author: Mr. Justice Mestrezat,

text:
    Parrish’s Petition.

      Election laws — Overseers of election — Appointment.
    The fourth section of the Act of January 30, 1874, P. L. 31, providing for the appointment of overseers of elections on the petition of five or more citizens of any election district, is mandatory in character, and is not repealed by the Act of June 10, 1893, P. L. 419.
    The watchers provided for by the act of 1893, have different rights and duties than the overseers required to be appointed by the court under the act of 1874.
    Argued Jan. 12, 1906.
    Appeal, No. 353, Jan. T., 1905, by Percival Parrish et al., from order of C. P. No. 1, Phila. Co., Sept. T., 1905, No. 4410, refusing to appoint overseers of elections In re Petition of Percival Parrish et al.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Petition for the appointment of overseers of election for the second division of the seventh ward of the city of Philadelphia.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court refusing to appoint overseers.

      Thomas Raeburn White, with him R. Warren Barrett and Robert B. Jenlcs, for appellants.
    The Act of January 30, 1874, P. L. 31, makes it the duty of the court to appoint overseers upon petition of five qualified electors.
    The Act of June 10, 1893, P. L. 419, providing for the appointment of watchers, does not repeal the Act of January 30, 1874, P. L. 31, providing for the appointment of overseers: Appointment of Overseers, 9 Pa. Dist. Rep. 629.

      Alex. Simpson, Jr., for appellee,
    cited: Shaeffer v. Jack, 14 S. & R. 426; Com. v. Summerville, 204 Pa. 300; Appointment of Overseers, 9 Pa. Dist. Rep. 629; Easton City Election Overseers, 12 Pa. Dist. Rep. 526.
    February 19, 1906:
   Opinion by

Mr. Justice Mestrezat,

The learned court below on a petition in proper form declined to appoint overseers of election in the second division of the seventh ward of the city of Philadelphia on the ground that “ the act of 1893 repealed the act of 1874 in so far as the act of 1874 made it mandatory upon the court to appoint overseers.” The court in its opinion refusing to make the appointment said: “We think the court is not bound to appoint overseers upon the mere petition of citizens stating that in their opinion they believe that fraud will be perpetrated in the division without anything more. We realize, however, that under the constitution the power exists in the court — the right exists in the court — to appoint overseers whenever in their judgment it is proper to do so, whenever there is a likelihood of fraud. In other words, that it is not a matter to be determined by five residents of the division, and after thejr have so determined it making it absolutely imperative that the court should appoint overseers, but that it is a matter which the court after hearing evidence can, if they believe the exigency of the case requires it, appoint overseers. In other words, the right in the court exists, but the duty to do so is not mandatory.” As we understand the opinion, the court below does not hold that the entire act of 1874 has been repealed by the act of 1893, but only that part of the former act requiring the appointment of overseers of election. The petitioners have appealed and contend that the section of the act of 1874 providing for the appointment of overseers is still in force, that it is mandatory, and that the court on a proper application is required to appoint overseers. With that contention we concur.

The sixteenth section of article YIII of the constitution of 1874 authorizes the court of common pleas to appoint overseers of election “ to supervise the proceedings of election officers and to make report to the court as may be required.” The appointment is to be made upon the petition of five voters of the election district “ setting forth that such appointment is a reasonable precaution to secure the purity and fairness of élections.” The overseers are to be two in number, of different political parties, residents of the district, and are authorized when the election board differ in opinion and the overseers agree on the question in dispute to “ decide the question of difference.”

The fourth section of tlio Act of January 30, 1874, P. L. 33, 1 Purd. 746, provides that upon the presentation of a “ petition of five or more citizens of any election district, setting forth that the appointment of overseers is a reasonable precaution to secure the purity and fairness of the election in said district, it shall be the duty of the court of common pleas of the proper county .... to appoint two judicious, sober and in telligent citizens of said district, belonging to different political parties, overseers of election to supervise the proceedings of election officers thereof, and to make report of the same as they may be required by such court.” The duties and powers of the overseers are prescribed by the same section of the act.' They have the right “ to be present with the officers of such election, during the whole time the same is held, the votes counted, and the returns made out and signed by the election officers ; to keep a list of voters ; .... to challenge any person offering to vote, and interrogate him and his witnesses, under oath, in regard to his right of suffrage at said election, and to examine his papers produced.” The section requires the election officers to afford the overseers “ every convenience and facility for the discharge of their duties,” and makes it a misdemeanor for the officers to refuse to do so. It is also provided that all the votes of the district may be rejected on a contest “ if the overseers shall be driven away from the polls by violence or intimidation.”

This section of the act of 1874 was passed, as it clearly appears, to carry into effect section 16 of article VIII of the constitution. The court below and the learned counsel appearing for it here concede that the provisions of this section of the act are mandatory and not discretionary, and that under the act the court, on presentation of a proper petition, is required to. appoint overseers.

The court below held, however, that part of the act of 1874 providing for the appointment of overseers was repealed by the Act of June 10, 1893, P. L. 419, 1 Purd. 747, for the reason that it was inconsistent with that part of the latter act providing for the appointment of watchers which, in the language of the court, “is evidently intended to take the place of the overseers provided for in the act of 1874.” “The watchers have practically the same duties and the same rights (as the overseers),” says the court, “ the main differences are that they must remain outside of the guard rail and are not to be paid from the public purse.” It was this view of the duties and the rights of the overseers and watchers under the respective acts of assembly that led the learned court to an erroneous conclusion.

The act of 1893 was enacted, as its title discloses, “ to regulate the nomination and election of public officers, requiring certain expenses incident thereto to be paid by the several counties, and punishing certain offenses in regard to such elections,” It is known by the name of its author and is called the “ Baker Ballot Law.” It provides, inter alia, a form of ballot, the manner of casting the ballot, for the erection of booths for the voters, and guard rails for inclosing the space set apart for the board and other officers at the polling place. By section twenty-three of the act, each political party “ shall be allowed to appoint three electors to act as watchers in each voting place without expense to the county, one of whom shall be allowed to remain in the room outside of the inclosed space. Each watcher shall be provided with a certificate from the county commissioners stating .... the names of the persons who have appointed him and the party, or policy he represents, and no party or policy shall be represented by more than one watcher in the same voting room at any one time.” The rights of watchers at a polling place are prescribed by the act. They have the right to be in the voting room outside the inclosed space while the votes are being cast, and are permitted to keep poll books and challenge lists and to be present during the counting of the votes. These, and no other rights, are conferred on watchers by the act of 1893, and that act imposes no duties whatever upon watchers. In what respect, then, is the position of watchers inconsistent with that of overseers required to be appointed by the court under the act of 1874 ? The learned court, as we have seen, says that watchers have practically the same duties and the same rights as overseers. This is manifestly incorrect, as is clearly disclosed by reference to the rights conferred and-duties imposed on each by the acts of 1874 and 1893. The only rights of watchers, as just pointed out, are permission to be outside of the guard rail in the voting room during the polling and counting of the votes, and to keep poll books and challenge lists. Every voter has the right to keep a poll book and challenge list, and therefore the only right conferred by the act on watchers which they did not possess as voters was to be' in the voting room. As to duties and authority, absolutely none are conferred on them by any legislation. They receive no compensation from the county or election district for their services.

Now recurring to overseers of election, we see they are appointed by the court of common pleas in pursuance of the act of 1874, passed to carry into effect a constitutional provision fixing their qualifications and prescribing their duties and powers. The purpose of their appointment, as declared by the constitution, is. “ to supervise the proceedings of election officers and to make report to the court as may be required,” in. order “ to secure, the purity and fairness of elections.” They are authorized when they agree, to decide all differences arising among the members of the election board. The authority thus conferred does not belong to watchers appointed by the political parties, and if attempted to be conferred by statute would be in derogation of the authority vested in the election board by the constitution. We need not discuss or determine the extent of the duties and powers conferred on overseers, as it is not involved in this controversy and is referred to merely to draw the distinction between them and such persons as watchers who hold their position by virtue of an appointment by a political party. In addition to the large powers conferred on overseers by the constitution, the act of 1874, passed in pursuance of the constitutional provision, gives them, as we have seen, the right to be present with the election officers during the time the latter are engaged in receiving and counting the votes and making out and signing the' returns, to challenge any person offering to vote and interrogate him and his witnesses, under oath, in regard to his right of suffrage as well as to examine any papers the voter may produce. The overseers are required to certify the returns or note upon each return their reasons for not certifying it. They are intended to be what their name indicates, “ overseers,” and their dutyfis to oversee or supervise the proceedings of election officers and, when required, to report to the court. The election board is required to afford overseers every facility for the discharge of their duties, and if by violence or intimidation they are driven from the polls the entire vote polled at that district may be rejected. It is scarcely necessary to suggest that none of these extensive powers is conferred on watchers. They are simply permitted to be present during the time the votes are cast and counted. They have no authority and none can be conferred by statute empowering them to supervise or otherwise interfere with the board in the conduct of the election. Their rights may be termed passive, and, like overseers, they are what their name implies, “watchers.” Unlike overseers, they are not appointed by the court, they are not amenable to it, and they are not required to report to it. They hold their position solely by virtue of an appointment by a political party to which good faith and political honesty require them to be true but to which they are not legally responsible. They are not even officers, such as are known to the law, but simply the agents of the party which appoints them to protect its political interests at the polls, and whom the law permits to be present in the voting room for that purpose without compensation and without any authority or control over the proceedings of the election officers.

