author: Mr. Justice Brown,

text:
    Hughes v. Citizens’ Electric Light, Heat & Power Company.

      Corporations — Stock—Option to directors to purchase stock — -Waiver.
    Where a by-law of a corporation provides that none of the stock of the company “shall be sold or transferred, unless the board of directors shall have received a notice thirty days previous thereto, and an option given said board to purchase it,” the directors are not bound to submit the option to the.stockholders for their acceptance or rejection of it, inasmuch as the option is given to the board and the board alone is to act upon it. The board, therefore, in the absence of fraud has the right to waive its right to the option and permit a transfer of the stock, and it cannot be enjoined by stockholders from exercising such a right.
    Argued Oct. 18, 1909.
    Appeal, No. 184, Jan. T., 1909, by Dane A. Pearson, Intervening Defendant, from decree of C. P. Blair Co., No. 686, Equity Docket, allowing and continuing preliminary injunction in case of James C. Hughes, I. C. Mishler, J. G. Etter, George C. Kelchner, Jr., C. A. Buch, I. D. Hess, Guy M. Gest and any others who may be desirous of joining herein v. Citizens’ Electric Light, Heat & Power Company, W. S. Aaron, President, George C. Kelchner, Acting Secretary and Treasurer, W. S. Aaron, George C. Kelchner, John Kazmaier, C. W. Moore, C. B. Crissman, T. M. Biddle and Carl Olmes, Board of Directors of the said Company, and Dane A. Pearson, Intervening Defendant.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.
    A short abstract of the bill is as follows:
    1. The plaintiffs are stockholders.
    2. The Citizens’ Electric Light, Heat & Power Company is a corporation duly organized under the laws of Pennsylvania, and was formed for the purpose of supplying light, heat and power by electricity to the public of Altoona and Blair county.
    ^ ^
    6. On or about April 1, 1908, the directors of said corporation were induced to abandon the manufacture of electricity and to enter into a contract for current with the Juniata Hydro-Electric Company, highly favorable to the latter and extremely prejudicial to the former.
    7. ' The Juniata Hydro-Electric Company has been purchasing the stock of the Citizens’ Electric Light, Iieat & Power Company with the purpose of obtaining control of and absorbing said company and its interests.
    8. Section 2, art. X of the by-laws of the Citizens’ Electric Light, Heat & Power Company reads as follows:'“None of the stock of this company shall be sold or transferred, unless the board of directors shall have received a notice thirty days previous thereto, and an option given said board to purchase it.”
    9. The purpose of this by-law is to keep all stock of the company within the control and possession of the remaining stockholders.

      10. The Juniata Hydro-Electric Company, knowing of this by-law, nevertheless, on April 27, 1909, presented certain certificates of stock for about 1,000 shares for transfer without giving the option, and had the same transferred.
    11, 12, 13. On April 30, 1909, there was a meeting of the board of directors of the Citizens’ Electric Light, Heat & Power Company called for the “specific purpose of making further and additional transfers of stock, to wit, between four and five hundred shares, to the said Juniata HydroElectric Company, or some individual or corporation in and for its behalf.” A notice protesting against the transfer was served by the plaintiffs on the officers and board of directors of said company. Notwithstanding the notice above mentioned and an oral protest by Guy M. Gest, a large stockholder, which protest was directed to be placed upon the minutes, the board of directors thereupon determined to transfer the stock so presented; and the officers, under the direction of the board of directors, proceeded to make out the new certificates. When this stock was presented for transfer, the provisions of the by-laws hereinbefore recited had not been complied with.
    14. One of the plaintiffs, Guy M. Gest, on April 8, 1909, took an option from E. A. Caum to purchase his ten shares of the Citizens’ Electric Light, Heat & Power Company, and from A. H. Closson, to purchase his ten shares of the said stock, and from Austin Shaffer, to purchase his ten shares of the said stock. The Juniata Hydro-Electric Company, knowing of the said options, persuaded the said persons to sell and deliver their certificates to it. The board of directors, although notified of said options, decided to allow the transfer to be made, “holding the same in abeyance awaiting the issue of the injunction of which they had notice.”
    15. It was the duty of the board of directors under the said by-law; not to transfer any stock without receiving an option, and upon receiving an option, “it became their duty to convene the stockholders, submit the question to them and act according to their instructions.”
    16. If the board of directors had submitted the question to the stockholders, they would have instructed the board to purchase the said stock.
    17. By the alleged failure of the board of directors to comply with the by-laws, the plaintiffs' have been irreparably damaged.
    The prayers were as follows:
    1. That the defendants be enjoined from transferring an3>stock submitted for transfer without an accompanying option.
    2. That the defendants be enjoined from delivering certificates of any stock already transferred, where the option had not been given.
    3. That the defendants be enjoined from transferring the stock in the names of E. A. Caum, A. H. Closson and Austin Shaffer.
    4. That the defendants be enjoined from permitting any person to vote at any meeting any stock transferred or offered for transfer within thirty days last past.
    5. That the defendants be enjoined to cancel the transfer of the 1,000 shares hereinbefore mentioned.
    6. That the board of directors be enjoined to exercise the option to purchase all stock offered for transfer within thirty days last past; and that they be directed to convene a meeting of the remaining stockholders to accept or reject the option to purchase.
    7. That an order or decree be made, or an injunction issued, pending the hearing on this bill, directing and commanding the officers and directors of said company to restore the status quo of the parties as it existed on April 30, 1909, and that they cancel upon the books of the company any stock transferred and delivered or left for transfer and not delivered, after the receipt by them of the notice contained in the twelfth paragraph of the bill, warning them of an intention to immediately apply to the court for an injunction to restrain said transfer.
    Dane A. Pearson presented a petition in which he averred:
    The organization and capitalization of the Citizens’ Electric Light, Heat & Power Company; that petitioner had purchased a majority of the stock of said corporation; that on April 27, 1909, 1,000 shares were by direction of the board of directors transferred to the petitioner; that on April 30, 1909, the ■ petitioner presented to the board for transfer an additional 487 shares, which the board directed to be transferred; that the certificates for said stock so directed to be transferred on April 30, 1909, were not delivered to your petitioner, but are in the possession of the board of directors of said company; that the petitioner is also the holder of an additional eighty-seven shares of the stock of the said company which he has not presented for transfer; and that the petitioner, by reason of his said stock ownership, is interested in the suit. The petitioner prayed for leave to intervene as party defendant.
    The court permitted the intervention.
    The court entered a decree awarding a preliminary injunction.
    After testimony was taken the injunction was continued.

      Errors assigned were in entering and continuing the preliminary injunction.

      Alex. Simpson, Jr., with him Thomas C. Hare and James Collins Jones, for appellant.
    The by-law on which the plaintiffs rely is invalid: 2 Cook on Corporations (6th ed), sec. 622d; Sproul v. Standard Plate Glass Co., 201 Pa. 103; Bloede Co. v. Bloede, 84 Md. 129 (34 Atl. Repr. 1127); White v. Ryan, 15 Pa. C. C. Rep. 170; Miller v. Farmers’ Milling, etc., Co., 78 Neb. 441 (110 N. W. Repr. 995); Herring v. Assn., 52 S. W. Repr. 327; Feckheimer v. Bank, 79 Va. 80.
    The bill itself shows that the board of directors has waived whatever rights may have been given to it by the by-law: Bartlett v. Fourton, 115 La. 26 (38 So. Repr. 882).
    The motive with which the stock was purchased is immaterial.
    The plaintiff, Guy M. Gest, is not entitled to a specific performance of his options: Rigg v. Ry. Co., 191 Pa. 298.
    The bill must stand or fall upon the plaintiffs’ rights under the by-law giving the board of directors an option on the stock of the stockholders of the Citizens’ Electric Light, Heat & Power Company, and if the plaintiffs have no right under this by-law, under the facts as contained in the bill itself, it is submitted the bill ought to be dismissed: Harriman v. Northern Securities Company, 197 U. S. 244 (25 Sup. Ct. Repr. 493).
    November 5, 1909:

