference between what the municipality is bound to pay and the value of any assets it may own, or any claim it may have against other parties: Lake County v. Rollins, 130 U. S. 662 (9 Sup. Ct. Repr. 651); Beard v. Hopkinsville, 95 Ky. 239, 44 Am. St. 222; Brooke v. Philadelphia, 162 Pa. 123; Davis v. Braddock Boro., 48 Pitts. Leg. J. 145; Bank for Savings et al. v. Grace et al., 102 N. Y. 313 (7 N. E. Repr. 162); Chicago v. McDonald, 176 Ill. 404 (52 N. E. Repr. 982).

      Lee C. Beatty, with him Charles A. O’Brien, for appellees.
    — Bonds issued for the purpose of refunding an indebtedness incurred prior to January 1, 1874, are not to be considered a new debt, in ascertaining the constitutional limit of two per cent: Hirt v. Erie, 200 Pa. 223; Com. v. Councils of Pittsburg, 88 Pa. 66; Houston v. Lancaster, 191 Pa. 143
    The amount of bonds and cash in sinking fund was properly deducted: Brooke v. Philadelphia, 162 Pa. 123; Bruce v. Pittsburg, 166 Pa. 152; Elliott v. Philadelphia, 229 Pa. 215; Kronsbein v. Rochester, 76 N. Y. App. Div. 494 (78 N. Y. Supp. 813).
    January 2, 1912:
   Opinion by

Mr. Justice Elkin,

By this bill a taxpayer sought in the court below to enjoin the city of Pittsburg from negotiating a loan in the sum of $81,000, authorized by ordinance without the assent of the electors for certain specified municipal purposes. He also asked that three separate ordinances providing for the widening of certain streets and avenues be declared null and void, and that the appellees be restrained from taking any further steps to enforce the same. The ground upon which appellant asked the relief prayed for was that the city had already exceeded its borrowing capacity of two per centum as limited by the constitution without the assent of the electors. This raises a question of fact to be determined upon the basis of what the constitution requires. It therefore becomes more a question of law than of fact. The case was heard on bill and answer and the facts must be gathered from the pleadings. The bill avers that the existing indebtedness of the city created without the assent of the electors is $19,664,641.05, from which sum there should be deducted bonds in the sinking fund amounting to $3,816,338.14, leaving the net indebtedness thus incurred $15,848,302.91. It is conceded by both sides that the assessed value of the taxable property as determined by the last preceding assessed valuation thereof is $751,226,965, and that two per centum of the valuation thus ascertained is $15,024,539.30. The answer avers that the total indebtedness of the city incurred without the assent of the electors within the prohibition of the constitution is only $14,043,962.11, and that certain deductions should be made from this amount in order to fix the net indebtedness. The most important question raised by this appeal is whether the total indebtedness claimed by appellant, or that claimed by the city, is the indebtedness upon which the constitutional limitation of two per centum should be based. It is proper to remark here that the total indebtedness of the city is much less than the seven per centum authorized by the constitution, and that no question arises in this case relating to the maximum limit of indebtedness which may be incurred with the consent of the electors. In the present case we have to do solely and alone with the question of the borrowing capacity of the city without the assent of the voters. Appellant contends that the entire indebtedness of the city created without the assent of the electors whether incurred before or since the adoption of the constitution, should be included. The city contends that all indebtedness existing prior to the adoption of the constitution should be excluded, and that this exclusion applies to refunding bonds issued since that time to take place of bonds outstanding when the constitution went into effect. If this were a new question, the argument of the learned counsel for appellant would have great force, but in the light of our own decisions it cannot be regarded as an open question. Section 8, art. 9, of the constitution has frequently been the subject of consideration by this court. In 1875 an interpretation was placed upon this section in Wheeler v. Phila., 77 Pa. 338, in which it was expressly stated that, “the municipal authorities may increase the debt from time to time until two per centum has been added, provided the original debt, with the increase, does not exceed seven per centum.”

The thought emphasized in that case was that the entire indebtedness must be limited to seven per centum of the assessed value of the taxable property, but acting within this general limitation, the municipal authorities may create new indebtedness, or increase old indebtedness thus created, not to exceed two per centum, without the assent of the electors. This was followed by Com. v. Councils of Pittsburg, 88 Pa. 66, in which Mr. Justice Paxson speaking for this court said: “A further objection was made to the bonds, that they were issued in violation of art. IX, sec. 8, of the constitution, limiting the debt of municipal corporations. It is a sufficient answer to this to say, that the section of the constitution referred to does not apply. It is prospective in its operation.” In that case the bonds were issued by municipal authority for an indebtedness of the city created before the constitution went into effect, and it was held that this indebtedness should not be included in determining the borrowing capacity of the city under the two per centum limit without the assent of the electors. In Pike County v. Rowland, 94 Pa. 238, Mr. Justice Trtjnkey discussed at considerable length this section of the constitution and among other things, stated: “Where the debt is less than seven per centum, it was not intended that public officers of municipalities should be deprived of power to make immediate improvements and repairs of public property, which might become necessary, provided they keep within the limit of two per centum of the valuation.” In the appeal of the City of Wilkes-Barre, 109 Pa. 554, in passing upon the exact question here presented, President Judge Rice, then presiding in the court below, deducted from the total outstanding indebtedness, all debts created and in existence at and before the time the constitution went into effect. While other important questions incidental to that controversy were considered and determined, the decree including the findings of the learned court below was affirmed here. In Millerstown Boro. v. Frederick, 114 Pa. 435, Mr. Justice Clank, in discussing this question, said: “The municipality might, under sec. 8 of art. 9 of the constitution, incur a debt, or increase its existing debt to an amount not exceeding two per centum upon the assessed valuation of the taxable property therein (Wheeler v. Philadelphia, 77 Pa. 338) provided that the whole indebtedness would not thereby exceed seven per centum of that valuation.” In other words, the municipal authorities had the power to create a new debt, or to increase an old debt, to the extent of two per centum of the assessed value of the taxable property without the assent of voters, provided, the new debt, or the increase of the old debt, added to the already existing debt, did not in the aggregate exceed seven per centum of the assessed valuation. In Houston v. Lancaster, 191 Pa. 143, the question is again referred to by Mr. Justice Dean who delivered the opinion in that case. It is true the main question there involved did not depend upon the time when the indebtedness was incurred, but. the decision was put squarely upon the ground that the city had borrowed without the assent of voters more than two per centum of the assessed valuation since the constitution went into effect. In that case indebtedness created prior to the adoption of the constitution was not included in computing the two per centum limitation. As late as Hirt v. Erie, 200 Pa. 223, President Judge Walling of the courts of Erie .county, passed upon this precise question, following the decisions hereinbefore referred to, and held that an indebtedness incurred prior to January 1, 1874, is not to be considered a new debt, or an existing indebtedness to be computed in ascertaining the constitutional limit of two per centum beyond which the debt cannot be increased ■except by a -vote of the people. Upon appeal this court sustained the finding of fact and conclusions of law and affirmed the decree entered by the court below. The rule announced in these cases is predicated upon the assumption that the constitution intended to confer upon municipal authorities the power to create new indebtedness after ■its adoption to the extent of two per centum of the assessed valuation without the assent of voters, provided the entire indebtedness including the increase does not exceed seven per centum. This question seems to be conclusively settled, and we think it is too late to undertake to disturb the rule so long established. The learned court below in the case at bar accepted the rule above stated as settled law and deducted from the averments of indebtedness set out in the bill, all indebtedness created and in existence at the time the constitution went into effect. In reaching this conclusion he followed the rule of our own cases and committed no error in so doing.

This appeal raises another important question, and that is, whether bonds issued since the adoption of the constitution for the purpose of refunding an indebtedness created prior to that time, are to be considered as a new debt, or as an increase of an old debt, in ascertaining the constitutional limitation of two per centum upon the assessed valuation. This question was squarely ruled in Hirt v. Erie, supra, and .in Com. v. Pittsburg, supra. To sustain the contention of appellant on this branch of his argument it would be necessary to overrule these cases, and we see nothing in this record to warrant such a conclusion.

It is also contended that bonds and cash in the various sinking funds should not be deducted in ascertaining the net indebtedness. As to bonds so held, the question of the right of the city to deduct has been settled by this court in two well-considered cases: Brooke v. Philadelphia, 162 Pa. 123; Bruce v. Pittsburg, 166 Pa. 152. We see no good reason why moneys paid into a sinking fund for a specific purpose under statutory authority, and which cannot be diverted to any other municipal purpose, should not be deducted in the same manner as bonds so held are allowed to be deducted. The funds referred to in the present case were set apart pursuant to statutory authority and are held for a specific designated purpose.. They must be ' used for the purpose intended and cannot be diverted to general municipal purposes. The funds so held are available.assets of the city, intact and ready to be applied in liquidation of outstanding liabilities, for the payment of which these funds are created. Why should they not be deducted? We think they should as did the court below.

