author: Mr. Justice Stewart Mestrezat and Potter, JJ.,

text:
    Pittsburg v. Goshorn, Appellant.

      Municipalities — Municipal contracts — Public officers — Compensation —Paying for office — Illegal contract — Public policy.

    1. Where the councils of a city of the second class in pursuance of the authority exclusively given to them fix the compensation of the tax collector at a per centum on his collections, the mayor has no power to require the person he proposes to appoint collector to enter into a written contract binding' himself to accept for his services a fixed sum instead of a per centum on the collections as allowed by the ordinance, thereby reducing his compensation very much below that which he otherwise would be entitled to. Such a contract whether it is executory or executed, is contrary to the settled policy of the law as indicated in the constitutional provision which prohibits a public officer from contributing or paying any money or other valuable thing to' secure his appointment.
    2. A contract against public policy, as distinguished from one merely ultra vires, is absolutely without any force or effect whatever, so that it cannot, under any circumstances, be made the basis of a cause of action. The law when appealed to will have nothing to do with it, but will leave the parties just in the condition in which it finds them. If the contract is executed the law leaves the parties in possession of what each has acquired under it; if exécutory, it refuses to enforce it.
    Mestrezat and Potter, JJ., dissent.
    Argued Oct. 28, 1910.
    Appeal, No. 168, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., First Term, 1910, No. 299, for plaintiff on case stated in suit of City of Pittsburg v. Lawrence R. Goshorn.
    Before Brown, Mestrezat, Potter,- Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Case stated to determine compensation of the collector of delinquent taxes of the city of Pittsburg.
    From the case stated it appeared that by an ordinance approved March 8, 1906, councils fixed the compensation of the collector of delinquent taxes at two-fifths of five per centum of the amount of delinquent taxes and water rents collected by him. On June 20, 1906, the mayor, George W. Guthrie, appointed the defendant, Lawrence R. Goshorn, collector of delinquent taxes. As a condition of his appointment the mayor required Go-shorn to execute the following agreement:
    “ MEMORANDUM OF AGREEMENT
    “Made this 20th day of June, a. d. 1906, between the City of Pittsburg, party of the first part, and L. R. Go-shorn, party of the second part.
    “Whereas, the said party of the second part is an applicant for appointment for the position of Collector of Delinquent Taxes for the City of Pittsburg.
    “And whereas, it is mutually agreed that the compensation provided by ordinance is excessive.
    “Now therefore, it is mutually agreed between the parties hereto that in case the said party of the second part should receive the appointment, he will accept as full compensation of his services, the sum of six thousand ($6,000) dollars, and pay over to the City Treasurer the amount of the commission allowed by the ordinance, less his compensation as above fixed and the expenses of his offices not to exceed an amount to be audited and adjusted by the City Controller.
    “And further, that all collections made by him shall be daily paid over to the City Treasurer.
    “In witness whereof, the parties above named have hereunto set their hands and seals.
    “ (Sig.) L. R. Goshorn.
    “Attest:
    “Geo. W. Guthrie.”
    It appeared from the case stated that Goshorn claimed that the agreement which he signed was without consideration and null and void, and that he was entitled to commissions on collections notwithstanding the contract which he had executed.
    The court entered judgment for the plaintiff for $31,649.06, Carnahan, J., filing the following opinion:
    The defendant, Lawrence R. Goshorn, was collector of delinquent taxes of the city of Pittsburg from July 5, 1906, until April 5, 1909, in virtue of an appointment by-George W. Guthrie, mayor, by and with the consent of select council, in accordance with the law providing for the appointment of heads of departments of the city government. During his term of office Mr. Goshorn collected as taxes and water rents an aggregate sum of $4,604,081.63, and has paid to the city, in aggregate, $4,510,613.16. Subsequent to April 5, 1909, in virtue of the powers vested in him as city controller by the charter act of March 7, 1901, Eustace S. Morrow stated an account between the city and Mr. Goshorn, and filed the same of record in this court. On November 26, 1909, Mr. Goshorn paid to the city the sum of $41,406.97, which includes interest from November 17, 1909. This payment is included in the amount, $4,510,613.16, above stated as the aggregate of payments to the city. Mr. Go-shorn appealed from the statement of account so filed, and as a result of such appeal, this case stated, in which the city of Pittsburg is plaintiff, and the appellant, Mr. Go-shorn, is defendant, has been agreed upon, argued by counsel and submitted.
    The amendment to the charter act of the city of Pitts-burg, of June 20, 1901, contains this provision in reference to the collector of delinquent taxes:
    “The Collector of Delinquent Taxes shall be the head of the department of delinquent taxes. . . . The head of this department shall receive such compensation, either by a stated salary or by fees, as may be fixed by councils.”
    By ordinance, duly approved by the mayor March 8, 1906, it was provided:
    “Section 3. That the compensation of such collector for the collection of all city taxes and water rents hereafter becoming delinquent shall be two-fifths (t) of five per centum of the amount of delinquent taxes and water rents by him actually collected and paid into the City treasury; which said five per centum shall be added to all delinquent taxes and water rents hereafter becoming delinquent, as a penalty for non-payment of the same at the time prescribed by the Act or Acts of Assembly relating thereto; Provided, that the said penalty shall only be collected on the amounts collected by said collector, and shall not be added to any exonerations legally made.”
    This ordinance was not, during the term of Mr. Go-shorn, repealed or amended.
    On June 20, 1906, Mr. Goshorn executed and delivered to George W. Guthrie, mayor, a paper of the same date, purporting to set forth an agreement between him and the city of Pittsburg, from which it appears that, at that time, he was an applicant for appointment to the office of collector of delinquent taxes; that it was mutually agreed that the compensation of said officer, as provided by ordinance, was excessive; that he agreed that in case he should receive the appointment, he would accept as full compensation for his services the sum of $6,000; pay to the city treasurer the amount of commissions allowed by ordinance, less the compensation fixed by this agreement, and the expenses of his office not to exceed an amount to be audited and adjusted by the city controller; and that all collections made by the office be daily paid to the city treasurer.
    This paper was signed by L. Ii. Goshorn, attested by Geo. W. Guthrie, and is marked exhibit No. 2, as a part of the stated case. It is not signed by the city of Pitts-burg, nor is the official seal of the city attached. Obviously, it was an agreement between the mayor, who was the appointing power, and the defendant, who was an applicant for the appointment; and while it is not stated in the agreement that the sum of $6,000 was to be the compensation for services in full per annum, apparently it was so understood and acted upon.
    On the day of which the agreement bears date, namely, June 20, 1906, Mr. Guthrie, as mayor, nominated and appointed Lawrence R. Goshorn, collector of delinquent taxes of the city of Pittsburg, and the appointment was approved by the select council of the city, in accordance with the statute law so provided. Lawrence R. Goshorn is the L. It. Goshorn, who executed and delivered the agreement marked exhibit No. 2.
    Mr. Goshorn, having served his full term as collector, is now called upon to meet a claim of the city that he is short in his account to the extent of $30,476.44. It is this sum for which the city claims judgment, together with interest thereon from November 17, 1909. He replies that he is not indebted to the city for any amount, because, at the time of his appointment, and during the whole of his term, his compensation was fixed by law, namely, by ordinance of councils, pursuant to the provisions of statute law; that the mayor had no authority to change the law by providing for him as a public officer a compensation different from that fixed by law; that the agreement of June 20, 1906 was against public policy, and without valid consideration; and that consequently it is not binding upon him, is void, and of no effect. If he is correct in this contention, it is agreed that judgment shall be entered in his favor, because his commissions for the full term served would equal the amount claimed by the city. If the city is correct in its contention that the defendant is bound by the writing of June 20, 1906, it is agreed that the amount claimed, namely $30,476.44, is the amount for which it is entitled to judgment, with interest as aforesaid.
    The mayor had no express authority to act for the city as respects the question of reducing the compensation of a collector of delinquent taxes. The law fixed his compensation. No city officer had authority to change it. But there was no misrepresentation, fraud or compulsion on the part of the mayor. He was the appointing power. He believed that the compensation of the collector of delinquent taxes, as fixed by ordinance, was too great. Goshorn so believed, and stated to the mayor that, should he be given the appointment of collector, he would accept a salary in lieu of commissions, and pay into the treasury all sums collected, less the amount of his salary and certain expenses. The mayor, being satisfied of his fitness for the office, took him at his word, and appointed him. The mayor did not mislead him in any manner. Goshorn did not accept the appointment under compulsion. He was not forced to assent to the fixed salary in lieu of commissions, as stated in exhibit No. 2. He himself agreed “that the compensation provided by ‘ordinance’ was ‘excessive.’ ” He desired the appointment, thought the compensation was excessive, agreed to accept less in case of his appointment, and thus secured the appointment. The mayor evidently thought that, by making the appointment with the understanding as to compensation, as provided in exhibit No. 2, he was serving the interests of the city. Goshorn thought so, too, and apparently meant to carry out all that he agreed to do. How can it be said, therefore, that his action was other than voluntary on his part? If, during the term of his office, he had repudiated his agreement of June 20, 1906, and had- given notice to the city by word or deed that he intended to claim the compensation fixed by ordinance, and after such notice, the city had continued him in office, his claim should be sustained in law. If, on the contrary, no such notice was given, and the city authorities were thereby led to believe that his compensation was as fixed by exhibit No. 2, he should be estopped from enforcing his claim for commissions now.
    What are the facts as disclosed in the stated case? It is not expressly stated that he ever gave such notice, nor is it expressly stated that he did not. But he collected $4,604,081.63 during his term of office, and paid to the city only $4,510,613.16, of which amount the sum of $41,406.97 was paid more than six months after the expiration of his term. There was nothing, therefore, in his retention of moneys to put the city on notice of an intention on the part of the collector to claim commissions, and thus repudiate his agreement. He did not merely retain the exact amount of his commissions. His retention of moneys far exceeded all commissions to which he could possibly be entitled under the ordinance.

