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

      Corporations — Officers—Removal of treasurer — Quo warranto.

    "Where a corporation has power to remove its treasurer for cause, and the treasurer is notified of the time and place of a meeting of the board of directors for the purpose of determining his guilt or innocence as to certain irregularities in his accounts, and to take action thereon, and the board of directors in the absence of the treasurer who refuses to appear, considers the charges, declares him guilty of appropriating moneys of the association to his own use and expels him, the corporation may thereafter maintain a quo warranto against the treasurer to oust him from his office and compel him to surrender the money and books of the association.
    Argued Oct. 30, 1906.
    Appeal, No. 168, Oct. T., 1906, by defendant, from judgment .of O. P. No. 2, Allegheny Co., April Term, 1906, No. 376, of ouster on quo warranto in case of Commonwealth ex rel. Tomo Lackovic v. A. C. Jankovic.
    Before Mitohell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Quo warranto to oust A. O. Jankovic from his office as treasurer of the National Croatian Society.
    Frazer, P. J., filed the following opinion:
    The petition sets out .that the National Croatian Society of the United States of America is a corporation duly created and existing under the laws of this commonwealth and that respondent was at a convention of its members duly held in September, 1904, elected as high treasurer of the corporation and after having duly qualified has continued to act as such officer. It further appears that on June 6, 1905, the board of trustees of the association called a meeting of the board of directors in accordance with the by-laws, setting forth in the call that the accounts of the respondent as treasurer of the association were irregular, incorrect and false and asking that a meeting be held for the purpose, inter alia, “ of determining the guilt or innocence of respondent and take action thereon.” In accordance with such request a meeting of the board of directors, of which respondent had due notice in writing, was held at the general office of the corporation in the city of Allegheny, at which more than a majority of the directors were present. Respondent ivas not present and refused to appear at the meeting. Upon consideration of the charges against respondent, the board of directors by a two-thirds vote in the affirmative declared him guilty of the charge of appropriating to his own use without any right or authority whatsoever certain moneys of the association, namely, “ divers and many benefits rightly due and owing to certain beneficiaries of said Society, which he has been directed as such High Treasurer to pay to the proper beneficiaries.” Thereupon the board of directors removed and expelled respondent from his office of high treasurer of the society, and upon August 12, elected as his successor in office, the relator, Tomo Lackovic, who has duly qualified and has given bond with surety in the sum of $10,000, as required by the society. It is further alleged that respondent, although notified of his expulsion from office, declines to surrender the same and deliver over to the .society the money, books and property belonging to the society in his possession as such high treasurer. To the petition respondent makes answer, admitting generally the allegations contained in the petition, but denying any irregularities or shortages in his accounts, and as further answer says, “that respondent, as a banker and forwarding agent, took credit out of certain benefits payable by said society to certain beneficiaries abroad, of certain commissions and fees for negotiating its exchange, all of which are proper and legal, and for the retaining of which there is no ground of complaint against respondent.” To the answer relator demurred.
    The question here is the legality of the society’s action in ■ removing respondent from his office of high treasurer. That it had a right to do so for sufficient cause and upon hearing, there can be no doubt. All we can consider here is the legality of the action of the board of directors. The petition alleges malfeasance in office upon the part of respondent, notice of the charges against him and of the time and place of hearing as required by the rules of the society, and Ms expulsion from office. No complaint is made of the manner of procedure against respondent except that he denies that the call for a meeting of the board of directors “ set forth any charge of irregularities or falsifications” in his books or accounts. While the notice, perhaps, in so many words, does not allege shortage and falsification in respondent’s accounts, it does allege in detail irregularities and retention by him of moneys belonging to beneficiaries of the society, and notified him of the time and place of the meeting of the board of directors “ to determine the guilt or innocence of said Jankovic and take action thereon.” This, it seems to us, was a sufficient notice to respondent of the charges against him, and, if he had any answer to make thereto, he should have attended the meeting and made his defense. Not having done so, the proceedings being regular and the charge sufficient for his removal if established, he must abide the result. The defense set up in the answer that the shortages alleged were not such but were made up of “ commissions and fees for negotiating exchange” deducted by respondent from beneficiaries in making payment to them, should have been made to the board of directors to be passed upon by them. Whether the deduction of such moneys and their retention by respondent, who was a salaried officer of the society and whose duty it was to make payment to beneficiaries, was improper, was a question for the directors to first pass upon and determine, and cannot be considered by us in this proceeding. The directors having acted in accordance with the rules and by-laws of the society, and, after hearing, having found respondent guilty of the charges preferred against him, had a right to remove him from office and elect another member in his place, and, having done so, respondent must submit to their action.
    And now, June 28,1906, the demurrer to the answer is sustained and respondent is ousted from his office as high treasurer of the National Croatian Society of the Hnited States of America, and he is further directed forthwith to pay over and deliver to relator all moneys, books and property in his hands as such officer belonging to the society.
    January 7, 1907 :

      Error assigned was the judgment of the court.

      E. W. Arthur, with him W. S. Thomas,
    for appellant, cited: Com. ex rel. v. Benevolent Society, 2 Binn. 441; Evans v. Philadelphia Club, 50 Pa. 107; Com. ex rel. v. Beneficial Society, 17 Phila. 277 ; Com. ex rel. Fischer v. German Society, 15 Pa. 251; Com. v. Guardians of the Poor, 6 S. & R. 469 ; Com. ex rel. v. Pike Beneficial Society, 8 W. & S. 247; O’Hara v. Stack, 90 Pa. 477; Society for Visitation of the Sick v. Com., 52 Pa. 125; Com. ex rel. v. Hargest, 7 Pa. C. C. Rep. 333 ; Com. ex rel. v. Lentz, 9 North. 75.

      R. T. M. McCready,

    for appellee, cited: Com. v. German Society, 15 Pa. 251; Crow v. Capital City Council, 26 Pa. Superior Ct. 411; Society for Visitation of the Sick v. Com., 52 Pa. 125 ; Com. v. McCutchen, Parsons, 205; Com. v. Beneficial Society, 8 W. & S. 247; Com. v. Union League, 135 Pa. 301; Myers v. Fritchman, 6 Pa. Superior Ct. 580.
   Per Curiam,

Judgment affirmed on the opinion of the court below.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Powell v. American Sheet & Tin Plate Company, Appellant.

      Negligence — Master and servant — Safe place — Safe tools — Erroneous charge.

    It is not an accurate definition of the duty of a master to his servant to say that he must furnish “a safe place to work and safe tools with which to work.” Employers are only required to furnish a reasonably safe place in which, and reasonably safe tools, with which to work.
    It is reversible error for the court to charge: “If there is any neglect upon the part of the employer in furnishing a safe place to work or in furnishing safe tools with which his employees are required to work, then the employer is liable.”

      Argued Oct. 31, 1906.
    January 7, 1907:
    Appeal, No. 52, Oct. T., 1906, by defendant, from judgment of O. P. No. 3, Allegheny Co., Nov. Term, 1904, No. 11, on verdict for plaintiff in case of George A. Powell v. American Sheet & Tin Plate Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Evans, J.
    The circumstances relating to the accident are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    It is the duty of an employer to give to his employees a safe place to work and safe tools with which to work, and if there is any neglect upon the part of the employer in furnishing a safe place to work or in furnishing safe tools with which his emp’toyees are required to work, then the employer is .liable, unless there is some negligence upon the part of the employee which contributes to the accident. [3]
    Verdict and judgment for plaintiff for $9,979. Defendant appealed.

      Error assigned amongst others was (3) above instruction, quoting it.

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellant.
    The instruction of the court relating to safe place and safe tools was erroneous : Ardesco Oil Co. v. Gilson, 63 Pa. 146; P., W. & B. R. R. Co. v. Keenan, 103 Pa. 124;. Wannamaker v. Burke, 111 Pa. 423; Titus v. Railroad Company, 136 Pa. 618; Service v. Shoneman, 196 Pa. 63.

