author: Mb,. Justice Fell,

text:
    Beach v. Pennsylvania Railroad Company, Appellant.

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

    The rule that one who goes on a railroad track immediately in front of a moving train which he saw or could have seen if he had looked at the proper place will be presumed to have been negligent, is in its nature applicable only to clear cases where the facts and the inferences to be drawn from them' are free from doubt and the conclusion of negligence is irresistible.
    Where negligence has been shown in the management of a train and it appears that the person injured stopped, looked and listened at the proper place, in good faith and for the accomplishment of the end in view, and exercised care as he advanced to the tracks, the case is necessarily for the jury, although there may be a dispute raised by the testimony as to whether he should have stopped longer or stopped again and have taken more precaution as he advanced.
    In an action against a railroad company to recover damages for personal injuries, it appeared from the plaintiff’s testimony that he stopped, looked and listened thirty feet from the crossing, the usual place at which to stop, that he continued to look both ways and to listen as he approached the track, and neither saw nor heard the train until the instant his horse was struck. From the place where he stopped he could see less than 200 feet in the direction of the train. This view was not materially enlarged as he approached the track because of a curve in the railroad and of a warehouse which stood nineteen feet from the rails and 174 from the crossing. The night was dark and rainy, the train was running rapidly, and no notice of its approach was given by bell or whistle. The warehouse not only obstructed the view but deadened the sound of the approaching train and the curve in the road caused the light of the engine to fall on the far side of the track until the engine was close to the crossing. Reid,, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued May 16, 1905.
    Appeal, No. 252, Jan. T., 1904, by defendant, from judgment of C. P. Lancaster Co., Oct. T., 1902, No. 221, on verdict for plaintiff in case of Jacob Beaclx v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Landis, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points :
    2. Where a collision takes place at the moment when a person, either on foot or in carriage, goes upon a railroad track, he cannot recover, no matter what his testimony may be as to stopping, looking and listening, because the fact of the immediate collision conclusively proves that he did not exercise his senses as to the approaching train. Answer: Our answer to that point is, that it is refused, under the facts of this case. There may be circumstances, to which these principles do not apply, and to say that it is a universal rule, even as to a traveler in a carriage, under all circumstances, has not, in my judgment, been decided by the courts. I conceive the rule to be that, where the person on the highway approaches a railroad crossing, and the evidence shows that, by the vigilant exercise of his senses of sight and hearing, an approaching train could have been observed or discovered in time to avoid a collision, and a collision takes place at the moment .he steps or goes upon the track, he is, as a matter of law, guilty of contributory negligence and cannot recover; but when the evidence is contradictory on this point, the jury must decide. [1]
    3. There is evidence in this case that the plaintiff, from a point in the public road opposite the Benedict house, and from thirty-four to forty feet east from the railroad track, could see northward along the railroad to the tobacco shed, and that he did not again stop, look and listen for the approaching train, and that at a point ten or twelve feet from the railroad he could have seen northward along the railroad 425 feet, and, therefore, not again stopping before entering on the crossing, he was guilty of negligence. Answer: If the jury believe these to be the facts, then the plaintiff was guilty of contributory negligence and the verdict should be for the defendant. Whether or not they are the facts is for the jury. [2]
    5. There is no evidence in this case that the crossing was dangerous, or that the speed of the train was excessive, or that it was not the usual and ordinary and schedule rate of speed, and, therefore, there is no evidence of negligence as to the rate of speed. Answer: The only evidence on this question, on the part of the plamtiffs, was that the train was going fast, and one witness, in addition, attempted to give the rate of speed at from thirty-five to forty miles an hour. His knowledge, however, upon the subject of speed, he afterwards admitted, was not extensive. The evidence for the defendant was that the train was going on schedule time; [3]
    8. Under all the evidence in the case the verdict should be for the defendant. Answer : Refused. [4]
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      N. M. North, with him H. M. North, Jr., for appellant.—
    The case should not have been submitted to the jury: Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Kraus v. Penna. R. R. Co., 189 Pa. 272; Hughes v. D. & H. Canal Co., 176 Pa. 254; Hovenden v. R. R. Co., 180 Pa. 244; Moore v. R. R. Co., 108 Pa. 349; Marland v. R. R. Co., 123 Pa. 487; R. R. Co. v. Aiken, 25 W. N. C. 13; Hauser v. R. R. Co., 147 Pa. 440; R. R. Co. v. Cadow, 120 Pa. 559; Kelley v. R. R. Co., 19 W. N. C. 400; R. R. Co. v. Mooney, 126 Pa. 244; Myers v. R. R. Co., 150 Pa. 386; Holden v. R. R. Co., 169 Pa. 1.

      O. H. Montgomery, for appellee.
    The following recent authorities unquestionably support the learned court below in the submission of the questions of negligence and contributory negligence to the jury in this ease: Bard v. Phila., etc., Ry. Co., 199 Pa. 94; Cromley v. Penna. R. R. Co., 208 Pa. 445; Toban v. Coal Co., 24 Pa. Superior Ct. 475; Summers v. R. R. Co., 24 Pa. Superior Ct. 615; Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Fry v. Penna. R. R. Co., 24 Pa. Superior Ct. 147; McNeal v. Pittsburg, etc., Ry. Co., 131 Pa. 184; Ellis v. Lake Shore, etc., R. R. Co., 138 Pa. 506; McGill v. Pittsburg, etc., Railway Company, 152 Pa. 331; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233; Davidson v. Railway Company, 171 Pa. 522; Laib v. Pennsylvania R. R. Co., 180 Pa. 503; Ragan v. Pennsylvania R. R. Co., 189 Pa. 572; Muckinhaupt v. Erie Railroad Co., 196 Pa. 213; Breunniger v. Penna. R. R. Co., 9 Pa. Superior Ct. 461; Elston v. Delaware, etc., R. R. Co., 196 Pa. 595; Newman v. D., L. & W. R. R. Co., 203 Pa. 530; Wolfe v. Railroad Company, 22 Pa. Superior Ct. 335; Blauvelt v. Railroad Company, 206 Pa. 141; Kuntz v. Railroad Company, 206 Pa. 162; Worthington v. Phila., etc., Ry. Co., 23 Pa. Superior Ct. 195; Mellinger v. R. R. Co., 18 Lanc. Law Rev. 369.
    June 22, 1905 :
   Opinion by

Mb,. Justice Fell,

It has been said repeatedly that the rule that one who goes on a railroad track immediately in front of a moving train which he saw or could have seen if he had looked at the proper place will be presumed to have been negligent, is in its nature applicable only to clear cases where the facts and the inferences to be drawn from them are free from doubt and the conclusion of negligence is irresistible: McNeal v. Pittsburg, etc., Ry., Co., 131 Pa. 184; Muckinhaupt v. Erie Railroad Co., 196 Pa. 213. Where negligence has been shown in the management of a train and it appears that the person injured stopped, looked and- listened at the proper place, in good faith and for the accomplishment of the end in view, and exercised care as he advanced to the tracks, the case is necessarily for the jury, although there may be a dispute raised by the testimony as to whether he should have stopped longer or stopped again and have taken more precaution as he advanced: Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 238; Cromley v. Penna. Railroad Co., 208 Pa. 445. In the former case it was said by the present chief justice:“.... stopping is opposed to the idea'of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no other inference can properly be drawn from it, the court cannot draw that inference as a conclusion of law, but must send the case to the jury”

It appeared from the plaintiff’s testimony that he stopped, looked and listened thirty feet from the crossing, the usual place at which to stop, that he continued to look both ways and to listen as he approached the track, and neither saw nor heard the train until the instant his horse was struck. From the place where he stopped he could see less than 200 feet in the direction of the train. This view was not materially enlarged as he approached the track because of a curve in the railroad and of a warehouse which stood nineteen feet from the rails and one hundred and seventy-four feet from the crossing. The night was dark and rainy, the train was running rapidly, and no notice of its approach was given by bell or whistle. The warehouse not only obstructed the view but deadened the sound of the approaching train, and the curve in the road caused the light of the engine to fall on the far side of the track until the engine was close to the crossing. Under these circumstances the court could not properly have said that the failure of the plaintiff to see the train in time to avoid danger was the result of his negligence. The case was submitted with great care and every right of the defendant was guarded by the charge.

The judgment is affirmed.


source: Caselaw Access Project

author: Mb. Justice Bbown,

license: Public Domain

text:
    Pattison v. Cobb, Appellant.

      Evidence—Competency of witness—Party dead—Interest of witness—Discharge in bankruptcy.

    In an action by the executor of the payee of a judgment promissory note against the maker, where there is a guaranty of the note indorsed on the back of it, and the contract of guaranty is solely between the guarantor and the payee, the guarantor of the note is a competent witness to prove payment of the note in the lifetime of the payee, if it appears that the guarantor had been discharged in bankruptcy after he made the guaranty and over five years after the obligation of the maker of the note had matured.
    Argued May 16, 1905.
    Appeal, No. 287, Jan. T., 1904, by defendant, from judgment of Superior Court, Oct. T., 1908, No. 176, affirming judgment of C. P. Potter Co., June T., 1896, No. 289, dismissing exceptions to report of referee in case of C. L. Pattison & Company to use of Anna S. Pattison and Orville Pattison, Executors of Charles L. Pattison, deceased v. PI. II. Cobb.
    Before Mitchell, C. J., Fell, Blown, Potter and Elkin, JJ.
    Reversed.
    Appeal from judgment of Superior Court. ,
    The facts appear by the opinion of the Supreme Court, and Pattison v. Cobb, 26 Pa. Superior Ct. 72.
    . Errors assigned amongst others was the judgment of the Superior Court.