      Frank S. Katzenbach, Jr., and Owen J. Roberts, with them Thomas H. Greevy and B. G. Brotherlin, for appellees.
    The agreement between the stockholders not to sell or transfer their shares of stock, unless the board of directors be given notice thirty days previous thereto, and an option be given to the board to purchase, is a valid contract, binding not only between the original stockholders but upon all subsequent purchasers therefrom with notice thereof, whether or not the bylaw standing by itself is valid: Fitzsimmons v. Lindsay, 205 Pa. 79; Lindsay’s Est., 210 Pa. 224; Boggs v. Boggs & Buhl, 217 Pa. 10.
    The Superior Court declares such an agreement and by-law valid: Garrett v. Philadelphia Lawn Mower Co., 39 Pa. Superior Ct. 78.
    The decisions in other states recognize the principles laid down by the Supreme and Superior Courts of Pennsylvania: Blue Mountain Forest Assn. v. Borrowe, 71 N. H. 69 (51 Atl. Repr. 670).
    The contract between the stockholders, the issuance and acceptance of the stock certificates with the indorsement thereon, and the adoption of the by-law, do not unlawfully restrain the power of alienation or violate any rule of public policy: Garrett v. Phila. Lawn Mower Co., 39 Pa. Superior Ct. 78; Scruggs v. Cotterill, 67 N. Y. App. Div. 583; Moses v. Soule, 63 Misc. (N. Y.) 203 (1909).
    A corporation has a right to purchase its own stock: Dock v. Schlichter Jute Cordage Co., 167 Pa. 370.
    The by-law is binding upon the stockholders even in the absence of any previous agreement between them: Bagley v. Reno Oil Co., 201 Pa. 78; Marshall v. Pilots’ Assn., 206 Pa. 182; New England Trust Co. v. Abbott, 27 L. R. A. 271.
   Opinion by

Mr. Justice Brown,

A by-law of the Citizens’ Electric Light, Heat & Power Company, one of the defendants below, provides that none of the stock of the company “shall be sold or transferred, unless the board of directors shall have received a notice thirty days previous thereto and an option given said board to purchase it.” This bill was filed for the enforcement of the by-law by enjoining transfers of stock which had been sold by stockholders without giving to the board of directors of the company an option to purchase the same, and the appeal before us is from the preliminary injunction awarded. The board of directors is to receive thirty days’ notice of any sale or transfer and an option is to be given it to purchase the stock which the stockholder proposes to sell. This is all there is in the bylaw upon the subject. Upon receiving notice of the contemplated sale and the extension of the option to it to purchase the stock, no duty is imposed upon the board of directors to submit the option to the stockholders for their acceptance or rejection of it. To the board the option is to be given and upon it the board alone is to act. The board is to exercise or decline the option, and in declining the same is not responsible to the stockholders in the absence of collusion between it and the selling stockholder to consummate an illegitimate scheme to defraud the other stockholders. No such averment is to be found in this bill. If, then, from all that appears in the bill the board of directors could have exercised or declined options extended to it to purchase the stock, the transfers of which the court below has enjoined; it certainly could have waived its right to the options, because the right belonged to it alone to have them, and from the face of the' bill, to say nothing of the evidence produced by the complainants themselves on the motion to continue the preliminary injunction, it clearly appears that the right to the options was waived by the board. No other interpretation is to be given to its action when the twelfth paragraph of the bill of complaint is read. The averment of the complainants there is that notwithstanding notice to the board of directors of the requirement of the by-law it was about to allow the transfers of the stock to be made and new certificates issued therefor. If the board saw fit to waive the option given it under the by-law, there is nothing in the thirteenth section, of which it is an independent part, giving a stockholder the right to complain. The preliminary injunction should not have gone out and as it was clearly erroneous to continue it, working immediate injury to the appellants, we cannot permit it to stand any longer. It is within the exception to the rule as to not disturbing preliminary injunctions.

Whether the by-law invoked by the appellee is a valid and enforcible one we need not now decide. “Conceding (arguendo, merely) that it may be, nevertheless, that provision is intended for the benefit of the corporation, and not of individual stockholders, and it cannot be invoked by the latter merely upon the ground that the persons acquiring stock which had not been first offered to the company did so for the purpose of obtaining control of the company, since they had a right to acquire it for that purpose; nor can it be invoked by the company, since, in permitting the stock to be transferred to the persons acquiring it, the company necessarily waived any rights which it may have had to purchase it by preference:” Bartlett v. Fourton, 115 La. 26.

As this bill is for the enforcement of the by-law relating to an option to be extended to the board of directors which it has waived, the right of Guy M. Gest, a purchaser or prospective purchaser of thirty shares of stock, to have the same transferred to him instead of to another alleged purchaser of the same cannot be determined in this proceeding. His right to a transfer of these shares of stock is not here involved. That must be the subject of an independent proceeding in which his right as against' the other alleged purchaser is to be determined without regard to the by-law which is the subject of this complaint.

The decree of the court continuing the preliminary injunction is reversed and the injunction is dissolved, the costs of this appeal to abide the final decree.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Coryell v. Dubois Borough, Appellant.

      Contract — Municipal contract — Extra work — •Additional work— Construction of contract.

    1. Where a contract for the construction of a dam for the water supply of a borough classifies the work in distinct items, such as excavating, masonry, grubbing, etc., and fixes a rate price for each separate item, and also specifies the approximate amount of work and material for each item, and provides that additional work over and above the estimate is to be paid for at contract price for work of its class, and the contract further specifies that “extra work” is that “for which no price is fixed in the contract, and which is not covered by the contract sum or the specifications,” the mere fact that the condition of the ground requires from the contractor a much larger amount of the various kinds of work itemized in the contract than that estimated, and that such additional work is at a much greater cost to the contractor than the rate specified in the contract, does not make such additional work “extra work,” within the meaning of the contract.
    2. Where a building contract provides for a deduction of a stated amount from the contractor’s compensation for each day of delay after a time specified, the owner cannot claim such deduction where he has made no objection to the delay and by his conduct has given the contractor grounds for believing that the provisions of the contract as to the penalty for delay would not be enforced.
    Argued April 20, 1909.
    Appeal, No. 266, Jan. T., 1908, by defendant, from judgment of C. P. Clearfield Co., Dec. T., 1904, No. 31, for plaintiffs on case tried by the court without a jury in suit of B. H. Coryell and O. B. Bovard, doing business as The Coryell Construction Company, v. Dubois Borough.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Modified and affirmed.
    Assumpsit to recover a balance due on a municipal contract.
    The case was tried by Ormerod, P. J., specially presiding without a jury under the provisions of the Act of April 22, 1874, P. L. 109. The facts of the case are stated in the opinion of the Supreme Court.
    The court entered judgment in favor of the plaintiffs for $32,135.91.

      October 11, 1909:

      Error assigned was in entering judgment for plaintiffs.

      Krebs & Liveright, with him David 8. Herron, borough solicitor, Pentz & Calkins and Oscar Mitchell, for appellant.—
    The additional work was not “extra work:” Fay v. Lester, 32 Pa. Superior Ct. 437; Trexler v. Kuntz, 2 Lehigh County Law Journal, 208; Payne v. Roberts, 214 Pa. 568; Miller v. McCaffrey, 9 Pa. 245; Gillison v. Wanamaker, 140 Pa. 358.

      Thomas H. Murray, with him A.L. Cole, James P. O’Laughlin and Hazard Alex Murray, for appellees.
   Opinion by

