text:
    Reifsnyder’s Estate.

      Partition — Orphans’ court — Petition filed within a year.

    A petition for partition in the orphans’ court will not be dismissed merely because the petition was filed within one year of the date of the death of the decedent. Keim’s Estate, 201 Pa. 609, explained.
    Argued Feb. 27, 1906.
    Appeal, No. 373, Jan. T., 1905, by Margaret Reifsnyder et al., from decree of O. C. Berks Co., May T., 1905, No. 3, dismissing petition for partition in Estate of John F. Reifsnyder, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Petition for partition.
    The opinion of the Supreme Court states the case.

      -Error assigned was decree dismissing the petition.

      Isaac Hiester, with him Sherman H. Hoverter, for appellants.
    No time is prescribed to elapse after the death of the decedent for the institution of the proceedings to effect partition of his estate; Trickett on Partition in Penna. p. 38; Myers’s Estate, 25 Pa. C. C. Rep. 235; Marcy’s Estate, 9 Kulp, 128.

      William J. Bourke, for appellee,
    cited: Theilacker’s Est., 12 Pa. Dist. Rep. 230; Keim’s Estate, 201 Pa. 609.
    April 9, 1906:
   Opinion by

Mr. Justice Mestrezat,

We think the learned court below erred in dismissing the petition for partition under the pleadings and facts of this case. The petition was in the usual form. The widow of the decedent filed exceptions and objected to the proceedings on the ground that they were instituted within a year of his death and were, therefore, premature. The objection was sustained and the petition dismissed.

The authority to award partition of a decedent’s real estate is conferred on the orphans’ court by the Acts of March 29, 1832, P. L. 190, 1 Purd. 603, and June 16, 1836, P. L. 792, 2 Purd. 1627. The thirty-sixth section of the former act empowers the court, “ on the application of the widow or any lineal descendant of the decedent having an interest in such real estate .... to award an inquest to make partition of the real estate of such decedent;” and the forty-sixth section of the act authorizes like proceedings in partition where the decedent leaves no lineal descendants, on the application of the persons in whom the estate shall vest in possession. Clause 5, of sec. 19, of the act of 1836, extends the jurisdiction of the orphans’ court to “the partition of the real estates of intestates among the heirs.” Neither these acts nor any other act of assembly fix a time within which the application shall or may be made or an inquest may be awarded. There is, therefore, no statutory authority for holding, as the court below did, that under the facts disclosed in this case an application made within one year from the death of the decedent was premature.

It is contended, however, by the appellee in support of the ruling of the orphans’ court, “ that nowhere in the law is there any specific requirement for partition within the year, and that, as the law provides for one full year within which to make settlement of the estate, by analogy, this full year must elapse before partition can be made of the real estate of a decedent.” If this rule is to prevail in this case, there should be some reason disclosed by the record to support it. It is true, as suggested by appellee’s counsel, that the statute does not require that partition of a decedent’s real estate shall be made within one year, but it is equally true that the statute does not prevent it. So far as the question is affected by the provisions of the statute, any interested party may institute the proceedings the day after the decedent’s death. Unless, therefore, there are valid reasons appearing to the court for delaying the proceedings, the inquest should be awarded. In the case in hand, as we have seen, the only reason assigned is that the proceedings were premature because- brought within a year of the decedent’s death. But that is permissible under the statute. It is not alleged by the appellee that there are any debts, secured or unsecured, of the decedent, or that if there are any such debts that there is not personal estate, primarily liable for their payment, sufficient to liquidate them. It is not averred that the partition of the real estate within the year will injuriously affect any party interested in it, either as heir or creditor. Why, then, should it be delayed ? On the death of the decedent his real estate vested in his heirs, subject to the payment of his debts and to the rights of his widow. If he had no indebtedness for which it was liable, the heirs were entitled to immediate possession, subject to the widow’s statutory dower. They could not bring ejectment against the widow, and the only way in which they could obtain possession or its equivalent, the value of the property, was by partition proceedings. It is clear, therefore, that in the absence of any valid reasons being shown to the court, as in .this case, the heirs of a decedent are entitled to commence partition proceedings at any time and prosecute them to completion. '

While notice to the widow and heirs is not necessary before awarding an inquest in partition, yet, as suggested by Mr. Justice Ageev?" in Horam’s Estate, 59 Pa. 152, “ It would be better if the orphans’ court would require a rule to show cause to be issued and served on all the parties in interest before awarding the inquest.” If, on the return of the rule, there are any valid reasons for not awarding or for delaying the inquest, they can be made known and the court can make such decree as the facts may warrant. If it should appear that the estate was heavily indebted,’ and that all or part of the real estate would be required to pay the indebtedness, the court could exercise its discretion and delay the partition proceedings. This would be' in the interest of all the parties concerned, and no one would have a right to complain. If, on the other hand, it should appear that the real estate was not incumbered and would not be needed to satisfy the indebtedness of the decedent, and that there were no other sufficient grounds for denying the application, there would be no reason why an inquest of partition should not be awarded and the real estate divided among its owners.

It is proper to say that the learned judge of the court below in denying the appellants’ application for an inquest was misled by the decision in Keim’s Estate, 201 Pa. 609. The short per curiam opinion in the case is misleading in not stating the reason for the affirmance of the decree of the orphans’ court. It was not intended by this court in sustaining the decree in that case to' indorse all the reasons assigned by that court for its conclusion. It was there held by the orphans’ court that the will of the decedent worked a conversion of the real estate. into personalty which constituted a complete bar to proceedings for partition. ' This was decisive of the right to an inquest in the casé, and the decree of the court below was affirmed.

The assignment of error is sustained, and the decree of the court below is reversed with a procedendo.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Pocono Spring Water Ice Company v. American Ice Company, Appellant.

      Landlord and tenant — Covenants of lease — Assumption of unperformed contract.

    Where a tenant agrees in his lease to assume an unperformed contract of the lessor-, but makes default thereon, and judgment is recovered against the lessor for the breach, and the sheriff’s return shows a payment of the judgment, the lessor may maintain an action of assumpsit against the lessee for.the loss. ' .. -

      Evidence — Fraud—Presumption.
    Fraud is never presumed but must be established either by direct proof, or by facts clearly proved sufficient to warrant a presumption of its existence.

      Landlord and tenant — Covenant for quiet enjoyment — Agreement to assume unperformed contract — Set-off.
    In an action by a landlord against his tenant for a breach of the covenant in the lease to assume an unperformed contract, damages for a breach of the covenant for quiet enjoyment cannot be set off where it appears that there had been no eviction at the impetration of the writ. In such a case no set-off will be allowed for a breach of the covenant to keep the premises in repair where no competent evidence is submitted to the jury as to the amount of the loss from the breach of the covenant.

      Corporation — Trading corporation — Expiration of charter — Act of May 21, 1881, P. L. 30.
    A corporation chartered for the purpose of erecting a dam and for cutting, storing and selling of ice is a trading corporation within the meaning of the Act of May 21, 1881, P. L. 30, entitled “An Act to enable mining, manufacturing and trading companies to wind up their affairs, after the expiration of their charter.”
    •The Act of May 21, 1881, P. L. 30, applies to all trading corporations whose business has ceased or terminated for any cause whatever, and is not confined to corporations whose charters have expired by express limitation. It applies to a corporation whose property and franchises have been sold under execution. .'
    The statute is remedial and is therefore to be extended to cases in equal mischief.
    Argued March 6, 1906.
    Appeal, No. 218, Jan. T., 1905, by defendant, from judgment of C. P. Monroe Co., Sept. T., 1903, No. 3, on verdict for plaintiff in case of The Pocono Spring Water Ice Company v. The American Ice Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    At the trial it appeared that the Pocono Spring. Water Ice! Company was incorporated on October 7, 1895, and that the certificate for its charter contained the following clauses:
    “ 2. Said corporation is formed for the purpose of erecting a dam on Tunkhannock creek in. Tobyhanna township, Monroe county, Pennsylvania, for pleasure boating, skating, fishing and the cutting, storing and selling of ice.
    “ 4. Said corporation is to exist for the term of perpetual years.”
    On October 19, 1899, the-plaintiff leased to the defendant real estate covered by water constituting a dam or pond at a rental of $7,500 per year. The defendant also agreed to assume an unperformed contract by which the plaintiff was to furnish Van Orden Brothers with a certain quantity of ice during the seasons of 1899 and 1900. Defendant failed to perform this contract, and Van Orden Brothers sued the plaintiff and recovered a judgment which the sheriff’s return showed was paid.
    Other facts are stated in the opinion of the Supreme Court.
    The court directed a verdict for the plaintiff.
    Yerdict and judgment for plaintiff for $12,575.12. Defendant appealed.