      Nothing else, as bearing upon the question of notice, appears in the stated case. The situation, therefore, is this: Goshorn makes no claim that, during his term of office, he ever gave express notice of an intention to demand commissions. It is not set forth in the stated case that he did. As to any act or deed on his part, so far as disclosed in the stated case, clearly there was nothing to put the city upon notice. Without such notice, having served his full term, his contract has been executed, and he cannot now be heard to say that the agreement under which he was appointed was illegal and void, and that he is now entitled to a greater compensation than that to which he agreed, served for, accepted and received. In other words, the transaction has been completed, although all the collections have not been paid over. This state of affairs does not arise because of a disputed claim made at any time during the term of service, and it could only be by means of süch a claim that the defendant could successfully contend that the contract was not executed. If it were not executed, possibly it would be void, as without legal consideration to support it; and possibly, further, as against public policy. But, if executed, as we think it is, the time for raising these questions has passed.
    The city of Pittsburg had the power to make such a contract as is set forth in exhibit No. 2. It has never by any act shown dissent from the agreement made by its chief executive officer, and it is now in court undertaking to enforce it.
    In support of the views here expressed are many authorities :
    “Where a corporation has entered into a contract, which has been fully executed on one part, and nothing remains but for it to pay the consideration money, it will not be allowed to set up that the contract was ultra vires:” Oil Creek & Allegheny River R. R. Co. v. Pennsylvania Transportation Co., 83 Pa. 160.
    “If no question of the constitutional power of a city to do municipal work, such as the opening or grading and paving of streets, the construction of drains and sewers, the erection of municipal buildings, the introduction of gas and waterworks, arises until years have elapsed after such work is done, it could not be tolerated that because the power is ultimately held to have been in excess of the lawful authority of the city, that such streets must be closed and abandoned, or the sewers and drains destroyed, or the gas and waterworks closed, or the municipal buildings torn down. Such municipal works having been done under color of lawful authority, when no question as to the validity of the authority was raised, must be regarded as lawfully done:” King v. Phila. Co., 154 Pa. 160.
    “Where a corporation, although prohibited by its charter, enters into a contract for the purchase of stock in another corporation, and the contract is executed by the delivery of the stock, it cannot set up as a defense to an action on a promissory note given for the price of the-stock, and held by a bona fide purchaser, that the contract was ultra vires.”
    “It may be that as between the original parties the defendants could have rescinded the contract and declined to receive the stock. But they executed it; they accepted the stock and gave their note in payment, for which note the plaintiffs paid value in good faith. The defense of ultra vires by a corporation comes with a better grace if made before it has discovered that it has made a bad bargain:” Wright et al. v. Pipe Line Co. et ah, 101 Pa. 204.
    “ 'A corporation may not avail itself of the defense ultra vires when the contract has been in good faith fully performed by the other party, and it has had the full benefit of the performance and of the contract:’ 27 Am. & Eng. Ency. of Law, 363; Morawetz on Corporations, sec. 689; Wright v. Pipe Line Co., 101 Pa. 204; Oil Creek & Allegheny River R. R. Co. v. Transportation Co., 83 Pa. 160:” Boyd v. American Carbon Black Co., 182 Pa. 206.
    “No statute has been called to our attention which made it the duty of the borough officers to let the contract to the lowest responsible bidder, but the ordinance in question contains such provision. Therefore, while it cannot be said that they exceeded their statutory powers or violated any statutory provision, yet it cannot be denied that in entering into the second contract without attempting to get bids, they failed to comply with the mandate of the ordinance. There is also the objection that they were not specially authorized by resolution or ordinance of council to enter into this contract. But the only difference between.the first and second contracts that is alleged is as to the price of the materials. Unquestionably the borough had power to make that change, and it is not intimated, either in the affidavit of defense or in appellant’s brief, that any abuse of discretion was involved in the transaction, or that it was tainted with fraud, or that it was not justified by the conditions existing at the time. This being so, the principle enunciated in numerous cases is applicable, that a municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the corporate powers, and that such ratification need not necessarily be by resolution or ordinance, but may be implied from the acceptance of the work and formal assertion in judicial proceeding of a claim founded on it. Amongst these cases may be cited: MeKnight v. Pitts-burg,- 91 Pa. 273; Phila. v. Hays, 93 Pa. 72; Brientnall v. Phila., 103 Pa. 156; Silsby Mfg. Co. v. Allentown, 153 Pa. 319; Shiloh Street, McCormick’s App., 165 Pa. 386; Amberson Ave., 179 Pa. 634; Harrisburg v. Shepler, 7 Pa. Superior Ct. 491; Erie v. Bier, 10 Pa. Superior Ct. 381:” Tarentum Boro. v. Moorhead, 26 Pa. Superior Ct. 273.
    “If the public corporation has performed the contract on its side, the adversary party cannot retain the benefits and plead ultra vires. The objection that the contract was originally ultra vires has been eliminated by performance:” Page on Contracts, sec. 1054.

      To the same effect are City of Buffalo v. Balcom, 134 N. Y. 532; (32 N. E. Repr. 7) Mayor of New York, etc., v. Sonneborn, 113 N. Y. 423 (21 N. E. Repr. 121); Hobbs v. City of Yonkers, 102 N. Y. 13 (5 N. E. Repr. 778); Mayor of Hoboken v. Harrison, 30 N. J. L. 73; Tice v. City of New Brunswick, 64 N. J. L. 399 (45 Atl. Repr. 781); City of St. Louis v. Davidson et al., 102 Mo. 149 (14 S. W. Repr. 825); Middleton v. City of Elkhart, 120 Ind. 166 (22 N. E. Repr. 123); De Boest v. Gambell, 35 Oregon, 368 (58 Pac. Repr. 72).
    Among the authorities upon which the defendant relies are three Pennsylvania cases, namely: Hunter v. Nolf, 71 Pa. 282; Lancaster County v. Fulton, 128 Pa. 48; Wilkes-Barre v. Rockafellow, 171 Pa. 177.
    Hunter v. Nolf, 71 Pa. 282, was a case in which the plaintiff and defendant being applicants for appointment to a public office, plaintiff agreed to withdraw, defendant agreeing in case of his appointment to divide the receipts, they to share the duties jointly. The plaintiff withdrew, the defendant was appointed, and the plaintiff assisted in performing the duties. Pleld, that the contract was against public policy, and that the plaintiff could not recover for services rendered.
    Such a contract was void ab initio, and at no time could be enforced. Llere the agreement of June 20, 1906, contained nothing which the city could not legally have done, and could not afterwards legally approve.
    Lancaster County v. Fulton, 128 Pa. 48, was a case in which Fulton, as county solicitor under a salary fixed by law, contracted with the commissioners for greater compensation, the services being within his official duties as solicitor. He could not recover, because his contract was such as the commissioners had no power to make, and therefore was incapable of ratification.
    Wilkes-Barre v. Rockafellow, 171 Pa. 177, was a suit by the city against the sureties on the bond of the city treasurer. The commissioners of the sinking fund of the city loaned to the treasurer, who was in business as a banker, the money in their hands as commissioners, to be used by him in his banking business. He paid interest to himself regularly as city treasurer. Finally his bank closed its doors, and "his indebtedness to the city as treasurer was ascertained to be $51,743.01. It was made up of four items, viz.: the sinking fund of the city, and between four thousand and five thousand dollars of interest thereon; the ordinary or current funds of the city and a considerable sum allowed as interest on the balance due upon this account.”
    It was held, that the sureties were responsible for their principal as a public officer, and not as a banker or borrower, unless they assented to the action which made the loss possible.
    There being some evidence tending to show that the treasurer, when a candidate for election, had agreed to pay interest at the rate of three per cent, on balance in favor of the city, the court said: "This agreement, if made, did not amount to a loan of any particular sum of money by the city council to the treasurer, but was in the' nature of a premium demanded from him as the price of the office. It was a premium for which he was not liable, which he could not be compelled to pay if he had taken defense to it, and for which the sureties are not liable. The agreement, if made, was against public policy, and is incapable of enforcement. . . . The promise to pay interest as the price of an election to the office of treasurer has no valid consideration to support it. It is a promise that we cannot recognize as binding on him who made it; a fortiori is it without binding effect on the sureties upon an official bond.”
    It will thus be seen that the case last referred to is entirely different from the one under consideration. The parties defendant were sureties, whose contract was limited by the terms of their bond; and the principle of estop-pel, because of an executed contract, had no application, nor was it even mentioned.
    The remaining authorities cited by counsel for defendant, in support of his contention, are from other states. We do not regard them as applicable in the sense that they meet the facts here presented for consideration and decision.
    Upon the case stated we are of opinion that the city of Pittsburg is entitled to judgment against the defendant for the sum claimed, with interest and costs.
    ORDER.
    And now, to wit, July 6, 1910, it is ordered that, upon 'the facts as presented in the case stated, in which the city of Pittsburg is plaintiff, and Lawrence R. Goshorn is defendant, judgment be entered in favor of the city of Pittsburg, and against Lawrence R. Goshorn for the sum of $31,649.06, being $30,476.44, with interest thereon from November 17, 1909 to date. It is further ordered that the defendant pay the costs of this proceeding.

      Error assigned was in entering judgment for plaintiff on the case stated.

