author: Mr. Justice Mestrezat,

text:
    Saxton v. Morris, Appellant.

      Brokers — Real estate brokers — Broker’s license — Interpleader—Commissions.

    Where in a suit against a seller of real estate for commission, the defendant petitions for an interpleader on the ground that a third person was claiming one-half of the commissions and threatening him with a suit if he paid such half to plaintiff, and an interpleader is framed between the plaintiff and the claimant, the plaintiff may show as a complete defense in the interpleader that the claimant had not a real estate broker’s license. In such a case the claimant cannot recover on allegations and proof that he had a contract with the plaintiff to divide commissions with him where the pleadings conclusively show that the claimant was demanding the payment of one-half of the commissions from the seller of the real estate under a direct agreement with him.
    Argued Oct. 25, 1910.
    Appeal, No. 80, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., No. 1 of Second T., 1908, Sur No. 983, Third T., 1907, for plaintiff non obstante veredicto in case of R. A. Saxton v. John T. Morris.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      January 3, 1911:
    Assumpsit for commissions for selling real estate.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for defendant. Subsequently the court entered judgment for plaintiff non obstante veredicto, Cohen, J., filing the opinion of- the court.

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

      James C. Gray, of Gray, Thompson & Bose, for appellant.

      George B. Wallace, for appellee,
    cited: McCreery v. Inge, 49 N. Y. App. Div. 133; Hoyt v. Gouge, 125 Iowa, 603; Sachsel v. Farrar, 35 Ill. App. 277.
   Opinion by

Mr. Justice Mestrezat,

R. A. Saxton brought an action against A. L. Richmond to recover $7,000 for services in selling certain real estate of the defendant in the city of Pittsburg. As averred in the statement, the action was brought on a written agreement dated April 20, 1907, by the terms of which Richmond empowered Saxton to sell the real estate within ten days for $340,000 on the terms set forth in a sale agreement signed by Richmond and delivered to Saxton. Saxton was to receive for his services any excess above the sum for which the property was sold not exceeding ■ $7,000, to be paid when a deed was delivered to the purchaser. The statement further avers that within ten days of the date of the contract Saxton produced a purchaser who executed with the defendant an agreement to purchase the real estate in the exact form of the sale agreement, and a deed for the property was delivered to the purchaser on June 29, 1907. Copies of the contract and sale agreement were attached to the statement.

Before a plea was entered, the defendant Richmond presented a petition to the court averring the bringing of the suit and filing of the statement; that John T. Morris had notified the petitioner that he was entitled to $3,500, the one-half of the commissions, for selling the property and would hold petitioner personally responsible for the same; that petitioner expected to be sued by Morris for all or a part of the $7,000, the identical money for which the suit was brought; that the petitioner had no interest in the money and is liable to be put to expense for defending two actions and is subject to the risk of paying the money twice. The petition prayed the court to order Saxton and Morris to interplead. A rule to show cause was granted, which was subsequently made absolute, Saxton being made the plaintiff and Morris the defendant in the issue.

Saxton filed an answer to the rule in which he denied that Morris had any right or interest in the contract sued on or money payable under its terms, denied that the identical money for which the suit was brought was claimed by Morris, averred that Richmond was under direct contractual obligations to pay the same to him, and denied that the petition set forth any matter sufficient in law to sustain an interpleader.

Morris also filed an answer to the petition and rule admitting that he did claim a part of the commission due “by the said A. L. Richmond, Jr., for the sale of his property,” averred that $3,500 of the $7,000, being the identical money for which the suit was brought, was claimed by him; and further averred as follows: “The respondent" avers and alleges that he had certain negotiations with A. L. Richmond, Jr., the defendant in this suit, in regard to the sale of his property . . . .; that the said Richmond agreed to pay him a commission for the sale of same, and that R. A. Saxton, the plaintiff in this suit, solicited the respondent, John T. Morris, to secure the right to sell said property; that he, Saxton, had a purchaser and would divide the commission; that he, in company with the said Saxton, called on the said A. L. Richmond, Jr., and made the arrangements for the sale of said property; the said Richmond and the said Saxton understanding that the commission, amounting to $7,000 was to be divided equally between the said Saxton and your respondent.”

The interpleader was tried and resulted in a verdict for the defendant, Morris. The court, on motion, entered judgment for the plaintiff, Saxton, notwithstanding the verdict, on the ground “that at the time when negotiations commenced by Saxton on June 12, 1906, concerning the real estate in question nor for a long time thereafter, did he (Morris) have the license of a real estate broker, as required by law.” Morris has appealed, and assigns as error the entering of the judgment for the plaintiff non obstante veredicto.

The simple issue raised by the pleadings, as will be. observed, was "whether John T. Morris had a right to demand and receive of A. L. Richmond the one-half of $7,000, the commissions which Richmond admitted he owed for selling his real estate. On the trial Morris testified that Richmond told him and Saxton that if they could sell the property for a satisfactory price he would pay them two per cent commission for selling it. Richmond corroborated this testimony and testified that he had told them that he would pay them jointly a commission of two per cent for selling the property. In fact, the testimony on the part of Morris throughout the trial of the issue tended to show that the commissions were due from Richmond to Saxton and Morris in equal shares. This testimony sustained Morris’s contention as disclosed by the pleadings that he was entitled to receive from Richmond one-half of the commissions for the sale of the property. The effect of the testimony was to show that Morris was dealing directly with Richmond as a real estate broker.

It is conceded by Morris that during the negotiations for the sale of the Richmond real estate he had no license to act as a real estate broker. It is, therefore, apparent that under the pleadings and evidence in the case the learned court below should have peremptorily instructed the jury to return a verdict for Saxton, the plaintiff in the issue. Morris’s claim to the commissions, as disclosed by the pleadings and evidence, rested on his right as a real estate broker to recover against Richmond. His notice to Richmond which resulted in the latter’s application for an interpleader was to the effect that the commissions were due him and that he would hold Richmond personally responsible for the same. His answer to the rule to show cause why the interpleader should not be granted reasserted his right to the commissions by reason of his negotiations with Richmond and the latter’s agreement to pay him a commission for the sale of the property. The. single issue, therefore, being tried under the interpleader proceedings was whether Richmond was indebted to Morris for the one-half of the $7,000, which Richmond admitted he owed as commissions for selling his real estate. It being admitted that Morris was a real estate broker but was not licensed as such at the time the Richmond property was sold and the commissions were earned, the authorities in this state determine the issue against the defendant in the interpleader proceedings.

In his printed argument in this court, Morris concedes that if he were seeking to recover from Richmond it would be a good defense and he could not recover because he was not a licensed real estate broker at the time the property was sold. He, however, attempts here to raise an issue other than the one raised by the pleadings in the court below, and claims that the question for determination in the court below and here is: Did Saxton agree with Morris to pay him half of the commissions for the services rendered to him by Morris in bringing him in touch with Richmond and introducing him to Richmond, who put the sale of his property into his (Saxton’s) hands? It is contended that that is the contract which Morris is seeking to enforce against Saxton and not a contract for a commission based on a sale. It is true, as alleged by Morris, that that question was submitted to and found by the jury in his favor. It is manifest, however, that the learned court below, as it subsequently held on the motion for a judgment non obstante veredicto, erred in submitting the question to the jury. It was not raised by the pleadings and, hence, the evidence offered to support it should have been excluded and the court should not have permitted the jury to consider it. The issue thus raised was entirely foreign to the one raised by the pleadings. If Morris had no claim for commissions against Richmond, he had no right to recover any part of the fund which . Richmond admitted to be commissions due from him for the sale of his real estate. The right to the commissions payable by Richmond was the question at issue, Saxton claiming them by virtue of the contract sued on, Morris also necessarily claiming them by virtue of the contract made with Richmond. As said by the vice chancellor in Crawford v. Fisher, 1 Hare, 436, 441: “The office of an interpleading suit is not to protect a party against a double liability, but against double vexation in respect of one liability.” It was not a question here whether both Saxton and Morris had claims against Richmond for services for selling the real estate, but whether they both had claims on this identical fund which Richmond, under the pleadings, admitted to be a liability for commissions for selling his real estate on the contract sued on by Saxton. The question whether Sax-ton agreed to pay Morris half of the .commissions which he, Saxton, should receive for services rendered to Richmond for selling the property was entirely outside of the issue framed and tried under the interpleader proceedings. The question itself admits, in effect, the right of Saxton to receive from Richmond the $7,000 commissions. It suggests that Saxton is liable to Morris for one-half the commissions, thereby conceding that there is no liability by Richmond to Morris for any part of the commissions. Conceding. that there was a contract between Saxton and Morris by which the former was to pay the latter the one-half of the commissions that Saxton should receive from Richmond, that gave Morris no claim on Richmond for the commissions. Saxton may be liable on that contract in a proper suit brought to enforce it ■by Morris, but it gives the latter no right to enforce payment of his claim against Richmond or out of the $7,000 which Richmond admits by the pleadings were due as commissions for the sale of his real estate. It is a contract with which Richmond has no concern and on which neither he nor the fund which he holds as commissions is liable. Morris was, therefore, not entitled to have determined on the trial of the issue whether or not Saxton agreed to pay him the one-half of the commissions due for the sale of the property by Saxton.

