text:
    Curtin v. People’s Natural Gas Company, Appellant.

      Contracts — Sales-^-lnstructions—Agreement to pay vendor’s debt as part of consideration — Statement of claim — Failure to traverse — Affidavit of defense — Rules of court — Evidence—Sunday contracts.

    1. Where in an action by vendor against vendee for the purchase price of machinery it appears that the defendant, apparently for its own protection, had agreed to use part of the consideration to pay off a chattel mortgage on the goods and had failed to do so, the defendant is not entitled to an instruction to the effect that the plaintiff could recover only the excess of the agreed purchase price over such mortgage claim, there being no evidence of a novation.
    2. Where in such a case the plaintiff in his statement sets up that the defendant purchased the articles “as set forth in a schedule hereto attached and made part hereof, to which schedule plaintiff has attached the original cost price of each item” and agreed to take them “at the original cost price,” and the affidavit of defense does not either directly or indirectly deny the correctness of the schedule or that the figures truly represent the original cost prices, it is not error to permit a copy of the schedule to be read to the jury in view of a rule of the court below making the allegation conclusive in the absence of a traverse of the facts therein contained. And where after such ruling the schedule is put in evidence by the plaintiff without objection and this is followed by the defendant placing in evidence the statement of claim containing the schedule with the figures attached, without any restriction on its use, the schedule in its entirety, figures and all, is before the jury.
    3. In such a case it is not error to admit in evidence mortgages from the plaintiff to a third party as corroborative of a witness who testified that the plaintiff purchased the goods with her own money or by giving securities upon her own property, where defendant was making the point that the plaintiff had not been the purchaser and hence was not the real owner of the goods, and particularly where prior to the introduction of these mortgages testimony as to their existence had been introduced and subsequently a witness was permitted without objection to testify at large concerning them.
    4. A parol contract cannot be declared void as -a matter of law as a Sunday contract, where the evidence is sufficient to sustain a finding that the negotiations were commenced on Saturday and continued on Sunday, but the contract was not finally concluded until the following Monday.

      Trial — Practice, C. P. — Charge—Equivocal point.

    5. It is not error to refuse a request for instructions where the point as drawn is equivocal and likely to be misunderstood.

      Evidence — Writings not sued upon — Parol explanation.

    6. Writings not sued upon, when admitted in evidence, are susceptible of explanation and may be varied by parol.

      Rules of court — Construction—Review.
    7. It is only in clear instances that the appellate court will reverse the court below for a breach of the latter’s own rules.

      Trial — Charge—Mention of amount claimed — Contract.
    8. The rule that it is reversible error for a court to direct attention in its charge to the amount claimed in the plaintiff’s statement, applies to actions on torts, and not to actions on contracts; and the rule is especially not applicable in an action of assumpsit where the defense 'is no contract, and not a mistake or overcharge on prices.

      Appeals — Assignments of error — Assignment raising more than one ,question.

    9. An assignment of error complaining of the refusal to grant a new trial, and setting forth that the court below erred in eleven particulars when it failed to make defendant’s rule for that purpose absolute, is improper in form, inasmuch as it raises more than one definite question.
    Argued Oct. 9, 1911.
    Appeal, No. 68, Oct. T., 1911, by defendant, from judgment of C. P. Greene Co., June Term, 1908, No. 91, on verdict for plaintiff in case of Lizzie J. Curtin v. People’s Natural Gas Company.
    Before Fell, C. J., Bkown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit upon a parol contract to recover the purchase price of articles sold by the plaintiff to the defendant. Before Ingham, P. J.
    The statement of claim- avers that the defendant, a Pennsylvania corporation, “on or about the ninth day of November, 1907,” purchased from the plaintiff “the engine, boiler, tools, etc., as set forth in a schedule hereto attached and made part hereof .... that the defendant agreed to take said engine, boiler, tools, etc., at the original cost price of the same, .... to which schedule plaintiff has attached the original cost price of each item therein. . . . That the .... defendant .... agreed to pay .... in manner following, to wit, to pay the National Supply Company at Toledo, Ohio, a certain chattel mortgage, the personal debt of the plaintiff, held .... against the tools aforesaid, and other tools, the property of the plaintiff, amounting to $2052.34 .... and the residue of said consideration in cash to the plaintiff. . . . That although .... the defendants took possession .... under said agreement, yet they .... neglected and refused to pay . . . ., and fraudulently permitted said chattel mortgage to be foreclosed and all the aforesaid property to be sold for $800, .... thus leaving the plaintiff indebted .... for the balance of said mortgage debt, to wit, $1252.34.” Wherefore the plaintiff' claims the sum total of the items shown in the schedule amounting to $3,239.98, with interest, etc.
    The affidavit of defense averred a defense to the whole of the plaintiff’s claim. It denies that the defendant had contracted with the plaintiff for the purchase of the articles as set out in the schedule attached to the statement of claim or any of them, or that such articles were taken possession of or used by the defendant company, or that it was under any obligation to pay the chattel mortgage referred to in the statement, or that it had ever' directly or indirectly assumed such an obligation, and finally that it is in any manner or way indebted to the plaintiff.
    A verdict was rendered for $2,699.52, the amount of plaintiff’s claim, with interest less the $800 realized on the mortgage; and the defendant appeals from the judgment entered upon this verdict.

      Errors assigned are set forth in the opinion of the Su-' preme Court.

      Jas. E. Sayers, with him Christy Payne, for appellant.

      James J. Purman, with him Robinson F. Downey, for appellee.

      January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

The first assignment complains that the court erred in refusing the following request for instructions: “If the jury believe the evidence of the plaintiff, there was no contract made between the plaintiff and the defendant company to purchase the tools which plaintiff claims were hers on the ninth day of November, 1907.” The evidence produced by the plaintiff, if believed, was sufficient to show that negotiations for the purchase of the tools were commenced on the date in question, but it was not sufficient to establish a contract completed on that day, and had the point refused by the court been unequivocally to that effect, it would have been the duty of the trial judge to affirm it; but the request as drawn might well have been understood to refer to the ownership of the tools by the plaintiff on the day mentioned, and not to the making of the contract at that time; hence there was no error in its refusal.

The trial judge declined to charge the jury that the agreement of purchase set up by the plaintiff was void as a Sunday contract, and this constitutes the second assignment. After reading the entire record we conclude that the evidence produced by the plaintiff was sufficient to sustain a finding that the contract was not finally concluded on Sunday, November 10, 1907. The negotiations were commenced on Saturday, November 9, 1907, and continued on the following Sunday, but the sale was not consummated until the date of the making of the schedule- and the delivery of possession of the articles, which occurred on Monday, November 18, 1907; and therefore the transaction would not be viewed as a Sunday contract: Foreman v. Ahl, 55 Pa. 325; Commonwealth v. Kendig, 2 Pa. 448.