      Errors assigned were various rulings on evidence and the charge of the court. .

      F. B. Holmes, with him Wilton A. Erdman, for appellant.
    The covenant for quiet enjoyment was broken when a partial deprivation ensued from the lawful acts of a paramount claimant: Duff v. Wilson, 69 Pa. 316; Hoeveler v. Fleming, 91 Pa. 322.
    Any wrongful act of the landlord which may result in an interference with the tenant’s possession in whole or in part amounts to an eviction: Oakford v. Nixon, 177 Pa. 76; Mathews v. Gas Co., 179 Pa. 165; Miller v. Wilson, 24 Pa. 114.
    Loss of possession ensuing on a sheriff’s sale constitutes an eviction: Brown v. Dickerson, 12 Pa. 372; Gallagher v. Burke, 13 Pa. Superior Ct. 244.
    That this sheriff’s sale worked a complete dissolution of the plaintiff company admits of no manner of doubt: Reynolds v. Cridge, 11 Pa. C. C. Rep. 306; Com. v. Pa. & W. R. R. Co., 17 Phila. 609; Reifler v. Plank Road Co., 1 Pa. C. C. Rep. 64.
    At common law the inevitable consequences of such dissolution were the total extinguishment of all debts due to and from the corporation and its total disability to sue or to be sued is abundantly established: 1 Bl. Com., marginal p. 484; 2 Kent’s Com. p. 307; Cooper v. Oriental Savings and Loan Association, 100 Pa. 402; North Lebanon Boro. v. Arnold, 47 Pa. 488; North Whitehall Overseers v. South Whitehall Overseers, 3 S. & R. 117; Dean’s Appeal, 98 Pa. 101; U. S. v. Alexander, 4 Cranch C. C. 311; Smith v. Chesapeake and Ohio Canal Co., 39 U. S. 45; Hockage Mutual Ins. Co. v. Becker, 1 W. N. C. 100; Bank v. Little, 8 W. & S. 207; Building Assn. v. Anderson, 7 Phila. 106; In re Credit Mobilier, 10 Phila. 2; Hays v. Lycoming Fire Ins. Co., 99 Pa. 621; Angell and Ames on Corporations, sec. 779.
    The plaintiff was not a trading corporation: In Re Elk Park Mining & Milling Co., 101 Fed. Repr. 422; In re N. Y., etc., Water Co., 98 Fed. Repr. 711; Com. v. Pottsville Iron & Steel Co., 157 Pa. 500; Com. v. Pocono Mountain Ice Co., 23 Pa. Superior Ct. 267; Com v. Potter, Sons & Co., 159 Pa. 583; Williams v. Warren, 64 L. R. A. 33.
    The charter of the company has not expired within the meaning of the act of 1881: Swan Land & Cattle Co. v. Frank, 148 U. S. 603 (13 Sup. Ct. Repr. 691); Cooper v. Savings & Loan Assn., 100 Pa. 402; Journeay v. Gibson, 56 Pa. 57; Fulmer v. Com., 97 Pa. 503; Com. v. Cuncannon, 3 Brewster, 344; Com. v. Krickbaum, 199 Pa. 351; Brewing Co.’s License, 12 Pa. Superior Ct. 176.

      A. M. Palmer and W. S. Kirkpatrick, with them Aaron Goldsmith, for appellee.
    Fraud is always a serious charge, and it is never to be presumed: Jones v. Lewis, 148 Pa. 234; Battles & Webster v. Laudenslager, 84 Pa. 446; Lanigan v. Kille, 97 Pa. 120; Mead v. Conroe, 113 Pa. 220; Hagy v. Poike, 160 Pa. 522; Merchants’, etc., Nat. Bank of Pittsburg v. Tinker, 158 Pa. 17.
    A valid set-off must be of a debt or demand due at the time of the commencement of the action in which it is interposed. If the claim is not then ripe for action it cannot be set off: Roig v. Tim, 103 Pa. 115; Gunnis, Barritt & Co. v. Cluff, 111 Pa. 512; Garrison v. Paul, 1 Penny. 380; Zuck v. McClure, 98 Pa. 541; Riley v. Eigo, 1 Pa. Superior Ct. 139; Pennell v. Grubb, 13 Pa. 552; Wood v. Sharpless, 174 Pa. 588; Penn. Iron Co. v. Diller, 113 Pa. 635.
    We contend that the covenant for quiet enjoyment and the agreement on the part of the defendant to assume the Van Orden contract are absolutely separate, independent, and have no relation to each other. For the breach of either the injured party would have a right of action without regard to the performance on the part of the other of its covenant: Wright v. Smyth, 4 W. & S. 527; Bredin v. Agnew, 3 W. & S. 300; Lippincott v. Low, 68 Pa. 314; Weaver v. Sessions, 6 Taunt. 154; Bradley v. Trust Co., 7 Pa. Superior Ct. 419; Prescott v. Otterstatter, 85 Pa. 534; McConaghy v. Pemberton & Co., 168 Pa. 121.
    Plaintiff was a trading corporation: Richie v. McCauley, 4 Pa. 471; In re Master Granite & Blue Stone Cutters’ Assn., 23 Pa. C. C. Rep. 517; May v. Sloan, 101 U. S. 231; Farmingdale v. Berlin Mills Co., 45 Atl. Repr. 39.
    The act in question is a remedial statute, and as such it is to be construed liberally: Endlich on Interpretation of Statutes, sec. 107; Hassenplug’s App., 106 Pa. 527; Quinn v. Fidelity Beneficial Assn., 100 Pa. 382; Dame’s App., 62 Pa. 417; Hartman’s App., 107 Pa. 327; Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 4 Rawle, 9; Com. v. Fraim, 16 Pa. 163.
    April 9, 1906:
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit to recover damages for the breach of the defendant company’s covenant in the contract between it and the plaintiff company .to perform the agreement which the latter had made with Van Orden Brothers to furnish ice to them during the seasons of 1899 and 1900. The defendant did not deny its covenant nor the failure to observe it. It however set up several defenses which the learned court below correctly held to be insufficient and the jury was instructed to render a verdict for the plaintiff. It is not necessary to discuss separately the numerous assignments, many of which raise the same questions, and we must disregard the pleadings in so far as they do not comply with the practice act of 1887. This eliminates from the case some of the questions suggested, and much of the argument contained, in the appellant’s paper-book.

The recovery of a judgment by Van Orden Brothers against the Pocono Spring Water Ice Company for the default of the American Ice Company gave the Pocono company a right of action against the latter company and justified a verdict and judgment for the amount which the Pocono company was compelled to pay. The liability of the Pocono company was fixed by the judgment, and the return of the sheriff to an execution thereon showed that the money had been paid. There was no evidence to warrant any other inference or conclusion than that the plaintiff company in this action, or its property, had satisfied the judgment recovered against it for the breach of the Van Orden contract.

The learned court was clearly right in declining to submit to the jury the .question whether the American Ice Company had been evicted from the leased premises by the fraud of the Pocono company. There was not a scintilla of evidence in the case to sustain the defendant’s allegation of fraud. The acts or circumstances suggested as evidence of fraud were not sufficient to create in an unbiased mind even a suspicion of wrong. They are constantly occurring in transactions of this character and are regarded as perfectly proper and legitimate. -As has been repeatedly said, fraud is never presumed, but must be established either try direct proof or by facts clearly proved sufficient to warrant a presumption of its existence.

The covenant for quiet enjoyment was a distinct and independent covenant from that of the defendant to assume the Van Orden Brothers contract: Wright v. Smyth, 4 W. & S. 527; Obermyer v. Nichols, 6 Binney, 159; Fame Insurance Company’s Appeal, 83 Pa. 396. A breach of the covenant was not a bar to this action by the plaintiff: Obermyer v. Nichols, supra. If, however, at the time the action was brought, the defendant company had suffered any damages by reason of the failure of the plaintiff company to perform its covenant for quiet enjoyment it could recoup the damages sustained by reason of the default. No fraud or bad faith having been shown on the part of the plaintiff, the defendant could not recover the value of the improvements it made on the premises for the prosecution of its business: Lanigan v. Kille, 97 Pa. 120. Nor can we see how, under the circumstances and evidence in the case, the defendant can in this action avail itself of any damages sustained by reason of the eviction. Notice to the defendant company to surrender possession of the leased premises was served after this action was brought, and it was not required to, and did not, remove from the premises until three months thereafter. There was, therefore, no eviction at the impetration of the writ in this case. There had been no interference with the defendant’s beneficial enjoyment of the demised premises up to that date, and consequently no eviction. It follows that there could be no set-off in this action for a breach of the covenant for quiet enjoyment. A set-off is in the nature of a cross demand and, being incomplete at the impetration of the wait, is not available to the defendant in this action: Roig v. Tim, 103 Pa. 115; Gunnis, Barritt & Co. v. Cluff, 111 Pa. 512; Zuck v. McClure, 98 Pa. 541; Garrison v. Paul, 1 Penny. 380. If, however, the defendant company’s claim for damages was ripe for action and was enforceable by way of set-off, it produced no competent evidence under the facts disclosed on the trial to prove the claim. The evidence offered was properly excluded by the trial judge.

