author: Mr. Justice Stewart,

text:
    Dailey's Appeal.

      Election law — Improper marking of ballot — Act of April 29, 1903, P. L. 338.

    At a municipal election held February 15, 1910, a ballot was cast containing a cross mark in the democratic square, indicating a vote for all the candidates of that party, including one for the office of school director. The ballot also contained a mark to the right of the name of another person that had-been written into the ballot as a candidate for school director. Held, that under the Act of April 29, 1903, P. L. 338, as under the election Act of June 10,1893, P. L. 419, which it amended, the entire ballot was illegal: Newberry Township Election, 187 Pa. 297, followed.
    The use of the word “may” in the Act of April 29,1903, P. L. 338, instead of the word “shall” in sec. 22, of the amended act of June 10, 1893, P. L. 419, does not change the law giving to a voter a choice of methods in the preparation of his ballot.
    Argued April 25, 1911.
    Appeal, No. 256, Jan. T., 1910, by Richard P. Dailey, from judgment of Q. S. Erie Co., Feb. Sessions, 1910, No. 46, in the Matter of the Election Contest for Select Councilman in the Fourth Ward of the City of Erie.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed,
    Petition in an election contest.
    The facts appear in the opinion of the Supreme Court.

      Error assigned among others was in deciding that the ballot in question was not a legal ballot for Richard P. Dailey, democratic candidate for select councilman.

      Frank Gunnison, of Gunnison, Fish, Gifford and Chapin, with him L. E. Torrey, for appellant.
    — The Act of April 29, 1903, P. L. 338, has changed the law from what it was under the act of 1893 as construed in Newberry Township Election Case, 187 Pa. 297; Rich v. Keyser, 54 Pa. 86; In re Carlson’s License, 127 Pa. 330.

      E. L. Whittelsey, with him P. Vincent Gifford, for appellees,
    cited: Newberry Township Election, 187 Pa. 297; McCowin’s App., 165 Pa. 233; Redman’s App., 173 Pa. 59; Gulick’s App., 192 Pa. 446.
    July 6, 1911:
   Opinion by

Mr. Justice Stewart,

At the municipal election held in the fourth ward of the city of Erie on February 15, 1910, several ballots admittedly irregular were cast. We are concerned with a single one of these. It contained a cross mark in the democratic-square, indicating a vote for all the candidates of that party.- Included among these candidates was Jacob Steinfurth, candidate for the office of school director. The ballot also contained a mark to the right of the name of John Heimburger that had been written into the ballot as a candidate for school director. The court below held it to be an attempt to vote for two persons for the same office when one only could be voted for, and therefore rejected it entirely from the count. The appellant who is a candidate for the office of select councilman on the democratic ticket complains of this, and insists that under the law the ballots should be counted for himself and all other candidates on the democratic ticket except the candidate for school director; that the irregularity went no further than to nullify the vote for that office. It will be observed that the irregularity is precisely the same as that which gave rise to the controversy in Newberry Twp. Election, 187 Pa. 297, where it was held that the ballot was wholly defective, and the court below was sustained in rejecting it from the count. That case arose under the election Act of June 10, 1893, P. L. 419. It is contended that the ruling there is inapplicable here because of the change effected in the law by the amending Act of April 29, 1903, P. L. 338. The difference in the language of the two acts relied upon as supporting this view is, that in the earlier act the word “shall” is used, while in the later one the word “may ” is employed in dealing with the same subject. Section 22 of the earlier act provides that the elector “shall prepare his ballot by marking, if he desires to vote for every candidate of a particular party, a cross in the circle above the column of such party, if otherwise he shall mark in the appropriate margin or place a cross (x) opposite the party named or political designation, or a group of candidates for presidential electors, and opposite the name of the candidate of his choice for each other office to be filled," etc. As amended by act of April 29, 1903, this section now reads, “If he desires to vote for every candidate of a political party, he may make a cross mark in the appropriate square, opposite the name of the party of his choice, in the straight party column on left of the ballot, and every such cross mark shall be equivalent to a vote for every candidate for the party so marked. If he desires to vote for an entire group of presidential electors, he may place a cross mark in the appropriate square., at the right of the name of the party of his choice. If he desires to divide his vote among candidates from different groups of presidential electors, he shall make a cross mark in the appropriate square to the right of the name of each candidate for presidential electors for whom he desires to vote. Provided, that a mark in the straight party column opposite the name of the party of his choice, shall also be counted as á mark for each presidential elector nominated by such party.

“He may vote according to the above provisions, for the candidate of his choice for each office to be filled, according to the number of persons to be voted for by him for each office, or he may insert in the blank space provided therefor, in accordance with sec. 14 of this act any name not already on the ballot," etc.

A comparison of the two acts must satisfy that the primary object in amending this particular section, was not to introduce substantial changes in the law, but rather to change the form of the ballot, and to make clear what before was inadequately expressed. Under the earlier act a choice of methods was allowed the elector when he came to prepare his ballot, notwithstanding the employment of the word “shall” in that connection. To vote a straight party ticket he could either place a cross mark in the circle above the party designated, or, no matter how many names of candidates appearing thereunder, he could accomplish the same result by placing his mark opposite the name of each. This much we have repeatedly ruled. The employment of the word “may” in the amending clause, gives no larger privilege in this regard than the elector enjoyed before; he may still employ either method with like definite results as before; he may adopt both without invalidating his ballot, but whether he adopt either or both, he has exhausted his privilege; and if having done this, he mark within the square opposite the name of a candidate for an office, for which the party of his choice has nominated another, it is an attempt to vote for two candidates for an office to which one only is to be elected, and the ballot is nullified. This is the doctrine of New-berry Twp. Election, supra, and we can discover no purpose in the amended act of 1903 to make any change in this respect. The difference in phraseology between the two acts signifies nothing more than a purpose on the part of the framer of the later act, to improve on the literal structure of the earlier, and in this we think he was successful. While in acts of assembly the words “shall” and “may” are often of like significance, yet it not infrequently happens that they are not of equal appropriateness. Here, considering all that was intended by the act, the word adopted in the amending section, even though it add nothing by way of perspicuity, is yet the more appropriate.

The act of 1903 makes but slight verbal change in the amended section of the act of 1893. The section referred to provides that if a voter mark more names than he is entitled to vote for for an office, or if for any reason it is impossible to determine the voter’s choice for any office to be filled, his ballot shall not be counted, for such office, but the ballot shall be counted for all other offices for which names of candidates have been properly marked. In New-berry Twp. Election, supra, where the ballot had the same irregularity as this, the contention was made that under this provision it should be counted for all other offices than those duplicated; but it was there held, quoting from the opinion, “The difficulty in applying this section to the facts of this case is that none of the names of candidates have been properly marked.”

We see nothing in the amendment to the section of the act here involved that exempts it in any way from the ruling in Newberry Twp. Election, supra, and following that authority we dismiss this appeal, and affirm the judgment of the court below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Zuraw, Appellant, v. Hammermill Paper Company.

      Negligence — Master and servant — Safe place to work — Manifest danger — Assumption of risk — Nonsuit.
    In an action for damages for personal injuries a nonsuit is properly-entered where it appears that the plaintiff had been employed for over two months as one of a gang of men working at night in unloading pulp wood from flat cars into a shed at defendant’s plant, in which operation it was necessary for the gang to push the empty cars out of the shed by hand; that in the course of the work, the floor on either side the tracks became littered with bark and rubbish, which was cleaned up from time to time so as not to obstruct the track; that the space between the cars and the shed was very narrow and not a fit place to walk, and not intended or suffered by the defendant to be used for that purpose; and that the plaintiff, when he tripped on the rubbish and was injured by the wheels of a car which was being pushed out was around in front of the car and on the side next to the shed.
    Argued April 25, 1911.
    Appeal; No. 267, Jan. T., 1910, by plaintiff, from order of C. P. Erie Co., Nov. T., 1908, No. 131, refusing to take off compulsory nonsuit in case of Martin Zuraw, by his next friend, John Maras, v. Hammer-mill Paper Company.
    Before Fell, C. J., Brown, Mestrezat, Stewart amd Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries.

