text:
    Alton’s Estate.

      Escheats — Decedents’ estates — Constitutional law — Statute of limitations —Act of May 2,1889, P. L. 66.
    The Act of May 2, 1889, P. L. 66, entitled “An Act defining and regulating escheats in cases where property is without a lawful owner, and providing for more convenient proceedings relative to the same,” establishes a complete system of escheats, and it was the first and only act which gave to the orphans’ court jurisdiction over escheats. If a proceeding in escheat has been conducted fully and specifically in accordance with the terms of the act, and a final decree in escheat has been entered after notice has been published in the form as provided by the act, relatives of the decedent who had no actual notice of the proceedings cannot after the expiration of seven years from the date of the decree have the decree opened and secure restitution of the money from the treasury of the commonwealth.
    The Act of May 2 1889, P. L. 66, does not contravene the constitution of Pennsylvania because it requires the orphans’ court to certify an issue to the common pleas; nor does it contravene the constitution because it fixes a period of three years within which any interested party can traverse the final adjudication of escheat.
    Where the orphans’ court enters a final decree of adjudication and distribution, and in a different proceeding in the same estate enters a final decree of escheat, the court cannot subsequently at the instance of relatives of the decedent, open the decree of distribution and order restitution of the money by the state, without having previously vacated the final decree of escheat.
    Argued Jan. 14, 1908.
    Appeal, No. 13, Oct. T., 1908, by Commonwealth of Pennsylvania, from decree of O. C. Allegheny Co., June T., 1896, No. 255, opening decree'of distribution in Estate of James Alton, deceased.
    Before Mitchell, C. J., Fell, Brown,. Mestrezat, Potter, Elkin and Stewart, JJ.
    Eeversed.
    Petition to open final decree of distribution and to secure restitution of money escheated to the commonwealth.
    Before Hawkins, P. J.
    The facts appear by the opinion of the Supreme Court.
    The orphans’ court in an opinion by Hawkins, P. J., entered the following decree:
    And now, to wit: October 30, 1907, this matter came on to be heard upon petition and demurrer thereto, and was argued by counsel and thereupon upon consideration thereof, it is ordered, adjudged and decreed that the decree of distribution made in above case on February 23, 1897, at No. 76, March Term, 1897, be and the same is hereby vacated and set aside and it is further ordered and decreed that the commonwealth of Pennsylvania, distributee of the fund as shown by said decree, viz.: $5,192.81 refund, and pay to petitioners as next of kin. of said defendant in accordance with the following schedule of distribution, unless an appeal be taken herefrom within twenty days.
    Pee Cubiam.
    Balance as above......... $5,192.81
    To Clerk’s Costs.........$ 3.00
    To Com. of Pa. Col. Int. Tax..... 259.44
    262.44
    Balance for Distribution...... $4,930.37
    To Vm. Jas. Wilsey, 1/2 ...... 2,465.19
    To Jane Wilsey Oakes, 1/2 ..... 2,465.18
    $4,930.37
    Less necessary costs and expenses incurred by the commonwealth.

      Error assigned was the decree of the court.

      Henry G. Wasson, with him H. K. Sieheneoh and E. W. Arihwr, for appellant.
    If the decree of distribution be opened, nevertheless, the decree of escheat still remains and stands in the way of any recovery by the claimants: Hamilton v. Brown, 161 U. S. 256 (16 Sup. Ct. Repr. 585).
    Pennsylvania being a sovereign state it can only be sued in its own courts by virtue of its express consent: Edwards v. R. R. Co., 215 Pa. 597.
    There can be no doubt of the competency of the legislature to provide for the escheating of property in the manner enacted by our statutes: Hamilton v. Brown, 161 U. S. 256 (16 Sup. Ct. Repr. 585).
    The act of 1889 is constitutional: Thorpe v. Rutland & Burlington R. R. Co., 27 Vt. 140 ; Miller’s Est., 159 Pa. 562 ; Bowman v. Knorr, 206 Pa. 272 ; Com. v. Green, 58 Pa. 226 ; Commonwealth v. Smith, 4 Binn. 117.
    Laches on the part of the petitioner has always been deemed an insurmountable obstacle to opening a decree even within a period of five years. When the ordinary forms of law have been complied with, the fact that a particular party had no knowledge thereof is no ground for allowing him to have a decree opened: Priestley’s Appeal, 127 Pa. 420.

      Arthur O. Fording, for appellees.
    Generally, the discretionary power of the orphans’ court to correct its own wrong, and especially a clear mistake of fact, is beyond cavil: George’s App., 12 Pa. 260 ; Parker’s App., 61 Pa. 478 ; McNeel’s Est., 68 Pa. 412 ; Whelen’s App., 70 Pa. 410 ; Young’s App., 99 Pa. 74 ; Milne’s App., 99 Pa. 483 ; Johnson’s App., 114 Pa. 132.
    Assuming the validity of the act, and assuming that it implies a limitation, yet the latter is but a rule of administration which must yield to the equity of the case: Cowan’s Est., 184 Pa. 339 ; Ross’s Est., 9 Pa. 17 ; Mellon’s App., 32 Pa. 121.
    Statutes of limitation are recognized as beneficent laws. But when the plaintiff could not have sued within the time limited by the statute, it is not enforced : Hanger v. Abbott, 73 U. S. 532 ; Brown v. Hiatts, 72 U. S. 177 ; Little v. Price, 1 Md. Ch. 182 ; Montgomery v. Hernandez, 25 U. S. 129.
    Section 22 does not even purport to bar a rightful claim after three years: Jackson v. Lamphire, 28 U. S. 280, 290 ; Terry v. Anderson, 95 U. S. 628 ; Koshkonong v. Burton, 104 U. S. 668 ; Ross v. Duval, 38 U. S. 45 m; Kenyon v. Stewart, 44 Pa. 179 ; Eakin v. Raub, 12 S. & R. 330 ; Korn v. Browne, 64 Pa. 55 ; Stephens v. Bank, 43 Mo. 385 ; Gilbert v. Ackerman, 159 N. Y. 118 (53 N. E. Repr. 753); Price v. Hopkin, 13 Mich. 318.
    If the act of 1889 must be so construed as to bar a claimant at any time, then it is unconstitutional; for it provides for no citation or other notice to unknown claimants notin possession, and such as these appellees would be deprived of their property without due process of law : Stuart v. Palmer, 74 N. Y. 183 ; Security Trust Co. v. Lexington, 203 U. S. 323.
    If the act 1889 must be so construed as to bar such an application as the present, then it is unconstitutional because it encroaches upon the constitutional power of the orphans’ court to correct its own mistake of fact: DeHart v. Hatch, 3 Hun, 375 ; Alexander v. Bennett, 60 N. Y. 204 ; Popfinger v. Yutte, 102 N. Y. 38 (6 N. E. Repr. 259); Hutkoff v. Demorest, 103 N. Y. 377 (8 N. E. Repr. 899); Flynn v. R. R. Co., 142 N. Y. 439 (37 NT. E. Repr. 514); George’s App., 12 Pa. 260 ; Young’s App., 99 Pa. 74 ; Johnson’s App., 114 Pa. 132.
    The act of 1889 is unconstitutional because it would require the orphans’ court (sections 9 and 22) to certify to the common pleas an. issue which before 1874 the orphans’ court could have determined itself, thereby derogating from the fixed constitutional power of the orphans’ court: Moore v. Dunn, 147 Pa. 359 ; Ashford v. Ewing, 25 Pa. 213 ; Phillips v. R. R. Co., 107 Pa. 465.
    March 2, 1908 :
   Opinion by