It follows from what has been said that the learned court below should have directed a verdict for the plaintiff in the issue formed to determine the right to the $7,000 due from Richmond as commissions for selling his real estate, and therefore committed no error in subsequently entering judgment for the plaintiff.

It is claimed by the appellee that it was error to allow the interpleader on the Richmond petition. That question does not arise on this appeal and, hence, we cannot and do not consider it.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Hunter v. Hunter, Appellant.

      Will — Ambiguity—Description of land — Declaration of testator— Extrinsic evidence.

    1. In an action in ejectment where the issue turns on the location of an “old coal bank in the flat,” mentioned in a will, and the testimony is conflicting as to the location of the “old coal bank,” the one side contending that it was on a slope, and the other that it was in a flat, declarations of the testator are inadmissible to show that the line which he intended ran to a coal bank on the slope.
    2. Oral declarations of the testator as to the disposition which ho had made of his property cannot be offered in evidence to vary the disposition of that property which he had made by his written will.
    3. Where a subject exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity. Evidence is only admitted dehors the will from necessity, to explain that which would otherwise have had no operation.
    Argued Oct. 4, 1910.
    Appeal, No. 85, Oct. T., 1910, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1904, No. 270, on verdict for plaintiff in case of Mary A. Hunter v. William A. Hunter.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Mt. Pleasant township. Before Doty, P. J.
    At the trial it appeared that John Galloway died on October 27, 1883, seized of the land in question, and leaving a will by which he devised it to his two nephews James Hunter and William Hunter. James Hunter died in 1902, leaving a will by which he devised his share of the land to his widow, Mary A. Hunter, the plaintiff. The controversy arose out of the construction of the will of John Galloway.
    The facts are stated in the opinion of the Supreme Court, and in the report of Hunter v. Hunter, 37 Pa. Superior Ct. 311.
    When R. E. Fulton was on the stand defendant made the following offer:
    Defendant offers to prove by the witness on the stand that John Galloway told the witness that he was running a line across his farm by the old coal bank and that he pointed out to the witness exactly the location of what he called the old coal bank, and on his attention being called to the fact that there were other openings on the farm that might be designated as an old coal bank, John Galloway emphatically declared that those were coal holes; that he called them coal holes and that anybody would know that those holes were not a coal bank. This for the purpose of showing how John Galloway himself regarded these two locations and how he designated them.
    This is objected to as incompetent, irrelevant and immaterial, and an attempt to make a devise different from the will itself, and is an attempt to introduce a matter that has been heretofore ruled by the Superior Court as being incompetent.
    The Court: We think this evidence tends to show a disposition or declaration of testator as to the disposition made of the estate and it is inadmissible, and we therefore refuse the offer and grant an exception.
    Defendant offers to prove by the witness on the stand that on one occasion when John Galloway had pointed out the old coal bank near the chestnut tree, he, the witness, called John Galloway’s attention to the fact that there were other openings down near the run, and that thereupon John Galloway told the witness that those openings along the run he called coal holes and that he thought anybody ought to know the difference between a coal bank and coal holes. This for the purpose of showing how John Galloway regarded these two locations on his farm and designated the same.
    This is objected to as incompetent, irrelevant and immaterial to the matter in issue, as the witness has already testified that John Galloway called the place in the flat coal holes, and that anything additional that was said in regard to the matter is immaterial and of no use or assistance to the court. His reasons for calling them this name is immaterial, and it is an attempt to elicit testimony the effect of which will be to explain the will and give effect to a different will from that which the testator actually made.
    The Court: The matter contained in the offer has been substantially testified to by the witness. We therefore sustain the objection and grant an exception to defendant. [2]
    “Q. What did John Galloway say to you when he called these coal holes? A. He said to me that — —”
    This question is objected to for the reason that the witness has already testified that these places in the flat were called coal holes by him in their conversation on the subject; is incompetent, inadmissible and immaterial.
    The Court: It seems to be an effort to get around the ruling of the court.
    Mr. Beacom: Does the court rule that the doctor cannot give the language of John Galloway?

      The Court: It seems to be the same matter already-passed upon in the two previous offers and we therefore exclude it. Objection sustained; exception to defendant. [3]
    Defendant offers to prove by this witness that John Galloway pointed out to him the place where he made the line of division between James Hunter and William A. Hunter on his farm, for the purpose of locating the old coal bank mentioned in the will, and explaining the will.
    This is objected to as incompetent, immaterial and irrelevant to the issue before the court.
    The Court: Objection sustained; exception to defendant. [4]
    Defendant proposed to prove by the witness W. It. Hitchman that at the time the witness and John Galloway stood on the road at the point designated by the witness John Galloway pointed out this old coal bank and told the witness that that was the old coal bank through which he had run the line of division between the part of the farm which he had given to his nephew, James G. Hunter, and the part he had given to his nephew, William A. Hunter. For the purpose of showing what John Galloway intended and meant by the phrase “the old coal bank” used in his will.
    This is objected to as incompetent and irrelevant and tends to establish a different will than that which is the written will of John Galloway, deceased. It is therefore not admissible and does not aid in interpreting the will in question.
    The Court: Objection sustained; offer overruled; exception for defendant. [5]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned among others were (1-5) rulings on evidence, quoting the bill of exceptions; (6-11) various instructions.

      January 3, 1911:

      James S. Beacom, with him David L. Newill and Cecil E. Heller, for appellant.
    Parol testimony being necessary to fit the description to the will and this testimony having made the division line doubtful and uncertain, the principles laid down in Vernor v. Henry, 3 Watts, 385; Brownfield v. Brownfield, 12 Pa. 136; s. c., 20 Pa. 55; Miller’s Est., 26 Pa. Superior Ct. 453, and other cases are clearly applicable and all testimony tending to show what the testator meant by his language should have been admitted.

      John E. Kunkle, with him Edward E. Robbins, for appellee.
    The defendant’s offers were properly overruled: Root’s Est., 187 Pa. 118; Hughes v. Westmoreland Coal Co., 104 Pa. 207; Myers v. Myers, 16 Pa. Superior Ct. 511; Thompson v. Kaufman, 9 Pa. Superior Ct. 305; Willard’s Est., 68 Pa. 327.
   Opinion by

Mr. Justice Brown,

The common source of title to the land which is the subject of this ejectment was in John Galloway, who died in 1883, seized of a farm in Mount Pleasant township, Westmoreland county, containing about 306 acres. It was divided by a public road running through it from north to south, and the present controversy grows out of the following testamentary disposition of it made by Galloway in his will, executed May 23, 1879: “I will and bequeath unto my nephew, James Hunter, all that portion of my farm, lying West of the road running through my farm from South to North except that portion which lies along the Brush Run all south of the old coal bank in the fiat. I will and bequeath to my nephew, William Hunter, all that portion of my farm, lying East of the road before mentioned, together with that portion lying South of the old coal bank before mentioned.” James Hunter is dead, and by his will, admitted to probate in June, 1902, his interest in the farm devised to him by his uncle passed to his widow, Mary A. Hunter, the plaintiff in this action. Her contention is that, at the time John Galloway executed his will and when he died, the old coal bank was on the flat or level land along Brush Run, and that she, as the devisee of her husband, is entitled to all that portion of the farm which lies north of that coal bank and west of the public road. The defendant, on the other hand, contends that at the time the will was executed there was no coal bank in the flat land near Brush Run, that the only coal bank on the farm was on the slope of a hill about a thousand feet north of Brush Run, and that he is entitled, as the devisee of his uncle, to all the land south of the coal bank on the slope of the hill and west of the public road. The case was submitted to the jury under instructions that if they found from the evidence that there was an old coal bank in the flat along Brush Run, the plaintiff’s contention should prevail, and from the judgment on the verdict returned in her favor we have this appeal.

