author: Mr. Justice Potter,

text:
    Beck v. Germantown Cricket Club, Appellant.

      Negligence — Defective sidewalk — Notice—Evidence.
    In an action against an owner of property fronting on a public highway, to recover damages for personal injuries, sustained by the plaintiff’s foot sinking into a hole in the board sidewalk, it is error to submit the case to the jury where there is no evidence whatever to show that the hole was in existence at any time prior to the accident, or that the board by reason of weakness or decay, gave way at the time under the weight of the plaintiff. The principle of res ipsa loquitur does not apply to such a case.
    Argued March 22, 1910.
    Appeal, No. 3, Jan. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1906, No. 4,910, on verdict for plaintiffs in case of Alexander Beck and Mary Beck, his wife, v. German-town Cricket Club.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Sulzberger, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for wife for $2,250, and for the husband for $100. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Henry P. Brown, with him George Wharton Pepper and Bayard Henry, for appellant.
    There was no evidence that the hole in the boardwalk had been there at any moment of time prior to the accident, and the defendant had no notice of the defect: Lindstrom v. Pennsylvania Co., 212 Pa. 391.
    The depression testified to by the defendant’s witnesses was not such a dangerous defect as to convict the defendant of negligence: Morris v. Philadelphia, 195 Pa. 372; Lohr v. Philipsburg Boro., 165 Pa. 109; Beck v. Germantown Cricket Club, 37 Pa. Superior Ct. 521.
    May 2, 1910:

      Edmund Randall, with him M. J. McEnery and J ames A. Flaherty, for appellees.
    The case was for the jury: Lindstrom v. Penna. Co., 212 Pa. 391; Fisher v. Ruch, 12 Pa. Superior Ct. 240; Mintzer v. Hogg, 192 Pa. 137; Lohr v. Philipsburg Boro., 165 Pa. 109; Duncan v. Philadelphia, 173 Pa. 550.
   Opinion by

Mr. Justice Potter,

The defendant here, was charged with negligence in failing to keep a board sidewalk in front of its premises in a reasonably safe' condition for public use. Mary Beck, the plaintiff, testified that at half past eight o’clock on the evening of May 10, 1906, while walking on Manheim street, in front of defendant’s property, her foot went into a hole in the sidewalk, and she was thrown down. There was no evidence that the hole was in existence at any time prior to the accident. Nor did the testimony show that the board by reason of weakness or decay, gave way at the time under the weight of the plaintiff. Whether the board had been broken ten minutes or an hour prior to the accident did not appear. Mrs. Beck testified that the hole into which she stepped was located near the grand stand gate, or Wissahickon avenue entrance. Officer Bailey testified that upon the day after the accident, he saw an employee of the defendant nailing down a board in the sidewalk at a point near Morris street, some 500 feet away from the Wissahickon avenue entrance. But this was obviously not at the place where Mrs. Beck fell. None of the witnesses testified to seeing a hole in the sidewalk at the place where plaintiff fell, before the accident occurred. If the sidewalk was in an unsafe condition, and this condition was known, or was such as under the circumstances ought to have been known, to the owner or occupant of the premises, the latter would be answerable in damages for any injury resulting from lack of proper inspection and repair. But it could not be expected that the repair would be made instantly. Some reasonable time to discover the break and make it whole, must be allowed. In so far as the evidence in this case goes, the break might have been caused by some animal, a horse or a cow, stepping upon the board, or by the dropping of some heavy weight upon it shortly before the plaintiff reached the spot. The cause and manner of the break, and the length of time it had existed before the accident, were purely matters of conjecture.

Counsel for plaintiff seemed to be of the impression, and have argued, that the circumstances of the accident made out a prima facie case, without direct proof of actionable negligence. They would apply the principle of res ipsa loquitur. But this is not a case for the proper application of that doctrine. The sidewalk in which the board broke was not something in the exclusive use and control of the defendant, so that it might fairly be presumed to have knowledge of the cause of the break which would not be open to others. The sidewalk was part of the highway, for the use of the public, and subject to all the contingencies of that use. It was liable to be broken in any one of many ways, without the knowledge of defendant. The duty imposed upon the defendant was only that of proper inspection and reasonable repair. What evidence is there in this case, of any failure to properly discharge that duty? None that we can discover; and upon the contrary, the undisputed evidence upon the part of the defendant shows that the carpenter employed by it for that purpose, examined the whole sidewalk two days before the accident, and put it all in repair. We are of the opinion that the circumstances attending the accident in this case were not in themselves sufficient evidence to show that the accident arose from want of care upon the part of the defendant.

In the absence of proof of the existence of the break in the sidewalk prior to the happening of the accident, or of the breaking of the board by reason of its being decayed, we find nothing in the case to justify an inference that the defendant was guilty of negligence.

The judgment is reversed, and is here entered for the defendant.


source: Caselaw Access Project

license: Public Domain

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

      Negligence — Trial—Charge—Inadequacy of charge — Preponderance of testimony — Number of witnesses.

    In an accident case against a street railway company where the plaintiff alone testifies that the car had stopped before she attempted to alight, and eight credible and disinterested witnesses directly contradict her, it is reversible error for the trial judge in his charge to minimize the advantage which the defendant had by reason of the marked numerical preponderance of the witnesses in its favor, and to fail to instruct the jury as to the difference between interested and disinterested testimony, and caution them to have regard thereto in weighing the conflicting testimony, although no particular request was made for such instructions.
    Argued March 24, 1910.
    Appeal, No. 71, Jan. T., 1910, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1906, No. 2,324, on verdict for plaintiff in case of Eleanor Davies v. Philadelphia Rapid Transit Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $2,500, upon which judgment was entered for $2,000, all above that amount having been remitted.

      Error assigned was that the charge was inadequate.

      Thomas Learning, with him Wm. M. Stewart, Jr., for appellant.
    The charge was inadequate: Hodder v. Rapid Transit Co., 217 Pa. 110; Lingle v. Ry. Co., 214 Pa. 500; Clark v. Traction Co., 210 Pa. 636.
    May 2, 1910:

      Francis M. McAdams, with him Willard E. Barms and Joseph P. Rogers, for appellee.
    The charge was sufficient: Fitzpatrick v. Traction Co., 206 Pa. 335; Stroud v. Smith, 194 Pa. 502; Bailey v. Presbyterian Board, 200 Pa. 406; Schmidt v. McGill, 120 Pa. 405; Braunschweiger v. Waits, 179 Pa. 47.
   Opinion by

Mr. Justice Potter,

Counsel for appellant in this case complain of the inadequacy of the charge of the court. They allege that the case for the plaintiff rested upon her own uncorroborated testimony, and that she was contradicted by her own affidavit made shortly after the occurrence of the accident, and was also contradicted as to the essential facts of the case by the testimony of eight eyewitnesses. Under these circumstances counsel contend that it was the duty of the trial judge to explain clearly to the jury the difference between interested and disinterested testimony, as it was offered in connection with this case, and that the jury should have been cautioned as to their duty in weighing the evid'ence.