      John P. Hunter, with him Walter Lyon, for appellant.—
    The memorandum is unilateral, is without consideration, is uncertain and void, and incapable of enforcement: Ser-rill v. Wilder, 77 Ohio, 343 (83 N. E. Repr. 486).
    The contract is a bargain as respects a public office of trust, and undertakes to negative the legal act of the duly constituted authority in determining the amount of compensation proper to be paid to a public officer, and the manner in which such compensation shall be earned, and is therefore against public policy and void: Wilkes-Barre v. Rockafellow, 171 Pa. 177; Hunter v. Nolf, 71 Pa. 282; Lancaster County v. Fulton, 128 Pa. 48; Wool-sey v. Durkin, 7 Luz. Leg. Reg. 97; Fitzsimmons v. Brooklyn, 102 N. Y. 536 (7 N. E. Repr. 787); People ex rel. Satterlee v. Board of Police, 75 N. Y. 38; Hawkeye Ins. Co. v. Brainard, 72 la. 130 (33 N. W. Repr. 603); Peters v. City of Davenport, 104 Iowa, 625 (74 N. W. Repr. 6); Gilman v. Railroad Co., 40 la. 200; Abbott v. Hayes County, 78 Neb. 729 (111 N. W. Repr. 780); City of Butte v. Cohen, 9 Mont. 435 (24 Pac. Repr. 206); Bloomington City v. Calhoun, 86 Ill. App. 491; Brown v. First Nat. Bank of Columbus, 137 Ind. 655 (37 N. E. Repr. 158); Cobb v. Scoggin, 85 Ark. 106 (107’ S. W. Repr. 188); Miller v. United States, 103 Fed. Repr. 413; Me-guire v. Corwine, 101 U. S. 108; Bliss v. Lawrence, 58 N. Y. 442; Grant v. City of Rochester, 79 App. Div. (N. Y.) 460; Farrell v. City of Buffalo, 118 App. Div. (N. Y.) 601 (103 N. Y. Supp. 340).

      Charles A. O’Brien, for appellee.
    It is well established that where a contract is fully performed on one side, the other party to the contract, who has received the benefit thereunder, is estopped from denying its validity: Oil Creek, etc., R. R. Co. v. Transportation Co., 83 Pa. 160; Boyd v. American Carbon Black Co., 182 Pa. 206; Cor-bet v. Fuel Supply Co., 21 Pa. Superior Ct. 80; Beaver Boro. v. Davidson, 9 Pa. Superior Ct. 159; City of Buffalo v. Balcom, 134 N. Y. 532 (32 N. E. Repr. 7); Mayor of N. Y. v. Sonneborn, 113 N. Y. 423 (21 N. E. Repr. 121); Mayor, etc., of Hoboken v.' Harrison, 30 N. J. L. 73; City of St. Louis v. Davidson, 102 Mo. 149 (14 S. W. Repr. 825); Middleton v. Elkhart City, 120 Ind. 166 (22 N. E. Repr. 123).
    Although the precise question in this case does not seem to have been passed upon in this state, it has been decided in other jurisdictions adversely to the contention of the appellant: Hobbs v. City of Yonkers, 102 N. Y. 13 (5 N. E. Repr. 778); DeBoest v. Gambell, 35 Oregon, 368 (58 Pac. Repr. 72, 353); Tice v. New Brunswick, 64 N. J. L. 379 (45 Atl. Repr. 781); Emmitt v. New York, 128 N. Y. 117 (28 N. E. Repr. 19); Love v. Jersey City, 40 N. J. L. 456; Mclnery v. Galveston, 58 Tex. 334; Rau v. Little Rock City, 34 Ark. 303.
    The agreement must, under the circumstances of this case, be construed as having been ratified: Sandy Lake Boro. v. Gas Co., 16 Pa. Superior Ct. 234.

      January 3, 1911:
   Opinion by

Mr. Justice Stewart

It is a mistake to suppose that the only or chief infirmity to be considered in the contract which the city of Pittsburg is here seeking to enforce, arises from the fact that the mayor in entering into it exceeded his power. If this were all, the authorities cited by the learned trial judge in his opinion filed in the case, would give large support to his conclusion. But it is far from being all. The defense relied on is not only that the contract was an attempt on the part of the mayor to do something for which he had no authority, but that it was a clear usurpation of a power which by law was committed to another department of city government, and which by that department had been duly exercised. The position taken is that the contract is repugnant to the policy of the law. The law intrusted exclusively to the councils of the city the power to fix the compensation of the collector, and this they had done by ordinance duly adopted. It is to be presumed that in fixing this compensation, they had regard to the work to be performed, and what compensation was necessary to command the services of one qualified to discharge the duties of the office. When the mayor came to exercise his power of appointment, because he thought the compensation fixed by the council excessive, he required of the person he proposed to appoint — making it a condition of his appointment — that he enter into a written contract binding himself to accept for his services a fixed sum, instead of a per centum on the collections as allowed by the ordinance, thereby reducing his compensation very much below that which he otherwise would be entitled to. The mayor was thus substituting his views, in a very practical way, for the deliberate action of the only body that had any right to determine the question of compensation. No matter how meritorious his motives, he was setting at defiance the law governing the case, annulling arbitrarily the action of councils, and taking to himself as mayor a power which had not only not been conferred on his office, but which was expressly and exclusively lodged in another department. The terms he exacted excluded from possible appointment the entire class of men willing to accept the office at the compensation fixed by law, but who would accept for nothing less. His act was an undue interference with the proper exercise of governmental functions, and for this reason, if for no other, it contravened the settled policy of law. But the case presents another condemnatory feature which must not be overlooked. We have a public policy so clearly indicated in our state constitution that it admits of no dispute. By constitutional provision every public officer before entering upon the discharge of the duties of his office, is required to make oath that he has not paid, or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure his nomination, election or appointment. The condition of the appellant’s appointment to the office of collector was that he would promise “to pay over to the City Treasurer the amount of the commissions allowed by the ordinance, less his compensation as above fixed and the expenses of his office,” etc. This promise having been made, his appointment followed. The promise was the price of his appointment. If it should be supposed disputable by any, whether this contract offends against public policy for the first reason given, what answer can be made to this? The policy here asserted is written in the fundamental law of the state. But reasoning further on general principles is made unnecessary by our own express adjudications. We need only refer to the case of Wilkes-Barre v. Rockafellow, 171 Pa. 177. The contract there set up was that the treasurer to secure his appointment had promised to pay to the city interest on his balances. “This agreement,” says Mr. Justice Williams in the opinion, “if made, did not amount to a loan of any particular sum of money by the city council to the Treasurer, but was in the nature of a premium demanded from him as the price of the office. It was a premium for which he was not liable, which he could not be compelled to pay if he had taken defense to it, and for which the sureties are not liable. The agreement if made was against public policy and is incapable of enforcement.” This decision is . in full accord with the doctrine which prevails generally. If then this contract offends against public policy, as it unquestionably does, the legal results which follow are far more serious than those which attach to a contract simply ultra vires. The latter is illegal only in the sense that it lacks authority for the making; the infirmity is remediable; it may be cured by subsequent ratification, and is even enforcible against a party who has received the benefits under it and afterwards seeks to repudiate it. What results to a contract against public policy is a total and irremediable paralysis, which leaves it absolutely without any force or effect whatever, so that it cannot, under any circumstances, be made the basis of a cause of action. The law when appealed to will have nothing to do with it, but will leave the parties just in the condition in which it finds them. If they have fully executed their unlawful contract, the law will not disturb them in the possession of what each has acquired under it. If one has executed in whole or in part, the law turns a deaf ear when he pleads for its aid to compel the other to do as much. In the latter case the maxim in pari de-licto melior est conditio possidentis applies. The “con-ditio” referred to in the maxim, as explained by Mr. Pom-eroy, in his work on equity jurisprudence, is clearly the condition of the parties with respect to their property rights created by or resulting from the contract. If the contract is still executory, the promisor is left undisturbed in the possession of the money or other property which he agreed to pay or transfer; if the contract has been executed, the promisee is left undisturbed in the possession of the money or other property which has been paid or conveyed to him. Now the result must be the same whether the contract here sought to be enforced be regarded as executed or executory. If the former, the law leaves the parties in possession of what has been acquired under it; if executory, it refuses to enforce it. In either case the city is remediless. It is clear however that it remains executory; the appellant though he has had the benefit of the office has not paid the price he agreed to pay; he has not paid to the city treasurer the difference between the salary he agreed to accept and the compensation he was entitled to under the law. A contract can be said to be executed only when the object of the contract has been performed. Here the only object of the contract remains unfulfilled, the appellant retains the money, and the only purpose of the contract is defeated. For the reasons above stated the assignments of error are sustained, the judgment is reversed, and judgment is now entered on the case stated for the defendant.

Mestrezat and Potter, JJ.,

dissenting:

We would affirm this judgment on the opinion of the learned court below.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Brennan v. Pittsburg & Connellsville Railroad Company, Appellant.

      Railroads — Eminent domain — Witnesses • — • Competency — Cross-examination — Harmless error.