It is clear from the above comparison of the rights, duties and powers of overseers with the rights of watchers appointed respectively under the acts of 1874 and 1893, that the rights, powers and duties of the two positions are not the same and that it was not the intention that watchers should take the place of, or supersede, overseers in supervising the proceedings of election officers. It is argued, however, in the opinion of the court below, that the part of the act of 1874 authorizing the appointment of overseers is repealed by the act of 1893, because it provides that “by explicit language no one except those mentioned in the act of 1893, are allowed in the room, none but election officers inside the guard rail, and no one is allowed to communicate with an election officer in any way during the counting of the vote.” But this argument is met by the argument of the appellants that the right of overseers to be present in the inclosed space provided exclusively for the officers of election is specifically recognized by section twenty-one of the act of 1893, which provides, inter alia, as follows : “ Besides the election officers and such supervisors as are authorized by the laws of the United States or overseers appointed by the courts of this commonwealth, no more than four voters in excess of the number of voting shelves or compartments provided, shall be allowed in said inclosed space at one time.” The sections of the act bearing directly on this question are apparently inconsistent, but, keeping in view the purpose of both acts and the constitutional mandate, they may be reconciled. It will not be presumed that the legislature in passing the act of 1893, intended to offend against the constitution; on the contrary, we must, if possible, construe the act so that its provisions will be witbin the terms of the instrument. If we hold, with the court below that by the act of 1893, overseers are excluded from the inclosure set apart for the election officers in the voting room, then it is apparent that the act deprives the overseers of an opportunity to perform, and in effect prohibits them from performing their constitutional duties “ to supervise the proceedings of election officers.” If some parts of the act are to be read literally and not in connection with other parts of the statute, overseers cannot go within the inclosed space where the election officers perform their functions. This would necessarily prevent overseers from performing the duties enjoined on them by the sixteenth section of the eighth article of the constitution which requires them not only “to supervise the' proceedings of election officers,” but also “ to decide the question of difference ” when the members of the election board shall differ in opinion. The presence of the overseers within the inclosure set apart for the board is absolutely necessary to enable them to perform their constitutional duties and, as that instrument requires, “ to make report to the court as may be required.” The act of 1893 will, as a whole, bear this interpretation, -and it is the duty of the court to hold that such was the legislative intent. This being the proper interpretation of the statute, its provisions are not in conflict with the act of 1874, and hence the latter act was not repealed by the later statute, and is still in force.

The illustration of the inconvenience of having two overseers in addition to the watchers present at the election, suggested by the learned counsel representing the court below on this appeal, may be misleading. If there were five political parties, there would Be five and not fifteen watchers in the voting room, and if there were eight parties there would be eight and not twenty-four watchers in the room. While each political party may appoint three watchers to be present at each election district, the act of 1893 provides that “ only one .... shall be allowed to remain in the room outside of the inclosed space .... and no party or policy shall be represented by more than one watcher in the same voting room at any time.” The learned counsel’s argument ab inconvenienti does not appeal to us with any force whatever on the question of legislative intent in the enactment of the act of 1893. That argument can never be successfully invoked in a court of justice to defeat the operation of a statute enacted to carry into effect a constitutional provision intended to safeguard the elective franchise.

The desire of the learned judge below, so frequently suggested in his opinion, to protect the city of Philadelphia from unnecessary expenditure of money is commendable, and his argument in favor of greater economy in election expenses will receive the hearty approbation of the taxpayers of the city. But we must assume that the franiers of the constitution and the people, who by their votes adopted that instrument as the fundamental law of the commonwealth, well understood the expense which would be incurred for the services of two overseers in each election precinct of the state, and that the additional expense thus entailed was regarded as infinitesimally small in comparison with the object to be attained by the services of these officers which, in the language of the constitution, was “ to secure the purity and fairness of elections.” Economy in the expenditure of money cannot be considered when it may prevent or endanger the sanctity and the purity of the ballot box.

We are of opinion that the act of 1893 did not repeal that part of the act of 1874, providing for the appointment of overseers of elections, and that the court below was in error in declining to appoint overseers on the petition presented by the appellants. As the election has passed for which the appointment of overseers was requested, we need not, in reversing, award a procedendo.

The order of the court below refusing to appoint overseers of election in the second division of the seventh ward of the city of Philadelphia is reversed.


source: Caselaw Access Project

author: Mr. Justice Fell, Mr. Justice Brown, Mr. Justice Potter,

license: Public Domain

text:
    Commonwealth ex rel. Attorney General, Appellant, v. Consumers’ Gas Company of Scranton.

      Corporations — Gas companies — Exclusive privileges — Act of April 29, 1874, sec. 34, clause 3, P. L. 73.
    A gas company incorporated under the Act of April 29, 1874, sec. 34, clause 3, P. L. 73, has against all subsequent incorporated gas companies, an exclusive privilege until it has earned and distributed for five years a dividend of eight per cent on the capital stock, and this is the case although there is in existence a previously incorporated company having the right to supply gas in the same territory.
    Where the charter of a gas company specifies a county within which the company may exercise its franchises; the charter is not wholly void because of the existence of a city within the county, within whose limits the company cannot exercise its franchises by reason of the. existence of a previously incorporated company with exclusive rights, as against the later company, to supply gas within the city limits.
    Brown, Mestrezat and Potter, JJ., dissent.
    Argued March 20, 1905.
    Reargued October 18, 1905.
    Appeal, No. 5, May T., 1905, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1901, No. 55, for defendant on case tried by the court without a jury in suit of Commonwealth ex rel. Attorney General v. Consumers’ Gas Company of Scranton.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Quo warranto against a gas company. Before Jacobs, J.
    The findings of fact by the court below are quoted in the dissenting opinion of Mr. Justice Potter, infra.
    The court entered judgment for defendant.

      Errors assigned were in overruling various exceptions to the adjudication.

      M. E. Olmsted, with him A. O. Stamm, Fred. W. Fleitz, deputy attorney general, and Hampton L. Oarson, attorney general, for appellant,
    cited: Com. v. Illuminating Co., 180 Pa. 578; Consolidated Gas Co. v. Mitchell, 1 Dauph. 71; Com. v. Gray’s Mineral Fountain Co., 46 Legal Int. 118; Bly v. White Deer Mountain Water Co., 197 Pa. 80.

      M. J. Martin and H. B. Gill, with them M. E. McDonald, for appellee,
    cited: Emerson v. Com., 108 Pa. 111; Scranton Electric Light & Heat Co’s. App., 122 Pa. 154; Consolidated Gas Co. v. Mitchell, 1 Dauph. 71.
    February 26, 1906:
   Opinion by

Mr. Justice Fell,

The primary question in the case is whether the Hyde Park Gas Company, incorporated in 1875 under the act of 1874, has an exclusive right to supply gas for illuminating purposes in the territory covered by its charter against the Consumers’ Gas Company incorporated under the same act in 1900. The 84th section of the act of 1874 expressly gives an exclusive right to the company first incorporated and forbids the incorporation of another company for the same purpose until certain dividends have been paid. It provides that “ companies incorporated under the provisions of this statute for .... the manufacture and sale of gas .... shall .... have the powers . . . . as follows: Clause 3. The right to have and enjoy the franchises and privileges of such incorporation within the- district or locality covered by its charter shall be an exclusive one, and no other company shall be incorporated for that purpose until the said corporation shall from its earnings have realized and divided among its stockholders during five years a dividend equal to eight per centum per annum upon its capital stock.”

The Hyde Park Gas Company has not realized and divided any dividends among its stockholders. It was decided, however, by the learned judge of the common pleas that this company, although first incorporated under the act of 1874, has no exclusive right against the Consumers’ Gas Company, because its right is not exclusive against an earlier company, the Scranton Gas and Water Company, incorporated by a special act in 1854 to furnish gas in the same territory. The ground on which the decision is based is that it was not the intention of the legislature to grant a right exclusive against a later company when the right could not be wholly exclusive because of the existence of an earlier company, and that clause 3 applies only where the company incorporated under the act of 1874 is the first company on the ground.

The act does two things : first, it provides for a grant which is in express terms exclusive; second, it protects the grant by an express prohibition of any other charter. That the grant to the first company chartered under the act cannot be exclusive as to pre-existing rights which the legislature could not take away is not a reason for holding that it is not exclusive against future companies. The limitation of the right is only to the extent required for the protection of such pre-existing rights, and while a company may not have the full letter of the grant it is entitled to what the legislature could and undoubtedly does give it. The conclusion reached by the learned judge is based on the assumption of a legislative intent that is not indicated by anything in the act, and it is in direct conflict with its clearly expressed purpose to make an exclusive grant, emphasized by the prohibition that “no other company shall be incorporated for the same purpose.” If this conclusion is correct, it follows for the same reason that the legislature did not intend -to give an exclusive right under any circumstances, and clause 3 is ineffectual for any purpose, because a municipality may supply itself with gas: Lehigh Water Co’s. Appeal, 102 Pa. 515, or a natural person may furnish a supply: Freeport Water Works Co. v. Prager, 129 Pa. 605. The principle that grants of exclusive privileges should be construed against the grantee applies where there is doubt or ambiguity and where there is something to construe, but here there is no room for construction. Clause 3 is as plain as words can make it. It has been considered by this court in numerous cases in the past thirty years and it has not been suggested that it does not mean just what it says. It has twice been before the legislature for amendment for the purpose of limiting the exclusive privilege. The Act of June 2, 1887, P. L. 310, took away the exclusive right to furnish gas for fuel, and the Act of June 24, 1895, P. L. 266, revoked the right acquired by the acceptance of the provisions of the act of 1874. In each case there was an express re-enactment of the exclusive grant as to companies furnishing gas for light only in the very words of the act of 1874.

