text:
    Heppenstall v. Leng, Appellant.

      Equity — Jurisdiction—Cloud on title — Cancellation of written instrument.

    The jurisdiction of a court of equity to remove clouds from title is an independent source or head of jurisdiction, and whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree, which justice or the rights of the parties may require.
    A bill in equity to quiet title may be maintained where it appears that plaintiff has title to the premises, that by an agreement he had sold the property to another who is in possession of it but refuses to accept the title sold him by reason of an outstanding adverse title, and that the adverse title is in the defendant. In such a case as neither plaintiff nor defendant is in possession, ejectment will not give the plaintiff the remedy he desires and needs; nor will the Acts of May 25, 1893, P. L. 131, or April 16, 1903, P. L. 212, give him an adequate remedy, inasmuch as plaintiff is not in possession of the premises.
    April 1, 1907:
    Argued March 13, 1907.
    Appeal, No. 182, Oct. T., 1906, by defendant, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1905, No. 254, sustaining bill in equity in case of George T. Heppenstall v. Christian P. Leng.
    Before Pell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to quiet title. Before Over, J., specially presiding.
    The opinion of the Supreme Court sufficiently states the case.

      Error assigned was /the decree of the court in favor of the plaintiff.

      J. 8. Ferguson, with him E. Q. Ferguson, for appellant.

      Lyon, Hunter & Burke, for appellee.
    A court of equity has jurisdiction to entertain the bill of complaint in this cause: Brush Electric Co.’s App., 114 Pa. 574; Mortland v. Mortland, 151 Pa. 593; Johnston v. Price, 172 Pa. 427; Boyd v. American Carbon Black Co., 182 Pa. 206; Pratt v. Waterhouse, 158 Pa. 45; Thompson’s App., 107 Pa. 559; Hilborn v. Wilson, 17 Pa. C. C. Rep. 346.
   Opinion by

Mr. Justice Mestrezat,

The learned judge of the court below has so fully vindicated his conclusions on the merits of the case in the able and exhaustive opinion filed by him, that we need not enter into a discussion to sustain his findings. He has found and stated the facts at length to which no error is alleged here by the appellant.

The right of a party in possession of, and claiming title to, real estate to. invoke the aid of a chancellor in removing a cloud from his title is well settled. In Dull’s Appeal, 113 Pa. 510 we held, as stated in the syllabus, that the jurisdiction of a court of equity to remove clouds from title is an independent source or head of jurisdiction, and that whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party, after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and ho cannot immediately protect or maintain his right by any course of proceedings, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree, which justice or the rights of the parties may require. In Story’s Equity Jurisprudence (12th ed), sec. 711a it is said: It is very common in courts of equity to entertain suits, for the purpose of removing a cloud resting upon the plaintiff’s title. This is done upon the ground, that it is for the interests of both parties that the precise state of the title to the estate be known if all are acting bona fide; and if not, that a merely colorable and pretended claim is a fraud upon the real owner, and as such be extinguished.” Tn speaking of the principle upon which a court entertains a bill quia timet, Mr. Bispham in the seventh edition of his Principles of Equity, sec. 568, says: “ The principle upon which the court acts in such cases is that justice sometimes requires that a man shall not be compelled to have hanging over him, or his title, for an indefinite time, some claim or demand or liability, which, if enforced, would subject him to loss ; but that he is entitled to have the questions relating to his rights settled at once and forever, to have the claim against his rights immediately enforced, or to be presently made secure against any future liability.”

"We are clear that the bill filed by the plaintiff presents a case for equitable jurisdiction. The learned judge finds that “ the plaintiff acquired title to land in this county which he subsequently, by written agreement, contracted to convey to the National Mortar and Supply Company, which entered into and retains possession, but refused to comply with the agreement of sale on account of an outstanding adverse title in the defendant, and this bill is filed to have said title declared void.” It will, therefore, be observed that the plaintiff has title to the premises, that by an agreement he has sold the property to another who is in possession of it but refuses to accept the title sold him by reason of an outstanding adverse title, and that the adverse title is in the- defendant. These facts make it apparent that only a court of equity can furnish a complete and adequate remedy for the plaintiff. It is conceded that the defendant’s title is adverse and casts a cloud upon the plaintiff’s title. If the defendant, or anyone claiming under him, or anyone claiming adversely to the plaintiff’s title, was in possession of the premises, the plaintiff would be put to his ejectment. Here, however, as will be noticed, the defendant is not in possession of the premises, neither is the plaintiff in possession, and the party who. is in possession claims through and by virtue of the plaintiff’s title. Ejectment, therefore, will not give the plaintiff the remedy he desires and needs. He does not wish possession of the land nor to attack the title of the party in possession, but simply desires to convey a good title to his vendee, who refuses to accept a conveyance until the cloud which the defendant’s title casts is removed. Both the plaintiff and his vendee desire to complete the sale and have the title conveyed according to the agreement. It, therefore, becomes necessary that the plaintiff have removed from his title the cloud which the defendant’s title casts upon it, and his remedy is clearly within equitable jurisdiction.

It is further contended by the learned counsel of the defendant that the plaintiff cannot maintain a bill to quiet his title in a court of equity, but is required to proceed in the common pleas according to the provisions of the Act of May 25, 1893, P. L. 131. We will assume that the learned counsel means the Act of April 16, 1903, P. L. 212. 2 Purd. (13th ed.) 1304, which repealed the first section of the act of 1893, and was in force at the time this bill was filed. The first section of the act of 1903 provides as follows: “Whenever any person, not being in possession thereof, shall claim or have an apparent interest in or title to real estate, it shall be lawful for any person in possession thereof, claiming title to the same, to make application to the court of common pleas of the proper county, whereupon a rule shall be granted upon said person not in possession, to bring his or her action of ejectment within six months from the service of such rule upon him or her, or show cause why the same cannot be so brought.” The act then makes provision for the service and disposition of the rule, and directs that judgment shall be entered against the party served with the rule on his failure to appear and show cause why the ejectment cannot be brought. A moment’s consideration will show that the plaintiff cannot invoke the aid of this act to remove the cloud from his title or, as between him and the defendant, to have his rights to the real estate in question determined. It is, as will be seen, a jurisdictional prerequisite under this act that a party who seeks its assistance must be in possession of the real estate. “Any person in possession thereof” may obtain a rule upon a party claiming an adverse interest to appear and show cause why he should not bring an action of ejectment. A party out of possession has no standing to institute a proceeding under the act, for the obvious reason that he may maintain an action of ejectment at common law to assert his title against anyone in possession claiming adversely to him. This and prior kindred legislation was enacted for the purpose of providing a person in possession of real estate with a remedy for quieting his title, which did not exist at common law, by compelling an adverse claimant out of possession to bring his ejectment, and failing to do so, thereafter to be deprived of the right to bring the action and contest such person’s title to the premises. In the case at bar, the learned trial judge has found as a fact, and it is indisputable, that the plaintiff is not in possession of the premises. That is a jurisdictional fact which defeats the plaintiff’s right to proceed under the act of 1903. If he were in possession the act would apply and he could rule the defendant to bring his ejectment, but as he has neither the possession nor the right to the possession as against his vendee, the statutory remedy can afford him no relief.

The assignment of error is overruled, and the decree of the court below is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Vaughn, Appellant, v. Vaughn.
    April 1, 1907:

      Parent and child — Gift—Presumption—Evidence.
    As between parent and child there is no presumption of the invalidity of a voluntary gift and unless there is evidence of undue influence or of circumstances that give rise to a suspicion, the burden is not on the donee to show the fairness of the transaction.
    Argued Feb. 27, 1907.
    Appeal, No. 80, Jan. T., 1907, by plaintiff, from decree of O. P. Lackawanna Co., May T., 1905, No. 5, dismissing bill in equity in case of John Vaughn v. Daniel W. Vaughn and The South Scranton Building and Loan Association.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Bill in equity to declare void the assignment of a note. Before Kelly, J.
    The facts-appear by the opinion of the Supreme Court.

      Error-assigned was decree dismissing/the bill.

      S. B. Price, with him P. E. Kilcullen, for appellant.

      T. A. Donahoe, with him M. J. Donahoe, for appellee.
   Per Curiam,

The bill in this case was filed by an administrator to set aside the assignment of a note made by the decedent a few days before his death to his son. The averments of the bill are that the decedent because of sickness and the infirmities of age was unable to transact business, and that the assignment was procured by undue influence and fraud. Neither of these averments was sustained by the evidence. It was found by the learned judge that the decedent was not mentally weak when the assignment was made, but was of sound mind and capable of transacting business and fully understood the nature and character of his acts; that no confidential relations existed between him and his son, and that there was no evidence that he was in any way influenced to make the assignment or that it was not his voluntary act. As between parent and child there is no presumption of the invalidity of a voluntary gift and, unless there is evidence of undue influence or of circumstances that give rise to a suspicion, the burden is not on the donee to show the fairness of the transaction : Worrall’s Appeal, 110 Pa. 349; Simon v. Simon, 163 Pa. 292; Kleckner v. KLeckner, 212 Pa. 515.

The decree is affirmed at the cost of the appellant.


author: Mr. Justice Brown,

text:
    Cunningham, Appellant, v. Wanamaker.

      Contract — Sale—Rescission—W aiver.