Mr. Justice Stewart,

The plaintiff company engaged by written contract to construct for the borough of Dubois, as part of a projected municipal water supply system, a section of the work designated in the plan as Anderson Creek dam or reservoir, in accordance with certain specifications, for the sum of $24,482.30. This price was based on estimates furnished by the borough as to the probable amount of work and material that would be required. Had there been no departure from the original plans and specifications, these estimates would have proved sufficiently accurate, and no controversy would have arisen. It rarely happens, however, that constructive work of this character is completed in exact accordance with the original specifications, for the reason that actual conditions below surface can only be known as the work is proceeded with, and disappointment with respect to these necessarily involves change in some degree. This contract contemplated such contingency, and, as we shall see, provided against it, both with respect to the rights of the borough, and the compensation to be paid the contractor. In the specifications furnished prospective bidders the work was classified according to the kind and character, as, for instance, grubbing, excavating, masonry, puddling, etc, each being made a distinct item, and with each item was given the approximate amount required under the estimates. The plaintiffs' bid specified in detail the rate price at which it would furnish the labor and material for each separate item. The sum total, based on the approximate quantities of each, was $24,482.30, and this was expressed in the contract as the price the borough was to pay for the completed section. The contract provided that the water committee, representing the borough, should have the right to make any alterations in extent, dimensions, form or plan of the work either before or after the commencement of construction, and further, that for any increase in quantity of work or material that should result from any such change the plaintiff company should be paid at contract rate for work or material of its class. The first disappointment in estimates came in connection with the excavation for the dam. It was expected that rock bottom would be reached at a depth of seven feet below the spillway at the breast, and at twenty-seven feet below the extreme top at the other part of the dam, and the amount of excavating that would be required was estimated at 7,000 cubic yards. These depths were reached without discovering rock bottom, and the water committee required the plaintiffs to continue excavating. The work was proceeded with until the amount excavated more than doubled the original estimate. As a result, the amount and extent of masonry required for the breast of the dam was correspondingly increased, that is to say, from 1,200 cubic yards to 2,944; and instead of a surface of ten acres a clearing of nearly forty-four acres was required. If this additional work in kind and character fell within the classifications defined in the specifications, then, barring a certain disputed item of credit to be considered later, the plaintiff company has been paid in full. Its contention, 'however, is that it was extra work for which no price was fixed in the contract, and in the present action it seeks to recover as on a quantum valebat for work and labor done in this regard. The case was tried without a jury, and resulted in a judgment for the plaintiffs in the snm of $32,135.91. The appeal challenges both the facts as found by the learned trial judge and his conclusions of law as well. However lacking in support some of the findings of fact may be, these are not only of questionable relevancy, but, with a single exception to be referred to later on, they are in themselves unimportant; for after all the case turns upon the construction of the contract between the parties. The admitted facts are quite sufficient to disclose the relation of- the parties to each other and to the subject-matter, while the contract itself is neither obscure nor ambiguous. What the parties contracted for was a completed dam or reservoir. This involved more or less uncertainty as to the amount and extent of work required, and against this provision was made — additional work over and above the estimate was to be paid for at contract rate for work of its class. It involved as well a possibility that conditions unforeseen would require a kind and character of work unlike that required to complete the work according to the original plans. Against this also was provision made — such work is designated in the contract as “extra,” and is there thus defined: “It is understood that extra work, as considered in the contract or specifications, is work that the contractor is required to perform and for which no price is fixed in the contract, specifications or proposal, and which is not covered by the contract sum or the specifications.” The question then resolves itself into this, Was this work for which plaintiffs claim additional, or was. it extra? The amount of work claimed in excess of the original estimate is not in dispute; nor is it denied that the plaintiffs were required by the borough to do this work. Manifestly it is not covered by the contract sum of $24,482.30. All that remains, therefore, to inquire is, Was it work for which a rate was fixed in the contract; in other words, did the work fall within the classification? It is not attempted to differentiate it in any way from that classified in connection with the original estimates except in the matter of cost. The masonry was the same in kind and character; so too the excavation, and so too the clearing; the difference was in the facility in doing these several kinds of work. As the depth was increased, more labor was required to accomplish the same results, and other instrumentalities had to be employed and other conveniences provided. A necessary result of increased depth would be increase of cost. The learned trial judge held this circumstance — increase of cost to the contractor — conclusive in favor of plaintiffs’ contention that the work was not embraced within the classification, but was extra within the meaning of that term as used in the contract. We quote his ruling: “The true test of classification must be the cost of doing the work, and any change of the conditions which would materially increase the cost must necessarily change the classification. The evidence clearly shows that the increased depth greatly increased the cost of doing the work requiring different and more expensive equipment. This applies also to the excess masonry. Not only was the expense of placing the masonry in position increased greatly, but the large amount of the increase, from 1,200 yards to 2,944 yards, must be considered in determining whether the same conditions existed. The cost of the masonry was largely controlled by the convenience of obtaining the stone. The evidence shows that there was sufficient in the vicinity to have supplied the amount named in the specifications. The increase of 1,744 yards changed the conditions which existed when the contract was made. The plaintiff was required to go to a great distance and to a very large expense to procure the extra amount of stone, and it would be unreasonable to require him under such changed conditions to be bound to supply the same at the price named.” To this we cannot give our assent. It would determine the question in controversy not by the terms of the contract, but by a supposed rule of construction which is supported by no citation of authority, and which bears marks of too recent invention. There can be no true test of classification other than the understanding of the parties. The law prescribes no rules to govern with respect to matters of this kind; but leaves the parties free to group and classify for purposes of contract according to any standard or system they may choose to adopt; and when controversy arises all it seeks to do is to ascertain, as the true test, the intention and understanding of the parties. When the contract is in writing, to ascertain such understanding resort must be had to the instrument itself, and except that be ambiguous or obscure it alone is to be consulted. There is no reason why work may not be classified according to the conditions under which it is done; but there is nothing to require it; it may often be more intelligently and satisfactorily classified according to its own nature and general character. When by the contract it is classified according to the latter method, it is only reasonable to suppose that conditions were considered by the party agreeing to do the work, and that this in some degree determined his bid. Unquestionably these did enter into the plaintiff’s bid in this case, even though we limit the bid to the quantity of work as originally estimated, for otherwise the plaintiff must have expected to do like work at a depth of twenty-seven feet at the same cost to itself as work at the surface, which is not supposable. If excavation and masonry to a depth of twenty-seven feet may be classified and made subject to a uniform and fixed rate of charge, why might not that carried to a greater depth be classified in the same way? That the parties here did so classfy it' is we think beyond question. Though the plans, specifications and estimates of quantities which were prepared by the defendant and furnished to prospective bidders, had regard to a dam of certain extent in depth and surface, as was necessarily the case, plaintiff’s undertaking was not to construct a dam limited in extent by plans and specifications, but one of such dimensions as in the judgment of the water committee would meet public requirements, the plans and specifications to be observed in kind and quality of work. The enlargement of the work beyond the estimates was quite as much the subject of the contract as was the work within the estimates. This feature of the contract calls for some emphasis, since it seems to have been entirely overlooked. It has determining significance in connection with nearly every question that was raised on the trial of the case. For instance, the plaintiff rested its claim for extra compensation for clearing and grubbing, on the ground that the enlargement of the dam beyond the estimated ten acres of surface required both a longer haul and a second removal of debris; that relying on the estimate, plaintiff deposited the debris from the ten acres on parts immediately adjacent, and by the enlargement was compelled again to remove it. A plain answer to this is to be found in the plaintiff’s undertaking. It undertook to build a dam of greater area than ten acres if the water committee directed; and in choosing to deposit the debris from the ten acres on parts adjacent it took the risk of a second removal being required by any enlargement. Again, the claim for extra compensation for masonry is rested partly on the fact that material sufficient in amount for the estimated quantity was easily obtainable at convenient distances from the place of work; that the plaintiff company regulated its bid accordingly, but was obliged to go to a greater distance to procure material demanded for the enlargement, and there obtained it at greater cost. The answer here is the same. The contract was for such amount of masonry as the water committee would require. If plaintiff in determining its bid assumed that none would be required beyond the estimate, it was simply a mistake or oversight, which ordinary prudence would have avoided. The learned judge does not find that bad faith was practiced in preparing the estimates of work that would probably be required, but it is evident that he was of the opinion that the plaintiff was misled by the estimates. In the light of the contract what has that to do with the case?' Suppose it to be so, the claim here is not for work embraced in the estimates, but for work outside. It is impossible to understand how the estimates could have misled as to the kind and character of such work. If the plaintiff in determining its bid — the rate at which it proposed to do the classified work — had regard exclusively to the work required to complete the dam according to the plans and specifications, it must have been either because it was unobservant of the terms on which the contract was to be let, or because it assumed with mistaken confidence that no enlargement would be demanded. In neither case would the law afford relief. When a contractor relies upon a bill of estimates furnished by a builder, the law implies no agreement on the part of the latter that the estimates are correct. The mere fact that the amounts are estimates puts the contractor upon inquiry. If he is misled by any misstatement of fact in connection with the estimates or by deceit of any kind calculated to induce him to accept the estimates as veritable, he would have ground for equitable relief; but nothing of the kind is here alleged. All that was told the plaintiff as to the explorations made on which the estimates were based was admittedly true in fact. In determining whether the work for which extra compensation is here claimed falls within the classification, we have a sure guide in the contract which is made to embrace plans, specifications, proposal and the written agreement. It is so precise and clear in its terms that the introduction of expert testimony as to the true test of classification was without excuse. First of all there is the express provision in the specifications that “excavations shall be made of such dimensions and carried to such depths as the engineer shall decide, and all work done to the lines and grades to be given by him.” If we turn to the plaintiff’s proposal which follows accurately the plans, and is in substance incorporated in the written agreement, we find this, “And we hereby further propose that in case of any increase or diminution in the various quantities of work or material as given in the specifications, the value of the same shall be allowed or deducted from the contract lump sum according to the following schedule: grubbing and clearing, per acre, $50; earth excavation, per cub. yd., 28 cts.; rock excavation, per cub. yd., $1.50; puddling excavation, per cub. yd., $1.00; embankment, main, per cub. yd., 33 cts.; embankment, side, per cub. yd., 28 cts.; rubble masonry, per cub. yd., $3.75; cut stone, per cub. yd., $15; concrete masonry, per cub. yd., $4.30.” Is there any room for doubt as to what was here meant by "increase of work,” in view of the above provision that the depth of excavation was to be determined by the borough engineer regardless of estimated depth, and the further provision that the enlargement of the plant rested in the discretion of the water committee? How could increase of work otherwise result than from a change of plan? Had the dam been constructed as originally designed, say to a depth of twenty-seven feet, the surface area and the grade being defined, any increase of work over and above the estimate would have been inconsiderable, except as someone’s mathematics were grossly at fault. With extent and depth not ascertained, but to be determined as the work was proceeded with, the increase was indefinite, and might, as in this case it did, exceed by double the original estimate. Is it likely that the parties in making this stipulation for increase of work had regard to an increase which was not likely to happen, and which if it did would be of slight importance comparatively, and had no reference to a condition expressly provided for and which might result in wide and serious departure? The best construction of a contract is that which is made by viewing the subject of the contract as the mass of mankind would view it, for it may be safely assumed that such was the aspect in which the parties themselves viewed it. A result thus obtained is exactly what is obtained from the cardinal rule of construction: Schuylkill Navigation Company v. Moore, 2 Whart. 477. Applying this rule here we are left in no doubt as to the intention and understanding of the parties to this contract. Our conclusion is that the work here sought to be recovered for was classified by the contract, and that the rate of compensation therefor was fixed by the same instrument. It is absolutely impracticable to recite and review in this opinion all of the thirty-nine assignments of error, nor is it necessary. It is sufficient to refer specifically to the nineteenth. The court was asked to hold “that the price for all work done by plaintiff was fixed in the contract.” The refusal of the court to so hold is here assigned, and the assignment is sustained. This conclusion eliminates the question whether the defendant waived the provision in the contract that no claim for extra work should be made unless it shall have been done in obedience to a written order from the water committee. The work claimed for not being extra work within the contract meaning of that term, the provision has no application. Nor is it necessary to discuss the question raised as to the authority of the engineer to change the terms of the contract. It is of no consequence that when directed by the engineer to excavate beyond the twenty-seven feet level the plaintiff demanded of that officer extra compensation, and was told by him that his claim should be put before the borough council when the work was completed. This was no acquiescence in-plaintiff’s demand by the engineer. • At most it would be but a waiver of the provision as to the manner in which, and the time when, demand for extra work was to be made; and even as to this, the engineer’s authority to bind the borough would be more than questionable. To hold that such conversation with the engineer was an admission on the part of the borough that the work beyond the twenty-seven feet line was unclassified work, and not included in the schedule of prices, would be not only to give the conversation a significance which the language will not justify, but to identify the engineer with the borough in a way not contemplated by the contract.

