text:
    Palmer v. Central Board of Education of Pittsburg, Appellant.

      School law — School board — Building committee — Approval of action of committee — Contract—Architect—Submission of plans — Equity—Injunction — Inadequate remedy at law.

    A school board having decided to erect a school building, appointed a committee to take charge of the work, authorizing it among other things to select, subject to the approval of the board, a competent person as architect. The committee subsequently reported to the board that it had determined to select an architect by competition, and for this purpose, to employ a competent professional adviser to prepare instructions to the competing architects as to the rules governing competition and the terms upon which the successful competitor, if approved by the board, was to be engaged. This report was approved by the board. The committee thereupon with the aid of its professional adviser prepared instructions to the competitors, who were limited to a specific number. These instructions were never formally approved by the board. The instructions stated that a fair examination of each plan would be made and a choice made by the committee; that if the first choice by the committee should fail of the board’s approval, that the others would be reported in the order of their merit and according to the judgment of committee, until a selection should be reached with the board's approval. The several architects invited submitted their plans, and the committee made a selection of one of the plans, and reported to the board. The report was not approved by the board. Subsequently without any further action having been taken, the board having reorganized appointed a new building committee with authority to procure plans in open competition from all competent architects. Under this scheme an architect was duly elected. Thereupon three of the competitors under the old scheme filed a bill in equity to compel the board to proceed under the old plan, and make a selection in accordance therewith. Held, (1) that it was not necessary for the board to have approved of the instructions formulated by the committee; (2) that a contract existed between the board and the competing architects; and (3) that equity had jurisdiction, inasmuch as there was no adequate remedy at law.
    In such a case the jurisdiction of equity is not affected by the fact that the unsuccessful competitors were each to receive a specific sum as full compensation; inasmuch as the parties complaining in the bill were not in the position of unsuccessful competitors.
    Argued March 3, 1908.
    Appeal, No. 44, Oet. T., 1908, by defendant, from decree of O. P. No. 4, Allegheny Co., Third Term, 1907, No. 694, In Equity, on bill in equity in case of George C. Palmer and Henry F. Hornbostel, partners as Palmer & Hornbostel, Emlyn Stewardson and James T. Jamieson; partners as Cope & Stewardson, and Cass Gilbert v. The Central Board of Education of the City of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Swearin&en, P. J.,
    and Carnahan and Cohen, JJ.

      The facts are stated in the opinion of the Supreme Court.
    The court below found the following conclusions of law:
    2. It was a lawful exercise of the powers of said central board to pass the resolution of February 13, 1906, whereby it determined to erect a new central high school building, created a special committee to have charge of the erection of the proposed building, and authorized it to select, subject to the approval of the board, an architect, and to have preliminary plans prepared. It was equally a lawful exercise of the powers of said central board to pass the resolution of May 8, 1906, adopting the report of said building committee (finding of fact 5), whereby said Central Board of Education determined to select an architect by competition, selected Warren P. Laird as professional adviser, to the building committee, and prescribed as part of his duties the preparation of instructions to competing architects, of regulations governing the conduct of the competition and of the terms under which the successful architect was to be engaged.
    3. It was likewise competent for said building committee and said adviser to prepare the program of competition (finding of fact 6), and to invite the architects to enter into competition, as set forth in finding of fact 7. These acts were within the scope of the authority conferred ¿upon the building committee and the adviser, under the resolutions of February 13 and May 8, 1906 ; and thus they became and were the acts of the Central Board of Education itself.
    4. The aforesaid invitation to enter the competition and the acceptance thereof by said architects constituted a contract between said Central Board of Education and said competing architects, whereby said architects, on their part, obligated themselves to each prepare a design for said high school building and to submit the same in competition, and whereby the said central board, on its part, undertook to consider the said designs and to pass upon the same in accordance with the provisions of the program (exhibit Flo. 1), paragraphs. Flos. 40,41, 42 and 43. There was ample consideration to support this contract. On the part of said central board, it was to receive the expert information which it needed in the performance of a most important public duty. These architects, on their part, undertook to use their skill, judgment and experience in the preparation of designs for a school building, for the benefit of said central board and at its request, — things which, prior to the agreement,, they were not legally bound to do. This consideration is sufficient: Newhall v. Paige et al., 76 Mass. 366; Devecmon v. Shaw, 69 Md. 199 ; Hamer v. Sidway, 124 N. Y. 538 (27 N. E. Repr. 256).
    Of course these architects had the hope and expectation that some one of them would obtain the valuable prize of being the architect of this building; and this possibility is a sufficient consideration : Molyneaux v. Collier, 17 Ala. 46.
    5. Whether or not some one of these competitors is entitled to be chosen the architect is a question which is not now before us. It would seem that the power of the central board to approve a choice of the committee implies the power to reject all designs. The presumption is that the members of the board will perform their duty, under their oaths of office and with due fidelity to the constituencies which they represent. With their discretion we have no disposition to even attempt to interfere, even if we could do so. But when a contract is submitted, such as we have found, and a breach of it is shown, we have a case presented which calls for appropriate remedy, such as the law provides, and it is equally our duty to apply the remedy under proper complaint.
    6. Pursuant to the aforesaid contract, these competing architects, including the plaintiffs, prepared and submitted their designs, and the said building committee selected one of them and so reported to the central board. But the board did not approve the selection, though it did not formally reject th.e choice; and then it went no further. It has now attempted to abandon the method of choosing an architect, prescribed in the resolution of May 8, 1906, by adopting another and a different method altogether. This was a breach of the aforesaid contract between the Central Board of Education and the competing architects. Having performed their part of the contract, as far as they could, these architects, including the plaintiffs, are entitled to the fruit of their labors, which is that the competition,- which was lawfully instituted by the Central Board of Education, shall be completed according to its terms.

      It is no matter that the Central Board of Education has since reorganized and changed its committee. The relations between the board and these architects are contractual, and a municipal corporation, oí division, can no more avoid the obligations of its lawful contracts than can an individual party.
    7. The very nature and subject-matter of the controversy are such that there can be no adequate, convenient or sufficient remedy at law for these plaintiffs. What rule could any court give to a jury, whereby it could adequately assess the damages ? Even the $750 which, it was stipulated, should be paid to each of the competitors, whose designs were not accepted, cannot be paid until there is a final disposition of the competition. But this is only a small part of the subject-matter of this contract, in which these plaintiffs are interested. It seems to us that there is jurisdiction in equity, and only in equity, to, afford adequate, convenient and sufficient relief: Appeal of Brush Electric Co., 114 Pa. 574; Conemaugh Gas Co. v. Jackson Farm Gas Co., 186 Pa. 443.
    The court entered the following decree :
    And now, to wit: January 2, 1908, this matter came on for hearing upon bill, answer and replication filed, the testimony taken at the preliminary hearing, and the findings of fact and conclusions of law of the court thereon made, being, by agreement of counsel, taken as though made upon final hearing, and thereupon upon consideration thereof, it is ordered, adjudged and decreed that the said defendant the Central Board of Education of the city of Pittsburg be enjoined and restrained from proceeding to award the plan for the construction of a high school for the city of Pittsburg on a lot on Forbes street, acquired from Hon. Christopher Magee, and to select an architect for the construction thereof outside of the nine different architects who have entered into competition therefor, and whose names are set forth in the foregoing bill, until the plans submitted by said architects have been acted upon in the manner set forth in the resolution of the said board of May 8,1906, attached to plaintiffs’ bill and marked Exhibit “ A.”

      Errors assigned were (1-6) conclusions of law as above, and (7) decree of the court.

      James O. Gray and W. J. Brennen, with them J. Scott Ferguson, Olcvrence Burleigh and Wm. A. Challener, for appellant. ' '

      Thomas Patterson, of Patterson, Sterrett áa Acheson, for appellees.
    April 20, 1908 :
   Opinion by

Mr. Justice Stewart,

The Central Board of Education of the city of Pittsburg, by resolution passed February 13, 1906, decided upon the erection of a new high school building, and appointed a committee of nine of its members to take charge of the work. This committee was authorized, among other things, to select, subject to the approval of the board, a competent person as architect. Later on, May 8, 1906, the committee submitted to the board a report, in which it was stated that the committee had determined to select the architect by competition, and to employ a competent expert as professional adviser to prepare instructions to the competing architects as to the rules governing the conduct of the competition, and the terms under which the successful competitor, if approved by the board, was to be engaged. This report was the same day unanimously approved. The committee determined to limit the number of competitors to nine, these to be chosen by the aid of the expert assistant from among architects of highest professional standing. The instructions to the competitors, subsequently prepared by the expert assistant, with the approval of the committee, provided that examination of all the plans submitted was to be made first by the expert assistant, who was required to report to the committee his choice of the designs submitted; and that the committee was then to carefully examine his report and make selection of the design it decided to be the best, and award the prize — the appointment as architect — to the author of the plans selected, subject to the approval of the board. A further instruction was that in case the board disapproved of the committee’s choice, the committee would then select from the remaining designs that one which in its judgment was the best, and repeat the above procedure with respect to this design and its author; and in cáse the second selection by the committee failed of approval by the board, the committee would then proceed in like manner with each of the remaining designs, taken in the order of their merit as this might be regarded by the committee, until the board should finally approve the selection of one of the competing architects. Each of the nine architects submitted plans and thus engaged in competition for the prize. These several plans having been examined, the committee on November 22, 1906, made its selection, and reported it to the board. For reasons which we need not inquire into, this report failed of approval by the board, and was held over. Without any further action having been taken with respect to the report, on February 12, 1907, the board having reorganized, appointed a new building committee with authority to procure plans in open competition from all competent architects, and to select from those submitted the plan it deemed most suitable for the purpose, and to proceed to obtain proposals for the erection of the building in accordance with the plans selected. This new committee, on June 4, 1907, reported that it had selected a certain plan, giving the name of the author. By resolution passed the same day this report was approved, and the author of the plan was elected architect. Thereupon three of the competing architects under the original scheme filed the bill in this case setting forth the facts as we have stated them, and asking that the Central Board of Education be enjoined from rescinding and ignoring the plans of competition adopted under the resolution of May 8, 1906, and that it be required to proceed to consider the plans submitted by the competing architects at the invitation and request of the earlier committee, and make a seléction therefrom, in accordance with the rules adopted by said committee. The answer puts in issue no matei’ial fact. The proceeding resulted in a decree enjoining the defendants from selecting plans and choosing an architect until the plans submitted by the plaintiffs and other architects who engaged in the first competition, had been acted upon in the manner set forth in the resolution of the board of May 8, 1906. This appeal followed.