A like trouble arose when the defendant company attempted to prove the loss it had sustained by reason of' the failure of the plaintiff to comply with its covenant to keep the premises in repair. Whatever damages the defendant suffered by reason of this default, it was entitled to set off in this action. It first conceived the measure of damages to be the value of the repairs which it had made, but it failed to show the amount it had expended for repairs and hence the jury was given no data from which it could find a verdict. Subsequently the defendant called a witness to show the difference in the rental values of the premises by reason of the failure of the plaintiff to perform its covenant to repair. If that was the proper measure of damages, the difference was not shown, as the only witness offered for the purpose was properly held to be incompetent and his evidence was excluded.

We do not agree with the contention of the defendant that the plaintiff company was prevented from maintaining this action by reason of the sale of its property and franchises made on the Fulmer execution. The plaintiff was clearly a corporation for “ trading purposes ” whose charter had expired, within the purview of the Act of May 21, 1881, P. L. 30. That act is entitled “ An act to enable mining, manufacturing, and trading companies to wind up their affairs, after the expiration of their charters.” It provides that “ all corporations for mining, manufacturing or trading purposes, .... whose charters may have expired, or may hereafter expire, may bring suits and maintain and defend suits already brought for the protection and possession of their property and the collection of debts and obligations owing to or by them, and sell, convey and dispose of their property, and make title therefor as fully and effectually as if their charters had not expired.” The act authorizes the officers last elected to represent the corporation for such purposes, and declares that its purpose is to enable the corporations “ to realize and divide their assets and wind up their affairs.” The defendant contends that the plaintiff was not a trading corporation and that its charter had not expired within the intendment of the act of 1881. But that interpretation of the statute is entirely too narrow to carry out the manifest purpose of the legislature in enacting it. The plaintiff was incorporated for the purpose of erecting a dam in a creek in Monroe county “ for .... the cutting, storing and selling of ice,” and during its corporate existence was engaged in that business. The word “trade” is amply sufficient, as shown by the definitions of leading lexicographers and the decisions cited in the appellee’s brief, to include a business of this character. The Standard Dictionary gives the following, among other definitions, of the word when used as a verb: “ To dispose of by bargain and sale; to engage in commerce or in business transactions of bargain and salebarter; exchange; traffic; hence, to deal in something.” “ The word ‘ Trade,’ in its broadest significance,” says Mr. Justice Bradley in May v. Sloan, 101 U. S. 231, “ includes not only the business of exchanging commodities by barter, but the business of buying and selling for money, or commerce and traffic generally.” The word, it will be observed, is of very broad significance and clearly comprehends the business for which the plaintiff was incorporated and in which it engaged until dissolved by the sale on the Fulmer execution.

It is equally apparent, we think, that the act was intended to apply to all trading corporations whose business had ceased or terminated for any cause whatever, and was not confined to corporations whose charters had expired by express limitation. Why, it may be asked, should the legislature have enacted a remedy for the stockholders and creditors of a trading corporation whose charter had expired by limitation and not of a corporation whose charter rights had been extinguished by any other means ? The evil was the same in both cases. So far as such- interested parties are concerned the effect was the same, whether the corporation had expired by limitation or its property n,nd franchises had been sold under execution. If this statute is not operative in the latter class of cases, the large sum due the plaintiff corporation, involved in this suit, and any other claims it may have against solvent parties, will be retained by the debtors, whereas they could have been collected if the plaintiff corporation had been dissolved by the expiration of its charter. The necessity and reason for the protection of the stockholders and creditors are the same in both cases, of which the legislature was duly aware. The manifest purpose of the act was to afford a remedy in all cases, supposed not to exist at common law, where the life of a trading corporation expired or came to an end by any means whatever, in order that the parties interested might avail themselves of its assets. The statute is remedial and, therefore, is to be extended to cases in equal mischief: Umholtz’s License, 191 Pa. 177. Such statutes “ are to be construed giving the words the largest, the fullest, and most extensive meaning of which they are susceptible. The object of this kind of statutes being to cure a weakness in the old law, to supply an omission, to enforce a right, or to redress a wrong, it is but reasonable to suppose that the legislature intended to do so as effectually, broadly and completely, as the language used, when understood in its most extensive signification, would indicate.” Endlich on Interpretation of Statutes, sec. 107.

The learned judge of the court below correctly disposed of the case and therefore the judgment is affirmed.


text:
    Brittain, Appellant, v. Monroe County.

      Change of venue — County—Local prejudice — Local interest — Interest of judge — Act of March 30, 1875, P. L. 35.
    Where in an action a county is defendant, and the plaintiffs file an affidavit “that local prejudice exists, and that a fair trial cannot be had in said county,” the court is bound to make an order changing the venue. If the petitioners aver that a large number of the inhabitants of the county have an interest in the question involved, adverse to the plaintiffs, it is the duty of the court to hear testimony in order to ascertain the truth of that averment in the petition.
    The fact that the president judge is a pi’operty owner and taxpayer in a county which is a party defendant in a suit, does not make him “personally interested in the event of such cause, or in the question to be determined thereby,” within the meaning and intent of paragraph 1 of section 1, of the Act of March 30, 1875.
    Argued March 5, 1906.
    Appeal, No. 277, Jan. T., 1905, by plaintiffs, from order of C. P. Monroe Co., Dec. T., 1904, No. 18, discharging rule to change venue in case of A. R. Brittain and Frank Reeder and Geo. F. Coffin, trading as Reeder & Coffin, v. Monroe County.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Reversed.
    Rule for change of venue.
    The opinion of the Supreme Court states the case.

      Error assigned was order discharging rule to change venue.

      Frank Reeder, of Reeder & Coffin, with him A. R. Brittain, for appellant.
    The admission of any evidence tending to contradict the allegation that local prejudice exists, was objected to on the part of the applicants, and in overruling such objection the court was clearly in error.
    The president judge was an interested party within the meaning of the act: Wright v. Crump, 2 Lord Raymond, 766; Cottle’s App., 22 Mass. 483; Sigourney v. Sibley, 38 Mass. 101; Pearce v. Atwood, 13 Mass. 324; Clark v. Lamb, 84 Mass. 396; Heilbron v. Campbell, 23 Pacific Repr. 122; Regina v. County of Wilts, 6 Mod. 307; Kendall v. City of Albia, 73 Iowa, 241 (34 N. W. Repr. 833); Willoughby v. R. R. Co., 203 Pa. 243; Meyer v. San Diego, 121 Cal. 102 (53 Pac. Repr. 434); Wetzel v. State, 5 Tex. Civ. App. 17 (23 S. W. Repr. 825).

      Harvey Huffman, with him W. B. Eilenberger, for appellee,
    cited: Newlin’s Petition, 123 Pa. 541; Philadelphia v. Ry. Co., 143 Pa. 444; Minneapolis v. Wilkin, 30 Minn. 140 (14 N. W. Repr. 581).
    April 9, 1906:
   Opinion by

Mr. Justice Mestrezat,

In an opinion handed down herewith in Little v. Wyoming County, ante, p. 596, we have pointed out the proper practice in applications for change of venue in civil cases under the Act of March 30, 1875, P. L. 35. Under that decision, the applicants in this case brought themselves within paragraph four of section one of the act, and were therefore entitled to a change of venue. That paragraph requires the court to order a change when the opposite party is a county, and “it shall appear by the oath of the party desiring such change of venue, that local prejudice exists, and that a fair trial cannot be had in such county.” Here the defendant was the county of Monroe, and the plaintiffs each filed an affidavit “that local prejudice exists and that a fair trial cannot he had in said County.” The plaintiffs having complied with this provision of the statute, the learned judge should have entered an order changing the venue.