The contract provided that the plaintiff was to be paid in monthly payments based on estimates by the engineer of the value of the work done. These estimates were regularly made as the work was proceeded with, and the plaintiff was paid each in full, excepting the last for $1,995.15, which the defendant withheld under a claim of right to be considered. There is no finding by the court that questions in any way the accuracy of these estimates either with regard to the amount of work actually done or its value, if measured' by the scale of prices which was to govern for classified work. The amount in controversy is therefore reduced under our ruling to this sum. It was stipulated in the contract that the work was to be completed within five months from June 6, 1901, and that for each day it remained unfinished after the limit $15.00 should be deducted from the plaintiff’s compensation, as ascertained and liquidated damages for engineering and inspecting expenses. By agreement the time was extended for another five months; but the work was not completed for more than a year and a half after the expiration of the extension. For this breach of the agreement the defendant claims as damages what remained unpaid on the contract price. The findings of the court on this branch of the case are most meager and unsatisfactory. One is that the increase of the work made it impracticable, considering the difficulty attending it, for the plaintiff to complete it within the specified dates; another is that if it were extended in proportion to the cost of the increase no more time was taken by the plaintiff than it was entitled to. It does not follow from the fact that it was impracticable to complete the work within the specified dates, ten months at farthest, that the whole of two years was required; nor was there warrant for holding that the cost of the work had anything to do with fixing the time for its completion. The trial judge we think properly refused the credit claimed by the borough, but for wholly different reasons than those he assigns. The evidence we think clearly shows such acquiescence on the part of the borough in the delay that the enforcement of its present claim would be unjust and inequitable. We have been compelled to search through the evidence for the facts. If it anywhere appears that dissatisfaction with the delay was expressed by the borough authorities for months after the extension expired, such evidence has escaped us. It was not until September, 1903, within two months of the completion of the work, that any formal notice was served on the plaintiff. Nothing whatever had been said or done until then indicating a purpose on the part of the borough to claim anything for delay; but on the contrary by its course of action it gave the plaintiff abundant ground for believing that the provisions of the contract would not be enforced against it. “The waiver or extension may be implied as well as expressed. When after the time of the completion of the work, the builder assents to the continuance without objection to a delay, he will be deemed to have waived the provision as to the time of the performance, especially when the continuance of the work is at the expressed request of the builder as upon his promise to pay therefor when completed, or when on the continuance of the work at the request or assent of the builder he makes partial payments to the contractor for work performed: ” 30 Am. Eng. Cyl. of Law, 1259, and the authorities there cited. Our conclusion from a review of the whole case is that the work done by plaintiff for which extra compensation is claimed was not extra work, but such work as fell within the classification expressed in the contract; and that it was error to allow more than schedule rates therefor. There is admittedly due to the plaintiff the sum of $1,995.15 on the final estimate of work done. Under our ruling the plaintiff is entitled to recover in addition the sum of $2,965.05 which was improperly withheld on account of engineering expenses. The whole amount of plaintiff’s recoverable claim- is, therefore, $4,960.20, with interest from December 4, 1903. The judgment entered requires to be modified by reducing it to this amount, and as so modified the judgment is affirmed.


text:
    Commonwealth v. Fencez, Appellant.

      Criminal law — Murder—Trial—Continuance—Discretion of court.

    1. The appellate court will not review the discretion of the trial court in refusing to continue the trial of a murder case in order that counsel, who ten days before had been assigned to the defense, might have further opportunity to acquaint themselves with the case.

      Criminal law — Murder—Charge of court — Mistake in stating testimony — Harmless error.

    2. The appellate court will not reverse a judgment on a verdict of guilty in a murder trial because the trial judge made a manifest mistake in attributing to a witness a remark which did not appear from the testimony, where the remark itself was so foreign to the issue being tried, and so wholly irrelevant in the connection in which it occurred that it could have worked no prejudice to the prisoner, and counsel for the prisoner made no objection at the time.

      Criminal law — Murder—Evidence—Exclusion of evidence.

    3. The appellate court will not reverse a judgment on a verdict of guilty in a murder case because of the exclusion of certain questions asked of a witness for the commonwealth upon cross-examination, where the purpose of the questions manifestly was to develop the defendant’s own case, and related to nothing that the witness had testified to in chief. The circumstance that the witness in question was not in attendance when afterwards called to testify for the defense, does not affect in any way the correctness of the court’s ruling, although it may have been unfortunate for the prisoner.

      Criminal law — Murder—Evidence—Mental condition of prisoner„
    4. On the trial of an indictment for murder a policeman on duty in a hospital where the prisoner had been confined for several weeks after the tragedy, may be allowed to testify against objection, that he observed nothing in the prisoner’s conduct during that period that indicated unsoundness of mind.

      Argued Oct. 4, 1909.
    January 3, 1910:
    Appeal, No. 289, Jan. T., 1909, by defendant, from judgment of O. & T. Lackawanna Co., April T., 1909, No. 19, on verdict of guilty in case of Commonwealth v. Shendore Fencez.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Heydt, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned (1-10) sufficiently appear by the judgment of the Supreme Court.

      Geo. M. Watson, with him James McKinney, for appellant.

