text:
    Morgan v. Lehigh Valley Coal Company, Appellant.

      Evidence — Witness—Interested witness — Assignment of interest — Act of May 23, 1887, P. L. 158.
    An assignment of a party to a controversy made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends, and is ineffectual to accomplish that purpose.

      Appeals — Rulings on evidence — Arbitration—Exceptions.
    Where no exceptions are taken to the rejection by a referee of an offer of evidence, the question whether the rejection of the offer is erroneous cannot be considered on appeal.

      Evidence — Minutes of corporation — Rejection of minutes.

    The minutes of a corporation cannot be excluded as evidence on the ground that the secretary who produces them is a stockholder, and therefore interested; but they may be excluded where they are not shown to be pertinent to the issue.

      Statutes of limitations — Account stated — Running accounts — Act of March 27, 1713, 1 Sm. L. 76.
    The statute of limitations begins to run against an account stated from the date when rendered, but this rule does not apply to such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants.
    Argued April 9, 1906.
    Appeal, No. 302, Jan. T., 1906, by defendant, from order of C. P. Luzerne Co., March T., 1901, No. 274, dismissing exceptions to report of referee in case of Kate Morgan, administratrix of R. R. Morgan, deceased, y. The Lehigh, "Valley Coal Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of "William C. Price, Esq., Referee.
    From the record it appeared that the suit was brought against the defendant to recover money alleged to have been paid by R. R. Morgan for goods furnished to a store owned by the defendant, and also for the amount of salary claimed to be due decedent as superintendent.
    The referee found the following facts:
    1. That the Lehigh Valley Coal Company, defendants, were owners in the store business conducted in the store property in Hanover township, Luzerne county, known as the Franklin store, and there is not sufficient evidence from which the referee can conclude that any other person owned any interest in the store, goods and store business.
    2. That Mr. Morgan assumed charge of the store business at the Franklin store during the year 1889, in pursuance of some arrangement with Mr. E. P. Wilbur, who was, at that time, president of the Lehigh Valley Coal Company, and kept Mr. Wilbur informed of the condition of the store business through the medium of cash statements and trial balance statements taken from the books of the store.
    3. That R. R. Morgan was employed in the store as superintendent of the business at a salary of $2,500 a year.
    4. That Mr. Morgan purchased merchandise for the owners of the store, each month from 1889, until and including April 16, 1895, for which the Lehigh Valley Coal Company reimbursed him from collections from the wages of the employees of the Franklin mines, every month, for purchases made by them at the store, except for the month of April, 1895.
    May 24, 1906 :
    5. That the defendant company, some time previous to May 24, 1895, collected from the employees of the Franklin mines, the sum of $2,359.31, set forth in check dated April 22, 1895, and $2,282.03, as set forth in check dated May 24, 1895, for merchandise purchased at the store by employees of the Franklin mine, out of which the plaintiff was entitled to the sum of $1,518.07, for merchandise purchased for the store during April, and for salary, due at the time of his death.
    6. That, after the death of Mr. Morgan, the Lehigh Valley Coal Company, through its superintendent, took possession of the Franklin store and contents, and sold the same to Mr. Kern, and has never accounted to, or reimbursed the estate of Mr. Morgan for any part of the claim, as set forth in plaintiff’s statement, as amended during the trial of the case.
    The referee reported in favor of the plaintiff in the sum of $2,429.18.

      Errors assigned among others were (1, 2) rejection of minute book of Lehigh Valley Coal Company; (3) rejection of E. P. Wilbur as a witness; (15) in overruling exceptions to report of referee.

      J. B. Woodward, of Woodward, Barling Woodward, for appellant.

      Mary L. Trescott, with her B. L. Rhone, for appellee.
   Opinion by

Mr. Justice Elkin,

We must consider first whether it was error for the referee to refuse to admit the assignment of Wilbur and wife offered at the hearing and to exclude the testimony of Wilbur. The assignment offered was intended to be in the nature of a release or an extinguishment of the interest of the parties in order to qualify Wilbur as a witness. The sixth section of the Act of May 23, 1887, P. L. 158, provides in substance that a witness incompetent on the ground of interest may become competent by a release of that interest made in good faith, but it is also provided in the act that the good faith of the transaction shall be passed upon by the trial judge as a preliminary question: Semple v. Callery, 184 Pa. 95; Walls v. Walls, 182 Pa. 226. The record does not show upon what ground the offer of the assignment was excluded, but a fair inference is that it was not considered as made in that good faith required by the act. This court has held that an assignment by a party to a controversy made only for the purpose of enabling him to sustain the suit by his testimony is not made in that good faith which the statute intends and is ineffectual to accomplish that purpose: Darragh v. Stevenson, 183 Pa. 397; Verstine v. Yeaney, 210 Pa. 109.

Without regard to the question whether this testimony was properly excluded, we do not see how it can be considered on this appeal. The proceeding before the referee was under the Act of April 6, 1869, P. L. 725, and the Act of June 22, 1871, P. L. 1363, which provide that the referee shall file his report with his findings of fact and law, together with the testimony and bills of exceptions, and when this has been done any of the parties can, within ten days, file exceptions to findings of fact and law and to the rejection and admission of testimony. If exceptions are filed, the referee passes upon them and may modify, reverse or affirm any part of his report. No exceptions were taken to the rejection of this offer, and under the authority of our cases the question cannot be considered on appeal: Torrey v. City of Scranton, 133 Pa. 173; Messmore v. Morrison, 172 Pa. 300.

It is argued that error was committed in excluding the minutes of the defendant corporation. We fully agree with the learned counsel for appellant that the exclusion of the minutes on the ground that Mr. Baird, the secretary, who produced them, was a stockholder, and therefore interested, is not tenable. While the exclusion of the testimony on the ground stated cannot be sustained, yet it does not follow that the minutes even if properly proven can be offered in evidence for the purpose suggested. At best, they could only prove a negative which could not be material in the determination of the question in controversy. The referee in his supplemental report disposes of this question by saying in substance that the minutes were not refused because not properly proven as the minutes of the corporation, but on the ground that the offer did not propose to show they contained anything in regard to the management of the Franklin store, and therefore the testimony was immaterial. For this reason, there was no reversible error in refusing the offer.

As to whether the monthly statements were accounts stated, and therefore within the statute of limitations from the date when rendered, must be determined by the facts in this case. If these were accounts stated in the ordinary sense, the statute would run as contended. If, however, they were simply mutual running accounts between the parties or between merchant and factor or servant, the rule would not apply. The learned referee in his finding of law states the question as follows, to wit: “ I conclude as a matter of law that the entire claim of the plaintiff is an account between a merchant and his factor or servant and comes within the saving clause of the statute of limitations of March 27,1713 : ” McFarland v. O’Neil, 155 Pa. 260; Trickett on Limitations, p. 367. In Mattern v. McDivitt, 113 Pa. 402, this court held that accounts which are excepted from the operation of the statute of limitations are such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants. They may include labor or anything that is provable by book of original entry. The referee having found upon sufficient evidence that this was an account between a merchant and factor or servant the rule as to accounts stated does not apply.

We have not been convinced that the other assignments raise questions of reversible error. We have been asked tore-verse some of the findings of fact, but this is only done where manifest error has been committed. On the whole we think the testimony offered at the hearing was sufficient to warrant the findings of fact complained about.

Judgment affirmed.


source: Caselaw Access Project

author: Per Ctjriam,

license: Public Domain

text:
    Henry v. Lehigh Valley Coal Company, Appellant.

      Arbitration — Mining lease — Agreement.
    A general arbitration clause in a mining lease providing that any differences arising between the parties in reference to any matter relating to the agreement should be referred to three disinterested persons, cannot be held to include a special subject of difference for which a different special and peculiarly appropriate tribunal had been already provided in the lease.
    Argued April 10, 1906.
    Appeal, No. 303, Jan. T., 1905, by defendant, from order of C. P. Luzerne Co., Oct. T., 1905, No. 607, discharging rule to arbitrate in case of Sallie Henry and Sarah J. Atherton, Executrix of James P. Atherton, v. Lehigh Valley Coal Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to show cause why an agreed submission to arbitrate should not be made a rule of court.
    Halsey, J., filed the following opinion:
    An indenture of lease was made upon December 15, 1888, between the said Sallie Henry and Sarah J. Atherton, executrix, and the Lehigh Valley Coal Company for all the merchantable anthracite coal, in, under and upon the land described in the said indenture. The eleventh clause in the said indenture of lease provides:
    “ That when the said party of the second part, the lessee, «ball have paid for as much coal as they have not mined as in their opinion still remains in premises unmined and capable of being mined, the said lessee may notify the lessor to choose a mining engineer who with a mining engineer of the lessee shall select a third mining engineer, disinterested in the result, and said three engineers shall thereupon make the necessary examination for determining the amount of coal on the property by actual examination and testing of all the veins ; and if the said engineers or a majority of them shall be of opinion that all of said coal on said land and property leased and capable of being mined under the terms of the lease have been paid for, the said lessee shall not thereafter be required to make further payments on account of coal mined,” etc.