In the third assignment the defendant complains of the refusal to charge, “If the jury believe the evidence of the plaintiff that the defendant company promised and assumed to pay the chattel mortgage of the National Supply Company .... then the defendant is indebted to the National Supply Company in the .amount of the debt and interest of that mortgage, less $800 realized on the sale thereof, and the plaintiff cannot recover anything in this action unless she has shown that the cost price of the tools was in excess of the mortgage and its interest, and then only for the amount of such excess.” For the court to have so charged would have been to treat the agreement between the plaintiff and the defendant as a novation of the indebtedness to the supply company, with the sequence of a release of the plaintiff and a substitution of the defendant as the debtor. “The essentials of a novation are the displacement and extinction of a prior contract, the substitution of a new contract, a sufficient consideration therefor, and consent of the parties thereto:” Wright v. Hanna, 210 Pa. 349. Although an employee of the National Supply Company assisted in making up the schedule, yet the evidence would not justify a finding that he was acting for his company at that time; on the contrary, all the testimony on the point is to the effect that he was acting as one of the representatives of the plaintiff. The essential elements of a novation were not present; the defendant company simply agreed, apparently for its own protection, that instead of paying the full purchase price directly to the plaintiff, it would use part of the consideration to liquidate her debt to the supply company and pay the balance directly to her. We see no error in the refusal of the point.

The court admitted certain testimony which is complained of in the fourth assignment. The husband of the plaintiff testified that when he and the representatives of the defendant company were negotiating the contract of purchase, his wife was in an adjoining room with the door open between, in such a position that she could hear. In the course of his testimony, he said “I know she could hear,” and, when pressed on cross-examination, stated that he knew that she did hear because she went into the room for that purpose. The witness might have been confined to a mere description of the surroundings and a statement that his wife was in the adjoining room during the conversation, but we are not convinced that any prejudicial error was committed in permitting him to express the opinion that his wife could hear what was going on, — a fact which she subsequently corroborated by her own testimony. The statement that the wife actually did- hear the conversation, coupled with its explanation, could have done no material harm. The appellant,, however, is not in a position to complain, as that testimony was elicited on cross-examination and no motion was made to strike it out.

The fifth specification raises the point that error was committed in permitting a copy of the schedule attached to the statement of claim to be read to the jury. In treating' of this assignment counsel for the appellant in his printed argument refers to the practice of the court below as follows: “We are aware of ... . the rule of court that provides for a denial of all material allegations in a statement by an affidavit of defense or else the same shall be taken as admitted on the trial of the cause.” Only in clear instances will we reverse a court for a breach of its own rules, and it has not been made plain to us that any such error was committed here. The statement expressly adopts the schedule and contains the material allegation that the prices attached to the various items set forth therein represent their original cost price. The contract sought to be established was that the defendant agreed to take the articles “at the original cost price of the same.” Although the affidavit of defense denies any contract of purchase, it does not either directly or indirectly deny the correctness of the schedule or that the figures set opposite the respective items truly represent the original cost price thereof. In view of the practice in the court below, since the affidavit fails to traverse the allegations concerning the schedule, those allegations were conclusive of the facts therein contained. After the ruling complained of, the schedule was offered and accepted in evidence without any exception or objection on the part of the defendant; this being followed at the conclusion of the case by the defendant itself placing in evidence the plaintiff’s statement of claim containing the schedule with the prices attached, without any restriction upon its use. On the whole, not only do we fail to see error in permitting counsel to read the schedule without the prices, as he did, but we are of the opinion that the subsequent events placed the schedule in its entirety, figures and all, before the jury for their consideration.

The court admitted in evidence two mortgages from the plaintiff and her husband to the National Supply Company, and this is objected to in the sixth assignment. In making the ruling the trial judge said: “The witness, Frank Curtin, having testified that his wife was the owner of the tools for which the suit is brought and she having bought or he bought them for her; that she mortgaged her property and bought the tools, we think the evidence is competent.” The defendant by its examinations during the trial was making the point that the plaintiff had not been the purchaser, and hence was not the real owner of the goods which she alleged she had sold to the defendants; Therefore she undertook to show that she had purchased and paid for these goods with her own money or by giving securities upon her own property. Prior to the introduction of these mortgages testimony as to their existence had been introduced, and subsequently a witness was permitted, without objection, to testify at large concerning them. On this state of facts we see no error in the admission of the evidence objected to.

The seventh, eighth, ninth and tenth assignments complain of the admission of the testimony of Frank Curtin in explanation of certain bills from the National Supply Company and others covering the sale of the articles to the plaintiff. It appeared by these exhibits that the goods had been billed to “L. J. Curtin and Company,” and not to “Lizzie J. Curtin,” the plaintiff. The witness was permitted to explain that a mistake had been committed in thus billing the goods. We are not convinced of the propriety of the introduction of these documents in the first instance, but having been admitted they were susceptible of explanation. The bills were not being sued upon, and hence the rule as to the varying of written instruments had no application. Considering the state of the evidence to which we called attention in disposing of the fifth assignment of error, and the other testimony upon the cost price of the goods in question and the plaintiff’s title thereto, we feel that no harmful mistakes were made in the matters called to our attention by the specifications now under consideration.

In the eleventh assignment the defendant takes exception to a portion of the charge in which the amount claimed by the plaintiff is mentioned. Since the defense was no contract, and not mistake or overcharge in prices, we do not see how the defendant could have been harmed by the matter complained of. The cases referred to in the printed argument, in which we ruled that it was reversible error for a court, to direct attention to the amount of damages claimed in the declaration, were all instances of torts; they have no application to a case like the present.

The last assignment complains of the refusal to grant a new trial, and sets forth that the court erred in eleven particulars when it failed to make defendant’s rule for that purpose absolute. We might dismiss this specification for raising more than one definite question, but in disposing of the other assignments we have practically covered all of the points suggested. It only remains to say that on the record as presented the case was for the jury and no substantial error appears to have been committed in the trial.

All of the specifications are overruled and the judgment of the court below is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Horton, Appellant, v. McCall.

      Wills — Construction—Estates—“Heirs”—Indefinite failure of issue— Acts of July 9,1897, P. L. 218, and April 27,1856, P. L. 868.

    1. Where testator, dying in 1883, by his will provides that .a “farm is to be and remain the property of my son W., and his heirs, .... and if W. has no heir, then said farm falls to F., or next nearest of kin,” the son takes an estate in fee simple.
    2. In such a ease the expression “if W. has no heir,” is equivalent to saying “if W. shall die without issue,” and under the settled rules of construction as they existed prior to the Act of July 9,1897, P. L. 213, they must be held to import a general and indefinite failure of issue, and the first taker will take an estate in fee simple.
    3. If the devise be regarded as being one to W. in fee, and in case of his death over to another in fee, the estate of W. must be regarded as a fee tail, which by force of the Act of April 27, 1855, P. L. 368, becomes a fee simple.
    Argued Oct. 9, 1911.
    Appeal, No. 204, Oct. T., 1911, by plaintiff, from judgment of C. P. Indiana Co., June T., 1910, No. 79, on verdict for defendant in case of Frank H. Horton v. W. H. McCall.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for lands in Banks township. Before Tel-ford, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was (1) in directing verdict for the defendant.

      John A. Scott, with him D. B. Taylor and Cunningham & Fisher, for appellant.
    The word “then” and the phrase “falls to Frank Horton,” are restrictive indications, showing that the testator had in mind a fixed time when William should have no child or issue, namely, at the death of William, and not at some unknown and indefinite period

      January 2, 1912:
    of time beyond his death: Bedford’s App., 40 Pa. 18; Miller’s Est., 145 Pa. 561; Taylor v. Taylor, 63 Pa. 481; Stoner v. Wunderlich, 198 Pa. 158.