    In an action of assumpsit to recover the price paid for two electric vehicles, it appeared that after the vehicles had been delivered to the plaintiff, and paid for, he found they were unsatisfactory, and so reported to the defendant. The latter requested him to ship them back, that they might be made satisfactory. They were sent back, and subsequently a test was made, which the plaintiff declared was unsatisfactory, and he demanded a return of his money which was refused. The vehicles remained in the hands of the defendant, and thereupon plaintiff addressed a letter to the defendant in which he stated that he had left with him the vehicles in question to sell for the plaintiff’s account and risk at a sum stated, and further assumed all risks in case of loss and damage to the vehicles by fire. Some months afterwards he again wrote to the defendant several letters telling him to sell the vehicles for the best price that could be got for them, and as quickly as possible. Subsequently the defendant notified plaintiff that he had an offer for the vehicles which was about one-third the price which plaintiff had paid for them. No response was made to this communication, and the vehicles continued to remain in defendant’s possession until three years after the original sale, when suit was brought to recover the purchase money. Held, that the plaintiff was not entitled to recover.
    Argued Jan. 9, 1907.
    Appeal, No. 220, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1904, No. 3,035, on verdict for defendant in case of Percy A. Cunningham v. John Wanamaker.
    Before Mttchell, C. J., Full, Brown, Mkstruzat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      April 15, 1907:
    Assumpsit to recover purchase money for two electric vehicles. Before Willson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant. _ Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      De Forrest Ballou, for appellant.

      Alex. Simpson, Jr., with him Wm. L. JJevin, for appellee.
   Opinion bt

Mr. Justice Brown,

In October, 1900, the appellant, wishing to procure two steam omnibuses, called at the store of the appellee and entered into negotiations for their purchase. On the twenty-third of that month a written proposition was submitted to him by the appellee to deliver them to him for $2,200 each “ as near sixty (60) days from receipt of this order as is possible,” and they were “ to be constructed in accordance with usual plan designed for such wagons.” This proposition was accepted by the appellant in writing on the same day it was made, and, in accordance with its terms, he paid one-third of the purchase money. On February 14, 1901, nearly four months afterwards, the vehicles reached Lewistown — the point to which they were to be shipped — with bill of lading attached for the balance of the purchase money, which the appellant paid. Whether they were built “ in accordance with the usual plan designed for such wagons ” does not appear, but it is clear from the testimony that they did not work satisfactorily. On the contrary, when the appellant attempted to operate them he was unable to do so, and, it may be assumed, on account of their defective construction. Before he received them, in a letter written by Joseph S. Bunting, the representative of the appellee with with whom he dealt, he was told that they were “ substantial and strong,” “ neater that any automobile ’bus ” that the writer had ever seen, and, mechanically, seemed to him to be almost perfect. Appellant notified the appellee of his inability to operate them, and, on April 6, 1901, the latter wrote him that he thought they could be put in satisfactory shape, and requested him to ship them to Philadelphia for the purpose of making them satisfactory. The omnibuses were immediately shipped to the appellee, and, in response to a'notice that they had been, put in shape and a request that he come and see them tested, the appellant went to Philadelphia and witnessed a test of them on May 16, 1901, which, according to his testimony, was most unsatisfactory, and he demanded a return of his money, which was refused.

The question in this case is not whether, under the foregoing facts, the appellant could have rescinded his contract and demanded a return of the money he had paid for the vehicles, but is whether what he subsequently did on May 16, 1901, amounted to his ratification of the contract and a release by him to the appellee from all liability. After the representative of the appellee upon whom the appellant had made the demand for the return of his money had refused to return it there was a further conversation between them, resulting in a written direction by the appellant to the appellee to sell the omnibuses for him. This direction was in the following form : “ I have to-day left at your automobile station my two steam ’buses for you to sell for my account and risk at §2,200 each. I assume all risks in case of lost or damage to my vehicle by fire.” The appellee not being able to sell at the price fixed, the appellant, by a letter enclosed in an envelope postmarked Lewistown, July 3, 1901, wrote Bunting as follows:

“ Dear Sir: — Sell ’buses as soon as you can, the best price you can get for them.” On July 8, 1901, the appellant again wrote to the representative of the appellee as follows : “ Enclosed find article signed. Mr. Bunting, get as much for these ’buses as you can and sell them as quick as possible. I am now out about two thousand on this job.” The article enclosed in the letter was as follows: “John "Wanamaker Automobile Station, 23rd and Walnut Streets. I have left at your automobile station my two steam ’buses for you to sell for my account and risk at the best price you can secure for them above $1,500 each. I assume all risks in case of loss or damage to my vehicle by fire. P. A. Cunningham, Residence, Lewistown. Date, July 8, 1901. To supersede my authorization of May 16, 1901.” On July 10, appellant again wrote Bunting, the following being a copy of his note: Dear Sir: — Do your best to get more than $1,500 for the ’buses, as I should think you could get four thousand ($4,000) for them; at any rate do what you can for me. Very respectfully, P. A. Cunningham.” In February, 1903, the appellee wired the appellant that an offer of $1,500 had been made for both ’buses. The telegram was followed by a letter confirming it and advising acceptance of the offer. Apparently no attention was paid to this, and in the following April the appellee notified the appellant that, as he had had the omnibuses on hand for almost two years, during which time two offers made for them had been submitted to him and refused, he would no longer keep the vehicles without charging storage. Nothing seems to have occurred after this until the institution of the suit on April 21, 1904.

Even if it be assumed that the appellant had, on May 16, 1901, a right to rescind the contract after the test made on that day, showing that the omnibuses would not work, it was incumbent upon him to exercise that right promptly within a reasonable time; and, under undisputed facts, what is a reasonable time is for the court: Learning v. Wise, 73 Pa. 173. The facts in this case are not in dispute. The defendant called no witnesses, and the oral testimony submitted by the plaintiff must be taken as true. It shows that on May 16,1901, he demanded a return of his money, and, if he had stopped when the return was refused, he might have stood upon his rescission of the contract and recovered what he had paid. But this we do not decide, because it is not a question in the case under the admitted facts. When he was told that his money would not be returned to him, instead of standing upon his right to have it returned, if he had such right, he, in writing, ratified the contract, treated the omnibuses as his own property, and gave specific direction that they be sold by the appellee for him. With commendable frankness he states that he signed the paper of May 16, 1901, “ so I couldn’t come back on him.” He repeats this further on in his testimony : I say on the 16th of May I went in — after we broke down I went in and demanded my money, and he refused it and simply told me he would not give me the money. That was all there was of it. He said he would sell the ’buses, and he produced a paper and told me to sign that and he would sell them. He said if I would sign it for the purpose of getting my money — if they would be able to sell them, I should sign off so I could not come back on them, and I signed.” The paper signed by him is, on its face, a distinct direction to the appellee to sell the omnibuses for him, and with his unqualified admission that he signed it that he might not have recourse to the appellee, taken in connection with the papers of July 3, 8 and 10, repeating the direction to sell for him, a court ought not to be asked to say that the paper is not effectual for the very purpose for which it was admittedly given. The only error assigned is the instruction of the learned trial judge to the jury that the effect of these papers was an assumption of ownership of the automobiles by the appellant and a waiver of any right which he might have previously had to compel the appellee to return his money. Any other instruction would have been error, and, if the appellant cannot now recover, it is because he has placed himself in a position precluding recovery.

The assignment is overruled and the judgment affirmed.


text:
    Hallowell v. Williams, Appellant.

      Receivers — Corporations—Executory contract — Equitable defense.

    In an action against a receiver of a corporation to recover for loss occasioned by the inability of the receiver to complete deliveries, through no fault of his own, on an executory contract for the future delivery of goods, with notice of such inability to the purchaser, an affidavit of defense is insufficient to prevent judgment, which fails to disclose equities in favor of other parties superior to the equities of the purchaser; and this is especially so where the receiver has not applied as provided by the act of congress of August 13, 1888, to the federal court, which appointed him, for equitable relief.
    Argued Jan. 16, 1907.
    Appeal, No. 229, Jan. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1905, No. 3,112, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Eli B. Hallowell and Ralph Souder, trading as Eli B. Hallowell & Company, v. Horace G. Williams, receiver of Beaver Creek Lumber Company.
    April 15, 1907:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a breach of contract of sale.
    Buie for judgment for want of a sufficient affidavit of defense.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Albert B. Weimer, with him Frederick M. Leonard, for appellant.
    As the contract in this case was executory, the receiver had a right to stop further deliveries of lumber as soon as he found that such deliveries would be unfair and burdensome to the trust estate: Vanderbilt v. Central R. R. Co., 43 N. J. Eq. 669 (12 Atl. Repr. 188); Vanderbilt v. Little, 51 N. J. Eq. 289 (26 Atl. Repr. 1025); Griffith v. Blackwater Boom, etc., Co., 46 W. Va. 56 (33 S. E. Repr. 125).

