author: Mr. Justice Potter,

text:
    Pittsburg for use, Appellant, v. First National Bank of Sheraden.

      Boroughs — Treasurer—Borough, treasurer■ — Public moneys — Warrants ■ — Bank accounts — Overdraft.
    1. Where a borough treasurer opens an account in a bank in his own name as treasurer, and deposits public moneys therein, the account is the account of the treasurer, and not that of the borough. Where after the treasurer has opened such an account he causes words to be stamped on the back of borough warrants, to the effect that such warrants will be paid when properly indorsed at the bank named, and signs the indorsement with his own name as treasurer, such indorsement is the equivalent of a check drawn directly by thé treasurer upon the bank.
    2. Where the treasurer by reason of his also being the cashier of the bank, makes an overdraft on his account as treasurer, the overdraft is in the nature of a loan, not to the borough, but to the treasurer; and the bank, in the absence of any authority in the treasurer to borrow money for the borough, and in the absence of any ratification by the borough of the treasurer’s act, cannot hold the borough liable for the overdraft.

      3. Where a borough treasurer who is also the cashier of a bank opens an account in his bank in his own name as treasurer, and stamps upon the borough warrants his orders for payment directed to his own bank, and subsequently makes an overdraft on his account as treasurer, and thereafter the treasurer presents the warrants in question to the borough auditors passing upon his accounts, no appeal being taken from their report, and the warrants are secured by the bank from the auditors for temporary use in checking up the treasurer’s account, the bank has no right to retain possession of the warrants, or to use them as a means of compelling the borough to pay the amount of the treasurer’s overdraft.
    Argued Oct. 27, 1910.
    Appeals, Nos. 142 and 143, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Third T., 1910, No. 196, dismissing bill in equity and sustaining cross bill in case of Pittsburg for use of the Borough of Sheraden v. The First National Bank of Sheraden and A. R. Albaugh, William J. Sher-aden and Franklin P. lams.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity to restrain the collection of moneys represented by certain warrants and other evidences of debt, and to compel the surrender of such warrants and evidences of debt. Before Miller, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned among others were in dismissing the bill and in sustaining the cross bill.

      N. R. Criss, solicitor for the borough of Sheraden, with him Charles A. O’Brien, solicitor for the city of Pittsburg, and C. Elmer Bown, assistant solicitor, for appellants.—
    The borough was not liable for the overdraft: Railroad Nat. Bank v. Lowell, 109 Mass. 214; East Hartford v. American Nat. Bank, 49 Conn. 539; Merchants’ Nat. Bank v. Nichols, 223 Ill. 41; Citizens’ Nat. Bank v. Alexander, 120 Pa. 476.
    An examination of the evidence will not show any corporate act from which a ratification could reasonably be presumed or even argued: Nason v. Poor Directors, 126 Pa. 445; School Dist. v. Fuess, 98 Pa. 600; Wormstead v. Lynn, 184 Mass. 425.
    A municipality may, under certain circumstances be held upon an implied obligation or promise, but we submit that no case in Pennsylvania or elsewhere has ever carried the doctrine of implied liability to the extreme to which it has been carried by the learned court below in this case.
    The mere rendering of a benefit, and its enjoyment by the municipality will not raise an implied promise to pay: Anderson v. Hamilton Twp., 25 Pa. 75; Gibson v. Poor Dist., 122 Pa. 557; Long v. Lemoyne Boro., 222 Pa. 311.
    The case at bar is fairly ruled by the case of First National Bank v. New Castle, 224 Pa. 285.
    The auditors’ report was filed with the clerk of the court of quarter sessions, and no appeal being taken within thirty days it became in effect a judgment of the court, and was conclusive except as to mistakes apparent on the face of the record: Com. v. Joyce, 3 Pa. Superior Ct. 616.

      John C. Bane, with him J. D. lams and F. P. lams, for appellees.
    The borough was bound by the action of the treasurer: Dittey v. Bank, 43 U. S. Appeals, 613; Aldrich v. Chemical Nat. Bank, 176 U. S. 618; Logan County Nat: Bank v. Townsend, 139 U. S. 67; Wheeler & Wilson Co. v. Aughey, 144 Pa. 398; Amberson Ave., 179 Pa. 634; McKnight v. Pittsburg, 91 Pa. 273; Sandy Lake Boro. v. Gas Co., 16 Pa. Superior Ct. 234; McCormick’s App., 165 Pa. 386; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268; Long v. Lemoyne Boro., 222 Pa. 311.
    The warrants, being the property itself, were delivered to the bank upon their payment, with its money, as a part of the same transaction. Of this the borough had full notice before its attempted appropriation of the warrants to its own use: Kelly v. Phelan, 5 Dillon, 228; Armstrong v. Chemical Nat. Bank, 41 Fed. Repr. 234; Cocrill v. Joyce, 62 Ark. 216; Masonic Savings Bank v. Bangs, 84 Ky. 135.
    January 3, 1911:
    The warrants in controversy as well as the coupons were paid with the bank’s money by the borough treasurer, marked paid, with the stamp of the bank, showing payment by it, and immediately delivered to the bank, either as the owner thereof or pledgee. For the purposes of this case there is no difference. In either event the bank is entitled to hold them until they are paid: Bond v. Bunting, 78 Pa. 210; Allegheny City v. McClurkan, 14 Pa. 81; Wheeler & Wilson Co. v. Aughey, 144 Pa. 398; Mundorff v. Wickersham, 63 Pa. 87.
   Opinion by

Mr. Justice Potter,

In this case the city of Pittsburg, for the use of the borough of Sheraden, filed a bill in equity against the First National Bank of Sheraden, and against A. R. Al-baugh, William J. Sheraden and Franklin P. lams, directors of the bank. As stated by the trial judge, the • bill sets forth the annexation of the borough of Sheraden to the city of Pittsburg, and charges that the defendant bank has wrongfully in its possession certain vouchers, warrants, bonds, coupons and a check, evidences of paid indebtedness of the former borough of Sheraden, and that said bank demands payment of these vouchers, and threatens suit thereon against the plaintiffs.

The bill prayed that the bank be restrained from attempting by suit or otherwise to enforce the payment of any sums or debts represented by the warrants, bonds, coupons and check in question, and further prayed that the defendants be required to deliver the warrants, bonds, etc., aforesaid, as cancelled vouchers, to the proper authorities of the said city and borough.

The defendant, the First National Bank of Sheraden, filed a cross bill against the city of Pittsburg and borough of Sheraden, praying that the said city and borough be adjudged to be indebted. to the bank in the sum of $17,468.67'with interest, and be ordered to pay the amount of such indebtedness to the bank.

From the findings of fact by the trial judge, it appears that, in November, 1905, T. Ure Williams, then cashier of the First National Bank of Sheraden, was duly appointed borough treasurer of the borough of Sheraden, qualified as such, and assumed the duties of said office under annual appointment of the borough council, until September 6, 1907. Upon that date he was removed from his office of treasurer by the borough council, and an audit of his account was ordered from March 11, 1907 to November 19, 1907. Among other items for which Williams claimed credit, was the payment of the warrants, bonds, vouchers, etc., which are the subject of this dispute, and this claim was allowed by the auditors. After making this allowance, the auditors found him to be indebted to the borough, as we understand their report, in the sum of $4,547.90. The report of the auditors was filed in the office of the clerk of the quarter sessions court on January 17, 1908, and from this report no appeal was taken.