      Joseph O’Brien, district attorney, for appellee.
   Opinion by

Mr. Justice Stewart,

The appellant stands convicted of the crime of murder in the first degree. The only defense attempted on the trial was intoxication and general mental unsoundness; and these only by way of mitigation or reduction of degree of guilt; for it was not pretended that appellant was so mentally disturbed or enfeebled as to be irresponsible for his conduct. Depending upon its acceptance by the jury, the evidence of the commonwealth established every element necessary to convict of the highest degree. On the morning of December 31, 1908, the defendant, a single man, went to the home of Steve Horvath with murderous intent which he had a few moments before expressed to another, and there finding Horvath’s wife alone with her small children, pursued her from the house out upon the street with a revolver in his hands. He there shot her in the back of the head while she was running from him; and approaching her as she lay upon the ground he again shot her in the head. In a very short time the life of his victim was extinct. The defendant a few moments after the tragedy, having found his way into an alley nearby, there attempted his own life ineffectually by shooting himself. While the commonwealth was not bound to supply a motive for the crime, the evidence it adduced pointed unmistakably to a feeling of jealousy in defendant’s mind, because of relations which he believed existed between the woman who was his victim and another not her husband. The evidence further indicated, clearly enough for safe inference, his own personal concern with respect to these relations, if they existed. It is unnecessary to recite further the facts of the occurrence. Except as error can be established in the trial of the case the verdict must remain undisturbed. We have ten assignments to consider. None of them call for extended comment. The first complains that prejudice was done the defendant by the court’s refusal to continue the case in order that counsel, who ten days before had been assigned to the defense, might have further opportunity to acquaint themselves with the case. This assignment may be dismissed with the single remark that the continuance of a case is a matter resting in the discretion of the trial judge; that the discretion in this instance was not arbitrarily exercised, but, as we think, with due consideration of defendant’s rights. Five of the assignments complain of inaccuracy of statement by the trial judge, in his general charge to the jury, when referring to the testimony. We have carefully gone over the testimony, with the result that but a single departure from the exact language used by each witness has been discovered; and there, while a manifest mistake was made in attributing to a witness a remark, which does not appear in the testimony the remark itself was so foreign to the issue being tried, and so wholly irrelevant in the connection in which it occurred, that it could have worked no prejudice to the defendant. It was a mistake that would have been corrected at the time had the attention of the judge been called to it. This was not done, doubtless for the reason that the counsel then thought as we do now, that the mistake was harmless. These assignments are overruled. The exclusion of certain questions asked of a witness for the commonwealth upon cross-examination is a subject of another assignment. The purpose of the questions manifestly was to develop the defendant’s own case, and related to nothing that the witness had testified to in chief. The circumstance that the witness was not in attendance when afterwards called to testify for the defense, may have been unfortunate for the defendant, but does not affect in any way the correctness of the court’s ruling.

A hypothetical case predicated on such facts as had been testified to with respect to the conduct of defendant immediately before and immediately after the commission of the crime, was submitted to Dr. Longstreet, an alienist, who was asked to express an opinion with respect to the sanity of a person so behaving. The question was objected to not because it was directed to a hypothetical case, but solely on the ground that it was predicated in part upon a fact not testified to, namely, that a threat to shoot somebody had been made by the party in a saloon. The testimony was that the threat had been made elsewhere than in a saloon, and the question being amended to accord with the testimony, was allowed. The amendment removed the only objection made to the question.

John Kelly, another witness for the commonwealth, was called to testify to the defendant’s mental condition immediately following the occurrence. He was a policeman on duty in the hospital where defendant was confined for several weeks after the tragedy. He was allowed to testify against objection that he observed nothing in defendant’s conduct during this period that indicated unsoundness of mind. The testimony was competent; its value depended on the witness’ intelligence and his opportunities for observing. These were for the jury to appraise. The last assignment charges error in refusing a new trial on the ground of after-discovered evidence. This calls for no consideration.

The defendant had a fair trial. Not a single exception is taken to the court’s instructions as to the law, whether in the general charge or in answer to points. The one issue in the case was whether the defendant at the time he killed his victim was capable of forming in his mind a specific intent to take life. The widest latitude was allowed the defendant to show any and all'circumstances from which an inference on this point favorable to himself could be drawn. The jury found against him, and no sufficient reason has been shown for interference with the result they reached. The judgment is affirmed, and the record is remitted for purpose of execution according to law.


text:
    Struble v. Pennsylvania Company, Appellant.

      Negligence — Railroads — Station—Passenger—Crossing track — Contributory negligence.

    1. The rule “stop, look and listen” is not to be rigorously applied to a passenger at a station going to or from his train.
    2. When at a station an intending passenger awaits his train, he has a right to assume that the railroad company will perform its duty of exercising the strictest vigilance to protect him from being injured either by the train he intends to take or by one passing through the station before it arrives.
    3. Where a passenger is required at a station to cross an intervening track in order to take his train, and in doing so, after notice by the station agent of the approach of his train, is stopped by a locomotive passing on the intervening track, emitting smoke and steam and going at a high rate of speed, and he then proceeds to cross, and is struck by the locomotive of the train which he intends to take, and is killed, the question of his contributory negligence is for the jury.
    Argued Oct. 4, 1909.
    Appeal, No. 100, Oct. T., 1909, by defendant, from judgment of C. P. Mercer Co., June T., 1906, No. 22, on verdict for plaintiff in case of Julia A. Struble v. Pennsylvania Company Operating the Erie & Pittsburg Railroad.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s husband. Before Williams, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      January 3, 1910:
    Verdict and judgment for plaintiff for $2,250. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      S. R. Mason, for appellant.
    It is respectfully submitted by the defendant, that the case comes under the class of cases beginning with Carroll v. Railroad Company, 12 W. N. C. 348, and continuing down to the case of Crooks v. Pittsburg Railways Co., 216 Pa. 590.

      S. H. Miller, with him Q. A. Gordon, for appellee.
    While passengers are alighting from a train at a station, and proceeding across the tracks to the station, it is clearly negligence for the railroad company to permit a train to pass upon one of the intervening tracks, thereby endangering the safety and lives of the passengers: Besecker v. R. R. Co., 220 Pa. 507; Girton v. R. R. Co., 17 Pa. Superior Ct. 143.
   Opinion by

Mr. Justice Brown,

On the afternoon of November 15, 1905, the husband of the appellee — seventy-seven years of age — purchased from the defendant company, at its ticket office in Sharon, a ticket to Clarksville. The train' he was to take was coming from the south on the north-bound track, which was opposite the station. It fronted on the south-bound track. After purchasing his ticket the deceased remained in the waiting room with other passengers until the ticket agent notified them to cross over to the platform and take the train which was approaching from the south. It was composed of vestibule cars, the doors of which were open for passengers only on the east side, and it was, therefore, necessary for them to cross over to the platform to enter the train. Other passengers passed safely over the north-bound track to the platform, but as the deceased was about to cross the first or south-bound track a locomotive passed over it to the south at a high rate of speed. . He waited until it had passed, and, in attempting to cross over to the platform, was struck by the locomotive of the approaching train just as he put his foot upon the first rail of the north-bound track, and died within a short time from the injuries received. The testimony of the ticket agent is that when he notified the passengers to go over to the platform they started to do so. A rule of the company required him to give the notice to cross over two or three minutes before the arrival of the train, and he stated that whenever he learned from the dispatcher that it had left South Sharon — a three minutes’ run from his station — he would notify the passengers to cross over. He was not able to state what length of time elapsed between his notice to the passengers to cross over and the arrival of the train which struck the deceased, but it is quite clear that he had not given the three-minute notice required by the rule of the company, for his testimony was that it took but fifteen seconds to cross over. Brief notice was given to the deceased that his train was approaching, and when he started to do what the agent of the company had directed him to do, the engine rapidly approaching from the north cut off his passage over the tracks, emitted steam and smoke, obstructed a view to the south and made a noise which prevented his hearing the calls to him not to proceed. The negligence of the company was so clearly established that on this appeal its learned counsel does not question it, frankly stating that the sole question is whether the deceased was guilty of such contributory negligence as to prevent a recovery by the appellee.