      The lessor refused to act under this clause in the said indenture. The lessee contends that it can have the same question determined by a reference agreed to in the twelfth clause of the said lease, which provides:
    “ That should any differences arise between the parties hereto in reference to any matter or thing connected with or relating to the provisions of or in carrying out of this agreement, the same shall be referred to three disinterested persons of whom each party, lessor and lessee, shall choose oue, and the two so chosen shall choose a third, and the decision of a majority of them shall be final and conclusive; and should either party neglect or refuse to so choose a referee after ten days’ written notice from the other, that they have chosen their referee, then they may choose a second referee and the two so chosen shall proceed to choose a third, and the decision of the majority of them shall be final and conclusive between the parties hereto. This arbitration proceeding may be had under the act of 1836 and be proceeded with in the court of common pleas of Luzerne county.”
    Upon the service of the notice provided for in this covenant of the indenture, the lessor expressly revoked the covenant providing for submission to arbitration as contained in the eleventh and twelfth clauses of the said lease, with notice of such revocation to the lessee as well as to the referee named by the lessee.
    The lessee contends that there can be no revocation of the agreement to refer to referees the question as to whether or not the lessee has paid the lessor for all the coal contained in the premises as described in the indenture aforesaid between the said lessor and lessee. The covenant of agreement under which the lessee contends that there must be a determination of this question before referees, is found in the last clause of the twelfth paragraph of the lease between the said lessor and lessee. It is in the following language :
    “ This arbitration proceeding may be had under the act of 1836 and be proceeded with in the court of common pleas of Luzerne county.”
    The reference to the act is indefinite. It is presumably under the arbitration Act of the legislature of June 16, 1836, P. L. 715. However, it is not conclusively so. There was no suit pending between the lessor and the lessee at the time that the rule was taken in this case. The act of June 16, 1836, supra, provides:
    “ It shall be lawful for all persons desirous to end by arbitration any controversy, suit or quarrel, except such as respect the title to real, estate, to agree in writing that their submission of the same to the award or umpirage of any person or persons shall be made a rule of any court of record of this commonwealth having jurisdiction which the parties shall choose, and they shall insert such, their agreement, in their submission or the condition of the bond or promise whereby they may oblige themselves respectively to submit to the award or umpirage of any person or persons.”
    If there had been an action pending between the lessor and the lessee and the agreement was to submit to arbitration the question in dispute under the act of June 16, 1836, the same might be done without a formal rule being taken out for said arbitration. The authority to so arbitrate would be implied: Ford v. Keen, 13 Pa. 179 ; Buckman v. Davis, 28 Pa. 211, otherwise the agreement of submission must contain an agreement that it shall be made a rule of court and without such provision the award cannot be enforced : Fox v. Ealer, 2 Miles, 169; Otis and Craven v. Northrop, 2 Miles, 350 ; Okison v. Flickinger, 1 W. & S. 257; Benjamin v. Benjamin, 5 W. & S. 562.
    In the case relied upon by the counsel for the lessee, Zehner v. Lehigh Coal and Navigation Company, 187 Pa. 487, there was an action pending in the court of common pleas of Schuylkill county and the agreement to arbitrate was an agreement made to settle the differences between the respective parties in that action. In the agreement to arbitrate in that case, it was specifically provided that we furthermore agree that our submission to such award shall be made a rule of and in said court. The agreement in this case is in the contract between the parties, lessor and lessee, and is of a very indefinite and inconclusive character, providing that the arbitration proceeding covenanted in the twelfth paragraph of the indenture of lease may be had under the act of 1836 and be proceeded with in the coui’t of common pleas of Luzerne county. Thex-e is xxo agreexnexxt that the saxne shall be made a rule of court, and a very uncertain reference to the act under which the proceeding was to be had. In our judgment whatever agreement this clause in this indenture provided for, it was of a revocable character, and, having been revoked by the lessor, this rule must be discharged.
    May 24, 1906:

      jError assigned was the order of the court.

      J. B. Woodward, of Woodward, Barling Woodward, for appellant.

      Henry A. Fuller, for appellee.
   Per Ctjriam,

Conceding for the argument that the reference in clause 12 of the lease to the arbitration act of 1836 is sufficient to constitute an arbitration under rule of court the present claim is not under clause 12 but clearly under clause 11 which does not refer to the statute at all. It is a separate clause providing for a special tribunal to settle a special subject of dispute, a technical and professional tribunal for a technical, scientific question, to wit: how much minable coal still remains unmined in the land.

Notwithstanding, therefore, the generality of the language of clause 12 that any differences arising between the parties in reference to any matter relating to the agreement should be referred to three disinterested persons, it cannot be held to include a special subject of difference for which a different, special and peculiarly appropriate tribunal had been already provided.

It is much to be regretted that agreements to arbitrate, founded on consideration, should be excepted from the general law of contracts and treated as revocable by one party without consent of the other. But the law is too firmly settled to be changed without legislative authority.

Judgment affirmed.


author: Per Curiam,

text:
    Bloomsburg Land Improvement Company, Appellant, v. Bloomsburg.

      Boroughs — Contract—Lease of pleasure park.

