author: Mr. Justice Stewabt,

text:
    Joynes to use, Appellant v. Pennsylvania Railroad Company.

      Carriers — Carriers of goods — Inadequacy of facilities — Burden of proof — Railroad—Judgment non obstante veredicto — New Trial.

    1. Where an attempt is made by a carrier of goods to show adequacy of facilities under ordinary conditions and excuse failure to meet the demands made upon it in a particular instance because of extraordinary demands, a question of fact is raised which the jury alone can determine, since the law has no fixed standard for the measure of duty in such ca'se.
    2. A railroad company is bound to do all that is reasonable and use all reasonable means by increasing the number of its tracks and warehouses to accommodate its increased business, and whether it has done this in a given case is a question for the jury.
    3. Where a railroad company permitted produce dealers to unload their cars in a particular yard known as the produce yard, and allowed them two free days for that purpose, and time thereafter on demurrage, a dealer whose potatoes were delayed in an outer yard until they rotted, because of a congestion in the produce yard, is entitled to have a jury determine in a suit to recover damages for the .detention whether the railroad company had, under all the circumstances, done all that it could to. provide sufficient facilities in the produce yard; and he cannot be deprived of such a right by an instruction that if he and the other dealers helped to block the yard with their cars after the expiration of the free days, there could be no recovery.
    4. In such a case where the jury rendered a verdict in favor of the plaintiff, and the court entered judgment for defendant non obstanto veredicto because the plaintiff and other dealers themselves caused the congestion in the yard, the Supreme Court reversed the judgment and awarded a venire facias de novo so as to secure a trial of the case on the issues which were properly involved.
    5. When an emergency arises and more business is suddenly and unexpectedly cast upon a carrier than he is able to accommodate, unless the carrier decline to receive the excess offered, some shippers must necessarily be delayed; yet if the carrier does receive the goods without notice to the shipper of the circumstances likely to occasion delay or fail to obtain his assent, express or implied, to the delay, he will be bound to transport the goods within a reasonable time, notwithstanding such emergency.
    Argued Oct. 27,1911.
    Appeal, No. 178, Oct. T., 1911, by plaintiff from judgment of C. P. No. 1, Allegheny Co., March T., 1907, No. 396, for defendant non obstante veredicto in case of H. W. Joynes to use of A. T. James v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for failure to deliver potatoes. Before Macfarlane, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $23,654.03. Subsequently the court entered judgment for defendant non obstante veredicto. Plaintiff appealed.

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

      Stephen Stone, with him William A. Stone, for appellant.
    The defendant was obliged to use reasonable diligence: Alexander v. R. R. Co., 7 Pa. Superior Ct. 183; Hoffman v. R. R. Co., 39 Pa. Superior Ct. 47; Klass Commission Co. v. R. R. Co., 80 Missouri App. 164; Goodwin v. R. R. Co., 58 Barb. 195; Rhymer v. R. R. Co., 27 Super. Ct. 345; Davenport v. R. R. Co., 10 Pa. Superior Ct. 47; Ruppel v. Ry. Co., 167 Pa. 166.
    Where an unusual pressure of business arises the carrier will not be excused: Faulkner et al. v. South Pacific Railroad Company, 51 Missouri, 311; International & G. N. R. R. Co. v. Anderson, 21 S. W. Repr. 691; Illinois Central R. R. Co. v. Cobb, 64 Ill. 128.
    If the appellant had a right to keep his goods in the , car, — if he had a right to maintain an action for any goods damaged in the car while held by him after the free time, then that right is sufficient to justify him in keeping his goods there, and such keeping would not excuse the appellee in this case for its failure to do its bounden duty: Anderson v. R. R. Co., 31 Pa. Super. Ct. 302.
    There is not one scintilla of evidence to justify the Court in holding that the congestion was due to the delays suffered by the appellant in making sales.

      Thomas Patterson, of Patterson, Sterrett & Aeheson, with him James R. Miller, for appellee.
    The case is directly in line with Laughlin Bros. Co. v. Railway Co., 225 Pa. 540.
    March 11, 1912:
   Opinion by

Mr. Justice Stewabt,

The appeal is from a judgment entered non obstante. This character of judgment necessarily implies that the case as presented on the trial would have warranted binding instructions. We are to inquire whether this was so here. The evidence on behalf of plaintiff gave support to the following facts: The plaintiff is a produce dealer residing and doing business in the city of Pittsburgh. Being without warehouse or storage facilities of his own, he was accustomed to have all his consignments delivered to him by the defendant company at a certain yard at Twenty-first street in Pittsburgh, known as the produce yard, where all shippers of produce, conducting like business with the plaintiff, were offered facilities for selling to their customers their produce directly from the car, and for this purpose were allowed to detain, without charge, the cars carrying their shipments for forty-eight hours after their arrival. The defendant company maintained other delivery yards in Pittsburgh, but at none of them were such facilities afforded as met the requirements of consignees who expected to sell their produce directly from the car. In the early part of July, 1906, the plaintiff had consigned to his order at Pittsburgh a very-large quantity of potatoes. While the bills of lading for this produce indicated Pittsburgh as the place of delivery, it is too clear for dispute that the contract of consignment contemplated a delivery at this produce yard. That both parties to the controversy so understood it, is abundantly established by the evidence. The cars carrying plaintiff’s produce arrived without delay at the outer yard of the defendant company at Fifty-fourth street; This was not a yard for delivery, but for distribution and storage of cars. Plaintiff was permitted there to examine his potatoes, and he found them all sound and in good condition. The usual time required for the transfer of cars from Fifty-fourth street yard to the produce yard is about six hours. Instead of promptly transferring the cars loaded with plaintiff’s potatoes to the produce yard for delivery there, the cars were detained at the outer yard, none of them for less than two days and some for as much as seventeen. When delivered at the produce yard it was found that the potatoes in 128 of these cars had heated and were absolutely without value in consequence. The action was for recovery of damages for the injury by the delay in delivery. The case, as thus established by plaintiff’s evidence, called for a reply; for, except as the defendant company overcame it, it entitled the plaintiff to a verdict. It showed a delivery of the potatoes in good condition, that they had been utterly ruined while in custody of the carrier, and that the loss had resulted from the carrier’s delay in transferring them to the appointed place of delivery. Upon this showing the burden fell upon the defendant to excuse itself for the delay which caused the loss. No defense by way of excuse was attempted, except to show a congested condition in the produce yard which prevented an earlier delivery there of plaintiff’s cars. The case turns upon the sufficiency of this defense as matter of law. A fuller understanding of the actual situation with respect to the 'produce yard is here necessary. The capacity of the yard is limited to the accommodation of 385 cars at any one time. As before stated, shippers of produce are allowed in this yard to hold without charge the cars containing their produce for two days after their arrival; under the printed rules and regulations of the company they are entitled to hold them longer but subject to a demurrage charge after the free period. When plaintiff’s cars arrived at Fifty-fourth street yard it so happened that the produce yard was full, many of the cars there were beyond free time and were subject to demurrage; but none were in the yard that were not rightfully there. And so it is evident that when plaintiff’s cars reached Fifty-fourth street yard a situation confronted the defendant company in which it was helpless to meet the demand of plaintiff and make prompt delivery of his produce, as it had undertaken to do. For this situation, who was responsible? If the defendant company, its responsibility must have resulted from a failure on its part with respect to some duty that attached in connection therewith. That a duty rested on. it to provide accommodations in the produce yard for all cars it engaged to deliver there, calls for no discussion. That those they maintained in this instance were inadequate for the accommodation of the plaintiff’s cars, is a fact in the case, and the one fact to which the loss must be referred. This may or may not involve failure of duty, depending entirely upon the facts in the case. Presumably it did involve such failure, and the burden was on the defendant company to justify it. Under such conditions the carrier may justify by showing that the accommodations it had provided at the produce yard were adequate for the amount of business it was there ordinarily required to handle, and that the demands made upon it in the particular instance when they proved inadequate, were unusual and extraordinary. But the law does not presume that such was the case. The burden of showing it is upon the carrier, and when attempt is made to show adequacy of facilities under ordinary conditions, and excuse failure because of extraordinary demands, a question of fact is raised which the jury alone can determine, since the law has no fixed standard for the measure of duty in such case. “Where delay occurs in the transportation of goods in consequence of a lack of cars or other facilities, the company is liable for the delay unless it can show good cause therefor — A railroad company is bound to do all that is reasonable, and to use all reasonable means by inci’easing the number of its tracks and warehouses to accommodate its increased business, and whether it has done this in a given case is a question for the jury Illinois Central R. R. Co. v. Cobb, 64 Ill. 128. This indicates the first question of fact that necessarily arose in the present case. Had the defendant established to the satisfaction of the jury its first proposition, to wit, that the facilities it provided were adequate under ordinary conditions, still another question of fact would have arisen. Admitting the extraordinary demand made upon it in this instance, did the defendant do what could reasonably have been expected of it in warning the plaintiff of the situation that would delay the delivery of his goods? “It is the duty of a common carrier to provide sufficient facilities and means of transportation for all freight which it should reasonably expect will be offered, but it is not bound to provide in advance for extraordinary occasions, nor for an unusual influx of business which is not reasonably to be expected. When an emergency arises and more business is suddenly and unexpectedly cast upon a carrier than he is able to accommodate, unless the carrier decline to receive the excess offered, some shippers must necessarily be delayed; yet if the carrier do receive the goods without notice to the shippers of the circumstances likely to occasion delay, or fail to obtain his assent, express or implied, to the delay, he will be bound to transport the goods within a reasonable time, notwithstanding such emergency:” Dawson v. Chicago & Alton R. R. Co., 79 Mo. 296. Quite as explicit to this point is Bussey v. Memphis etc. R. R. Co., 4 McCrary (U. S.) 405. Just what the measure of defendant’s duty in this connection was in the present case, depended upon the situation and circumstances of the parties. It may be that circumstances here relieved defendant of the duty of notifying shippers, or this particular shipper, of the congestion at the produce yard. But here again, such circumstances were not to be presumed but shown, and if a question of fact arose in connection therewith, a reference to the jury would have been unavoidable. Instead of submitting to the jury these questions of fact which were directly in the case, the court submitted another, which, as we shall endeavor to point out, had no place in the controversy. In his charge the learned trial judge used this language: “The defendant company says here that Mr. Joynes helped to block the yard, helped in this congestion; that he was negligent and did not take his stuff out, and that the other produce men did the same thing. I submit that to you in two ways, and the first is, if it was the fault of the men who were in the yard there, the produce men, and not the fault of the railroad company, there can be no recovery of course. Second: If Mr. Joynes so contributed to this congestion we say, if they were all in it, the other produce men, and he so helped in this holding his goods beyond the time he should have, then he cannot recover.” Now it was not pretended that the cars of the plaintiff or those of the other shippers had been detained in the produce yard with a view to produce a congestion, and make it impossible for the defendant company to introduce other cars into the yard; nor was it pretended that any of the cars had been detained for a length of time exceeding the limit allowed by the company’s rules and regulations where cars are subject to demur-rage charges. The cars that were then in the yard were there by a right which the defendant company itself recognized; otherwise, in the exercise of a clear duty resting upon it, it would have removed them elsewhere. Of course, the shippers who were holding their cars in the produce yard beyond free time could have relieved the situation by releasing their cars and making place in the yard for others. But what duty rested upon them to do this in relief of the company? They could not-be, and were not, in fault in not doing so, as long as they kept strictly within their legal rights. The charge of the court proceeded on the theory that the question was one of negligence on part of shippers, including the plaintiff, in the matter of the unloading and release of their cars; a wholly mistaken theory if in fact the shippers had the right under their contract with the company to detain their cars, and that they had such right there can be no doubt. The rules and regulations of the company were the basis of contract between the parties; they measured their reciprocal rights and obligations. Negligence to be actionable must at least be in breach of a legal duty, and it is impossible to derive any other or greater duty resting upon the shippers in this case than the duty to pay the demurrage charges under the contract. It is nothing to the point to say that under such construction of the contract between the company and shippers, that it would be in the power of the latter to create congestion in the produce yards at any time. A sufficient answer to this is that such result would in itself demonstrate that either the rules and regulations which allowed the congestion to occur, were insufficient, or that the yard facilities which had been provided for the shippers were inadequate. In either case the responsibility would rest wholly with the company, for it had determined the extent of the facilities and the rules governing their use. The case of Laughlin Bros. Co. v. Railway Co., 225 Pa 540, relied upon as supporting the view taken by the learned trial judge, contains nothing contrary to anything we have here expressed. In that case it was the custom of the defendant company, known to all its shippers, to deliver not more than three cars at a time to any one person or firm, and to deliver additional cars only as those first delivered were emptied and released. It was there held that the shipper, having received storage in the produce yard for all the cars he was entitled to under the established rules and custom, of which he had full notice when he made his shipments, had no cause of action against the company for loss resulting from his cars being detained in an outer yard to await room in the produce yard.