Mr. Justice Mestrezat,

James Alton, a resident of Allegheny county, died intestate April 15, 1895, possessed of an estate consisting of money. It was not then known that he left to survive him a widow or kindred. Letters of administration on his estate were granted by the register of Allegheny county to Edward Kelly, Jr., on May 15,1895. The auditor general of the commonwealth appointed F. C. McGirr, Esq., escheator of Allen’s estate on August 11, 189G, and four days thereafter McGirr presented his petition to the orphans’ court praying the court to determine whether or not an escheat had occurred, and for a citation on the administrator to file an account. The prayer of the petition was granted. On January 19,1897, the administrator was directed to file an account within ten clays, and also to expend a sura not exceeding $50.00 in procuring information and advertising in newspapers in New York city and county Kerry, Ireland, for decedent’s next of kin. Advertisements were inserted in the “ New York "VVorld ” and in the “ Kerry Sentinel,” published in county Kerry, Ireland, where the decedent was born. The administrator made other efforts to find relatives of the decedent. On February 17, 1899, the court entered a decree, at No. 255, June Term, 1896, in the proceedings to declare an escheat, that the estate of James Alton had escheated to the commonwealth; that the cause of the escheat had occurred by reason of the decedent having died seized and possessed of the property in question, intestate, without heirs or known kindred or widow ; that the estate which had escheated consisted of money in the hands of the administrator of the decedent, and that the estate is awarded to the escheator for and on behalf of the commonwealth. On February 23, 1899, in the audit of the account of the administrator, at No. 76, March Term, 1897, the orphans’ court entered a decree of distribution and ordered that, after the payment of certain costs, expenses, etc., distribution of the balance of the fund be suspended until the termination of the escheat proceedings at No. 255, June Term, 1896. There being no exceptions to the decree of escheat which, therefore, had become confirmed absolutely, the orphans’ court, on April 1, 1899, ordered that the balance of the fund in the administrator’s hands as shown by his account, distribution of which was suspended, be distributed to the escheator on behalf of the commonwealth of Pennsylvania. The decree directed the administrator to pay the sum directly to the state treasurer.

On December 8, 1906, William James Wilsey and Jane Wilsey Oakes presented a petition to the court setting forth that they resided respectively in the states of Oregon and Michigan ; that they had never resided in Pennsylvania ; that they were nephew and niece of decedent; that neither of them ever heard of the death of the decedent until August, 1902, when they heard that his estate had escheated for want of known kindred, and they were barred by the law of Pennsylvania from making any traverse of the adjudication ; that in the summer of 1906 they were first advised that their right to the estate might still be established. They prayed that they might be permitted to traverse the adjudication, that the same might be vacated and annulled and that the commonwealth might be ordered to refund the money paid to it. The commonwealth filed an answer praying that the petition might be dismissed, and averring that the adjudication of the escheat was made in pursuance of the Act of May 2, 1889, P. L. 66, which required a traverse of the proceedings to be made within three years after the final, adjudication ; that more than three years had elapsed since the final adjudication was entered and the balance of the estate had been paid to the commonwealth ; that the petitioners are not entitled to receive the money paid to the commonwealth, nor any part of it; that the adjudication of escheat is final and conclusive upon all persons whatsoever, and that the court was without power to grant the relief prayed for.

The court below entered a decree on October 30, 1907, “ that the decree of distribution made in above case on February 23, 1899, at No. 76, March Term, 1897, be and the same is hereby vacated and set aside, and it is further ordered and decreed that the commonwealth of Pennsylvania, distributee of the fund as shown by said decree, 15,192.81, refund and pay to petitioners as next of kin of said decedent in accordance with the following schedule of distribution.” From that decree the commonwealth haS'-'taken this appeal.

Jurisdiction to escheat property to the commonwealth is conferred and regulated by statute, Commonwealth v. Crompton, 137 Pa. 138, and the proceeding to escheat the property of James Alton was taken under the Act of May 2, 1889, P. L. 66, 2 Purd. (13th ed.) 1468. This act substantially supplies the former acts on the subject in force at the time of its passage. It confers jurisdiction on the orphans’ court where an escheat is supposed to have occurred by reason of any person dying intestate, without heirs or known kindred, a widow or surviving husband. Where no letters of administration have been granted upon the estate of the decedent, letters may be granted to the escheator. The proceedings to ascertain whether an escheat has occurred or not are instituted by the escheator presenting a petition to the court, setting forth the facts and asking that the matter may be determined. The court is also required to issue a citation to the administrator to show cause why he should not file an account of the property alleged to have been escheated, and if no cause be shown the court shall direct an account to be filed. By section 8, the court is required to audit the account filed by the administrator, and “ shall upon said audit, proceed to inquire and determine whether there has been any escheat or not and if so, in what manner and for what cause said escheat has occurred and also what estate, real or personal, has escheated, and what is the value thereof.” By the same section the court is empowered at any stage of the proceedings, when they may think it wise so to do, to make such order relative to advertisements and notices of the proceedings, as shall best serve to inform and advise all parties having an interest, or who may have an interest in said proceedings, of the pendency thereof.”

The court is required after the determination of each case to file of record a finding of adjudication setting forth certain facts specified in the act. Parties in interest may except to the adjudication or finding an escheat, and if any of the exceptions are sustained the court is required to amend its adjudication or finding in accordance with its determination upon the exceptions. If no exceptions are filed within the time specified, the adjudication shall be deemed to be confirmed absolutely. Either party may appeal from the final adjudication by the orphans’ court. After the final determination of the escheat proceedings, the escheator is required to file a copy of the adjudication with the auditor general, and also, where real estate has been escheated, in the common pleas of the county where such real estate is situated. At the expiration of thirty days after the absolute confirmation of the adjudication in escheat, the parties having possession of the escheated money are required to pay it to the escheator, and he is required to pay it immediately into the state treasury.

Section 22 of the act provides, inter alia, as follows: “ Any persons .... claiming to be interested in any property . . . . which shall be found to have escheated to the commonwealth .... who have had no actual notice by citation, advertisement or otherwise of the pendency of any proceedings in escheat .... may at any time within three years next after the filing of the final adjudication or finding in escheat, or the absolute confirmation thereof, traverse the same under oath or affirmation, by writing filed in the court finding the same.” In case of a traverse, the adjudication of escheat is required to be certified to and tried in the common pleas. If the person filing the traverse is successful and sustains his claim to the money, the commonwealth is required to pay it to him.

It will be observed that by the act of 1889 the orphans’ court was required to determine whether the escheat had occurred, and also to audit the account filed by the administrator. There were, therefore, two proceedings at the same time in the orphans’ court affecting the decedent’s estate. It will also be observed that the two proceedings were docketed at different numbers of the court and that each was carried to a final adjudication. The proceedings at Ho. 255, June Term, 1896, were begun by the escheator under the act of 1889 and resulted in a final adjudication of the escheat of the decedent’s property. The proceedings at Ho. 76, March Term, 1897, were the audit of the account of Edward Kelly, administrator of the decedent, and resulted in a final decree distributing the amount shown to be in the administrator’s hands to and among the parties entitled thereto.

It will be noticed, however, that the court below in its action on the application of the two relatives of the decedent for leave to traverse the adjudication of escheat, disregarded the fact that the escheat proceedings were separate and distinct from those of the audit, and that a decree had been entered in each proceeding. The prayer of the petition presented by Wilsey and Oakes was for leave to traverse the adjudication made in the escheat proceedings, that the same might be vacated and annulled, and that the moneys paid to the commonwealth might be decreed to be paid to them. The first two prayers of the petition required action to be taken in the proceedings to declare the escheat, and the last prayer required action to be taken to correct the alleged error in the distribution of the estate. The court, however, made no decree directly affecting the adjudication of the escheat, but ordered that the decree of distribution be vacated and set aside, and that the commonwealth refund to the petitioners the money paid it under the court’s formal decree of distribution. As the record stands in the orphans’ court, therefore, there is a decree of final adjudication of escheat, not excepted to or appealed from, and by which the commonwealth is entitled to the money of which the decedent died possessed. By the decree entered in the proceedings instituted by Wilsey and Oakes the formal decree of distribution made on February 23, 1899, at No. 76, March Term, 1897, is vacated, and the money of which the decedent died possessed is not adjudged to be the money or property of Wilsey and Oakes, but directly to be paid to them by the commonwealth, which holds it under the final decree of escheat. It is apparent that the two decrees conflict, and that both cannot be enforced. If the decree of es-cheat remains unimpeached and in force, the commonwealth is entitled to the money and cannot be ordered to pay it to anyone. So long as that decree is in force, it is of sufficient authority to justify the orphans’ court in awarding the money to the commonwealth in the proceedings distributing the estate of the decedent. Until it is annulled or vacated, the decree of distribution cannot be modified or set aside so as to direct the payment of the fund by the commonwealth to Wilsey and Oakes. If they had been permitted to traverse the final adjudication of escheat, and had been successful in sustaining their claim to the money, then the court, as provided by the act of 1889, could have directed the commonwealth to pay the money to them. There is nothing, however, in the act which authorizes the court to order or direct the commonwealth to pay the escheated money to any person so long as the final adjudication of the escheat remains in force..