Two additional reasons are stated for entering judgment for the defendant: first, that if the Hyde Park Company has an exclusive right in the city of Scranton, that right can be asserted without wholly ousting the Consumers’ Gas Company from its corporate franchises, because the charter of the latter company embraces the whole of Lackawanna county, of which the city of Scranton is only a part; second, that the defendant has not exercised its franchises in the city of Scranton but only claims the right to do so, and should not at this time be ousted from the disputed territory. The effect of holding that the defendant has no valid grant in the city of Scranton is to exclude that city from the territory covered by the terms of its charter, but its charter may be valid as to the rest of Lackawanna county. It does not follow that its charter is wholly bad because it includes territory within which it cannot exercise its franchises, and it should not for this reason be deprived of its corporate existence. We do not, however, concur in the view that as to the city of Scranton the defendant has done nothing that warrants a judgment against it. By the terms of its charter its business is to be transacted in the city of Scranton. It has organized under this charter and has applied to the councils for municipal consent to occupy the streets of the city. This was the first step necessary to the exercise of the franchises claimed and it was an attempted exercise of them.

The judgment is reversed and it is directed that judgment be entered for the commonwealth as to all the territory included within the city of Scranton.

Mr. Justice Brown,

dissenting:

I would unhesitatingly affirm the judgment below. The commonwealth concedes, as it must, that the Hyde Park Gas Company did not, by its incorporation, secure the exclusive privilege to supply gas to the public in the city of Scranton, and yet, in the same breath, insists that it -does possess such right as against the appellee. In support of this inconsistency it would have us read section 34 of the act of April 29, 1874, as I cannot understand its words. It is to be assumed that the legislature meant what it said in declaring that “the right to have and enjoy the franchises and privileges of such incorporation within the district or locality covered by its charter shall be an exclusive one,” and, if so, it could not have meant to give an exclusive right when a prior one existed, and, if it had attempted to do so, by depriving the first company of its franchises, the effort would have been abortive. To my mind it is not conceivable how the grant of an exclusive privilege can apply where, as a matter of fact, such right cannot be obtained. What the legislature intended was that as to territory not already occupied the grant should be exclusive. The words of the act, upon which the commonwealth relies to take summarily from the appellee its chartered rights and privileges, are, “ and no other company shall be incorporated for that purpose until the said corporation shall have from its earnings realized and divided among its stockholders, during five years, a dividend equal to eight per centum upon its capital stock.” As to what corporation shall no other company be incorporated? The “ said corporation.” What is the “said corporation ? ” The corporation upon which an exclusive franchise is conferred. The Hyde Park Gas Company is not.such, for the legislature did not give, and could not have given, an exclusive franchise to it.

Mr. Justice Potter,

dissenting:

This was an action of quo warranto brought by the attorney general against the Consumers’ Gas Company of Scranton, a corporation organized under the general corporation act of 1874. The writ required the respondent to show cause why it exercised corporate powers, or claimed the right to exist, as a corporation.

The suggestion for the writ alleges, “ that upon the 28th day of November, 1900, letters patent were issued by the governor of the commonwealth to the Consumers’ Gas Company of Scranton, incorporating it for the purpose of ‘ the manufacture and supply of gas for light only to the public in the territory embraced within the county of Lackawanna, Pennsylvania, and to such persons, partnerships and corporations residing therein as may desire the same,’ and that acting upon the powers and franchises contained in such letters patent, the Consumers’ Gas Company of Scranton is proceeding to erect its plant and lay its pipes for the purpose of the manufacture and supply of gas within the territory named. Its legal right to do so, however, is disputed by the Hyde Park Gas Company, which was incorporated on October 27,1875, for the purpose of ‘ manufacturing and supplying gas for illuminating and other purposes to the public in the city of Scranton, Pennsylvania, and to such persons, partnerships and corporations residing therein or adjacent thereto as may desire the same.’ ”

The defendant company in its answer denies that the Hyde Park Gas Company ever had the exclusive privilege it claims, and denies that it has under its charter any exclusive right as against subsequently formed companies, to supply gas to the public in the city of Scranton or adjacent territory. It further avers “ that at the time the Hyde Park Gas Company was incorporated, and for a long time prior thereto, other regularly incorporated and organized gas companies were manufacturing and supplying and have still continued to manufacture and supply gas to the public within the limits of the city of Scranton. Among such companies which have been incorporated for the purposes aforesaid, and which are now engaged, and have continued in that business from the date of their incorporation within the city of Scranton, are the Scranton Gas & Water Company and others.”

The case was tried by the court without a jury, under the provisions of the act of April 22, 1874, and the trial judge found the material facts to be as follows :

“1. The Scranton Gas & Water Company was incorporated by the act of March 16., 1854, for the purpose of furnishing gas and water to the village of Scranton. By the act of March 21, 1861, its territory was extended to the township of Providence, the borough of Providence and the borough of Hyde Park in Luzerne county; and by act of April 28, 1866, the township of Providence, the borough of Providence, the borough of Hyde Park and the borough of Scranton were incorporated as the city of Scranton. At its original incorporation the capital stock of this company was $25,000. This has been increased from time to time, and at the time of the hearing, its capital was $2,500,000, of which about $750,000 was invested in its gas'plant and business. It does not appear that this company has ever directly supplied gas to a certain part of the city of Scranton occupied by the pipe lines of the Hyde Park Gas Company, but, since its incorporation, it has been actively engaged in business in Scranton, and, since about the year 1880, has manufactured all the gas distributed and sold in that city.

“ 2. The Hyde Park Gas Company was on October 27,1875, incorporated with a capital of $25,000, .which has never been increased. Its certificate of incorporation states its object to be ‘ to manufacture and supply the public with gas for illuminating and other purposes ; ’ and that ‘ it shall be located at the city of Scranton, county of Luzerne and state of Pennsylvania, and shall transact its business thereat.’ Immediately after its incorporation this company erected a plant, and early in 1876 began to manufacture and supply gas within a part of the city of Scranton, and so continued until about 1880, when its works were dismantled and sold. Since that time it has been constantly engaged in the business of distributing and selling gas, but has purchased from the Scranton Gas & Water Company all the gas supplied by it to its customers. It has not 'from its earnings realized and divided among its stockholders, during five years, a dividend equal to eight per cent, per annum upon its capital stock.’

"3. The Consumers’ Gas Company' the defendant in this case, was incorporated on November 28, 1900, with a capital of $5,000, 'for the purpose of manufacture and supply of gas for light only to the public in the territory embraced within the county of Lackawanna, Pennsylvania, and to such persons, partnerships and corporations residing therein as may desire the same.’ We find that the Consumers’ Gas Company claims that it has the right to manufacture and sell gas within the city of Scranton, but there is no evidence before us that it has ever exercised any franchise within that city. It was assumed by counsel on both sides that the company has made application to the city councils for authority to lay its pipes upon streets of that city, but there is no evidence before us that the application was granted, or that the company has proceeded to erect its plant or lay its pipes, or in any manner engaged in the business of manufacturing or selling gas either in the city of Scranton or elsewhere.”

It does appear, however, that there was evidence as to defendant’s application for municipal consent, but not as to the action of councils thereon.

Clause 3, of section 34, of the general corporation Act of 1874, P. L. 73, provides that “ the right to have and enjoy the franchises and privileges of such incorporation within the district or locality covered by its charter shall be an exclusive one ; and no other company shall be incorporated for that purpose until the said corporation shall have from its earnings realized and divided among its stockholders, during five years, a dividend equal to eight per centum per annum upon its capital stock.”

It was claimed by the commonwealth, which is the appellant here, that the Hyde Park Gas Company had exclusive rights under the provisions of the corporation act just quoted, to manufacture and supply gas within the city of Scranton, and that consequently the respondent company, whose charter covered the same locality, was not entitled to exercise the powers conferred upon it.

The court below entered judgment for the defendant, holding :

“ 1. That the Hyde Park Gas Company did not have exclusive franchises in the city of Scranton, because at the time of its incorporation the Scranton Gas and Water Company already existed, with the power to supply gas in Scranton and was actively engaged in that business.

“ 2. That even if such exclusive privilege had existed in favor of the Hyde Park Gas Company, it would have afforded no ground for declaring the charter of the defendant company wholly invalid and ousting it from corporate existence, for the reason that its corporate rights extended over the whole of Lackawanna county and were not restricted to Scranton.

“ 8. That the defendant company having exercised no franchise within the city of Scranton, the court has no power to oust it from a franchise which it merely claims to possess, but has never exercised.”

From this judgment the commonwealth has appealed.