We repeat, the question submitted to the jury to pass on was outside the case. On this mistaken issue the jury found for the plaintiff the sum of $23,654.03, but on a review of the whole case the learned trial judge, adhering to his view of the law, because it was conceded by plaintiff that the congestion in the produce yard was owing to the fact that many cars were being held by shippers in the produce yard under demurrage, directed judgment non obstante. This, as we have indicated, was error, and the judgment must be reversed for this reason. Since, hovrever, the case was not tried on the issues which were properly involved, we shall enter such judgment as will afford the parties another opportunity to have the case tried according to the law and evidence.

The judgment is reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Brown, Me. Justice Elkin,

license: Public Domain

text:
    Pennsylvania Company for Insurance on Lives and Granting Annuities v. Singheiser, Appellant.

      Ground rents — Husband and wife — Merger—Extinguishment— Act of April 27, 1855, P. L. 868 and June U, 1897, P. L. U9.

    In 1858, a wife became owner of real estate subject to a ground rent. After she acquired the real estate and before any rent became due, her husband in the same year purchased the ground rent. In 1871 the wife died leaving the real estate subject to the ground rent to her husband for life with remainder over to her descendants. The husband died in 1900. No ground rent was paid during the wife’s ownership of the land or the husband’s life tenancy. During the husband’s life tenancy he endorsed on the envelope containing the ground rent deed, that the rent was “to be collected at my death.” The husband left a will by which he gave his estate to a trustee for his second wife and a child by her. Eight years after the husband’s death the owner of the land filed a petition against the trustee praying for the extinguishment of the ground rent. Held, (1) that, as the husband could not sue his wife, the Act of April 27, 1855, P. L. 368 did not run during the thirteen years in which the husband owned the ground rent and the wife the land; (2) that the Act of 1855 had no application during the nineteen years of the husband’s life tenancy, inasmuch as his endorsement on the envelope of the ground rent deed indicated his recognition of the existence of the ground rent, and the law did not require him to do the vain thing of paying as the owner of the land the ground rent to himself as owner of the rent; (3) that the ground rent was not extinguished, under the circumstances, although no rent had in fact been paid from 1858 to the filing of the petition in 1908.
    Mr. Justice Potter and Mr. Justice Elkin dissent.
    Argued Jan. 2, 1912.
    Appeal, No. 67, Jan. T., 1911, by defendant from judgment of C. P. No. 2, PMla. Co., March T., 1908, No. 2737, for plaintiffs n. o. v. in case of Pennsylvania Company for Insurance on Lives and Granting Annuities and S. Kingston McCay, Executors of the last will and testament of Alfred C. Gibson, deceased, The Pennsylvania Company for Insurance on Lives and Granting Annuities, Trustee under the will of Alfred C. Gibson, deceased; Virginia Frances Gibson and Mary Emma Gibson v. Andrew Singheiser, Covenantor and Cecelia E. Crilly, Real Owner.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Issue under the first and second sections of the act of June 14,1897, P. L. 149, to determine whether a ground rent had become extinguished by presumption of law. The proceedings were instituted by petition by Cecelia E. Crilly, daughter of the devisee of the land under the will of Rosanna Gibson, wife of Alfred C. Gibson, praying for extinguishment as owner, the petition being filed eight years after Alfred C. Gibson’s death. Before Barratt, J.
    In addition to the facts stated in the opinion of the Supreme Court, it appeared that Alfred C. Gibson left a will by which he gave his estate to a trustee for his said wife and a child by her.
    At the trial the jury returned a verdict for defendants. Subsequently the court entered judgment for plaintiffs non obstante veredicto.

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

      D. Webster Dougherty, for appellant.
    The statute is more than a statute of limitation, it is a statute of repose and was passed to relieve as far as possible an intolerable condition which hindered and obstructed the free alienation and enjoyment of property: Wingett’s App., 122 Pa. 486; Wallace v. Fourth U. P. Church, 152 Pa. 258.
    The indorsement on the envelope was properly excluded : Clay v. McCreanor, 9 Pa. Super. Ct. 433; McKinney v. Snyder, 78 Pa. 497; Wesner v. Stein, 97 Pa. 322; Spangler v. Spangler, 122 Pa. 358.
    That the seventh section of the act of 1855 is constitutional was held in Korn v. Browne, 64 Pa. 55; Biddle v. Hooven, 120 Pa. 221; Clay v. Iseminger, 187 Pa. 108: Wilson v. Iseminger, 185 U. S. 55 (22 Sup. Ct. Repr. 573).
    The Act of June 14, 1897, is constitutional: Haines’ App., 73 Pa. 169; Korn v. Browne, 64 Pa. 55; Wingett’s App., 122 Pa. 486.
    The twenty-one years having therefore begun to run on February 18, 1858, the running was not suspended after Mrs. Gibson’s death: Amole’s Appeal, 115 Pa. 356; Light’s Estate, 136 Pa. 211; McDonald v. Hovey, 110 U. S. 619 (4 Super. Ct. Repr. 142).
    “The act of 1855 in its application of gound rents made this a legal presumption after twenty-one years which cannot be rebutted:” Biddle v. Hooven, 120 Pa. 221; Pratt v. Eby, 67 Pa. 396.