      Frank P. Prichard, for appellees.
    It is submitted that there is no principle of law which exempts the receiver, carrying on a business, from the ordinary measure of damages for breach of an executory and partially performed contract. The defendant nowhere in his affidavit states what the amount of the estate is, nor how many creditors there are, or any other facts, which even if the contract had been unreasonable or improvident, would give rise to equities of creditors.
   Opinion by

Mr. Justice Brown,

In determining whether this judgment for want of a sufficient affidavit of defense was properly entered, we first turn to the averments in plaintiffs’ statement. The defendant was sued as the receiver of the Beaver Creek Lumber Company. He was appointed receiver of this company by the circuit courts of the United States, for the northern district of West Virginia and the eastern district of Pennsylvania. On December 19, 1904, he entered into a contract with the appellees to sell them 1,000,000 feet of hemlock lumber at prices fixed in their proposal to him to furnish it to them. In accepting this proposal, on the same day it was made, he acknowledged the receipt of $2,000 advanced to him on account. Subsequently the appellees advanced $4,000 more to Mm and received shipments of the lumber contracted for. Nearly six months after the contract was entered into, the appellant notified the appellees that he could not deliver any more lumber to them, having at that time delivered to them a little more than one-third of what he had agreed to furnish them. In admitting his default and averring his inability to furnish the balance of the lumber, he, in writing, unqualifiedly, unambiguously and without condition, authorized the appellees to purchase from other parties 639,825 feet, the quantity which they still were entitled to receive under the contract. The statement further avers that in pursuance of this direction by the appellant, or by his agreement that they should do so, the appellees purchased the balance of the lumber which he had failed to deliver to them, and for the excess over the contract price which they were to pay hirn for it, he is indebted to them. This indebtedness is the principal item set out in the statement, and as to it nothing in the affidavit of defense can be found that would avail against judgment if the suit were against the appellant as an individual, on a contract entered into by him in that capacity. He does aver that be signed the authority authorizing the appellees to purchase the lumber from other parties under a distinct understanding and agreement that the authorization would be used to cover only such lumber as the plaintiffs were obliged to purchase up to the quantity wMch be bad failed to furnish to fill existing orders which they had from their customers and could not induce them to cancel, and that they would induce their customers to cancel as many of the existing orders as possible. As stated, the authority to the appellees to purchase was unqualified, and it is not averred that any condition was omitted from it by accident or mistake. But a further answer to this averment is that, without such authority from the appellant, the appellees had a right, under their contract, to purchase the lumber ivhich he was not able to furnish to them, and he would be liable for any loss sustained by them in purchasing from others.

The second item for which the court directed judgment was $244.07, for excess freight due under the agreement set forth in plaintiffs’ statement of claim. There is an averment that it was agreed between the plaintiffs and defendant at the time of the making of the contract, that the lumber was to average in weight three pounds to the foot, and that the defendant would pay the freight on all excess weight over that amount. This agreement is not denied in the affidavit of defense, nor is it averred that the amount claimed under it is incorrect, if such agreement was made. There is a denial of any liability of the appellant on this item, followed by an averment that the written contract did not call for lumber of any specific weight, but only that the driest stock should be shipped and that such stock had been shipped. But, as stated, there is no denial of the oral agreement set forth in the statement.

Counsel for appellant do not contend that the affidavit of defense, if this suit were against him as an individual, would be sufficient, but insist that he cannot be held as receiver for the nonperformance of an executory contract if the same was found by him to be “ unfair and burdensome to the trust estate.” This is a purely equitable defense. Whether a receiver may make it in a proper case, is not the question to be determined, for, even if he may, nothing can be discovered in this affidavit justifying it. The contract entered into with the appellees was within the express powers conferred upon the appellant by the courts of the United States. This he admits, and he further admits that at the time it was entered into it “was thoroughly valid, provident and reasonable.” In the second paragraph of the affidavit he admits that the hemlock lumber which he had on hand in the yard, and the logs and standing timber when cut into lumber would have produced a very large amount of lumber, viz.: an amount estimated to be considerably in excess of 1,000,000 feet.” The order of the' court to him was, such receiver shall sell said lumber to the best advantage, either at private or public sale, and shall haul and saw into lumber the trees now cut and still remaining in the woods upon said land, converting the same into lumber, and shall likewise sell it.” A further order to him was to operate, the mill of the company for the. purpose of sawing and marketing whatever timber and lumber may now be upon the mill yard, and the logs in the ponds of the said defendant, the Beaver Creek Lumber Company, or upon the lands, whether cut or uncut.”

The affidavit of defense does not even aver that the Beaver Creek Lumber Company is insolvent, and it would hardly be pretended that this defense ought to avail for stockholders any more than if the corporation itself, and not through its receiver, had made the contract with the appellees. But, conceding the insolvency of the company, whose equities superior to the legal rights of the appellees under their contract with the receiver ought to be protected at their expense ? As to this, the affidavit of defense is silent. Nothing appears in it showing that the allowance of this legal claim of the appellees will interfere with any equities that ought to be protected by denying them their judgment. It cannot, therefore, be withheld from them.

The act of congress of August 13, 1888, provides : “ Every receiver or manager of any property, appointed by any court of the United States, may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice.” Under this act the receiver was sued in respect of “ an act or transaction of his in carrying on the business connected with ” the property under his control. The suit against him was, from the time it was instituted, subject to the general equity jurisdiction of the court in which he was appointed; but that court has not interfered with it. If the contract with the appellees ought to have been annulled, either of the courts of the United States in which the appellant was appointed receiver, might, for good cause shown, have declared it annulled, and the suit in the state court could have been stayed; but no application was made by the appellant to either of those courts for relief from his contract, and while he may not have been bound to make such application, and may set up an equitable defense in our own courts recognizing such defenses in proceedings at law, it would have been better had he asked for relief from the courts appointing him, if he was entitled to be relieved from his contract. As no equitable defense that ought to be recognized appears in the affidavit of defense, the judgment for its insufficiency is affirmed.


text:
    Chestnut Street Trust & Saving Fund Company v. Hart, Appellant.

      Promissory notes — Accommodation notes — Trust company — Defenses— Payments — Appropriation of payments.

    Where the trust officer of a trust company, on a small salary, makes a promissory note for a large amount, payable to the company, as an accommodation for the president of the company, on the assurance by the president that he would never be asked to pay it, such note will be considered as an ordinary accommodation note, and the maker will be liable on it, unless he shows that the trust company actually agreed that he should not be held upon it. In such a case the discrepancy between the maker’s salary and the amount of the note is immaterial; and it is also immaterial that the president continued to acknowledge his liability on the note to the company, and that the company continued to look to him for payment.
    In such a case, where the president, after the insolvency of the trust company brought about by his own appropriation of its funds, assigns to the assignees of the company a fund without directing any appropriation to any particular item or items of his indebtedness, the assignees have a right to apply the fund to any claims against the president, and the fact that the assignees applied the fund to the payment of debts other than the note in question, cannot be set up as a defense by the accommodation maker of the note.
    Where a debtor makes no appropriation of a payment, the creditor upon receiving payment, may apply it to that item of debt which to him seems the least secure.
    Argued Jan. 25, 1907.
    Appeal, No. 205, Jan. T., 1905, by defendant, from order of C. P. No. 2, Pbila. Co., March T., 1903, No. 1,381, dismissing exceptions to report of referee in case of The Chestnut Street Trust & Saving Fund Company to use of George H. Earle, Jr., and Richard T. Cook, Assignees for benefit of creditors, v. Henry G. Hart.
    Before Mitchell, C. J., Fell, Beown, Mesteezat, Pottee and Stewaet, JJ.
    Affirmed.
    Exceptions to report of James W. Laws, Esq., referee.
    The opinion of the Supreme Court states the case.

      Error assigned, was in dismissing exceptions to report of referee.

      April 15, 1907:

      J. H. Gendell, for appellant.
    Hart incured no personal liability on the note. Where an agent contracts for a known principal, by any form of contract, except by deed when he must act in the name of his principal, the principal only is liable, and the agent is not: Wanner v. Emanuel’s Church, 174 Pa. 466; Roberts v. Austin, 5 Whart. 313; Sharp v. Emmet, 5 Whart. 288.
    The debt represented by this note has been paid in full: Berghaus v. Alter, 9 Watts, 386; Harker v. Conrad, 12 S. & R. 301; Crawford v. Bent, 21 W. N. C. 185; Black v. Robinson, 13 W. N. C. 172; Cowperth waite v. Sheffield, 3 N. T. Superior Ct. 416; Thompson v. Hudson, L. R., 6 Ch. App. Cases, 320; Blackstone Bank v. Hill, 27 Mass. 129; Bodenham v. Purchas, 2 B. & Ald. 39; Perris v. Roberts, 1 Bern. 34.

      P. F. Rothermel, with him John G. Johnson, for appellee.
    The claim that the defendant is not liable upon the note is without merit: Gunster v. Scranton Illuminating Heat, etc., Co., 181 Pa. 327; United Security Life Ins., etc., Co. v. Central Nat. Bank, 185 Pa. 586.
    The» payment was properly applied to the debt which was least secure: Richard’s Est., 185 Pa. 155; Johnson’s App., 37 Pa. 268; Smith v. Brooke, 49 Pa. 147; Foster v. McGraw, 64 Pa. 464; Creasy v. Emanuel Ref. Church, 1 Pa. Superior Ct. 372; Pierce v. Sweet, 33 Pa. 151.
   Opinion by

Mr. Justice Brown,

On March 22, 1892, The Chestnut Street Trust and Saving Fund Company, of which William M. Singerley was president, lent him $50,000 on his promissory note, taking as collateral security for its payment an assignment of a bond and mortgage for $100,000, given by him to H. G. Hart. They were executed to secure the payment of this note, but, instead of being given directly to the trust company, were given to Hart, its title officer. This was evidently a device of Singerley’s to avoid the record evidence of his indebtedness to the institution of which he was president. On the maturity of the note, March 22, 1893, it was renewed by Singerley for another year. On March 22, 1894, when the renewal matured, he continued the loan by substituting for his own note that of H. G. Hart, the appellant. From that time the loan was carried on the books of the company against Hart, although the entries show it was the same one that had been made to Singerley. Hart’s note was renewed in March, 1895, for a year, and, .when it matured, he renewed it for six months. Thereafter he renewed it every six months, the last renewal coming due March 23, 1898, and it is the note now in suit. The interest upon Hart’s original note and all of the renewals, except the.one in suit, was paid by Singerley. The change in the name of the maker of the note from Singerley to Hart was made at' the instance of Singerlej^, that his name might not appear as being too large a borrower on the books of the company. This fact was known to its secretary and treasurer from the time the note was given until it executed to the appellees a deed of assignment for the benefit of creditors. Payments have been received on account of the principal of Hart’s note from the sale of the real estate on which the mortgage was given to him, reducing the amount to $34,450.37, with, interest from October 4, 1901. Suit having been brought for this balance, the case was referred, under the Act of May 14, 1874, P. L. 166, and upon the report of the referee, judgment was entered for the amount claimed by the appellees.