    A borough has no power to enter into a contract to lease from a private owner an enclosed pleasure park within the borough limits, for the purpose of deriving a revenue therefrom by subletting or charging the public for admission; and if, in pursuance of such an agreement, the borough enters into possession of the park no recovery can be had from the borough as for the use and occupation of the same.
    Argued April 10, 1906.
    Appeal, No. 59, Jan. T., 1906, by plaintiff, from judgment of C. P. Columbia Co., Dec. T., 1898, No. 158, for defendant non obstante veredicto in case of .Bloomsburg Land Improvement Company v. Bloomsburg Borough.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for rent. Before Staples, P. J., specially presiding.
    At the trial the jury returned a verdict for plaintiff for $2,109, subject to question of law reserved.
    On motion for judgment for defendant non obstante veredicto, Staples, P. J., filed the following opinion:
    The substantial facts in the above case, as involving the questions of law herein decided, and which facts are necessary in order to sustain a verdict irrespective of any conclusions of law, are about as follows :
    The town of Bloomsburg was chartered by an Act of A ssembly of March 4, 1870, P. L. 343, and by its acts of incorporation, certain sections of the Act of April 3,1851, P. L. 320, regulating boroughs, were extended to the town of Bloomsburg, among these being section 1, clause 4, which empowered it “to hold, purchase and convey such real and personal estate as the purposes of the borough shall require, not exceeding the amount limited in its charter; ” and also section 2, clause 4, which empowered it as follows : “ to regulate the roads, streets, lanes, alleys, courts, common sewers, public squares, and common grounds, foot walks, pavements, gutters, culverts and drains and the heights, grades and widths, slopes and forms thereof; and they shall have all other needful jurisdiction over the same; ” and also section 2, clause 17, which empowered it as follows : “to make such other regulations as maybe necessar}^ for the health and cleanliness of the borough.”
    On June 13, 1891, the plaintiff, a private corporation, leased to the defendant town, eight acres of land upon which are numerous oak trees, situated within the limits of the town of Bloomsburg, and known as Oak Grove Park, for the term of one year at 81,000 rental per year, payable semiannually, with the privilege of renewals. The defendant town at that time was incorporated and contained about 5,000 inhabitants and had within its territorial limits between three and four square miles. The said Oak Grove Park was situate within the town limits surrounded by a six feet fence and had on it a dancing pavilion, a fountain, ice-cooler with water pipes inside and ice put on the outside of the pipes so that cold water could be obtained, and a place to keep provisions in; two kitchens, with cook stove in each, tubs in the kitchen connected with water, large water-closets, toilet rooms, two large swings and two small swings and large tables, benches and seats through the grove and two or three booths erected for the purpose of furnishing refreshments.
    It may clearly be inferred from the evidence that at the time the lease was made and discussed that there entered into the consideration of the same the fact that the town as lessee could obtain considerable revenue from the said park by renting it out to picnic parties and also by charging a certain small price for each and every person who entered the same, and that it was in no sense to be considered a park open to the public and free to be used by anyone who desired so to do; and in fact, one of the grounds upon which the plaintiff sought to recover was, that the defendant had had the use of the property and had derived revenue from the same.
    It may further be stated as a fact that the said Oak Grove Park was not situated either in the center of the town or near to the same, nor did it enter into any plan of the town as laid out in streets, etc., by the municipal authorities. Upon the contrary, it was removed from the business and thickly populated portion, and, in no sense, convenient to the pedestrian public.
    At the termination of the year for which the said property had been leased by the town authorities, negotiations were had towards a renewal of the lease, which was opposed by a number of the members of the town council, and during which negotiations the borough solicitor produced and read at one of the town council meetings an opinion in which he held that the town council had no right or power to lease said property. Notwithstanding the opposition and the advice so given, the borough council by a vote of four to three authorized the renewal of the lease for one year with the privilege of a number of years, and an option to purchase the property, the annual rent being fixed at $500 per annum. The town remained in actual possession of the said park for a period of three years after the first year, for which first year it paid. At the end of the three years it delivered the key and the possession of the park to the plaintiff company or one of its representatives, the park itself having been considerably damaged during the period it was in the possession or control of the defendant town, swings having been broken and torn down, the water-closets put out of repair and, in short, the property being returned generally dilapidated and damaged to at least the extent of $500, and for which the town has since made no reparation.
    The claim of the plaintiff in this case was that it was entitled to have and receive from the said town of Bloomsburg three years’ rent at the rate of $500 per annum, and $500 for damage done, with interest from 1898, at which time suit was brought. That further, if it should be decided that the town had no right to enter into such contract, that having entered upon the premises and used the same and received revenue from the same, the plaintiff was entitled to recover from the defendant town on a quantum meruit.
    The defendant town resisted both claims upon the ground that it was not liable, because the contract' itself was ultra vires and being so, a claim on a quantum meruit could not be sustained.
    The plaintiff in support of its claim contended that the town had'the power to enter into such contract, relying upon the clauses of the act of April 3, 1851, hereinbefore fully quoted ; that it had the right to hold such real estate for the purposes of the borough requirements ; that clause 4, sec. 2 of said act, giving it the power to regulate roads, streets, .... public squares and common grounds, included a park similar to that involved in this controversy, and that clause 17 of sec. 2, giving it the right to make such other regulations as might be necessary for the health and cleanliness of the town could fairly bo argued to include a park as it was needed for the health and cleanliness of the people.
    This brings us to the consideration of the question of what are the powers of a municipal corporation such as the defendant, and in this connection we think the opinion of Chief Justice Mercur, in Whelen’s Appeal, 108 Pa. 162, clearly sets them forth ; wherein he says : “ A municipal corporation does not possess and cannot exercise any other powers than these, to wit: First, those granted in express words ; Second, those necessarily or fairly implied in, or incident to the powers expressly granted; Third, those essential to the declared objects and purposes of the corporation, not simply convenient but indispensable. Any fair reasonable doubt as to the existence of power is resolved by the court against its existence in the corporation and therefore denied. It is equally well settled that the agents, officers, or city council of a municipality cannot bind the corporation by any contract not within the scope of its powers. . . . Any rule or practice which permits municipal officers to transcend their powers is clearly contrary to public policy and fraught -with such mischievous and injurious effect to the taxpayers of the municipality, that it should receive judicial condemnation.”
    With the principles as above stated and which we believe to be correct and followed by our courts, we are at loss to understand how the contract as executed can be brought within any of the powers or authorities granted to a borough or the town of Bloomsburg, which had granted to it some of the privileges of a borough.
    We are unable to find any such interpretation of the law as included the purchase and holding of parks as within the power or authority to hold, purchase and convey real estate as expressed in sec. 1, article 4, of said act of April 8, 1851, nor do we think that it can be argued that, because of the authority as expressed in sec. 2, article 4, namely: to regulate the roads, streets, lanes, alleys, courts, common sewers, and public squares, a park, such as the one in controversy, was included in-the term “public squares,” and therefore the town had the right to enter into the contract, leasing the said Oak Grove Park and occupying and using it as hereinbefore stated.
    There is a wide distinction between the general definition and common understanding of “ public squares ” and a “ park ” like that involved.
    In the case of Rung v. Shoneberger, 2 Watts, 23, a public square is defined and explained as follows: “ In this state there are few ancient towns in which squares, such as this, do not form part of the plan. They are generally located at the intersection of the streets; and are intended as sites for the erection of buildings for the use of the public; such as court houses, market houses, schoolhouses and churches; sometimes they are designed for ornaments; and at others they are intended for the promotion of the health of the inhabitants by admitting of air. The squares as well as the streets, and for the same reason, are. placed under the superintendence of the ■local authorities, who have full power to regulate them, so as more effectually to answer the puiposes to which they have been dedicated. Public squares, unlike commons, are not intended for the exclusive use of the citizens of the city or borough where they are situated, but are also designed for the comfort and convenience of strangers in the pursuit, either of business or pleasure.”
    In Commonwealth'v. Bowman, 3 Pa. 202, Chief Justice Gibson, said: “ The public square is as much a highway as if it was a street,' and neither the county nor the public can block it up, to the prejudice of the public or an individual; nor can either assert a right to it by inclosing it beyond the limits of a reasonable curtilage. It is dedicated to the use of all the citizens as a highway, and all have a right to pass over it without unreasonable let or hindrance; in which respect it differs from the public squares in Philadelphia, which are dedicated to ■health and recreation,and which are necessarily subject to regulation by the local authorities.”
    “The common or public square in the city of Allegheny is dedicated to specific public uses ; as mentioned in the 4th section of tbe act of 1787, and although not a common public highway, yet the public have rights and interests therein, of which they cannot be deprived: ” Commonwealth v. Rush, 14 Pa. 186.
    The principles as contained in these decisions are approved of in Commonwealth v. Beaver Borough, 171 Pa. 542; Mahon v. Norton, 175 Pa. 279, and Commonwealth v. Connellsville Borough, 201 Pa. 154.
    The ancient idea of a public square carried down through all these years, was that a public square meant simply a widening of the street, or the reservation of a plot of ground at intersections of streets, for the purpose of beautifying the town or providing a breathing space in its center or where the people were most likely to congregate and meet. There can nowhere be found any cases from which it could well be argued and concluded that a park, like or similar to that in the present controversy, was intended to be included under the term of “ public square,” and more strikingly so does it seem, when the fact is recalled that this Oak Grove Park was inclosed by a six feet fence, had been held and was contemplated to be held not for the general public but for the purpose of having a place in which the public could be entertained by swings, dancing pavilion, access to water, places to cook, etc., provided they paid the town of Bloomsburg for the privilege of the same. Public squares were always held to be for the benefit of the public, not only of the people of the community, but those of surrounding places, travelers and strangers. This arrangement for Oak Park excluded, it may be stated, all those persons who were unwilling to pay for the privilege.
    There was no such necessity of the town as required it to lease the said Oak Grove Park. There was no authority to lease it that could be inferred from sec. 2, article 4, wherein it had the authority to regulate, inter alia, public squares ; nor is there anything contained in sec. 2, article 17 wherein it provides that the borough had the right or power “ to make such other regulations as may be necessary for the health and cleanliness of the Borough ” as would give it power to make a contract to lease the said park, as has been urged; and especially will this more clearly appear when the preceding articles, namely the 15th and 16th, are read; article 17 being in line with the foregoing two articles and clearly intending to refer to such measures as are for the good sanitary condition of a town or borough. It would be establishing an exceedingly bad precedent to hold a contract like that proven in this case to be proper and within the power of a town to make, upon' the ground that in the opinion of the town council the said park was necessary for the health and cleanliness of the town.
    The park was not indispensable. There is nothing in any of the acts of assembly which could imply a power to lease the same ; nor is there grant of such power in express words. The people of the town of Bloomsburg had no need of such a place for the purpose of good air, nor for recreation, and the town council exceeded its powers when it entered into a contract like that upon which the plaintiff seeks to recover.
    If a town or borough could enter into contracts of this nature upon a theory such as that contended for by the plaintiff it could easily and quickly ruin the taxpayers by making extravagant and unreasonable contracts with parties like the present plaintiff. The annual rental of a small tract of land like Oak Grove Park, without any improvements upon it, in a town like that of Bloomsburg, would be reasonably small as compared with the rent named in the contract; and the rent as asked and paid and as afterwards contracted for could only be upon the basis of the improvements and moneys expended by the plaintiff for purposes of entertainment of people, which the town itself would have no right to provide for. If four per cent could be. considered a fair return for an investment in real estate, the rental as claimed would represent a total investment, or value for the said real estate and its improvements, of $12,500. Who would contend that the town of Bloomsburg would have been justified in entering into any arrangement of that kind, or of purchasing real estate and making improvements at the far end of the town to cost that amount ?
    Under the general borough act of April 3, 1851, strictly construed and applied to the interests and welfare as affecting the several boroughs and towns of the commonwealth, the borough authorities are given all the powers that are fairly consistent with the health and well-being of the community and the interests of the taxpayers.
    The interest of the taxpayer must always be one of the controlling features in questions of this kind. Municipal authorities are not always as careful about the rights of those whom they represent as they should be, and it devolves upon the courts to carefully guard the welfare and well-being of the community.
    As bearing upon the question here involved, attention is called to the fact that previous to 1891 we find no general legislation relative to the right of municipal authorities to purchase or acquire lands for park purposes. March 26, 1867, P. L. 547 there was a special Act relating to the city of Philadelphia, and May 18, 1871, P. L. 910, one relating to the city of Pittsburg. On June 24,1891, P. L. 394, there was an enactment which authorized and empowered cities to take and hold ground for public park purposes, and on June 26, 1895, P. L. 331, this authority was extended to boroughs, which was after the contract in this case had terminated. Applying the principle of expressio unius est exclusio alterius, it is fair to'argue that the expression of those things, the borough or town authorities had the power to regulate, excluded those not mentioned, and the presumption was against the power of the officers of such municipality, like that in this case, of contracting for, or spending money, by leasing a park for the purpose of entertainment or recreation. The legislature certainly took this view of the matter, and the act of June 26, 1895, was intended as an enlargement of contractual capacity.
    The other phase of the case is no more tenable.
    Counsel for plaintiff has cited a number of authorities to the effect that the contract having been completed, and the defendant having had the benefit and use of the real estate leased to it, plaintiff was still entitled to recover, and the defendant could not avail itself of the defense of ultra vires. The majority of the cases cited relate to private corporations, which are held to a much more liberal construction of the power to contract and more strict performance of contracts than municipal corporations, the courts guarding with more zealous care the rights of the taxpayer than the rights of stockholders. It is true there are some cases wherein a municipal corporation has received some benefit under a contract which has been declared ultra vires, but the party claimant being still entitled to recover on the ground of a quantum meruit; but this case does not fall within the class mentioned, such as where the issuing of bonds has been declared illegal and upon which there could be no recovery, and still the party claimant being permitted to recover on the ground that the borough was responsible or liable for a debt legally contracted, if within the constitutional limitation. See Borough of Rainsburg v. Fyan, 127 Pa. 74.
    The distinction is well stated by counsel for defendant, as follows : “ That when the municipality is acting within its corporate powers and there is a mere irregularitj7 in the making of the contract, although no recovery can be had upon the contract, it has been held that recovery might be had, under certain circumstances, for money had and received, etc., provided the acts complained of were not immoral, illegal or against public policy, but where a recovery is sought to be had for something which the borough officers had no right or power to contract for, and which was clearly against public policy to allow them to make, in such case no recovery whatever can be had.”
    Besides, there is no particular merit in the claim of the plaintiff for the reason that it is fair to conclude that it went into this contract with its eyes open, and with every knowledge of what it might expect to occur relative to the position of the town. There was considerable opposition to the execution of this contract. The town council was almost equally divided; the borough solicitor filed an opinion that the contract was illegal and beyond the powers of the borough officials. All of these things must have been known to the plaintiff company. Notwithstanding this it decided to take the risk, and if the contract is ultra vires, it has no just right or ground of complaint.
    “ The inhabitants are the incorporators. The officers are only the public agents of the corporation. Their powers and their duties are prescribed by the charter or by statute. All persons dealing with them are bound to know the extent of their powers. Any rule or practice, which permits municipal officers to transcend their powers, is equally contrary to public policy and fraught with such mischievous and injurious effect ■to the taxpayers of the municipality that it should receive judicial condemnation: ” Appeal of Whelen, 108 Pa. 162.
    We have every right to assume that either the plaintiff, or its officers in a representative capacity, liad full knowledge of the controversy leading up to the execution of the contract. They went into it with their eyes open and if it were illegal and against public policy, beyond the powers of the town, they have no right to complain, or ask for a recovery on the ground that the town occupied the property and received revenue from the same.
    In this connection attention is called to the case of Pennsylvania Canal Company v. Shirley and Union Townships, 18 W. N. C. 397, where it was held that “ The supervisors of a township have no power to bind the township by an agreement entered into by them with a canal company, by which the latter agreed to grant to the citizens of the township the right and privilege to use their towpath as a public road. Such a road, not having been laid out according to the act of assembly, does not become by law a public highway, but remains the property of the canal company and the agreement is ultra vires, as well as against public safety.
    “ In such case the canal company cannot recover from the township the compensation fixed upon by such agreement for the use of their towpath.”
    The present case is very similar in its principles to the one just cited. The contract was ultra vires and against public policy, and notwithstanding the use and occupation of Oak Grove Park, as established, there was still no right of recovery in the party plaintiff.
    The very principle of the law, as held by the court relative to the power and the authority to execute contracts as herein-before stated, could easily be evaded by the municipal authorities by simply using and occupying real estate and thereby compelling the taxpayers to pay for the same irrespective of the actual authority to enter into such contracts by said municipal authorities.
    In the present day, in the light of developments relative to the unwarranted use of public property and disposition of its public funds, it is well to refer to the principle that all evasions of the law should be frowned upon and that the representatives of the people should be obliged to work and act strictly within the powers granted, and, as held in the appeal of Whelen, every man dealing with them must be on his guard and see that all contracts entered into are within the scope and powers as granted by legislative authority.
    May 24, 1906 :
    December 11, 1905, for the reasons above stated the court is of the opinion, the contract as made was ultra vires, that there was no evidence in the case which entitled the plaintiff to recover, and judgment is entered in favor of the defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      11. M. Hinckley, with him N. U. Funk, for appellant.