After the auditors had allowed credit’ to Williams for the warrants and other vouchers, which had been produced by him before them, and which were in their possession during the investigation of his accounts, he (Williams) acting for the bank, secured from the auditors the return of these vouchers in question, and placed them again in the vaults of the bank. The testimony of the auditors was that they were obtained from them for the temporary use of the bank, to check up Williams’ account. After thus obtaining possession of these vouchers, which had been used by Williams in his accounting with the auditors, the bank refused to surrender them, and later claimed to hold them as evidence of indebtedness from the borough to it.

It seems that when Williams became treasurer, no depository was designated by the borough, in which the funds should be kept, but Williams as treasurer, opened in his own bank three accounts under the following heads: “Borough of Sheraden, General Fund, T. Ure Williams, Treasurer;” “Borough of Sheraden, Sinking Fund, T. Ure Williams, Treasurer;” “Borough of Sheraden, Sewer and Paving Fund Account, T. Ure Williams, Treasurer.” The method by which payments were made from these accounts by Williams appears from the fifth finding of fact. When warrants or orders for the payment of claims against the borough were presented to him, they were stamped by the treasurer as follows: “This warrant will be paid when properly indorsed at the First National Bank of Sheraden.” Signed “T. Ure Williams, Treasurer.” It will be noted that this indorsement stamped upon the vouchers by the treasurer was the equivalent of a check drawn directly by the treasurer upon the bank. The result was precisely the same as though the treasurer had retained possession of the warrant or other voucher, directed to him, and had issued in payment thereof his check as treasurer, upon the bank in which he kept his accounts as such. He might have paid the warrants in cash, or he might have paid them by checks upon any depository chosen by him. The borough had no control over his action in this respect. As stated in the first conclusion of law, offered by counsel for plaintiffs, and affirmed by the trial judge, the treasurer of the borough, T. Ure Williams, was an independent accounting officer, by statute made the depository of the moneys of the borough. In the fourth request by plaintiffs for conclusions of law, they asked the court to say, “The deposit accounts opened in the First National Bank of Sheraden by T. Ure Williams, the Borough Treasurer, are the accounts of the Treasurer, and not the accounts of the Borough.” The answer of the court was, “Affirmed as to opening of the accounts.” This was true, but the affirmance should have been without qualification, for at no time did it appear that the borough had any control over the accounts which its treasurer opened in the bank. The borough made no deposits; it drew no checks against these accounts. Its funds were placed in the' custody of its treasurer, and were disbursed by means of warrants or vouchers addressed to him, and not to any bank. The fact that he may have stamped his order for payment directed to his bank upon the original warrant, or voucher, made no difference. It was the act of the treasurer, and his alone, that authorized the bank to charge against his account, the amount authorized by him to be so charged. The borough could have no means of knowing whether Williams deposited in the bank all the funds which came into his possession as treasurer. Whether he did or not, was no affair of the borough. That an account thus opened with a bank by the treasurer of a municipality is the account of the treasurer and not that of the municipality, has been authoritatively settled. In Swartwout v. Bank, 5 Den. (N. Y.) 555, a deposit in the bank was made in the name of "Samuel Swartwout, collector.” Whittlesey, J., said (p. 558): “A mere deposit by a collector in his own name, with his official addition, is no accounting for the money received by him in his official capacity. A.county treasurer, sheriff, surrogate, or other such officer, opens an account with a bank with his official addition, and keeps a separate account in such capacity, most clearly he can collect such deposits in his own name, and the bank would not be permitted to show that the money belonged to the county,” etc. This doctrine was cited with approval in Scranton v. Bank, 24 N. Y. 424 (428). It was also followed in Perley v. Muskegon County, 32 Mich. 132 (136), which was a case of a county treasurer. In a still later Michigan case, Lansing v. Wood, 57 Mich. 201, it was said (p. 211): “We held, in Perley v. Muskegon, 32 Mich. 132, that where the bank in which a treasurer makes a deposit is not one which is determined by law as a public agency for deposit, the money which he deposits there is at his own risk and is not a public bailment, and becomes a private debt from the banker to him.”

With regard to the payment of these particular vouchers in question, it seems that the result of the audit showed that after their payment, and after allowing Williams the credit he claimed for having paid them, there was still a balance of $4,547.90 due to the borough in the hands of the treasurer. So that, at the end of his term, as between the borough and the treasurer, the funds of the borough as a whole were not overdrawn. The manner in which the accounts were kept did show that as to two of the separate funds, they were overdrawn, but the balance to the credit of the “Sewer and Paving Fund” gave the borough a large amount to its credit upon the whole amount of its funds, in the hands of its treasurer. If then the treasurer had seen fit to deposit all the funds of the borough in the defendant bank, there would have been no need for any overdraft, taking all of the funds into consideration. But the result of the audit showed that Williams had used the funds of the borough for his own purposes, and had taken advantage of his position, as cashier of the bank, to borrow funds by means of an overdraft created by him, with which to respond to the demands made upon him as treasurer of the borough. An overdraft on a bank is in the nature of a loan, not made in a creditable way, and is regarded with scant favor: Peterson v. Bank, 52 Pa. 206. This overdraft being then in the nature of a loan, to whom was it made? The bank sets up the claim that it was made to the borough; but how could that be? The borough authorities made no application for a loan, and authorized none to be made. Obtaining funds by means of an overdraft was manifestly the act of Williams, for his own relief. As custodian of the borough funds he was undoubtedly short; and, as cashier of the bank, he evidently created an overdraft in order to relieve himself in his capacity as treasurer.

In the official settlement by the borough auditors of the accounts of Williams, he was charged with all the moneys which he was shown to have received as treasurer, and was credited with all sums which he paid out by order of the proper authorities of the borough. Among the items which were thus credited to Williams as having been paid by him out of the borough funds, were the warrants set out in schedules “A” and “B” of the original bill, and the check drawn by Williams in favor of the Southern Heat, Light & Power Company, and the bonds and coupons set out in exhibit “C;” these vouchers constituting the subject matter of the present controversy.

The bank seeks to overthrow the settlement made by the auditors, and sets up the claim that, in so far as these particular items are concerned, the payment by it of Williams’ checks as treasurer for these amounts, was not the payment of funds advanced by it to Williams; that is, of funds advanced to him through the creation of an overdraft; but that such payments were loans to the borough, and that Williams should not therefore have been allowed credit by the auditors for the payment of these items. There are cogent reasons against the soundness of this position assumed by the bank. In the first place, it is directly opposed by the facts as set forth in plaintiff’s ninth request, approved by the court below, as follows: “During the period from March 11, 1907, to September 6, 1907, all of the various warrants, bonds and interest coupons set out in Exhibits ‘A,’ ‘B,’ and 'C’ of the original bill were presented for payment to Mr. Williams as Borough Treasurer, and were paid by him as such Treasurer and the amounts thereof were entered by him in the Borough cash book as disbursements.” If then these payments were made by the treasurer, he was entitled to credit in his account for them. If Williams was entitled to credit for the payment of these items, then of course the bank was not entitled to claim credit for the same items, for that would be to allow a double credit, and would subject the borough to a double charge for payment of these items. It therefore follows that if the bank advanced money to Williams to enable him to meet his obligations as treasurer, it must look to him for repayment-of the.amount, and not to the borough.