The language of the testator in devising his farm to his two nephews is entirely free from ambiguity, and his intention as to how it was to be divided between them cannot be misunderstood. James was to take all west of the public road except that portion lying along Brush Run, south of an old coal bank in the flat. He was to take all north of that coal bank and west of the road. William, in addition to getting all east of the road, was to have all west of it, south of the old coal bank. The portion west of the road excepted from the devise to James and given to William was said by the testator to lie along Brush Run and to be south of the old coal bank in the flat or level land. If there was a coal bank some distance further north on the side of a hill, the intervening space consisting of more than seven acres, it does not answer to “the" old coal bank in the flat” which the testator had in mind when he executed his will. The case of the plaintiff depended upon her ability to show that, at the time the will of her husband’s uncle was executed, there was an old coal bank in the flat which the testator designated as the point from which James was to take all the land to the north, and William all to the south. The whole situation was summed up in the following closing words of the general charge of the learned trial judge to the jury: “If you find there was an old coal bank in the flat, your verdict undoubtedly ought to be in favor of the plaintiff. If there was no old coal bank in the flat, then the plaintiff’s contention falls and your verdict ought to be in favor of defendant.”

Parol testimony was admissible in this case only for the purpose of showing the existence in the flat of the monument of title fixed by the testator himself. It was not competent to show his alleged declarations fixing a different point as the dividing line, for such testimony would have raised a doubt as to his intention, which does not appear upon the face of the will. His intention as there expressed could not be clearer. It matters not that there might have been other coal banks on other portions of the farm — one, perhaps, on the hill above the flat— for the testator had himself declared that the bank in the “flat” should be the dividing line between the lands, and if the plaintiff showed that a coal bank was there, her case was made out. There was no other question of fact for the jury’s determination.

If the excluded offers which are the subjects of the first, second, third, fourth and fifth assignments of error had been allowed, the defendant might have established a will different from Galloway’s written one. This, of course, could not have been permitted. In a prior ejectment between these same parties, involving the same land, in which, however, the present defendant was the plaintiff, the trial judge permitted him to prove declarations of the testator as to how he had divided the farm between his nephews, and, in holding that this was error, the Superior Court, in reversing the judgment for the plaintiff, properly said what we now adopt in dismissing the first five assignments: “When the subject-matter of the devise contained in the will of John Galloway came to be ascertained there was, under the existing conditions of the testator’s property, but one question to be determined: the location of the old coal bank in the flat. If there was a coal bank in the flat, the wprds which the testator had set down in his will there fixed the location of the line between the lands of James Hunter and William Hunter. If, on the other hand, there was no coal bank in the flat, then the description could only apply to the coal bank in the side of the hill. It was not competent to show by declarations of the testator made at the execution of his will, or subsequently, that he intended the devise to include something that was excluded by the terms of the will as executed. 'The modern doctrine is, that where a subject exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity. Evidence is only admitted dehors the will, from necessity, to explain that which would otherwise have had no operation.’ This language was used by Justice Rogers in Wusthoff v. Dracourt, 3 Watts, 240, decided in 1834,- and has been recognized as authority to the present time. The testimony, admitted against the objection of the defendant, described a different line from that in the will. It was only because it did, that it was offered. The very difference, however, shows the error of the admission. The testator’s line, represented by the will, gives to William Hunter all the land south of the old coal bank in the flat.' The line proposed to be established by the parol evidence, as the line intended by the testator, ran from a tree up to the coal bank on the hillside. Thus to give effect to the testimony was to change the will of the testator, and make his oral declarations his will, instead of what he had executed and published according to the forms of law, as his will. That this testimony ought not to have been admitted is clearly established by authority: Best v. Hammond, 55 Pa. 409; Apple v. Byers, 98 Pa. 479; Willard’s App., 68 Pa. 327; Hancock’s App., 112 Pa. 532; Woelpper’s App., 126 Pa. 562; Myers v. Myers, 16 Pa. Superior Ct. 511. The sixth and seventh specifications of error are sustained:” Hunter v. Hunter, 37 Pa. Superior Ct. 311. The remaining six assignments complain of errors in a portion of the charge and in answers to points. We can discover no error in them, and the judgment is, therefore, affirmed.


author: Mr. Justice Mestbezat,

text:
    Shenango Furnace Company v. Fairfield Township, Appellant.

      Taxation — Road taxes — Levy—Valuation—Act of April 12, 1905, P. L. 142 — Equity—Jurisdiction.
    1. A levy for road taxes made by the supervisors of a township on the first Monday of March must be made on the adjusted valuation of the preceding year, if an adjusted valuation has not been made by the board of revision for the current year.
    2. A court of equity has jurisdiction to restrain the supervisors of a township from levying a road tax on a valuation of property which is not “the last adjusted valuation for county purposes,” as provided by the Act of April 12, 1905, P. L. 142.
    3. While equity will enjoin the collection of a road tax levied on a wrong valuation, it will not compel the refunding of the tax if it has been paid.

      Equity — Mistake—7gnorance—Refunding taxes — Taxation—Accounting.

    4. Mistake, as a basis in equity for refunding taxes, is a misapprehension or misunderstanding arising from ignorance, an essential prerequisite, and is distinguished from that inattention or absence of thought which are inherent in negligence, and is not such as results from inadvertence or negligence.
    5. A bill in equity against a township to compel the refunding of taxes alleged to have been paid by mistake, and for an accounting, cannot be maintained where no accounting is necessary. The fact that the bill prays for an' accounting does not under such circumstances give the court jurisdiction, inasmuch as the accounting is merely incidental, and of no importance in the case.

      Payment — Voluntary payment — Repayment of taxes — Evidence.
    6. Where taxes have been voluntarily paid to the public authorities without any duress or threats or misstatements by any public officer, and without any protest by the party paying them or notice of an intention to reclaim any part of the sum paid, such taxes cannot be recovered back.

      Equity — Mistake—Taxation—Refunding taxes — Referee’s findings of facts — Evidence—Review of findings.