      John Gr. Johnson, with him Seibert Lillibridge, W. I. Levois and Arch. E. Jones, for appellant.
    Chase was not a party to the contract in action, but merely an independent and separate contractor in a contract which was not in suit. He was not a party to the record. If excluded, therefore, it was simply because of his “ interest.”
    • When Chase was offered as a witness in a suit against H. H. Cobb upon a contract to which he was not a party, he could have been excluded merely because of adverse interest. The discharge in bankruptcy destroyed the possibility of such averment.

      J. Newton Peck, with him Stone PuBois, for appellees,
    cited: Arthurs v. King, 84 Pa. 525; Mizner v. Spier, 96 Pa. 583; Zahm v. First Nat. Bank, 103 Pa. 576; National Loan & Bldg. Assn. v. Lichtenwalner, 100 Pa. 100; Reigart v. White, 52 Pa. 438; Dutton v. Pyle, 195 Pa. 8; Atkins v. Wilcox, 5 American Bankruptcy Rep. 313; Paschall v. Fels, 207 Pa. 71.
    June 22, 1905:
   Opinion by

Mb. Justice Bbown,

On June 13, 1895, H. H. Oobb executed and delivered to C. L. Pattison, doing a banking business under the firm name of O. L. Pattison & Company, his obligation, under seal, promising to pay $860.05, three months after date, to which was attached a warrant of attorney for the entry of judgment. The payment of this obligation was guaranteed to the payee by Cobb and Chase by a separate contract of guaranty indorsed on it. Pattison died April 10,1896, and after his death the appellees, his executors, entered judgment against Cobb. On petition of the latter it was opened in 1901, and an issue awarded to determine how much, if anything, was due on it. By agreement of the parties the matter was submitted to a referee, who reported that the plaintiffs were entitled to judgment against the defendant for the sum of $1,221.88, with interest from January 27, 1903. On the trial before the referee D. C. Chase, of Cobb and Chase, the guarantors of the payment of the obligation, was called as a witness to prove that it had been paid during the lifetime of C. L. Pattison. He was objected to as being incompetent on the grounds that he was a party to the contract or thing in controversy, and had an adverse interest to the right of the deceased, C. L. Pattison. On appeal to the Superior Court, the only question raised was as to the correctness of this ruling of the referee. That court sustained the ruling on the ground that Chase was a party to the contract in action: Pattison v. Cobb, 26 Pa. Superior Ct. 72.

By the Act of May 23, 1887, P. L. 158, competency of witnesses in civil cases is the rulé and ineompetency the exception. Section 4 provides that no interest merely in the question on trial nor any other interest or policy of law, except as is provided in sec. 5, shall make any person incompetent as a witness. Clause “a” of sec. 5 is the only part of that section which could render Chase incompetent. By its provisions where any party to a thing or contract in action is dead, and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the subject in controversy, no surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the right of such deceased, shall be a competent witness to any matter occurring before the death of said party. The contract which was the subject of the controversy below was one between Pattison and Cobb alone. There were no other parties to it, and the effort was to make Cobb pay his obligation. The contract to which Chase was a party was not involved in the controversy. Though indorsed on the one executed by Cobb, it was as separate from and as independent of the same as if it had been written on another piece of paper. They were not only separate and independent contracts, but entirely different in their nature. Cobb’s was an unconditional promise to pay and was made to Pattison. The contract of Chase was that he would pay Pattison if Cobb could not. It was not a promise to pay if Cobb would not, but to pay if he could not. These contracts being separate and distinct and of different natures, liability on each was the subject of a separate action. No liability in the action on the contract between Pattison’s executors and Cobb could have been enforced against Chase. We have uniformly interpreted the act of 1887 in the light of the literal meaning of its words, and by them no interest or policy of law is to be the test of the competency of a witness, except as pointed out in clause “e” of sec. 5. We cannot, therefore, concur in the view of the Superior Court that Chase was an incompetent witness because he was a party to the thing or contract in controversy between Pattison’s executors and Cobb.

If at the time Chase was called as a witness there was a liability on his contract of guaranty, his interest was adverse to the right of the deceased in the contract with Cobb, and for that reason he would have been properly excluded. But before he was asked to testify to matters that had occurred in the lifetime of Pattison the certificate of his discharge as a bankrupt was offered in evidence and admitted. From that it appeared he had been discharged as a bankrupt in the district court of the United -States for the western district of Pennsylvania, and discharged from all debts and claims which were provable against his estate on February 27, 1901, the day on which the petition for his adjudication as a bankrupt was filed. This was five years and nearly six months after the obligation of Cobb had matured. The contract of Chase having been a guaranty, as is insisted by the appellees, the duty was imposed upon Pattison and his personal representatives of exercising due diligence to enforce payment from Cobb before there could be resort to Chase : Campbell v. Baker, 46 Pa. 243; Hoffman v. Bechtel, 52 Pa. 190; National Loan & Building Assn. v. Lichtenwalner, 100 Pa. 100. If, therefore, the liability of Chase to pay on his guaranty became fixed by the inability of Cobb to pay, it is to be presumed it was fixed before February 27, 1901, and, if so, it was a provable debt against his estate at that time and would have been allowed: Moch v. Market Street National Bank, 107 Fed. Repr. 897. It comes within subdivision 4 of sec. 63 of the bankrupt act of July 1, 1898, as being a liability founded upon an express contract. This having been the situation, there was evidence before the court of the discharge of Chase from all liability on his guaranty, and from the date of his discharge he no longer had any interest adverse to the right of Pattison or his executors in the contract between him and Cobb. He was, therefore, at the time the defendant wished to examine him, not a party to the thing or contract in action, nor had he any interest adverse to the right of the deceased in it, and his testimony should have been received.

The judgment of the Superior Court is reversed, as is the judgment below, and the record is remitted for a retrial of the case.


author: Mb. Justice Potteb,

text:
    Rumsey, Appellant v. Shaw.

      Contract—Sale—Misrepresentation—Fraud—Rescission—Damages—Evidence—Charge of court.

    In an action to recover a balance of purchase money due for an option on the stock of a corporation, where the defendant sets up misrepresentar tions by the plaintiff as to the amount of net earnings of the corporation, and there is no allegation of misrepresentations as to the physical plant of the company, it is error for the court to instruct the jury that they might infer from the fact that defendant had inspected the plant, or from information conveyed to him, that he had a full knowledge concerning the plant including its income, and if they did so infer, the defense set up cannot be sustained.

      Sale—Rescission—Fraud—Damages—Equitable defense.

