author: Mr. Justice Potter,

text:
    Ridgway Grain Company v. Pennsylvania Railroad Company, Appellant.

      Carriers — Common carrier — Bill of lading — Contract—Delivery to consignee — Waiver—Claim, for loss.

    1. In an action by consignors against a railroad company for the value of freight delivered to the consignee without surrender of the bill of lading, it is error to exclude evidence tending to show a similar course of dealing in reference to a large number of shipments made in the same way by plaintiffs, of which they had full knowledge and in which they acquiesced for more than a year, during which time they continued to make numerous deliveries to the same consignee, without protest or notice to defendant company.
    2. A provision in a shipping contract requiring claims for loss or damage to freight 1o be presented within a certain time is not available to a common carrier in case of a conversion of the goods by the carrier, and misdelivery of goods by the carrier to an unauthorized person is a conversion.

      Practice, C. P. — Affidavit of defense — Election—Appeals.
    3. The question of the necessity of an affidavit of defense in an action against a carrier for loss of goods, where plaintiff waives the tort and sues in contract, cannot be raised by the defendant on appeal, where defendant has elected to file an affidavit, and proceeded to trial under the issue raised by the pleadings.
    Argued May 3, 1910.
    Appeal, No. 43, Jan. T., 1910, by defendant, from judgment of C. P. Elk Co., Jan. T., 1908, No. 130, on verdict for plaintiffs in case of Charles O. Salberg and Herbert T. Morey, doing business as Ridgway Grain Company, v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit against a carrier for misdelivery of goods. Before Hall, P. J.
    The facts appear in the opinion of the Supreme Court.
    At the trial the court under objection and exception excluded evidence tending to show a course of dealing continuing for a long period by which goods were surrendered by the defendant to the consignee without requiring'a surrender of the bill of lading. [3-5]
    The-court refused binding instructions for the defendant. [6]
    From the record it appeared that before the trial the court made the following order:
    We are of the opinion that the statement of claim sets up a contract and a breach thereof sounding in damages in a sum certain which is easily ascertainable without the intervention of a jury, and that while the plaintiffs might at their option have brought the action ex delicto by reason of the fact that the defendant company is a common carrier, that having waived the tort and elected to proceed in an action of assumpsit alleging damages purely for breach of contract and not for the defendant’s negligence as a common carrier they are entitled to an affidavit of defense.
    It is, therefore, ordered and decreed that unless a sufficient affidavit of defense be filed by the defendant to the plaintiffs’ statement of claim within fifteen days hereafter that the rule for judgment in this case be made absolute, the amount to be liquidated by the prothonotary.
    ■ Verdict and judgment for plaintiffs for $8,074.72. Defendant appealed.

      Errors assigned among others were (3-5) rulings on evidence, quoting the bill of exceptions; (6) above instructions, quoting them, and (16) order requiring plaintiffs to file an affidavit of defense.

      Thos. H. Murray, with him C. H. McCauley, for appellant.
    Under the course of dealing shown, the carrier was not responsible: Chicago Packing, etc., Co. v. Ry. Co., 29 S. E. Repr. 698; Bank v. Phila. & Reading R. R. Co., 163 Pa. 467; Ontario Bank v. Steamboat Co., 59 N. Y. 510; Forsyth v. Oil Co., 53 Pa. 168; Hazleton Coal Co. v. Coal Co., 57 Pa. 301; Oliver v. Brophy, 18 W. N. C. 427; Wanamaker v. McCaully, 11 W. N. C. 450; Cogley v. Brown, 11 W. N. C. 224; Penna. R. R. Co. v. Stern & Spiegel, 119 Pa. 24.
    The claim not being within time called for by bill of lading, the plaintiff cannot recover: Cole v. Western Union Tel. Co., 22 N. W. Repr. 385; Weir v. Express Co., 5 Phila. 355; Southern Express Co. v. Glenn, 1 S. W. Repr. 102; Armstrong v. Ry. Co., 54 N. W. Repr. 1059; Wolf v. Western Union Tel. Co., 62 Pa. 83; Broadwood v. Express Co., 41 So. Repr. 769; Case v. Ry. Co., 39 N. E. Repr. 426; Louisville, etc., Ry. Co. v. Widman, 37 N. E. Repr. 554; Express Co. v. Caldwell, 88 U. S. 264; Walters v. Express Co., 56 Pittsburg L. J. 97.
    No affidavit of defense was required in this case as it was a case sounding in tort, which, under the old practice, would have been case and under the civil procedure act trespass: Corry v. R. R. Co., 194 Pa. 516; Osborn v. Bank, 154 Pa. 134; Hirst v. Whiteside, 30 W. N. C. 275; Krause v. R. R. Co., 20 W. N. C. 111.

      Max L. Mitchell, with him E. H. Baird, for appellees.—
    If a bill of lading is indorsed to order, carrier must require surrender of bill before delivery: Shenk v. Steam Propeller Co., 60 Pa. 109; Graff v. Bloomer, 9 Pa. 114.
    The evidence showing that the railroad had been accustomed to delivery without requiring surrender of bill of lading was properly excluded: The Delaware, 81 U. S. 579; Steamboat Co. v. Brown, 54 Pa. 77; Burger v. Farmers’ Mutual Ins. Co., 71 Pa. 422; Bank v. P. & R. R. R. Co., 163 Pa. 467.
    The consignor was guilty of no laches in enforcing claim: Hayes’s App., 113 Pa. 380; Learning v. Wise, 73 Pa. 173.
    The provision as to claim for damages applies to loss in transit: Clyde v. Hubbard, 88 Pa. 358; Porter v. Southern Express Co., 4 S. C. 135; Goodman v. Transportation Co., 6 Pa. Superior Ct. 168.

      July 1, 1910:
   Opinion by

Mr. Justice Potter,

The question here involved is the liability of defendant company for the value of seventeen car loads of grain and feed, delivered by the agent of the defendant, to the consignee, without requiring the surrender of the bills of lading. As a general principle, if the carrier delivers to anyone, even to the consignee, without requiring the production of the bill of lading, it does so at its peril. But there may be cases in which, by custom or a course of dealing between consignor and consignee, delivery has, with the knowledge and acquiescence of the consignor, been permitted without the surrender of the bill of lading. In such a case, the carrier, in the absence of notice that the bill of lading is being held as security for the purchase price of the goods, may be justified in making delivery without requiring the surrender of the bill of lading. See 1 Hutchinson on Carriers, sec. 177, where the author cites National Bank v. P. & R. R. R. Co., 163 Pa. 467. In the present case, the course of dealing between the plaintiffs and their consignee, Duke Copelin, extended over a period from June, 1905, to June, 1907, and during that time they sold him some fifty-one car loads of merchandise. There is evidence to show that all, or nearly all of these cars were delivered to the consignee without obtaining the surrender of the bills of lading. For some thirty-four of the cars, payment was made after delays varying from 15 days to 251 days. For the value of the contents of the remaining seventeen car’s, for which no payment has been made by the carrier, the plaintiffs here seek to recover from the defendant. No complaint seems to have been made to the defendant company until June, 1907, although Copelin was then indebted to plaintiffs for cars delivered in October previous. The letters of plaintiffs to Copelin, which were in evidence, not only show that they knew of the practice under which Copelin was permitted to take the cars without surrendering the bills of lading, but that they were satisfied with it, providing Copelin made pay-' merit to them within a reasonable time. What they objected to was, not the practice of delivering the cars without surrendering the bills of lading, but it was the large amount of the credit thus obtained from them by Copelin, and the length of time to which it was extended. These letters clearly show a course of dealing which accepted the fact of delivery of cars without reference to bills of lading, and under which plaintiffs charged interest upon drafts, and strove to get Copelin to reduce the amount of his indebtedness to them. Yet in the face of all this, they continued to ship additional car loads of grain to Copelin, without a word of complaint to defendant company, or any hint to it, that they desired to terminate the course of dealing which they had pursued, and would in the future rely upon the bills of lading to secure to themselves possession of the grain until it was paid for by Copelin. In North Penna. R. R. Co. v. Commercial Nat. Bank, 123 U. S. 727, it was held that a shipper was not bound by a custom to deliver live stock to a drove yard company, without the production of the bill of lading, where knowledge of the custom was not brought home to the shipper. But in the present case the court — erroneously we think — excluded an offer of evidence which tended to show, not a general custom, but a course of dealing in reference to shipments made in the same way by the plaintiffs, of which they had full knowledge and in which they acquiesced for more than a year, during which time they continued to make numerous deliveries to the same consignee, without protest, .or notice to the defendant company. Of course the terms of the bills of lading could not be departed from without the consent of the consignors; or if the rights of a bank or any other holder for value intervened, they could not be prejudiced. But here we have no third parties, as the transaction included only the consignor and the consignee. In such case, if the shippers saw fit to repeatedly waive their rights under the terms of the bill of lading, and thus set up a course of dealing entirely distinct from that contemplated by the terms of the bill of lading, they were at liberty to do so.

The theory upon which the trial judge submitted this case to the jury is not very clear. Apparently the sole question he submitted to the jury was as to plaintiffs’ knowledge of the acts of the defendant’s agent in delivering the cars to the consignee, without requiring the surrender of the bills of lading, and he instructed them that if the plaintiffs knew that fact, and failed to report it until June, 1907, the verdict should be for the defendant. Under the evidence which was submitted, the letters and the oral testimony of Morey, one of the plaintiffs, there is no room to doubt the fact of plaintiffs’ absolute knowledge of the deliveries of the cars without the surrender of the bills of lading, and their acquiescence therein. Morey testified that he knew the drafts attached to the bills of lading remained unpaid, and that he knew, or presumed, the grain had been delivered to Copelin. No other inference could be drawn from his testimony, and from the letters he wrote, to Copelin. Even upon the theory held by the trial court, it would seem that binding instructions should have been given in favor of defendant as to the fact of knowledge and acquiescence by plaintiffs.