    7. On a bill in equity against a township to compel the repayment of road taxes alleged to have been paid by a corporation by mistake, a finding of fact by a referee although confirmed by the court below that the taxes had been paid by mistake, will be reversed by the Supreme Court, where the evidence shows that the vice president of the corporation, who had entire charge of the payment of the taxes and who ordered the payment was informed of every step in regard to the assessment, fixing of the rate and the payment of the tax, that he directed the policy of the company as to the payment of the tax', that he knew that it was the policy of the company to resist the payment of the tax, and that he wrote a letter dated after the payment showing that at that time the company had no intention of contesting the amount of road taxes on the ground taken in the bill filed.
    Argued Oct. 4, 1910.
    Appeal, No. 118, Oct. T., 1910, by defendants, from decree of C. P. Westmoreland Co., No. 633 Equity, on bill in equity in case of Shenango Furnace Company v. The Township of Fairfield and C. A. Hamill, collector of taxes.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Decree modified.
    Bill in equity for an injunction, an accounting and for a refunding of taxes alleged to have been paid by mistake. Before Doty, P. J.
    The case was referred to M. N. McGeary, Esq., as referee whose findings of fact and of law were as follows:
    FINDINGS OF FACT.
    1. That the Shenango Furnace Company, plaintiff, is a corporation of the state of Pennsylvania, and is engaged in the mining of coal and the sale thereof, and is the owner of real estate and personal property situate in said township of Fairfield, Westmoreland county, Pennsylvania.
    2. The said township of Fairfield, one of the defendants, is one of the territorial subdivisions of said county of Westmoreland, with such power and authority as is usually given to townships for the purpose of the assessment and collection of taxes for road purposes; and the said C. A. Hamill, the other defendant, is the duly qualified collector of taxes in said township, or at least was such collector at the time of the filing and service of the bill.
    3. That the valuation of the property of plaintiff for the year 1906 was $19,400, which was the last preceding adjusted valuation furnished to the road supervisors of said township prior to July 1, 1907, and that in accordance with the requirements of law, the road supervisors of said township during the month of March, in the year 1907, levied a road tax in said township, on all taxable property therein for road purposes at the rate of eight mills.
    4. Pursuant to the Act of assembly approved April 12, 1905, P. L. 142, providing, among other things, for the levying and collection of road taxes, and with intent to secure the benefit of the provisions of said statute with regard to the discount therein provided for payment prior to June 1 in any year, the plaintiff tendered to 8. T. Ford, treasurer of said township, defendant, on May 31, 1907, the sum of 1156.20, which was the amount of road tax due from plaintiff after adding thereto $1.00 personal tax, being the amount due according to said valuation and according to said millage; and the said treasurer thereupon refused to accept said tender. At the time of said tender the said treasurer had not received his duplicate and advised the agent of plaintiff making the tender that he had no authority to receive any taxes, or at least that he had no taxes against plaintiff. The plaintiff has, since the tender, been ready and willing to pay said sum of $156.20.
    5. Although the assessor for the said township of Fair-field had made and returned a valuation for the purpose of taxation to the county commissioners for the triennial year 1907, prior to February 15, 1907, and on said date of February 15, 1907, the commissioners changed the valuation of the coal of plaintiff per acre, as returned by the assessor, and fixed the same at $500 per acre, and then after the appeal, which was held June 12, 1907, to wit: On June 25, 1907, reduced the same to $400 per acre, yet no adjusted valuation was made for the reason that the plaintiff appealed from the adjustment by the county commissioners to the court of common pleas to No. 548, August Term, 1907, and the court again reduced the valuation of said coal per acre to $330 per acre, thus establishing the adjusted valuation, — the decree establishing said adjustment being made December 31, 1907. However the plaintiff appealed only from the valuation' of its coal as fixed by the commissioners on June 25, 1907, and therefore the adjusted valuation for 1907 of any other taxable property owned by the plaintiff in said township was made on the said date of June 25, 1907.
    6. After February 15, 1907, and before March 4, 1907, the supervisors of defendant township called upon the county commissioners for the purpose of procuring the valuations for the purpose of laying the road tax. The adjusted valuations of the property of the Shenango Furnace Company for 1907, were not and could not be furnished by the commissioners for the reason that the appeals, as far as the Shenango Furnace Company was concerned, were not yet held, as aforesaid, and therefore adjusted valuations could not be made as yet; and the commissioners did not furnish to said road supervisors any adjusted valuation for county purposes for the year 1907. On March 4, 1907, the day required by law, the board of supervisors met and levied the road tax fixing a millage of eight mills as aforesaid. We find, therefore, that the road tax for defendant township was levied on March 4, 1907.
    7. That the defendants claim from the plaintiff eight mills on the adjusted valuation for county purposes for the year 1907, a part probably of which valuation was adjusted by the county commissioners on June 25, 1907, and the remaining part, to wit, the coal, was adjusted by the court on December 21, 1907.
    8. That the last adjusted valuation for county purposes prior to June 25, 1907, was the adjusted valuation for the year 1906.
    9. Since the county commissioners of said county have completed their adjusted valuation at the time aforesaid, and since the court of common pleas of Westmoreland county has revised the same on appeal, the said C. A. Hamill, tax collector of said township, has given notice to plaintiff based on the adjusted valuation for 1907, that plaintiff was indebted to said township in the sum of $2,091.14, and the plaintiff, in ignorance of its rights and the facts with relation to the assessment of said road tax, and by mistake and inadvertence, thereupon paid to the said C. A. Hamill, collector, the sum of $1,722.56; but the said C. A. Hamill, collector as aforesaid, has demanded $368.58, balance of the said $2,091.14, which he claims is owing for road taxes by the plaintiff for the year 1907; and the said C. A. Hamill, collector as aforesaid, one of the defendants, at the time of filing the bill of complaint, was about to proceed to collect the amount thus claimed to be due for the balance of the road tax for the year 1907.
    FINDINGS OF LAW.
    1. The last adjusted valuation for county purposes as contemplated in the second section of the Act of April 12, 1905, P. L. 142, is that one furnished by the county commissioners to the road supervisors prior to the time at which the said supervisors levy the road tax for any year.
    2. The road tax of eight mills which was levied by the supervisors of defendant township on March 4, 1907, was not levied on the adjusted valuation or any other valuation of plaintiff’s property for the year 1907, but was levied on the adjusted valuation of plaintiff’s property for the year 1906.
    3. The sum of $156.20, as tendered, was the full amount of road tax owing by plaintiff to defendant for road tax of 1907; and the plaintiff company having in ignorance of the facts and by mistake paid the sum of $1,722.56 to C. A. Hamill, collector of said defendant township, there is due and owing to the plaintiff company from the said township the difference between the said sum of $156.20 and the said sum of $1,722.56, to wit, the sum of $1,566.36.
    4. The plaintiff is entitled to the relief prayed for.
    Exceptions to the report of the referee were dismissed by the court, and the following decree entered:
    And now, December 11, 1909, this case comes on to be heard on exceptions to. the report of the referee and was argued by counsel, and upon due consideration it is ordered, adjudged and decreed as follows: That the full amount of road taxes owing by plaintiff, Shenango Furnace Company,’ to the defendant, the township of Fair-field, for the year of 1907, was the sum of $156.20, and the plaintiff company, having in ignorance of the facts and by mistake, paid as road taxes for the said year the sum of $1,722.56 to C. A. Hamill, collector of said taxes for said defendant township for said year, there is due and owing to the plaintiff company from the said township of Fairfield, the difference between the sum of $156.20 and the said sum of $1,722.56, to wit, the sum of $1,566.36; that the said township of Fairfield do pay to the said plaintiff, Shenango Furnace Company, the said sum of $1,566.36; the said township of Fairfield and its officers and the said C. A. Hamill, collector of road taxes for said township are hereby enjoined and restrained from the collection of any other or further road taxes from the said plaintiff for the year 1907.

      Error assigned among others was the decree of the court.

      S. A. Kline, with him Wade T. Kline and Geo. P. Kline, for appellants.
    Mr. Dyer, the vice president of the company, upon receipt of the tax collector’s notice claiming the amount of road tax, examined it, approved it, and passed it over to the accounting officers of the company for payment, having full knowledge and information that the claim was based on the valuation of 1907. Certainly such a payment does not entitle the plaintiff company to the relief it asks for: Little v. Bowers, 134 U. S. 547 (10 Sup. Ct. Repr. 620); First Nat. Bank v. Mayor, etc., of Americus, 68 Ga. 119; Rogers v. Inhabitants of Greenbush, 58 Me. 390; Conkling v. City of Springfield, 24 N. E. Repr. 67; Bowman v. Boyd, 21 Nev. 281 (30 Pac. Repr. 823); Richardson v. City of Denver, 17 Colo. 398 (30 Pac. Repr. 333); Swift v. City of Poughkeepsie, 37 N. Y. 511; Hopkins v. City of Butte, 40 Pac. Repr. 171; Taylor v. Board of Health, 31 Pa. 73.
    January 3, 1911:

      Paul H. Gaither, with him Charles E. Whitten, for appellee.
    This case is ruled by the decision in Frick Coke Co. v. Mt. Pleasant Twp., 222 Pa. 451; Byers v. Hempfield Twp., 226 Pa. 278.
    Where a court of equity acquires jurisdiction of a case for a proper purpose, it may settle other disputes between the parties, incidentally arising out of the same controversy: Bussier v. Weekey, 11 Pa. Superior Ct. 463; Penna. Co. v. R. R. Co., 204 Pa. 356.
    The findings of the referee were conclusive: Brotherton Bros. v. Reynolds, 164 Pa. 134.
    A payment which has been made under a mistake of fact affecting the liability of the payor may be recovered back: Meredith v. Haines, 14 W. N. C. 364.
   Opinion by

Mr. Justice Mestbezat,

This is a bill filed by the plaintiff company (a) to restrain the defendants from collecting a balance of road taxes alleged to be due for the year 1907, (b) for an accounting to ascertain the amount paid by the plaintiff inadvertently and by mistake on account of such taxes in excess of the amount legally due, and (c) for a decree that defendants pay to plaintiff the amount of such excess.

The defendant township is of the second class and the plaintiff company owns coal lands in the township, the adjusted valuation of which for 1906 was $19,400. Prior to March, 1907, the township assessor returned a valuation of the lands to the county commissioners which was very largely in excess of the valuation for 1906. The valuation so returned to the commissioners was revised and reduced by them sitting as a board of revision on June 25, 1907. From this valuation plaintiff appealed to the common pleas, which finally adjudicated the valuation in December, 1907 at $330 per acre, or $248,820 in all. On the first Monday of March, 1907, the township supervisors met and fixed the rate for road tax at eight mills for that year. At that time there was no “adjusted valuation” for 1907. On May 31, 1907, an agent of plaintiff tendered to the tax collector the sum of $156.20, being the amount of the road tax for 1907, at the rate of eight mills on the valuation for 1906. The tender was refused because, as the collector said, he had no duplicate and was without authority to receive the tax. In the early part of January, 1908, the tax collector gave the plaintiff company notice to pay taxes based upon the 1907 valuation, the sum claimed being $2,091.14, and within a few days plaintiff paid to the collector $1,722.56, being the amount claimed in the notice, less certain deductions which the plaintiff alleged should be made. Shortly after this, plaintiff demanded the refunding of all over $156.20, the amount due on the valuation for 1906. This was refused and the collector demanded the balance, $368.58; whereupon, in February, 1908, this bill was filed. An answer and replication were filed and the case was referred by agreement to a referee who recommended a decree enjoining the collection of the balance of $368.58 and directing payment to the plaintiff by defendants of $1,566.36, the difference between the amount paid by plaintiff and $156.20, the amount due on the 1906 valuation. A final decree in accordance with the referee’s report was entered by the court below. The defendants have appealed.