If, however, we regard the decree of October 30,1907, from which this appeal was taken, as having annulled and vacated the final adjudication of escheat, we do not think it can be sustained.

By sec. 12 of the Act of April 8, 1833, P. L. 315, 2 Purd. (13th ed.) 2002, it is provided: “ In default of all such known heirs or kindred, widow or surviving husband as aforesaid, the real and personal estate of such intestate shall go to and be vested in the commonwealth by escheat.” We have said that where no relative appears to take the estate, the act of 1833 names the commonwealth in default of known heirs or kindred: Linton’s Estate, 198 Pa. 438. It will, therefore, be observed that the act of assembly declares that the property of a decedent shall escheat to the commonwealth in the absence of known kindred. It is necessar}*', however, to ascertain and determine whether the party who died seized or possessed of the property left any known kindred and for that purpose the assembly has on several occasions enacted legislation providing the mode of procedure by which the fact shall be determined. When the provisions of the statute, regulating the mode of procedure, have been complied with and a decree or judgment has been entered by a’ court of competent jurisdiction eschéating the property to the commonwealth, such decree or judgment is conclusive evidence of the facts determinable by the proceedings, one of which is the right of the state to the decedent’s property: Hamilton v. Brown, 161 U. S. 256. Where lands have been escheated to the commonwealth, its title can only be divested in the manner prescribed by the statutes relating to such estates : Straub v. Dimm, 27 Pa. 36.

The act of 1889 makes ample and complete provisions for escheating property of a decedent to the commonwealth. It is not alleged that the mode of procedure provided in the act was not complied with in escheating the estate of James Alton to the commonwealth. It is conceded that the appellees, who are respectively nephew and niece of the decedent, did not make application to traverse the final adjudication of the estate within three years after the decree of adjudication was entered.. In fact, as shown in the proceedings, the application to traverse the final adjudication was not made to the orphans’ court for more than seven years after the decree was entered. In annulling its decree of distribution and awarding the estate of the decedent to the appellees and thereby in effect annulling the final adjudication of escheat, the learned court held that its jurisdiction, conferred by the constitution of 1874, empowered it to correct the mistakes of its former decree; that the legislature had no authority to deprive it of the power to correct its decrees and that the three years’ limitation made the act of 1889 unconstitutional; that if the act is constitutional the limitation was a rule of administration and must yield to the equity of the claimant; and for the reasons stated in the court’s opinion the decree of distribution must be set aside and the fund awarded to the appellees. The appellees contend in support of the decree that the limitation in the twenty-second section of the act was not a bar to a rightful claim after three years ; and that the act of 1889 is unconstitutional because it provides for no citation or other notice to unknown claimants not in possession of the property, thereby depriving the appellees of their property without due process of law, because it encroaches upon the constitutional power of the orphans’ court to correct its own mistakes of fact, and because sections nine and twelve require the orphans’ court to certify to the common pleas an issue which before the constitution of 1874 the orphans’ court could have determined itself, thereby derogating from the fixed constitutional power of the orphans’ court.

We have no intention of taking up and discussing seriatim the reasons suggested in support of the decree of the court below. It would unduly lengthen this opinion and serve no good purpose. It is not necessary to discuss or determine the powers of the orphans’ court under the constitution of 1874, and the authority or power conferred on the orphans’ court by article 5; section 22 of the constitution wherein it is declared that the court shall exercise all jurisdiction and power now vested in or which may hereafter be conferred upon the orphans’ court.” Prior to the constitution of 1814, the orphans’ court had no jurisdiction in cases of escheat, and hence this section of the constitution conferred no power upon it over escheats. The prior acts of the legislature relating to escheats conferred authority upon the Supreme Court and courts of common pleas throughout the commonwealth. No legislation prior to the act of 1889 gave the orphans’ court any jurisdiction whatever in proceedings to declare an escheat, and the first and only jurisdiction of the orphans’ courts of the commonwealth over escheats was conferred by that act. Such authority and power as those courts now possess they have by virtue of that legislation. In all proceedings, therefore, instituted in those courts to escheat the property of a decedent, the provisions of the act of 1889 must control and must be strictly adhered to in order to validate the final adjudication. If the orphans’ court claims to exercise any jurisdiction whatever in proceedings of escheat, the provisions of that act must confer the authority or it does not exist. It, therefore, becomes unnecessary to determine the extent of the authority of the orphans’ court to correct its decrees made in other proceedings arising before it.

As suggested above, the proceedings to declare the escheat of the estate of James Alton, deceased, were in exact compliance with the provisions of the act of 1889 from their inception to the decree of final adjudication. Does the act of 1889 transgress any of the provisions of the constitution? We do not agree with the learned court below or the appellees’ counsel that it does violate any of the provisions of the present constitution. Nor do we consent to the proposition that the twenty-second section of the act is not a bar to the right to traverse an adjudication of escheat at the expiration of three years.

The act is entitled “An act defining and regulating escheats in cases where property is without a lawful owner, and providing for more convenient proceedings relative to the same.” It establishes a complete system of escheats, and repeals all acts inconsistent therewith. The contention that it provides no notice to unknown claimants and hence deprives them of their property without due process of law cannot be sustained. Section eight requires the court “ to inquire and determine whether there has been any escheat or not, ” and, in case of real estate, the court must “ order and direct notice of said proceedings to be served upon the person or persons in possession” of the property. The court is also invested with “full power and authority to summon any person or persons who shall be at any time alleged to have any knowledge touching any escheat or any interest therein, to appear before it.” It is also provided in that section that “ said court shall have full power and authority to examine any and all of said persons upon their oaths or affirmations, as to any fact or facts, matter or thing touching said escheat, and shall suffer and permit the escheator and all parties claiming to have any interest in said proceedings, to appear therein by counsel or otherwise, and to produce and examine such witnesses under oath or affirmation, as they may see fit, touching said escheat.” Another provision of the section confers upon the court “ full power at any stage of said proceedings, when they may think it wise so to do, to make such orders relative to advertisements and notices of the proceedings, as shall best serve to inform and advise all parties having an interest, or who may have an interest in said proceedings, of the pendency thereof.” It may be conceded, for the sake of argument, that the legislature has no right to escheat property without notice actual or constructive. Ho party should be deprived of his property without an opportunity to be heard, and no act of assembly providing for escheating it to the commonwealth should fail to make provision for at least constructive notice of such proceedings. But the act of 1889, as will be observed, makes ample provision, not only for bringing any person before the court who may have any knowledge touching any escheat and giving them a full hearing in regard to it, but also for “ such advertisements and notices of the proceedings, as shall best serve to inform and advise all parties having an interest, or who may have an interest in said proceedings, of the pendency thereof.” It is true the act provides that the court shall make such order relative to notices and advertisements at any stage of the proceedings as the court may deem proper, but manifestly that means that the notices and advertisements of the proceedings are mandatory, and simply leaves discretionary with the court the time and manner of giving the notices and making the advertisements. This was evidently the view the court below took in this case, as it made an order, not only that notice be given but that a part of the fund should be devoted to pay the expenses of the advertisements. The record discloses that advertisements were inserted in the newspapers of the localities where the relatives of the decedent, if he had any, would be found. It also appears that the administrator, by correspondence and otherwise, made every effort to notify all persons who he thought were related to the decedent of the proceedings pending for the escheat of the property. The act of assembly was, therefore, construed to require notice of the proceedings by advertisement, and advertisements were duly made, and other notices of the pending escheat proceedings were given.