      The facts appear in the opinion of Walling, P. J., discharging rule to take off nonsuit, as follows:
    Plaintiff was employed by defendant as one of a gang of men engaged in unloading pulp wood from flat cars into a shed at defendant’s plant. He worked nights, and at the time of the accident the men had unloaded one car and pushed it out and were pushing a loaded car in, when plaintiff’s foot was caught under a car wheel and crushed. The witnesses spoke through an interpreter, and the facts were not perfectly developed.
    There was no faulty construction; the building or shed, where the wood was unloaded, was all right, and so was the track and the car; and the place was lighted by electricity.
    The car, when in place to be unloaded, came close to the shed, and in throwing off the wood pieces of bark and wood would drop down between the car and shed, and from time to time were cleared up by the workmen, perhaps under the direction of the foreman. When the said loaded car was being pushed in there was some such rubbish lying in there, and plaintiff claims to have stepped on it and slipped under the wheel.
    Plaintiff was over seventeen years old and had been working at the same work and same place for two and one-half months. He had helped to push out and in and unload over 100 cars, and knew about such rubbish accumulating there, and could have seen it.had he looked. Plaintiff, when hurt, was around in front of the car, and on the side next to the shed. In fact he was in between the front end of the car and the shed. He was not in sight of the boss and was not told by anyone to go in where he was.
    The men were directed to push the car in, but he was not where he could assist much of any to that end. Manifestly the men should have kept to the rear of the car or on the outside and not between it and the shed. The immediate work was pushing the car, and plaintiff had a safe place to assist at that, either in the rear or on the outside, and the defendant was not bound to anticipate that plaintiff would voluntarily put himself in a dangerous place between the car and shed, when the car was in motion, and having a safe place in which to work, the defendant is not liable because plaintiff voluntarily took an unsafe place.
    The very narrow space between the shed and car was not a fit place to walk, even when free from rubbish; and there is nothing to show it was intended or suffered by defendant to be used for that purpose. And when the car was in position to be unloaded, the bark and other rubbish between it and the shed added nothing to the danger of the workmen engaged in transferring wood from the car to the shed. The rubbish was cleaned up from time to time so as not to obstruct the track.
    I see no particular instruction that a young man would need in the work of throwing wood from a flat car into a shed, or in pushing a car. It was certainly not necessary to warn him that if he got his foot under a car wheel it would be hurt, and besides, he had been employed there long enough to fully understand the situation. It was a most distressing accident, but in our opinion was not caused by any default on part of defendant.
    And now, March 28, 1910, the rule to take off nonsuit in above stated case is discharged.

      Error assigned was refusal to take off nonsuit.

      Chas. P. Hewes, for appellant.

      W. P. Rossiter, of Rossiter & Thompson, with him John Hampton Barnes and Louis Rosenzweig, for appellee.
    July 6, 1911:
   Per Curiam,

The judgment is affirmed on the opinion of Judge Walling.


author: Mr. Justice Brown,

text:
    Eckels v. Weibley, Appellant.

      Equity — Injuctions—Nuisance—Threatened danger to health and life — Reasonable use of property — Stock yard — Residential district.

    1. While it is true that an injunction will not issue to allay mere fears and apprehension, nevertheless, if it be shown that there is reasonable and just ground to apprehend the establishment of a nuisance threatened by the defendant and which he has power to commit, and it is reasonably certain that the health and comfort of those complaining will be impaired by the threatened act, the writ will go out.
    2. An injunction restraining a threatened nuisance properly issues where the court finds as facts that the defendants were about to engage in the horse and cattle business in an exclusively residential section of a borough, but not yet compactly built up; that for the purpose of doing so they had erected on a lot owned by them a shed 140 feet in length and fourteen feet wide, and were about to build a barn in connection with it sixty feet long and forty feet wide; that the capacity of the proposed stock yard would be for from forty to fifty head of cattle and for from thirty to thirty-five head of horses; that the defendants proposed to deal in western cattle and horses, to be delivered to them by rail, and such delivery would necessitate a practically constant driving of both cattle and horses in and out of the yard and over the public streets of the borough; that they proposed to occasionally hold public sales of cattle and horses on their premises and to exhibit and sell them on the street, on which their yard fronted; that the operation of the yard as proposed by the defendants would result in the breeding of great quantities of flies, would engender noxious odors and occasion disturbance and noise, would render the enjoyment of the plaintiffs’ property uncomfortable and be detrimental to their health; that the use of their property by the defendants for the large business which they proposed to carry on in the sale and exchange of cattle and horses was an unreasonable use of it, and it was selected by them for the purpose of carrying on their business for the sole reason that it was near their residences, and their business could, therefore, be more conveniently conducted by them at that point; and that the operation of the proposed yard would work irreparable damage to the complainants by rendering their homes uncomfortable and endangering their health.
    Argued April 25,191L
    Appeal, No. 300, Jan. T., 1910, by defendants, from decree of C. P. Cumberland Co., in Equity, March T., 1909, No. 2, granting injunction in case of Mervin Eckels et al. v. Walter Weibley and Joseph Cockley.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed. -
    Bill in equity to restrain a threatened nuisance. Before Swope, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was in the decree of the court.

      Conrad Hanibleton, with him Jasper Alexander and John W. Wetzel, for appellants.
    — The general rule of law is that equity has jurisdiction to restrain the creation and continuance of a private nuisance if the rights of a suitor are clear and certain; but an injunction will not be granted until- the facts are established by the verdict of a jury, if they are disputed: Woodroffe v. Hagerty, 35 Pa. Superior Ct. 576; Baer v. Wilmoth, 39 Pa. Superior Ct. 74; New Castle v. Raney et al., 130 Pa. 546; Mowday v. Moore, 133 Pa. 598; Rhea v. Forsyth, 37 Pa. 503; Wood v. McGrath, 150 Pa. 451.
    That a stable will prove a nuisance is not to be presumed and consequently an injunction will not lie to restrain its erection: Evans v. Fertilizing Co., 160 Pa. 209; Fischer v. Sanford, 12 Pa. Superior Ct. 435; Alexander v. Stewart Bread Co., 21 Pa. Superior Ct. 526; Oehler v. Levy, 234 Ill. 595 [85 N. E. Repr. 271, 17 L. R. A. (N. S.) 1025].

      Paul Willis, with him F. B. Sellers, Jr., for appellees.—
    When the bill is to enjoin a threatened, as distinguished from an existing nuisance, from the nature of the case requirement of a previous trial at law cannot be applied: Sterling v. Littlefield, 97 Maine, 479 (54 Atl. Repr. 1108); McArthur v. Kelly, 5 Ohio, 139; Wente v. Commonwealth Fuel Co., 232 Ill. 526 (83 N. E. Repr. 1049); Commonwealth v. Stevens, 178 Pa. 543; United States v. Luce, 141 Fed. Repr. 385; Wahle v. Reinbach, 76 Ill. 322;

      July 6, 1911:
   Opinion by

Mr. Justice Brown,

The injunction appealed from followed findings by the court below that the defendants were about to engage in the horse and cattle business in an exclusively residential section of the borough of Carlisle, but not yet compactly built up; that for the purpose of doing so they had erected on a lot owned by them a shed 140 feet in length and 14 feet wide, and were about to build a barn in connection with it 60 feet long and 40 feet wide; that the capacity of the proposed stock yard would be for from 40 to 50 head of cattle and for from 30 to 35 head of horses; that the defendants proposed to deal in western cattle and horses, to be delivered to them by rail, and such delivery would necessitate a practically constant driving of both cattle and horses in and out of the yard and over the public streets of the borough; that they proposed to occasionally hold public sales of cattle and horses on their premises and to exhibit and sell them on Graham street, on which their yard fronted; that the operation of the yard as proposed by the defendants would result in the breeding of great quantities of flies, would engender noxious odors and occasion disturbance and noise, would render the enjoyment of the plaintiffs’ property uncomfortable and be detrimental to their health; that the use of their property by the defendants for the large business which they proposed to carry on in the sale and exchange of cattle and horses was an unreasonable use of it, and it was selected by them for the purpose of carrying on their business for the sole reason that it was near their residences, and their business could, therefore, be more conveniently conducted by them at that point. The argument of counsel for appellants, in pressing for a reversal of the decree, is largely directed to an effort to show that the foregoing facts ought not to have been found. After a review of all the testimony we have not been convinced that error was committed in any of the findings complained of. There was testimony in support of all of them, and it was for the court below to weigh the evidence and to determine what facts had been established by it. This the learned trial judge did, and his eighteenth finding of fact is that he had arrived “at the clear and certain conclusion, from all the evidence in the case, that the operation of the proposed yard would work irreparable injury to the complainants by rendering their homes uncomfortable and endangering their health.”