The ruling of the court below as to the failure to make claim for the loss within thirty days of the alleged wrongful delivery was in accordance with the authorities. In 4 Elliott on Railroads (2d ed., 1907), sec. 1512, it is said: “A valid contract may be made requiring claim for loss or damages to freight to be presented in a certain manner or within a certain time, provided it is reasonable. . . - Such a stipulation is not available to a common carrier in case of conversion of the goods by the carrier.” In Chicago, etc., Ry. Co. v. Bank, 26 Ind. App. 600, the precise question arose. The carrier had delivered freight to the wrong person and the consignee brought suit for damages. Notice of the claim had not been given within thirty days after the arrival of the goods at the point of delivery, and defense was made on that ground. Wiley, J., said (pp. 603-604): “The general rule is that this condition in a bill of lading is a reasonable one, and that the giving of such notice is a condition precedent to any recovery upon the contract, and that a performance of such condition must be averred in the complaint and proved on the trial. . . . The cases so holding are based upon loss or damage in transitu, and do not relate to cases where there has been a conversion. . . . That the delivery of goods by a common carrier to a third or wrong person amounts to a conversion is so declared by many authorities.” In Forbes v. Boston & Lowell R. R. Co., 133 Mass. 154, Morton, C. J., said (p. 156): “It is settled that any misdelivery of property by a carrier or warehouseman to a person unauthorized by the owner or person to whom the carrier or warehouseman is bound by his contract to deliver it, is of itself a conversion, which renders the bailee liable in an action of tort, without regard to the question of his due care or negligence.” In Schouler on Bailments (1905), 392, it is said that “the common law, in fact, treats such misdelivery (of goods to the wrong person) as conversion, and makes the carrier suable in trover.” Citing among other cases Shenk v. Steam Propeller Co., 60 Pa. 109, where Justice Shabswood said (p. 116): “There is one point which is indisputable, that he must take care at his peril that the goods are delivered to the right person, for a delivery to a wrong person renders him clearly responsible. . . . Such a wrongful delivery has been held in many cases to amount to a conversion, and that trover may be maintained.” The tenth assignment of error is therefore overruled.

Counsel for appellant have attempted to question the ruling of the court below, as to the necessity of an affidavit of defense in this case. That question cannot however be properly raised on this appeal. If appellant had not filed an affidavit within the fifteen days allowed by the order of court, and had permitted judgment to be entered against it for want of an affidavit of defense, then an appeal from that judgment would have raised the question of the regularity of such judgment. Appellant did not follow that course, but elected to file an affidavit. No judgment was entered until after a trial and verdict under the issue raised by the pleadings. The present appeal is from the judgment entered on the verdict, and only involves such questions as were properly raised by exceptions at the trial. In Xander v. Com., 102 Pa. 434, Mr. Justice Clark said (p. 439): “An affidavit of defense, unless otherwise provided by rule is only intended to prevent judgment by default; this done, the affidavit is functus officio, its purpose is single and specific, it is no part of, nor connected with, the pleadings, it does not discharge any office, save that only for which it was designed.” In Taylor v. Beatty, 202 Pa. 120, our Brother Mestrezat said (p. 126): “The sole purpose of (an affidavit of defense), in the absence of a rule of court on the subject, is to meet the plaintiff’s demand by the allegation of a sufficient legal defense and thereby to prevent a summary judgment.” The sixteenth assignment of error is dismissed.

The first, second, third, fourth, fifth, eighth, thirteenth, fourteenth and fifteenth assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Koehler et al., Appellants, v. St. Mary’s Brewing Company, et al.

      Corporations — Sales—Sale of franchise and property — Inadequate price —Stockholders—-Rights of minority — Fraud —Equity—Injunction.

    1. Under the Act of April 17, 1876, P. L. 30, a corporation has the absolute power to sell and convey its franchises and assets for a price or consideration fixable by the corporation as exercised through the votes of the majority of its stockholders, and a court will not set aside such a sale for mere inadequacy of price or enjoin the same where it is not shown affirmatively that the majority of the stockholders acted fraudulently or coUuaively to deprive the minority stockholders of a fair distributive share of the proceeds of the sale.
    2. A minority stockholder objecting to a sale of the corporation’s franchise and property under the Act of April 17, 1876, P. L. 30, cannot be compelled to take anything but cash or its equivalent for his interest in the purchase price, and where the equivalent is a promise to pay, it must be a promise to pay within a reasonable time properly secured.
    3. Where one brewery corporation sells to another its franchises and property as authorized by the act of 1876, a minority stockholder objecting to the sale cannot be compelled to take for his stock bonds of the purchasing brewing company running for thirty years and secured only by a mortgage on the brewery plant.
    Argued May 18, 1910.
    Appeal, No. 49, Jan. T., 1910, by plaintiffs, from decree of C. P. Elk Co., April T., 1909, No. 1, dismissing bill in equity in case of Fred Koehler; Fred Koehler, guardian of Anna Belle Blass; Fred Koehler and E. W. King, trustees for Ida B. Clover, Florence M. Magenau, Ida S. King, and Anna Belle Blass; C. M. Conrad, F. A. Brevillier and Adolph L. Curtze v. St. Mary’s Brewing Company, William Kaul, John Kaul, J. K. P. Hall and George C. Simons.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed on condition.
    Bill in equity to enjoin sale of corporate property. Before Orvis, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.

      Errors assigned were refusal to admit testimony, and decree dismissing bill.

      Alex. Simpson, Jr., with him Paul Benson, J. A. Gleason, Louis Rosenzweig, Gunnison, Rilling & Fish and Fred H. Ely, for appellants.
    The act overruling the common law should be strictly construed: Esterley’s App., 54 Pa. 192; McMullen v. McCreary, 54 Pa. 230; 1 Weimer on Penna. Corp. Law, 390.
    Governed by the rule of strict construction, sec. 5 of the Act of 1876, P. L. 30, should be construed to require cash to be paid to dissenting stockholders where the corporate assets are sold to another corporation: Williamson v. Berry, 49 U. S. 495; Bigley v. Risher, 63 Pa. 152; Carr v. Tumbler Co., 207 Pa. 392; Barnett v. Phila. Market Co., 218 Pa. 649; Mason v. Pewabic Mining Co., 133 U. S. 50 (10 Sup. Ct. Repr. 224); Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42; Miners’ Ditch Co. v. Zellerbach, 37 Cal. 543; Farmers’ Loan & Trust Co. v. R. R. Co., 54 Fed. Repr. 759.
    July 1, 1910:

      John O. Johnson and William A. Stone, with them E. H. Baird and Scandrett & Barnett, for appellees.—
    The payment at the time of sale of the consideration in cash, is not a prerequisite to a valid exercise of a power to sell: Mackaness v. Long, 85 Pa. 158; Huthmacher v. Harris, 38 Pa. 491; Williamson v. Berry, 49 U. S. 495; Bigley v. Risher, 63 Pa. 152; Perin v. Megibben, 53 Fed. Repr. 86; Farmers’ Loan & Trust Co. v. Toledo, etc., R. R. Co., 54 Fed. Repr. 759.
   Opinion by

Mr. Justice Brown,

On December 22, 1908, the Elk County Brewing Company, a Pennsylvania corporation, proposed to the St. Mary’s Brewing Company, a like corporation, to purchase from it all of its franchises and property, real, personal and mixed, for the sum of $250,000. This was not to be paid in money, but in bonds of the purchasing company, running for thirty years and secured by a first mortgage on all of its property, rights and franchises. It further agreed to assume all the liabilities of the St. Mary’s Brewing Company and that said company should retain from its cash assets $35,000 for the payment of dividends to its stockholders. On or about the date that the proposition was made the board of directors of the St. Mary’s Brewing Company accepted it, subject to the approval of the stockholders, who were duly notified to meet on February 27, 1909, for the purpose of taking action upon the proposed salé. On February 26 — the day before the meeting- — this bill was filed by the appellants, minority stockholders, for the purpose of enjoining the sale. No preliminary injunction was issued, and the meeting was held, at which 2,365 votes were cast, resulting in a majority of 535 in favor of the sale. The bill avers fraud on the part of the majority stockholders and board of directors of the St. Mary’s Brewing Company and c.ollusion between them and the Elk County Brewing Company, to deprive the complainants and other minority stockholders of the St. Mary’s Brewing Company of their holdings in that company and to defraud them of their interest in the property and assets thereof. These allegations are denied in the answer, and the finding of the court is that the proposed sale is for a sufficient consideration and that there was no fraud or collusion between the defendants themselves, or any of them, or between the defendants, or any of them, and the incorporators, officers and directors of the Elk County Brewing Company. As this finding was warranted by the evidence, it is not to be disturbed.

Complaint is mad® of the court’s refusal to allow the appellants to show, in support of their allegation of fraud, that the price offered was inadequate. Gross inadequacy of price is at times a badge of fraud in connection with a sale, but in a sale like this, made by one corporation to another, in accordance with the provisions of the Act of April 17, 1876, P. L. 30, inadequacy of price, standing alone, with nothing else to support the charge of fraud and collusion, is not in itself any evidence of fraud and is not sufficient to enjoin or set aside the sale. In the absence of fraud or collusion on the part of the majority stockholders, the minority stockholders of the St. Mary’s Brewing Company are not to be heard to complain of inadequacy of price, for they knew when they became stockholders that the board of directors of the company could, with the consent of a majority of the stockholders, sell for such price as they might in good faith agree to take for the corporate property. They knew that, as to this, they would at all times be compelled to bend to the will of the majority. There is no complaint that the election of the stockholders was irregularly held or that any statutory requirement in connection with the action of the board of directors or stockholders in agreeing to sell was disregarded; and, therefore, upon a mere naked allegation of inadequacy of price, the court below could not have entertained the appellants’ bill. The disallowance of the offer to show inadequacy of price was for the following correct reason given by the court at the time of its exclusion: "As we conceive the law to be, the legislature by the act of 1876 has vested absolutely in the corporation itself the power to sell and convey its franchises and assets for a-price or consideration fixable by the corporation as exercised through the votes of the majority of its stockholders. The power of reviewing such corporate action has not been given by the legislature to the courts and they will not set aside such sale for mere inadequacy of price or enjoin the same unless it be shown affirmatively that the majority of the stockholders acted fraudulently or colhMvely to deprive the minority stockholders of a fair distributive share of the proceeds of the sale. As we now view the testimony, so far produced by the plaintiffs, they have failed to show facts or to produce testimony from which we could infer fraud or collusion; on the other hand, by the witnesses whom they have called upon the stand they have produced considerable affirmative evidence that the sale was for the general and equal benefit of all the stockholders, and that none of the majority stockholders are participating or will in the future participate in the sale or be benefited by the results thereof in any way different from that of the minority stockholders. We could not from the testimony as we now recall it draw inferences to the contrary.”