We think the facts of this case bring it squarely within the principle of the decision in First National Bank v. New Castle, 224 Pa. 285. The only distinction between that case and the present one, is that the defaulting treasurer there gave a note to the bank for the money loaned; while here, availing himself of his position as cashier of the bank, he overdrew his treasurer’s account to make good his defalcation as treasurer. In the case cited, our Brother Brown said (p. 291): “As stated, he (Blevins, the city treasurer) was unquestionably a defaulter at the time he applied to the bank for the money. Suppose at the time he borrowed the money he had done so for the purpose of settling with the city and turning over its funds in his hands to his successor in office; if the amount lent to him by the bank had been sufficient to make up his default, he would have been able to pay over to the city all of its moneys in his hands, and, in turn, would have received from it whatever security he had given for the faithful discharge of the duties of his office. After a settlement so made, can it be seriously contended that the city should subsequently be compelled to pay to the bank the money borrowed by its defaulting treasurer for the purpose of covering up his default, simply because the money borrowed by him had been placed to his credit as treasurer of the city and paid over by him as a part of what he owed it? The mere suggestion of such a situation, possible at any time, it seems to us, is sufficient in itself to prevent recovery by the ap-pellee. But even if he had not been a defaulter, a rule of public policy imperatively requires that, for the safety of municipalities; no one of its ministerial officers shall be permitted to impose liability upon it in the way Blevins is alleged to have done. It is because of the disastrous results that may come to municipalities if they are held impliedly liable for moneys borrowed by a municipal treasurer, without the knowledge, consent or approval of the municipality, even if placed to his official credit, that a recovery cannot be permitted in this case.” This language anticipates closely the facts in the present case. In its opinion upon the exceptions, the court below suggests that the borough officials knew, as is shown by their minutes, that large overdrafts existed in the bank long prior to Williams’ known default; and that the minutes of the borough council show no repudiation of the overdrafts until after the defalcation was made known. We have carefully examined the testimony in this respect, and find that the minutes referred to are as follows: “May 17, 1907. A report was read from Mr. Williams, the borough treasurer, which was as follows: ‘Balance in Paving and Sewer Account $16,929.99; balance in Sinking Fund Account $3,309.85; overdraft in First National Bank $11,979.69.’ Mr. Patterson wanted to know how the borough had an overdraft in the First National Bank when the borough had no account there, in so far as the treasurer had not been instructed to borrow money from the bank. After some discussion Mr. Riley moved that the treasurer’s report be laid on the table. No action taken oh this motion.”

It will be noticed that this report showed that the borough had on hand in cash in two accounts, $20,239.84; and that notwithstanding this fact, an overdraft in the bank was reported upon another account of $11,979.69. Even if this were accepted as correct, it showed a balance of $8,260.15, in the treasurer’s hands to the credit of the borough. But the report was not satisfactory,. and one of the councilmen asked how an overdraft in the First National Bank could be possible when the borough had no account there, and the treasurer had not been instructed to borrow money from .the bank. The minutes show no answer to this, pointed question. Certainly, no inference of an acquiescence upon the part of council, in the fact of the overdraft, can be properly drawn from this. occurrence. Then, upon August 16, 1907, the minutes show “Motion carried that the matter of an overdraft on the Sheraden Bank be referred to the Finance Committee for satisfactory settlement.” At this meeting' of' councils a resolution was passed requesting the resignation of the treasurer for neglect of his official duty; and at the meeting of September 6 following, he was removed.

We can find nothing in the minutes to show that the council ever authorized or ratified or acquiesced in the alleged overdraft in the bank as reported by Mr. Williams, the treasurer. It cannot be pretended that Williams had any authority to borrow money for the borough. The evidence shows that he was a defaulter, and that the money he took from the bank was used to cover up his defalcation by paying the warrants of the borough drawn upon him as treasurer. The warrants would have been met by the funds of the borough in his hands, if he had not embezzled the money; so that the only reasonable inference is that Williams’ prime purpose in obtaining the loan from the bank, through the irregular method of an overdraft, was to screen himself.

In their argument, counsel for the bank reiterate the statement that the warrants and vouchers in question were paid by the money of the bank. This is not correct in any sense which would give the bank a claim to ownership of these instruments; for, as we have pointed opt, they were paid from the proceeds of the loan to the treasurer, through the overdraft. When the treasurer stamped the warrants and made them payable at the bank, he was thereby, to all intents and purposes, drawing his check for their payment upon the bank. And this payment was made out of the loan made by Williams as cashier to Williams as treasurer, manifestly to take the place of other funds which he had misappropriated, and which but for that misappropriation would have been in his hands to meet the demands of the borough. Suppose that, instead of creating the overdraft, Williams had given his note to the bank and thus obtained the same amount of credit. Would it be suggested for a moment that, because the bank paid checks on this fund, to meet the borough warrants, it was thereby advancing money to the borough? Certainly not. The difficulty arises solely out of the defalcation. If Williams had made good the overdraft, or had made secure the loan which he thus obtained from the bank, it is safe to say that it never would have thought of laying claim to the cancelled vouchers, which Williams produced to the auditors, and for which he was by them allowed credit for the amount on his account with the borough. We are clear that there was no liability upon the part of the borough, for an overdraft in the account which the treasurer personally kept in the bank. Such an overdraft was a loan to the treasurer personally, and not to the borough. The court below was therefore in error in dismissing the original bill in this case, which prayed for the surrender to the borough of the paid warrants, and other vouchers for which credit was allowed by the borough auditors in the settlement of the account with the treasurer. These warrants and vouchers represented items of indebtedness which had been paid by the borough, and should therefore be in its possession to protect it against any future claims for the same debts. Williams as treasurer had no further interest in these vouchers, after the borough auditors had allowed him the amounts, represented by them, as credits on his account. After that time they were properly, in the possession of the auditors, as cancelled vouchers and as such should have been returned to the borough authorities. It also follows that the court below was in error in sustaining the cross bill, and directing the borough to pay to the bank the amount of the overdraft in the treasurer’s account with it.

The decree of the court below is reversed, and it is ordered and directed that the cross bill be dismissed, and that the original bill filed in this case be sustained, and the prayer thereof be granted; and that the First National Bank of Sheraden be restrained from attempting to enforce payment of the sums represented by the warrants, check, bonds and coupons, for which credit has been allowed to the borough treasurer, in the settlement of his account by the borough auditors; and that the defendants be required to deliver the warrants, check, bonds, coupons, etc., in question to the proper authorities entitled to the custody of the papers and records of the borough of Sheraden. The costs to be paid by the defendants in the original bill.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Pittsburgh, Appellant, v. Pittsburgh & Charleroi Street Railway Company.

      Street railways — Municipalities—Operation of leased cars.

    1. Where a street railway company has the franchise to operate its railway on the streets of a municipality, it may operate not only its own cars, but also the cars which are the property of a company which it has leased. In such a case the cars of the lessor company are for all practical purposes the cars of the lessee company when they are operated over the tracks of the latter company.