      Grant Herring, for appellee.
   Per Curiam,

Judgment affirmed on the opinion of the court below.


text:
    White v. Columbia and Montour Electric Railway Company, Appellant.

      Negligence — Street railways — Passengers—Jerk of car — Province of court and jury — Exorbitant verdict — New trial.

    In an action against a street railway company by a passenger to recover damages for personal injuries, the case is for the jury where the plaintiff and her daughter testify that the car started before plaintiff had a reasonable opportunity to be seated, and that the jerk of the car threw the mother down and caused the injuries complained of.
    The appellate court will not reverse a judgment on a verdict though of opinion that it is exorbitant, where no abuse of discretion has been committed by the trial court.
    Argued April 10, 1906.
    Appeal, No. 84, Jan. T., 1906, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1905, No. 107, on verdict for plaintiff in case of George White and Emily D. White v. The Columbia and Montour Electric Railway Company.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      May 24, 1906 :
    Trespass to recover damages for personal injuries. Before Staples, P. J., specially presiding.
    At the trial the jury returned a verdict of @5,000 for George White and @7,000 for Emily D. White.
    The court refused a motion for judgment for defendant non obstante veredicto.

      Hrror assigned was (1) in discharging rule for judgment for defendant non obstante veredicto, and (2) in overruling motion for a new trial.

      William H. Sponsler, with him A. W. .Dug and Grant Herring, for appellant.

      Paul J. Sherwood, for appellees, was not heard.
   Per Curiam,

Appellant’s argument on the refusal of the court below to enter judgment for the defendant non obstante veredicto is based on the proposition that a mere description or characterization of the jerk in starting the car as excessive is not sufficient to prove negligence. But this overlooks the testimony of the plaintiff and her daughter, following the description of the jerk, that the car started before plaintiff had reasonable opportunity to be seated and that the jerk threw the mother down and caused the injuries complained of. The testimony of experienced witnesses as to the character of the jerk might well persuade the jury that the plaintiff’s account was exaggerated, but it could not take the issue out of the province of the jury to decide.

The amount of the verdict was exorbitant, especially that for the husband, and in view of the circumstances and testimony casting such very serious doubt on the honesty and good faith of the claim, if we sat on the motion for a new trial we should unhesitatingly grant it. But the court below, in whose province it was, considered the matter carefully, did not feel called upon to interfere, and in this view there was no abuse of discretion which would justify us in so doing.

Judgment affirmed.


text:
    Keil’s Estate.