The only assignments of error necessary to be considered are the first, second and third, covering the above stated conclusions of law, and the nineteenth and twentieth, covering the entry of judgment in favor of, and the refusal to enter judgment against, the defendant. If the court below was correct in any of its conclusions of law, it necessarily follows that the judgment is without error and should be affirmed.

It is clear that when the Hyde Park Gas Company was formed, it did not have an exclusive right to supply gas in its territory. The Scranton Gas and Water Company was there

before it. Counsel for appellant concede that a pre-existing corporation cannot be excluded, but they earnestly contend that as to subsequent companies, the Hyde Park Gas Company obtained an exclusive privilege. The direct and controlling question in this case, is, therefore, whether the legislature intended to deny the right of incorporation to other companies in a case where the right of the prior company was not exclusive. Admittedly, under the facts of this case, an exclusive right could not be in fact obtained by the Hyde Park Gas Company. Did it therefore fall within the meaning of the language of clause 8 of the 34th section of the act of 1874? Or is that section to be taken as meaning that only when exclusive privileges have been granted to a gas company incorporated under its provisions, the prohibition applies, that “ no other company shall be incorporated for that purpose until,” etc. The doctrine of our cases, and the general rule of construction applicable to this question has been stated as follows : “ Grants of exclusive privileges to gas companies must be most strictly construed against the grantee and in the interests of the public. They will never be extended beyond their obvious meaning and the grantee takes nothing by implication: ” 14 Am. & Eng. Ency. of Law (2d ed.), 926. This rule of construction has been closely adhered to by this court; thus, in Emerson v. Com., 108 Pa. 111 (124), Mr. Justice Green said, in considering the provisions of the act of 1874, which are in question in this case : “ It is scarcely necessary to say that exclusive privileges which affect great public interests must be most strictly construed against the grantee and in the interest of the public.”

In Scranton Electric Light, etc., Company’s Appeal, 122 Pa. 154 (175), Chief Justice Gordon, quotes this statement of the law as “ an unalterable rule,” and further says : “ We may add, that every intendment not obviously in favor of the grant must be construed against it. Monopolies are favorites neither with courts nor people. They operate in restraint of competition and are hence, as a rule, detrimental to the public welfare; nor are they at ail allowable except where the resultant advantage is in favor of the public, as, for instance, where a water or gas company could not exist except as a monopoly.”

In Warren Gas Light Co. v. Gas Co., 161 Pa. 510, this rule of strict construction was again recognized and followed.

In Freeport Water Works Co. v. Prager, 129 Pa. 605, the same provision of the act of 1874, was considered in its relation to water companies and the obvious purpose was judicially declared. Chief Justice Paxson there said (p. 617) : “ A grant of exclusive privileges is not favored by the law, and must be construed strictly. It should not be carried by construction beyond the plain language of the grant. The evident object of the act of 1874 was to encourage the formation of water companies to supply the inhabitants of small towns with water, and to that end prohibited the formation of rival companies until they should have become profitable.” This language would apply equally to the formation of gas companies.

Nor are we dependent alone upon judicial construction, for a full understanding of the purpose of the act of 1874 in this respect. We have also the legislative sanction to the same effect, as applying to gas companies. This appears in the preamble to the Act of June 24, 1895, P. L. 266, by which the legislature undertook to revoke and annul all exclusive rights, franchises and privileges of certain gas companies. The preamble sets forth, that Whereas the true policy of the granting of exclusive rights to gas companies is the encouragement and establishment of such companies for the supplying of gas where no such supply was previously furnished, and the real consideration for such exclusive rights is the new public service thus secured,” etc. If, then, we are to interpret the meaning of the act of 1874, in the light of the intention of the legislature as declared by this court, in the cases which have been cited, and as set forth by the legislature itself, in the preamble to the act of 1895, it is manifest that clause 3 of section 34, cannot be construed so as to confer exclusive privileges upon a company incorporated to do business in a territory already occupied by another previously incorporated company, having no exclusive privilege. This would not be the case of establishing a company for the supply of gas, where none was previously to be had. Nor would it secure a new public service in consideration for exclusive rights. There would be neither sound reason nor good consideration for such a grant; and why then should the act be construed so as to favor the privilege ? The effect of such construction would be to prevent any further competition with the original company, although its charter gives it no exclusive privilege. This would tend to forestall the incorporation of other companies, and produce a condition which the legislature in the preamble to the act of 1895 has pronounced injurious to the citizens of the commonwealth. Furthermore, as we have already pointed out, the Hyde Parle Gas Company, has never had exclusive rights in the city of Scranton. During the whole of' its existence its rights have been shared with the previously existing Scranton Gas and Water Company. If it never possessed exclusive rights, what reason could exist for denying to a later company, either incorporation or the exercise of its franchises in the same city ? Can it be supposed that the legislature intended to admit one competitor under these circumstances and exclude all others? We do not think so. It seems to us, that the intent of the law was to confine the protection which it afforded, by way of exclusive rights, to the first company which provided for the community a new public service. Under such circumstances, the legislature saw fit to exclude competition, for a period. Under any other circumstances, the reasons which justify the exclusive features of the act, do not exist, and these provisions do not apply.

I would dismiss the assignments of error, and affirm the judgment of the court below.

Me. Justice Mesteezat also dissented.


author: Mr. Justice Elkin,

text:
    Keller, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence — Railroads—Pedestrians.
    A pedestrian on a public street, where he ordinarily has a right to be, does net become a trespasser thereon merely because the municipality has granted to a railroad company the privilege of temporarily laying a track thereon for its own convenience and benefit.
    Where a railroad company runs its trains over tracks on a public street, it is under no imperative duty to continuously give danger signals while the train is moving. It is the duty of the engineer to look ahead, and if he sees drivers of vehicles or pedestrians in a place of danger, to give them warning of the approaching train by proper signals. In the absence of evidence as to whether the engineer was or was not looking ahead, the presumption is that he was doing his duty.
    In an action by a boy against a railroad company to recover damages for personal injuries, it appeared that the railroad company had the privilege of temporarily laying a track in a public street; that before the accident occurred the boy had been walking on the sidewalk of the street, but near the middle of the square he left the pavement, stepped on the street, and walked along the street about nine feet before he was struck. There was no evidence that the engineer saw him either on the pavement or on the street. The distance between the curb and the first rail of the track was four and one-half feet. This-allowed a safe place for the plaintiff to walk, even allowing for the overhang of the freight cars. Plaintiff testified that the engine and tender passed him safely, and that he was struck by a box car. It did not appear how far the engine was away from him when he stepped into the street. Reid, that there was no' evidence to convict the defendant of negligence.
    Argued Jan. 3, 1906.
    Appeal, No. 61, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1899, No. 215, on verdict for defendant non obstante veredicto in case of Charles Keller and Edwin Keller, by his father and next friend, Charles Keller, v. Philadelphia and Reading Railway Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Willson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for Charles Keller for $2,500, and for Edwin Keller for $18,000 subject to question of law reserved.
    The court subsequently entered judgment for defendant non obstante veredicto.

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

      A. S. L. Shields, for appellants.
    The learned court below erred in assuming that the negligence of the defendant rested upon inference. The same conduct in an adult would at least have required the jury to pass upon the alleged contributory negligence, while the evidence of the defendant’s negligence was clear and convincing: Phila. & Reading R. R. Co. v. Long, 75 Pa. 257.

      The learned court below erred in holding that even though the plaintiff was too young to be chargeable with contributory negligence he was a trespasser nevertheless, and could not recover under the rule of law as to minor trespassers established in Moore v. Pennsylvania R. R. Co., 99 Pa. 301; Hoit v. Penna. R. R. Co., 206 Pa. 356; Iaquinta v. Citizens’ Traction Co., 166 Pa. 63; Schnur v. Citizens’ Traction Co., 153 Pa. 29; Woeckner v. Erie Electric Motor Co., 176 Pa. 451; Satinsky v. Mutual Brewing Co., 187 Pa. 57.

      Gavin W. Hart, for appellee.
    The plaintiff was a trespasser: Moore v. Penna. R. R. Co., 99 Pa. 301; Brague v. Ry. Co., 192 Pa. 242; R. R. Co. v. Spearen, 47 Pa. 300; R. R. Co. v. Hummell, 44 Pa. 375; Gillespie v. McGowan, 100 Pa. 144; R. R. Co. v. Schwindling, 101 Pa. 258; McMullen v. R. R. Co., 132 Pa. 107; Bridge Co. v. Jackson, 114 Pa. 321; Feehan v. Dobson, 10 Pa. Superior Ct. 6.
    The case falls within the class of cases where a child suddenly runs onto the track and is injured: R. R. Co. v. Spearen, 47 Pa. 300; Chilton v. Traction Co., 152 Pa. 425; Funk v. Traction Co., 175 Pa. 559; Kline v. Traction Co., 181 Pa. 276; Callary v. Transit Co., 185 Pa. 176; Miller v. Traction Co., 198 Pa. 639.
    February 26, 1906:
   Opinion by

Mr. Justice Elkin,

We cannot accept as sound the contention of appellee that the injured boy was a trespasser. Hamilton street is a public highway, the use of which could be enjoyed by pedestrians, drivers of teams and the defendant company, each having due regard for the rights and privileges of others. Neither appellant or appellee, nor anyone else could make use of the street in disregard of the rights of others lawfully on the same. When the boy stepped from the pavement on the street in the middle of the square his risks were increased, and in the case of an adult person it would be his duty to exercise greater care. It would be a harsh rule to hold that a pedestrian on a street where he ordinarily had a right to be, should become a trespasser because the city had granted a railroad company the privilege of temporarily laying a track thereon for its convenience and benefit. The temporary construction and use of the track in the center of the street by appellee did not change the general purposes for which the street was intended, nor did it deprive appellant of his right to use the same. The cases cited holding children to be trespassers are not applicable to the facts of the present case.