    If it is not possible for a vendee to restore the conditions which had existed at the time of his contract of purchase, when he discovers that he has been the victim of misrepresentations, he may, without a formal rescission of the contract, have compensation in damages for the injury as an equitable defense to an action on the contract.
    Where in an action to recover a balance of a purchase price of an option on the stock of a corporation, the defendant sets up as a defense false representations made by the plaintiff as to the net earnings of the company, and it appears that the defendant shortly before the expiration of the option secured a new option, and within a reasonable time ascertained that the representations as to the first option were false and by this time the first option had expired, he can set up the false representations as a defense, although he had not rescinded the contract and tendered back the first option.
    Argued May 16, 1905.
    Appeal, No. 301, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1903, No. 18, reversing judgment of C. P. Lancaster Co., April T., 1901, No. 2, on verdict for plaintiff in case of George E. Rumsey v. P. B. Shaw.
    Before Mitchell, C. J., Pell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Appeal from Superior Court.
    The opinion of the Superior Court by Porter, J., was as follows:
    The plaintiff being the owner of an option to purchase all the stock of the Martinsburg Electric Company, of Martins-burg, West Virginia, at the price of 150,000, which option expired on November 14, 1899, employed one, Wilber, to assist him in making a sale of the option. Wilber presented the matter to the defendant, and after some preliminary negotiations, the parties, plaintiff, defendant and Wilber, met at Martinsburg on November 13, 1899. The defendant found that the extent and physical' condition of the property of the electric company was as it had been represented to be, but desired additional time to investigate as to the amount of the net earnings, which resulted from its operations. The stockholders of the electric company gave to the defendant a new option upon the stock, at the same price, which extended until February 15, 1900, he paying to the company for such new option the sum of $2,500, which was to be credited upon the purchase price in case the option was closed. The defendant on November 13, 1899, entered into an agreement to pay the plaintiff $1,500 for his option, which expired the next day, and paid $1,000 of said amount in cash and agreed to pay the remaining $500 on or before February 15, 1900. The $500 was not paid within the time specified, and for the recovery thereof the plaintiff brought this action. [The defense is upon the ground that Shaw was induced to enter into this contract on the faith of positive representations made at the time as to the amount of the net earnings of the electric company, which representations were, upon investigation, discovered to be false.] [3] There was evidence, which, if believed, would have warranted a finding that the plaintiff and his associate, Wilber, in his presence, had represented to the defendant that the earnings of the company were not less than $6,000 per annum. There was no question in controversy at- the trial which involved the extent and condition of the lands and equipment owned by the company, the contest was over the amount of the net earnings of the company, and the representations which the plaintiff had made with regard to the same. It is an undisputed fact that the defendant, after the books of the company had been examined by an expert for the purpose of ascertaining the actual amount of the net earnings, and as a result of that examination, let the new option, which he had taken in his own name, lapse, and lost the $2,500 which he had paid to the stockholders of the electric company.
    [The jury were in substance instructed in the language ■which is the subject of the third, specification of error, that they might infer from the fact that the defendant had inspected the plant of the company, or from the information conveyed to him by Kin ter, that the defendant had full knowledge concerning the plant, including its income, and if they did so infer, that the defense set up could not be sustained. The defense was not upon the ground that the physical plant of the company was not what it had been represented to be; the sole complaint of the defendant was that the amount of the net income had been misrepresented. There was no evidence that the defendant, prior to the making of this contract, had been permitted to inspect the books of the company or had any opportunity to ascertain the amount of the company’s revenues, nor was there any evidence that Kinter had communicated to him any information upon that subject. The instruction might well have led the jury to understand that they could base their verdict on a finding of fact on which there was no evidence, and the specifications of error must be sustained. Paul v. Kunz, 195 Pa. 207; Reel v. Martin, 12-Pa. Superior Ct. 340.] [4] [The court below held in the ruling, which is the subject of the fourth specification of error, that the defendant could not set off as against the claim of the plaintiff, the amount of the damages which he had sustained by reason of being led to part with his money through misrepresentations as to the net income of the company, the entire issue of the stock of which was the subject of the option with regard to which the parties contracted. The reason of the learned judge for so holding, as stated in his opinion refusing a new trial, was because the defendant had failed to promptly rescind the contract and tender back to Rumsey the option with regard to which they had bargained. ■ The damages which the defendant attempted to set off grew out of the same contract upon which the option was bought. The option of Rumsey expired the day after his contract was made, the defendants obtained a new option for the purpose of enabling him to have an examination made into the amount of the income of the company; there does not seem to have been any unreasonable delay in the making of this examination, and when it was completed the Rumsey option had expired. When the defendant discovered the facts which would have warranted a rescission of the contract, it was not possible to place the parties in the position which they had occupied at the time the contract was made for the reason that the property,'; the Rumsey option, which was the subject of the contract, had ceased to exist. When it is not possible for a vendee to restore the condition which had existed at the time of his contract of purchase, when he discovers that he had been the victim of misrepresentation he may, without a formal rescission of the contract, have compensation in damages for the injury, as an equitable defense to an action on the contract, or to be recovered in a suit for them: Blygh v. Samson, 137 Pa. 368.] [5] When a party relies upon a rescission of a contract he must show that he elected to rescind with reasonable promptness upon the discovery of the fraud, and must tender a return of the property or security which was the subject-matter of the contract: Cornelius v. Lincoln Nat. Bank, 15 Pa. Superior Ct. 82. When, however, the thing, the consideration of which is sought to be recovered back, is entirely worthless, there is no duty to return.it: Babcock v. Case, 61 Pa. 427; Beetem v. Burkholder, 69 Pa. 249. The fourth specification of error is sustained.
    The judgment is reversed and a venire facias de novo awarded.

      Errors assigned were (1, 2) in reversing and not affirming the court of common pleas; and (3-5) portions of the opinion of the Superior Court as above, quoting them.

      T. B. Eolahan, with him M. Alexander and B. V. Alexander, for appellant.

      O. E. Montgomery, for appellee.
    July 22, 1905:
   Opinion by

Mb. Justice Potteb,

The action of the Superior Court in reversing the judgment of the court of common pleas of Lancaster county, in this case, is made the subject of formal complaint in the first and second assignments of error. In the third assignment, it is alleged that the Superior Court erred in the statement which appears in its opinion, “ that the defense is upon the ground that Shaw was induced to enter into this contract on the faith of positive representations made at the time as to the amount of the net earnings made by the electric company, whicli representations were upon investigation discovered to be false.” We are at a loss to understand the suggestion of counsel as to this statement being erroneous. It certainly does set forth as a matter of fact, the ground upon which the defense was based in the trial court. The entire dispute was as to whether there had been misrepresentation; and this was submitted to the jury as a question of fact. In his appeal to the Superior Court, the defendant, Mr. Shaw, alleged error in the manner in which the case was submitted to the jury, and his allegation in this respect was sustained by the Superior Court.

It appears from the evidence that a prospectus which formed the basis for the contract in suit, set forth that, “ The total net income at the present time will amount to not less than $6,000 per year; ” and it was upon the strength of that statement that the defendant alleges he made the contract for the purchase of the option in question. Upon the trial, an expert witness for the defendant testified that an examination of the books of the company showed that the • annual net income of the plant amounted only to about $3,800 per year, or to the sum of $5,400 for the period of about seventeen months. In his charge to the jury the learned trial judge inadvertently said that this expert witness had testified that the earning capacity was about $5,400 for the term of one year. As the substantial dispute in this case was with reference to the earning capacity, this erroneous statement of the evidence would seem to have been upon the pivotal fact in the case, and we cannot say but that it may have misled the jury. The mistake was too serious to be passed over.

The Superior Court was also clearly right in holding that there was no evidence from which the jury could properly infer that the defendant had, prior to the making of the contract, any opportunity to ascertain for himself the amount of the net revenue received by the company, and that, as a consequence, it was error for the trial judge to submit to the jury the question whether the defendant knew, or ought to have known, the earning power of the plant at the time the contract was made.

Complaint is also made of the Superior Court in the fifth assignment for holding that “ when the defendant discovered the facts .which would have warranted a rescission of the contract, it was not possible to place the parties in the position which they had occupied at the time the contract was made.” But this was clearly correct; for, as is pointed out in the opinion, the Bximsey option, which was the subject of the contract, had ceased to exist, and the defendant had obtained a new or extended option, for the very purpose of gaining time to investigate the amount of the income of the company.-

We see no reason whatever for differing with the conclusions reached by the Superior Court; they are fully sustained, we think, by the reasoning in the opinion, and by the principles of the authorities therein cited and applied.

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


text:
    Carpenter v. Lancaster, Appellant.

      Sewers—Damages—Municipalities.

    If an injury resulting from the pollution of a stream by a municipal sewer system is permanent, the landowner is to be compensated for the diminished value of his land.
    In an action against a city by a landowner to recover damages for injuries sustained by the action of the city in malting a stream an open part of its sewer system, the measure of damages, if the injury is permanent, is the difference between the market value of the property before the injury was committed, and its market value thereafter.
    In such a case it is immaterial whether the city has or has not the right to appropriate private property as part of its sewer system; and the carelessness and negligence of the city in doing the work are also immaterial, as they are not involved in the issue framed to determine the damages resulting from the use of the stream.

      Practice, C. P.—Trial—Theory of the case—Review—Appeals.

    After a trial judge has submitted a question to a jury from the standpoint from which both parties to the issue manifestly have tried it, it is not consistent with good faith to the court that the one against whom the verdict is rendered should question the correctness of the submission. If it is ever to be questioned it ought to be only m cases where manifest injustice results from it.

      Sewers—Permanent injury—Res adjudicata—Judgment.

    Where a case against a city to recover damages resulting from the construction of a sewer has been tried on the theory of permanent injuries, and the pleadings have been made to conform to this theory, the judgment will be a bar to-any future action against the city by the plaintiff or his successors in title for the pollution of the stream resulting from the sewer construction.

      Appeals—Assignments of error—New trial—Grounds for refusing new trial.