    1. The fact that a witness in a land damage case may show bias, prejudice or interest will not warrant a court in refusing to hear him or in striking out his testimony, if he is fully competent to testify as to the value of land because of his general knowledge of land values in the neighborhood or his familiarity with the location, area, improvements and adaptability of the land in controversy. The credibility of such a witness is for the jury.
    2. Where the qualifications of witnesses as to land damages do not depend upon the knowledge they had of the price paid by a railroad company for properties adjoining that in controversy, but on the other hand all testify to knowledge of other sales in the vicinity and to familiarity with the properties affected, the fact, developed in cross-examination, that they did have knowledge of the price paid by the company for adjoining properties will not render them incompetent.
    3. The refusal to allow on cross-examination two questions to be propounded to an expert witness, relating not to the land in controversy, but to properties in another part of the borough, intended to test the accuracy of the witness’s knowledge, and properly admissible, is not reversible error, where otherwise the widest latitude was given and many other questions of a somewhat similar character were asked and answered.
    Mr. Justice Mestbezat dissents.
    Argued Oct. 28, 1910.
    Appeal, No. 169, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1906, No. 108, on verdict for plaintiff in case of James P. Brennan v. Pittsburg & Connellsville Railroad Company.
    Before Brown, Mestrezat, Potter Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from award of viewers. Before Ford, J.
    At the trial the jury returned a verdict for plaintiff for $53,000 upon which judgment was entered.
    The court refused a new trial, Ford, J., filing the following opinion:
    This is a proceeding to assess the value of certain lots or pieces of ground situate on Halket street in the first ward of the borough of Braddock, taken and appropriated by the defendant company under the right of eminent domain for the purpose of straightening, widening, enlarging and otherwise improving its line of railroad.
    In October, 1905, and for some time prior thereto, the plaintiff, James P. Brennan, was the owner of three separate and distinct lots or pieces of ground, being lot No. 14, the northerly part of lot No. 16, and lots Nos. 18 and 19 in John Robinson’s plan of the subdivision of section 25 in J. W. Buchanan’s plan of Braddock field.
    Lot No. 14 was in width forty feet on Halket street and extended in depth about 133 feet to an alley twenty feet wide, known as “Wood Alley;” the northerly part of lot No. 16 was distant about fifty-six feet south of lot No. 14, had a width of forty feet fronting on the northeasterly side of Halket street and extended in depth about 133 feet to Wood alley; lots Nos. 18 and 19 are contiguous and situate at the corner of Halket and Thirteenth streets, together having a width of 106.88 feet on Halket street and extending to Wood alley. Lots Nos. 18 and 19 are situate about forty feet south of lot No. 16.
    The part taken and appropriated by the defendant company was the westerly half, or less than half, about sixty-two to sixty-three feet of each of the three parcels of ground, together with the right, title and interest of James P. Brennan in that portion of Halket and Thirteenth streets abutting thereon, and subject to the easement of the public in said streets.
    Halket street was about fifty feet wide,, having upon it the two main lines of the defendant company’s railroad. The tracks extended along the street in front of and about fifteen feet from the west line of the Brennan properties. Between the Brennan properties and the railroad there was a paved side or foot walk in width about ten or twelve feet. Since 1905, the company has constructed its railroad occupying the sidewalk formerly along Halket street, and also plaintiff’s land taken for that purpose.
    The verdict of the jury was for the plaintiff, and the defendant moves the court for a new trial, assigning as reasons: ...
    1. The court erred in admitting the evidence of plaintiff’s witnesses, W. J. Holland, H. J. Learn, G. H. Mc-Garey, George Weil, E. M. Brackmeyer and S. C. Richards, as to the fair market value of plaintiff’s property.
    2. The court erred in refusing to strike out the testimony of W. J. Holland and H. J. Learn, witnesses for the plaintiff.
    3. Dr. G. H. McGarey, a witness upon behalf of the plaintiff, after having testified, in a conversation, said, “I have just been on the stand as a witness in the Brennan case and gave some pretty strong testimony, but when it comes to testifying between an individual and a corporation, I have no conscience.”
    4. The verdict was against the law and the evidence and the charge of the court.
    The reasons assigned will be considered in order:
    1. The objections to the competency of each of the plaintiff’s witnesses, W. J. Holland, H. J. Learn, G. H. Mc-Garey, George Weil, E. M. Brackmeyer and S. C. Richards, being (a) that the witnesses did not possess such knowledge as would enable them to estimate the value of the property before and after its appropriation, and (b) their knowledge of the value of property in the vicinity of the Brennan property was of sales made and prices paid by the defendant company.
    The test of the competency of a witness called to give an opinion in respect to the value of land is, that he has knowledge of the property in question, the extent and condition of the improvements and the uses to which it may be applied, taken in connection with the general selling price of lands in the neighborhood at the time.
    The competency of a person to give an opinion under oath as an expert so that upon the preliminary examination he appears to have any pretensions to speak as such, rests in the discretion of the judge: Ardeseo Oil Co. v. Gilson, 63 Pa. 146. The value and weight of the opinion expressed being entirely for the jury: Lewis v. Water Co., 176 Pa: 230.
    In the case of Hope v. Phila. & Western R. R. Co., 211 Pa. 401, it was held:
    “To render a witness competent .... he should have such knowledge as would enable him to estimate the market value of the entire tract of land both before and after the construction of the road through it. Adhering to this rule of competency, the witness should disclose some knowledge of the location of the land, its area, quality and productiveness, the extent and condition of the improvements, the manner in which the road passes through the premises and the value of other lands in the neighborhood at or about the time of the appropriation of the land by the railroad company. If the witness has some familiarity with these facts, his testimony must go to the jury. The extent of his knowledge affects the weight of his testimony and not his competency.”
    Of the witnesses whose competency is questioned, W. J. Holland was a resident and had resided in the borough of Braddock “all his life.” He is and has been engaged in the real estate and insurance business upon his own account for seven years, and theretofore as an employee of his father and uncle; G. H. McGarey is a physician, is and has been a resident of Edgewood for one year, and prior thereto had resided in the borough of Braddock, where he had practiced his profession for seventeen years and upwards; H. J. Learn is a merchant engaged in the dress goods business, his place of business and residence is in the borough of Braddock, where he had resided for sixteen years and upwards; George Weil Is an attorney at law, practicing at the Allegheny county bar, and is and for a number of years has been a resident of Braddock. He was largely interested in the placing of loans secured by mortgages upon real estate in the borough. In part his duty was to examine and appraise properties offered as security, necessitating inquiry respecting the prices at which property was held and sold. Edward M. Brackmeyer was a resident of and had resided in Braddock for thirty-seven years. He is engaged in the steamship, foreign exchange, insurance and brokerage business. S. C. Richards is an architect and had resided in Braddock for sixteen years.
    Each of the witnesses testified that prior to October, 1905, they knew the Brennan lots or pieces of ground, were familiar with the area of the lots, the improvements thereon, and how affected by the construction of defendant’s road, had knowledge of the market value of properties and knew of sales and prices of real estate in that vicinity.

      It is urged by counsel for defendant that the sales and prices testified to by certain of the witnesses were sales made to and prices paid by the defendant company.
    In Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426, cited and approved in Hope v. Phila. & Western R. R. Co., 211 Pa. 401, Gordan, J., delivering the opinion of the court, said:
    “Though his (witness’s) knowledge of the value of lands in that neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other purchases in the real estate market, yet he had some knowledge upon which to base an opinion and the value of that was for the jury.”
    We are of the opinion that these witnesses were competent to estimate the value of the Brennan lots and to express an opinion as to the difference between the value of the lots before and the value after and as affected by the appropriation of a part of the lots by the railroad company.
    2. Counsel for defendant moved to strike out the testimony of W. J. Holland for the reason that he had not shown sufficient knowledge of sales or of prices paid or asked for the property in the neighborhood of and similar to the Brennan property, further, that he bases his opinion on sales made to the railroad company; and of H. J. Learn for the reason that his opinion is based on the peculiarity of the location of the land, the uses to which it could be put, and sales of property located in other parts of the borough having no bearing on the market value of the Brennan property.
    Mr. Holland had knowledge of sales made about the time of the appropriation and prices paid on property in the vicinity of the Brennan property, and testified that he knew of the sales of the McCredy property, the P. J. Brennan, the Petty, the Corado, the James McCune, the John Lowe, the Catherine Lowe, the McClelland, the Costello and other properties. Mr. Learn was the owner of real estate, and in 1905, had purchased property in the borough. He knew of the asking and selling prices of property in the vicinity of the Brennan property, and referring to the time of appropriation, testified, “I am familiar with some selling prices and have heard of some asking prices. Thát made me familiar with them.” He knew of the Worthington and the Robinson sales, both to the railroad company, and the prices at which other properties were held for sale.
    Mr. Holland and Mr. Learn based their opinion upon their knowledge of values, the size and location of the properties, the then use and the uses to which the properties were adapted. The motion to strike out was properly refused.
    3. It appears from the testimony taken and filed in support of the rule for a new trial that on the day of the trial, after testifying, Dr. G. H. McGarey met George C. Watt in the corridor or hall of the courthouse. The trial and testimony given by Dr. McGarey was referred to and commented upon. A few days later Paul D. Remington had a conversation with Dr. McGarey in which Dr. Mc-Garey referred to his testimony. There is a conflict in the testimony taken on the rule in relation to what was said by Dr. McGarey in the conversation with Mr. Watt and with Mr. Remington. It is not necessary to determine the language nor import of the language used by the witness, Dr. McGarey.
    Evidence which merely impeaches the credibility of a witness cannot be successfully urged as the ground for a new trial.
    In the case of Com. v. Laird, 14 York, 128, Mr. Justice Stewart held that three witnesses testifying that a material witness for the commonwealth had received $10.00 for testifying was not a sufficient cause for a new trial.
    In Com. v. Yot Sing, 7 Kulp, 349, Mr. Justice Rice refused a new trial where the principal witness made affidavit that he had perjured himself on the trial, and three witnesses testified to like effect.

      In Com. v. Flanagan, 7 W. & S. 415, the defendants alleged that they were entitled to a new trial because several witnesses had since the conviction of the prisoners, either admitted that they did not testify to the facts truly, or made statements inconsistent with the evidence given on the trial, and it was held that “the rule of law is that the testimony must go to the merits of the case and not be merely for the purpose of impeaching the testimony of the witnesses. For newly discovered evidence discrediting witnesses who testified on a former trial, a new trial is never granted.”
    The statements made by Dr. McGarey to Mr. Watt and to Mr. Remington, if made in terms as by the witnesses for the defendant testified, tended to impeach his credibility and affect the weight to be given to his opinion as to values.
    4. It is contended by the defendant that the verdict of $53,000 for the plaintiff is excessive.
    The defendant company filed its bond October 21, 1905, and shortly thereafter entered upon the land condemned.
    There is a marked difference in the value of the property before and after the widening of the railroad between the estimates or opinions of the witnesses for the plaintiff and for the defendant. The highest value shortly before the appropriation, as given by a witness for the plaintiff, was $158,848; by a witness for the defendant, $34,430. The highest value immediately after and as affected by the appropriation, as given by a witness for the plaintiff, was $42,239; by a witness for the defendant, $15,851.
    It has uniformly been held that the court will not grant a new trial because the verdict is too high when the court cannot say that in no view of t-he case can it be justified. We have carefully reviewed and considered the testimony. Disregarding the estimate of Dr. McGarey, the highest estimate of the depreciation upon the part of the plaintiff is that of W. J. Holland, who testified that the depreciation was $90,172: upon the part of the defendant, the highest estimate of the depreciation was $18,591.
    January 3, 1911:
    The jury evidently weighed the opinions as to values of the witnesses for both the plaintiff and defendant,' and ascertained the amount of the damages from a fair consideration of all the facts and circumstances in evidence. A careful review of the testimony does not convince us that the verdict of the jury should be disturbed.
    Now, July 14, 1910, the motion for a new trial is discharged.