Four defenses were set up in the court below : (1) The defendant acted as the agent of William M. Singerley, and the plaintiffs, having pursued him for the payment of the debt, have acknowledged the agency and are restricted to the principal for payment; (2) there was an understanding between the irust company and the defendant that either he was not to be held liable in any event upon the note, or that his liability was to be restricted to the collateral pledged ; (3) the defendant received no consideration for the note; and (4) the note has been paid in the eye of the law, although not actually paid, on account of an erroneous application by the appellees of assets of William M. Singerley to the payment of other debts instead of to the one in suit.

As to the first defense it is sufficient to say that the finding of the referee is that Hart was an accommodation maker of the note and did not sign it as agent or surety for Singerley. The only witness as to the circumstances.attending the making of the note was Hart himself, and there is nothing in his testimony to show that he signed it as agent, but, on the contrary no other interpretation can be put upon what he says than that he signed it as an accommodation maker for Singerley. His own words are: “ Mr. Singerley, for his own purposes, asked me to make the note.” As to the second defense there is no evidence of any understanding or agreement between the trust company and the appellant that he was not to bo held liable upon the note, or that his liability was restricted to the collateral pledged. He does testify that Singerley stated to him at the time he asked him to sign the note, “ Of course, Hart, you understand this is my debt. You will never be asked to pay it;” but he does not testify that the trust company ever agreed he should not be held upon it. He relied upon Singerley to relieve him from liability, for he says, “ Knowing Mr. Singerley as a wealthy man, such a thing as my ever having to pay the note, or ever being asked to pay it, never occurred to me.” He further said that ho acted upon the faith of Singerley’s statement that he would never be asked to pay the note. His confidence, unfortunately for him, was misplaced, as it often is by an accommodation maker of a note; but the holder takes it on the promise of the maker to pay it, and it is no defense against the holder that he for whose accommodation it was made will not or cannot pay it. It was, as the appellant says, Singerley’s debt, and was so viewed by the trust company, but there is nothing in his testimony to show that the company, or anyone authorized to speak for it, ever said to him that his liability would in any manner be different from that of the ordinary accommodation maker. He testified that at the time he gave the note he was an employee of the institution, receiving a salary of but $1,300 a year, and was worth but about $2,000, and from this his counsel argue for him that it is not conceivable that the company accepted his obligation for $50,000 with any intention or expectation of holding him on it. In the absence of any valid agreement that he was not to be held, or of legal reasons why his liability did not attach when he gave it, the law cannot countenance as a defense the theory of the improbability of the trust company’s acceptance of the note as a valid and enforcible obligation.

He did not become accommodation maker at the instance of the trust company, and for its own purposes. If he had, he could now successfully defend : Tasker’s Estate, 182 Pa. 122. He gave the note for the accommodation of one of its customers, to whom it surrendered his note when it received appellant’s in its place, which was an absolute promise in writing that he would pay the indebtedness of his friend. That Singerley continued to acknowledge his liability to the institution, and that it continued to look to him for payment was only in probable relief of the appellant, and not in discharge of his absolute liability, voluntarily assumed. He lent his credit to his friend, and his friend’s creditor accepted it. This is the whole case boiled down. It is a hard one, as all .such cases are, but we can find nothing in it to relieve the appellant from the rule of the law that, “ he who chooses to put himself in the front of a negotiable instrument for the benefit of his friend, must abide the consequences: ” Lord v. Ocean Bank, 20 Pa. 384. Under the circumstances his defense of no consideration cannot avail him.

On February 10, 1898, Singerley being deeply involved financially,executed to George H. Earle, Jr., receiver of The Chestnut Street National Bank, as collateral security for his indebtedness to it, an assignment, subject to prior assignments, of all his interest in the stock and bonds of the Record Publishing Company. On the same day, subject to the assignment made to the receiver, he assigned to the appellees the balance of his interest in these Record securities, to secure his indebtedness to the trust company. He died February 27, 1898, hopelessly insolvent. In a proceeding in the circuit court of the United States for the' eastern district of Pennsylvania, instituted for the purpose of having the pledged securities sold, the amount due to the appellees was fixed in the decree ordering their sale. The indebtedness, included the balance due upon this note, and it was decreed that the payment of Singerley’s debts, including this one, but not specially mentioning it, should be paid out of the proceeds of the sale of the securities. They were sold, and after paying to the holders of the prior assignments the indebtedness due to them, the sum of $552,505.95 was paid to the appellees, the assignees of the trust company. When Singerley assigned to them the balance of his interest in the securities, he gave no direction as to the appropriation of their proceeds. He might have done so, and his direction that they should be appropriated to any particular indebtedness could not have been disregarded. When he failed to direct an appropriation to any particular item or items of indebtedness, his creditor, through its assignees, had the right to apply the proceeds to any claim against him, and upon their failure to do so, the law would make the application in their interest. The payment to them of the balance of the proceeds of the sale of the stock and bonds must be regarded as having been made by Singerley himself, for the proceeding in the circuit court of the United States was not to compel him to pay his debts, nor to distribute the proceeds of the sale of the stock to any particular items of indebtedness. It was to ascertain the amounts of the throe respective interests in them: (1) those who had special pledges of them; (2) the receiver of The Chestnut Street National Bank, as trustee for the creditors of the bank; and (3) the appellees, trustees for the creditors of the trust company. In the decree ordering the sale of the securities, the amount due to each of these three interests was fixed. The creditors of the first class were paid in full, the receiver of the bank was paid in full, and the balance that remained was paid to the appellees, just as if Singerley had paid it himself. By the decree of the circuit court there was no distribution to any particular items of indebtedness due by Singerley to the appellees, but it was simply determined that thej^ should get the balance remaining after the sums found due to the holders of the prior assignments had been paid, and the sum awarded to the appellees •was received by them, just as if they had received it directly from Singerley. They were, therefore, at liberty to distribute it as if they themselves had sold the stock and there had been no intervention of the court. This being the case, Hart can make no objection to any appropriation of the proceeds made by the appellees, so long as they were appropriated to Singerley’s indebtedness to the trust company, for Singerley himself could make no objection if he were living. When he assigned the collateral, without specifying what appropriation should be made of the proceeds of it, the appropriation made by the creditor could not be questioned by him: Logan v. Mason, 6 W. & S. 9. In the comparatively recent case of Risher v. Risher, 194 Pa. 164, a debtor assigned to creditors his interest in a mortgage, the preamble reciting that he was indebted to them in a sum of money exceeding his interest in the mortgage. The express purpose of the assignment was to secure to the assignees payment of his indebtedness to them, but he indicated in his assignment no purpose to appropriate the amount assigned by him to any particular item or items of his indebtedness. The creditors appropriated it to certain items of his indebtedness, and subsequently he objected to the appropriation as made by them, and we said, in sustaining the court below in its ruling that the appropriation made by the creditors could not be questioned by the debtor: The rule in this state, as held by the referee and court below, is, that a debtor may appropriate his payments as he sees fit at the time he makes them ; if he makes none, the creditor can make such appropriation on one or more of several obligations; if neither, at the time of payment, make such appropriation, then the law will make one to the debts oldest in point of time: Souder v. Schechterly, 91 Pa. 83; Pardee v. Markle, 111 Pa. 518, and many other cases. Where the debtor makes no appropriation, and the creditor does so, the latter may apply it to that item of debt which to him seems least secure: Reed v. Ward, 22 Pa. 144; Hollister v. Davis, 51 Pa. 508.” This is just the situation here, and it does not lie in the mouth of the appellant to question the appropriation made by the appellees.

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


author: Mr. Chief Justice Mitchell,

text:
    Commonwealth v. Eyler, Appellant.

      Criminal law — Murder—Intoxication—Witnesses—Opinions of non-expert witnesses.

    In a prosecution for homicide where the killing is admitted and the defense is intoxication, the only issue is the degree of guilt and that depends on the degree of intoxication.
    Intoxication is a matter of common observation on which the opinions of nonexperts are admissible on the trial of an indictment for murder where the defense set up is that of intoxication.
    The effect of drink differs so widely in degree and visible manifestations that mere descriptive language is inadequate to convey to others the subtler gradations of evidence on which the observer’s judgment is really formed. A man may be quiet and inert under circumstances that usually produce activity, and it may be because he is overcome with fatigue, or sleep, or is sodden with liquor. The outward conduct and therefore the verbal description will be closely similar in either case. So, on the other hand, his manifestations of excessive or noisy activity may be because he is excited, or angry or fighting drunk. Without the observer’s opinion as to the producing cause a mere description which would almost always, from the inadequacy of language, lack some of the subtler details would afford a very uncertain basis for judgment of the actual condition. Hence it is proper in such cases that a witness who has actual knowledge and observation of an occurrence should be allowed to supplement his description by his opinion.
    Argued March 18, 1907.
    Appeal, No. 79, Jan. T., 1907, by defendant, from judgment of O. & T. Adams Co., Aug. T., 1906, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. William Eyler.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, J J.
    Affirmed.
    Indictment for murder. Before Swope, P. J.
    The opinion of the Supreme Court states the case.
    Verdict of guilty of murder of the first degree.