      William A. Challener, with him Edmond Englert, for appellee.
   Opinion by

Mr. Justice Elkin,

It is not an accurate definition of the duty of a master to his servant to sa3>- that he must furnish “ a safe place to work and safe tools with which to work.” Employers are only required to furnish a reasonably safe place in which and reasonably safe tools with which to work. The distinction is based on substantial grounds. When a jury is instructed, without explanation or qualification, that it is the duty of an employer to furnish a safe place to work, their first inquiry very naturally would be, how safe ? Must the place be absolutely safe, free from any danger, or only reasonably safe, subject to such risks and dangers, as are necessarily incident to the employment? When we say it is the absolute duty of an employer to furnish a safe place, a jury might very properly conclude that the master was under the law as thus defined, an insurer of the safety of his servants. Such is not the law: Ardesco Oil Co. v. Gilson, 63 Pa., 146; P., W. & B. R. R. Co. v. Keenan, 103 Pa. 124; Wannamaker v. Burke, 111 Pa. 423; Titus v. Railroad Co., 136 Pa. 618; Service v. Shoneman, 196 Pa. 63. We have had occasion to review this question at some length in the recent case of Welch v. Carlucci Stone Co., 215 Pa. 34, in which the rule of reasonable safety as to place and tools was discussed and adhered to. It was there stated that the word “ safe ” as used in this connection must be understood to mean reasonably safe according to the usages, risks and dangers of the employment. There is error in that part of the charge of the learned trial judge wherein it is said, “ If there is any neglect upon the part of the employer in furnishing a safe place to work or in furnishing safe tools with which his employees are required to work, then the employer is hable.” This definition states the rule too broadly and places upon the employer a higher standard of care than the law requires. It is not “ any neglect ” on the part of the employer in furnishing a safe place to work or safe tools with which to work that makes him liable in damages in case of an accident. To hold that any neglect in furnishing either a safe place or safe tools would make an employer liable in damages is the equivalent of saying that he must provide them a place and tools absolutely safe. This is not the rule. The importance of holding the rule strictly is apparent under the facts of the case at bar. The entire negligence complained of is that the set screw which held the collar to the shaft was loose and projected a little more than it should have done when properly fastened. The mere fact that the set screw may have projected three-fourths of an inch, or an inch, further than it should have extended, when in its proper place, will not of itself convict the defendant of negligence to such a degree as to make it liable in damages. If, in the first instance, the machinery had been so constructed that the set screw had projected an inch and a half as testified by some of the witnesses for plaintiff, it would scarcely be contended that there could be a recovery in this case. In such event the appellee, being familiar with the condition of the set screw, would be bound to know the danger of coming in contact with a revolving shaft having such a projection, and if with this knowledge, he did come in contact with it and was injured thereby, appellant would not be liable in damages, because the accident would be the result of a risk incident to his employment which appellee voluntarily undertook. So, too, if the set screw had become loose as contended, and did project more than it should have done when properly fastened, and this fact was known to the appellee at the time he undertook to clean the machinery, he could not recover, because he acted with his eyes open, having full knowledge of existing conditions, and would be held to assume the risks incident thereto. There is only one theory upon which there can be a recovery in this action, which is that the machinery was not reasonably safe on account of the set screw having become loose and projecting to an unusual and dangerous distance, and that this fact was not known to the plaintiff at the time he undertook to clean the machinery. It addition to this, it must appear from the facts established or from inferences to be drawn therefrom, that the direct or proximate cause of the injury was the negligent projection of the set screw beyond the point where it was ordinarily fastened. In this connection it should be observed that even if the jury should determine that the negligent projection of the set screw was the direct or proximate cause of the accident, yet if plaintiff knew of the condition of the set screw at the time, or should have known it by the exercise of reasonable care, there could be no recovery, for clearly under such circumstances he would be held to have assumed whatever risk there was in placing his arm near the revolving shaft in cleaning the machinery.

Enough has been said to indicate within what narrow limits the right of the plaintiff to recover is confined and by what a slender thread it hangs. While we do not agree with the learned counsel for appellant that it should be decided by the court as a matter of law, yet it is clearly a case in which it is the duty of the court to give the jury definite and exact statements of the law as applicable to the facts in order that intelligent consideration may be given and correct conclusion reached. The assignments of error which relate to the inadequacy of the general charge are not sustained. As a whole the charge was a fair and intelligent presentation of the questions involved to the jury and the only error is what has already been pointed out.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Potter,

text:
    Whitney v. Haskell, Appellant.

      Pleading — Assumpsit—Statement—Waiver of tort — Deceit.
    In an action of assumpsit where the statement contains two counts, there is no misjoinder of counts, where one count alleges failure of consideration in a contract, and the other alleges a right to rescind the contract by reason of false representations which induced it.

      Practice, C. P. — Pleading—Misjoinder of counts — Demurrer.
    An objection to the inconsistency of two counts in a narr. must be taken advantage of by demurrer; it will not be inquired into on error.

      Mines and mining — Mining claims — Location—Discovery of vein — Question for jury.

    In an action to recover back the purchase money for mining claims sold by defendant to plaintiff, on- the ground that they were never legally located, the question whether there had been a discovery of a vein or lode within the limits of the claim, before its location as required by the act of Congress, is one of fact for the jury and not of law for the court.

      Evidence — Explanation of written agreement.

    Where a written agreement is qffered in evidence by defendant as part of the cross-examination of plaintiff, and witnesses are interrogated by defendant as to their understanding of its form and effect, and as to what they meant by it, and the court is not asked to construe it as a matter of law, the defendant has no right to object to the plaintiff submitting to the jury his understanding of the agreement.
    Argued Oct. 31, 1906.
    Appeal, No. 89, Oct. T., 1906, by defendant, from judgment of O. P. No. 1, Allegheny Co., Dec. T., 1902, No. 993, on verdict lor plaintiff in case of Louis B. Whitney v. Frank Haskell.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover back money paid for mining claims. Before Brown, J.
    From the record it appeared that on April 19, 1902, Frank Haskell sold to Louis B. Whitney as trustee, by a written contract, certain quartz lode gold mining claims in the Thunder Mountain mining district, state of Idaho. Plaintiff alleges that he executed this contract upon the faith and representations made to him by the defendant, and by William McKinley, the alleged agent of the defendant, that the mining properties were quartz lode gold mining claims, that they were duly located by discovery holes, and that fifty pan tests had been made showing gold running from $3.00 to $15.00 per ton. These representations the plaintiff alleged he subsequently discovered were false, and therefore claimed the right to rescind the contract and demand the return of his money.
    Plaintiff presented these points :
    1. If no vein, lode, ledge or rock in place bearing gold was ever found in the discovery holes of the Sunset or Sunset Fraction claims, the plaintiff had the right to rescind the contract for the purchase of these claims if he used due diligence to discover this fact, and rescinded it promptly on learning this fact. Answer: Affirmed. [2]
    2. In order to make a valid location of a quartz gold mining claim, a vein or lode filled with rock in place bearing gold must be discovered. It is not enough to discover detached pieces of quartz or mere bunches of quartz not in place. Answer: Affirmed. [3]
    Defendant presented these points :
    1. That the plaintiff has joined in this suit two distinct incongruous causes of action, to wit: An allegation that defendant agreed to sell to plaintiff certain mining claims as described in the agreement between the parties, and that he had no such claims to convey in which particulars no fraud or misrepresentation is alleged, but merely failure of consideration, and an allegation that plaintiff was induced to purchase the mining claims in question by false and fraudulent misrepresentations as to their richness in gold; that the first cause of action sounds in contract and the second is tort, and, therefore, cannot be joined ; and plaintiff, therefore, cannot recover. Answer: Refused. [4]
    2. That under all the evidence in the case the plaintiff is not entitled to recover upon the allegation that the consideration for the mining claims in question failed as between him and the defendant. Answer : Refused. [5]
    3. That the plaintiff has not shown any such failure of title in the defendant to the mining claims in question as would entitle him to recover on that ground. Answer ; Refused. [6]
    9. That the only material fact (a) tending to show fraud given in evidence in this case is the allegation that McKinley, alleged to be defendant’s agent, stated that fifty pan tests had been made, some showing gold at the rate of from $3.00 to $15.00 per ton, which statement is alleged to have been concurred in by the defendant at the closing of the contract as options of sale, and if the jury believe that the statement was not made as a fact within the knowledge of said McKinley, or of said defendant, but was a mere statement as to a report made by Saxman, then plaintiff cannot recover, even though the jury may find that only four pan tests were made by Sax-man, yielding very small traces of gold, unless the jury further find that Saxman never made the statements to McKinley which it is alleged McKinley made to plaintiff. Answer : (a) If this statement were correct (namely, that there is but one material fact tending to show this fraud), it would be affirmed; but, as there are several matters of fact on the question of fraud to be passed upon by the jury, it is refused. [Y]
    13. That there is no sufficient evidence of any false or fraudulent representations upon which the plaintiff is entitled to recover. Answer: Refused. [8]
    14. That under all the evidence the verdict must be for the defendant. Answer : Refused. [9]
    The court charged in part as follows :
    [The plaintiff’s right of action, or right of rescission and right of recovery, if he is entitled to recover as he claims, runs along two lines. One right upon which he claims the right to rescission is a right based upon the contract, the deed, which provided for a good title as to all parts except the government of the United States. That meant a good title, not to a mere bit of property out there, a mere waste piece of property, but to a property containing a quartz lode gold vein, or, in substance, that is the idea. ... So that there are two lines, one line based upon the deed and allegation of fraud, the other based upon representations which sound in fraud.] [10]
    Yerdict and judgment for plaintiff for $17,325. Defendant appealed.