The issue was a very narrow one. It was, whether the car was started as the plaintiff was alighting, or whether she stepped off before the car came to a stop. Only one witness, and that the plaintiff herself, testified that the car was at rest before she attempted to alight. Eight eyewitnesses of the accident testified directly to the contrary, stating that the plaintiff attempted to get off while the car was yet in motion. The credibility of the witnesses for the defendant was unimpeached, and with eight of them testifying in positive contradiction of the plaintiff’s unsupported statement, the evidence gave the defendant a marked advantage to which it was properly entitled under the rules, and which should not have been minimized to its disadvantage in the charge of the court. Where the testimony of so many credible witnesses is in direct contradiction of that of a single witness, the probabilities are strongly in favor of the evidence of the larger number. Where witnesses are' equally intelligent and equally truthful and free from bias, and have equal opportunities for knowledge of the facts to which they testify, the many are less likely to be mistaken than the few. In a conflict of evidence, mere number is not in itself controlling, but it certainly is entitled to great consideration, and should control unless there be special reason to credit the evidence of the smaller number. We think the result of the instructions of the learned trial judge to the jury was to unduly minimize the effect of the marked numerical preponderance of the witnesses who testified for the defendant. He said: “True it is that in this case the defendant called many more witnesses than the plaintiff. The weight of the evidence in a case is not to be determined by the number of witnesses called on either side. The weight of the evidence is to be determined by the character of the evidence.” The statement was true, in so far as it went; but, in the same connection, the court should have called the attention of the jury to the probability that the plaintiff, by reason of the fact and character of the accident, was not in so favorable a position to note and remember just what occurred as onlookers would be; and also the fact of plaintiff’s pecuniary interest in the result. It is most obvious that the weight of the evidence inclined very strongly against the plaintiff. The knowledge, recollection and veracity of eight credible witnesses, seven of them without the least pecuniary interest in the result of the suit, stood opposed to her. The probabilities were so overwhelmingly in favor of the truth of the statements of the eight witnesses, as to the one simple fact in controversy, that the court should have cautioned the jury strongly against an arbitrary or capricious disregard of the weight of the evidence. It is true that as a general rule, mere neglect or omission to charge in a particular way, is not error, in the absence of a particular request for such instructions. But an exception to this rule is thus stated in 2 Pepper & Lewis’s Digest, 2714: “When pase turns on certain testimony, which is conflicting, s error for the court not to call the jury’s attention to conflict, and the nature of the testimony, and to explain and set forth the weight to be given to that kind of testimony, or to fail to explain adequately the relative value of the testimony of the different parties.” This statement as applied to cases where plaintiff’s testimony is contradicted by disinterested witnesses is sustained by our decisions in Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244, and Holden v. Penna. R. R. Co., 169 Pa. 1. In this case it was said (p. 16): “The testimony of the plaintiff was most profoundly affected by his personal interest in the result. The very fate of his cause depended upon his individual testimony, and as his claim for damages was very large, and the costs and expenses of the trial were necessarily considerable, it is not possible to conceive of a case in which the effect of a heavy pecuniary interest in the result > could exercise a more powerful influence upon the mind of the witness than this. As the review of the evidence shows, he stood entirely alone, not a solitary witness corroborated him in the least degree in this vital feature of his case, and of this fact he, being the plaintiff, was necessarily aware. We think the learned court below, in these circumstances, should have carefully explained to the jury the difference between interested and disinterested testimony, and .should have specially cautioned them as to their duty in weighing and deciding upon a conflict of testimony in such a case. Nothing of this kind was done and we think the charge was not adequate in that regard.” So in Fineburg v. Railway Co., 182 Pa. 97, it was held, as set forth in the syllabus, that, “in an accident case, where the testimony of the only witness who testifies to acts of defendant’s negligence is contradicted by his own statements, by every other witness in the case, and by all the circumstances surrounding the accident, it is reversible error for the court to neglect to call the attention of the jury to the pertinent facts affecting the credibility of the witness and the contradictions of his testimony.”

In Hodder v. Rapid Transit Co., 217 Pa. 110, where the facts closely resembled the present case, and where the testimony of the plaintiff was directly contradicted by the conductor, motorman and four passengers, all of whom had equal opportunity with the plaintiff to know the actual facts, it was held that it was reversible error to minimize the effect of the numerical preponderance of the witnesses for the defendant. In the present case, we feel that the instructions of the trial judge tended unduly to minimize the legitimate advantage to which the defendant was entitled by reason of the marked numerical preponderance of credible witnesses in its favor. Because of this, and for the further reason that the charge was inadequate under the circumstances, in failing to instruct the jury as to the difference between interested and disinterested testimony, and in cautioning them to have regard thereto in weighing the conflicting testimony, the judgment is reversed with a venire facias de novo.


author: Mr. Justice Moschzisker,

text:
    Dulaney & Wharton v. Philadelphia & Reading Railway Company, Appellant.

      Carriers — Common carriers — Railroad—Agency for soliciting freight— Negligence of agent — Bill of lading.

    1. Where a number of connecting railroads enter into an arrangement by which they employ agents at different points to solicit freight, and one of such agents issues a bill of lading without the initial carrier ever having received the goods, and knowing that it was to accompany a draft on the consignees, and the latter pay the draft, but never receive the goods, the consignees may recover the amount which they paid on the draft from the terminal carrier, inasmuch as apart from the question of partnership, there was a joint liability on the part of all the railroad companies on whose behalf the bill of lading was issued.

      2. In such a case it is immaterial whether the bill of lading was negotiable or not.
    Argued March 24, 1910.
    Appeal, No. 62, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1904, No. 3,655, on verdict for plaintiff in case of Dulaney & Wharton v. Philadelphia & Reading-Railway Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit for a loss resulting from the payment of a draft accompanying a bill of lading issued without delivery of goods to the initial carrier. Before Magill, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judment for plaintiff for $2,860. Defendant appealed.

      Errors assigned were various instructions.

      Albert B. Weimer, with him Theodore W. Reath, for appellant.
    The contract evidenced by the bill of lading was an Illinois contract and under the law of Illinois the defense that the goods were not received by the carrier is a good defense: Lake Shore & Michigan Southern Ry. Co. v. National Live Stock Bank of Chicago, 178 Ill. 506 (53 N. E. Repr. 326).
    The plaintiffs caused their own loss by voluntarily and improperly paying a draft upon a straight bill of lading, which was not negotiable or quasi negotiable.
    A connecting carrier cannot be charged by proof that the goods never reached destination nor can connecting carriers be sued jointly upon a several bill of lading.
    No partnership was shown and the jury should have been so instructed: St. Louis Ins. Co. v. R. R. Co., 104 U. S. 146.

      William A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellees.
    Whether viewed as a partnership between the defendants, or as the employment of a joint agent in the carrying on and conducting of a business under the name of the Hoosac Tunnel Fast Freight Line, the defendants, and each and every of them are jointly liable to the plaintiffs for the loss which they sustained by reason of the acts of the defendant: Block v. Fitchburg Railroad Co., 139 Mass. 308 (1 N. E. Repr. 348); White Livestock Com. Co. v. R. R. Co., 87 Mo. App. 330; Cinn., Hamilton & Dayton R. R. Co. et al. v. Spratt, 2 Duvall, 4; Kansas City S. Ry. Co. v. Embrey, 90 S. W. Repr. 15; Bostwick v. Champion et al., 11 Wend. 571; Hutchinson on Carriers, p. 283, secs. 263-264.
    May 2, 1910:
    The receipt in a bill of lading is an assertion on the part of the defendant that it has the goods, and is therefore the equivalent of a direct representation to the plaintiff that the goods had been delivered to the carrier on his account: Brooke v. New York, Lake Erie & Western R. R. Co., 108 Pa. 529.
    An examination of the Illinois cases, shows that the law of Illinois is in favor of the contention of the plaintiffs in this case: Northern Transportation Co. v. McClary, 66 Ill. 233; St. Louis & Iron Mountain R. R. Co. v. Larned, 103 Ill. 293; Tibbits & Son v. Rock Island & Peoria Ry. Co., 49 Ill. App. 567.
   Opinion by

Mr. Justice Moschzisker,

The defendant company was a member of the Hoosac Tunnel Fast Freight Line, which was an association of a number of railroads for the purpose of securing and expeditiously handling freight within a certain territory. The line did not own or operate cars of its own, the freight being handled by and in the' equipment of the roads over which it passed. The so-called association was little more than a name used to designate a mutual agreement or arrangement by which a number of connecting railroads formed a continuous freight line and employed common agents or managers at different points. All of the companies in the association contributed to the payment of the salaries of these common representatives according to an equitable system of apportionment estimated on the monthly receipts from the freight carried over the respective roads under bills of lading issued by such agents. The plaintiffs in the course of their business had been for some years in the habit of purchasing produce from one Frank E. Roberts, a commission broker in Chicago, Illinois; the goods purchased being shipped by him to them, and payments made through drafts issued by the former upon the latter, attached to bills of lading, and paid through banks in Philadelphia. On October 3, 1904, the plaintiffs received notice that a draft of this character had been presented at their bank. They accepted and paid the draft for $2,200, and received a bill of lading issued by the Hoosac Tunnel Fast Freight Line acknowledging the receipt from Roberts of 400 cases of eggs, to be carried from Chicago to Philadelphia and delivered to the plaintiffs as consignees. The goods were not delivered, and the plaintiffs brought action against the freight line, assuming it to be a corporation. It being duly shown that the defendant named was not a corporation, the record was amended and all of the railroads composing the association were brought in as defendants; but service was only obtained upon the Philadelphia & Reading Railway Company, and the suit proceeded to trial against that defendant alone.

At the trial of the cause there was practically no contest as to the facts; those which we have enumerated were proved; and it was further shown that the bill of lading was in the usual form issued by the Hoosac Tunnel Fast Freight Line, and there was nothing on its face to indicate that the freight line was not a subsisting legal entity, or to show the railroads associated under that name. When the bill went out, the agent of the freight line had knowledge that it was to be used to accompany a draft upon the plaintiffs, and it issued before he secured possession of the eggs. Roberts gave the agent a written order for the car containing the eggs, which had not then arrived in Chicago, and relying upon that order the agent delivered the bill to Roberts. Later on he called upon the agent and told him that he had received information from the plaintiffs that had changed his mind about the shipping of the car to them; that he had already put the bill of lading with a draft attached in bank, but that he would secure its return. He thereupon gave the agent an order consigning to another party the car which was to have gone to the plaintiffs. In order to protect the interests he represented, the agent secured from Roberts what he calls a bond of indemnity, and then attempted to divert the car from the plaintiffs to someone else; but the eggs were stopped in transit before this was accomplished, and they never came into the possession of the agent, the freight line, or any of its railroads. The agent took no precaution to notify the plaintiffs of the circumstances or that the draft should not be honored.