      Errors assigned among others were in the admission of the opinion of nonexpert witnesses as to the degree of intoxication.

      Wm. Hersh, for appellant.
    Opinions of nonexpert witnesses are inadmissible until they have first stated facts upon which to base such opinions — such as opportunities of observation, acquaintance with the subject-matter, and means of expressing knowledge: Elcessor v. Elcessor, 146 Pa. 359; Com. v. Cressinger, 193 Pa. 326; Shaver v. McCarthy, 110 Pa. 339; Water Co. v. Stewartson, 96 Pa. 436; Bank v. Wirebach, 106 Pa. 37; Aid Society v. O’Hara, 120 Pa. 256; Com. v. Wireback, 190 Pa. 138.
    The facts must be such as to form a fair basis for the opinions proposed to be given. When the facts themselves are inconclusive and of such neutral character as to be consistent with one condition or the other, they cannot be made a basis of an opinion. In other words, the facts must be such as will justify the conclusion that the opinion is something more than mere guesswork: Bank v. Wirebach, 106 Pa. 37; Elcessor v. Elcessor, 146 Pa. 359; Kenworthy v. Williams, 5 Ind. 375; Real v. People, 42 N. Y. 270; Eggers v. Eggers, 57 Ind. 461; Water Co. v. Stewartson, 96 Pa. 436; Com. v. Wireback, 190 Pa. 138.
    April 15, 1907:

      S. D. Keith, district attorney, and W. C. Sheely, for appellee, were not heard.
   Opinion by

Mr. Chief Justice Mitchell,

The killing and the manner and circumstances of it, including the weapon used, were admitted by the prisoner, appellant. The defense was intoxication and it was conceded by the commonwealth that the prisoner had been drinking. The only issue, therefore, was the degree of guilt, and that depended on the degree of intoxication.

The law as to the various grades of homicide, murder with its distinction of degrees and manslaughter, was fully and accurately explained to the jury, and then the law as to intoxication, that it is not an excuse for crime, but that when it is of such degree as to render the prisoner incapable of deliberation or premeditation, or even of the formation of a specific intent, it may reduce the grade of the offense. All this ivas carefully explained to the jury and its application pointed out in a detailed and elaborate charge, in which we find no error, notwithstanding the numerous assignments. The evidence contained all the elements of murder of either degree, and if the jury took the view unfavorable, to the prisoner it was not through any errors of the court.

The only matter assigned as error which it is worth while to notice specially, is the admission of the opinions of witnesses as to the degree of intoxication of the prisoner without, as it is .alleged requiring a sufficient preliminary statement by them of the facts on which their opinions were based.

This line of testimony as to the intoxication of the prisoner was opened by the defense in its cross-examination of the commonwealth’s witnesses. The prosecution objected, but the testimony was admitted by the court for its presumed bearing on the corpus delicti. The subsequent course of the trial is thus stated by the learned, judge in his opinion refusing a new trial. “The defense also called, a number of witnesses on the same question, both before and immediately after the assault, who gave it as their opinion that the defendant was under the influence of liquor; that he was drunk. Some of those witnesses had a better foundation for their opinion than others, but the whole was left to the jury for their judgment and determination.

“ In rebuttal the witnesses for the commonwealth but followed in the wake of the witnesses for the defense. No opinion as to the defendant’s intoxication was given, except as it was grounded on what was seen and noticed of the defendant at the time, affording, in the judgment of the court, sufficient opportunity for observation and inference.” It would be sufficient in regard to the assignments of error on this point, to say that the objection now made was not made to the court at the trial. When the commonwealth’s witnesses were asked the question the only objection made was that it “ was not proper rebuttal,” though after the testimony had been given the defense objected “ to all the testimony on the part of the commonwealth as to the sobriety, of the defendant as incompetent, immaterial, inadmissible and not proper rebuttal.” There was no motion to strike out the testimony, and the objection was clearly too vague and too general to be sustained.

But even' if it had been in proper time and proper form it could not have prevailed. The rule as to the admissibility of opinions of nonexpert witnesses was settled in the leading case of Graham v. Penna. Co., 139 Pa. 119. “Where mere descriptive language is inadequate to convey to the jury the precise facts or their bearing on the issue, the description by the witness must of necessity be allowed to be supplemented by his opinion in order to put the jury in position to make the final decision of the fact,” and quoting from Com. v. Sturtivant, 117 Mass. 122, “ the exception includes the evidence of common observers testifying to the results of their observations made at the time, in regard to common appearances or facts, and a condition of things which cannot be reproduced and ¡nade palpable to a jury.”

In Auberle v. McKeesport, 179 Pa. 321, it was said that the rule of Graham v. Penna. Co., “ has not been departed from. Whether its application to existing facts in subsequent cases has always been correct is a matter on which opinions may naturally differ, because as said in that case, quoting Chief Justice Shaw in New England Glass Co. v. Lovell, 61 Mass. 319, there is extreme difficulty in laying down any rule precise enough for practical application, and the only proper course is to keep the principle steadily in view and apply it according to the circumstances of each case.”

In Graham v. Penna. Co. it is said “in several classes of questions the line between the witness’s judgment or opinion and his affirmation of a fact, is so indistinct that it cannot be marked out in practice. Such are questions of identity of persons or things, of the lapse of time, of comparative shape or color or sound, of expression and through it of meaning, etc. In all of these, however positively the witness may affirm facts what he says is after all largely his opinion, but so blended with knowledge and recollection that the line where opinion ends and fact begins cannot be distinguished.”

In this class must certainly be included the question of intoxication. The effects of drink differ so widely in degree and visible manifestations that mere descriptive language is inadequate to convey to others the subtler gradations of evidence on which the observer’s judgment is really formed. A man may be quiet and inert under circumstances that usually produce activity, and it may be because he is overcome with fatigue, or sleep, or is sodden with’ liquor. The outward conduct and, therefore, the verbal description, will be closely similar in either case. So, on the other hand, his manifestations of excessive or noisy activity may be because he is excited, or angry or fighting drunk. Without the observer’s opinion as to the producing cause a mere description which would almost always, from the inadequacy of language, lack some of the subtler details would afford a very uncertain basis for judgment of the actual condition. J-Ience it is proper in such cases that a witness who has actual knowledge and observation of an occurrence should be allowed to supplement his description by his opinion.

Of course actual knowledge and' observation on the part of the witness are the essential basis of the reception of his opinion, and in the usual and regular course such facts must be first proved as a foundation, in the present case it appears that one at least of the witnesses was asked his opinion without the ordinary preliminary inquiry into his means and opportunity of knowledge. But, as already said, this objection was not made at the time. It was apparently clear to everybody that he had been present, and that fact was brought out in full on the cross-examination. No witness was allowed to give an opinion who did not possess the requisite personal knowledge of the facts.

The precise point that intoxication is a matter of common observation on which the opinions of nonexperts are admissible does not seem to have been expressly passed upon by this court, probably because it has never boon seriously or formally challenged. But all the analogies, including the far more serious one of insanity, point to the reception of such opinions.

In other states the authorities are uniform. In People v. Eastwood, 14 N. Y. 562 (1856) the court of appeals of New York said, “a child may answer whether a man whom it has seen was drunk or sober; it does not require science or opinion to answer the question, but observation merely ; but the child could not probably describe the conduct of the man so that from its description others could decide the question. Whether a person is drunk or sober, or how far he was affected by intoxication is better determined by the direct answer of those who have seen him than by their description of his conduct.”

“ A witness was allowed to state that the plaintiff was intoxicated. This was objected to as being the expression of the opinion of a witness. ... In a certain sense a vast deal of testimony is but statements of opinion. But it is not opinion in an objectionable sense. It is everyday practice for witnesses to swear to such facts as the quantity, weight, size and dimensions of a thing, to heat and cold, age, sickness and health and many other matters of that kind. In such cases witnesses do not express an opinion founded on hearsay or the judgment of other men. It is not an opinion based upon facts recited and sworn to by other witnesses. It is their own judgment, based upon facts within their own observation. It is, so far as such a thing can be, knowledge of their own. It is an opinion which combines many facts without specifying them. It has been described as ‘an abbreviation of facts,’ a ‘shorthand rendering of facts.’ It is an inference equivalent to a specification of the facts. The witness in effect describes the facts when he. gives his opinion. It is his way of stating them. Such testimony is admitted from' necessity. A witness can seldom give in detail all the points and particles which go to make up his belief, but he can characterize them: ” Stacy v. Portland Publishing Co., 68 Me. 279.

“ Whether a person is drunk is a question which a person not an expert is competent to answer, as this is something which may be fairly considered to be a matter of common knowledge:” Burt v. Burt, 168 Mass. 204. “The witnesses were rightly allowed to testify whether the plaintiff was intoxicated. It was not a matter of opinion any more than questions of distance, size, color, weight, identity, age and many other similar matters are: ” Edwards v. Worcester, 172 Mass. 104.

“Under proper circumstances a common witness may testify directly as to sanity .... and whether a person was drunk or sober: ” Gallagher v. The People, 120 Ill. 179.

And see State v. Huxford, 47 Iowa, 16; Hardy v. Merrill, 56 N. H. 227; Sydleman v. Beckwith, 43 Conn. 9; Choice v. State, 31 Ga. 424 (467) and Elam v. State, 25 Ala. 53.