      Errors assigned were (1) in refusing to require the plaintiff to elect whether he would proceed on the allegation as to fraudulent misrepresentation contained in his statement, or upon the allegation of the failure of consideration; (2-10) above instructions, quoting them.

      John S. Ferguson, with him D. F. Mitchell, for appellant.
    —Plaintiff cannot join in one action a count to recover money paid on the ground of failure of title to property for which the money was paid and a count to recover damages for an alleged fraudulent representation as to the property conveyed: Dodge v. Glemdenning, 10 N. Y. St. Rep. 8; McNair v. Compton, 35 Pa. 23 ; Wood v. Anderson, 25 Pa. 407; Finley v. Hambest, 30 Pa. 190 ; Noble v. Laley, 50 Pa. 281; Erie City Iron Works v. Barber, 118 Pa. 6; Penna. P. P. Co. v. Zug, 47 Pa. 480.
    Under the evidence there was no failure of title: Butte Hardware Co. v. Frank, 25 Mont. 344 (65 Pac. Repr. 1); Burke v. McDonald, 3 Idaho, 296 (29 Pac. Pepr. 98); Shreve v. Copper Bell Mining Co., 11 Mont. 309 (29 Pac. Pepr. 315); Jupiter Mining Co. v. Bodie Consolidated Mining Co., 11 Fed. Pepr. 666; Erhardt v. Boaro, 113 U. S. 527 (5 Sup. Ct. Pepr. 560).
    In form, this action was in assumpsit, yet in substance it was an action of deceit, and was based upon two distinct propositions, (a) failure of title as already discussed, and (b) fraudulent representations as to the showing of the mining claims. In order to recover on the second proposition, it was absolutely necessary for the plaintiff to show that the defendant made representations knowing them to be false, or that he made such representations without belief in their truth, or that he made them recklessly, careless whether they were true or false: Derry v. Peek, L. R. 14 Appeal Cases, 337; Lord v. Goddard, 54 U. S. 198 ; Union Pac. Ry. Company v. Barnes, 64 Fed. Repr. 80; Hindman v. Bank, 112 Fed. Repr. 931.
    The attention of the court is called to the following authorities for the principle that the fact of agency must first be proved before statements of agents are admitted as evidence: Hays & Wick v. Lynn, 7 Watts, 524 ; Jordan v. Stewart, 23 Pa. 244; Mechem on Agency, sec. 716.
    It is well established in Pennsylvania that an agent cannot recover commissions if he deals with the third party unless his principal clearly waives the rule of public policy by express agreement. This is true even if the principal received the price asked and no fraud was intended: Rice v. Davis, 136 Pa. 439 ; Cannell v. Smith, 142 Pa. 25; Pratt v. Patterson, 112 Pa. 475; Finch v. Conrade, 154 Pa. 326 ; Wilkinson v. McCullough, 196 Pa. 205; Lardner’s Est., 16 W. N. C. 51.

      William Watson Smith, with him George B. Gordon, for appellee.
    That the discovery of a vein or rock in place, bearing gold, is a condition precedent to a valid location is held by all the authorities: Upton v. Larkin, 5 Montana, 600 (6 Pac. Repr. 66); Jupiter Mining Co. v. Bodie Consolidated Mining Co., 11 Fed. Repr. 666; Waterloo Mining Co. v. Doe, 56 Fed. Repr. 685; Book v. Justice Mining Co., 58 Fed. Repr. 106; Bryan v. McCaig, 10 Colorado, 309 (15 Pac. Repr. 413); Erhardt v. Boaro, 113 U. S. 527 (5 Sup. Ct. Repr. 560) ; Eureka Case, 4 Sawyer 302; Mt. Diablo Mill & Mining Co. v. Callison, 5 Sawyer, 439.
    No vein or ledge of gold-bearing rock in place was ever discovered in either of these alleged claims.
    Where one person induces another to enter into a agreement with Mm by a material representation which is untrue, it is no defense to an action to rescind the contract that the person to whom the representation was made had the means of discovering, and might, with reasonable diligence have discovered, that it was untrue: Redgrave v. Hurd, L. R. 20 Chancery Div. 1; Lake v. Weber, 6 Pa. Superior Ot. 42; Braunschweiger v. Waits, 179 Pa. 47; Nowell v. Chipman, 170 Mass. 340 (49 N. E. Eepr. 631).
    January 7, 1907:
    If McKinley was Haskell’s agent, then Haskell was bound by his representations, and Whitney had the right to rescind the contract on learning that the representations were false, and it matters not whether or not the agent had authority from Haskell to make these false representations: Meyerhoff v. Daniels, 173 Pa. 555 ; Griswold v. Gebbie, 126 Pa. 353; Singer Mfg. Co. v. Christian, 211 Pa. 534 ; Stewart v. Climax Road Machine Co., 200 Pa. 611; Central Penna. Telephone, etc., Co. v. Thompson, 112 Pa. 118.
   Opinion by

Mr. Justice Potter,

The statement of claim in this case avers two causes of action. First, that the mining claims sold by defendant to plaintiff were never legally located, and, therefore, were not owned by defendant, and consequently there was a total failure of consideration. Secondly, the plaintiff had been induced to enter into the contract by the false representations of one McKinley, who was alleged to be defendant’s agent, and the plaintiff was, therefore, entitled to rescind the contract, and reclaim the purchase money paid.

It is urged by appellant’s counsel, that there was a misjoinder of counts. We do not think the point is well taken. Both counts here are in assumpsit. Plaintiff waives the tort and sues to recover, not damages for the deceit, but the amount of the consideration paid by him under the contract which he rescinded.

In Pearsoll v. Chapin, 44 Pa. 9, a leading case, Chief Justice Lowrie said: “ The special count claims for a rescission provided for by a contract, and the other for a recission because of the fraud; and this is something like a suit on a note, with a cautionary count for the goods sold and delivered, being the consideration of the note, so that failing on the note the party may claim for the goods given for it. We cannot say that this is wrong. One count for damages for the fraud and one for a recission would be repugnant: Cooke v. Munstone, 4 B. & P. 351. Nor was it erroneous íd the court to say that the plaintiff may waive the action of tort for the deceit, and sue in assumpsit for the money which he paid on the contract, or which the defendant has received under it. ... - If he wants more than mere rescission, he must sue for damages for the deceit.”

In Humbird v. Davis, 210 Pa. 311, our Brother Mestrezat said: “ This was assumpsit for money had and received and we think the action was properly brought. Under the finding of the jury the defendants unlawfully and fraudulently received the money of the plaintiffs and hence have no right to retain it. The plaintiffs, waiving the tort, brought this action to recover the money of which they had been fraudulently deprived. The action lies on the implied promise to repay the sum unlawfully withheld.” Citing 2 Greenleaf’s Evidence, secs. 102, 120.

But in any event, the objection comes too late. An objection to the inconsistent of two counts in a narr. must be taken advantage of by demurrer; it will not be inquired into on error : Martin v. Stille, 1 Whart. 331; Schmidt v. Owens, 10 W. N. C. 5.

In Burkholder v. Beetem, 65 Pa. 496, Justice Sharswood says : “ There were several counts in the declaration, some in form ex contractu, and one in tort. At the opening of the cause the court required the plaintiff to elect on which counts he would proceed. The plaintiff then elected to proceed on the counts in assumpsit, and excepted to the ruling of the court. This is certainly a novel proceeding. I have looked in vain. through the books for any precedent or authority to justify it. The mode of taking advantage of misjoinder of counts is by demurrer in the first instance. ... If the defendant chooses to plead in bar, and go to trial on such a declaration, there is no authority in the judge to strike out any count, or to put the plaintiff to his election between a count in assumpsit and another in tort.” The first and fourth assignments of error cannot be sustained.

The question whether there had been a discovery of a vein or lode within the limits of the claim, before its location, as required by the act of congress, was one of fact for the jury and not of law for the court. In Blue Bird Mining Co. v. Largey (U. S. C. C., D. Mont.), 49 Fed. Repr. 289, it is said : “ The first question for discussion is as to the dispute as to whether the Blue Bird vein, lode or ledge is such a one as is referred to in the mining acts of congress. . . . This is not a question of law, but of fact.”

In Book v. Mining Co. (U. S. C. C., D. Nev.), 58 Fed. Kepr. 106, it is said : “ It is always, in every case, a question of fact to be determined by a court or jury, whether a vein or lode has been discovered or exists within the limits of the particular claim or location in controversy.”

The allegation that there had been no discovery of a vein, or of rock in place, bearing .gold, upon the mining claim sold by defendant to plaintiff, was amply supported by evidence.

There was also sufficient evidence to go to the jury of the allegation, also raising a question of fact, that the statute of Idaho, requiring the sinking of a shaft of specified dimensions upon the lode within sixty days of the location, had not been complied with.