The negligence alleged in this case is that the train was running at an unusually high rate of speed without giving proper danger signals. The evidence in support of these allegations is meager, indefinite and inconclusive. One witness estimated the rate of speed to be ten or twelve miles an hour. Another testified “it was going less than eight miles an hour” and “ might have been going only six, four or five,” while others did not fix any rate. The evidence did not show what was the usual rate of speed at this point, nor do we think such facts were established as to permit a jury to draw the inference that the rate was unusual. The case, however, does not depend upon a determination of the question whether the train was running at an unusual rate of speed. It was the duty of appellee to exercise proper care no matter whether the train was running five, six, eight or ten miles an hour.

This brings us to a consideration of the controlling question raised by this appeal. Did appellee do anything it should not have done, or did it fail to do anything it should have done in the performance of its duty to appellant? No negligence of commission is charged, but it is contended that appellee failed to give warning by ringing a bell or blowing a whistle and the omission of these duties show want of care. Failure to perform these alleged duties under the circumstances was not negligence per se. The appellee was under no imperative duty to continuously give danger signals while running its train over the track on the street. It was the duty of the engineer to look ahead and if he saw drivers of vehicles or pedestrians in a place of danger, to give them warning of the approaching train by proper signals. There is no evidence to show that the engineer was or was not looking ahead. In the absence of evidence the presumption of law is that he was doing his duty. We must then proceed on the assumption that the engineer was looking ahead and performing his duty in this respect. If he was looking ahead, as he is presumed to have been, could or should he have seen the boy in time to give danger signals and avoid the accident ? If he could it was his duty to do so, and failure to perforin such duty is negligence, and appellee would be liable in damages for injuries caused thereby. The train was running west in the same direction the boy was walking. The boy had been'walking on the sidewalk, but near the middle of the square he left the pavement and stepped on the street, thus placing himself nearer to the moving train. He walked along the street about nine feet before he was'struck. There is no evidence that the engineer saw him either on the pavement or the street, but even if it be conceded that he did see or should have seen the boy while walking on the pavement or at the time he stepped on the street, we cannot say that he failed in the performance of any duty he owed him. The engineer was not bound to take notice that the boy might suddenly leave the sidewalk or street where he was safe and run into a place of danger. When he stepped from the pavement on the planked street to continue his journey he had four and one-half feet to walk on between the curb and the first rail of defendant’s track, so that even allowing for the overhang of the freight cars he had a safe place on the street to walk alongside of the train. If the engineer saw him while he was walking at a safe place on the pavement or street, and of this there is no evidence, he was not required to act on the assumption that the boy would step in front of or into a moving train. As has been said, the testimony does not show that the engineer saw him or should have seen him in time to avoid the accident. The boy says the engine and tender had passed him safely and he was struck by a box car in the train. Just how far the engine was away from him at the time he stepped on the street does not appear. It did appear that the boy walked nine feet on the street after he stepped from the pavement. It also appeared that the engine and tender had safely passed him before he was struck by the box car. The reasonable inference from these facts is that the boy stepped on the street just about the time the head of the engine came near that point. He would then be in a position similar to that of a child who suddenly runs into the side or in front of a moving car. It has been uniformly held in such cases that there can be no recovery : Philadelphia & Reading R. R. Co. v. Spearen, 47 Pa. 300; Kline v. Traction Co., 181 Pa. 276; Callary v. Transit Co., 185 Pa. 176; Miller v. Union Traction Co., 198 Pa. 639; Sontgen v. Railway Company, 213 Pa. 114.

The appellants have failed to show any negligence of appeb lee such as to make it liable in damages for the injuries complained of.

Judgment affirmed.


text:
    Hoffman v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Street railways — Fender—Contributory negligence.

    In an action by a woman against a street railway company to recover damages for personal injuries, it appeared that at the time of the accident she was standing close to the side of a car as it backed around a curve, and as the car swung around she was struck by the fender and injured. The car was backing at the time, and the fender during this temporary movement of the car had not been raised. There was no evidence to show that it was customary or necessary to keep the fender raised at the rear end of the car. The evidence was undisputed that the plaintiff could have avoided the accident by the exercise of reasonable care. Held, that there was no evidence of negligence on the part of the company, and that the plaintiff was guilty of contributory negligence.

      Negligence — Evidence—Standard of care — Province of jury.

    A jury cannot be permitted to draw inferences of negligence in the absence of evidence from which such negligence may be reasonably inferred or to hold the defendant to a higher standard of care than the law requires. The plaintiff must establish, by affirmative testimony, some negligent acts from which a jury can infer want of care. If the evidence does not show negligence there is no question for the jury to determine.
    Argued Jan. 4, 1905.
    Appeal, No. 128, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1902, No. 923, on verdict for plaintiff in ease of John H. Hoffman and Minnie J. Hoffman, his wife, v. The Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Willson, P. J.

      The circumstances of the accident are set forth in the opinion of the Supreme Court.
    Verdict and judgment for John H. Hoffman for $150, and for Minnie J. Hoffman for $1,800.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Leaming, with him Russell Duane, for appellant.
    There was no proof of negligence: Osterheldt v. Peoples, 208 Pa. 310; Dennison v. North Penn Iron Co., 22 Pa. Superior Ct. 219; Gargan v. West End Street Ry. Co., 176 Mass. 106 (57 N. E. Repr. 217).
    The plaintiff was guilty of contributory negligence: Dennison v. North Penn Iron Co., 22 Pa. Superior Ct. 219; Buzby v. Philadelphia Traction Co., 126 Pa. 559.

      Maxwell Stevenson, for appellees.
    The case was for the jury: Miller v. Lewistown Electric Light, etc., Co., 212 Pa. 503; Shafer v. Lacock, 168 Pa. 497; Cleary v. Traction Co., 179 Pa. 526; Fellers v. Warren St. Ry. Co., 26 Pa. Superior Ct. 31; Coolbroth v. Penna. R. R. Co., 209 Pa. 433.
    February 26, 1906:
   Opinion by

Mr. Justice Elkin,

The wife plaintiff, engrossed in a conversation with a friend, was walking eastward on the south side of Lehigh avenue. They reached the curb of Sixth street, stepped on the street, and were proceeding to cross the same ivlien they discovered a car belonging to defendant standing in front of them. They stopped near the center of the car which had come down Sixth street to that point, stopped, and was about to back around a curved switch in order to take, its place on Lehigh avenue for the purpose of starting on its westward route. As the end of the car swung around the curve the fender, projecting from the south and at that time the rear end, struck the plaintiff on the leg, thus causing the injuries for which damages are sought to be recovered in this action. The fender was on the front of the car as it came down Sixth street, and would also be iu front as the car moved west on Lehigh avenue when it backed to its proper position. It happened, however, that for a short distance as the car backed around the curve the fender was on the rear end. The motonnan and conductor did not have any notice of the plaintiff’s presence at the side of the car, and it is not contended that they failed in the performance of any duty in not looking out and seeing her as she stood at that point. Counsel for defendant in the court below asked for binding instructions on the' ground that there was no evidence of negligence by appellant, and that the appellee was guilty of contributory negligence and no recovery could be sustained: The court refused to give binding instructions to the jury, a verdict was returned in favor of the plaintiffs, judgment was entered thereon, and this appeal taken.

The first question to be considered is whether there was any' evidence of negligence by defendant which justified the court in leaving the question to the jury. We have frequently said that negligence is the want of care under the circumstances. It does not follow, however, that a jury can be permitted to draw inferences of negligence in the absence of evidence from which such negligence may be reasonably inferred. A jury cannot be permitted to hold the defendant to a higher standard of care than the law requires. It is, therefore, of primary importance in every such case that the plaintiff should establish by affirmative testimony some negligent acts from which a jury can infer want of care. If the evidence does not show, nor tend to show, negligence, there is no question for the jury to determine.

The learned counsel for appellee contended in the court below, and argues here, that inasmuch as the defendant company, through its emplojmes, did not cause the fender to be raised before the car proceeded to back around the curve, it was guilty of negligence. This position is not tenable under the facts of this case. There was no evidence in the case to show that it was customary or necessary to keep the fender raised at the rear end of the car. Fenders were placed on the cars because' of a popular demand that they should be so placed as a protection to the public. In the absence of' any evidence showing that the use of the fender by defendant was not a proper one, a jury cannot be permitted to draw an inference of negligence.

On the question of contributory negligence, the case is equally conclusive against the plaintiff. It is true she was at a crossing on a public street where she had a right to be, but the defendant also had a right to be there in the exercise of its franchise. The law requires of both parties the exercise of reasonable care. This duty rests on plaintiff as well as defendant. If appellee saw the danger, or should have seen it under the circumstances, and could have avoided it by the exercise of reasonable care, and of this there is no doubt, it was her duty to do so, and failure to perform her duty defeats her right to recover damages.