Judgment affirmed and record remitted for purpose of execution.


author: Mr. Justice Fell,

text:
    Rebman, Appellant, v. General Accident Insurance Company.

      Insurance — Accident insurance — Voluntary exposure to danger — Jumping on moving train.

    A provision in an accident insurance policy that the policy should not apply where death or disability resulted “from voluntary exposure to unnecessary danger,” applies whenever the insured is injured in a manner that should have been anticipated while voluntarily doing something that ordinary prudence would forbid.
    An attempt by a man sixty-six years of age, weighing 184 pounds, with an umbrella under his arm, to get upon a train running at the rate of six or eight miles an hour, is such a “voluntary exposure to unnecessary danger” as will relieve the insurance company from liability for his death resulting from the attempt to board the train. In such a case the fact that the insured may have believed that the train would stop at the station where he attempted to board it, is immaterial.
    Mestrezat and Stewart, JJ., dissent.
    Argued Oct. 26, 1906.
    Appeal, No. 105, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1903, No. 132, refusing to take off nonsuit in case of Catherine Rebman, Administratrix of the Estate of Mary W. Rebman, deceased, v. The General Accident Insurance Company of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusing to take off nonsuit.

      Willis F. McCook, for appellant.
    The case was for the jury: Boulfrois v. Traction Co., 210 Pa. 263; Keene v. Accident Assn., 161 Mass. 149 (36 N. E. Repr. 891); Irwin v. Accident, etc., Assn., 127 Mich. 630 (86 N. W. Repr. 1036); Travelers’ Ins. Co. v. Mitchell, 47 U. S. App. 260 (78 Fed. Repr. 924); Chaplin v. Ry. Pass. Assurance Co., 6 N. Y. Sup. Ct. 71; Columbia Accident Co. v. Sanford, 50 Ill. App. 424; Schneider v. Provident Life Ins. Co., 24 Wis. 28; Eppendorf v. Brooklyn City, etc., R. R. Co., 69 N. Y. 196; Fidelity & Casualty Co. v. Sittig, 79 Ill. App. 245; Anthony v. Mercantile Mut. Accident Assn., 162 Mass. 354 (38 N. E. Repr. 973).

      Wm. W. Wishart, for appellee.
    The clause “voluntary exposure to unnecessary danger ” has been construed in the following cases: Burkhard v. Travellers’ Ins. Co., 102 Pa. 262; Sawtelle v. Ry. Pass. Assurance Co., 15 Blatch. 216; De Loy v. Ins. Co., 171 Pa. 1; Smith v. Mut. Accident Assn. 104 Mich. 634 (62 N. W. Repr. 990); Cornish v. Accident Ins. Co. L. R., 23 Q. B. Div. 453; Tuttle v. Ins. Co., 134 Mass. 175.

      April 22, 1907:
    We submit that the case of Small v. Travellers’ Protective Association, of America, 45 S. E. Repr. 706, rules the case at bar. See also Roul v. Ry. Co., 85 Ga. 197 (11 S. E. Repr. 558); Bacon, v. D., L. & W. R. R. Co., 143 Pa. 14.
    There are numerous cases in Pennsylvania which support this rule. Among these may be cited: Railroad Co. v. Aspell, 23 Pa. 147; N. Y., etc., R. R. Co. v. Enches, 127 Pa. 316; Boulfrois v. United Traction Co., 210 Pa. 263; Tobin v. Penna. R. R. Co., 211 Pa. 457.
   Opinion by

Mr. Justice Fell,

This action was on an accident insurance policy which contained among others these provisions: “ Nor does this contract extend to nor insure against death or any kind of disablement resulting wholly or partly, directly or indirectly, from voluntary exposure to unnecessary danger.” The certificate holder is required to use all due diligence for personal safety and protection.”

The insured had frequently taken the 1:02 p. m. train of the Pittsburg & Lake Erie Railroad at a station near his home for Pittsburg. Several days before the accident that resulted in his death, orders had been given not to take on passengers at this station, but mail was received and discharged there. The insured did not know of this order. He went to the station expecting the train to stop. He saw it approach the station with steam off and at reduced speed. While it was running six or eight miles an hour, he took hold of the rail at the front platform of the last car with his left hand, placed his left foot on the lower step, and-was in the act of raising his body when his hold was broken and he fell backward and was killed. He was nearly sixty-six years of age; five feet five and three-quarter inches high ; and weighed 184 pounds. He had an umbrella under his left arm. When he seized the hand rail of the car with his left hand, the train was passing to his right. He did not move with it, but stepped directly on, as a person would step on a standing car. The speed of the train was accelerated about the time he took hold of the rail, but the contention that he was thrown off by a sudden jerk or jar of the train after he was safely on the step is not sustained by the testimony. He did not succeed in getting on the step, but was in the act of doing so with his knee bent and his body inclined toward the car, when he fell.

Under this state of facts, was a judgment of nonsuit properly entered! The question is not strictly whether the insured was negligent, but whether he exposed himself to a risk not covered by the policy. The words “voluntary exposure to unnecessary danger,” in the clause exempting from liability, have been construed by this court, and generally, as an intentional and unnecessary exposure to danger so obvious that a prudent person exercising reasonable foresight, would have avoided it: Burkhard v. Travelers’ Insurance Co., 102 Pa. 262; De Loy v. Travelers’ Insurance Co., 171 Pa. 1. In the case last cited, it was said by Stkrrktt, C. J.:“.... if a man acts so recklessly and carelessly that he shows an utter disregard of a known danger, then he may be said to have exposed himself voluntarily to danger. Or, if the risk of danger is so obvious that a prudent man, exercising reasonable foresight, would not have done the act, then he may be said to have voluntarily exposed his person to danger.” The clause of the policy must be held to apply whenever the insured is injured in a manner that should have been anticipated, while voluntarily doing something that ordinary prudence would forbid. No other construction would give effect to the intention of the parties to the policy.

An attempt to board a moving train is always dangerous. An attempt by a man of the age and weight of the insured, with an umbrella under his arm, to board a train running six or eight miles an hour, is so obviously dangerous that a prudent person would not make it; it is so universally regarded as dangerous that it must be considered as within the class of risks excepted in the policy. The fact that the insured may have believed that the train would stop at the station, does not strengthen the plaintiff’s case. If he acted on that belief, he attempted to get on a moving train which he expected would come to a full stop in a few seconds. This was the needless assumption of a manifest risk. If he observed that it was not to be stopped, he intentionally exposed himself to a still greater danger. In either event there was a “ voluntary exposure to unnecessary danger, ” within the meaning of the contract, and a failure to “ use all due diligence for personal safety and protection.” His act was not the less voluntary because it may have been on a sudden impulse without reflection. He intended to do what he did, and the words of the policy admit of no distinction between premeditated acts and impulsive acts, springing from a fully formed intention. The danger cannot be considered as not obvious because he may not at the moment fully have understood and appreciated it. He could have seen it and would have seen it and comprehended it if he had given to what he was doing the reasonable attention that ordinary prudence required.

The judgment is affirmed.

Mestrezat and Stewart, JJ., dissent.


author: Mr. Justice Elkin,

text:
    Keller v. Cohen, Appellant.

      Promissory notes — Affidavit of defense — Payment—Specific source— Contemporaneous written agreement.

    It is competent for parties to contract for the payment of an obligation out of a particular fund, and in a particular manner.
    In an action upon promissory notes, the defendant may set up a contemporaneous agreement in writing in support of the contention that the notes were to be paid out of a particular fund.
    Argued Jan. 8, 1907.
    Appeal, No. 99, Jan. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., Dec. T. 1906, No. 452, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph S. Keller v. Andrew J. Cohen.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit on two promissory notes, dated November 14, 1898, and February 21, 1899, each for $1,000.
    Rule for judgment for want of a sufficient affidavit of defense.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that the defendants relied upon the following papers:

      “ Philadelphia, Sept. 8th, 1898.
    “ Mr. A. J. Cohen, Philadelphia, Pa.
    “ Dear Sir: The writer, J. S. Keller, will, in consideration that you transfer to me 20$ of your one-half interest in umbrella tubing and receipt of like amount from Mr. Seymour’s interest, obligate myself to provide all the necessary cash funds to build one complete set of machines to make the above mentioned tubing.

      “ I will agree to advance to A. J. Cohen the sum of fifteen hundred dollars ($1,500), same to be secured by Mr. Cohen transferring me his present life insurance policy as collateral. The amount advanced to be paid back to me from the immediate proceeds of profits derived from the sale of umbrella tubes made.
    “ The above is respectfully submitted for your convenient consideration.
    “ Yours very truly,
    “ J. S. Keller.”
    “ Be it known that I, Andrew J. Cohen, in consideration of a loán of two thousand dollars ($2,000), which is hereby acknowledged, do hereby assign, transfer and set over to Joseph S. Keller of 3515 Hamilton street, Philadelphia, Pa., my policy, No. 76,894 (amount $15,000), dated ,lune 22, 1896, in the Home Life Insurance Company. Said policy to be held by the said Joseph S. Keller as collateral security for the specific loan of two thousand dollars ($2,000), premiums to be paid on said policy by me, in further acknowledgment of which I have given the said Joseph S. Keller my notes as follows :
    “ First note, dated November 14th, 1898, for one thousand dollars ($1,000), at five years.
    “ Second note, dated 1898, for one thousand dollars ($1,000), at five years.
    “ Witness my hand and seal at Philadelphia this 29th day of November, 1898.
    “ Andrew J. ConEN [L. S.] ”
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      April 22, 1907:

      Albert B. Weimer, with him James D. Evans, William E. Stokes and Erederiek M. Leonard, for appellant.
    As the plaintiff agreed in writing that the loan should be paid out of profits, and further stated in writing that the notes were “ in further acknowledgment ” of the loan, he can have recourse only to profits as the fund from which the notes are to be paid: Chambers v. Jaynes, 4 Pa. 39; Creery v. Thompson, 26 Pa. Superior Ct. 511; Martin v. Fridenberg, 169 Pa. 441.
    Even an agreement wholly in parol that the notes should be paid out of profits may be shown where, as in this case, the maker’s own evidence is corroborated by writings signed by the payee himself, and the maker states that he was induced to sign the notes by reason of the parol agreement: Coal & Iron Co. v. Willing, 180 Pa. 165; Martin v. Kline, 151 Pa. 413; Fidelity & Casualty Co. v. Harder, 212 Pa. 96; Laflin & Rand Powder Co. v. Burkhardt, 91 U. S. 110; Dittmar v. Norman, 118 Mass. 319.