It is conceded by the parties that under our recent rulings the levy for road taxes made by the supervisors on the first Monday of March, 1907, should have been made on the adjusted valuation for 1906, and that a court of equity has jurisdiction to restrain the collection of the $368.58, the balance claimed by the township for taxes due from the plaintiff company on the valuation of 1907.

There was sufficient evidence to warrant the court below in finding that the plaintiff tendered the sum of $156.20, on May 31, 1907, in payment of the road taxes for that year admitted to be due by the plaintiff. The fourth assignment, therefore, cannot be sustained.

In ascertaining the right of the plaintiff company to have refunded the sum of $1,566.36, taxes paid by the company on the 1907 valuation, two questions must be considered: (1) Was the payment a voluntary one in the legal sense which prevents its recovery back, and (2) was it made under such mistake or ignorance of facts that the plaintiff is entitled to have the money repaid.

1. Was the payment of the money, under the facts of the case, voluntarily made by the plaintiff so that he, for this reason, is not entitled to have it refunded? This question is settled by a long line of decisions in this state and, hence, we are not required to treat or consider it as one of first impression. C. P. Dyer, the vice president of the plaintiff company and authorized to act for it in the matter, directed the payment to be made by the proper officer of the company. While testifying at length in the case, the facts found by the learned referee and the court below being based upon his testimony, he does not even suggest that any official of the defendant township at any time ever threatened to resort to legal process for the collection of the taxes, or exacted them by duress, or went beyond making a demand for their payment, or did any act by which the plaintiff was misled. Neither does it appear by the evidence nor is it claimed by Mr. Dyer or any other representative of the plaintiff company that it made the payment under protest or with notice of an intention to reclaim any part of the sum paid. The case is entirely barren of any such facts, and it is, therefore, clear that under the settled law of this state the payment was voluntary and not such as to justify the plaintiff in demanding the repayment of the money.

In Lackey v. Mercer County, 9 Pa. 318, a donation tract of land was sold by the county to the plaintiff for taxes. He entered and improved the land which was subsequently recovered by the donee. While in possession, the plaintiff paid the taxes assessed against the land, and after he was ousted, he brought an action to recover the amount paid by him on a void assessment, the land being exempt from taxes. The court entered judgment on a case stated for the county. Gibson, C. J., in affirming the judgment said: “A single fact in the cause turns the scale against the plaintiff — the payment was voluntary. The cases agree that a party who has paid an unfounded demand without constraint, cannot recover it back: it was his folly to part with his money, and he must submit to lose it. . . . The taxes were assessed and the plaintiff paid them, .... without objection, when the collector called on him, and without warning to the county that the money would be reclaimed. There could not be a more bald case of voluntary payment. His course was to appeal from the assessor to the county commissioners, and, if they would not exonerate him, stand a distress and sale, for which he would infallibly have recovered by action of trespass. . . . Independently of that (a proper contribution to the public treasury), however, a sufficient answer to his action is the fact that he made it without compulsion.”

Allentown Borough v. Saeger, 20 Pa. 421, was an action to recover back the amount of taxes illegally assessed by the borough on moneys at interest and paid to the tax collector. In reversing a judgment for the plaintiff this court, by Lowrie, J., said: “Part of the taxes charged against Saeger was legal and part illegal, and he paid the whole on demand, and now seeks to recover back the part that was illegally assessed. It cannot be allowed. The case is very different from that of payment to an individual by mistake. It was submission to legitimate authority which was prima facie right in its exercise. The taxing officers performed their duty as well as they knew how, and the tax was submitted to by one who was interested in the purposes for which it was raised, though it might have been resisted in legal form. This was an assent to pay more in support of the government of the town than the town had a right to demand, and the law does not imply the duty of refunding. If it had been paid under protest, that is, with notice that he would claim it back, this would repel the implication of an assent, and give rise to the right of reclamation. In another aspect it is unlike to a payment to an individual. It is a contribution to a common fund, in the benefits of which he, as a citizen or property-holder, participates. It is intended for immediate expenditure for the common good, and it would be unjust to require its repayment, after it has been thus, in whole or in part, properly expended, which would often be the case if suit could be brought for its recovery without notice having been given at the time of payment; and there would be no bar against its insidious spring but the statute of limitations. On these principles the defendant below is entitled to the judgment.”

In Taylor v. Board of Health, 31 Pa. 73, the Philadelphia board of health collected a state tax of $1.00 a head on immigrants and the plaintiff, the consignee of passenger ships, paid this tax during six years. It was then held that the tax was unconstitutional, and the plaintiff sued to recover the money he had paid. In affirming a judgment for the defendant, this court, by Lowrie, J., said (p. 74): “If the case of the Borough of Allentown v. Saeger was decided upon a proper principle, then the judgment .... is very plainly right. In that case the taxing officers had no authority at all for imposing the tax complained of, and, as it was paid without objection, it was presumed to have been expended for public purposes, and held to be irrevocable from the district whose officers imposed it. In the present case, .... the plaintiff seeks to recover back the taxes voluntarily paid by him. We state the case as one of a voluntary payment of taxes, because there is no pretense that the defendant’s officers did any more than demand the tax under a supposed authority of law; and this is no more a compulsion than when an individual demands a supposed right. The threat that is supposed to underlie such demands is a legally harmless one; that, in case of refusal, the appropriate legal remedies will be resorted to.”

In Union Insurance Co. v. Allegheny, 101 Pa. 250, the sheriff’s vendee of land paid under protest municipal taxes assessed against him before the sheriff’s sale. Judgments had been entered for the taxes after the sale but their lien had been discharged by the sale. The city solicitor demanded payment with threat to proceed to enforce payment by sale. The court entered judgment for the city which was affirmed by this court in an opinion by Mr. Justice Mercur who reviews the authorities on the subject, and says, inter alia (p. 257): “By application to the equitable powers of the court or by bill in equity execution might have been stayed, and the claim removed from the record. No immediate and urgent necessity existed for-the payment of the taxes to protect the property of the plaintiffs. Its goods were not about to be seized.”

In Peebles v. Pittsburg, 101 Pa. 304, municipal assessments were levied on plaintiff’s property and he paid on notice that if they were not paid in thirty days they would be collected by process of law. He paid under protest with notice that if not legally liable he would seek to recover them back. Later the act under which the’ assessments were made was held unconstitutional, and he brought assumpsit to recover the sum paid. In affirming a judgment for the defendant this court, by Green, J., said.(p. 308): “The payments were not compulsory. They were not made under any duress of person or goods, or under any impending danger of seizure or sale of property. ... In the latter case (Allentown Boro. v. Saeger, 20 Pa. 421), the money was paid to an ordinary tax collector, who, it must be supposed, was armed with a warrant in the usual manner. ... It is worthy of remark that in the case just referred to (Union Pacific R. R. Co. v. Commissioners, 98 U. S. 541), the claim paid was for taxes and the treasurer had in his hands at the time a warrant which would have authorized him to seize the goods of the company to enforce collection. . . . Notwithstanding all this it was held that no recovery could be had because; in fact no attempt had been made to put the warrant in force.”

The subject of voluntary payments and the right of the payor to recover them back from the payee is elaborately discussed and the authorities reviewed by Chief Justice Paxson in De la Cuesta v. Insurance Co., 136 Pa. 62. After quoting from the opinion in Christ Church Hospital v. Philadelphia, 24 Pa. 229, the chief justice says (p. 70): “We have here, succinctly stated, the principle upon which the doctrine rests in its application to a warrant for the collection of taxes. If the demand is illegal, and the party can save himself and his property in no other way, he may pay under protest and recover it back. But if other means are open to him by which he may prevent the sale of his property; if a day in court is accorded to him, he must resort to such means.”