The plaintiffs claimed as damages the amount of the draft with interest from the date of its payment, and the jury rendered a verdict accordingly. The defendant has appealed, and contends: That the Philadelphia & Reading Railway Company was not bound by the acts of the agent who issued the bill of lading; that it was not liable under the bill because the plaintiffs failed to prove that it had received the goods; that it was not hable because the physical goods were never delivered to or came into the possession of any initial carrier of the freight line; that connecting carriers cannot be charged by proof that the goods did not reach their destination; that the plaintiffs caused their own loss by voluntarily and improperly paying a draft upon a straight bill of lading; and that the jury should have been instructed that no partnership had been 'made out between the members of the association.

After outlining the evidence showing the facts substantially as we have stated them, the trial judge said to the jury: “The facts as presented, not being denied, entitle the plaintiffs to a verdict for $2,200 with interest from the date of the payment of the draft. That is to say, if you shall find the facts to be as they have been stated to you by the plaintiffs’ testimony, that the .... agent placed this bill of lading in the hands of Roberts, allowing him to use it as evidence of the fact that he had shipped over the railroad lines, through this agency, a car load of eggs; and Roberts then used the bill of lading for the purpose of collecting the amount represented by the draft, $2,200 — in that case, the agency of the various companies having been established, if their agents through carelessness or otherwise permitted Roberts to have the bill of lading without getting the eggs, it was no fault of the plaintiffs, and they should not be required to suffer or made to suffer by reason of that fact.” Under the evidence, these were correct instructions on the law governing the case. The loss of the goods in transit was not averred or sought to be proved; and the amount claimed and the verdict rendered were for the sum which the plaintiffs paid on the draft, not the market value of the eggs. The negligence was in issuing the bill of lading and giving it to Roberts before the eggs were in the possession of the initial carrier of the freight line, when the agent knew that the bill was to accompany a draft on the plaintiffs which presumably would be paid by them in due course, and in the subsequent conduct of the agent whereby the defendant was so placed as to be unable to carry out its obligations under the bill.- Whether the association of the various railroads named as defendants be viewed in the nature of a partnership so far as third parties are concerned, as expressed in Block v. Fitchburg R. R. Co., 139 Mass. 308, or merely as an arrangement for the employment of common agents to conduct the business of each road carried on in the name of the freight line, at least all of the defendants that would have handled the freight under the bill of lading in question would be liable for the defaults of the agent who issued the bill: Kansas City Southern Railway Co. v. Embrey, 90 S. W. Repr. 15, citing Hutchinson on Carriers; and it was shown that the Philadelphia & Reading Railway Co. was in this class. The agent had authority from all of the roads to issue such , bills, and there is evidence to show that he was within the scope of his apparent authority in letting the bill go out as he did; the very nature of the business described in the testimony, the expeditious handling of freight, must at times involve the giving of bills of lading upon the receipt of orders for merchandise en route, without any physical possession of the goods at the time the bill is issued; there was testimony to the effect that such was the custom,- and there was no evidence that the agent acted contrary to instructions in so doing. In Brooke v. New York, Lake Erie & Western Railroad Company, 108 Pa. 529, a shipping clerk at one of the stations of the defendant railroad issued a bill of lading in its name for goods that the company had never received, and the bill came into the hands of an innocent third person for value; on the suit of such person, it was held that the defendant was estopped by the act of its agent from denying the receipt of the goods, although the clerk had no authority to give bills without receiving the goods and the company had never done anything to lead anyone to suppose that he had such authority. The governing principles of that case are applicable in the present one, and we are not convinced that the law of the state of Illinois differs from the rules therein enunciated and applied. The case relied upon by the defendant, Lake Shore & Michigan Southern Railway Co. v. National Live Stock Bank, 178 Ill. 506, was on a set of facts quite different from those of the present case. There, when the parties who were endeavoring to recover obtained the receipt from the defendant company, they knew as a matter of fact that the company had not received the articles mentioned therein; and the court properly held that the receipt could be contradicted and the true state of facts shown, and that thereunder no recovery could be had. The interests of innocent third parties were not involved, which is the distinction between that case and this one. A careful reading of the case will show no ruling that a recovery is barred where the goods covered by a bill of lading are not received by the carrier; it goes no further than to rule that a recovery “may be defeated” under such circumstances.

The conflict of decisions regarding the liability of a carrier for the fraudulent act of an agent in issuing a bill of lading for goods which he had not received and had no intention of receiving, need not be discussed, as these decisions have no application to the facts in this case. Not only did the present agent expect to get or control the possession of the eggs when he issued the bill, but, as previously noted, there was some evidence to show that it was customary for him to issue bills before actually securing possession of the goods, and it is perfectly apparent from the testimony that he acted in good faith toward his principals; in fact, it appears that he took some sort of indemnity for their protection.

The contention that the plaintiffs caused their own loss by voluntarily and improperly paying a draft accompanying a straight bill of lading cannot be sustained. The negotiability or non-negotiability of the bill is not in question. Even though one would have been protected by the delivery of the goods without getting possession of the bill, the carrier had the right to demand it before making the delivery, and the plaintiffs were justified in presuming that such a demand would be made; they only did the natural and proper thing in accordance with the usual course when they paid the draft and took up the bill.

On the last contention of the defense it is sufficient to say that the plaintiffs did not rest their case upon the theory of partnership. The defendant company was in an association of some sort or character, and it was not necessary to inquire into the exact legal relation of the different members inter se. Without regard to the question of partnership, so far as the plaintiffs were concerned, there was a joint liability on the part of all of the roads on whose behalf the bill of lading was issued; the acts of the agent bound all of the principals thus involved, and a recovery could be had against the one upon which service was secured.

We see no merit in any of the assignments of error; they are all overruled, and the judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Henderson v. Jennings, Appellant.

      Contract — Sale—Passing of title — Damages—Measure of damages.

    1. Where there is a sale of goods generally, no property in them passes until delivery, because until then the very goods are not ascertained. ' But where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of the general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee. If there is a breach the measure of damages is the stipulated contract price, and not the excess of the contract price over the market value at the time the actual delivery was to be made. If the chattel has a potential existence at the time the contract is made, it is immaterial that it does not come into actual existence until thereafter.
    2. A material man agreed in writing with a person interested in a building operation to sell and deliver material to the actual builder in consideration of one-half cash and one-half on a mortgage on one of the properties. The agreement particularly described the mortgage and the amount of it, and the other contracting party agreed to purchase it at its face value within sixty days after its delivery to the material man “without regard to title, completion, street improvements; liability for mechanics or municipal claims, as I purchase simply what you get.” The mortgage was not in actual existence at the date of the agreement, but was created thereafter. The material man furnished material, received the mortgage and tendered at the expiration of the sixty days, but the other party refused to accept it or pay for it.
      Held, that the property in the mortgage passed as of the date of the contract, and that the measure of damages for the breach was the stipulated contract price, and not the difference between the contract price and the market price, as of the date when the mortgage was to be delivered.
    Argued March 29, 1910.
    Appeal, No. 383, Jan. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1908, No. 4,349, on verdict for plaintiff in case of Norris E. Henderson, trading as the N. E. Henderson Hardware & Paint Company, v. John W. Jennings.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for breach of contract to purchase a mortgage. Before Sulzberger, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the defendant submitted, inter alia, the following points:
    5. The measure of damages in this case is the difference in the selling price of the mortgage and its market value at the time of breach, and as there is no evidence of such market value, you cannot find for the plaintiff for that part of his claim which relates to the purchase price of the mortgage. Answer: Declined. [5]
    6. Under all the evidence you cannot find for the plaintiff for that part of his claim which relates to the purchase price of his mortgage. Answer: Declined. [6]
    Verdict and judgment for plaintiff for $1,692.98. Defendant appealed.

      Errors assigned were (5, 6) above instructions, quoting them.