      John Stokes Adams, for appellee, cited:
    Wharton v. Douglass, 16 Pa. 213; Lee v. Longbottom, 113 Pa. 408; Fuller v. Law, 201 Pa. 101; Appleby v. Barrett, 28 Pa. Superior Ct. 349.
   Opinion by

Mr. Justice Elkin,

This is an appeal from the order of the court below making absolute a rule for judgment for want of a sufficient affidavit of defense. The action is brought on two promissory notes made payable in five years from the date thereof, without interest. No question is raised as to the execution of the notes, but the affidavits of defense, among other things, set up that the appellant was induced to accept the loan, sign the notes and execute and deliver the assignment on the faith of the representation made by the appellee that the loan should be paid out of the immediate proceeds of profits derived from the sale of umbrella tubes made, and not otherwise, without which assurance and inducement Cohen would not have accepted the loan, signed the notes or executed the assignment. It appears from the averments contained in the affidavits of defense that some months prior to the execution of the notes the appellant, with one Seymour, applied for a patent for an improve-merit in umbrella tubes, which was afterwards granted. The appellee was desirous of obtaining an interest in the patent, and opened negotiations with appellant for the purpose of effecting an arrangement for the manufacture of umbrella tubes by the patent process. As a result of these negotiations appellee, on September 8, 1898, submitted to appellant a proposition in writing, setting out in substance that he would provide all the necessary cash funds to build a complete set of machines for the manufacture of umbrella tubes on the condition that appellant and Seymour transfer to him twenty per cent of their respective holdings in the patent. He also proposed to advance Oohen the sum of $1,500, afterwards increased to $2,000, and agreed that the amounts so advanced should be paid back out of the immediate proceeds of profits derived from the sale of umbrella tubes made. The affidavit further avers, “ that neither at the time of said proposal and its acceptance, nor at any time since, was there ever any agreement or understanding between defendant and plaintiff that said sum so advanced was to be paid from the proceeds of said insurance policy; but it was always understood and agreed between plaintiff and defendant that said sum so advanced was to be repaid from the profits derived from the sale of umbrella tubes made, said insurance policy having been assigned as collateral for the purpose of securing to plaintiff the performance by defendant of his part of the agreement, namely, to assign to plaintiff twenty per cent of defendant’s interest in said patent, and to repay said sum so advanced out of the immediate proceeds of profits derived, from the sale of umbrella tubes.” It is further averred that in pursuance of the agreement and understanding between the parties to this transaction, the Pennsylvania Tube Company was incorporated for the purpose of manufacturing umbrella tubes ; that the appellee is the president and principal stockholder of said company, and has had the management of its business, and has failed to render an account to appellant for any profits derived therefrom, or to show that said profits had not been applied on account of the moneys advanced. In the supplemental affidavit of defense it is further averred that the contract consisted of four concurrent elements, to wit: the proposal of September 8, 1898; the execution of the notes in question ; the advance of the said $2,000 ; the assignment of the insurance policy as collateral; and that without the concurrence of all these elements appellant would not have received the money advanced, executed the notes in question and entered into the transaction.

The legal effect of the averments contained in the affidavits of defense, is that the inducement which caused the appellant to accept the loan, execute the notes and make the assignment, was the agreement by appellee that the loan should be repaid out of the immediate profits derived from the sale of umbrella tubes. It is clearly competent for parties to contract for the payment of an obligation out of a particular fund and in a particular manner: Chambers v. Jaynes, 4 Pa. 39; Sartwell v. Wilcox, 20 Pa. 117; Creery v. Thompson, 26 Pa. Superior Ct. 511; Wharton on Contracts, sec. 598.

There can be no doubt that a good defense is made out by the facts stated in the affidavits, unless the rule contended for by appellee is held to be applicable; that is to say, appellant cannot take advantage- of the alleged contemporaneous agreements in writing because they in effect contradict the notes upon which suit is brought. Wharton v. Douglass, 76 Pa. 273; Lee v. Longbottom, 173 Pa. 408; Fuller v. Law, 207 Pa. 101, are relied on to support this contention. We do not question the' correctness of the rule laid down in these cases, but the facts relied on to sustain it are entirely different from those in the case at bar. As was stated by Mr. Justice Williams in Coal and Iron Company v. Willing, 180 Pa. 165: “The existence of a contemporaneous parol agreement between the parties, under the influence of which a note or contract has been signed, may always-be shown when the enforcement of the paper is attempted.” To the same effect is Keough v. Leslie, 92 Pa. 424; Martin v. Kline, 157 Pa. 473; Martin v. Fridenberg, 169 Pa. 447.

In the case at bar, however, the appellant does not rely on a parol agreement, but sets up an agreement in writing in support of his contention that the notes were to be paid out of a particular fund. The notes in question and the written agreements providing the manner of payment make up the whole contract between the parties, if the averments in the affidavits of defense are true, and we must so treat them in the disposition of the question raised on this appeal. This is not in conflict with the cases cited by appellee, because the agreement set up is not wholly inconsistent with the terms of the notes. The execution of the notes is acknowledged, the amount advanced admitted, but it is averred that “ the amount advanced (is) to be paid back to me from the proceeds of the profits derived from the sale of umbrella tubes made.” This only affects the manner of payment and specifically designates a source from which a fund is to be derived for the payment of the notes. If this was the agreement of the parties, they are bound by their own covenants. Certainly the facts averred are sufficient to put the parties to their proof on a trial before the jury.

Judgment reversed with a procedendo.


text:
    Commonwealth ex rel., Appellant, v. Bowditch.

      Poor law — Public officer — Corporation—Germantown township — Act oj' January 20, 1839, P. L. 337.
    Under the Act of January 20, 1839, P. L. 337, the managers for the relief and employment of the poor in the township of Germantown, are not township officers, but are the officers of a distinct and separate corporation created by the act, and having special corporate powers, privileges and duties. The election of such managers is not regulated by the Act of March 10, 1875, P. L. 6, which act in no way repealed or modified the act of January 20, 1839. Four of such managers may maintain a quo warranto proceeding against another person claiming to be a manager, and it is not necessary that such proceeding should be on the relation of the attorney general or his deputy.
    Argued Jan. 9, 1907.
    Appeal, No. 216, Jan. T., 1906, by plaintiffs, from order of C. P. No. 1, Phila. Co., March T., 1906, No. 2,236, quashing writ of quo warranto in case of Commonwealth ex rel. Frank B. Stewart, Charles 0.. Russell, Charles E. Ernes and James J. Finn, Individually and as Managers for the Relief and Employment of the Poor of the Township of Germantown, v. Walter Bowditch.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter, Elkin and Stewart, J J.
    Reversed.

      Suggestion for quo warranto.
    From the record it appeared that the relators were members of the board of managers for the relief and employment of the poor of the township of Germantown. The respondent claimed membership in the board by virtue of an election under the act of March 10, 1875. The respondent moved the court to quash the writ of quo warranto for the following reasons:
    1. The relators have no such interest in the title of the respondent to the office of member of “ the Board of Managers for the Belief and Employment df the Poor of the Township of Germantown ” as to enable them to question it in the above proceeding.
    2. No relator claims title to the office of the respondent.
    3. No relator shows title, prima facie or otherwise, to- the office of the respondent.
    4. There is no allegation in the suggestion for the writ that any other person claims or holds title to the office in question except the respondent.
    5. The office of the respondent is a public one, the title to which can only be called in question at the instance of the attorney general of the commonwealth, or his deputy, or by some citizen claiming title thereto.
    The court quashed the writ.

      Error assigned was the order of the court.