Clear as was the negligence of the appellant, the deceased, though a passenger, was bound to exercise proper care under the circumstances, and, if it unmistakably appeared that he rushed in front of the approaching locomotive, which he saw or was bound to see, taking the chance of passing safely over, the law would charge his death to his own rashness. But such penalty is not to be imposed upon those who have been injured by his death, unless the only possible conclusion to be reached from the evidence is that no ordinarily prudent man would have done what he did. Negligence, whether it be that charged to a defendant or to a plaintiff as a contributing cause to the injuries for which he sues, is absence of care according to the circumstances. The care required of one about to cross a railroad laid over a highway is fixed by the unbending rule requiring him to stop, look and listen. This rule, however, for a good reason, is not to be rigorously applied to a passenger at a station going to or from his train. When at a station an intending passenger awaits his train, he has a right to assume that the railroad company will perform its duty of exercising the strictest vigilance to protect him from being injured either by the train he intends to take or by one passing through the station before it arrives: Pennsylvania Railroad Co. v. White, 88 Pa. 327; Flanagan v. Philadelphia, Wilmington & Baltimore R. R. Co., 181 Pa. 237; Betts v. Lehigh Valley R. R. Co., 191 Pa. 575; Harper v. Pittsburg, Cincinnati, Chicago & St. Louis R. R. Co., 219 Pa. 368; Besecker v. Delaware, Lackawanna & Western R. R. Co., 220 Pa. 507.

In view of the duty which the appellant owed the deceased, from the relation which it established to him as a passenger in selling Mm a ticket, to be almost immediately used, the court could not, under all the evidence, have pronounced him guilty of contributory negligence. That question was clearly for the jury, as abundantly appears from a mere recital of the undisputed facts. When notice was given by the defendant’s agent to cross over to the east platform, the deceased, with other passengers, started to do so. WMle proceeding along the walk provided for the use of passengers in crossing from the station to the platform, and just as he reached the first or south-bound-track, Ms progress was interrupted or delayed by a locomotive passing south on the south-bound track towards a water tower standing some distance down the track. TMs engine made more or less noise and was emitting smoke and steam. As soon as it had passed the deceased proceeded on his way towards the eastern platform, had crossed the first or southbound track, and just as he was about to step on to the north-bound track, wMch was but eight feet from the track he had crossed, he was struck and killed. In addition to the foregoing undisputed facts, there was evidence that the engine passing to the south emitted smoke and steam, obstructing the view of the incoming train, and that in consequence of the noise made by the passing engine, the deceased was unable to hear the warning given him not to cross over. In attempting to cross over he was doing just what the agent had directed him to do. He had a right to assume that the notice given to cross over was sufficient to enable him to reach his train in safety, and the evidence tended to show he could have done so had his progress not been interrupted by the act of the defendant in running the engine down the south-bound track just at the time when the passengers were crossing over to the other side. While the jury might have found him guilty of contributory negligence in not exercising proper care under the circumstances, the fair inference drawn by them was that he was not, and we cannot, therefore, disturb it. The assignment of error is overruled and the judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Cambria Iron Company, Appellant, v. Leidy.

      Ejectment — Buie to bring ejectment — Dispute as to title of land — Option — Exercise of option — Notice in writing — Abandonment.
    1. A person in possession of land and claiming title thereto has the right under the Acts of May 25, 1893, P. L. 131, and April 16, 1903, P. L. 212, to rule another person out of possession, but with an apparent interest in the land, to bring an action of ejectment to determine title. When a petition for such a rule is presented the court should not of its own motion award an issue under the Act of June 10, 1893, P. L. 415, but if such an issue is awarded, and neither party makes any objection, the appellate court will not reverse a judgment on a verdict rendered at the trial of such issue, on account of the irregularity of the proceedings.
    2. Where an owner of coal gives an option to another to purchase the same, and stipulates that notice of the acceptance of the option should be given in writing, and it appears at the trial of an issue to determine whether such notice in writing had been given, that the persons giving the option deny positively ever having received written notice, the case is for the jury.
    3. WTiere persons having an option to purchase coal, take no action for seven years towards completing their title, and the optionor retains possession, pays taxes and claims title and gives an option to another party, the question of the optionee abandoning his interest in the land under the option is one for the jury, and a verdict and judgment against him will be sustained.
    Argued Oct. 4, 1909.
    Appeal, No. 44, Oct. T., 1909, by plaintiffs, from judgment of C. P. Cambria Co., Sept. T., 1906, No. 376, on verdict for defendants in case of Cambria Iron Company, and Coulter .& Huff v. Harry Leidy, Howard Leidy and Amos Leidy.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewa-rt, JJ.
    Affirmed.
    Issue to determine title to real estate. Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    In the issue you have been impaneled and sworn to try two parties are contending for the ownership of certain coal lands in East Taylor township, in this county. The Leidy heirs are in possession of the land and, conceiving that the Cambria Iron Company had a claim by virtue of an option which they had given for the purchase of this coal, they presented a petition to the court asking for a rule, under the act of assembly, upon the Cambria Iron Company to bring its action of ejectment (the action provided for determining title to land) within a certain length of time or be forever barred from making any claim to the land. An answer was filed setting forth the position of the Cambria Iron Company, and the court felt that this proceeding could be best taken under the act of 1893, which provides that the court in certain cases shall frame an issue, and in this issue make one party plaintiff and the other party defendant. The Leidy heirs being in possession of the land were made defendants, and the Cambria Iron Company, not being in possession and claiming the right of possession, were made plaintiffs. Under the pleadings then before the court, and the state of the record, there were but two questions to determine: first, whether or not the Cambria Iron Company or its predecessors in the claim, under the option, gave the notice required by the option, or did what was required to be done in order to make the option binding on the defendants, and whether it took such action as warranted the belief that it intended to maintain its title, or failed to act as the law required, and thus abandoned the title.
    The option in this case was first taken by Albert Goughnour. It was afterwards transferred to Coulter & Huff of Greens-burg, and later transferred to the Cambria Iron Company. Some time after the option was given Mr. Masters, who held a position with the Cambria Iron Company, according to the testimony, came to the defendants and asked them for an option. We are not sure that the option was executed, but our recollection, from the testimony, is that it was, and that defendants say that at the time they told him about their having given an option to Mr. Goughnour, and told him the circumstances connected with it, and that he informed them that it was no good, because no money had been paid upon it. The option is dated January 31, 1900, and it provides that the grantors (the defendants) “ shall at any time before the 15th day of April, A. D. 1900, execute and deliver deed of general warranty, in fee simple, free of all incumbrances, provided that on or before the 15th day of April, A. D. 1900, said second party, his heirs or assigns (in this case the Cambria Iron Company and its predecessor), give to said first party, his heirs, executors, administrators or assigns, notice in writing that the said second party, his heirs or assigns has elected to accept the coal and mining rights above described for the consideration hereinafter mentioned. In the event of such notice given the deed is to be executed and delivered and possession given to the said second party, his heirs or assigns, within twenty days after the date of such notice. In consideration whereof the said second party, his heirs or assigns agree to pay to said first party the sum of one dollar, the receipt whereof is hereby acknowledged in full for this option, and in the event that this agreement becomes absolute by the election and notice above mentioned, then and not otherwise, the said second party, his heirs or assigns agree to pay to first party, his heirs, executors, administrators or assigns, the further sum of fifty dollars per acre for each acre of merchantable coal in above described tract of land, as the same may be determined by the engineers of the second part, his heirs or assigns.”
    Now, you will first direct your attention to the question of fact, Did the Cambria Iron Company, or someone acting for Coulter & Huff, give notice within the time prescribed and in the manner prescribed by the option? [They were bound to give a written notice. Agents for the plaintiff in this case, the Cambria Iron Company, in company with one or two others, went to the home of these defendants on or about April 12, 1900, as we recall it, and made a return setting forth that they had served the notice upon these parties on that day by leaving a copy with them, and they refresh their memory at this time by that entry upon the back of the notice. As we recall Mr. Smith’s testimony, he said he could not remember the circumstances but that he refreshed his memory from the writing made on the back of the notice and felt that he would not have made that entry unless it was correct. Mr. Russel, as we recall his testimony, when asked about what occurred that day, said that his memory was revived by reason of the return indorsed on the back of the notice. That the notice was served upon Mr. Cover, the old gentleman, there is no dispute. The two young men, however, say that no notice was served upon them. They say that these parties said they were going to take the coal and wanted to give them $2.00 which they refused to take and they say they refused to sign any more papers; they evidently did not want to complicate the title further.
    This option says they must be served with written notice. It does not say they must hand to them a copy, but written notice may be served by handing the notice to them and they would be obliged to either say, “We are going to accept the coal and here is your notice,” or would be obliged to read the written notice of acceptance. It would seem to us that they could do nothing else than that. Did they do that on this day? There is no dispute here that these people were acting for the holders of the option at that time. In any event, Mr. Russel represented the holders of the option at that time and if he served the notice of acceptance upon these boys, in compliance with the terms of the option, that made the option binding; if the parties did not serve such a notice in compliance with the agreement, then you would find for the defendants.] [3] If you find, from the weight of the evidence, that they did serve the notice in compliance with the terms of the agreement, then go one step further and see whether or not, under the circumstances, from the weight of the evidence in the case, the Cambria Iron Company intended to follow up its rights, gained by the acceptance of this option, and procure this land, or whether it did not. We believe there is evidence to go to this jury upon the question of abandonment. [This assimilates itself to an equitable ejectment, and the rule of equity that, “He who seeks equity must do equity,” is applicable in this case.] [1] [So, while under the state of the record here, if it be proven that the plaintiffs in this case gave the notice required under tins option and complied with the terms of the option to the extent that they would have a right to acquire the legal title, if there were nothing else in the case to bar it, yet, under the decisions of the courts in equity, and under the rales of equity there may be an abandonment even of a legal title on record before the running of the statute] [2] namely, before the expiration of twenty-one years. In this option there is a provision that the holders of the option will ascertain the number of acres of merchantable coal in the property by its own engineers and, before the consideration under the terms of that option could' be correctly stated in the deed to be demanded, it would be necessary to have a survey by the engineers of the party of the second part, who are the plaintiffs in this case. That could have been overcome by a request on part of the Leidy heirs, that a survey be made and, upon refusal to make a survey, by a tender of the deed, which act would have fully released them. They did not do that, nor did the Cambria Iron Company have the property surveyed, nor was the money tendered. Nevertheless, when the Leidy heirs did not move within twenty days the Cambria, Iron Company could have moved by demanding that they execute a deed, or have presented one for execution, or by tendering the purchase money in accordance with the acreage ascertained from the survey. While these acts, under the law, would have relieved the Leidy heirs, nevertheless, under the law, the Cambria Iron Company had its remedy [and for that reason we submit to you, nothing having been done for a number of years, — under the testimony seven years, — “whether or not it was the intention of the Cambria Iron Company to so pursue the right gained by the acceptance of the option, if you so find that it did accept it, as to compel a conveyance' of the land, or whether it did not intend to compel a conveyance of the land. If you find that there was an acceptance of the option, then you proceed a step further and discover whether or not, from the weight of the evidence in this case, it was the intention of the Cambria Iron Company to compel a transfer of the title to the coal, or whether it rested there, holding this shadow over the title, so no one else could get it; if so, even if it accepted the option the defendants are entitled to a verdict.] [5]
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned among others were (1-5), above instructions, quoting them.