      James Wilson Bayard and John G. Johnson, for appellees.
    This act is one of the statutes of limitations, and is subject to the general rule governing all of such statutes. One of these which is directly applicable to the first of the three periods above mentioned in the present case, is, that as between husband and wife the statute of limitations does not run: Towers v. Hagner, 3 Whart. Pa. 48; Kutz’s Appeal, 40 Pa. 90; Lahr’s Appeal, 90 Pa. 507; Marsteller v. Marsteller, 93 Pa. 350; Grade’s Estate, 158 Pa. 521; Hillerman v. Ingersoll, 5 Phila. 143.
    The law does not require the doing of a useless thing; and we submit that, if necessary, it should be held that a presumption arose that everything that was necessary to be done to preserve the life of the rent, was properly done. We have, in addition, the distinct acknowledgment of the existence of the rent in the endorsement by Alfred C. Gibson on the envelope containing the ground rent deed, made during this second period, that it was to be collected after Ms death. We submit, therefore, that the statute of limitations cannot be held to have run during this second period.
    Ground rent does not accrue like interest from day to day. The rent is an estate in the land: Streaper v. Fisher, 1 Rawle 155; Cobb v. Biddle, 14 Pa. 444; White’s Estates, 167 Pa. 206; Hart v. Anderson, 198 Pa. 558; Amole’s App., 115 Pa. 356.
    March 18, 1912:
   Opinion by

Mr. Justice Brown,

The issue in the court below was framed under the act of June 11, 1897, P. L. 119, to determine whether an irredeemable ground rent had been extinguished by operation of law. A vedict was directed in favor of the owner of the land, the defendant in the issue, but subsequently judgment was entered in favor of the appellees, the present owners of the ground rent.

In a deed from James Smith to Andrew Singheiser, dated February 15, 1800, and duly recorded, an irredeemable ground rent of two hundred Spanish milled dollars per annum, which is the subject of this controversy, was reserved in the lot of ground conveyed, situated on the west side of Third street, in the city of Philadelphia. On May 8, 1858, Richard McAvoy conveyed the lot to his daughter, Rosanna Gibson, wife of Alfred C. Gibson, subject to the said ground rent, to which the said Alfred C. Gibson acquired title on the 21st day of the same month. Mrs. Gibson died October 12, 1871, having given, by her will, a life estate to her husband in all her property, with remainder over to her descendants. She also gave him a power of sale. He died December 7, 1900, having, during all the interval, retained possession of the premises, subject to the ground rent, without exercising the power of sale, and, upon his death, Cecelia E. Crilly, a granddaughter of Mrs. Gibson, became the owner of the property.

The last payment of the semi-annual rent was made , to Gibson’s predecessor in title on February 18, 1858, and appellant’s contention, as stated by her counsel, is “that the twenty-one years in this case began to run from the time of the last semi-annual payment of the ground rent, to wit: February 18, 1858, and having once begun to run was not stopped by the subsequent transfer of the land to Mrs. Gibson or of the ground rent to Mr. Gibson, and by virtue of the provisions of the seventh section of the act of April 27, 1855, P. L. 368, the ground rent became extinguished on the 18th day of February, 1879.” The seventh section of the act of 1855 provides that “in all cases where no payment, claim or demand shall have been made on account of, or for any ground rent, annuity or other charge upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, subject to such ground rent, annuity or charge, a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge shall thereafter be irrecoverable.”

It is first to be noted that, when Alfred C. Gibson acquired title to the ground rent, there was no payment due upon it, and nothing was demandable until August 18, 1858, the next semi-annual payment period fixed in the deed from Smith to Singheiser. But on that date Mrs. Gibson was the owner of the land, having acquired title to it in the previous May, and her husband could not have enforced payment from her of the semi-annual payment then due, for she held the title as his wife to the land charged with the rent. She so held the title until her death on October 12, 1871, and during that period of more than thirteen years any demand by the husband upon her for payment of the rent would have been vain and useless, for he could not have enforced his demand by an action against her. To this appellant makes answer that the act of 1855 makes no exception in favor of any one. This is true, but it is further true that nothing in that act contravenes the rule in force with us that the unity of persons which prevent^ a wife from maintaining an action against her husband also prevents a husband from maintaining an action against her: Gracie’s Estate, 158 Pa. 521. On grounds of public policy, the law discountenances controversies between husband and wife and encourages inaction as to claims inter sese during the existence of the marital relation. But, aside from this, it is well contended by counsel for appellees that the manifest intention of the husband in acquiring the ground rent a few days after his wife had acquired title to the land was to keep them both in the family, not, however, with any intention on his part to merge both in her, else he would have had the deed for the ground rent made directly to her. If such was his intention, the presumption naturally follows that he, in effect, donated the ground rent to her as it accrued from time to time. We are clear that the act of 1855 has no application from February 18, 1858, to the date of Mrs. Gibson’s death, and we come to the period during which her husband was in possession of the property as life tenant under her will. This period extended from October 12, 1871, to December 7, 1900.

Among the papers that came into the hands of Gibson’s executor was an envelope containing his deed for the ground rent. On this envelope there was the following endorsement in his handwriting: “This ground rent is on property No. 820 and 822 and 824 North 3rd, running through to Charlotte street, to be collected at my death.” Below that is written: “Ground rent debt $200 per annum to Thomas Williams, trustee. A. C. Gibson.” The endorsement is without date, but it is admitted that it was written some time after January 1, 1874. It was excluded by the trial judge, and this was properly held to have been error by the court in banc. While the endorsement may not have been a declaration or acknowledgment of the existence of the ground rent “by the owner of the premises subject to” it, it was an acknowledgment of the existence of the ground rent by the life tenant of the property, upon whom there rested the burden of paying the semi-annual rents during his life estate, and, on the other hand, it is to be regarded as a claim made by him, as the owner of the ground rent, that it was in existence, but, for a manifest reason, not to be collected until his death. It was a declaration by him that, when the ground rent should, upon his death, pass to another, the payments which he had not exacted from himself while he, as life tenant, was in possession and enjoyment of the property out of which the rents were payable, should be made by those who, after his death, would come into possession and enjoyment of the land. While he lived he was, as life tenant, the payer, and, as owner of the ground rent, the payee. The hand that was to pay was the hand that was to receive, and to hold that the ground rent must be presumed to have been extinguished, because he did not leave behind him some evidence that, at some time during the last twenty-one years of his life, he had, as life tenant, taken the rent out of one of his pockets and put it in another, to pay himself as the owner of the ground rent, would be to require an uttterly vain, useless and foolish thing, never demanded by the law and certainly not contemplated by the act of 1855. Lex neminen cogit ad vana seu inutilia.

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

Me. Justice Elkin,

dissenting:

There are two reasons, conclusive to my mind, why the judgment entered by the court in banc should be reversed. The first reason is the act of April 27, 1855, P. L. 368, and the second, the act of June 14, 1897, P. L. 149. The ground rent was reserved by deed in 1800; the last payment of rent was made on February 18, 1858; and from that time until April 1, 1908, when the preset petition was filed, no one representing the owner of the ground rent made any demand upon anyone, for payment, or asserted by legal process or otherwise, the right to enforce collection of the same. After the lapse of half a century, when all of the original parties in interest are dead, the attempt is being made to breathe life and vitality into a dormant ground rent, which all of the parties immediately concerned allowed to slumber for eight years beyond the period of two natural lives.

As to the first reason, it may be said, the seventh section of the act of 1855 provides that in all cases where no payment, claim, or demand shall have been made for any ground rent upon real estate for twenty-one years, or no declaration or acknowledgment of the existence thereof shall have been made within that period by the owner of the premises, “a release or extinguishment thereof shall be presumed, and such ground rent, annuity or charge, shall thereafter be irrecoverable.” It will be noticed that the act did not simply provide when the presumption of payment shall arise, but it in express terms made such a charge irrecoverable after the twenty-one year period. The language of the act is broad and comprehensive, and contains no suggestion of an exception in any case. It was intended as an expression of the statutory policy of the law in dealing with charges of this character upon real estate, or of such an interest in land if it be so considered. It is a statute of repose and has always been so regarded. The power of the legislature to pass such an act cannot be doubted, and we have nothing to do with the wisdom or policy of the statutory law thus declared. In my opinion, the act should be enforced according to its terms, and if so enforced, there could be no recovery of the ground rent in question here. There was “no payment, claim or demand” on account of the ground rent for fifty years after the last payment of semi-annual rent, The owner of the premises made no declaration or acknowledgment of the existence of the ground rent during that time. If, therefore, the act means what it says, the rent charge is now irrecoverable. The act also provides how the evidence of such payment, and of the claim and demand, may be perpetuated, but no attempt was made in the present case to comply with these requirements, and nothing was done by anyone from 1858 to 1908 to give notice of the existence of the ground rent. It would be difficult to find a case more completely covered by the act than the one at bar. The conveyance of the lot to Mrs. Gibson in 1858, and the acquiring of title to the ground rent a few days later by her husband, according to my view, in no way affect the declared statutory policy of the law as to ground rents. No such exception is made in the act, and to give it such a construction it is necessary to ignore its plain provisions. Because the law throws certain safeguards around the domestic relation by denying the husband and wife the right to bring suit against each other, is no reason why positive statutory provisions relating to charges upon real estate, and intended as a wise general policy of law, should be disregarded. The husband made no attempt to collect the ground rent during the life of his wife who died in 1871, nor did he at any time take steps to perpetuate evidence of any payment, claim or demand as required by the act. He died in 1900, and the beneficiaries under his will, appellees here, made no demand for payment of the ground rent, or asserted any right to collect it, until 1908 when in search of the records by other parties for a different purpose it was discovered that the ground rent had never been formally extinguished. The last payment was made in 1858; the first twenty-one year period expired in 1879; to this may be added another twenty-one year period expiring in 1900; and in addition there was another eight year period, during all of which time, nothing was done by the owner of the ground rent in assertion of his right to demand payment. The memorandum, not dated, found among the papers of the deceased husband, to which reference has been made, did not meet the requirements of the statute and was insufficient to defeat the policy of the law as declared by the legislature. It is not pretended that this undated paper is testamentary in character, and it cannot be said that it was a declaration made by the husband against his interest, and, therefore, Gracie’s Estate, 158 Pa. 521, has no application. But even if such paper might under certain circumstances be admitted as a declaration of one against his own interest, which in the present case it could not be considered, it was clearly incompetent to affect the rights of the parties here because it was not made by the owner of the premises, and this is what the act requires. It was made by the owner of the ground rent, and at best could only be considered as a self serving declaration. What this court said in Korn v. Browne, 64 Pa. 55, precisely fits the present case, “as the plaintiff did not prove any claim or demand or payment, or any declaration or acknowledgment of the existence of the ground rent within twenty-one years, the statute presumption operated an extinguishment and the ground rent became irrecoverable.” The statute made no exception in behalf of married women, or persons under disabilities, and we have frequently held that disabilities to be saved from the operation of a statute must be expressed or they cannot be considered an exception: Warfield v. Fox, 53 Pa. 382; Metz v. Hipps, 96 Pa. 15; Way v. Hooton, 156 Pa. 8.