The contention that the act of 1889 contravenes the constitution because it requires the orphans’ court to certify an issue to the common pleas cannot be sustained. The proceeding is statutory and the legislature had authority to confer upon the common pleas such power in determining an escheat as it thought proper. In directing an issue to be certified to the common pleas in such cases, the legislature deprived the orphans’ court of no power it had theretofore possessed.

The legislature had the power to fix a reasonable time within which any interested party should traverse the final adjudication of escheat. This power has been exercised by the legislature of this state for nearfy a century and a quarter, and no arguments have been adduced or authorities cited which warrant the conclusion that it offends either the federal or state constitution. Limitations of actions, either by prescription or by statute, are older than any of our constitutions or common law: Kenyon v. Stewart, 44 Pa. 179,191. Whatever belongs merely to the remedy, adapted for the acquisition of a right, may be altered according to the will of the state, provided the alteration does not impair the obligation of a contract; and such.result is not worked where a substantial remedy is left to the parties according to the ordinary course of justice: Long’s Appeal, 87 Pa. 114 ; Bronson v. Kinzie, 42 U. S. 311, 316 ; Railroad v. Hecht, 95 U. S. 168. It is a well-settled rule, that legislation that affects the remedy merely, and does not deny the right, is not open to objection upon constitutional grounds : Sayres v. Commonwealth, 88 Pa. 291. In the case in hand, the right of the appellees to the estate of James Alton was not assailed or denied them by the limitation prescribed in the act of 1889. The act recognizes their constitutional right to the property and provides an adequate remedy for enforcing it. But while recognizing the right and furnishing a remedy for its enforcement, the legislature restricts and limits the remedy by providing that it shall be pursued within a reasonable time. This provision does not deprive the appellees of their right to the property, but simply imposes a reasonable limitation as to the time in which it shall be enforced. The power of the legislature to furnish the remedy includes the power to impose reasonable limitations on its enforcement.

It is true that all courts have authority to supervise their process and correct their decrees so long as the proceedings are within their grasp. That principle is applicable not only to the orphans’ court but to the common pleas. But there must be a finality to all legal proceedings and the principle cannot be invoked to authorize a court to exercise such summary power except within reasonable limits. In Evans v. Maury, 112 Pa. 300, this court in speaking of the power of the common pleas to supervise its process said (p. 314): “ This is true so long as the proceedings are within its grasp. But after they are completed and ended there must be a time come when the power of the court to interfere summarily for the correction of supposed evils shall cease.” This case was followed and the principle enforced in the recent case of Lengert v. Chaninel, 208 Pa. 229. In the case cited by the appellee as announcing a different doctrine in the orphans’ court, it will be found that where the court attempled to correct its errors it still retained its grasp over the parties or the fund, or over both.

In the case at bar, the final decree of adjudication of escheat was made in February, 1899, and later in the same month, the account of the administrator was audited by the orphans’ court, and the balance of the fund in the hands of the administrator was awarded to the escheator for the commonwealth. The money payable to the state was at once paid into the state treasury. As required by the act of assembly, the one-third of the fund was paid to the informer who gave bond, as required by the statute, to refund to the commonwealth if a successful claimant appeared within three years. This bond is not now a security for the money paid the informer which would doubtless be lost to the state.

If this decree of escheat can be set aside and annulled, of course it follows that no adjudication of escheat is or can be final. The result would be that the decree would not vest the title to the escheated property in the commonwealth, but make the commonwealth simply a depository of the property for any person who might come in at any time in the future and establish his relationship to the decedent. This would be unjust to the commonwealth and it would make the proceedings in escheat practically a farce, and permit the decree of the court to be annulled and set aside at the pleasure of any absentee regardless of his negligences and laches. As held in the case of Cunnius v. Reading School District, 206 Pa. 469 : “ The state is not bound to have the regular and lawful use and ownership of property subject to the whim of an individual in absenting himself indefinitely or for a very long period of time from the state.”

The decree of the court below is reversed and the petition of William James Wilsey and Jane Wilsey Oakes, praying for the annulment of the adjudication of escheat and the payment to them of the escheated money awarded the commonwealth, is dismissed, the cost of this proceeding in the court below and in this court to be paid by the petitioners.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Kennedy, Appellant, v. Philadelphia.

      Negligence — Municipalities—Defective sidewalk — Evidence— Contribuí tory negligence.

    A woman who trips over a block of cement raised by the root of a tree four inches above the level of a sidewalk, cannot recover from the city for her injuries, if it appears that she knew of the defect, that her view was unobstructed, that the day was clear, and that if she had looked she could have seen the obstruction and have avoided the accident.
    Argued Jan. 14, 1908.
    Appeal, No. 246, Jan. T., 1907, by plaintiff, from judgment of O. P. No. 3, Pliila. Co., March T., 1905, No. 1,493, on verdict for defendant in case of Henrietta Kennedy v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Pottee, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Yon Moschziskee, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Eugene Raymond, for appellant.

      Thomas Raeburn White, with him J. Howard Grendell, for appellee.
    March 2, 1908:
   Opinion by

Mr. Justice Potter,

In the present case the learned trial judge directed the jury to render a verdict for the defendant. The facts were not in dispute. They are, in substance, that the plaintiff, walking along the pavement on Broad street, Philadelphia, at about half-past ten o’clock in the morning of a bright sunshiny day, stumbled and fell over an obvious defect in the sidewalk. The defect was caused by the roots of a tree growing under one block of cement, and raising it about four inches above the adjoining block. The plaintiff said she was going to take the car and looked straight ahead of her, as the car was coming, and caught her toe where the cement — the ledge, as she called it— was raised about four inches above the level of the pavement, upon the side from which she was approaching. The plaintiff was familiar with the spot, and had often passed over it, and had noticed the break in the pavement where the roots of the tree had raised the cement. Her excuse for failing to observe the defect at the time was that the sun was shining so brightly that she did not see it. But it appeared that the sun was not shining in her face. The measure of duty imposed by the law upon pedestrians on the streets was stated by the present chief justice, in Robb v. Connellsville Boro., 137 Pa. 42, as follows : That the reasonable care which the law exacts of all persons in whatever they do involving risk of injury, requires travelers, even on the footways of public streets, to look where they are going, is a proposition so plain that it has not often called for formal adjudication. But it has been expressed or manifestly implied in enough of our own cases to constitute authority for those who need it. Thus in Barnes v. Sowden, 119 Pa. 53, the court below instructed the jury that ‘ persons who walk along the footways or cross the streets of our city are bound to use their own faculties. . . . The plaintiff was bound to use her eyes. Rot that she was to keep her eyes constantly and at every moment upon the pavement, but she was bound to do what people walking along the streets ought to do as they walk the streets in order to use them safely.’ It was held that even this instruction was, under the evidence, too favorable for the plaintiff, that the obstruction was such as she was bound to see, and that her negligence was too clear to be left to the jury.”

In the present case it is urged by counsel for appellant that the sunshine interfered with the plaintiff’s vision. But how this could be, is not apparent. The sun was not shining in her eyes; it was, as we understand the testimony, coming from over her shoulder, or from the side. Ror does it seem that the light was reflected in her face, as from some dazzling surface. The only conclusion that we can draw from her testimony, as a whole, is that she was not paying proper attention to the ground in.front of her as she walked. It would seem that any reasonable inspection of the ground in front of her would have disclosed an irregularity so extensive as that complained of here. We agree with the court below, that the evidence discloses a case where the plaintiff, a woman in full possession of her senses, walked along a street in which there had been for years an obvious defect, of which she knew. Under a clear sky, with no crowd around to disturb her, and nothing to distract her attention, or to hide the defect in the pavement from view, she stumbled over it, and was injured. We think the trial judge discharged a clear duty in ruling as a matter of law, that, under the evidence the plaintiff was negligent in failing to observe and avoid the defect in the pavement, and that she was not entitled to recover in this case. |

The assignment of error is overruled and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Pulaski Avenue.

