text:
    Bower, Appellant, v. Walker.

      Appeals — Assignments of error — Evidence—Practice, Supreme Court— Rule 31.
    An assignment of error to the exclusion of a paper violates Rule 31, where the assignment fails to set out either the offer or the objection, and does not contain a copy of the paper excluded.

      Contract — Computation of interest — Evidence—Equity—Mutual accounts.

    In an equity suit where the issue turns upon the proper method of computing interest under a contract in writing, a statement of account made seven years prior to the date of the agreement, and referred to in the agreement as showing that to a certain extent the arrangement contemplated by the agreement had been completed, is not admissible as evidence of the proper method of computing interest under the written agreement.
    On a bill in equity to compel the redelivery of stock held as collateral where it appears that the defendant had made advances to the plaintiffs under a written agreement, by which the dividends from the stock were to discharge the debt in full with interest at six per cent per annum, and the agreement does not state how interest shall be computed, but the defendant applies the dividends as received to the interest which had accrued to date, and the balance in reduction of principal, such method of computation will be adopted by the court if it appears that for a period of nine years, accounts were rendered by the defendant to the plaintiffs based on such method, that the plaintiffs never objected, but secured an extension of the agreement, after which they continued to accept similar statements of account without objection. Such accounts cannot be considered as making up a mutual running account, inasmuch as there is no mutual indebtedness giving-rise to mutual demands, with a right of action to each party against the other.
    A construction placed upon a contract by the parties will be followed by the courts.
    Where money is paid upon a debt, it is to be applied first to the interest, if any in arrears, and then to the extinguishment of the principal.
    Argued Jan. 15, 1908.
    Appeal, No. 163, Jan. T., 1907, by-plaintiffs, from decree of C. P. No. 5, Phila. Co., 'Dec. T., 1904, No. 4,233, dismissing bill in equity in case of George R. Bower et al., Administrators of Henry Bower, deceased, v. Anne M. Walker, surviving partner of the firm of Powers & Weightman, and executrix of the will of William Weightman, deceased.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to compel redelivery of shares of stock.
    Ralston, J., filed the following opinion in which the facts appear:
    Henry Bower & Son failed in 1887 owing $36,048.05 to Weightman and large sums to various other creditors. Some of these creditors held as security for their debts shares of stock of the Ammonia Company of Philadelphia and the Kalion Chemical Company. Weightman agreed to advance the money necessary to enable Bower & Son to effect a compromise with their creditors, and in pursuance of this plan he purchased all the shares of the Ammonia Company and Bower transferred to him all the shares of the Kalion Company, Weightman agreeing to hold them until the dividends should be sufficient to reimburse him. After the death of Henry Bower the Bower interests entered into a written agreement with Weightman, dated May 28, 1896, the terms of which are as follows :
    Weightman will permit and allow all dividends paid to him on his holdings of the stock of the Ammonia Company to be applied, first, against the original debt of $36,048.05 until the dividends thus paid shall discharge the debt in full with interest at 6% per annum, which has been already so arranged and completed ; second, and will allow all further dividends on the stock of the Ammonia Company and the Kalion Company paid him thereafter to be credited against the sums advanced by him until the said advances shall in this manner be paid with interest at 6^ per annum ; and third, will allow the dividends to be credited against the cost of the stock.
    When the dividends on all the stocks shall equal in sum the amount of the original indebtedness, added to the sums advanced, the sums paid for the stocks and the sums advanced in consideration of which Bower transferred to him the Kalion stock, together with interest on all at §f0 per annum, then. Weightman is to have (hand) back the stock.
    If the dividends shall not within five years amount to a sum equal to the said several amounts, aggregating $579,412.75, and such further sums as it may be necessary to advance, together with interest thereon at 6%, then Weightman may sell so much of the stock as may be necessary to reimburse and pay him any and all balance of the said $579,412.75, with interest, and also any additions thereto remaining unpaid.
    K othing is to preclude the Bowers from making full payment at any time of rhe total amount owing, with interest, and thereupon becoming entitled to a transfer of the stocks.
    Money was advanced from time to time and dividends were received. At the end of each year Weightman, by his accountant Hoopes, rendered an account to George R. Bower, administrator of Henry Bower. In this account the Bowers were charged with the principal debt and such advances as were made, together with interest from the date of each advance, and were credited with the dividends received, with interest from the date of each payment. The payments were then deducted from the debt and a balance struck. The account of the ensuing year began with this balance and continued as above described. In each year down to January 1, 1902, the dividends were greater than the interest upon the debt, so that the principal debt was reduced until January 1, 1902, when the account showed a balance to be due of $178,991.47. Thereafter no payments were made, and the interest at the end of each year was added to the principal debt.
    On May 29, 1901, the agreement was extended for three years, and on June 15, 1904, was further extended for three years, or until May 28, 1907. Both extensions were signed by all the parties to the original agreement.
    On January 3, 1905, the Bowers interests made a tender to Anne M. Walker, the executrix of Weightman, of $76,722.09, the amount they claimed to be due, and demanded a return of the stocks. This was refused, the executrix claiming that according to the accounts the amount due on December 31,1904, was $213,668.21.
    The Bowers interests are the complainants in the bill which prays that Anne M. Walker, the executrix of Weightman, be compelled to receive $76,722 and assign the stocks held by her under the agreement.
    The contention of the complainants is that under the agreement and its extension no interest was payable to Weightman until the accounts were settled, which might be : (1) at any time when the dividends, with interest, should equal the debt, with interest; (2) at the expiration of the agreement on May 28, 1907; or, (3) at such time as the complainants were ready to pay the debt, which was on December 31, 1904. They therefore claim that the account should be stated as of December 31, 1904, by charging them with the principal debt and advances, with interest from the date of each advance, and giving them credit for the dividends received, with interest from the date of each payment.
    The defendant, on the other hand, contends that as each dividend was received Weightman had a right to first apply it to the payment of the interest then due, and, if anything was left, to apply it to a reduction of the principal.
    The question is, was Weightman under the agreement entitled to interest from time to time, or was he bound to wait for his interest until the expiration of the agreement, allowing the Bowers interest upon all their payments until that time ? There is nothing in the agreement to indicate how the payments are to be applied, and in the absence of any agreement between the parties the ordinary rule is to first pay the interest and deduct the balance from the principal. “ In all cases of partial payment it is the law which makes the application. . . . The rule as to partial payments is well settled .... the application is to be made first to the interest then due and the balance to the reduction of the principal: ” Shabswood, C. J., in Roberts’s Appeal, 92 Pa. 407. “ Where money is paid generally upon a debt, the obvious rule is to apply it first to the interest, if any, in arrears, and then to the extinguishment of the principal: ” Paxsoh, J., in.Moore v. Riff, 78 Pa. 96. To hold that Weightman was not entitled to any interest until the expiration of eleven years (the period of the agreement as extended), would be contrary to the ordinary rule as above stated. Ror did this seem to be the understanding of the parties, as accounts were rendered each year for more than eight years without objection or any suggestion that they should be kept differently. On January 2, 1902, Iioopes (for Weight-man) wrote to George R. Bower, treasurer of the Ammonia Company (and the accounts are kept in the names of the Ammonia Company and the Kalion Chemical Company), inclosing the account to December 81, 1901, and asking him to examine and confirm it, so that they might know that it was correct and agreed with his figures. To which George R. Bower replied : “ I find all correct and agreeing with my figures.” Subsequently, on May 22, 1901, George R. Bower, apparently in behalf of all in interest, in a letter to Hoopes, stated “ that on January 1, 1901, the balance due on the accounts were: On Kalion Company’s account, $120,345.57; on Ammonia Company’s account, $61,120.30, a total of $181,465.87,” and requested an extension of the agreement for three or four years. A week later, May 29, 1901, the agreement was extended, all the parties signing it. It was never suggested that the accounts should have been kept in any other way, or that Weightman was not entitled to interest from time to time until January, 1905. There is no provision in the agreement relating to the application of partial payments, and I can see no reason to depart from the ordinary rule that payments áre to be applied to interest then due, which seems to have been the understanding of the parties, acted upon by them for nearly nine years.
    It is urged by the complainants that they have been charged compound interest, but this is not the case, because in each year down to January 1, 1902, the dividends exceeded the interest and the principal was reduced. On that date the account showed a balance due of $178,991.47. After that date no dividends were received, and at the end of each year the interest was added to the principal and carried over as the balance for the next year. Thus, in the account as rendered on December 31, 1904, for $213,668.21, there was a slight compounding of interest. I should take the balance due January 1, 1902, viz.: $178,991.47, and add to it simple interest to the date of settlement, which would make the balance due January 1, 1905, $211,209.93.
    Being of the opinion that the amount tendered, viz.: $76,722.09, was not the amount due, but that the amount of the debt was as above stated, the defendant was not obliged to assign over the stocks, and the plaintiffs are not entitled to the relief prayed for.
    The bill is therefore dismissed with costs.

      Errors assigned were as follows:
    (1) The trial judge erred in sustaining the defendants’ objection to and refusing to admit in evidence the settlement of October 4, 1889. (20) Decree dismissing the bill.