      Francis J. Maneely, with him Morris Dos Passos, for appellant.
    The last pronouncement of the Supreme Court of this state on the question of the measure of damages for the breach of a contract of this kind by a vendee is in Sharpsville Furnace Co. v. Snyder, 223 Pa. 372. See also Glass Co. v. Ladwig, 33 Pa. Superior Ct. 506; Ballentine v. Robinson, 46 Pa. 177; Keeler v. Schott, 1 Pa. Superior Ct. 458; Reynolds v. Callender, 19 Pa. Superior Ct. 610; Gordon v. Norris, 49 N. H. 376; White v. Solomon, 164 Mass. 516 (42 S. E. Repr. 104); Allen v. Jarvis, 20 Conn. 38.
    May 2, 1910:

      William H. Peace, with him Alfred D. Wiler, for appellee.
    This case is ruled by Reynolds v. Callender, 19 Pa. Superior Ct. 610.
    To the same effect are the cases of Field v. Schuster, 26 Pa. Superior Ct. 82; Heilbrunn v. Weislow, 129 App. Div. (N. Y.) 532; Pearson v. Mason, 120 Mass. 53.
   Opinion by

Mr. Justice Stewart,

The defendant was interested — to what extent we do not know, nor is it material — with one Sharp in a building-operation in Philadelphia. The plaintiff proposed to supply them with the hardware required in the construction of certain buildings for the sum of $3,072. The terms of payment offered him were fifty per cent cash and fifty per cent in a second mortgage or mortgages upon the buildings. He at first declined these terms. Thereupon it was proposed that if he would accept the terms offered, Jennings would purchase from him the mortgage or mortgages within sixty days after they were delivered to him at the face value, less ten per cent. This was satisfactory to the plaintiff and the contract was accordingly entered into, Jennings on a separate paper obligating himself to purchase from the plaintiff the particular mortgage for $1,550 which plaintiff had finally agreed to accept. Plaintiff having received the mortgage, at the expiration of, not within, the sixty days, requested Jennings to redeem his promise by purchasing the mortgage. Jennings refused, and plaintiff then brought this action to recover the price Jennings had agreed to pay. The trial resulted in a verdict for plaintiff for the amount claimed. There is but one assignment of error that calls for consideration. The recovery was permitted for the full contract price for the mortgage. It is insisted that the true and only measure of damage in such case is the difference between the contract price and the market value at the time and place of delivery, and that inasmuch as plaintiff had not shown any loss he was not entitled to recover anything. The question turns on the construction of the contract. Jennings’ written offer was in these words, addressed to the plaintiff: “In consideration of your entering into an agreement with Richard H. Sharp and your paying me a commission of 10% on the face amount thereof, I hereby agree to purchase from you within sixty days after its delivery to you a certain mortgage of $1,550, described in schedule C of your contract with Mr. Sharp, and in connection with the ninety-six buildings about to be erected in the Forty-second ward of Philadelphia, without regard to title, completion, street improvements, liability for mechanics’ or municipal claims, as I purchase simply what you get.” The jury found as a fact that plaintiff accepted this offer, and relying upon it, contracted with Sharp to supply the required hardware for the buildings, and accept in part consideration the mortgage described in the offer. This states the whole contract. As between the plaintiff and Jennings, touching the mortgage, was it an actual sale or merely a contract to purchase? In other words, was it an executed or executory contract? If the former, then title to the mortgage at once passed to Jennings, subject to the plaintiff’s right of lien until the conditions were complied with, or until full delivery: Winslow, Lanier & Co. v. Leonard, 24 Pa. 14; and in such case the measure of damage would be the contract price: Ballentine v. Robinson, 46 Pa. 177. In the case last cited we have this very satisfactory exposition of the law. “Where a sale of goods has been made and they have been delivered, it is plain the measure of damages for nonpayment is the stipulated price. About that there is no difficulty. Doubts, however, have been entertained, where goods have been sold and not delivered in consequence of the refusal of the buyer to complete the contract. It has sometimes been said that the standard for measurement is the excess of the contract price over the market value. Yet where the subject of the same is a specific article, where the contract has been so far completed as to pass the property in the article to the vendee, the possession being retained only because the price is not paid, there seems to be no good reason why the vendor should not be permitted to recover the agreed value. He has fully complied with all that he was under obligations to do. He has parted with his property and given the full equivalent for the stipulated price. His right to the property having passed to the vendee, his right to the price would appear to be consummate.” This marks the distinction as to the measure of damages in case where the default is in connection with an executed contract, and where it is in connection with a simple contract to sell. In the latter, the measure of damage is determined by the general rule of difference between contract price and market value; in the former, the contract price is the measure. Did the right of property in the mortgage, as between vendor and vendee, pass to the latter upon the plaintiff’s acceptance of the defendant’s offer? This depends upon the intention of the parties, as it is to be derived from the contract and its circumstances. We are of opinion that it did pass. The subject of the sale was a specific thing, distinctly designated in the contract, and unassociated with anything else. The language of the offer following a description of the mortgage, is, “I purchase simply what you get.” “Where there is a sale of goods generally, no property in them passes until delivery, because until then the very goods are not ascertained. But where by the contract itself the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of the general contract. The very appropriation of the chattels is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee:” 1 Benjamin on Sales, sec. 315. The above quotation from the text of the authority cited, is adopted from the opinion of Baron Parke in Dixon v. Yates, 5 B. & Ad. 313. The rule as there expressed has been very generally accepted and enforced, confining it of course to the controversies between vendor and vendee, with no intervening rights to be disturbed. Our own state authorities give most unqualified recognition to the rule. The case of Winslow v. Leonard, supra, is directly in point. Equally so is Ballentine v. Robinson, 46 Pa. 177. No less explicit are Gonser v. Smith, 115 Pa. 452, and Com. v. Hess, 14.8 Pa. 98. The opinion of Paxson, C. J., in the case last cited contains a very full and careful review of all the authorities on the subject. We see nothing in the facts of the case to take it out of the operation of this general rule. That the mortgage was not in actual existence at the time the contract was entered into is unimportant. “In relation to things not yet in existence, or not yet belonging to the vendor, the law considers them as divided into two classes, one of which may be sold, while the other, can only be the subject of an agreement to sell, of an executory contract. Things not yet existing which may be sold, are those which may be said to have a potential existence, that is, things which are the natural product or expected increase of something already belonging to the vendor:” 1 Benjamin on Sales, sec. 78. The rule is thus stated by 2 Story on Contracts, sec. 75. “So, also, although the thing to be sold have no actual and present existence, yet if it be the anticipated product or increase of something to which the seller has a vested right, the sale will be good.” Under this general rule it has been decided that the earnings of an engagement of service already entered into may be the subject of a present sale. “One may assign earnings arising out of a contract of service already entered into, but not those of a prospective service. In the one case the earnings have a potential existence, though there is a possibility that they may never materialize; in the other there is nothing more than a mere possibility of existence.” Hartley v. Tapley, 68 Mass. 565; Augur v. N. Y. Belting & Packing Co., 39 Conn. 536, and Farnsworth v. Jackson, 32 Maine, 419, further illustrate the rule. In the present case the obligation on part of the defendant became binding at once upon the plaintiff’s entering into the contract with Sharp, and plaintiff at once acquired a present right to the mortgage under his contract which would ripen into a perfect title by lapse of time. It was not the case of a mere possibility coupled with no interest; nor was it a case of one selling something which he did not have but which he expected to buy in the general market. This one particular mortgage was the thing sold, and at the time of the sale nobody had any right to it except the plaintiff. The assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Walsh, Appellant, v. Kirby.

      Partnership — Service of process — Sheriff’s return.

    1. Where an action is brought against two persons named trading as a partnership, the return of the sheriff is good where he states that he served the writ upon one of the defendants, naming him by name, as “general manager, and one of the defendants.” In such a case the words “general manager” may be considered as surplusage.
    2. In an action against a partnership the service of the writ is good for the purpose of binding the partnership property and assets if made upon one or more of the partners. If, however, it is sought to hold not only the partnership property, but the separate and personal estate of each individual partner, then the service must be made upon each partner.

      Argued April 11, 1910.
    May 2, 1910:
    Appeal, No. 144, Jan. T., 1909, by plaintiffs, from order of C. P. Luzerne Co., Feb. T., 1908, No. 435, making absolute rule to strike off judgment in case of William P. Walsh and Loretta S. Walsh, his wife, v. F. M. Kirby and F. J. Weckesser, trading as F. M. Kirby & Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Rule to strike off judgment. Before Halsey, J.
    The opinion of the Supreme Court states the facts.

      Error assigned was order making absolute rule to strike off judgment.