But the complaint of the appellants is not confined to fraud and collusion. It extends to that condition of the sale which requires them to take for their holdings, bonds of the purchasing company running for thirty years. As to this they manifestly ought to have been heard and proper relief should have been granted. Their stock in the St. Mary’s Brewing Company is concededly valuable, and because they are compelled to submit to a sale of the corporate property and franchises authorized and directed by the majority, are they to be compelled to take in exchange for it anything but money, or what, under the circumstances, a chancellor to whom they apply for relief ought to regard as its equivalent? Are they to be compelled to take bonds of a brewing company running for thirty years and secured only by a mortgage on the brewery plant, the value of which, long before the maturity of the bonds, may be practically swept away by a)'A wave of prohibition or wiped out by the refusal of thej court of quarter sessions to longer license it? There can be but one answer to this, and authorities numerous as they are, are hardly needed to support it.

A sale is “an agreement by which one of two contracting parties, called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the other party, who is called the buyer or purchaser, who, on his part, agrees to pay such price:” 2 Bouvier’s Law Dictionary (Rawle’s Revision), p. 943. “A sale may be defined as a contract, founded on a money consideration, by which the absolute or general property in the subject of the sale is transferred from the seller to the buyer:” 24 Am. & Eng. Ency. of Law (2d ed.), p. 1022. A sale is a transfer of the absolute or general property in a thing for a price in money: Benjamin on Sales (6th ed.), sec. 1. “A sale is a word of precise legal import, both at law and in equity. It means at all times a contract between parties, to give and to pass rights of property for money, which the buyer pays, or promises to pay, to the seller for the thing bought and sold:” Williamson v. Berry, 8 Howard, 544; Huthmacher v. Harris’s Admrs., 38 Pa. 491; Bigley v. Risher & Wilson, 63 Pa. 152. It is not to be pretended that these definitions are not applicable to a sale by one corporation to another of its franchises and property as authorized by the act of 1876, and, being so, clearly a minority stockholder objecting to the sale cannot be compelled to take anything but cash for his interest in the purchase price: Cook on Corporations (6th ed.), sec. 671; 2 Savidge on Corporations in Pennsylvania, sec. 1090. In the comparatively recent case of Carr v. Rochester Tumbler Co., 207 Pa. 392, a stockholder was held to the terms of the sale of the corporate property which gave him stock in payment of his interest because he had attended the meeting of the stockholders called to pass upon the proposed sale and had assented to the action of the majority in authorizing and directing it upon the terms stated; but we at the same time said: “It is true, and we do not know that the appellant disputes it, that a dissenting stockholder cannot be compelled to take anything but cash for his interest on the sale of the corporate property. If, however, he is one of the stockholders present and participating in, and assenting to, the action of the majority in authorizing a sale and transfer of the property, he cannot thereafter repudiate the terms on which the sale was authorized and made, and decline to accept payment for his stock in accordance with the conditions of sale.” This was not mere obiter dictum, but was intended to be an announcement that if the stockholder had not waived his right to receive cash for his stock, he could not have been compelled to accept anything else for it.

But it is contended that because in Williamson v. Berry, supra, and other cases cited by counsel for the appellees, a sale is said to be “for money which the buyer pays or promises to pay,” this sale ought not to be interfered with, as the bonds of the Elk County Brewing Company are promises to pay. This in effect means, and counsel for appellees so contend, as we understand them, that, as the act of 1876 confers upon majority stockholders unrestricted and unlimited power to sell, they may sell not only for money, but for a promise to pay running for a long period of time, and with or without proper security for fulfillment. In other words, not only the sale, but the conditions of it as to the payment of the purchase money, are for the majority alone, to which the minority must yield in the absence of fraud or collusion to cheat them. If, under this theory of the appellees, the appellants can be compelled to take bonds running for thirty years, they could be compelled to take them running for a hundred. This never was and could not have been the intention of the legislature. To give judicial sanction to the contention of the appellees would be to place minority stockholders all over the commonwealth at the mercy of the majority, who, whenever so inclined, could most seriously impair, if not entirely wipe out, the holdings of the minority by compelling them to accept in exchange therefor promises to pay which no prudent business man would accept for his property if voluntarily selling it. Fraud and collusion, when practiced, are always hard to prove, for the perpetrators generally cover their tracks, and it is cold comfort to a minority stockholder to tell him that he will not be compelled to accept anything but cash or its equivalent for his stock, if he can show fraud or collusion on the part of the majority in a sale of the corporate property.

It is to be remembered that, as to these appellants, the sale to the Elk County Brewing Company was an involuntary one. This seems to be entirely overlooked by the appellees. A promise to pay is, of course, the same as money when a seller voluntarily takes it. By his acceptance of it, or his agreement to accept it, in a contract of sale, he is estopped to say that it is not money for the purpose of sustaining or enforcing the sale; but not so when one sells involuntarily, being compelled to do so by the law, as in the present case. The right then is to get money for that which the owner is compelled to part with, or what,, under the circumstances, a chancellor ought to regard as the equivalent of money. If the equivalent is a promise to pay, it must be a promise to pay within a reasonable time, properly secured. All this is for a chancellor when he is asked to protect the legal rights of a stockholder, and from his decree an appeal will always lie for abuse of discretion.

On the reargument of this appeal counsel for appellees stated that, while they still insisted that the appellants should be compelled to take the bonds of the Elk County Brewing Company, they were willing to have the decree dismissing the bill affirmed upon condition that the appellants be paid cash for their proportionate shares of the purchase price. This was very prudent, and the decree is affirmed, upon condition that the appellees pay, or cause to be paid, to the appellants within sixty days, cash for their respective interests in the purchase price of $250,000, for the sale and transfer to the Elk County Brewing Company of the franchises and corporate property of the St. Mary’s Brewing Company, the costs below and on this appeal to be paid by the appellees.


author: Mr. Justice Stewart,

text:
    The Aspinwall-Delafield Company v. The Borough of Aspinwall, Appellant.

      Municipalities — Boroughs — Annexation — Building lots — Sewers—■ Contracts — Voidable contracts — Ratification.
    1. A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of corporate powers.
    2. Where as an incident of the annexation oí a tract of building lots, including a private sewerage system, to a borough a written agreement is entered into between the owner of the lots and the borough authorities whereby the sewer is to pass under the control and ownership of the borough subject to the exemption of certain of the lots from any sewerage connecting charge, the borough cannot, after decree of annexation and acceptance of the sewer, refuse to allow the use of the sewer to the exempted lots except on payment of a connecting charge, on the ground that the resolution authorizing the agreement never received the approval of the burgess, and was therefore void, being legislative in character.
    3. In such a case, the right of the owner to protection against the threatened action of the borough does not depend upon the contract between the plaintiff owner and the borough; but rests upon the fact that the exclusive ownership of the sewer before the annexation was in the plaintiff and that the rights reserved by the grant remained in the plaintiff the same as before the annexation. It is the borough that must assert the contract, not the plaintiff, for independent of the contract the borough has no right in the sewer whatever.

      Argued May 4, 1910.
    Appeal, No. 45, Oct. T., 1910, by defendant, from decree of C. P. No. 4, Allegheny Co., Third T., 1908, No. 447, granting an injunction in case of the Aspinwall-Delafield Company v. Borough of Aspinwall.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill for an injunction. Before Swearingen, P. J.
    On September 25, 1905, the borough of Aspinwall annexed to it land of the Aspinwall-Delafield Company laid out in building lots and immediately adjoining the borough. By a contract entered into by the parties, the sewer which the Aspinwall-Delafield Company had started to erect was on completion to become the property of the borough, subject to the continued right of the company and its assigns of sewering therein, free of any charge for connecting 195 out of 395 lots embraced in the annexed territory. The company constructed the sewer at a cost of $20,000, and on completion gave the borough a deed therefor. Nearly three years later, in April, 1908, the borough attempted to repudiate this sewer contract, on the ground that the ordinance authorizing it was irregular, not being signed by the burgess, and threatened to collect connecting charges under an old ordinance from some of the owners of the 195 lots expressly exempted.

      Error assigned was decree of court.

      W. A. Stone, of Stone & Stone, and Albert P. Meyer, for appellant.
    As the ordinance was a legislative act and irregular, the borough was not bound: Long v. Lemoyne Boro., 222 Pa. 311.
    The borough is not estopped: Bradford v. Telephone, etc., Co., 206 Pa. 582.

      James O. Marks, for appellee.
    The borough ratified the contract: Tarentum Boro. v. Moorhead, 26 Pa. Superior Ct. 273; Franklin v. Hancock, 204 Pa. 110.