. Judgment reversed and it is here entered for the defendant.


text:
    Philadelphia to use, Appellant, v. Malone.

      Principal and surety — Bond—Municipal contract — Subcontractor—Materials.

    A subcontractor is not entitled to recover against the surety on a municipal contractor's bond for coal furnished for generating steam to run a steam shovel and a locomotive used in excavating and removing dirt in constructing a reservoir, where it appears that the bond was conditioned that the contractors “shall and will promptly pay all sums of money which may be due for labor and materials furnished and supplied, or performed in and about the said work,” and an inspection of the contract and specifications discloses nothing whatever which could be construed to include coal furnished for running a steam shovel or locomotive.
    Argued Jan. 5, 1906.
    Appeal, No. 172, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 2783, for defendant non obstante veredicto in case of City of Philadelphia to use of Edward L. Taylor v. Richard A. Malone and Richard J. Malone, trading as R. A. Malone & Co., and Fidelity and Deposit Company of Maryland.
    Before Mitchell, C. J., Brown, Mestrezat,' Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a municipal contractor’s bond.
    Verdict for plaintiff for $1,687.15 subject to question of law reserved.

      On a motion for judgment for defendants Beitler, J., filed the following opinion:
    B. A. Malone & Co. entered into a contract with the city to excavate and construct the Oak Lane reservoirs for the sum of $350,000. The contract provided that they should “ furnish and deliver all the materials, and do and perform all the work and labor required ” in constructing said reservoirs, according to the proposals and specifications which are made a part of the contract, the work to be completed in fifteen months under a penalty.
    In the proposal Malone & Co. agree “ to furnish all the labor and materials necessary to perform the whole of the work.”
    The proposals provide as follows :
    “ 173. Price to include. — The prices specified in the accepted proposal shall include the furnishing and erection in a good, sound, substantial and workmanlike manner, of all items required for the completion of the whole work proposed for, and shall include all items shown on the drawings and described in the specifications ; also all dams, pilings, shoring, sheeting, forms, centering, falseworks, tramways, machinery, scaffolding, pumping, labor, workmanship, tools and materials necessary and best adapted to the efficient, prompt and safe execution of both the permanent and temporary works.
    “ 174. Necessary to render the .work complete. — If any workmanship or materials be required, which are obviously necessary to carry out the full intent and meaning of the plans, details, diagrams and specifications, although the same may not be either directly or indirectly so specifically noted by drawings or specifications, the contractor is hereby bound to consider and provide for the same in his proposal for the work, as fully as if they were so specifically denoted, and shall execute the same without charge or claim therefor.”
    Malone & Co. gave bond as required by the ordinance of 1896. They contracted with Gilman-McNeill Co. to excavate one of the reservoirs. The latter purchased from Edward L. Taylor coal which was used in driving the steam shovel which excavated the dirt and loaded it on the cars, and in the locomotive which hauled away the cars containing that dirt.
    Some of the coal was used in the office building on the grounds and for other purposes, but Taylor applied the payments made on account to this portion of the bill, leaving due only the price of the coal used for the steam shovel and the locomotive. Not being paid for the coal he brought suit on the bond, and their being no dispute as to the facts the trial judge gave binding instructions to find for the plaintiff, reserving the question, “ whether there is any evidence in this case entitling the plaintiff to recover.” This was held to be a good reservation: Fisher v. Scharadin, 42 W. N. C. 895.
    The bond sued on is conditioned as follows :
    “Whereas, the above bounden Richard A. Malone, et al. .... agreed to furnish all the materials and perform all the labor required in constructing .... a reservoir .... in strict and exact accordance with a certain proposal and specifications attached thereto and made part thereof. Now the condition of this obligation is such that if the said Richard A. Malone, et al. shall and will promptly pay .... all sums of money which may be due for labor and materials furnished and supplied or performed in and about the said work,” etc.
    The point reserved is whether coal is “ material ” within the meaning of the bond in suit and the ordinance of March 30, 1896. .
    There is no decision or dictum by either our Supreme or Superior Courts upon this question of the meaning of the term “ materials ” as used in the ordinance of March 30,1896, so far as we have been able to ascertain. The ordinance has been several times before the Supreme and Superior Courts.
    In Phila. v. Stewart, 195 Pa. 309, it was decided that each materialman independent of others had a right of action on the bond. Plaintiff had furnished lumber for a schoolhouse.
    In Phila. v. Stewart, 201 Pa. 526, it was decided that the right of a materialman to sue on the bond was not adjudicated by a settlement theretofore made between the city and the contractor. The plaintiff had put in the plumbing of a building.
    In Phila. v. McLinden, 205 Pa. 172, it was decided that a general laborer could recover upon the bond, because, in the language of the court, “ the language of the bond to pay those who performed labor, is too clear.to admit of doubt.”
    In Phila. v. Neill, 206 Pa. 333, it was decided that the question whether a materialman might waive the security of the-bond, was not raised by the facts of that case. The plaintiff had furnished brick.
    In Bowditch v. Gourley, 24 Superior Ct. 342, it was decided that a materialman who furnishes material to a subcontractor is entitled to sue on the bond the same as though he had furnished the material directly to the contractor, upon the ground that the liability is expressly stated to be for material furnished him or them. The plaintiff had furnished lime, sand and cement.
    Questions arising under the federal statute which is almost identical with our ordinance, and bearing directly on the point under consideration, have been adjudicated.
    In United States v. Surety Co., 21 Pa. Superior Ct. 159, a claim for demurrage — extra freightage on stone delivered— was not allowed in a suit on a bond given under the federal statute.
    In United States v. Kimpland, 93 Fed. Repr. 403, a claim for board furnished the contractor’s workmen was held not to be material or labor within the meaning of the federal statute. The court said :
    “ The liability of the sureties will not be extended by implication, or beyond the fair meaning of the statute or bond. The statute required the bond as security for the performance of the work of construction, and to insure the payment for ‘ labor and materials ’ supplied ‘ in tbe prosecution of the work.’ To execute the work, materials were used. Such materials must be fashioned for placement in the structure, conducted to such place, and deposited therein.”
    In United States v. Morgan, 111 Fed. Repr. 474, claims for dump cars and derricks were held to be in the nature of tools and appliances used by the contractor “ for his own convenience and advantage in the execution of his contract ” and not materials within the prosecution of the bond. This case went to the circuit court of appeals, first circuit, reported in 114 Fed. Repr. 627 (1902), and the court said: “ We are of opinion that the labor' and materials here in controversy are plainly without the purview of the statute.”
    The latest reported decision is the case of United States to use of Standard Oil Co. v. The City Trust Safe Deposit & Surety Co., 30 Wash. L. R. 778. There the contractor had a contract to dredge a river. He purchased oil from the use plaintiff to be delivered on the dredge and consumed in its operation. The supreme court of the District of Columbia said’(30 Wash. Law Rep. 778) :
    “ This is a contract to do dredging for the government and not a contract to supply the government with machinery or oil for lubricating purposes; and the covenant of the surety is that it will see that the contractor pays for materials and labor to be used in doing the work mentioned in the contract and not to see that the machinery and appliances for doing the work or oil to facilitate their manipulation are paid for. . . . The machinery and materials furnished for its "preservation and manipulation thereof have no legal relation to the contract because they do not enter into the work performed or become the property of the government.”
    This decision was affirmed by the court of appeals of the District of Columbia, reported in 21 App. (D. C.) Cases, 369.
    The bond sued on in this case is even more restricted in the class of materials within its protection than the bonds given under the federal act.
    The bond given under the act of congress is conditioned that the contractor “ shall promptly make full payments to all persons supplying him labor or materials in the prosecution of the work provided for in said contract: ” 111 Fed. Rep. 487.
    The bond in the case before us is conditioned:
    “Whereas, the above bounden Richard A. Malone, et al. .... agreed to furnish all the materials and perform all the labor required in constructing .... a reservoir in strict and exact accordance with a certain proposal and specifications attached thereto and made, part thereof. Now the condition of this obligation is such, that if the said Richard A. Malone, et al. shall and will promptly pay .... all sums of money which may be due for labor and materials furnished and supplied or performed in and about the said work,” etc.
    The federal bond says, “ in the prosecution of the work.” The bond before us says “ in and about said work,” and recites that the “ materials ” to be supplied are to be “ in strict and exact accordance ” with a certain proposal and specification.
    In Phila. v. Stewart, 201 Pa. 526, the Supreme Court indicates that materials to be within the protection of this bond must be furnished as required by the specifications. The defense there made was that the materialman had varied from the specifications and thereby discharged the surety, but the court held that as the specifications had been changed by the city, as the contract provided the city might do, the surety could not escape liability for material furnished in accordance with the specifications as so modified.
    We are not unmindful of the fact that in Bowditch v. Gourley, the Superior Court held that the plaintiff could recover on the bond even though he might have had no claim on the ordinance, because the bond is more comprehensive than is required by the ordinance, but being a voluntary bond binds the parties thereto.
    It seems to us that the federal decisions have reason and justice to sustain them. To hold with the plaintiff in this case is to require us to extend the bond to cover practically everything purchased by every subcontractor on the work. If coal can be recovered for, then, of course, oil, waste, repairs, or tools used in running the derrick and locomotive or about the cars, or repairing them, would have to be recovered for, and, going a step further, light furnished if the work was prosecuted at night. If coal for an engine can be recovered for, why not feed for horses, a farrier’s bill or the bill of a veterinarian? The test, it seems to us, is that upon which the federal courts have rested their decisions, the materials or labor must be such as the contract covers.
    The surety company agrees to pay for labor and materials furnished in strict and exact accordance with the proposal and specifications, and there is nothing therein as to coal being furnished. True, dredging and hauling material were clearly included therein, but this claim is not for dredging or hauling, but for the supply of a material which, being burned, gave heat to make steam from water and thereby propel machines which did the dredging and hauling.
    Judgment is, therefore, entered for the defendants on the point reserved.
    The court entered judgment for defendant non obstante veredicto.