      Errors assigned were (1-9) various rulings on evidence,' quoting the bill of exceptions.

      Edward T. Noble, with him Johns McCleave, for appellant,
    cited: Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325; Michael v. Pipe Line Co., 159 Pa. 99; Friday v. R. R. Co., 204 Pa. 405; Stevenson v. Coal Co., 201 Pa. 112; Cobb v. Boston, 112 Mass. 181; Chicago, etc., R. R. Co. v. Scott, 225 Ill. 352 (80 N. E. Repr. 404); Peoria Gaslight, etc., Co. v. Terminal Ry. Co., 146 Ill. 372 (34 N. E. Repr. 550); Henkel v. R. R. Co., 213 Pa. 485; Gorgas v. R. R. Co., 2.15 Pa. 501.

      Edmond Englert, with him Thomas M. & Rody P. Marshall, for appellee,
    cited: Pittsburg, etc., R. R. Co. v. Robinson, 95 Pa. 426; Hope v. R. R. Co., 211 Pa. 401; Galbraith v. Phila. Co., 2 Pa. Superior Ct. 359; Marko-witz v. R. R. Co., 216 Pa. 535.
   Opinion by

Mr. Justice Elkin,

This is a proceeding to assess damages for land appropriated for railroad purposes under the right of eminent domain. The lots affected belong to appellee and are located in the borough of Braddock. Buildings and improvements were erected thereon, all of which facts appear in the testimony. Most of the assignments of error raise questions as to the competency of witnesses produced by the plaintiff in the court below to testify. Holland, McGeary, Learn, Brackmeyer and Richards were objected to as witnesses on the ground that they had not shown sufficient knowledge of the market value of the properties affected by the appropriation upon which to base an opinion. After a careful examination of the testimony, the charge of the trial judge and the opinion of the learned court below refusing a new trial, we have reached the conclusion that all of the witnesses complained of were qualified to express an opinion as to the fair market value of the properties in question before and after the appropriation. The objections to these witnesses is in the nature of an attack upon their credibility and as to the value and weight of the opinions expressed by them. Such questions are for the jury and not for the court. A witness may be fully competent to testify as to the value of a lot of ground because of his general knowledge of land values in the neighborhood, or of his knowledge of the value of the lot in controversy by reason of location, area, improvements, adaptability for certain uses and other like considerations, and yet his testimony when given may show prejudice or bias to such an extent as to weaken or impair its value. A court, however, would not be warranted in refusing to hear the testimony of a competent witness, or in striking out such testimony when given, because such witness may show bias, or prejudice or interest. The credibility of the witnesses complained of in the present case and the value and weight of their testimony were for the jury: Lewis v. Water Co., 176 Pa. 230.

It is argued with much force that the witnesses complained of based their opinions of the general selling value of properties in the neighborhood upon the price paid by the appellant railroad company for adjoining properties in the same block. The rule is well established that particular sales for a particular purpose, is not evidence of general market value in the neighborhood. Our latest case on this subject is Friday v. R. R. Co., 204 Pa. 405, and this decision is strongly relied on by appellant in the case at bar. If the facts disclosed by the record supported this contention there would be great force in the argument. We do not so read or understand the testimony. The qualification of the witnesses did not depend upon the knowledge they had of the price paid by the railroad company for adjoining properties in the same block and they did not so testify. It is true they had knowledge of the sales to the railroad company but these facts were developed on cross-examination by counsel for appellant. They did not say this was the only knowledge they had but on the other hand all testified to knowledge of other sales and showed familiarity with the properties affected by the appropriation, their size, location, improvements, adaptability for business purposes and market value. These witnesses were prominent business and professional men who had lived in Braddock for many years, some of them during their entire fives, and had familiarity with real estate transactions and knowledge of market values by reason of such experience. We think they were clearly competent under the rule announced in many cases: Pittsburg, etc., R. R. Co. v. Robinson, 95 Pa. 426; Smith v. R. R. Co., 205 Pa. 645; Hope v. R. R. Co., 211 Pa. 401; Lally v. R. R. Co., 215 Pa. 436; Markowitz v. R. R. Co., 216 Pa. 535; White v. R. R. Co., 222 Pa. 534.

The sixth and seventh assignments relate to the refusal of the trial judge to permit certain questions on the cross-examination of the witness, Weil. This witness had lived in the neighborhood all of his fife, is an attorney at law, and for many years had been interested in placing mortgages on Braddock real estate. He was subjected to a very searching cross-examination on every phase of the case and among other things was asked what kind of improvements were on a particular property upon which he had placed a mortgage. The question was objected to as incompetent and the objection was sustained. The same witness testified that he had placed a mortgage on another property in 1903 or 1904 and was asked on cross-examination what he considered the fair market value of the mortgaged property at that time. The court sustained the objection to this question but said, “the witness may show what he knows concerning the sale of the property, if it was sold, or if he made inquiries from the owner with respect to value, he may so state.” The witness then proceeded to state how he ascertained the value of the property but when asked the amount of the mortgage he placed on it, on objection he was not permitted to answer. These questions had no reference to the lots of appellee appropriated by the railroad company but related to properties in another part of the borough. They were intended to test the accuracy of the knowledge of the witness and for this purpose might have been very properly allowed although the inquiry was remote to the cause on trial and not material to the issue involved. However, in cases of this character very wide latitude should be given on cross-examination in order to test the value and weight of such testimony. In the present case the widest latitude was given and in the only two instances complained of, the testimony refused could not possibly have done appellant any harm in view of the many other questions of a somewhat similar character asked and answered. The refusal to allow these two questions relating to remote subjects certainly does not constitute reversible error.

The case was exceptionally well tried and the learned court below gave such cogent and convincing reasons to support every position taken in the opinion refusing a new trial that we could very properly have rested our decision on those reasons.

Assignments of error overruled and judgment affirmed.

Mustrezat, J., dissents.


text:
    Dollar Savings Fund & Trust Company, Appellant, v. Bellevue Borough.

      Mortgage — Purchase of mortgage — Assignment—Rights of assignee.

    1. Where a person uses his own money to purchase a mortgage he may take title to it in his own name, or in the name of any one to whom he chooses to have it assigned, and either he or his assignee is entitled to whatever security the mortgage gives.

      Mortgage — Depreciation in value — Land damages — Eminent domain.

    2. Where real estate is depreciated in value by reason of the grading and widening of a street of a borough, and the owner of the property is awarded damages for the injury, but before the award is paid the property is sold in foreclosure proceedings, and owing to the injury brings only a fractional part of the mortgage debt, the owner of the mortgage may follow the fund to the extent of making good his loss by the depreciation caused by the injury.
    3. In such a case, the fact that the owner of the mortgage was interested in a dual capacity, owing to an agreement with the borough to indemnify it against all damages in excess of a stated amount, does not avail to defeat a recovery on the mortgage, the mortgagor not being a party to such agreement and having no interest in it.
    Submitted Oct. 28, 1910.
    Appeal, No. 171, Oct. T., 1910, by Dollar Savings Fund & Trust Company, Administrator c. t. a. of T. Lee Clark, deceased, from order of C. P. No. 4, Allegheny Co., First Term, 1908, No. 596, dismissing exceptions to auditor’s report in ease of Dollar Savings Fund & Trust Company, Administrator, etc., et al. v. Borough of Bellevue.
    Before Brown, Mestre-zat, Potter, ■ Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to the report of George E. Alter, Esq., auditor. Before Carnahan, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      A. H. Trimble, of Trimble & Chalfant, for appellant.

      January 3, 1911:

      Noah W. Shafer, for James E. Harman, claimant, ap-pellee.
   Opinion by

Mr. Justice Elkin,

In a proceeding to assess damages for injuries resulting to an abutting property owner by reason of the grading, curbing and widening of a certain street in the defendant borough the estate of T. Lee Clark on appeal was awarded $4,250. The verdict fixed the amount of the damages and the liability of the borough. It is not therefore interested in what distribution shall be made of the fund in controversy here. Its liability is the same, no matter to what claimants the fund may be awarded. The questions raised by this appeal grow out of claims made by the estate of Clark on one side and the mortgage creditor on the other. The Clark estate as owner of the property injured at the time of the grading and widening of the street claims the entire fund while the mortgagee claims enough of the fund to liquidate the unpaid balance of his mortgage. At the time of the street improvement the injured property was heavily mortgaged but not to its full value. After the street improvement the property was so depreciated in value that on a foreclosure sale only a fractional part of the mortgage debt was realized. The mortgagee having failed to realize the amount of his mortgage out of the proceeds of the foreclosure sale after the grading and widening of the street, presented a petition in the court below asking for leave to intervene as a party to the proceeding to assess the damages of the abutting property owner in order that he might participate in the damages awarded to the extent of the unpaid balance of his morgtage. The court granted a rule to show cause why as mortgagee he should not receive out of the damages that might be awarded so much thereof as he may be entitled to in order to liquidate his claim under the mortgage. To this rule appellant made answer denying the right of the holder or owner of the mortgage to participate in any damages that might be awarded, to which answer a replication was filed by mortgagee. After the original petition was filed • and while the rule to show cause was pending the.case on appeal from the assessment of damages by the viewers came on for trial and a verdict was returned for the amount here-inbefore indicated. At this juncture an auditor was appointed to pass upon the questions raised on the rule to show cause, which had not been disposed of, and to make distribution of the amount of damages fixed by the verdict of the jury. A large amount of testimony was taken in support of the respective contentions of the parties with the result that the auditor found both the facts and law in favor of the mortgage creditor to whom was awarded the unpaid balance of the mortgage debt. A statement of these details has been deemed essential to a proper understanding of the nature of the controversy and to a judicial determination of the legal rights of the interested parties. At the hearing before the auditor appellant attempted to prove a collusive understanding in the nature of a fraud between Harmon, the assignee of the mortgagee, and Hallett, the alleged real owner thereof. This no doubt for the purpose of raising an es-toppel in order to prevent a recovery on the mortgage by either party on the ground that one cannot take advantage of his own wrong. The auditor found as a fact that the acts complained of did not amount to fraud and that Hallett had acted within his legal rights. While the mortgage was assigned to Harmon, the money to purchase it was furnished by Hallett, and the auditor in passing upon the questions involved treated the latter as the real owner, and we think properly so. If, therefore, Hallett cannot recover the balance due on the mortgage neither can Harmon nor any one else. In our view of the case Hallett had a perfect right to purchase the mortgage in his own name or in the name of any one to whom he chose to have it assigned. When he became a purchaser of the mortgage for value he acquired whatever security the mortgage gave. If the real estate bound did not pay the mortgage debt he could proceed for the balance in a personal action on his bond, or if damages accrued to the owner by reason of the taking of or injury to the mortgaged property, the security of the mortgage being thus depreciated, he could follow the fund so awarded' to the extent of making good his loss by the depreciation so occasioned. This is what was done in the present case. It is very earnestly contended that Hal-lett acted fraudulently because he was interested in a dual relation between the borough on one side and the mortgaged property on the other. This situation grew out of the fact that at the time the street improvement was made, Hallett being a large property owner, and as a consequence being interested in having the street graded, curbed and widened, had entered into an agreement with the borough to indemnify it against all damages assessed to property owners in excess of $500. Under his agreement with the borough he was interested in reducing damages to the minimum while as owner of the mortgage on the property damaged his interests were best served by a large award. It is in this connection that his acts are criticised. In other words, appellant seeks to take advantage of the controversy between Hallett and the borough arising out of his contract to indemnify it against damages in excess of $500 as a defense to his claim on the mortgage. We do not see how this defense can avail to defeat a recovery on the mortgage. The borough does not set up the defense and is not benefited by it. Appellant is not a party to the agreement between Llallett and the borough and is not in position to ask for its enforcement. That agreement stands as it did before the present proceedings were instituted. The borough can at any time before barred by the statute proceed against Hallett to recover the amount due according to the terms of his contract. But such a recovery depends upon the contractual relations between Hallett and the borough to which appellant is not a party and in which he has no interest. The only question in the case now pending is whether the claim presented by Hallett is a valid one having the right to participate in the fund for distribution. The learned auditor has found it was and we think the evidence was sufficient to sustain the finding.

Assignments of error overruled and decree affirmed. Costs to be paid by appellant.


author: Mr. Justice Brown,

text:
    Kennedy v. Pittsburgh, Appellant.

      Negligence — Municipalities—Defective sidewalk — Pedestrians—Contributory negligence.

    A pedestrian who, in broad daylight, stumbles over a stone, block in the center of a city sidewalk which protrudes four or five inches above the surrounding surface and of which there is an unobstructed view, is barred by contributory negligence from recovery against the city.
    Argued Oct. 28, 1910.
    Appeal, No. 172, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 50, on verdict for plaintiff in case of Margaret Kennedy v. City of Pittsburgh.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Carnahan, J.
    The facts appear in the opinion of the Supreme Court.
    Verdict for plaintiff for $2,250 and judgment thereon. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      C. K. Robinson, with him C. A. O’Brien and H. M. Irons, for appellant.

      James A. Wakefield, for appellee.

      January 3, 1911:
   Opinion by

Mr. Justice Brown,

If the plaintiff succeeded in showing that the defendant was guilty of negligence, she at the same time most clearly established her own as a contributing cause of the injuries she sustained. In broad daylight, between two and three o’clock on the afternoon of March 23, 1907, as she was walking on Fifth avenue, in the city of Pittsburgh, and could have seen any obstruction in her way if she had exercised ordinary care in looking where she was going, she stumbled over a stone block in the center of the sidewalk, which protruded four or five inches above the surrounding surface. The only witnesses called to show the obstruction in the pavement were the plaintiff, her mother and her sister, who concurred as to the prominence of the obstruction. In view of their concurrent testimony, the contention of the plaintiff, as stated by her counsel in his argument on this appeal, is that “the defect in the sidewalk was so notorious as to be evident to all passers and had existed and continued for such a length of time that the defendant was bound to take notice of its existence.” While this statement was made to show the negligence of the city, it presents with unquestionable correctness the situation so far as the plaintiff is concerned, and what “was so notorious as to be evident to all passers” must have been evident to her if she had given any heed to where she was going. Under Shall-cross v. Phila., 187 Pa. 143; Kennedy v. Phila., 220 Pa. 273, and kindred cases, defendant’s point should have been affirmed. The assignments of error are sustained, the judgment is reversed and is entered here for the defendant.


author: Per Curiam,

text:
    Bell v. Ricketson, Appellant.

      Wills — Fees—Devise over — Death of first taker.

    A will which, provides “the remainder of my estate I should like divided into three portions, and given one third to each child,” and in event of “the death of all my children without heirs, I wish my property divided between my sister’s children” and also “in case of the death of any of the three, without children of his or her own, such property must go to the surviving brother or sister” and finally directs, “But in ease of the death of all my children without family and without a will all possessions are to return to my own family” gives to the children, who survived the testator, estates in fee simple, inasmuch as the provisions of the will contemplate a death or deaths of the children within the lifetime of the testatrix.
    Argued Oct. 28, 1910.
    Appeal, No. 175, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third T., 1910, No. 261, for plaintiff in case of A. Marshall Bell v. John H. Bicketson, Jr.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Mosch-zisker, JJ.
    Affirmed.
    Case stated to determine the marketability of title to property in Stowe township.
    Swearingen, P. J., filed the following opinion:
    Emma M. Bell died testate on August 8, 1896, seized of-certain real estate in Stowe township, Allegheny county, Pennsylvania. Her will was dated September 15, 1891, and after her death was duly probated, and now remains on file in -the register’s office of Allegheny county, Pennsylvania, and is recorded in Will Book, vol. 51, p. 471. At the time of her decease the said Emma M. Bell was a widow. She left surviving her one daughter, Mary Marshall Bell, now intermarried with Carroll Hamilton Fitz-hugh, and two sons, Arthur W. Bell, now unmarried, and A. Marshall Bell, who is married, and no other children or heirs at law.
    After the death of the said testatrix, Mary Bell Fitz-hugh and her husband, A. Marshall Bell and wife, and Arthur W. Bell, by their deed of partition, dated July 31, 1908, and of record in the recorder’s office of said county of Allegheny, in Deed Book, vol. 1596, p. 380, divided among themselves the aforesaid real estate, of which the said A. Marshall Bell received, inter alia, lots numbered 362, 364, 366 and 368 in block “N” of Thompson Bell’s Plan of Lots, which is recorded in the recorder’s office of said county of Allegheny in Plan Book, vol. 6, p. 287, being together bounded and described as follows, to wit:
    “Beginning at a point on the northerly side of Belle Avenue on the line dividing lots numbered three hundred and sixty (360) and three hundred and sixty-two (362); thence in a westerly direction along said side of Belle Avenue, eighty (80) feet to the line dividing lots numbered three hundred and sixty-eight (368) and three hundred and seventy (370) in said plan; thence along said dividing line in a northerly direction one hundred and twenty (120) feet to the southerly side of Pine Alley; thence in an easterly direction along said side of Pine Alley, eighty (80) feet to the line dividing lots numbered three hundred and sixty (360) and three hundred and sixty-two (362) in said plan; thence in a southerly direction along said dividing line one hundred and twenty (120) feet to the northerly side of Belle Avenue, at the place of beginning.”
    The said A. Marshall Bell has agreed to sell and convey, by deed of general warranty in fee simple, the said lots hereinbefore described, to John H. Ricketson, Jr., for the sum of $2,500, and has tendered to said Ricketson a proper deed therefor, but said John H. Ricketson, Jr., has refused to pay the said A. Marshall Bell the said sum of $2,500, upon the ground that the said A. Marshall Bell does not have the title in fee simple to said premises, but has only a life estate therein under the will of Emma M. Bell, his mother. The question for decision therefore is, whether or not, under the will of said Emma M. Bell, the title in fee simple to said premises became vested in said devisees; and it is agreed that, if the court be of opinion that title in fee simple did pass to them by virtue of said will, then judgment shall be entered in favor of A. Marshall Bell and against John H. Ricketson, Jr., for the sum of $2,500; otherwise, judgment shall be entered in favor of the defendant. The costs are to follow the judgment, each party reserving the right of appeal.
    In said will, the testatrix, after bequeathing certain personal property to her daughter, Mary Marshall Bell, proceeded, “The remainder of my estate I should like divided into three portions, and given one-third to each child.” Further along this appears: “In such an event as the death of all my children without heirs, I wish my property divided between my sister’s children, those of E. B. M. Denny under no circumstances is money of mine to revert to my husband’s family. Let my children in making a will remember this.” Also, “In case of the death of any one of the three, without children of his or her own, such property must go to the surviving brother or sister.” The final clause of the will is: “But in case of the death of all my children without family and without a will all possessions are to return to my own family, and in no case to revert to the family of my husband.”
    It appears to us that in the clause of the will first above cited the testatrix did give to each of her three children an estate in fee simple in the land described. It is true that she does not use words of inheritance, but those words are not now necessary. Her intention, as we gather it from the whole will, was to vest in her children estates in fee simple. The question then is, does the subsequent apparent devise over, in case of the death of the first takers, reduce the estates thus granted in fee simple to life estates? We are of opinion that the devise over does not have that effect. We think the proper meaning of the clause under consideration is that the death of the first taker must have taken place in the lifetime of the testatrix, and that the case is ruled by Richar4s v. Bentz, 212 Pa. 93.

      January 3, 1911:

      Error assigned was in directing judgment for plaintiff.

      Alexander Gilfillan, for appellant.

      Charles F. Patterson, with him R. H. Hawkins, for ap-pellee.
   Per Curiam,

This judgment is affirmed on the opinion of the court below.


text:
    Ritter, Appellant, v. Pittsburg Railways Company.