      J. C. Davies, with him H. S. Endsley, for appellants.
    The learned court clearly erred in applying the equitable maxim that “he who seeks equity must do equity” in his charge to the jury. The intent of the act of June 10, 1893, was to provide an additional remedy for the quieting of title without the burdens incident to an equitable action: Ullom v. Hughes, 204 Pa. 305; Gans v. Drum, 24 Pa. C. C. Rep. 481.
    The right to receive written notice of the acceptance of the option may be waived by parole, and a waiver may be evidenced by expressed agreement or by declarations and conduct from which a fair implication of it arises: Groves v. Donaldson, 15 Pa. 128; Smith v. Snyder, 168 Pa. 541; Jones v. Sowers, 204 Pa. 329.
    Having a vested equitable title therein the same could not ordinarily be lost in a less time than that fixed by the statute of limitation, unless there was satisfactory proof of an intention to abandon: Venture Oil Company v. Fretts, 152 Pa. 451; Calhoon v. Neely, 201 Pa. 97.
    January 3, 1910:
    Abandonment is a question of fact to be determined by the acts and intentions of the parties: Aye v. Phila. Co., 193 Pa. 456; Penna. Mining Co. v. Martin, 210 Pa. 53; Penna. Mining Co. v. Smith, 210 Pa. 49.

      S. L. Reed, for appellees.
    The first matter of fact in dispute as to whether notice was given as provided by the terms of the option was a question upon which.the jury should pass, and it having been decided in favor of the defendants the verdict should stand.
    Whether the lessee or his assignees intended to abandon the lease of their right to take the coal was a matter of intention, which was a fact to be found from all the facts and circumstances surrounding the case: Emery v. Regester, 17 Pa. Superior Ct. 482; Aye v. Phila. Co., 193 Pa. 456; Swank v. Fretts, 209 Pa. 625; Gans v. Drum, 24 Pa. C. C. Rep. 481; Groves v. Donaldson, 15 Pa. 128.
   Opinion by

Mr. Justice Mestrezat,

The learned judge of the court below should have permitted the defendants to pursue the remedy suggested in their petition, and ought not to have compelled them to proceed under another act of assembly. The defendants presented their petition to the court averring that they were in possession of and had title to a certain tract of land in East Taylor township, Cambria county; that the plaintiffs claimed an interest in and title to the coal in and under the premises; and prayed for a rule upon the plaintiffs to bring an action of ejectment for said coal within six months from the service of the rule or show cause why the same could not be brought, as provided in the act approved May 25, 1893, P. L. 131. That act and the Act of April 16,1903, P. L. 212, 2 Purd. (13th ed.) 1304, permit the party in possession claiming title to the premises to obtain a rule on any adverse claimant to bring an action of ejectment within six months as prayed for in the petition presented to the court below. This legislation provides a speedy and complete remedy for one in possession of land claiming title thereto to obtain a final judgment as to the validity of his title against an adverse claimant. It was therefore an appropriate and adequate remedy to determine the rights of the parties to this proceeding to the premises in dispute, and the rule should have been awarded as prayed for. We cannot see any occasion for the court declining the prayer of the petition, and of its own motion awarding an issue under the Act of June 10, 1893, P. L. 415, 1 Purd. (13th ed.) 817.. The plaintiffs’ claim title to the coal underlying the premises by virtue of an optional agreement which they allege had been accepted and vested the title in them. The defendants were in possession, claiming title, and the plaintiffs had “an apparent interest in or title to the real estate,” and therefore the defendants had a right under the act of April 16, 1903, to have a rule upon the plaintiffs to bring an action of ejectment to determine the title to the coal.

There was no objection by either party to the action of the court in substituting a proceeding under the act of June 10, 1893, for proceeding under the act of April 16, 1903, and in awarding an issue “to settle and determine their respective rights and title in and to said lands.” The issues awarded by the court and to be determined by the jury were: First, did the plaintiffs avail themselves of their option to purchase the lands described in the petition and give notice of their acceptance of the terms of their optional agreement to defendants in the manner and within the time prescribed in the option? Second, if that fact be found in favor of the plaintiffs, did they afterwards abandon the right to a conveyance of the coal in question? The jury found both issues in favor of the defendants and the court entered judgment upon the verdict as required by the act of assembly.

Both of these issues were for the jury under the evidence submitted. It is unnecessary to discuss the numerous assignments of error filed in the case. It was not pretended that a written notice accepting the option was served on Howard. Leidy, one of the defendants, as required by the optional agreement. The other two defendants deny positively that a written notice accepting the option was served upon them by the plaintiffs. There was no waiver by either of the defendants of the stipulation in the contract requiring service of written notice of the acceptance of the option upon him. That question is not in the case. The jury were justified under the evidence in finding that the plaintiffs had not caused a written notice to be served upon the defendants of the acceptance of the optional agreement.

The question of abandonment was likewise one for the jury under all the evidence, and the learned judge submitted it in a fair and impartial charge. For nearly seven years the plaintiffs took no action towards completing their title and obtaining possession of the coal in dispute. During all those years the defendants retained possession, and necessarily paid the taxes, and claimed title. So far as the evidence discloses, the plaintiffs made no effort to assert their ownership. They made no demand on the defendants for the deed, nor, so far as the evidence shows, did they have their engineers determine the quantity of the acreage as required by the agreement so that the deed could be made. The optional agreement was executed January 31, 1900, under which the plaintiffs were to give notice of their acceptance in writing on or before April 15, 1900. Subsequent to the latter date the plaintiffs took no action whatever in regard to the alleged purchase until they were brought into court in August, 1906, by the rule obtained by the defendants to bring their action of ejectment. In the meantime defendants had given an option on the coal to another party. We think the evidence was sufficient to go to the jury on the question of abandonment.

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


author: Mr. Justice Elkin,

text:
    Vinton Colliery Company, Appellant, v. Blacklick & Yellow Creek Railroad Company.