The second complaint of the appellants is that the injunction was issued before the existence of a nuisance maintained by them had been established as a fact by a trial at law. At the time the bill was filed no injury had been sustained by the appellees. Nothing had been done by the appellants for which an action at law could have been brought. Actual irreparable damages, actual depreciation of property did not exist. It was to prevent these consequences and the perpetration of a wrong, for which no adequate remedy existed at law, that this proceeding was properly instituted: Wier’s App., 74 Pa. 230; Joyce on Nuisances, sec. 419; High on Injunctions (3d ed.), sec. 23. To sustain the appellants’ contention would be to disallow the remedy of injunction in cases where a nuisance had not already been set up, but is merely threatened. While it is true that an injunction will not issue to allay mere fears and apprehension, nevertheless, if it be shown that there is reasonable and just ground to apprehend the establishment of a nuisance, threatened by a •defendant and which he has power to commit, and it is reasonably certain that the health and comfort of those complaining will be impaired by the threatened act, the writ will go out. No remedy in an action at law would be adequate in such a case. To hold that such a nuisance as the court below found would follow from what the appellants proposed to do could not be prevented in advance of its actual existence, would be but little better than a mockery of justice to those to be affected by it: Wahle v. Reinbach, 76 Ill. 322. “The reasons for preventing a prospective mischief are at least as cogent as those for abating a present one. In the latter instance the courts act 'more readily because they are sure of their ground. The evil is visible. But the call for protection against an apprehended injury, reasonably certain to befall, is as imperative as that for relief from one now felt. Nor is the complainant required to wait until some harm has been experienced or to show with absolute certainty it will occur. One requirement would make the remedy largely useless and the other impracticable: Miley v. A’Hearn (Ky.), 18 S. W. Repr. 529. While perhaps proof that it is inevitable or will necessarily ensue may be properly demanded, when nothing more than discomfort is anticipated, when danger to health or life is threatened, a reasonable certainty is enough: Wood on Nuisances, sec. 100. A party does not have to stand by until his family have sickened or died:” Holke v. Herman, 87 Mo. App. 125.

The assignments of error are overruled and the decree is affirmed at appellants’ costs.


text:
    Atticks et al., Appellants, v. Riverton Consolidated Water Company.

      Water company — Increase of rates — Contract—Equity—Findings of fact — Dismissal of bill — Municipality—Equity.
    A bill in equity to restrain a water company from instituting a new scale of rates on the ground that the defendant is exacting unreasonable, extortionate and discriminating charges for the supply of water and that in raising the rates it was violating a contract made by the borough with the party under whom it claims, is properly dismissed where there is no testimony whatever in support of the allegations of extortion and discrimination and the court finds that the evidence is insufficient to justify the conclusion that there had been a violation of the contract set up.
    Argued April 26, 1911.
    Appeal, No. 319, Jan. T., 1910, by plaintiffs, from decree of C. P. Cumberland Co., March Term, 1910, No. 5, dismissing bill in case of George W. Atticks, George W. Bair et al. v. Riverton Consolidated Water Company.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill to restrain defendants from increasing its water rates to the inhabitants of the borough of New Cumberland. Before Sadler, P. J.
    It appears by the record that the defendant is a corporation formed in 1904 by the merger of six companies, including the Mountain Water Company, supplying water to the inhabitants of the borough of New Cumberland under an ordinance passed in 1896, and duly accepted granting the right to H. M. Horner to introduce water into the borough, which right was subsequently assigned to the Mountain Water Company, whose successor the defendant is.
    Section 4 of this ordinance is as follows: “ The said H. M. Horner shall not charge the inhabitants of the said borough for the use of water to be furnished any higher rates than charged in Marysville, Pa., as per rate sheet filed at the present time; and provided, That discrimination shall not be made in rates charged citizens for the use of said water; and Provided further, that said rates shall not be raised after the same have once been adopted.”
    At the hearing defendant requested among others a finding of fact which, with the court’s answer, was as follows: That there has been no increase in the rates as adopted by H. ,M. Horner under the ordinance of January 20, 1896. Answer: Under the testimony we cannot find that the rates have been increased beyond those of the Marysville rate sheet, referred to in the ordinance of January 22, 1896. [21]

      Errors assigned were in findings of fact and answers to requests, including [21] the answer quoted above.

      A. G. Miller and J. W. Wetzel, of Wetzel and Hambleton, for appellants.

      S. B. Sadler, for appellees.

      July 6, 1911:
   Per Curiam,

The bill was properly dismissed on the findings of fact. It was alleged that the defendant was exacting unreasonable, extortionate and discriminatory charges for the supply of water to the inhabitants of New Cumberland and that in raising the rates it was violating a contract made by the borough with the person to whom the right to furnish water was originally given and under which the defendant claims. There was no testimony whatever in support of the allegations of extortion and discrimination, and the court found that the evidence was insufficient to justify the conclusion that there had been a violation of the contract set up. This finding we approve.

The decree is affirmed at the cost of the appellant.


author: Me. Justice Mestrezat,

text:
    Rick v. The New York, Chicago & St. Louis Railroad Company, Appellant.

      Negligence — Railroads—Defective car — Inspection—Evidence—Ownership of car — Duty to repair.

    1. In an action for damages for personal injuries the court properly refused to instruct the jury that there was no evidence that an inspection of a railroad car was made by an incompetent inspector or that the defendant, a' railroad company, was not negligent in the inspection of the car or in its employment of an incompetent inspector, where the evidence showed that the defendant issued a bill of lading for certain bar iron loaded on the car on the tracks of another railroad at the place of shipment and collected the freight for transporting the iron to its destination eighty-two miles distant, of which the intermediate eighty miles was over defendant’s road; that it received the ear at a junction point where it was inspected and returned for a defect in the draught bolts; that a few days thereafter it was again delivered, inspected and accepted, and hauled over the defendant’s lines to another junction; that here it was again jointly inspected by the defendant and a third company and afterwards hauled by the latter to its final destination; that on the day following its delivery to the consignee, the plaintiff, an employee of the consignee, while assisting to unload the car was hurt by slipping on an insufficient covering of a hole chopped in the floor of the car, which was covered with iron except the space around the hole; a witness for the defendant having testified that nothing was done to the car while in possession of the third company, and there being nothing in the evidence to warrant the conclusion that there was any change made in the position of the iron in the car from the time it was loaded until it was unloaded.
    2. In such a case, where the defendant acknowledges the receipt of the iron to be carried on “car 2365,” and was required by its contract to take the consignment, it must be assumed, in the absence of evidence to the contrary, that it did so by the car in which the iron was loaded and taken to its destination; and the fact that another company, in pursuance of a traffic arrangement, did the switching to place the car on the defendant’s track does not prove that the former furnished the car or that the defendant did not furnish it, or relieve the latter from its duty to have the car efficiently inspected and kept in repair.