      John II. Pierce, with him E. Walker Smith, for appellee.
    If a devise be made to one in fee, and if he die without issue, or a failure of issue, or for want of issue, or without leaving issue, then over to another in fee, the estate of the first taker is a fee tail: Eichelberger v. Barnitz, 9 Watts, 447; Palethorp v. Palethorp, 194 Pa. 408; Cochran v. Cochran, 127 Pa. 486; Stouch v. Zeigler, 196 Pa. 489; Corrin v. Elliott, 23 Pa. Superior Ct. 449.
    The words, “shall die without issue” must be construed to mean an indefinite failure of issue, and hence that the legatee took an absolute estate in fee: Hoff’s Est., 147 Pa. 636; Grimes v. Shirk, 169 Pa. 74; Stouch v. Zeigler, 196 Pa. 489; Potts v. Kline, 174 Pa. 513.
    If the word “heir” as used in the will in this case should be construed to mean child, children, son or male issue, it would still mean an indefinite failure of issue, and the title would be a fee tail in Wm. McCullough, converted into a fee simple by the Act of April 27, 1855, P. L. 368: Braden v. Cannon, 24 Pa. 168; Potts v. Kline, 174 Pa. 513.
   Opinion by

Mr. Justice Potter,

From the record in this case it appears that plaintiff claims an estate in fee in the land in question, under the will of his grandfather, John McCullough. The latter died February 7, 1883, leaving to survive him his wife, a son William, and a daughter Alice Horton. In his will, after giving to his wife the use and control of the farm during her natural life, he continued, “and at the death of my wife, Cordelia McCullough, the farm is to be and remain the property of my son, William, and his heirs, by complying with this will. That is, my son William shall pay to his sister Alice, intermarried to John T. ■Horton, the sum of $500 within ten years after the death of his mother .... and if William McCullough has no heir, then said farm falls to Frank Horton or next nearest of kin.” At the time of his father’s death William was seventeen years of age, and unmarried. He afterwards married and had three children, but at the date of his death in 1909, had no child living. Cordelia McCullough, widow of the testator, died in 1906. The son William complied with the requirement of his father’s will, and paid to his sister Alice Horton, the sum of $500, and thus became entitled to the benefit of the direction in the will, that “the farm is to be and remain the property of my son William and his heirs.” A later clause in the will, which provides that “if William McCullough has no heir, then said farm falls to Frank Horton, or next nearest of kin,” gives rise to the controversy in this case. The appellant contends that William McCullough took a determinable fee, limited to him and his heirs until the happening of his death, without a child or issue. The defendant maintains that William McCullough took an estate in fee simple, or an estate tail, which by reason of the Act of April 27, 1855, P. L. 368, is converted into a fee simple. If it be considered that the word “heir” was used by the testator in the ordinary sense, there was. no lack of a person upon whom the law would cast the estate. It seems to be conceded, however, that the word “heir” as here used, meant heir of the body, or issue. William McCullough did have issue, although none were living at the time of his death. That the words “if none,” as applied to a failure of issue, mean an indefinite failure of issue, is well settled: Armstrong v. Michener, 160 Pa. 21.

In his opinion, the trial judge says that he finds nothing in the will to indicate that testator had in mind a definite, rather than indefinite, failure of issue; and he concludes that the expression “If William McCullough has no heir” was equivalent to saying “If William McCullough shall die without issue.” We see no reason to differ with this conclusion. If the two phrases are to be regarded as equivalents, then under the settled rules of construction, as they existed prior to the Act of July 9, 1897, P. L. 213, they must be held to import a general and indefinite failure of issue, and the first taker will take an. estate in fee simple. See Smith v. Piper, 231 Pa. 378. So, too, if the devise be regarded as being one to William McCullough in fee, and in case of his death, over to another in fee, then under the authorities, the estate of William McCullough must be regarded as a fee -tail, which by force of the act of 1855, became a fee simple: Stouch v. Zeigler, 196 Pa. 489, and numerous cases there cited.

Our view is in accord with the conclusion reached by the court below; and the judgment is affirmed.


author: Mr. Chief Justice Fell,

text:
    Moore v. Neil et al., Appellants.

      Election law — Candidate’s petition — Apparent regularity — Duty of county commissioners — Withdrawal from petition — Act of February 17, 1906, P. L. 36.

    1. It is the plain duty of the county commissioners, under the Act of February 17,1906, P. L. 36, when a candidate’s petition is presented to them, even though it be regular on its face, to inquire whether the requirements of the act have been complied with in regard to the number of signers and their qualifications as electors of the division.
    2. In such a case the commissioners have authority to refuse such a petition, where it appears that ten of the fifty-six signers of the petition had been induced to sign upon a false representation that the candidate was a democrat and had withdrawn from the petition, and that the remaining signers were not qualified voters of the democratic party.
    3. There is nothing in the relation of a signer of such a petition to the other signers that would make it inequitable for them to withdraw.

      Mandamus — Practice, C. P. — Alternative vorit — Act of June 8, 1893, P. L. S/t5.

      4. It is only where the right to require the performance of an act is clear that a peremptory mandamus may be awarded in the first instance. An alternative writ under the Act of June 8, 1893, P. L. 345, should be asked in a proceeding to compel county commissioners upon petition to print a candidate’s name on the ballots under the uniform primary act.
    Argued Oct. 10, 1911.
    Appeal, No. 216, Oct. T., 1911, by respondents, from judgment of C. P. Indiana Co., Dec. T., 1911, No. 40, in case of Charles H. Moore v. D. T. Neil, A. F. Bowman and J. M. Marshall, Commissioners of Indiana County, and John H. Hill.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Stewaet and Moschziskee, JJ.
    Reversed.
    Petition for mandamus. Before Teleoed, P. J.
    The opinion of the Supreme Court states the case.
    The court below made the following order:
    And now, September 16, 1911, this matter coming on to be heard, and having been argued by counsel, it is ordered and directed that the name of Charles H. Moore, be placed upon the official ballot of the democratic party for the office of district attorney for the primary election for the year 1911, as prayed for in this petition. [3]

      Error assigned among others (3) was the order of the court.

      D. B. Taylor, with him Ernest Stewart, D. H. Tomb. and J. Wood Clark, for appellants.
    The signers had a right to withdraw the names before the petition was acted upon: Auburn Bolt & Nut Works v. Shultz, 143 Pa. 256; Muncy Traction Engine Co. v. Green, 143 Pa. 269; Newton v. Emporium Borough, 225 Pa. 17; Littell v. Board of Sup’rs Vermilion County, 198 111. 205 (65 N. E. Repr. 78); State ex rel. v. Board of Sup’rs Polk County, 88 Wis. 355 (60 N. W. Repr. 266); Reading v. Com., 11 Pa. 196; James v. Bucks County Comm’rs, 13 Pa. 72; Birmingham Fire Ins. Co. v. Com., 92 Pa. 72.
    The remedy by mandamus is a strictly legal one, and the relator must establish a specific legal right, as well as a want of specific legal remedy before the courts will allow this strong arm of the law to be invoked: Heffner v. Com., 28 Pa. 108; Com. v. Henry, 49 Pa. 530; Com. v. Fitter, 136 Pa. 129; Com. v. James, 214 Pa. 319; Com. v. Kessler, 222 Pa. 32; Underwood v. Gendell, 227 Pa. 214; Com. v. Mitchell, 82 Pa. 343.
    January 2, 1912:

      J. N. Banks, for appellee,
    .cited: Blumberg et al. v. Blankenburg, 16 Pa. Dist. Rep. 23; Denny v. Bellevue Borough, 56 Pitts. Leg. J. 25.
   Opinion by

Mr. Chief Justice Fell,

This appeal is from an order directing the county commissioners of Indiana county to place the name of the appellee on the official ballot of the democratic party for the office of district attorney for the primary election for the year 1911. The case was heard on petition, answer and demurrer to the answer.