      Francis K. <7«reyand Alex. Simpson, Jr., with them Townsend, Elliott Townsend, for appellants.
    The agreement of May 28, 1896, provided for the payment of the principal in five years, with simple interest at six per cent per annum and this agreement was extended without alteration to the year 1907. It is a well-established principle of law that, in the absence of an express stipulation to the contrary, no interest is due until the maturity of the principal: Roberts v. Morsell, 10 Md. 32 ; Perley, Law of Int. p. 9.; Brooks v. Holland, 21 Conn. 388 ; Ramsdell v. Hulett, 50 Kans. 440 (31 Pac. Repr. 1092); Catlin v. Lyman, 16 Vt. 44 ; Sparks v. Garrigues, 1 Binn. 152.
    A stipulation for interest at a specified rate per annum does not import a contract to pay interest annually, the term employed affording a measure for the computation of interest: Motsinger v. Miller, 59 Kans. 573 (53 Pac. Repr. 869); Ramsdell v. Hulett, 50 Kans. 440 (31 Pac. Repr. 1092); Koehring v. Muemminghoff, 61 Mo. 403 ; Catlin v. Lyman, 16 Vt. 44; Cooper v. Wright, 23 N. J. L. 200 ; Tanner v. Dundee Land Investment Co., 12 Fed. Repr. 646.
    The agreement provides expressly for the method of accounting to be adopted.
    The accounts were mutual running accounts : Dunn v. Estate of Fleming, 73 Wis. 545 (41 N. W. Repr. 707); Tucker v. Quimby, 37 Iowa, 17 ; Loventhal v. Morris, 103 Ala. 332 (15 So. Repr. 672); McFarland v. O’Neil, 155 Pa. 260 ; Edmondstone v. Thomson, 15 Wend. 554 ; Stewart’s App., 105 Pa. 307 ; Hudson v. Hudson, 21 Pa. Superior Ct. 92 ; Adams v. Carroll, 85 Pa. 209 ; Chambers v. Marks, 25 Pa. 296.
    The method adopted in those accounts cannot operate to estop us, because it necessarily results in usury whenever the amounts received in any one year is less than the amounts paid out: Phila. & Reading R. R. Co. v. Smith, 105 Pa. 195 ; Young v. Hill, 67 N. Y. 162; Stokely v. Thompson, 34 Pa. 210 ; Roberts’s App., 92 Pa. 407.

      The yearly accounts thus sent and received by the administrator cannot operate to estop the parties beneficially interested.
    The only effect of receiving and not promptly disavowing an account stated, is to put the burden of proof of falsifying it upon the person receiving it: Jones v. Dunn, 3 W. & S. 109 ; Tennent v. Dewess, 7 Pa. 305 ; Sergeant’s Executors v. Ewing, 30 Pa. 75 ; Verrier v. Guilliou, 97 Pa. 63 ; Peirce v. Peirce, 199 Pa. 4.

      Hampton L. Carson and John C. Johnson, for appellees.
    There was nothing in the contract which took the partial payments out of the usual rule of appropriation of payments, viz.: (1) in liquidation of interest up to date of each partial payment, and (2) to the extent of any balance towards payment of principal: Squires v. Hamot, 8 Watts & Sergeant, 17 ; Moore v. Kiff, 78 Pa. 96 ; Lowber v. Smith, 7 Pa. 381 ; Stewart’s App., 105 Pa. 307 ; Mattern v. McDivitt, 113 Pa. 402 ; Hay v. Kramer, 2 Watts & Sergeant, 137 ; Ingram v. Sherard, 17 S. & R. 347.
    Apart from any element of estoppel, the cotemporaneous construction demonstrates the understanding by the parties of their contract as one governed by the ordinary Pennsylvania rule of partial payment appropriations : Colder v. Weaver, 7 Watts, 466 ; Pratt v. Campbell, 24 Pa. 184 ; Alexander’s App., 20 W. N. C. 283 ; Huckestein v. Incline Plane Co., 173 Pa. 169.
    The annual statements accepted from time to time gave them the status of accounts stated, and the extension, given upon the basis of such acceptance, operated as an estoppel: Shillingford v. Good, 95 Pa. 25.
    March 2, 1908 :
   Opinion by

Mr. Justice Potter,

The controversy in this case is as to the proper method of computing interest, under the terms of an article of agreement, entered into upon May 28, 1896, between the firm of Powers & Weightman and the firm of Henry Bower & Son. When the agreement was made Henry Bower had died, and his surviving partner, his heirs and the administrator of his estate, were made parties to the contract. After reciting an indebtedness of Bower & Son to Weightman, and the purchase by him (manifestly for the benefit of Bower & Son) of certain stocks in the Ammonia Company of Philadelphia, and the Kali on Chemical Company, which indebtedness, together with the amounts paid for the purchase of the stocks, reached an aggregate of $597,412.75, the agreement provided that, as received by Weightman, the dividends upon the stocks should be applied to the discharge of the indebtedness, and the repayment of the sums advanced by him for the purchase of the stocks; and that when the dividends so received by Weight-man on such stocks, should equal in amount the indebtedness and the moneys advanced, “ together with interest on all at 6% per annum,” the stocks should be handed over and transferred to Bower’s estate, or to such person as his legal representatives might direct. It further provided that if such dividends should not within five years equal the amount of the indebtedness and advances, with interest, Weightman should have the right to sell the stocks, and reimburse himself. It was also provided that Bower’s estate and William H. Bower might at any time during the continuance of the agreement, by paying the balance of indebtedness then due, with interest, become entitled to a transfer of the stocks to them. By subsequent agreements of the parties, the terms of the contract were extended for three years to May 28, 1904, and again for three years to May 28, 1907.

After the execution of the agreement, statements were rendered annually by Powers & Weightman to George B. Bower, who was a son and administrator of Henry Bower, showing the status of the account. The statements of 1899,1900,1901, 1902 and 1903 were in evidence. On May 22,1901, George R. Bower wrote to the representative of Mr. Weightman, requesting an extension of the agreement, and stating the balance due January 1, 1901, in an amount which corresponded with the statement rendered by Powers & Weightman for the year 1900. When the statement for 1901 was rendered, George R. Bower, upon January 2,1902, acknowledged its receipt, saying “ I find all correct and agreeing with my figures.” During all these years in which statements were rendered, no objection was at any time made to the method of calculation by which the balance shown to be due by the Powers & Weightman statements, was ascertained.

On December 21, 1904, George R. Bower on behalf of all the parties interested with him, tendered to Anne E. Walker, surviving partner of the firm of Powers & Weightman, and executrix of William Weightman, the sum of $76,722.09, in full payment of the balance due by them, and demanded the transfer of the stocks under the terms of the agreement. The tender was not accepted, and Mrs. Walker declined to transfer the stocks, claiming that a much larger balance ($213,668.21) was due. Thereupon appellants, as children and next of kin of Henry Bower, and his administrator, filed this bill in equity to compel Mrs. Walker to transfer the stocks upon payment by them of the sum of $76,722.09. After hearing, the court below dismissed the bill on the ground that the amount due under the agreement was in excess of the sum tendered.

Upon the trial complainants offered in evidence, for the purpose of showing the method of accounting then pursued, a copy of a settlement made in 1889, between Powers & Weight-man and the Ammonia Company of Philadelphia. This was objected to as being long prior to the date of the agreement which was the basis of the suit. The objection was sustained, and the offer excluded. The exclusion of this paper is the ground of the first assignment of error. That assignment is in plain disregard of our Rule 31, in that it fails to set out either the offer, or the objection, and does not contain a copy of the paper excluded.

We think, however, the paper purporting to contain the settlement was properly rejected, not only upon the ground stated in the objection, but because the alleged reference to it in the agreement cannot properly be regarded as an adoption, for use under the present agreement, of the method of computing interest used in the former settlement. It was rather an acknowledgment of the fact that to a certain extent the arrangement contemplated had been completed.

The remaining specifications of error may all be considered under the twentieth assignment, which alleges error in the decree dismissing the bill.

According to the method of computation adopted by the defendant, as shown by the accounts rendered, when dividends upon the stocks were received, the interest which had accrued to that date upon the entire sum, was deducted, and the balance was applied in reduction of the principal. Complainants, on the other hand, claimed that, in making up the statement, interest should be calculated and charged on the indebtedness up to the time of final settlement, and that interest should be allowed upon each dividend, from the date when it was paid up to the same time, and credited to the plaintiffs; and that the difference between the respective totals thus made up would show the correct balance then due. The court below held that defendant’s method was the proper and legal one, under the terms of the agreement, and further suggested that this “seems to have been the understanding of the parties, acted upon by them for nearly nine years.”