Upon the question of declaring the ordinances set out in the bill null and void, and by reason thereof restraining the officers of the city from taking any further steps to enforce the same, the learned court below sitting as a chancellor, concluded that the pleadings did not furnish sufficient data to warrant the granting of the relief prayed for. The city may withdraw the widening ordinances and at the present time there is no definite information as to what the improvements would cost or what the benefits might be. It is all problematical and at best could only be guess work. Under these circumstances we do not feel warranted in convicting the learned court below of error in refusing to declare the ordinances invalid.

We have thus indicated our views on the controlling questions raised by this appeal. We do not deem it necessary to discuss in detail each item of indebtedness, or of deduction, claimed in the present proceeding. The learned court below has given the case the most careful and intelligent consideration, and reached a conclusion fully justified under the facts and the law.

Decree affirmed at cost of appellant.

Mr. Justice Mestrezat dissents.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    The Safe Deposit & Trust Company of Pittsburg v. Diamond Coal & Coke Company, Appellant.

      Equity — Jurisdiction—Specific performance — Vendor and vendee— Contract for sale of land — Written contract varied by parol — Fraud— Statute of frauds.

    1. The Act of April 22, 1856, P. L. 532, 2 Purd. 1757, known as the statute of frauds, is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy.
    2. Under this statute, a contract for the sale of land must be in writing and both the consideration and the subject of the agreement must be definitely defined. The land must be described in the agreement or by reference to a plan or other matter so that it can be identified and located, and .the description must be sufficiently definite within itself and not require the aid of parol testimony or be left to the future action of the same or other parties.

      3. Where a written executory contract for the sale of land is reformed by parol evidence on the ground of fraud, accident or mistake, the whole contract is, in contemplation of law, reduced to a parol agreement which the statute of frauds declares to be void, and, where there is no estoppel, incapable of being specifically enforced so as to compel the transfer of title to real estate.

      Equity — Fraud, accident or mistake — Contracts—Reforming written contracts — Parol testimony.

    4. Wherever a written instrument fails to express the intention of the parties by reason of fraud, accident or mistake the injured party may invoke the equitable jurisdiction of the court which, by the aid of parol testimony, may reform it; but the court cannot, if the reformed instrument involves a contract for the sale of real estate, specifically enforce it.
    Argued Oct. 19, 1911.
    Appeal, No. 118, Oct. T., 1911, by defendant, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1909, No. 486, in equity sustaining demurrer to cross bill in The Safe Deposit & Trust Company of Pittsburg v. Diamond Coal & Coke Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Cross bill in equity for the reformation of a written agreement for the sale of coal, and for the specific performance of the agreement as reformed. Before Davis, J.
    The Midland Steel Company is the owner of about 903 acres of the Pittsburg or River vein of coal in Washington county adjoining a tract of the same vein of coal owned by the Diamond Coal & Coke Company. On December 2, 1905, the steel company executed and delivered to the Safe Deposit & Trust Company of Pittsburg as trustee, a first mortgage on its coal to secure the payment of a bond issue. The trustee accepted the trust set forth in the mortgage and has since continued to act as such trustee. The entries in the mine of the coal company were in close proximity to the coal of the steel company and the former having threatened to extend its entries into and mine the latter’s coal, the trustee, in October, 1909, filed a bill to restrain the coal company from entering upon, mining or in anywise interfering with, the body of coal covered by the mortgage. The coal company demurred to the bill but the demurrer was overruled and the company required to answer. An answer and replication having been filed, the court, after hearing, dissolved the preliminary injunction, but retained the bill in place “that compliance with the terms of this agreement may be enforced, in case there should be a default on the part of the Diamond Coal & Coke Company.” The agreement referred to in the decree was a contract, dated December 12, 1908, by which the' steel company sold to the coal company 200 acres of its coal, the part of the agreement material to this issue being the description of the coal land sold as follows: “The precise bounds of the coal land, proposed to be sold, cannot be exactly stated, but will be substantially as follows: The same is to be the Pittsburg or River vein of coal, underlying one contiguous block of 200 acres to be carved out of said larger tract, bounded on the East by the line between the Vesta Coal Company and the Steel Company extending from the point of intersection of the lands of the Coal Company, the Vesta Coal Company and the Steel Company at least to the point of intersection of lands of Williams and Dorsey now owned by the Steel Company arid the Vesta Coal Company with the privilege of the Steel Company extending the fine to any portion of the Williams farm; bounded on the North by the line of the lands of the Coal Company at least the full length thereof, with the right of the Steel Company to extend said line along the line of the lands of the Lilley Coal so far as in its discretion it may determine. The Western boundary of said tract shall be the boundary line as decided upon between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company as determined by a proposed trade arrangement between the Steel Company and the Monongahela River Consolidated Coal & Coke Company, and bounded on the South by a straight line so determined in consideration of the other boundaries that the tract shall contain 200 acres. A description of the precise boundaries of the coal land, sold, to be defined as above by the Steel Company, shall be by the Steel Company furnished to the Coal Company in writing at least ten days prior to the delivery of the deed hereinafter mentioned.”
    Upon the dissolution of the injunction the steel company presented its petition to the court for leave to intervene and to become a party to the proceedings instituted by the trust company and to file a cross bill against the coal company and trustee. The coal company filed an answer denying the right of the steel company to intervene and become a party by filing a cross bill, and praying that the petition be dismissed. The court, however, granted the prayer of the petition, permitted the steel company to intervene and file its cross bill which prayed for an injunction to restrain the coal company from mining the coal, and for the surrender and cancellation of the agreement between the steel and coal companies for the sale of the 200 acres of coal sold.
    The steel company having thus become a party to the proceedings, the coal company filed the present cross bill against the latter company and the trustee, averring, inter aha, as follows: “Ninth. That prior to the consummation of said agreement the defendant, the Midland Steel Company, through its representatives, exhibited to the officers and agents of this cross-plaintiff a general map showing its coal property at this point, and thereupon marked and designated the coal agreed to be conveyed and more particularly showed on said map the Western boundary of said tract, fraudulently misrepresenting to the agents of this cross-plaintiff that the Western boundary fine as designated and pointed out on said map was substantially the boundary line decided upon between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company as determined by the proposed trade arrangement and that while it might be required to move said fine a few feet one way or the other, that said line would be substantially as directed and pointed out at that time; that this cross-plaintiff . . . . accepted said designation and description of the Western boundary line, and in the preparation of the agreement between the parties the said boundary line was so designated and described; that this cross-plaintiff .... avers that the said line as designated and pointed out to them by the representatives of the Midland Steel Company, the defendant, did not constitute substantially the boundary line as decided between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company, as determined by said proposed trade arrangement, and that a line entirely different from this one was the one proposed by the Monongahela River Consolidated Coal & Coke Company, and the line pointed out by the officer^ of the defendant company did not constitute the line substantially decided upon; that this cross-plaintiff, relying upon the fraudulent misrepresentations of the defendant, the Midland Steel Company, representations which were entirely within the knowledge and possession of the said defendant, the Midland Steel Company, entered into said agreement . . . .; that a true and correct boundary line of said property as designated and pointed out to this cross-plaintiff and said to have been the boundary line in the proposed trade arrangement is the extension or continuation in the Southerly direction of the Western boundary line of Lilley Coal which immediately joins the coal of the Midland Steel Company at this point.” The bill prayed, inter alia, as follows: "1st. That said tract be reformed in its description so that the description of the Western boundary line of said property which reads as follows: ‘The Western boundary of said tract shall be the boundary line as decided upon between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company, as determined by a proposed trade arrangement between the Steel Company and the Monongahela River Consolidated Coal & Coke Company ’■ — shall be modified, reformed and changed so that the same shall read — ‘The Western boundary of said tract shall be a line constituting an extension or continuation in the same Southerly direction as the Western boundary line of the Lilley Coal which immediately adjoins the coal of the Midland Steel Company, said line to be continued in such length so that the straight fine fixed in this agreement as the Southerly line taken with this Westerly line shall close and the entire area constitute 200 acres.’ ” The bill further prayed that the steel company be directed to furnish a description of the precise bounds of the coal lands sold, to be defined as contained in the contract, that the court decree the specific performance of the contract and thereafter the steel company deliver to the coal company a deed in fee simple for the coal as substantially described in the agreement upon delivery by the coal company of the consideration money stipulated in the agreement, and that the trustee be directed to release from the lien of the mortgage held by it the 200 acres of coal described in the agreement. The steel company and the trustee demurred to this cross bill on the grounds, inter aha, that (1) “the bill shows that the efficacy as a contract of the so-called agreement is inherently dependent on the consummation of the proposed trade agreement between the Steel Company and the Monongahela River Consolidated Coal & Coke Company, but fails to allege that said trade was ever made;” and (2) “the allegations of the bill show that under the Pennsylvania Statute of Frauds the plaintiff is not entitled to the prayer for reformation and specific performance.” After hearing, the court entered a decree sustaining the demurrer and dismissing the bill. From the decree the coal company has taken this appeal.