It was alleged in the petition to the court, that on September 8, the appellee filed with the clerk of the county commissioners, a petition signed by more than fifty qualified electors of the county, in which it was set forth ■that -the signers were members of the democratic party and praying that his name should be printed on the official ballot of the party. The commissioners answered that on September 9, and before the expiration of the time for the filing of petitions for nominations, and before any action had been taken by them, ten of the fifty-six signers of the petition, whose names were set forth, presented a petition in which they stated that they had signed the original petition under a misapprehension; that they refused to be considered as signers thereof, and requested that their names should be disregarded in determining whether the petition filed complied with the law, and that on the same day, the chairman of the democratic county committee, acting for the committee, filed a protest in the name of the party against the placing of the appellee’s name on the official ballot for the reason that several of the signers of his petition were not democrats. This was followed by averments by the commissioners that the ten signers of the appellee’s petition who had withdrawn their names had been induced to sign on the false representation that he was a democrat, and that of the remaining signers, thirteen whose names were given, were not qualified electors of the democratic party, and that for these reasons the commissioners at a regular meeting had agreed that the appellee’s name should not be printed on the party ticket.

The grounds of the demurrer were that the petition being regular on its face was conclusive of the right of the appellee to have his name printed on the ticket; that the commissioners were without authority to consider .the withdrawal of the signers of the petition, or-to inquire whether the signers of the petition were qualified electors of the- division or members of the democratic party. The substance of the decision of the court is that sec. 5 of the uniform primary Act of February 17, 1906, P. L. 36, is mandatory and that the duty of the county commissioners was ministerial and that they had no authority to permit the withdrawal of names or “to investigate the genuineness of the petition.”

In this view we do not concur. There is no reason why a signer of the petition, who has been deceived, should not, before it has been acted upon, and within the time for filing petitions, be allowed to withdraw his name from it. The person who has practiced the fraud upon him, or in whose interest it has been practiced has no standing to object, and there is nothing in the relation of a signer to other signers that would make it inequitable. The requirement of the fifth section of the act is that names shall be printed on the official ballot “upon the filing of petitions, signed by qualified electors of the political district division within which the nomination or election is to be made, setting forth that the signers thereof are members of the party designated.” This does not make the commissioners mere automatons, shorn of all discretion and required to act upon a petition, that while regular on its face is known by them to be false in fact. They are not required nor authorized to print the name of a candidate on a party ticket unless the petition in his behalf is signed by the required number of qualified electors of the district within which the nomination is to be made. Whether the requirement of the act has been complied with in regard to the number of signers, and their qualifications as electors of the division, it is the plain duty of the commissioners to inquire. In this case fifty signers were required.

The proceeding in the common pleas was irregular in its inception and was conducted by the court without regard to the practice established by the mandamus Act of June 8, 1893, P. L. 345. The prayer of the petition was for a mandamus or for a rule to show cause why a mandamus should not be issued. A rule was granted to show cause why the appellee’s name should not be placed on the official ballot and the order made followed the wording of the rule. It is only where the right to require the performance of an act is clear, and it is apparent that no valid excuse for its nonperformance can be given, that a peremptory mandamus may be awarded in the first instance. An alternative writ should have been asked for. The rule to show cause had no place in the proceeding and only complicated that which the act'of assembly had made plain and simple: Miller v. Clement, 205 Pa. 484. The application to the court seems to have been treated as of the nature of an appeal from the action of the commissioners. But in whatever light it is considered, the facts on which the court had to pass, set up by the answer and admitted by the demurrer, left the appellee without a right to have his name placed on the ticket.

The order appealed from is reversed at the cost of the appellee.


author: Mr. Justice Moschzisker,

text:
    Mahoning & Shenango Railway & Light Company, Appellant, v. New Castle.

      Equity — Injunction—Jurisdidion—Ordinance—Police power — Street railway — Threat to arrest employees — Municipalities.
    1. Equity has jurisdiction to interfere by injunction against a municipality where the validity of a police power ordinance is in question, and there is a threat to take the employees of a street railway company off its cars by arrest.

      Municipalities — City of the third class — Penal ordinances — Regulation of common carriers — Standard of care — Safety devices — Powers.
    2. In the absence of express authority conferring the power of enactment such a penal ordinance as one purporting to regulate the safety devices to be adopted-by a street railway, which undertakes to enforce a higher standard than that imposed by the principles of common-law, should not be sustained.
    3. An ordinance of the city of New Castle, a city of the third class, required all companies operating street railway lines in the city to equip every car operated with “the latest, best and most approved safety brakes,” and specified by name two kinds of brakes to be used, with provision for fine or imprisonment for violation of the ordinance. On appeal from a decree dismissing bill praying for an injunction declaring the ordinance invalid, held, that there is nothing in the Act of February 25,1869, P. L. 249 (incorporating the city of New Castle), in the Act of May 16,1901, P. L. 224, or in the Act of March 22,1887, P. L: 8, which confers upon the city the express right to enact such an ordinance; nor has the city any incidental or implied power which would enable it to do so.

      Railroads — Operation of road — Duty to protect public — Board of directors.

    4. In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that there be no division of this great responsibility with others, not even municipalities. What particular means shall be employed to protect the public is left to the company, the law merely demanding and requiring reasonable care.
    Argued Oct. 10, 1911.
    Appeal, No. 31, Oct. T., 1911, by plaintiff, from decree of C. P. Lawrence Co., June T., 1909, No. 5, in Equity, dismissing bill in suit of Mahoning & Shenango Railway & Light Company v. City of New Castle, Harry J. Lusk, Mayor, and Joseph Gilmore, Chief of Police.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity to restrain the enforcement of and to declare invalid a municipal penal ordinance requiring a street railway company to use the latest, best and most approved safety brakes and specifically designating that certain brakes shall be used until some better one is devised. Before Porter, P. J.
    At hearing the ordinance was determined to be valid, and the bill was dismissed.
    It appears from the evidence and findings of the court below that the city of Newcastle is a city of the third class; that the plaintiff company is a traction or motor-power company incorporated under the Act of March 22, 1887, P. L. 8, running cars upon the streets of the defendant city, in which there are some steep grades; that the plaintiff operates four double-truck cars, twenty-six single-truck cars and a number of trailers, the last mentioned having no motor or other power; that the weight of the single-truck cars is from nine to twelve tons each; that the speed limit fixed by ordinance in said city is eight miles per hour; that the plaintiff’s cars are all equipped with a hand brake and a reverse of the usual pattern, and with a fender which increases the efficiency of the hand brakes; that the double-truck cars have in addition to the hand brake an air brake of the character required by the ordinance in question; that it is impracticable to install in the single-truck cars the apparatus necessary for the operation of the air brake required by the ordinance; that the hand brake is the safety appliance in most common use and most generally approved for braking or stopping street railway cars; that the magnetic brake required by said ordinance can be used in connection with the hand brake and adds to the safety of operating cars, but that the magnetic brake “cannot be said to be in general use;” that this latter brake is known as the Westinghouse magnetic brake, and appears to be the only brake that can be used on single-truck cars in connection with the hand brake, “unless the reverse should be regarded as a power brake;” that the reverse is not as good as the magnetic brake; that the latter is a good additional safety brake in emergencies, in that it enables a car to stop more quickly, and if in order can be used to advantage in the winter time and also in going down hills; that it is impracticable to install and operate either the magnetic or air brake on the trailer cars; that for about two years the plaintiff’s cars were equipped with magnetic brakes in addition to the hand brakes, but in 1907 their use was discontinued as unsatisfactory, and since that time they have used only the hand brake and the reverse; that “since the magnetic brake has been removed fewer accidents have resulted from the operation of the cars.”