      Equity — Equity practice — Amendment.
    2. A court of equity will not permit a,n amended bill to be filed five months after a final decree has been entered dismissing the original bill.
    Argued Oct. 27, 1910.
    Appeal, No. 133, Oct. T., 1910, by plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1909, No. 470, dismissing bill in equity in case of City of Pittsburgh v. Pittsburgh & Charleroi Street Railway Company and Pittsburgh Railways Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to restrain the cars of the Pittsburgh & Charleroi Street Railway. Company from being operated within the limits of the city of Pittsburgh by the Pittsburgh Railways Company, lessee of the Pittsburgh & Charleroi Street Railway Company. Evans, J., stated the facts to be as follows:
    The plaintiff in its bill alleges that it and the two defendants are corporations, the former a municipal corporation, and the latter corporations for the operation of street railway lines. It alleges that the Pittsburgh & Charleroi Street Railway Company was leased to the United Traction Company on January 1, 1902; that the United Traction Company was leased to the Pittsburgh Railways Company on January 1, 1902, and that the cars of the United Traction Company are operated under said lease by the Pittsburgh Railways Company; that the cars of the Pittsburgh & Charleroi Street Railway Company are operated by electricity over a route through various townships and boroughs, through the counties of Allegheny and Washington, and on various streets in the city of Pittsburgh, crossing the Smithfield street bridge in the city of Pittsburgh, along Smithfield street to Liberty avenue, along Liberty avenue to Eleventh street and then returning by the same route to the southern end of the Monongahela bridge; that these cars are also operated over a portion of the route of the Sycamore Street Railway Company, which company is now operated by the Pittsburgh Railways Company, and to which company an ordinance of the city of Pittsburgh was granted on May 15, 1899, providing for the crossing of the Smithfield street bridge; that the Pittsburgh and Charleroi cars are operated over the old Pittsburgh & Birmingham Passenger Railway, which is now operated by the Pittsburgh Railways Company j and to which an ordinance of the city of Pittsburgh was granted on August 29, 1859, and by various subsequent ordinances the right was given to the Pittsburgh & Birmingham Passenger Railway Company and its successor, the Pittsburgh & Birmingham Traction Company; that the Pittsburgh Railways Company is also operating a line of cars known as the Carrick line over the tracks and by various lines now operated by the Pittsburgh Railways Company from the borough of Carrick through the boroughs of Mt. Oliver and Knoxville, through what is known as the tunnel route, and across the Smithfield street bridge, Third avenue, Wood street and Water street, in the city of Pittsburgh; that the said line has been operated by the Pittsburgh Railways Company since about December 1, 1908, without the consent or authority of the city of Pittsburgh to operate its cars as herein stated; that the Pittsburgh Railways Company has never obtained the consent of the city of Pittsburgh to operate the cars of the Pittsburgh & Charleroi Street Railway over the streets designated in paragraph 5 of said bill, nor has it obtained the consent of the city of Pittsburgh to operate a line of cars to Carrick over the streets designated in paragraph 9 of said bill; nor has the Pittsburgh & Charleroi Street Railway Company obtained such consent or authority.
    January 3, 1911:
    The defendants demurred to the bill, alleging:
    1. That the alleged causes of action set forth and the relief asked against the different defendants are distinct and separate, and the bill is multifarious.
    2. That the bill discloses no equity against the defendants or either of them.
    3. That it does not appear by the averments of the bill that the operation of the cars therein mentioned is unlawful.
    The court dismissed the bill.

      Errors assigned were (1) in dismissing the original bill and (2) in refusing to permit an amended bill to be filed five months after the original bill was dismissed.

      C. Elmer Bown, with him C. A. O’Brien and C. K. Robinson, for appellant.

      David A. Reed, of Reed, Smith, Shaw & Beal, for ap-pellees.
   Per Curiam,

To sustain this bill would be, in effect, to hold that the Pittsburgh Railways Company can use no cars but those owned by it in exercising its franchise to run cars over the streets of the city of Pittsburgh. When cars owned by the Pittsburgh & Charleroi Street Railway Company reach the tracks of the Pittsburgh Railways Company and are operated over those tracks by that company in the city of Pittsburgh, they become its cars for all practical purposes. It can make no difference to the city that it does not actually own the cars which it uses, nor where it gets them, for, as just stated, all cars operated by its employees on the streets of the city are, so far as the city and the public are concerned, its cars, and the bill was properly dismissed on the demurrer to it.

More than five months after the final decree dismissing the bill was filed, the city presented a petition asking leave to file an amended complaint. This was a most unusual application, and all that need be said about it is that we know of no precedent or authority that would have justified the court in entertaining it.

Decree affirmed at appellant’s costs.


author: Mr. Justice Moschzisker,

text:
    Hopkins, Appellant, v. Rettinger.

      Tax liens — Tax sale — Divestiture of lien — City of Pittsburg.

    1. Until the passage of the general Act of June 4, 1901, P. L. 364, amended by the Act of May 28, 1907, P. L. 280, tax liens in the city of Pittsburg were regulated and governed by the Act of May 16, 1857, P. L. 541, and not by the Act of March 22, 1877, P. L. 16, which was declared unconstitutional in Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231.
    2. A judicial sale in the year 1888, of land situated in the city of Pittsburg divested a tax lien on such land, even though the proceeds of the sale were not sufficient to pay the lien in full.
    3. There is nothing in the Act of February 3, 1824, P. L. 18, extended to Allegheny county by the Act of April 5, 1844, P. L. 199, the language being practically similar to the Act of May 16, 1857, P. L. 541, which justified the court in concluding, as in Pittsburg’s Appeal, 70 Pa. 142, that if on any judicial sale enough to pay off the taxes was not realized the unextinguished balance continued to be a lien.
    4. Statutes providing that taxes shall be a lien which shall be fully paid and satisfied before other liens, are to be construed as not preserving the lien of such taxes from divestiture by judicial sale.

      Argued Oct. 27, 1910.
    Appeal, No. 147, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 360, for defendant non obstante veredicto in case of Andrew Hopkins v. Anthony Ret-tinger.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Ejectment for land in the city of Pittsburg. Before Carnahan, J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      Thomas L. Kane, for appellant.
    The general rule is well settled, that judicial sales of real estate divest all liens, including tax liens, and the creditors are remitted to the proceeds of sale for payment of their claims: Shaw v. Allegheny City, 115 Pa. 46; Bellevue Boro. v. Umstead 38 Pa. Superior Ct. 116; Dungan’s App., 88 Pa. 414; McKay v. Trainor, 152 Pa. 242; Pittsburg v. Hughes, 13 Pa. C. C. Rep. 535.
    The law is well settled, that statutes which give priority of lien and payment to tax liens and direct that they be fully paid and satisfied before any other liens against the real estate, do not prevent the discharge of such tax liens by judicial sale, notwithstanding the proceeds of sale may not be sufficient to pay them: Bellevue Boro. v. Umstead, 38 Pa. Superior Ct. 116; Shaw v. Allegheny City, 115 Pa. 46.
    Under the act of February 3, 1824, extended to Allegheny county by act of April 5, 1844, tax liens were divested by judicial sale of the real estate upon which they were assessed: Allegheny City’s App., 41 Pa. 60.