      Error assigned was in sustaining demurrer and dismissing the cross bill.

      William A. Stone, with him Stephen Stone, for appellant.

      M. W. Acheson, Jr., of Patterson, Sterrett and Acheson, for appellees.
    — Even if the memorandum were enforceable nevertheless since it is executory, parol evidence, even of a fraud, while admissible to strike the paper down, would be inadmissible to vary it and then enforce it, because this would violate the statute of frauds: McCann v. Pickup, 17 Phila. 56; Glass v. Hulbert, 102 Mass. 24; Andrews Brothers Company v. Coke Co., 39 Fed. Repr. 353; Workman v. Guthrie, 29 Pa. 495; Davis v. Ely, 104 N. C. 16 (10 S. E. Repr. 138); Elder v. Elder, 10 Me. 80; Osborn v. Phelps, 19 Conn. 63; Macomber v. Peckham, 16 R. I. 485 (17 Atl. Repr. 910); Climer v. Hovey, 15 Mich. 18; Dyer’s App., 107 Pa. 446; Lord’s App., 105 Pa. 451.
    January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

This is a cross bill in which the Diamond Coal & Coke Company (herein called the coal company) is plaintiff, and the Midland Steel Company (herein called the steel company) and the Safe Deposit & Trust Company, trustee (herein called the trustee), are defendants. The plaintiff seeks to reform by parol an executory contract in writing for the sale of coal lands, and prays for a decree of specific performance of the contract as reformed. The. facts and the proceedings leading up to the filing of the cross bill are stated by the reporter. The part of the contract sought to be reformed is the description of the coal lands sold by the steel company to the coal company, the cross-plaintiff.

Analyzing the written contract between the parties we find that the agreement is a proposition to sell 200 acres of coal the precise boundaries of which could not then be exactly stated, but the description of the boundaries was to be substantially as stated. The eastern boundary line is stated with the privilege of the steel company to extend it, and the northern boundary line was to be the line of the lands of the coal company, at least the full length thereof, with the right of the steel company, in its discretion, to extend the line along the line of the Lilley coal. The western boundary of the tract “shall be the boundary line as decided upon between the Steel Company and the land of the Monongahela River Consolidated Coal & Coke Company,” and the southern boundary was to be a straight line determined in consideration of the other boundaries so that the tract should contain 200 acres.

If there is any more uncertain and indefinite description of lands, agreed to be sold and purchased, in any case in this court, it . has escaped observation. There is neither course nor distance given to any of the four boundary lines. In fact the memorandum of agreement distinctly states that at the date of its execution the precise boundary lines “cannot be exactly stated.” The only thing definitely stated in the memorandum is the number of acres to be sold. The vendor company owned 903 acres of coal and out of that body it proposed to sell 200 acres to the coal company. There is not one of the boundary lines, as will be observed, that is definitely described. The length of the east and north lines is not fixed but depends upon the discretion of the vendor, the western line “shall be the boundary line as decided upon between the Steel Company and land of the Monongahela River Consolidated Coal & Coke Company as determined by a proposed trade arrangement between the Steel Company and the Monongahela River Consolidated Coal & Coke Company,” which leaves the line undetermined until the boundary fine has been fixed by the proposed trade arrangement, and the southern fine is not given but is to be “determined in consideration of the other boundaries.” It is not averred in the bill, and hence must be assumed not to be a fact, that the proposed trade arrangement has yet been consummated and the boundary line therein provided for has been determined. It is apparent that without this line neither the north nor the west fine of the coal lands sold can be ascertained. It is not alleged that the coal company took possession of any definitely described tract of 200 acres, or in fact, of any coal land in pursuance of the sale, or made any improvements thereon. Neither these nor any other matters of estoppel, except the payment of $5,000 on the $300,000 consideration, are averred in the bill. It follows that by reason of the defective description of the lands, the contract of sale is indefinite, uncertain, and not self-sustaining, and is therefore void and not enforceable under the statute of frauds.

The Act of April 22, 1856, P. L. 532, 2 Purd. 1757, known as the statute of frauds, provides in its fourth section that “all declarations .... of any lands, .... and all grants and assignments thereof shall be manifested by writing, .... or else to be void.” Without this statute, an agreement either in writing or by parol to sell lands is not valid unless its terms are sufficiently definite to identify the subject of the sale. Under the statute, the land must not only be sufficiently described to identify it, but the contract must be in writing or it is void and not enforceable. The statute requires both the consideration and the subject of the agreement to be definitely defined. The land must be described in the agreement or by reference to a plan or other matter so that it can be identified and located, and the description must be sufficiently definite within itself and not require the aid of parol testimony or be left to the future action of the same or other parties: Holthouse v. Rynd, 9 Sadler, 193; McCoy v. Brunot, 183 Pa. 105; Soles v. Hickman, 20 Pa. 180; Cunningham v. Neeld, 198 Pa. 41; Agnew v. Southern Avenue Land Company, 204 Pa. 192, and Baldridge v. George, 216 Pa. 231.

It is apparent that the contract as written cannot be specifically performed, and it is equally clear that no essential part of it can be supplied or reformed by parol testimony and, as thus varied or changed, be specifically enforced against the vendor. If the written agreement lacks any of the essentials necessary to make it a complete contract, the statute declares it void: Mellon v. Davison, 123 Pa. 298. The vendee corporation, recognizing the invalidity of the agreement as written and its inability to enforce specific performance of it,. seeks by its cross bill to reform the contract by parol, and then to have the contract as thus rectified specifically carried out by the vendor. The ground on which the reformation is sought is fraud which, as set out in the ninth paragraph of the bill, is averred to consist in the steel company, prior to the consummation of the agreement, exhibiting to the coal company a map showing the steel company’s property and designating thereon the coal agreed to be conveyed and the western boundary of the tract, and fraudulently misrepresenting that such boundary line was substantially the line decided upon as determined by the proposed trade arrangement with the Monongahela company, by reason of which representations, the coal company accepted said designation and description in the contract as the western boundary line. We have possibly gone as far as any American state in admitting oral testimony to vary and contradict written instruments. We have uniformly held that parol evidence is competent to vary or contradict a writing where there was fraud, accident or mistake in the creation of the instrument itself, or where there has been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the instrument was signed and without which it would not have been executed. In such cases where the parol evidence is sufficient to warrant a chancellor in reforming the instrument it is admissible to contradict or vary the writing. Wherever the oral evidence furnishes this degree of proof our courts in the exercise of equitable jurisdiction have reformed the writing so as to make it conform to the intention of the parties in the execution of the instrument. We. have applied this doctrine, and permitted parol testimony to be introduced for the purpose of reforming both executory and executed contracts. Wherever a written instrument fails to express the intention of the parties by reason of fraud, accident or mistake the injured party may invoke the equitable jurisdiction of the court which, by the aid of parol testmony, may reform it. This is the well-settled doctrine of our state as has frequently been declared by this court. No party can, in morals or in law, insist upon the performance of a written agreement which by reason of fraud, accident or mistake does not speak the intention of the parties, and a chancellor will reform the instrument so as to make it declare their real intention. Equity looks alone to justice and fair dealing, and will command even the law, hampered by its technicalities, to obey her decree enforcing the true intention of the parties to a contract.

While, therefore, the admissibility of parol evidence, under proper limitations, to alter, vary and even to contradict a written instrument in such cases is settled in this state, it has not yet been determined by this court that the instrument having been varied or rectified by the evidence, the court may decree specific performance of the agreement in its varied or corrected form where the contract is-required by statute to be in writing. It is one thing to alter or vary a written contract by parol evidence, and quite another to specifically enforce it in its varied or altered form. In the absence of fraud, accident or mistake a written contract speaks for itself, and parol evidence will not be received to vary or contradict it. The rule that a written contract cannot be altered or contradicted by parol evidence is, however, relaxed, and the courts the intention of the parties by reason of fraud, accident or mistake, but will rectify the contract so as to declare their real intention. In the absence of statutory inhibition a chancellor will, where there-is no adequate -remedy at law, compel a party to keep his written- engagements. That is one of the settled powers of a court of equity. It simply involves the application of the exception to the general rule that parol evidence is not admissible to vary or contradict a written instrument.

