text:
    Kerr, Appellant, v. Culver.

      Affidavit of defense—Bond—Practice, C. P.

    Where in an action on a bond and an agreement accompanying the same, the defendants file an affidavit of defense denying absolute liability, averring that transaction involved only a conditional guaranty, and setting up matters dehors the instruments, which matters, they averred, in equity and good conscience relieved them from answerability, the court will not on a rule for judgment attempt to construe the instruments, but will permit the case to proceed to trial, so that the whole transaction may be investigated.
    Argued March 25, 1904.
    Appeal, No. 11, Jam T., 1904, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 1924, discharging rules for judgment for want of a sufficient affidavit of defense in case of Samuel T. Kerr v. Frederick F. Culver, David R. Locher, Patrick Ross, Andrew J. Toomey and Charles K. Hannan.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Joseph Be E. Junkin, with him J. B. Kinley, for appellant.

      Reynolds D. Brown, with him Malcolm Lloyd, Jr., and Charles H. Burr, Jr., for appellees.
    April 11, 1904:
   Per Curiam,

The plaintiff s brought suit against defendants in the court below on a bond in the sum of $50,000 with interest, which he averred was due and payable to him by the terms of a certain agreement accompanying the bond. The defendants filed affidavits of defense in which they denied absolute liability on the bond, averring that it was only a conditional guarantee to pay in case of loss by plaintiff in certain business transactions, and further they set up matters dehors the instruments, which they averred, in equity and good conscience, relieved them from answerability. Plaintiff took rules for judgment for want of sufficient affidavits of defense. The court discharged the rules without opinion. Two questions are raised, first, whether the bond is an absolute unconditional promise to pay, and second, whether the facts, which the defendants aver their ability to prove, would constitute a sufficient defense to the whole or any part of the obligation. If the right to recover depended solely on a construction of the writings it would be our duty to dispose of the case as it now appears before us, but on the facts set out in the affidavits that question is not clean It may be clear to the court below after it hears the testimony, but we will not prejudge its opinion by any discussion of the averred facts at this stage of the proceedings. We are of opinion that the issue should proceed to trial, because only after that trial can we satisfactorily review it.

The decree is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Wood’s Estate.

      Wills—Residuary clause—Lapsed legacies.

    The foundation of the general rule in respect of lapsed legacies is that the residuary clause is understood to be intended to embrace everything not otherwise effectually given, because the testator is supposed to “take the particular legacy away from the residuary legatee, only for the sake of the particular legatee, so that upon failure of the particular intent, the court gives effect to the general intent.”
    ■ Testator made certain bequests to charities, which bequests lapsed because the will was not witnessed. In the residuary clause he directed as follows: “Everything not otherwise specified that I may own at time of my decease I desire shall be sold as soon as possible and proceeds divided as herein set forth,” etc. Held, that the lapsed bequests should be distributed to the residuary legatees.
    Argued March 25, 1904.
    Appeal, No. 69, Jan. T., 1904, by Sarah Wood et al., from decree of O. C. Phila. Co., Oct.'T., 1903, No. 129, sustaining exceptions to adjudication in estate of Ebenezer Wood.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it .appeared that Ebenezer Wood died on September 14, 1902, leaving a will by which he made certain bequests to charities. The will was not witnessed,- and these bequests lapsed. The residuary clause of the will was as follows :
    “ Everything not otherwise specified that I may own at time of my decease I desire shall be sold as soon as possible and proceeds divided as herein set forth; to my nephew, George Stammer, one fourth, and the balance in equal shares to Thomas H. Parkinson, now of Cape May, N. J., his two sons, Harrjr L. and Clifford, and his daughter, Florence Edna.”
    The auditing judge, Ashman, J., directed that the lapsed legacies should be distributed to the testator’s next of kin and heirs under the intestate laws.
    The exceptions to the adjudication were sustained by the court in banc, Penrose, J., filing the following opinion :
    The purpose of a residuary clause in a will is to make a complete testamentary disposition of the estate of the testator so that no part of it may. be left to pass under the intestate laws. It is a gift of all that is, left after the gifts specified or designated have been paid or satisfied; and it carries with it, and is presumed to have been so intended, not only all personal estate which remains not specifically disposed of at the time the will is executed but all that, for any reason, is illy disposed of, or fails as to the legatees originally intended. This was very clearly enunciated “ having long been law ” in Cambridge v. Rous, 8 Vesey, 12, which has been followed in innumerable cases (see Massey’s Appeal, 88 Pa. 470). There may, of course, be a limited or restricted residuary gift which would carry nothing outside of the designated limits; but in the absence of clear evidence of intention to restrict, it is assumed that the testator intended the residuary clause in a general sense. Lord Eldon declared in Bland v. Lamb, 2 Jacob & Walker, 399, that “ Very special words are required to take a bequest of a residue out of the general rule,” and in Leake v. Robinson, 2 Meriv. 362-392, Sir Wi. Grant said, “It must be a very peculiar case indeed in which there can be at once a residuary clause and a partial intestacy, unless some part of the residue itself be ill given,” this being quoted with approval by Judge Kennedy in Woolmer’s Estate, 3 Wharton, 477.
    In the case now before us the residuary clause is thus expressed : “ Everything not otherwise specified that I may own at the time of my decease I desire shall be sold as soon as possible and the proceeds divided as herein set forth—to my nephew George Stammer one fourth, and the balance in equal shares to Thomas H. Parkinson, his two sons, Harry L. and Clifford, and his daughter Florence Edna,” and as among the gifts “ specified were some to charities which failed under the act of assembly because of incomplete execution of the will, it was held as the residue was only of what was not specified that the invalid gifts passed under the intestate laws and not to the residuary legatees.
    We do not think such a construction of a residuary clause can be sustained as against the vast weight of authorities. It is not easy to see the difference between a gift following specified disposition of all the “ residue and a gift of everything as in this case ‘ not otherwise specified.’ ” The will shows a clear intention to exclude any part of the estate from passing under the intestate laws, and no particular mode of expression is necessary to constitute a residuary legatee. In Evans v. Jones, 2 Coll. 516, the testator bequeathed all his personal estate “ except ” the money laid out in stock, mortgages, and bonds to A, and gave the property thus excepted to B, yet the gift to B having failed it was held that it passed to A under the terms of the residuary gift.
    The foundation of this general rule in respect of lapsed legacies it is said in 2 Williams on Executors, 1569, is that the residuary clause is understood to be intended to embrace everything not otherwise effectually given; because the testator is supposed to “ take the particular legacy away from the residuary legatee, only for the sake of the particular legatee; so that upon the failure of the particular intent the court gives effect to the general intent.”
    Of course there may be cases in which the provisions of the residuary clause are such as to make it impossible to believe that the testator intended a legacy of a character inconsistent with such provisions to fall into it. As where a gift of liberty to slaves failed under a statute forbidding manumission, and the residuary clause directs the sale of all property which it is intended to embrace; but those cases bear no resemblance to the one now before us.
    The exceptions are sustained and the distribution awarded accordingly.

      JError assigned was the decree of the court.

      Sydney Young, for appellant,
    cited: James v. Irving, 10 Beav. 276; Wainman v. Field, Kay, 507; Lea v. Brown, 56 N. C. 141; Kerr v. Dougherty, 79 N. Y. 327; Hughes v. Allen, 31 Ga. 483; Nyce’s Eat., 5 W. & S. 254.

      Louis Brégy and Wm. B. Johnson, with them H. Homer Balbey, for appellees.
    April 11, 1904:
   Per Curiam,

The learned judge of the court below in speaking of the interpretation to be put upon a general residuary clause in a will says:

“ The foundation of this general rule in respect of lapsed legacies it is said in 2 Williams on Executors, 1569, is that the residuary clause is understood to be intended to embrace everything not otherwise effectually given; because the testator is supposed to “ take the particular legacy away from the residuary legatee, only for the sake of the particular legatee; so that upon failure of the particular intent-the court gives effect to the general intent.”

This of itself would be ample authority in vindication of the decree if we had no more. The decree is affirmed on the opinion of the court below and the appeal dismissed at costs of appellant.


text:
    Edwards’s Estate.

      Will—Codicil—Income.