The precise question here involved does not seem to have occurred to the parties when the agreement was drawn, for its terms throw no light upon the exact point in dispute. Admittedly, interest was to be paid at the rate of six per cent per annum upon the entire sum advanced for the benefit of Bower & Son, but as to the method by which the interest was to be computed, in view of the partial payments, the agreement is silent. A large sum of money was involved, upon which frequent partial payments were made. The interest did not of course bear interest, while the principal sum did. If the plaintiffs had the right to insist upon the entire amount of the payments being applied in reduction of the principal, ignoring altogether the accruing interest, until the date of the final payment, it would make a very great difference in the final result. This right they claimed in the court below, and insist upon here. It is, they admit, not the usual method of accounting, but they seek to justify its adoption, on the ground that it was the method pursued between the same parties upon a prior occasion, to which reference is made in the agreement, and for the further reason that as they contend, the account may be regarded as a mutual running account between the parties, and, therefore, is to be considered as an exception to the general rule. It is somewhat startling to find that between the two methods of application of the payments, such a large difference will result. It will be noted, upon an examination of the agreement, that the transaction did not constitute a loan for any fixed period. It was not a loan for five years, but an engagement by Mr. 'Weightman that, during that time, all dividends received by him upon the stocks should be appropriated to the payment of the indebtedness and the amounts advanced for Bower & Son. Payment was to be made by the application thereto of the dividends as received. If the dividends had been large enough to pay off everything due to Mr. Weight-man within two years, or three years, they would, under the agreement, have been so applied, and both debt and interest extinguished. The term of five years was inserted as a limitation only upon the time daring which this arrangement was to stand. In addition, the right of Bower & Son to make full payment of the entire amount of the advances at any time was preserved. So that, had they been so disposed, the entire sum due and owing to Mr. Weightman might have been paid off within the first year. Under any such termination of the arrangement, interest of course, would have been calculated only until the time of payment of principal, and must have been then paid. It is apparent, therefore, that the loan was to be for such time only as would permit of payment of the amount loaned, from the dividends, not exceeding five years, and that each dividend was to be regarded as an extinguishment of that much of the debt and interest. To be sure, this is not conclusive as to the right to deduct the interest due upon the whole debt from the amount of any payment, before applying the balance upon the principal sum, but it does, we think, sustain the right to deduct at least the amount due upon the proportion canceled. Admitting, however, that under the terms of the agreement, the method of application of the payments, whether entirely to reduction of principal or first to interest then due, and then the balance to principal, was left uncertain, we are strongly impressed by the construction which was manifestly placed upon the agreement in this respect by the conduct of the parties in the course of their dealings with each other. As has already been stated accounts were rendered at regular intervals by the defendant to the plaintiffs, showing the balance which it was claimed was due, and the amounts thus stated were ascertained in the calculation by the usual rule for partial payments, under which the payments are applied in the first place to the discharge of the interest then due, and the surplus goes to the reduction of the principal. ISTo objection to this method seems to have been made by the plaintiffs, although it was continued through a series of years. Indeed, the definite balance as stated to be due was, it seems, upon each occasion accepted as correct, and thus may fairly be regarded as constituting an account stated at each interval. Of course, the mere rendering of an account did not make it an account stated, but the fact that it was received without objection and that no correction or impeachment of it in any way was suggested within a reasonable time goes far to sustain it as such. If a mistake in the figures, or a clerical error, were here alleged, we do not say but that it might very properly be corrected.- But the effort now is to repudiate entirely the method of accounting and the manner of the application of the payments which was adopted and followed by the defendant for years, and which was seemingly accepted without question by the plaintiff as proper, and acquiesced in during all that time. Whatever may be said as to the uncertainty in which the plan of computing interest was originally left by the terms of the agreement, we are convinced that the method followed unquestioningly by the parties for so long a period should not now be disturbed. The law is well settled that the construction placed upon a contract by the parties will be followed by the courts. “ If a contract is ambiguous in meaning the practical construction put upon it by the parties thereto is of great weight, even though the contract is in writing, and ordinarily is controlling : ” 2 Page on Contracts, sec. 1126. And in People’s Natural Gas Co. v. Wire Co., 155 Pa. 22, this court said : “ When we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it, as evidenced by their course of dealing under it.” And in Sherman v. Consolidated Dental Mfg. Co., 202 Pa. 446, the present chief justice said: “ The parties themselves thus gave a practical demonstration of their mutual understanding of the agreement, which neither one can now be allowed successfully to dispute.” This language applies most appropriately to the transactions of the parties in the present instance.

It is suggested, however, by counsel for appellants that the acts or omissions of George R. Bower, in accepting the statements of the accounts and in approving them, would not bind the other plaintiffs. But in answer to this we think it is sufficient to say, that in the fifth and sixth paragraphs of the bill filed it is admitted that plaintiffs had notice of the accounts rendered, and that George E. Bower acted for them in receiving notice, and in making the tender for them of the amount admitted to be due to Mrs. Walker, and in making the demand upon her for the return of the stocks. Furthermore, they seem to have ratified the letter of May 22, 1901, written by George E. Bower, asking for an extension of the agreement. This letter contains an express admission of the correctness of the account, as rendered up until that time. And when in response to that letter the time was extended for their accommodation, they all signed the extension agreement. If the method of accounting adopted and set forth by the defendant during all these years, when the statements were being frequently rendered, was not acceptable to the plaintiffs or their representatives, the time to make the objection known was upon the rendition of some one or more of the accounts.

Flor do we see any sufficient ground for the contention that the account, as rendered in this case, can be properly termed a mutual running account. To make it such, there must have been mutual indebtedness, giving rise to mutual demands, with a right of action to each party against the other. Here the indebtedness was all upon one side. Powers & Weightman were creditors, and Bower & Son were debtors, and that is the only relation ever shown to have been established between the parties. The fact that credits were entered upon the account from time to time because of payments, did not render the account mutual; that only tended to reduce the amount of the indebtedness. Therefore wé can see no merit in the suggestion that this account should be considered a mutual running account, with the effect, as is contended, of making it an exception to the general rule, that where money is to be paid upon a debt it is to be applied first to the interest, if any, in arrears, and then to the extinguishment of the principal.

The assignments of error are overruled, the decree of the court below is affirmed, and this appeal is dismissed at the cost of the appellants.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Deer v. Sheraden Borough, Appellant.

      Road law — Change of grade — Damages—Action of trespass — Appointment of viewers — Borough—Ordinance.
    An action of trespass will not lie against a borough to recover damages for injuries to an abutting property owner caused by changing the grade of a public street where there is no actual taking of property. In such a ease the statutory remedy of an assessment of damages by a jury of view must be pursued.
    Under an ordinance of a borough providing.for the paving and curbing of a street, there is an implied authority to do everything necessary and usual in curbing and paving, including such changes in the grade as are necessary or essential to the paving.
    The act of the officers or agents of a borough in changing the grade of a street without an ordinance authorizing it in the first instance, may be ratified by the borough subsequently.
    Argued Jan. 16, 1908.
    Appeal, No. 131, Oct. T., 1907, by-defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. Term, 1903, No. 577, on verdict for plaintiff in case of Essie Y. Deer et al., by their mother and next friend, Bertha A. Deer, and Bertha A. Deer in her own right, heirs at law of Daniel A. Deer, deceased, v. Sheraden Borough.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for injuries to real estate caused by the change of grade in a public street.
    Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $1,600. Defendant appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      JV. R. Criss, for appellant.
    A statutory remedy is given for such an injury as is complained of in this case by the Act of' May 24, 1878, P. L. 129, as amended by the Act of June 24, 1895, P. L. 248, and also by the Act of May 16,1891, P. L. 75. The statutory remedies are exclusive : Beltzhoover Borough v. Gollings, 101 Pa. 293 ; White v. McKeesport Borough, 101 Pa. 394 ; McKee v. Pittsburg, 7 Pa. Superior Ct. 397 ; McKnight v. Pittsburg, 91 Pa. 273 ; Shiloh Street, 165 Pa. 386 ; Schenley v. Com., 36 Pa. 29.

      Joseph Rowley, with him W. A. Hudson, for appellee.
    It requires no argument to show that the borough of Sheraden could not grade the street in front of appellee’s property except by ordinance duly enacted : Gilmore v. Borough of Connellsville, 15 Weekly Notes of Cases, 342 ; Brink v. Dunmore Borough, 174 Pa. 395.
    Where a borough takes private property in an irregular manner and not precisely according to law, and does work upon it which is within the general scope of the authority of the borough, it is liable in an action of trespass for the injury committed : Reap v. City of Scranton, 7 Pa. Superior Ct. 32 ; Nyhart v. Taylor Borough, 6 Lacka. Jurist, 310 ; Brink v. Dunmore Borough, 174 Pa. 395 ; Reap v. Scranton, 7 Pa. Superior Ct. 32.
    March 2, 1908:
   Opinion by

Mr. Justice Elkin,

The question in this case is whether an action of trespass will lie to recover damages for injuries to an abutting property owner caused by changing the grade of a public street. There was no actual taking of property and the only complaint is that the cutting down of the street in front of the properties abutting thereon caused a depreciation in the value thereof, and the contention is made that an action of trespass will lie to recover damages for such an injury. On the other hand, it is contended for appellant that the sole remedy in this and other like cases is by petition for appointment of viewers under the provisions of the act of 1878, or supplementary legislation relating thereto, to ascertain and assess the damages, if any. Prior to the constitution of 1874 where no property was actually taken it was held an action of trespass could not be maintained against a municipality, whether a city or borough, for consequential damage done to property abutting on a public street by reason of a change of grade, because no statutory remedy provided compensation to the owner for such an injury, which was held to be damnum absque injuria: O’Connor v. Pittsburg, 18 Pa. 187. The framers of the new constitution having in mind no doubt the hardship and injustice of the old rule, set about to protect the rights of property holders and to make just compensation for property not only actually taken, but also for injuries done property in the making or grading of public improvements. It is ordained in article XVI, section 8, that “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.” For the purpose of carrying into effect this provision of the constitution the Act of May 24, 1878, P. L. 129, relating to boroughs, was enacted. This act provides in substance that in all cases where the proper authorities of any borough shall change the grade or lines of any street or alley, or in any way alter or enlarge the same, thereby causing damage to the owner or owners of property abutting thereon, the court of common pleas of the proper county on application by petition, either by the burgess and council of such borough or the owner of the property for which damage is claimed, or anyone on behalf of either, shall appoint five disinterested citizens of the county as viewers whose duty it shall be to view the street or alley and premises affected by the change of grade or enlargement thereof, and after due consideration, having a regard for the advantages that may result, shall estimate and determine whether any, and if any, how much damage such property owner has sustained, or seems likely to sustain by reason thereof, and make report to the next term of said court. IIow far the act of 1878 has been modified or repealed by the Act of May 16,1891, P. L. 75, has not been discussed or considered in the presentation of the case at bar, nor do we consider this question material in the determination of the issue involved here. In this connection, it may be observed, it has been decided by this court that the act of 1891 did not repeal in toto the act of 1878 which provides a remedy for the individual citizen in the single case of changing or altering grades, whereas the act of 1891 provides comprehensively for proceedings intended to be instituted by municipalities in all cases of laying out, opening, widening and extending streets, alleys and lanes, and for the building of bridges, piers, abutments, sewers and other works, and for ascertaining in one proceeding all the damages suffered by all abutting owners affected thereby. It has also been held that if the individual citizen desired to proceed on his own account and for the ascertainment of damages to his own property alone, he will proceed under the act of 1878, which is especially adapted to his case: Seaman v. Borough of Washington, 172 Pa. 467; Bowers v. Braddock Borough, 172 Pa. 596. In the present case appellees have not proceeded under either statute, but have brought an action of trespass to recover damages for the alleged injuries, which action cannot be sustained under the authority of our cases for injuries resulting from a change of grade. There was no actual taking of property, and, therefore, the decisions relied on by the learned counsel for appellees which hold that an action of trespass will lie against a municipality for the illegal taking of, or physical injury to, the property of an abutting owner, have no application. The only injury complained of in the present case is that which incidentally results to an abutting property owner by reason of the change of grade, and in such a case the statutory method which provides for compensation and the assessment of damages must be pursued. This is the rule of all the cases : Beltzhoover Borough v. Gollings, 101 Pa. 293; White v. Borough of McKeesport, 101 Pa. 394 ; Robinson v. Norwood Borough, 215 Pa. 375 ; McKee v. Pittsburg, 7 Pa. Superior Ct. 397.