      Errors assigned were: Dismissal of certain exceptions to the conclusions and decree of the court below raising the several questions discussed in the opinion of the Supreme Court.

      C. H. Akens, of Akens, Wilkinson, Lockhart & Chambers, for appellant.
    Police powers of municipalities are conferred powers: Com. v. R. R. Co., 27 Pa. 339; Com. v. Warwick, 185 Pa. 623; Whelen’s App., 108 Pa. 162; Penna. R. R. Co.’s Case, 213 Pa. 373; Lesley v. Kite, 192 Pa. 268; Conshohocken Borough v. Conshohocken Ry. Co., 206 Pa. 75; Kneedlér v. Norristown Borough, 100 Pa. 368; Williamsport v. Com., 84 Pa. 487; Schroeder v. Gas & Water Co., 20 Pa. Superior Ct. 255.
    The authority assumed is to control the discretion of the directors of the company and thus control the style of brakes. There is no such authority conferred by law: Penna. R. R. Co.’s Case, 213 Pa. 373; Chester v. Traction Co., 4 Pa. Superior Ct. 575.
    One is not required to have machinery or appliances of the “latest, most improved or best type:” Buente v. Traction Co., 2 Pa. Superior Ct. 185; Glenmont Lumber Co. v. Roy, 126 Fed. Repr. 524; Westinghouse Electric & Mfg. Co. v. Heimlich, 127 Fed. Repr. 92; Wabash R. R. Co. y. Burress, 111 111. App. 258; Buttner v. Steel Car & Foundry Co., 101 Md. 168 (60 Atl. Repr. 597); Phila. & R. R. R. Co. v. Hughes, 119 Pa. 301; Rummell v. Dilworth, 111 Pa. 343; Augerstein v. Jones, 139 Pa. 183.
    Whilo the company must adopt machinery and appliances to secure ordinary and reasonable safety to other users of the streets, the particular means or apparatus to so protect the public is left to the company operating the road, the law merely demanding and requiring reasonable care in view of all the circumstances: Seifred v. Railroad Co., 206 Pa. 399; Pennsylvania R. R. Co.’s Case, 213 Pa. 373; Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610.
    The question of jurisdiction in such cases was expressly mooted and decided against the city’s contention in Bryan v. Chester, 212 Pa. 259.

      James A. Gardner, city solicitor, for appellee.
    The city of New Castle had the power to pass the ordinance in question; for as a municipal corporation it possesses and can exercise the power: Lesley v. Kite, 192 Pa. 268; Hazleton v. R. R. Co., 11 Pa. Dist. Rep. 644; McKeesport v. Ry. Co., 2 Pa. Superior Ct. 242; Pennsylvania Co. v. James, 81 * Pa. 194; Montgomery City Council v. Parker, 114 Ala. 118 (21 So. Repr. 452).
    An injunction will not lie to prevent the enforcement of an ordinance where the same is not void, or where the same does not affect property rights, and where there is an adequate remedy at law: Burnett v. Craig, 30 Ala. 135; 68 Am. Dec. 115; Poyer v. Des Plaines, 123 111. Ill; 5 Am. St. R. 494; McLaughlin v. Jones, 3 W. N. C. 203; Atlanta v. Gates City Gas Lgt. Co., 71 Ga. 106; Brennan v. Sewerage & Water Board, 108 La. 569 (32 So. Repr. 563); Des Plaines v. Poyer, 123 111. 348.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

This was a proceeding in equity for an injunction to restrain the defendants from arresting the motormen and conductors in charge of the plaintiff’s cars or from in any other manner enforcing the provisions and penalties of a certain municipal ordinance.

The ordinance was approved November 30, 1908, and required all companies operating street railway lines in the city of Newcastle, (sec. 1) to “equip.each and every car operated .... with the latest, best and most approved safety brakes;” (sec. 2) “until some better or more practical brake or device is made for the purpose of braking or locking cars .... to equip each of their respective cars with the kind of brake known as the magnetic brake .... the said brake to be the same or similar to those which were recently used by the Mahoning & Shenango Railway & Light Company .... in said city, or an air brake similar to those now in use on the Inter-Urban lines now entering the city, the said brake or brakes to be in addition to the hand brakes with which each car shall be equipped;” and (sec. 3) that upon conviction of any violation of the ordinance a fine shall be imposed of not less than $10 or more than $100 and costs of suit; and upon refusal to pay, imprisonment not exceeding thirty days, with an allowance of execution process to collect fines and costs from corporations.

The court below decided that the ordinance was valid excepting in so far as it required the trailer cars to be equipped with the brakes designated; that if the plaintiff was affected it had an adequate remedy at law; and that equity had no jurisdiction to grant the relief prayed for. A decree was entered dismissing the bill.

It was the threat to take the employees of the plaintiff company off its cars by arrest which caused the filing of the bill. Had this threat been carried out it would have meant the tying up of the plaintiff’s lines and a serious interference with the use of its property. Under such circumstances, if the ordinance was invalid, there was ample authority to sustain equitable interference. In Bryan v. Chester, 212 Pa. 259, where the validity of a police power ordinance was in question, it was contended, upon practically all of the grounds now urged, that equity had no jurisdiction and should not interfere. But we said, “There can be no doubt that this proceeding was properly instituted;” and we sustained an injunction decree declaring the ordinance invalid.

There is nothing in the Act of February 25, 1869, P. L._ 249 (incorporating the city of New Castle), in the Act of May 16, 1901, P. L. 224 (to amend the act of May 23, 1889, as to cities of the third class), or in the Act of March 22, 1887, P. L. 8 (for the incorporation and regulation of motor power companies), which confers upon the defendant city the express right- to enact an ordinance in the terms of the one in this case; nor had the city any incidental or implied power which would enable it so to do.

In constructing and maintaining its streets, a city is not bound to adopt the latest and best devices: Canavan v. Oil City, 183 Pa. 611; and yet that is the standard of public duty which the defendant city attempts to set for the plaintiff company; and more than this, by designating what the latter must use as the latest and best safety brakes, the ordinance assumes to declare how the company shall perform this duty. In the absence of express authority conferring the power of enactment, a penal ordinance such as the present, which undertakes to enforce a higher standard than that imposed by the principles of the common law, should not be sustained; if a new and different one is to be set, the legislature should act. Aside from the strictly legal aspect, it is apparent that if such minute regulation is to be attempted at all, it is far better that the matter shall be under state control; for if each municipal subdivision be permitted to prescribe the particular Mnd of safety brakes to be used by. cars passing through its territory, since there is no guarantee that the judgment of the different authorities will accord, the important development of connecting trolley lines as competitors of the railroads, which has added so much to the comfort and convenience of the traveling public, will be seriously handicapped if not practically brought to a standstill.