There was much conflict of evidence as to whether McKinley was the agent of Haskell, and this was properly submitted to the jury. The trial judge was of the opinion that the written agreement entered into between Whitney and McKinley was not in itself conclusive as to the question of agency, and in this we think, under the circumstances of the case, he was right. The agreement was offered in evidence by defendant as part of the cross-examination of plaintiff, and no attempt was made by defendant to stand upon it as a writing, which could not be varied or contradicted by parol evidence. The court was not asked to construe the contract as matter of law. Witnesses were interrogated by defendant as to their understanding of its form and effect, and as to what they meant by it, when they executed it. The gate having been opened by the defendant, he has no right to object because the plaintiff also submitted to the jury his understanding of the agreement. The court left it to the jury to determine whether or not the compensation referred to in the agreement was for services already rendered in the purchase of the property, or was intended to cover future services in connection therewith.

It is quite conceivable that, as is suggested, the defendant was to receive the amount named as the purchase price for the mining claims, net, so that any commission received by McKinley for making the sale must have been paid by the.purchasers. If so, such payment would not be inconsistent with his agency for the defendant, in negotiating the sale from him to plaintiff.

In the opinion refusing a new trial, the court below says: There ivas ample testimony from which the jury was warranted in finding (1) that in the sale from Haskell to Whitney, McKinley acted not for Whitney but solely for Haskell; and (2) that the compensation to McKinley (to be paid by Whitney in stock of the corporation to be organized for purchasing, developing, and operating the properties, as stated in exhibit No. 8) was either (a) simply payment by Whitney for services rendered by McKinley for Haskell as the latter’s agent in the sale to Whitney — for Haskell’s price was to net him the full $20,000 named in the contract of sale; or (b) for future services to be rendered in the business operations of said corporation.”

We can see no good reason why the court should have withdrawn the case from the jury because of this agreement, and no authorities have been found which, in principle, would require him to do so.

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


author: Per Curiam,

text:
    Thiel College’s Appeal.

      Corporations — Amendment of charter — College—Change of location — Contract right — Thiel college — Act of April 14, 1870, P. L. 1167.
    The court of common pleas of Mercer county has no jurisdiction to amend the charter of Thiel College incorporated by the special Act of April 14, 1870, P. L. 1167, by changing the corporate location from Green-ville in Mercer county to Greensburg in Westmoreland county; and this is particularly so where it appears that the college was located permanently in Mercer county in pursuance of a contract, and that parties to the contract objected to the change of location.
    In a proper case the court of common pleas has authority under the Act of April 29, 1874, sec. 42, P. L. 73, to amend the charter of a college or university.
    Argued Oct. 31, 1906.
    Appeal, No. 140, Oct. T., 1906, by Thiel College, from decree of C. P. Mercer Co., June T., 1905, No. 70, dismissing appeal to amend a charter in the Matter of the Petition of Thiel College to amend its charter.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to amend charter.
    On June 5, 1905, Thiel College of the Evangelical Lutheran Church, a corporation, created by special Act of Assembly, approved April 14,1870, P. L. 1167, filed its petition together with a copy of the charter act in the court of common pleas of Mercer county, asking for an amendment to its charter which would permit the board of trustees to change the location of the said Thiel College from Greenville, Mercer county, Pennsylvania, to or near Greensburg, Westmoreland county, Pennsylvania. The petition contained the necessary corporate action taken by the board of trustees May 25, 1905, reciting the provisions of the charter as to the location of the college at Greenville in 1871; the sense of the board that by reason of its location said college has not been successful; the action taken by the Pittsburg Synod of the Evangelical Lutheran Church, the visitatorial body having power to elect the trustees of the said college, which favored the removal of the college from Greenville under proper conditions; the offer made by the citizens of Greensburg and Westmoreland county, of $100,000 in cash and certain valuable real estate amounting to $40,000 more, to secure the location of the college there; the action of the board of trustees accepting the said offer and the approval of' the same by the Pittsburg Synod and the resolution of the board, that under these facts the best interest and welfare of the college demand its removal from Greenville, Mercer county, Pennsylvania, at or near Greensburg, Westmoreland county, Pennsylvania; and praying for the necessary amendment.
    To this petition John R. Packard and L. L. Keck on July 3, 1905, filed an answer or exceptions on behalf of themselves and such other citizens of Greenville, Pennsylvania, standing in the same relation to Thiel College, alleging that the trustees of said college in consideration of about $15,000 agreed to permanently locate the said college at Greenville, Pennsylvania, and that said Packard and Keck were contributors to the said fund. That the said permanent location was made and the money paid. That the said trustees had attempted to remove ■the said college and exceptants had filed a bill in equity and obtained a perpetual injunction restraining the same, which was affirmed by the Supreme Court of Pennsylvania, and denying the necessity or the right under the law of the removal of the said college.
    January 7, 1907:
    The court in an opinion by Williams, P. J., dismissed the petition.

      Error assigned was the decree dismissing the petition.

      J. Boyd Duff, with him W. A. Griffith, for appellant.

      Q. A. Gordon, with him Templeton, Orr & Whiteman, W. C. Pettit, H. L. Keck and J. J. Donaldson, for appellee.
   Per Curiam,

We do not go so far as to hold with the learned judge below ■that the court was without power to grant amendments to a college charter. There may have been reasons why the legislature was willing to authorize courts to grant amendments, although they could not have granted the charters themselvés, and the language of the statute is too explicit on this subject ■to be lightly disregarded. “As often as the corporations named in the first class specified in the second section of this act, including all such corporations now in existence, and colleges and universities shall be desirous of improving, amending dr altering the articles and conditions of their charter, it shall and may be lawful for such corporations respectively, in like- manner, to specify the improvements, amendments or alterations which are or shall be desired, and exhibit the same to the court of common pleas of the proper county in which said corporation is situated,” etc. : Act of April 29, 1874, sec. 42, P. L. 73. Colleges and universities would not have been included by the general words referring to the second section, and their express mention in enumerating the charters which may be amended by the courts is a plain legislative •grant.

But the court was clearly right in holding that the amend'ment desired in this case could not be granted. The power to amend is not unlimited. The court is to be satisfied that “such alterations are or will be.lawful and beneficial, and do not conflict with the requirements of this statute or of the constitution.” One of the statutory requirements is that the petition shall be presented to the court of common pleas “ of the proper county in which said corporation is situated,” which is Mercer couhty. But whether the court of Mercer county can authorize a change by which the college shall thereafter be situated and have its corporate domicile in Westmoreland is, to say the least, doubtful.

" But a still more potent objection, not at all doubtful, is that the college was located permanently in Mercer county, in pursuance of a contract to which the present objectors were parties. Their standing to object was affirmed when the case was here last: Packard v. Thiel College, 209 Pa. 349. Decree affirmed.


author: Mr. Justice Mestrezat,

text:
    Johnstin v. McKeesport, Appellant.

      Negligence — Municipalities—Defective stairway — Streets—Master and servant.

    In an action against a city to recover damages for personal injuries, it appeared that the plaintiff was employed at one of the city’s pumping stations. His injuries were caused by a fall on a defective stairway which he alleged was on the premises of the pumping station, and which the city should have therefore kept in repair. There was no evidence that the city had constructed the stairway, or that it was a part of the pumping station. It did appear that the employees at the station used the stairway going and coming from their work, but it also appeared that it was not necessary for them to use it, that there were other and safer ways, and that the plaintiff himself used other ways half of his time in going to and returning from his work. There was affirmative evidence that the stairway had been built by a former chief engineer of the city for his own particular use, without any authority or instructions from the city, and without any contribution by it of money or material. The stairway in question was on the line of a street laid out on a private plan of lots, but there was no evidence that the city had in any way ever accepted the street. Held, that the city was not liable for plaintiff’s injuries.
    Argued Oct. -31, 1906.
    Appeal, No. 135, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 872, on verdict for plaintiff in case of Eli II. Johnstin v. City of McKeesport.
    January 7, 1907:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court. Yerdict and judgment for plaintiff for $4,000. Defendant appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      W. B. Rodgers, with him W. E. Newlin,

    for appellant, cited: Keenan v. New York, etc., R. R. Co., 2 Misc. 34 (21 N. Y. Supp. 445).

      J. S. Ferguson, with him E. G. Ferguson and Calhoun & Johnson, for appellee.
   Opinion bt

Mr. Justice Mestrezat,

This is an action of trespass brought by the plaintiff to recover damages for personal injuries which he sustained in falling on a defective stairway.