The assignments of error relate exclusively to the conclusions of law by the court, and raise but two questions, namely (1) did any contract relation between the competing architects and the Board of Education result from the submission of plans by the former under the resolution of the board May 8, 1906? and (2) if such relation did result, have the plaintiffs an adequate remedy at law for any breach of the contract ? The case is free from difficulty. The report of the original building committee of the method it had adopted for the selection of a plan and architect was full and explicit. While it did not set out in detail the instructions to be given those willing to engage in the competition, it did expressly indicate that instructions were to be given, by whom they were to be prepared, and what they were to embrace. One of the duties imposed upon the professional expert assistant, was, in the language of the report, to prepare instructions to the competing architects of regulations governing the conduct of the competition, and the terms under which the successful architect was to be engaged. The instructions thus required of the expert assistant were prepared, and, with the approval of the committee, were furnished to those who proposed to compete. They specifically stated in detail just how the final selection was to be made, promised the competitors a fair examination of each plan submitted, and provided that in case the first choice by the committee should fail of the board’s approval, that the others would be reported in the order of their merit according to the judgment of the committee, until a selection would be reached with the board’s approval. Had these instructions appeared in the report of the committee, approved by the board, it is admitted that any submission of plans thereunder would have established a contract relation between the board and the competing parties; but inasmuch as they were the work of the committee, not passed upon specifically by the board, it is argued that they were without binding effect. In other words, the contention is that the instructions went beyond what the committee was empowered to do in this behalf and were nugatory. In this view we cannot concur. So far as we can see, there is absolutely nothing in the instructions not fairly embraced within the authority given the committee. Competition was authorized and provided for. This method, approved by the board, necessarily implied an examination of the plans to be submitted, and a fair opportunity to contest for the premium. The instructions went no further than to express in terms what the law would imply from the method itself. The order in which the plans were to be considered, in case the first selection of the committee failed of the board’s approval, was mere matter of detail, in no wise inconsistent with the scheme as approved by the board, but in entire harmony therewith. Full authority as to the determination of these details was given the committee. The adoption of the report by the board was a full authorization for the committee to proceed in the way it had recommended, and thereafter what was done by the committee in accordance with the recommendations contained in the report was the action of the board itself. Under any fair and reasonable method of selection by competition, the chief inducement for anyone to take upon himself the labor and expense incident to the submission of plans, would be the chance that upon a fair and impartial examination his plan might win acceptance. Disappointment in this regard after labor expended and expense incurred, under such circumstance as we have here, constitutes not only a breach of good faith, but a breach of contract resting not on doubtful terms, but on expressly admitted facts, from which an unmistakable legal obligation resulted.

That a common-law action for breach of such a contract would afford no adequate remedy, we think obvious. What could be recovered in such an action f Certainly not compensation for the thing lost. What the plaintiffs lost was the chance of having some one of the plans submitted win the prize, and this was the inducement to the expenditure of labor involved in the preparation and the submission of plans. But how is compensation for such a loss to be measured % The contract itself provides no method for determining the damages, and the law furnishes no standard. To recover anything more than nominal damages in a common-law action, actual, substantial injury would have to be shown, and in the very nature of the case that would be impossible here. To show actual loss, plaintiffs would be required to show affirmatively at least a reasonable probability that some one of the plans submitted would, had they been examined, have received the approval of the board. Since the acceptance of any of the plans rested ultimately in the discretion of the board, this would be impossible. If we regard the plaintiffs singly, as independent competitors, the difficulty is only increased by a multiplication of the chances of missing the prize. But it is argued that recovery could be had for the value of the plans and specifications submitted. This is a mistaken view. Plaintiffs- have not lost their plans and specifications. They are still theirs as much as ever. If the time and labor expended on them were solely to secure a chance, how can the plans be of value except a reasonable probability be shown that the chance would have been realized ? It is impossible to disassociate the plans from the chance in determining value. So much was ruled in Adams Express Company v. Egbert, 36 Pa. 360, a case not exactly parallel with this, but involving the same principle. In saying that the contract itself provided no measurement of damages, we have not overlooked the fact that there is a provision in the contract that the unsuccessful competitors were each to receive $750 as full compensation. Manifestly this is without application here. The parties complaining are not in the position of unsuccessful competitors; their complaint is that there was no competition. Admittedly there was none, and until there shall be by a fair and impartial examination of the plans submitted, none of those competing can be said to be unsuccessful competitors. We thus resolve the two questions in the case against the appellants. The decree entered simply restrains the appellants from awarding the plans for the construction of the school building, and selecting an architect to superintend the construction of the same, outside of the nine architects who had entered into competition, until the plans submitted by said architects shall have been acted upon in the manner set forth in the resolution of the board, May 8, 1906. The decree exacts nothing of the appellants beyond what good faith requires and what the plaintiffs had a right to demand.

Decree affirmed and appeal dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Wade, Appellant, v. Western Maryland Railroad Company.

      Negligence — Railroads—“Stop, look and listen” — Grade crossing— Right angle collision — Guest and driver — Nonsuit.
    Where one of two men borrows a wagon and the other a horse, and with the horse and wagon they set out on a joint expedition, the one who borrowed the wagon driving, the other is not the guest or passenger of the driver, and it is the duty of both men to stop the team, and look and listen before crossing a railroad.
    Where two men driving a wagon are killed by a train at a grade crossing, the presumption that they stopped, looked and listened is rebutted by the testimony of the only witness who saw the accident, to the effect that he saw the team approaching the crossing at a dog trot, and that when it was about sixteen feet from where it was struck, traveling at the pace stated, he turned from where he was standing on his porch, and had stepped into the hallway about twelve feet, when he heard the crash of the collision.
    Argued March 9, 1908.
    Appeal, No. 300, Jan. T., 1907, by plaintiff, from, order of C. P. Franklin Co., Dec. T., 1906, No. 32, refusing to take off nonsuit in case of Hermie K. Wade v. The Western Maryland Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband.
    Before Gtllan, P. J.
    The opinion of the Supreme Court states the case.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      Sharpe & Elder, with them J. A. Strite, for appellants.

      O. O. Bowers, with him J. B. Buthrauff, for appellee.
    April 20, 1908 :
   Opinion by

Mr. Justice Brown,

The appellant’s husband and a man named Shindler, while attempting to cross the tracks of the Western Maryland Railroad Company in an open wagon, were struck by a passenger engine and instantly killed. The collision took place in the borough of "Waynesboro, at the intersection of Second street with the roadbed of the appellee. The team was in the joint use and possession of the deceased at the time they were killed. The horse had been borrowed by "Wade and the wagon by Shindler. With this team they started out three or four hours before they were killed to look for a horse of Shindler’s that had strayed away. Immediately before the collision they stopped at a house where Wade got a rooster and Shindler a fish net. They then proceeded towards the railroad, Shindler driving, but there is nothing in the case to sustain the contention of the appellant that her husband was his guest or passenger, and the court below properly held that it was as much Wade’s duty.as Shindler’s to stop the team and look and listen before crossing the railroad.

The collision occurred about six o’clock on the evening of April 24, 1906, when it was clear and calm, and there was nothing to interfere with seeing or hearing the approach of the train. Two switches connected with the main track near the point of the collision. The switch immediately next to the track did not extend to Second street, but the other or western one did, and was about fifteen or twenty feet from the track. On the first or western siding there were two gondola cars, and on the other there was a box car. The two gondola cars stood about flush with the south line of the street, and obstructed the view of the railroad from Second street to the south, the direction from which the train was coming, but, after passing them and the box car, there was a clear view of the track for at least a third of a mile.

Under the conditions as shown by the plaintiff, it is not disputed by her counsel that it was the duty of Shindler to stop, look and listen before crossing the tracks ; but, as stated, whatever duty was upon him rested equally upon his companion. Answer is made to this that, as it does not positively appear from the evidence that they did not stop, look and listen, the case ought to have gone to the jury on the presumption that they did. There is positive testimony, however, that they could not have stopped, looked and listened, and the only possible conclusion is that they had not. As but one inference could have been drawn from the evidence on the question of the contributory negligence of the deceased, it was the duty of the court to draw it.

Leonard Johnson, the only witness called who saw the team approach the railroad, testified that he saw it turn from Ridge avenue on to Second street; that it proceeded east on that street towards the railroad crossing on a dog trot; that he saw it going at that pace until it reached the first switch or siding, about sixteen feet from where it was struck by the engine ; that when it was at that point, traveling at the pace stated, he turned from where he was standing on his porch and had stepped into the hallway, about twelve feet, when he heard the crash. The testimony of Johnson completely overcomes the presumption that the deceased had exercised the care required of them when about to cross the railroad, and the learned trial judge, in refusing to take off the nonsuit, was constrained to say, “ It is perfectly manifest, therefore, that they neither stopped, looked nor listened.” We can add nothing to this.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Clymer v. Groff, Appellant.

      Mortgage — Deed—Consideration—Delivery—Presumption — Recording —Retention of possession by grantor.