      Practice, C. P. — Statement—Amendment.
    3. In a negligence case the cause of action was the alleged use of a defective car; in the plaintiff’s statement the car was described as “P. & L. E. R. R. Car No. 2365.” The court permitted the plaintiff to amend the statement so as to describe the car as “ P. B. & L. E. R. R. Car No. 2365 or P. & L. E. Car No. 2365.” Held, this amendment was properly allowed.
    Argued April 26, 1911.
    Appeal, No. 69, Jan. T., 1911, by defendant, from, judgment of C. P. Erie Co., May T., 1909, No. 106, on verdict for plaintiff in case of T. J. Rick v. The New York, Chicago & St. Louis Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries.
    The opinion of the Supreme Court states the case.
    The defendant presented certain points, which with the answers of the court thereto were as follows;
    6. There is no evidence that the defendant was negligent in the inspection of the car upon which the plaintiff was injured. Answer: Refused. [1]
    7. There is no evidence that the inspection of the said car was made by an inspector who was incompetent, or that the defendant was negligent in its employment of an incompetent inspector or inspectors who made the inspection or inspections. Answer: Refused. [2]
    8. The proof as to the car upon which the plaintiff was injured does not agree with the allegations that the plaintiff’s original statement show, in that said car was P. & L. E. car, No. 2365, and the amendment made to the statement does not cure the discrepancy, it having been subsequent to the date at which the right of action was barred by the statute of limitation. Answer: Refused. [3]
    9. If the jury finds that the car upon which the plaintiff was injured was a P., B. & L. E. car, No. 2365, the plaintiff cannot recover. Answer: Refused. [4]
    10. It having been shown that the car on which the plaintiff was injured was not furnished to the shipper of the iron by defendant company, the particular act of negligence charged against the defendant company has not been proven, and the plaintiff cannot recover. Answer: Refused. [5]
    Verdict for plaintiff for $5,500. Defendant appealed.

      Errors assigned were (1-5) answers to plaintiff’s points; (6-8) in refusing binding instructions for defendant and in refusing to enter judgment n. o. v.

      Frank Gunnison, with him Henry E. Fish, W. P. Gifford and Albert E. Chapin, for appellant.
    — There was not sufficient evidence of negligence on the part of the defendant to warrant the verdict: Huey v. Gahlenbeck, 121 Pa. 238; Rotsell v. Warren Boro., 10 Pa. Superior Ct. 283; Phila. & Reading R. R. Co. v. Schertle, 97 Pa. 450; Reese v. Clark, 146 Pa. 465.
    There was such variance between the allegata and the probata that the judgment cannot be sustained: Ardesco Oil Co. v. Gilson, 63 Pa. 146; Kilbridge v. Carbon Dioxide & Magnesia Co., 201 Pa. 552; Titus v. R. R. Co., 136 Pa. 618; Ford v. Anderson, 139 Pa. 261; Augerstein v. Jones, 139 Pa. 183; Fick v. Jackson, 3 Pa. Superior Ct. 378; Martin v. Pittsburg Railways Co., 227 Pa. 18.

      John B. Brooks, with, him Paul A. Benson and Charles H. English, for appellees,
    cited: McConnell v. Penna. R. R. Co., 223 Pa. 442; Dooner v. Canal Co., 164 Pa. 17; Penna. R. R. Co. v. Snyder, 46 Minn. 106 (45 N. E. Repr. 559); Moon v. Northern Pac. R. R. Co., 48 N. W. Repr. 679.
    July 6, 1911:
   Opinion by

Me. Justice Mestrezat,

The first and second assignments allege the court erred in refusing to instruct the jury there was no evidence that the inspection of the car was made by an incompetent inspector, or that the defendant was negligent in the inspection of the car or in its employment of an incompetent inspector. The evidence shows that the' defendant company issued a bill of lading for the bar iron loaded on the car at Cleveland, the place of shipment, that it collected the freight for transporting the iron to its destination at Girard, Pennsylvania, a distance of about eighty-two miles, of which eighty miles were over the defendant’s road, that it received the car at Newburg, a suburb of Cleveland, hauled it over its line to Wallace Junction where it was delivered to the Bessemer Company which hauled it to Girard and delivered it on the private track- of the consignee. When the car was first received by the defendant company it was inspected and a defect in the draught bolts being discovered it was returned to the Erie Company. In a few days thereafter, it was again delivered to the defendant, inspected and accepted and hauled to Girard. At Wallace Junction, the car was inspected by the chief joint car inspector of the defendant company and the Bessemer. Company and delivered to the latter company. No defects were reported by the inspector. The next-day the car was delivered to the consignee and on the following day the plaintiff, in the employ of the consignee, while assisting to unload the car stepped on an insufficient covering of a hole chopped in the floor and was seriously injured. The hole was about ten inches wide and twenty inches long. The floor was covered with the iron except the space around the hole in the northeast corner of the car.” A witness for the defendant testified that nothing was done to the car from the time it left Wallace Junction till it was delivered by the Bessemer Company on the private siding of the consignee where the plaintiff was engaged in unloading it at the time he was injured. This and other evidence amply warranted the court in refusing the defendant’s sixth and seventh points embraced in the first and second assignments of error. The evidence shows that the hole in the floor was negligently and insufficiently covered by a board one-fourth of an inch thick which should have been two inches thick. The car was, therefore, in a defective and unsafe condition when it arrived at Girard. When was the hole chopped in the floor and defectively repaired by placing the thin plank over it? This question need not be answered to convict the defendant of negligence. It was the duty of the defendant company to inspect the car and if found defective to reject it. This duty was recognized and the ca,r was refused when it was first offered to the defendant at Cleveland. The defendant company was not required either to receive or haul the car over its line if it was in a defective condition. The inspector was incompetent or negligent in the performance of his duties or the defect would have been discovered, and the floor would have been repaired and put in a safe condition. We do not agree with the defendant’s argument that it is reasonable to suppose that at the time the first inspection was made the iron with which the car was loaded covered the hole so that the defect could not have been discovered without unloading the iron. There is nothing in the evidence to warrant the conclusion that there was any change made in the position of the iron in the car from the time it was loaded at Cleveland until it was unloaded at Girard. It was then found that the floor of the whole south end of the car was covered with iron and the floor of the north end, except the part around the hole. The evidence fails to disclose any reason or purpose for changing the position of the iron after it was placed in the car on September 13, 1907, until it arrived at its destination, September 28, unless, as suggested by the plaintiff’s counsel, it was for the purpose of gaining access to the floor to make the hole in order to reach the gearing of the car. It was delivered to the Bessemer Company at Wallace Junction at 6:10 p. m. on September 27. If there was any shifting of the iron in the car the defendant should have shown the fact. It is entirely improbable that the Bessemer Company shifted the iron during the very short time the car was in its possession, and that it did not do so appears by the defendant’s testimony which shows that nothing was done to the car while it was in the Bessemer Company’s possession except to move it from the junction to its destination at Girard. It is, therefore, probable, and the jury was justified in finding, that the iron was never shifted, or that if it was shifted in transit it was done by the defendant company which should have discovered the hole, even if it did not make the hole and attempt to repair it. This is a fair inference from the evidence: The defendant’s sixth and seventh points were properly refused.

In the plaintiff’s statement, the car in which the iron was shipped is described as “P. & L. E. R. R. car No. 2365.” The court permitted the plaintiff to amend the statement so as to describe the car as “P., B. & L. E. R. R. car No. 2365 or P. & L. E. car No. 2365.” The third and fourth assignments in effect question the correctness of permitting the amendment. The number of the car is the same and the only change made by the amendment was in the letters on the car. There was no change in the cause of action which was the alleged use of the defective car. The amendment was made simply to meet the uncertainty of the letters on the car, and was properly allowed.