      R. B. Sheridan, with him E. A. Lynch, James H. Shea. James C. Murray and Rush Trescott, for appellants.
    The service was sufficient to bind the partnership property: Boyd v. Thompson, 153 Pa. 78; Meily v. Wood, 71 Pa. 488; Ross v. Howell, 84 Pa. 129; Paxon v. Beans, 3 Phila. 433; Lipewitz v. Siglin, 17 Pa. Dist. Rep. 655; Smoder v. Siglin, 17 Pa. Dist. Rep. 653; Hafer v. Guynan, 7 Pa. Dist. Rep. 21; Little v. Fairchild, 10 Pa. Superior Ct. 211; Taylor v. Coryell, 12 S. & R. 243; Grier & Co. v. Hood, 25 Pa. 430; Boyd v. Thompson, 153 Pa. 78; Harper v. Fox, 7 W. & S. 142; Grier & Co. v. Hood, 25 Pa. 430.

      F. W. Wheaton, with him W. J. Trembath, for appellees.
    There never was warrant of law for serving a partnership by serving an alleged “general manager” of the firm: Thomas v. Woolen Mills Co., 11 Kulp, 80.
   Opinion by

Mr. Justice Elkin,

This is an action in trespass against a partnership consisting of two members. Judgment for want of an appearance was entered under the rules of court. On a rule to show cause why the judgment should not be stricken off the learned court below held that the summons had not been properly served and the rule was made absolute. The action is against the partners named trading as a partnership. The sheriff made the following return: “I hereby certify that on the 6th day of January, 1908, I served the within writ upon the within named defendants, F. M. Kirby & Company, by handing to F. M. Kirby, General Manager (and one of the defendants) for F. M. Kirby and Company a true and attested copy of the within writ and making known to him the contents thereof.” The learned court below held that there is no authority for making service upon the general manager of a partnership and that the words “and one of the defendants” do not mean a service upon the defendant so named but were used as descriptive of his position as general manager of the firm. We cannot agree with this conclusion. At most the word “ manager ” may be considered surplusage because the important fact remains that the service was upon a partner, one of the defendants, and the return was so made. The suit was brought in the usual way against a partnership — the purpose being to make the partnership hable in damages for the injuries alleged to have been suffered. The weight of authority seems to be that the service of the writ is good for the purpose of binding the partnership property and assets if made upon one or more of the partners. This is especially true if the partner served is in the control and management of the business. It has been frequently held in our state that a judgment confessed by one partner in the firm name is good against the firm property: Grier & Co. v. Hood, 25 Pa. 430; Ross v. Howell, 84 Pa. 129. One partner may bind his copartners, by an agreement not under seal, to refer any partnership matter: Taylor v. Coryell, 12 S. & R. 243. If the partnership property may be taken in execution to satisfy a judgment confessed by a partner acting within the scope of his authority we can see no good reason why . the partnership should not be bound by a judgment obtained in an adverse proceeding when service is made upon one of the partners. If a partner can bind the partnership by confessing a judgment against the firm why may not the firm be equally bound if the judgment is obtained by adverse process and not by confession? As was said by Chief Justice Gibson in Harper v. Fox, 7 W. & S. 142, “What matter it then whether the judgment has been obtained adversely or by confession if it be against the firm.” We think it is clear on both reason and authority that service upon one or more members of a partnership in a suit instituted against the firm is a good service for the purpose of affecting the partnership with notice and in the event of recovery of binding the partnership property. Of course the personal and separate estate of a partner not served will not be bound by the judgment recovered against the partnership. If it is sought to hold not only the partnership property but the separate and personal estate of each individual partner then the service must be made upon each partner. In other words, the individual and separate estate of a partner is not bound by a judgment against the partnership unless personal service of the writ is made upon the partner whose property is sought to be bound. In the case at bar the sheriff returned that he had served the writ upon the defendants, F. M. Kirby & Company, by handing to F. M. Kirby, general manager (and one of the defendants), a true and attested copy of the writ and making known to him the contents thereof. It would be sticking in the bark to hold that this did not mean what it says. F. M. Kirby was a member of the firm and as such was a defendant and the return so states.

Judgment for want of an appearance in the present case is only conclusive of the right to recover. The actual damages, if any, must be ascertained and assessed in a proper proceeding when the record is remitted to the court below.

Order making the rule absolute is reversed, judgment reinstated and record remitted for the purpose of having the damages ascertained and assessed.


text:
    Morris, Appellant, v. Lackawanna & Wyoming Valley Railroad Company.

      Negligence — Street railways — Damages—Nenous shock — Fright.
    1. The rule that there can be no recovery of damages for bodily or mental suffering resulting from fright unconnected with physical injury, applies where the relation of carrier and passenger exists. .
    2. The rule is applicable to a miscarriage resulting from a nervous shock to a woman occasioned by an electric car in which she was riding bumping over the track at an open switch.
    Argued April 11, 1910.
    Appeal, No. 18, Jan. T., 1910, by plaintiffs, from judgment of C. P. Luzerne Co., Feb. T., 1907, No. 232, on verdict for defendant in case of James L. Morris and Mary M. Morris, his wife, v. The Lackawanna & Wyoming Valley Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ferris, J.
    At the trial it appeared that plaintiff claimed damages for a miscarriage caused by a nervous shock to which she was subjected while riding in one of defendant’s electric cars.
    The court charged in part as follows:
    We are obliged to conclude that the case falls within the rule of law adopted in this state, that where fright alone, unaccompanied by physical violence or physical injury which also operated as a cause, results in pain and suffering, miscarriage let us say, because that is the case here, that the derailment of the car as shown in this case is not to be taken as the proximate or producing cause of the injury, of the suffering and pain which subsequently Mrs. Morris, was compelled to undergo. And therefore we are of opinion, and so instruct you, that although the company may have been, and under the evidence in this ease, must have been charged with negligence, nevertheless that negligence in leaving the switch open, or in the motorman’s not observing that it . was open and stopping the car, that negligence cannot under the law as it is applied in this case, be said to be the proximate or producing cause of the miscarriage which this lady afterwards suffered, and that, therefore, your verdict must be for the defendant, and we so instruct you.
    May 2, 1910:
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.
    J. B. Woodward, of Wheaton, Darling & Woodward, for appellants.
    The relation of common carrier and passenger existing, and the negligence of the carrier being established, it becomes a question for the jury to decide whether or not this negligence is the proximate cause of the injury suffered: 1 Thompson on Negligence, sec. 150, citing Fitzpatrick v. Great Western R. Co., 12 Up. Can. Q. B. 645; 1 Thompson on Negligence, sec. 156, citing Purcell v. St. Paul City Ry. Co., 48 Minn. 134; Dixey v. Traction Co., 180 Pa. 401; McCafferty, Admr., v. Penna. R. R. Co., 193 Pa. 339; McKee v. Traction Co., 211 Pa. 47.
    It is a natural consequence, to be expected and foreseen, that a pregnant woman thrown about, jolted and jarred in a negligently derailed car will be hurt and injured.

      John T. Lenahan, with him Frank A. M’Guigan and Richard B. Sheridan, for appellee,
    cited: Ewing v. Ry. Co., 147 Pa. 40; Houston v. Traphagen, 47 N. J. L. 23; Linn v. Duquesne Boro., 204 Pa. 551.
   Opinion by

Mr. Justice Elkin,

We have read with care the able and exhaustive argument-of- the learned counsel for appellants but have not been convinced that the trial Judge committed error in directing a verdict for defendant. The learned court below followed the rule of our Pennsylvania cases in holding that there can be no recovery' of damages for bodily or mental suffering resulting from fright unconnected with physical injury. While, it is true, this rule has been relaxed more or less in some jurisdictions, it has been uniformly upheld and applied in our state: Fox v. Borkey, 126 Pa. 164; Ewing v. Railway Co., 147 Pa. 40; Linn v. Duquesne Boro., 204 Pa. 551; Huston v. Freemansburg Boro., 212 Pa. 548; Chittick v. Rapid Transit Co., 224 Pa. 13. In very recent cases the rule has been reiterated as being settled law here. The only question, therefore, that can arise in the case at bar is whether the injury complained of resulted from nervous shock. It is argued for appellants that the learned court below erred in two important particulars: First, in assuming that there could be no recovery for an injury produced by fright alone in a case where the relation of carrier and passenger existed; and, second, in assuming that the injury suffered in the present case was produced by fright unaccompanied by physical violence. As to the first proposition it may be stated that while the relation.of the parties may and does affect the degree of care owed by one to the other, the rule as to nervous shock does not depend upon such considerations. The answer to the second proposition depends upon the facts and as we read the testimony only one conclusion can be drawn and that is that the miscarriage resulted from the nervous shock occasioned by the car bumping over the track at the open switch. The wife, one of the appellants here, so testified and so did the physician who attended her. In refusing the motion for a new trial the learned court below set out at some length the testimony of Mrs. Morris and her physician in which it was admitted by the one.and testified by the other that the miscarriage was caused by the nervous shock. These were the witnesses most competent to testify as to the causes which produced the injury complained of and we do not understand how it can be considered error for the learned court to assume as a fact what had been expressly stated in the testimony relied on to sustain a recovery. It is a matter not only of scientific but of common knowledge that miscarriages are often caused by fright or nervous shock, and the testimony in this case simply shows that what frequently happens in'the natural order of things did occur. There was no evidence, sufficient to be submitted to the jury, to warrant a finding that the miscarriage was caused by any physical injury. Under these circumstances the learned trial judge was clearly right in applying the rule of our cases and in directing a verdict for the defendant.