    On an appeal from a judgment on a verdict, views entertained by the court below and set forth in an opinion refusing a new trial cannot be assigned as error. If the jury were properly directed, judgment on their verdict will not be disturbed for any views subsequently entertained by the trial judge, even if erroneous.
    Argued May 16, 1905.
    Appeal, No. 360, Jan. T., 1904, by' defendant, from judgment of C. P. Lancaster Co., Nov. T., 1902, No. 7, on verdict.for plaintiff in ease of Sarah B. Carpenter v. City of Lancaster.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for injuries alleged to have been sustained by the pollution of a stream in the construction of a sewer. Before Hassler, P. J. '
    Defendant presented, inter alia, the following points :
    1. If the jury believe that the stream of water flowing through the property of the plaintiff was polluted for more than twenty-one years before the bringing of this suit, the plaintiff cannot recover unless the .city of Lancaster since the building of its sewers, which are discharged at Dauphin and Juniata streets, has been careless or negligent in their use. Answer ; This point we refuse. The city is liable for any damages they have caused by polluting this stream and using it as a sewer, if you find they did pollute it, regardless of their carelessness or negligence. [1]
    2. The court is asked to charge the jury that before they can award damages for the pollution of plaintiff’s well, they must find that the pollution was caused wholly by the sewers of the city. Ansiver: This point is refused as it is written. If, however, the jury believe that the stream was polluted before the city of Lancaster emptied their sewers into it, you may consider that in making an estimate of the damages suffered by the plaintiff by reason of the act of the defendant. If the jury believe that the plaintiff has suffered any injury, in other words, if the stream was polluted prior to the entering of the sewers into this stream, the damage to the plaintiff would not be so great as it would be were it a pure stream of water, as testified to by plaintiff’s witnesses, before they emptied their sewers into it. [2]
    3. If the well was polluted and the odors complained of arose from the deposit of night soil on the land by the permission of the tenant, the city of Lancaster would not be liable, even though the air from the sewer was foul and the stream overflowed into the well. ■ Answer : This point we refuse. If the city of Lancaster caused any damage by reason of the air being rendered impure and foul because of its using this stream as a sewer, or if the stream by reason of its being used as a sewer overflowed its banks and entered into the well, and any damage caused thereby the city of Lancaster would be liable for. [3]
    The court charged in part as follows :
    [A municipal corporation has a right to take the property of an individual for the purpose of maintaining a system of sewers to carry the waste and offal from the city, whether that right has been given by statute or is from public necessity. It was in pursuance of this right that the city of Lancaster, from 1892 to 1902, built three sewers in the southeastern portion of the city, which empty into a small stream of water which runs across the property of the plaintiff for a distance of 1040 feet. This act of -emptying sewers into this stream was adopting the stream as an open sewer, and practically appropriating it as part of the system of sewers owned and controlled by the city of Lancaster.] [4]
    Verdict and judgment for plaintiff for $3,910. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting theifi; (5-12) portions of opinion refusing new trial; (9) that the verdict wms excessive.

      Edwin M. Gilbert, for appellant:
    We think the true measure of damages as applicable to this case is laid down in Lentz v. Carnegie, 145 Pa. 612; Harvey v. Susquehanna Coal Co., 201 Pa. 63; Hoffman v. Mill Creek Coal Co., 16 Pa. Superior Ct. 631; Glasgow v. Altoona, 27 Pa. Superior Ct. 55.

      William B. Brinton, with him 0. Beese Baby, for appellee.—
    The measure of damages laid down by the court was correct: Blizzard v. Danville Borough, 175 Pa. 479; Good v. Altoona, 162 Pa. 493; Weir v. Plymouth Borough, 148 Pa. 566.
    June 22, 1905:
   Opinion by

Mb. Justice Bbown,

The contents of three sewers in the city of Lancaster are discharged into a stream of water flowing through the property of plaintiff, situated in the southeastern portion of the city. The first was built in 1892, the second in 1896, the third in 1900, and each in accordance with an ordinance directing its construction. More than 200 houses are connected with these sewers, the city receiving $25.00, for each connection. Through them the waste water, filth and discharges from water-closets in a large and growing section of the city are carried into the stream; and for its pollution, causing damage to her land, the plaintiff has brought this suit. From the testimony, it is clear that the city has made the stream an open part of its present sewer system, and the case was properly tried on that theory.

One of the complaints of the appellant in the argument in support of this appeal is that the court submitted the ease to the jury as if it were one of permanent injury. The instructions were that the measure of damages was “the difference between the market value of the property before the injury was committed and its market value after the injury was committed.” This has not been assigned as error, and it ought not to be, for the case was tried by the city, as well as by the plaintiff, as one of permanent injury to her property, if it was injured by the city in adopting the stream as a part of its sewer system. For the purpose of enabling the jury to determine what damages should be awarded, witnesses called by the plaintiff were asked and allowed to answer, without objection by counsel for the city, what, in their judgment, was the difference in the value of the property before and after the pollution of the stream by the discharge of the contents of the sewers into it; and so the city, in its defense, asked the same question. The first point submitted by the plaintiff was: “ The measure of damages in this case is the depreciation in the fair market value of Mrs. Sarah B. Carpenter’s property, caused by the draining of the sewers of the city of Lancaster into the run which flows over her premises a short distance below where said sewers enter the stream; provided the jury find that this constitutes a permanent injury to her property.” This was affirmed, and the court’s affirmance of the point is not assigned as error. In affirming it, Good v. Altoona, 162 Pa. 493, was followed, in which we approved instructions to the jury that, if the injury resulting from the pollution of a stream by the municipality’s sewer system was permanent, the landowner was to be compensated for the diminished value of his land. The city’s adoption of the stream as a part of its sewer system was prima facie a permanent adoption, and, if so, the injuries resulting therefrom were prima facie permanent. The burden was upon the city to show the contrary. It did not do so, but, on the trial, manifestly regarded the measure of damages, if any were sustained by the plaintiff, as being for permanent injury to her property. After a trial judge has submitted a question to a jury from the standpoint from which both parties to the issue manifestly have tried it, it is hardly consistent with good faith to the court that the one against whom the verdict is rendered should question the correctness of the submission. If it is ever to be questioned, it ought to be only in cases where manifest injustice results from it. Such is not the situation here.

It is contended by the appellant that at the time the city of Lancaster built its three sewers it did not have the right to appropriate private property as part of its sewer system. On the trial the court was of opinion that it had this right, and so charged the jury. This is regarded by counsel for the city as very serious error. If the city had possessed such right at the time it connected its covered sewers with the stream, and had injured the property of the plaintiff in the exercise of that right, the measure of any damages sustained by her would have been just the one fixed on the present trial. For permanent injuries sustained by her she is to receive the difference in the value of her property before and after the commission of the injury, whether caused in the exercise of the right of eminent domain or by a pure trespass: Thompson v. Citizens’ Traction Co., 181 Pa. 131. Earnestly as this alleged error has been pressed upon our attention, we need say no more in dismissing the assignment relating to it.

The carelessness and negligence of the city are not involved in this issue. The action was instituted because the city is using the stream as a sewer, and damages are not claimed for the careless or negligent use of it, but for injuries resulting from the mere use of it. This was the correct view of the trial judge in holding that, without regard to carelessness or negligence, the city was liable for such damages as were caused by its pollution of the stream, limiting its liability to what had resulted from its act. This appeared from the answer to defendant’s first, third and sixth points, and in the general charge it could not have been made plainer to the jury that the plaintiff could recover from the city only for such injuries as it had caused, when they were told, “ The plaintiff is only entitled, as I have said, to such damages as have reasonably been done by the act of the city.”

By the fifth, tenth and twelfth assignments attention is called to what counsel for appellant regards as erroneous views of the law in the opinion of the court discharging the rule for a new trial. These are novel assignments. With whatever views may appear in the opinion of the court we have nothing to do on this appeal. Views entertained below, to be considered and corrected here, if erroneous, are such as are expressed before the verdict is rendered, and not afterwards in passing upon reasons why it should be set aside. If the jury were properly directed, judgment on their verdict is not to be disturbed for any views subsequently entertained by the trial judge, even if erroneous. By this we are not to be understood as intimating that such views appear in the opinion in this case refusing a new trial.

This disposes of all the assignments except the ninth, which complains of the excessivehess of the verdict. This question was for the court below, and there is no reason why we .should interfere with its disposition of it.

The case having beén tried as one for permanent injuries, the statement of the plaintiff may be regarded as amended accordingly, and the judgment will be a bar to any future action against the city of Lancaster by the plaintiff, or her successors in title, for the pollution of the stream: Thompson v. Citizens’ Traction Co., supra.

Judgment affirmed.


author: Per Curiam,

text:
    Kreider’s Estate.

      Husband and wife—Real estate—Title in husband—Contribution of purchase money by wife.