The court below was clearly right in hearing evidence in support of and against the allegations in the petition that “ a large number of inhabitants of Monroe county in which such cause is pending have an interest in the question involved therein, adverse to the plaintiffs.” By this averment, the petitioners sought to bring their application within paragraph five of section one of the act. Section two empowers the court to change the venue only when “ satisfied of the truth of the facts alleged” in the petition. It was, therefore, the duty of the court to ascertain the truth of the averment in the petition, that a large number of the inhabitants of the county have an interest in the question involved adverse to the applicants, and as to this fact the court was not compelled to accept as conclusive the affidavits of the applicants. Both parties should have been afforded an opportunity to produce testimony from which the court could determine the truth of the averments contained in the petition.

While the testimony offered by the county to show that no local prejudice existed was clearly incompetent and irrelevant, the objection to its admission, made by counsel of the applicants, “because under the act of 1875 there is no provision made for taking such testimony,” was clearly untenable. The act requires the court to be satisfied of the truth of the facts alleged,” and, as we have just pointed out, the court may direct testimony to be taken to enable it to ascertain the facts. But the existence of local prejudice as a ground for changing the venue under paragraph four is, as we have seen, directed by the act to be made to appear by the oath of the party. Hence, when the applicant makes oath that local prejudice exists it is conclusive on the court.

We are clearly of opinion that the fact the president judge was a property owner and taxpayer did not make him “ personally interested in the event of such cause, or in the question to be determined thereby,” within the meaning and intent of paragraph one of section one of the act of 1875. The word “ personally ” is used in the act to denote a direct and immediate private interest as distinguished from an interest which the judge and other citizens have in public affairs resulting from liability to taxation. The fact that the word “interested ” is thus qualified shows that it was not every interest however trifling or insignificant which the judge might have that would bring a case within the statute, but only such interest as was personal to himself and direct and immediate in its effect. The interest of a taxpayer is indirect and contingent and is entirely too remote to be “ personal ” within the meaning of this statute. As said by Mr. Justice McFarland in Meyer v. San Diego (Cal.), 41 L. R. A. 762, in declaring the interest of a judge by reason of his being a taxpayer insufficient to warrant a change of venue : “ The interest is too shadowy, indirect, remote and contingent to be within the rule that a man cannot be a judge in his own case.” The act of 1875 has been in force for thirty years and so far as the reported decisions of the courts show there has been but a single application for a change of venue on the ground that the judge was a taxpayer, and in that case the application was refused. This shows the interpretation put on the statute by the profession thoughout the state. To sustain the contention of the appellants and hold the judge disqualified to sit because he is a taxpayer of the county would, as the court below suggests, prevent “ the judge from taking part in the confirmation of road and bridge views, selection of jurors, appointment of viewers, fixing township and county lines, appeals from auditors’ settlements, appeals by poor districts, mandamus proceedings for ousting officials, ad libitum.” It would thus interfere with and greatly retard the administration of justice, as all such litigation would have to be adjudicated in another district. A construction of the act which would produce such a result is not to be favored, and we think was not in the legislative mind when the statute was passed.

It appearing that the applicants for a change of venue had brought themselves within the provisions of the fourth paragraph of section one of the act of assembly, the sixth assignment of error is sustained and the order discharging the rule for a change of venue is reversed with directions to the court below to grant the change of venue as prayed for.


author: Per Curiam,

text:
    McManus, Appellant, v. Watson.

      Arbitration — Referee—Findings of fact — Account stated.

    A referee’s finding of fact that there was no fraud or mistake in an account stated between the parties, when such finding is confirmed by the court below, will not bé reversed by the appellate court unless manifest error is made to appear.
    Argued Jan. 22, 1906.
    Appeal, No. 357, Jan. T., 1905, by plaintiff, from decree of C. P. No. 4, Phila. Co., June T., 1899, No. 406, dismissing exceptions to referee’s report in case of Michael McManus v. James V. Watson.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account.
    Exceptions to report of referee.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      F. B. Bracken, for appellant.

      John G. Johnson, with him Greorge R. Van Dusen, for appellee.
    March 19, 1906:
   Per Curiam,

The plaintiff’s bill was for discovery, account, and return of collateral, etc. It was met by an answer that an account had been stated. In regard to this the learned referee reported.

“ When on December 31, 1897, Watson rendered to McManus an account of the dealings between them to that date and that account was accepted by McManus and a duebill given for the balance shown by it to be payable to Watson, the parties are to be regarded as having reached a settlement of all financial transactions between them to that date, and the settlement thus reached will be opened by a court of equity only upon clear proof of fraud or mistake. The findings of fact dispose of suggestions of fraud on the part of Watson. When, therefore, plaintiff undertook to open the account he assumed the burden of proving affirmatively that mistakes have been made and of furnishing the data by which the mistakes might be corrected. The referee has taken into consideration with the utmost care each of the specifications of error in the account as settled. In a number of instances he has found that the items of charge or discharge asserted by Watson have not been affirmatively established, but that the items are entitled to stand as stated in the defendant’s account if the plaintiff is subject to the self-imposed duty of proving their falsity. The referee now finds, as a matter of law, that as to all items in the account prior to December 31, 1897, alleged by McManus to have been improperly omitted from the account, the burden of proof rests upon the plaintiff and that he must fail in his attack unless he shows affirmatively and by clear preponderance of evidence that error has been committed. The referee is of opinion that the plaintiff has failed to discharge the burden of proof resting upon him respecting all items of account except the $1,000 item of credit specified in finding 6.” We have not been convinced of any error in this conclusion of the learned referee. The case involves only questions of fact the further discussion of which would be of no interest to anyone but the parties.

Judgment affirmed.


author: Mr. Justice Potteb,

text:
    Hallock, Appellant, v. Lebanon.

      Appeals — Assignments of error — Evidence—Nonsuit.
    An assignment of error to a ruling on evidence which contains no reference to the pages of the paper-book where the evidence may be found, violates rule 31.
    An assignment of error to the rejection of writings which fails to contain copies of the writings rejected is insufficient.
    No assignment of error lies to the entry of a nonsuit.

      Municipalities — Ordinances—Contracts—Act of May 23, 1889 — Committee ■ — Committee of the whole — Printing ordinance.

    An ordinance which passed first reading, and was then printed and was afterwards considered section by section by the city council, sitting as a committee of the whole, and thereafter passed second reading, is valid, and does not violate the act of May 23, 1889, which provides that “no bill shall be considered unless referred to a joint or separate committee returned therefrom and printed for the use of the members.”

      Municipal contracts — Bonds—Ordinance.
    Where a municipal ordinance requires bonds to be given by contractors “in the amount of the contract price,” but does not state when the bonds shall be given, and it appears that the first payment, under the contract, is not to become due until after the completion of the work, and then to be payable in installments, the requirements of the ordinance are met by giving a bond upon the completion of the work, conditioned according to the terms of the contract.
    Argued Feb. 18, 1906.
    Appeal, No. 374, Jan. T., 1906, by plaintiff, from judgment of C. P. Lebanon Co., March T., 1900, No. 163, refusing to take off nonsuit in case of L. G. Hallock and James Kinney, Jr., trading as Hallock & Kinney, v. City of Lebanon.
    Before Mitchell, O. J., Fell, Brown, Potter and Elkin, JJ.
    Reversed.
    Assumpsit for work done and materials furnished under a contract. Before Ehrgood, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned among others was (9) refusal to take off non-suit.

      Creorge B. Woomer, for appellant.
    By the terms of this contract, the execution and delivery of the bond or bonds required by the specifications, was not a condition precedent to the validity of or vesting of rights under the contract, but a condition subsequent to performance and precedent to payment: Adrian Water Works v. City of Adrian, 64 Mich. 584 (31 N. W. Repr. 529).
    That the parties to a contract acted upon a certain construction, is always evidence that such construction was the one intended by them: Pratt v. Campbell, 24 Pa. 184; New York Tartar Co. v. French, 154 Pa. 273; Huckestein v. Nunnery Hill Incline Plane Co., 173 Pa. 169.
    The city is estopped under the circumstances to question the validity of the contract: Allegheny City v. McClurkan & Co., 14 Pa. 81; Hitchcock v. Galveston, 96 U. S. 341; Columbus Water Co. v. Mayor, etc., of Columbus, 15 L. R. A. 354; Moore v. City of New York, 73 N. Y. 238; Schumm v. Seymour, 24 N. J. Eq. 143; Devlan v. Wells, 65 N. J. Law, 213 (47 Atl. Repr. 467); Ford v. Dyer, 148 Mo. 528 (49 S. W. Repr. 1091).