      Will — Probate—Devisamt vel non — Issue.
    On an appeal from a register of wills admitting a will to probate, the evidence showed that the will was written on one side of a sheet of legal cap, and on the first and third pages of a full sheet, all bound together by wire staples. The first page was closely written while the writing- upon the other two pages was in a fuller and freer hand. The scrivener who wrote the will testified that he had endeavored to write it all on a half sheet of paper, but found that he could not get it on one page, so that he wrote in a larger hand on the other two pages. The theory of the contestants was that the scrivener had torn off the first page or pages, and that in order to make the substituted page properly connect in sense with the second page of the will as probated, he was obliged to write the first or substituted page in a more compact manner than the other pages. Experts called by the contestants testified that the first page was written with a finer pen, with a different /ink and at a later time than the other pages. Experts called by the proponent flatly contradicted this testimony. It was not shown that the scrivener had any motive for substituting a page, and the will itself in its provisions carried out practically the testator’s desires as expressed in other wills which he had made. One witness for the proponent testified that when he saw the will several years before, the first page seemed to have more writing on it, and he thought, but was not positive, that the papers were fastened by a brass fastener instead of a wire staple. Held, that an issue was properly refused.
    Argued March 11, 1906.
    Appeal, No. 39, Jan. T., 1906, by Otto Keil et al. from decree of O. C. Luzerne Co., No. 206, of 1904, refusing an issue devisavit vel non in Estate of Christian Keii, deceased.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from register of wills.
    Freas, P. J., filed the following opinon:
    Christian Keil died April 17, 1904, leaving a will dated March 25, 1901, whicn was probated April 30, 1904. From the probate of said will an appeal has been taken by the children of testator by his first wife, who allege that the paper probated is not the will of testator but is a paper so materially altered and changed as to entirely defeat and nullify the intention o.f the testator, in that the first page or pages of said will were destroyed and a page substituted after the will had been signed by the testator. The will was written by James Martin and as the first page of the will as probated is also in his handwriting he, if anyone, must have made the substitution.
    In proof of their claim of alteration the contestants offer the will itself, which consists of one half sheet of legal cap, closely written upon one side, and one full sheet loosely written upon on the first and third pages, all bound together by two wire staples made from common pins, clinched by a tool for the purpose. It is contended that Martin tore off the first page or pages and in order to make the substituted page properly connect in sense with the second page of the will as probated, ho was obliged to write the substituted page in a much finer hand and in a more compact manner than the other pages were written. In support of this theory we find that the first page contains 1,404 letters and figures, while on the second page there are only 930 letters. Contestants called two experts in handwriting, who testified that in their opinion the first page was written with a finer pen, with a different ink, and at a later time than the other pages. The experts called by proponents flatly contradict those of contestants. The attempt to prove by the use of chemicals that a different ink was used and at a different time, failed absolutely. On the whole we are not aided one particle by the expert testimony. We allowed them wide latitude, greater possibly than we should have permitted, for we think their opinions as to the conclusions to be drawn from the obvious appearances of the different pages are not evidence.
    The will was witnessed by Christian Gebhart, who testified in part as follows: “ Q. Now please answer my question, is or is not that the same as when you witnessed it? A. I just glanced at the first page, that is all I did. Q. Well, is that the same ? A. Why, no, I think there is a little more to it. Q. Did you say that Mr. Keil said at the time that will was signed they were all willed alike? A. Yes, sir, he did. Q. I ask you now if there is any other difference you can find out as to the beginning of it, or where it begins on the page or anything of that kind? A. Well, I don’t know, only it was handed to me; I looked at the first page and never looked at any more. I did not read it, I just glanced at it. Q. In the appearance of the first page is there any difference ? A. I thought it only was about this far.” (Indicating. Andón cross-examination the witness further testified: “ Q. About that far; about twelve lines up ? A. Yes, and then I thought there was an open space. Q. Witness shown last page of the will? A. That is the page, yes, sir, that’s right. Q. That is the page your signature is on ? A. Yes, sir. Q. And Mr. Keil’s signature? A. Yes.” He further says that the several pages were fastened together when he witnessed the will.
    We think the above extracts from Gebhart’s testimony conclusively show that although he says he saw only the first page he really had in mind the last page, which page is not in dispute.
    The other witness to the will is Baltzar Jozwiak, who testified in part as follows : “ Q. At the- time the will was signed by you as a witness, whether or not you read it? A. Yes, sir, I did. Q. In whose presence did you read it? A. Mr. Keil’s and Christian Gebhart’s. Q. Did you read it aloud ? A. No, sir. Q. Now I wish you would examine the will and state to the court whether or not that will is as it was when you witnessed it? A. Why, as far as I can understand, this first page don’t seem to me that there was so much writing on it, that’s all I know about it. Q. Whether or not that is the same will ? A. Yes, sir, that is the same will but, but that page don’t seem to me there was so much writing on it when I witnessed the will. Q. Well, is that the page or is it not that was on when you witnessed the will ? A. I don’t think so. Q. This Henry Stark you speak of is the man he gives a house and lot to up there ? A. Yes, sir, he told me that before I ever signed the will that he was going to give that to him. Q. And Keil spoke to you of the fact that he was going to make his will some time before? A. Yes. Q. You say you don’t think that at that time it was fastened the same as it is now. A. No, I don’t think so, I ain’t positive. Q. Referring to the will as it was before the probate papers were attached, I ask the witness if he thinks it was fastened at the time he witnessed the will with the wire staples ? A. I imagine it was fastened with a brass fastener. Q. Was it fastened the way it is now? A. I say I don’t think so.”
    If an issue is granted it must be principally upon the evidence of Jozwiak above quoted. The substance of it is that the first page seems to him to have more writing on it, and he thinks, but is not positive, that the papers were fastened with a brass fastener. As he witnessed the will March 25, 1901, and did not see it again until after April 30,1904, it is very unlikely that he would carry these details in mind with any degree of certainty. The witness is undoubtedly honest in his testimony and gives his impressions as he recalls them. We think it evident from an inspection of the will even after being handled as much as it has been, that the papers disclose no evidence of brass fasteners ever having been through them. We think it would be possible to remove the pin staples but it would be necessary to insert others just like them to leave no trace. Although Jozwiak road the will at the time he witnessed it and had known the parties to it for eighteen years, yet he does not speak of any change in its contents, which we think he would be more likely to remember than its appearance. He testifies that Keil told him that he was going to give the house and lot to Henry Stark, and this devise appears on the page in dispute.
    James Martin, who wrote the will, is married to a daughter of the woman who is mentioned in the will as testator’s wife. He was formerly sheriff of Luzerne county, and is now a mine inspector. He is a man of considerable intelligence but of little education. He testified that when Keil asked him to write the will Keil gave him two former wills which had been drawn by Squire Cox and directed him as to the contents; that ho w'rote the will next morning at his own house, with the Cox wills before him, and endeavored to write it all on a half sheet of paper as the Cox wills were written, but discovered when he had finished the first page that by reason of the description of land given to Henry Stark, which description was not in the Cox wills, he could not get it all on both pages of the single half sheet. He then took a full sheet and having more space at his command he wrote in a fuller and freer hand. He is not certain whether he completed it without getting up, or whether he used more than one pen, as he had several on his desk, but is positive that he used the same ink throughout, and that the will as probated was written that morning and that it was not afterwards mutilated; that afternoon he gave it to Keil and did not see it again until it was probated. Mrs. Keil testifies that Keil placed it in a tin box in which he kept his papers in his bedroom, and after his death it was delivered to Attorney Conniff.
    Christian Neil, the testator, came to this country in 1868, after the death of his first wife, by whom he had the children who are now the contestants. He had been acquainted .in Germany with Mrs. Elizabeth Noll, who is the mother of the proponents, and who came here in 1869, followed shortly after-wards by her children, who for some reason unknown to us are called Stark. Soon after her arrival Mrs. Noll became testator’s housekeepei’, and on June 4, 1877, they were married (she giving her maiden name as Elizabeth Appel), and they lived together as husband and wife until his death. Contestants contend that this marriage was illegal by reason of the fact that Noll did not die until about 1900. Proponents offered in evidence a decree of divorce of a German court dated March 81, 1874, of John Noll from his wife Elizabeth, nee Apple, on the ground of malicious desertion. This record was objected to for the reason that it was not an exemplification of the whole record of the proceedings of which the record offered is a part, and this objection we now sustain. So far as this case is concerned, whatever may be the truth of the matter, Mrs. Noll is not the legal widow of testator; but if he died testate this fact is not now important. That he regarded her as his legal wife cannot be questioned, as he publicly held her out as such, they acknowledged deeds together, and in all his wills he speaks of her as his wife, and in two of his wills his bequests are stated to be in lieu of dower if she should so elect.
    In Wikoff’s Appeal, 15 Pa. 281, where an issue was demanded to determine whether a part of a will had not been suppressed, it was held that the presumption of innocence is favored by the law, and as it would be criminal in a stranger to filch and suppress a part of a will, the presumption would be that the missing bequest had been canceled by the testatrix herself. So in our case, notwithstanding the peculiarities of the first page of the will, we must start with the presumption that no change or substitution has been made. Crime is sometimes committed without any apparent motive, yet it is almost inconceivable that a crime of this nature would be perpetrated without the hope of benefiting someone very materially. If a substitution was made, James Martin did it, .and we naturally look to the beneficiaries mentioned on the first page to see in whose interest this alleged crime was committed, and we find that, the widow and Henry Stark are the only ones therein preferred. The testator had executed two other wills with which Martin had nothing to do, and a comparison of the three wills is instructive of the testator’s intentions.
    It is true that the making of a new will is evidence of some change in testator’s intention, but here the general scheme of distribution is the same in the second and third wills. In both these wills Henry Stark is given the saloon property, but in the last will upon more favorable terms. In the second will and in both the disputed and undisputed pages of the last will testator divides the remainder of his estate equally among his own and his stepchildren, except Henry Stark. The provision for the widow in the last will is less favorable than in the former will; he gives her a life estate in all his real estate and his personal property absolutely in the last will, but there is no evidence that he possessed any personal estate. If it were the testator’s intention in making a new will to prefer his own to his stepchildren it is strange that he should have selected the husband of his stepdaughter to draft the will when ho did not consult him in making the other wills, and have given him the wills in which all the children except Henry were made equal to copy from. It requires no comment to show that this supposed crime could not have been committed in the interest of the widow. Keil told Jozwiak that he intended to give the saloon property to Henry, and the will was witnessed in Henry’s saloon. He told Gebhart that “ they were all willed alike,” which is true as to all except Henry. By reason of the preference of Henry Stark the scrivener’s wife suffered as much as the other children.
    There is no evidence of the commission of a crime here and no proof of any motive. We have only the peculiarities of the first page, the opinions, not well founded, of two experts, and the faint impressions of the appearance of the paper of a witness to the will. As against the presumption of innocence, the contents of his other wills and his declared intentions, we do not think that a dispute within the meaning of the act allowing an issue has arisen. We are not without difficulty in reaching a conclusion as to whether an issue should be granted in this case, but we do not think that suspicion and opinion can be substituted for proof of facts.
    May 24, 1906 :

      Error assigned was decree refusing the issue.

      John M. Barman, with him Harris B. Hamlin, for appellant.

      S. J. Strauss, with him T. M. Oonniff, for appellee.
   Per Curiam,

Decree affirmed on the opinion of the court below.


author: Mr. Justice Stewart,

text:
    Mulderig, Appellant, v. Wilkes-Barre Times.

      Libel — Malice—Privileged communication — Criticism of public official.