      Road law — Vacation of street — Appeals—Opening decree — Laches.
    Where the court of common pleas has entered an order quashing a petition for the appointment of viewers to assess damages for the vacation of a street, and the petitioners have not appealed from the order within the statutory period, they caiinot after the expiration of eleven years from the date of the order move the court to set it aside because the Supreme Court in another proceeding between different parties had declared the law in an exactly contrary sense to that upon which the order dismissing the petition was based.
    Argued Jan. 14, 1908.
    Appeal, No. 183, Jan. T., 1907, by Henry R. Hatfield and Walter Hatfield, from order of C. P. No. 1, Phila. Co., Sept. T., 1895, No. 309, discharging rule to review road' proceedings in the matter of the Y acation. of Pulaski avenue.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to show cause why an order dismissing a petition for the appointment of viewers should not be reinstated.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      William W. Porter, for appellants, cited:
    Brigg’s Appeal, 5 Watts, 91 ; Nimick’s Estate, 179 Pa. 591 ; Young’s Appeal, 99 Pa. 74 ; Finnel v. Brew, 81 Pa. 362 ; Martin’s Estate, 7 Pa. Dist. Rep. 408.

      James Aleorn, with him J. Sowa/rd Oendell, city solicitor, for appellee, cited:
    Bolton v. Hey, 168 Pa. 418 ; Nice v. Walker, 153 Pa. 123 ; Marsh v. Pier, 4 Rawle, 273 ; Hall v. Applebee, 126 Pa. 385 ; Hunter’s Private Road, 46 Pa. 250.

      March 2, 1908 :
   Opinion by

Mr. Justice Mestrezat,

Pursuant to an ordinance of the councils of the city of Philadelphia, the department of public works on June 3, 1895, omitted and struck from the city plan Pulaski avenue from Ruffner street to Roberts avenue and thereby vacated that portion of the avenue. The portion of the avenue thus vacated was permitted to remain open and its use was continued by the public for some time thereafter. On October 16, 1895, a petition was presented to the court below, common pleas No. 1, of Philadelphia county, by a number of the abutting property owners, asking for the appointment of a jury to assess the damages resulting to their properties by the vacation of the portion of Pulaski avenue, in accordance with the provisions of the Act of assembly approved May 16, 1891, P. L. 75. The appellants were not petitioners in the proceedings for the assessment of damages, but being notified of the presentation of the petition, it is averred that they appeared and participated therein. The city of Philadelphia moved to quash the petition for two reasons : First, because it did not set forth any vacation of the avenue ; second, because the court of common pleas had no jurisdiction. On December 28, 1895, the court entered an order quashing the petition. From the opinion filed in the case, it appears that the court quashed the petition on two grounds: (a) because as there had been no physical vacation of the street, no right of action for the recovery of damages had accrued to the petitioners, and (b) because the act of May 16, 1891, under which the proceedings were taken, did not apply to the city of Philadelphia, and the remedy of abutting property owners was in the court of quarter sessions under the special Act of April 21, 1858, P. L. 386, 3 Purd. (13th ed.) 2956.

Thus the record stood for nearly twelve years, until January 18, 1907. No appeal was taken from the order of the court of common pleas quashing the petition. It became final and absolute and has never been vacated, set aside or appealed from. On the date last mentioned, the appellants presented their petition to the court below, setting forth the facts above stated and averring, inter alia, that since the entry of the order of the court quashing the proceedings, the Supreme Court had held, contrary to the ruling of the court in quashing the proceedings, that the right of action for the recovery of damages for the vacation of a street accrued immediately upon the striking of said street from the city plan by the proper authority, and that the act of 1891 was effective in jurisdictions where there was already a special enactment on the same subject, as an additional remedy, and that parties affected by the vacation of a street in such jurisdictions could elect under which enactment they would proceed ; that by the judgment of the common pleas the appellants were misled as to and deprived of their rights in the premises and awaited the physical vacatióu of the avenue which occurred on or about October, 1903 ; that the ¡proceedings in that court were brought in proper time and that by the erroneous construction placed upon the law by the court, as the law has since been declared to be by the Supreme Court, appellants have been injured and deprived of their rights to compensation by the order quashing the proceedings and dismissing their petition. The petition prayed the court “to review the judgment and decree heretofore erroneously entered and to reinstate the petition heretofore presented to the end that your petitioners shall be empowered to proceed thereunder to recover such damages as they may, by evidence, prove that they have suffered, and that they may not be deprived of rights to which, under the law, they are entitled.” A rule was issued to show cause why the prayer of the petition should not be granted, which rule was discharged on 'March 21,1907. The appellants, the petitioners for the reinstatement of the proceedings, have taken this appeal from that order of the court.

From the above recital of the facts in the case, it appears that the order of the court below, quashing the proceedings instituted for the purpose of determining the damages sustained by vacating Pulaski avenue, was entered on June 3, 1895. The order was in the nature of a decree or judgment adjudicating the right of the present appellants and other abutting property owners to have damages assessed for alleged injuries sustained by reason of the vacation of Pulaski avenue. It was final and was made in a proceeding in which the court had jurisdiction of the persons and subject-matter. The order was conclusive against the rights of the parties to maintain an action for damages at that time. If erroneous the order was not void, but simply voidable, and the aggrieved party had the right to appeal. This is a statutory right and if any of the interested parties were aggrieved by the order, an appeal could have been taken and the error corrected by the appellate court.

The appeal now being considered is not from the order of the court below quashing tiie proceedings entered on June 3, 1895, but from the subsequent order of court, made on March 21, 1907, refusing to set aside and vacate the former order and refusing to reinstate the former proceedings and permitting the appellants here to proceed under those proceeding to have their damages assessed for the injury done them bjvacating Pulaski avenue. In other words, instead of taking an appeal from the order of the court below quashing the proceedings instituted for the purpose of having damages assessed, and having the alleged errors corrected in an appellate court, the appellants seek to correct the alleged error by an application to the common pleas to vacate its order quashing the proceedings and to reinstate the proceedings so that their damages can now be assessed. It is clear that the court below did not err in refusing to vacate its order of 1895 quashing the proceedings. If the appellants were aggrieved by that order, they should have moved to vacate it within the term, and failing to do so, the statute permitting an appeal pointed out a remedy and they were required to pursue it within the statutory period. The order was a decree or judgment of the court, and if erroneous the remedy was an appeal to the proper appellate court. That this was the proper course to pursue is made more apparent by the fact that the alleged error was one of law. Whether the appellants’ right of action accrued when the city struck the street from its plan and whether the proceedings were properly instituted under the act of 1891 were simply questions of law, and if the ruling of the common pleas thereon was erroneous, the appellants should have taken an appeal and had the order reversed.