      Paul Reilly, for appellant.
    The managers are not township officers, nor in any way governed by general laws concerning township officers, but they are officers of a corporation: Nissley v. Lancaster County, 27 Pa. Superior Ct. 405; Com. v. Fletcher, 180 Pa. 456; Com. v. Stevenson, 200 Pa. 509.
    Any citizen and taxpayer of a municipal corporation may maintain the proceeding to try the title to an office under the municipality and to oust an unlawful incumbent: 23 Am. & Eng. Ency. of Law (2d ed.), 618; Com. v. Meeser, 44 Pa. 341; Com. v. Meanor, 167 Pa. 292.
    The right to proceed without the intervention of the attorney general has been upheld in many cases, and these cases likewise show that any actual interest in the relators is sufficient to sustain the action: Com. v. Burrell, 7 Pa. 34; Com. v. Jones, 12 Pa, 365; Com. ex rel. v. Read, 2 Ashmead, 261; Com. v. Cluley, 56 Pa. 270; Com. v. Swank, 79 Pa. 154.
    April 22, 1907:

      M. Hampton Todd, with Mm Owen B. Jenkin, for appellees.
    The managers are township officers: Com. v. Graham, 64 Pa, 339.
    The managers begin their terms of office on the first Monday of April next succeeding their election.
    The office of manager of said board is a public office: Com. v. Murphey, 25 Pa. C. C. Rep. 637.
    The appellants were not entitled to the respective writs of quo warranto against the appellees because none of them claimed title to any of the places concerned, and the places being public offices, it is necessary that relators claim title in order to have the interest required to give .them the writ in the absence of the intervention of the attorney general or his deputy: Com. v. Burrell, 7 Pa. 34; Com. ex rel. v. Cluley, 56 Pa. 270; Com. ex rel. v. McCarter, 98 Pa. 607; Com. v. Hough, 22 Pa. C. C. Rep. 440.
   Opinion by

Mr. Justice Elkin,

"While the controlling question involved in this appeal is whether the relators have such an interest in the title of the respondent to the office of member of the board of managers for the relief and employment of the poor in the township of Germantown, as to enable them to institute a proceeding by quo wnrranto to inquire into his right to hold said office, it is related to, and in some degree dependent upon, other questions that must necessarily be considered. The Act of January 20, 1839, P. L. 337, provides among other things for the election of members of the board of managers for the relief and employment of the poor in said township for a term of three years from the time of their election. It is further provided that said managers shall be a body politic and corporate in law with all the rights, privileges, powers and faculties of a body politic and corporate and may take, hold and immediately upon the organization of the board shall be vested with all the estate, real, personal and mixed whatsoever now vested in or held by the managers for the relief and employment of the poor of the township of Germantown, in trust or otherwise; and may also hold to them, and their successors any other real or personal estate, conveyed to them by grant, bargain or sale, or by gift, bequest or other alienation; may sue or be sued, plead and be impleaded, in any court of record, or in any place whatever; may have a common seal, and make such laws, rules and orders as shall appear to them or a majority of them useful, necessary and proper, for the government of said corporation, its officers, estates, property, funds and the business and affairs in general of the same. The number of managers was increased by the Act of May 1, 1861, P. L. 590, from six to nine, but their general powers, privileges and duties remained unchanged.

Under these circumstances, are the said managers township officers within the meaning of the law, or are they officers of a distinct and separate corporation created by statute having special corporate powers, privileges and duties? A question almost analogous has been passed upon by the Superior Court in Nissley v. Lancaster County, 27 Pa. Superior Ct. 405, wherein it was held that the directors of the poor and of the house of employment of the county of Lancaster created by the act of February 27, 1798, 3 Sm. L. 306, are not county officers, and that their compensation as fixed by the special Act of April 14, 1864, P. L. 422, is hot affected or changed by the Act of July 2, 1895, P. L. 424, which fixes the salaries of county directors of the poor in counties containing over 150,000 inhabitants. The force of this opinion is conceded by the learned counsel for appellee, but it is contended that it was predicated upon the fact that the framers of the constitution omitted such officers from the list of county officers specifically designated therein, and that this fact distinguishes that case from the one at bar. We do not agree with this position. The opinion in that case did not rest upon the fact that the directors of the poor were omitted from the list of county officers in the constitution, although this was suggested as an additional reason why the position of the appellant in that case was not tenable, but the clear reasoning therein set forth conclusively shows that the special act of 1798 created the directors of the poor and of the house of employment of the county of Lancaster into a corporation with all of the powers conferred and duties imposed thereby. The principle therein announced is fully supported in Township of Cumru v. Directors of Poor, 112 Pa. 261, and Com. ex rel. v. Coyle, 185 Pa. 198. We hold, therefore, that the act of 1839 above referred to created the managers for the relief and employment of the poor of the township of Germantown into a body politic and corporate with all the powers, privileges and duties conferred or imposed by said act and that the managers of said corporation are not township officers within the meaning of the various acts of assembly relating thereto.

The act of 1839 provides that it shall be the duty of the managers so elected to take the oath prescribed in said act at the first meeting of the board, which shall be held within ten days after such election. There can bo no doubt that unless by subsequent legislation these provisions of the act of 1839 have been repealed or modified, the term of each manager begins on the date of his election and continues for a period of three years from that date. It is true the date for holding these elections has been changed from time to time, because it is provided in said act that the election of managers shall be held at the time and place appointed by law for the election of supervisors in said township. The date for the election of supervisors at the present time is the third Tuesday of February, so that if the provisions of the act of 1839 are yet in force as to the date on which the term of office begins, it follows that the term of office of all the managers who were elected on the third Tuesday of February, 1906, began on that date.

It is earnestly contended, however, that these provisions of the act of 1839 have been repealed by the Act of March 10, 1875, P. L. 6, which provides the date on which township officers shall be elected, and fixes the beginning of the term of the officers so elected on the first Monday of April following. It is necessary, therefore, to decide the question whether the act of 1876 repealed or modified the .act of 1839 to the extent at least of fixing the beginning of the term of the office of manager, for the relief and employment of the poor of said township, on the first Monday of April, as provided in the latter act, instead of the date of their election as fixed by the former act. This question has been substantially answered in what has been said in reference to the first question discussed in this opinion. We have already held that said managers are not township officers within the meaning of the law, and it necessarily follows that the provisions of the act of 1876 did not repeal the act of 1839, and has no application to the present case: Commonwealth ex rel. v. Brown, 210 Pa. 29; Melvin v. Summerville, 210 Pa. 41.

The only remaining question to be considered is whether the relators have a standing to institute a proceeding by quo warranto to raise the questions involved in this controversy. It is contended by the appellants that they represent a corporation with definite and fixed corporate powers, and that they have authority under paragraph 3 of the Act of June 14, 1836, P. L. 621, to proceed by quo warranto to have determined the question of the right of the appellee to be an officer in said corporation. On the other hand, it is contended for appellee that the office of manager is a township office, and that the proceeding by quo warranto must be instituted, if at all, under paragraph 1 of said act on the relation of the attorney general or his deputy. It is a sufficient answer to this position to refer to what has been heretofore said, to wit: that a manager under the.act of 1839 is not a township officer within the meaning of the acts relating thereto, and it necessarily follows that the argument so ably made by the learned counsel for appellee cannot be sustained. It is not necessary, however, in order to sustain the position of the relators to hold that the proceeding must be instituted under paragraph 3 instead of paragraph 1, because the question has been practically ruled in Commonwealth v. Fletcher, 180 Pa. 456, in which case an action by quo warranto was instituted on the relation of four school directors to test the right of one respondent to act as a school director and of three others to act as president, secretary and treasurer of the board. The learned counsel for appellee recognizes the force of the rule therein laid down, but insists that what gave the relators standing in that case was the fact that they were man for man rival claimants with the respondents for the same office. This does not necessarily follow from the facts of that case, because the four relators instituted the proceeding against the four respondents without any suggestion that any particular relator was proceeding to contest the office of any particular respondent. The relators were treated in their joint capacity as school directors, having such an interest as warranted them in instituting a proceeding to determine whether the respondent had the right to act as school director, and that, in principle, is exactly what the relators in the present case have undertaken to do. It is conceded in the case at bar that the relators have been duly elected managers for the relief and employment of the poor in the township of Germantown. As members of the board of managers, with all the duties and obligations involved by reason thereof, they certainly have such an interest as in contemplation of law they are required to have in order to sustain a proceeding by quo warranto to determine whether a member, asserting his right to sit with them as a fellow manager, has a right so to do. Taxes are to be levied, moneys collected and distributed, property rights protected, and many other responsibilities involved, and it is a matter of no small importance to all of the managers, as well as the inhabitants of the district, to have the question determined whether the board has been legally constituted. The right of the relators to proceed in the present case comes reasonably within the rule of Commonwealth v. Commissioners of Philadelphia, 1 S. & R. 382; Commonwealth v. Meeser, 44 Pa. 341; Commonwealth v. Meanor, 161 Pa. 292; Commonwealth v. Stevens, 168 Pa. 582; Commonwealth v. Stevenson, 200 Pa. 509.

Decree reversed, suggestion for writ of quo warranto reinstated, with the right of respondent to answer over in order that all parties may be heard on the merits so that the questions involved may be determined in accordance with this opinion.


text:
    Commonwealth ex rel., Appellant, v. Roop.
    April 22, 1907:
    Argued Jan. 9, 1907.
    Appeal, No. 217, Jan. T., 1906, by plaintiffs, from order of C. P. No. 1, Phila. Co., March T., 1906, No. 2,237, quashing writ of quo warranto in case of Commonwealth ex rel. v. Charles O. Roop, Walter Bowditch, Thomas J. Burns, A. L. Dewees, Owen B. Jenkins and J. George Mollenkof.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Paul Reilly, for appellants.

      M. Hampton Todd, with him Owen B. Jenkins, for appellees.
   Opinion by

Mr. Justice Elkin,

The learned court below on motion quashed -the suggestion for a writ of quo warranto filed by the relators, requiring the respondents to show by what warrant they claim the right to have, use and enjoy respectively-the offices of president, treasurer, tax collector, delinquent tax collector, solicitor and undertaker, being managers and officers for the relief and employment of the poor of the township of Germantown. For the reasons stated in the opinion just handed down in Commonwealth ex rel. v. Bowditch, ante, p. 527, the assignments of error are sustained.

Decree reversed, suggestion for writ of quo warranto reinstated, with leave to the respondents to answer over, in order that the parties may have a hearing on the merits so that all the questions involved may be determined in accordance with the opinion handed down in that case.