By its bill of lading issued to the Bourne-Fuller Company, sales ágent of the Rolling Mill Company, the defendant acknowledged the receipt of the iron at Cleveland to be carried on car 2365 and to be delivered to the Girard Wrench Manufacturing Company at Girard, Pennsylvania. The defendant does not have a switch leading into the Union Rolling Mills at Cleveland, and by a traffic arrangement the Erie Company switches to the defendant’s tracks any car that the Union Rolling Mills wish to send over the defendant’s road. It is immaterial who owned the car in question. It was furnished for the purpose of carrying the iron which the defendant company, in consideration of the freight charges paid it for the entire distance, agreed with the consignor to transport from Cleveland to Girard. Its contract required it to take the iron loaded at the mills and hence it must be assumed, in the absence of evidence to the contrary, that it did so by the use of the car in which the iron was loaded and transported to its destination. The fact that the Erie Company did the switching to place the car on the defendant’s tracks does not prove that it furnished the car or that the defendant company did not furnish it, or relieve the latter company from its duty to have the car efficiently inspected and kept in proper repair. The Erie Company had no contract with the Rolling Mills Company or its sales agent to carry the iron from Cleveland to Girard. That company simply switched the car from the mill to the track of the defendant company which by its bill of lading agreed to transport the iron from Cleveland to its destination. The fifth assignment is not sustained.

The sixth, seventh, and eighth assignments of error depend upon the correctness of the position assumed by the appellant in the other assignments, and are, therefore not sustained.

The judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Evans, to use, v. Loomis et al., Appellants.

      Bond and mortgage — Condition—Obligation to pay — Note or indemnity sureties — Release of sureties — Default of maker — Acceptance of collateral security.

    1. E and B who were stockholders in a certain corporation and sureties for it on a $2,000 note held by K, sold their stock to the defendants; it was agreed that they should remain liable thereon, or on any renewals thereof, for two years, in consideration of which the defendants gave a bond and mortgage to E, or his assigns, as trustee, conditioned as follows: “Now, if the said company or the parties of the first part hereto shall pay the said obligation or obligations on or before the termination of the said period of two years and shall save and keep harmless the said E and the said B from any and all loss or damage resulting to them by reason of the liability incurred by them as aforesaid, without fraud or further delay, then this obligation to be void and of none effect, or else to be and remain in full force and virtue.” Subsequently K, the holder of the note made the following indorsement thereon: “For value received I hereby release E and B from any responsibility on this note as indorser or maker of the same. K;” but the note was never delivered to E or B, but continued in K's possession, the only consideration for the release being the assignment of the bond and mortgage to K. The company as collateral to the $2,000 note gave to K another note in like amount with another as surety. B and E were not indebted to either the company or to K, their only liability being as indorsers. In a .proceeding to determine the rights of the parties to the fund paid into court on the satisfaction of the mortgage, it was contended that the liability created by the bond and mortgage was one of indemnity only, to keep harmless E and B from damage by reason of their liability as sureties on the note, and that when the latter were released by the payee, the condition of the obligation was fully satisfied. Held, the language used was sufficient to create a double obligation; first to pay the note if not paid by the corporation debtor; and next, to indemnify the indorsers on the note.
    2. In such a case the acceptance of the second note, which had plainly written on its face, “This note is collateral for one of like amount now past due” did not affect the question of the liability of the defendant.
    Argued xApril 26, 1911.
    Appeal, No. 99, Jan. T., 1911, by defendants, from order of C. P. Erie Co., Sept. T., 1909, No. 132, awarding distribution of fund in case of George W. Evans, Trustee of Miss S. M. Keith, v. Marion E. Loomis, A. T. Loomis and D. W. Harper and James Russell, Trustees, Terre-Tenants.
    Before Fell, C. J., Brown, Mestrezat, Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Trial by the court to determine the rights of the parties to a fund paid into court on the satisfaction of a mortgage.
    The court below found the following facts: (1) The Erie Cork Works, the name of which was changed to Erie Rubber Works, was a corporation located at Erie, Pa.; (2) prior to December 19, 1905, George W. Evans and B. B. Brown were stockholders in said corporation, and on that day, they sold their stock to the defendants, Marion E. Loomis and A. T. Loomis, her husband, or to one of them; (3) at that time said Evans and Brown were sureties for the Erie Cork Works on a $2,000 note held by Miss Sarah Keith; and it was then agreed that they would remain liable thereon, or on any renewals thereof, for two years; in consideration of which, said Marion E. Loomis and her said husband gave a bond and mortgage to said George W. Evans, as trustee, in the penal sum of $4,000, conditioned in substance, that the said Erie Cork Works or the obligors in said bond and mortgage, would pay the said $2,000 -note on or before the termination of said two years, and save harmless, the said Evans and Brown. The bond and mortgage recited said note, and the agreement of Brown and Evans so to remain sureties thereon, and further that the parties of the first part .... stood bound unto the party of the second part in the sum of $4,000, conditioned for the payment of $2,000, interest and damages, in manner following, to wit: "Whereas the Erie Cork Works, of Erie, Pa., is indebted to Miss Sarah Keith, of Girard, Pa., upon a certain note in the sum of two thousand dollars ($2,000), with interest thereon from the date of said note; and whereas aforesaid George W. Evans, together with B. B. Brown, both of the city of Erie, Pa., are liable as sureties on said note for a period of two years from the maturity of the same, or upon any renewal thereof for the same period or upon any obligation that it may be necessary for said Erie Cork Works to give for the purpose of raising money with which to pay said note, in the event that said Sarah Keith requires the same to be paid; now, if the said Erie Cork Works or the parties of the first part hereto shall pay the said obligation or obligations on or before the termination of the said period of two years and shall save and keep harmless the said George W. Evans and the said B. B. Brown from any and all loss or damage resulting to them by reason of the liability incurred by them as aforesaid, without fraud or further delay, then this obligation to be void and of none effect, or else to be and remain in full force and virtue;” (4) said cork works became bankrupt and a distribution of its assets paid $360.80 to apply on said debt as of September 1, 1909, and the balance remains unpaid; (5) on May 29, 1908, the holder of the $2,000 note made the following indorsement thereon: “For value received I hereby release Geo. W. Evans and B. B. Brown from any responsibility on this note as indorser or maker of the same. Miss S. M. Keith;” (6) the only consideration for the release was the assignment of the bond and mortgage. The note on which said release was written, was never delivered to Evans or Brown, but has continued in the possession of Miss Keith; (7) on February 1, 1908, the Erie Rubber Works, as collateral to the said note of $2,000, gave another note to Miss Keith, for a like amount, with William C. Kraemer as surety; “but that had nothing to do with the said release written afterwards on the (original) note, as above stated, or with the assignment to , her of said bond and mortgage;” (8) no actual consideration was paid by Evans or Brown to Miss Keith for the release to them, excepting the assignment of said bond and ■mortgage; (9) Brown and Evans were not indebted to Miss Keith in any sum whatever at the time the note was given to her by the cork works; but were only liable as indorsers on the note in question; (10) at the time the said note was given Brown and Evans were not indebted to the cork works in any sum whatever, as principal debtors, but became liable as indorsers on the note for the accommodation of said corporation; (11) A. T. Loomis and Marion E. Loomis were not indebted to the Erie Cork Works in any sum whatever on December 19, 1905, the time of the execution of the bond and mortgage to George W. Evans, trustee; (12) no part of the note was ever paid, except the sum of $360.80, which was paid by the receiver of the Erie Rubber Works as a final and only dividend from the assets of the corporation, which is insolvent and without further assets.
    The court ordered that the plaintiff should be paid the balance of the $2,000 note, with interest thereon, out of the fund in court, and that the surplus of the fund, if any, was to be paid to the defendants.

      Errors assigned were in refusing defendant’s requests for findings, affirming plaintiff’s requests, findings of fact made by the court, conclusions of law, and awarding the fund to plaintiff.