We have also expressly said in at least two cases that the act of 1855 makes no exception in behalf of persons under disabilities when their titles accrue, nor of persons taking as heirs at law or distributees: Wallace v. Fourth U. P. Church, 152 Pa. 258; Clay v. Iseminger, 187 Pa. 108. The disability set up in the present case is the relation of husband and wife, but no such exception is made in the act, and under the authority of the cases just cited this relation should not be allowed to defeat the purpose of the statute and the policy of the law.

The second reason for sustaining the present appeal is the act of 1897. This act provides a method of procedure to determine the question of the extinguishment of a ground rent by payment or by presumption of law. It was intended to apply to cases like the one at bar. It provides in express terms that “in case of a rent reserved by deed dated and recorded more than twenty-one years before the filing of said petition, the burden of proof shall be on the plaintiff to show that said rent is not extinguished by payment or presumption of law.”

In the present case the ground rent was reserved ,by a deed dated and recorded more than one hundred years ago, and it follows as of course that the burden of proof was upon the plaintiffs, appellees here, unless it be now said for the first time, that the statutory rule has no application in a case where the owner of the ground rent is represented by one acting in a fiduciary or representative capacity. To so hold is to read into the act by way of construction, provisions, or exceptions, which the legislature did not include, and which in my opinion were never intended to be included. The act places the burden of proof upon the plaintiff in every case in which the rent is “reserved by deed dated and recorded more than twenty-one years before the filing of said petition.” It is the deed reserving the rent that determines upon whose shoulders the burden of proof rests, and not the parties to the litigation. The act so provides in express language, and it would seem to do violence to the legislative intention to hold otherwise. It seems to me that a statutory rule should be binding upon executors, trustees, and others acting in representative capacities, just as it is on other parties, at least so far as the method of procedure is involved.

If the deceased husband after the passage of the act of 1897 had instituted the proceeding, the burden of proof required by its provisions would have been upon him, and, to my mind, there does not seem to be any reason why his appointees, the executors and trustee named in his will, should occupy a more advantageous position than the one who appointed them. The act of 1897 did not place any new burden upon plaintiffs. It was simply declaratory of the established rule of practice in a proceeding under the act of 1855. In Wingett’s Appeal, 122 Pa. 486, decided in 1888, this court said that the burden of proof to show payment, claim or demand, or declaration or acknowledgment, under the act of 1855, was upon the claimant; that the statute need not be pleaded, and the defense may be made under the general issue. It is clear, therefore, that the act of 1897 left the burden upon the plaintiffs just as it had always been. No exception as to the burden of proof under the act of 1855 in favor of executors, or trustees, or persons acting in fiduciary capacities, has been heretofore made, although that act has been in force more than fifty years, and in my opinion no such exception should now be made. Such an exception is not only in the face of long established practice, but it is in conflict with the plain provisions of the act of 1897 and of the later act of 1909. Under such a rule it will only be necessary to raise up someone in a representative capacity to institute the proceeding in order to shift the burden, and this would in a great measure defeat the purpose of all these acts. I think the burden of proof should remain where the act placed it, and the plaintiffs in the present case having failed to meet the burden, are not entitled to recover.

I would reverse the judgment.

Me. Justice Pottee concurs in the dissent.


author: Mr. Chief Justice Fell,

text:
    Beck, Appellant, v. Schekter.

      Affidavit of defense — Rule for judgment — Appeals—Act of April 18,187b, P. L. 6b.

    1. The Act of April 18, 1874, P. L. 64, allowing an appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense, was intended to reach only clear cases of error in law, and thus prevent the delay of a trial.
    2. In a suit brought against the owners of certain land to recover the principal of a dower fund alleged to have been charged on it by a deed executed subsequently to partition proceedings, where the intention of the parties to such deed is left in doubt by misrecitals and unskillful conveyancing in the deed itself and in subsequent conveyances, and such uncertainty may be cleared up by parol evidence a rule for judgment for want of a sufficient affidavit of defense is properly dismissed.
    Argued Jan. 8, 1912.
    Appeal No. 92, Jan. T., 1911, by plaintiff from order of C. P. No. 2, Phila. Co., Dec. T., 1910, No. 2162, discharging rule for judgment for want of a sufficient affidavit of defense in case of Sarah A. Beck v. George Schekter and Meyer Bernstein.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Mjoschzisker, JJ.
    Affirmed.
    Assumpsit to recover charge on land. Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Joseph R. Embery, with him Richard Crankshaw, Jr., for appellant.

      Theodore F. Jenkins, for appellees.
    March 18, 1912:
   Opinion by

Mr. Chief Justice Fell,

In Griffith v. Sitgreaves, 81* Pa. 378, the earliest case that reached this court under the act of April 18, 1874, P. L. 64, allowing an appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense, it was said that the act was intended to reach only clear cases of error in law and thus prevent the delay of a trial; that since its effect was often to produce two appeals in the same cause, writs of error for the refusal of judgment were not to be encouraged and that in doubtful cases, especially those requiring broad inquiry into facts, the matter in controversy should go to the jury. This ruling has been approved and followed in a long line of cases among the more recent of which are Leiby v. Lutz, 224 Pa. 377 and Wilson v. Trust Co., 225 Pa. 143. In Radcliffe v. Herbst, 135 Pa. 568, in commending the first ruling upon the subject and referring to the growing practice to bring up cases on the refusal of the court to enter judgment it was said, “The instances are rare where any benefit results therefrom; frequently the cases could have been tried below in less time than is required to bring them here on appeal. The practical effect of such a mode of practice is to delay, instead of speeding causes and to add materially to the expense of litigants.”

This action was brought to recover the principal of a dower fund alleged by the plaintiff to have been charged on the land of the defendants. In 1873, by a decree in partition proceedings, the real estate of a decedent was apportioned among his four children in practically equal shares. The purpart of one of his children, the plaintiff, consisting of four tracts, was charged with owelty of a few dollars, which she paid, and with the interest of the sum of $4,067, to be paid annually to the widow during her life in lieu of her dower. In 1886 the widow and the plaintiff agreed to an apportionment of the dower charged on the four properties taken by the plaintiff and an amount was agreed upon as to each property, the interest on which was to be paid annually, and the widow covenanted that she would accept the interest on. each amount in full satisfaction of her dower. In 1887 the plaintiff sold two of the properties under and subject to the dower as apportioned in said deed and the interest thereon. In the deed of apportionment and in subsequent conveyances of the properties down to the defendants the decree was misrecited to the effect that the widow had agreed with the plaintiff that a sum named would be accepted with interest thereon in lieu of dower. In their affidavit of defense, the defendants denied that they had at any time agreed, expressly or by implication to pay the sum claimed and averred that they had bought with the understanding • that the property was subject to the dower of the widow and that upon her death it would be free of any reservation or charge.

In the foregoing recital of facts we have referred only to so much of the conveyances as is necessary to disclose the nature of the controversy and the basis of. the plaintiff’s claim. Upon the merits of the defense we express no opinion. The decree in partition made no charge of the principal sum, but of the interest only. The partition being in equal shares there was no reason for charging the principal of the dower on the purparts: Williams v. White, 35 Pa. 514, and the widow had no power to make a charge. It may have been the intention of the parties to the deed of 1887 to fix a new charge on the land but this is left in doubt by misrecitals and unskillful conveyancing. The case is one which may be cleared up by parol evidence but because of ambiguity the rights of the parties are not so fixed by the deed that they can be determined on a rule for judgment.

The judgment is affirmed.


author: Me. Justice Stewaet,

text:
    Shive, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence — Railroads—Passenger—Contributory negligence— Standing in car.