      January 3, 1911:

      William A. Jordan, with him Thos. D. Chantler, W. H. McClung and S. A. Will, for appellee.
    A number of cases have been decided by this court, in all which it has been held that a judicial sale will not divest a lien for taxes, unless enough be realized at the sale to pay the taxes and costs. Some of these cases are as follows: Pitts-burg’s App., 70 Pa. 142; Eaton’s App., 83 Pa. 152; Oly-phant Boro. v. Egreski, 29 Pa. Superior Ct. 116; Haspel v. O’Brien, 218 Pa. 146; Phila. v. Powers, 214 Pa. 247; Allegheny City’s App., 41 Pa. 60; Phila. v. Cooke, 30 Pa. 56; Smith v. Simpson, 60 Pa. 168; Phila. v. Meager, 67 Pa. 345; Sneathen’s Est., 22 Pa. Superior Ct. 45.
   Opinion by

Mr. Justice Moschzisker,

The controlling question is, Did a judicial sale in the city of Pittsburg in the year 1888 divest a tax lien when the proceeds of the sale were not sufficient to pay the lien in full?

The city of Pittsburg levied and assessed taxes for 1887 and 1888 on a piece of ground owned by one Dunker. Thereafter judgment d. s. b. was entered by one Porte against Dunker, and on April 2, 1888 under an execution on this judgment the property covered by the tax assessments was sold to one Lunn. The proceeds of this sale being insufficient to pay the taxes, on September 24, 1889, a tax lien was entered against Dunker, and thereunder on March 6, 1891, the property in question was sold to one Chantler.

The plaintiff claimed title through Lunn and the defendant through Chantler. The action was in ejectment and the jury rendered a verdict for the plaintiff, but the court below entered judgment for the defendant n. o. v. on the theory that the judicial sale to Lunn did not divest the tax lien and the subsequent sale under that lien passed title to Chantler.

The lien was filed under the Act of March 22, 1877, P, L, 16, providing for the levy, collection and disbursement of taxes in cities of the second class. The eleventh section of this act declares that “taxes shall remain liens until fully paid and satisfied and shall not be divested by any judicial sale except to the extent to which distribution shall be made out of the proceeds of such sale.” This part of the act is void for the reason that it offends against those clauses in sec. 7 of art. Ill of the constitution which ordain that the general assembly shall pass no local or special law “authorizing the creation, extension or impairing of liens, .... or prescribing the effect of judicial sales of real estate:” Safe Deposit & Trust Co. v. Fricke, 152 Pa. 231. The provision under discussion never having been law, and this case having arisen prior to the general Act of June 4, 1901, P. L. 364, as amended by the Act of May 28, 1907, P. L. 280, the fourth Section of the Act of May 16, 1857, P. L. 541, relating to the city of Pittsburg, governed, and this provides that “Taxes .... shall be a lien .... and said lien shall have priority to, and shall be fully paid and satisfied before any .... debt, obligation or responsibility which said real estate may become charged with or liable to.”

Statutes providing that taxes shall be a lien which shall be fully paid and satisfied before other liens, have been repeatedly construed as not preserving the lien of such taxes from divestiture by judicial sale: Allegheny City’s App., 41 Pa. 60; Shaw v. City of Allegheny, 115 Pa. 46; Bellevue Boro. v. Umstead, 38 Pa. Superior Ct. 116. Hence the general rule that a judicial sale discharges all liens applied, and the sale in 1891, under a tax lien which was discharged in 1888, could not have passed the title to Chantler, through whom the defendant claimed.

In holding that the tax lien was not discharged by the sheriff’s sale in 1888, the learned court below fell into error through following what it conceived to be our construction of the Act of 1824, P. L. 18 (extended to the county of Allegheny by the Act of April 5, 1844, P. L. 199); the language of that act being practically similar to the act of 1857. The first of the cases relied upon by the court below, Pittsburg’s App., 70 Pa. 142, deals with sec. 19 of the Act of January 6, 1864, P. L. 1131, wherein it is provided: “If on any .... judicial sale, enough be not realized to pay off the lien, it shall continue to be a lien, until the whole amount, with the costs, be paid in full.” In discussing this act, Chief Justice Thompson there said: “Generally judicial sales divest all liens. But the Legislature thought proper to enact at least the equivalent of the provision contained in the Act of 1824 'that the assessment should be and remain a lien until fully paid and satisfied,’ by the clause quoted above, 'that if on any judicial sale enough was not realized to pay off the lien, it shall continue to be a lien until the whole amount shall be paid with costs.’ This provision corresponds with our decision in 1861 under the Act of 1827 (should be Act of 1824, as appears from an examination of the original manuscript): Allegheny City’s App., 41 Pa. 60. We held that the words quoted, meant, that if enough to pay off the taxes was not realized by the sale, the unextinguished balance continued to be a lien.” As this dictum concerning the act of 1824 has crept into other of our cases, and as it led the court below into error, it is well now to explain it away.

The act of 1824 does not contain any provision to the effect “that the assessment should be and remain a lien until paid and satisfied.” The provision is simply that such lien shall be fully paid and satisfied before other liens. Allegheny City’s App., 41 Pa. 60, does not hold that under the act of 1824 such liens remain until fully paid and satisfied. On the contrary, after a discussion of that act we there say, “A judicial sale discharged the lien and turned the municipal corporation over to a resort to the fund raised by the sale .... the public were supposed to have been secured by the provision which made such claims prior liens to all others.”

Eaton’s App., 83 Pa. 152, cited by the court below, construes the Act of February 28, 1866, P. L. 116, and holds that upon a judicial sale thereunder taxes not paid in full continue to be a lien. But, after quoting the words of that act to the effect that taxes shall be a lien which shall continue until fully paid and discharged, it is there said, “Such have been the decisions of this Court upon the construction of the first section of the Act of February 3, 1824, P. L. 18, .... which, in this respect, does not materially differ from this law.” In that case, this dictum in reference to the act of 1824 comes from the opinion in Pittsburg’s App., 70 Pa. 142, which we have already explained.

The last case, Phila. v. Powers, 214 Pa. 247, was decided under the Act of March 11, 1846, P. L. 114, which expressly provides that the lien shall not be divested by any judicial sale “as respects so much thereof, as the proceeds of such sale may be insufficient to discharge and pay.”

The act of 1857 contains no provision that a tax lien shall remain until fully paid and satisfied, and none of the cases relied upon by the court below are authority for holding that the language employed in that act is sufficient to take liens out of the general and well-established principles regulating their discharge by judicial sales. Having ruled this point for the appellant it is unnecessary to decide the other questions discussed by counsel.

The assignments of error are sustained, the judgment is reversed, and judgment is here entered for the plaintiff.


author: Mr. Justice Stewart,

text:
    Woods, Appellant, v. Pittsburg Coal Company.

      Mines and mining — Surface support — Right of action.

    1. The removal of coal without leaving or providing adequate support for the surface, is in itself an injury to the owner. The injury is not in any way dependent on the natural subsidence or caving in of the surface, but exists at once when any part of the surface has been endangered by leaving it without support. It follows necessarily, that when the duty to support has been violated, a cause of action at once arises, if for nothing more than to vindicate the right of support. The owner of the surface is not required to await the completion of the mining operation, and then bring his action for the damages sustained.
    2. Where injury is of a continuous nature, every fresh injury is a ground of action, and the person whose property is injured thereby may maintain separate and distinct suits therefor, each embracing all causes of action therefrom up to the time of the action brought.
    3. Where mining operations under a farm of 238 acres injure the surface of forty acres of the farm, the owner has a right of action for the injury sustained to the forty acres, and does not have to wait until the coal is removed from under the whole farm. Noonan v. Pardee, 200 Pa. 474, discussed, explained and distinguished.