    Want of consideration is not a valid defense to an action upon a sealed instrument.
    If a deed or mortgage be duly delivered in the first instance, it will operate though the grantee suffer it to remain in the custody of the grantor.
    The presumption in favor of the delivery of a deed in case of voluntary settlement is stronger than in ordinary bargain and sale, and the fact that such deed has been recorded is prima facie evidence of its delivery, although possession of it is retained by the grantor.
    Where a husband executes to his attorney a mortgage on his real estate, and the attorney immediately assigns the mortgage to the mortgagor’s wife, and the mortgage after being recorded is returned to the mortgagor, and is found together with the bond and assignment, after his death, in his safe deposit box to which his wife has access, the executors of the husband on a scire facias by the wife cannot set up; either that the marriage was invalid, or that there had been no delivery, or the presumption that the mortgage had been paid.
    In such a case the fact that the mortgage was found in a place to which both husband and wife had access showed at best that it was a common possession of both husband and wife; but even if it had not been shown that the wife had access to the box when the family relation existed, the fact of the wife’s mortgage being in the husband’s safe, would not raise -any presumption that the mortgage had been paid; nor would the mere fact of possession unaided go to the support of that proposition.
    In general it may be admitted that the production by the mortgagor, v or those claiming under him, of a note secured by mortgage, will raise a presumption, in the absence of all other proof, that it has been paid. But this is a presumption of fact, not of law, and will be rebutted by any other evidence. If the possession and production of the note can be satisfactorily accounted for upon any other hypothesis than that of the payment of it to the holder, it will rebut such presumption.
    Argued March 16, 1908.
    Appeal, No. 271, Jan. T., 1907, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1901, No. 172, on verdict for plaintiff in case of Jane B. Clymer, Assignee of Alfred S. Miller, Mortgagee, v. Charles Groff and Henry Hinkle, Executors of the last Will and Testament of Levi H. Clymer, deceased, Mortgagor, and Hester A. Wheeler et al., Real Owners.
    Before Mitchell, C. J., Bkown, Mestke7.at, Potteb and Elkin, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court sustained objections to the admission of evidence as to the invalidity of the marriage between the plaintiff and the mortgagor. [1, 7]
    The court gave binding instructions for plaintiff. [18]
    Yerdict and judgment for plaintiff for $3,758.75. Defendant appealed.

      Errors assigned were (1, 7) rulings on evidence, quoting the bill of exceptions; (18) in giving binding instructions for plaintiff.

      Ormond Rambo, with him John M. Broomall and Benjmmn Alexander, for appellants.
    The burden was on plaintiff to prove delivery and possession of the mortgage and the bond which it secured : Earnest v. Hoskins, 100 Pa. 551 ; West v. Irwin, 71 Pa. 258 ; Bradley v. Grosh, 8 Pa. 45 ; Lancaster v. Smith, 67 Pa. 427 ; Michaelis v. Brawley, 109 Pa. 7 ; Chess v. Chess, 1 P. & W. 32 ; Tyson v. Seitz, 15 Pa. Dist. Rep. 702.
    The court erred in overruling defendants’ offers to prove the facts and circumstances relating to the question of payment: Bradley v. Grosh, 8 Pa. 45 ; 1 Jones on Mortgages (6th ed.), p. 975 ; Lawson’s Presumptive Evidence, 409 ; Hertz’s App., 7 Atl. Repr. 187 ; Cox v. Ledward, 124 Pa. 435.
    It was error for the court to give binding instructions for plaintiff: Holland v. Kindregan, 155 Pa. 156 ; Corcoran v. Mut. Life Ins. Co., 183 Pa. 443.

      William I. Schaffer, with him Alfred S. Miller and Josiah Smith, for appellee.
    The delivery of a mortgage is not defeated because the mortgagor retains possession for safe keeping : Bradtfeldt v. Cooke, 27 Oregon, 194 (10 Pac. Repr. 1); Van Etta v. Evenson, 28 Wis. 33 ; Rigler v. Cloud, 14 Pa. 361.
    The record of the mortgage, showing that it was executed, acknowledged and recorded, is conclusive evidence of its delivery : Kille v. Ege, 79 Pa. 15 ; Stinger v. Com., 26 Pa. 422 ; Blight v. Schenck, 10 Pa. 285 ; Coxe v. Deringer, 82 Pa. 236.
    The mere fact that a deed is found among the grantor’s papers after his death is no evidence of its nondelivery : Stinger v. Com., 26 Pa. 422 ; Cummings v. Glass, 162 Pa. 241 ; Penna. Co. v. Dovey, 64 Pa. 260.
    On the trial of a scire facias sur mortgage the record of the mortgage is as good evidence as the instrument itself without producing the original or accounting for its nonproduction : Lancaster v. Smith, 67 Pa. 427 ; Curry v. Raymond, 28 Pa. 144.
    Where an assignment of an equitable interest in land was found in the assignor’s safe after his death, the safe having been used as a repository for the family papers and the assignee being a member of the family, the title of the assignee was upheld : Chase v. Clearfield Lumber Co., 213 Pa. 46.
    April 20, 1908 :
   Opinion by

Mr. Justice Potter,

This was a scire facias on a mortgage, made by Levi H. Clymer, dated October 1, 1902, and payable in three years. It was made to Alfred S. Miller, who was attorney for the mortgagor, and was assigned, on the day of its date, to Jane B. Clymer. Both the mortgage and assignment were duly recorded on the day following their execution.

Jane B. Clymer, the assignee of the mortgage, was married to the mortgagor, had lived with him as his wife for many years, and was so living with him when the mortgage and assignment were executed. Levi II. Clymer died June 23,1903, and the scire facias was issued against Charles Groff and Henry Hinkle, his executors, and the devisees under his will, as real owners. After Clymer’s death the mortgage, with the accompanying bond and warrant and the assignment, were found in his safe deposit box, in an envelope. The deeds for the property were in the same envelope. Mrs. Clymer also had access to this safe deposit box, and had a separate key to it; but no other papers belonging to her were found there. There was evidence that, after the papers were recorded, they were mailed by the recorder of deeds to Levi II. Clymer. It was not shown who lodged them for record.

Upon the trial the court below directed a verdict for the plaintiff for the full amount of the mortgage, with interest, upon the ground that the defendants had shown no legal defense to the mortgage. Judgment was entered upon the verdict, and the defendants have appealed, and have here assigned for error, in a number of specifications, among other things, the exclusion of certain testimony tending to prove that the plaintiff was not the lawful wife of Levi II. Clymer. The evidence was properly excluded, as it could have no effect upon the right to recover on the mortgage. At most it could have gone only to the question of the necessity of proving consideration, but want of consideration is not a valid defense to an action upon a sealed instrument: Cosgrove v. Cummings, 195 Pa. 497. Upon the trial, counsel for plaintiff merely offered the record of the mortgage and assignment in evidence, and rested. Defendants then presented testimony, and offered the original bond and mortgage in evidence. The trial judge held that the mortgage being in evidence and unanswered, entitled the plaintiff to recover. As the record stood, we think this ruling was right. The recording of the mortgage was prima facie eviden.ce of delivery, and the presumption was not rebutted or destroyed by any evidence offered by the defendants. It is text-book law that “if a deed be duly delivered in the first instance, it will operate though the grantee suffer it to remain in the custody of the grantor: ” 4 Kent’s Com. *455. The presumption in favor of the delivery of a deed in case of voluntary settlement is stronger than in ordinary bargain and sale, and the fact that such deed has been recorded is prima facie evidence of its delivery, although possession of it is retained by the grantor : Valter v. Blavka, 195 Ill. 610.

With respect to the fact that the mortgage in suit was found in the safe deposit box, to which both husband and wife had a key, and to which each had access, we agree with the court below, that “at best, it was a common possession of both husband and wife. But even if it had not been shown that the wife had access to the box, when the family relation existed, as it did here, the fact of the wife’s mortgage being in the husband’s safe, would not raise any presumption that the mortgage had been paid; nor would the mere fact of possession unaided, go to support that proposition.”

The general principle of law on this subject is set forth in Crocker v. Thompson, 44 Mass. 224, where Chief Justice Shaw says (p. 281) : “ In general it may be admitted that the production by the mortgagor, or those claiming under him of a note secured by mortgage, will raise a presumption, in the absence of all other proof, that it has been paid. But this is a presumption of fact, not of law, and will be rebutted by any other evidence. If the possession and production of the note can be satisfactorily accounted for upon any other hypothesis than that of the payment of it to the holder, it will rebut such presumption.” And in Grimes v. Hilliary, 150 Ill. 141, the court said (p. 149): “ Ordinarily the owner of a note retains it until it is paid. Hence, where it is found in the possession of the maker, the presumption of payment arises. But where the maker has access to the papers of the holder, and may have acquired the note as well without payment as with, the presumption of payment does not arise. There is no presumption prejudicial to the maker from the possession, simply for the reason that the presumption of innocence would repel' it. There is simply no presumption that the note is, or is not, paid, leaving the party having the affirmative upon the issue to establish the fact of payment.” Another authority upon the same point and to the same effect is Mynes v. Mynes, 47 W. Va. 681, where a husband executed and delivered to his wife three bonds or notes and a deed of trust securing them, and after -his death they were found, together with other papers of his, as well as papers of the wife’s, in a trunk, the key of which was in the wife’s possession, it was held that no presumption of the payment or extinguishment of the notes arose on the ground (p. 691) that the husband did not have “ exclusive possession and control of them.”

The position assumed by counsel for defendants in the present case was technical in the extreme. The execution of the mortgage was practically admitted, as they offered the original papers in evidence. There was neither allegation nor proof of actual payment, but instead there was an attempt to rely upon presumptions that do not properly arise in this case. We think the conclusion reached by the court below, both with regard to delivery of the mortgage and as to the lack of any presumption of payment, under the circumstances, is well supported by reason and authority. As we agree with the ruling that no legal defense to the mortgage was shown, and that the verdict was properly directed for the plaintiff, the questions raised as to the competency of the witnesses for the plaintiff, Miller and Williams, need not be considered.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Clifton Heights Borough, Appellant, v. Thomas Kent Manufacturing Company.