It is further argued that there was no ordinance authorizing the grading of the street, and that the attempt to grade without the authority of an ordinance is in the nature of a tort, and that an action of trespass will lie to recover for any damages sustained. This position is unsound for two reasons: first, because the statutory remedy hereinbefore discussed must be followed; and, second, there was an ordinance in the present case to pave and curb the street under which there is an implied authority to do everything necessary or usual in curbing and paving, including such changes in the grade as are necessary or essential to the paving: Dillon on Municipal Corporations, sec. 797; Schenley v. Com., 36 Pa. 29 ; Lewis v. Borough of Homestead, 194 Pa. 199. Again, even if the change of grade should be held to have been made without an ordinance authorizing it in the first instance, the act of the officers or agents of the borough in so doing may be ratified by the borough subsequently: Dillon on Municipal Corporations, sec. 463; Silsby Manufacturing Co. v. Allentown, 153 Pa. 319; In re Shiloh Street, 165 Pa. 386.

We conclude, therefore, that appellees have mistaken their remedy; that an action of trespass does not lie under the facts of the present case and that the statutory remedy for the assessment of damages should have been followed.

Judgment reversed and is here entered for defendant.


author: Mr. Justice Fell,

text:
    Chandler, Appellant, v. Chandler.

      Equities — Specific performance — Defenses—Husband and wife — Articles of separation.

    Jurisdiction to enforce specific performance is always exercised subject to general equitable considerations and will not be applied to cases where the complainant does not come in with clean hands or where equities exist on the other side which would render it unjust to grant the relief.
    It is incumbent on a plaintiff who seeks performance of a contract to show that he has performed or is ready to perform, and a default in this respect is a ground on which the action may be resisted.
    A wife will not be awarded specific performance of an agreement of separation which provided that the husband should pay to the wife a certain sum per month, and should receive the rentals from a house standing in his wife's name, where it appears that the wife persistently purchased goods at stores and had the bills charged to him, and that after he had deducted such bills from his monthly payments, she notified the tenant of the house to pay the rent to her.
    Argued Jan. 16, 1908.
    Appeal, No. 251, Jan. T., 1901, by plaintiffs, from decree of C. P. Mo. 4, Phila. Co., Dec. T., 1904, Mo. 2,030, dismissing bill in equity in case of Elizabeth S. Chandler and Edmund O. Gause to use of Elizabeth S. Chandler v. Swithin Chandler.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for specific performance.
    Before Care, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Charles I- Smyth, for appellants,
    cited : King’s Estate, 215 Pa. 59 ; Heckman v. Heckman, 215 Pa. 203 ; Yard v. Patton, 13 Pa. 278 ; DuBois Borough v. DuBois City Water Works Co., 176 Pa. 430 ; Sylvester v. Born, 132 Pa. 467 ; Lynch v. Gas Co., 165 Pa. 518 ; Grunwald v. Hahn, 176 Pa. 37; Rennyson v. Rozell, 106 Pa. 407.

      E. Waring Wilson and Hampton L. Carson, with them John Kent Kcme, for appellee,
    cited : Datz v. Phillips, 137 Pa. 203 ; Friend v. Lamb, 152 Pa. 529 ; Parker’s Est., 6 Pa. Dist. Rep. 139 ; Ewing’s App., 18 W. N. C. 29 ; Everson v. Fry, 72 Pa. 326.
    March 2, 1908:
   Opinion by

Mr. Justice Fell,

The bill in this case was by a wife for the specific performance of an agreement of separation entered into with her husband. It was provided by the agreement that the parties should live apart, that the defendant should pay to a trustee named for the use of his wife $75.00 on the first day of each month during her life, and that he should be entitled to receive the income from a dwelling house the title to which was in her name. The agreement went into effect March 26, 1904, and the first payment under it was made on April 1, following. It appears from the findings of the court that during the month of April the .plaintiff purchased goods at a number of stores, to an amount pearly equal to the allowance, and had them charged to the defendant. She pursued the same course, .notwithstanding his objection and protest, in May. A part of these bills he paid without making any deduction from the monthly allowance, which was paid in full on the first days of the four months following. By agreement with the trustee he deducted from the October payment the amount of the outstanding bills. Thereupon the plaintiff notified the tenant of the dwelling house to pay the rent to her. The defendant then stopped payments under the agreement of separation, filed a bill to restrain bis wife from selling the house or collecting the rent thereof, and instituted proceedings for a divorce. The plaintiff brought an action for divorce and obtained an allowance of alimony pendente lite ; brought an action at law to collect arrearages due by the terms of the agreement of separation and filed the bill in this case.

Fortunately we are required to consider only one phase of the controversy that has arisen. The only question presented by this appeal is whether the plaintiff under the circumstances is entitled to a decree for the specific performance of the agreement. “ Jurisdiction to enforce specific performance is always exercised subject to general equitable considerations and will not be applied to cases where the complainant does not come in with clean hands or where equities exist on the other side which would render it unjust to grant the relief: ” Bispham’s Equity, section 376. It is incumbent on a plaintiff who seeks performance of a contract to show that he has performed or is ready to perform, and a default in this respect is a ground on which the action may be resisted: Fry on Specific Performance, 453; Datz v. Phillips, 137 Pa. 203. The plaintiff in this case willfully and persistently violated the contract she asks to have enforced, and by taking the rents of the dwelling house deprived the defendant in part of the means with which to pay.

The decree is affirmed at the cost of the appellant, without prejudice to her right to proceed at law.


author: Mr. Justice Stewart,

text:
    Ayres v. Wanamaker, Appellant.

      Negligence — Hatchway in sidewalk — Evidence—Contributory negligence.

    In an action against the proprietors of a department store to recover damages for personal injuries, it appeared that in the public pavement alongside of the store there was a hatchway. The hatchway was surrounded by a booth with doors which gave access to and from the street into the booth. There was evidence that the door of the booth through which plaintiff entered, supposing that it was an entrance to the store, was so constructed that it swung in, and not out, and that on the outside of it there was a catch.or hook that was fastened when plaintiff approached the door. There was nothing to show that plaintiff either observed it, or that it was so placed and of such a character, that an ordinarily prudent person would have observed it; nor was there any evidence showing that plaintiff met with any resistance in opening the door. The witness who testified as to the existence of the catch stated that the plaintiff simply pushed open the door and entered. After passing the door the plaintiff fell down the hatchway and was injured. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 17, 1908.
    Appeal, No. 239, Jan. T., 1907, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1903, No. 520, on verdict for plaintiff in case of Harry II. Ayres v. John Wanamaker et ah, trading as John Wanamaker.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potteb, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Magi ll, J.
    At the trial it appeared that on February 25, 1903, plaintiff approached the defendant’s department store in the city of Philadelphia and entered a booth, supposing it to be an entrance to the store, and fell into an open hatchway and was injured.
    The plaintiff described the accident as follows:
    “ A. I went down Market street around the south side of City Hall, and went in what I supposed was the storm entrance, being the month of February and rather a cold day. With opening the door I fell down this opening, this hole. Q. Just tell us what were the doors; what shape were they, if you recall ? A. They were swinging doors, and, as I said before, they looked to all appearances to me as an entrance to the store, and, in fact, there were several along there. I took it for granted that they were all an entrance, because I never had been in Juniper side before. . . . Q. What size was the opening ? A. I presume about four feet square, maybe four or five feet. Q. How deep was it ? A. As near as I have learned since, it was eight or ten feet; of course, I have no way of measuring. Q. Where were the outside doors as respects the edge of this opening? A. Directly on the edge, possibly an inch and a half or two inches different; that is all. That was simply for a sill there, I suppose, directly on the edge. You put your foot in the door and down you go. Q. You used the words ‘swinging;’ what do you mean by that? A. I presume they swung both ways. I didn’t try both ways. I only tried one way. Q. When you said ‘swinging,’ you meant both ways? A. I presume they swung both ways. I don’t know positively. I never examined the doors. Q. Which way did they swing when you went in ? Did you open it in or open it out ? A. To my knowledge, I think I pushed it in, as near as I remember. Q. Was there anybody there to warn anybody about these doors or to call attention to what the place was ? A. No, sir, there was not. Q. Any sign there or anything of the kind ? A. No, sir.”
    Other facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $8,750. Defendant appealed.