It will not relieve the appellants from their duty to appeal from the order quashing the proceedings by alleging that they were misled as to the law of the case by the decision of the court below, and that the Supreme court, in other cases involving similar facts, subsequently interpreted the law differently: Bolton v. Hey, 168 Pa. 418. It is the duty of a litigant, if he is dissatisfied with a ruling of the court, to have the error corrected in the manner and within the time provided in the statute. The order of the court below, entered on June 3, 1895, was not excepted to or appealed from within the statutory period, and is as binding and conclusive as if an appeal had been taken and the order had been affirmed by this court. The decision, therefore, is the law of the case as applied to that order and neither party can now assail or controvert it: Bolton v. Hey, 168 Pa. 418. As said by Chief Justice Steebett in that case (p. 421): “That judgment thus became the law of the case, and having never been reversed or set aside, it is still the law of that case, notwithstanding a different rule of construction may have been since applied, with a different result, to contracts of like tenor and effect.” If an appeal had been taken from the order, and it had been affirmed here, it certainly could not be pretended that the appellants would have any standing below or here to have the order vacated and the proceedings reinstated and thereby given life, so that the appellants could now have their damages assessed. The order unappealed from having the same force and validity as if it had been affirmed by this court, it follows that the appellants had no standing to demand of the court below that it rescind or vacate its order of June, 1895, quashing the proceedings. It is conceded that the order or judgment which the appellants seek to set aside or strike off was not void, but voidable. Their only remedy, therefore, for alleged error was, as suggested above, to take an appeal within the statutory period : Clarion, etc., Co. v. Hamilton, 121 Pa. 1.

We need not discuss or determine the extent to which the court of common pleas may go in correcting its errors and vacating its judgments. The solution of that question is not necessary to a decision of this appeal. The statute pointed out a remedy for the error, if any, committed in entering the order or judgment of June, 1895, and it was the duty of the appellants to pursue that remedy. The appellants have been guilty of very great laches in seeking to have the error of the court below corrected and in enforcing their claim to damages. The order of the court quashing the proceedings was made in June, 1895, and this application to vacate it was not made until January, 1907, more than eleven years after the order had been entered. Again, it appears that the decisions of this court upon which the appellants rely to convict the lower court of error in this case were rendered in the early part of 1900, and, therefore, more than a year before the expiration of the six years within which they were required to institute proceedings to have their damages assessed. The position, therefore, which the appellants now occupy certainly cannot commend itself to any court. There should be an end to litigation and courts cannot look with favor upon proceedings instituted by, parties who, as here, give no consideration to the limitations within which the statute provides they shall assert their rights.

We are of opinion that the remedy of the appellants for error committed by the common pleas in entering the order of June 3, 1895, quashing the proceedings for the assessment of damages, was an appeal from the action of the court in entering the order, and that the order being final and unreversed, the common pleas, after eleven years had elapsed, was right in declining to vacate and set it aside and permit the appellants to have their damages assessed under the proceedings which it annulled.

The assignments of error are overruled, and the order or decree of the court below is affirmed.


author: Mr. Justice Fell,

text:
    Calhoun v. Holland Laundry, Appellant.

      Practice, C. P. — Trial—Charge—Erroneous answer to points.

    An erroneous answer to a point will be assumed to be harmful although the trial judge may have correctly stated the law in his general charge.

      Negligence — Master and servant — Dangerous machine — Laundry— Contributory negligence.

    An experienced operator in a laundry cannot recover damages from her employer for injuries sustained by having her hand caught under a hot roller of an ironing machine, where it appears that the accident was caused by too much packing having been placed on the surface of the iróning-board; that it was a part of the operator’s work to cover the board with packing of felt and muslin, but on the day of the accident this had been done by the superintendent; that owing to the thickness of the packing over which the operator had entire control, the clasp of the machine would not catch a narrow neck-band; that the operator when she came to a shirt with a narrow band placed her hand on it three or four inches from the roller; and that while doing this her hand was caught under the roller.
    In such a case the employer cannot be held liable for the neglect of the superintendent in covering the board, since in so doing, if a vice-principal, he was engaged in the work of an ordinary employee and was a fellow servant; nor in such a case can an employer be held liable because of , the removal from the machine prior to the accident of a small appliance, which was not a safety appliance, and the presence of which would not have avoided the accident, although its use would have enabled the operator to release her hand with less injury.
    Argued Jan. 15, 1908.
    Appeal, No. 138, Jan. T., 1907, by
    defendant, from judgment of C. P. No. 3, Phila. Co., Sept. Term, 1900, No. 337, on verdict for plaintiff iu case of Jennie Calhoun v. Holland Laundry.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Potteb, Elkin and Stewabt, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before McMiohael, J.
    See Calhoun v. Holland Laundry, 208 Pa. 139.
    The circumstances of the a<3cident are set forth in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $3,500. Defendant appealed.

      Errors assigned were various instructions, including refusal of binding instructions for defendant.

      Harvey Q-ourley and Alex. Sinypson, Jr., for appellant.

      Horace M. Rumsey, with him William F. Bremian, for appellee.
    March 2, 1908:
   Opinion by

Mr. Justice Fell,

The judgment in this case must be reversed because of error in affirming the plaintiff’s points. The action was by a skilled and experienced employee to recover for injuries sustained while operating a machine for ironing shirt bosoms in the defendant’s laundry. The shirts were held in place on the ironing board by means of clasps. Because of the failure of a clasp to hold the neck band of a shirt, the plaintiff placed her hand on the shirt a few inches from its top, and as the board was moved forward her fingers were caught under a hot roller. The fundamental question in the case was whether the failure of the clasp to hold was because of a defect in it, as to which the attention of the superintendent had been called and a promise of repair made, or whether it was due to the fact that too much packing had been placed on the surface of the board. The placing of the packing was a part of the plaintiff’s work, and the main ground of defense was that the accident was caused by her negligence in regard to it.

The plaintiff’s points entirely ignored the question of contributory negligence, and their affirmance was in effect an instruction that the case turned on proof of the negligence of the defendant. The error complained of was not harmless, because the instruction as to contributory negligence in the general charge was correct. The answers to these points were the last instructions to the jury, and were in plain contradiction to what had been said in the charge, and we must assume that they were harmful. These points were open to other serious objections, and the defendant’s second point should have been affirmed without qualification. But in the view which we have taken of the case it is unnecessary further to consider them.

Whether a verdict should have been directed for the defendant is a question more involved, but the answer is not less clear. The machine in use was of simple construction. A board four feet high rested on rollers and moved forward and backward under a hot revolving cylinder. It was started and stopped by the use of a treadle, which shifted the belt that extended from the machine to the gearing above it. A rod attached to the board raised and lowered it, and thus regulated the pressure of the cylinder. The upper surface of the board was covered with rubber, over which were placed pieces of felting and muslin. The shirt to be ironed was held by clasps on either side of the board, and a clasp at its head which caught the neck band. The board then by pressure on the treadle was moved forward and backward under the cylinder until the ironing was done. It was not intended that the operator should place her hand on the shirt when the machine was running, and it was her business to place and adjust the packing on the top of the board.

The plaintiff had worked in laundries fifteen years, and eight years she had operated a machine for ironing shirt bosoms. She had been employed at the defendant’s laundry fifteen months, and was forewoman of the ironing room. It was part of her work to cover the ironing board with felt and muslin, but on the morning of the day she was injured the superintendent of the laundry had covered the board because she was busy with other work. The covering placed on the board was so thick that the clasp at the top would not catch a narrow neck, band, and in running the machine, whenever she came to a shirt with a narrow band, she placed her left hand on it three or four inches from the top to hold it in place. After she had worked at the machine under these conditions several hours her'fingers were caught under the cylinder.

That the failure of the clasp to catch was due to the thickness of the covering there is no room for doubt under her testimony. She spoke of its not being in proper condition and not working, but she distinctly said that she did not know of any defect in the clasp and that it would have caught in all cases if one piece less of felt had been placed on the board. The defect, then, was not in the clasp but in the manner in which the board was covered. The covering of the board, as before said, was her work and she was at liberty to cover it to suit herself. The defendant could not be held liable for the neglect of the superintendent in covering the board since in so doing, if a vice principal, he was engaged in the work of an ordinary employee and was a fellow servant: Ricks v. Flynn, 196 Pa. 263 ; Miller v. American Bridge Co., 216 Pa. 559. Moreover, the condition that caused danger was apparent and fully understood by her and was under her immediate control. She could have remedied it and removed all danger by taking out a piece of felting.