    In an action by a passenger against a railroad company to recover damages for personal injuries, a non-suit is properly entered, where the evidence shows that immediately prior to the accident the plaintiff took his stand in the open doorway of a car with his back to the interior of the car and with one hand on the doorjamb and the other holding an umbrella; that the car was crowded beyond its seating capacity, but that the car immediately next to the one in which plaintiff was riding and which he could have entered by stepping across the platform contained no passengers; that shortly after the train started it passed a switch or another track, and the car on which plaintiff was a passenger was jolted, not however to any unusual degree, but nevertheless to a degree sufficient to cause passengers within the car and standing next to the plaintiff to press against him, as a result of which he fell from the car to the ground.
    Argued Jan. 9, 1912.
    Appeal, No. 234, Jan. T., 1912, by plaintiff from order of C. P. No. 4, Pbila. Co., June T., 1908, No. 6085, refusing to take off non-suit in case of Nathan W. Shive v. Philadelphia & Reading Railway Company.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carr, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    At the trial the court entered a compulsory non-suit which it subsequently refused to take off.

      Error assigned was refusal to take off non-suit.

      Peter M. MacLaren, with him Walter H. Fenimore, for appellant.
    When a passenger is injured either by anything done or omitted by a railroad company or its employees or by anything connected with the means or appliances of transportation, the mere happening of the injury raises a prima facie presumption of negligence and throws upon the company the burden of proving that such injury was in no way the result of its negligence : Tilton v. Philadelphia Rapid Transit Company, 231 Pa. 63; Laing v. Colder, 8 Pa. 479; Hatch v. Ry. Co., 212 Pa. 29; Penna. R. R. Co. v. Hope, 80 Pa. 373.
    It was for the jury to determine whether the passenger in this case occupied the position he did from necessity or from choice: Camden and Atlantic R. R. Co. v. Hoosey, 99 Pa. 492; Creed v. P. R. R. Co., 86 Pa. 139; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Rager v. Penna. R. R. Co., 229 Pa. 335.

      Wm. Clarke Mason, for appellee.
    The plaintiff’s evidence fails to show that the defendant operated the train in a careless and reckless manner, as averred in the plaintiff’s statement of claim, and therefore the non-suit was justified: Herstine v. R. R. Co., 151 Pa. 244; Cline v. Rys. Co., 226 Pa. 586; Levin v. R. R. Co., 228 Pa. 266; Sutton v. R. R. Co., 230 Pa. 523.
    The plaintiff was guilty of contributory negligence in placing himself in a position of obvious danger: Camden & Atl. R. R. Co. v. Hoosey, 99 Pa. 492; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Hopkins v. R. R. Co., 225 Pa. 193; Giovanelli v. R. R. Co., 228 Pa. 33.
    March 18, 1912:
   Opinion by

Me. Justice Stewaet,

The injury plaintiff sustained is traceable directly to the dangerous position he occupied on the car on which he was a passenger. He was not within the car, but was standing in the open doorway with his back to the interior of the car with one hand resting on the door-jamb, while in the other he was holding an umbrella. While in this position the train started. It had proceeded but a short distance when passing a switch or crossing, another track than its own — it does not clearly appear which — the car on which plaintiff was a passenger was jolted, not however to any unusual degree, but nevertheless to a degree sufficient to cause passengers within the car and standing nest to the plaintiff to press against him. By this pressure he was forced from his position out upon the platform, and in his effort to take hold of the railing of the car he fell to the ground. The negligence complained of was that the defendant company by its servants in charge operated the train in such a reckless and careless manner that at or when the point where the tracks crossed Bace street, the plaintiff without fault or contributory negligence on his part, was violently jolted and thrown from his position on the car upon the track. It is quite sufficient to say with respect to the negligence here alleged, that there was no evidence in the case to' support the charge. It cannot be pretended that the accident occurred through any defect in any of the means of transportation or that these or any of them were being employed in a negligent way. So far as appears from the evidence, there was not a circumstance in the case indicating that anything had occurred in connection with the operation and management of the train or in its movement, that was not necessarily incident under the most skillful direction with the most approved equipment. Had the negligence charged been failure on part of the company to provide the plaintiff with a safe place in which to ride, in consequence of which the injury resulted, the case would not have been so entirely naked of facts tending to support the charge, for, accepting the testimony offered as correct, the car on which plaintiff rode was crowded beyond its seating capacity, and its aisles so filled with passengers standing, that plaintiff could advance no further than the door. Unquestionably injury happened to him because of the position he occupied; but was he in that position because the company had allowed him no other accommodation? He does not so testify. He says that there was a passenger coach in the rear of the one on which he was riding which contained no passengers. He made no attempt to enter that car either before or after he made the discovery that the first car was crowded. He nowhere gives any reason for not seeking a safer place than the one he occupied; nor does he mention a single obstacle or circumstance that stood in the way of his finding a seat in the car to the rear. So far as appears a step or two across the connected platform of the two cars would have placed him where this accident at least could not have happened. The testimony not disclosing any necessity for his occupying the position he did, and remaining in it, the lack of such evidence was not to be supplied by conjecture on the part of the jury. For the injury that resulted he was without cause of action.

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


author: Me. Justice Mesteezat, Mr. Justice Elkin,

text:
    Lewis v. Philadelphia, Appellant.

      Municipalities — Municipal contracts — Collusion between city officials and contractor — Findings of fact.

    1. A finding of fact by a chancellor that a municipal contract was entered into by a fraudulent combination between' the city officials and a contractor, will not be reversed by the appellate court where the established facts amply warrant such finding.

      Municipalities — Municipal contract — Supplemental contract— Repair of streets — Advertising—Competitive bidding.

      2. Where a municipal contract for repairing the streets of a city during a particular year declares that the amount to be paid shall not exceed a sum stated, “being the amount at present appropriated and available for that purpose,” and further provides that when further appropriations are made the contractor will, at the request of the city, enter into additional contracts for the continuance of the work during the year “at the prices herein provided, and in accordance with the proposal and specifications hereto attached” the city cannot enter into a supplemental contract with the same contractor without the necessary legal prerequisites of advertising and competitive bidding.
    Mr. Justice Elkin dissents.
    Argued Jan. 10, 1912.
    Appeal, No. 86, Jan. T., 1911, by defendants from decree of C. P. No. 2, Pkila. Co., Sept. T., 1910, No. 3899, on bill in equity in case of Theodore J. Lewis, S. Weir Mitchell, Wm. M. Longstreth, Arthur H. Lea, Andrew B. Wright, Charles F. Jenkins, Barton C. Hirst, Cyrus D. Foss, Jr., Newbold Etting, Logan M. Bullitt and Charles C. Binney v. City of Philadelphia; John E. Beyburn, Mayor of the City of Philadelphia; John M. Walton, Controller of the City of Philadelphia; Murrell Dobbins, Treasurer of the City of Philadelphia; George B. Stearns, Director of the Department of Public Works of the City of Philadelphia ; Wm. B. Benson, Chief of the Bureau of Highways of the City of Philadelphia; Filbert Paving and Construction Company, a Corporation Organized Under the Laws of the State of Delaware; Bichard Y. Filbert and B. F. Richardson. Before Fell, C. J., Beown, Mesteezat, Elkin and Stbwabt, JJ.
    Affirmed.
    The opinion of the Supreme Court states the facts.

      Error assigned was decree awarding injunction.

      Hampton L. Carson, with him John Kent Kane, for appellant.
    The judges in the lower courts distinctly have declared that in certain cases supplemental contracts are legal. There is no ruling of this Court which contravenes or denies this: Smith v. Philadelphia, 17 Pa. D. R. 231; Clark v. Pittsburgh, 217 Pa. 46; Smith v. Philadelphia, 17 Pa. D. R. 381; Sheppard v. Philadelphia, 17 Pa. D. R. 636; Croasdill v. Philadelphia, 18 Pa. D. R. 719; Smith v. Philadelphia, 227 Pa. 423.
    The contract and the so-called supplemental contract in the case under discussion at bar, are integral parts of each other: Smith v. Philadelphia, 227 Pa. 423.
    The advertisement covered the work being done under the agreement for the year 1910, and the appropriation was more than sufficient.
    There was no legal evidence of a conspiracy either in the formation, or performance of the contract: Filbert v. Philadelphia, 181 Pa. 530; Ballantine v. Cummings, 220 Pa. 621.

      Thomas Raehurn White, for appellees,
    cited Nelson v. New York, 131 N. Y. 4 (29 N. E. Repr. 814); Anderson’s Case, 109 N. Y. 554 (17 N. E. Repr. 209).
    March 18, 1912:
   Opinion by

Me. Justice Mesteezat,

This bill was filed by certain citizens, residents and taxpayers of the city of Philadelphia against the city, its officers, and the Filbert Paving and Construction Company, and prays that a contract and supplemental contract between the city and the company for repaving and resurfacing asphalt paved streets occupied by tracks of the Rapid Transit Company be declared void, and that the company be required to account for the money paid to it under the contracts. After the proper advertisements, the contract was executed on June 29, 1910, and required the company to furnish the material and perform the work in repaving and resurfacing the streets during the year 1910. It declares that the amount to be paid for the materials and the work “shall not exceed the sum of $50,000, being the amount at present appropriated and available for that purpose.” The contract further provides that when further appropriations are made the company will, at the request of the city, enter into additional contracts for the continuance of the work. The supplemental contract was executed on August 4, 1910, and provides that the original agreement “shall be amended so that the amount to be expended shall in no event exceed $200,000 instead of $50,000.”