Where, however, the people speaking through the legislative branch of the government, have declared that contracts relating to certain subjects shall possess certain requisites necessary to their validity, it is not within the power or the jurisdiction of a court of equity to annul or disregard the mandate. Equity corrects that wherein the, law is deficient, but where the. statutory law has spoken equity must remain silent. A chancellor cannot by his decree repeal or set at naught an act of assembly constitutionally valid. To uphold such a power or to ■enforce such a doctrine is in the very teeth of the proposition that “all power is inherent in the people.” Where the federal or state constitution imposes no prohibition, the legislature may declare the manner in which or the' instrument by which lands in the state shall be sold and transferred, and the courts have no discretion in the enforcement of the statutory provision. We are clear that upon reason and authority a court of equity cannot vary or rectify by parol an executory agreement in writing for the sale of lands and as thus varied, in the absence of an estoppel, specifically enforce performance of it. It is-the doctrine of this court, declared in numerous cases, that where, a written agreement is varied by oral testimony the whole contract in legal contemplation becomes parol. If there is anything settled in our law that principle is firmly established. When therefore a party to an executory agreement in writing for the sale of lands succeeds in reforming it by oral testimony he reduces the whole agreement to a parol contract, and deprives himself of the right to have it specifically performed. He pulls down the house on his own head. When he converts the writing into an oral agreement, the statute declares it to “be void.” He has rectified the written contract and in its place has established an agreement which in contemplation of law is parol and therefore, by statutory mandate, absolutely invalid and without force. The true contract, as declared ■ by the chancellor, cannot be enforced. “It is then apparent,” says Judge Hare, 2 Wh. & Tudor’s Lead. Cas. in Eq. (4th Am. ed.) 994, “that the contract as it stands is not the true one, and that the true contract is invali- , dated by the statute, and as the former ought not to be, ¡and the latter cannot be enforced, there is no room for a decree of specific performance.” Our statute of frauds .declares that all grants and assignments of land shall ¡be manifested by writing “or else to, be void,” and under this statute, therefore, a parol contract for the sale of land is a nullity and no court can decree its specific performance. It is equally apparent that this rule applies whether the contract originally was oral, or whether it becomes so by the decree of a chancellor reforming the written agreement and thereby reducing the whole contract to parol. Equity strikes down the written agreement and substitutes the parol contract as expressive of the intention of the parties. In either case the statute declares the agreement void, and it is not within the power of a chancellor to rehabilitate and make it a valid instrument for the conveyance of land. Whether a written contract is reformed on the ground of fraud, accident or mistake, the effect is the same, the whole contract is, in contemplation of law, reduced to a parol agreement which the statute of frauds declares to be void and incapable of being specifically enforced so as to compel the transfer of title to real estate. The statute is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy: Glass v. Hulbert (Mass.), 3 Am. Rep. 418, 423.

The above conclusion is in accord with the English doctrine as announced in the leading case of Woollam v. Hearn, 7 Ves., Jr., 211, decided in 1802. The case has been followed in subsequent decisions and is the present law of England. The leading American case in support of this view is Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418. The bill was filed by the vendee against the vendor and asked relief in several particulars connected with the alleged oral contract of purchase. In dismissing the bill Mr. Justice Wells delivered an exhaustive opinion reviewing all the authorities on the subject in which he said inter alia: “When the proposed reformation of an instrument involves the specific performance of an oral agreement within the statute of frauds; or when the term sought to be added would so modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an instrument in writing, and for which no writing has ever existed, the statute of frauds is a sufficient answer to such a proceeding, unless the plea of the statute can be met by some ground of estoppel, to deprive the party of the right to set up that defense. . . . Rectification by making the contract include obligations or subject-matter, to which its written terms will not apply, is a direct enforcement of the oral agreement, as much in conflict with the statute of frauds as if there were no writing at all.” The same doctrine is announced and enforced in Elder v. Elder, 10 Me. 80, 25 Am. Dec. 205; Osborn v. Phelps, 19 Conn. 63, 48 Am. Dec. 133; Macomber v. Peckham, 16 R. I. 485; Climer v. Hovey, 15 Mich. 18; Davis v. Ely, 104 N. C. 16, 17 Am. St. 667; Westbrook v. Harbeson, 2 McCord Ch. (S. C.) 112; Bogard v. Barhan, 52 Ore. 121, 132 Am. St. 676; Alabama Mineral Land Company v. Jackson, 121 Ala. 172, 77 Am. St. 46; Miller v. Chetwood, 2 N. J. Eq. 199; Webster v. Gray, 37 Mich. 37; Dennis v. Dennis, 4 Rich. Eq. (S. C.) 307; Allen v. Kitchen, 16 Ida. 133, 100 Pac. Repr. 1052.

In Adams on Equity (5th Am. ed.), 171, the learned author says: “Where land is the subject of the erroneous instrument, the reformation of an executed conveyance on parol evidence is not precluded by the statute of frauds, for otherwise it would be impossible to give relief, And where a mistake in an executory agreement relating to land is alleged, parol evidence may be admitted in opposition to the equity for specific performance. But it does not appear, that where the defendant has insisted on the benefit of a statute, the court has ever reformed such an executory agreement on parol evidence, and specifically enforced it with the variation.”

The authorities cited by the learned counsel for the appellants do not rule the question raised by this record. Those decisions deal with executed contracts and with the admissibility of parol evidence to reform contracts in cases where, as said by Woodward, J., in Workman v. Guthrie, 29 Pa. 495, 510, “the statute of frauds and perjuries has nothing to do with the question,” and, as said in Schettiger v. Hopple, 3 Gr. (Pa.) 54, 56, “where no statutory provision intervened.” While dicta in some of the opinions might apparently support the appellant’s contention, the decision of the case did not require the court to pass upon the question involved in the present case. On the other hand, Judge Biddle, in McCann v. Pickup, 17 Phila. 56, a bill filed to correct the description in an agreement in writing for the exchange of certain real estate, followed the English and Massachusetts rule and refused to decree specific performance of the contract on parol evidence. In his opinion he said (p. 57): “But when the omitted term or obligation is within the statute of frauds, there is no valid agreement which the court is authorized to enforce outside of the writing.” The same doctrine is recognized in Andrews Brothers Company v. Youngstown Coke Company, Limited, 7 Pa. C. C. Rep. 67, by the circuit court of the United States for the western district of Pennsylvania. Judge Hare also sustains the doctrine in his elaborate note to Woollam v. Hearn, 2 Wh. & Tudor’s Lead. Cas. in Eq. (4th Am. ed.) 920, 944, in which he exhaustively reviews all the English and American cases on the subject to that date.

There is a conflict of authority on this side of the Atlantic on the question of the right of a court of equity, in the absence of part performance or other matters of estoppel, to reform by parol evidence an executory contract for the sale of land and specifically enforce it with the variation. In several states, courts of great respectability have held that a parol variation-of the written agreement may be specifically enforced notwithstanding the statute of frauds. The leading case relied upon by those who support that doctrine is Gillespie v. Moon, 2 Johns. Ch. 585. That was a bill to reform, not an executory contract, but a deed which, it was alleged, by mutual mistake, included more land than was sold. The question under consideration here did not arise in that case, and hence what was said on the authority of the court to enforce a written contract with a parol variation for the sale of land must be regarded as dicta. In commenting on the doctrine announced in Gillespie v. Moon and analogous cases, the court in Elder v. Elder, 10 Me. 80, holding the opposite view, says: “In all these cases there was written evidence to amend by, either resulting from the plain intention of the parties, although defectively expressed, or from previous instructions, or subsequent declarations in writing.” The subject is ably and elaborately discussed in Macomber v. Peckham, 16 It. I. 485, and the court denies the power to enforce a written contract with a parol variation for the sale of lands, and says that the arguments used in support of the rule “seem to have been directed against the doctrine of English chancery courts, which, as we have seen, is applied to all written contracts, whether within the statute or not, and it does not appear that in making them, they gave thought to the distinction created by the statute.”

For the reasons stated, we are of opinion that in the absence of an estoppel, the court cannot reform a written contract for the sale of land and specifically enforce the agreement with the variation, and that therefore the court below was right in dismissing the plaintiff’s cross bill.

The decree is affirmed.


author: Mr. Justice Potter,

text:
    Reilly v. White, Appellant.

      Contracts — Affidavits of defense — Practice, C. P.

    1. Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness. Averments of set-off must be as specific as those used in a statement of claim.
    2. In an action of assumpsit by a builder to recover a balance alleged to be due on a contract for the erection of a building and also an additional sum as damages for alleged breaches by the defendant in failing to perform his part of the contract, there is no mixture of claims for contract and tort and the defendant will be required to furnish an affidavit of defense.
    3. In such a case portions of the affidavit of defense which consist merely of general denials and which fail to specify the particulars of alleged noncompliance with the contract will be held insufficient.