    In a codicil to his will the testator after reciting that he had been in the habit of paying the sum of $125 monthly to four persons whom he thereupon named, directed his executor and trustee to pay during the continuance of the trust and so long as each of the legatees should live, $125 on the first day of each month “for and on account of their respective quarterly shares of the net income of my (his) estate.” Three of the persons so named were children of the testator, and one was a daughter-in-law. The latter was not given in the will any share of income. Reid, that the daughter-in-law was entitled to $125 per month under the codicil.
    Argued March 25, 1904.
    Appeal, No. 68, Jan. T., 1904, by Kate Huddell Edwards, from decree of O. C. Phila. Co., Oct. T., 1903, No. 123, dismissing exceptions to adjudication in estate of Edward B. Edwards, deceased.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Exceptions to adjudication.
    From the record it appeared that testator died on August 15, 1902, leaving a will dated May 9, 1894, and two codicils, the last dated March 19,1902. By his will he gave to his daughter-in-law, Kate Huddell Edwards, $5,000. He gave to his son J. Warner Edwards, one fourth of his residuary estate. He gave the remaining three fourths to his trustees to pay a portion of the income in quarterly instalments to his son, Thompson F. Edwards and tq his daughter Rebecca G. Love. Neither Kate Huddell Edwards nor J. Warner Edwards were given a share of this income. By the second codicil of his will testator directed as follows :
    “ As I have been for some time past in the habit of paying allowances of one hundred and twenty-five dollars per month to each of the following named persons, I direct my executor and trustee during the continuance of the trust created by my will, and so long as each of the persons hereinafter named shall live, to pay to Rebecca E. Love, Thompson F. Edwards, Kate Huddell Edwards, and J. Warner Edwards, the sum of one hundred and twenty-five dollars each on the first day of each month, for and on account of their respective quarterly shares of the net income of my estate.”
    The auditing judge Hanna, P. J., found that neither Kate Huddell Edwards nor J. Warner Edwards were entitled to receive |125 per month under the codicil, inasmuch as they had no share of income under the will. Exceptions to the adjudication were dismissed by the court in an opinion by Ashman, J.
    Penrose, J., filed the following dissenting opinion:
    The doctrine that a codicil which changes or in any way interferes with the provisions of the will as originally intended by the testator is for that reason invalid, is so startling and so contrary to what has heretofore been supposed to be the very purpose of a codicil, as expressing his final and more deliberate purpose, that until it has received the sanction of the court of last resort, it ought not to be accepted; especially where, as in the present case, the effect is to deprive a beneficiary of an interest in the estate, which the codicil declares shall be hers for life.
    Of course if the codicil had been excluded from probate on the ground that the testator was of unsound mind at the date of its execution, eight years after the date of the will, the will wouM have remain unchanged; but this was not alleged or pretended.
    The language of the codicil is clear, express, and free from any ambiguity as to the duration of the annuities. , It recites the fact that for a number of years the testator had been in the habit of giving to his children and daughter-in-law (the except-ant) $ 125 each, every month, and it directs that these amounts shall be continued to them, after his death, for their respective lives. The annuities so given are thus made a charge upon the entire residuary estate, and, as such, their payment must precede the distribution provided by the will, which gives one fourth of the residue to a son and the income of three fourths to grandchildren in equal shares—the shares of children of his living children to be paid to their parents, respectively, for life, etc. The difficulty of carrying out the direction as to charging the monthly payments to the annuitants against shares in the quarterly distribution of income could not make nugatory the express gifts for life, even if that difficulty was a real one, as it is not; the meaning of the codicil is obviously that the amounts paid are to be credited as against income, and the balance, after such payments, distributed, quarterly, to the persons entitled under the will. This does no injustice, and if it did the testator was disposing of his own estate and making provision for one who, as he believed, required it; but the only effect is that the son who is entitled to one fourth of the residuary estate receives it’ subject to the annuity to himself, which, of course, will merge when the share is received by him ; and the other children, who under the will, as already stated, have life estates in the shares given to their children, will receive part of their income as annuitants and the balance under the original limitations.
    In my opinion the gift for life is substantive, and the direction as to payment, modal and by way of demonstration, only; and even the entire failure of the fund with reference to which it is given does not cause the ademption of a demonstrative legacy.

      Error assigned was the decree of the court.

      Hampton L. Carson, for appellant, Kate Huddell Edwards.

      Boland S. Morris, for Thomas F. Edwards and Rebecca Edwards Love, appellees.
    . Henry T. Dechert, Sheldon Potter and Leoni Melich, for J. Warner Edwards, appellee.

      April 11, 1904 :
   Per Curiam,

The decree of tbe court below is reversed at costs of appellee, and tbe dissenting opinion of Judge Penrose is adopted as the opinion of this court and decree directed to be entered in the court below accordingly at costs of appellees.


text:
    Lea v. Jones, Appellant.

      Party walls—Cost of wall—Bight of action—Acts of February 24,1721, and April 10, 1849, sec. 4, P. L. 600.
    The purpose of the Act of April 10, 1849, sec. 4, P. L. 600, relating to party walls, was, first, to make the right to compensation pass with the land, unless reserved until the wall is used; and, second, to vest in the owner at the time of such use the right to compensation. Where such right of compensation has actually vested in an owner, the right does not pass from the owner by his subsequent conveyance of the property, even though there is no reservation of this right.
    Argued March 24, 1904.
    Appeal, No. 31, Jan. T., 1904, by defendant, from judgment of Superior Ct., Oct. T., 1903, No. 20, reversing judgment of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 1270, on verdict for defendant in case of Henry C. Lea v. Mary H. Jones.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from Superior Court.
    Smith, J., filed the following opinion :
    As the charge was a bare instruction to the jury, “ as a matter of law, to find a verdict for the defendant,” and neither party presented any points, there is no record of the ground on which the verdict was directed, nor, beyond the pleading, any record of the ground on which recovery was sought, or on which defense was made. From the opinion of the trial judge on a motion for a new trial, it appears that the defendant, in constructing a building in 1901, used the party wall previously erected by the plaintiff, and that the plaintiff’s right of action was contested on the ground that the plaintiff subsequently conveyed his building, without reservation as to the wall, and that his grantee conveyed to the defendant. As stated in the appellant’s paper-book, the question involved is “whetherright of action ceases if plaintiff transfers real estate after action commenced and damage done.”
    Under the act of February 24, 1721, the legal title to compensation for the use of a party wall, by an adjoining owner, remained in the builder of the wall through all subsequent changes of ownership. To remedy the evil of leaving the right of action in the builder, while the damage was sustained by a subsequent owner, the Act of April 10, 1849, sec. 4, P. L. 600, provided as follows : “ In all conveyances of houses and buildings, the right to, and compensation for, the party wall built therewith shall be taken to have passed to the purchaser, unless otherwise expressed; and the owner of the house for the time being shall have all the remedies with respect to such party wall as he might have in relation to the house to which it is attached.”
    The obvious intent of this act is to give the right of compensation to the person who is injured. The injury arises from the use of the wall in the construction of an adjoining building. By “ the owner of the house for the time being,” must be understood the owner when the wall is thus used. Until such use there is no injury. Upon such use the injury is complete, and a right of action accrues to the person injured; the right which ran with the land is converted into a right to immediate compensation. One purchasing after the use is complete is not injured by it, and therefore has no claim to compensation. To extend the right beyond the ownership at the time of the use would lead to confusion and uncertainty. The land might pass through many hands without suit brought for compensation, and all the successive owners might with equal right lay claim, since, if the continuing use of the wall is an injury, they are alike injured. When land is subjected to a public use through an exercise of the right of .eminent domain, the owner at the time of such exercise, and not his vendee, is entitled to compensation. A purchaser of land has no right of action for an injury done to it before his purchase. It was not the design of the act of 1849 to give such a right to the purchaser of a party wall. The evident purpose of the statute is, first, to make the right to compensation pass with the land, unless reserved, until the wall is used; and, next, to vest in the owner at the time of snch use the right to compensation.
    In the case in hand, the wall was used in the erection of the adjoining building, and the amount payable therefor was legally ascertained, prior to the commencement of suit, October 4,1901. At that time the plaintiff’s right of action was fixed. His deed, November 30, 1901, conveyed the property as it then stood. The injury arising from the use of the wall had for several weeks been complete and the use of the wall thereafter was not an injury for which his successors in title were entitled to compensation. Not only was this use in full view at the date of the deed, but in the contract of sale, made October 30, 1901, the plaintiff expressly reserved all damages that might be awarded him in the pending suit. This reservation was not introduced in the deed; but it was unnecessary, since a right to damages, accruing prior to its execution, would not pass by the conveyance.
    The only ease with any bearing on the question before us is Voight v. Wallace, 179 Pa. 520. Yoight having built a party wall, sold to Wallace, who afterward acquired the adjoining lot, and used the wall in the erection of a building thereon. In a suit by Yoight to recover compensation for such use, it was held that Yoight’s right to payment for the wall, when it should be used, passed by his conveyance to Wallace. The use of the wall as the ground of compensation, and the right of the owner, at the time of such use, to claim the compensation are thus recognized.
    Judgment reversed and venire de novo awarded.

      Error assigned was the judgment of the Superior Court.

      Sector T. Fenton, with him Joseph W. Shannon, for appellant. '

      A. T. Freedty, for appellee.
    April 11, 1904:
   Per Curiam,

This is an appeal from a judgment of the Superior Court by the defendant in that court. The sole question is, when a conveyance of property is made after damages to the party wall have accrued to plaintiff and an action has been brought therefor, does the mere transfer of the real estate, also transfer the pending action to the purchaser of the property and deprive the plaintiff in the action of any further redress for the injury which he sustained prior to the sale.

The Superior Court, in opinion filed by Judge Smith, held that damages sustained by the owner before his conveyance for which he had brought a suit then pending, belonged to and could be recovered by bim. ■ .We affirm the judgment of the Superior Court on that opinion.

Judgment affirmed.


text:
    Morgan, Appellant, v. Pennsylvania Railroad Company.

      Negligence—Railroads—Bridge—Nonsuit.

    In an action against a railroad company to recover damages for death of plaintiff’s father, it appeared that the deceased was last seen alive about ten o’clock in the evening, walking on a street from a saloon toward a foot bridge which crossed the defendant’s tracks. The guards of the bridge had fallen out of repair. The railroad cut which the bridge crossed was some fifteen feet in depth, and somewhat sloping at the sides. On the following morning the deceased’s body was found on the track of the railroad about 150 feet from the foot bridge. There was evidence that a fence had been constructed across the cartway of the street of the sidewalk of which the foot bridge was an extension. Held,, that a nonsuit was properly entered.
    Argued March 24, 1904.
    Appeal, No. 28, Jan. T., 1904, by defendant, from order of C. P. No. 1, Pbila. Co., Dec. T., 1902, No. 1495, refusing to take, off nonsuit in case of Catharine Morgan, by her next friend Hannah Bowen, v. Pennsylvania Railroad Company.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s father. Before Brégy J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      D. Webster Dougherty and Henry M. Tracy, for appellant.