      . Where a husband receives from his wife moneys of her separate estate which he applies with her knowledge, consent and approval to the purchase of real estate in his own name for their joint occupancy and use, neither the wife nor her representative after her death can recover such money from the husband.
    Argued May 16, 1905.
    Appeal, No. 36, Jan. T., 1905, by Susan B. Kreider, from decree of O. C. Lancaster Co., Sept. T., 1904, No. 59, dismissing petition to file an account in Estate of Elizabeth Kreider.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Petition for an account.
    Smith, P. J., filed the following opinion:
    This action is in the form of a bill in equity filed by Susan B. Kreider, the only surviving child of Elizabeth Kreider, the decedent, against her father, Benjamin Kreider, as the administrator of the estate of her mother, for the purpose of having the confirmation of his account opened and him surcharged or directed to file an additional account,' also to have him give bond in the sum of $5,000, and further for a restraining order to enjoin John A. Knosp from paying over to Benjamin Kreider $2,500 secured by Mm to him on a mortgage.
    We find that when Benjamin Kreider married Elizabeth Kreider she owned certain real estate, which was subsequently sold for$1,800;that this money, less $175, the price of ahorse owing by him to Wilson Brubaker, the vendee, was on April 2, 1883, turned over by Samuel Brubaker, a brother of both the decedent and the vendee, and apparently acting for both, to Sarah A. Long on account of the purchase money of a tract of laud, then conveyed by her to the respondent for the consideration of $7,000, which was satisfied by the money thus turned over, a payment of $1,375 for the respondent, and the confession of a judgment by him to her for the balance of-$4,000; that on March 24, 1893, the decedent received from the estate of an uncle $1,571.69 ; that on that day a check for that amount was given her; that with the respondent she took it to the bank at which he dealt, where it was deposited to his credit; that a few days later, April 1, 1893, the respondent gave a check for $1,856.64 to Sarah A. Long ; that this was a payment on account of the balance of the purchase money for the property conveyed to him ; that $3,196.69 of the money which had been the decedent’s went into this property, which was bought for and was the home of both the decedent and the respondent, as well as the complainant; that at the time of her marriage, Elizabeth Kreider also had household effects, which, when she died, the respondent admits were worth about $150 ; that he now has these goods in his possession; that Elizabeth Kreider died intestate April 3, 1894; that letters of administration on her estate were granted to Benjamin Kreider, August 13, 1900 ; that on September 15, 1900, he filed what was called an administrator’s account; that it is a paper having the form of an account, wherein he charges himself with nothing and asks credit for $19.35, the price paid for the privileges of paying that amount as costs; that respondent sold the property April 1, 1903, for the sum of $4,500 ; that of the proceeds thereof, $2,500, he lent to John A. Knosp, secured by a mortgage ; and that Susan B. Kreider arrived at the age of twenty-one years on April 27, 1904.
    The facts thus far found are free from entangling problems.
    The complainant avers that the decedent turned over the $1,800 to the respondent with the understanding that the property was to be purchased for her—that she was to be the grantee named in the deed. Nothing do we find in support of this contention. On the contrary, the evidence leads us to the conclusion that the respondent became the grantee, and decedent’s money was used with her full knowledge and approval. It does not appear whether she was or was not present at the time the deed was delivered, but it does appear that her brother, Samuel Brubaker, the principal witness called by complainant, was present, and was the person who handled the money and the checks. The inference is irresistible that she knew the price to be paid for the property bought from Sarah A. Long, that her contribution was only a fraction of it, and no less probable is it that she also knew it was necessary for her husband to obligate himself for more than half of the purchase money. Had she become the purchaser, from her would have been required security sufficient for the unpaid balance. That she was informed and approved of the transaction is confirmed by her act in taking the money she inherited later from an uncle and having it deposited to her husband’s credit that he might pay it to the grantor. What her purpose was is inferential, but any other conclusion would be inconsistent with her conduct, coupled witli the fact that that was exactly what he did with it a few days later. Much emphasis was laid on John H. Shreiner’s testimony, which is as follows :
    “ Q. What did you hear Mrs. Kreider say in the presence of Mr. Kreider in regard to the property being in his name and not in hers, if anything? A. Well, they had some trouble about it, and he came to my house one night once around one o’clock, and he called to me, and I asked who was there, and he asked if I would not come over; he said his wife wants him to bring me ; they had some difficulties. I asked him what it was about, and he said about their matters, about their money matters, and then I went along with him over. When I got over Mrs. Kreider was in the dining-room, and then they commenced to fight. She said she had money, and he said she had none. She said she had a property that she got $1,800 for it, as near as I can tell. Then she said she had some money she got from her brother. She said she had $8,500 nearly, and that this money was used to buy this property, and she thought the property was in her name, and. she wanted him to fix it that way when she found out it wasn’t. Of course, he did all he could to prevent her from saying this.”
    “ Q. In what way did he try to prevent her ? A. She wanted to say something and he would say it was not so. Finally I told him to let her say what she wanted to. He didn’t hurt her or strike her. Finally I got him to leave her to tell her story, and then I left. And that is what she said.”
    At best this can carry no more weight than if the decedent herself had been the witness, and the respondent had denied her statement. No doubt, her declarations were substantially repeated, and their effect is to exhibit Benjamin Kreider’s subserviency to his wife. A man who can be sent out of his house by his wife after midnight to fetch a neighbor from his bed that he may hear her berate him is not the bind of husband who is likely to misapply her funds, nor is she the wife to permit it even if he had the temerity to make the attempt. We are entirely satisfied that the property was conveyed to Benjamin Kreider with the full knowledge and approval of his wife, and that she unconditionally made her contribution for the purpose of securing a home. We also find that there was no actual or implied trust. There is no “ clear, precise, convincing and satisfactory” evidence to support a trust. It does not measure up to a standard necessary to satisfy the conscience of a chancellor. Unquestionably, her money was invested in the property, and there is a multitude of decisions fixing the broad principle that a husband becomes his Avife’s debtor when he receives her money, and the burden is on him to show that it was not a loan. Even her silence at the time he gets it is insufficient to raise the presumption of a gift to him. There is also, an exception to this general rule.
    In Gleghorne v. Gleghorng, 118 Pa. 383, it was held that where a husband used his wife’s money at her request in building a house as a home for them, and where there were no circumstances indicating the relationship of debtor and creditor, the Ávife may not reclaim the money from him. This was a bill in equity by the wife against her husband to recover money under the conditions recited. Referring to Johnston v. Johnston, 31 Pa. 450, Mr. Justice Paxson, in delivering the opinion of the court, said : “ There the wife’s money was received by the husband under circumstances very similar to those existing in this case, and was -appropriated by him at her request towards the fitting up of a house for her own comfort, and that of her family, and the court held that she could not recover it back iu an 'action against her husband’s administrator. I am unable to see any material distinction between fitting up a house as a home, and assisting in building a house for a home. In each case the wife expected to use and enjoy the fruits of her money in a home which she would occupy in common with her husband. In the case in hand the money may have been unwisely employed. But the law cannot supply wisdom to those who lack it, nor can it remedy all the mistakes which a man or a woman may make in the course of a lifetime. In the present ease, the wife evidently contributed this money for the completion of a house which was to be her home without a word or a thought about repayment. The husband cannot be treated as her trustee because he appropriated the money as she directed.. . . . This is entirely inconsistent with a loan, or with a trust on the part of her husband.” See also Heck’s Estate, 11 Mont. 66.
    While there is no direct testimony that the decedent’s money was used at her positive request, nevertheless,, the facts and circumstances surrounding this case proclaim a request with more force than mere words. A request is “ the act of asking for anything desired; expression of desire.” Elizabeth Kreider’s acts signify the request: they indicate such a desire.
    Elizabeth Kreider could not have recovered this money; neither can anyone else. This seems to be consistent with what we believe ought to be and is the law.
    While we no longer have the coerced and subordinated married woman, and legislative enactments have emancipated her and given her an identity independent of her husband, yet the community of the marriage relation has not been entirely suspended or destroyed.
    Exact justice has been too frequently defeated by married women who consciously or unconsciously do not define their money relations with their husbands until discord or misfortune enters their home. When full of ardor and responsive ’ affection, they willingly permit their property to pass into their husbands’ hands, indifferent as to the uses to which it may be put, unrestricted by condition or written obligation, and often as gifts. If later, the matrimonial relation becomes less compatible, or the husband is beset by creditors, intuitively they discover that the transaction was not an implied, or actual gift, but a loan or resulting trust.
    The $175 of the decedent’s money with which the respondent paid for a horse is owing by him.
    We would not call the paper exhibited in the register’s office, September 15, 1900, by Benjamin Kreider, administrator of the estate of Elizabeth Kreider, deceased, an account. In filing that paper he was not well advised. There is nothing about it to open, to review or set aside. There are, however, sufficient reasons, supported by ample authority, why he should file an account, or, if this conclusion is not acceptable, an additional account.
    This cause came on to be heard at this term, and was argued by counsel; and, therefore, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz.: That Benjamin Kreider, as administrator of the estate of Elizabeth Kreider, deceased, give an additional bond in the sum of $650 and file an account on or before February 18, 1905, of the goods and chattels which were of Elizabeth Kreider and which came or should have come into his hands ; and that complainant’s bill in other respects is dismissed. The costs of this proceeding to be paid by Benjamin Kreider.

      Errors assigned were the decree of the court and certain findings of fact.

      Qoyle $ Keller and L. IT. Spencer, for appellant.

      W. U. Ilensel, with him Harnish $ Harnish, for appellee.
    June 22, 1905:
   Per Curiam,

This decree is affirmed on the opinion of the court below. Costs of the appeal to be paid by appellant.


text:
    Miller v. Lewistown Electric Light, Heat & Power Company, Appellant.

      Negligence—Electric light company—Proximate cause—Contributory negligence.