The city of McKeesport is at the junction of the Monongahela and Yougbiogheny rivers. In a private plan of lots in an addition to the city, there are three streets running parallel with each other and with the Youghiogheny river. The first and nearest the river is Walnut, the second Locust and the third. Jenny Lind street. The ground rises abruptly from the river up to and beyond Jenny Lind street. Fourteenth, Fifteenth and Sixteenth streets run at right angles with the three streets just named and extend from Walnut to Jenny Lind street. Street cars are operated on Locust and Walnut streets , as far as Sixteenth street. This last named street has never been improved, but there is a path on it for some distance from Locust towards Walnut street, and then a stairway of twelve steps leads down to Walnut street. Fourteenth street can be used by pedestrians between Locust and Walnut streets. The defendant owns and operates a waterworks plant. The pumping station is on the Youghiogheny river just below Walnut street in the outskirts of the city. The Baltimore & Ohio Railroad Company’s double track line is parallel with Walnut street and between it and the pumping station. There is a stairway leading from the pumping station to the tracks of the railroad, also one leading from those tracks to Walnut street, and they are used by persons having occasion to go to or from the pumping station to the city. There is a reservoir on the top of the hill above Jenny Lind street, and the city has an underground water main from the station up Sixteenth street to the reservoir, and also a supply line on Sixteenth street alongside of the main.

The plaintiff is a man of sixty-eight years of age and resides on Coursin street, a short distance from Fifth avenue in McKeesport, and about one mile from the city’s pumping station. For two and a half years prior to May 16, 1902, he was employed at the pumping station, the last two years of his employment being as a coaler. From his home to the place of his employment, he could go by the street cars on Locust street and thence to Walnut street either by Fourteenth street or by the path and stairway on Sixteenth street, and thence to the pumping station. Instead of using the Locust street railway, he could go by the Walnut street railway to the point at which it was necessary for him to leave the street to go down to the pumping station.

On the evening of May 16, 1902, shortly before six o’clock, he left his home for the pumping station. He took the Locust street car, went to Sixteenth street, followed the path on it to the stairway, and while passing down the stairway a step or steps broke and he was thrown down and injured. He alleges 'that the stairway was erected by the city for the use of its employees at its pumping station and was part of the station premises, and that his injuries were occasioned by the city failing to keep the stairway in proper repair and proper condition for use. He further avers in his statement that Sixteenth street is a public highway, and that the stairway erected thereon formed a part of the highway and was open for the use of all persons who desired to travel along it, and that the city was negligent in not keeping it in a good condition and in proper repair.

The learned judge of the court below instructed the jury that the location of the water line on Sixteenth street was a taking of the highway by the city, in a limited sense, for water purposes, and that the line required inspection from time to time by the water department of the city. He, however, did not submit the case to the jury to determine the negligence of the city in not keeping in repair the stairway as a part of Sixteenth street. He held, and so instructed the jury, that under the circumstances of the case, “ the steps became practically part of the working plant of that water department, just as the ways around a mill and through a mill, and between connecting mills, between one part of the plant and another, a part of the system; if these were so constructed, and these steps were constructed for that general use, then it was the duty of the city, by reasonable inspection from time to time, to see that the steps were kept in reasonable repair.” The right of the plaintiff to recover for his injuries, therefore, was made to depend upon whether the city as a master had performed its duty in providing a safe place for the plaintiff, its employee, to work, and had maintained it in a reasonably safe condition by inspection and repair.

~We think the learned judge clearly erred in holding that the stairway which occasioned the plaintiff’s injuries was a part of the premises of the pumping station at which he was engaged, and that therefore the city must observe the duty of a master in keeping the stairway in repair. There was no evidence in the case whatever to justify the conclusion that the stairway on Sixteenth street was a part of the pumping station premises, or that it had been erected by the city for the use of its employees at the station, or that the city had ever directed or instructed its employees at the station to use it in going to and returning from their employment at the station. It is quite true that the plaintiff, and possibly some other witnesses, testified that the employees at the station did use the stairway in going from the city to the station and back, but that is the only testimony that would in any way tend to show that the stairway was constructed for the use of the city’s employees at the station. On the other hand, it appears by the testimony of Mr. Brisbin, who was the chief engineer of the McKeesport waterworks from 1892 to 1896, that he had this stairway constructed for his own convenience in going from one pumping station to the other, and without any authority or instructions from the city and without any contribution by it of money or material. Mr. Brisbin’s testimony is not contradicted or in any way discredited by any testimony in the case, and hence the court was not at liberty to disregard it nor permit the jury to disregard it. It must therefore be taken as a fact that the stairway in question was not only not a part of the pumping station premises required to be kept in safe condition for the city employees at the station, but that it was not erected or authorized to be erected by the city for use by its employees.

It was not necessary for the plaintiff or other city employees engaged at the pumping station to use this stairway in going to and returning from their work. There was a street car line on Walnut street as well as on Locust street which could have been used by the employees, and thereby the use of the stairway could have been obviated. If, also, the plaintiff desired to use a Locust street car in going to or returning from his work, he coidd have alighted at Fourteenth instead of Sixteenth street, passed down Fourteenth street one square to Walnut street, and thence to the station. In either way he could have avoided the use of this stairway with which he says he was familiar and which he knew to have been in use for at least the time of his services at the pumping station. As conclusive on the plaintiff that he could and did use another or other routes in going from his home to the pumping station and back is the fact, established by his own testimony, that he used this stairway “ probably half of my time ” in going to and returning from his work. It is therefore apparent that his use of the stairway was nothing more than a convenience to him and not a necessity.

It may also be claimed by the plaintiff that it was necessary for the city’s employees at the pumping station to use these steps in going from the station to the reservoir on the hill; but if that be true, it would not make the stairway on that street any more a part of the premises of the pumping station than any other street which the employees were compelled to travel in passing between those points. Besides, there is no evidence in the case to show that it was absolutely necessary for the city’s employees in going from the pumping station to the reservoir to pass along Sixteenth street. The most that can be said is that it was possibly the more direct routé, but it appears that they could have gone by another, although probably a more indirect and longer, route between the station and reservoir.

We think that, under the facts of the case, there is no ground or reason for holding that the stairway on which the plaintiff was injured was “ part of the working plant of the water department ” of the city, so as to charge the city with the duty of keeping it in safe condition for use by its employees engaged at the pumpihg station. It follows, therefore, that the defendant is not responsible to the plaintiff as its employee for the defective condition of the stairway resulting in his injuries.

The learned judge held that Sixteenth street, laid out on a private plan of lots, had never been accepted by the city, except in a limited way by laying its water mains beneath the surface. There is no evidence in the case showing that the street has ever been improved or that any work has been done upon it by the city, or that the city in any way ever recognized it as one of its streets. The fact is, as appears by the evidence, that the hillside at this point is very steep and that it would be with great difficulty that the street could be improved so that the public could use it. There is, however, no evidence sufficient to show any acceptance of the street by the city, and hence there can be no liability to the plaintiff on its part for the non-repair of the stairway which caused his injuries.

The assignments of error are sustained, the judgment of the court below is reversed, and judgment is now entered in favor of the defendant and against the plaintiff.


text:
    McGuire, Appellant, v. Barnes Safe & Lock Co.

      Negligence — Infant—Boy on wagon — Nonsuit.
    In an action against the owner of a wagon by a boy ten years old, to recover for personal injuries, it appeared that at the time of the accident plaintiff was riding on the wagon standing in a place of safety. The driver turned and cracked his whip towards plaintiff and two other boys who were with him. After the driver had made this demonstration and had turned again towards the horses, plaintiff moved from the place where he had been standing to a place of danger, advancing towards the driver for the purpose of asking him to stop, so that he, the plaintiff, could get off, and taking hold of a standard, which leaned out, he fell off, and was injured. It appeared that the boys were allowed to get oh the wagon with the consent of the driver. Held, that a nonsuit was properly entered.
    Argued Oct. 31, 1906.
    Appeals, Nos. 169 and 170, Oct. T., 1906, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1904, No. 627, on verdict for defendant in case of John McGuire, a minor, by Ms next friend and father, Peter McGuire, and Peter McGuire v. Fannie B. Newell, trading as Barnes Safe & Lock Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The court’ entered a compulsory nonsuit.
    Kennedy, P. J., subsequently refused to take off the non-suit, filing the following opinion :
    At the time of the accident, out of which this action arises, the plaintiff, a lad about eleven years of age, was, with two companions of about the same age, riding with consent of the driver, on the dray or wagon of the defendant. This wagon was constructed for the purpose of carrying safes, the body, or carrying part of which was low down, and had along its sides standards or posts, inserted in sockets or holders, at regular intervals along its sides. Towards the rear end of the wagon and on each side were suspended or attached to these standards broad boards extending down along the standards, so as to form partial sides to the wagon. The standards on the middle and front part of the wagon had no boards or sides to the same, or other protection from falling off the wagon, than the standards themselves.
    In the early part of his testimony the plaintiff stated that after they had ridden some distance on the wagon the driver cracked his whip at them, he, the plaintiff, at the time having hold of a standard at the back end of the wagon, and when the whip cracked, the horses started on a gallop, and, with a jerk, •the standard of which he had hold, fell out and he fell with it and was injured. This statement he afterwards, however, corrected, and gave in detail the circumstances of the accident, which we must take as true and correct, as follows:
    He and his companions were riding on the rear part of the wagon, standing between the boards attached to the standards, described above (which would seem to be a place of complete safety). While thus standing, and after riding some distance (a square and a half, as stated by the plaintiff), the driver, who was riding on an elevated seat in front of the wagon, turned around and • cracked his whip towards the boys and said something which he, the plaintiff, did not hear or understand. The horses then started on a gallop, giving a jerk, and the driver then turned towards his horses, watching them. The plaintiff’s companions moved towards the rear end of the wagon, but the plaintiff states that, after the driver cracked his whip and the horses started and the driver had turned around to his horses, watching them, he, the plaintiff, left the place where he was standing between these sideboards, above described, and advanced to the second or third standard from where he had been standing, to where there were no sideboards, for the purpose, he states, of asking the driver to stop the wagon until he could get off. He did not, however, ask the question, but took hold or laid his hand on the standard to which he had advanced, which, he said, leaned out a little, and then fell off and was injured, the wagon in the meantime having moved the width of two or three houses. He states that he fell off because the post leaned out. It seems plain that the plaintiff did not get off or fall off the wagon, being impelled to do so through fear of the cracking of the whip by the driver, but that, after the driver had made this demonstration and had turned again towards the horses, the plaintiff moved from a place of safety to a place of danger, advancing towards the driver for the purpose of asking him to stop, so that he, the plaintiff, could get -off the wagon; and taking hold of a standard which leaned out, he fell off and was injured.
    January 7, 1907:
    Under these circumstances, we are of the opinion that the defendant ivas not guilty of any negligence which caused the accident and resulting injuries to the plaintiff.
    The rule to show cause why the judgment of nonsuit should not be taken off is discharged.