      John Hampton Barnes, for appellee.
    April 11, 1904:
   Per Curiam,

The plaintiff brings suit for damages against defendant, averring that it caused the death of her father William 'Morgan by its negligence. These facts are undisputed; the deceased was at Harold’s saloon in Conshohocken on the night of October 11, 1902; soon after he was seen walking on the footway leading from the saloon on Oak street, which by a footbridge crossed the railroad tracks ; the guards of the bridge had fallen out of repair. The railroad cut which the bridge crossed was some fifteen feet in depth and somewhat sloping at the sides. When last seen alive Morgan was twenty-five feet away from the bridge. About six o’clock the next morning his dead body was found upon the track of the railroad about one hundred and fifty feet from the foot bridge ; evidently he had been run over and killed by the cars. Much is said in the argument about the duty of the railroad in the construction and repair of such bridges as the one on Oak street and perhaps it was the duty of defendant under the law to maintain a safe structure at that point; but conceding this, the burden was on plaintiff to go further and show that by its neglect in this particular it caused Morgan’s death. There is nothing approaching proof on this point. To find for the plaintiff the jury would have to assume that deceased had left the foot pavement where he was last seen, had gone on the street, had got through an opening in the fence, had fallen down the side of the cut, had there been struck by a train and carried one hundred and fifty feet to the place where his body was found upon the track. A verdict to make out negligence must rest on evidence more or less probable; a verdict on these facts would be the merest guessing at negligence. Because the railroad neglected its duty in repairing the foot bridge, if it did neglect it, does not convict it of negligence in running over a man on its tracks, without showing some probable connection between the two acts.

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


author: Justice Thompson,

text:
    Shultz v. Seibel, Appellant.

      Contract—Building contract—Extra work—Evidence.

    A provision in a building contract that “no- allowance will be made for extra work whatsoever, unless notice is served upon the owner and written consent of the owner is obtained before the said extra work is started,” does not apply to new work contracted for specifically after the original contract was made.
    Where a building contract is not fulfilled in some details there may be deductions made by the jury for compensation for such defective work.
    In an action upon a building contract where it is claimed by defendant that some of the work was not done in a workmanlike manner, and the evidence on the subject and as to what it would cost to make the work right is conflicting, the question is for the jury.

      Appeals—Judgment—Evidence—Book of original entries—Harmless error.

    A judgment will not be reversed for an immaterial error which does the party no harm. -
    An erroneous admission of books as books of original entries is no ground for reversal where the items of account in dispute are established by other evidence.
    Argued March 24, 1904.
    Appeal, No. 300, Jan. T., 1903, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. Term, 1902, No. 3964, on verdict for plaintiff in case of Henry G. Schultz and William H. Schultz, trading as Henry G. Shultz & Son v. Marie C. Seibel.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on a building contract. Before Finletter, P. J.
    At the trial defendant presented the following point:
    1. In order to recover anything in this action, the plaintiffs must establish to the satisfaction of this jury that they had completed their work in a good and workmanlike manner in accordance with the specifications prior to beginning of the action. Answer : I refuse the points of charge submitted by counsel for the defendant. [1]
    2. The plaintiff claims the sum of $400 for extra work in dividing the second story of the new addition into eight rooms. The specifications, which are a part of the contract on which this suit is based, provide:
    No allowance will be made for extra work whatsoever, unless notice is served upon the owner, and written consent of the owner is obtained before the said extra work is started.
    The plaintiff - has nob shown nor attempted to show any notice served on the owner or consent by her to be charged with this item as extra work, prior to its starting. In fact it is undisputed that no such question was raised between the time the contract was signed and the latter part of October, when the second story partitions, forming sixteen rooms, had been already erected. I therefore charge you that the plaintiff cannot recover as to this item. Answer: I refuse the points of charge submitted by counsel for the defendant. [2]
    The court charged in part as follows :
    [There is no dispute as to the two contracts, which were in writing, and th'ey are binding upon both parties. They had reference to the construction of eight rooms.] [3]
    [The fact that the defendant and plaintiffs both changed the number of rooms necessarily implies that they both agreed that the original contract for eight rooms ‘should be changed and that they both intended the plaintiffs to do all the work for the sixteen and the defendant to pay for the work that was done upon them. As I understand the case to be, the plaintiffs contend that the work they did under the verbal contract was of the value of $400. The defendant contends that there was a specific contract for the payment of $275. The point in dispute is as to the amount. The plaintiffs have claimed that it was $400, and the contention on the other side is that they were to do it for $275.] [4]
    [The other small matters are too insignificant for the consideration of the jury, and are really of so little importance that they ought not to be considered. If they were, .there is no evidence to show what it would cost, for instance, to replace the two doors with what they call perfect material.] [5]
    Yerdict and judgment for plaintiffs for $2,313.48. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them; (6) in admitting books offered as books of original entries.

      W Nelson L. West, with him Ellis Ames Ballard and
      JRvfus F. Shapley, for appellant.
    Notice of the extra work was necessary: Miller v. McCaffrey, 9 Pa. 245; Gillison v. Wanamaker, 140 Pa. 358.
    Even if it be contended that plaintiffs had substantially performed their contract, yet the defendant was entitled to an allowance of a sum sufficient to remedy the defects and complete the details of plaintiffs’ work: Murphy v. Liberty Nat. Bank, 179 Pa. 295; Ligget v. Smith, 3 Watts, 331; Chambers v. Jaynes, 4 Pa. 39; Danville Bridge Co. v. Pomroy, 15 Pa. 151; McDowell’s App., 123 Pa. 381; Monocacy Bridge Co. v. American Iron Bridge Mfg. Co., 83 Pa. 517; White v. Braddock Boro. School District, 159 Pa. 201; Filbert v. Philadelphia, 181 Pa. 530.
    It is respectfully submitted that the learned trial judge erred in admitting the plaintiffs’ book as a book of original entry under defendant’s objection, and that the case is ruled by the decisions in Vicary v. Moore, 2 Watts, 451; Forsythe v. Norcross, 5 Watts, 432; Breinig v. Meitzler, 23 Pa. 156; Haas’s Estate, 18 Phila. 185 (3 Pa. C. C. Reps. 345); Geiger’s Appeal, 1 Mona. 547.

      Charles F. Linde, for appellees.
    April 11, 1904:
   Opinion by

Justice Thompson,

The contentions in this case arise from the alterations of a dwelling house situate at 254 South Sixteenth street, Philadelphia, and the addition thereto of a two story back building.. The former was done without any special contract for the same and the latter was in part done in pursuance of a written contract dated August 12,1902, and subsequently additional work in the way of partitioning and constructing sixteen small rooms in the second story back building, under two alleged estimates, one not denied and the other disputed. The contract of August 12th provided for the erection of the second story back building in question according to a certain plan and specifications furnished by appellees, and that for the work stipulated to be done appellant was to pay the sum of $5,320. The specifications were for the erection of the back buildings and contained no reference to any subdivisions of the large room upon its second story into a series of small rooms. It provided however that “ no allowance will be made for extra work whatever unless notice is served upon the owner (the appellant) and without the consent of the owner is obtained before such extra work is started.” The blue print of the plan referred to was produced upon the trial by the appellees and one of them testified that it did not provide for any subdivisions of the rooms upon the second story of the back building. That there was to be in each of the first and second floors of the back building a single room without subdivisions. That appellees furnished an estimate for the cost, first for a subdivision of eight rooms in its second story for the sum of $400 and that appellant concluded to change the subdivisions and increase the number of rooms to sixteen instead of eight, making eight in addition to those which she in the first instance intended to have, and that for these additional eight subdivisions, appellees made an estimate for $275, and this was accepted by appellant in writing. The blue print of the plan was shown one of the appellees when he was on the stand and he was unable to trace out any pencil marks showing any subdivisions of the large room in question. The appellant contended that the original contract of August 12th provided for a subdivision of eight rooms and that she agreed to pay for eight additional rooms the sum of $275 and was liable only for such subdivisions, while appellees contended that such contract provided for no subdivisions of the large rooms; that they made appellant an offer of $400 for a subdivision of eight rooms and that having concluded to increase the number of such subdivisions by eight, she agreed on October 29,1902, to pay for the eight subdivisions the sum of $275. That they accordingly made sixteen subdvisions and are entitled to be paid $400 for the first eight of the same and $275 for the second 'eight.

One of the appellees testified that when he submitted the final estimate upon which the contract was made the subdivision of eight rooms was notin the contract, and that the building permit showed only two large rooms on both floors, and that upon October 29, 1902, they made an estimate for the second subdivision of eight rooms for the sum of $275 and that he told appellant that the first eight rooms were not in the contract and that the estimate of $400 was for such first subdivisions of eight rooms. He also testified that they had made an estimate of $400 for such first subdivisions, but that this work was not made a part of the work to be done under their contract. The other appellee testified that they at one time made an estimate for a subdivision of eight rooms and that nothing was done in regard to this estimate, but in October 21st, they made another estimate for a subdivision of sixteen rooms for the sum of $700 and that finally they were willing to do this work for the appellant for the sum of $675 and that this was new work. That when the pencil marks were traced upon the blue print or plan that he did so at the request of the appellant and it was done in view of their letter of August 2d, proposing to make the subdivisions of eight rooms for the sum of $400. Appellant testified that when one of the appellees stated to her that the work would cost $700 and that she knew that eight rooms would cost $400, she replied that he knew that they were in the original contract, but upon cross examination she said that there was nothing in the contract in regard to the subdivision of eight rooms, but was unable to say that it referred to a plan with eight subdivisions.