Judgment affirmed.


text:
    Commonwealth ex rel., Appellant, v. Fenner.

      Boroughs — Chief burgess — Public officers — Act of May 23,1893, P. L. 113.

    Under the Act of May 23, 1893, P. L. 113, entitled “An. Act to authorize the election of a chief burgess for three years in the several boroughs of this commonwealth, who shall not be eligible to the office for the next succeeding term,” a person is disqualified to act as chief burgess for a term beginning in 1909, where it appears that he had been elected to the office in 1903, and served a full term for three years, that he was again elected in 1906, serving a term of two years and eleven months when he resigned, and was again elected to the office in 1909 for another term of three years.
    Argued April 11, 1910.
    Appeal, No. 72, Jan. T., 1910, by plaintiff, from order of C. P. Luzerne Co., March T., 1909, No. 446, directing judgment for respondent in case of Commonwealth ex rel. Abram Salsburg, district attorney, v. James K. P. Fenner.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.

      Petition for writ of quo warranto.
    Demurrer to respondent’s answer. Before Ferris, J.
    In 1903 the respondent in this case was elected burgess of Ashley borough, and served the full term of three years from the first Monday of March of said year. In 1906, he was re-elected and served the full term, less one month and one day, resigning the office on January 27, 1909. On December 29, 1908, prior to his resignation, two petitions presenting his ñamé for nomination by the republican and democratic parties for the said office of burgess at the primary election, held January 23, 1909, weré filed in the-office of the county commissioners, as a result of which he received both nominations and was subsequently elected to said office for a term of three years, beginning on the first Monday of March, 1909. Upon assuming the duties of the office for said term these proceedings were instituted.
    The court overruled demurrer to respondent’s answer.

      Error assigned was the order of the court.

      W. Alfred Valentine, for appellant.
    Respondent’s resignation on January 27, 1909, after having served the full preceding term less one month, and after his renomination on both tickets as a candidate to office for the next term, did not render him eligible for the “next succeeding” and present term.
    Respondent was not, by reason of his ineligibility to serve the term beginning on the first Monday of March, 1906, rendered eligible for the “next succeeding term” beginning on the first Monday of March, 1909: Com. v. Lloyd, 2 Pa. Superior Ct. 6, aff’d 178 Pa. 308; McKellar v. Seeds, 10 Pa. Superior Ct. 167-171; Com. v. Hanley, 15 Pa. Superior Ct. 271-281; Wilson v. Spaulding, 19 Fed. Repr. 304.

      Charles F, McHugh, with him Frank T. McCormick and George L. Fenner, for appellee.
    We do not contend that a resignation in the years from 1903 to 1906, when the respondent legally held the office, would qualify him to serve for the next succeeding three years. His election for the full term of three years under the act and his service for a portion of the term would disqualify him from holding the office for the next succeeding term.
    May 2, 1910:
    The resignation in 1909 was merely giving up an office that he had no title thereto. He could not hold the office in violation of the statute. His resignation in that year put him in the same position as he would have been if certain quo warranto proceedings, instituted in 1906, were brought to a finality, and a judgment of ouster entered. He had no title to the office and his voluntary relinquishment of possession in 1909, imposed no penalty as to holding the office for the next succeeding term. Disqualification being an incapacity to hold the office is undoubtedly a ground of ouster: Rex v. Mayor of Bedford, 8 Mod. 35; Com. ex rel. McLaughlin v. Cluley, 56 Pa. 271.
    The election or appointment to office of a person who is not eligible gives him no right to hold the office. The election is simply void: Spear v. Robinson, 29 Me. 531; State v. Newman, 91 Mo. 445 (3 S. W. Repr. 849); State v. Crawford, 17 R. 1. 292 (21 Atl. Repr. 546); Com. v. Pyle, 18 Pa. 519.
    Public policy and public convenience have made the acts of de facto officers, with third parties, legal but not the title of the de facto: Jones v. Easton, 4 Pa. Dist. Rep. 509; Bowman v. Slifer, 25 Pa. 23; Phila. v. Given, 60 Pa. 136.
   Opinion by

Mr. Justice Elkin,

The Act of May 23, 1893, P. L. 113, provides for the election of a chief burgess by the qualified voters of every borough in the commonwealth triennially and makes a burgess so elected ineligible to serve for the next succeeding term. The appellee was first elected in 1903, and served his full term. In 1906, he was re-elected for another full term but resigned about one month before the expiration of his term and was then re-elected for another term of three years. If he is permitted to serve out his present term he will have served as chief burgess almost continuously for a period of nine years while the law in express terms provides that he shall only continuously serve for three years. The.learned court below in reaching the conclusion that he was qualified to hold his office for the present term placed a technical construction upon the act of 1893, which provides for the triennial election of a properly qualified person to the office of chief burgess. It was held that the present incumbent is not disqualified because when re-elected in 1906, he was not a properly qualified person to hold the office for that term and because he was not qualified to hold the office from 1906 to 1909, he cannot be held to have been elected for the succeeding term from 1909 to 1912, within the meaning of the act of 1893. Such a construction of the act would defeat its purpose and render its provisions meaningless. There can be no question as to the legislative intention expressed or implied in the statute. It was to make a uniform law throughout the commonwealth. Prior to that time the length of the term of a chief burgess varied in many boroughs, and as a general rule it was for one year only. The purpose of the act was to make a uniform term of three years and as a matter of public policy it was deemed wise to make a person so elected ineligible for the succeeding term. With the wisdom of this policy we have nothing to do, but it is the law, and it is our duty to enforce it according to its spirit and purpose. To hold that because an officer had improperly held an office for one term, his right to hold office for the succeeding term could not be questioned because the term during which he improperly held the office could not be counted against him, would be to put the stamp of approval upon wrongful doing and to reward sharp practices in evading the law. The purpose of the act of 1893, was not only to provide for the triennial election of all chief burgesses but to make persons so elected ineligible to succeed themselves. The appellee not only succeeded himself in 1906 but has again done so in 1909. This is in plain violation of the statute and cannot be sanctioned. The respondent is not entitled to hold the.office of chief burgess for the present term and judgment of ouster should have been entered against him.

Judgment reversed and record remitted to the court below with directions to enter such judgment, or make such order as may be required to effectuate the purpose of this proceeding in accordance with the views herein expressed. Costs to be paid by appellee.


author: Mr. Justice Brown,

text:
    Otto Gas Engine Works, Appellant, v. Pepper.

      Contract — Sales — Parol contemporaneous agreement ■ — Evidence — Charge.