      Error assigned was the order of the court.

      R. P. Tannehill, with him Thomas M. & Body P. Marshall, for appellants.
    There was ample testimony to go to the jury that the appellee’s driver struck at John McGuire with his whip and ordered him off his wagon, and that his falling was directly connected with and caused by the negligent or malicious actions of the driver : Enright v. Pittsburg Junction R. R. Go., 198 Pa. 166; Brennan v. Merchant, 205 Pa. 258; Rachmel v. Clark, 205 Pa. 314; Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233; Glasé v. Philadelphia, 169 Pa. 488.

      H. S. McKinley and Charles W. Jones, for appellee, were not heard.
   Per Curiam,

Judgment affirmed on the opinion of the learned judge below.


author: Mr. Justice Brown,

text:
    Kerr, Appellant, v. Kerr.

      Divorce — Alimony—Lien on real estate — Cruel and barbarous treatment.

    Alimony decreed to a wife where a divorce has been granted to the husband on the ground of cruel and barbarous treatment, is not a lien upon his real estate.
    Argued Oct. 31,1906..
    Appeal, No. 171, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 851, dismissing bill in equity in case of William A. Kerr v. Robert J. Kerr and Rose O. Kerr.
    Before Mitchell, C. J., Fell, Brown,'Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for specific performance. Before Young, J.
    The opinion of the Supreme Court states the case.
    The court dismissed the bill.

      Error assigned was decree dismissing the bill.

      J. S. Ferguson, with him E. G. Ferguson, for appellant.
    The doctrine of alimony is based upon the common-law obligation of the husband to support his wife, which is not removed by a divorce obtained by her for his misconduct: York v. York, 34 Iowa, 530 ; Harris v. Harris, 31 Gratt. (Va.) 13; Thomas v. Thomas, 41 Wis. 229; Phila. v. Thiele, 10 Phila. 205.
    The courts have held that a decree for alimony is not a money decree, but a decree to enforce performance of a duty: Ex parte Murray, 35 Fed. Repr. 496; Ex parte Perkins, 18 Cal. 60.
    A decree for alimony is not assignable: In re Robinson, L. R. 27 Ch. Div. 160; Jordan v. Westerman, 62 Mich. 170 (28 N. W. Repr. 826); Daniels v. Lindley, 44 Iowa, 567; Kempster v. Evans, 81 Wis. 247, 15 L. R. A. 391 (51 N. W. Repr. 327).
    Alimony is not a debt “ founded on a contract ” within the meaning of a statute providing for relief from such debts by a discharge in insolvency: Noyes v. Hubbard, 64 Vt. 302; 15 L. R. A. 394 (23 Atl. Repr. 727).
    Nor is it a “ debt ” within the constitutional inhibition of imprisonment for debt, and the defendant may be held to answer a rule for contempt in default of payment: Pain v. Pain, 80 No. Car. 322 ; Chase v. Ingalls, 97 Mass. 524.
    Future payments of alimony cannot be made a lien on the husband’s real estate: Perkins v. Perkins, 16 Mich. 162; Olin v. Hungerford, 10 Ohio, 268.

      William H. McClung, with him Thomas D. Chantler, for appellee.

      January 7, 1907:
   Opinion by

Mr. Justice Brown,

WiHiam'A. Kerr, the appellant, obtained a decree of absolute divorce from his wife, Rose O. Kerr, on the ground of her cruel and barbarous treatment of him. The proceeding was instituted under the Act of May 8, 1854, P. L. 644, as amended by the Act of June 25, 1895, P. L. 308, and alimony was allowed the wife, fixed at $720 per year. The decree of divorce, carrying with it the order for alimony, was made April 16, 1903, and was duly entered of record as a judgment against William A. Kerr in the judgment index of court on common pleas, No. 3, of Allegheny county. On August 25, 1905, the appellant entered into a written agreement with Robert J. Kerr, one of the appellees, to convey to him a certain lot of ground, to be free of all encumbrances. A deed was duly executed and tendered by the appellant to his vendee, who refused to accept it, for the reason that the land was encumbered by the said decree for alimony, and the single question before us on this appeal is whether that decree became a lien on the real estate of the husband. The court below, having been of opinion that it was a lien, dismissed the bill for specific performance. It was really to enforce the payment of purchase money by a vendor, for which his proper remedy would be an action in assumpsit on the common-law side of the court; but the bill may be sustained for the reason that it was necessary to bring in the divorced wife to give her an opportunity to be heard in support of her claim that the order for alimony gave her a lien on the real estate of her husband. Without giving her an opportunity to be heard, a decree adjudging that the order was not a lien would not be binding upon her.

In the act of March 13, 1815, 6 Sm. L. 286, providing for the granting of divorces a vinculo matrimonii, ho provision is made for alimony. In the supplemental act of February 26, 1817, 6 Sm. L. 405, providing for divorce from bed and board, there is a direction for the payment of alimony, but not that it shall be a lien on the real estate of the husband. By the Act of April 15,1845, P. L. 455, a decree for alimony in favor of the wife, awarded under the act of 1817, is made a lien on the respondent’s real estate, but in Groves’s Appeal, 68 Pa. 143, the act of 1845 was strictly construed, and it was held that a lien for alimony not expressly granted by it did not exist. In that case the court below held that an order for alimony pendente lite ivas a lien, but this was reversed, because statutory authority would have to be shown to make it a lien, and as the act of 1845 provided that an order for alimony becam,e a lien only after a decree in divorce had been awarded, there was no authority to make the interlocutory order a lien. The act of 1845 was followed by the act of 1854, under which the appellant obtained his divorce. It is but an additional supplement to the act of 1815, and permits a husband to be divorced from his wife on the ground of cruel and barbarous treatment on her part. There is a direction in it that alimony shall be paid to the sinning wife by the wronged husband, but it is to be noted that nothing is said about the order for alimony being a lien. This is significant, and a natural conclusion is that, though less than ten years before the legislature had not only provided for alimony for a wronged wife, but directed that the order for it should be a. lien, such provision may have been purposely withheld in the latter act when the wife is the sinning respondent. Be this as it may, there is no statutory authority for making the order a lien against the husband’s real estate, and, without such authority, it is not a lien : Groves’s Appeal, supra.

Proceedings in divorce are statutory throughout, and alimony, one of its features, is just what the statute makes it. It is a lien against real estate only when it is declared to be so b}r the statute. No reasoning by analogy nor sentiment can make it a lien, and, if the wife of the appellant cannot point to the provision in the act of 1854 making the order for her alimony a lien against her husband’s real estate, she does not have one.