The proofs thus present clearly an issue of fact, namely whether there was any evidence to show whether the contract of August 12th, was intended to embrace in it any subdivisions and whether appellant made any contract for eight subdivisions besides the eight that she had specifically agreed to pay for. If the pencil marks on the plan or blue print were placed there not as indicating a part of the work to be done under the contract, but only for the temporary purpose of pointing out how subdivisions could be made in case appellant should conclude to make them, the work of subdivision became new work and was no part of the work to be done under the contract and if so and she agreed to have the work done, she became liable therefor. It follows therefore that the question was clearly one of fact for the jury and the learned trial judge substantially left it for their determination.

But is was contended that the appellees were not entitled to recover because the contract provided that no allowance should be made for extra work unless notice be served and the consent in writing be obtained and that no notice and no consent had been given. There is no difficulty about the principle that no work can be allowed for where there has been no compliance with, the' contract which requires notice: Gillison v. Wanamaker, 140 Pa. 358; Murphy v. Liberty National Bank, 184 Pa. 208. The appellant’s difficulty lies in the application of the principle to the present case. Her contention was that part of the work in question was covered by the original contract and because so was included in the original contract price and was in no sense extra work. If such be the case it did not become the subject of notice. That of the appellees was that it was new work contracted for specifically and was not work under or in pursuance of the original contract and therefore was in no sense understood or agreed by the parties to be extra work within the meaning of such contract and the finding of the jury establishes such -fact. It therefore follows that no notice was required or necessary and the application of the principle clearly fails. Appellant also contended in the court below that the work was not done in a good and workmanlike manner and in accordance with the specifications and that she should be allowed the sum required to remedy the defects in order to complete the work. Where a contract is not fulfilled in some detail there may be deductions made by a jury for compensation for such defective work: White v. Braddock Boro. School District, 159 Pa. 201; Monocacy Bridge Company v. American Iron Bridge Manufacturing Company, 83 Pa. 517.

It appears that appellant’s counsel in a letter called appellee’s attention to certain defects to be cured. Accordingly appellees directed a mechanic to cure the defects suggested. Having done so he reported by letter to them and in it stated that the defects referred to were caused by shrinkage and were inevitable and he testified that the defects were trivial and that the work was done in a good and workmanlike manner and that the materials furnished were first class. This was denied on the part of the appellant who called several witnesses who testified that the work was not done in a good and workmanlike manner and that the material furnished was not first class and what it would cost to do the work to suit her. The question was thus one of fact for the jury and the learned trial judge charged: “ There is another matter concerning which a good deal of evidence has been given and which has caused much argument and that is that the defendant claims that the work all over was not done in a workmanlike manner. This is a matter entirely for the jury. You must determine from the evidence whether it was or was not. I have no comment to make upon that, because the witnesses on both sides were intelligent people and you must draw your own conclusions from their testimony.” He thus unqualifiedly and properly left this question to the jury whose exclusive province it was to determine it.

The learned trial judge’s remark in regard to matters that were insignificant assuredly cannot be successfully stated to have taken this question from the jury.

The appellees claimed $528 for certain work upon the main building for making certain alterations in it. This work was done upon it and was in no manner connected with any of the contracts for the erection of the back building. The exhibit annexed to appellee’s statement sets forth the various items of labor, etc., amounting to $523, and appellant’s affidavit of defense avers that she was entitled to a deduction in the sum of $71.00 for erroneous charges made in regard to the time employed upon the work and practically thus the sum of $71.00 was involved. Upon the trial one of the appellees with his book of original entiles before him testified that the amount due appellees for work and materials furnished was $523 and the carpenter who had charge of the work kept a small book showing the items of charges for this alteration. He testified that he and appellant went over the account in this book and after devoting two hours to it verified it as to time employed in the work and this book was offered in evidence without objection. The evidence thus clearly establishes the extent of the time employed in the work. In view of this and the other proofs it is not deemed necessary to consider whether or not the books of original entries were competent. Their admission even if erroneous did not work any harm to appellant and therefore would not be a ground for reversal: Wynkoop v. Seal, 64 Pa. 361.

The assignments of error are not sustained and the judgment is affirmed.


author: Mr. Justice Dean,

text:
    Cochran v. Fox Chase Bank, Appellant.

      Bonds—Coupon bonds—Stolen bonds—Pledge by thief—Bailment—Title.

    A bank to which stolen coupon bonds, payable to bearer, have been pledged as collateral security for a loan by the thief in the ordinary course of business, without notice to the bank of any infirmity in the title, and without any circumstances to put the bank on inquiry, takes a good title thereto as against him from whom they were stolen.
    Argued March 24, 1904.
    Appeal, No. 204, Jan. T., 1903, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1902, No. 2989, on verdict for plaintiff, in case of Louisa T. Cochran v. The Fox Chase Bank.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Assumpsit for the alleged wrongful conversion of coupon bonds. Before Finletter, P. J.
    The facts appear by the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $3,806. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Edward W. Magill, of Alexander Magill, for appellant.
    The courts of this state, in harmony with those of other American and English jurisdictions, uniformly hold that ordinary coupon bonds of incorporated companies, payable to bearer, are negotiable instruments, and, consequently, pass by manual transfer with or without assignment, and vest in the bona fide holder for value a good and valid title thereto: Beaver County v. Armstrong, 44 Pa. 63; Gibson v. Lenhart, 101 Pa. 522; Mason v. Frick, 105 Pa. 162; Carr v. LeFevre, 27 Pa. 413; Bunting v. Camden & Atlantic R. R. Co., 81 Pa. 254; Fox v. Iron Co., 17 Legal Int. 149.
    It is likewise a well settled principle of commercial law that the bona fide holder or purchaser, for value, before maturity, in the ordinary course of business, of coupon bonds, payable to bearer, which have been stolen, takes a good and valid title thereto and is protected even as against him from whom they were stolen: Mason v. Frick, 105 Pa. 162; Carpenter v. Rommel, 5 Phila. 34; Justice v. Stroup, 4 Phila. 346; Manhattan Savings Institution v. Nat. Exchange Bank, 170 N. Y. 58 (62 N. E. Repr. 1079) ; Ins. Co. v. Hachfield, 73 N. Y. 226 ; Seybel v. Bank, 54 N. Y. 288; Newton v. Porter, 69 N. Y. 133 ; Murray v. Lardner, 69 U. S. 110; Nesbit v. Riverside Independent District, 144 U. S. 610 (12 Sup. Ct. Repr. 746); Andes v. Ely, 158 U. S. 312 (15 Sup. Ct. Repr. 954) ; Provident Life & Trust Co. v. Mercer Co., 170 U. S. 593 (18 Sup. Ct. Repr. 788); McClure v. Oxford Twp., 94 U. S. 429; Wylie v. Missouri Pacific Ry. Co., 41 Fed. Repr. 623; Spooner v. Holmes, 102 Mass. 503; Com. v. Savings Bank, 98 Mass. 12.
    The cases would seem to hold that even a suspicion of a defective title, or knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or even a disregard of means of information, an examination of which would disclose a defective title, are not conclusive of bad faith in the transaction, and will not alone defeat title to negotiable coupon bonds: Seybel v. Bank, 54 N. Y. 288; Manhattan Savings Institution v. Nat. Exchange Bank, 170 N. Y. 58 (62 N. E. Repr. 1079) ; Wylie v. Ry., 41 Fed. Repr. 623 ; L. R. Magee v. Badger, 34 N. Y. 247; Welch v. Sage, 47 N. Y. 143.
    The appellant would respectfully submit that the burden of proof in a ease of this character is not only on him who attacks the validity of the title of the holder of negotiable coupon bonds to show the absence of good faith, but he must go further and show affirmatively the presence of bad faith in the transaction : Murray v. Lardner, 69 U. S. 110; Mason v. Frick, 105 Pa. 162; Carr v. LeFevre, 27 Pa. 413; Gibson v. Lenhart, 101 Pa. 522; McSparran v. Neeley, 91 Pa. 17; Carpenter v. Rommel, 5 Phila. 34; Commonwealth v. Pittsburg, 34 Pa. 496 ; Commissioners v. Bolles, 94 U. S. 104; Commissioners v. Clark, 94 U. S. 278; Munn v. McDonald, 10 Watts, 270; 1 Daniels on Negotiable Instruments, sec. 824.
    When, on the face of a coupon bond or other negotiable instruments, absolute ownership appears in him who is in possession of it, and there is no evidence outside showing or tending to show actual or constructive notice that the ownership is in another, the party taking such negotiable instruments for value and. in the ordinary course of business, takes title thereto good as against the real owner, even though the negotiable instrument be lost or stolen, and where loss results the party who puts it in the power of another to deal with the instrument as his own must bear the consequences of his own negligence or carelessness: Manhattan Savings Institution v. Nat. Exchange Bank, 170 N. Y. 58 (62 N. E. Repr. 1079) ; Shattuck v. American Cement Co., 205 Pa. 197; Westinghouse v. German Nat. Bank, 196 Pa. 249; Aull v. Colket, 2 W. N. C. 822; Ryman v. Gerlach, 153 Pa. 197.