      July 1, 1910:
    The borough is estopped: Argenti v. San Francisco, 16 Cal. 255; Pittsburg, etc., R. R. Co. v. Altoona, etc., R. R. Co., 196 Pa. 452; Addyston Pipe & Steel Co. v. Corry, 197 Pa. 41; Chapman v. Douglass County, 107 U. S. 348 (2 Sup. Ct. Repr. 62); Hitchcock v. Galveston, 96 U. S. 341; Phila. v. Gilmartin, 71 Pa. 140; Jordan v. Ry. Co., 25 Pa. Superior Ct. 564; Ephrata Water Co. v. Ephrata Boro., 16 Pa. Superior Ct. 484; Allegheny City v. McClurkan & Co., 14 Pa. 81; Bradford v. N. Y. & Pa. Tel. & Tel. Co., 206 Pa. 582; Moore v. New York, 73 N. Y. 238; Maher v. Chicago, 38 Ill. 266; Athens v. Georgia R. R. Co., 72 Ga. 800.
    If the borough repudiates the contract, it cannot collect connecting charges: Sterling's App., 111 Pa. 35; Shinzel v. Bell Tel. Co., 31 Pa. Superior Ct. 221; Sewerage Co. v. Schmidt, 22 Montg. 164; Bowser v. Phila., 41 Pa. Superior Ct. 515.
   Opinion by

Mr. Justice Stewart,

By the mere act of annexation, whereby the land of the plaintiff company became part of the borough, no property rights were disturbed; the plaintiff lost nothing in the way of property, and the defendant acquired nothing. The ownership of the sewer which the plaintiff company had constructed on its own land, and at its own expense, was unaffected. Without more, the plaintiff company would have had an undoubted right, after annexation as before, to use and enjoy the sewer, subject to the police regulations of the borough, for the sewering of its 395 lots, and could have excluded all others therefrom, or admitted them to the privilege on its own terms. By virtue of a written agreement, however, between the company and the borough authorities, the sewer, upon the annexation being complete, was to pass under the control and ownership of the borough, subject to the continued right of the company, and its assigns, of sewering therein, free of any connecting charge, 195 of the 395 lots embraced in the annexed territory. A decree of annexation followed September 25, 1905, and thereupon the sewer which the plaintiff company had constructed at a cost of upwards of $20,000, passed to the borough, and became part of the general borough system. The borough ordinance passed some five years before, provided that anyone desiring to connect his property with any sewer owned or controlled by the borough, should first pay to the borough treasurer a minimum charge of $35.00 for such permission. Can the borough, in face of its positive agreement to exempt these 195 lots from this connecting charge, and its acceptance of the sewer system which was turned over to it with this express reservation, refuse to allow the use of the sewer to these lots except on payment of the charge prescribed in the ordinance? This states the question. It is unnecessary to recite all that is embraced in the agreement, since it is only the matter of the sewer that here concerns us. A claim on the part of the borough, is that the agreement though executed by the proper borough authorities, under a resolution unanimously adopted at a regular meeting of council, was void, because it lacked the approval of the burgess. The point is made that the resolution was a legislative, as distinguished from a ministerial act, and that therefore approval by the burgess was necessary to make it valid. That it was legislative in its character may be conceded; and were this an effort to enforce an executory contract resting on no other authority, the infirmity of the resolution would be a serious obstacle in the way. But that is not this case. Here we have a contract amply, within the scope of the powers of the borough authorities, fully executed. Under this contract the borough is now, and has been for the last five years, in full control and ownership of the sewer which had been the exclusive property of the plaintiff company. Through it, the borough is supplying a municipal want, and deriving revenue therefrom, since it receives from each connection therewith the fixed charge. The plaintiff company has surrendered the property it covenanted to turn over to the borough, under the agreement, and the borough in return has done all that it covenanted to do in order to entitle it to the surrender. The agreement is therefore executed. Now shall the borough be required to observe and keep the conditions on which it received the property, or shall it be allowed to keep the property and repudiate the conditions? Shall it be allowed to retain all the benefits it received under the contract, and not only escape its own obligation under the contract, but defeat the reserved rights of the other party thereunder, by an attempted disaffirmance of the contract on the ground that the resolution authorizing it lacked the approval of the burgess? The contention on the part of the borough assumes that the contract was void. This is a mistake. A void contract is one which offends against public law or policy, or is without the scope of proper authority. Nothing of the kind can be affirmed with respect to this contract; it was amply within the scope of corporate authority, for the power to provide a sewer for the borough is a legitimate municipal function; the manner of providing it, whether by construction or purchase, is simply a matter of discretion. The defect in the resolution which authorized this contract was its want of regularity. Had it been approved by the burgess, its entire sufficiency could not have been questioned. It follows that the contract made thereunder was not void, but simply voidable and susceptible of ratification. “A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of corporate powers, but not otherwise:” 1 Dillon on Municipal Corporations, sec. 463. The distinction is not unimportant, for however true it may be that a court of equity cannot interpose to give a void contract, or any part of it, validity, yet with respect to contracts intra vires, but voidable because of some irregularity appearing, the rule is very different. Rights very frequently arise under contracts in themselves unenforcible, which the courts will protect. And this case is a fair illustration. “Municipalities as well as private corporations, must account for money or other property applied by their officers to authorised uses, although the money or property so applied was received under an agreement which is wholly void:” Morawetz on Corporations, sec. 718, cited "approvingly in Dillon on Municipal Corporations, sec. 444; Allegheny City v. McClurkan & Co., 14 Pa. 81. “Wholly void” in the text is used in the sense of the contract being unenforcible; and in the cases cited, the contracts considered were of like significance. In this connection we find nothing more appropriate than the language of Chief Justice Field in Argenti v. San Francisco, 16 Cal. 255, to which our attention has been directed. “We readily admit,” says the chief justice, “that the powers of a corporation are derived solely from the act creating it; and that, as a general rule, these powers must be exercised in the particular mode pointed out by the charter. It does not follow, however, that even want of authority is, in all cases, a sufficient test of the exemption of a corporation from liability in matters of contract. Of course, an executory contract, made without authority, cannot be enforced, but a different question arises when the contract has been executed and the corporation has received the benefit of it. In such a ease the law interposes an estoppel and will not permit the validity of the contract to be called in question.” And this is the rule that the learned chancellor applied in this case. He might have gone further and derived from the evidences a ratification of the contract by the borough. In this he would have been fully supported by the authorities.

But aside from all this, the plaintiff’s right to protection against the threatened action of the borough does not depend upon the contract between it and the borough; it rests on something higher. It is the borough that must assert the contract, not the plaintiff company, for independent of the contract the borough had no right in the sewer whatever. The exclusive ownership of the sewer before the annexation was in the plaintiff. Whatever right the borough has therein was derived by purchase from the plaintiff. What did it derive? The answer must be conclusive against the defendant’s contention. It derived the exclusive right to the sewer as against everybody but the plaintiff company and its assigns with respect to the 195 lots and the additional land described in the reservation contained in the contract. So much was reserved from the grant, and as to it the borough has no title whatever. To the extent of the reservation the plaintiff company’s rights remain the same as before the annexation. It had the right then to use the sewer; it never parted with that right in connection with the lots and land described in the reservation, and the borough, having no rights except as derived from the plaintiff under the agreement, is in no position to challenge the right here asserted by the plaintiff company. If there were nothing else in the case this itself would be conclusive against the borough. The assignments of error are overruled. The appeal is dismissed and the decree is affirmed.


text:
    Hyde-Murphy Company, Appellant, v. Boyer.

      Gift — -Beal estate — Parol gift of land — Parent and child — Statute of frauds.

    In a proceeding under the Act of April 20, 1905, P. L. 239, to recover possession of real estate purchased at a sheriff’s sale as the property of the claimant’s father, where it appears that the claimant’s father was the owner of the ground in dispute in 1891, that the claimant while living with his parents was permitted to occupy a small frame building on the land as an office for the practice of dentistry, and the evidence tends to show that in 1895 when claimant was about to be married, his father made him a parol gift of the ground and the small frame building on it as a wedding gift, that the father and son staked off the ground together, that in the same year the claimant contracted for the enlargement and alteration of the building, and after his marriage occupied it as a dwelling and office up to the time of suit, that the plaintiff in the execution did not begin the business relations with the father, from which arose his alleged right of recovery, till six years after claimant entered into possession of the land in question and there is evidence that the plaintiff in the execution then had express notice that the property did not belong to the father, the evidence is sufficient to warrant a finding by the jury that there was a parol gift to the claimant.
    Argued May 4, 1910.
    Appeal, No. 67, Jan. T., 1910, by plaintiff, from judgment of C. P. Elk Co., Jan. T., 1909, No. 116, on verdict for defendant in case of Hyde-Murphy Company v. C. W. Boyer.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition to obtain possession of real estate under act of April 20, 1905. Before Hall, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for claimant, C. W. Boyer. The plaintiff and assured appealed.

      Errors assigned were (1-26) rulings on evidence, charge of the court, answer to plaintiff’s points, and refusal to enter judgment for defendant n. o. v.

      Fred H. Ely, with him D. J. Driscoll, for appellant.
    The defendant failed to show that he had taken exclusive possession under the parol gift: Wright v. Nulton, 219 Pa. 253; Derr v. Ackerman, 182 Pa. 591; Dill v. Westbrook, 226 Pa. 217; Ackerman v. Fisher, 57 Pa. 457; Christy v. Barnhart, 14 Pa. 260.
    Evidence of the rental value of the property should have been permitted: Overmeyer v. Koerner, 81* Pa. 517; Eckert v. Eckert, 3 P. & W. 332; McKowen v. McDonald, 43 Pa. 441; Ballard v. Ward, 89 Pa. 358; Wack v. Sorber, 2 Whart. 387.
    • The land was not sufficiently described and set apart by the parties to take the contract out of the statute of frauds: Poorman v. Kilgore, 26 Pa. 365; Harris v. Richey, 56 Pa. 395; Erie, etc., R. R. Co. v. Knowles, 117 Pa. 77.

      July 1, 1910:
    The declarations of the father to third parties as to gift to son were not admissible: Ackerman v. Fisher, 57 Pa. 457; Wright v. Nulton, 219 Pa. 253; Burgess v. Burgess, 109 Pa. 312.

      E. H. Baird, for appellee.
    The possession taken by the son was sufficient: Aurand v. Wilt, 9 Pa. 54; Moss v. Culver, 64 Pa. 414; Jones v. Peterman, 3 S. & R. 543.
    The declarations of the father were admissible as corroborative proof: Clarke v. Vankirk, 14 S. & R. 354; Caldwell v. Caldwell, 24 Pa. Superior Ct. 230; Wolf v. Studebaker, 65 Pa. 459.
   Opinion by

Mr. Justice Potter,

The question presented by this record is whether the evidence offered by defendant was sufficient to establish a parol gift of a certain lot of ground. It appears that in 1891, George W. Boyer, father of the defendant, became the owner of what was known as the Franklin House property in the borough of St. Marys. It contained a little more than half an acre of ground. A small frame building stood in one corner, which the defendant, C. W. Boyer, while living with his parents, was permitted to occupy as an office for the practice of dentistry. The evidence tends to show that in 1895, when defendant was about to be married, his father made to him a parol gift of the ground and the small frame building upon it, as a wedding gift. In the same year defendant contracted for the enlargement and alteration of the building, so as to fit it for use as a dwelling and an office; and after his marriage he occupied it as such, and has continued such use and possession ever since. In 1901, some six years after defendant took possession of the dwelling, the Franklin House, which was the hotel property adjoining, was partly destroyed by fire. The plaintiff company contracted with the father of defendant, to rebuild the hotel; but there was evidence that before beginning the work, the representative of plaintiff was notified that the dwelling house property in question belonged to defendant, and could not be regarded as part of the property to which the contractor might have recourse for security. After the work was done, judgments were entered by confession against the father, George W. Boyer, in favor of plaintiff. Executions were eventually issued, under which not merely the hotel property, but the ground and dwelling house occupied by defendant, were sold at sheriff’s sale, and bought by the plaintiff. This proceeding was then begun by plaintiff to obtain possession.