      Railroads — Lateral railroads — Grade crossings — Municipal consent— Acts of May 5,1832, P. L. 501 and June 7,1901, P. L. 531 — Injunction— Equity.

    A manufacturing corporation which has undertaken to construct a lateral railroad under the provisions of the Act of May 5, 1832, P. L. 501, has no right to lay its tracks across a public street at grade without the consent of the municipality.

      The Act of June 7, 1901, P. L. 531, relating to the crossing of highways by railroads or of railroads by highways, and intended to regulate, alter and abolish grade crossings, applies to lateral railroads.
    The act of 1901 applies to all crossings thereafter established, and the language of the act has reference to the time when a crossing is actually established on the ground, and ready for construction, or in fact constructed, and not to the time when a lateral railroad may have been authorized by a decree of the court under the Act of May 5, 1832, P. L. 501, to construct such a railroad. The general authority to construct a lateral railroad does not establish a crossing within the meaning of the act of 1901.
    Argued March 16, 1908.
    Appeal, No. 348, Jan. T., 1907, by defendant, from decree of C. P. Delaware Co., Dec. T., 1900, No. 190, dismissing bill in equity in case of Clifton Heights Borough v. Thomas Kent Manufacturing Company.
    Before Mitchell, O. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court, and in a previous report of the case in 212 Pa. 117.
    The court in an opinion by Johnson, P. J., dismissed the bill.

      Error assigned was decree dismissing the bill..

      William 1. Schaffer, with him Ermilc B. Rhodes, for appellant.
    Since the passage of the Act of June 7, 1901, P. L. 531, every grade crossing, whether of one railroad by another, or of a highway by a railroad, comes before the court with a heavy burden of proof upon it: Mifflinville Bridge, 206 Pa. 420.
    Under the lateral railroad act the appellee has no right to cross at grade.
    The defendant claiming exemption from the sweeping provisions of the act of 1901 must be able to point to the words specifically excepting a lateral railroad from its enactments.
    The fact that the building of the road was commenced before the passage of the act of 1901, does not prevent the courts from forbidding a grade crossing where the crossing is attempted to be made after the passage of the act. The act is directed against all crossings hereafter established: Mifflinville Bridge, 206 Pa. 420 ; Penna. R. R. Co. v. Bogert, 209 Pa. 589.
    The anti-grade crossing acts will receive a liberal, not a technical, construction to effectuate their purpose — the abolition of grade crossings : B. & O. R. R. Co. v. Butler Pass. Ry. Co., 207 Pa. 406 ; Penna. R. R. Co. v. Bogert, 209 Pa. 589.

      Alex. Simpson, Jr., with him Edward II. Hall, for appellee.
    The lateral railroad Act of May 5, 1832, P. L. 501, does not prevent a lateral railroad from crossing the highways at grade: Phila. & Baltimore Cent. R. R. Co. v. Upper Darby Twp., 202 Pa. 429 ; Port v. R. R. Co., 168 Pa. 19 ; Omaha, etc., R. R. Co. v. Severin, 30 Neb. 318 ; Gray v. R. R. Co., 37 Iowa, 119.
    The Act of June 7, 1901, P. L. 531, does not apply to lateral railroads.
    If the act of 1901, covers the case of lateral railroads it does not apply to those which were established, and the right to construct which was confirmed by the court, prior to the time when the act of 1901 was passed : Phila., etc., R. R. Co. v. Upper Darby Twp., 202 Pa. 429 ; Ligonier Valley R. R. Co. v. Latrobe Borough, 216 Pa. 221.
    A lateral railroad is not required to obtain'the consent of a borough to cross the highways thereof at grade in cases where the railroad does not longitudinally occupy the highway: Pittsburg v. R. R. Co., 205 Pa. 13 ; Phila., etc., R. R. Co. v. Upper Darby Twp., 20 2Pa. 429.
    Appellant is estopped by its laches from now objecting to our right to build the lateral railroad at grade across Baltimore avenue : Com. v. Turnpike Co., 153 Pa. 47 ; Pa. Sch. Val. R. R. Co. v. Phila. & Reading R. R. Co., 160 Pa. 277 ; Potter v. Scranton Traction Co., 176 Pa. 271 ; Wenger v. Rohrer, 3 Pa. Superior Ct. 596.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

This is a bill in equity praying for an injunction to restrain the respondent company from constructing a railroad siding, later a lateral railroad, over certain streets of the borough at grade. When the case was here before on an appeal from a decree refusing a preliminary injunction, it was held, reversing the court below, that under the prayer of the supplemental bill, such preliminary injunction should have been granted: Clifton Heights v. Manufacturing Company, 212 Pa. 117. The record was then ordered to be remitted to the court below, with direction to issue a preliminary injunction restraining the respondent, a manufacturing company, from constructing a lateral railroad at grade across a public street of the borough without its consent. Unless this record presents some new facts, or a different situation, the ruling in that case must control in the decision of the present proceeding. After the record was returned to the court below, the learned judge, sitting as a chancellor, referred it to a master to take testimony, find the facts and make report as to whether the injunction should be made permanent. The master, after a full hearing and having due regard to the weight of the testimony, found as a fact that there is no physical feature in the way of constructing an undergrade crossing at the disputed point; that such a crossing is reasonably practicable and would not be injurious to the respondent company in the operation of its plant, but would rather facilitate the transfer of coal and freight from the cars to the mills. Under these findings of fact the case is stronger against the appellee than when it was here before, and we can see no good reason why the injunction should not be continued.

It is argued for the appellee, with much force and ability, that the settled policy of the law which finds expression in the decisions of the courts and in statutory regulations dealing with grade crossings, has no application to a lateral railroad, and that this question was not fully considered when the case was here before on an appeal from a preliminary injunction. The question is now squarely raised, and it must be determined whether a manufacturing company, having availed itself of the provisions of the Act of May 5, 1832, P. L. 501, under which it had undertaken to construct a lateral railroad, has a right to lay its tracks over a public street at grade without municipal consent, which in the present case has not been obtained. Under the first of the five questions propounded in the argument of learned counsel for appellee the proposition is rather ingeniously stated to be whether the lateral railroad act prevents a lateral railroad from crossing a public street at grade. This proposition might be answered in the negative without affecting the real questions involved here, which is, does the act either in express terms or by necessary implication, give a lateral railroad such a right ? The question is not what the act prevents being done, but what it authorizes to be done. It is true the act does not say that a lateral railroad majr not cross a street at grade, but what is more to the purpose, it does not say it may do so. Indeed, the language of section eight clearly shows the legislative intent to be that a lateral railroad shall not be so constructed as to obstruct or impede the free use of the highways by the public, and that when a public road is encroached upon or crossed by such a railroad, the rights of the public must be carefully guarded and the safety and convenience of the people be provided for, all of which is inconsistent with the contention that under the provisions of the act a lateral railroad may cross a public highway at will against the protest and without the consent of the municipal authorities.

• Again, it is the opinion of this court, that the Act of June 7, 1901, P. L. 531, is broad enough in scope and purpose to apply to a lateral railroad crossing a public highway at grade. &.s indicated by its title, the act relates to railroad crossings of highways, and was intended to regulate, alter and abolish grade crossings. In the first section of the act the purpose is stated to be that all crossings, hereafter established, whether of highways by railroads or railroads by highways, shall be above or below the grade thereof. This language is sufficiently comprehensive to include all kinds of railroads, and since it is intended as a protection to life and property and is a safeguard against dangers to the traveling public, there does not seem to be any good reason why it should be given such a construction as to partially defeat the purpose of its enactment. The purpose of the act was to prevent the crossing of highways by railroads or of railroads by highways at grade. The dangers incident to the operation of a lateral railroad are similar in kind and may be in degree to the dangers incident to the operation of a steam railroad. The learned court below has made a careful analysis of many sections of the act of 1901 for the purpose of showing that its provisions relate to chartered companies for general railroad purposes enjoying the right of eminent domain. It is true that many of the provisions of this act do relate to railroad companies, common carriers, incorporated as quasi public corporations, and this for the very good reason that the dangers to be avoided arise in most instances at grade crossings in the operation of steam railroads. It is equally true that the act does not in terms mention lateral railroads, and it is argued with much force that failure to name these roads is a casus omissus indicating an intention not to include them within the operation of the statute. However, it is not necessary that the act be given an interpretation at variance with the settled policy of the law relating to grade crossings, and the able argument of learned counsel has not convinced us that it should not apply to all kinds of railroads, lateral as well as steam. "We therefore hold that the act of 1901 applies to lateral railroads.

The third proposition advanced by the appellee is that even conceding the act of 1901 applies to lateral railroads, it cannot be held to apply in a case where the right to construct was confirmed by the court prior to the time when the act went into effect. This position confuses the naked authority given to construct a lateral railroad with the actual construction of the crossing. The act of 1901 applies to all crossings hereafter established, and this language has reference to the time when the crossing is actually established on the ground and ready for construction, or in fact constructed, and not to the time when a lateral railroad may have been authorized by a decree of the court under the act of 1832 to construct such a railroad. The general authority to construct a lateral railroad does not establish a crossing within the meaning of the act of 1901.

The fourth point is also without merit. It has already been indicated that the act of 1832 did not give the right to appropriate the streets of a municipality to the private use of a lateral railroad, and it necessarily follows that if the statute did not give such power, the right to make such use of a public street can only be obtained by municipal consent, and without such consent the right does not exist. Nor do we think this is a case for the application of the doctrine of estoppel or laches.

Decree reversed, bill reinstated and the record remitted with direction that the injunction be made permanent.


author: Mr. Justice Potter, Elkin, J.,

text:
    Edsall, Appellant, v. Jersey Shore Borough.