    1. In an action to recover the price of an electric light plant it appeared that there was a written contract which specifically stated what the defendant was to get for the price which he was to pay. The contract contained this clause: “And it is further agreed that this instrument evidences the whole contract under which the said engine is received by the undersigned.” The contract also provided that the plaintiff was to lay a necessary concrete foundation for the plant. It was admitted that such a foundation should extend sixty inches below the floor level. It was shown that it extended only twenty-two inches. When the plant was put in operation it was found that the noise, vibration and shock were so great as to render the building uninhabitable. Nothing was said in the contract about noise and vibration, but defendant alleged that there was a contemporaneous parol agreement that there should be no noise or vibration. The court charged that if the noise and vibration were undue and more than a reasonable man should have anticipated a defense was made out. It also permitted the jury to take into consideration the alleged parol representations. Held, that such instructions were erroneous.
    2. In such a case the appellate court has no means of determining whether a verdict for the defendant was based upon the failure of the plaintiff to build a proper foundation according to the contract, or upon the erroneous portions of the charge.
    Argued Jan. 4, 1910.
    Appeal, No. 140, Jan. T., 1909, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1905, No. 1,118, on verdict for. defendant in case of Otto Gas Engine Works v. J. W. Pepper.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit to recover the contract price of an electric light plant. Before Wiltbank, J.
    The court charged in part as follows:
    [You may, however, determine whether as a fact the noise, vibration and shock were undue (leaving out of view entirely all questions as' to whether the plaintiff had promised there should be none, because you are to look to the written contract alone for its promise). You may, however, determine whether as a fact, upon the other proofs offered, the noise, vibration and shock were undue and more than a reasonable man in his position should anticipate, and more than the plaintiff might claim as ordinary and reasonable. If they did exceed this standard, you may further consider how far it is a defense to this action, and if you find that it was so grave an interference with the effect or use of the machinery as to render it practically useless in view of the situation of the man and his relations to his neighborhood, you may find that the defendant has made out a defense on that head.] [3]
    Plaintiff presented this point:
    5. Even if it be true that there was noise and vibration caused by the gas engines, generators, etc., erected by plaintiff for defendant, under the written contract sued on in this case, those facts furnish no defense to plaintiff’s claim. Answer: That I decline to charge. [4]
    Defendant presented these points:
    5. If from the evidence the jury believe that the engines installed by the defendant were not erected upon the necessary concrete foundations, so as to be operated to the capacity of twenty horse power each, without undue noise, vibration and shock, the plaintiff has not complied with its contract, and the verdict should be for the defendant. Answer: That I affirm. [5]
    10. If from the evidence the jury believe that the defendant was without skill or experience in the matter of installing engines and dynamos, and relied upon the statements and representations made by plaintiff’s agent, as to its freedom from noise, vibration and shock, so as to make it fit and suitable for installation and operation in an apartment house, and the engines when installed and operated did produce undue noise, vibration and shock, so as to be unsuitable for use in an apartment house, plaintiff cannot recover, and the verdict should be for the defendant. Answer: That I affirm. [6]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (3-6) above instructions, quoting them.

      Alex. Simpson, Jr., with him Ernest L. Tustin, for appellant.
    If a purchaser knowing that the machinery which he purchases will cause noise and vibration in its operation, does not contract there against, but himself undertakes to obtain and construct the necessary preventative agencies, he cannot defeat a claim for the purchase moneys by proving that the noise and vibration was so great as to prevent his using the engines in the place where he directed them to be put: Port Carbon Iron Co. v. Groves, 68 Pa. 149; Jarecki Mfg. Co. v. Kerr, 165 Pa. 529; Amer. Home Savings Bank Co. v. Guardian Trust Co., 210 Pa. 325; Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S. 510 (12 Sup. Ct. Repr. 46); Thomas v. Loose, 114 Pa. 35; Hallowell v. Lierz, 171 Pa. 577; S. Morgan Smith Co. v. Supply Co., 221 Pa. 165; Wetherill v. Neilson, 20 Pa. 448, Mahaffey v. Ferguson, 156 Pa. 156; Selin v. Snyder, 11 S. & R. 319; Gearing v. Lacher, 146 Pa. 397; Wolf v. Wolf, 158 Pa. 621; Baker v. Hagey, 177 Pa. 128.
    May 9, 1910:

      Ormond Rambo, with him Wayne P. Rambo, for appellee.
    Defendant having relied upon plaintiff’s advice, and statements as to the kind of engines plaintiff was then manufacturing, their suitableness to defendant’s apartment house, the power required to obtain the result desired, and the selection by plaintiff of the location in defendant’s premises, and the agreement by plaintiff to install, there was an implied warranty that the machinery to be installed was reasonably suitable to do the work in the place where the same was installed: Osborne v. Walley, 8 Pa. Superior Ct. 193; Warder v. Blair, 4 Penny. 182; McCormick Harvesting Machine Co. v. Nicholson, 17 Pa. Superior Ct. 188; Erie City Iron Works v. Barber, 102 Pa. 156.
    This was a purchase of a plant to be installed by plaintiff for a particular use, made known to the seller.
    In purchase for a particular use made known to the seller, if the buyer relies on the vendor’s judgment to sell it, and not on his own, there is an implied warranty that the article is reasonably fit and suitable for that purpose: Benjamin on Sales (7th ed., 1889), 686; Driesbach v. Bridge Co., 81* Pa. 177; Jarecki Mfg. Co. v. Kerr, 165 Pa. 529; Port Corbon Iron Co. v. Groves, 68 Pa. 149.
    Testimony showed conclusively that plaintiff had not furnished the necessary concrete foundations upon which to install the engines in defendant’s building, and in consequence thereof the engines could not be used.
   Opinion by

Mr. Justice Brown,

On January 30, 1905, the appellee entered into a written contract with the appellant for the installation of an electric light plant in a building owned and used by him as an apartment house, in the city of Philadelphia. What the company was to furnish and what the appellee was to get from it for the price he was to pay are explicitly stated in the agreement between them, the last clause of which is, “And it is further agreed that this instrument evidences the whole contract under which the said engine is received by the undersigned.” What the appellee was to get were known and definitely described things, and the terms and conditions under which he was to get them were definitely set forth in the agreement. The appellant supplied and installed the engines and dynamos upon foundations which it built. On March 23, 1905, it started the engines, when it was immediately found that the noise, vibration and shock were so great that they rendered appellee’s building and the premises immediately to the south practically uninhabitable. The rest, sleep and comfort of the occupants of appellee’s house were interfered with and the owner of the adjoining premises threatened to apply for an injunction to abate the nuisance from which he suffered, for the vibration caused dishes and plates to rattle upon the table in the dining room and on the ranges in the kitchen, and the floors of his sitting room and library shook, so as to render the use of the same impossible. Some efforts were made, extending over a period of a month, to correct the evil, the existence of which the company’s superintendent admitted, but these efforts were abandoned and shortly afterwards this suit was brought. To the defense that the appellee attempted to make, that there had been a parol contemporaneous agreement amounting to a guaranty that there would be no noise, vibration or shock, the answer of the appellant was that there was no such condition in the agreement, which, according to its express terms, evidenced the whole contract between them.

It is inconceivable that the appellee would have contracted with the appellant for the installation of a plant that would be so utterly useless to him as that furnished, and it is equally so that the appellant would have attempted to sell it to him; but the. contention of the latter is that, as the appellee got what it contracted to give him, he must pay. To his defense of the parol contemporaneous agreement reply is made that it was not so nominated in the bond. It is to be conceded that the appellant has the right to stand upon its contract, but before it is to be permitted to recover it is bound to show that it has performed the same in all respects. Upon this issue alone the case should have gone to the jury, and, if the learned trial judge had consistently adhered to his instruction to them in his charge and to his answer to plaintiff’s third point, that they were not to consider the alleged contemporaneous agreement, but the written one alone as the contract between the parties, and that if the plaintiff furnished and erected the gas engines, generators, switch board, etc., as provided by the written contract, their verdict should be in its favor, the record would be free from error, for there is no assignment to the admission or rejection of evidence.

One of the covenants of the appellant was to lay a necessary concrete foundation for the plant. The superintendent of the company, with whom all negotiations were had, admitted on the trial that this concrete foundation should have extended, according to the rules under which his company worked, sixty inches below the floor level. It was proven by a number of witnesses that the foundation went below that level only about twenty-two inches; that it was not only not laid to the necessary depth, but did not go down to solid earth; that it rested partly on loose ashes, on an old, abandoned brick wall and on several old, abandoned drain pipes, and, according to the testimony of a number of witnesses, the effect on the building in which the engines were installed and upon that adjoining it, resulting from this defective foundation, would be to send the excessive vibrations and shocks through both. The real issue, and the only one, therefore, as counsel for appellee properly state it in their statement of the question involved, was as to the laying of the necessary concrete foundation, for if, as a result of its not being properly laid, the engines made the great and unusual noises, vibrations and shocks referred to both in appellee’s house and in that adjoining, the plaintiff ought not to be allowed to recover. Instead of consistently following the proper instructions to which we have referred and his correct answer to defendant’s fourth point, the learned trial judge told the jury that they might determine whether, as a fact, upon the proofs offered, the noise, vibrations and shock were undue and more than a reasonable man in the position of the appellee should have anticipated and more than the appellant might have claimed as ordinary and reasonable, and, if they should so find, a defense was made out. This was error, for if the appellant had in all respects performed its contract with the appellee, and he had obtained what his contract called for, payment was not to be avoided simply because there might have been undue noise, vibration and shock. Though in his general charge the trial judge had told the jury that they were to disregard entirely the parol contemporaneous agreement, in answering the tenth point submitted by the defendant he instructed them that, if they believed the appellee was without skill or experience in the matter of installing engines and dynamos, and relied upon the statements and representations made by the appellant’s agent as to their freedom from noise, vibration and shock, so as to make the plant fit and suitable for installation and operation in an apartment, and the engines installed and operated produced unusual noise, vibration and shock, so as to be unsuitable for use in the house, the plaintiff could not recover. The case thus went to the jury under certain instructions that were contradictory of correct ones. They may have followed the incorrect instructions and denied a recovery merely on the ground that there had been undue vibration and shock, or they may have concluded that no recovery could be had in view of the representation by plaintiff as to the freedom of the plant from vibration and . shock. No one can tell which instructions were followed, and the judgment must, therefore, be reversed: Gearing v. Lacher, 146 Pa. 397; Wolf v. Wolf, 158 Pa. 621; Baker v. Hagey, 177 Pa. 128.