      E. L. Whittelsey, for appellants.
    — We suggest that there is no rule of law that will compel the sureties to pay the debt of a principal after the principal has been discharged from liability by his creditors: Miller v. Stewart, 22 U. S. 680; Bensinger v. Wren, 100 Pa. 500; Hutchinson v. Woodwell, 107 Pa. 509; Whelen v. Boyd, 114 Pa. 228; Valentine v. Wheeler, 122 Mass. 566; Donely v. Bank, 40 Ohio, 47.
    A contract of indemnity inures to the benefit of the indemnitee only, and a third person having a right of action, or a claim against the indemnitee, cannot proceed directly against the indemnitor, though the claim be such as the indemnity contract will apply to save the indemnitee harmless from: Turk v. Ridge, 41 N. Y. 201; French v. Vix, 143 N. Y. 90 (37 N. E. Repr. 612); Union Nat. Bank v. Rich, 106 Mich. 319 (64 N. W. Repr. 339).

      L. E. Tony and Gunnison, Fish, Gifford & Chapin, for appellee.
    — Extinguishment of a debt by substituting another one for it, is always a question of intention: Potter & Colfelt v. McCoy, 26 Pa. 458.
    A creditor may hold an unlimited number of collaterals, and avail himself of any as long as the debt is unpaid: Ayers v. Wattson, 57 Pa. 360; Jennings v. Loeffler, 184 Pa. 318; Ritter v. Henning, 10 Pa. Superior Ct. 458; Brackenbridge v. Cummings, 18 Pa. Superior Ct. 64.
    A release of a debt, not under seal, requires proof of consideration to make it valid and binding on the releasor: Kidder v. Kidder, 33 Pa. 268; Trough’s Est., 75 Pa. 115; Erb v. Brown, 69 Pa. 216.
    The so-called release of Evans and Brown is not valid as a gift for want of delivery: Kidder v. Kidder, 33 Pa. 268.
    It has been well settled that where a creditor extends the time of payment on a debt, without the consent of the surety, and at the same time reserves his rights against the surety, the surety is not released: Hagey v. Hill, 75 Pa. 108; Calvert v. Good, 95 Pa. 65.
    July 6, 1911:
   Opinion by

Mr. Justice Moschzisker,

The defendants contend that the liability created by the bond and mortgage referred to in the findings of the court below was one of indemnity only, to save and keep harmless Evans and Brown from any loss or damage by reason of their liability as sureties or indorsers on the note to the use plaintiff, Miss Keith; that when the indorsers were released by the payee of the note, the condition of the bond and mortgage was fully satisfied and there could be no recovery thereon; while the use plaintiff contends that the contract was not for the sole purpose of indemnifying the indorsers, but that it was also for the purpose of making the obligors and mortgagors liable to pay the note; that the obligation to pay the note, and the obligation to indemnify the indorsers, were separate and independent conditions or covenants, and that the first could not be satisfied or affected by the release of the other. The court below decided in favor of the plaintiff, and we see no error in the result reached.

The contract recites the note of the cork works to Miss Keith, and that Evans and Brown were liable as sureties thereon; it provides, “Now if the said Erie Cork Works, or the parties of the first part hereto (the defendants Loomis), shall pay the said obligatipn .... (the note in question) and shall save and keep harmless the said George W. Evans and B. B. Brown from any and all loss or damage resulting to them by reason of the liability incurred by them .... then this obligation to be void . . . ., or else to be and remain in full force and virtue.” The language used is sufficient to create a double obligation, first, to pay the note, if not paid by the corporation debtor, and next, to indemnify the indorsers on the note.

The fact that the defendant’s obligation was given to a trustee, and not directly to the indorsers, lends force to the thought that it was intended to create such a double liability; otherwise, there was no necessity for the use of a trustee. When called as a witness for the defense, Evans testified: “I was instrumental in getting the money from her (Miss Keith), and I did not want her to blame me.” He and Brown, the indorsers on the note, had been large stockholders in the cork works, and when they sold their stock to the defendants Loomis, they were anxious, apparently, not only to protect their own interests so far as the obligation of the corporation upon which they were sureties was concerned, but they also desired at the same time to take care of and fully protect the interest of Miss Keith. It is easy to believe that the obligation then exacted from the defendants was made and entered into with this double object in view. Presumably, if the defendants Loomis had not undertaken to pay this debt of the cork works, upon which Evans and Brown were liable, the latter would have liquidated the obligation, added that much to the value of the works and charged the defendants for their stock accordingly; so the latter were in no manner prejudiced by the assignment of the mortgage to Miss Keith or by the release given to Evans and Brown.

The desire to carry out this thought of protecting Miss Keith was recognized by the trustee named in the contract up to the time of the acquittance of Evans and Brown; he testified that he assigned the bond and mortgage over to Miss Keith as security to her when she gave the release, and that their transfer was the only consideration for the release known to him. Since the bond and mortgage were given to the trustee and “his assigns,” he had the legal right to assign them to the use plaintiff, and since the words used therein indicated that one of the purposes was to secure the payment of the note, Miss Keith had the right to assume that she could safely accept them from the indorsers as a substitute for their liability. The defendants did not offer any facts surrounding the creation of the bond and mortgage which would tend to indicate that it was not their intention to become responsible for the payment of the note to Miss Keith, if called upon. On the whole, we conclude that the court below fell into no error in holding that the obligation of the defendants was not simply to indemnify the indorsers, but was also to pay the debt to the holder of the note.

The other note given by the corporation to Miss Keith and indorsed by one Kraemer, referred to in the seventh finding of the court below, has plainly written upon its face, “This note is collateral for one of like amount now past due,” the reference being to the note upon which Evans and Brown were indorsers. A party may hold more than one collateral for the same debt; under the circumstances we cannot say that there was error in the conclusion that the acceptance of this note by the use plaintiff did not affect the question of the liability of the defendants.

We have discussed all the points suggested in the statement of the question involved, and necessary to the determination of this case; the assignments of error which comprehend these points are overruled; all others are dismissed; and the order of the court below is affirmed at the cost of the appellant.


text:
    Pennsylvania Railroad Company, Appellant, v. Keally.

      Railroads — Carriers—Demurrage charges — Affidavit of defense.