    In an action to recover damages for personal injuries it appeared that the defendant suspended an arc light in a borough at the intersection of several streets. On the evening of the accident, one, of the defendant’s employees lowered the lamp to repair it, and left it in this position under the charge of a boy while he went to secure a file. In his absence a one-horse sleigh was driven at a x-apid pace around the comer. Plaintiff’s testimony tended to show that the horse struck the wires of the lamp, and that the wires in turn struck him and injured him. When the accident occurred plaintiff was attempting to cross the street at a point other than the regular crossing. Held, that the case was for the jury, and that a judgment and verdict for plaintiff should be sustained.
    A pedestrian is not necessarily negligent if he leaves a sidewalk and crosses the street at other than the regular crossings. In so doing he may encounter risks that he woxxld not on the sidewalk, but unless they are manifest it is for the juiy, not the court, to say that his act was negligent.
    Argued May 22, 1905.
    Appeal, No. 297, Jan. T., 1903, by defendant, from judgment of C. P. Mifflin Co., Aug. T., 1902, No. 141, on verdict for plaintiff in case of Henry ~W. Miller to use of Sarah J. Miller, Administratrix, v. Lewistown Electric Light, Heat & Power Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial it appeared that on the evening of February 28, 1903, Henry W. Miller was seriously injured by contact with electric light wires belonging to the defendant company. At a point in the borough of Lewistown where several streets intersected the defendant maintained an arc light which on the evening in question had been lowered for repairs. An employee of the company after lowering the light left it in charge of a boy while he went to secure a file. During his absence a one-horse sleigh dashed around a corner and struck the wires attached to the lamp. The testimony tended to show that Miller, while attempting to cross one of the streets at a point other than the regular crossing, was struck by the wires and sustained injuries from which, he died after the present suit was instituted.
    Defendant presented the following points :
    4. If the jury believe that it is the custom to lower arc lamps at night on public highways for the purpose of making them operate, and that in this case the lamp when lowered was left in charge of the boy to notify the public of possible danger in the short and necessary absence of defendant’s employee, then their verdict must be for the defendant. Answer: This point is denied. The -question as to whether leaving the light in charge of the boy was negligence or not is for you to determine and not for the court; and an electric light company could not have a custom, unless the custom had been established by many long years, so as to become universal and known by all persons, to negligently lower lights at night. [1]
    6. From all the evidence in the case the verdict must be for the defendant. Answer: This point is denied. It is for you to say what your verdict will be, not for the court. [2]
    Verdict and judgment for plaintiff for $4,500. Defendant appealed.

      JErrors assigned were (1, 2) above instructions, quoting them.

      A. Reed Hayes, for appellant.

      W. W. TJttley, of T. M. Uttley Son, for appellee.
    June 22, 1905 :
   Per Curiam,

Whether the defendant’s conduct in lowering the lamp or leaving it in charge of a boy while the wires were down was negligent, was a question for the jury. There could be no custom of the defendant which would excuse it for exposing the public to what the jury should find was unnecessary danger.

The question of proximate cause was also for the jury. The fact that the horse was going at a rapid pace was not so unprecedented that the jury might not fairly find that the defendant was bound to anticipate and look out for it, and that the chain of events was continuous up to the injury to plaintiff.

As to the plaintiff’s alleged contributory negligence, a pedestrian is not necessarily negligent if he leaves the sidewalk and crosses the street at other than the regular crossings. In so doing he may encounter risks that he would not on the sidewalk, but unless they are manifest it is for the jury not the court to say that his act was negligent.

Judgment affirmed.


author: Mb. Justice Elkin,

text:
    Goodwill, Appellant, v. Heim.

      Partnership—Interest—Accounting.

    Interest should not be allowed on partnership accounts before there has been an accounting or settlement of the same, unless under the peculiar facts and circumstances surrounding the case the equities demand that interest be charged.
    Where a liquidating partner has had exclusive control of the finances and business of the firm, and has made no demands for a settlement, and no claim for interest on moneys withdrawn by his copartner-, no interest should be allowed in an accounting, on the moneys withdrawn by the copartner.
    Argued May 22, 1905.
    Appeal, No. 162, Jan. T., 1904, by plaintiffs, from decree of C. P. Northumberland Co., No. 94, in Equity, 1879, on bill in equity in case of Phillip Goodwill, Anthony G. Goodwill and William A. Goodwill, executors of Robert Goodwill, deceased, v. Andrew A. Heim.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an account.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to master’s report.

      Charles M. Clement, with him 8. P. Wolverton, and W. H. M. Oram, for appellant.
    In the absence of special circumstances to warrant it, interest cannot be charged against a partner for sums withdrawn from the partnership funds or overdrafts or moneys paid him from firm funds in excess of his share of the profits: Kelley v. Shay, 206 Pa. 215; Gyger’s App., 62 Pa. 73; Webster v. Bray, 7 Hare, 159; Stevens v. Cook, 5 Jur. N. S. 1415; Turner v. Burkinshaw, L. R. 2 Ch. 488; Cooke v. Benbow, 3 De G., J. & S. 1; Rhodes v. Rhodes, 6 Jur. N. S. 600; Dexter v. Arnold, 3 Mason, 284; Brenner v. Carter, 203 Pa. 75; Brown’s App., 89 Pa. 139; Ahl v. Ahl, 186 Pa. 99.

      George W. Myon, with him Samuel Seckert, for appellee.—
    Interest was properly allowed : Mining Co. v. Jones, 108 Pa. 55; Sims v. Willing, 8 S. & R. 103; Thomson’s Est., 12 Phila. 131; McClelland v. West, 70 Pa. 183; Grubb’s App., 66 Pa. 117; Penna. R. R. Co. v. Cooper, 58 Pa. 408; D., L. & W. R. R. Co. v. Burson, 61 Pa. 369; R. R. Co. v. Gesner, 20 Pa. 240; Bare v. Hoffman, 79 Pa. 71.
    June 22, 1905:
   Opinion by

Mb. Justice Elkin,

This case comes before us venerable with age. The original bill was filed March 21, 1879, and from that time to the present the questions involved have been before the masters, the court below and here for consideration and determination. Most of the original counsel connected with the case have departed this life, and the two principal litigants are now numbered with the dead.

It could serve no useful purpose to undertake a review in detail of the complicated partnership accounts extending over a period of about forty years. This work has been done by expert accountants, and by able counsel representing the parties to the controversy. We are not inclined to disturb the findings of fact nor the conclusions of law stated by the masters and approA^ed by the court below, except in one particular Avherein Ave believe there was error. When the original account was filed in 1885 the accounting partner Avas credited Avith interest on certain sums of money withdrawn by the other partner, as follows, to wit: on $3,119.55 from November 30, 1871, 13 years, 11 months, $2,604.82; on $75.00 from April 8, 1872, 13 years, 6 months and 22 days, $61.02; on $115.83 from July 8, 1872, 13 years, 3 months and 22 days, $92.51; on $150 from October 8, 1872,13 years and 22 days, $117.55; total $2,875.50.

We have examined the testimony Avith care, but haAre not been convinced that the interest charged is justifiable under the circumstances. The accounting partner had the exclusive control of the finances and business of the firm, had made no demand for a settlement and no claim for interest on the amounts withdrawn and on which interest was allowed. The general rule is that interest will not be allowed on partnership accounts until there has been a settlement of the same. It is true this court has frequently said that the allowance or refusal of interest in the settlement of partnership accounts depends upon the circumstances of each particular case : Gyger’s Appeal, 62 Pa. 73; Grubb’s Appeal, 66 Pa. 117; Jones v. Farquhar, 186 Pa. 386; Brenner v. Carter, 203 Pa. 75; Kelley v. Shay, 206 Pa. 215. In some of these cases the rule has been recognized that the defendant will not be charged with interest on overdrafts where there is no evidence óf an agreement to pay interest and where it appears that the liquidating partner who was acquainted with the account never made demand on the defendant for settlement or for interest until he filed his bill after the dissolution of the partnership. Interest should not be allowed on partnership accounts before there has been an accounting or settlement of the same, unless under the peculiar facts and circumstances surrounding the case the equities demand that interest be charged. In the case at bar we do not discover such peculiar facts or circumstances as would justify a departure from the general rule. There was no agreement to pay interest between the partners. No demand was made by the defendant for settlement of the account, the payment of balances, or for interest on the same before the bill was filed. Under these facts the masters and the court below erred in allowing the accounting partner in the account filed in 1885 interest amounting, as above stated, to $2,875.50. This sum should be deducted from the balance found due at that time, and the interest charged upon said sum after 1885, in the later accounts, should also he deducted. All of the remaining assignments of error are overruled.

Decree reversed and it is ordered and directed that the record be remitted to the court below to be modified and corrected in accordance with this opinion.


text:
    Jermyn, Appellant, v. Scranton City.

      Municipalities—Bonds—Cities of the second class—Acts of June 14, 1887, P. L. 395, sec. 24, Feb. 13, 1895, P. L. 13, and March 7, 1901, P. L. 20— Statutes—Repeal.

    The twenty-fourth section of the Act of June 14, 1887, P. L. 395, as amended by the Act of February 13, 1895, P. L. 13, relating to the increase of bonded indebtedness of cities of the secbnd class and an election thereon, is repealed by the Act of March 7, 1901, P. L. 20.
    Where an ordinance of a city of the second class providing for an issue of bonds, contains a sufficient levy for the payment of the bonds and interest, the issue of the bonds will not be restrained because no provision was made to pay the first semiannual installment of interest. Such payment may be made in other ways by the city, or be made out of the premium bid on the sale of the bonds.
    Under the Act of March 7, 1901, P. L. 20, as amended by the Act of June 20, 1901, P. L. 586, relating to the issue of bonds by cities of the second class, bonds to provide means for contemplated improvements, or for the creation of a new indebtedness are payable annually, but funding bonds are payable in five to thirty years.