      Eugene B. Siegrist, city solicitor, for appellee.
    Should the provisions of the ordinance and contract differ, the provisions of the ordinance control: Dime Deposit Bank v. Scranton, 4 Lacka. Jurist, 109; Philadelphia v. Jewell, 135 Pa. 329; Deysher v. Reading, 18 Pa. C. C. Rep. 611; Bladen v. Philadelphia, 60 Pa. 464; Parker v. Philadelphia, 92 Pa. 401.
    There having been no valid ordinance upon which to base

      April 9, 1906:
    the contract in suit, the contractors would have taken no rights from the alleged contract, even had it been properly executed: Milford Borough v. Water Co., 23 W. N. C. 413; Fuller v. Scranton, 18 W. N. C. 18.
    Assuming that the ordinance of councils was valid, the contract was not executed in accordance with its mandatory provisions in that no bond was delivered as therein provided, and therefore the appellants cannot recover thereon: Philadelphia v. Stewart, 195 Pa. 309; Morris v. Paving Co., 7 North. 5; Mazet v. Pittsburg, 6 Pa. C. C. Rep. 599; Malone v. Philadelphia, 147 Pa. 416; Addis v. Pittsburg, 85 Pa. 379.
   Opinion by

Mr. Justice Potteb,

In this case the plaintiffs sought to recover the cost of an auxiliary waterworks built by them under a contract with the city of Lebanon. Upon the trial the learned judge of the court below granted a motion for a compulsory nonsuit, and subsequently refused to take it off. His refusal was based upon two grounds : first, the ordinance authorizing the contract was invalid, in his view, because, as he held, it was passed in violation of the statute prescribing the mode in which ordinances shall be passed; and, second, because no bond had been given by the plaintiffs for the faithful performance of the contract.

The specific feature in which the statute was violated during the passage of the ordinance is not pointed out by the trial judge in his opinion. But apparently he considered that it consisted in a failure to print the ordinance at the proper time, for the use of the members of council.

The first, second, third, fourth, fifth, sixth and seventh assignments of error specify the rejection by the court of various offers of evidence made on behalf of plaintiffs. These assignments all violate rule 31 of this court in that they contain no reference to the pages of the paper-book where the matter may be found in its regular order in the printed evidence or notes of trial.

The first and second assignments of error do not contain copies of the writings rejected, but such copies are printed elsewhere in the paper-book.

The eighth assignment specifies as error, the entry of the nonsuit, but this is not properly assignable as error.

The ninth assignment, however, which specifies the refusal of the court to take off the compulsory nonsuit, is good and raises all the questions necessarily involved in this appeal.

It appears that when the appellants sought to offer in evidence in the court below, the ordinance of the city of Lebanon, approved on August 12, 1897, upon which the contract in suit was founded, the appellee objected on the ground that the ordinance was invalid, for the reason that, as he put it, the ordinance was considered by councils before being printed, as required by the Act of May 23, 1889, P. L. 277. This act provides that “No bill shall be considered unless referred to a joint or separate committee, returned therefrom and printed for the use of the members,” etc.

It is argued that the ordinance is Aroid because the bill was not printed before it was read the first time. The fact is, as appears from the evidence, that on July 7, 1897, at a meeting of the common council of Lebanon, convened for the transaction of general business, the bill was read in place by a member of the council, and passed first reading. Then two days later, on July 9, 1897, at a special meeting convened for the same purpose, the same bill was called up, and, on motion, council went into “ committee of the whole ” for the purpose of amending the bill. In the committee the bill Avas considered section by section, and certain amendments were made. After the committee had risen and reported the bill as amended to the council, their report was accepted, and the bill was referred to the printing committee for reprinting. Three days afterward, on July 12, 1897, at another special meeting convened for the same purpose, the bill was read and passed second reading, and then the rules being suspended, it was read a third time, and passed finally.

It appears from the use of the word “reprinting” in the minutes of the meeting of July 9, and from the testimony of the clerk of common council, that the bill was printed before the meeting of July 9, at which time it was considered section by section, and amended, although it apparently was not printed until after the meeting of July 7, when it was first introduced and passed first reading.

The contention that the ordinance cannot be valid unless it was printed before it was first introduced and read, is, we think, unreasonable and unsound. The requirement of the statute is, that it shall be printed before it is considered, and it is reasonable to presume that the consideration intended was something more than the mere, listening to the reading of it. To “ consider ” is “ to fix the mind upon, with a view to careful examination; to ponder; study; meditate upon; think or reflect with care.” It was in such sense as this we think that the word was used in the statute, and it ought to be a sufficient compliance to print the bill before it is taken up for serious deliberation or for discussion or amendment. Under a fair construction of the wording of the law, the bill is to be offered, referred to a committee, returned therefrom, and then printed for the use of the members, before it can, in a proper sense, be considered. Under ordinary legislative practice, a bill is not open to amendment and discussion until second reading. If a similar usage be held applicable to the statute now under consideration, then its provision as to the printing of the bill was sufficiently observed in this case.

It is urged also that the ordinance is defective because during its passage, it was not referred to a committee. But that depends upon what is considered a committee in legislative practice. Ordinarily a committee is composed of a comparatively small number of members, but it may include the whole body. In the Century Dictionary, “ Committee of the whole ” is defined as follows: “ A committee of a legislative body consisting of all the members sitting in a deliberative rather than a legislative character, for formal consultation and preliminary consideration of matters awaiting legislative action.” The bill in this instance was referred to the “ committee of the whole ” at the meeting of July 9, and was carefully considered in that committee, section by section, and was amended and reported as amended to the council, who accepted the report and referred the bill to the printing committee for reprinting. We think that this reference to the committee of the whole and its careful consideration there, met the requirements of the statute, as fully and fairly as a reference to any smaller committee, either special or standing, would have done.

But it is suggested by the trial judge in his opinion that, even if the ordinance was valid, its specifications with regard to the furnishing of a bond by the contractors were not complied with. The ordinance required bonds to be given by the contractors “ in the amount of the contract price ”; but it did not specify the time when this security should be given. The bonds were to be conditioned for the faithful performance of the contract, and the fulfillment of each and every one of the elements of the guaranty. The contract, as recited in the ordinance, was to be for the furnishing of a guaranteed additional supply of pure soft water, and was to include all necessary machinery and appliances for a complete system. The guaranty was to be for the supply of 1,000,000 gallons of pure soft water daily for a period of five years. The first payment, under the contract, was not to become due until after the completion of the work. The requirements of the ordinance would seem to be fully met by giving a bond or bonds upon the completion of the work, conditioned for furnishing the water supply according to the contract, and fulfilling the guaranty during the stipulated term of five years. The language used is certainly susceptible of this construction, and the representatives of the city seem to have so construed it when the contract was printed. The contract price was to be paid “ upon the delivery of a bond or bonds as required by the said specifications.” The specifications did not fix the time when the bonds were to be given, and provided only that they would be conditioned for the performance of the contract and the repayment of the contract price if the guaranty was not fully carried out. At the trial, plaintiffs offered to show that at the time of the execution of the contract, they tendered a bond, prepared in accordance with the specifications, to the mayor and city solicitor, who represented the city, and that it was refused by them for the reason that no bond was necessary until the payment of the first installment due under the contract. Plaintiffs also offered to show performance of the contract on their part, and that councils, by undertaking to abrogate the contract without just cause, after the work had been completed and used by the city, waived the furnishing of a bond. So long as the city retained the money in its own hands, it ran no appreciable risk. The contract price was to be paid in five equal installments, the first on the completion of the work, and the others in yearly installments thereafter. In view of the annual payments provided for, and the use of the plural number in referring to the security, the ordinance may be fairly construed as requiring that five bonds were to be given, each for the amount of the consideration payable yearly. As a matter of fact, the time limit covered by the guaranty has expired, and the permanency of the supply for the required period, is a matter that can be established by proof of the fact, so that the matter of bonds to secure the city in that respect has become merely a moot question.

It appears further that an appropriation was made by the city sufficient to cover the amount of the first payment, and the city controller appended his certificate, as required by the statute. The appropriation was sufficient when it covered the first payment. The rule was laid down by Chief Justice McCollum in Black v. City of Chester, 175 Pa. 101 (105) that, “ If the contract is to furnish light or water for a term of years to be paid for monthly, quarterly or annually, he (the controller) should certify upon it the estimated amount of expenditure thereunder for the ensuing fiscal year.” The controller did so certify in the present instance.