The two remaining grounds on which it was attempted to hold the defendant liable may be briefly considered. One was that because of defects in the engine an irregular motion was given to the ironing board ; the other that the key by which the pressure of the ironing board against the cylinder was regulated had been taken away from the machine by the superintendent. As to the first it is sufficient to say that a defective engine was not alleged as a ground of recovery and could not be made one at the trial; and as to the second that the key was not a safety appliance and its presence would not have averted the accident, although its use would have enabled the plaintiff to release her hand with less injury. It was removed from the machine in order that the operator, in disregard of instructions, should not change the pressure and, as in Tomaczewski v. Dobson, 208 Pa. 324, there was no reason to apprehend an accident that would require its use.

The judgment is reversed and judgment is now entered for the defendant.


author: Mr. Justice Brown,

text:
    Gandy v. Weckerly, Appellant.

      Promissory notes — Contemporaneous parol agreement — Parol evidence— Evidence — Fraud.
    Where a person is induced by a contemporaneous parol promise to sign a promissory note which he would not have signed, except for the promise, a subsequent breach of the promise is a fraud upon his rights, and he may set up the breach as a defense to the note, and prove the promise by parol evidence.
    In an action upon such a note where .the defendant sets up in his affidavit of defense the promise and the breach thereof, and avers that he expects to prove the facts averred, the presumption is that he will do so by proper proof at the trial. He is not required in his affidavit of defense to set forth the manner in which the facts therein alleged will be proved, nor the evidence by which they will be substantiated.
    In an action upon a promissory note for $1,250 it appeared that the plaintiff, the payee of the note, was the president of a corporation of which the defendant, the maker of the note, was treasurer. The corporation being in want of funds, the defendant was requested by plaintiff to give financial aid in the emergency. The defendant in an affidavit of defense averred that the plaintiff “proposed to me that if I would loan to said company the sum of $1,250, taking its note therefor at one year, before which time he said it would be easily able to pay it, he would sell to me 200 shares of its stock for the sum of $1,250, and take my note therefor, which note I would not be called upon to pay except out of and from the moneys to be repaid to me by said company in payment of its note held by me as aforesaid. He said he would make the note to him payable at the expiration of one year, because within that time the note of the company held by me would be paid,' but that if from any cause whatever the amount of the note was not paid to me, I would not be called upon by him to pay the note to be given by me to him in payment of said stock. Relying upon this agreement that I would not be called upon to pay said note until the note given to me was paid, and without which agreement on his part I would not have purchased said stock or given my note therefor, I accepted his terms as above, loaned the company the sum of $1,250, taking its note therefor, purchased said stock, and gave to the plaintiff my note therefor, being the note in suit.” The defendant further averred the refusal of the company to pay its note to him, and that he was and had been at all times ready to surrender that note, and his stock for the note in suit, or to pay to plaintiff as soon as he himself was paid by the company, or to return the shares of stock for the note in suit. Held, that the affidavit of defense was sufficient to prevent judgment.
    Argued Jan. 15, 1908.
    Appeal, No. 356, Jan. T., 1907, by defendant, from judgment of Superior Court, Oct. T., 1906, No. 116, affirming order of C. P. No. 5,. Phila. Co., Dec. T., 1905, No. 1,261, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. Frank Weckerly.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit on promissory notes.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      Alex. Simpson, Jr., for appellant.

      Wayne P. Barnbo, with him Ormond Barnbo, for appellee.
    March 2, 1908 :
   Opinion by

Mr. Justice Brown,

This is an action of assumpsit on a promissory note made by the appellant to the order of the appellee on November 21, 1901, for $1,250, payable one year after date. Judgment was entered in the court below for want of a sufficient affidavit of defense, which was affirmed by the Superior Court: 34 Pa. Superior Ct. 79. From the judgment of that court we have this appeal.

Appellant’s affidavit of defense, deemed insufficient, is as follows : “ At and prior to November 21, 1904, plaintiff was the owner of the majority of the shares of the capital stock of the Emigrant Gulch Consolidated Placer Mines Company, the par value of his shares being about $400,000. Said company was in sore need of money, was threatened with financial disaster for want thereof, which would have resulted in the sacrifice of all or the greater part of plaintiff’s investment therein as above. Plaintiff said that he had no money to loan to said company to save his said investment, and thereupon applied to me for that purpose. lie proposed to me that if I would loan to said company the sum of $1,250, taking its note therefor at one year, before which time he said it would be easily able to pay it, he would sell to me 200 shares of its stock for the sum of $1,250 and take my note therefor, which note I would not be called upon to pay except out of and from the moneys to be repaid to me by said company in payment of its note held by me as aforesaid. He said that he would make the note to him payable at the expiration of one year, because within that time the note of the company held by me would be paid, but that if from any cause whatever the amount of that note was not paid to me, I would not be called upon by him to pay the note to be given by me to him in payment of said stock. Plaintiff at that time was president of said company, and knew, all about its assets and financial condition, as well as its prospects, and suggested the loan and purchase by me as aforesaid for his own personal advantage to protect his large investments in said company. Relying upon his agreement that I would not be called upon to pay said note until the note given to me was paid, and without which agreement upon his part I would not have purchased said stock or given my note therefor, I accepted his terms as above, loaned the company the sum of $1,250, taking its note therefor as follows:

$1,250. Philadelphia, Nov. 21, 1904.
“ * On demand one year after date we promise to pay to the order of F. Weckerly Twelve hundred and Fifty /100 Dollars. 570 Bullitt Bdg., Phila.
Without defalcation. Value received.
“ Emigrant Gulch Consolidated Placer Mines Co:,
“ ‘ F. Weckerly,
Treas.
“ ‘ No. Due Nov. 21,1905. ’

purchased said stock, and gave to plaintiff my note therefor, being the note in suit. I am still and at all times since its making have been the holder and owner of the note given by said company to me as above set forth, and nothing whatever has been paid on account thereof, though I have frequently made demand for payment thereof, and brought suit therefor in common pleas, No. 4, as of December term, 1905, No. 1,851, before this suit was brought. Said company’s refusal to pay was really the act of plaintiff who, as president and majority stockholder thereof, wrongfully induced them so to do, and to file an unjust affidavit of defense in said suit brought by me. I at all times have been, and still am ready, and hereby tender to plaintiff my willingness to give him the said note given by said company to me in exchange for the one in suit; or to pay him as soon as I am paid by said company ; or to return him said 200 shares of stock in exchange for the note in suit. But I aver that it would be a fraud to permit plaintiff to violate his agreement with me as above set forth, which was the consideration and inducement for the giving of the note in suit, and recover from me until I have been paid the amount due me by said company. All which facts I aver are true, and I expect to be able to prove them on the trial of this case.”

The defense set up is not that the appellant ought not to be compelled to pay because there was a contemporaneous parol agreement that his obligation was to be enforced only upon certain conditions, and that such agreement was omitted from it by fraud, accident or mistake, but is a clear and distinct averment that he was induced to give the note by a promise, which very naturally might have been made by the appellee, if the circumstances surrounding the giving of the note are correctly stated in the affidavit, and, if it was made, it ought, in all good conscience, to be enforced. The inducing promise of the appellee was not intended to be incorporated in the note any more than the stock consideration which the appellant received, but, when the promise was broken, the right of the maker was to defend on its breach, for the same reason that he could defend for failure of consideration. When this defense prevails in a suit between the original parties to an obligation, its terms are not only contradicted, but set aside. Failure of consideration is, nevertheless, a defense, and so is a broken promise, if it induced the obligation.

The affidavit of defense was held to be insufficient by the court of common pleas because it contains no allegation of fraud, accident or mistake in the making of the note, and there is no averment that it was signed by the defendant upon the faith of a promise by the plaintiff that it would not be used by him as a note. It may be conceded that no fraud was practiced upon the appellant by the appellee when he received the note, and that at that time he honestly intended to keep his promise as to how it should be paid; but, however honest and upright his intention may then have been, if, to procure an unfair advantage to himself, he now attempts to exact payment from the appellant in violation of his promise, without which the note would not have been given, he is guilty of a fraud, against which the appellant may defend; and the latter is not defending on the ground that the plaintiff had agreed that he would not use the note as a note,'but that he is attempting to use it differently from the use which he promised he would make of it.