However, it is not necessary to theorize upon the subject in hand, for no matter what the law may be in other jurisdictions the controlling principles have been settled in this state. In The Pennsylvania Railroad Company’s case, 213 Pa. 373, this court squarely ruled against the validity of an ordinance of the character of the one under consideration. We there said, “The question raised on this appeal is as to the power of the borough .... to pass an ordinance .... requiring the Pennsylvania Railroad to erect, maintain and operate safety gates. ... A penalty is provided for a failure to comply with the requirements. ... In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that thére be ho division of this great responsibility with others — not even with municipalities .... for division of it would be the shifting of it in every case of accountability for failure to properly operate the road or run the cars. But, while this is true, corresponding duties of the highest order are imposed exclusively upon those having the control and management of railroads. One of these is to adopt and use suitable and adequate means to give notice of approaching trains. . . . What particular means, however, shall be employed to protect the public .... is left to the company operating the road, the law merely demanding and requiring reasonable care. . . . What is attempted by the appellee in the present case? Having no voice in the operation of the appellant’s road, it undertakes to do what the common law itself does not do. It assumes to declare how the railroad shall perform a public duty .... and would substitute its judgment for that of the board of directors as to what kind of protection shall be afforded but with no corresponding responsibility resting upon it. . . . If it. has the power to require the defendant to erect safety gates, it has the power to require the adoption from time to time of such other means as in its judgment ought to be adopted by the company for the protection of the public. . . . The power for which it contends would be practically unlimited. . . . The power which it would exercise may be a desirable one, but courts cannot recognize it unless it exists. ...” After distinguishing the cases relied upon to support the municipal authority to pass the ordinance and determining that the general welfare clause was not a sufficient warrant for that purpose, we ruled that the borough had no such express or implied power and declared its action void. On principle that case governs the present one.

The assignments of error are sustained, and the decree is reversed; the record is remitted to the court below with directions to reinstate the bill and to grant the injunction prayed for at the cost of the appellee.


author: Mr. Justice Mestrezat,

text:
    National Bank, Appellant, v. Lake Erie Asphalt Block Company.

      Practice, C. P. — Statements—Allegata and probata — Evidence—Negotiable instruments — Promissory notes — Guaranty—Nonsuit.
    1. The purpose of pleading is to form a clear and distinct issue for the trial of the cause between the parties. The statement should be sufficiently explicit to enable the defendant to prepare his defense. A plaintiff cannot file a statement which avers one cause of action, and be permitted, on the trial, to prove a different cause of action. He must state the claim on which he will rely to recover so clearly and concisely that the defendant may be fully advised as to what he is called upon to meet.
    2. In an action of assumpsit by a bank, as payee, against a corporation, brought to recover on a contract guaranteeing the payment of a promissory note for $5,000, dated February 10, 1903, where the declaration avers that the money for which the note in suit was given was borrowed by the maker on February 10,1903, and that it was borrowed for the defendant company and was the consideration for the alleged guarantee, the plaintiff is not entitled, under the pleadings, to the admission of testimony offered to prove that the note in evidence was a renewal of another note of like amount between the same parties, dated May 1, 1900, on which the maker received the money which was passed to his credit on the books of the bank; that the plaintiff bank loaned the maker $5,000 on May 1, 1900, for which he gave it his note of that date and deposited with the bank certain collateral and that said loan was made for the benefit of the defendant company; that on May 4, 1900, the maker drew his check for $5,000 to the defendant’s order; that the note was renewed from time to time until February 10, 1903, when the maker made a new note to the plaintiff bank for $5,000, and withdrew a part of the collateral which he deposited with the original note and which had remained with the bank as collateral during the time of renewal and the defendant, in order to enable him to withdraw the collateral and in consideration of having received the $5,000 on May 4, 1900, made the contract on which the suit was brought.
    3. Since in such case it is manifest that if, as alleged in the offers, the loan was obtained for the defendant’s benefit, it was procured by the maker individually from the bank; and that if the defendant borrowed the $5,000 obtained by the maker from the bank it was borrowed from the maker and not from the bank and that the loan could not have been procured on the faith of, or by virtue of, the contract of guarantee since the guarantee was not then in existence, and since it could not be successfully contended that the defendant received any benefit in 1903 by reason of the guarantee for the reason that the forbearance or extension of time given the maker by the renewal of his note in that year and the exchange of the collaterals were of no benefit to the defendant company, it not being liable to the plaintiff for the loan, it follows that even if the offers of evidence were admitted there could be no recovery and, therefore, a nonsuit entered by the court below will not be disturbed on appeal.

      Corporations — Unauthorized act of officers — Guaranty.
    4. Where a person seeks to hold a corporation liable on a guaranty made by its officers without authority, the burden is upon him to show that the corporation received and retained the benefit of the unauthorized .act of its officers.

      Appeals — Assignments of error — Rejection of evidence — Reference to page in paper-book.

      5. An assignment of error to the rejection of evidence is insufficient and improper, if it fails to give a reference to the page of the paper-, book or appendix, where the offer and rejection of the evidence may. be found.
    Argued Oct. 10, 1911.
    Appeal, No. 96, Oct. T., 1911, by plaintiff, from order of C. P. Lawrence Co., June T., 1906, No. 93, refusing to take off nonsuit in case of The National Bank of Western Pennsylvania v. Lake Erie Asphalt Block Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a contract of guaranty of a promissory note. Before Prather, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court.
    The court directed a compulsory nonsuit which it subsequently refused to strike off.
    The plaintiff made the following offers:
    Counsel for plaintiff offers to show by the witness that the paper, exhibit “A” is a note made in renewal of the paper, exhibit “B” to be followed by proof that exhibit “B” was delivered by C. H. Burchinal to The National Bank of Western Pennsylvania, plaintiff, and on delivery of said note in 1900 he received from the bank $5,000 which was passed to his credit. That to be followed by evidence that on May 4, 1900, by his check on The National Bank of Western Pennsylvania, drawn to the order of Lake Erie Asphalt Block Company, the defendant paid over the $5,000 to the defendant company, and that that check was indorsed by The Lake Erie Asphalt Block Company to the order of T. Mellon & Sons Bank, went through the clearing house and was paid by the plaintiff, and that all for the purpose of showing that the defendant in this case received the entire benefit of the note in suit and guaranteed the note marked exhibit “A" for a full and valuable consideration, viz., the $5,000 received by it.
    Which offer was objected to by counsel for defendant for the reason that no such transaction was declared upon by the plaintiff, and under the pleadings as they stand, under the act of 1887 and the rules of court, it is incompetent. And, further, the fact that the sum of $5,000 was paid by a check of C. H. Burchinal to The Lake Erie Asphalt Block Company on May 1, 1900, is no evidence of any liability on the obligations sued upon, and it is therefore incompetent, irrelevant and immaterial.
    The Court: The objection is sustained and an exception is sealed for the plaintiff. [2]'
    Judge Martin, attorney for plaintiff: I propose to prove that this payment was made to the defendant company May 4, 1900, and that the note on which the suit is brought is a renewal of a note given May 1, 1900, which note was given to secure the $5,000 that was borrowed from the plaintiff bank and paid to the defendant on May 4, 1900.
    On which offer, objection having been made, the court ruled as follows:
    The objection is sustained and a bill of' exceptions is sealed for the plaintiff. [3]
    Plaintiff’s counsel propose to prove that the note exhibit “A” is a renewal of note identified as exhibit “B.”