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

      Alex. Simpson, Jr., with him Howard E. Heckler, for appellants.
    All the cases in this state under this ordinance and similar bonds, are decided upon the ground that “ the municipal policy is to protect the city by securing the claims of those wfho furnished materials or labor; ” and that policy certainly covers as well materials which have been wholly consumed as those which otherwise went into the work: Giant Powder Co. v. Ry. Co., 42 Fed. Repr. 470; Hercules Powder Co. v. R. R. Co., 67 L. R. A. 487; Phila. v. McLinden, 205 Pa. 172.
    It is not true that the mechanic’s lien laws would exclude the claim: Bank of Penna. v. Gries, 85 Pa. 423; Hill v. Newman, 38 Pa. 151; Brinkman v. Burger, 8 Lanc. L. Rev. 98; Tizzard v. Hughes, 3 Phila. 261; Lybrandt v. Eberly, 36 Pa. 347; Vandergrift’s App., 83 Pa. 126.

      Lester B. Johnson, with him John F. Keator, for appellee.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

In the elaborate opinion directing judgment to be entered for the defendants on the point reserved, the learned trial judge has cited and commented on nearly all of the numerous cases of the appellate courts of this state and of the federal courts bearing on the single question raised by this record, and has correctly held that the use plaintiff was not entitled to recover on the contractor’s bond for the coal which he furnished for generating steam to run the steam shovel and the locomotive used in excavating and removing dirt in constructing the reservoir. The very full discussion of the question and review of the pertinent decisions on the subject by the court below render an extended discussion here unnecessary.

The agreement between the city and the contractors required the latter to furnish all the materials and perform all the labor necessary in constructing the reservoir in strict and exact accordance with the proposal and specifications attached to and made part of the contract. The bond on which this suit was brought was conditioned that the contractors “ shall and will promptly pay .... all sums of money which may be due for labor and materials furnished and supplied, or performed in and about the said work.” The contractor is required to furnish the labor and materials for the work, and the bond is taken for the protection of the city and for the security of the parties from whom he or his subcontractor obtains such labor and materials. This being the purpose and extent of the obligation, it follows that the surety’s liability can arise on the bond for only such labor and materials as the contractors agreed to furnish in excavating and constructing the reservoir, or, in the language of the bond, “ in and about the said work.” Unless a claimant can show that the labor he performed or the materials he furnished are such as the contractors obligated themselves to -furnish the city, he cannot compel payment of his claim by suit against the surety on the bond. In ascertaining what labor and what materials are covered by the bond and for which the surety is responsible, resort must, necessarily, be had to the contract between the city and the contractors. Turning to the agreement, we see that both the labor and materials which the contractors obligated themselves to furnish are specifically set out and named in the proposal and specifications which the parties made part of their contract. In the agreement it is expressly provided that the labor and materials which shall be furnished shall be in strict and exact accordance with a certain proposal and specifications attached thereto and made part thereof.” An inspection of the proposal and specifications discloses nothing whatever which can be construed to include coal furnished for running the steam shovel or locomotive. The materials to be furnished are set out in detail. As said by the trial judge, dredging and hauling materials were included in the contract, but the claim presented here by the use plaintiff is not for dredging or hauling, but for the supply of a material which, being burned, gave heat to make steam from water and thereby propel machines which did the dredging and hauling. The shovel and the locomotive were the means or appliances by which the work of excavating was done and the fuel necessary to operate the machines can not, by the application of any fair rules of interpretation, be held to be “ materials required in constructing the reservoir.” It did not enter into or become a part of the visible work which was directed to be done and which when it was completed was to be the property of the city.

If there can be a recovery here against the surety, there is no certainty as to the extent of a surety’s liability on bonds of this character. The contract which is supposed to define and limit his liability will not avail him. If the price or value of the “ labor and materials ” specifically set out in the contract is not the extent of liability on bonds under the city ordinance, a responsible party will hesitate to become surety on such bonds and thereby expose himself to the payment of demands which he could not anticipate being covered by his obligation. As' suggested in the opinion of the court below, “ to hold with the plaintiff in this case is to require us to extend the bond to cover practically everything purchased by every subcontractor on the work. If coal can be recovered for, then 'of course oil, waste, repairs, or tools used in running the derrick and locomotive or about the cars, or repairing them, would have to be recovered for, and, going a step further, light furnished if the work was prosecuted at night. If coal for an engine can be recovered for, why not feed for horses, a farrier’s bill or the bill of a veterinarian ? The test, it seems to us, is that upon which the federal courts have rested their decisions, the materials or labor.must be such as the contract covers.”

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


text:
    Conard v. Pennsylvania Railroad Company, Appellant.

      Contract — Sale of chattels — -Executed and executory contracts.

    • An executed contract for the sale of a chattel vests the title at once, but an executory contract always leaves something to be done before the title to the property will vest in the purchaser. When, however, the act is performed, the sale is complete and the title to the property passes. And in cases where personal property of a certain description is purchased but not identified or selected from a mass of like property of the vendor, the contract is executory and incomplete and the title to it remains in the vendor. As soon, however, as the purchaser makes a selection of a particular part of the property in pursuance of his contract and his act is approved by the vendor, the sale is complete and the title of the vendor is divested.
    Where a person agrees to sell steel rails of a certain quantity and quality “conditioned upon the rails being first inspected” by the vendee, and accepted as fit for his work, a refusal by the vendor to permit the vendee to inspect the rails, or to furnish rails for an inspection, is a breach of the contract, for which the vendor will be liable. If in such a case, the evidence for the vendor is in effect that he submitted for inspection rails of the quantity and quality mentioned in the contract, but that the inspector refused to inspect them, and selected other rails not offered by the vendor, while the evidence for the vendee is in effect that he inspected and selected rails of the kind and quality mentioned in the contract, and that the vendor refused to deliver them, the case, on such conflicting testimony, is for the jury.
    Argued Jan. 5, 1906.
    Appeal, No. 187, Jan. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1900, No. 754, on verdict for plaintiff in case of Thomas P. Conard and I. S. Williams, trading as Thomas P. Conard, v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract of sale. Before Barratt, J.
    The fact are stated in the opinion of the Supreme Court.
    At the trial the court refused to charge that upon all the evidence the verdict should be for the defendant.
    Verdict for plaintiff for f>8,588.
    The defendant moved for judgment non obstante veredicto under the Act of April 22, 1905, P. L. 286. The court overruled the motion. Defendant appealed.

      Errors assigned among others were (16) refusal of binding instructions for defendant, and (17) denial of motion for judgment non obstante veredicto.

      Edwin J. Sellers, of Sellers & Rhoads, for appellant.

      Alex. Simpson, Jr., with him C. Wilfred Conard, for appellee,
    cited: Records v. Railroad Co., 9 Phila. 55; Isherwood v. Whitmore, 11 M. & W. 347; Erwin v. Harris, 87 Ga. 333 (13 S. E. Repr. 513); Fessler v. Love, 48 Pa. 407; Bucklin v. Davidson, 155 Pa. 362; Kimports v. Breon, 193 Pa. 309.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

The plaintiff, desiring to purchase some second hand steel rails, fit for relaying, had a conversation - with the defendant company’s agent relative thereto. Pursuant to and in confirmation of the oral, negotiations, Joseph T. Richards, the defendant’s chief engineer of maintenance of way, addressed a letter to the plaintiff under date of June 21, 1899, the material parts of which are as follows :

“ Subject. With reference to sale of. 1250 tons of second hand fit rail, with splice material .... Confirming my verbal conversation with your Mr. I. S. Williams, and my telephone message of this afternoon, we can let you have 1250 tons of second hand fit steel rail originally 70 lbs. per yard, delivered f. o. b. cars Harrisburg, Pa., at $19.75 per gross ton for the rails and SO cfcs. per pair for the splices, exclusive of bolts, delivered at the same place, both conditioned upon the rails being first inspected by you on the ground and accepted as fit for your work, otherwise the sale not to stand, as we cannot furnish the rails from any other points than the Northern'Central Ry. lines, and P. & E. Ry. lines, from which these rails are reported as being on hand. . . . This sale is made conditioned on payment therefor being made cash upon presentation of shipping invoices to you and before cars are released by us to you. Please advise whether this is in accordance with your understanding and acceptable to you.” In several subsequent letters during the same month, Mr. Richards wrote the plaintiff indicating the places on the two divisions of the defendant’s road where the rails could be found by the plaintiff for inspection. Under date of June 28, 1899, the plaintiff addressed a letter to Mr. Richards at the defendant’s general office in Philadelphia as follows: “ I agree to take twelve hundred and fifty (1250) tons of seventy (70 lbs.) relaying rails at Nineteen and 75/100 ($19.75) Dollars per gross ton f. o. b. cars Harrisburg, Pa., and splices for same at thirty (80c) cents per pair, subject to inspection. My inspector has looked over the rails at Parkton and lias selected about three hundred (300) tons that he can use. . . . My inspector has gone to Renovo to inspect the other rails on the P. & E. division and have wired him that your supervisor will nreet him at Renovo.” " In a subsequent letter to the plaintiff, dated July 25, 1899, Mr. Richards states that his company had for sale 2,240 tons of rails of the character described in his letter of June 21. Of tbe quantity of rails sold to the plaintiff about twenty-seven tons were delivered to him by the defendant. The plaintiff alleging a breach of the contract, brought this action.