      Edmund Randall, with him James A. Flaherty and H. Gilbert Cassidy, for appellee.
    It is incumbent on the purchaser of the stolen securities to prove affirmatively that he took them in the usual course of business in good faith for a valuable consideration: Robinson v. Hodgson, 73 Pa. 202.
    April 11, 1904:
   Opinion by

Mr. Justice Dean,

We are all of opinion this judgment must be reversed. However, the importance "of the case to the parties and to many others in like business transactions as well as the judicial weight to which the opinion of the experienced judge who tried the issue is entitled, renders it proper for us to again put upon record our view of the law, a course we do not usually adopt when the case is clear and we are all of one mind.

The question involved is: “ Whether or not a bank, to which stolen coupon bonds payable to bearer have been pledged as collateral security for a loan by the thief in the ordinary course of business, without notice to the bank of any infirmity in the title, and without any circumstances to put the bank on inquiry, takes a good title thereto as against him from whom they were stolen.”

The Pox Chase Bank is a banking corporation, incorporated under the laws of the state of Pennsylvania, doing business at Fox Chase, a suburb of Philadelphia. On July 17, 1900, William A. Douglas opened an account with the bank. Douglas at this time was a reputable and respected resident of Fox Chase, well known to the officers of the bank. Pie held responsible and lucrative positions with reputable financial institutions of the city of Philadelphia, being assistant receiving teller of the Guarantee Title & Trust Company, and treasurer of the Chestnut Street Trust and Saving Fund Company. From the time of opening the account until November 21, 1901, his balances varied from several hundred tose veral thousand dollars. A few days prior to the last named date, Douglas applied to the cashier of the Fox Chase Bank for a loan of $2,500 on $4,400 of coupon bonds, payable to bearer, of the Wellsbach Light Company as collateral security. Mr. Pence, the cashier, regularly brought the matter to the attention of the board of directors, who, being satisfied with the responsibility of Douglas and the sufficiency of the collateral, directed the cashier to make the loan. Douglas’s note for $2,500 was accordingly discounted, and the amount thereof less discount, to wit: $2,461.25, placed to his credit on March 21,1901. This sum of money was subsequently drawn out of the bank by Douglas in the ordinary course of business and his account closed.

Some months after this transaction it was discovered, that Louisa T. Cochran, the plaintiff, had placed for safe-keeping with the Chestnut Street Trust Company certain shares of stock of the Wellsbach Light Company; that Douglas had stolen this stock and exchanged it for these coupon bonds of the company and pledged them for the loan. He was prosecuted, convicted and sentenced to prison. On these facts the learned judge of the court below being of opinion the question was one purely of law for the court, peremptorily directed a verdict for plaintiff, and this appeal by defendant followed the judgment entered on the verdict.

These three facts are established by the evidence: 1. The bonds were stolen from the plaintiff; 2. They were transferred by the thief to the bank; 3. They were accepted by the bank in the ordinary course of business, in good faith without knowledge that they had been stolen.

The bonds were ordinary bonds payable to bearer with coupons attached. At a not very remote period in our judicial history such a bond would not have been considered negotiable, as a note or bill of exchange and the holder would have taken it subject to the burden if called upon, of proving his title to it as against one claiming to be the real owner; but at least as early as 1824 in Gorgier v. Mieville, 3 B. & C. 45, such, instruments were placed in England on the same plane as notes and bills of exchange and were held negotiable. The distinction between such a negotiable instrument and ordinary goods and chattels such as horses, pictures and the like is, that it is valuable only as entitling the holder to receive at some future time a certain sum of money, which is precisely the value of a note or bill of exchange. It is, of itself, neither useful nor valuable as other chattels, is but a representative of money and therefore subject to the same rules which regulate the transfer of money. A learned and conclusive discussion of the whole subject of the negotiability of such instruments by Justice Read of this court is given in County of Beaver v. Armstrong, 44 Pa. 63. He gives the history of the decisions both in England and this country, and shows conclusively, that by the settled law, such bonds are negotiable and that the title passes by delivery; there has not been the slightest departure since, at least in this state, from the law-as announced in that case.

It is also settled that a bona fide holder of such an instrument for value before maturity, taken in the usual course of business, acquires a good title thereto, even as against him from whom it was stolen: 2 Cook on Corporations, page 1731, says, “ A bona fide purchaser of a bond which has been stolen takes a good title.” He gives ample authority in his notes supporting this text. Mason v. Frick, 105 Pa. 162, held to the same -rule. In that case, like the one before us, the bond was that of a private corporation, payable to bearer; the plaintiff, Mason, kept it in his safe; the safe was broken open and the bond stolen; the thief transferred it to one Freeman, who knew when he took it that it had been stolen; Freeman pledged it as collateral security for a loan to Frick, the defendant, who took it in good faith. The rule that the bona fide holder of a stolen negotiable security is protected against a claim of the real owner was not even contested by the owner, but it was argued that the bond being that of a private corporation was not negotiable and that the holder took it subject to the equitable right of the real owner. It was held by this court that the law governing the case was that announced in County of Beaver v. Armstrong, supra, and that the bona fide holder was protected against the claim of the real owner. The same rule was held by Judge SharsWOOD sitting in the district court of Philadelphia, Carpenter v. Rommel, 5 Phila. 34, where the defendant had purchased at the open board of brokers a lot of stolen negotiable railroad bonds.

It is further argued by appellee that the circumstances here proven show that defendant acted in bad faith when it took the bonds and therefore is not a bona fide holder. Good faith is defined to be honesty of intention and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The circumstances pointed to here as calculated to arouse inquiry are the facts, that Douglas although reputable was a young unmarried man living with his mother at the village of Fox Chase, not engaged in large business; that he held a subordinate position as clerk in a trust company; therefore it was improbable he would be the actual owner of this amount of bonds. The argument answers itself,—if he was a reputable young man living inexpensively and without ostentation with his mother, the conclusion would be that he did possess, from accumulations, securities worth |2,500, and that if he occupied a position of responsibility in a large trust company, he was honest and worthy. That he offered them in pledge for a loan at a small village bank instead of to a larger institution, only showed that like many others, especially those of limited means, he preferred just that kind of business. There does not seem to us to be a single circumstance in the case or anything in all of them together, which was calculated to arouse suspicion or put the defendant upon inquiry.

Appellant’s first assignment of error, that the court below erred in directing a verdict for plaintiff, is sustained. The judgment is reversed and judgment entered for defendant.


author: Mb. Justice Fell,

text:
    Bryson v. Philadelphia Brewing Company, Appellant.

      Negligence—Master and servant—Relation of master and servant—Driver of wagon—.Evidence.

    In an action against a brewing company to recover damages for personal injuries sustained by reason of the negligence'of a driver of a beer wagon, no recovery can be had, where it appears that the employer of the driver although styling himself an agent of the defendant, was in fact the owner of the wagon which he had bought from the defendant, and that he was engaged in an independent business of buying beer from the defendant, and selling it at a profit to his own customers.
    Argued March 31, 1904.
    Appeal, No. 285, Jan. T., 1903, by defendant, from judgment of O. P. No. 3, Phila. Co., June T., 1902, No. 793, on verdict for plaintiff in case of Frances Bryson by her next friend, John Bryson, v. Philadelphia Brewing Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries to a minor girl. Before McMichael, J.
    The opinion of the Supreme Court states the case.
    Defendant presented the following points :
    2. It is undisputed that the horses and wagon were the property of one Ingénito and were in charge of his servant, the driver. The fact that the initials of the defendant and the number 4 remained upon the wagon, which had formerly belonged to the defendant, was but prima facie proof it was the defendant’s wagon and in its servant’s control which, however, has been overcome by the undisputed facts established to the contrary. Therefore your verdict should be for the defendant. Answer: Declined. [2]
    3. It is immaterial to this issue whether or not Ingénito was engaged in selling beer without a license, and this should not be considered by the jury at all. Answer: Declined. [3]
    4. Whether or not Ingénito was engaged in selling beer, it is undisputed that he delivered it and collected the empty boxes through his own servant and team after receiving it from the defendant. As the alleged liability arose in the delivery— not in the sale—the verdict should be for the defendant. Answer: Declined. [4]

      5. Ingénito was engaged in the delivery of beer and collection of empty boxes through his servant whose alleged negligence, the plaintiff claims, caused the accident. Under the facts of this case Ingénito was making the deliveries and collections either as a dealer or as an independent contractor for delivery-and collection. His mere description of himself by the Italian word “ agenta ” does not make him the defendant’s servant, when the undisputed facts show him to be but a carrier, and your verdict should be for the defendant. Answer: Declined. [5]
    6. Under all the evidence in this case, your verdict should be for the defendant. Answer: Declined. [6]
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      JErrors assigned were (2-6) above instructions, quoting them.

      Thomas Learning, for appellant.
    Defendant is not liable for the driver’s negligence because he was not defendant’s servant, but the servant of the grocer.
    The grocer’s relation to the defendant is not to be determined by any single word or phrase, but by the whole uncontradicted testimony.
    The issue was not whether the grocer was violating the liquor laws, but whether the defendant was liable for the negligence of his servant.
    Even if the grocer had been defendant’s agent, he was acting independently in the delivery of the beer through his servant.
    Had the grocer been an agent he could not have delegated his agency to his driver without authority.
    The defendant was entitled to binding instructions.