This is not an attempt to set up a parol contract against the father by the son. Nor is the contract dependent upon an inference merely from the declaration of one of the parties. There was evidence here, as required by the doctrine of the case of Ackerman v. Fisher, 57 Pa. 457, to show that in the matter of the gift, the parties were brought together face to face, and that the bargain which was made between them in that respect, was repeatedly acknowledged by each to the other. The father testified squarely that he made a present of the lot to his son, the defendant, years before the plaintiff company had anything to do with the rebuilding of the hotel. That after he gave the lot to his son, he negotiated for him a mortgage loan from a building and loan association, to pay for changing the building from an office room to a dwelling; that the son reimbursed him for the payments made on the mortgage, and for taxes, insurance and water rent on the property. This evidence upon behalf of defendant is not contradicted. Nor is the testimony of both father and son denied, that in March, 1894, before the son began the erection of the dwelling house, the two of them staked off the boundaries of the lot. We agree with the trial judge that a fair construction of the evidence shows that the son was not in possession of the property as a tenant prior to the gift, in any such sense as would bring the transaction within the meaning of the rule that forbids a parol sale to a tenant in possession. When, according to the testimony, the gift was made by the father to the son in 1895, the son could not properly be said to have ceased to pay rent, for the reason that he had not at any previous time been required to pay it. The evidence upon the part of defendant shows that he did enter openly into possession and made valuable improvements, after the gift. The expenditure of money and labor in thus improving the property may fairly be regarded as taking the place of a pecuniary consideration. Certainly, in the face of the testimony, the father could not for himself recover possession of the premises in dispute; and the plaintiff company simply stands in his shoes, and has no higher claim. It must be remembered too that the plaintiff had express notice, before it began the work upon the hotel property, that this dwelling house property did not belong to the party with whom it was contracting. It cannot therefore claim to have been misled in any way.

Under the charge of the court, the jury must have found as a fact not only that there was constructive notice of defendant’s title by reason of his possession and the improvements he contracted for in his own name, and paid for; but in addition thereto, that the plaintiff had actual notice of his ownership before it extended credit to defendant’s father in connection with the hotel property. If the fact of the parol gift was established, then the question of rental value of the property thereafter, does not arise, and there was no error in the refusal of the trial court to permit proof thereof.

By the affirmance of the first point for charge presented by counsel for plaintiff, the jury were instructed that “In order to take such a parol gift or contract from father to his son as claimed in this case, out of the statute of frauds and perjuries, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of land. It must establish the fact that possession was taken in pursuance of the contract and at or immediately after the time it was made, the fact that change of possession was notorious and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the donee or vendee, which could not be compensated in damages, and such as would make rescission inequitable and unjust.” The verdict must be accepted as establishing the existence of all these requirements. The rights of the plaintiff were further guarded by the instruction requested and given in the second point, in which the jury were told that “As between father and son the evidence of a gift or sale must be direct, positive, express and unambiguous, and its terms must be clearly defined and all acts necessary to its validity must have special reference to it and nothing else.”

We think this case upon its facts is clearly to be distinguished from Wright v. Nulton, 219 Pa. 253. There the boundaries were not defined: here there is evidence that they were. There the defendants were living upon the property before the gift, and there was no visible change in possession: here there was evidence of possession taken under the contract, and valuable improvements made thereafter. There the possession was not exclusive: here it was. With no disposition to narrow in any way the rule there followed, which has been settled by a long line of cases as to the essentials required to take a parol contract for the sale of lands out of the operation of the statute of frauds, we feel that there was evidence in this case sufficient to support the verdict of the jury.

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


author: Per Curiam,

text:
    Lockwood v. Bradford, Appellant.

      Negligence — Municipality — Pedestrian — Defective sidewalk — Constructive notice — Board loalk.

    In an action against a municipality for damages for personal injuries received from a fall on the board sidewalk of a city street, where there is testimony that the general condition of the board walk was such as to require constant supervision and frequent repairs, that some decayed planks were removed a short time before the accident and other defective planks were left, that at the place of the accident several planks had been loose for a week, and that the plank which broke when plaintiff stepped on it was loose and so decayed from the under side that it fell in pieces when removed from the sidewalk, the evidence is sufficient to take the case to the jury on the ground of constructive notice.
    Argued May 4, 1910.
    Appeal, No. 92, Jan. T., 1910, by defendant, from judgment of C. P. McKean Co., Feb. T., 1908, No. 126, on verdict for plaintiff in case of Clara Lockwood v. City of Bradford.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bouton, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,081.25. Defendant appealed.

      Error assigned was, inter alia, in refusing to enter judgment for defendant n. o. v.

      F. P. Schoonmaker, city solicitor, with him Mullin & Mullin, for appellant.
    There was no notice to the city of the defect: Merrigan v. Evans, 221 Pa. 1; Burns v. Bradford, 137 Pa. 361; Garland v. Wilkes-Barre, 212 Pa. 151; Yeager v. Berwick Boro., 218 Pa. 265.

      J. E. Mullin, with him John D. Melvin, for appellee.
    The general condition of this sidewalk was notice to the city of the defect: Faulk v. Iowa County, 103 Iowa, 442 (72 N. W. Repr. 757); Wilberding v. City of Dubuque, 111 Iowa, 484 (82 N. W. Repr. 957); Boyle v. Saginaw, 124 Mich. 348 (82 N. W. Repr. 1057); Noyes v. Gardner, 147 Mass. 505 (18 N. E. Repr. 423); Propsom v. Leatham, 80 Wis. 608 (50 N. W. Repr. 586).
    July 1, 1910:
    Where a defect exists for a long time, the question is for jury as to notice: Butcher v. Phila., 202 Pa. 1; Dean v. New Castle, 201 Pa. 51; Rachmel v. Clark, 205 Pa. 314; Curry v. Erie, 209 Pa. 283; Holbert v. Phila., 221 Pa. 266; Steck v. Allegheny, 213 Pa. 573.
   Per Curiam,

The plaintiff was injured by falling on the sidewalk of a city street. The walk was constructed of hemlock planks nineteen years before the accident. There was no proof of an actual notice to the city authorities of the defective condition of the walk, but there was testimony to the effect that its general condition because of the decay of the planks and the stringers to which they were spiked, was such as to require constant supervision and frequent repairs; that some decayed planks were removed a short time before the accident and other defective planks were left with the expectation that they would last a few months longer; that at the place of the accident several planks had been loose for a week; that the plank that broke when the plaintiff stepped on it was loose and so decayed from the under side that it fell in pieces when removed from the walk. This testimony was sufficient to take the case to the jury on the ground of constructive notice.

The judgment is affirmed.


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

      Negligence — Contributory negligence — -Head-on collision — Engineer-Single track — Rules of company.

    No recovery can be had for the death of a locomotive engineer killed in a head-on collision on a single track railroad when the evidence shows that the collision was caused by the contributory negligence of the deceased in disregarding a clearly defined and well-understood duty imposed by the railroad regulations and running his train at a high speed two or three minutes ahead of schedule time when he knew that an extra train must be met and passed.
    Argued May 4, 1910.
    Appeal, No. 114, Jan. T., 1910, by plaintiff, from judgment of C. P. McKean Co., June T., 1906, No. 194, refusing to take off a compulsory nonsuit in case of Thanier Sittig v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for damages for death of plaintiff’s husband. Before Holt, P. J., specially presiding.
    The facts appear in-the opinion of Holt, P. J., which was as follows:
    This case comes before us on a motion to take off compulsory nonsuit.
    William Sittig, the husband of the plaintiff, was killed on the morning of May 13, 1905, while acting as engineer on train 67 which collided with the second section of train 68 on the defendant’s road at Hydetown, Pennsylvania. Trains 67 and 68 were both trains of the second class, and 67 was proceeding northwardly from Oil City to Buffalo, and was entitled to the right of way or a clear track as against No. 68, which was proceeding southwardly from Buffalo to Oil City. In the absence of special orders, both trains in their movements were governed by the book of rules and the time card. Train 67, on the run in question, had no special orders, and the second section of train 68 had no special orders, for its movements after leaving Corry, Pennsylvania. Train 67 left Oil City on schedule time, which was 3:50 a. m., at which time section No. 1 of train 68 had arrived at Oil City, of which fact William Sittig, the deceased, had information from the proper source, and was also informed by the proper employee or officer of the defendant company that sections 2 and 3 of train 68 were still out and overdue. The defendant’s railroad is a single track road with regular passing sidings, one of which is at Hydetown, Pennsylvania. Rule No. 93 of the defendant company, by which it was admitted William Sittig, the plaintiff’s deceased husband, was governed, in the running of his train on the night in question, reads as follows:
    “All trains must stop at schedule meeting or passing pdints on single track, if the train to be met or passed is of the same class, unless the switches are clearly seen to be right, and the track clear. The point at which a train should be stopped is the switch used by the train to be met or passed in going on the siding. When the expected train of the same class is not found at the schedule meeting or passing point, the train having right of track must approach all sidings prepared to stop until the expected train is met or passed.”
    Before William Sittig left Oil City, he knew that the second section of train 68 was somewhere between Oil City and Buffalo, and that it was overdue, as the first section was in before the time of his departure. Train 67 was due to leave Hydetown station at 4:49 a. m. The collision occurred at a point about 1,000 feet north of Hydetown station at 4:46 a. m., some three or four minutes before train 67 was due at that point, according to schedule time, and at the time of the collision train 67 was running at full speed, from twenty-five to thirty miles an hour, and according to the testimony of some of the witnesses thirty-five miles per hour. The second section of train 68, with which the collision occurred, had, prior to the collision, come almost to a standstill, about 200 feet north of the north end of the Hydetown siding, for the purpose of running in upon the siding to enable train 67 to pass. The uncontradicted testimony is to the effect that train 68 could have cleared the track in from two to three minutes, and thereby enabled train 67, if running on schedule time, to have passed in safety. It is presumed that William Sittig was familiar with the rule of the company and the time card which governed the movements of his train and all other trains of the same class, in the absence of special orders. He knew that the second section of train 68, would have to keep out of his way, by taking a passing siding so as to give him a clear track, and that in the absence of special orders there was nothing to govern the conductor and engineman on the second section of train 68, save the same rule and time card which William Sittig is presumed to have had in his possession, and he would be presumed to know that if his own train was moving ahead of time a collision was liable to occur between his engine and the second section of train 68. The evidence in this case is uncontradicted that William Sittig’s train arrived at the point of collision from two to three minutes before schedule time at that point, without any slowing down, except for a second or two immediately preceding the collision.
    At the close of plaintiff’s evidence the defendant moved for a compulsory nonsuit on the grounds: That William Sittig was guilty of contributory negligence. Second, that there was no negligence shown on the part of the defendant company, and, third, that the injury was the result of the negligence of coemployees of the plaintiff’s deceased husband. We granted a compulsory nonsuit, on the ground of contributory negligence on the part of the plaintiff’s deceased husband. We have examined the notes of testimony carefully, and are not satisfied that error was committed in granting the nonsuit. We are not satisfied that any negligence on the part of the defendant company which contributed to bring about the injury was proven.
    July 1, 1910:

      Error assigned was refusal to take off nonsuit.