      Road law — Boroughs—Change of grade — Paving—Damages.
    Where a street railway company in laying its tracks on a borough street changes the grade of the street without authority from the borough, but a few years thereafter the borough adopts the new grade and lays a pavement on the street, evidence as to the effect of the change of grade on the value of abutting properties will be confined to the date of the adoption of the new grade by the borough, and not to the date of the construction of the railway. In a proceeding to assess damages for such a change of grade, the improvement caused by the paving may be taken into consideration.
    In a proceeding to assess damages it is proper to admit evidence that the change was a part of a general scheme of improvement.
    The borough is not bound by the acts of individual members of a borough council unless such acts are done by express authority.
    Official authority or power must be exercised not only in the manner prescribed by law and in the name of the public, but also when exercised by an official board or body, by that board or body acting as such at a meeting duly called and authorized by law and at which under the law or regular rules of procedure, particular action can be taken.
    Where a street railway company in laying its tracks changes the grade of a borough street, a profile map produced by an official member of the railway company, in a proceeding to assess damages, is properly excluded, where there is no evidence that the map had been approved by the borough, or that the borough council as a body had ever authorized the railway company to change the grade.
    In a proceeding by a property owner against a borough to assess damages for change of grade of a street, the court commits no error in rejecting evidence of the cost of raising plaintiff's house and lot to the new grade.
    Elkin/J., dissents.
    Argued March 16, 1908.
    Appeal, No. 185, Jan. T., 1907, by plaintiff, from judgment of O. P. Lycoming Co., Sept. T., 1907, No. 58, on verdict for defendant in case of Annie A. Edsall v. The Borough of Jersey Shore.
    Before Mitohell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from award of viewers.
    Before Hart, P. J.
    At the trial when P. L. Barker was on the stand the following offer was made:
    Counsel for plaintiff offer to prove by the witness on the stand that he is a civil engineer and supervisor of purchases and buildings upon the New York Central Railroad ; that it is his business to give estimates on buildings; that the Edsall building requires to be raised to grade, and to prove by the witness the cost thereof, so far as the witness can testify.
    Objected to by counsel for defendant for the reason that the criterion or measure of damages is the market value of the property, affected by the injuries complained of; that the witness is unable to give the market value of the property in question before or after the alleged change of grade, and that therefore the offer now made is irrelevant, incompetent and immaterial.
    The Court: When a witness goes upon the stand and is able to give the market value of property, both before and after the change, it is competent to show by him of what items his estimate was made up, but to introduce it as a distinct proposition, independent of the question as to whether or not the change affected the market value of the property as a whole, is a different proposition. For the present the objections are sustained, to which the plaintiff excepts, and at her request an exception is noted and bill sealed. [6]
    When F. T. Wilson, a civil engineer of Jersey Shore Borough, was on the stand he was asked this question :
    “ Q. (By Mr. Munson) Let me understand; these grades you have talked of were all between Main street and Depot street ? A. Yes, sir. Q. Now the grade past Mrs. Edsall’s property? A. I graded everything clear on up to the end of the street, graded everything for the street car company, but the council had approved of all these things, different members of it. Sometimes they would send a committee of one, two or three, whatever it might be, to settle on these things, to see whether there were any disagreements. On several occasions there were disagreements, but we settled them up by compromise or otherwise. I haven’t got my working plans here.”
    Counsel for the defendant object to so much of the testimony of the witness on the stand as refers to any approval by individual members of council ds not binding on the borough of Jersey Shore.
    The Court: We sustain that objection. One member of council cannot bind the body, unless he is authorized to do so by the body for the purpose of doing what he undertakes to do; to which the plaintiff excepts and at her request an exception is noted and bill sealed. [4]
    Thomas J. King, superintendent of construction for the Jersey Shore Electric Railway Company, was asked this question : “ Q. In what building does the council of Jersey Shore borough meet ? A. In the borough building there. Q. Were you notified of their meetings from time to time and were you invited to be there? A. I was invited to attend meetings. Q. By the borough council ? A. Some of the borough council. Q. In pursuance of such invitation were you present with your profile map on this occasion? A. Yes, sir. Q. What action did council take upon the profile map submitted by you ? ”
    Counsel for the defendant object, because the best evidence is the record of council itself.
    The Court: The objection sustained; to which the plaintiff excepts and at her request an exception is noted and bill sealed. [5]
    J. The court erred in rejecting the offer of proof by the witness Daniel Smith, which offer, objection thereto and ruling of court thereon is as follows:
    “Q. You were asked on the stand this morning the cost of raising the house of Mrs. Edsall, the actual cost of it; have you figured on the cost since ? A. I have figured on it some, yes, sir. Q. IIow much would it cost to raise the house to grade ? ”
    Counsel for defendant object to the question and ask counsel for plaintiff what he proposes to prove by the witness on the stand.
    Counsel for plaintiff offers to prove by the witness on the stand and others, the cost of raising the property of the plaintiff to grade and filling the lot.
    Eor the purpose of giving the jury information as to the damage, or approximate damage, that may have been sustained by the plaintiff.
    Counsel for defendant object to offer :
    1. Because this is not the proper means of ascertaining the plaintiff’s damages ; that evidence as to the cost of filling the plaintiff’s lot, or raising her residence, cannot be allowed as part of the damages recoverable.

      2. Because incompetent, irrelevant and immaterial.
    The Court: The objections are sustained and the evidence rejected ; to which the plaintiff excepts and at her request an exception is noted and bill sealed. [7]
    Plaintiff presented these points:
    1. If the jury find from all the evidence that the grade of Allegheny street in front of the plaintiff’s property was changed by the defendant in the fall of 1902, then the plaintiff is entitled to recover such damage as she may have suffered by reason of the change of the grade of the street as of that date. Answer: The evidence on the part of the plaintiff being that the grade of the street was changed without authority of the councils of the borough of Jersey Shore, in the fall of 1902, but that the change of grade thus made was substantially adopted by the defendant when the grading of the street was done preparatory to paving the same, in the year 1905, the damage, if any, to the property of the plaintiff occasioned by the change of grade must be estimated as of the time when the grading was completed and the pavement thereon laid, taking into consideration the market value of the property immediately before the grading was commenced in 1902, and the market value of the property when the grading and paving of the street were completed, in 1905. [1]
    2. If the jury find from the evidence that the defendant commenced the change of grade of Allegheny street in front of plaintiff property in September, 1902, and such change of grade was not completed until 1905, then the plaintiff is entitled to recover the damage which she sustained from the defendant as of the date of the commencement of said change of grade. Answer : This point is refused for the reasons above given in the answer of the court to the plaintiff’s first point. [2]
    3. That in the assessment of damages for the injuries sustained by the plaintiff’s property, by the change of grade of Allegheny: street in front of her property by the defendant, any benefits conferred upon the plaintiff’s property by reason of the subsequent paving of Allegheny street by the defendant cannot be taken into consideration in this action and such benefit is not a set off against nor can it be used in mitigation of the damages which the plaintiff is entitled to recover by virtue of the change of the grade in front of her property, which she is seeking to recover in this proceeding. Answer: This point is refused. [3]
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3) above instructions, quoting them; (4-7) rulings on evidence, quoting the bill of exceptions.

      N. M. Edwards, for appellant.
    The acts of municipal and other corporations can be proved otherwise than by their official minutes : Bohan v. Avoca Borough, 154 Pa. 404 ; Weir v. Plymouth Borough, 148 Pa. 566 ; Fisher v. South Williamsport Borough, 1 Pa. Superior Ct. 386 ; Rothwell v. California Borough, 21 Pa. Superior Ct. 234 ; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 424, 428 ; 1 Dillon on Municipal Corporations, sec. 301.
    The defendant had the unquestioned power to prevent the said street railway company from occupying any of her streets, and if she did give her consent so- to do, she could prescribe the conditions upon which such occupancy could be had: Allegheny City v. Railway Co., 159 Pa. 411.
    The damage, if any, accrued to the plaintiff in this case in 1902, when the grade in front of her premises was first changed : Jones v. Bangor Borough, 144 Pa. 638.

      G. La Hue Munson, of Candor & Munson, with him W. It. Peoples, for appellee.
    Injurious acts done or permitted to be done by individual members of a borough council to streets are simply trespasses to the property injured, for which there is a remedy at law; but not under the act which has been here invoked: Zearfoss v. Landsdale Borough, 1 Montgomery, 157.
    Plaintiff seeks to hold that a municipal corporation can be bound by the statements or admissions of its members. Such is not the law: Allegheny County Workhouse v. Moore, 95 Pa. 408.
    The law is well settled, and it is that such items as the cost of filling the lot and raising the house to grade cannot be introduced as part of the plaintiff’s damages: Chambers v. South Chester Borough, 140 Pa. 510 ; Dawson v. Pittsburg, 159 Pa. 317 ; Albertson v. Philadelphia, 185 Pa. 223 ; McCombs v. Pittsburg, 194 Pa. 348.

      April 20, 1908 :
   Opinion by

Mr. Justice Potter,

This was an issue framed upon an appeal from the report of viewers to determine the amount of damages sustained by plaintiff by reason of a change in the grade of a borough street in front of her property. The plaintiff was the owner of a house and lot located on the north side of Allegheny street in the borough of Jersey Shore. The lo't was lower than the level of the street and sloped away northward to a stream at its rear. When plaintiff built, the lot was filled so as to be above the grade of the street, which was then unpaved and only a dirt road. In 1902 the Jersey Shore Electric Railway Company laid car tracks on Allegheny street in front of plaintiff’s property, and in doing so raised the grade of the street some three feet, bringing it above the grade of plaintiff’s lot. There was no evidence that this change was officially authorized by the borough, nor did it take any part in the work. But in 1905 the borough adopted the new grade and laid a brick pavement on the street in front of plaintiff’s property at that grade. After the work of laying this pavement had been completed, plaintiff filed her petition for viewers to assess her damages caused by the change of grade. She appealed from their award and upon the trial the court below instructed the jury that the proper measure of damages was the difference between the market value of the plaintiff’s property in 1902, immediately before the change of grade, and in 1905 after the work of paving had been completed. There was conflicting evidence as to the depreciation in value, defendant’s witnesses testifying that there had been no damage suffered by plaintiff, and some saying that the change resulted in an enhancement of the value of the property. The jury found that there was no damage, and rendered a verdict for defendant.