      Argued Oct. 19, 1911.
    Appeal, No. 122, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1910, No. 448, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Thomas Reilly v. Bernard White.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense in action on a building contract. Before Kennedy, P. J.
    Suit was brought by the plaintiff to recover from the defendant the sum of $49,474.21, of which $29,474.21 was claimed as balance of contract price and extras, and $20,000, on a general claim for damages. The statement of claim admitted that the work was not completed until April 4, 1910, although it should have been completed on February 1, 1910.
    An affidavit of defense was filed which denied any indebtedness to the defendant for the following reasons:
    1. The plaintiff owed the defendant for delay the sum of $10,200.
    2. Certain extras claimed by the plaintiff were denied.
    3. A set-off for: (a) Damages to an adjoining building owned by the defendant, the walls of which slipped and cracked as a result of the plaintiff negligently excavating too close to said adjoining building, and faffing to shore up the walls of said adjoining building as he agreed to do in the contract, and, (b) Damages to the defendant’s stock of furniture and carpets contained in an adjoining building, occasioned through the plaintiff’s failing to put in a dust and waterproof partition between the two buildings, which the contract required him to do; the total of said set-offs amounting to $75,000.
    The plaintiff entered two rules for judgment, one for the entire amount set forth in his statement of claim, and another for certain portions as to which he alleged the affidavit of defense was insufficient, the former of which was discharged at plaintiff’s request. The second rule was made absolute in an opinion filed May 13, 1911, and judgment for plaintiff was ordered entered for $29,338.37.
    A motion was immediately made by defendant’s counsel for reargument and the court consented to hear counsel on one point only involved in said motion, viz.: defendant’s claim for $10,200 liquidated damages. Thereafter, the court filed another opinion modifying its judgment to the extent of holding that the affidavit was sufficient as to this item, and reduced the judgment accordingly to $19,138.07. Defendant then took this appeal.
    The court entered judgment for plaintiff for $19,138.07. Defendant appealed.

      Errors assigned were order making absolute rule for judgment and in entering judgment for plaintiff for $19,138.07.

      Charles H. Sachs and Charles A. O’Brien, with them Thomas Patterson, for appellant.
    — Plaintiff’s case is not within affidavit of defense rule: Corry v. P. R. R. Co., 194 Pa. 516; Osborn v. First National Bank of Athens, 154 Pa. 134; Bartoe v. Guckert, 158 Pa. 124.
    The affidavit of defense is sufficient to prevent judgment: Andrews v. Blueridge Packing Co., 206 Pa. 370; Noble v. Kreuzkamp, 111 Pa. 68; Louchheim v. Maguire, 186 Pa. 311; Lawrance v. Smedley, 6 W. N. C. 42; Silence v. Pierce, 1 W. N. C. 154; Myers v. Faegley, 9 Lanc. L. R. 242.

      Joseph Stadtfeld, for appellee.
    — Under the Act of May 25,1887, P. L. 271, an affidavit of defense is required in all actions of assumpsit arising ex contractu: Holland v. Sunbury Iron Works, 9 Pa. Superior Ct. 261; Barr v. McGary, 131 Pa. 401; Byrne v. Hayden, 124 Pa. 170; Mantua Hall & Market Co. v. Brooks, 163 Pa. 40.
    January 2, 1912:
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit in which the plaintiff sought to recover a balance of $29,474.21 on a contract for the erection of a building. He also sought to recover an additional sum of $20,000 as damages for alleged breaches of the contract on the part of the defendant. The court below held the affidavit of defense to be insufficient as to the sum of $29,338.07 claimed by plaintiff, but held that an offset of $10,200, as damages for delay in completion of the building, was sufficiently averred, and therefore entered judgment for want of a sufficient affidavit of defense in the sum of $19,138.07. Defendant has appealed, and his counsel contends that no affidavit of defense was required in this case, because, as he says, the plaintiff combined in his declaration, claims for a balance due on the contract, and for damages in their nature ex delicto. In this, however, we think he is mistaken. It clearly appears that the second claim in plaintiff’s statement, is founded upon the violation of an express contract made by the parties themselves. The claim is for damages sustained by reason of the failure of defendant to perform his part of the agreement. Arising as it does out of the agreement of the parties, it is for a breach of contract, and in this is distinguished from a right of action for a tort, which must be based upon the breach of a duty fixed by law, without regard to the will of the parties. We agree with the court below, that there is no mixture here of claims for contract and tort, and that assumpsit was the proper remedy. As to the portions of the affidavit of defense which the court below held to be insufficient, they were merely general denials, and failed to specify any particulars in which plaintiff had failed to comply with the contract. If any of the charges are incorrect, defendant does not point them out, nor does he set forth any additional credits to which he is entitled.

Defendant avers by way of set-off, that the negligence of plaintiff in doing his work damaged an adjoining building owned by defendant. But his averments as to damage are indefinite. He alleged a loss in rentals, but does not give any particulars, or show how the sum claimed is made up. Neither does he give any facts upon which his claim for damages to the building is based. His other grounds of set-off are not clearly stated, and no particulars are given as to the amount of damages claimed. He contents himself with naming a large lump sum. In the late case of Law v. Waldron, 230 Pa. 458, our Brother Von Moschzisker states the law as follows (p. 466): “Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness: Markley v. Stevens, 89 Pa. 279. Averments of set-off must be as specific as those used in a statement of claim. The defendant in respect to such a claim is the actor, and the obligation is upon him to aver his set-off in terms incapable of being misunderstood: Loeser v. Warehouse, 10 Pa. Superior Ct. 540. An affidavit of defense is to be taken most strongly against the defendant, for it is to be presumed that he has made it' as favorable to himself as his conscience would allow: Comly v. Simpson, 6 Pa. Superior Ct. 12; Kemp v. Kemp, 1 Woodw. 154.”

Tested by these principles, we think the court below was fully justified in holding that defendant’s allegations of set-off were, with the exception of the claim for damages caused by delay in completing the building, too vague and indefinite to prevent judgment. The question as to damages for delay remains for determination at the trial, in due course. The assignments of error are overruled, and the judgment is affirmed.


author: Per Curiam,

text:
    Willis et al., Appellants, v. Pittsburg Railways Company.

      Railroads — Charter powers — Steam, railroads and electric passenger railways — Connecting line — Right of lessee.

    A corporation operating, under leases and with ample charter powers, the lines of a steam railroad company and an electric street railway company will not be restrained at the instance of a township from constructing and operating a connecting line between the two over a township road, where so far as the construction of the tracks is involved the lessee company has gone no further than its lessor could have gone, and where it appears that the railway existed before the township road.
    Argued Oct. 19, 1911.
    Appeal, No. 125, Oct. T., 1911, by plaintiffs, from decree of C. P. No. 1, Allegheny Co., June T., 1906, No. 821, refusing injunction in suit of A. H. Willis, John Mathias, Adam Spiegel, Philip Anderson, Harry Nix and Otto Hess, constituting the Board of Commissioners of Baldwin Township, v. Pittsburg Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for aninjunction. Macearlane, J., found the following facts:
    The plaintiffs constitute the board of township commissioners of the township of Baldwin in said county, Baldwin township being a township of the first class, in which the corporate power is vested in the plaintiffs.
    The defendant is a corporation incorporated under the special act of general assembly of the commonwealth of Pennsylvania, entitled “An Act to Incorporate the Surety Contract Company,” approved May 25, 1871, P. L. 1170, and engaged, inter alia, in the maintenance and operation of lines of passenger railway and a railroad in the township of Baldwin and elsewhere. By subsequent changes of name, the Surety Contract Company became Pittsburg Railways Company. Several years prior to the defendant’s operations in Baldwin township, it had accepted the constitution of Pennsylvania.
    The Pittsburg and Castle Shannon Railroad Company was organized as a steam railroad under the general railroad act of April 4, 1868, and possesses such powers as a common carrier has conferred by said act of assembly and other acts of assembly relating to railroads. It was incorporated about the year 1871 and began operations as a carrier soon after its incorporation. On August 25, 1905, the defendant acquired by lease the Pittsburg and Castle Shannon Railroad. Prior to the lease, the Pittsburg and Castle Shannon Railroad was always operated by steam power for its passenger and freight trains, and the defendant continued this method of operation until some time after the fifing of this bill. It has since then gradually changed its motive power, and at the present time the greater part of its passenger and freight cars are propelled by electricity. The width between the rails of the track in use was forty inches, and that track is still maintained and used by the defendant for carrying freight, principally coal. Additional rails have been laid on either side of the old track rails, the gauge of this additional track being the same as the gauge of the defendant’s street railway fines. The railroad extends from a point on East Carson street of the city of Pittsburg to a point in Scott township; the total length of the road does not exceed seven miles.
    The defendant is also lessee of certain passenger railway companies incorporated under the general street railway Act of May 14, 1889, P. L. 211; one of-said companies or fines is known as the “Charleroi fine” and the other the “Canonsburg fine.” The former passes through Baldwin township.
    Shortly before the filing of this bill, but prior to May 6, 1909, the defendant caused the Castle Shannon Railroad .and the Charleroi (passenger railway) fine to be physically connected at a point in the village of Castle Shannon of Baldwin township by projecting a spur of the Pittsburg and Castle Shannon Railroad to a point of connection with the Charleroi line. Said spur or connecting link was made longitudinally over a public highway along which the railroad company had reserved an easement of way. The history of said spur track and of said reserved easement and the character of said connection are as follows:
    On June 14, 1883, the Pittsburg and Castle Shannon Railroad Company was the owner of a large tract of land situate in Baldwin township, Allegheny county, Pennsylvania, and on or about said June 14, 1883, the said Pitts-burg arid Castle Shannon Railroad Company laid out upon said tract of land a plan of lots, acknowledged June 14, 1883, and recorded July 25, 1883, in Plan Book, vol. 7, page 32, in the recorder’s office of Allegheny county, Pennsylvania, which said plan is by reference made a part hereof. In and upon said plan Railroad street was laid out to the width of 100 feet, and upon said Railroad street there was then located and maintained and there was shown on said plan an extension or branch of said Pitts-burg and Castle Shannon Railroad. Said extension or branch connected with the main line of said Pittsburg and Castle Shannon Railroad with the Pittsburg Southern Railroad, which said Pittsburg Southern Railroad was then located upon a part of Railroad street aforesaid, all of which will more fully appear by reference to said plan. Said Pittsburg Southern Railroad was subsequently abandoned and the tracks thereof removed, but the said branch of the Pittsburg and Castle Shannon Railroad has since 1883 been maintained and operated on Railroad street. At the time of the making of said lease from the Pittsburg and Castle Shannon Railroad Company to the Pittsburg Railways Company, said spur or' branch tracks upon Railroad street extended to within less than ten feet of the rails of the said Charleroi line, which occupies in passing through said plan substantially the same location as was occupied by the said Pittsburg Southern Railroad.