      A. R. Osmer, with him J. H. Osmer and N. F. Osmer, for appellant.

      F. D. Gallup, for appellee.
   Per Curiam,

It is manifest from the testimony produced by the plaintiff that the collision in which her husband was killed was not caused by an unsafe schedule or by defective rules of the defendant company, but was due entirely to his disregard of a clearly defined and well understood duty.

The judgment is affirmed on the opinion of the learned trial judge.


text:
    Pitcairn v. The Homewood Cemetery, Appellant.

      Cemeteries — Estate in lots — Fee simple estate — Deed.—Base or determinable fee — Location of mausoleum — Managers—License—Easement.
    1. Where, by the terras of purchase of a cemetery lot, the use of the lot is limited to the burial of the dead, and the purchaser is forbidden to erect improper improvements, or to transfer or assign the lot without the approval of the cemetery company, and holds the lot subject to the rules and regulations of the board of managers, and there is no restriction upon the power to devise the lot by will or preventing its descent according to the laws of inheritance, the estate in the lot vesting in the purchaser is an estate in fee with restrictions, as to alienation and use, but is not a determinable or base fee, nor is it a mere license or easement.
    2. In such case the inherent discretionary powers of the board of managers cannot be asserted to prevent the location by the owner of a mausoleum on one side of the lot instead of in the center, in the absence of a prohibition in the deed or of a by-law, rule or regulation giving the board control over such locations.
    Argued May 4, 1910.
    Appeal, No. 107, Oct. T., 1910, by defendant, from decree of C. P. No. 4 Allegheny Co., First T., 1910, No. 127, granting injunction in case of Elizabeth E. Pitcairn, individually, and Elizabeth E. Pitcairn, executrix, v. The Homewood Cemetery Company. Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ. Affirmed.
    Injunction to restrain defendant from preventing erection of a mausoleum. Before Swearingen, P. J.
    The facts appear in the opinion of the trial court, which was in part as follows:
    The plaintiff claims the right to erect a mausoleum on one side of her lot in the defendant’s cemetery, in which to place the remains of her deceased husband. She claims this right, both by reason of her ownership of said lot, and by reason of her sentiment against the disturbance of the grave of her daughter’s deceased husband, whose remains have already been interred in said lot. The defendant objects to the location of said mausoleum, elsewhere than in the center of said lot, for the reasons, that the location desired by the plaintiff would tend to mar the symmetrical and general improvement of said cemetery, and that the said location would injuriously affect neighboring properties. Between these contentions we must decide according to the rights of the parties, as defined by law.
    What is the interest of the plaintiff in this lot? For surely there can be no doubt that whatever interest Robert Pitcairn had in it passed by his will to Elizabeth E. Pitcairn, his widow. The conveyance is, in terms, of the lot itself, not of a mere interest therein. The deed is for the consideration of $9,000, and purports to “grant, bargain, sell and convey,” said lot to “Robert Pitcairn, his heirs and assigns,” to have and to hold the same to him, “his heirs and assigns forever,” subject to the conditions, etc., “specified in the rules and regulations hereto annexed,” together with a warranty. Thus the language of this deed is the ordinary and necessary language used in a conveyance by deed of a fee simple. Apt words of inheritance are used, the “heirs” inherit generally, without restriction to any particular heirs, and forever. Yet the estate, which passed to Robert Pitcairn, was not a fee simple absolute; Many writers use the term “fee simple absolute,” though there is an apparent agreement that the word “absolute” adds nothing to the description of the estate. It is all contained in the words “fee simple.” What we mean is that the estate is a restricted one. By the terms of the deed itself, the lot is to be held subject to the rules and regulations annexed. Thereby, the use of the lot is limited to the use of the burial of the dead. The purchaser cannot erect improper improvements, he cannot transfer or assign the lot without the consent of the defendant, and he holds the lot subject to the rules which may from time to time be adopted by the board of managers. Under the law there can be no partition of the lot: Love v. Robinson, 219 Pa. 469. But there is no restriction upon the power of the owner to devise the lot by will, nor is there any restriction which will prevent its descent according to the law of inheritance.
    Hence we conclude that the estate which vested in Robert Pitcairn, by virtue of said deed, is more than was acquired by the conveyances, considered in Kincaid’s App., 66 Pa. 411, in Hancock v. McAvoy, 151 Pa. 460, and that line of cases. But it can hardly be regarded as a determinable or base fee, which is one that may be terminated abnormally. An estate created by deed, in which there is a prohibition against following certain lines or business upon the land, has never been regarded as a base fee. “A base fee is in no way distinguishable from an absolute fee simple, except by the liability to an abnormal termination:” 2 Blackstone’s Commentaries, p. 109. The estate which Robert Pitcairn took is not liable to an abnormal termination. It goes to his heirs generally without limit in duration; and there is no provision for a forfeiture or reversion. In case of a breach of any of the conditions upon which it is held, the remedy is by proceeding in equity to enjoin the unlawful act of the owner.
    We hold, therefore, that the estate which Robert Pitcairn took was a fee, restricted as to alienation generally and as to use, and it is to be held subject to the rules and regulations contained in the deed and to those which may be adopted in a lawful way: Mount Moriah Cemetery v. Com., 81 Pa. 235; Rosehill Cemetery Co. v. Hopkinson, 114 111. 209 (29 N. E. Repr. 685).
    We are thus unable to agree with the defendant that Robert Pitcairn acquired but a license or easement in the lot aforesaid.
    If the foregoing be correct, then it follows from the nature of the estate that the plaintiff has the right to erect her mausoleum in any portion of said lot, unless there is some prohibition in the deed aforesaid, or in some rule of the defendant corporation. And this would be true whether we regard the estate as a fee simple or as a base fee. There is nothing in the deed, regulating the place where an owner may locate a sepulchral structure upon his lot. It is not pretended that any rule upon the subject was ever adopted by the board of managers, subsequent to the date of the deed and prior to the contract between the plaintiff and the C. E. Tayntor Granite Company, or even prior to the filing of the bill.
    Under clause II of the rules and regulations of said deed, said lot can only be used as “a place of burial for the dead.” The Century Dictionary defines “burial” as: “The act of depositing a dead body in any place where it is intended to remain.” Consequently the plaintiff has the right to deposit the remains of Robert Pitcairn in or upon this lot, where they are intended to remain permanently. “A mausoleum is really nothing more than a grave above ground:” People v. Richards, 108 N. Y. 237.
    Under clause III of said rules and regulations, “The proprietor of said lot shall have the right to erect proper stones, monuments or sepulchral structures.”