      The Court: Exhibit “A” is the one declared upon?
    Judge Martin: Yes.
    • Objected to by defendant’s counsel, the question having been already ruled by the court in another form, and it is objected to for the reasons then stated.
    The Court: The objection is sustained and an exception sealed for the plaintiff. [4]
    Plaintiff’s counsel also propose to prove that on May 4, 1900, C. H. Burchinal paid to The Lake Erie Asphalt Block Company $5,000 in consideration of which The Lake Erie Asphalt Block Company made the contract of suretyship on which this suit is brought.
    Tó which offer, counsel for defendant objected as follows:
    Objected to by defendant’s counsel, this having been already ruled when previous offer was made, and it is objected to for the same reasons.
    The Court: The objection is sustained and an exception sealed for plaintiff. [5]
    Plaintiff’s counsel propose to prove that on May 1, 1900, The National Bank of Western Pennsylvania, plaintiff, loaned to C. H. Burchinal $5,000 for which he gave to the said bank his note dated May 1, 1900, marked exhibit “B” along with which he deposited with said bank certain collateral, which had been loaned to him by one Graham; that said loan was made for the benefit of The Lake Erie Asphalt Block Company, defendant; that the money, namely, the. $5,000 covered by the said note, was passed to the credit of C. H. Burchinal, in The National Bank of Western Pennsylvania; that on May 4, 1900, C. H. Burchinal drew his check to the order of Lake Erie Asphalt Block Company, that the note was renewed from time to time until February 10, 1903, when Mr. Burchinal made a new note to The National Bank of Western Pennsylvania, for $5,000, and withdrew, at the request of one Graham, a part of the collateral which he deposited with the original note and which had remained with the bank as collateral during all the time of renewal, and that The Lake Erie Asphalt Block Company, in order to enable bim to withdraw the said collateral, and in consideration of having received the $5,000 on May 4, 1900, for value, made the contract on which this suit is brought.
    To which offer counsel for defendant objected as follows:
    Objected to by defendant’s counsel as incompetent, irrelevant and immaterial.
    The Court: The objection is sustained and an exception is sealed for plaintiff. [6]

      Errors assigned were (1) refusal to strike off compulsory nonsuit; (2-6) rulings on evidence as above.

      H. V. Blaxter, with him J. Norman Martin, Thomas C. Lazear and Jesse T. Lazear, for appellant.
    A sufficient consideration for the guaranty was the mere extension of the note, but there was in addition to this a consideration based on the receipt of the proceeds of the original note which continued through all the renewals thereof: Campbell v. Knapp, 15 Pa. 27; Paul v. Stackhouse, 38 Pa. 302.

      Robert K. Aiken, with him J. Clyde Gilfillan, for appellee.
    The law in this commonwealth is that a contract of suretyship or guaranty executed by the officers of a corporation without action of the board of directors does not bind the corporation, unless, first, there be a previous course of dealing which would justify the holder of the paper in assuming that the guaranty was properly authorized, or, second, unless the corporation received the benefits of the unauthorized action of its officers: Mill-ward Cliff Cracker Company’s Estate, 161 Pa. 157; Worthington v. Railway Co., 195 Pa. 211; Monongahela National Bank v. Harmony Land Co., 226 Pa. 440.
    The proof offered was not in support of any allegation in the declaration: Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Church v. Eeterow, 2 P. & W. 301; Hale v. Hale, 32 Pa. Superior Ct. 37.

      January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit by The National Bank of Western Pennsylvania against The Lake Erie Asphalt Block Company, brought to recover on a contract guaranteeing the payment of a promissory note of $5,000, dated February 10, 1903. The note was made by one C. H. Burchinal and is payable to The National Bank of Western Pennsylvania, the plaintiff in this action. The guarantee is on the back of the note and is alleged to have been signed by the defendant company.

The declaration avers, inter alia, that “on February 10, 1903, C. H. Burchinal borrowed from The National Bank of Western Pennsylvania .... the sum of $5,000 for which he, the said C. H. Burchinal, then and there made, executed and delivered to The National Bank of Western Pennsylvania, his promissory note or obligation bearing date Pittsburg, February 10, 1903, .... whereupon the said The National Bank of Western Pennsylvania loaned to the said C. H. Burchinal $5,000, which money the plaintiff is informed and believes and therefore avers and says and expects to prove on the trial of this case, was borrowed by C. H. Burchinal for the Lake Erie Asphalt Block Company. At the time of borrowing the said money and making the loan of $5,000 to the said C. H. Burchinal, the said defendant, Lake Erie Asphalt Block Company, for value received and in consideration of receiving the said money so loaned by the plaintiff as aforesaid, made a written agreement which was indorsed on the back of the said note in words following: ‘In consideration of the making at the request of the undersigned of the loan evidenced by the within note upon the terms therein and for the sum of one dollar, the undersigned hereby guarantee to The National Bank of Western Pennsylvania .... the prompt payment of the said loan when due,”’ etc.

The defendant company pleaded non assumpsit and the matters specially set.out in the affidavit of defense which denied that Burchinal had borrowed $5,000 for the com-party, that it had received the $5,000 alleged to have been borrowed by him from the plaintiff bank, or that it had executed the alleged agreement of guaranty, and averred that C. H. Burchinal, president, and H. C. Burchinal, treasurer of said company, had no authority to execute the agreement indorsed on said note, that the defendant company had not authorized the Burchinals, by resolution or otherwise, to execute the agreement, and that the agreement was without value, benefit or consideration to the company.

On the trial of the cause the plaintiff offered in evidence the promissory note for $5,000, dated February 10, 1903, payable on demand to The National Bank of Western Pennsylvania, and signed by C. H. Burchinal. On the back of the note appeared the alleged agreement of guaranty which was signed: “Lake Erie Asphalt Block Company, C. H. Burchinal, President, H. C. Burchinal, Treasurer.” The plaintiff then made several offers which were rejected and are the subject of the several assignments of error except the first which alleges error in refusing to take off the nonsuit. Substantially the plaintiff proposed to prove by the several offers that the note in evidence was a renewal of another note of like amount between the same parties, dated May 1, 1900, on which Burchinal received the money which was passed to his credit on the books of the bank, that the plaintiff bank loaned to Burchinal $5,000 on May 1, 1900, for which he gave it his note of that date and deposited with the bank certain collateral and that said loan was made for the benefit of the defendant company, that on-May 4, 1900, Burchinal drew his check for $5,000 to the defendant's order, that the note was renewed from time to time until Feb. 10, 1903, when Burchinal made a new note to the plaintiff bank for $5,000, and withdrew a part of the collateral wdiich he deposited with the original note and which had remained with the bank as collateral during the time of renewal and the defendant, in order to enable Burchinal to withdraw the collateral and in consideration of having received the $5,000 on May 4,1900, made the contract on which the suit was brought.

The plaintiff having rested its case, the court on motion of defendant’s counsel granted a compulsory nonsuit which it subsequently refused to take off.

One of the grounds for a nonsuit, sustained by the court, was that the plaintiff’s' probata and allegata did not agree. An inspection of the statement will clearly disclose that the learned court was right in holding that the several offers of evidence were not admissible under its averments. The plaintiff made no offer to amend but insisted on trying its case on the statement as filed. Notwithstanding the looseness of pleading which exists at present, the plaintiff is still required to file a declaration of his cause of action which “shall consist of a concise statement of the plaintiff’s demand.” When the defendant is brought into court to answer a claim made against him, he is entitled to know the plaintiff’s cause of action that he may be prepared to meet it. The purpose of pleading is to form a clear and distinct issue for the trial of the cause between the parties. The statement should be sufficiently explicit to enable the defendant to prepare his defense. A plaintiff cannot file a statement which avers one cause of action, and be permitted, on the trial, to prove a different cause of action. He must state the claim on which he will rely to recover so clearly and concisely that the defendant may be fully advised as to what he is called upon to meet.