      The dedication of Railroad street by said Pittsburg and Castle Shannon Railroad Company in said plan of lots was subject to the reserved right of said Pittsburg and Castle Shannon Railroad Company to paaintain said branch or extension upon Railroad street aforesaid, and the township of Baldwin and the purchasers of lots in said plan acquired their right to Railroad street subject to said reserved right of said Pittsburg and Castle Shannon Railroad Company, its successors and assigns. The said branch or extension was located upon the said Railroad-street at a considerable height above the grade of the traveled way thereof, and that part of Railroad street which is and has been occupied by the tracks of said branch or extension is not now and never has been used as a part of the traveled roadway by vehicles or pedestrians. The defendant has constructed the tracks of said branch or extension to conform with the gauge of the tracks of the said Charleroi line, but the said tracks, ties, embankments and slopes of said branch or extension do not and will not occupy more of Railroad street than have been occupied since said plan of lots was laid out by the tracks, ties, embankments and slopes of said branch, and the defendant has not encroached and has shown no intention to encroach upon the traveled roadway of Railroad street, as the same has been maintained since said plan of lots was laid out.
    At the time the bill was filed, the defendant had not used said connecting link between the railroad and street railway lines as a common carrier, but was using same for the purpose of work trains and construction material exclusively, but intended (that upon the completion of certain work then in progress) to interchange traffic between the tracks or lines of the railroa‘d and the passenger railway companies. The defendant now interchanges traffic, both passenger and freight, freely between the railroad and the railway over the said connecting link] the passenger and freight cars of the Charleroi line passing over the Pittsburg and Castle Shannon Railroad and vice versa.

      The consent of the commissioners of Baldwin township was not sought nor obtained for the connection of the tracks, nor for the interchange of traffic, whether passenger or freight, neither by this defendant nor either of the lessor companies.
    The court stated the following conclusions of law:
    1. Defendant, by its charter, is expressly given the power to connect the Pittsburg and Castle Shannon Railroad and the Pittsburg and Charleroi Street Railway, .these being “works” of defendant company.
    2. Section 8 of the Act of June 7, 1901, P. L. 514, is unconstitutional and void, because the subject-matter thereof is not clearly expressed in the title of said act as required by sec. 3 of art. Ill of the constitution of Pennsylvania.
    3. Although the defendant has accepted the constitution of Pennsylvania, there is nothing in that constitution or in the valid laws passed subsequent to the incorporation of the defendant which impairs in any way the defendant’s power to connect its two “works” as aforesaid.
    4. The conditions and limitations stated in the Act of May 6, 1909, P. L. 458, do not affect or impair the powers of the defendant in connecting its said “works,” because:
    1. The connection in question was made prior to the passage of that act.
    2. The defendant derives its powers from its charter, and is not controlled by the conditions on which similar powers are granted to other companies.
    3. Said act of 1909 relates to connections made by distinct companies, and not to a connection made by one company between two of its own properties.
    5. The bill should be dismissed.
    6. The plaintiffs should pay the costs of this case.
    Macearlane, J., filed the following opinion dissolving the preliminary injunction:
    The case of Kaufman v. Pittsburg and Castle Shannon R. R. Co., 217 Pa. 599, renders discussion of the corporate powers of the defendant company unnecessary. It is not limited by the restrictions of the general railroad act. So far as the general powers given in its charter are concerned it looks to the act of its incorporation, not to the general acts. It therefore had a right to take a lease of the Castle Shannon Railroad and to operate it, although it was not connecting with its other lines. It has a right to connect the Charleroi line, a passenger railway leased to and operated by it, with the Castle Shannon, a railroad organized under the general railroad act. That is to say, it has the corporate power under its charter. As the lessee of the Castle Shannon it may lay its tracks wherever that company could, and the latter in laying out its plan of lots dedicated to the purchasers the streets shown upon the plan, subject to the easement of the railroad shown thereon. The lines of track were there connecting with those of the Pittsburg and Southern Railroad, and it appears that for some years they were so physically laid and connecting. The Castle Shannon had a right of way or easement to the point where its tracks have been recently laid, to the junction with the Charleroi line. If the adjoining ground is now a township road by reason of its having been worked by the township authorities, such adoption was subject to the right of way. The defendant is relaying and rehabilitating the portion of the track extending to a point about ten feet from the junction point, and the only question is as to its right to lay the intervening tracks and to operate its cars over it and to transport over it and the rest of the Castle Shannon lines the cars received from the Charleroi line. So far as the construction of the tracks is involved the defendant has gone no farther than its lessor could have done.
    The township has no rights in the premises based upon its control of the highway, for, as we have seen, the railway existed before the highway.
    It is true the defendant company is subject to the police power of the state as expressed in its constitution and statutes and to the regulation of the operation of its street railways by reasonable regulations of municipalities under their general powers, Erie v. Erie Traction Co., 222 Pa. 43, and it is earnestly contended that the constitution and certain statutes require the consent of the township authorities before the proposed action is taken.
    Section 9, art. XVII, of the constitution reads, “No street passenger railway shall be constructed within the limits of any city, borough or township without the consent of the local authorities.” This is intended as a safeguard to the rights of municipalities against the encroachments of companies organized to construct street railways in the first instance, and is a very wise provision, because it would be intolerable for municipalities to be invaded by a public service corporation of this character so closely connected with the everyday life of their people, without having anything to say about it: Erie v. Erie Traction Co., 222 Pa. 43. The doubt was expressed, however, in that case whether the purpose was to protect against more than the construction and whether it included the operation. The Castle Shannon lines cannot be operated other than as a railroad. Heretofore the road has been operated by steam, but its proposed operation by electricity does not change its character: Howley v. Central Valley R. R. Co., 213 Pa. 36. When the defendant company receives cars on and transports them over the Castle Shannon road its power, as we have indicated, is that of a transporting company operating a railroad, not a street passenger railway. Probably it will not be possible for the observer to see any change in the manner of propulsion when the car leaves one fine for another, but we are examining the source of the corporate power and not the physical conditions. The railroad is now in the township. Its fine at one time extended over the whole of the route now traversed in the recent change. There is no evidence subject to warrant a conclusion that any of the line was abandoned. It is not seeking any further use of the highway than it already possesses. It is not seeking any new franchise and, most important, it is the lessee of a railroad, not of a passenger railway.
    In the operation of the Charleroi line it is proposed to receive passenger cars from the Castle Shannon road and to transport them over its lines. So far as appears the Charleroi road is in the township by consent, at least no question is raised as to the right of the defendant to operate it, and the question of interchange of cars turns upon the right over the part of the tracks recently constructed.
    The Acts of May 21,1895, P. L. 93, and of May 14,1889, P. L. 211, enact the constitutional prohibition and need no discussion.
    Section 8 of the Act of June 7, 1901, P. L. 514, provides that “no street railway company .... shall be authorized or permitted to connect its tracks with the tracks of any railroad company incorporated under the law of this state for the transportation of both passengers and freight, nor shall the interchange of cars and continuous movement thereof between and over the tracks of such passenger railway company and such railroad company be authorized or permitted.” The provisions of this section are not expressly recited in the title. It is entitled and is in fact an amendment of the act of 1889. Section 8 may be germane to the original act, but the title contains a catalogue of the provisions of the act reciting everything but this section. This is misleading, and the section is unconstitutional: Philadelphia v. Market Co., 161 Pa. 522, and cases cited.
    The whole case as presented does not call for the issuance of a preliminary injunction.
    Now, June 10, 1909, the preliminary injunction heretofore issued is dissolved.
    Upon final hearing the court dismissed the plaintiff’s bill.

      Error assigned was in dismissing plaintiff’s bill.