      We cannot think that the mausoleum which plaintiff intends to erect is other than a “sepulchral structure.” Besides, the defendant has recognized it as such a structure by its approval of .the plans which the plaintiff had prepared for the construction of the same. The board of managers is given a clear right to control the character of such structures, and there is no dispute about that. The only dispute is as to the location.
    .As we have stated, no by-law, rule or regulation was produced, giving to the board of managers control over the location of a mausoleum upon an owner’s lot. The defendant, however, contends, that, irrespective of any by-law or rule, there is a general discretion vested in the board to prohibit the erection of structures which, by design, character or location, will interfere with the symmetry and general plan of improvement and will inpiriously affect adjoining properties. It will be observed that this proposition assumes that, according to the evidence, the proposed location of the mausoleum will interfere with the general plan of improvement and will injuriously affect adjoining properties. We do not think that either of these assumptions has been clearly established by the evidence. We do not doubt that the improvement of a cemetery upon exact symmetrical lines would appeal to a skilled engineer and to many others besides. It may be that some lot holders will think that, because the plaintiff’s mausoleum will not be in. exact alignment with the others, then’ properties will be injured. But, on the other hand, there are doubtless many people who would prefer variety in such improvements. However that may be, the evidence upon the subject, coming from such respectable sources as it did, was but the opinions of the witnesses.' While those opinions might have been controlling in inducing the board of managers to take action upon the subject, yet, until the board does take action in the ordinary and lawful way, those opinions cannot be allowed to interfere with the vested rights of this lot owner to do what is not prohibited. If the proposition of the plaintiff involved the doing of something contrary to the very purpose of a cemetery corporation, then we could understand how the inherent discretionary powers of the board might be invoked to prevent it. This was the case in St. Peter’s Church v. Bean, 15 Pa. Dist. Rep. 636, where the owner of a lot attempted to bury a pet dog in his lot and to erect a monument at the grave. But, where the proposition of the plaintiff involves the erection of a sepulchral structure, a right which is expressly granted, and the location of it upon one side of her lot, a rjght which has not been prohibited by corporation action, we are unable to see how the inherent discretionary powers of the board can be asserted against her proposition.
    But, it is argued by the defendant, the board of managers did take action. It required every lot holder in this section to erect mausoleums in the center of their lots. In the case of James R. Mellon, the evidence does show that to be true, and his mausoleum was erected very near the center. The “Order for Foundations” contains the clause, “Some one must designate where the foundation is to be built. . . . Location subject to superintendent’s approval.” And now, when the plaintiff undertook to erect her mausoleum, the board did take action, by refusing to permit her to erect it elsewhere than in the center of her lot. All of this, the defendant contends, amounts to the establishment of a rule upon the subject, and a formal minute upon the book would be only evidence of the rule. Is this the law?
    It is not pretended that any by-law was ever enacted by the corporation upon the subject. As has been stated, the board of managers never did adopt any rule upon the Sfibject of locating sepulchral structures. Has the board power to take action upon such a subject, otherwise than by the adoption of a rule applicable to all lot holders similarly situated, in a regular session, and by having the same evidenced by a formal minute thereof? We do not think it has. To hold the contrary would be the substitution of uncertain, arbitrary action for certainty and uniformity. The board can only take effective action in the making of rules, binding upon all lot holders, in the manner prescribed by law. Our view is well stated in the case of Rosehill Cemetery Co. v. Hopkinson, cited supra.
    “If the board have authority under the charter to prevent a lot owner from erecting a vault upon his lot, that power can only be exercised by the adoption of a general rule upon the subject which will be applicable to every one. ... As said before, in the absence of a general rule prohibiting the erection of vaults by all, the board of managers had no power to establish a rule which would govern this particular case.”
    The regulation inserted in the “Order for Foundations” that the location of foundations is subject to the superintendent’s approval, cannot, in our opinion, avail the defendant. There was no evidence that this order was ever made known to Robert Pitcairn, or to the plaintiff prior to the making of her contract. Such a provision to be effective must have been grounded upon some rule adopted by the board of managers. When inquiry was made for such authority, the only minute produced was that of June 9, 1889, as follows:
    “Plans and specifications for all monuments and headstones must be submitted to the superintendent for approval.”
    But this gives no authority for requiring the location of a sepulchral structure to be approved by anyone. It is authority for requiring the plaintiff to submit her plans for approval; and that she has done, and they have been approved.
    Assuming then that the action of the board of managers, in refusing permission to the plaintiff to erect her mausoleum where she desired, was in effect the adoption of a rule upon the subject, how can such a rule be held binding upon her? The said refusal was made on October 12, 1909. But prior thereto, on August 13,1909, the plaintiff had made a contract with the C. E. Tayntor Granite Company for the construction of her mausoleum, according to plans which had been approved. She had, therefore, incurred the obligations of this contract, prior to the so-called adoption of the rule. Consequently the rule, if valid, would impair the obligation of her contract, and must be held illegal. Not even a by-law of a corporation can be held valid, which impairs the obligation of a stockholder’s contract. Much less a rule or regulation of the board of managers be valid which has that effect.
    We are therefore obliged to hold that there is no valid rule or regulation of the defendant, which will prohibit the location of plaintiff’s mausoleum at the point where she desires to place it. In ruling, as we feel that we must, we in no way intend to reflect upon the management of the Homewood Cemetery. The board appears to have taken the action, of which the plaintiff complains, in good faith, with an earnest desire to have the cemetery improved in the proper manner, and with no intention of annoying the plaintiff or of interfering with what the board considered were her lawful rights. The work of the board has been most excellent, as anyone who ever looked at that beautiful cemetery must admit. If the board had adopted a proper rule upon the subject, the case would have required different action.
    On the other hand, Mrs. Pitcairn is controlled by sentiments against the disturbance of the grave of her son-in-law and of regard for the feelings of her widowed daughter. These sentiments and feelings are entitled to respect and consideration. It is her duty to bury her dead. It is her right to do so in any way that is most suitable to her and most consonant with her feelings and affections. She may exercise that right in her own way, so long as she does not offend against any valid rule or regulation of the defendant; and we find that she has not done so.
    Between these contentions, we are of opinion that the law is with- the plaintiff and we must therefore so decide.

      July 1, 1910:
    CONCLUSIONS OP LAW.
    1. The estate in the cemetery lot which vested in Robert Eitcairn by the deed of July 17, 1905, was an estate in fee, restricted as to alienation generally, and as to use and subject to the rules and regulations contained in said deed; and subject also to those which may be adopted in a lawful way.
    2. By the will of said Robert Pitcairn, the estate which he had in said lot, by virtue of said deed, passed to his widow, the said Elizabeth E. Pitcairn, the plaintiff.
    3. The plaintiff has the right to erect upon said lot any sepulcher not offensive or improper.
    4. Nothing in the rules and regulations of the defendant, which are embodied in said deed of July 17, 1905, or which have been adopted since that time, authorizes the board of managers of the defendant to control the location of sepulchral structures upon said cemetery lot of the plaintiff.
    5. The plaintiff has the right to locate said mausoleum at any point upon her lot, without giving any reasons for her action, but if her reasons be material, the reasons shown in this case are sufficient to justify her action in placing said mausoleum midway between the grave of V. Lee Crabbe, her son-in-law, and the westerly side of her lot.
    6. The costs of this proceeding should be paid by the defendant.
    Let a decree be drawn accordingly.

      Error assigned was the decree of the court.

      Thomas Patterson, of Patterson, Sterrett & Acheson, with him Albert Bigelow Schultz, for appellant.

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellee.
   Per Curiam,

The decree is affirmed at the cost of the appellant.


text:
    First National Bank of Bangor v. American Bangor Slate Company, Appellant.

      Amendments — Practice, C. P. — Promissory notes — Corporations— Treasurer.

    1. In an action against a corporation as indorser of promissory notes where the case as originally presented shows that the notes had been indorsed in the name of the company by the treasurer, but do not show his authority, the statement of claim may be amended, without thereby introducing a new cause of action, by alleging a course? of dealing between the plaintiff and defendant whereby the defendant was estopped from setting up want of authority in its treasurer to execute the notes, and by averring that the execution of the notes had been ratified and confirmed by the defendant, and that the latter had received the consideration of them.

      Practice, C. P. — Trial by court without a jury — Finding of facts.

      2. Where a case is tried by the court without a jury, the findings of fact by the trial judge based upon sufficient evidence, will not be reversed by the appellate court in the absence of manifest error.

      Corporation — Promissory notes — Indorsement of treasurer — Estoppel.
    3. A corporation which receives the consideration for promissory notes signed by its treasurer alone and recognizes its liability again and again by paying the discount upon the renewals and part of the principal, cannot later disaffirm the contract upon the ground of want of authority in its treasurer to indorse.
    4. While the treasurer of a corporation has no power, merely by reason of his office as treasurer to contract for a corporation, if the treasurer has been accustomed to make certain contracts for the corporation, and the corporation has acquiesced in them, it is estopped from denying his agency in making new contracts of a similar kind.
    Argued May 5, 1910.
    Appeals, Nos. 39 and 40, Jan. T., 1910, by defendant, from judgments of C. P. Northampton Co., Sept. T., 1903, No. 88, and April T., 1904, No. 35, on verdicts for plaintiff in cases of The First National Bank of Bangor v. The American Bangor Slate Company.
    Before Fell, C. J., Bbown, Potteb, Elkin and Stewabt, JJ.
    Affirmed.
    Assumpsit on two promissory notes. Before Stewabt, J., without a jury.

      The notes in suit were as follows:
    “2,850.00 August 21st, 1899.
    Four months after date we promise to pay to Cancelled.
    the order of A. B. Slate Co. Twenty Eight
    x I R
    hundred & fifty- Dollars at First Nat. 50c.
    100 Cancelled
    Bank, Bangor, Pa. I. R.
    4c.
    Value received
    Cancelled
    Countersigned I R
    4c.
    “C. S. Ford Star Slate Co.
    “Secy. Jno. Langmead.
    “Treas.
    “ (Endorsed.)
    “The American Bangor Slate Co.
    “J. E. Long,
    “Treasurer.
    “Protest Waived
    “J. E. Long, Treas.
    “$8663. Bangor, Pa., Oct. 1, 1899.
    “Four months after date I promise to pay to the order of Union Mercantile Co. Eighty Six Hundred and Sixty three Dollars, at the First National Bank of Bangor, Penna.
    “Without defalcation for value received.
    “Credit the drawer.
    “Jan. 1.
    “ (Signed) John Lobb.
    “ (Endorsed.)
    “Union Mercantile Co.
    “Oliver LaBar, Treas.
    “The American Bangor Slate Co.
    “J. E. Long, Treasurer.
    j

      “We hereby waive protest on note
    “Union Mercantile Co.
    “For value received we do hereby waive demand and notice of protest on the within note, and guarantee the payment of same.
    “Union Mercantile Co.,
    “Oliver LaBar, Treas.
    “J. E. Long, Treas.
    “American Bangor Slate Co.
    “(Cancelled Revenue Stamps $1.74.)”
    The facts appear in the opinion of the Supreme Court. The court entered judgment for the plaintiff for $11,897.12.

      Errors assigned were the findings of fact and conclusions of law of the trial court.

      E. J. Fox, of E. J. & J. W. Fox, and H. J. Steele, with them William Jay Turner, for appellant.
    The amended statement was a new cause of action: Winters v. Mowrer, 163 Pa. 239; Grier Bros. v. Assurance Co., 183 Pa. 334; Philadelphia v. Hestonville, etc., Pass. Ry. Co., 203 Pa. 38; Mahoney v. Park Steel Co., 217 Pa. 20; Lane v. Sayre Water Co., 220 Pa. 599.
    The defendant was an accommodation indorser: Federal National Bank v. Coal Co., 220 Pa. 39; Brown v. Pettit, 178 Pa. 17; Wolf v. Hostetter, 182 Pa. 292; Clyde Coal Co. v. R. R. Co., 226 Pa. 391.
    The company was not bound by treasurer’s indorsement: Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Bank v. Harmony Land Co., 226 Pa. 440.
    There was no estoppel by reason of course of dealing: Cope v. Dodd, 13 Pa. 33; Adams v. Ins. Co., 76 Pa. 411; Rhawn v. Edge Hill Furnace Co., 201 Pa. 637.