The same doctrine is announced and applied in Hospital v. Phila. Co., 24 Pa. 229; Phila. v. Cooke, 30 Pa. 56; McCrickart v. Pittsburg, 88 Pa. 133; Payne et al. v. Coudersport Borough School Dist., 168 Pa. 386.

Applying the doctrine of these cases to the case in hand, it is apparent that the payment made by the plaintiff in January, 1908, was voluntary and not compulsory. The collector made no threat to enforce payment or to execute his warrant, if one he had. As we have said, there was no duress against the person, nor was the money paid under protest or with notice that it would be reclaimed. The payment, therefore, was entirely voluntary. As pointed out in the authorities cited, if the plaintiff company denied the legality of the road tax assessed on the 1907 valuation, its duty was to tender the amount lawfully due under the 1906 valuation, refuse to pay the balance demanded, and if necessary invoke the aid of a chancellor to restrain its collection just as it has successfully done in this proceeding as to the excess alleged to be yet due the towhship. This would have given the plaintiff its day in court and ample protection against payment of the taxes which it seeks to reclaim in this proceeding.

2. There is no suggestion of fraud in the case, and the next’ question is whether payment of the taxes was made under such mistake or ignorance of facts as entitled the plaintiff to have them refunded. To solve this question it is necessary to advert to the findings of fact by the referee and the court on which they base their conclusion, and the testimony adduced in support of the findings.

The learned referee in his ninth finding of fact says: “The plaintiff in ignorance of its rights and the facts with relation to the assessment of said road tax, and by mistake and inadvertence, thereupon paid to the said C. A. Hamill, collector, the sum of $1,722.56” and in his third conclusion of law: “The plaintiff company having in ignorance of the facts and by mistake paid the sum of $1,722.56 to C. A. Hamill, collector of said defendant township.” In affirming the referee’s report, the learned court says: “The referee has found that the excess was paid under a mistake of facts. The referee has applied, therefore, the general rule that money voluntarily paid under a mistake of facts can be recovered back, and we fail to discover any just reason why the rule should not prevail here.”

The only testimony in support of these findings is that of C. D. Dyer, vice president of the plaintiff company. He testified that he was present at the hearing before the county commissioners in June, 1907, of the company’s appeal from the assessment and afterward received notice of the reduction by the commissioners from $500 to $400 per acre, that after the appeal to the common pleas he was notified of the further reduction of the valuation by that court to $330 per acre, and that he then instructed the superintendent of the plaintiff company to tender, in May, 1907, the amount based on the 1906 valuation. He then testifies as follows: “Q. What policy did your company adopt in 1907 with respect to the payment of its road tax for that year? A. We had decided to contest the collection of any taxes based on any valuation other than 1906, but based on the 1907 rate. Q. Do you remember when your company determined on that policy? A. Prior to May 31, 1907.” He next testifies that early in January, 1908, “we received a notice .... calling on us to pay taxes based on the 1907 valuation, and it being early in the quarter and a great deal of that sort of stuff before us, I personally passed the bill over to the accounting department to pay according to the treasurer’s notice, subject to some minor deductions which we thought were proper, and the amount was paid in that shape early in January, 1908. I think January 6th. . . . We discovered along shortly after that that we had acted contrary to the company’s determined policy in the matter and called on the supervisors’ treasurer .... for a refunding of the amount paid, excepting the amount based on the 1906 valuation and the 1907 rate of taxation. . . . Q. About how long after that (the payment) was it that you discovered the mistake? A. I think before the first of February.” He says he was probably passing about forty or fifty matters the morning he passed the tax bill. “Q. Had you at that time any recollection that this was or was not the saíne amount that had been tendered by your company on May 31st previous? A. The only way that I'can account for that was that all of our taxes in Fairfield township were included in one notice, and the thought of it which was called to my attention was the chance to escape the penalty. The main factor in the case which we had determined on in the year escaped my attention. Q. At the time the bill was passed by you had you or not any recollection at that time of the position of the company had taken in May previous in regard to road taxes? A. No, sir.” A letter written by Mr. Dyer for his company, dated January 11, 1908, shows that at that time the company had no intention of contesting the amount of road taxes on the ground taken in the present suit.

The findings of the court and the referee are based upon this testimony, and from it they have drawn their conclusion that the payment was made by mistake and “in ignorance of the plaintiff’s rights and the facts with relation to the assessment.” It is true that we do not reverse the findings of a master, approved by the court, unless plain error is pointed out. In this case, however, we think that the evidence wholly fails to sustain his conclusion. Mr. Dyer was the vice president of the company and acted for it in this matter. As appears by his testimony, he was informed of every step taken in regard to the assessment, the fixing of the rate, and the payment of the tax. He appeared before the county commissioners in June, 1907, and asked that the company’s assessment made by the assessor be reduced. He received notice of the reduction from $500, the assessor’s valuation, to $400 per acre made by the commissioners, and subsequently was notified of the reduction to $330 per acre made by the common pleas. He was fully advised of the 1906 valuation and instructed the proper officer to make a tender on May 31, 1907, of the amount of road taxes due under that valuation. He further knew that the company had prior to May 31, 1907, declared its “policy” to contest the collection of any taxes based on any valuation other than that of 1906. It is, therefore, manifest from his own testimony that Dyer knew the 1906 valuation and the millage fixed for 1907 by the supervisors, and hence was fully advised at the time he paid the taxes and for several months prior thereto that $156.20, and not $2,091.14, was the amount legally due from the company for the taxes of 1907. In fact, he does not testify nor can any inference be drawn from any part of his testimony that in January, 1908, when he paid the taxes he was ignorant of any fact which would enable him to determine the amount of road taxes for 1907, legally due from and payable by the plaintiff company. Hence, there is no ground for the plaintiff company’s contention, or the finding of the referee, that the payment of the taxes was made in ignorance of its rights and the facts with relation to the assessment of the road taxes.

Did Dyer make the payment on the 1907 valuation by reason of his failure to recall the 1906 valuation and the millage fixed by the supervisors on the first Monday of March, 1907? These are the material facts the ignorance of or mistake in which would warrant the refunding of the money paid. He does not so testify, and the facts disclosed by his testimony do not warrant any such conclusion. It will be observed that the amount of taxes due on the 1907 valuation was $2,091.14, while the taxes due on the 1906 valuation was $156.20. With the knowledge of the subject possessed by Dyer, it is idle to say that in view of the great difference between these two amounts that he did not know that he was paying on the 1907 and not the 1906 valuation. It offends reason to hold that a man of his intelligence and manifest business capacity would not at once detect the difference between what he knew was the correct amount of the taxes and a sum at least thirteen times greater. There might be some excuse for his failure of recollection as to these matters if all the steps taken in regard to the levy and assessment of the taxes prior to the payment had been attended to by another representative of the company, but as appears by his own testimony, he was the sole agent and representative of the company throughout the tax proceedings, directed the tender of the amount of taxes to be made in May, 1907, and hence knew the legal amount of taxes due from the company at least seven months prior to the payment made in January, 1908.

Dyer does not testify, as will be observed from his testimony quoted above, that at the time he made the payment he did not recollect that the amount paid by him was the same amount that had been tendered by the company in May, 1907. The direct question was put to him but his answer was evasive. He testifies that when he received notice from the township treasurer to pay the taxes based on the 1907 valuation he personally passed the bill over to the accounting department to pay according to the treasurer’s notice, and that “we discovered along shortly*after that that we had acted contrary to the company’s determined policy in the matter and called on the supervisors’ treasurer .... for a refunding of the amount paid excepting the amount based on the 1906 valuation.” It will be observed, therefore, that he does not say that the payment was made in ignorance or for want of recollection of the 1906 assessment or the amount of taxes due on said assessment and tendered at his direction to the collector, but that in making the payment he had acted contrary to the company’s determined “policy” in the matter, and for that reason demanded the repayment of the amount. Had the learned referee and the court below critically examined Dyer’s testimony they would have discovered that it utterly failed to support their finding that the payment was made in ignorance or mistake of any material fact which entitled the plaintiff to have the money refunded. It is . wholly immaterial whether Dyer at the time he made the payment remembered the determined “policy” of his company or not, or what that “policy” was. That is not a material fact the ignorance or want of recollection of which can be made the basis for refunding the money paid. Hence, Dyer’s testimony does not disclose his ignorance or mistake or want of recollection of any fact which would warrant the company in demanding the repayment of the taxes.