      Andrew G. Smith, with him Sylvester J. Snee, for appellant.
    — In so far as the defendant operates the railroad and the street railway it does so entirely by virtue of the powers of the lessor companies. There appears to be no conflict among the decisions of the courts in the several states upon the principle of law which limits the powers of a lessee to the rights of the lessor, whether the persons be natural or artificial: Pennsylvania Railroad Co. v. Sly, 65 Pa. 205; McMillan v. Railroad Co., 16 Mich. 89; Hibbs v. Railroad Co., 39 Ia. 340; Woodruff v. Erie Railway Co., 93 N. Y. 609.
    Charters are to be construed strictly against corporations and in favor of the public: Parker v. Great Western Ry. Co., 49 Eng. Com. L. Rep. (7 Man. & Gran.) 253; Penna. R. R. Co.’s App., 93 Pa. 150.

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellee, cited:
    Pittsburg Railways Co. v. Pittsburg, 226 Pa. 498; Kaufman v. P. & C. S. R. R. Co., 217 Pa. 599.
    January 2, 1912:
   Per Curiam,

The decree is affirmed on the findings of fact and of law and the opinion of the court dissolving the preliminary injunction.


author: Mr. Justice Brown,

text:
    Patterson’s Estate.

      Decedents’ estates — Partition—Notice of proceedings — Payment of assigned mortgage — Laches—Estoppel.
    On July 20, 1898, the owner of an undivided fourth interest in certain real estate devised to her by a decedent mortgaged it to a reputable attorney, the mortgage being duly recorded. On August 20, 1898, the attorney, as mortgagee, assigned the mortgage upon the margin of the record to a church board, a member of the firm of attorneys for the church board having examined the title of the mortgagor. At the time of the execution of the mortgage, as well as when it was assigned to the church board, there were pending in the court below proceedings in partition in the decedent’s estate, which culminated in an order of sale to a trust company as trustee, the proceedings being given due legal advertisement. The property was sold and, on an adjudication of the account of the trustee, the amount of the mortgage with interest was awarded to the attorney mortgagee “for use of” the church board. No one appeared at the audit on behalf of the church board as assignee. On May 26, 1899, the trustee paid to the attorney mortgagee the amount awarded upon the mortgage and he placed upon the record a receipt signed by himself as “Atty.” He never paid this sum over to the church board but from time to time paid interest to the board on the mortgage debt until his death on July 8,1905. In the following May or June, when the board was about to take steps to Collect the interest for more than a year which had apparently accrued on the mortgage, it discovered the facts. In March, 1907, the board entered into an agreement with the trustee that nothing should be done for six months during which time the trustee should be allowed to use its name in an effort to collect from the attorney’s estate, without prejudice to either party. In November, 1909, the board presented a petition to the orphans’ court to compel payment by the trustee to the board of the amount awarded to it under the mortgage. Held, (1) that the board had actual notice of the partition proceedings; (2) that it had constructive notice of the sale and of the filing of the trustee’s account; (3) that it was estopped by its laches from seeking relief from the trustee; and (4) that the petition was properly dismissed.
    Argued Oct. 19, 1911.
    Appeal, No. 126, Oct. T., 1911, by the. Board of Church Extension of the United Presbyterian Church of North America, from decree of O. C. Allegheny Co., Feb. T., 1899, No. 39, dismissing petition in Estate of Robert Patterson, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition to compel payment by a trustee appointed to make sale in partition of a decedent’s real estate. Before Hawkins, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing exceptions.

      S. Harvey Thompson, with, him Donaldson Bros., for appellant.
    — Where proceedings in partition result in a judicial sale of the land, the lien which had been created by one of the tenants is divested from the land but continues on the money raised by the sale: Lucas’s App., 53 Pa. 404; Reed v. Fidelity Ins. Trust & Safe Deposit Co., 113 Pa. 574; Com. v. Rodgers, 6 Pa. Superior Ct. 284.
    Whitesell had no authority to receipt for the money: Hatch v. Stitt, 66 Pa. 264; Bryn Mawr Nat. Bank v. James, 152 Pa. 364; J. B. Sheriff Mfg. Co. v. Pritsch Coal Co., 44 Pitts. Leg. J. 218; Slaymaker v. Herr, 12 Lanc. Law Rev. 342.
    The proceedings in partition do not as a lis pendens constitute or effect notice of such proceedings to the petitioner: Dovey’s App., 97 Pa. 153.
    One cannot be visited with a constructive notice, there being no actual notice, unless there be a duty imposed to make inquiry: Hottenstein v. Lerch, 104 Pa. 454; Leonard’s App., 94 Pa. 168.

      James R. Sterrett, of Patterson, Sterrett & Acheson, for appellee, cited:
    Miller v. Preston, 154 Pa. 63; Roney’s Est., 227 Pa. 127.
    January 2, 1912:
   Opinion by

Mr. Justice Brown,

On July 20, 1898, Fannie B. Risher executed to W. W. Whitesell, at that time a reputable member of the Allegheny county bar, a mortgage for $1,800, on an undivided fourth interest in certain real estate devised to her by Robert Patterson, deceased. The mortgage was duly recorded, and, on August 20, 1898, Whitesell assigned it upon the margin of the record to the board of church extension of the United Presbyterian Church of North America. At the time of the execution of the mortgage, as well as when it was assigned to the appellant, there were pending in the court below proceedings in partition in the estate of the said Robert Patterson, which culminated in an order of sale to the Pennsylvania Title and Trust Company as trustee. The property was sold and, on an adjudication of the account of the trustee, the following award was made out of Fannie B. Risher’s share of the proceeds of the sale: “ To W. W. Whitesell for use of Board of Church Extension of the United Presby. Church of N. A. mortg. recorded in M. B. Vol. 856, p¡ 8 and int., $1,821.60.” No one appeared at the audit on behalf of the appellant as assignee of the mortgage, but on May 26, 1899, the trustee paid to W. W. Whitesell the amount awarded upon it, and he placed upon the record the follow.ing receipt: “Received May 26, 1899, W. W. Whitesell, Atty.” Whitesell never paid this sum to the appellant, but from time to time paid interest to it on the mortgage debt until his death, which occurred July 8, 1905. In the following May or June, when more than a year’s interest had apparently accrued upon the mortgage and the appellant was about to take steps to collect the same, it discovered from an examination of the records that the real estate had been sold as above stated; that the lien of the mortgage had been transferred from the land to the fund in the hands of the trustee; that the same had been distributed in 1899, under a decree of the court, and that the distribution included the award for which Whitesell had receipted. The original trustee, the Pennsylvania Title and Trust Company, was consolidated with the Colonial Trust Company, which has succeeded to all of its debts and liabilities, and this appeal is from the refusal of the court below to compel the Colonial Trust Company to pay the appellant the amount awarded to it on the Risher mortgage. It claims to be entitled to this payment for the alleged reason that it had no notice of the partition proceedings, the sale of the real estate by the trustee or the distribution of the proceeds of the sale until after the death of Whitesell.

John Donaldson, Esq., a member of the legal firm of Donaldson Brothers, who were attorneys for the board of church extension of the United Presbyterian Church of North America at the time it purchased the mortgage from Whitesell, was called as a witness by it and testified that his firm had examined the title of Mrs. Risher when Whitesell offered to sell them the mortgage. As this was done, the records disclosed the proceedings then in progress for the partition of the real estate, on an undivided interest in which the mortgage had been executed, and the appellant was, therefore, bound to take notice that those proceedings would, in all probability, result in a sale which would divest the lien of- the mortgage and transfer it to a fund arising from the sale, to be distributed under a decree of the court, and that in such event it could look to that fund alone for payment. The appellant thus had actual notice, through its attorneys, that just what subsequently did happen would be likely to occur. The mortgagee of Fannie B. Risher was not entitled to be made a party to the proceedings in partition and was not, therefore, within the statutory requirement as to notice: Long’s App., 77 Pa. 151; Stewart v. Bank, 101 Pa. 342; but the appellant had acquired, through its attorneys, actual notice of the partition proceedings, and, in addition to that notice, it had constructive notice of the filing of the trustee’s account and of the adjudication of the same. Less than a year from the time it took the mortgage it had constructive notice that the land upon which the same had been a lien had been judicially sold and that it would have to look for payment to the fund produced by the sale. This constructive notice was acquired through due legal advertisement, which was sufficient: App v. Dreisbach, 2 Rawle, 287; Priestley’s App., 127 Pa. 420; Ferguson v. Yard, 164 Pa. 586. In view of the actual notice which the appellant must have had of the partition proceedings and of the constructive notice to it of the filing of the trustee’s account and of the distribution of the fund by the court below, it is presumed to have known in the spring of 1899 that it no longer had a mortgage which was a lien upon Mrs. Risher’s interest in the Patterson land and that thereafter no interest would accrue upon the same. But, notwithstanding this, it regularly took semi-annual interest from Whitesell on the Risher mortgage indebtedness for a period of six years after the mortgage had been wiped out. The mortgage was no longer bearing interest, for out of the fund from which it was payable there had been awarded, on March 29, 1899, the full amount due upon it. Of this the appellant unquestionably had constructive notice. The interest which Whitesell continued to pay was on the fund he had received under the decree of distribution, and, in view of the actual notice which the appellant had of the proceedings in partition and of its constructive notice of the decree of distribution, the unavoidable presumption is that it must have known Whitesell had received the money and acquiesced in his retention of it during the subsequent six years of his life. Nothing was shown by the appellant to rebut this presumption. If Whitesell was without authority to receive the money and retain it, the officials of the appellant could easily have so testified, but not one of them was called to deny such authority. As he was a member of the bar and an officer of the court, there was a presumption that he acted by authority: Miller v. Preston, 154 Pa. 63.