      Negligence — Street railways — Instructions—Appeals—Assignments of error.

    1. In an action to recover damages for death, wherein the verdict of the jury was for the defendant, whether on appeal assignments of error relating to instructions of the court should be sustained, is immaterial where from the evidence the conclusion is irresistible that the accident was due to decedent’s failure to observe ordinary care under the circumstances.

      Negligence — Street railways — Contributory negligence — Crossings— “Stop, looh and listen.”

    2. In an action to recover damages for death resulting from a collision with a street car, binding instructions should be given for the defendant where it appears that the car could have been seen approaching for more than a block and that the deceased started from a store on the south side of a fifty feet wide, doubled tracked street to cross it diagonally as the car was approaching on the north side track, and that when he was struck he was at the first rail of that track at his horse’s head, trying to back him. Such a case falls within the rule laid down in Carroll v. Railroad Company.
    Argued Oct. 28, 1910.
    Appeal, No. 180, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., First T., 1908, No. 883, on verdict for defendant in case of Margaret Ritter v. Pittsburg Railways Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      January 3, 1911:
    Trespass to recover damages for death. Before Car-nahan, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various instructions of the court and omissions to charge.

      R. T. M. McCready, for appellant.

      Craig Smith, with him Clarence Burleigh and William A. Challener, for appellee.
   Per Curiam,

A car of the defendant company struck and killed the husband of the appellant on one of the streets of the city of Pittsburg. In this action, brought by her for the recovery of damages for herself and her husband’s children, the’ verdict of the jury was returned for the defendant, manifestly on the ground of the contributory negligence of the deceased, and on this appeal from the judgment upon it the assignments of error complain of what the court charged and of what it failed to charge as to negligence and contributory negligence. Whether any of these assignments ought to be sustained is immaterial, for, from our examination of the testimony of the only eye witness to the accident called by the plaintiff, the conclusion is irresistible that the death of her unfortunate husband was due to his failure to observe ordinary care under the circumstances. The car could have been seen approaching for more than a block, and the testimony of the witness for the plaintiff who saw the collision, though in some parts contradictory, is distinct and repeated, that the deceased started from a dry goods store on the south side of the street to cross it diagonally as the car was approaching on the track on the north side, and that when he was struck he was at the first rail of that track at his horse’s head, trying to back him. The street from curb to curb was fifty feet wide. From the curb on the south side to the first rail on the north track the distance was twenty-six feet and ten inches, over which, including the first track, the deceased passed from the time the witness first saw him until he was struck. The case clearly falls within the rule laid down in Carroll v. Penna. R. R. Co., 12 W. N. C. 348, and later cases, and the defendant’s point, asking that a verdict be directed in its favor, should have been affirmed.

Judgment affirmed.


author: Mr. Justice Mestkezat,

text:
    McLaughlin v. Kelly, Appellant.

      Negligence — Municipalities—Defective sidewalks — Pedestrians — Defective grating — Notice—Landlord and tenant.

    1. The public has the right to use the whole of the unoccupied portion of a city pavement from the building line to the curbstone, and the primary duty of keeping it in repair rests upon the owner of the abutting premises. It is the duty of the property owner to exercise the same care in keeping in good condition a grating covering a hole in the sidewalk as any other part of the pavement and the proximity of the hole to the building is immaterial.
    2. If a sidewalk becomes defective while in the occupancy and control of a tenant, resulting in injury to a third person, the tenant is liable; and if the defect existed at the time of the demise, the landlord is responsible.
    3. Notice of the existence of a defect in a sidewalk should be imputed to the owner of the abutting building within a much less time than that necessary to charge a municipality with notice.
    4. In an action against a landlord by a pedestrian to recover damages for personal injuries a verdict for the plaintiff will be sustained where plaintiff's proof shows that while out walking in the evening she stopped to talk to some friends and in stepping aside on a sidewalk to avoid the crowd on the street fell into a hole covered with an iron grating resting on a wooden frame, in front of defendant’s building; that defendant had owned the property for about twenty years, during which time there had been no change made in the hole and no repairs made to the covering, that in 1904 he let the premises to a tenant until April, 1905, and in January, 1905, he relet the premises for three years to the same tenant, who was in possession at the date of the accident; that at the time of the accident the wooden framework supporting the grating was entirely rotted away and that it had been in a defective condition for ten or fifteen years.
    5. Where in such case the defendant testifies that during his twenty year ownership of the property he visited it once a month to collect the rents but made no examination of the grating himself and had no inspection made by anybody else, the question of the landlord’s actual or constructive knowledge of the defect is for the jury.

      Practice — Verdict—Remittitur—New trial — Provision for •payment.

    6. Where the trial court makes an order granting a new trial unless plaintiff files a stipulation within five days that he will accept a certain reduced sum in full satisfaction of his judgment provided the same be paid within ten days of the filing of the stipulation and the plaintiff files the remittitur but the defendant does not pay the same within ten days thereafter, the Supreme Court will not reverse a judgment entered on the full verdict.
    Argued Oct. 28, 1910.
    Appeal, No. 144, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1907, No. 648, on verdict for plaintiff in case of Mary McLaughlin v. Edward Kelly, Jr.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Mosch-zisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict for plaintiff for $3,750. The court made the following orders:
    And now, to wit, May 11, 1910, it is ordered that if plaintiff will within five days from this date file a stipulation, that she will accept in full satisfaction of the verdict in this case the sum of $2,200 and costs, provided the same is paid within ten days from the filing of said stipulation a new trial be refused otherwise that a new trial be granted.
    And now, to wit, this June 3, 1910, it appearing to the court that on March 8, 1910, a verdict was rendered in favor of the above-named plaintiff and against the above-named defendant in the sum of $3,750 and motions for a new trial and judgment non obstante veredicto both having been refused the court made the following order (quoting above order).
    And whereas, plaintiff filed a stipulation on May 14, 1910, accepting $2,200 as provided in said order of May 11, 1910, and it appearing further that said defendant has failed and refused to pay said sum of $2,200 and upon payment of the verdict fee the prothonotary, in error entered judgment on said verdict in the sum of $2,200 instead of $3,750.
    It is therefore ordered and decreed upon motion of L. S. Levin, attorney for plaintiff, that the entry of said judgment be corrected to read in favor of plaintiff and against defendant in the sum of $3,750 instead of $2,200.

      Errors assigned were various instructions and rulings of the court and (7, 8) the above orders, quoting them.

      Willis F. McCook, with him B. J. Jarrett, for appellant.
    There was no such danger as the law holds a man to contemplate or provide against or such a danger as affected the safety of the sidewalk: Quinn v. Phila., 224 Pa. 176; King v. Thompson, 87 Pa. 365; Stackhouse v. Yendig & Co., 166 Pa. 582; Stewart v. Jermon, 5 Pa. Superior Ct. 609.
    If the defendant was not entitled to binding instructions, the trial judge did not give the jury proper instructions: McNerney v. Reading City, 150 Pa. 611; Feather v. Reading, 155 Pa. 187; Rachmel v. Clark, 205 Pa. 314; Drinkwater v. Quaker City Cooperage Co., 208 Pa. 649; Iseminger v. York Haven W. & P. Co., 206 Pa. 591; Eas-ton Boro. v. Neff, 102 Pa. 474; Ayres v. Wanamaker, 220 Pa. 313; Hayes v. Penna. R. R. Co., 195 Pa. 184; Kelch-ner v. Nanticoke Boro., 209 Pa. 412.
    To establish constructive notice there should be some fact or facts from which such notice could be inferred: Lohr v. Boro., 165 Pa. 109; Lindstrom v. Penna. Co., 212 Pa. 391; Johns v. Penna. R. R. Co., 226 Pa. 319.
    January 3, 1911:
    The duty of an owner of property not in possession should not be any greater than the duty of a municipality as to sidewalks under its control: Lindstrom v. Penna. Co., 212 Pa. 391; Cunningham v. Rogers, 225 Pa. 132.

      Leonard S. Levin, for appellee.
    The public has the right to the proper use of every portion of a public highway: Stewart v. Alcorn, 2 W. N. C. 401; Dickson v. Hol-lister, 123 Pa. 421.
    When a landlord places a tenant in possession of premises on which there is a defective sidewalk the mere fact of the tenant’s occupancy when an injury occurs will not relieve the landlord: Kirchner v. Smith, 207 Pa. 431; Reading City v. Reiner, 167 Pa. 41.
    The court had a right to make the orders complained of: Fleming v. Dixon, 104 Pa. 67; Campbell v. Pittsburg Bridge.Co., 23 Pa. Superior C.t. 138; Homestead Bank v. McBroom, 4 W. N. C. 410.
   OpiNion by

Mr. Justice Mestkezat,

This is an action of trespass brought by a pedestrian to recover damages for injuries she sustained in falling into an opening in the pavement on Wylie avenue, Pitts-burg. The plaintiff testified that she was walking on the pavement in front of defendant’s premises about eight o’clock on the evening of November 3, 1906, and, meeting some friends, stopped to talk to them. The street was crowded and in stepping aside to avoid the crowd she fell into a hole in front of defendant’s building And was severely injured. The hole led into the cellar and was covered by an iron grating resting on a wooden frame. It extended about fourteen inches from the building and was twenty-eight inches long and twenty-six inches wide. The plaintiff alleges that the framework had become rotten and insufficient to properly support the grating, and that its defective condition was the result of the defendant’s negligence.

At the time of the accident the premises were leased to and in the actual possession of a tenant. The defendant had owned the property for about twenty years during which time there had been no change made in the hole and no repairs made to the covering. In May, 1904, he let the premises to a tenant until April 1, 1905. In January, 1905, he relet the premises to the same tenant for a period of three years from April 1, 1905. This tenant was in possession in November, 1906 when the plaintiff fell into the hole and was injured.