    Criticism of the official conduct of a public officer is always a proper subject for public discussion and information, and as such is privileged. If there is that in the publication which furnishes a basis for reasonable inference that malice was back of it, the burden remains with the party-charged to establish either its truth or the probable ground for believing it true. When such is not the case there must be some evidence beyond the mere fact of publication; but there is no requirement as to what the form of evidence shall be. It may be intrinsic, from the style and tone of the article.
    In an action for libel the publication charged the plaintiff with misconduct, in his office as a civil magistrate, so gross and flagrant as to demand, in the opinion expressed editorially, his impeachment and a full investigation into his past record, which it was declared might possibly develop other charges for securing his ignominious discharge. It characterized him as a “sycophantic Justice,” and in unmistakable language accused him of being party to a conspiracy to humiliate, by sending to jail overnight, a person charged before him with misdemeanor. “Never in coercion days in Ireland,” the article said, “was there a more wicked conspiracy to deprive men of their right to their spoken opinion, and to railroad them to prison for daring to stand up in defense of those rights. This man M. has certainly mistaken his vocation, and has not realized that he is living in the land of the free.” Held, that the case was for the jury, and that it was error to direct a nonsuit.
    Argued April 11, 1906.
    Appeal, No. 115, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., May T., 1901, No. 370, refusing to take off nonsuit in case of M. J. Mulderig v. Wilkes-Barre Times.
    Before Mitchell, C. J., Mestbezat, Pottek, Elkin and Stewart, JJ.
    Reversed.
    Trespass for libel. Before Wheaton, J.
    The publication complained of was as follows:
    “ A weekly contemporary has suggested the dropping of the Dillionis ease, a much to be desired result, but the prosecutors of that much abused man will not let the matter drop. And as the principle of free speech, so dear to all Americans is involved, the matter must be fought out with these ignorant foreigners until they are taught that they are not now in barbarous Russia. The last and worst feature of the Dillionis episode was the prosecution, on Friday night, before a Justice named Mulderig, of the Rev. J. J. Fletcher, the pastor of the First Presbyterian Church, of Pittston, an eminent Christian minister, on trumped up charges under the disorderly conduct Act of 1895.
    “ The head and front of the Rey. Mr. Fletcher’s offending is that he has stood up in defence of Dillionis and in behalf of that constitutional right of every American, free speech. It appears that on the night of February 3d, the reverend gentleman went to Booth’s Hall, Pittston, and on his arrival he found a fight on, the crowd having Dillionis in a side room. Mr. Fletcher endeavored to assist him, and remonstrated with the assailants. These very assailants are now the prosecutors of Mr. Fletcher and it was hoped by the assistance of one Mulderig, Justice of the Peace, at Inkerman, that they would humiliate him and compel him to spend a night in jail. The evidence of the prosecutors to the effect that he was flourishing a revolver was entirely disproved, but the sycophantic Justice immediately gave judgment.
    “He said that under the testimony given and in view of the fact that Mr. Fletcher admitted going to the place in question, and as disorderly conduct was committed (?) he would find the defendant guilty and would fine him $10 and costs or thirty days in jail.
    “ So determined was he to send Mr. Fletcher to the county prison after the latter had refused to pay the fine, that he hesitated about obeying Judge Halsey’s order to allow the defendant to give bail in $30 and appeal.

      “ This man Mulderig ought to be impeached and a full investigation into his past record might possibly develop other charges for securing his ignominious discharge from a magisterial office.
    “Never in coercion days in Ireland was there a more wicked conspiracy to deprive men of their right to their spoken opinions and to railroad them to prison for daring to stand up in defence of those rights.
    “ This man Mulderig has certainly mistaken his vocation and has not yet realized that he is living in the land of the free and the home of the brave.
    “ The vicious disorderly conduct Act of 1895 is largely responsible for opening the way for wicked and unfounded charges, and many an innocent man and woman has been ‘ pulled,’ under a certain construction of its clauses, and mulcted in heavy fines and costs and in default sent up to jail. These charges are invariably heard at night so that very little opportunity is given to the defendants to obtain bail, hence it has been ‘ pay up promptly or go to jail.’
    “ Ample illustrations can be given of the dangerous character of this Act, and we hope no effort will be spared to secure its repeal this session. There is not a decent member of Luzerne bar that will speak a word in its favor and there is no better body of legal gentleman in the State of Pennsylvania. Pittston and West Pittston has never had an opportunity of fairly-testing this blot upon our statute books and realizing its vicious character. A special petition should therefore be sent by the citizens to the legislature without delay and we have no doubt it will be extensively signed.”
    • The court entered a compulsory nonsuit whiehiit subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit.

      John M. Garm.an, with him James O. Murray, for appellant.
    A communication to be privileged must be made on a proper occasion from a proper motive, based upon reasonable or probable cause and made in a proper manner. Thei'e must be neither malice nor negligence in making it: Ingram v. Reed, 5 Pa. Superior Ct. 550; Coates v. Wallace, 4 Pa. Superior Ct. 253; Briggs v. Garrett, 111 Pa. 404; Jackson v. Pittsburg Times, 152 Pa. 406; Com. v. Swallow, 8 Pa. Superior Ct. 539; Conroy v. Pittsburg Times, 139 Pa. 334; Munns v. Dupont, 3 Wash. (U. S. C. C.) 31; Winebiddle v. Porterfield, 9 Pa. 137 ; Chapman v. Calder, 14 Pa. 365; Smith v. Ege, 52 Pa. 419; Collins v. Dispatch Pub. Co., 152 Pa. 187 ; Neeb v. Hope, 111 Pa. 145; Pittook v. O’Neill, 63 Pa. 253.
    May 24, 1906:

      Thomas F. Farrell, for appellee.
    In entering the nonsuit we contend that the court was correct under the rules as laid down by this court: Rowand v. DeCamp, 96 Pa. 493; Neeb v. Hope, 111 Pa. 145; Conroy v. Pittsburg Times, 139 Pa. 334 ; Briggs v. Garrett, 111 Pa. 404.
   Opinion by

Mr. Justice Stewart,

That the publication complained of by the appellant tended to expose him to contempt, ridicule, hatred and derogation of character, must be admitted. If it was malicious, it was libelous. It must be adjudged malicious, except it be s'hown to be true or justifiably made. Its truth was not asserted, and dare not be assumed. Though untrue, it might yet have been justifiably made. -If a privileged communication, it was justifiable, and the publisher of it may not be held legally answerable. It was a privileged communication if made upon proper occasion, through proper motives, upon reasonable cause, and made in the proper manner. Since the immunity of a privileged communication is an exception to the general rule that nothing short of proof of the truth is a defense to a libel, he who relies on the exception must prove all the faets necessary and bring himself within it: Conroy v. Pittsburg Times, 139 Pa. 334. A party defendant is relieved of this burden when the publication intrinsically supplies the required facts. But such is not the case here. Admittedly this was a privileged communication so far as regards the occasion of its publication. It was a criticism of the official conduct of a public officer, always a proper subject for public discussion and information. As was said in Neeb v. Hope, 111 Pa. 145, and repeated in many other cases, the conduct of public officers is open to public criticism, and it is for the interest of society that their acts be freely published with fitting comments or strictures. But privileged occasion, without more, can justify only in exceptional cases, as where the publication itself or the circumstances connected therewith, negative the presumption of malice. If there is that in the publication which furnishes a basis for reasonable inference that malice was back of it, the burden remains with the party charged to establish either its truth or the probable ground for believing it true. When such is not the case there must be some evidence beyond the mere fact of publication; but there is no requirement as to what the form of evidence shall be. It may be intrinsic, from the style and tone of the article: Conroy v. Pittsburg Times, supra. “ If the communication contains expressions which exceed the limits of privilege, such expressions are evidence of malice and the case shall be given to the jury.” Neeb v. Hope, supra.

The publication here complained of charged the appellant with misconduct in his office as a civil magistrate, so gross and flagrant as to demand, in the opinion expressed editorially, his impeachment, and a full investigation into his past record, which it was declared might possibly develop other charges for securing his ignominious discharge. It characterized him as a “sycophantic Justice,” and in unmistakable language accused him of being party to a conspiracy to humiliate, by sending to jail overnight, a person charged before him with misdemeanor. “ Never in coercion days in Ireland,” the publication proceeds, “ was there a more wicked conspiracy to deprive men of their right to their spoken opinions, and to railroad them to prison for daring to stand up in defence of those rights. This man Mulderig has certainly mistaken his vocation, and has not yet realized-that he is living in the land of the free.” We are of one mind that the extreme severity of the criticism indulged in here, the epithets and language employed in connection with the charge preferred, the reference to appellant’s past record, all tend to overcome the prima facie presumption of protection under the privilege, and were sufficient in themselves to put upon the defendant the burden of justifying. The case was" for the jury, and it was error to direct a nonsuit.

Judgment reversed and a procedendo awarded.


author: Mr. Justice Stewabt,

text:
    Cincinnati Equipment Company, Appellant, v. Strang.

      Contract — Bailment—Sale—Replevin.
    In an action of replevin it appeared that the plaintiff by an instrument in writing leased to the defendant a quantity of rails together with a steam shovel and a number of dump cars. A rental payable in installments was provided for, and it was further agreed that upon the payment of $10.00 in addition, defendants could purchase the equipment. It was also provided that in case of default in payment of rental plaintiff might take possession of the property. Throughout the contract the articles leased were repeatedly referred to as “said equipment.” The articles were separately valued. The cars and shovel were marked as the property of the plaintiff, while nothing of the kind was required with respect to the rails. It was also stipulated that the shovel and cars were not to be removed from the lessee’s work. Held, that the contract was a contract of bailment, and not a sale of the rails as well as of the shovel and cars, and that on default the lessors could seize the rails as well as the shovel and cars.
    Argued April 16, 1906.
    Appeal, No. 230, Jan. T., 1905, by-plaintiff, from judgment of C. P. Clearfield Co., Feb. T., 1904, No. 124, on verdict for defendant in case of Cincinnati Equipment Co. v. E. P. Strang, W. Forsythe, J. Lancaster Dailey and George W. Green, trading as Strang & Forsythe.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Replevin for rails, steam shovel and cars. Before Smith, P. J.
    The facts of the case are stated in the opinion of the Supreme Court.

      jError assigned was in refusing binding instructions for plaintiff.

      Smith V. Wilson, with him J. Washington Logue, for appellant.
    The contract was one of bailment for all the articles: Jones v. Wands, 1 Pa. Superior Ct. 269; Porter v. Duncan, 23 Pa. Superior Ct. 58; Edwards’ App., 105 Pa. 103; Enlow v. Klein, 79 Pa. 488 ; Stiles v. Seaton, 200 Pa. 114; Hartman v. Meighan, 171 Pa. 46 ; Alcott v. Hugus, 105 Pa. 350; Shires v. O’Connor, 4 Pa. Superior Ct. 465.