The third and sixth assignments of error are sustained and the judgment is reversed with a venire facias de novo.


author: Per Curiam,

text:
    Brandenburg, Appellant, v. Coxe.

      Receivers — Corporations—Insolvency—Contract—Sales agent.

    Where the general sales agent of a corporation sends in orders which are accepted by the company, but before they are filled, the company goes into the hands of a receiver, the latter may, if he does not adopt the general sales contract with the agent, fill the orders on hand, without being liable as receiver for the commissions of the agent under the contract. As to such commissions the agent is in the same position as other creditors.
    Argued Feb. 28, 1910.
    Appeal, No. 392, Jan. T., 1909, by plaintiffs, from judgment of C. P. Berks Co., Nov. T., 1908, No. 37, for defendant non obstante veredicto in case of C. G. Brandenburg et al., trading as Brandenburg & Company, v. John L. Coxe, Receiver of Keystone Wagon Works.-
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for commissions on sales.
    Endlich, P. J., filed the following opinion:
    The Keystone Wagon Works had a contract with plaintiffs, running to July 1, 1910, constituting plaintiffs its agents for the sale of automobile bodies, etc., at a- commission of ten per cent upon the aggregate net price of all such bodies, etc., sold, manufactured, and shipped by the company. Orders procured by plaintiffs were subject to the approval of the company and prices fixed by it. It was to furnish to plaintiffs monthly, between the fifth and fifteenth, a statement of the net selling price of all bodies, etc., shipped during the preceding month, and between the tenth and twentieth, to pay them the percentage figured upon that statement. It was provided that the contract should be binding unless either of the parties should become insolvent, in which case it might be terminated as soon as all payments then due were made. On November 29, 1907, the wagon works, having become insolvent, went into the hands of defendant as receiver. At that time there were unfinished and unshipped a number of automobile bodies, etc., for part of which the plaintiffs had obtained orders approved by the company. Under authority from the court the receiver proceeded to complete the bodies, etc., and when completed shipped them to the persons to whom they had been sold, the net selling price amounting to $20,520.10. Plaintiffs claim that they are entitled in this action to recover from the receiver ten per cent on that amount under the contract referred to. There being no facts in dispute, a request by defendant for binding instructions was declined and a verdict directed and taken for plaintiffs, whereupon these rules were entered.
    This is an action of assumpsit. Its maintenance requires privity of contract: Blymire v. Boistle, 6 Whart. 182; Morrison v. Beckey, 6 Whart. 349; Finney v. Finney, 16 Pa. 380; Brown v. Title & Trust Co., 174 Pa. 443. There was no express promise by defendant to plaintiffs. Is there any to be implied? It is not disputed, either that a receiver may refuse to assume and carry out a contract of the company executory at the time of his appointment, or that if he elects to adopt such contract and accepts the benefit of it, an assumption by him of its obligations is to be implied. A most apt illustration of this principle is found in Spencer v. Columbian Exposition (Ill.), 45 N. E. Repr. 250. There a company had obtained the concession for a certain period of a space for restaurant purposes, the contract granting it stipulating for the payment in consideration of it of a percentage upon the gross receipts. The company became insolvent and a receiver was appointed when but half the term for which the concession had been made had expired. The receiver continued to occupy the space and to carry on the business, completing the term and receiving the profits. It was held that he could not at the end of the term repudiate the contract and pay the exposition on the basis of a mere quantum meruit. But' the case not only illustrates the application of the principle: it also marks, by the contrast between its facts and those of the present case, its inapplicability to the latter. There the receiver’s acts were a daily affirmance of the contract of concession. But for the continuance of the privilege secured by it he would have been a trespasser. Of course he could not have the benefit of the contract without assuming its burdens, and hence his assumption of them was bound to be implied. If here it appeared that the receiver (supposing him to have been so empowered) had continued the business of manufacturing automobile bodies, etc., accepting new orders for such from the plaintiffs under the old contract, or even only approving previously sent in orders not yet approved by the company, filling them and receiving payment for them, and the claim now in suit involved the question of his liability for the commissions fixed by the contract, the case cited might go far towards sustaining the plaintiffs’ position. But that is not what we have here. It is not alleged that the receiver continued the company’s business in the sense indicated. He continued it merely to finish what had been begun by the company. Plaintiffs sold nothing for him. They had sold the automobile bodies, etc., for the company. According to the contract they had with it, by which the parties had made their own law: Hartley v. Decker, 89-Pa. 470, 473, their services to the company, which were continuous, entitled them to a certain compensation from the company. They were its creditors for the amount of that compensation. Payment of it was to be made at the times and upon the basis provided for in the contract; that is to say, every month they were entitled to receive, not ten per cent upon the price of this or that particular body, etc., or of all the bodies, etc., they had found purchasers for, but a sum equal to ten per cent upon the aggregate sales of bodies, etc., shipped by the company during the preceding month, no matter by whom sold — and so on until the termination of the contract by its expiration or of the business of the company by its insolvency. It will be noticed that the completion and shipping of the bodies, etc., were no concern of the plaintiffs except as furnishing the measure of the monthly payments to be made to them. Their claim against the company under the contract was perfect without this. In other words, the indebtedness to plaintiffs arising by virtue of the contract, was the company’s debt at the date of the appointment of the receiver. When therefore the receiver, taking charge, found in process of manufacture certain automobile bodies, etc., already sold to certain parties through plaintiffs’ agency, and finished and delivered them, he created no new liability in favor or against anyone. He did not adopt the sales made by the plaintiffs. The company had done that. He did not accept any duty or benefit under the company’s contract with plaintiffs, which the company had not accepted. He simply performed a duty assumed by the company towards the vendees in approving those sales and thereby making them its own. He, in other words, adopted and fulfilled its contracts with its vendees. Surely in so doing he cannot be said to have assumed any liability towards plaintiffs, with whom he had no dealings and came into no relation whatever, or to have adopted their contract with the company as a continuing one. The contrary would seem to be one of those self-evident propositions of which it is said in Miller v. Miller, 187 Pa. 572, 583, that they are not the subject of demonstration, and in Smoot v. B. & L. Assn. (Va.), 29 S. E.' Repr. 746, that the attempt to elucidate them serves rather to obscure.
    The conclusion appears inevitable that there is no occasion for the granting of a new trial, and that defendant is entitled to judgment.
    The rule for a new trial is discharged, .and the rule for judgment n. o. v. made absolute.
    At the trial the jury, under binding instructions, returned a verdict for the plaintiffs for $2,052.01. The court subsequently entered judgment for defendant non obstante veredicto.
    • Error assigned was in entering judgment for. defendant non obstante veredicto.

      Cyrus G. Derr, for appellants.
    If the receiver elected to adopt the sales, it necessarily involved an adoption of the contract under which the sales had been made, and entitled the appellants to the commission provided by that contract: Spencer v. World’s Columbian Exposition, 45 N. E. Repr. 250; Central Trust Co. v. East Tennessee Land Co., 79 Fed. Repr. 19; Girard Life Ins., etc., Co. v. Cooper, 51 Fed. Repr. 332; United Electric Securities Co. v. Louisiana Electric Light Co., 71 Fed. Repr. 615.

      J. Bennett Nolan, with him Joseph R. Dickinson, for appellee.
    The declaration avers that it was the sales which were adopted, and bearing in mind that these sales consisted of orders received and accepted by the company before the receivership, it is clear that the appellants rendered no services to the receiver from which this obligation could arise.
    No act of the receiver was the act of the wagon works done through him. The receiver occupies the same position as a stranger who might have filled the orders upon the failure of both the wagon works and the receiver to do so, and such stranger would not have been liable to pay the appellants for the reason that he never undertook to do so. See Atkinson v. Schoonmaker et al., 12 Mo. App. 425.
    May 9, 1910:
   Per Curiam,

We concur in the view expressed in the opinion of Judge Endlich, on which we affirm the judgment appealed from, that there was not an adoption by the receiver of the contract between the plaintiffs and the Keystone Wagon Works, as a continuing contract, but merely the use by him of orders received by the corporation before his appointment. The plaintiffs’ claim for orders procured for and accepted by the corporation was complete at the time of the appointment of the receiver and for it they have the same remedies as other creditors.

The judgment is affirmed.