The bill charges that the contract and supplemental contract were entered into in violation of law and in collusion with the city officials in pursuance of a conspiracy to cheat and defraud the city, that the supplemental contract was void for the further reason that it was not preceded by any advertisement for bids for the work covered by it, and that the company had negligently and fraudulently returned false measurements of work actually done and claimed and received payments of money according to rates contrary to the spirit and intent of the contract. The learned court found that the supplemental contract was invalid because its execution was not preceded by advertisement or competitive bidding, and that it was the result of an unlawful combination between the department of public works and the Filbert paving and Construction Company to defeat the provisions of law relative to advertising and competitive bidding, and entered a decree declaring it to be illegal and void and restraining the controller from approving, and the city treasurer from paying, any warrants for moneys claimed to be due tbe Filbert Paving and Construction Company for work done under said contract; and further requiring tbe Construction Company to account for tbe money paid it under tbe sanction of tbe officers of tbe Bureau of Highways acting under color of tbe said illegal contract. From this decree tbe Filbert Paving and Construction Company took this appeal.

As said by the learned court below, the history of the transaction makes the court’s findings clear and its conclusion inevitable. The story of the several transactions leading up to and consummated in the execution of tbe supplemental contract is found in the evidence submitted on the trial of the cause. The director of public works in December, 1909, advertised for proposals to repair the asphalt streets occupied by the Rapid Transit Company’s railway tracks. The work was divided into three classes, one in which the number of square yards to be repaired in a given city square was between 100 and 500 yards, one between 500 and 1000 yards, and one where it exceeded 1000 yards. The appellant company and Barber Asphalt Paving Company bid for each class of work. Upon the basis of the yardage of work done during tbe previous year, tbe Barber Company was the low bidder. The bids were all rejected. In May, 1910, there was a second advertisement and bids were again submitted by the same bidders. There were, however, but two prices asked for: one where the number of yards was between 100 and 500 in a given square, and the other where tbe number exceeded 500 yards in a square. The bid of the Barber Company was the lower, but the Filbert Company claimed that the Barber Company bad been given exclusive information as to the approximate quantities of work to be done, and the bids were rejected. There was no force, however, in such claim as tbe Filbert Company knew tbe amount of work which bad been done tbe preceding year and that tbe bids would be computed on tbe same amount of work. The learned court found: “The said claim of the Filbert Company was made by them for the purpose of obtaining a rejection of the bids, and to secure the insertion of misleading information in the next advertisement for bids.” •

In June, 1910, there was a third advertisement and a third submission of bids, and the specifications required the bids to be computed on estimated quantities of work based on the amount of work of the same character done in 1909. These estimated quantities of resurfacing were 34,139.66 square yards in amounts over 100 and less than 500 square yards in a given city square, and 90,018.79 in amounts exceeding 500 square yards in a city square. The director of public works reserved the right to order work in different amounts at his discretion. The Filbert Company bid seventy-five cents for work in quantities of 100 to 500 yards, and twenty cents for work in quantities exceeding 500 yards in a given square; while the Barber Company bid sixty-three cents for each class of work. The Filbert Company was the low bidder, based on the estimated quantities of the work given in the specifications, and the contract was awarded to that company. The specifications on which the bids were made provided that the work should be done in strict accordance with the annexed specifications which were made a part of the bid and that contracts for work might be awarded and executed from time to time in the discretion of the department of public works. Prior to the submission of bids in June 1910 the Chief of the Bureau of Highways had in his possession information showing that the total yardage required in amounts less than 500 yards in a square was 70,800 square yards and the total yardage in amounts exceeding 500 yards in a square was 30,832 square yards. The learned court finds that when the Chief of the Bureau of Highways inserted the estimate given in the advertisement for bids he knew that the estimate was misleading, and further that the records of the office of the director of the department of public works afforded precise information of what had been the actual requirement in making such repairs and how they had been met, and that from these records the officials could have ascertained approximately the probable amount of repairs of each class which would be required during the year 1910. The court also found that the general manager of the Filbert Company knew, when he submitted bids in June, that the estimated quantities stated in the advertisement for bids as to the probable amounts to be required during the year 1910 were untrue and misleading.

It will be observed that the bid of the Filbert Company was grossly unbalanced and, as was found by the count, was notice to the officers of the city that some fraud was contemplated. On the estimate given in the advertisement it is obvious that the bid of twenty cents would net a large loss to the contractor for every yard done and it is equally clear that on the seventy-five cent bid there would be a large profit. The bid, however, was accepted.

Of the estimated quantities of resurfacing given in the advertisement, 72% per cent, of the whole work was in amounts greater than 500 yards in a given square, and was to be computed at twenty cents per square yard, and 27>2 per cent, was in amounts between 100 and 500 yards in a given square and was computed at seventy-five cents per square yard. When, however, the work was actually done and paid for under the contract prior to November 11, 1910, amounting to 176,921 yards, only 17 2-10 per cent, of the whole had been done in amounts exceeding 500 yards in a given square and paid for at twenty cents per square yard, and 82 8-10 per cent, of the whole had been done in amounts exceeding 100 yards and less than 500 yards and paid for at seventy-five cents per square yard. In addition the learned court finds: “On June 29, June 30, and July 1st, the day the contract was executed and the two following days, orders were issued for 37,959 square yards of resurfacing at seventy-five cents and 4,400 square yards at twenty cents. Up to the time of the filing of the bill none of the said work ordered at twenty cents bad been paid for and so far as tbe evidence shows none bad been done.” It is further found: “From June 29th to August 3rd inclusive, August 4th being tbe date of tbe supplemental contract, orders bad been given for 126,260.15 square yards at seventy-five cents and for 39,362 square yards at twenty cents. Practically all of tbe said work ordered at seventy-five cents bad been done and paid for prior to the filing of tbe bill. Of tbe 39,362 square yards at twenty cents, 33,325 square yards bad not been paid for prior to tbe filing of tbe bill and so far as tbe evidence shows tbe work bad not been done.” In addition to this, from June 29th to August 3rd orders bad been given amounting to 23,500 square yards in amounts of exactly 500 yards in a square. Tbe total Cost of tbe asphalt work done by the Filbert Company prior to November 1910 was $115,896.55, and tbe court finds that if tbe same amount of work bad been done in tbe estimated proportion on which tbe bids were computed it would have cost only $62,143.15, or $)53,753.40 less than tbe amount actually paid tbe Filbert Company.

In addition to the above it appears from the evidence, and is so found by the court, that more than one-half of the work done at seventy-five cents per yard was in amounts exceeding 400 and not exceeding 500 yards in a given square, that more than 15,000 square yards were in amounts exceeding 496 and not exceeding 500 yards in a square, that in a number of instances the officers of the Survey Department made report of measurements and approved bills under the contract in amounts equally or slightly less than 500 sqare yards in a given square, where the work actually done by the Filbert Company in the square was in excess of 500 square yards. From these and other facts the learned court was amply justified in finding that the officers of the city under the contract in suit gave orders for work in amounts exceeding 100 yards and not exceeding 500 yards with intent to favor the contractor. There are numerous other instances appearing by the evidence which point to collusion between the contractor and the city officials in letting the contract to the Filbert Company, and which have been found and set out in detail by the court.

From the established facts in the case, there is no escape from the conclusion that the officers of the department of public works were in collusion with the Filbert Company from the incipiency of the contract to the filing of the bill in this case. When the advertisements were made for bids in December, 1909, the department had before it the work of that year and, therefore, the data was in its possession, as found by the court, from which it could have given approximately correct estimates of the different classes of resurfacing which would be required in 1910. The same information was before the department when it advertised for bids in May, 1910. Not only did the department have such information, but the Filbert Company could have obtained such knowledge from its own records and doubtless did so. It was the merest pretext on the part of that company in demanding of the department that the lower bid of the Barber Company made in May, 1910, should be set aside because the latter company had been given information as to the approximate quantities of work to be done. The department of public works and the Filbert Company both had the information which was given to the Barber Company. The two companies, therefore, stood upon the same footing as to knowledge of the approximate quantities of work which would be required to be done in the year 1910. The learned court is fully sustained by the facts in finding that the claim of the Filbert Company was made to secure the insertion of misleading information in the next advertisement for bids. In this it manifestly succeeded. The bid of the Filbert Company under the third advertisement was an unbalanced bid, thus giving to the company and to the department the opportunity, by collusion, to aid a favorite contractor. The bid was manipulated with a skill and in a manner that would do credit to those who were trained in such matters. The result is stated above. In the second bidding, the Filbert Company bid forty-five cents for the work in squares exceeding 500 square yards and thirty-six cents for work in squares from 100 to 500 square yards. Under its third bid, the Filbert Company was to do nearly three-fourths of the work at twenty cents per square yard and about one-fourth of it at seventy-five cents per square yard. It will be seen that in comparison with its second bid, twenty cents was unreasonably low for the work to be performed, and, as found by the court, the work at twenty cents if done according to the advertisement must have resulted in great loss to the contractor. Why, therefore, was such a bid made? It would be idle as well as absurd to assume that the Filbert Paving Company intended to do the work at a loss, and at so great a loss as would result from performing the estimated proportion of the work at twenty cents per square yard. It would be equally absurd to assume that the Filbert Paving Company did not know, at the time it made such bid, that it could protect itself against a loss. Of course, such protection was not within the power of the company itself but must necessarily be brought about by the assistance of the department of public works. Acting in concert, the city’s officials and the Filbert Company could convert a manifest loss which would result from a compliance with the contract into large profits for the Filbert Company. Under the bid and the specifications the opportunity was afforded and the result shows it was readily embraced. In the first place, as found by the court below, the department knew that the estimate was false and misleading when it was inserted in the advertisement. The orders specifying the streets to be resurfaced under the contract were given from time to time to the contractor by an officer of the department of public works and by the asphalt inspectors in the several highway department districts. These officers, without the exercise of any discretion on the part of the Chief of the Bureau of Highways, issued orders for work calling for quantities over or under 500 square yards. This gave the desired opportunity for the city officials to add to the amount of the work to be done at the higher price and to lessen the work to be done at the lower price bid by the contractor. We have stated above what they actually did, and the extent to which they transferred the low priced work at twenty cents per square yard to the high priced work for which the city was to pay seventy-five cents per square yard, thereby disclosing unmistakably the fact that the city employees in the department of public works were acting in collusion with the contractor to defraud the city. By this conduct of the city employees, the low priced work estimated in the advertisement to be 72l/2 per cent, of the entire work and to be done at twenty cents per square yard had been diminished to 17 2-10 per cent, of the whole amount, and the high priced work estimated in the advertisement at 27y2 per cent, of the entire amount of work and to be paid for at seventy-five cents per square yard was increased to 82 8-10 per cent, of the whole amount of work to be done. The unbalanced bid, as manipulated by the city officials in collusion with the contractor was, therefore, the efficient instrument by which a loss, which would necessarily have resulted to the contractor from compliance with Ms bid, was converted into a profit of over $53,000 to the contractor for the work done up to November 11, 1910. Not only did the contractor reap the benefit of the action of the city officials in issuing orders in undue proportion for work to be done in less amounts than 500 square yards, but he was relieved from the five-year guaranty which he was required to give for all work done in quantities exceeding 500 square yards in a given square. No such guaranty was required with the work done in quantities of less than 500 square yards. The gain, therefore, to the contractor was more than the amount of additional money he received as he was relieved from the five-year guaranty contract. We think further discussion of this phase of the case is unnecessary.