      Error assigned was in not giving binding instructions for defendant.

      Maurice W. Sloan, for appellant,
    cited: Clopp v. Mear, 134 Pa. 203 ; Elliott v. Pray, 92 Mass. 378.

      Francis Shunk Brown, of Simpson da Brown, with him Arthur S. Minster, for appellee,
    cited : Bush v. Johnston, 23 Pa. 209 ; Clopp v. Mear, 134 Pa. 203.
    March 2, 1908:
   Opinion by

Mr. Justice Stewart,

The only assignment we have here to consider relates to the action of the court in refusing judgment non obstante. Whether it ivas negligence in the defendant to maintain a hatchway in the public pavement alongside his building, such as that into which the plaintiff fell, with no other protection than a booth, resembling in a general way the ordinary storm door inclosing it, and with nothing more to warn the public against the use of the door of the booth for entrance into the building than was shown in the case, was certainly a question for the jury. The right to maintain such hatchway beyond the building line isnot questioned; but an opening of this character in such a place, is so manifestly a source of danger to the public using the pavement, and especially to those seeking entrance to the building, that a duty devolves upon the party maintaining it, to put about it such guards as will afford reasonable protection, and such warnings as will be notice of any concealed danger. Whether the defendant did what was required of him in this regard, was not for the court to determine as matter of law, since the law has no fixed standard by which the plaintiff’s duty could be measured. However partial and imperfect the plaintiff’s testimony was, in regard to the character of the door at the entrance to the booth and the general situation, still, accepting the description given by him as correct as far as it went, we cannot say that the facts did not warrant an inference of negligence. The same may be said with respect to the question of contributory negligence on part of the plaintiff. What the law required of him was reasonable care under the circumstances. One could hardly be charged with want of ordinary care, if in entering one of the many doors of a large department store, he failed to look down to see whether his next step would lead him into the store or into an open hatchway. If the door he entered had the appearance of a door through which the public was invited to enter, he would have the right to presume, in the absence of any notice to the contrary, that he could pursue his course in safety. He would be lacking in the care required of him, if he attempted an entrance through a door in disregard of indications which would be sufficient notice to persons of ordinary prudence and circumspection, that it was intended for other uses. The fact relied upon chiefly by the defendant to charge plaintiff with contributory negligence, was that the door of this particular booth, according to the testimony of a witness called by defendant, was so constructed that it swung in and not out, and that on the outside of it there was a catch or hook that was fastened when plaintiff approached the door. The sufficiency of this catch or hook as a means of protection to the public, whether as a guard or notice, might well be questioned. -There is nothing in the evidence showing that plaintiff either observed it or that it was so placed and of such a character, that the ordinary prudent person' would have observed it; nor is there any evidence showing that plaintiff met with any resistance in opening the door. The witness who testified that the catch was there, saw the plaintiff enter the booth, and according to his testimony, the plaintiff simply pushed open the door and entered. He indicated nothing unusual in the degree of force applied.

The case was clearly for the jury on both questions; and it was committed to them with very full and clear instructions as to the law.

Judgment affirmed.


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

      Negligence — Railroads—Pullman car conductor — Passenger—Fellow servants — '-Acts of April 4, 1868, P. L. 58, and June 10, 1907, P. L. 522 —Statutes—Repealing statutes — Retroactive act.

    A person not in the employment of a railroad company, but using its facilities under a contract between the railroad company and his employer which simply permits his carriage for and in connection with a business of his employer conducted upon the railroad, is not a passenger, but under the Act of April 4, 1868, P. L. 58, is a fellow servant of the trainmen, and if such a person is killed by the negligence of a trainman prior to the passage of the Act of June 10, 1907, P. L. 522, which repealed the Act of April 4, 1868, P. L. 58, the widow of such person cannot recover damages for his death from the railroad company.
    The act of April 4, 1868, exempting railroad companies from liability for personal injuries and death in a particular class of cases vested in railroad companies a legal right to exemption in such cases, which the legislature may not interfere with by a repeal of the act.
    The Act of June 10, 1907, P. L. 522, which repeals the Act of April 4, 1868, P. L. 58, does not affect the legal exemption of railroad companies from liability in cases in which the cause of action had accrued prior to the passage of the repealing act, and which were within the terms of the act of April 4,1868.
    In an action by the wife of a Pullman car conductor against a railroad company to recover damages for the death of her husband, killed in an accident in which the train on which the deceased was riding ran into freight cars which had buckled on the next track, the happening of the accident raises no presumption of negligence against the defendant, and the plaintiff is bound affirmatively to prove negligence; and if according to plaintiff’s own facts it appears that the accident was caused by the negligence of a trainman on the freight train no recovery can be had against the defendant, because the accident was caused by the.negligence of a fellow servant of the deceased.

      Practice, G. P. — Judgment non obstante veredicto — New matter — Exceptions■ — Appeals.
    Where the court enters judgment for defendant non obstante veredicto, and twenty days thereafter counsel for plaintiff ask leave to file an additional exception containing new matter, and this is disallowed without any exception being taken to the order of disallowance, the appellate court has nothing on the record before it which calls for consideration of the new matter contained in the exception which was disallowed.
    Argued Jan. 17, 1908.
    Appeal, No. 245, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1905, No. 3,349, on judgment for defendant non obstante veredicto in case of Frances Hess Lewis v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    Before Bregy, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict for plaintiff for $18,000 on which judgment was entered for $10,000, all above that amount having been remitted. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      Francis Fisher Fame, with him Warren O. Graham and John Cadwalader, Jr., for appellant.
    The act of June 10, 1907, is a remedial statute, and should be liberally construed : Penna. R. R. Co. v. Price, 96 Pa. 256 ; Gibbs v. Great Western Ry. Co., L. R. 12 Q. B. Div. 208 ; Walsh v. Whiteley, L. R. 21 Q. B. Div. 371 ; Hornsby v. Eddy, 5 C. C. A. 560 ; Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373 (14 N. E. Repr. 586).
    The effect of the repealing act of J une 10,1907, was to wipe the act of April 4, 1868, from the statute book, and make it as though it never had existed, except as to transactions passed and closed : Surtees v. Ellison, 9 B. & C. 750 ; Key v. Goodwin, 4 M. & P. 341 ; Butler v. Palmer, 1 Hill, 324 ; Com. v. Alliance Coal Mining Co., 13 W. N. C. 324 ; Taylor v. Strayer, 78 N. E. Repr. 236.

      The act of April 4, 1868, was within that class of remedial statutes which take away a subject of jurisdiction, and its repeal by the act of June 10,1907, restored a right of action and recovery : Catawissa R R. Co. v. Armstrong, 49 Pa. 186 ; Mulherrin v. R. R. Co., 81 Pa. 366 ; Hickory Tree Road, 43 Pa. 139 ; Hatfield Twp. Road, 4 Yeates, 392 ; Uwchlan Twp. Road, 30 Pa. 156 ; Washington Borough, 26 Pa. Superior Ct. 296 ; Bennet v. Hargus, 1 Neb. 419.
    A case is “ pending ” until disposed of on appeal: Key v. Goodwin, 4 M. & P. 341 ; Washington Borough, 26 Pa. Superior Ct. 296 ; United States v. Schooner Peggy, 5 U. S. 103.
    Assuming that the act of April 4, 1868, does control the case, there was evidence that the “ safe place and system rule ” was violated.
    The accident was due to the car containing the explosives not being under air brake control.
    Custom of other railroads was to use air braked cars in the carriage of “ high explosives.”
    The “ safe place ” rule required the defendant to furnish the plaintiff’s husband with a reasonably safe place in which to work, his work being that of a Pullman conductor on a sleeping car attached to one of the defendant’s trains : California Powder Works v. Railroad Co., 113 Cal. 329 (45 Pac. Repr. 691) ; The Nitroglycerine Case, 15 Wall. 524 ; Ft. Worth, etc., Ry. Co. v. Beauchamp, 68 S. W. Repr. 502 ; Catawissa R. R. Co. v. Armstrong, 49 Pa. 186 ; Baird v. Pettit, 70 Pa. 477 ; Pioneer Fireproof Construction Co. v. Howell, 189 Ill. 123 (59 N. E. Repr. 535); Brommer v. R. R. Co., 205 Pa. 432 ; Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 374 (14 N. E. Repr. 407); Ford v. L. S. & M. S. Ry. Co., 124 N. Y. 493 (26 N. E. Repr. 1101).
    The safety appliance acts of congress of March 2, 1893, and March 2, 1903, were violated.