The appellant took no steps to compel the appellee to pay what it now alleges was improperly paid to Whitesell until more than ten years had expired from the time it had constructive notice that he had received the money and more than three had elapsed from the date of actual notice of the payment to him. True, in March, 1907, the appellant entered into an agreement with the appellee that nothing should be done by it for six months, during which period the appellees should be allowed to use its name in an effort to collect from Whitesell’s estate, without prejudice to the rights of either party to the agreement; but this agreement expired in September, 1907, and the appellant did nothing until November, 1909, when this petition was presented. It did nothing at all until after the statute of limitations had barred any recovery by the appellee, or its predecessor, from Whitesell or his estate of the amount alleged to have been improperly paid to Mm. The gross laches of the appellant is unexplained, and, under the undisputed facts in the case, the conclusion is not to be avoided that it is estopped from asking relief from the appellee.

Appeal dismissed at appellant’s costs.


text:
    Hunter et al. v. Lewis et al., Appellants.

      Contracts — Assumpsit for purchase money — Agreement for sale of land —Defenses.

    1. In an action for balance of purchase money upon a written contract for the sale and conveyance of real estate, between the plaintiffs as vendors and the defendants and another or their survivors, as vendees, a verdict is properly directed for the plaintiffs where it appears that the plaintiffs perfected their title without unreasonable delay and tendered a deed executed in conformity with the agreement, and the only reasons offered by the defendants for refusing to take the property were that one of the vendees was dead, and that the deed was not right, without pointing out any defects.

      Contract — Agreement to sell land — Time for delivery of deed — Vendor and vendee.

    2. The time for the delivery of a deed in an agreement to sell land is necessarily waived if the contract is signed after the time mentioned has elapsed.
    3. Where a purchaser of real estate refuses to take the property and pay the cash, he makes himself immediately liable for the whole amount of the purchase money.
    4. Where a purchaser of real estate refuses to take the property, and the vendor sues for the purchase money, he does what is sufficient) if in his pleadings he avers that he was at all times ready and willing to deliver the deed.
    Argued Oct. 19, 1911.
    Appeal, No. 138, Oct. T., 1911, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 157, on verdict for plaintiffs in case of H. M. L. Hunter, Percy E. Hunter, Samuel K. Hunter, James F. Hunter, John R. Hunter, and Percy E. Hunter, Guardian of Helen Rainey Hunter, Mary Lois Hunter, Chester A. Hunter and Curtis Carr Hunter, Minors, v. William W. Lewis and Eliza H. Lewis.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for balance of purchase money.
    Upon the trial the court directed a verdict for plaintiff for $19,618.50, with interest.
    The following opinion sur motion for new trial was filed by Davis, J.
    In the case at bar the court directed a verdict for the plaintiffs on the following proven and undisputed facts, viz.:
    An agreement dated February 18, 1905, was made between the plaintiffs and William W. Lewis, Eliza H. Lewis, the defendants, and Mary Lewis, their survivor or survivors, and was signed by the plaintiffs on the seventh and by the other parties of the second part on March 8, 1905.
    The agreement was for the sale and conveyance of a certain lot of ground for the consideration of $15,000, $500 of which was paid on March 8, on the signing of the agreement. The agreement that was signed provided also that the deed for the land should be delivered on March 1, 1905. Some of the plaintiffs were minors, and proceedings were then, without any unreasonable delay, instituted in the orphans’ court of Allegheny county, to obtain an order of sale of the interests of the minors, which order was duly made by the said court on March 20, 1905.
    Mary Lewis, one of the parties of the second part to the agreement, died on March 20, 1905, and on March 23, 1905, William W. Lewis, one of the other parties of the second part, personally notified the plaintiffs that his sister had died, and refused to take the property. Mr. Lewis testified as follows: “I told him that my sister had died, and that we didn’t want the property — wouldn’t take it.”
    The plaintiffs then proceeded to perfect their title and a bond was filed in and approved by the orphans’ court on April 5,1905, as required by the order of sale, and deeds were then executed in conformity to the said agreement, and tendered to William W. Lewis and Eliza H. Lewis, the survivors, on April 26, 1905, and the deed was refused by the defendants, Mr. Lewis testifying again: “Q. What did you say when that tender was made, to the party tendering them? A. I told him we could not take them, there was so much delay, and the deeds were not right — were not proper in my mind. Q. Did you explain to him why? A. No, I did not.”
    The defendants, on the trial of the case, made the following offer: “Counsel for defendants propose to show by the witness on the stand, that on March 8 he visited Mr. Gray, the representative of the plaintiffs here; that on that day he signed the paper, exhibit No. 1; that he stated to Mr. Gray that there had already been considerable delay, and that he would not sign that paper unless Mr. Gray would agree to go into court, or have proceedings instituted in the orphans’ court, that day or the following day, and would get the authority, if it was to be got, and close the transaction within ten days from that date, and that the witness and his codefendant would not have signed the paper in question, if it had not been for the undertaking on the part of Mr. Gray.”
    Objections were made to this offer and overruled, and also a motion to strike out the testimony given under the offer, which was also refused. The court’s attention was not called at the time of the offer and motion to strike out, that the defendants had not set up in their affidavit of defense that the inducing cause of signing the agreement was the further contemporaneous oral agreement that the deeds should be delivered in ten days, as an essential condition without which the agreement would not have been signed. The object of which offer was to make the time of the delivery of the deeds the very essence of the contract. The court then, without a further formal motion to strike out all the testimony following the offer, considered that as done which ought to have been done in the first instance, and affirmed a point for binding instructions on the part of the plaintiffs, and directed a verdict of the jury accordingly.
    The time of the delivery of the deeds was not made a vital and essential condition of the contract that was signed, and the time in the agreement was necessarily waived by the signing of the contract after the time had elapsed. The offer in itself is not sufficient, for it merely alleges that the defendants would not have signed the agreement if the plaintiffs had not agreed to deliver the deeds within ten days. Neither did the defendants at the time of the refusal to take the property allege any other reason for their refusal than the death of one of the parties to the agreement, nor do they, when the deeds are tendered, mention delay as the vital question, but claim that the deeds were not right, without pointing out any defects, and which, if any, plaintiffs would have the right to correct: Tiernan v. Roland, 15 Pa. 429.
    And further, it does not appear from any evidence that the deeds were not correct and did not convey a good and sufficient title unto the defendants, in compliance with the agreement of sale.
    When the defendants refused to take the property, March 23,1905, two courses were open to plaintiffs, either to sue for damages for breach of the contract on the part of the defendants, or to perform the covenants of the agreement on their part by perfecting their title and the tender of the deeds, and then to bring an action in assumpsit in the nature of specific performance for the payment of the balance of the purchase money.
    Where a purchaser refuses to take the property and pay the cash, he makes himself liable for the whole amount of the purchase money immediately: Murray v. Ellis, 112 Pa. 485; Huber v. Burke, 11 S. & R. 238.
    It was alleged on the trial of the case that plaintiffs had no right to recover in this action, for the reason that no continuing tender of the deeds had been made by the plaintiffs by filing them with the record papers when the action was brought and while pending. This would be the better practice. The plaintiffs, however, in their pleadings, aver that they were at all times ready and willing to deliver the deeds, and brought them into court and offered them in evidence, and this is sufficient under the decisions: Murray v. Ellis, 112 Pa. 485; Irvin v. Bleakley, 67 Pa. 24.
    We are of opinion, therefore, that the plaintiffs performed all the covenants of the contract on which this suit is brought without any unreasonable delay, and that the jury was properly directed to find a verdict for the plaintiffs. The plaintiffs are entitled to judgment on the verdict on filing their deeds with the prothonotary, to be delivered to defendants on the payment of the verdict.
    And now, to wit: May 9, 1911, the motion for new trial is refused, and the rule for judgment non obstante veredicto is discharged, with leave to plaintiffs to enter judgment upon the verdict upon filing with the prothonotary the deeds for the property, the same to be delivered to the defendants on the payment of the verdict, to which order defendants except, exception allowed and bill sealed.

      Error assigned among others was in directing verdict for plaintiff.

      J. S. Ferguson, with him E. G. Ferguson, for appellants.

      Thomas P. Trimble, with him Charles W. Reamer and Edward C. Chalfant, for appellees.
    January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing a new trial and discharging the rule for judgment non obstante veredicto.