Counsel for appellant contend that the damages should have been assessed as of the date of the change of grade in 1902,' taking the market value before and after the construction of the street railway. But there is no evidence as to the value of the property immediately after the construction work which w as done in 1902. When plaintiff was on the stand, the court confined her testimony to value after the paving was completed in 1905. Exception was taken to this ruling at the time, but it is not assigned for error, and the case stands without any testimony from which the j ary could have found the market value in 1902. Nor was there any evidence of any official action by the borough authorizing any change of grade in 1902. Eormal action by the borough, adopting the new grade, was not taken until 1905, and upon that depends the right of plaintiff to recover here. So that, when the market value in 1902 was permitted to be taken into consideration, the court below gave the plaintiff more than she was entitled to.

Counsel for appellant complains also of the fact that the improvement caused by paving was taken into consideration: But the question to be determined here was as to the depreciation in value, if any, caused to the plaintiff by the entire improvement ; and in order to ascertain this, the testimony of all the witnesses for plaintiff as to the value of the property in 1905, as affected by the change of grade, very properly took into consideration the completed paving. That was an essential part of the scheme. There was no evidence of the value of the property without the paving, and therefore nothing to sustain the plaintiff’s third point, which asked for instructions that the value of the property was to be considered without reference to the paving. Every part of a general scheme of improvement which would affect the value of the land is proper for consideration. In Bond v. Philadelphia, 218 Pa. 475, which "was a proceeding to assess damages caused by the change of grade of a street, we held that it was proper to admit evidence that the change was part of a general scheme of improvement, which included the establishment of a public park in the neighborhood.

The trial court was also clearly right in excluding testimony as to the acts of individual members of the borough council, unless coupled with proof of express authority. The general rule is thus stated in 2 Abbot on Mun. Corp. (1906) sec. 655 : “ Official authority or power must be exercised not only in the manner prescribed by law and in the name of the public, but also when exercised by an official board or bodjq by that board or body acting as such at a meeting duly called and authorized by law and at which under the law or regular rules of procedure, particular action can be taken.”

The testimony of the witness King, superintendent of construction for the street railway company, who was called for the purpose of showing by parol the action of the borough council, authorizing the laying of the railway tracks, was also properly stricken out, for the reason that he did not undertake to say his profile map was approved officially; and on cross-examination the witness said he knew of no official action of council approving any map, or on the question of any grade, and he admitted that the authority to go ahead was given by some one individual member of council, but who it was he did not remember.

. The rejection of evidence of the cost of raising plaintiff’s house and lot to the new grade is directly in accordance with the decision in the recent case of Bond v. Philadelphia, 218 Pa. 475, in which the case of Mead v. Pittsburg, 194 Pa. 392, cited by the court below in the present case, is also approved and followed. In the former case we held that where a change of grade left the lot further below the grade than before, evidence of the cost of filling so as to bring the lot to the new grade was not admissible. Our Brother Stewart said (p. 479): “ It is impossible to understand how any such inquiry as that proposed would aid the jury in ascertaining the difference in market value before and after the change. It ought to be quite as easy to determine the market value of a lot sixteen feet below the surface of the street it adjoins, as the market value of one only five feet below. ... If this be so, and we see no reason why it should not be, any inquiry as to the cost of filling would be irrelevant and of no help in the determination of the real question.”

We see nothing in the record of this case which affords appellant any just cause of complaint. The assignments of error are overruled, and the judgment is affirmed.

Elkin, J.,

dissents on the ground that the borough council accepted the responsibility for the change of' grade made bjr the street railway company by afterwards paving the street at that grade.


text:
    Lane, Appellant, v. Sayre Water Company.

      Practice, C. P. — Amendment—Trespass—Malicious seizure of goods— Abuse of civil process — Statement of claim.

    A statement of claim in an action of trespass averring a malicious seizure of goods by unlawful process cannot be amended after the expiration of six years from the time the cause of action accrued, so as to aver an abuse of civil process by an excessive seizure of goods.
    A new cause of action cannot be introduced, or new parties brought in, or a new subject-matter presented, or a fatal and material defect in the pleadings be corrected after the statute of limitations has become a bar.
    Argued March 18, 1908.
    Appeal, No. 58, Jan. T., 1908, by plaintiff, from order of C. P. Bradford Co., Dec. T., 1902, Eo. 437, refusing to take off nonsuit in case of Ella M. Lane v. Sayre Water Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass for malicious seizure of goods by unlawful process.
    Before Fanning, P. J.
    From the record it appeared that on February 5, 1906, the court granted a rule upon the defendant to show cause why an amended statement of claim should not be filed. The court discharged this rule, Fanning, P. J., filing an opinion which was in part as follows :
    The alleged cause of action arose December 10,1896. Suit was not brought until nearly six years thereafter. The statement filed averred in substance that defendant, without any right, and without any claim of any character whatever against the plaintiff, unlawfully, wrongfully, maliciously and injuriously, by means of a certain writ of attachment process, directed F. H. Sherman, constable, to attach and take possession of the property in the Athens knitting mill, consisting of machinery, goods, etc., in said statement particularly itemized. That pursuant thereto said constable did unlawfully attach, seize and take into his possession and unlawfully keep and detain the property so attached from December 10, 1896, until February 26, 1898, thereby depriving the plaintiff of the use and control of the same during that period, and that as a consequence of said unlawful attachment and unlawful seizure her financial credit was ruined and destroyed, and said property when released was rusted, corroded, worthless and her goods spoiled, by reason of which and costs and counsel fees she sustained damages to the amount of $5,000. This statement in brief avers a malicious seizure of plaintiff’s property by unlawful process.
    She now prays after a lapse of nine years to file an amended statement, setting out as a cause of action (1) a malicious, excessive, seizure and attachment of the same property, being of great value, to satisfy an alleged indebtedness of $24.21; and (2) abuse of lawful process. The grievances now complained of were not embraced in the original statement. As was said by the Supreme Court in Lane v. Sayre Land Company, 211 Pa. 290, “The plaintiff’s statement avers no malicious, excessive seizure of goods, which of itself is a good cause of action.” It has been frequently decided that amendments introducing a new cause of action will not be permitted, especially where the statute of limitations has run in favor of the defendant.
    I am of the opinion that the proposed amendment introduces new and distant causes of action, and therefore cannot be allowed.
    And now, to wit: January 8, 1907, the rule heretofore granted is hereby discharged.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the refusal of the court to take off compulsory nonsuit.

      Wm. Maxwell and EL. W. Am,erUng, for appellant.
    The amendment should have been allowed: Clymer v. Thomas, 7 S. & R. 178 ; Beeson v. Com., 13 S. & R. 249 ; Rodrigue v. Cucier, 15 S. & R. 81 ; Tassey v. Church, 4 W. & S. 141 ; Trego v. Lewis, 58 Pa. 463 ; Knapp v. Hartung, 73 Pa. 290 ; Smith v. Bellows, 77 Pa. 441 ; Com. v. Press Co., 156 Pa. 516 ; Yocum v. Zahner, 162 Pa. 468 ; Booth v. Dorsey, 202 Pa. 381; Herbstritt v. Lumber Co., 212 Pa. 495 ; Wilkinson v. North East Boro., 215 Pa. 486 ; Stewart v. Kelly, 16 Pa. 160 ; McAdam v. Orr, 4 W. & S. 550 ; Wilhelm’s Appeal, 79 Pa. 120 ; Jackson v. Gunton, 26 Pa. Superior Ct. 203 ; City of Philadelphia to use of A chuff v. Christman, 6 Pa. Superior Ct. 29 ; Adam v. Moll, 6 Pa. Superior Ct. 380 ; Fredericks v. Penna. Canal Co., 148 Pa. 317 ; Erie City IronWorks v. Barber, 118 Pa. 6 ; Cabarga v. Seeger, 17 Pa. 514 ; Stoner v. Erisman, 206 Pa. 600 ; Schmelzer v. Chester Traction Co., 218 Pa. 29.

      Rodney A. Mercior, for appellee.
    The act of March 21,1806, does not extend so far as to authorize the court to permit a declaration to be withdrawn and one for a different cause of action to be substituted : Ebersoll v. Krug, 5 Binney, 51 ; Newlin v. Palmer, 11 S. & R. 98 ; Diehl v. McGlue, 2 Rawle, 337 ; Tyron v. Miller, 1 Wharton, 11 ; Root v. O’Neil, 24 Pa. 326 ; Wilhelm’s Appeal, 79 Pa. 120 ; Wolf v. Wolf, 158 Pa. 621 ; Noonan v. Pardee, 200 Pa. 474 ; Thompson v. Chambers, 13 Pa. Superior Ct. 213 ; Royse v. May, 93 Pa. 454; Tyrrill v. Lamb, 96 Pa. 464 ; Smith’s Appeal, 108 Pa. 508 ; Murphy v. Crawford, 114 Pa. 496 ; Wildermuth v. Long, 196 Pa. 541.
    Nor may a new cause of action .... after the statute of limitations has become a bar : Shock v. McChesney, 4 Yeates, 507 ; Smith v. Smith, 45 Pa. 403 ; Farmers’, etc., Bank v. Israel, 6 S. & R. 293 ; Bricker’s Admr. v. Dull, 82 Pa. 328 ; Wood v. Anderson, 25 Pa. 407 ; Wright v. Hart, 44 Pa. 454; Stout v. Stout, 44 Pa. 457 ; First Nat. Bank v. Shoemaker, 117 Pa. 94 ; Fairchild v. Dunbar Furnace Co., 128 Pa. 485 ; Tyrrill v. Lamb, 96 Pa. 464 ; Grier v. Assurance Co., 183 Pa. 334 ; Phila. v. Ry. Co., 203 Pa. 38 ; Stoner v. Erisman, 206 Pa, 600 ; Wolf v. Wolf, 158 Pa. 621 ; Noonan v. Pardee, 200 Pa. 474 ; Riley v. Ins. Co., 12 Pa. Superior Ct. 561 ; Sener v. McCormick, 15 Pa. Superior Ct. 588.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