The above recital of part of the facts is in itself amply sufficient to warrant the finding of the learned court below that there was fraud and collusion between the contractor and the city officials.

Most of the material facts were known to the department of public works at the time it entered into the supplemental contract of August 4, 1910. The director knew, as found by the court below, when he executed the supplemental contract that the twenty-cent work instead of being 72% per cent, of the total, as he had assumed in his price formula, was by actual performance only 5 per cent., and that the seventy-five cent work instead of being 27% per cent, was by actual performance 95 per cent, of the total. In short, he knew that he was paying seventy-two cents per square yard for the work. This was found by the court and is amply sustained by the evidence. In addition to other evidence, the attention of the director was called to these facts by a letter of July 13, 1910, in which the relative quantities of high priced and low priced work being done by the contractor were directly brought before him. This information was not only known to the head of the department but to the officers who gave the orders to the contractor to do the work. With this information before him, with the knowledge that under the contract of June, 1910, the contractor was doing only 5 per cent, of the work at the lower price and 95 per cent, of the work at the higher price, and the whole work at over seventy-two cents per square yard, the director of the department entered into the supplemental contract agreeing to pay the same contractor $150,000 more for work at the same rate. The conclusion is irresistible that the conspiracy and collusion which attached to and tainted, the original contract entered into the supplemental agreement.

The contract of August 4, 1910, was a supplemental agreement prohibited by the statutes and ordinances regulating municipal contracts, and was therefore invalid and not binding upon the city. The requisites of a valid municipal contract and the argreements forbidden by the statutes and ordinances applicable to the city of Philadelphia are pointed out in Smith v. Philadelphia, 227 Pa. 423. The learned counsel for the appellant seeks to differentiate the present case from Smith v. Philadelphia on the ground that the supplemental contract was authorized by the original contract and was merely an extension or an enlargement of the prior contract. With this contention we do not agree. The contract of August 4th was a new agreement entered into by the city and the contractor by which the latter was to perform work at the unit prices stated in the original contract “and in accordance with the proposals and specifications hereto attached” to the amount of $150,000. Had this agreement been made with another contractor on the same terms, it would not even be suggested that it was not an agreement separate and distinct from the contract of June 29, 1910. That it is between the same parties is wholly immaterial. Had it not been entered into, there would be no liability on the part of the contractor to perform the work nor any liability on the part of the city to pay for the work. It was a new agreement on the part of the contractor to repair and resurface the traction road streets with work and materials to the amount of $150,000.

The original contract provided that the work to be done under it should not exceed the sum of $50,000, being the amount stated in the agreement as then appropriated and available for the purpose. Beyond that amount, the contractor could not bind the city for work done under the contract. He could recover nothing additional for work done, and the city could not compel him to do any additional work under the agreement. The contract was at an end between the parties, and any further work done in repairing or resurfacing the streets could legally be done only in pursuance of another contract duly executed by the parties. The parties attempted to acomplish this purpose by entering into a supplemental contract of August 4th without the requisite advertising and competitive bidding. This was not authorized by the original agreement. That contract declares that the amount to be paid for the work to be done under it should not exceed $50,000. In a subsequent clause a like declaration is made, but with the proviso: “Unless amended or supplemented as hereinbefore provided.” The appellant relies on this proviso' to give validity to the supplemental agreement. But the proviso is entirely inconsistent with the preceding paragraph in which the amount to be expended on the work is absolutely fixed at the sum named. Moreover, the proviso is rendered nugatory, as there is no provision “hereinbefore” for amending or supplementing the original agreement. The only prior provision relative to additional contracts is that on the expiration of the original agreement “a further contract or contracts.” and not “amendatory or supplemental” contracts, may be entered into “at the prices herein provided and in accordance with the proposal and specifi- , cations hereto attached.” It was a new or “further contract” according to the original specifications which the contractor was required to enter into at the request of the city. The proviso is therefore ineffective and necessarily falls.

That the original contract required the contractor to enter into a further contract at the request of the city is wholly immaterial and does not validate the otherwise illegal agreement of August 4th. Such a provision was binding on neither the city nor the contractor as neither could validate it by becoming a party to it. The precedent advertising and competitive bidding being wanting in such a contract it was void, and the attempt to infuse life into it by the provision in the original contract was fruitless. To sustain the distinction made by the learned counsel for the appellant between the supplemental contract declared void in Smith v. Philadelphia and the contract of August 4th in the present case would afford the parties an opportunity to do just what the law says they shall not do: enter into municipal contracts without advertising and competitive bidding. If the parties may enter into an agreement such as we have in this cuse, and legally provide therein for supplemental agreements at the pleasure of the city without complying with the necessary legal prerequisites, the statutes and ordinances regulating municipal contracts will be set at naught, and there will be no limit to the number of supplemental contracts or the amount to be expended thereunder. The favorite contractor would then indeed have a harvest, and the unfaithful city officer would be afforded the opportunity of expending the city’s money in defiance of the law which requires advertisement and competitive bidding. The parties cannot evade the law and squander the city’s money by any such device.

The decree of the court below is affirmed.

Mr. Justice Elkin,

dissenting:

I cannot give my assent to the proposition that the city did not have the power to make the contract in question, and that is one ground upon which the court below and here bases the decision. I fully agree that if there.was collusion and fraud either in making the contract, or in the performance of work under it, the relief prayed for should be granted. But it is a very different thing to say that the city could not make, under any circumstances, a valid contract such as was made in the present case, even if acting in good faith and for the general welfare of the public. To so hold is to deny the city the right to exercise a power it possesses, even for a good and wholesome purpose. For the purposes of this case it is not necessary to take such an extreme position, because the rights of the parties could have been determined upon the facts as found by the learned court below, without taking from the city a power which in many instances can be beneficially exercised by municipalities. In the present case there was a previous appropriation, unexhausted; a previous advertisement for bids covering repairs for the whole year; and a contract which required in express terms the contractors to do the additional work when requested by the city. Everything subsequently done was in accordance with the terms of the original contract which was made after advertisement upon the basis of competitive bidding. It is true that the original contract contained a provision limiting the cost of the work to be done to $50,000, being the amount of the appropriation then available for street repairing purposes. But the contract also provided in terms that as further appropriations became available the city would have the right to call upon the contractor to continue or complete the work “at the prices herein provided and in accordance with the proposal and specifications hereto attached.” In another clause of the contract it was declared to be the understanding of the parties that the expenditures for materials and labor were to be limited to $50,000 “unless amended or supplemented as herein provided.” The subject matter was repairs of streets, not new improvements, or work of a fixed definite character. It is the duty of the city to repair its streets, and this is a continuing obligation. In the very nature of things municipal authorties cannot at the beginning of a year definitely fix the amount and character of the repairs which the streets may require during the entire year. The extent and necessity of repairs must be ascertained from time to time by the municipal authorities charged with the duty of inspection. There is no statutory provision, and there should be no policy of law, requiring successive advertising every time certain streets may need repairs during the year. All of these things should be contemplated in the original advertisement; the bids should be made upon this basis; and the contract should cover these conditions. It seems to me this is the proper view to take of the power of a city in dealing with the subject of street repairs. To deny the city the power to make annual contracts upon a single advertisement, where all the bidders are on equal footing, is to seriously interfere with the orderly conduct of municipal affairs. The previous advertisement in the present case was for repairs “during the year 1910, as required by the Highway Department,” and the work was all done under the contract in that year. My position is that the city had the power to make such a contract, and in the absence of collusion or fraud, it was binding, according to its terms, upon all parties concerned. Of course, if there was collusion and fraud, the contract, whether it be called original or supplemental, was vitiated, and the parties could assert no rights under it. The collusion and fraud charged depend upon the facts and not upon the power of the city to make the contract.