      Kirkpatrick & Maxwell and Aaron Goldsmith, with them J. Willard Paff and Reeder & Coffin, for appellee.
    The amendment was no new cause of action: Smith v. Bellows, 77 Pa. 441; Knapp v. Hartung, 73 Pa. 290.
    July 1, 1910:
    The evidence of course of dealing was admissible: Mohrfeld v. Building Association, 194 Pa. 488; Johnston v. Parker Savings Bank, 101 Pa. 597; First Nat. Bank v. Colonial Hotel Co., 226 Pa. 292.
    The corporation ratified the act of the treasurer: Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96 (6 Sup. Ct. Repr. 657); Myers v. Bank, 193 Pa. 1; Ruch v. Fricke, 28 Pa. 241.
   Opinion by

Mr. Justice Potter,

We have here two appeals which were argued together, from two separate judgments, in two suits in assumpsit, which were tried together in the court below. The First National Bank of Bangor sued The American Bangor Slate Company as indorser, upon two promissory notes; one for $2,850 and the other for $8,663. In defense it was alleged that the notes were indorsed by the treasurer of the defendant company, contrary to its by-laws, ■ and without express authority of its board of directors, and that the defendant was an accommodation indorser. By agreement filed, the two cases were tried together before the court, without a jury, under the provisions of the act of April 22, 1874. The findings and opinion of the trial judge were filed, and judgment was entered in each case in favor of the plaintiff for the full amount of the note sued on, with interest. The statement of claim as originally filed in each case set forth copies of the notes, and averred their nonpayment. Upon the first trial, a non-suit was entered upon the ground that there was no proof of execution, or of authority upon the part of the treasurer to indorse. The nonsuit was afterwards taken off, and plaintiff filed an amended statement of claim alleging a course of dealing between the plaintiff and defendant whereby the defendant was estopped from setting up want of authority in its treasurer to execute the notes; that the execution of the notes had been ratified .and confirmed by the defendant; and that the defendant had received the consideration of the notes. It was contended that these amendments introduced new causes of action; but we do not think that they did. The causes of action were the promissory notes. They remained the same. The matter contained in the amendments might have been proved in the trial under the original pleadings in reply to the defense of lack of authority in the treasurer. The statute of limitations, if it had run, would apply to the promise to pay, in the notes themselves, but it would not affect the proof as to the fact that the defendant had received the consideration for the notes, and that it had ratified the acts of its treasurer in executing the notes. We are clear that no new cause of action was introduced by the amendments.

The record of this case shows that after a trial of almost microscopic thoroughness, the court found the controlling questions of fact in favor of plaintiff, and that the consideration for the notes was received by the defendant. That the indorsement of notes in the defendant’s name by the treasurer was ratified. That there was such a course of dealing between plaintiff and defendant as justified the former in relying upon the signatures and indorsements of the company’s notes made by the treasurer alone. It is unnecessary to recite in detail these findings, or to quote the testimony upon which the trial judge relied. It is sufficient to say that there was evidence upon which his findings may all be supported. We see no good reason why any of them should be modified in any way. We must assume the correctness of findings of fact where there is evidence to sustain them: Com. v. Ontario, etc., Ry. Co., 188 Pa. 205; Eichman v. Hersker, 170 Pa. 402. We have then the fact as established by the finding of the trial judge, that the original note for $2,850 was discounted by the plaintiff bank for the benefit of the defendant company; and that the proceeds, after being credited to the Star Slate Company, were transferred to the defendant’s account, and were drawn out by defendant's own check. He also found that one of the original notes which was afterwards included in the $8,663 note, was discounted for, and credited to, the account of defendant, and the other four notes were discounted for defendant, and the proceeds credited to the Union Mercantile Company, in payment of defendant's indebtedness to that company. When the notes fell due, defendant made part payment on some of them and renewed them all, in whole or in part, paying the discount on the renewals. “If a corporation receives the benefit of the action of its officers, it is bound thereby, whether the action was authorized or not:” Millward-Cliff Cracker Company's Estate, 161 Pa. 157. “A corporation cannot set up the defense of ultra vires to a note where it has received the property for which the note was given:” 3 Cook on Corporations (6th ed.), sec. 761. It will not do for the defendant to retain the advantage of the transaction and repudiate the burden. Having received the consideration for the notes, and recognized its liability again and again by paying the discount upon the renewals, and part of the principal on some of them, it cannot now disaffirm the contract upon the ground of want of authority in its treasurer to indorse. It is true that “the treasurer of a corporation has no power, merely by reason of his office as treasurer, to contract for the corporation. But if the treasurer has been accustomed to make certain contracts for the corporation, and the corporation has acquiesced in them, it is bound by a new contract of that kind entered into by him. It is for the jury to decide whether such a custom exists. A treasurer has no power to indorse the company’s note for discount or sale, but if allowed to do so for a long time, such indorsements are legal:” 3 Cook on Corporations (6th ed.), sec. 717.

The court below found in these cases that the defendant company had for a long time allowed its treasurer to indorse notes for it. In the recent case of First Nat. Bank v. Colonial Hotel Co., 226 Pa. 292, our Brother Mestrezat cites with approval this extract from 2 Thompson on Corporations, sec. 1564: “If the directors of a corporation acquiesce in the acts of its treasurer in executing or indorsing commercial paper, while holding himself out to the public as having authority so to do, they thereby constitute him the general agent of the corporation to make such indorsement.” There was testimony in the present case that the plaintiff bank had previously discounted many notes signed or indorsed only by the treasurer of defendant company, in the same manner as the notes in suit, and those of which they were renewals, had been indorsed. It further appears that the notes so indorsed were paid by defendant without objection, as they came due.

We find no substantial merit in any of the assignments of error. They are all overruled, and the judgment is affirmed.


text:
    Pocono Pines Assembly, Appellant, v. Miller.

      Corporations — Corporation of first class — Trade names — Equity.
    1. A corporation of the first class, incorporated for the promotion of general culture in the interests of Christianity and not for profit, does not come within the provisions of the Act of June 20, 1901, P. L. 582, and has no standing in a court of equity to protect a trade name, used in connection with a garage run for profit.

      Corporations — Trade names — Geographical name.

    2. No exclusive right can be acquired in a name used for a large district of the country.
    Argued May 5, 1910.
    Appeal, No. 85, Jan. T., 1910, by plaintiff, from decree of C. P. Monroe Co., dismissing bill in equity in case of Pocono Pines Assembly v. F. C. Miller. Before Fell, C. J.,
    Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction,

      The facts appear in the following opinion of Staples, P. J.
    FINDINGS OF FACT.
    The complainant is a corporation of the first class, incorporated for the purpose of the advancement of literary and scientific attainment among the people; the study of the Bible and of the science and art of teaching and the promotion of general culture in the interests of Christianity, and not for profit. It is not a trader.
    It operated a garage for the purposes connected with the operation, of its hotel and school, and also did a general business for profit under the name of “Pocono Pines Garage,” having taken said name in 1906, and filed said name with the secretary of state in August, 1909, in alleged accordance with the provisions of the Act of June 20, 1901, P. L. 582.
    Defendant erected a garage in June, 1909, and advertised it as “Pocono Pines Garage, Gasoline 16 cents, oil, supplies, etc.,” which injured complainant’s business, especially the sale of gasoline and supplies.
    The name “Pocono Pines” is the geographical designation of the plateau, or large section of country surrounding the tract of land upon which are erected plaintiff’s buildings. “Pocono” is the name of the mountain upon which said tract of land is situated and it is largely used as a name in that locality; and “The Pines” has been used since 1883. “Pocono Pines” was used by defendant in 1903 as the name of an ice company, and has been the name of the post office in that locality since 1905.
    ARGUMENT.
    The complainant does not come into this court with a case that entitles it to relief. The purposes for which it was chartered gave it no authority to run a garage for profit, selling oil, supplies and fixing machines, other than those used in the business connected with its institution. While the proceeds above the expenses may be devoted to charity, still the business itself is utterly unrelated thereto in the eyes of the law, and it does not come into court with good grace asking us to enjoin the defendant from doing something which injures its illegal business. It should confine the business of its garage to the strictly related needs of its hotel and its guests, and even they should be connected with the school.
    As to the contention of plaintiff that it is entitled to the trade name “Pocono Pines Garage,” by reason of its compliance with sec. 1, Act of June 20, 1901, P. L. 582, we have simply to say, we fail to see that it is engaged in any business mentioned in that act, on account of which it would be entitled to a trade name, or that it is authorized by its charter to engage in any of said businesses or trades.
    It also has assumed its right to a name, which is merely geographical, designating a district of country, which, under the law, it had no right to appropriate: Laughman’s App., 128 Pa. 1; Hoyt v. Hoyt, 143 Pa. 623.
    CONCLUSIONS OF LAW.
    The business the complainant is engaged in, and seeks to appropriate the name for, is ultra vires and it has no standing in a court of equity for relief by injunction. It does not come within the provisions of the Act of June 20, 1901, P. L. 582.
    It has no right to appropriate to its own exclusive use a name used for a large district of country and restrain others from the use thereof.
    It is not entitled to relief.
    In accordance with the above findings of fact and conclusions of law, the injunction heretofore granted is dissolved, the bill in equity is dismissed December 13, 1909, at the costs of the plaintiff, and the prothonotary is directed to enter a decree nisi, giving the parties, or counsel representing the parties, notice forthwith.

      Error assigned was the decree dismissing bill.

      July 1, 1910:

      'Henry Huffman, of Eilenberger & Huffman, with him A. Mitchell Palmer, for appellant.
    The assembly could acquire a trade name: In re Players’ National League Baseball Club, 25 W. N. C. 187; Pratt’s App., 117 Pa. 401; Colton v. Thomas, 2 Brewster, 308; Malone v. Gas Light, etc., Co., 182 Pa. 309; Watts’s App., 78 Pa. 370.
    This was a valid trade-mark: Hoyt v. Hoyt, 143 Pa. 623; W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co., 4 L. R. A. (N. S.) 960; U. S. v. Steffens, 100 U. S. 82; American Clay Mfg. Co. v. Mfg. Co., 198 Pa. 189; Adelburg v. Burlsham, 9 North. 130; Com. v. Banks, 198 Pa. 397.

      Aaron Goldsmith, for appellee.
    The plaintiff could not acquire such a trade name: Glendon Iron Co. v. Uhler, 75 Pa. 467; Laughman’s App., 128 Pa. 1; Pratt’s App., 117 Pa. 401.
   Per Curiam,

We concur in the conclusion reached by the learned judge of the common pleas and affirm the decree dismissing the plaintiff’s bill, at its cost.