How or by whom the “policy” of the company in regard to the payment of the road taxes for 1907 was determined does not appear by Mr. Dyer’s testimony. Being the vice president of the company and its representative in looking after the company’s assessments and payment of taxes, it may reasonably be inferred that the “policy” of the company was determined by Mr. Dyer. If he could determine its “policy” in the first instance, he could change it, and the presumption is that in paying the taxes on the 1907 valuation with a knowledge of the facts that he intended to change it. This intention is confirmed by his letter of January 11, 1908, in which he protests against paying a penalty on the road taxes for the reasons he states, but in no way indicating that he intended to contest the defendants’ claim for the road tax under the 1907 valuation. The evidence discloses that Mr. Dyer gave intelligent and prompt attention to his duties in regard to the levy and assessment of these taxes from the time he appealed to the commissioners until he invoked the assistance of the court to reduce the valuation, and it is, therefore, incredible that in paying the taxes it was not with a full knowledge and recollection of every material fact in the transaction.

If, however, the taxes were paid by reason of Dyer’s negligence or inadvertence, it is no ground for relief. This is the settled rule, and Dyer’s conduct, as appears by his own testimony, amounted to nothing more. Mistake as a basis for refunding taxes is a misapprehension or misunderstanding arising from ignorance, an essential prerequisite, and is distinguished from that inattention or absence of thought which are inherent in negligence, and is not such as results from inadvertence or negligence: 2 Pomeroy’s Eq. Jur. (2d ed.), sec. 839.

We are of the opinion that it was plain and manifest error in the referee and the court below to find, as they did, that the payment of the road taxes by the plaintiff company in January, 1908, was made in ignorance of the facts or by mistake, and that the evidence in the case entirely fails to support such finding. The plaintiff, therefore, has no right to have refunded the money which it paid on account of the taxes, and that part of the decree of the court below awarding its repayment must be reversed.

While we have passed on the merits of the plaintiff’s claim, we are of the opinion that equity has no jurisdiction to compel the refunding of the money. The right of the plaintiff to maintain the bill for that purpose is not supported by Frick Coke Co. v. Mount Pleasant Twp., 222 Pa. 451. The question was not in that case. We held there, as we do here, that under the facts of the case equity will enjoin the collection of a road tax levied on a wrong valuation. We did not hold that it would compel the refunding of the tax if it had been paid. Here, the bill was filed, inter alia, to compel the repayment of the amount inadvertently and by mistake paid by the plaintiff company in excess of what was legally due and owing by it. The fact that it prayed for an accounting did not give the court jurisdiction to compel the refunding of the taxes erroneously paid. The decree does not direct an accounting, and none was necessary. The items were all on one side of the account. There was no relation of trust or agency alleged. Under these circumstances the remedy at law to compel the repayment of the taxes was entirely adequate: Safe Deposit & Trust Co. v. Mahaffey, 227 Pa. 48; Sprigg v. Com. Title Ins., etc., Co., 206 Pa. 548; Holland v. Hallahan, 211 Pa. 223.

If the bill had contained a prayer only for the refunding of the money it will be conceded that it would not lie and must be dismissed. It is contended, however, that as the bill would lie for an accounting, equity would thereby acquire jurisdiction, and it might decide all matters incidentally connected with the case so as to make a final determination of the subject. But we held in Graeff v. Felix, 200 Pa. 137, that this rule does not apply to a case where only some incidental matter..is of equitable cognizance, and it is sought to draw in a main subject of controversy which has a distinct and appropriate legal remedy of its own. An accounting was clearly an incidental matter and of no importance in the case. The principal subject in controversy, aside from the right to enjoin the collection of the remainder of the tax alleged to be due, was the right to recover the taxes which had been erroneously paid. There being a complete and adequate remedy at law to compel the defendant to refund the taxes, it is clear that equity had no jurisdiction. There is nothing in the bill which confers jurisdiction on equity to direct the repayment of the taxes.

The decree entered by the learned court below must be sustained so far as it enjoins the defendants from collecting $368.58, the balance of taxes alleged to be due, and dismissed so far as it directs the repayment to the plaintiff of the sum of $1,566.36, the difference between the amount of taxes legally due from the plaintiff and the sum paid by it to the defendants. As thus modified, the decree is affirmed.


author: Per Curiam,

text:
    Rorabaugh’s Estate.

      Practice, orphans’ court — Findings of fact — Decedents’ estates — Promissory note — Forgery.
    A finding of fact by the judge of the orphans’ court that a promissory note presented as a claim against a decedent’s estate is a forgery will not be reversed by the Supreme Court if there is sufficient testimony to sustain it.
    Argued Oct. 5, 1910.
    Appeal, No. 149, Oct. T., 1910, by Margaret Rorabaugh, from decree of O. C. Westmoreland Co., Feb. T., 1910, No. 59, disallowing claim against estate of David Rorabaugh.
    Before Fell, C. J., Beown, Mssteezat, Pottee, Elkin, Stewaet and Moschziskee, JJ.
    Affirmed.
    Exceptions to adjudication. Before Steel, P. J.

      January 3, 1911:
    The opinion of the Supreme Court states the case.

      Error assigned was decree disallowing claim and dismissing exceptions to adjudication.

      Chas. C. Crowell, for appellant.

      John E. Kunkle, for appellee.
   Per Curiam,

This appeal is from an order disallowing a claim by a widow against her husband’s estate. His whole estate, real and personal, was less than $3,000. The appellant, who was his third wife, presented a note for $2,000, drawn to her order and dated within a month of her marriage to him. Her claim was resisted by his children by a former marriage, on the ground that the note was a forgery. The learned judge of the orphans’ court concluded from, an inspection of the note, and from the testimony of witnesses familiar with the handwriting of the decedent, that the note was not genuine.

There was ample testimony, which if believed, would sustain the conclusion reached. This is the limit of our inquiry. We have repeatedly said that we will not review findings of fact except to ascertain whether there was testimony to sustain them: Hancock v. Melloy, 187 Pa. 371; Dilworth v. Kennedy, 201 Pa. 388.

The decree of the court is affirmed at the cost of the appellant.


author: Mr. Justice Stewart,

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

      Railroads — Condemnation proceedings — Land damages — Evidence.
    1. In a proceeding to assess damages for a strip of land two hundred feet in length by fifty feet in depth condemned for railroad purpose through a lot containing about one acre and one-half, the owner will not be permitted to show that prior to. the appropriation he had contemplated dividing the ground into building lots, and that he had actually leased or contracted to lease five of the lots, which leases had failed because of the condemnation of the land; nor will he be permitted to show the terms of such leases.
    2. A plan or plot showing subdivisions into lots is sometimes admitted in condemnation proceedings for the purpose of showing the number of lots into which the whole tract can conveniently be subdivided; but there is no error in rejecting such a plan or plot where there is not a single feature portrayed on the plot that was not abundantly established by the evidence in the case.
    Argued Oct. 5, 1910.
    Appeal, No. 157, Oct. T., 1910, by plaintiff, from judgment of C. P. Westmoreland Co., Feb. T., 1898, No. 864, on verdict for plaintiff in case of Denna C. Ogden v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from award of viewers. Before McConnell, J.
    At the trial the plaintiff was asked the following question:
    “Q. Now, prior to the appropriation by the railroad company what use had you contemplated making of this ground in connection with other ground belonging to the same acre and a half? A. I had subdivided that end of the property into lots for the purpose of leasing and at the time of the appropriation five leases or contracts were already in existence.”
    Mr. Gaither: We object to the evidence of the witness as to leases. If the property was diminished in value by virtue of a lease on it the .injury was done by another party.
    Mr. Moorhead: We propose to prove not only that it was suited for that purpose, but to prove that fact — to clinch that fact — we will prove that it was leased, actually leased for the purpose of being used in connection with a little more to the rear of the lots for such purposes, and that leases had been made on the property, which leases, however, failed by reason of the fact of the appropriation, that is, there was nothing remained in the lessee because of the appropriation — the appropriation swept it away. This is merely to show the value of the property at the time of the appropriation.
    The Court: It is but proper to show that the land is valuable for any particular use, but to show that it was divided up by surveyor’s lines and the uses made according to those lines is going beyond a showing of what the property is adapted to. The property as a whole is the only thing that we consider. If it is suited for leasing that fact can be shown, but the actual leasing would lead us into inquiries that are more likely to confuse than to enlighten the jury.
    Mr. Moorhead: Counsel for the plaintiff proposes to prove by the witness, the plaintiff, himself, that at the time of the appropriation in this case, the ground appropriated, together with some ground immediately in the rear or south of it had been laid out in lots fronting towards the railroad, and that leases had actually been taken thereon at that time, and the terms of the leases, and those leases were annulled and became worthless, or were destroyed by reason of the appropriation by the railroad company of the ground mentioned in the pleadings. This is offered for the purpose of assisting the jury in passing upon the market value of the land at the time of the appropriation and to show the purpose for which it was available and desirable and that it was a good location, in connection with the other, testimony in the case for business purposes.
    Mr. Gaither: To which counsel for defendant admit that that portion thereof with respect to a showing by evidence as to the use to which the land in question may have been adapted at that time is competent, but as to tliat portion of the offer going to show some alleged individual contracts leasing portions thereof and the terms of such leases, the same is incompetent and irrelevant and calculated to lead the parties into a collateral issue, and is not the proper method to ascertain the difference in market value.