      W. Wilson Qarlile, for appellee.
    Whether the injury was caused by one in the service and employment of defendant was a question of fact, the positive and convincing evidence of which was properly submitted to the jury and found by it in the affirmative: Singer Mfg. Co. v. Rahn, 132 U. S. 518 (10 Sup. Ct. Repr. 175).
    A brewing company cannot escape the responsibility for negligence in the conduct of its business by delegating its chartered privileges to an independent contractor: Stewart’s App., 56 Pa. 413; McWilliams v. Detroit Central Mills Co., 31 Mich. 274; Holliday v. Tel. Co., L. R. (1899) 2 Q. B. 392; Sanford v. Pawtucket St. Ry. Co., 19 R. I. 537 (35 Atl. Repr. 67) ; Rome, etc., R. R. Co. v. Chasteen, 88 Ala. 591 (7 So. Repr. 94); Lancaster Ave. Improvement Co. v. Rhoads, 116 Pa. 377.
    The defendant is liable in this case because it received the benefits of the services of Ingénito and Garzilio, and because it held out to the public that they were in charge of its property and engaged in its service: Denver, etc., R. R. Co. v. Gustafson, 21 Colo. 393 (41 Pac. Repr. 505) ; Cargill v. Duffy, 123 Fed. Repr. 721; Kimball v. Cushman, 103 Mass. 194; Quarman v. Burnett, 6 Mees. & Wels. 499; Wichtrecht v. L. & S. Fasnacht, 17 La. Ann. 166.
    April 11, 1904:
   Opinion by

Mb. Justice Fell,

The plaintiff was injured by a team of horses which ran away because of the negligence of their driver. It was undisputed that the horses and the wagon to which they were harnessed belonged to an Italian engaged in the grocery business, and the driver was employed and paid by him. The horses were at times used to a delivery wagon in which beer was carried from the defendant’s brewery to the grocer’s store and to his customers and in which the empty bottles were returned to the brewery. This wagon had at one time belonged to the defendant, and the initials of the company’s name and the number of its license were painted on its side. At the time of the accident it was loaded with boxes of bottles that belonged to the defendant.

The only testimony in the case that tended in any way to fix a liability on the defendant was that of the grocer who said in his examination in chief that he worked for the brewing company as agent, and that his earnings depended upon the amount of beer sold. The testimony of this witness was guarded, his answers as to his selling beer were evasive, and his anxiety not to make disclosures that would subject him to a prosecution for selling liquor without a license was manifest. But in his cross-examination his relations with the brewing company were fully disclosed. It appeared that he purchased beer for the purpose of selling it to his customers, and paid for it at the rate of one dollar a box. On the return of a box with the empty bottles thirty cents was repaid to him, or if he obtained the beer on credit, as was sometimes the case, he was allowed the rebate on settlement. This method of securing the return of empty boxes and bottles was followed whenever a sale of beer was made, and he was treated in the same manner as other purchasers. The only relation between the brewing company and him was that of seller and buyer, and his horses and wagon were used and his driver employed solely in the prosecution of his own business. If there had been a doubt as to this, the case should have been submitted to the jury, but there was none. This testimony was that of the- plaintiff’s own witness, and it was the only evidence relied on to establish agency or employment. The fact that he called himself an agent and spoke of his profits as earnings was unimportant, in view of the disclosure of the real character of his business. The testimony may have indicated that he was selling beer in violation of law, and because of his use of a delivery wagon on which were the defendant’s initial and license number it may have given rise to a suspicion that he was doing this with the knowledge and connivance of the officers of the brewing company. He had obtained two old wagons of the company, one by purchase, which he afterwards sold, and one by gift. The ownership of the wagon in use at the time of the accident was clearly shown to be in him. But the issue on trial was not whether there had been a violation of the liquor law, but whether the driver of the wagon was the servant of the defendant or engaged in the prosecution of its business. In support of this there was not sufficient evidence to warrant the submission of the case to the jury.'

The judgment is reversed and judgment is now entered for the defendant.


text:
    Lafferty’s Estate.

      Will—Trust and trustees—Power—Power of appointment.

    A testator created a trust estate which, was not to terminate until his youngest grandchild living at the death of his last surviving- child should arrive at full age. He gave to each of his children power to appoint “to and among his or her children or issue in such shares, proportions and estates absolutely or upon trusts, as he or she may so will or appoint.” One of the sons died leaving his estate to his three children absolutely. One of them, a daughter, subsequently died leaving a will by which she directed certain annuities to be paid by her executor and gave the residue to her children. At the time of her death the trust created by her grandfather’s will had not expired. Held, that the income from the trust should be paid to the granddaughter’s executor, and not to the guardian of her children.
    Argued Jan. 18, 1904.
    Appeal, No. 151, Jan. T., 1904, by Charles H. Lafferty et al., from decree of O. C. Phila. Co., Oct. T., 1886, No. 587, sustaining exceptions to adjudication in estate of Charles Lafferty, deceased.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Exceptions to adjudication.
    The auditing judge, Ashman, J., stated the facts to be as follows :
    Rose E. Carr was a daughter of Francis Lafferty, a son of the testator. Francis Lafferty, who died in 1896, by his will, gave his estate in equal shares to his three children, Charles B. and Frank Lafferty, and Rose E. Carr, absolutely. Frank died intestate and without issue, and in December, 1901, Rose died, having first appointed the Philadelphia Trust Company executor and trustee of her estate and guardian of her two children, both of whom are minors.
    Charles Lafferty, the original testator, devised and bequeathed his estate to his executors in trust to hold the same during the life of the survivor of his children, and thereafter until his youngest grandchild living at the death of such surviving child should arrive at lawful age, and to pay certain annuities to his children. He provided further that on the death of a child leaving issue, the said executors should hold the share of the child so dying, for the use of the issue, in such proportions as the said child should appoint by will, but subject to the trusts of testator’s will, during the time limited for the same to endure ; “ that is, during such trust the annuities shall be subject to the disposal of my children as aforesaid, and the shares of the residuary estate to take effect in possession at the expiration of the trust.” The same limitation is expressed in the clause of his will relating to the death of a child leaving issue, but without having exercised the power of appointment.
    The trust is not yet executed, one child of testator still surviving and grandchildren also surviving under twenty-one.
    The income from the trust estate of Charles Lafferty which passed to Rose E. Carr under her father’s will was directed by the auditing judge to be paid to the guardian of Rose E. Carr’s minor children.
    Exceptions to the adjudication were sustained, Penrose, J., filing an opinion which was in part as follows:
    We think that the share of income belonging to the estate of Rose E. Carr should be awarded to her executor and not to the guardian of her children. Under the will of her father exercising the power of appointment given to him by the will of his father—the present testator—she acquired the absolute ownership of the share appointed to her, though possession of the legal estate cannot be had until the termination of the trust created by the grandfather’s will. But in the meantime her share of the income must go as she had directed by her will, viz: to her executors who are charged with the payment of the annuities there provided for, the residue only, after such payment, passing to the guardian of her children. The error has probably arisen from reading the will of the original testator as if the limitations attached to the powers of appointment given by him to his children extended to the estates given by them to their children, although the power is to appoint “ to and among his or her children or issue in such shares, proportions, and estates, absolutely or upon trusts, as he or she may so will or appoint.” The donees of the power could not exercise it in favor of persons not belonging to the designated class of objects, but their appointees acquired all rights of ownership, unlimited in power of disposition.
    The seventh and eighth exceptions are sustained, and the adjudication modified accordingly.

      Errors assigned were in sustaining exceptions to adjudication.

      Eli Kirie Price, with him, Walter Willard and George L. Crawford, for appellants.

      Frank A. Hartranft, for appellee.
    April 18, 1904:
   Per Curiam,

The decree is affirmed on that part of the opinion of the court below that relates to the questions raised in this court.


author: Pen Curiam,

text:
    March, Appellant, v. Traction Company.

      Negligence—Street railways—Collision between wagon and car.

    What is proper control of horses in driving on a city street depends on the circumstances.
    To come to a right-angled street crossing in the dark at a trot is in itself evidence of negligence.
    In an action against.a street railway company to recover damages for personal injuries, the plaintiff testified that on the night of the accident he was driving on the west side of a street a two-horse delivery wagon, and that at the corner of a cross street it collided with a car of the defendant going east on the cross street. He testified that he looked, and that he had his horses under control. The collision occurred before the wagon reached the tracks, being struck “between the horses’ rear and the seat of the wagon.” The car was only forty feet away at the time plaintiff said he looked and lighted up in the usual manner. Held, that a nonsuit was properly entered.
    Argued Jan. 18, 1904.
    Appeal, No. 40, Jan. T., 1908, by plaintiff, from order of C. P. No. 3, Pkila. Co., Dec. T., 1901, No. 627, refusing to take off nonsuit in case of Osborne March v. Union Traction Company.
    Before Mitchell, C. J., Dean, Brown, Mestrbzat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McCarthy, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      William, M. Crowther, for appellant.

      Thomas Learning, for appellee, was not 'heard.
    April 18, 1904:
   Pen Curiam,

About 8 o’clock P. M. on April 24, the plaintiff, by his own account came down Twentieth street, on the west side, driving a two-horse delivery wagon at a trot, and at the corner of Chestnut street collided with a car of the defendant company going east on Chestnut street. He testified that he looked but saw no car, and that he had his horses under control. But it is manifest that both statements cannot be true, for the collision occurred before his wagon reached the tracks, being struck “ between the horses’ rear and the seat of the wagon.” The car, according to the testimony, was only forty feet away, was lighted up in the usual manner, and it is plain that if he had looked with due care, as he ought to. have looked, he could not help seeing it: Burke v. Union Traction Co., 198 Pa. 497; Warner v. Peoples’ St. Railway Co., 141 Pa. 615.