The authorities relied upon by the learned judge of the common pleas for directing judgment are Anspach v. Bast, 52 Pa. 356; Phillips v. Meily, 106 Pa. 536, and Appleby v. Barrett, 28 Pa. Superior Ct. 319. In the first case the question of' a promise as the inducement to the execution of the obligation was not involved. The affidavit of defense was held to be insufficient because there was nothing but an averment of a contemporaneous agreement that the note should not mature absolutely in six months, according to its terms. The question here involved was not in that case. The other two, instead of justifying the judgment against the appellant, rather support his defense. In Phillips v. Meily, 106 Pa. 536, we said: “ The cases in this state in which parol evidence has been allowed to contradict or vary written instruments, may be classed under two heads: 1st. Where there was fraud, accident or mistake in the creation of the instrument itself, and 2d. Where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed. To the latter class belong Renshaw v. Gans, 7 Barr, 118 ; Rearich v. Swinehart, 1 Jones, 233, and Lippincott v. Whitman, 2 Norris, 244; ” and the judgment on the verdict in favor of the defendant was reversed, because there was not “ a word to show that the note in controversy was signed by the defendant upon the faith of any. assurance or promise on the part of the plaintiff that he would not proceed to collect it.” In Appleby v. Barrett, in reversing the court below and directing judgment to be entered for want of a sufficient affidavit of defense, it was said: “ The affidavit contained no averment that the defendant was induced to sign the note by reason of the oral stipulation, and this was sufficient in itself to warrant the entry of judgment for the plaintiff: Martin v. McCune, 8 Pa. Superior Ct. 84 ; Keough v. Leslie, 92 Pa. 424. The averments of the affidavit do not indicate that any oral agreement was the inducing cause for the signing of'the written.”

In Fuller v. Law, 207 Pa. 101 — one of the three cases relied upon by the learned judge of the Superior Court, in sustaining the court below — what was decided, and intended to be decided, was what appears in the syllabus, approved by the member of the court who wrote the opinion: “ In an action on a promissory note the defendant will not be permitted by his own testimony alone to contradict the direct promise to pay contained in the note, by proof that the note was given in pajrment for stock of a corporation, that the note was to be paid out of dividends on the stock, and that no dividends had ever been declared or paid.” Law, the defendant, was the only witness called to impeach his obligation, and Mr. Justice Dean said: “ Defendant offered no other testimony in support of the alleged parol agreement, neither sustained nor offered to sustain him by other witnesses or by corroborative circumstances. Surely, the testimony of a single witness, and he the defendant, ought not to be sufficient tocontradict and set aside his deliberate promise in writing to pay on a fixed day, absolutely, a certain sum of money.” In Homewood People’s Bank v. Heckert, 207 Pa. 231, the question of the effect of a contemporaneous promise as the inducement to the giving of the obligation was not passed upon because apparently not raised. Krueger v. Nicola, 205 Pa. 38, has no application. The plaintiff there was not allowed to recover, because he had declared on a written agreement, and on the trial, to meet a defense set up, undertook to show a parol contemporaneous agreement on the part of the defendant, without averring or attempting to prove that it had’been omitted from the written one by fraud, accident or mistake.

The error into which the common pleas and Superior Court fell was in failing to distinguish the defense of this appellant on a broken promise which induced him to sign the obligation, and without which he would not have signed it, from that of an attempt to impeach a written instrument by showing a parol contemporaneous agreement varying and contradicting it, without allegation or proof of the omission of such parol agreement from the written one by fraud, accident or mistake. That the defense here made, if supported by proper proof, must prevail, is not to be regarded as an open question. We need cite but three or four of our many cases sustaining it.

“ It is agreed that the English rule excluding parol evidence to vary a written contract has not been adopted in this state in all its stringency. The exceptions, indeed, have in many instances almost eaten out the heart of the rule itself; but it is not altogether abolished, as may be seen in Martin v. Berens, 17 P. F. Smith, 459, where, in an elaborate opinion, our'late lamented brother, Mr. Justice Williams, exhaustively states the exceptions to the rule. But from Hurst’s Lessee v. Kirkbride, decided in 1773 — reported by Chief Justice Tilghman in Wallace v. Baker, 1 Binn. 610 — down to the present time, this court has uniformly held, that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, that parol evidence is admissible, though it may vary and materially change the terms of the contract. Mr. Justice Williams recognizes this in his opinion in Martin v. Berens, for he says, speaking of the case then before the court: Here there is no allegation in either affidavit that the defendants were induced to execute the lease on the faith of the alleged parol agreement.’ It would be an affectation of learning to cite all the cases which establish this principle, but to those contained in the argument of the counsel of the plaintiff in error, may be added Miller v. Henderson, 10 S. & R. 290, which is instar omnium, but may be noticed as a case on all fours with the one now before the court: ” Greenawalt v. Kohne, 85 Pa. 369. “ Ho principle is better settled than that parol evidence is admissible to show a verbal contemporaneous agreement, which induced the execution of a written obligation, though it may vary or change the terms of the written contract. Therefore it was competent .for the defendant to prove, if he could, that it was agreed before and at the time he signed the bond, that it should not be resorted to until after the security of the mortgage was exhausted, and that the security of the mortgage was lost through the plaintiff’s negligence: ” Juniata Building Association v. Hetzel, 103 Pa. 507. “ The existence of a contemporaneous parol agreement between the parties under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted. It is a plain fraud to secure the execution of an instrument by representations as to the manner in which payment shall be made, differing in important particulars from those contained in the paper, and, after the paper has been signed, attempt to compel literal compliance with its terms, regardless of the contemporaneous agreement without which it would never have been signed at all. Among the more recent cases in which this has been distinctly declared are Keough v. Leslie, 92 Pa. 424; Martin v. Kline, 157 Pa. 473; Martin v. Fridenberg, 169 Pa. 447: ” Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165. “Parol evidence is admissible to alter, vary or contradict a written instrument where such evidence establishes an oral agreement contemporaneous with the execution of the writing and on the faith of which the instrument was executed : Chalfant v. Williams, 35 Pa. 212; Keough v. Leslie, 92 Pa. 424; Shughart v. Moore, 78 Pa. 469. It has also been held that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible although it may vary and materially change the terms of the contract: Greenawalt v. Kohne, 85 Pa. 369:” Fidelity & Casualty Co. v. Harder, 212 Pa. 96. Among the latest cases announcing the foregoing rule is Keller v. Cohen, 217 Pa. 522.

Whether the appellant shall be able to sustain his defense by the proper measure of proof is not a question now before us. When he avers that he expects to be able to prove the facts set out in the affidavit of defense, the presumption is that he will do so by proper proof. He is not required in his affidavit of defense to set forth the manner in which the facts therein alleged will be proved, nor the evidence by which they will be substantiated: Endlich on Affidavits of Defense, 324; Bronson v. Silverman, 77 Pa. 94; Kaufman v. Cooper Iron Mining Co., 105 Pa. 537.

The judgment of the Superior Court is reversed, as is that of the common pleas, and a procedendo awarded.


text:
    Gandy v. Pinkerton, Appellant.
    Argued Jan. 15, 1908.
    Appeal, No. 355, Jan. T., 1907, by defendant, from judgment- of Superior Court, Oct. T., 1906, No. 33, affirming order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 860, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George S. Gandy v. William W. Pinkerton.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    March 2, 1908:
   Opinion by

Mr. Justice Brown,

The question involved in this appeal is the same as that raised and disposed of in Gandy v. Weckerly, ante, p. 285, in which we have this day filed an opinion. For the reasons therein given the judgment of the Superior Court is reversed, as is that of the common pleas, and procedendo awarded.