      Mines and mining — Surface support — Equity—Adequate remedy at law.

    4. Where mining operations under a tract of land have progressed only so far as to injure the portion of the surface over the space mined out, the owner of the surface has an adequate remedy at law for the injuries so far sustained, and is not entitled in a bill in equity to restrain operations under the remainder of his land on the ground that he might be subjected to a multiplicity of suits. It does not follow in such a case that a multiplicity of suits would necessarily result, inasmuch as one compensatory verdict might have the effect of avoiding any occasion for a second suit.
    Argued Oct. 27, 1910.
    Appeal, No. 155, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1909, No. 215, dismissing bill in equity in case of William H. Woods v. the Pittsburg Coal Company of Pennsylvania, and the United Coal Company.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain mining operations. Before Shaeer, J.
    From the record it appeared that plaintiff owned 238 acres of farm land on which he resided excepting the underlying Pittsburg coal vein, and that the United Coal Company under authority from the Pittsburg Coal Company, owner had mined out and removed about forty acres of the Pittsburg vein underlying the plaintiff’s farm. The surface of these forty acres was claimed to have been injured, it was also claimed by the plaintiff that injury was threatened to a four-foot vein of coal overlying the Pittsburg vein, and belonging to plaintiff. The bill averred irreparable injury.
    The prayers were for an injunction restraining the defendants from mining and removing, or causing or permitting to be mined and removed the coal from under the surface of the plaintiff’s lands in any manner that will cause subsidence or breaking the surface, or displacement of the four-foot vein overlying, or result in damages present or future to the surface and the said four-foot vein; that the defendant be required to provide absolute and permanent support to the said surface including the said four-foot vein overlying, wherever it has endangered and rendered the same insecure by its mining operations; and for general relief.
    The bill, after hearing on bill, answer and proofs, was dismissed by the court.

      Error assigned was decree dismissing the bill.

      J. P. Patterson, with him Boyd Crumrine, for appellant.
    The court erred in dismissing the bill: Penn Gas Coal Co. v. Fuel Gas Co., 131 Pa. 522; Pringle v. Coal Co., 172 Pa. 438; Robertson v. River Coal Co., 172 Pa. 566; Coleman v. Chadwick, 80 Pa. 81; Carlin v. Chappel, 101 Pa. 348; Miles v. Penna. Coal Co., 217 Pa. 449.
    The holding of the court is not supported by the decision in the case of Noonan v. Pardee, 200 Pa. 474, upon which the court relies; nor is it the law in this state: Guarantee Trust & Safe Deposit Co. v. National Bank, 202 Pa. 94; Pantall v. Coal & Iron Co., 204 Pa. 158.
    Equity is the only appropriate and adequate remedy: Com. v. R. R. Co., 24 Pa. 159; Walters v. McElroy, 151 Pa. 549.

      Charles M. Johnston, with him Cyrus E. Woods, Robert P. Watt and Obed K. Price, for appellees.
    Even asSUming for the purposes of argument, that the court does have equity jurisdiction, the burden of proof is on the plaintiff to show that the injury is imminent, — that it is material and actual, not fanciful or theoretical, or merely possible; it must be shown as the necessary or probable result of the action sought to be restrained, and that such imminent danger would, if realized, cause irreparable injury: Richard’s App., 57 Pa. 105; Rhodes v. Dunbar, 57 Pa. 274; Clark’s App., 62 Pa. 447; Mining’s App., 82 Pa. 373; Lehigh & Wilkes-Barre Coal Co. v. Canal Co., 11 Pa. C. C. Rep. 185.
    January 3, 1911:
    While the opinion in Noonan v. Pardee, 200 Pa. 474, does not expressly say that the rights of the respective parties are to be determined in one action, as the learned court below found, that is an inevitable inference, and one which this court shares, as indicated by the opinion in Pantall v. Coal & Iron Co., 204 Pa. 158.
    If the rights of a surface owner are determinable in one action, certainly a chief objection to the adequacy of the remedy at law is removed, as the court below found, in that a succession of suits is no longer necessary.
   Opinion by

Mr. Justice Stewart,

If we assume the facts to be as set out in the bill of complaint, the question remains, do they establish a case for equitable interference? Clearly not, if for the injuries complained of, an adequate and convenient remedy at law is provided. The plaintiff is the owner in fee of 238 acres of farm land situate in Elizabeth township, Allegheny county. The Pittsburg Coal Company, one of the defendants, is the owner of the Pittsburg vein of coal underlying. The United Coal Company, the other defendant, by authority derived from the Pittsburg Coal Company, has been for sometime, and is now, engaged in mining and removing the coal of this vein where it underlies plaintiff’s land. The complaint is that the United Coal Company, in conducting its mining operations, is providing no adequate support for. the plaintiff’s surface; that by its default in this regard great injury is threatened to plaintiff from a possible or probable subsidence of the surface, which would involve a displacement of a four-foot vein of coal overlying the Pittsburg vein and belonging to the plaintiff. We need not enlarge upon the duty which the law imposes upon the mine owner when he undertakes to mine and remove the coal, — that duty is to provide sufficient support for the surface belonging to another. Sic útero tuo ut alienum non laedas, is the principle from which the duty is derived. It is wholly immaterial that the required support in some of our cases is spoken of as a sufficient support, in others as a reasonable support, and in still others as absolute support. The duty is to support, and that without more indicates the measure of the duty. Our cases hold that the removal of coal without leaving or providing adequate support for the surface, is in itself an injury to the owner. The injury is not in any way dependent on the natural subsidence or caving in of the surface, but exists at once when any part of the surface has been endangered by leaving it without support. It follows necessarily, that when the duty to support has been violated a cause of action at once arises, if for nothing more than to vindicate the right of support. The suggestion that the owner of the surface must await the completion of the mining operations, and then bring his action for the damages sustained, is countenanced by no authority, and cannot be sustained on principle. Take the present case. The defendants have undermined about forty acres of plaintiff’s tract. Assume that no provision has been made for the support of the overlying surface, and that it is endangered in consequence, can it be asserted that plaintiff can have no right , of action for the injury done him until the entire tract of 238 acres shall have been mined, or until the defendant shall have ceased mining operations? For all that can be foretold, the defendants may, with respect to the yet unmined tract, be observant of their duty and furnish adequate support as required. What reason could there be for suspending the right of action as to the forty acres? The injury to the forty acres if endangered is complete in itself, without regard to what the defendants may or may not hereafter do, and the plaintiff is entitled at once to recover such damages as are proper to remunerate him for the injury he has sustained. The rule is that in all cases where injury is of a continuous nature, every fresh injury is a ground of action, and the person whose property is injured thereby may maintain separate and distinct suits therefor, each embracing all causes of action therefrom up to the time of the action brought: Addison on Torts, *56. In what we have said we have not run counter in any respect to the doctrine announced in Noonan v. Pardee, 200 Pa. 474, a case much discussed in the argument in the court below and here, but have followed that case both in letter and logic. Any apparent conflict disappears when the difference between the facts there and here is considered. That case was an action to recover for the subsidence of a lot of ground and consequent injury to the house erected thereon, not for failure to provide a sufficient surface support as' the mining progressed. It was there held that notwithstanding the injury resulting directly from the subsidence, the latter was only the consequence of a previous cause, viz. — failure by the mine owner to provide sufficient support, and that if this occurred more than six years before action brought, regardless of when the subsidence occurred, the action was barred by the statute of limitations. What was there being considered was whether the right of action in such case passed to one who acquired the surface after the failure to provide the support had occurred, for the recovery of damages for the specific injury resulting from a subsidence during his ownership. The general rule that the purchaser of an estate cannot claim damages for an injury done to it before the purchase, was admitted; but distinctions peculiar to the case then before the court, which operated to except it out of the general rule, were pointed out. Bearing in mind that the action there was for a specific injury occasioned by actual subsidence, and not for failure by the owner of the surface to provide support, the language used to the effect, that at the date of the plaintiff’s deed the damage complained of was not susceptible of computation, and only became so after the subsidence had occurred, it becomes clear that the reference is to the damages which resulted from the specific subsidence as a thing apart from, and yet a consequence of, failure to provide adequate surface support. Whether the plaintiff in that case ever had a right of action for failure to support was left doubtful on the facts. It is nowhere suggested in the opinion in the case, that the damages resulting from failure to provide surface support are not susceptible of computation until mining has ceased, and that therefore the right of action must be so long suspended, or that it is suspended until a subsidence has occurred. There can be no such thing as suspension of right of action; the right is present or it does not exist. The very fact that in the case referred to the statute of limitations is applied, is a clear recognition of a plaintiff’s right to sue at any time after the defendant’s failure; and it follows that the right accrues with every subsequent failure. The case referred to however does rule that the measure of difference in value before and after does not apply in cases where the action is for injury occasioned by subsidence; but it does not rule that it is not the proper measure where the suit is for failure of support.