For the reasons stated, I cannot agree with that part of the opinion which in effect declares that the original contract did not cover repairs of street for the whole of the year 1910, and that it required readvertisement as additional repairs became necessary.


text:
    Kaufmann, Appellant, v. Philadelphia.

      Road Haw— Widening street — Title to land — Dedication—Deed— Damages,

    1. Where a lot 137 feet deep abuts on a street sixty-six feet wide, and the city by ordinance widens the street to seventy-two feet, by taking a three feet wide strip on each side, but providing that existing buildings shall not be affected until altered or re-built, and thereafter the owner conveys the land by deed in which it is described as 131 feet deep on a seventy-two feet wide street, and the grantee in turn conveys the land by the same description to another person, such third grantee can claim no damages for the widening when he re-builds according to the building line of the widened street. In such a case the first deed made the three feet wide strip a part of the street as effectually as a formal dedication to the use of the public could have made it.
    2. The fact that the coping and steps of the building extended onto the strip of land included in the widening of the street is unimportant as affecting the rights of the parties, if the encroachment was not beyond the limits of the usual permissive use of city streets.
    Argued Jan. 10, 1.912.
    Appeal, No. 13, Jan. T., 1911, by plaintiffs from order of C. P. No. 3, Pbila. Co., June T., 1905, No. 2168, refusing to take off non-suit in case of Morris A. Kaufmann, et al., Executors, Etc. v. City of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Davis, J.
    At the trial the plaintiff made the following offer:
    “Mr. Carr: I offer to prove by this witness that, in accordance with the Ordinance of 1886, he, as the surveyor of the third district, in which this property is located, prepared a plan of the street, showing the buildings that would be affected by the widening; that the plan so prepared by him shows that the property on the southwest corner of Thirteenth and Arch streets and the buildings thereon were affected by the widening; that on the three foot portion of the property between 134 feet and 137 feet there was erected a portion of the building which was there prior to the Ordinance of 1886; that the plan shows that this portion of the building would be affected by the taking of the three feet necessary in the widening; this to be followed by other testimony showing that the plaintiffs, when given possession of the property, had possession of the whole 137 feet, and continued in that possession until they began to rebuild, when, in accordance with the Ordinance of 1886, they had to recede three feet, that is, they were given the building line as 36 feet from the center of the street. I also offer to prove by other witnesses that this portion of three feet of the lot is of great value, and was worth at the time of the taking over $5,000.
    “Mr. Gibbons: This offer is objected to, because the deed offered in evidence on behalf of the plaintiffs recites the property purchased as follows: ‘All that certain lot or piece of ground, with the buildings and improvements thereon erected, described according to a survey made thereof by W. C. Cranmer, surveyor and regulator of the third survey district of the city of Philadelphia, on the 9th day of October, A. D. 1895, as follows, to-wit: Situate on the south side of Arch street (as widened to the width, of 72 feet) and west side of Thirteenth street, in the • ninth ward of the city of Philadelphia, containing in front or breadth on the said Arch street 60 feet and extending of that width in length or depth southward along the west side of said Thirteenth street 134 feet to the north side of Cuthbert street, bounded northwardly by the said Arch street, eastward by said Thirteenth street, southward by said Cuthbert street and westward by ground now or late of William Sansom,’ said deed being dated February 17, 1902, and recorded in Deed Book W. S. V. No. 35, page 198.
    “The Court: It appears from the deed of the St. George’s Hall Society to Henry Charles Lea, dated December 23, 1895, that the grantee in that deed took title to a lot of ground 134 feet in depth, fronting on Arch street as widened to the width of 72 feet. This description is carried in the deed from Henry Charles Lea to Morris Liveright and Benjamin F. Greenwald, dated February 17, 1902, the grantees in that deed being the plaintiffs in the case at bar. It would seem, therefore, that the plaintiffs did not take title under the deed from Lea to Livei’ight and Greenwald to the three feet of ground for which they now claim compensation, by reason of the alteration of the building and the widening of Arch street to the width of 72 feet, as set forth in the Ordinance of 1886. For these reasons I sustain the defendant’s objection.
    Exception for plaintiffs. [3]
    The court entered a compulsory non-suit which it subsequently refused to take off.

      Errors assigned were (1) refusal to take off non-suit and (3) ruling on evidence quoting the bill of exceptions.

      William, A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellants.
    Appellants took title to the three foot portion of the ground with the portion of the improvements thereon erected. According to the rule of law announced in all the cases, a conveyance of land bounded on a street gives to grantee a title to the middle of the street if the grantor himself had a title to it, and did not expressly or by clear implication reserve it: Paul v. Carver, 24 Pa. 207; Fitzell v. Philadelphia, 211 Pa. 1; Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92.
    The mention in a deed, by name, of a street which is upon the city plan, but unopened, does not amount to a dedication to the public use of the grantors’ title to the soil of the street: Forbes St., 70 Pa. 125; Brooklyn St., 118 Pa. 640; Neely v. Philadelphia, 212 Pa. 551.

      Henry J. Gibbons, assistant collector, with him Edwin O. Lewis, assistant city solicitor, and Michael J. Ryan, city solicitor, for appellee.
    Appellants are estopped by prior dedication in this case. This dedication is proved by appellants themselves in the three deeds offered by them to show the chain of title: Griffin’s Appeal, 109 Pa. 150; Weiss v. So. Bethlehem Borough, 136 Pa. 294; Richardson v. McKeesport, 18 Pa. Super. Ct., 199; Cotter v. Philadelphia, 194 Pa. 496.
    Where a property owner draws back his property line, the abandoned space comes under the jurisdiction of the municipality for all its future use, public or otherwise, if no reservation is made by the donor: Bornot v. Bonschur, 202 Pa. 463; Waters v. Philadelphia, 208 Pa. 189; Forsythe v. Philadelphia, 211 Pa. 147; Higgins v. Sharon Borough, 5 Pa. Super. Ct. 92; Munn v. Sharon Borough, 5 Pa. Super Ct. 103; Richardson v. McKeesport, 18 Pa. Super. Ct. 199; Story St., 11 Phila. 456; Wickham v. Twaddell, 25 Pa. Super. Ct. 188; Carroll v. Asbury, 28 Pa. Super. Ct. 354; Forsythe v. Philadelphia, 211 Pa. 147; Bornot v. Bonschur, 202 Pa. 463.
    March 18, 1912:
   Opinion by

Mr. Chief Justice Fell,

Arch street, in the city of Philadelphia, was originally laid out and opened of the width of sixty-six feet. In 1886 the city by ordinance directed the widening of the street to seventy-two feet, three feet to be added to either side. The ordinance was not to apply at once to properties on which buildings were erected, but all new or altered buildings were to be placed back on the new line established. At that time the St. George’s Hall Association was the owner of a lot with a building thereon, at the South-west corner of Arch and Thirteenth streets, sixty feet in front on Arch street, which was sixty-six feet wide, and extending south on the line of Thirteenth street, one hundred and thirty-seven feet. In 1895 the Association conveyed this lot to Henry C. Lea by deed, in which it was described as being on the South side of Arch street as widened to the width of seventy-two feet and containing in front or breadth on Arch street sixty feet and extending of that width southward along the west side of Thirteenth street one hundred and thirty-seven feet, bounded northward by said Arch street, and eastward by the said Thirteenth street. In 1902 Mr. Lea conveyed the property by deed containing the same description to the plaintiffs, who desiring to rebuild, receded three feet in accordance with the ordinance of 1886. This proceeding was to recover the value of the strip of ground three feet in width included in the street by its widening. At the trial a non-suit was entered.

The contention of the appellants is that under the well established rule of law that a conveyance of land bounded on a highway gives the grantee a title to the middle of the highway, if the grantor himself had title to it, and did not expressly or by clear implication reserve it, they acquired title to the strip of land three feet wide on the Arch street front, and cán recover of the city the loss occasioned by being required to recede three feet when they rebuilt. This contention could be sustained if they had bought a lot one hundred and thirty-seven feet in depth, bounded by a street sixty-six feet in width. But in the deed to them and the deed to their grantor, the lot is described as “situate on the South side of Arch street, as widened to the width of seventy-two feet,” and the three feet' taken from the south side of the street is deducted from the depth of the lot. The right the plaintiffs acquired to the land in question was to its use as part of the highway, in. common with the general public, with the rever-, sionary right to the land as a part of the bed of the street in the event that the street should be vacated. This was all their grantor possessed and all that he conveyed to them. The St. George’s Hall Association in 1895 established a new line as the northern boundary of its lot that conformed with the ordinance of 1886 and conveyed according to it. As between the Association and its grantee the three feet at the northern end of its lot was made a part of the street, as effectually as a formal dedication to the use of the public could have made it: Bornot v. Bonschur, 202 Pa. 463; Forsythe v. Philadelphia, 211 Pa. 147. The plaintiffs, therefore, lost nothing and had no right to recover.

The fact that the coping and steps of the building extended onto the strip of land included in the widening of the street is unimportant as affecting the rights of the parties, since the encroachment was not beyond the limits of the usual permissive use of city streets.

The judgment is affirmed.