    In an action by a railroad company to recover demurrage charges for the detention of cars, an affidavit of defense is sufficient to prevent judgment which avers that the defendant was not in fault as respects the detention of any of the cars, that he desired to unload them within the free time allowed, and that he was prevented from doing so by the plaintiff itself, stating the reasons and causes which brought the prevention; and this is the case although the statement of claim gives specific information as to the detention of each car, and the charges therefor. In such a case it is not necessary for the defendant in his affidavit of defense to specify in detail the facts respecting the detention of each of the cars referred to in the statement of claim.
    Argued May 1, 1911.
    Appeal, No. 168, Oct. T., 1909, by plaintiff, from order of C. P. No. 4, Allegheny Co., Second T., 1908, No. 598, discharging rule for judgment in ease of The Pennsylvania Railroad Company v. Charles L. Keally, Sr., trading and doing business as Charles L. Keally, Sr. & Co.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for demurrage charges.
    Rule for judgment for want of a sufficient affidavit of defense.
    The following opinion of Carnahan, J., states the case:
    The plaintiff company, being a corporation of the state of Pennsylvania, and engaged as a common carrier in the business of transporting goods and merchandise, transported certain car loads of goods consigned from points beyond the state of Pennsylvania to the city of Pittsburg, and in its statement claims that it delivered the same to the defendant on the plaintiffs public sidings at the Pennsylvania lines produce yards in Pittsburg, the defendant having procured the said shipments to be consigned and shipped to him by the respective consignors. On the arrival of these cars from time to time at the produce yard, which was the place of delivery, as claimed by the plaintiff, the defendant was given due notice.
    The plaintiff company has had continuously from June 1, 1903, in effect a system of storage charges applicable to cars containing goods of consignees delivered at this produce yard. A schedule showing these charges was duly filed with the interstate commerce commission, according to which it appears that for each car not unloaded within forty-eight hours from the time it is placed in position for unloading (Sundays and legal holidays excluded) no charge is made; for the next succeeding two days there is a charge of $1.00 per car per day or fraction thereof; for the next succeeding two days there is a charge of $3.00 per car per day or fraction thereof; and for each succeeding day there is a charge of $4.00 per car per day or fraction thereof. In addition to these charges there are the usual car service charges.
    For cars consigned to the defendant and delivered to him at this produce yard and not unloaded within the time allowed by the rules of the plaintiff company, the plaintiff claims of the defendant the sum of $1,566, with interest, and attaches to its statement two exhibits, the one showing the dates of the placing of the cars, the initials and numbers thereof, the time when each car was unloaded, the-time of detention of each car after the expiration of the free time of forty-eight hours, and the amount of the charges therefor in accordance with its schedule of charges; and the other showing the schedule of .charges as filed with the interstate commerce commission. Bills for these amounts having been rendered to the defendant from time to time, and payment thereof having been refused, the plaintiff brings suit to recover the same with interest.
    The defendant has filed three affidavits of defense. Briefly stated, he claims that he has paid to the plaintiff $1.00 per day for each car unloaded and remaining in the yards beyond the free time of delivery as provided by an act of assembly of the commonwealth of Pennsylvania, approved May 24, 1907, P. L. 229, and that these additional charges are illegal, unjust, unreasonable, discriminatory, and in violation of the act of congress approved February 4, 1887, 24 Stat. at Large, 379, entitled, "An Act to Regulate Commerce” and its supplements; that the charges claimed are not embraced within the interstate commerce act, but are subject to the statute of Pennsylvania; that it was the duty of the plaintiff to furnish sufficient facilities to enable the defendant to remove his produce from the cars within the free time allowed under the schedule of rates so fixed; that it failed to provide such facilities, the effect of which was to prevent defendant from unloading his cars within the free time allowed; that had such facilities been afforded he would have been able to remove his goods from the cars within the forty-eight hours allowed; that in the produce yards the tracks were not sufficient in size nor did said yards contain sufficient trackage to enable defendant to unload the cars and remove the contents in time to escape the additional charges for storage; "That through the said yards there is located a lead track of the plaintiff company upon which the shifting and hauling of other freight and produce often delays and prevents the switching of the produce cars from the lead track to the sidings in the yard, which delay prevented the defendant in this case from crossing the lead track in order to get to the cars that contained his produce on the other side of the said lead track;” that all of these charges were made by the plaintiff "as the proprietor of a public fruit and vegetable market using its tracks and yards as a public market place for that purpose under an arrangement with a few produce yard merchants to which affiant was not a party, whereby said merchants could upon payment therefor, hold said cars .at their pleasure, thus gaining for itself and the few with whom it arranged, a monopoly of the produce business to the detriment of all other shippers and consignees. In many instances cars were held from ten to thirty days. This unlawful practice resulted in a congestion of the yards at the time complained of to such an extent that defendant was unable to unload his cars, which he otherwise could have done within the free time.”
    The plaintiff entered a rule on defendant for judgment for want of sufficient affidavit of defense, and on July 7, 1909, this rule was argued and the same was discharged, without, however, an opinion being filed.
    In making the order discharging the rule for judgment, this court considered for the purpose of the case, as it then was presented, that the charges were legal, reasonable, not discriminatory, and were not within the prohibitions of the Act of the commonwealth of Pennsylvania, approved May 24, 1907, P. L. 229, the business being interstate commerce. In the various affidavits of defense, it appears that the defendant claims that the delays for which these charges are made were occasioned by the plaintiff itself. In other words, the defendant claims that it was impossible for him to comply with the rules of the company and unload within the free time allowed, because of the obstructions placed in his way by the plaintiff company itself. If the defendant is able to prove that such was the fact, the plaintiff would not be entitled to recover. We do not overlook the fact that the plaintiff in its statement gives specific information as to the detention of each car and the charges therefor, but we do not consider that it is necessary for the defendant in his affidavits of defense to specify in detail the facts respecting the detention of each of these cars. It is sufficient to aver that he was not in fault as respects the detention of any of said cars; and that he desired to unload them within the free time allowed, and he was prevented from doing so by the plaintiff itself, stating the reasons and causes which brought the prevention. The defendant in our judgment having averred sufficient to enable him to go to trial, we were of course constrained to refuse the rule for judgment, and therefore discharged it.

      Error assigned was order dismissing rule.

      George Stuart Patterson and James R. Miller, with them Patterson, Sterrett & Acheson, for appellant,
    cited: Penna. R. R. Co. v. Coggins Co., 38 Pa. Superior Ct. 129; Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (27 Sup. Ct. Repr. 350); Wilson Produce Co. et al. v. Penna. R. R. Co., 149 C. C. Rep. 170, and 169 C. C. Rep. 116; Conrad v. Telegraph Co., 162 Pa. 204; Penna. R. R. Co. v. Midvale Steel Co., 201 Pa. 624; Atl. Coast Line R. R. Co. v. Macon Grocery Co., 166 Fed. Repr. 206.

      W. A. Stone, of Stone and Stone, with him L. K. & S. G. Porter, for appellees,
    cited: H. W. Jones v. Penna. R. R. Co., 9 C. C. Docket, No. 1161.
    July 6, 1911:
   Per Curiam,

The order discharging the rule for want of a sufficient affidavit of defense is affirmed on the opinion of Judge Carnahan.


text:
    Phillips v. Kleinman, Appellant.

      Trusts and trustees — Resulting trust — Husband and wife — Title in husband — Agreement to reconvey — Fraud—Evidence—Equity.
    On a bill in equity by the trustee of a bankrupt husband against the wife of the bankrupt to set aside a deed of conveyance alleged to have been in fraud of the husband’s creditors, the court is bound to find that the husband held the title as trustee for his wife and had properly executed the trust by the conveyance to her, where it appears that the land in question was purchased for $4,000 from the parents of the husband; that $2,000 thereof was paid by the wife’s father, who took a mortgage for that amount and the balance secured by a mortgage to the husband’s mother; that the title was taken in the husband’s name temporarily with an agreement by him to convey it to his wife; that subsequently the wife's father voluntarily satisfied his mortgage for $2,000 and upon his death left his daughter $2,000 which the latter gave to her husband, stating that-it was the balance of the $4,000 purchase money and that prior to this the husband had paid off the' mortgage to his mother. In such a case it is immaterial that the husband was insolvent when he executed the trust by the conveyance to his wife.
    Argued May 1, 1911.
    Appeals, Nos. 13 and 16, Oct. Term, 1911, by Emma Kleinman and Edward C. Klein-man, separately, from decree of C. P. No. 4, Allegheny County, Third Term, 1909, No. 851, setting aside conveyance of real estate in case of Ferd H. Phillips, Trustee of Estate of Edward Clarence Kleinman, bankrupt, v. Emma Kleinman, Edward Clarence Kleinman and Thomas F. Garrahan.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity to have a conveyance of real estate set aside as being in fraud of creditors. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in certain findings of fact, in refusing certain points, and the decree of the court.

      W. A. Stone, of Stone and Stone, with him Wilson & Evans, for appellant.
    — The facts found by the court, or established by the uncontradicted evidence of the case establish a resulting trust in favor of Emma Kleinman: Rupp’s App., 100 Pa. 531; Bigley v. Jones, 114 Pa. 510; Olinger v. Shultz, 183 Pa. 469; Feig v. Meyers, 102 Pa. 10; Lynch v. Cox, 23 Pa. 265; Galbraith v. Galbraith, 190 Pa. 225; Casciola v. Donatelli, 218 Pa. 624.