      May 24, 1906 :

      David L. Krebs and Roland D. Swoope, with them Gordon $• Boulton, for appellee,
    cited: Meadville v. Erie Canal Co., 18 Pa. 66 ; City of Erie v. Erie Canal Co., 69 Pa. 174; Redman’s App., 173 Pa. 59; McCowin’s App., 165 Pa. 233; Frazier v. Munroe, 72 Pa. 166; Shrewsbury Savings Inst’s Appeal, 94 Pa. 309; Mutual Fire Ins. Co. v. Coatesville Shoe Factory, 80 Pa. 407; Earp’s Appeal, 75 Pa. 119; Strickier et al. v. Todd, 10 S. & R. 63.
   Opinion by

Mr. Justice Stewabt,

This controversy concerns none but the parties to it. The contract as they themselves made it, must determine their respective rights thereunder. The Cincinnati Equipment Company, plaintiff in the case, by written articles of agreement— we follow the language of the instrument — leased and demised unto the defendants sixty-nine 9/100 ton of 2240 rails, with three sets of frogs and switches; one industrial iron works steam shovel, and thirty dump cars; the rent therefor to be paid as follows : $2,000 cash, two notes, each for $1,609.30, and one for $1,599.30, maturing at different periods, aggregating the sum of $6,817.90, the total value of the material leased. The contract provided that said notes being paid, for the further consideration of $10.00, the Equipment Company would sell all said material to the lessees; but in case of failure to pay any of the notes the equipment company should have the right to take possession of the same wherever it might be. Default in payment of the notes having occurred, the lessors, by writ of replevin, recovered all the leased articles ; but upon trial of the issue joined, the learned presiding judge, distinguishing between the several articles embraced in the contract, held with respect to the rails, that the contract gave plaintiffs no right to recover them in any event; that with respect to these the contract was one of sale and not of lease, and directed a verdict for the defendants for the value of the rails as fixed by the contract. This ruling of the court is assigned for error, and it is the only matter for our consideration. The contract first recites what is leased, enumerating the items we have given above, and fixing a valuation on each. Thereafter in the contract these are repeatedly referred to collectively as “ said equipment,” in such a way as to make it very evident that the parties regarded it as one undertaking though composed of several items. So too in the original negotiations. In the preliminary paper that led up to the contract, the several articles are enumerated and collectively designated as an equipment. The mere fact that each item was separately valued cannot be said to have a contrary significance, since such a valuation may just as well be regarded as introduced in order to provide a measure for compensation, in case of inability on part of the lessees, through the loss or destruction of some particular article of the leased property, to return it on the determination of the lease. Undue significance was given by the learned judge to the fact that the contract distinguished between the rails and the cars and shovel, in providing that the latter, while in the use of the lessees, should be marked as the property of the equipment company, while nothing of the kind is required with respect to the rails. The difference in the nature of the several articles suggests a sufficient explanation consistent with the view that the contract was entire. The marking of the cars and shovel was a simple matter, easily accomplished ; the marking of the rails in such a way as to give notice of ownership to the public, would be so difficult as to make it well nigh impracticable. Besides, it was evidently contemplated that the rails would be fixed in place, while the cars and shovel would be used as needed along the entire line of the road, without fixed location. Presumably it was this latter circumstance that suggested a provision that the shovel and cars were not to be removed from the lessees’ work, and that wherever they might be, in case of default in the rent, the lessors might enter upon the premises and recover possession thereof. This provision with respect to the shovel and cars, did not abridge the right of the lessors to repossess themselves of the rails under the earlier and general clause, which gave them the right to take possession of “ said equipment wheresoever same should be located ” in case of default. The determining feature in the case is that the parties themselves declare the rails to be part of the equipment; the right to repossess in case of default extended by express provision to everything included in the term u equipment.” This provision relating to the recovery of the shovel and cars furnishes no basis for the application of the rule that excludes what is not expressed. It has a purpose of its own, suggested as we have said, by the peculiar nature and use of the property to which it refers.

We are unable to find anything in the contract that indicates an intention to distinguish between any of the articles so far as - concerns the right to recover the same in case of default. The rails were leased, just as were the other articles enumerated, and the plaintiff’s rights with respect to them were the same.

The case presents no other question than that considered. Plaintiff’s first point which called for binding instructions to the effect that under all the evidence in the case the verdict should be for the plaintiff, should have been affirmed.

Judgment reversed and judgment for plaintiff ordered.


author: Mr. Justice Elkin,

text:
    Baicker, Appellant, v. Peoples Street Railway Company of Nanticoke & Newport.

      Negligence — Street railways — •Collision between wagon and car — Nonsuit.
    In an action against a street railway company to recover damages for personal injuries sustained in a collision between a car and a wagon which the plaintiff was driving, a nonsuit is properly entered where it appears that plaintiff stopped, looked and listened before he drove upon plaintiff’s trades, that when upon the tracks he saw for the first time a car turning in from another street about 100 feet distant, that instead of proceeding forward he stopped his horse and attempted to back off, that he did not succeed in doing so, and the approaching car which was not going at an excessive rate of speed struck the front wheel of the wagon, throwing the plaintiff out, and causing the injuries for which suit was brought.
    Mestrezat, J., dissents.
    Argued April 11, 1906.
    Appeal, No. 116, Jan. T., 1906, by plaintiff, from order of C. P. Luzerne Co., May T., 1903, No. 387, refusing to take off nonsuit in case of Abe Baicker v. Peoples Street Railway Company of Nanticoke & Newport.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ferris, J. .
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      May 24, 1906 :

      John M. Garman, for appellant,
    cited: Burke v. Traction Co., 198 Pa. 497; Turnpike Co. v. R. R. Co., 54 Pa. 345 ; Ehrisman v. Ry. Co., 150 Pa. 180; Cohen v. R. R. Co., 211 Pa. 227; Kennedy v. Traction Co., 210 Pa. 215.

      Q. A. Gates, for appellee,
    cited: Flanagan v. Ry. Co., 163 Pa. 102; Wagner v. Traction Co., 212 Pa. 132; Dunkle v. Ry. Co., 209 Pa. 125; Mease v. Traction Co., 208 Pa. 434; Harman v. Traction Co., 200 Pa. 311.
   Opinion by

Mr. Justice Elkin,

Green street is one of the principal avenues in the borough of Nanticoke. The accident in this case occurred at a right-angled crossing of intersecting streets in said borough. The appellant had passed from a narrow street called Maple out upon Green street with the intention of crossing it. He stopped, looked and listened for an approaching car at the side line of Green street and seeing none, he started to cross the defendant’s track, proceeding with caution on account of two stoves which constituted his load. When upon the track he saw for the first time the advancing car as it was turning into Green from Hanover street, something over 100 feet distant. Instead of proceeding forward and clearing the track, he stopped his horse and attempted to back off. He did not succeed in so doing. The approaching car before it was brought to a full stop, struck the front wheel of his wagon, from which he was thrown out and received the injuries for which damages are claimed in this action. The horse was thrown down and the wagon somewhat damaged. The car was stopped within about a foot of the point of its contact with the wagon. There is no evidence indicating that the motorman did not have complete control of the car, or that it was running at an excessive rate of speed. The learned court below in overruling the motion to take off the nonsuit, among other things said : “ It may be presumed that when he turned in from Hanover on Green street he saw the plaintiff driving across the track 100 feet away. He had no reason to think, and was not bound to anticipate that Baieker instead of proceeding would stop and attempt to reverse his motion and back off, or that the attempt would not be successful. The plaintiff evidently thought it could be done. It would be a strange rule that would relieve the plaintiff from negligence in acting upon that belief, and convict the motorman of negligence in entertaining and acting on the same belief. Each had a right to presume that the other would exercise the precaution which the situation demanded.”

This court' has frequently said that it is as much the duty of the driver of a team to avoid a collision in these cases as it is the motorman of a car. If the apiiellant had continued in his course, he no doubt would have cleared the track before the car reached that point, and no collision would have occurred, but, having changed his mind, he attempted to back off, thus confusing the situation, the motorman acting on the belief that he would succeed, and the driver acting on the same belief.

Under these circumstances, we are of opinion that the testimony is not sufficient to justify a recovery of damages for the injuries resulting from the accident.

Judgment affirmed.

Mestkezat, J., dissents.


text:
    Dimeling, Appellant, v. Buffalo, Rochester & Pittsburg Railway Company.

      Contract — Oral contract — Insufficiency of language to establish contract— Railroad.

    In an action against a railroad company to recover a rebate of $3.00 per car on material furnished to the railroad for transportation, it appeared that the plaintiffs and the railroad company had jointly built a branch road connecting with the plaintiffs’ lumber operation, and that the plaintiffs had been reimbursed for their outlay by an arbitrary charge of $3.00 upon each carload of material shipped over the branch, and imposed by the company upon the connecting carriel-. Subsequently plaintiffs acquired other and more distant timber land, and built a tram road at their own expense to reach these lands. Plaintiffs claimed that the defendant had orally agreed to pay to them $3.00 for each car of material delivered from this tram. The plaintiffs testified that they desired the defendant to furnish the iron for the extension, but that this was refused by the officials of the company with whom they had conference. One of the plaintiffs testified “they asked us why we would not bo satisfied with the same arrangement they had with C, that they paid him three dollars a car for all the product he built roads to and delivered to the road. We accepted it and went on and bought the timber and built our road and furnished them all the freight.” Another of the plaintiffs testified “The only thing they could do they might make such arrangement as they had with C, which was three dollars a car.” The second witness was further asked “what was agreed on that day as to how much they would pay you for each product that came out of this timber.” To this he answered “three dollars.” Held, that the evidence was insufficient to establish the contract set up by the plaintiffs.
    Argued April 17, 1906.
    Appeal, No. 117, Jan. T., 1906, by-plaintiffs, from judgment of C. P. Clearfield Co., May T., 1903, No. 146, on verdict for defendants non obstante veredicto in case of Dimeling & Co. v. Buffalo, Rochester & Pittsburg Railway Company.
    Before Fell, Bbown, Potteb, Elkin and Stewabt, JJ.
    Affirmed.
    Assumpsit on an alleged oral contract. Before Atjten, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $9,324. Subsequently the court entered judgment for defendant non obstante veredicto upon the whole record.