      C. Andrade, Jr., and John Hampton Bcvrnes, with them John E. Faunae, for appellee.
    The status of the parties was fixed at the time of the accident on May 11, 1905 : Kay v. Penna. R. R. Co., 65 Pa. 269.
    The act of 1868 affects substantive rights, and not a mere-remedy or a mere form of procedure, and its repeal, therefore, has no retroactive operation.: Lewis v. Hyams, 63 Pac. Repr. 126.
    The true rule on the question of retroactive laws is that they operate on forms of procedure only, and do not operate on rights which have accrued: Kay v. Penna. R. R. Co., 65 Pa. 269 ; Melizet’s Appeal, 17 Pa. 449 ; Com. v. Shopp, 1 Woodward, 123 ; Com. v. Sobb, 14 Pa. Superior Ct. 597 ; Bedford v. Shilling, 4 S. & R. 401 ; Ogle v. Somerset & Mount Pleasant Turnpike Road Co., 13 S. & R. 256 ; Lefever v. Witmer, 10 Pa. 505.
    The “ safe place ” doctrine has no application to the case at bar : Hughes v. Fayette Mfg. Co., 214 Pa. 282.
    The record presents no federal question.
    This court will disregard any assignment of error which is not based on some exception in the record : Powell v. Sedgwick, 5 Whart. 336 ; McAdams v. Stilwell, 13 Pa. 90 ; Ruch v. Morris, 28 Pa. 245 ; Merkel v. Berks County, 81* Pa. 505 ; Grantz v. Price, 130 Pa. 415.
    Lewis was not a passenger of the Pennsylvania Eailroad. And this is true as matter of common law, quite independently of the act of 1868 : Russell v. Ry. Co., 157 Ind. 305 (61 N. E. Repr. 678); Baltimore & Ohio, etc., Ry. Co. v. Voigt, 176 U. S. 498 ; Griswold v. R. R. Co., 53 Conn. 371 (4 Atl. Repr. 261.)
    The Act of April 4,1868, P. L. 58, makes Lewis an employee of the Pennsylvania Eailroad Company : Kirby v. Penna. R. R. Co., 76 Pa. 506 ; Mulherrin v. R. R. Co., 81 Pa. 366.
    Lewis was a fellow servant of defendant’s car inspectors, and of the engineers, conductors and trainmen on both trains, and of the men who made up the freight train, and of the switch-men and signalmen at and about the scene of the accident: Frazier v. Penna. R. R. Co., 38 Pa. 104 ; Penna. R. R. Co. v. Price, 96 Pa. 256 ; Phila. & Reading R. R. Co. v. Hughes, 119 Pa. 301 ; Burrell v. Gowen, 134 Pa. 527 ; Bemisch v. Roberts, 143 Pa. 1.
    Neither the mere fact that there was a collision, nor the mere fact that there was an explosion, nor both of these facts together, raises any presumption of negligence against the defendant in this case. In order to recover the plaintiff must show some specific negligent act or omission on the part of the defendant which caused, or efficiently contributed to cause, the explosion. And this negligence must be something more than the negligence of Lewis’s fellow servants : Erie & W. Y. R. R. Co. v. Smith, 125 Pa. 259 ; Burrell v. Gowen, 134 Pa. 527 ; Mixter v. Imperial Coal Co., 152 Pa. 395 ; Martin v. Ry. Co., 200 Pa. 603 ; Cole v. R. R. Co., 12 Pa. C. C. Rep. 573 ; Tuck v. R. R. Co., 98 Ala. 150 (12 So. Repr. 168); Minty v. R. R. Co., 2 Idaho, 471 (21 Pac. Repr. 660).
    March 2, 1908:
   Opinion by

Mr. Justice Stewart,

The plaintiff’s husband, while in the course of his regular employment as a Pullman car conductor, lost his life in an accident that happened on the line of the Pennsylvania Railroad Company. While it is not admitted that he was in the class distinguished from passengers by the Act of April 4, 1868, P. L. 58, we do not understand it to be seriously contended that he was not. Our repeated and explicit decisions to the effect that one not in the employment of a railroad company, but using its facilities under a contract between the railroad company and his employer which simply permits his carriage for and in connection with a business of his employer conducted upon the railroad, is not a passenger, leaves no room for controversy on this branch of the case. It is only necessary to refer to Miller v. Cornwall Railroad Co., 154 Pa. 473, and the very recent case of Smallwood v. Baltimore & O. R. R. Co., 215 Pa. 540. The real effort here is to give the repealing Act of June 10, 1907, P. L. 522, the effect of obliterating wholly the act of April 4,1868, and investing the plaintiff with the right of action and recovery she would have had, had the latter act never been passed. The argument in support of this contention is based on the propositions : (1) that the present action was still pending and incomplete when the repealing act was passed; (2) that the repealing act is remedial in character, and (3) that the act of 1868 was within that class of statutes which affect the subject of jurisdiction. If the first be established, it is argued that according to accepted rules of construction, the act of April 4, 1868, having been repealed, it is to be considered as though it had never existed as law, except for purpose of actions which were commenced and concluded before its repeal, and that it can impose no limitations upon the plaintiff’s rights; if the second be made good, it is argued that since by its terms the repealing statute is not confined to cases thereafter to arise, it is to be given a liberal construction, and to effect the legislative intent it must be held to apply to past as well as future cases; if the third be conceded, the repeal of the act of 1868 restored the right of actions as it was before the act of 1868 was passed. Neither of these propositions is conceded by the other side, and it is enough for us to say that all, so far as it is sought to apply them to this case, are disputable. They call for no more decided expression of view from us, since if their correctness be conceded, they would make nothing for the plaintiff’s ultimate contention. That a repealing statute, so far as it provides for a change in procedure, may and does apply to actions pending, is a proposition which admits of no dispute. No one can claim to have a vested right in any particular mode of procedure for an enforcement or defense of his rights. When a new statute deals with procedure only, prima facie, it applies to all actions — those which have accrued or are pending, and future actions. If before final decision a new law as to procedure is enacted and goes into effect, it must from that time govern and regulate the proceeding: Sutherland on Statutory Construction, section 482, and the authorities there cited. Again, if the act of June 10, 1907, be remedial, while it may be proper in that case to give it liberal construction to carry out the legislative intent, such construction must stop short of imputing to the legislature a purpose to do something that is beyond its power. Conceding that the act of April 4,1868, affected the jurisdiction of the court, and its repeal restored the right of action and recovery as it was before the law was passed, it by no means follows that the plaintiff can claim any advantage from such restoration in her present action. The argument on behalf of appellant, overlooks wholly the effect the construction contended for would have on the correlative rights of the defendant. The act which is here complained of as having caused the death of plaintiff’s husband, occurred while the statute of 1868 was in force. As the law then was, plaintiff’s right of action was only such as she would have had, had her husband been an employee of the defendant company. This indicated the full extent of defendant’s liability at that time. It is because of counsel’s full appreciation of the added liability by reason of the repeal of that act, that the vigorous effort is here made to escape from its limitations. The repeal of the act of 1868 makes railroad companies liable under circumstances which before exempted them. It is entirely competent for the legislature to make such changes, and impose liability where none was before, but legislation of this kind cannot operate retrospectively, but must be confined to future occurrences. A legal exemption from a demand made by another, is a vested right which the legislature may not interfere with. Even an expressed purpose that an act shall have such retroactive effect, is without avail. A statute which assumes to give character to facts which they do not possess at the time they took place, and attaches to them legal consequences from which they were exempt antecedent to the time of its passage, is in its essential nature ex post facto, and all such laws are considered as founded on unconstitutional principles, and, therefore, inoperative and void. In a general, literal sense, an ex post facto law is one passed in regard to an act after the act is done ; but in its most comprehensive definition it includes all retrospective laws or laws governing or controlling past transactions, whether they are of a civil or criminal nature: Potter’s Dwarris on Statutes, page 167. While because of the distinction which now obtains between ex post facto and retroactive laws, limiting the former to laws governing penal offenses, such a statute as that referred to may not be held to offend directly against the constitutional provisioninvalidating ex post facto laws; none the less is- it invalid as an interference with vested rights, which by statutory limitations upon the exercise of sovereign power, are secured against invasion or impairment. It requires no lengthy citation of authorities to show that a right of action is a vested right within the constitutional protection. It was clearly and explicitly so decided in Kay v. Pennsylvania Railroad Company, 65 Pa. 269, where the effect of this very act of 1868 on causes of action which arose before its passage was considered. All authorities agree that the repeal of a statute does not take away the plaintiff’s cause of action under it for damages for an injury to person or property. They rest on the sound doctrine expressed in Menges v. Dentler, 33 Pa. 495, and repeated in Kay v. Pennsylvania Railroad Company, 65 Pa. 269, that the law of the case at that time when it became complete, is an inherent element in it, and if changed or annulled, the law is annulled, justice denied, and the due course of law is violated. A legal exemption from liability on a particular demand, constituting a complete defense to an action brought, stands on quite as high ground as a right of action. If the law of the case at the time when it became complete is such an inherent element in it, that a plaintiff may claim it as a vested right, on what possible ground can it be held that a defendant has no vested right with respect to an exemption or defense ? The authorities make no distinction between them. “ So he who was never bound either legally or equitably cannot have a demand created against him by mere legislative action : ” Cooley’s Constitutional Limitations, page 528. “ A vested right is property as tangible things are when they spring from contract ’ or the principles of the common law. There is a vested right in an accrued cause of action ; in a defense to a cause of action ; even in the statute of limitations when the bar has attached, by which an action for a debt is barred: ” Sutherland on Statutory Construction, section 480. “ A law can be repealed by the law-giver; but the rights which have been acquired under it while it was in force, do not thereby cease. It would be an act of absolute injustice to abolish with the law all the effects which it had produced. This is a principle of general jurisprudence; but a right to be within its protection must be a vested right. It must be something more than a mere expectation based upon an anticipated continuance of existing law. It must have become a title legal or equitable to the present or future enforcement of a demand, or a legal exemption from a demand made by another: ” Sutherland on Statutory Construction, section 164. Since the effect of the construction contended for would be to impose a liability for a past occurrence where none existed at the time, or, what is the same thing, take away a legal defense available at the time, it is to be avoided. It follows that the plaintiff’s case is to be adjudged under the act of 1868, the law of the case when the present cause of action became complete. Her rights are just what they would have been had her husband been an employee of the defendant company.