A brief recital of the facts will be helpful in the determination of the question raised on this appeal. Whatever cause of action there may have been as the foundation of the present suit arose in 1896. The original suit was brought November 17, 1902, almost six years after the right of action, if any, accrued. The case was tried in the court below and resulted in a compulsory nonsuit. An appeal was taken to this court, and upon consideration the ruling of the court below was affirmed March 20, 1905 : Lane v. Sayre Land Company, 211 Pa. 290. Ordinarily this would have been an end of the case because it was finally determined on that appeal that the plaintiff had failed to sustain the cause of action set out in the pleadings. The original declaration averred a malicious seizure of goods by unlawful process, but the record clearly showed that the process was both regular and lawful and we, therefore, held that the action could not be sustained. In that case, however, it was suggested by this court that while the plaintiff had mistaken her remedy in the suit brought, an action for abuse of civil process by the excessive seizure of goods might have been instituted. This suggestion was made, not for the purpose of indicating that the pleadings could then be amended by the substitution of a different cause of action, but that such a remedy might have prevailed in the first instance. The learned counsel for appellant seized upon the suggestion made by this court by making in the court below after the record had been returned, a motion to file a new declaration, amending the old one, charging abuse of civil process by the excessive seizure of goods. This motion was made February 5, 1906, nearly ten years after the right of action had accrued, and almost one year after this court had finally determined that the original suit could not prevail. In Grier v. Northern Assurance Company, 183 Pa. 331, it was held that a new cause of action cannot be introduced, or new parties brought in, or new subject-matter be presented, or a fatal and material defect in the pleadings be corrected after the statute of limitations has become a bar. That there was a fatal and material defect in the original pleadings was decided by this court when the case was here before, and we are not familiar with any authority that would permit an amendment which in effect introduces a new cause of action and cures a fatal and material defect in the pleadings after it is pointed out by this court on appeal and when the statute of limitations has become a bar. There should be a finality to all litigation, and the judgment entered by this court when the case was before us three years ago was final on all questions raised by the original pleadings. The statute of limitations is a bar to a recovery on any new suit subsequently brought, or, what amounts to the same thing, an attempt to institute a new action by amending the original pleadings. This case comes within the spirit and reason of the rule in Peterson v. Ferry Company, 190 Pa. 364 ; Garman v. Glass, 197 Pa. 101 ; Wilkinson v. North East Borough, 215 Pa. 486 ; Mahoney v. Park Steel Company, 217 Pa. 20 ; La-Bar v. Railroad Company, 218 Pa. 261.

Judgment affirmed.


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    Lane, Appellant, v. Cayuta Wheel & Foundry Company.
    Argued March 18, 1908.
    Appeal, No. 57, Jan. T., 1908, by plaintiff, from order of C. P. Bradford Co., Dec. T., 1902, No. 436, refusing to take off nonsuit in case of Ella M. Lane v. Cayuta Wheel & Foundry Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

Judgment affirmed for reasons stated in the opinion in Lane v. Sayre Water Company, No. 58, January Term, 1908, ante, p. 599.


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    Vulcanite Paving Company v. Philadelphia Rapid Transit Company, Appellant.

      Mechanic’s lien — Corporation—Street railway company — Constitutional law — Special legislation — Act of June 4, 1901, P. L. 431.
    The power house of an electric street railway is not subject to a mechanic's lien under the Act of June 4, 1901, P. L. 431.
    The method provided by sec. 46 of the act of 1901, for the enforcement of the judgment on the lien by a special fi. fa. under the Act of April 7, 1870, P. L. 58, not being a proceeding in rem so as to enforce the claim against the particular building into which the materials entered, is special legislation for this class of liens, obnoxious to the constitution, and, therefore, inoperative. The method of enforcing the lien being inoperative, the lien itself must fall.
    Argued March. 23, 1908.
    Appeal, No. 19, Jan. T., 1908, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1907, No. 376, M. L. D., making absolute rule for judgment for want of a sufficient affidavit of defense in case of Vulcanite Paving Co. v. The Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Bbowh, Mestbezat, Potteb and Elkih, JJ.
    Reversed.
    Scire facias sur mechanic’s lien, filed by a subcontractor under the Act of June 4, 1901, P. L. 431.
    Rule for judgment for want of a sufficient affidavit of defense.
    The affidavit of defense denied the right of the plaintiff to file the lien involved in the suit.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Ellis Ames Ballard, with him Boyd Lee Spahr, for appellant.
    It is clear that prior to the mechanic’s lien law of June 4, 1901, P. L. 431, a power house of a street railway company was not subject to a mechanic’s lien, and it has been expressly so decided : Oberholtzer v. Norristown Pass. Ry. Co., 16 Pa. C. C. Rep. 13 ; Christ v. Schuylkill Elec. Ry. Co., 23 Pa. C. C. Rep. 353 ; 9 Pa. Dist. Rep. 268.
    The rule has not been changed by the act of 1901: Margo v. Penna. R. R. Co., 213 Pa. 468 ; Reynolds v. Reynolds Lumber Co., 169 Pa. 626 ; Johnson Co. v. Miller, 174 Pa. 605 ; Ayars’ App., 122 Pa. 266.
    Section 46 offends against article III, sec. 7, of the constitution, prohibiting special legislation “providing or changing methods for the collection of debts.” It creates an entirely new class of debtors and provides' against them a method for the collection of debts which is not only special, but which relates to debts of a third party. The legislature cannot lawfully say that the entire property of a public service corporation shall be subject to a judgment on a mechanic’s lien as if the judgment were a personal one, and at the same time restrict a judgment against individuals or other corporations to the building against which the lien is filed.
    The claimant may urge that, admitting all this to be true, it is all a matter of execution, that its lien is valid, and that the question of enforcing it is not before the court. On the contrary, the court will not stultify itself by entering a worthless judgment: Williams v. Controllers, 18 Pa. 275 ; Foster v. Fowler, 60 Pa. 27.

      Preston K. Erdman, with him P. B. Steffan and Walter Biddle Saul, for appellee.
    Where a statute which creates a duty or liability provides no form of action or mode by which it may be enforced, the right to an appropriate action is implied in favor of the party in whose behalf the duty or liability arises : Lancaster County v. Lancaster City, 160 Pa. 411 ; Com. v. Conyngham, 66 Pa. 99 ; Ammant v. Turnpike Road Co., 13 S. & R. 210 ; Reid v. R. R. Co., 32 Pa. 257.
    The act of 1870 appears to be perfectly adequate and to provide a remedy which is entirely proper and not offensive to the provisions of the constitution. It has always been held that a court of law has full control over its own process and has the right to mold its executions in such a form as will meet the requirements of any particular case: Patterson v. Patterson, 27 Pa. 40 ; Pearson v. Morrison, 2 S. & R. 20 ; Irwin v. Shoemaker, 8 W. & S. 75.
    A law may by classification or otherwise produce some diversity of result and yet be general, for where the classification is based on genuine distinctions its expediency is for legislative determination : Stegmaier v. Jones, 203 Pa. 47 ; Com. v. Fisher, 213 Pa. 48 ; Com. v. Gilligan, 195 Pa. 504.
    April 20, 1908 :
   Opinion by

Mr. Justice Elkin,

Prior to the act of 1901 there can be no question that it was the settled policy of the law, as expressed in the decisions of our courts and by statute, that the property of a public service corporation essential to the operation of its franchises, could not be seized and sold under an ordinary writ of fieri facias. Indeed, as far back as 1825, Chief Justice Tilghman, speaking for the court in Ammant v. Turnpike Road Company, 13 S. & R. 210, held that such property was entirely exempt from levy and sale on execution. To avoid the harsh consequences of this rule and to give judgment creditors a remedy against such corporations, the Act of June 16, 1836, P. L. 755, was passed. This act provided for the sequestration of the property and earnings of a corporation in order to satisfy a judgment obtained against it. The sequestration proceedings were so cumbersome that the legislature in 1870 by statute provided a new process in the nature of a special writ of fieri facias, under which the property of a quasi public corporation may be seized and sold, but in order to do so it is necessary to strictly follow the requirements of the act. The decisions of our courts, as well as the statutes relating to the subject, are based on a policy of the law intended to keep intact the property belonging to and essential in the operation of a public service corporation, so that its creditors may not seize and sell the same piecemeal, and by thus disabling it defeat the purpose for which it was created by rendering it unable to perform its duties to the public. On this question see Turnpike Co. v. Wallace, 8 Watts, 316 ; Canal Co. v. Bonham, 9 W. & S. 27; Phila. & Baltimore Central Railroad Co.’s Appeal, 70 Pa. 355; Com. v. Railroad Co., 122 Pa. 306 ; Margo v. Railroad Co., 213 Pa. 468.