      Taxation—Uniformity—Classification—Cities of the second, class.

    Cities of the second class may, for purposes of taxation, classify real estate into three classes, and levy a different rate for each of the three classes.
    Argued May 22, 1905.
    Appeal, No. 146, Jan. T., 1905, by plaintiffs, from decree of C. P. Lackawanna Co., Sept. T., 1905, No. 18, dismissing bill in equity in case of Joseph J. Jermyn et al. v. City of Scranton and Alexander T. Connell, Mayor, and Martin T. Lavelle, city clerk.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity restraining issue of bonds.
    Edwards, P. J., filed the following opinion:
    The city of Scranton on August 10, 1904, passed two ordinances, one authorizing the issue of bonds in the sum of >$88,000 for the purpose of paying the amount assessed against the city for the construction of certain sewers, and the other authorizing the issue of bonds in the sum of $100,000 to provide for the construction of a building to be used as police and fire headquarters and for other purposes designated in the ordinance. Both ordinances provide for the creation of a sinking fund for the redemption of the bonds as required by law. Thereupon. the city proceeded to print the bonds and to advertise for bids for the purchase of the same.
    The plaintiffs, claiming that the said bond issues were not authorized under the law, filed their MIL of complaint in the present case, and they now pray for an injunction to restrain the city authorities from executing and delivering the bonds specified in the ordinances aforementioned.
    There are no facts in dispute. Counsel on both sides agree that the case shall be heard and finally disposed of on bill and answer, the only questions raised being matters of law.
    The said issues of bonds are attacked on four grounds, which, in brief, are as follows :
    1. They are contrary to the provisions of. the first section of the Act of February 13,1895, P. L. 13, providing that there shall be no increase in the interest-bearing indebtedness of a city of the second class without a vote of. the electors.
    2. The ordinances authorizing the issue of the bonds do not provide for the semiannual interest falling due January 1, 1905.
    3. The provisions in said ordinance levying three different j rates on the three several classifications of real estate as returned by the city assessors are in conflict with sections 1 and 10, article IX, of the constitution. ‘
    4. The bond issues offend against the provisions of para-j graph 6, in section 3, article XIX of the Act of March 7,1901, J P. L. 20, as amended by the Act of June 20, 1901, P. L. 586. '
    The foregoing grounds of attack are not in the exact order in which they are found in plaintiffs’ bill, but they are given by me in the order in which I intend to discuss them.
    1. The Act of Feb. 13, 1895, section 1, P. L. 13.
    Section 1 of this act of assembly amends section 24 of the Act of June 14, 1887, P. L. 395. The latter section is as follows : “ Any increase of interest-bearing bonded indebtedness of cities of the second class is hereby prohibited, unless the same shall be approved by an affirmative vote of the majority of the qualified electors voting thereat at an election provided for by ordinance ,of councils.”
    The legislature of 1895, having unusual regard for correct grammatical expression, by amendment changed one word in the section quoted, using “ thereon ” instead of “ thereat.” This was the only change made by the amendment. The change was unnecessary, because no court, in construing this section, would permit the error of using one word instead o£ the other to defeat the plain meaning of the legislative enactment, The fourth section of the schedule contained in the Act of March 7, 1901, P. L. 20, specifically repeals the whole of the act of 1887, excepting sections 1 and 2, thus wiping out section 24 above quoted. Counsel for plaintiffs argues that the act of 1895 (section 1) is still in force, and that, therefore, no city of the second class can increase its bonded indebtedness in any amount without a vote of the people. We can hardly think that counsel is serious in maintaining this contention. It appears very clear that the only effect of the amendment in the act of 1895, section 1, was to read into the twenty-fourth section of the act of 1887 the word “thereon,” instead of “ thereat.” In this particular instance the latter section falls with the repeal of the former. We also call attention to jraragraph 5, section 3, article 19, of the act of 1901, relating to the corporate powers of cities of the second class. The paragraph reads thus:
    ' .“To borrow money on the credit of the city, and to pledge the credit and revenues thereof for the payment of the same, to an amount not exceeding two per centum upon the assessed value of the taxable property in said city, and with the consent of the people of the said city, obtained at an election held under the provisions of the constitution and the general laws ■ of this commonwealth, to increase the indebtedness of such city to an amount not exceeding in the aggregate, seven per centum upon the assessed valuation of the taxable property therein.”
    In view of the power expressly given by this paragraph to cities of the second class to pledge the credit of the city up to two per cent of the assessed valuation without a vote of- the people, what becomes of section 1 of the act of 1895 ? Both provisions cannot stand. They are absolutely irreconcilable. One or the other must give way, and, according to a well understood rule of construction, the latter enactment must prevail. We need not enlarge on this point.

      2. The payment of the interest falling due January 1, 1905.
    It is claimed that there is no provision for the payment of the interest which falls due on January 1, 1905; sec. 8, of the ordinance, levies a tax for the year 1905 and every year thereafter to pay the bonds and interest. Counsel for plaintiffs says that the taxes, as a matter of fact, are not collected until late in the year, and that there will be no money in the treasury to pay the first semiannual installment of interest. This is undoubtedly true ; but it is equally true that the city has many lawful ways for providing money for temporary purposes. The main question is: Has the city done what the law requires it to do in making provisions for the payment of the bonds and interest ? Has it made a levy sufficient for the purpose ? The eighth section of the ordinance answers these questions affirmatively. The ordinance has been carefully drawn and meets the requirements of the law in such cases, but the city is not so helpless in this matter as counsel would have us believe. The interest even for the whole of the year 1905 may be paid out of the premium bid on the sale of the bonds. We know of no reason why this cannot be done. The amendment to the answer filed by agreement shows that the total premiums exceed one year’s interest. Regardless of the particular source from which the city may draw the money to pay the first semiannual interest, it is a sufficient answer to plaintiffs’ contention on this point that the city has made all the provisions demanded by law for the payment of all the bonds and interest. It could do no more. We consider this objection as highly technical.
    3. Want of uniformity in the rate of levy.
    This objection is of a more substantial character than those we have already discussed. The constitution provides that all taxes shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax. Counsel for plaintiffs admits the right of the legislature to classify real estate for purposes of taxation, but denies the right of a municipality to levy a different rate on each class of property. In other words, he admits the principle, but denies the propriety of applying it so as to produce practical results. Unless there is a different rate of levy on the several classes of property, why should properties be classified at all ? The point of objection, as we understand it, is that one man pays more than another on the same valuation. In the present case, for instance, the ordinance levies .142 on each dollar of valuation on first class property, .0946 on second-class property, and .071 on third-class property. All properties in cities of the second class being assessed at their actual value, the result is, that three men, each- owning property worth, say, $5,000, the properties being in each of the several classes, do not pay the same amount of tax on the same valuation. This is undoubtedly true, and such is the result of the practical operation of the rule ; but unless some such result is secured, it is apparent that the classification of real estate for purposes of taxation is useless. If all properties are assessed at their aetual value, and if the same rate should be levied on all properties, why not include all properties in the one class ? It is too late in the day in Pennsylvania to question the power of the legislature to classify subjects of taxation on broad lines and within certain limitations. The reasons for such classification, based upon imperious necessity, are so numerous, and have been so frequently discussed by the higher courts, that it is useless to refer to them now. We shall cite only one case to show that the question before us is definitely and authoritatively settled: Commonwealth v. Delaware Div. Canal Co., 123 Pa. 594.
    It is decided- that the power to impose taxes for the support of the government, with the power of classification, still belonging to the legislature under the new constitution, the selection of the subjects thereof, their classification, and the methods of collection to be provided, are matters purely legislative. The power to classify being given all that is then required by the constitution is that taxes shall be uniform upon the members of a class, and it is the uniformity of taxation, according to the classification made, which is the matter to be determined by the court.
    - The Act of 1901, as amended in the same year (see P. L. 586, on page 594) has the following provision: “ To provide for the issuing of bonds ; for the application of bonds already issued, for the purpose of funding any and all indebtedness, now existing or hereafter created, of the city, now due or to become due : Provided that the said bonds shall be payable in not less than five years and not more than thirty years from the date of their issue, and that the same shall bear interest at a rate not exceeding six per centum per annum, with interest coupons attached, payable annually or semiannually, and the said bonds shall not be sold or exchanged for less than their par value and accrued interest.”
    This provision, undoubtedly, refers to funding bonds or bonds issued to take up or pay an existing indebtedness. The phrase “ indebtedness hereafter created ” must he taken to mean that such indebtedness if funded by the issue of bonds, is in the same class, and all such bonds should be payable in not less than five nor more than thirty years.
    It is conceded that the bonds in question in the present case are not funding bonds. They are issued for the purpose of providing money for improvements yet to be made. We hold, therefore, that the provision above quoted does not authorize the issuing of bonds payable annually. Where, then, do we find the authority for the issuing of bonds payable annually ? The only place it can be found is in article XI, act of 1901, on page Bl, relating to the “Sinking Fund Commission,” which states that whenever any new bonds shall be issued by any of said cities they shall be made payable in annual installments equal to the tax levied therefor, and shall be made payable annually from the funds so provided.- It is difficult to escape the effect of the comprehensive and general character of this provision relating to the issue of “ any new bonds.” Counsel for plaintiffs claims that the place of this provision in the article pertaining to the sinking fund commission means that the “ new bonds ” referred to are those bonds issued by the city to take up maturing bonds. We do not know what might have been in the mind of the person who drafted article XI, but we do know that we must give effect to the language used. The language is so plain and unambiguous that we cannot change it by any method of interpretation. We think the criticism is proper that the provision belongs logically to some other part of the act of 1901, but we must take this act of assembly as we find it, and give it such a construction that the whole may stand if possible. If it was the intention of the legislature to say that any new bonds issued by cities of the second class shall be payable annually when issued for the purpose of taking up or funding maturing bonds, it should have said so. We have scanned every word and line of article XI, and can find no such intention expressed. Combining the two provisions in the act of 1901, in relation to the issue of bonds, we read them thus: “ Whenever any new bonds shall be issued by any of said cities they shall be made payable in annual installments,” but, “ bonds issued for the purpose of funding any and all indebtedness now existing or hereafter created .... shall be payable in not less than five years fior more than thirty years.” This, in our opinion, is the present state of legislation relating to the issue of bonds by cities of-the second class. Bonds to provide means for contemplated improvements or for the creation of a new indebtedness are payable annually ; funding bonds are payable in from five to thirty years.
    It is conceded in this case that the ordinance was regularly adopted.
    Now, October 31, 1904, this case having been heard on bill and answer, and having been argued by counsel, it is adjudged and decreed that the plaintiffs’ bill be dismissed at their cost.