The explanation of the accident advanced by the plaintiff was, that in bringing to a stop the freight train, which at the time occupied an adjoining track, by applying the air brakes with which the first thirty-four of the cars on the train were equipped, while no use was made of the hand brakes of the remaining cars, the rear cars were stopped only by the resistance of those in front, and that the violence of this impact was such as to cause the train at this point to “ buckle ” and fall over to some extent on the other track, thus occasioning the obstruction that caused the accident. The thirty-sixth car from the engine in this freight train, and the second in the series not supplied with air brakes, was freighted with high explosives. Under the theory of the plaintiff this car was just where it would receive the greatest force of the impact; the obstruction resulted from the buckling, presumably of the first car of the after series, collision followed, producing explosion of material in the second car, then the fire. Assuming these to be established facts in the case, it is sought to derive an inference of negligence on the part of defendant from the manner in which the car containing the explosives was transported. That the explanation thus advanced is not an improbable or unreasonable one is the most that can be said of it. Quite as much could be said for several others not advanced, but which might be suggested. That the sudden impact of a draught of thirty-four cars, moving with great momentum, against another draught of like number standing still, may result in a buckling of certain of the cars will not be disputed; that such buckling may result by throwing something in the way of an obstruction over upon an adjoining track, is equally clear; but before a possible cause can be accepted by a jury as an operating cause, unless the evidence excludes all others, something in the way of direct connection with the occurrence must be shown. The destruction following the fire was so complete that every trace of the obstruction that caused the accident was effaced 5 nothing on the ground after the accident gave any support to the plaintiff’s theory of the cause except the fact that the trucks of car thirty-five, the first in the series not controlled by the air brakes, were found “ jammed up against the air,” that is, against the last of the air controlled series, which was a steel car. Considering the enormous energy of the explosion they might have been jammed anywhere; the fact that they were found against the heavy steel oar heavily freighted, and which had not been displaced by the concussion, is a circumstance without special significance in this connection. The whole theory advanced rests on what is assumed to be a consequence reasonably to be expected in arresting a train of sixty-eight cars by applying the air brake to the first half of the train, and depending upon that half by its inertia to arrest the other. And even here the case fails, for upon the plaintiff’s own showing, while the train was thus brought to a stop, it had been moving at a speed of only seven or eight miles an hour, and that on a slightly ascending grade, when the brakes were applied. So slow was the movement that one of the witnesses said he could get on or off with safety. Not only so, but whatever shock there was, was so slight that it was scarcely felt by the engineer at the head of the train or the conductor at the rear. The train traveled some five or six car lengths before it was stopped under five or six pounds of reduction, whereas fifty-five could have been applied. If, under such conditions as these, experience shows that a buckling of the cars is to be expected, the plaintiff should have offered evidence to establish such fact. To the unexperienced the momentum under such conditions would be wholly inadequate to produce any such result. Then, too, the case supposes that from the buckling came the obstruction, with nothing in the evidence to support such view. Regarded as an explanation of the catastrophe, it was too conjectural to justify any finding by the jury as to what the cause actually was. Except as the cause of an accident is ascertained, the liability of the party charged cannot be determined. But even were we to assume that the accident occurred in the way asserted, the law of the case would be fatal to plaintiff’s recovery. The negligence complained of was in the manner in which the car carrying the explosives was being transported, its position in the train, and the. fact that it was not under airbrake control. The sufficiency of the car itself for the purpose for which it was used cannot be questioned, and the evidence shows that it was supplied with necessary air-braking equipment. Its position in the train, where its air equipment could not be used, because another car not similar^ equipped was placed before it, was determined, not by the company, but by the conductor, whose power of direction and supervision extended this far. If it was negligence to so place it, the negligence was that of a fellow servant. To make the defendant company liable in such case, supposing the accident to have happened from this cause, some regulation or system adopted by the company requiring such arrangements of cars would have to ' be shown. We do not see that the doctrine of safe place or system has any application to the case. The accident did not result from defective machinery or appliance, nor was it shown that any defect existed. The plaintiff’s theory is, as we have stated it, that it resulted from a negligent placing of the car containing explosives with respect to the other cars on the train, where its air-brake appliance could not be operated, and from a negligent use of the air brake, causing a buckling. Neither of these suggests a cause for which the company would be liable. In either case it would be the negligence of a fellow servant, for which no action would lie except against the party directly in fault. There was nothing in the cause that called for a submission to the jury. From the mere fact that an accident occurred, no presumption of defective appliance or defective system arises, and the evidence does not disclose either.

We have nothing in this record which calls for consideration here of the act of congress of May 2,1893, 27 Statutes at Large, 531, as amended by March 2, 1903, 32 Statutes at Large, 943, and known as the safety appliance act. So far as the record shows, its existence was not suggested in the court below upon the trial. The case was submitted to the jury without any reference to it, and no exception was taken. Nor was it considered by the court in entering judgment non obstante. Whatever the plaintiff’s points may have been, they were withdrawn at the conclusion of the trial and did not appear in the record. The first suggestion of the act in connection with the case, so far as the record shows, was in the additional exception which counsel for plaintiff asked leave to file twenty days after judgment non obstante was entered, and which was disallowed by the court. If there was error in refusing to allow the filing of this exception — we think there was none for the obvious reason that in entering judgment non obstante, the court was confined to a consideration of those things appearing in the record — such error cannot be corrected in the absence of any exception to the court’s action. Without an exception to the refusal, we have nothing here to review: Patterson v. Roberts, 109 Pa. 42. With the entry of judgment non obstante, the record in the court below was complete, and by that record the case is to be judged.

The assignments of error are overruled and the judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Mercantile Library Company, Appellant, v. University of Pennsylvania.

      Party walls — Erection of wall upon owner’s own premises — Intention as to purpose of wall — Openings in wall — Equity—Remedy at law.

    The owner of a lot of ground in Philadelphia cannot be deprived of the right to make a party wall between himself and his neighbor, by his neighbor building exclusively upon his own land, either to the line, or a short distance therefrom. The first builder is he who first elects to make a party wall, and his right cannot be defeated by the act of another. There is nothing, however, to prevent the owner of a lot from erecting a wall upon his own premises, and it, therefore, becomes a question of fact whether a wall is a party wall, conferring upon the owner of the adjacent premises the right to use it as such.
    On a bill in equity to restrain the defendants in the bill from maintaining openings in a wall alleged to be a party wall, it appeared that the wall had been built entirely upon the defendants’ lot, and that between pilasters it receded four inches from the line of the plaintiff’s premises, and that there were open spaces for doors and windows made in the wall. On the plaintiff’s premises abutting on the defendants’ line, was a sixteen feet wide alley curbed, paved and cobble-stoned. For several years before the construction of the wall, this alley'had been opened, and the plaintiff was required to keep it opened by agreement with the owners of other properties adjacent to it, and this was well known to the' defendants. There was nothing to show that when defendants built the wall, they did anything with reference to complying with the statutory provisions regulating party walls. Held, (1) that the wall in question was not a party wall; (2) that under the prayers of the bill as filed the court could not award a mandatory injunction requiring defendants to remove a part of the foundation wall encroaching upon plaintiff’s premises; (3) that as far as the encroachment of the foundation wall was concerned, plaintiff had an adequate remedy at law; and (4) that the bill was properly dismissed.

      Argued Jan. 20, 1908.
    Appeal, No. 265, Jan. T., 1901, by plaintiff, from decree of O. P. No. 5, Phila. Oo., J une T., 1902, No. 3,458, dismissing bill in equity in case of Mercantile Library Company of Philadelphia v. Trustees of the University of Pennsylvania.
    Before Mitchell, O. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Martin, P. J.
    The facts appear by the opinion of the Supreme Court.
    The court entered a decree dismissing the bill.

      Error assigned was decree dismissing the bill.

      Alex. Simpson, Jr., of Simpson de Brown, for appellant.
    A wall is a party wall throughout, if the stone foundation wall projects into the adjoining property, though the superimposed brick wall does not: Milne’s Appeal, 81 Pa. 54 ; Western National Bank’s Appeal, 102 Pa. 111 ; Lukens v. Lasher, 10 Pa. Dist. Reps. 385 ; Van Syckel v. Tryon, 6 Phila. 401 ; Vollmer’s Appeal, 61 Pa. 118 ; Bedell v. The Rittenhouse Co., 5 Pa. Dist. Repr. 689 ; Ahl’s App., 129 Pa. 49.
    The lapse of time since the wall was built does not help defendants. The doctrine of ancient lights and air is not in force in this state: Hoy v. Sterrett, 2 Watts, 321 ; Haverstick v. Sipe, 33 Pa. 368 ; Forepaugh v. R. R. Co., 128 Pa. 217 ; Tinicum Fishing Co. v. Carter, 61 Pa. 21 ; Rennyson’s Appeal, 8 W. N. C. 383 ; McCall v. Barrie, 15 W. N. C. 28 ; Lewey v. Fricke Coke Co., 166 Pa. 536 ; Gotshall v. Langdon & Co., 16 Pa. Superior Ct. 158.