As the case now stands, the plaintiffs seek to recover for the full amount of the contract, as damages, and if they succeed in making good their claim, it is possible that a large sum may be recovered against the city without an appropriation having been made for the full amount thereof. But such a consideration cannot be controlling, if the result would be to enable the municipality to escape its honest obligations, under a valid contract. Even a constitutional requirement cannot be allowed to have such an effect as that. In Addyston Pipe & Steel Co. v. City of Corry, 197 Pa. 41, it was held that where a municipal contract for a sewer provided that the price should be paid partly by money in the treasury and partly by assessments on abutting and nonabutting property, and the nonabutting property was held not to be liable to such assessments, the city was liable for the full amount of the contract, notwithstanding the fact that this liability increased its debt beyond the constitutional limitation. The present chief justice said (p. 49) : “ The constitutional restriction was not intended to make municipalities dishonest, nor to prevent those who contract with them from collecting their just claims, but to check rash expenditure on credit, and to prevent loading the future with the results of present inconsiderate extravagance.”

In the case before us, the city council made a contract which was within the scope of its power, and under it the plaintiffs furnished materials and performed work, and, as they allege, completed the contract, and fulfilled the guaranty as to the permanency of the water supply. The truth of these allegations was a matter of proof, and the plaintiffs were entitled to a hearing upon the merits of their claim. Under the pleadings, plaintiffs averred performance on their part, acceptance by the city, and subsequent breach of the contract by it. Holding as we do, that the contract was valid under the ordinance, no question of’ ratification or waiver arises, and the authorities cited on these points need not be considered. If the plaintiffs performed the contract, and carried out all its specifications and made good the guaranty, they are entitled to recover and it would be rank injustice to hold that payment need not be made by the city. The ninth assignment of error is sustained and the judgment is reversed with a procedendo.


author: by Mr. Justice Fell,

text:
    Firestone, Appellant, v. First Slavish Roman Catholic Greek Rite Church.

      Corporations — Church law — Annual meetings — Trustees—Evidence.
    Where a church corporation has no by-laws, and the date of its annual meetings is not established by any custom, evidence of the date of meetings of a faction of the congregation after its division is inadmissible to show a custom as to the time of holding annual meetings before the division.
    Argued March 7, 1906.
    Appeal, No. 121, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. Term, 1902, No. 58, on verdict for defendants in case of Henry Firestone v. First Slavish Roman Catholic Greek Rite Church of Duquesne, Pennsylvania, Michael Hriezo, Joseph Llykeánd George Lukac, Trustees.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat and Elkin, JJ.’
    Affirmed.
    Ejectment for land in the borough of Duquesne.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      April 9, 1906 :

      Errors assigned were in refusing to admit the offers of testimony referred to in the opinion of the Supreme Court.

      A. II. Rowand, with him H. II. Rowand and William Vokolek, for appellants.

      F. W. Miller, with him John 8. Roll, for appellees.
   Opinion

by Mr. Justice Fell,

This was an action of ejectment to recover possession of a church property which the plaintiff had purchased at public sale, with notice that the power of the trustees to make the sale would be contested. The validity of the plaintiff’s title depended upon the regularity of the proceedings that led up to the sale. The title was in the corporation, and the sale was made and the deed executed by persons who claimed to have been elected trustees at a meeting held for that purpose on May 19, 1901, and to have been authorized at a subsequent meeting to sell the property at public sale. The charter of the church provides that “ Trustees shall be chosen by the male members of the church, above the age of twenty-one years, in good and regular standing, at an annual meeting at which a majority shall be present.” The main questions of fact in dispute at the trial were whether the meeting of May 19 was an annual meeting for the election of trustees, and whether the persons declared to have been elected had received a majority of the votes of members in good standing at the meeting. The first question could have been readily determined had there been by-laws fixing the time of the annual meetings. There were no by-laws, and there was no established custom that fixed a time for holding meetings. It appeared from the minutes of one of the church meetings that it had been determined that a member in good standing was “ one who lives a moral life and regularly supports the church,” but whether the contribution essential to membership was indefinite in amount or fixed at fifty cents a month was in dispute. The congregation was divided into two factions, one desiring to continue the church at Duquesne and the other desiring to move it to McKeesport, and all of the important facts were in dispute.

The case was carefully submitted by the learned trial judge, and the only question now to be considered is whether there was error in overruling the plaintiff’s offer in rebuttal to show by the minutes of the Duquesne faction when the annual meetings had been held in 1902 and 1908, and the number of members that had been in attendance at these meetings. These minutes were of meetings of a faction of the congregation after its division, and would not have shown a custom as to the time of holding annual meetings before the division, nor would they have shown the membership of the church in May, 1901. They were therefore properly excluded.

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    McMahon’s Estate.

      Appeals — Res adjudícala — Partition.
    Where on an appeal from the refusal of an order of the orphans’ court to stay proceedings until the title should be determined by an action at law, the record shows no question that was not decided on a former appeal by the same party overruling a motion to quash proceedings in partition, the second appeal will be dismissed on the ground of prior adjudication.
    Argued March 12, 1906.
    Appeal, No. 189, Jan. T., 1905, by Sue McMahon, from decree of O. C. Clinton Co., refusing an order to stay proceedings in Estate of Mary McMahon.
    Before Mitchell, C. J., Fell, Mesteezat, Pottee and Elkin, JJ.
    Affirmed.
    Petition to stay proceedings. Before Matee, P. J.
    The opinion of the Supreme Court, states the case. See also McMahon’s Estate, 211 Pa. 292.

      Error assigned was decree refusing to stay proceedings.

      C. 8. McCormick, for appellant.

      T. C. Hippie and Henry Hippie, for appellees.

      April 9, 1906 :
   Opinion by

Mr. Justice Fell,

This record presents no question that was not decided on a former appeal by the same party from an order overruling a motion to quash proceedings in partition. One of the properties included in the writ was lot six in block three in a plan of lots laid out by a land company in the borough of Eenova. The appellant claimed title to this lot as devisee of her mother. Her mother never had title to it and it was not mentioned in her will. She had title to lot three in block six and devised to the appellant lot four in block six. In support of the motion to quash, testimony was offered to show a misdescription in the deed and that lot six in block three should have been conveyed. Without passing on the sufficiency of this testimony to make out a prima facie case, the court overruled the motion for the reason that if the deed should be reformed, there would be an intestacy as to this property and it was properly included in the writ. The appellant could not succeed without showing that a mistake had been made both in the deed and in the will.

This appeal is from the refusal of an order to stay proceedings until the title should be determined by an action at law. No additional facts were shown nor was an attempt made to show any. The appellant’s case rested upon the mere assertion of adverse title unsupported by any proofs on which a jury would be allowed to pass in an action of ejectment. On the former appeal it was decided that the title set up gave the appellant no standing to object to a partition. Her petition was, therefore, properly refused on the ground of prior adjudication.

The decree of the orphans’ court is affirmed.


author: MR,. Justice Potter,

text:
    Tropenas v. Bryson, Appellant.

      Patents — Patent for apparatus — Patent for process — Lácense—Contract.
    On a bill in equity for an accounting, it appeared that by an agreement in writing plaintiff licensed the defendant to use a patented improved apparatus in the process of making steel, and also agreed to instruct him in and permit him to use certain secret improved methods of manufacturing steel in connection with the patented apparatus. The defendant agreed to pay certain royalties. It appeared that the defendant paid the royalties for a time, and then ceased to pay them without annulling the agreement. Defendant claimed that the plaintiff’s patent infringed upon another patent, but the evidence showed that the patent referred to was one for an improved process in making steel while the plaintiff’s patent was for an apparatus only, and it did not appear that anybody had raised any question of infringement. Held, that the plaintiff was entitled to a decree for an accounting.
    Under the patent laws of the United States an improvement in a process and an improvement in a machine are entirely different things, but each in its own department may present subject-matter which is patentable.
    Argued Feb. 27, 1906.
    Appeal, No. 240, Jan. T., 1905, by defendant, from decree of C. P. Berks Co., Equity Docket, 1908, No. 852, on bill in equity in case of Alexandre Tropenas v. Andrew Bryson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an accounting.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned. was decre.e directing an accounting.

      Cyrus Gf. Derr, with him Charles W. Constantine, for appellant.
    The appellee represented to the appellant that he had a process, known as the Tropenas Converter Steel Process, which would make steel; when in fact the process was in fundamental respects at variance with laws of nature, would not make steel and wq,s a humbug.
    The process so introduced into the appellant’s plant by the appellee and taught the appellant by the appellee’s engineer, was the process of another person, viz., Mr. Bookwalter, and the appellant was obliged to pay Bookwalter for the use of it.