The bill does not disclose a case where irreparable injury is threatened. It is evident that the remedy at law will-afford ample indemnification. If it be urged that adoption of such remedy would lead to a multiplicity of suits, the answer is, this would not necessarily result. It may very well be, if the injury to plaintiff is what he supposes it to be, that one compensatory verdict would have the effect to avoid any occasion for a second suit. But in any event that would be a matter for the plaintiff’s own determination. Entertaining the view here expressed, it is unnecessary to consider the other questions presented in the findings and conclusions of the' learned chancellor. For the reason stated we sustain the dismissal of the bill in the court below, and dismiss the present appeal.


author: Mr. Justice Brown,

text:
    Dauler’s Estate.

      Will — Construction—Devise—Description of land — Practice, O. C.— Jurisdiction — Petition for sale.

    Testator owned a large rectangular piece of land fronting on A street and backing on B street with C street extending along one side of it from A to B streets. Some years before his death he built a fence across the tract about 240 feet back from A street, and divided the land between A street and the fence into several lots. He sold several of these lots from time to time describing them as fronting on A street, each with a depth of 240 feet from that street. At the time of his death he lived in a dwelling house on one of the lots. At that time he had not sold the land in the rear of the fence. By his will he gave the dwelling house with the ground thereto attached to his wife for life, and after her death he devised the same property to his daughter,' describing it as “ the lot of ground and the dwelling, the homestead situated on A street near C street.” He directed his executors to sell all of his estate not devised by his will, and to distribute the proceeds amongst his children. One of the executors petitioned the orphans’ court for an order to sell the land in the rear of the fence. The co-executor, the husband of the daughter to whom the homestead lot was devised, resisted the petition on the ground that his wife took not only the land between A street and the fence, but all in the rear of the fence of the width of the homestead lot. Held, (1) that the devise to the daughter included only the land from A street to the fence; (2) that the orphans’ court had jurisdiction to entertain the petition for the sale of the land.
    Argued Oct. 28, 1910.
    Appeals, Nos. 158 and 159, Oct. T., 1910, by Otillia M. Johns and Thomas F. Johns, from decree of O. C. Allegheny Co., Nov. T., 1909, No. 237, allowing order of sale of real estate in Estate of George Henry Hauler, Sr., deceased.
    January 3, 1911:
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Mosch-zisker, JJ.
    Affirmed.
    Petition for order to sell real estate. Before Miller, J.
    The opinion of the Supreme Court states the facts.

      Error assigned was decree directing the sale of real estate.

      Ward Bonsall, with him Charles A. Poth, for appellants.
    The will itself, without any extrinsic evidence explaining it, clearly gives the land in dispute to Otillia M. Johns: Kelly’s Est., 8 Pa. Dist. Rep. 51; Thewlis v. Fen-ton, 224 Pa. 25; Ferry’s App., 102 Pa. 207.
    The extrinsic evidence admitted in this case strengthens the above construction, and establishes the fact that the description contained in the ninth paragraph of the will, devising land on Terrace street to Otillia M. Johns, includes the land in dispute: Brendlinger v. Brendlinger, 26 Pa. 131; Hopkins v. Grimes, 14 Iowa, 73.
    The construction of this will contended for by appellants is in accord with several decisions of this court: Graham v. Heidrick, 204 Pa. 238; Thewlis v. Fenton, 224 Pa. 25; Metzger’s Est., 222 Pa. 276.
    The extrinsic evidence in this case is sufficient to raise a latent ambiguity: Ellmaker v. Ellmaker, 4 Watts, 89; Brownfield v. Brownfield, 12 Pa. 136; Miller’s Est., 26 Pa. Superior Ct. 443.
    There was no jurisdiction of the orphans’ court to order the sale: Cutler’s Est., 225 Pa. 167; Paxson’s Est., 225 Pa. 204.

      George C. Wilson and J. McF. Carpenter, with them George N. Chalfant and William D. Evans, for appellee.
   Opinion by

Mr. Justice Brown,

In 1849 George H. Dauler acquired by deed a tract of land containing about six acres, fronting on Terrace street, in what was subsequently the fourteenth and is now the fourth ward, of the city of Pittsburg. Its frontage on Terrace street was about 365 feet and it ex-' tended back to what is now Alliquippa street — a distance of about 750 feet. Darragh street extends along one side of it between the two streets named. Between 1880 and 1890, Dauler sold from this tract four lots fronting on Terrace street, each extending in depth from that street 240 feet. At that distance from Terrace street he erected a fence from Darragh street across the tract. At the time, of his death he had but one lot left which fronted on Terrace street. Its width on that street was 136.14 feet and on it there was a dwelling house in which he lived. In 1901 he sold a lot fronting 125 feet on Darragh street, beginning at a point 240 feet from Terrace street. He died in 1907, having executed his will in 1900, and the following from the third and ninth clauses of it give rise to the present controversy: “I give and devise the dwelling house in the fourteenth ward, Pittsburg, now occupied by us, with the ground thereto attached, fronting on Terrace street, near Darragh street, to my beloved wife, Elizabeth, for and during the term of her natural life. . . . To my daughter Otillia M. Johns, the lot of ground and the dwelling, 'the Homestead,’ situate on Terrace, street, near Darrah street, in the Fourteenth ward, Pittsburg, hereinbefore devised to my wife for life, subject to the life estate of my said wife.” The devise tó the daughter was one of a number he made to his children. By the fifteenth clause of his will he directed all of his estate not disposed of in the preceding clauses to be sold by his executors and that the proceeds be divided between his children and the children of a deceased child. When Thomas F. Johns, one of the two executors of the testator, was requested by his co-executor to join in the sale of the lot, consisting of three or four acres in the rear of the line 240 feet from Terrace street, he refused. Thereupon a petition was presented to the court below by the other executor, asking for an order that said property be sold and that said Thomas F. Johns be directed to join in making sale of it. Upon the filing of this petition a citation was directed to all parties in interest, and Otillia M. Johns and her husband, the co-executor, filed answers in which they averred that, under the devise to her, she took not only the lot fronting 136.14 feet on Terrace street and extending back 240 feet, but all in the rear of 240 feet from Terrace street which had not been sold by the testator in his lifetime. From the order of the court granting the prayer of the petition we have this appeal.