It is contended by the learned counsel for the divorced wife that, under the authority of Hohman’s Appeal, 127 Pa. 209, the decree for alimony to her ought to be a lien. In that case it was held that a balance due a committee of an habitual drunkard was within the provision of the Act of March 29, 1859, P. L. 289, making a decree in equity for the payment of money a lien upon real estate, and the order for the payment of the amount due by the estate of the habitual drunkard to his committee was declared to be a lien upon his real estate. The act of June 16, 1836, confers, in express words, chancery powers upon the courts of common pleas in the care of the persons and estates of those who are non compos mentis.” “ The custody of lunatics and habitual drunkards, and Of their estates, is committed by law to 'the court of common pleas, which is a court of record. That court appoints and removes the committee at pleasure : •6 Harris, 434; and settles and adjusts the accounts of the committee. Herein it acts as a Court of Chancery, exercising a jurisdiction which in England is committed to Chancery, and exercising it in chancery forms of procedure. The final settlement of the committee’s account is a decree in chancery, and is enforced by the usual remedies:” Vincent v. Watson, 40 Pa. 306. Proceedings in divorce are not in chancery, and this order for alimony cannot be construed to be a decree in equity for the payment of money:” Groves’s Appeal, supra. If it is not, it cannot be made a lien under the act of 1859, and, having no statutory authority for its existence as a lien, it is no encumbrance on the real estate of the appellant.

The decree of the court below is reversed, and it is ordered, adjudged and decreed that, upon delivery by the appellant to Robert J. Kerr of a deed for the premises mentioned in the bill, the latter pay the appellant $37,550, with interest from August 29, 1905, the costs on this appeal and below to be paid by the appellees.


text:
    Safe Deposit & Trust Company of Pittsburg, Appellant, v. Hollinger.
    Argued Oct. 25, 1906.
    Appeal, No. 131, Oct. T., 1906, by plaintiff, from decree of O. P. No. 2, Allegheny Oo., Jan. T., 1905, No. 451, dismissing bill in equity in case of The Safe Deposit & Trust Oo. of Pittsburg, Guardian of Francis Xavier Hollinger, v. Elizabeth Hollinger.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to cancel a deed, and for an account.
    The case was originally tried before Rodgers, J., who found that by proceedings instituted under the Act of June 25,1895, P. L. 300, Francis Xavier Hollinger was declared on September 30, 1904, unable to take care of his property by reason of weakness of mind. He also found that on May 17,1904, Hollinger gave to defendant $1,000 without any consideration therefor, and that on August 5,1904, he executed and delivered to defendant a deed for certain real estate. He also found •that at the time of these gifts Hollinger was affected with senile dementia, and incapable of making a gift or executing a deed. Exceptions to the adjudication were filed, but before they were heard, Judge Rodgers left the bench. Young, J., was appointed in his place, who sustained the exceptions and found the facts to the contrary.
    January 7, 1907 :

      Error assigned was decree dismissing the bill.

      Charles W. Jones, with him Robert T. Reineman, for appellant.

      Meredith R. Marshall, with him Thos. M. & Rody P. Marshall, for appellee.
   Per Curiam,

The judges who heard this case.being equally divided in opinion, the decree is affirmed.


author: Mr. Justice Stewart,

text:
    Heron, Appellant, v. Houston
    (No. 1).

      Party walls — Constitutional law — Police power.

    The right of the legislature to confer upon municipalities the power of regulating party walls is based upon the general police power of the state, and cannot be questioned.
    Every owner of a lot of ground in a city as to which such legislation applies, has the statutory right to make a party wall between himself and his neighbor, and may enter upon the adjoining lot for that purpose, not going beyond the prescribed limits. This right cannot be taken from him by the adjoining owner building exclusively upon his own land, either to the line, or a short distance therefrom.
    Argued Oct. 31, 1906.
    Appeal, No. 95, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 969, dismissing bill in equity in case of John B. Ileron, Jr., v. James W. Houston and Leo Reed, trading as James W. Houston & Company, and S. A. Dies, Superintendent of the Bureau of Building Inspection of the city of Pittsburg.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to prevent the removal or the cutting into a wall built wholly on the defendants’ property.
    From the record it appeared that plaintiff and defendants, J. W. Houston & Company, are the owners of adjoining properties situate on Liberty avenue in the ninth ward of the city of Pittsburg, there being a three-story brick dwelling house erected upon plaintiff’s lot, and a one-story ironclad building on defendants’. Houston & Company being desirous of improving their lot by erecting thereon a three-story brick warehouse, notified the superintendent of building inspection of the city of Pittsburg of their intention to construct a party wall on the division line between the two properties, and requested that officer to appoint a time for hearing the parties as provided in the ninth section of the Act of June 7,1895, P. L. 135. Upon receipt of that notice the superintendent of building inspection fixed the time and place at which he would hear the parties, whereupon this bill was filed, denying the necessity for a party wall, averring irreparable damage in the event of such construction and denying that the act cited confers upon defendants authority to require plaintiff to submit to the erection of a party wall. An injunction is asked to restrain Houston & Company from proceeding in the matter and also to restrain the superintendent of the bureau of building inspection from asserting jurisdiction under the act of June 7,1895. The defendants demurred to the bill.
    The court in an opinion by Frazer, P. J., sustained the demurrer and dismissed the bill.

      Error assigned was the decree of the court.

      J. S. Ferguson, with him E. G. Ferguson, for appellant.
    A party wall in the legal sense of the term can be created only by virtue of a contract between the adjoining owners or by force of a statute: List v. Hornbrook, 2 W. Va. 340; Whiting v. Gaylord, 66 Conn. 337 (34 Atl. Repr. 85).
    The right to build upon adjoining property may be exercised only where the wall will be for the common benefit of both properties, and not merely for the convenience of the first builder. Therefore, it has been held that no right of encroachment exists in the case of a wall of a back building, which would not be of benefit to the adjoining owner: Rodearmel v. Hutchison, 2 Pears. 324.
    Party wall acts must be strictly construed: Hoffstot v. Voight, 146 Pa. 632; Morris v. Balderston, 2 Brewster, 459.

      January 7, 1907.
    The constitutionality of such acts as the present has been denied: Traute v. White, 46 N. J. Eq. 437 (19 Atl. Repr. 196); Wilkins v. Jewett, 139 Mass. 29 (29 N. E. Repr. 214).

      Magnus Pflaum, for appellees, cited :
    Western Nat. Bank’s App., 102 Pa. 171; Evans v. Jayne, 23 Pa. 34; Childs v. Napheys, 112 Pa. 504; Vollmer’s App., 61 Pa. 118; Deringer v. Augusta Hotel Co., 155 Pa. 609.
   Opinion by

Mr. Justice Stewart,

It is too late at this day to question abstractly the right of the legislature to confer upon municipalities the power of regulatingparty walls. Never since we have beenastate have we been without legislation of this kind; and every enactment on the subject has contained the fundamental feature here challenged —constitutional warrant for the appropriation, under municipal regulation, by one of two adjoining lot owners of a certain portion of the other’s land, for the construction of a party wall for their common enjoyment and use. This legislation has not only been acquiesced in and acted upon until it has become a settled rule of property, which it would he most dangerous to public interest to disturb, but its constitutionality has been recognized by judicial authority in unmistakable terms. “ There can be no available objection,” is the language of the court in Evans & Watson v. Jayne, 23 Pa. 34, “ to the principle upon which our laws as to party walls is based. . . . The principle is no invasion of the absolute right of property, for that absolute involves a relative, in that it implies the right of each adjoiner, as against the other, to insist on a separation by a boundary more substantial than a mathematical line.” The principle upon which these enactments rest is the general police power of the state. While it must be admitted that they are to a certain extent an interference with that exclusive enjoyment ordinarily incident to ownership of land, and arc therefore to be strictly construed: Hoffstot v. Voight, 146 Pa. 632; yet our adjudication under them are but so many repeated recognitions of their correspondence with constitutional limitations.

Nor can the other question sought to be raised by appellant be regarded as an open one. A strict construction of the statute leaves the appropriation of appellant’s property,- for purposes of a party wall, within their legitimate operation according to our own adjudications. In appeal of the Western National Bank, 102 Pa. 171, it is said: “ Every owner of a lot of ground in Philadelphia has a statutory right to make a party wall between himself and his neighbor, and may enter upon the adjoining lot for that purpose, not going beyond the prescribed limit. This right cannot be taken from him by the adjoining owner building exclusively upon his own land, either to the line or a short distance therefrom.” What is true of the law relating to Philadelphia applies with equal force to the particular statute here under consideration. The fact that the erection of the party wall here complained of will involve the appropriation and possible removal of appellant’s eastern wall, built wholly within his own line, and so contract the dimensions of his present hall or entry to his building, only furnishes another illustration of how general laws in their application may in individual cases result in apparent severity and injustice. Such apparent inequality necessarily results; but all are alike exposed to the chance, and the risk is part of the price which each pays for equal participation in all that is provided for the general safety and the common good.

The assignments of error are overruled. The decree affirmed, and the bill is dismissed at the costs of the appellant.


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    Heron, Appellant, v. Houston
    (No. 2).