      The testimony submitted in this case leads to the conclusion, and it must be found as a fact, that the process for the manufacture of steel castings, which Mr. Tropenas, the plaintiff, through his engineer, taught the defendant’s employees, and for the use of which the defendant, Mr. Bryson, paid royalties to the plaintiff, involves an air blast so applied to the mass of liquid metal in the converter as to cause it to rotate vertically and so as to bring a constantly changing surface of molten metal in contact with the blast, thus more rapidly consuming the silicon and other combustible matter in the iron and producing more intense heat whereby the metal is maintained in a liquid state, and that the said process is substantially that of Mr. Bookwalter, described in the specifications which form part of the above-mentioned letters patent issued upon the application of Mr. Robert.
    The account of steel castings manufactured by the defendant which the plaintiff prays for in this bill is an account of castings manufactured by the defendant by a process which is not the process described in and covered by the plaintiff’s letters patent and specification and which is not and was not the right or property of the plaintiff, but which was, during the period of the manufacture of the castings for which an accounting and payment are prayed for, the right and property of a person other than the plaintiff.
    The execution of the agreement in question by the defendant was procured by the false and fraudulent acts and representations of the plaintiff, and is, therefore, void.

      Isaac Miester, for appellee.
    Even if the patent in some of its features was invalid and if some of the methods, treatments and processes were useless, the remaining features furnished such a degree of utility and practical value as to produce substantially the required results and there was a sufficient consideration for the royalties which appellant undertook to pay: Hubbard v. Allen, 123 Pa. 198; Kroegher v. McConway & Torley Co., 149 Pa. 444; Palmer’s App., 96 Pa. 106.
    While there is an implied warranty of title by the licensor there is no warranty of the validity of the letters patent. All that the licensor warrants is that the licensee shall not be evicted from his enjoyment of his rights under the lease: Kinsman v. Parhurst, 59 U. S. 289; Angier v. Eaton, Cole & Burnham Co., 98 Pa. 594.
    April 16, 1906:
    As long as the patent had ndt been adjudged invalid but was apparently valid and the appellant was enjoying the benefits of the supposed validity he continued liable for the stipulated royalty and is estopped from contesting the validity of the patent: White v. Lee, 14 Fed. Repr. 789 ; Jarecki v. Hays, 161 Pa. 613; Edison General Electric Co. v. Thackara Mfg. Co., 167 Pa. 530; Maitland v. Central Gas, etc., Co., 27 N. Y. Supp. 965 ; Skinner v. Wood Mowing, etc., Machine Co., 140 N. Y. 217 (35 N. E. Repr. 491).
   Opinion by

MR,. Justice Potter,

This bill was filed by the plaintiff to secure an accounting by the defendant under the terms of an agreement entered into between the parties, by which the plaintiff licensed the defendant to use an improved form of converter in the process of making steel, and agreed to furnish him with plans and drawings necessary for constructing and erecting a steel plant, and for equipping it with apparatus, machinery and furnaces for the operation of the converter, and to instruct him in the proper method of using it in the manufacture of cast steel. The agreement sets forth that plaintiff was the inventor of new and useful improvements in converters for the manufacture of steel, and that he was the owner of letters patent thereon granted to him by the United States of America, No. 511,919, and bearing date of January 2, 1894. Under the agreement, the defendant was to have the right to use this improved form of converter, and was also to have the benefit of advice and instruction from the plaintiff, and the use of certain special methods of treating pig iron which were to be made known to defendant by plaintiff, and certain formulas for special mixtures of sand were to be transferred, and plaintiff was also to impart to defendant certain special knowledge and information, gained by long experience, in manufacturing, as to the best ways and means of handling and tapping the converters, and pouring the molten steel into molds, and in annealing the castings, etc.; which methods were referred to as the Tropenas Converter Steel Process for the manufacture of steel castings. Some of these processes and treatments, it was stated, were secret, and were the result of years of observation and experience by plaintiff, and were alleged to be of great practical importance, in the manufacture of steel, in connection with the improved form of converter, described in the letters patent. The defendant upon his part, agreed to make all proper use of the invention of the plaintiff, and to manufacture steel castings therewith, and to follow the methods and pursue the practice which was to be made known to him by the plaintiff. And, in consideration of the grant to him of the license so to do, he was to pay certain royalties, not less than the minimum amount stated in the agreement, and was to render stated accounts from time to time of the weights of the castings so manufactured by him. The bill charges that the defendant did erect a steel casting plant, and did thereafter install the improvements therein as agreed, and did continue the manufacture of castings in accordance with the method and the practice imparted to him by the plaintiff, and paid the royalties due thereon as stipulated, until February 2, 1902; but that since that time, though continuing to use the same apparatus for the manufacture of steel castings, he has refused to pay any royalties thereon or to render any account thereof.

The defendant admits these allegations of the bill, and acknowledges that he ceased paying royalties, and justifies himself in so doing by the assertion, that he was defrauded in the execution of the agreement; the basis for what he termed fraud being the conclusion which he had reached that the letters patent granted to the plaintiff were void, by reason of the fact that, in his judgment, the subject-matter of the specifications was either impracticable and absurd, or else it described means which were not new or patentable. In particular, he believed and alleged, that the method which he had been taught by plaintiff to use, in the manufacture of east steel, and which he had followed, was an infringement of prior letters patent of the United States granted to one Bookwalter, as assignee of G. L. Robert, for processes of converting iron into steel.

The learned judge of the court below has carefully considered the issues of fact as between the parties, and has weighed the testimony accurately, and has set forth with great particularity his findings of fact and conclusions of law. He has concluded, and has formally found that the plaintiff has furnished to the defendant substantially that, which by the terms of the contract, he agreed to furnish, and that there is nothing to justify the defendant in his refusal to pay the royalties as established and stipulated, in the contract. Without going into details, it is sufficient to say that we think the findings of fact are amply supported by the evidence. We are also in entire accord with the conclusions reached by the trial judge, and which were formulated by him, as follows:

a. Bryson received sufficient consideration for the royalties he contracted to pay, in the right to use a patent which was not invalid, because in any essential respect impracticable, or infringing on the Robert patents, and in the instructions imparted to him in various useful and valuable special improvements, methods and treatments in the practice of the patent.

h. Even if the patent in some of its features was invalid and if some of the methods, treatments and processes are useless, the remaining features, -methods, etc., furnished such a degree of utility and practical value as to produce substantially the required results, and there was a sufficient consideration for the royalties Bryson undertook to pay.

a. The Tropenas patent for the top (or upper row of) tuyeres is not invalid because some time before the granting of it Bookwalter had conceived the idea and made sketches of the device of a second row of tuyeres and communicated the same to a friend.

d. As long as the Tropenas patent remained apparently valid and Bryson remained in the enjoyment of the benefits of it as such, he continued liable to Tropenas under their contract for the royalties, stipulated therein, and could not resist payment thereof on the ground of the invalidity of said patent.

e. Even if Bryson might have avoided the contract with Tropenas for invalidity of the latter’s patent or for fraud on the part of Tropenas in inducing him to enter into said contract he cannot have relief now because he has not shown that, when he stopped paying royalties, he repudiated said contract or abandoned the protection of the license, but it appears on the contrary that he has not ceased the use of appliances covered by it and furnished to him under it.

Tropenas, as plaintiff in the original bill, is entitled to a decree1 requiring Bryson to account to him for royalties upon steel castings Bryson has or should have manufactured under his license from Feb. 28, 1902.

g. Tropenas, as defendant in the cross bill, is entitled to a decree dismissing the same.”

The fundamental error in the position of the appellant, and one which permeates the entire argument made in his behalf is the failure to observe the distinction between a patent for an apparatus and one for a process. The Tropenas patent, under which the defendant took a license, is not a patent for a process at all; it is a patent for an improved form of apparatus used in the process of making steel. It appears from an inspection of the letters patent that the improvements described and set forth are all in the converter, and all of the claims point out, that the invention lies in the form and fittings of the converter. No claim is made for any improvement in the process of making steel, except that which attends the method followed by those who use the improved converter. It is true that Tropenas agreed to impart to the defendant, along with the privilege of using his improved form of converter, a certain amount of instruction, and was to convey valuable information in the art or process of making steel, and in the method of handling the converter, and in the mixing of the materials used, and in operating the blast of air. But it was not pretended that these matters were included in, or formed any part of, the invention set forth in the letters patent. On the contrary, the contract expressly sets forth that this knowledge and skill which was to be placed at the disposal of the plaintiff Tropenas, was the result of the experience of years which the plaintiff had given to the business, and it indicates that the processes and treatments thus referred to, were in part trade secrets accumulated by the plaintiff, and not to be had, except through personal communication and instruction.

On the other hand, the Robert patents, upon which defendant relies to defeat the validity of the patent of the plaintiff, and to relieve him from the payment of royalties, under the contract, are all for improvements in the process of converting iron into steel; and the inventor expressly disclaims any intention of including as part of the invention set forth therein, any part of the apparatus used in the process.