If we take the other branch of the question, the speed at which plaintiff was driving, the case is equally clear. What is having horses under control is a matter that varies with the circumstances. They might be under control so far as relates to running away or to collisions with teams coming in an opposite direction, and yet not under control, as the event proved, for the avoidance of such a collision as occurred. To come to a right-angled street crossing in the dark at a trot is in itself strong evidence of negligence. Plaintiff could only see a few feet westward on Chestnut street, the direction in which cars would come, until he passed the house line. He was bound to know, therefore, that it was a point of danger, and not only to keep such a lookout as would inform him of the approaching car, but also such control of his team as would enable him to stop on short notice of a threatened collision. It is clear from his own testimony that he did neither.

Judgment affirmed.


text:
    Scanlin, Appellant, v. Conshohocken Borough.

      Equity—Jurisdiction—Remedy at law—Right of passage over land—Dedication to public use.

    Where in an equity suit it appears that the whole question in controversy is whether the use by the public of a passage over land for more than twenty-one years was equivalent to a dedication, or was merely permissive and might be stopped by the owners of the land at their will, the bill will be dismissed for want of jurisdiction in equity without prejudice to the rights of the parties at law.
    Argued Feb. 1, 1904.
    Appeal, No. 188, Jan. T., 1904, by plaintiffs, from decree of C. P. Montgomery Co., Oct. T., 1902, No. 1, dismissing bill in equity in case of Mary Scanlin, James P. Scanlin and Lizzie A. Scanlin v. Burgess and Council of Conshohocken Borough and David H. Ross, William Little and John A. Harrokl, Street Commissioners.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The plaintiffs in their bill filed averred that they were the owners of a tract of land bounded by Corson and Foulke streets, Conshohocken ; that the defendants had caused to be laid a pavement and curbing across said lots and not on the street lines ; that plaintiffs had enclosed it along the property line with a fence, and that defendants had threatened to tear the fence down, and prayed for an injunction restraining defendants from so doing and further relief.
    Defendants answered, denying that they had trespassed on said lots, and alleged that Elm street (formerly Foulke street) was opened about twenty-four years ago across the southern corner of plaintiffs’ lots and has been used since under a claim of right.
    The court in an opinion by Weand, J., in which facts were found and conclusions of law stated, dismissed the bill because of lack of jurisdiction of equity to determine the controversy in issue.

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

      Henry M. Tracy, for appellant.

      William F. Meyers, with him Frederic L. Clark, for appellee.
    April 18, 1904 :
   Per Curiam,

It is conceded that the title to the lots in question is in plaintiffs, but that for more than twenty-one years the public have been in the habit of using a short cut across the corner. The whole question in controversy is whether the use was equivalent to a dedication by which the public have acquired an easement of way, or was merely permissive and may be stopped by the plaintiffs as owners at their will. This is the exact question held in O’Neil v. McKeesport, 201 Pa. 386, to be a question at law, and not cognizable in the first instance, in a court of equity. We do not pass therefore on the merits of the case but affirm the decree dismissing the bill for want of jurisdiction in equity without prejudice to the rights of the parties at law.


text:
    Knipe v. Livingston, Appellant.

      Partnership—Accounting—Defective bookkeeping.

    A defective and unscientific method of bookkeeping pursued by a partner in keeping the partnership books cannot be made the means of surcharge against him, where it does not appear that the method adopted was due to any wrong motive or improper purpose, or that it resulted in any injury or disadvantage to the other partner.
    The court will not surcharge the estate of a deceased partner because of great laxity by the deceased in the collection of outstanding accounts, some of which might have been saved by more diligent attention, where it appears that the facts as to the accounts were known at the time to the surviving partner, and not objected to by him, and that the accounts had finally been charged off to profit and loss with his assent.
    An error of judgment by a partner in carrying the assets of the firm at a great overvaluation for a series of years, the result of which was to mislead the firm as to its financial strength, cannot be used as a ground of surcharge against the partner, where no advantage was intended or accrued to him from it.
    Argued Feb. 1, 1904.
    Appeal No. 203, Jan. T., 1903, by defendant, from decree of C. P. Montgomery Co., June T., 1902, No. 1, on bill in equity in case of Irvin P. Knipe, Executor of Wm. H. Bodey, Deceased, v. James Livingston.
    Before Mitchell, G. J., Fell, Broto, Mesteezat and Pot-tee, JJ.
    Affirmed.
    Bill in equity for a partnership accounting.
    The opinion of the Supreme Court states the case.
    The court entered the following decree:
    And now, January 15, 1903, the court finds that in the settlement of the affairs of the partnership between Wm. H. Bodey and James Livingston as continued by the said Livingston and the executor of the said Bodey there is due from the said James Livingston to the estate of the said William PI. Bodey the sum of 13,444.45, any assets of the firm collected hereafter to be equally divided between the said James Livingston and the said Irvin P. Knipe, executor of the said William H. Bodey.

      Error assigned was the decree of the court.

      Henry Ereedley, for appellant.

      Irving P. Wanger, for appellee.
    April 18, 1904 :
   Per Curiam,

The learned judge below found that there had been a defective and unscientific method of bookkeeping by Bodey, the partner having charge of that department of the business, but that the books were at all times open to inspection of his partner, and that after the death of Bodey an examination by Livingston, the surviving partner, “ with the assistance of counsel and trusted friends failed to point out any item showing a mistake or error in the bookkeeping except as to the interest paid with the cash of the firm,” the objection to which was not sustained. The learned judge therefore found explicitly that “ it was not shown that this imperfect method of bookkeeping was due to any wrong motive or improper purpose on the part of Mr. Bodey, or that it resulted in any injury or disadvantage to Mr. Livingston.”

It appeared that there had been great laxity by Bodey in the collection of outstanding accounts and some had been lost which more diligent attention might have saved, but that this was known at the time to Livingston and not objected to and the accounts had finally been charged off to profit and loss with his assent. The court therefore refused to surcharge Bodey’s estate with these items.

It also appeared that the assets of the firm were greatly overvalued for a series of years partly from carrying the bad debts on the books as good and partly from imperfect inventories and failure to allow for depreciation of stock. The result of this was the misleading of the firm as to its financial strength. But this was caused by error of judgment, not by fraud. It operated to mislead both partners alike, and no advantage was intended or accrued to Bodey from it.

The learned judge below,' in the face of these difficulties after a careful and patient investigation stated an account between the parties, and we have not been convinced that it is erroneous-in any of the particulars complained of.

Decree affirmed at the costs of appellant.


author: Mr.. Justice Brown,

text:
    Board of Public Education of the First School District of Pennsylvania v. Ransley, Appellant.

      School law—■Philadelphia—First school district of Pennsylvania—Controllers—Purchase of supplies.

    Under the Acts of March 3, 1818, P. L. 124, January 23, 1821, P. L. 13, February 9, 1835, P. L. 22, April 16, 1845, P. L. 502, February 2, 1854, P. L. 21, March 15, 1870, P. L. 437, and June 1, 1885, P. L. 37, the school system of the city of Philadelphia, is wholly under the control of the board of public education, except in the one matter of raising funds for school purposes. The Act of April 4, 1903, P. L. 153, creating the department of supplies, does not change the power of the board of education to administer the public school system, or take from it the right to purchase supplies for school purposes.
    Argued March 31, 1904.
    Appeal, No. 75, Jan. T., 1904, by defendant, from decree of C. P. No. 2, Phila. Co., Dec. T., 1903, No. 830, on bill in equity in case of the Board of Public Education of the First School District of Pennsylvania v. Harry C. Ransley, President of Select Council of the City of Philadelphia et al., and Frederick J. Shoyer, Director of the Department of Supplies of the City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction."
    The relief prayed for was:
    (a) A decree enjoining defendants from appropriating moneys deemed necessary for school purposes for 1904 to the department of supplies.
    (5) A decree that it is the duty of the defendants to appropriate such moneys to complainant.
    (c) An injunction restraining the director of the department of supplies from demanding or receiving any aproppriation for the purchase of supplies for said school district, and for advertising for said supplies or distributing or administering the same.
    (d) General relief.
    The court in an opinion by Sulzberger, P. J., entered a decree in accordance with the prayers of the bill.

      Error assigned was the decree of the court.

      Ernest Lowengrund and James Alcorn, assistant city solicitors, with them John L. Kinsey, city solicitor, and D. T. Watson, for appellant.
    The board of public education is a department of the city of Philadelphia: Perrot v. Phila., 83 Pa. 479; Com. v. Decamp, 177 Pa. 112; Com. v. Philadelphia, 176 Pa. 588 ; Bailey v. Philadelphia, 167 Pa. 569 ; Com. v. Davis, 199 Pa. 278.
    The “ business of the city,” as those words are used in the act of April 4, 1903, include the purchase of supplies for the public schools: Com. v. Philadelphia, 176 Pa. 588 ; Johnston v. City, 113 Fed. Repr. 40; Com. v. Davis, 199 Pa. 278.

      John Cr. Johnson, for appellee.
    The title of the act of 1903 is misleading and defective if it was intended to regulate’ the purchase of supplies for public schools of the first school district.