      Party wall — Deed—Covenant.
    An owner of two adjoining lots executed deeds for the same to two separate parties. The first deed contained this covenant “And in case said building is over twenty feet in width and extends over the line of said lot next to F. Street, the wall so extending partly over said line shall remain so and be held as a party wall between this and the adjoining lot owner so that K., his heirs and assigns, shall not be compelled to take it down past his own pleasure.” The second deed contained the following covenant: “In case the building erected on the adjoining lot now owned by me should extend over the line of said lot and upon the lot herein described, the wall of said building so extending on said line shall remain so and bo held as a party -wall between this and the adjoining lot owner, so that K., his heirs and assigns, shall not be compelled to take down or remove said wall past his own pleasure.” Held, that the two covenants could not be construed as, in effect, an agreement between the respective vendees and their successors in title, that the wall then existing should remain as a party wall, not to be taken down except at the pleasure of K., or those claiming under him.
    February 18, 1907:
    Argued Oct. 31, 1906.
    Appeal, No. 174, Oct. T., 1906, by plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1906, No. 460, sustaining demurrer to bill in equity in case of John B. Heron, Jr., v. James W. Houston and Leo Reed, trading as James W. Houston & Company, and S. A. Dies, Superintendent of the Bureau of Building Inspection of the City of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Demurrer to bill.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree sustaining demurrer.

      J. 8. Eerguson, with him E. G. Ferguson, for appellants.

      Magnus Pflaum, for appellees.
   Opinion by

Mr. Justice Stewart,

A single circumstance distinguishes this case from Heron v. Houston, ante, p. 1, just decided. Here the two adjoining lots originally belonged to Thomas Melon, who had erected upon the one owned by appellant, the three-story brick building now standing thereon. The deed for this lot from Melon to Kaye, the appellant’s immediate predecessor in title, contained the following covenant with respect to this building: “ And in case said building is over twenty feet in width and extends over the line of said lot next to Factory Street, the wall so extending partly over said line shall remain so and be held as a party wall between this and the adjoining lot owner so that Kaye, Ms heirs and assigns, shall not be compelled to take it down past Ms own pleasure.” The deed from Melon for the adjoining unimproved lot to Ardary, the appellees’immediate predecessor in title, contained this covenant: “ In case the building erected on the adjoining lot now owned by me should extend over the line of said lot and upon the lot herein described, the wall of said building so extending on said line shall remain so and be held as a party wall between this and adjoining lot owner, so that Kaye, his heirs and assigns, shall not be compelled to- take down or remove said wall past his own pleasure.”

Appellant’s contention is that the covenant in the deed to Kaye, and the implied covenant or condition contained in the deed to Ardary, were in effect an agreement between the respective vendees and their successors in title, that the wall then existing should remain as a party wall, not to be taken down except at the pleasure of Kaye, or those claiming under him.

The occasion for these covenants was the uncertainty in the mind of the original grantor as to whether or not the building erected on the lot now owned by appellant was wholly within the limits of that particular lot. His deed was one of general warranty. His evident purpose was to secure to his grantee the right to maintain the wall as it was, even though it did'encroach upon the unimproved lot now belonging to the appellees. The only effect of the covenants was to subject the appellees’ lot to an- easement of this extent. The provision that “ the wall of the building so extending on said line shall remain so, and be held as a party wall between this and the adjoining lot owners, so that Kaye, his heirs and assigns, shall not be compelled to take down or remove said wall past his own pleasure,” certainly affects the owners of the adjoining lot to the extent indicated; that is to say, they may not require the owner of the building to remove so much of it as encroaches upon their lot; but to give it the construction contended for, would lead to the unreasonable conclusion that this wall, made a party wall, should always remain such as against any interference by the owners of the adjoining lot, but subject to removal at any time at the pleasure of Kaye or his successor’s in title. Evidently no such effect was understood or intended. Appellees, in taking down this wall, are proceeding under and in accordance with the provisions of the act of June 7, 1905. No covenant is being broken by such procedure; appellant is not being required against his own pleasure to take down the encroaching wall, but under authorization of the bureau of building inspection the appellees are proceeding with the work at their own expense, preparatory to the erection of a more adequate wall on the same site. The feature in the case to which we have adverted in no wav exempts the wall in controversy from the provisions of the act. It is not necessary to refer to the other questions raised, since they were fully considered and decided in the opinion just filed in the case of Heron v. Houston (No. 1). The demurrer was properly sustained.

The appeal is dismissed at the cost of the appellant.


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    Sterling Varnish Company, Appellant, v. Macon.

      Equity — Injunction—Contract—Master and servant — Secret process.

    On a bill in equity by an employer against former employees to restrain the latter from using secret processes which they had contracted not to use except for complainant's benefit, where the evidence shows a clear prima facie case of fraudulent breach of contract, but the trial judge thinking that the proof was not technically sufficient without evidence of the secret process, which complainant refused to offer, refuses the relief sought, and after an appeal is taken the complainant applies for a reopening of the case on the ground of material after-discovered evidence, the appellate court will reverse the decree with directions to allow the case to bo reopened for further evidence.
    Argued Nov. 1, 1906.
    Appeals, Nos. 81 and 82, Oct. T., 1906, by plaintiff, from decree of O. P. No. 3, Allegheny Co., Feb. T., 1905, Nos. 64 and 65, on bill in equity in ease of Sterling Varnish Company v. Latimer S. Macon and Cadwallader Evans, Jr., individually and as Copartners, trading as Macon-Evans Varnish Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Miller, J., specially presiding.

      January 7, 1907:
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court which limited °the injunction to the spray pipe, a small part of the relief asked.

      M. Hampton Todd and A. Leo Weil, with them Breck & Vaill and Henry C. Todd, for appellant.
    Plaintiff is entitled to effectual relief in this cause without father proof of the details of its trade secrets than they are in fact proven and admitted herein : Newbery v. James, 2 Merivale, 446; Yovatt v. Winyard, 1 Jacob & Walker, 394; Peabody v. Norfolk, 98 Mass. 452; Fralich v. Despar, 165 Pa. 24.
    An injunction may be granted to restrain the use of a trade secret and to restrain the manufacture and sale of an article so made, whether the process or secret be patentable or not, against a defendant who acquired his knowledge by violation of contract and in breach of confidence: Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. 464; Morrison v. Moat, 9 Hare, 241; Peabody v. Norfolk, 98 Mass. 452; Salomon v. Hertz, 40 N. J. Eq. 400; Vickery v. Welch, 36 Mass. 523; Morse Twist Drill, etc., Co. v. Morse, 103 Mass. 73; Anchor Electric Co. v. Hawkes, 171 Mass. 101 (50 N. E. Repr. 509); Fowle v. Park, 131 U. S. 88 (9 Sup. Ct. Repr. 658); Central Transportation Co. v. Pullman Palace Car Co., 139 U. S. 24 (11 Sup. Ct. Repr. 478); Jarvis v. Peck, 10 Paige, 118; Bryson v. Whitehead, 1 Simons & Stuart, 74; Lumley v. Wagner, 1 De Gex, Magn. & Gordon, 604.

      Johns McCleave, with him John 8. Wendt, for appellee.
   Per Curiam,

Defendants obtained knowledge of certain business secrets relative to machinery and processes, while in the employment of complainant under contract expressly stipulating that they were not to divulge any of such secrets or to make use of them or any part of them directly or indirectly except for complainant’s benefit. This bill was filed on the ground that after leaving complainant’s employment the defendants were using such secrets for their own advantage.

It was shown that they had opportunity and motive for such use; that one of them while in sole charge during the absence of the president of the company had had blue print copies of machinery and drawings made, which covered the dimensions of the complainant’s unique special apparatus, the drawings for which were kept in the company’s safe, to which he had access; that no entry was made on the company’s books as to these copies or the payment for them ; that during the same period of the president’s absence one secret formula at least for extra insulating varnish was copied by Macon in his own handwriting, and that he also had in his custody and charge at the time of the trial a large number of drawings and blue prints of drawings of all the machinery and apparatus in plaintiff’s works; and, lastly, that a portion of defendant’s machinery known as the spray pipe apparatus was a direct copy and infringement of complainant’s secret apparatus.

This summary of the facts condensed from the court’s finding, omitting details as to the resemblances, etc., shows a clear prima facie case of fraudulent breach of contract by the defendants. The learned judge below was apparently of this opinion. But complainant having refused to put in evidence its secret formulae, on the very substantial ground that to do so would destroy the secrecy which makes so large an element in its value, the judge thought that the proof was not technically sufficient, and that unless the secret processes were disclosed no relief on the vital question of infringement could be rendered effective. He, therefore, limited the injunction to the spray pipe apparatus.

It is not impossible, however, that appellant may make out satisfactory proof of its case by other evidence without the necessity of disclosure of secrets, nor is it clear that it has not done so. But we need not decide that point at present, as complainant has made application for reopening the case on the ground of material evidence discovered after the appeal was taken to this court. The importance of this evidence is unquestionable, and coming as it does from the other side it cannot be held to have been within the reach of appellant at an earlier date by any reasonable diligence. The application, therefore, should be granted.

The decree is reversed with directions to allow the case to be reopened for further evidence.