When the testator devised to his wife for life the dwelling house in the fourteenth ward of Pittsburg, then occupied by them, with the ground thereto attached, fronting on Terrace street, near Darragh street, and by a subsequent clause devised the same property to his daughter after the death of her mother, describing it as “the lot of ground and the dwelling, ‘the Homestead,’ situate on Terrace street, near Darrah street,” it is clear that he intended the lot of ground should be the same that had been appurtenant to his home. He had divided the original tract at a point 240 feet from Terrace street by erecting a fence there, and had sold four lots fronting on Terrace street, each with a depth of 240 feet from that street. He had unmistakably indicated, not only by erecting the fence, but by what he did by his deeds, executed more than ten years before he made his will, that he regarded the lots fronting on Terrace street as having a depth of 240 feet, and when he devised to his daughter the lot fronting on Terrace street, near Darragh, his intention as gathered from the will — which is to be read in connection with what he did — is so clear that parol testimony* could not, under the authority of any case, have been received to show that he said his daughter was to take under the devise not only the lot which he had so manifestly regarded as “attached” to his dwelling, but three or four acres, in the rear of it, which for years he had treated as a separate and distinct piece of ground. What he gave to his daughter was a lot “fronting on Terrace street, near Darrah street,” “situate on Terrace street, near Darrah street.” The lot which the appellants would include in the devise does not front on Terrace street, nor is it “situate” on that street. It fronts on Darragh street and extends to Alliquippa street. Both these streets are its boundaries and this the testator knew when he devised to his daughter the lot fronting on Terrace street.

That the court below had jurisdiction to entertain the petition to make the order appealed from is as clear as the intention of the testator. The lot which his daughter would take under the devise to her admittedly belonged to her father at the time of his death. Whether it passed to her under the ninth clause of his will, or, as part of his residuary estate, is to be disposed of under the fifteenth clause, involved the construction of his will, which was for the court below. It was properly construed, and the order which was made simply directs the executors to perform the duty imposed upon them by the will of the testator of converting into money, for the purpose of distribution, certain of his real estate not specifically devised. The court clearly had the power to make the order: Tyson’s Est., 191 Pa. 218.

Decree affirmed at appellant’s costs.


text:
    Eisler, Appellant, v. Marshall.

      Vendor and vendee — Option—Notice of election — Principal and agent.

    Where eight persons execute an option to sell land, and each per*son is entitled to notice of the election to exercise the option, and the option is to expire on a day named, a written notice of the election to purchase dated on the last day of the option, addressed to each of the owners, but served upon one of them only, will bind only the person served, if it appears that such person had no authority from the others to sell the land, or to accept service of the notice provided for in the option.

      January 3, 1911:
    Argued Oct. 28, 1910.
    Appeal, No. 167, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 626, dismissing bill in equity in case of Luella Eisler v. Samuel S. Marshall et al.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for specific performance. Before Fra-zer, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      James S. Campbell, for appellant.

      John D. Brown, for appellees, was not heard.
   Per Curiam,

The agreement which the appellant would have specifically enforced gave her the right to purchase, within two years from its date, certain coal, upon giving written notice to the appellees of her election to do so. The agreement was executed October 9, 1906 and the option under it expired October 9, 1908. The ownership of the coal was in eight persons- — the parties of the first part to the agreement — which was signed by each of them, and each was entitled to written notice from the appellant of her election to exercise her rights under it. On October 9, 1908 — the day the option expired — a written notice of such election, addressed to the appellees was served upon D. P. Marshall, one of the parties of the first part to the agreement, but, under the court’s finding — fully justified by the evidence — that he was the agent of the other seven only in certain matters and with limited powers, and had no authority from them to sell the coal or to accept for them the notice provided for in the agreement of the appellant’s election to purchase, the bill was properly dismissed as to all but him for want of notice.

Decree affirmed at appellant’s costs.


text:
    Stoiber v. Independent Brewing Company, Appellant.

      Negligence — Master and servant- — Inexperienced employee — Dangerous place to work — Vice principal — Death—Brewing company.

    In an action against a brewing company to recover damages for the death of plaintiff’s husband a verdict and judgment for plaintiff will be sustained where the evidence shows that the deceased at the direction of the brewing master, a vice principal, went inside a tub to varnish it; that the deceased had no experience in varnishing and was ignorant of the dangerous conditions surrounding him; that when the deceased began to varnish the inside of the tub there was a lighted stove in the bottom of .it; that the brewing master told the deceased and a coemployee to keep the stove lighted until they reached the bottom in varnishing; that the brewing master knew that it was dangerous to varnish the inside of the tub with a lighted stove in it; and that the death resulted from an explosion in the tub caused by the lighted stove.
    Argued Oct. 28, 1910.
    Appeal, No. 187, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1906, No. 136, on verdict for plaintiff in case of Johanna Stoiber v. Independent Brewing Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ford, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $8,170. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant and in refusing judgment for defendant non obstante veredicto.

      Wm. S. Dalzell, of Dalzell, Fisher & Hawkins, for appellant.

      January 3, 1911:

      Thos. M. Marshall, Jr., for appellee.
   Per Curiam,

The husband of the appellee died from injuries received in an explosion in a fermenting tub of the appellant. He was employed at one of its breweries, and on the day he was injured was directed by the brewing master — found by the jury, under sufficient evidence and a charge not excepted to, to have been a vice principal— to varnish the inside of a tub in the cellar of the plant. That the varnish might dry more rapidly a cover was placed over the tub, inclosing all of the top except an opening of two or three feet. When the deceased and a coemployee began to varnish the inside of the tub there was a lighted stove in the bottom of it, and this, according to the testimony of the surviving coemployee, was known to the brewing-master or vice principal, who told them to keep it lighted until they reached the bottom. There was testimony that when the deceased was directed by his superior to varnish the tub his reply was that he was without experience in varnishing. The brewing-master admitted that he knew it was dangerous to varnish the inside of a tub with a lighted stove in it, as the varnish might explode if there was fire around. It is manifest, then, if the testimony on the part of the plaintiff was to be believed by the jury, taken in connection with the admission of the brewing-master, that the inexperienced deceased employee of the defendant company had been directed by his superior to work in a place surrounded by dangerous .conditions of which he was ignorant. To have withdrawn the case from the jury would have been clear error, and the assignments complaining of its submission and of the refusal of the court to enter judgment for the defendant n. o. v. are overruled.

Judgment affirmed.