      The act itself discloses no intention to interfere with the existing system of purchasing school supplies : Ayars’s App., 122 Pa. 266.
    If the act of 1903 be construed as the city claims it should be, it is unconstitutional: Chalfant v. Edwards, 173 Pa. 246 ; Sugar Notch Borough, 192 Pa. 349 ; Com. v. Gilligan, 195 Pa. 504.
    April 11, 1904:
   Opinion by

Mr.. Justice Brown,

By the constitution of 1790 the people of this commonwealth imposed upon the legislature the positive duty of establishing schools throughout the state for the free education of the poor. The constitutional provision was: “ The Legislature shall, as soon as conveniently may be, provide, by law, for the establishment of schools throughout the state, in such manner that the poor may be taught gratis.” In carrying out this mandatory direction, the Act of March 3,1818, P. L. 124, was passed, entitled “ An Act to provide for the education of children at public expense within the city and county of Philadelphia.” With constantly increasing interest in the education of the young, the legislature, in reflecting public sentiment, from time to time provided for public schools, created school districts, and, finally, by the Act of May 8,1854, P. L. 617, established a system of common school education for all the counties of the commonwealth. What was first a constitutional requirement, that the legislature should establish schools for the education of the poor “ gratis,” in time became a universal demand for free education for all classes, and, for years, to thousands of the children of the rich as well as the poor, common schools have been the only colleges. By our present constitution the legislature is to provide for the education of all the children of the commonwealth through “ a thorough and efficient system of public schools.” A review of constitutional provisions and legislative enactments clearly shows that the state has regarded the education of its children as one of its duties and functions, the performance of which it has as yet delegated to no municipality. Though by the act of 1854 every township, borough and city of the commonwealth is made a separate school district, its affairs are not managed by the township or municipal authorities, but by boards of school directors or controllers elected for that purpose. “ School districts, as quasi corporations belonging to the public school system, have no necessary connection with municipal government Ayars’s Appeal, 122 Pa. 266. “ School directors are by no means municipal-officers. They are not invested with any of the municipal powers, nor are they charged with the performance of municipal functions Chalfant v. Edwards et al., 173 Pa. 246. Though it might be interesting to dwell upon this, we need not now do more than call attention to it in passing upon the question before us of the right of the board of education of the first school district of Pennsylvania to continue to purchase supplies for its public schools. Whether this right has been taken away from it and transferred to the department of supplies of the city of Philadelphia, depends upon the proper construction of statutory provisions.

By the act of March 3, 1818, tlie first school district of the state of Pennsylvania was established. The district was to be coterminous with the county of Philadelphia. It was divided into sections, the city of Philadelphia constituting the first, and the remaining portion of the county the other three sections. School directors were to be appointed for the different sections, and they, in turn, were to select representatives to be controllers over the whole district. These controllers, by the 6th section of the act, were authorized to draw orders upon the county treasurer for any sum or sums of money necessary for carrying the “ act into complete execution.” To do so, schoolhouses were to be erected and maintained within the district; and, by the 9 th section of the act, the directors were to “ provide all things necessary for maintaining and conducting the schools in their respective sections.” By the 5th section the controllers themselves were authorized “ to provide such suitable books as they shall deem necessary for the use of the pupils belonging to the different schools.” The predecessors of the appellee had full authority, by the act of 1818, to make requisitions upon the treasury of the county of Philadelphia for whatever moneys might, in their judgment, be needed by them or the directors for the maintenance and support of the public schools under their supervision and control.

The Acts of January 23, 1821, P. L. 13, and February 9, 1835, P. L. 22, are the next legislation to be noticed. By them the school controllers could annually require the levying of taxes sufficient for school purposes, which, when collected, were to be placed to their credit and be at their disposal.

The next act to engage attention is that of April 16, 1845, P. L. 502, by which the controllers of the public schools of the several sections of the city and county of Philadelphia were united as one corporate body, to be known as “. The controllers of the public schools of the first school district of Pennsylvania.” This title was changed by the Act of March 15, 1870, P. L.,437, to “The Board of Public Education of the First School District of Pennsylvania,” and it succeeded to all the powers and privileges conferred upon and exercised by the board of controllers. The act of 1845 did not affect the power of the controllers to expend all moneys raised by their authority for school purposes. Up to the passage of that act the question now raised by the appellant could not have arisen, for the controllers of the schools were supreme in the expenditure of the moneys of the district.

We come now to the Act of February 2, 1854, P. L. 21, which is entitled “ A further supplement to an act entitled ‘ An act to incorporate the city of Philadelphia.’ ” Its 23d section is : “ Immediately upon the organization of the said board of controllers, all property real and personal, all trusts and trust funds, and all estate, rights, privileges and immunities whatsoever, that are or shall be by law or otherwise vested in, owned, possessed or enjoyed by, or that in any wise appertain to the corporation created by the act of assembly passed April sixteenth, Anno Domini, one thousand eight hundred and forty-five, entitled ‘ An act relating to the controllers of the public schools of the city and county of Philadelphia,’ shall be vested in and be held, possessed and enjoyed by the city of Philadelphia, subject to all the trusts, conditions and liabilities now legally applicable thereto, and all sums of money due, payable to or received by the board of controllers, shall be paid into the city treasury, and all sums expended by or for the purposes of the board of controllers, shall be paid by the city treasurer, upon orders drawn under appropriations regularly made by councils.” By this act the controllers of the public schools were no longer to raise by taxation the moneys needed for school purposes. The municipal authorities were to levy and collect the same, but the controllers were, on or before March 1, of each year, to furnish to councils an estimate of the amount that, in their judgment, would be required for the current fiscal year for the support of the public schools.

Ity the twenty-third section of the act the moneys for school purposes were to be “ paid by the city treasurer, upon orders drawn under appropriations regularly made by councils.” By whom were these orders to be drawn? Manifestly by the controllers of the public schools, for no one else was authorized by the act to draw them, and the power theretofore given them to do so was not taken from them. Since the passage of that act all orders upon the treasurer of the city of Philadelphia for moneys needed for school purposes have been drawn by the controllers and the appellee, their successor, and honored without question. If the authority of the controllers to continue to make their requisitions upon the city treasurer was not given in express words by the act of 1854, it was continued by clearest implication.

The act of 1854 did not, as is contended by one of the learned counsel for appellant, vest “ all the power in reference to education in the city of Philadelphia.” The title to all the property, real and personal, that belonged to the con troll ers of the public schools, all trusts and trust funds, and all estate, rights, privileges and immunities, owned or enjoyed by them became vested in the city of Philadelphia ; but the board of controllers was continued and recognized as such by tbe very words of the act. Not a line can be found in it indicating any intention of the legislature to interfere with its control and management of the schools, which necessarily involve the power to furnish them with proper supplies. It is to be noted that no powers of the board, in the administration of the affairs of the schools, are taken from it by the act, and the power of furnishing supplies, so wisely lodged in it by the act of 1818, is not to be taken from it by anything short of clear and unequivocal words of the legislature. These are not found in the act of 1854. By its fiftieth section provision is made for the establishment and regulation of different departments of the city, to wit: .“ For law, police, finance, surveys, highways, health, water, gas, fire, the poor, the city proper and the public grounds,” and over these departments, through the mayor and proper committees, the councils were to maintain a supervision; but the controllers of the public schools are not named in the classification of departments, and are, therefore, not included in it. Expressio unius est exclusio alterius. Over the board of controllers and the exercise of their powers, necessary to the proper control, management and administration of the affairs of the schools, the legislature gave no councilmanic supervision. We are all of one mind with the learned judge below, that “ the whole legislation of 1854 therefore left the controllers of the public schools in undivided control of the administration and management as well of the school funds as of the realty, and we fail to find in it any authority to supersede the board of controllers in the exercise of any essential function of administration.” In Johnson v. City of Philadelphia, 47 Pa. 382, with the act of 1854 before him, Woodward, J., in speaking for the court, said: “ From an examination of the acts of assembly, to which our attention has been directed in this case, it is apparent that everything pertaining to the public schools, within the city and county of Philadelphia, has been committed to the board of controllers, excepting only the public purse, which has been kept carefully in the hands of the city councils. The controllers have power to establish schools, to provide school books, to make rules and regulations for the conduct of the schools, to appoint teachers, and to fix their salaries, but they have no power to raise or appropriate revenues.” In Commonwealth v. Davis, 199 Pa. 278, our Brother Mestrezat said, in referring to the act of 1854: “ The legislation since that date has more surely and firmly placed with the board of public education everything pertaining to the public schools of the city. The financial affairs of the city are controlled by the councils, and without the authority of that body, previously obtained, no funds of the city can be used for any purpose. That must be conceded. But having appropriated the funds for school purposes, the duty of the councils has been performed, and that of the board of public education commences.”

If the appellee is to be interfered with by the city of Philadelphia in properly administering the affairs of the public schools by taking from it the power of determining what supplies are needed and then purchasing them, the right of the city, if it exists, to so interfere, must be found in the acts of June 1, 1885, P. L. 37, and of April 4-, 1903, P. L. 153. The first, known as the Bullitt bill, is entitled “ An act to provide for the better government of the cities of the first class in this commonwealth.” Nothing in the title indicates any intention of the legislature that the school system of the first school district of Pennsylvania is to be in any manner affected by the act; and, reading it through, no such intention, undisclosed in the title, can be found. There is not a single direct reference in it to the board of education of the city of Philadelphia. By article two there are to be nine executive departments, the seventh being the department of education. A separate article is subsequently devoted to each of the executive departments, except that of education and the sinking fund commission, and provision is made in detail for the organization and management of each. The department of education is not mentioned again, except in article nine, which, in a line, provides that it “ shall continue as now established by law.” As established by law up to that time, it was the first school district of Pennsylvania, clothed with the power of administering the affairs of the public schools in that district expressly conferred upon it by the legislature ; and that authority had not transferred to the city the control of the schools as one of its affairs. Public education had not become one of its municipal functions or part of its business as a city. When the act of 1903 was passed the situation was unchanged, and as its provisions are that the department of supplies shall purchase and supply “ all articles of personal property required in the conduct of the business of the city,” no time need be consumed in showing that they do not apply to a business which the city is not conducting.

Decree affirmed and appeal dismissed at appellant’s costs.