      Frederic Walsingham Miller, for appellee.
    — 'There never was a resulting trust, as the title to the land in dispute was not put in Kleinman’s name originally in breach of any agreement, duty or trust, to put in Mrs. Kleinman’s name, but on the contrary in pursuance of an express agreement, that the title should be taken in his own name: Byers v. Ferner, 216 Pa. 233; Crawford v. Thompson, 142 Pa. 551; Cornman’s Est., 197 Pa. 125; Heiges v. Pifer, 224 Pa. 628.
    Emma. Kleinman is barred by laches and estoppel and by the statute of limitation from setting up the trust: Hinman v. Silcox, 91 Md. 576 (46 Atl. Repr. 1017); Humes v. Scruggs, 94 U. S. 22; Kreider’s Est., 212 Pa. 587; Olinger v. Shultz, 183 Pa. 469; Miller v. Baker, 160 Pa. 172.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

On March 29, 1906, Edward C. Kleinman conveyed to his wife, Emma Kleinman, three and one-half acres of land situated on Neville Island, Allegheny county. Two years and nine months afterwards he filed his petition in the United States court to be adjudged a voluntary bankrupt, and, in the following July, his trustee in bankruptcy filed a bill in the court below to set aside his conveyance to his wife, on the ground that it'was made for the purpose of hindering, delaying and defrauding creditors, and was, therefore, void under the statute of 13 Elizabeth. The main defense of the wife was that the beneficial interest in the land conveyed to her had never been in her husband, but was in her by way of a resulting trust. She and her husband have appealed from the decree that there had not been a resulting trust for her and that the conveyance was in fraud of his creditors.

Certain facts were found by the learned chancellor below which go to support the wife’s claim that the husband •had held title as trustee for her, and we shall first notice them. Edward C. Kleinman was married on September 6, 1881, to Emma Pluchel, a daughter of John Pluchel, who at that time resided in the state of Ohio. In the fall of 1887 he came to Allegheny county to assist in the purchase of a tract of land from Hubert and Eliece. Kleinman, the parents of Edward. They agreed to sell ten acres for the consideration of $4,000. Pluchel had with him $2,000 in gold, and, at an interview at which he, Hubert Kleinman, his wife, Edward C. Kleinman and his wife were present, a dispute arose as to how the title to the property should be made. Kleinman, the father, refused to sell unless the deed was made to his son. Pluchel and his daughter insisted that the deed should be made to her, and it was finally agreed that the title should be taken in the name of Edward C. Kleinman, and no definite agreement was made that the title should ever be placed in Emma Kleinman or that the beneficial interest in the land was hers at the inception of the title. A. deed from Hubert Kleinman and his wife was executed and delivered on September 5, 1887, to Edward C. Kleinman, upon the payment of $2,000 in cash by John Pluchel and the execution of a mortgage by the grantee to his mother for $2,000, the balance of the purchase money. It did not appear how much interest, if any, Pluchel ever received upon his mortgage. On December 31,1894, he voluntarily executed a paper acknowledging satisfaction of it, which he mailed to his daughter, Emma Kleinman, and she handed it over to her husband, who had it duly recorded in the recorder’s office of the county. Pluchel died November 11, 1901, having by his will made the following provision for his daughter: "Fourth: To my daughter, Emma, intermarried with Edward Kleinman, in addition to the two thousand dollars I already advanced to her, I give, devise and bequeath to her and her lineal heirs the sum of two thousand dollars payable upon the death of my said wife, and she is to receive no more from my estate.” On April 7, 1904, William Pluchel, executor of the will of John Pluchel, paid Emma Kleinman the $2,000 given her by the foregoing bequest and two days later she deposited it to her credit in a trust company. On the twenty-seventh of the next month she paid this sum to her husband by her check of that date. The mortgage which Edward C. Kleinman gave to his mother he paid prior to the time he received the $2,000 from his wife. Shortly after the purchase of the land Emma Kleinman asked her husband to convey it to her, in accordance, as she alleged, with his agreement to do so, and she thereafter made the same request very frequently, but he as often did not do so. All of the foregoing facts were found by the learned chancellor below upon the testimony of the appellants, whom he must have regarded as credible witnesses. He failed, however, to find other most important facts supported by their uncontradicted testimony. As they were credible witnesses, with circumstances tending to corroborate their testimony, there ought to have been the following further findings: Some time prior to September, 1887, during a visit of Emma Kleinman to her father in Ohio, he said to her: “If you can find a place down there I’ll help you to buy it — I’ll buy it for you. I think it would be a good investment for you.” Subsequently E. C. Kleinman saw his father and mother and they agreed to sell the ten acres of land for $4,000. John Pluchel then came on to Neville Island and paid the $2,000 on account of the purchase money. When the father of Edward said he would not sell unless the title was put in his son’s name, Pluchel replied that, as he was going to pay for the property, he did not propose to have the title put in the name of his son-in-law and wanted it in the name of his daughter. The daughter said to her husband, “now, my father is bringing the money and is going to pay for this property, why don’t you get your father to consent to have that in my name?” To which he replied: “Now, here is a good chance for us to get some property, let’s try to get them to fix it up so as to put the title in me temporarily, and I will transfer it back to you later.” When the title was put in his son’s name, Pluchel insisted upon taking a mortgage for $2,000 to protect his daughter’s interest. When he sent her the power of attorney to satisfy the mortgage, he wrote that she had better satisfy it, as, if anything would happen to him, she might have to pay it, with interest. At the time the title was made to Edward C. Kleinman he agreed with her that she should get the property back at any time she demanded it, that he would deed it to her at any time, and when she gave him the $2,000 which she received under her father’s will, she said to him, “Here is the balance of the $4,000.”

It is clear to us that the court below should have found that the husband held the deed in trust for his wife. It did not find that there had been no agreement that the title was in her, or that the beneficial interest in the land was hers at the inception of the title. The finding is merely that there was no such definite agreement. In the face of the testimony, the finding ought to have been that there was such a definite agreement, and we now so find. The wife paid with her own moneys, obtained from her father and her father’s estate, the entire amount of the purchase money. Her father first paid $2,000 directly for her, and subsequently she handed over to her husband the $2,000 which she received from her father’s estate, saying to him at the time she did so, “Here is the balance of the $4,000.” In answer to the contention that, as the testimony of the husband and wife was uncontradicted, it ought to be taken as true, the first reason given by the court below for not agreeing to this was that, while it was not contradicted by any witnesses, it was contradicted by the facts in the case, because it was in conflict with the deed and bonds and mortgages which were executed and delivered at the time the purchase was consummated. It is well contended by the learned counsel for .appellants that there never was a resulting trust about which almost as much might not be said. Such a trust arises only when the grantee named in the deed is not the real owner of the property. Other findings of fact — with which we need not burden this opinion — were regarded by the court below as at variance with the claim that the husband had held the land in trust for his wife. What he did with other portions of the ten acres, with her consent, was entirely consistent with her- claim that he held title for her, and it is sufficient to say that no fact or circumstance found by the court below was inconsistent with that claim. As we are of opinion that the facts found, and which ought to have been found on the uncontradicted testimony in the case, clearly established a resulting trust, it is immaterial to consider the question of the husband’s insolvency at the time he executed the trust by making the conveyance to his wife. If he was trustee, he could execute the trust, whether solvent or insolvent.

The decree of the court below is reversed and the bill dismissed with costs.


text:
    Phillips, Appellant, v. Kleinman.
    Argued May 1, 1911.
    Appeal, No. 69, Oct. T., 1911, by plaintiffs, from decree of C. P. No. 4, Allegheny Co., Third Term, 1909, No. 851, in Equity, setting aside conveyance of real estate in case of Ferd H. Phillips, Trustee of the Estate of Edward Clarence Kleinman, Bankrupt, v. Emma Kleinman, Edward Clarence Kleinman and Thomas F. Garrahan.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity to have a conveyance of real estate set aside as being in fraud of creditors. Before Swearingen, P. J.
    See Phillips v. Kleinman, ante, p. 571.

      Stone & Stone and Wilson & Evans, for appellant.

      Frederic Walsingham Miller, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

The dismissal of this appeal follows the reversal of the decree. Appeal dismissed at appellant’s costs.