It is true that the plaintiff in referring to his system of making steel, in which the converter is used as an instrument in the process, speaks of the whole method, as the “ Tropenas Converter Steel Process.” But the art or process of making steel, or open hearth steel, was by,110 means new at that time as appears from the testimony. All that could be claimed in the state of the art as it existed when both Robert and Tropenas were applying for the grant of letters patent, was the particular and specific improvement, each claimed to have made, in what was then comparatively a well known line of manufacture, the making of steel. Neither of the parties concerned could properly assert any broad claims to invention, but each had invented something, which was considered as having patentable merit. The one was in the line of improving the process itself, the other was in the line of improving the machine or apparatus to be used in carrying out the process of making steel.

Under the patent laws of the United States, an improvement in a process, and an improvement in a machine are entirely different things, but each in its own department may present subject-matter which is patentable. Yet through most of the argument for appellant, this distinction is overlooked, and Tropenas’s patent, which covers only the apparatus, is treated as though it were intended to cover the process. It is perhaps unnecessary to compare minutely the results produced by the use of the Tropenas converter in the manufacture of steel, with those which attend the use of the process set forth in the Robert patents; for the reason that, as we have stated, the Tropenas patent is limited in its claims to the mechanical devices set forth and described therein ; while the claims of the Robert patents refer to the particular methods therein described of applying an air blast to the molten metal during the process of converting iron into steel. “ The respective results of a machine or manufacture covered by the claim of a patent, and of a machine or manufacture alleged to infringe that claim, do not furnish a criterion by which to decide the question of infringement. Those results may be identical, while the things which produce them are substantially different. Any person may accomplish the result performed by a patented thing without infringing the patent, if he uses means substantially different from those of the patent. To hold the contrary of this rule would be to retard, and not to promote, the progress of the useful arts: ” Walker on Patents, see. 340, citing Westinghouse v. Boyden Power-Brake Co., 170 U. S. 507, and other cases. Yet in his effort to escape from the obligations of his contract, the defendant has compared results from the use of an apparatus, and the results of a process in the broadest way. He has reasoned thus: “ I have been making steel with the Tropenas eonvoter and as directed by him, and the process has consumed only half an hour. I am advised that steel cannot be made in half an hour without imparting a gyratory motion to the metal; and as the object of the process described in the Robert patents is to produce a gyratory motion, and its claims include means for that end, I must have infringed upon the Robert patents.” But in this he overlooked the fact that results as such, are not patentable; it is only means for producing results that are thus protected, and even if Tropenas and Robert produced the same result, if they did it by different means, there would be no clash. Each used a converter, and an air blast, both of these devices being old. But Robert sent his air blast into the molten metal with the avowed purpose of creating a great deal of agitation and commotion, while Tropenas constructed his converter and arranged his tuyeres, and controlled the blast in such a way as to reduce the gyratory motion to a minimum. Such agitation was desired in the one case, and was avoided and diminished as much as possible in the other.

Neither Robert nor Tropenas claims the invention of a tilting converter, as that device was well known before. In fact, the real inventions of both parties, seem to be confined within very narrow limits. The evidence in this case does not show us the state of the art, at the time of the Robert applications, and without information as to that, we cannot judge properly as to the scope of his claims; but it is very probable that when properly construed with reference to the actual state of the art, they will not be found to have been infringed by the system pursued by the defendant.

A great deal of scientific knowlege and technical learning is displayed by counsel for appellant, in knocking down claims, which we do not find are made at all on behalf of the plaintiff, in the specifications for the invention described in the Tropenas patent. From the fact that the patents of Robert and that of Tropenas were each allowed to issue by the expert examiners of the patent office, we may presume that in their judgment at least no real antagonism exists between the inventions set forth and described in the two grants. And when we note the further fact that, as we have seen, the one is for an improved process or method of making steel, without reference to any particular apparatus, and the other is for an improved form of converter, a mere mechanical appliance, which is part of the apparatus to be used in any appropriate process or method of making steel, the suggestion that the claims of the patents necessarily interfere, loses all its force.

It may be, that in the practical operation of making steel, as it was performed by him, the defendant came within some of the claims of the Robert patents. But if so, there was no sufficient proof of it, nor was there any evidence to show the validity of the Robert patents, or to show what the scope of their claims really was as properly limited by the prior state of the art. Of course we are not called upon to construe the patents except in so far as may be necessary to ascertain the rights of the parties under the agreement, and to determine what was in fact the subject-matter thereof. We have no jurisdiction to determine the validity of the patents. We are only concerned with the contract between the parties, and we have only to inquire whether or not the defendant got from the plaintiff substantially that for which he had stipulated, and for which he agreed to pay a fixed and minimum amount of royalty.

After.a most searching analysis of the testimony the learned court below has found as a matter of fact that he did, and our own examination of the record, has satisfied us that he was entirely correct in so finding.

Just why defendant should have become so deeply imbued with the idea that the method he was using was an infringement upon the Robert patents, does not appear from the testimony. Apparently he reached that conclusion of his own volition. No threat of prosecution was shown, and no adjudication of any court appears, sustaining the validity of any of the claims of the Robert patents. The defendant certainly had no right to repudiate his contract with the plaintiff, under the theory that possibly he might be held legally liable to another party, for the use of a process, in which he made use of the plaintiff’s improved converter, and carried on the operation of making steel in accordance with the instructions and suggestions of the plaintiff, and employed his method of mixing ingredients, pouring hot metal, and annealing the eastings. It would be time enough for him to complain in this respect, when he was actually hurt. As the case now stands there is no evidence that there was any interference with him while he was practicing the art of making steel as he had learned it from the plaintiff, or that there was any imminent danger that any such attempt if made, would be successful.

We are not convinced that the defendant was deprived of anything for which he could properly be deemed to have bargained ; or that he failed to get anything for which he stipulated in the contract which he made. He bargained for the use of an apparatus and that apparatus was supplied to him. He was also to be advised and instructed in the use of the apparatus, and in the art of making steel. In that respect also, the agreement was fulfilled.

These considerations were sufficient to support the contract. It may be that in the use of the process something covered by the claims of the Robert patents was used, although so far as the evidence shows, this is very doubtful indeed. But whether there was any such interference or not, the defendant was bound under his contract to pay for that which he did obtain from the plaintiff, and which he used in the business.

The assignments of error are all overruled, and the decree of the court below is affirmed, and this appeal is dismissed at the cost of the appellant.


author: Mr. Justice Bbown,

text:
    Donatelli, Appellant, v. Casciola.

      Equity — Jurisdiction—Ejectment.
    Where a verdict has been rendered for the plaintiff in an ejectment the defendant cannot, pending a rule for a new trial in the ejectment, maintain a bill in equity against the plaintiff involving the same question as is involved in the ejectment.
    Argued March 6, 1906.
    Appeal, No. 35, Jan. T., 1906, by plaintiff, from decree of C. P. Northampton Co., Sept. T., 1905, No. 2, dismissing bill in equity in case of Donato Donatelli and Filippo Giacomo Donatelli v. Filippo Oasciola et al.
    April 16, 1906 :
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, and Elkin, J J.
    Affirmed.
    Bill in equity to enforce a resulting trust.
    The opinion of the Supreme Court states the case.
    The court in an opinion by Scott, J., dismissed the bill.

      Error assigned was decree dismissing the bill.

      F. W. Edgar, with him Parke H. Davis, for appellant.

      Russell O. Stewart, with him George F. P. Young, for appellee.
   Opinion by

Mr. Justice Bbown,

But for the pendency at the time this bill was filed of the action of ejectment between these parties for the same premises, the decree below would have to be reversed, for we can concur neither in the finding of fact by the learned court that the presumption of a gift of the property by Filippo Casciola to his wife had not been overcome, nor in the conclusion that she did not hold the title as trustee for him. In that action a verdict was directed for the plaintiff, Maria Donata Casciola. A rule was awarded to show cause why a new trial should not be granted, which, pending final decree in this proceeding, has been held in abeyance by the court below.

In the action of ejectment the fundamental question involved in this proceeding was raised, or ought to have been raised, and if the appellants, who are the defendants in that action, produced the same testimony that they offered here, the jury ought to have been instructed that, if they believed it, the plaintiff could not recover, for she held title to the property, not for herself, but as trustee for her husband, and by her deed of September 17, 1898, passed a good title to the appellants. The decree of the court below, dismissing the bill, is affirmed, at appellants’ costs, but without prejudice to any of their rights in the pending action of ejectment.