In the statement, the plaintiff avers substantially'that a contract was entered into by the parties by means of the communications referred to for the sale and purchase of 1,250 tons of second hand, originally seventy' pounds per yard, steel rails fit for relaying, at $19.75 per gross ton; that lie had complied with his part of the contract 'by giving shipping instructions and by sending inspectors to make the inspection of the rails to the places designated by the defendant; that at no time were the inspectors shown the number of rails of the quality and character called for by the contract and which the defendant agreed to show; that the defendant company shipped to the plaintiff 27 620/2240 tons but refused to ship any more rails or ' allow him to inspect or select any other rails. The defense, at' the trial, was that the plaintiff had not made the inspection in accordance with the agreement; that the inspectors who made it were not the plaintiff’s agents; that there had been no acceptance upon the ground of the rails offered by the defendant “and, consequently, that no sale stood or was effected.” The learned trial judge submitted the ease to the jury which returned'a verdict for the plaintiff. From the judgment entered on the verdict this appeal was taken by the defendant.

. Many, if not the greater number of the assignments of error are clearly in violation of the rules of court and will not be considered. Under the sixteenth and seventeenth assignments, howevei’, the xxxaterial questions ixx the case xnay be raised and disposed of. '

' There were two questions ’for consideration before the court below: one of law, for the court; and the other of fact,-for the jury. The first question, which was for the court, was whether the letters which passed between the parties constituted an executory contract of sale of the rails described in the defendant’s letter of June 21, 1899. This letter was explicit as to the quantity and quality of rails offered for sale and also as to the terms of the sale.. The company proposed to sell “twelve hundred and fifty (1260) toxis of second hand fit steel rails originally seventy-(70 lbs.) per yard; delivered f. o. b. cars Harrisburg, Pa., at nineteen and 75/100 ($19.75) dollars per gross ton for the rails and thirty (80c) cents per pair for the splices exclusive of bolts, delivered at the same place, both conditioned upon the rails being first inspected by you on the ground and accepted as fit for your work, otherwise sale not to stand.” The plaintiff by his letter of June 28, 1899, accepted the offer to sell on the terms in which it was made. That the defendant company’s own interpretation of the correspondence was that it constituted a contract of sale of the rails is clearly shown by its letters to the plaintiff written subsequently to the proposal contained in its letter of June 21. That letter shows that the subject of the conversation, between the parties, prior to its date, was “ with reference to sale of twelve hundred and fifty (1250) tons of second hand fit rail with splice material.” The several subsequent letters of the defendant treat the sale as having been made. That of July 6, 1899, says in opening: “ Referring to the subject of the inspection of the 1250 tons of rails sold by us to you,” and then refers “ to my letter of June 21, confirming this sale.” Again, the letter of July 25, 1899, opens as follows: “Referring to the subject of the second baud fit for track rails which we have to dispose of on the P. & E. and Northern Central Ry., and of which we sold you 1250 tons subject to your inspection.” The defendant company’s letters show conclusively its interpretation of the contract and that it was a sale of 1250 tons of second hand steel rails, fit for relaying and originally of seventy pounds weight per yard at $19.75 per ton, “conditioned upon the rails being first inspected by you on the ground and accepted as fit for your work, otherwise the sale not to stand.”

An executed contract for the sale of a chattel vests the title at once, but an executory contract always leaves something to be done before the title to the property will vest in the purchaser. When, however, the act is performed, the sale is complete and the title to the property passes. And in cases like the present, where personal property of a certain description is purchased but not identified or selected from a mass of like property of the Vendor, the contract is executory and incomplete and the title to it remains in the vendor. As soon, however, as the purchaser makes a selection of a particular part of the property in pursuance of his contract and his act is approved by the vendor, the sale is complete and the title of the vendor is divested. Mr. Benjamin in his excellent work on Sales (Bennett’s 7th edition, p. 329) says: “ After an executory contract has been made, it may be converted into a complete bargain and sale by specifying the goods to which the contract is to attach, or, in legal phrase, by the appropriation of specific goods to the contract. The sole element deficient in a perfect sale is thus supplied. The contract has been made in two successive stages, instead of being completed at one time, but it is none the less one contract, namely, a bargain and sale of goods. As was said by Holroyd, J., in Rohde v. Thwaites, 6 B. & C. 388, ‘ the selection of the goods by one party, and the adoption of that act by the other, converts that which before was a mere agreement to sell into an actual sale, and the property thereby passes. . . .’ If it has been agreed that the purchaser shall select out of the bulk belonging to the vendor, it is not easy to raise a controversy, but the cases in which the ablest judges have been much perplexed are those where the vendor is, by the express terms of the contract, entitled to make the selection.”

When the condition stated in the contract before us which required an inspection and selection was performed, the agreement became executed and the sale was complete. It was the duty of the purchaser to make an inspection of the rails and select such as, in quality and size, conform to the rails called for in the contract. Having made the selection with the approval of the vendor, the sale was complete and the title passed to the purchaser. The duty of the defendant company under the contract required it to afford the plaintiff an opportunity to inspect and select from the second hand rails on its Northern Central and Philadelphia & Erie divisions 1,250 tons of the quality and size provided in the agreement. The quantity as well as the quality was fixed by the agreement and the failure to give the plaintiff an opportunity to select either the quantity or the kind of rails specified in the agreement would be a breach of the contract, for which the defendant would be liable. The refusal to furnish rails for an inspection, or to permit an inspection to be made, is equivalent to refusing to deliver rails which had been inspected and selected by the plaintiff.

The court having interpreted the letters as constituting a contract for the sale and. purchase of the rails, it was the province of the jury to determine whether the .defendant had, as alleged by the plaintiff, violated its terms. There was ample evidence to justify the court in submitting the question to the jury. If the testimony on the part of the plaintiff was believed, it showed that he had sent inspectors to the places designated by the defendant on both divisions of the road to make inspections of the rails submitted by the defendant and to select such as were included within the terms of the contract. These inspectors were called, and their evidence was to the effect that the defendant company refused to ship a large number of rails which they had selected, that it submitted for inspection rails of another and an inferior quality, and that it declined to permit them to make further inspection of second hand fit rails, although there was a sufficient quantity of such rails to have filled the contract. It was conceded that the defendant company had on hand at this time a sufficient number of such second hand rails taken from its Northern Central and Philadelphia & Erie divisions to supply the plaintiff’s demands. It was claimed by the plaintiff that his inspection was fair and that he showed a willingness to have a reinspection by a disinterested party, as disclosed by his letter of July 25, 1899, to Mr. Richards, in which it is said: “ If you think our inspection too severe, we will have the rails reinspeeted by Hunt’s Agency of New York.” The defendant company, in support of its defense, introduced evidence to the effect that it submitted for inspection an abundance of rails of the kind referred to in the correspondence, but the plaintiff’s inspectors refused to inspect them and selected other rails not offered by the defendant and which the inspectors were told the plaintiff could not have. The defendant claimed that the plaintiff’s inspection was unfair and that it had submitted 2,240 tons of rails for inspection, out of which there had been a selection of only about twenty-seven tons, and that for this reason, by the letter of July 25,1899, it had canceled the order.

These .questions of fact were necessarily for the jury, and their solution would determine the plaiutiff’s right to recover. The court told the jury if they found that the defendant company had submitted for plaintiff’s inspection on its two divisions 2,240 tons of the kind of rails mentioned in the contract, and the plaintiff’s inspectors had accepted only twenty-seven tons, which it was conceded had been delivered, then there was no breach of the contract by the defendant company, and there could be no recovery against it. On the other hand, the learned judge also instructed them that if the defendant refused to deliver to the plaintiff the rails accepted by him it would be a breach of the contract, and that “ if the defendant company had a sufficient number of these second hand fit steel rails from which the plaintiff, if he had been given an opportunity to inspect them, would have been able to accept the entire amount called for by the contract — 1,250 tons — and if it refused to permit the plaintiff to inspect those rails, and in that way preventing him from getting the full amount of rails-stipulated by the contract, the defendant broke its contract with the plaintiff, and the plaintiff in that event has made out his case, and all that remains for you is to fix the amount of his damage. It was the duty of the defendant company to submit to the examination of the plaintiff’s inspectors ‘ fit steel rails,’ and if- it submitted rails of another and inferior quality, it failed to live up to the terms of its contract. This raises a pure and simple question of fact that you must determine from the evidence alone.”

We think the learned judge correctly interpreted the contract and properly submitted the questions of fact for the determination of the juiy, and, therefore, the judgment is affirmed.