      Railroads — Condemnation of land — Public use — Private use — Equity.
    1. A bill in equity to restrain a railroad company incorporated under the Act of April 4, 1868, P. L. 62, from condemning land, on the ground that the land was intended for a purely private, and not a public use, is properly dismissed, where the court finds from sufficient evidence that it was the intent and purpose of the incorporators of the defendant company to complete, equip and operate its railroad as required by law, and that public necessity demands the construction and operation of the road.
    2. Questions growing out of the exercise of the powers granted to a corporation cannot be raised in a proceeding under the Act of June 19, 1871, P. L. 1360, under which act the inquiry is always limited to a consideration of the question, Does the corporation possess the power to do what it is attempting to do, and not whether it is'exercising its power in an improper manner.
    Argued Oct. 5, 1909.
    Appeal, No. 50, Oct. T., 1909; by plaintiff, from decree of C. P. Cambria Co., June T., 1908, No. 3, dismissing bill in equity in case of The Vinton Colliery Company v. The Blackliek & Yellow Creek Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    O’Connor, P. J., found the facts to be as follows:
    The above-named defendant is duly incorporated and organized as a railroad company under the act of April 4, 1868, and its supplements.
    The complainant is a corporation organized for the purpose of acquiring and mining coal and has large holdings in the counties of Cambria and Indiana, state of Pennsylvania.
    The defendant company is seeking to condemn land for right of way for a railroad already constructed and in operation upon the site sought to be thus legally acquired.
    That portion of the railroad in question which passes over land of plaintiff was constructed as a lateral railroad by the Vinton Lumber Company, Limited, and is covered by the adopted route for defendant’s railroad.
    The plaintiff seeks to restrain the defendant company from condemning, first, for the reason that it does not affirmatively appear that it possesses the right of eminent domain; and second, that the petition does not aver the necessity for such action. The plaintiff, however, admits, in the second paragraph of its bill, that the defendant company is incorporated under the act of April 4,1868, and its supplements, for the purpose of constructing and operating a railroad. If this be true it has the right of eminent domain and the court is relieved from further consideration thereof.
    We find that the stockholders in the Vinton Lumber Company, Limited, and those of the defendant company are not identical, though if it be the desire of those holding stock in the former company to obtain stock in the defendant company, they will be accorded that privilege.
    We further find that it is the intent and purpose of the incorporators of defendant company to complete, equip, and operate its railroad as required by law.
    The Pennsylvania Railroad Company had an option to take over the lateral railroad of the Vinton Lumber Company, Limited, and establish it as one of its branches. This option but recently expired.
    The Vinton Lumber Company, Limited, had agreed with the defendant company to finance the building of its road, operate it during the construction period and settle with the defendant company when the way to do so became' clear. The option of the Pennsylvania Railroad Company having terminated, the beginning of the end was in sight and at once defendant company became active. Condemnation proceedings were begun; negotiations looking toward the purchase of the rails owned by the Pennsylvania Railroad Company were opened, and generally a movement toward a complete acquirement of all that was necessary for defendant’s complete control and operation of the road was made.
    Plaintiff filed exceptions to the condemnation proceedings, which were disposed of in the court where filed, and then filed in this court to the above number and term the bill in equity upon which this proceeding is based.
    The only ground upon which this court could take cognizance of the complaint was the allegation that the proceeding was an unlawful attempt to procure plaintiff’s land for a private use under the guise of a railroad charter. All other matters, facts and circumstances alleged were urged as grounds supporting this allegation.
    From the pleadings, the testimony and arguments upon part of plaintiff we are asked to find as a fact that the action complained of is an attempt on part of the Vinton Lumber Company, Limited, to procure a railroad for its private use under the cloak of defendant’s charter.
    We find from the evidence, however, that the operations of the Vinton Lumber Company, Limited, have ceased in this region and as a lumber company it has no further use for this road.
    We find that public necessity demands the construction and operation of this road.
    We find that both passenger and freight trains are being used upon this railroad, and that a regular passenger schedule had been adopted prior to the hearing in this cause.
    The testimony of Mr. Lee and others called as witnesses upon the hearing fully explains away the seeming doubtful actions on part of defendant company, and has satisfied this court that even the plaintiff will get what it asserted it desired, viz.: A railroad which will in a true sense be a common carrier.
    It follows from the foregoing that the bill filed in the premises should be dismissed at costs of complainant, and unless exceptions to such finding be filed within ten days a formal order to that effect will be made.

      Error assigned was decree dismissing the bill.

      J. C. Davies and H. S. Endsley, with them John A. Scott and S. L. Reed, for appellant.
    Under the act of June 19, 1871, a court of equity has jurisdiction to inquire whether a railroad chartered under the act of 1868 possesses the franchises it claims — and if not, injunction is the appropriate remedy for the wrong: McCandless’s App., 70 Pa. 210; Edgewood R. R. Co.’s App., 79 Pa. 257; Deemer v. Bells Run R. R. Co., 212 Pa. 491; Rochester & Pittsburg Coal & Iron Co. v. Berwind-White Coal Mining Co., 24 Pa. C. C. Rep. 104; Heine v. Columbia & Port Deposit R. R. Co. et al., 24 Lanc. Law Review, 9; Mory v. Railroad Co., 199 Pa. 152.
    January 3, 1910:

      David L. Krebs, with him M. D. Kittell, for appellee.—
    Under the law as laid down by the Supreme Court, the burden rests upon the party seeking to show that a railroad company incorporated under the act of 1868 does not lawfully possess the power of eminent domain, and in order to make out its case the plaintiff must show that the railroad company was organized for a private, not a public purpose: Windsor Glass Co. v. Carnegie Co., 204 Pa. 459; Deemer v. Bells Run R. R. Co., 212 Pa. 491; Heine v. Railroad Co., 24 Lanc. Law Review, 9.
   Opinion by

Mr. Justice Elkin,

This bill was filed to restrain the appellee railroad company, incorporated under the act of 1868, from taking lands of appellant under condemnation proceedings, because, as alleged, the right of eminent domain sought to be exercised was not for a public use, but for a purely private purpose. The right to thus proceed in equity is claimed under the act of 1871 and the authority of McCandless’s App., 70 Pa. 210; Edgewood Railroad Company’s App., 79 Pa. 257; Mory v. Railroad Company, 199 Pa. 152, and Deemer v. Bells Run Railroad Company, 212 Pa. 491. It is true equity jurisdiction was sustained in these cases for the general purpose stated, but solely upon the ground that the corporations in question, while possessing under their charter powers 'the right to appropriate lands for public uses, in point of fact were undertaking to condemn land for private purposes. The cases cited have gone this far and no farther. The charter powers of a corporation cannot be attacked in this manner, but must be inquired into in a proper proceeding to which the commonwealth is a party. This is the ruling principle of all the cases. The appellee is a railroad incorporated as a public service corporation and under its charter powers possesses the right of eminent domain. It may be compelled by law to perform its duties as a common carrier, and in a proper case its franchises may be forfeited for failure to do so. Questions growing out of the exercise of the powers granted cannot be raised in a proceeding under the Act of June 19, 1871, P. L. 1360, under which the inquiry is always limited to a consideration of the question, Does the corporation possess the power to do what it is attempting to do, and not whether it is exercising its powers in an improper manner. In the present case the appellee company has the prima facie right under its charter powers to do everything it is attempting to do, including the condemnation of lands for public use. When the railroad is completed and in operation, if it refuses to carry passengers, or to haul freight, or otherwise fails to perform its duties to the public, proceedings may and no doubt will be instituted to enforce these common-carrier obligations. In the present proceeding these questions do not arise except in an incidental way, and the inquiry relates solely to the use for which the land condemned is to be taken. If for a public use, the right of eminent domain attaches; if for a private purpose, no such power can be asserted against a landowner. The learned court below has found as a fact, “that it is the intent and purpose of the incorporators of defendant company to complete, equip and operate its railroad as required by law,” and that “public necessity demands the construction and operation of this road.” If these facts be true it necessarily follows that the use is a public one. This is an end of the case' unless it should now be determined that there was manifest error in the findings and conclusions stated in the opinion of the court below, and we find no warrant for so holding. Many of the assignments relate to the financing and management of the railroad by the lumber company during the period of construction and in the early stages of the enterprise, but these matters at most are only incidental to the real question involved, which is, Has the defendant company by whomsoever owned and operated, constructed a railroad, or is it constructing one for public use as a common carrier? The finding of the learned court below settles this question, and we see no sufficient reason to disturb it.

Decree affirmed at the cost of appellant.