      William A. Glasgow, Jr., with him Joseph Gilfillan, for appellees.
    The trial judge was right in deciding that the wall was not a party wall: Pile v. Pedrick, 161 Pa. 296 ; Milne’s App., 81 Pa. 54 ; Western Nat. Bank’s App., 102 Pa. 111 ; Lukens v. Lasher, 202 Pa. 321 ; McVey v. Durkin, 136 Pa. 418 ; Bright v. Allan, 203 Pa. 394 ; Brown v. Werner, 40 Md. 15 ; Graves v. Smith, 81 Ala. 450 (6 So. Repr. 308); Church of the Holy Communion v. Paterson Extension R. R. Co., 63 N. J. Law, 410 (43 Atl. Repr. 696); McCall’s App., 16 W. N. C. 95.
    Appellant contends that the court, after holding that the wall was not a party wall, should have gone further and required that the appellee remove so much of the foundation as was over the original property line.
    This suggestion was evidently an afterthought. The bill filed in this case contains no special prayer for the removal of any part of the wall or its foundation, and nothing of the sort was suggested previously to the filing of exceptions to the ruling of the trial judge. The decree was proper: Horton’s App., 13 Pa. 67 ; Passyunk Building Association’s App., 83 Pa. 411 ; Morio’s App., 4 Penny. 398 ; Lanning v. Smith, 1 Pars. 13 ; Williamson v. Smith, 4 Pa. Dist. Rep. 307.
    March 2, 1908:
   Opinion by

Mr. Justice Mestrezat,

The assignments of error raise two questions on this appeal: (1) Did the court below err in holding that the rear wall of the defendants’ building is not a party wall; and (2) if it is not a party wall, should the court have entered a decree requiring the removal of the foundation wall so far as it encroaches upon the plaintiff’s property ?

We think the learned trial judge was right in holding that the rear wall of the defendants’ building, known as the Chestnut Street Opera House, was not a party wall. The plaintiff’s predecessor in title in 1859 laid out and opened a sixteen feet wide alley on the south side of its property leading west from Tenth street to Marble street. The defendants’ property abutted on the south side of this alley. Prior to 1864, the owners of the properties on the north side of Chestnut street, between Tenth street and the defendants’ property, agreed, in consideration of the grant of the privilege to use the sixteen feet wide alley, to throw out and open the northernmost ten feet of their ground to be connected with the sixteen feet wide alley for the purpose of widening it to the width of twentj-six feet for the common use and privilege as a street or passageway for the owners of those properties and the owner of the plaintiff’s property. The alley was curbed, paved and cobble-stoned.

In 1870, a building was erected upon the defendants’ lot. A stone foundation wall was constructed on the rear of the lot which projected a few inches under the surface beyond the defendants’ line into the plaintiff’s property. The brick wall erected upon this foundation was entirely on the defendants’ lot. The building was destroyed by fire in 1877 and a new building was erected, the brick wall being constructed upon the same foundation. Between the pilasters within the northern line of the opera house property the brick wall recedes four inches south of the line and in these spaces windows are located.

It was under these conditions that the learned judge below held that “ it was not the intention of the persons who built the foundation wall or of those who constructed the brick wall to erect a party wall.” It is true, as argued, that a wall between two properties need not necessarily rest equally on both properties to constitute it a party wall. It may even be wholly on one of the two properties and still be a party wall if it was so intended by the builder, or subsequently recognized and treated by the owners of the adjacent properties as a party wall. It is also true that if a builder lay a foundation wall extending as a party wall on -his neighbor’s lot he cannot erect thereon a wall wholly within his own line and prevent the erection from being a party wall'. It is equally true that the owner of a lot of ground in Philadelphia cannot be deprived of the right to make a party wall between himself and his neighbor by his neighbor building exclusively upon his own land, either to the line, or a short distance therefrom. The first builder is he who first elects to make a party wall, and his right cannot be defeated by the act of another: Western National Bank’s Appeal, 102 Pa. 171.

There is nothing, however, to prevent the owner of a lot from erecting a wall upon his own premises, and it, therefore, becomes a question of fact whether a wall is a party wall, conferring upon the owner of the adjacent premises the right to use it as such. In Pile v. Pedrick, 167 Pa. 296, Justice Williams, speaking for the court, said (p. 299): “ The wall in controversy was nota party wall. It was not intended to be. . . . The line was not accurately located at first but was about one and one-half inches over on the plaintiffs. This leaves the ends of the stones used in the foundation wall projecting into the plaintiffs’ lands below the surface one and three-eighths inches. This unintentional intrusion into the plaintiffs’ close is the narrow foundation on which this bill in equity rests. The wall resting on the stone foundation is conceded to be within the defendants’ line.”

The location and character of the wall as well as the passageway, required to be kept open by the plaintiff, between the defendants’ premises and buildings on the plaintiff’s property clearly tend to show that the defendants did not erect the wall with the intention of making it a party wall. As we have seen, the wall is entirely upon the defendants’ lot and between the pilasters it recedes four inches from the south line of the plaintiff’s premises. There were also open spaces for the doors and windows made in the wall. It is said by Judge Page in delivering the opinion of the court in Barry v. Edlavitch, 84 Md. 95, 33 L. R. A. 294, quoting from Brown v. Werner, 40 Md. 15, that: “The term ‘party wall’ is usually applied to such walls as are built partly on the land of another, for the common benefit of both, in supporting timbers, used in the construction of contiguous buildings.” It is apparent that when the defendants erected the wall in question they could not have anticipated it being used to support the timbers of a contiguous building on the plaintiff’s land. The passageway which the plaintiff was required to keep open by agreements with the owners of other properties adjacent to it, prevented the erection of a building contiguous to the defendants’ building at that time. The defendants knew of the existence of the alley or passageway, and that it was open and in use. It is, therefore, not within probability that in constructing the northern wall of their building on their own land, the defendants thought that it would be needed as a party wall or that they intended that it should be a party wall. We think the existence and use of the alley for several years prior to the construction of the wall leads to the conclusion that the defendants did not intend it for a party wall. There was no necessity then and apparently there would be none in the future for a party wall along the northern line of the defendants’ premises, and the presumption is, therefore, strong that the defendants erected the wall with no intention that it would be used in erecting a building on the adjacent premises.

So far as we have been able to discover from the record, there is nothing to show any agreement between the parties that the wall should be constructed as a party wall. Nor does it appear that the plaintiffs exercised their statutory right to have the proper officials locate the foundation of the party wall or to prevent the defendants from erecting the wall until it had been located. Nor is there any thingdn the record disclosing that the defendants made application to the surveyors or regulators to have the foundation located as the foundation of a party wall. The wall seems to have been erected without any reference to the statutory provisions regulating party walls in the city of Philadelphia.

We do not mean to be understood as holding that should the alley way, now located on and extending along the southern part of the plaintiff’s premises, be vacated and the plaintiff desired to erect a building adjacent to the defendants’line, the plaintiff could not erect a party wall. As said above, the first builder is he who first elects to make a part}»' wall and his right cannot be defeated by the act of another. The defendants, therefore, cannot defeat the right of the plaintiff company to erect a party wall on the line between the two properties, if at any time it so desires. The question we are now considering and deciding is whether the wall erected by the defendants on their own lot was intended to be and is a party wall.

We think with the trial court that it is a fair inference, in the absence of evidence to the contrary, that under the circumstances of the case the invasion of the alleyway by the foundation wall was due to an error in location. Such a mistake could be easily made. Without a survey or without calling the regulators to locate the foundation wall, the line between the properties could not have been certainly known. It is a fair inference from the circumstances that the owners of both premises were ignorant of the exact location of the division line. It does not appear that the owner of the property now held by the plaintiff objected to the trespass. He certainly knew that a building operation was going on, but the record does not disclose that he made any objection to the construction of the foundation wall. If he knew the exact location of his line he permitted the foundation to project beyond it without resistance on his part. He could not assume that it was the foundation for a party wall because there was no necessity for such a wall at that time and such necessity in the future could not be anticipated. Assuming that he knew the law, he knew that any time he wished to build upon the premises he could build a party wall at that place without the permission of the defendants and against their objection.

We do not think the court erred in refusing to issue a mandatory injunction requiring the defendants to remove the part of the foundation wall encroaching upon the plaintiff’s premises. This is a trespass for which the plaintiff has an ample remedy at law. It is apparent that in filing its bill, the plaintiff company did not seek such relief. There is no specific prayer in the bill asking for the relief and it is not consistent with the specific prayers in the bill. They prayed that the openings in the rear wall of the building be closed; that the defendants be restrained from using the court or alleyway as a means of entrance or exit to or from their building; and that the defendants be. decreed to make good all damage suffered by the plaintiff by reason of the alleged wrongful acts in relation to the court. The allegations of the bill were that the wall erected by the defendants was a party wall and that as such the defendants had no right to make any openings in it. The action of the court under the prayer for general relief must be consistent with those allegations: Horton’s Appeal, 13 Pa. 67 ; Passyunk Building Association’s Appeal, 83 Pa. 441 ; and the court cannot enforce a demand capable of being enforced at law and not within the jurisdiction of equity: Ahl’s Appeal, 129 Pa. 49. The prayer for a mandatory injunction requiring the defendants to remove the projecting foundation wall, it is obvious, would be entirely inconsistent with the fact that the wall was a party wall and hence the builder had a right to encroach upon the plaintiff’s premises in erecting it. In the absence of a special prayer requiring the removal of that part of the foundation wall encroaching upon the plaintiff’s lot, and in view of the fact that the plaintiff has an adequate remedy at law for his. alleged injury, we cannot convict the trial court of error in refusing such relief.

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