      Error assigned was decree dismissing the bill.

      G-. M. Watson, for appellant.

      David J. Davis, city solicitor, for appellees, was not heard.
    June 22, 1905 :
   Per Curiam,

Decree affirmed on the opinion of the court below. Costs to be paid by appellant.


author: Mb. Justice Mestbezat,

text:
    Seibel v. Firemen’s Insurance Company, Appellant.

      Insurance—Fire insurance—Examination of books and accounts.

    Where a policy of fire insurance provides that the insured after a loss shall produce his books and accounts at such reasonable place as the company may designate, and it appears that the company had its principal office out of the state, and no office within the state where books and accounts might be submitted, and the company after a loss notifies the insured that he would be required to produce his books and accounts at such reasonable place as may be designated by the company, but the company does not thereafter designate such place, the failure of the insured to produce his books and accounts is not a ground for a defense by the company in an action upon the policy.
    Mitchell, C. J., dissents.
    Argued May 18.
    Reargued May 23, 1905.
    Appeal, No. 72, Jan. T., 1904, by defendant from judgment of Superior Court, Oet. T., 1903, No. 61, reversing judgment of C. P. Lancaster Co., Aug. T., 1898, No. 92, on verdict for defendant in case of Martin Seibel v. Firemen’s Insurance Company.
    Before Mitchell, C. J., Dean, Fell, Potter and Elkin, JJ., on reargument.
    Affirmed.
    Appeal from Superior Court.
    The facts appear by the opinion of the court and 24 Pa. Superior Ct. 154.

      Error assigned was the judgment of the Superior Court.

      W. U. Hensel, for appellant.
    It was the duty of the plaintiff to reply to the letter of June 4, 1898, informing the company of the loss of his boobs of account, bills, invoices, etc., and offering to procure such copies as he could get, and asking the company to designate a time and place for their production : Seibel v. Ins. Co., 197 Pa. 106.
    There was an outstanding submission to arbitration, pending which plaintiff had no right to enter suit. Where parties have submitted the issue between them to arbitration, and there is no evidence of bad faith, no explanation of the failure of the arbitrators to act, no notice of abandonment or rescission, one party cannot maintain an action brought before the arbitrators made an award and within three months of their appointment: Jube v. Ins. Co., 28 Barbour, 412; O’Brien v. Ins. Co., 63 N. Y. 108; Uhrig v. Ins. Co., 101 N. Y. 362 (4 N. E. Repr. 745); Davenport v. Ins. Co., 10 Daly (N. Y.), 535; Hostetter v. Pittsburg, 107 Pa. 419; United States v. Robeson, 34 U. S. 319; Altman v. Altman, 5 Daly (N. Y.), 436; Paist v. Caldwell, 75 Pa. 161; McKenna v. Lyle, 155 Pa. 599; Holmes v. Richet, 56 Cal. 307; Herrick v. Estate of Belknap, 27 Vt. 673; Hudson v. McCartney, 33 Wis. 331; May on Insurance, sec. 493; Larkin v. Robbins, 2 Wend. 505; Wolff v. Ins. Co., 50 N. J. L. 453 (14 Atl. Repr. 561); McCahan v. Reamey, 33 Pa. 535; Williams v. Tracey, 95 Pa. 308; Zebner v. Lehigh Coal & Navigation Co., 187 Pa. 487.

      II. M. North and J. W. Johnson, for appellee,
    cited: Western & Atlantic Pipe Lines v. Home Ins. Co., 145 Pa. 346; Thierolf v. Universal Fire Ins. Co., 110 Pa. 37; Gould v. Dwelling-House Ins. Co., 134 Pa. 570; Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73; Whitmore v. Dwelling-House Ins. Co., 148 Pa. 405; Roe v. Dwelling-House Ins. Co., 149 Pa. 94; Welsh v. London Assurance Corporation, 151 Pa. 607.
    June 22, 1905:
   Opinion by

Mb. Justice Mestbezat,

The Superior Court, in a clear and convincing opinion by Judge Hendekson, has demonstrated the correctness of its conclusions on the material questions involved in this case. The policy provides that the insured, “ as often as required, shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof, if originals be lost, at such reasonable place as may.be designated by this company or its representative, and shall permit extracts and copies thereof to be made.” In its letter to the insured, -the defendant company says: “We demand in accordance with said policy (see lines eighty-three to eighty-five both inclusive), that you shall produce for our examination all books of account, bills, invoices and other vouchers, or certified copies thereof, if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.” The learned Superior Court held, under the above stipulation of the policy, that “ if the defendant desired to examine the books of account, etc., of the plaintiff, it became its duty, not only to notify him of the fact, but to appoint a place at which they might be produced for inspection, which place was not to be arbitrarily fixed by the company, but must be a ‘ reasonable ’ one, as provided for in the contract.” This is so obviously correct that it needs no argument to support it.

By the terms of the policy, the contract of the parties, the books, etc., were to be produced when required by the company and “ at such reasonable place as may be designated by this company or its representative.” Before the insured was required to act at all in the matter, it was incumbent on the company not only to request the information but also to designate the place where it should be produced. The initiative in both respects was with the company and until it acted the insured could be charged with no default. He was not required to inform the company of the loss of his books, accompanied by an offer to procure copies, until the company had made it necessary for him to produce them by a demand for their production at a designated place. Until the company had complied with this prerequisite to its right to have the books, he could assume that it did not desire them.

The learned counsel for the defendant company concedes, what is a fact, that it did not designate a place at which the insured was requested to produce the books, as it was required to do by its contracts, but seeks in his printed brief to defend its action in neglecting to do so by saying: “ In the absence of any particular place being designated, the home office of the company, or the address of its adjuster, as shown by its correspondence, or even Lebanon, were sufficient indications of where the documents required should- be sent. At least they could have been furnished to the appraisers.” This suggestion ignores the fact that the rights as well as the duties of the parties in the premises are fixed by their written contract, and that the contract neither requires the insured to produce the documents at any of the numerous places named unless designated by the company, which was not done, nor does the contract compel the defendant company to receive them if they had been produced unless the place had previously been designated by the company. It is therefore apparent that the insured could not produce the books in compliance with the terms of the policy until the company had designated the place at which it would inspect them.

This case is clearly distinguishable from Seibel v. Lebanon Mutual Insurance Company, 197 Pa. 106. The provisions in the two policies relative to the production of books, etc., are similar. In that case the company wrote the counsel of the insured a letter quoting the provision and made a formal demand that the information be forwarded to the office of the company at Lebanon, Pa., by mail or otherwise. The insured made no effort to comply with the request until after the suit had been brought, and, as stated in the opinion of this court, even then not in accordance with the demand. It was held that the provision of the policy requiring the production of the books “ was a part of the contract between the parties,” and that as the insured had failed to produce his books after a proper demand, he could not recover on the policy. There, the company made the demand and also designated a reasonable place, Lebanon, Pa., for the production of the books; here, the company designated no place at which the books should be delivered but made the demand that they should be pro-produced “at such reasonable place as may be designated by this company or its representative,” leaving the inference that it would name a place at which they were to be delivered for inspection. The distinction between the cases is apparent and most material.

The other question raised by the appellant was properly disposed of by the Superior Court.

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

Mitchell, C. J., dissents on grounds indicated in Judge Morjrison’s opinion.