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

      David L. Krebs, with him A. M. Liveright, for appellants.
    The agreement made June 10, 1897, was valid and binding if the defendants’ agents had the power to contract: Hoover v. R. R. Co., 156 Pa. 220 ; Interstate Commerce Commission v. R. R. Co., 145 U. S. 263 (12 Sup. Ct. Repr. 844); Interstate Commerce Commission v. R. R. Co., 168 U. S. 144 (18 Sup. Ct. Repr. 45) ; Texas, etc., Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197 (16 Sup. Ct. Repr. 666) ; Bank of Columbia v. Patterson, 11 U. S. 299; Bank v. Bank, 18 U. S. 326 ; Fleckner v. Bank of U. S., 21 U. S. 338; Gottfried v. Miller, 104 U. S. 521.

      Thos. IT. Murray, with him O. IT. MeGauley, Jas. P. O'Lavghlin and Hazard A lex. Murray, for appellee.
    There was no sufficient proof of any completed contract: Maitland v. Wilcox, 17 Pa. 231; Brown v. Finney, 53 Pa. 373; Penn Twp. School Dist. v. Snyder, 5 Pa. Superior Ct. 228 ; Allegheny County Workhouse v. Moore, 95 Pa. 408; Bangor, etc., Ry. Co. v. Slate Co., 203 Pa. 6 ; Patton v. Ligonier Coal Co., 12 Pa. Dist. Rep. 456 ; Davis v. Old Colony R. R. Co., 131 Mass. 258.
    May 24, 1906 :
   Opinion by

Mr. Justice Stewabt,

For mutual advantage and by joint effort, pursuant to a written contract between them, the parties to this controversy constructed a branch railroad one mile in length, connecting an extensive lumber operation in which the appellants were then engaged, with the appellee’s main line of railroad. This branch was owned and operated by the appellee. Appellants were reimbursed for their outlay in the construction thereof by an arbitrary charge of $3.00 upon each car load of material shipped over the branch, and imposed by appellee on the connecting carrier. To further facilitate the work in which the appellants were engaged, they constructed at their own expense a tram road for the purpose of transporting logs to their sawmill and wholly independent of the appellee. This road they operated themselves. Subsequently they acquired other timber land, still further removed from the line of the railroad, and to manufacture and market the timber produced therefrom they extended the log or tram road some three or four miles further. It is this latter extension that gave rise to the present controversy. The appellants, plaintiffs below, alleged a verbal contract with the defendant company, here the appellee, whereby the latter agreed, in consideration of the building of such extension, and delivering to the railroad company for transportation, all the product from this new operation, to allow and pay to appellants $3.00 for each car of material so delivered. The action was to recover from defendant this rebate on 3,398 car loads of material so delivered and shipped over the branch and main line of defendant’s road. In submitting the case to the jury the point was reserved whether there was any evidence in the case that would entitle the plaintiff to recover. A verdict was entered in favor of plaintiffs for the full amount of their claim; but on the point reserved judgment non obstante veredicto was entered for defendant.

The contract averred by plaintiffs and on which their claim is based, must be derived, if at all, from the conversation that occurred between Dimeling and Lee, two members of the plaintiff firm, and certain officers of the defendant company, as related by the former. It is not contended that this was supplemented by anything that subsequently occurred, except by way of recognition and ratification. The contract if made, was made then and there. The conversation was at a time and place appointed, but whether for this particular purpose or another does not appear. The parties present were Dimeling and Lee representing the plaintiff, and certain officials of the defendant company, General Superintendent Merchant, and General Freight Agent Davis. The testimony of Dimeling relating to what occurred was as follows: “We asked Mr. Merchant and Mr. Davis to furnish us iron, loan us iron to get the additional timber that we intended to buy. They met us with a counter proposition, and asked us why if we wouldn’t be satisfied with the same arrangement they had with Cass Carrier, and that they paid him three dollars a car for all the product he built roads to and delivered to their road. We accepted it.” The other witness Lee, testified as follows: “We had hoped to be able to get rail and fastenings to build a tram road for the purpose of hauling in the timber and bark, and have the same arrangement for them to furnish that rail to haul the lumber and bark, the timber or logs and bark to the mill, and we asked them to furnish the rail, we didn’t want to put the money into the rail. They wouldn’t do that, said they couldn’t do that, and the only thing they could do they might make such arrangement as they had with Mr. Cass Carrier, which was three dollars a car.” The several questions elaborately argued upon the hearing of this appeal are all subordinate to the main question, whether there can be derived from the conversation as testified to by these witnesses, the essential elements of a contract. The plaintiff’s case rested upon an alleged express verbal contract. We have recited above all the testimony offered to establish such contract. It is apparent from the testimony of both these witnesses that what plaintiffs had in mind in meeting with the officials of the defendant company, was to secure from them the necessary rails and fastenings for their projected road, the building of which was wholly conditioned upon their ability to secure the timber land they had in view. Evidently the purpose in this regard failed. It. is important only as it precedes and leads up to what is insisted upon as an actual contract. “ They met us with a counter proposition and asked us why if we wouldn’t be satisfied with the same arrangement they had with Cass Carrier, that they paid him three dollars a car for all product he built roads and delivered to their road. We accepted it.” This is the testimony relied upon to establish the specific contract. What was this counter proposition ? The witness says there was such a counter proposition, but is silent as to what it was. What follows immediately upon this statement of the witness as coming from the officials, might explain what the witness himself meant by a counter proposition, but it was not in fact a proposition ; not an offer to pay $3.00 for each car load of product shipped, but a question addressed to the other side as to whether such an arrangement met their demands. It is impossible to give it any other than a tentative signification. In itself it implied no engagement, created ho liability, and being no offer, required no retraction. The witness says : “We accepted it.” An offer and acceptance may constitute a contract, but then again, they may not, depending upon the terms in which the offer is expressed, and upon how, to whom, and when the acceptance is indicated. Not only does the testimony of this Avitness fail to show a distinct and intelligible offer or proposal on the part of .the railroad officials, but it discloses nothing in regard to the conversation from which a sufficient, binding acceptance could be inferred. To say it Avas accepted comes to nothing in such an issue as this, where the fact of the binding contract having been entered into is the very point in dispute. Was the acceptance then and there communicated to the other side?; if it was, Iioav was it ? Was the acceptance qualified or unconditional? Since it was all verbal, what language was used? The contract, if there Avas one, could only be derived from this conversation. Before the plaintiffs could be entitled to a submission of the question of contract, it Avas incumbent upon them to show what the conversation was out of which it was claimed to have arisen, in such detail as to establish a. prima facie case, both with respect to a definite proposition and the reciprocal assent of. the parties. The testimony of this witness establishes a prima facie case with respect to neither of these essentials. The testimony of Lee, the other witness, falls just as far short. Indeed, the testimony of this witness puts it beyond question, that what the witness called a counter proposition, was nothing but a suggestion of a possible basis of agreement. His language was: “We asked them to furnish the rail: we didn’t want to put the money into the rail. They wouldn’t do that, and the only thing they could do they might make such an arrangement as they had with Cass Carrier.” This is all of the conversation detailed by this witness, except that later the question was asked him: “ What was agreed on that day as to how much they would pay you for each product that came out of this timber outside of the English tract ? ” To this he answered: “ Three dollars.” This question was not objected to; had it been, of course it would have been excluded. It was not for the witness to say what was agreed upon ; it was for him to testify to a conversation between the parties from which the jury was to conclude what had been agreed upon in the way of contract, if anything. Whether anything was agreed upon depended on how the parties expressed themselves in reference to it. In saying that anything was agreed upon the witness was expressing a conclusion he himself derived from what was said and done; and in this he was attempting the function of the jury. Though the evidence was admitted, as the case is now presented, it must be disregarded, because it is a mere deduction of the witness which, however much it may have contributed to the result of the submission to the jury, can throw no light upon the question that was to be decided.

. As we have said, the manifest insufficiency of the testimony 'of these witnesses was not supplied by anything shown to have occurred subsequently. It was shown that the arbitrary of $3.00 was imposed by the defendant company upon connecting roads, and collected between the dates of June, 1897, and September, 1901, the period covered by plaintiff’s several transactions; but this evidence gave no warrant for an inference that this arbitrary or rebate or whatever it be called, was exacted pursuant to a verbal contract. So far as plaintiff’s case disclosed, it could as readily be referred to the earlier contract between the parties which admittedly, in express terms, stipulated for such rebate for the purpose of reimbursement for expenditures in the construction of the original branch railroad. Our consideration of the evidence leads us to the conclusion that it falls short of establishing a prima facie case with respect to the contract alleged, and that no error was committed in entering judgment for the defendant oh the point reserved. It is unnecessary to consider the other questions raised.

The judgment is affirmed.