As to mechanics’ liens it was held in Foster v. Fowler, 60 Fa. 27, and Guest v. Merion Water Co., 142 Pa. 610, that under the then existing law structures essential to the operation of a quasi public corporation are not subject to lien by the mechanic and material man as other buildings are. These cases followed the rule hereinbefore stated, and held that it was against the policy of the law to permit a lien to be filed against the engine house, pumping station and other structures of a quasi public corporation. Thus the law stood until the passage of the act of 1901, and it must now be determined whether this act has changed or modified the old rule so as to permit the filing of a lien against the power house of the defendant company, erected upon a lot therein described, even if the legislature had the power to do so, when enforced in the same manner as other mechanics’ liens, which question has not been raised, and need not be determined for the purposes of the present case. It must be conceded that the definition of the words “ structure or other improvements,” used in the first section of the act, is broad enough to include the stations, power houses and other structures of a public service corporation, but the difficulty is in the remedy provided for the enforcement of the claim. Section 46 provides that where judgment is recovered upon any claim, the property named in which is essential to the business of a public service corporation, “ the claimant shall have execution thereupon as in other cases of judgment against corporations. Upon the distribution of any fund realized by a sale of the franchises, and the whole or any part of the assets of the corporations, the court shall determine the relative value of the whole improvement to the property, to recover from part or all of which the claim was filed, and the claim shall be proved with other such claims to the extent that the value thus determined bears to the whole value of the franchises and assets sold.” The ordinary process for the enforcement of a judgment' obtained on a mechanic’s lien is by levari facias which is a proceeding in rem. But as to public service corporations a different process is provided by the act of 1901, that is to say, the claimant shall have the same kind of execution process as is provided for the enforcement of judgments against such corporations. In other words, the appellee in the present case, after having obtained a judgment on the claim filed against the power house of the appellant corporation, cannot sell the same on a writ of levari facias, but must proceed by special writ of fieri facias under the act of 1870, which authorizes the seizure and sale of property essential and necessary to the existence of a quasi public corporation, not piecemeal, so as to stop its operation and defeat the object of its charter, but as a whole : Reynolds v. Lumber Co., 169 Pa. 626.

It will thus be seen that while the act of 1901 may authorize the filing of a lien against the power house of the appellant company, that lien can only be enforced by the sale of all its property, and the remedy thus provided is not an action in rem, but is in the nature of a proceeding in personam, under the special writ of fieri facias provided by the act of 1870. This is the very thing that this court said in the recent case of the Vulcanite Portland Cement Co. v. Allison Co. et al., ante, p. 382, could not be done. In that case it was held that the mechanics’ lien laws were founded upon the theory that those who furnished labor and materials in the construction of a building should have the right to file a lien against the building itself, the structure into which their labor and materials entered in preference to other general creditors as a protection in so far as the building itself and the curtilage surrounding it afforded a security, but as was plainly indicated in that opinion such liens must be restricted to the particular buildings or structures against which the claim is filed. Under the rule of that case the lien in the present case cannot be sustained. It is argued with much force that the lien may be valid even if the method of enforcing it cannot be sustained. This is not an open question, for the exact point was made in Foster v. Fowler, 60 Pa. 27, in which Chief Justice Thompson, speaking for the court, said : “ In the able argument of the learned counsel of the plaintiffs in error it was claimed that we should consider the question of lien without reference to its possible enforcement. This would be too abstract and unpractical; for the lien abstractly, is nothing, its consequences or results, everything. The fruits of a lien are what the plaintiffs in error are contending for. We cannot, therefore, look at the question of lien without reference to the legal consequences of it, and if they would necessarily contravene settled principles it is evidence that such an effect should not be given, and was not intended by the law, and if it be incapable of the practical results assigned by law to it, it is inoperative, is no lien.”

We therefore hold that the method provided by section 46 for the enforcement of the judgment, not being a proceeding in rem so as to enforce the claim against the particular building into which the materials entered, is special legislation for this class of liens, obnoxious to the constitution, and therefore inoperative. The method of enforcing the lien being inoperative, the lien itself must fall. The affidavit of defense is sufficient to prevent judgment.

Judgment reversed and record remitted to the court below, with direction to enter such judgment or make such order as the pleadings require in accordance with this opinion.


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    Freedley v. Jacoby, Appellant.

      Contract — Illegal contract — Wagering contract — Stock gambling — Affidavit of defense.

    One who undertakes to make a bet or wager for another and advances the money staked has no right of action against his principal in the event of loss.
    Where two persons agree between themselves to speculate in stocks on a margin, without any intention to buy and pay for the stocks and accept the delivery thereof, but simply to deal in the rise and fall of the market and share in the loss or gains of such dealings, one of the two persons, who has advanced the money for such purpose, cannot recover from the other the latter’s share of the loss.
    Argued March 23, 1908.
    Appeal, No. 20, Jan. T., 1908, by defendant, from order of C. P. Mo. 3, Phila. Co., June T., 1907, Mo. 5,491, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Freedley, Executor, v. William F. Jacoby.
    Before Mitchell, C. J., Bbowet, Mbstbezat, Potteb and Elkiet, JJ.
    Reversed.
    Assumpsit on a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense. ,-
    The opinion of the Supreme Court states the case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Jos. C. Heulings, with him Wm. Howard Ramsay, for appellant.
    A transaction in stocks by way of margin, settlement of differences and payment of gain or loss without intending to deliver the stocks, is a gambling or wagering operation which the law does not sanction and will not carry into effect: Waugh v. Beck, 114 Pa. 422 ; Fareira v. Cabell, 89 Pa. 89.

      Francis 8. Cantrell, Jr., with him Francis 8. Cantrell, for appellee.
    The buying and selling of stocks for speculation on margin is not gambling: Taylor & Co.’s Assigned Estate, 192

      Pa. 304; Peters v. Grim, 149 Pa. 163 ; MacDonald v. Gessler, 208 Pa. 177.
    A stakeholder may be required to repay money deposited with him as a bet, if demand be made before the happening of the event upon which the settlement of the bet depends: Bernard v. Taylor, 18 L. R. A. 859.
    Money deposited with a broker as margin for gambling transactions which are all closed and settled, may be recovered: Peters v. Grim, 149 Pa. 163.
    Money loaned on an assertion that it was to be used for a bet but not used to carry any specific bet into execution, may be recovered : Scott v. Duffy, 14 Pa. 18.
    April 20, 1908 :
   Opinion by

Mr. Justice Brown,

The defense set up by this appellant in his affidavit of defense, though most ungracious, is a legal one under the settled policy of the law, and we must so declare. He is sued on his promissory note for $4,500, given to Alexander McCoy — apparently his friend — on May 2, 1907, and payable on demand. McCoy died two days afterwards and, in resisting payment of this note, the appellant avers that it was given in settlement of the amount advanced for him by the decedent in joint gambling or wagering operations which they had carried on for a little more than a month prior to McCoy’s death. The material averments in the affidavit of defense are that in March, 1907, the appellant and McCoy agreed between themselves, each with the other, that they would engage in buying and selling stocks and other securities on what is known as “margins,” and would speculate on the rise or fall of such stocks and securities above or below the price at which they bought or sold the same ; that any profits made in such transactions were to be equally divided between them and all losses incurred to be equally borne by them ; that all moneys used in said transactions were to be and were advanced by McCoj'' for the joint account of himself and appellant; that from March 26, 1907, until the death of McCoy they had purchased and sold nearly 4,000 shares of stocks on margins, all of which had been disposed of except 1,150 shares; that on May 9, 1907, the appellant and the appellee, as executor of McCoy, had the remaining 1,150 shares transferred on the books of their brokers, one-half thereof to the account of the estate of Alexander McCoy and one-half to that of the defendant, the same having been dealt in under the agreement aforesaid ; that at no time during the period between March 26 and May 4, 1907, had McCoy or the appellant paid the purchase money for any of the said stocks, or had any portion of the same in their possession ; that it was not their intention, or the intention of either of them, at any time, to pay for the said stocks, and accept delivery of the same; that at no time had either of them any other interest in the transactions than the gain or loss which might happen upon the uncertainty of the rise or fall in the price of said stocks, and they were jointly interested only in the settlement o'f the differences in the purchase and sale or sale and purchase thereof.

The essence of the foregoing averments is that under an agreement between the appellant and McCoy they speculated jointly on the rise and fall of stocks through the agency of a firm of brokers ; that their operations were of a gambling or wagering character, as they never had any of the stock or securities in their possession, and it was not their intention that they should have and that the moneys given the brokers in these joint transactions were advanced by McCoy, for half of which the note in suit was given. Uuder these averments the plaintiff cannot now have judgment. Fareira v. Gabell, 89 Pa. 89, and Waugh v. Beck, 114 Pa. 422, are conclusive of this. In the first of these cases we adopted the following from the charge of Judge Hake in the court below : “ One who should undertake to make a bet or wager for another, and advance the money staked, would have no right of action against his principal in the event of loss.” In the second we said : “Asa general rule money loaned for the specific purpose that it shall be used by the borrower to do an act in violation of law, and has been so used, cannot be recovered back by the lender. It is not enough to defeat recovery by the lender that he knew of the borrower’s intention to illegally appropriate the loan; he must know that the borrower is purposing the specific illegal use, and must be implicated as a confederate in the transaction: Wharton, Cont. 341-2-3. ‘Where stock-jobbing is illegal, money lent for the purpose of carrying it on cannot be recovered, supposing it was lent knowingly and with the purpose of furthering the illegal act: ’ Id. 453. . . . Where a man lends money to another for the express purpose of enabling him to commit a specific unlawful act, and such act be afterwards committed by means of the aid so received, the lender is a particeps criminis.”

The court below, on the authority of MacDonald v. Gessler, 208 Pa. 177, deemed the affidavit of defense insufficient, because it contains no averment of an intention on the part of the brokers to engage in stock gambling with McCoy and Jacoby. If this were a suit by the brokers to recover from the appellant moneys advanced by them for carrying stocks for him, the view of the court below would undoubtedly be correct. But this is not such a controversy. According to the affidavit of defense, McCoy and Jacoby agreed to embark in an unlawful enterprise; that in pursuance of such agreement they did so embark under a further agreement that the funds needed should be paid, in the first instance, by one of them; that the one who so agreed to advance the moneys did advance them in the unlawful enterprise, and the claim of his personal representative is for one-half of what was so advanced. For the present the brokers are not in the case. They may get into it on the trial, if it should become necessary for the plaintiff to show that the appellant’s note does not bear the taint he himself would put upon it to avoid paying what in honor and good faith he ought to pay.

Judgment reversed and a procedendo awarded.