      The Court: The distinction made in the objection to this offer is properly drawn. The proposition is to show the amount of rentals and the value of the leases. It is so stated in the argument. That leads us into an inquiry that is not admissible here. "We have one subject-matter of injury, to wit, the property as a whole. Its availability and its adaptability for certain purposes or any other purpose or every purpose is a proper matter of consideration. But to go into the leasing of property, the value of those leases and dividing of the property up by lines that are not shown to have become a matter of public record, or shown to have been laid out and become in fact a plan of lots that the owner has not pledged himself to be bound by any proposed act is the kind of evidence that is not admissible here. The tendency of it is but to multiply the causes of injury about a thing that is a unit and must be considered from beginning to end to be a unit. There is no trouble about showing what the property is suitable for, but to divert the trial of the case into a trial of the character of the leases that were made upon it is to lead us away from the road we must travel. The objection is sustained and an exception noted. [1]
    Mr. Moorhead: Counsel for the plaintiff now propose to prove by the witness that at and preceding the time of the appropriation by the railroad company of the land taken and described in the pleadings in this case, he had subdivided it into a plan of lots according to Exhibit No. 1, and that the property was taken in that condition —this offer being made for the purpose of showing the condition of the property at that time, and if admitted, to be followed by evidence of the value of the lots as thus divided, and for the further purpose of showing a capacity or capability of the land taken to be divided and used in the way shown in the map.
    Mr. Whitten: To which counsel for defendant object as incompetent and irrelevant, and further for the reason that the plaintiff has already offered at will testimony showing how his property could have been or could be advantageously divided up and how such division might be interfered with by the appropriation. The plaintiff being the owner of all the property in fee at the time of the appropriation, cannot in this manner by indirection offer evidence to inflate his damage so as to exceed that which would be recoverable for an injury to the property as a whole.
    The Court: The proposition now made expressly states that the plan which was sought to be put in evidence was made prior to the appropriation made by the defendant company. The proposition is to show .that he had divided the property and that it was in that condition at the time that it was taken. That is not a thing that can be shown by a paper. It amounts to no more than to say that in his mind he had divided it and made a picture on a paper of what was in his mind. That is not a division of the property. It does not show a division of the land as it proposed to show it, because it was not the land that was in that condition. There is no proposal to show that the land was in the condition except by means of this plan or draft. If the offer was merely for the purpose of showing the capacity and capability of the land for being divided up, that could be done now without connecting it with the other propositions which immediately precede this, and which propositions are to some extent, in thought at least, associated with this one. The objection is sustained. Exception noted and bill sealed. [2]
    Mr. Moorhead: The counsel for the plaintiff, in addition to the foregoing offer, which is hereby renewed and made a part of this offer the same as if it were stated fully, propose to add thereto an offer to prove that the subdivision of the property as shown by the draft was not merely in the mind of the plaintiff, but that actually preceding the time of the appropriation leases had been made of portions of the property for a valuable consideration in strict accordance with the plan as shown by the map. This for the purpose of showing the condition in which the property was at the time of the appropriation and to be proved under the allegation in the statement of claim, that such subdivision existed.
    The Court: That does not alter the substance of the propositions heretofore made as we understand them. The case of Baltimore & Philadelphia R. R. Co. v. Springer, 13 Atl. Repr. 76, already referred to by the court, is applicable to the proposition that is now made, and the offer is rejected. Exception noted and bill sealed. [3]
    Mr. Moorhead: We offer the Exhibit No. 1 in evidence for the purpose of showing the capacity and capability of the land which is the subject of this investigation, of division into lots such as are shown by the plan.
    Mr. Whitten: Objected to as incompetent and irrelevant, the plaintiff having already offered at will all testimony desired showing how the land might be advantageously divided by any plan that might seem most favorable to him. This offer is an attempt to introduce testimony as to what the intention of the plaintiff was at a particular time, and is, therefore, irrelevant.
    The Court: This offer relates to the same plan to which offers heretofore 'made in the presence and hearing of the jury relate, and the obvious purpose is to bring that same plan into evidence that was offered before. In a proposition to offer a plan not thus associated we would have a different question before us, but under the circumstances we will sustain the objection. Exception noted and bill sealed. [4]
    Verdict and judgment for plaintiff for $2,300. Plaintiff appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions.

      James S. Moorhead, with him Robert W. Smith, for appellant,
    cited: Wilson v. Equitable Gas Co., 152 Pa. 566; Phillips v. Incline Plane Co., 166 Pa. 21; Catlin v. Coal & Iron Co., 225 Pa. 262.

      January 3, 1911:

      Paul H. Gaither, with him Charles E. Whitten, for appellee,
    cited: Penna. S. V. R. R. Co. v. Cleary, 125 Pa. 442; Gorgas v. R. R. Co., 215 Pa. 501.
   Opinion by

Mr. Justice Stewart,

Defendant company appropriated by condemnation proceedings a narrow strip of ground, 200 feet in length by fifty feet or more in depth, included within the limits of a lot of ground containing about an acre and a half belonging to the plaintiff. The proceeding was for the assessment of damages occasioned thereby. The error assigned is the rejection of certain evidence. The effort on part of plaintiff was to show that the land taken was adaptable to and available for building lots, a circumstance relied upon as showing enhanced market value. Evidence to show such fact was freely admitted; witnesses being allowed on the trial to express opinions as to the fact of availability for the purpose indicated, and, within proper limits, to state facts and circumstances on which their opinions rested. The plaintiff himself being on the stand, it was proposed to show by him that before the appropriation of the lot by the defendant company, he had it in contemplation to divide the ground into building lots; that he had actually leased or contracted to lease five of the lots exhibited on his draft, which leases had failed because of the appropriation by the defendant company. The purpose of the offer as stated was to assist the jury in passing on the market value at the time of the appropriation, and to show the purpose for which the land was available in view of its location, etc. These offers were rejected, and very properly. Whatever purpose the plaintiff had in connection with the future use of the ground, could add nothing to its market value. The fact that such purpose was defeated by the defendant’s appropriation of the land, however much a disappointment, was not a matter for compensation. The fact that he had designed a plan of subdivision was in itself, no evidence of availability of the ground for building lots, except as an expression of his individual opinion, and that he was permitted to express freely. Whether the fact that contracts had been entered into for the lease of five of the lots exhibited on the plot, would tend to show that the ground was adaptable for building lots, would depend very much on the terms and conditions of the lease and the purpose the lessee had in view; but these could not have been introduced into the case for several reasons, either of which would be controlling in itself. In the first place, it is never permitted to introduce evidence of individual sales to prove the market value of the particular land as to which the inquiry is made; much less is it permissible to show what rent the property has yielded as a basis of estimation; and in the second place, the evidence proposed would necessarily lead to collateral inquiries not pertinent to the issue in the case. The offer was to show the terms of the leases. Whether the purpose was or was not to get before the jury the consideration to be paid, with a view to fixing the market value of the lots, it would have necessarily so resulted. This is never allowed. As well permit the owner to testify to private bids which he had received for his property as evidence of its market value. Under our decisions a plan or plot showing subdivisions into lots is sometimes admitted for the purpose of showing the number of lots into which the whole tract can conveniently be subdivided; and we cannot say that it would have been error to admit the plot offered by the plaintiff in this case. But it is too evident to admit of doubt that the plaintiff was not injured in the slightest by its rejection. The entire lot is in the shape of a parallellogram and its dimensions were in evidence; the jury had been upon the ground and saw the topography; it was shown that it could easily and conveniently be subdivided into ten lots each with a front of twenty feet. There was not a single feature portrayed on the plot that was not abundantly established by the evidence. The plot could have added nothing to the plaintiff’s case that would have been proper for the jury to consider. It is impossible to see how prejudice could have. resulted to the plaintiff ■from its rejection.

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