The defendant denies that the plaintiff’s injuries resulted from his negligence because: (a) the grating was so close to the building and away from the line of travel that he could not be held to have foreseen the accident, and the length of time in which the sidewalk had been used removed any doubt as to its reasonable safety; (b) the premises were in possession of a tenant whose duty it was to repair; and (c) the evidence was insufficient to impute notice of the defect to the defendant.

We do not think any of these reasons sufficient to defeat the action. The proximity of the hole to the building did not relieve the defendant from using reasonable care to keep the grating and its wooden support in proper and safe condition. The public had the right to use the whole of the unoccupied portion of the pavement — from the building line to the curbstone — and the primary duty of keeping it in repair rested upon the owner of the abutting premises. The grating was a part of the sidewalk, and it was the duty of the property owner to exercise the same care in keeping it in safe condition as any other part of the pavement. It has been ruled by this court that a property owner maintaining a coal hole .or other opening in a sidewalk is bound to know that persons will pass and repass and step upon the cover without apprehending danger, and he is, therefore, held to care and diligence in keeping it secure. This applies to the whole sidewalk which is open and in use by the public.

We are not impressed with the argument that the length of time the grating had been in use removed any doubt as to its reasonable safety. If that be true, the wood and iron in a pavement or building would become more durable as the years went on, and consequently the necessity for inspection and repairs would diminish with the growing age of the structure. The fallacy of such logic is apparent. On the contrary, the fact that this grating had been supported by the same wooden frame for at least twenty years to the defendant’s knowledge, and possibly for a much longer time, was notice to him as a prudent man that effective inspection might show that the iron and the wood supporting it should be replaced. The defendant’s own testimony discloses that he did not make such inspection as would detect the real condition of either the grating or its wooden support.

That the premises at the time of the accident were in possession of a tenant does not under the circumstances relieve the defendant from his duty to inspect and repair the pavement. The primary duty of keeping a sidewalk in repair rests upon the owner of the abutting premises. The municipality is liable to a party injured by reason of its defective condition but the owner is ultimately responsible. If the sidewalk becomes defective while in the occupancy and control of a tenant resulting in injury to a third person, the tenant is liable, and if the defect existed at the time of the demise, the landlord is responsible to the injured party. This is ruled in many cases: Knauss v. Brua, 107 Pa. 85; Fow v. Roberts, 108 Pa. 489; Wunder v. McLean, 134 Pa. 334; Reading City v. Reiner, 167 Pa. 41; Brown v. White, 202 Pa. 297; Kirchner v. Smith, 207 Pa. 431. The landlord cannot relieve himself from liability by placing the tenant in possession of the property. It is his duty to remove the nuisance or defect before he delivers the premises to the tenant, and if injury results on account of his failure to perform this duty he is not relieved from liability by reason of the tenant’s possession. To relieve a landlord from liability under such circumstances would be, as said by Barrows, J., in Campbell v. Portland Sugar Co., 62 Me. 552 (16 Am. Rep. 503), contrary to public policy and substantial justice, for it would not infrequently operate to deprive the injured party of all remedy except against an irresponsible tenant through whom a negligent landlord would reap the profits, without bearing the responsibilities of his proprietorship.

While the defendant had been the owner of the property for twenty years or more, it seems that during all that time it had been in possession of a tenant. As noted above, the defendant let the premises until April 1, 1905, and during the preceding January he relet to the same tenant for a term of .three years from April 1, 1905. The accident occurred in November, 1906. It was claimed by the plaintiff on the trial and she submitted testimony to show that the defect in the sidewalk existed at the time the premises were let to the tenant who was in possession when the plaintiff fell in the hole and was injured. It is contended by the defendant that by reason of the tenancy he was not in possession of the premises and, therefore, could not have repaired the grating. But this position is not tenable. The ground of the defendant’s liability for the nuisance is that it existed at a time when he had the opportunity or power to abate or remove it and failed to do so. When the lease was executed and the term was created, the finding of the jury is that the defect existed. It was then his duty before renewing the lease to have abated the nuisance. It was within his power to do so and his failure to exercise that power imposes liability. “Nor do I perceive how the liability of the landlord in such cases,” says Magie, J., in Ingwersen v. Rankin, 47 N. J. L. 18 (54 Am. Rep. 109), “will be diminished by the fact that he renewed the tenant’s lease without retaking actual possession. Such a conclusion would be opposed to the principles creating and governing his liability. If a nuisance is created during a term already existing, no liability falls on the landlord pending that term, for the reason that he has no legal means of abating the nuisance. He cannot enter upon his tenant’s possession for that purpose, and would be a trespasser if he did so. But when the term expires his right of entry and power to abate at once arise and for that reason a liability commences. If he declines to reenter and abate the nuisance, and relets the premises, the liability which arose at the termination of the term will be neither discharged nor abated. The test of his liability in such case is his power to have remedied the wrong. If he has, but fails to exercise such power his liability remains. The cases seem to be uniform in this view.” The same doctrine prevails in England: Rex v. Pedly, 1 Ad. & E. 822; Rich v. Basterfield, 4 C. B. 782; Todd v. Flight, 30 L. J. Ch. 21; and in New York: Clancy v. Byrne, 56 N. Y. 129 (15 Am. Rep. 391); Swords v. Edgar, 59 N. Y. 28 (17 Am. Rep. 295); Ahern v. Steele, 115 N. Y. 203 (12 Am. St. Rep. 778).

We do not agree with the contention that the evidence was not sufficient to warrant submitting the question of actual and constructive notice to the defendant of the defect in the sidewalk. This is not an action against the municipality but against the owner of the premises whose duty it was primarily to keep the premises in repair: Duncan v. Phila., 173 Pa. 550; Mintzer v. Hogg, 192 Pa. 137. As said by Mr. Justice Clark in Dickson v. Hollister, 123 Pa. 421, 429: “It was his duty to exercise reasonable care and diligence, not only in making, but in keeping it (the sidewalk) safe and secure. He was bound to know that persons would pass and repass on this pavement not only in day time, but in the night time also. ... It is quite certain that this cover was not secure, or it would not have turned, and the jury has found that its insecure condition was owing to the defendants’ want of due diligence and care concerning it. It is absurd to say that in order to charge the owner of the premises with notice, 'the defect must be so notorious as to be evident to all pedestrians passing in the immediate neighborhood!’” The- primary duty, therefore, rested upon the defendant as landlord to exercise the care of a reasonably prudent man to protect the public using the sidewalk from dangers necessarily incident to a defective covering of the hole in the pavement. It was testified that the grating rested on wooden strips or framework and that at the time of the accident “the entire framework was entirely rotted away.” The testimony further showed that it had been in a defective condition for ten or fifteen years. This, it is true, was simply the opinion of the witness based on the condition of the framework at the time of the accident, but he, being a carpenter of thirty years experience, was competent to testify on the subject, and hence the court could not have withdrawn the testimony from the jury. The defendant testified that during his twenty years ownership of the property he visited it once a month to collect the rents, but made no examination of the grating himself and had no inspection made by anybody else. If the testimony of the other witnesses be believed, the wooden framework had decayed to such an extent as to be wholly insufficient to support the grating, thereby creating a defective covering of the hole which was a menace to every pedestrian who had occasion to use that part of the sidewalk. The evidence was sufficient to show that the defendant knew the condition of the covering over the hole if he had exercised the care required of him. He occupied a different position from that of the municipality. The owner has a primary duty to keep the sidewalk in a safe condition, while the duty of the municipality is secondary and supplemental, to see that the owner makes and maintains a safe pavement: Lohr v. Philipsburg Boro., 156 Pa. 246. The law charges a municipality with notice of a defect if it has existed a sufficient length of time to be observed by its officers exercising reasonable supervision. But notice should be imputed to the owner after the defect has existed for a much less time, because he gives the property his constant attention and the defect is sooner discernible. We think the jury was right in finding that under the circumstances the defendant did know or by the exercise of reasonable diligence could have known of the defective covering over the hole in the sidewalk which caused the plaintiff’s injuries.

Whether or not the defendant had actual knowledge was for the jury under the testimony submitted. He visited the premises at least once every month for twenty years to collect the rents. He says he “couldn’t see anything wrong with it,” implying that he did see the grating at least on some of the visits. O’Toole, a witness called by the defendant, was employed to lay a new pavement on the sidewalk but had nothing to do with the grating or its support, and hence his testimony could not aid the jury in determining the condition of the iron grating and its wooden support. If the support was rotten and worthless at the time of the accident, and for several years prior thereto, as testified by the witness, the defendant saw it and permitted it to remain in the insecure condition, or was entirely incapable of making a proper inspection. In either case he, as owner of the premises, failed to perform the duty of a reasonably prudent man, and must accept the penalty which the law imposes for his negligence.

The question of the contributory negligence of the plaintiff is not before us. When she stepped aside to •avoid the crowd she was still on the pavement, and that act did not convict her of negligence. Under the evidence, she was on the sidewalk and where she had the right to be. She testifies that she was exercising care when she stepped toward the building. “Q. Were you using the care that you usually use when you walk on the sidewalk? A.' I certainly was, I tried to be as careful as possible.” The cover on the hole was apparently substantial and safe, and the plaintiff was not required to make a critical examination before stepping on it. In the absence of knowledge to the contrary, she had the right to assume that it would support her weight. The request for binding instructions, therefore, could not have been granted on the ground that the plaintiff, by her negligence, contributed to her injuries. If the defendant desired further or more specific instructions as to plaintiff’s negligence than the court had given, they should have been requested in points embodying the instructions desired: Conner v. Traction Co., 173 Pa. 602; Leary v. Traction Co., 180 Pa. 136.

The ninth assignment violates rule 31, and hence will not be considered: Readdy v. Shamokin, 137 Pa. 92; Raymond v. Schoonover, 181 Pa. 352. The sixth assignment must be dismissed as there was evidence from which the jury coiild determine the plaintiff’s expenses incurred by reason of her injuries, and there is nothing to show that they were unreasonable. The matters of practice complained of in assignments seven and eight are in substantial accord with the practice approved in Fleming v. Dixon, 194 Pa. 67, and hence those assignments are not sustained.

The judgment is affirmed.