The statement in this case, it will be observed, avers that the money for which the note in suit was given was borrowed on Feb. 10, 1903, and that it was borrowed for the defendant company and was the consideration for the alleged guarantee. These averments would not be sustained by the testimony contained in the offers, the exclusion of which is complained of in the assignments of error. There is no allegation in the statement that the note in suit was the renewal of a note given in 1900 or that the money for which the original note was given was borrowed at that time; nor is there any allegation that the money borrowed in 1900 was paid to the defendant and was the consideration for the guarantee sued on or that on May 4, 1900, Burchinal paid to the defendant company $5,000 in consideration of which it made the contract on which the suit was brought. These were the several matters which the plaintiff proposed to prove in support of its cause of action. None of the alleged facts were averred in the statement; on the contrary, the statement distinctly avers that the money was borrowed on Feb. 10, 1903, and that the guarantee in suit was given “at the time of borrowing the said money and making the loan of $5,000 to the said C. H. Burchinal.” If the matters alleged were material to the plaintiff’s recovery, it goes without saying that they should have been averred in the statement, and if not so averred could not be proved on the trial of the cause. Prior to the offers of evidence, the defendant company had no notice of the several matters offered to be proven, and hence was not prepared to meet such proof. It had notice, by the statement, that the plaintiff’s claim rested upon the guarantee of a promissory note, dated February 10, 1903, for money borrowed that day and received by it at that time, and was prepared to defend against such claim; but it had no notice or knowledge, of what the plaintiff proposed to prove on the trial, viz.: that Burchinal had borrowed $5,000 in 1900, had given his note for it, and that the defendant had received that money as a consideration for the guarantee sued on. To admit the proof offered under the pleadings in this case would be in effect to abolish pleading and to permit parties to make proof of matters foreign to the cause of action declared on in their statement. The learned court was right in excluding the plaintiff’s offers under the pleadings in the case.

The Burchinals had no authority from the board of directors of the defendant company to execute the guarantee, and hence it was unauthorized. It is conceded by the plaintiff bank that there was no course of dealing by which the bank was justified in assuming that the Burchinals were authorized to execute the guarantee. In order to sustain an action on the guarantee, the plaintiff is therefore driven to the position that the defendant company received the benefit of the loan obtained by the unauthorized act of its officers. But the benefit of the loan must have been received by the defendant by reason of the unauthorized action of the company’s officers in executing the guarantee and as part of that transaction. If the corporation received the proceeds or benefit of the officers’ unauthorized act, under such circumstances, it is estopped from setting up their want of authority and is liable on the contract. A corporation will not be permitted to accept and retain the benefits of its officer’s unauthorized contract, made in its name, and repudiate his authority to make the agreement. Common honesty does not tolerate such indefensible conduct in an individual or a corporation. But where one seeks to charge a corporation on this ground by reason of its officers’ unauthorized act, the burden is upon him to show that the corporation received and retained the benefit of the act. The offers, the exclusion of which are complained of in the present case, did not go so far. The plaintiff bank did not offer to show that the loan was made in 1900 for the benefit of the company on the faith of the guarantee executed by its officers. The facts set up in the several offers of testimony contradict any such conclusion. The contract or guarantee was not made until February, 1903, nearly three years after the loan was procured. The offers show that the money was loaned in 1900 to Burchinal on his individual note, and that three days thereafter he drew and delivered to the defendant his individual check for a like amount. If it be admitted that the loan was procured by Burchinal in 1900 for the defendant’s benefit, it imposed no liability under the circumstances on the defendant to repay it to the plaintiff bank. It created no contract between the plaintiff and the defendant. The loan could not have been, and was not, made on the faith of the guarantee contract, the subjeet of this action, which was indispensably necessary to create á liability on the part of the defendant, as at that time and for nearly three years thereafter the contract had no existence. Conceding therefore, as alleged in the offers, that the loan was obtained for the defendant company’s benefit and that it received the money in 1900, it could not have been procured on the faith of or by virtue of the contract of guarantee, but must have been obtained from the bank solely on Burchinal’s individual note and the collateral he deposited with the note. The fact, absolutely essential to a recovery in this action, viz.: the existence of the guarantee at the time the loan was made and the benefit was received by the company, was concededly wanting, and in none of the plaintiff’s offers did the bank propose to show it. It is manifest that if, in 1900, the loan was made for the defendant’s benefit, it was procured by Burchinal individually from the bank; and that if the defendant borrowed the $5,000 obtained by Burchinal from the bank it was borrowed from Burchinal and not from the bank.

It cannot be successfully contended that the defendant received any benefit in 1903 by reason of the guarantee. The forbearance or extension of time given Burchinal by the renewal of his note in that year and the exchange of collateral were of no benefit to the defendant company. The renewal of the note was a benefit to Burchinal, but it was a matter of perfect indifference to the defendant company as it was not liable to the plaintiff for the loan. The benefit to the guarantor which binds him in such cases is one which arises out of the officers’ unauthorized transaction, and, as suggested, no benefit came to the defendant by Burchinal’s unauthorized act in signing the company’s name to the guarantee of the renewal note in 1903. The company had not guaranteed the note of May 1,1900, nor was it interested in any of the collaterals delivered by Burchinal to the bank to secure the original loan. It was therefore immaterial to the defendant whether or not the loan procured by Burchinal in 1900 was repaid to the bank. It follows that if the offers of evidence made by the plaintiff bank had been admitted, the evidence already in not being sufficient, there could have been no recovery, and, for this reason, the nonsuit was properly entered.

All the assignments, except the first, are in violation of rule 28 of this court and might be disregarded in disposing of the case. The rule provides that when error is assigned to the rejection of evidence the specification must give a reference to the page of the paper-book or appendix where the offer and rejection of the evidence may be found; and that an assignment not according to the rule will be disregarded. There is no reference to the pages of the appendix where these several offers of evidence are to be found, and we were compelled to search the entire appendix to find them. We have repeatedly pointed out the necessity for the observance of this rule, and had our attention been called to the matter at the argument we would have been compelled to enforce the rule. Counsel who take such liberty with the rules which have been adopted to facilitate the business of the court and to aid counsel as well as the court in the examination and consideration of the cause do so at their peril.

The judgment is affirmed.


text:
    Citizens’ National Bank of New Castle v. Hileman, Appellant.

      Judgment — Opening judgment — Warrant for confession of judgment— Cancellation — Novation. .

    1. Judgment on a single bill will be stricken off where it appears that the note upon which judgment was entered had been marked “Paid” more than two years before by the deliberate and intentional act of the judgment'plaintiff, in pursuance of an understanding by which it took over as owner the equivalent of the note in bonds pledged as collateral security therefor, and credited this payment on its books; that there was no clerical error in so marking the note;-and that there was substituted for the note a written agreement by which the defendant undertook to save the plaintiff from loss up to the amount of the note, liability under which is not denied; and it makes no difference that the whole transaction was entered into under a mutual mistake of law as to the validity of the lien of the mortgage upon which the bonds were secured, as a result of which the plaintiff failed to realize anything on the bonds. In such a case the note ceased to be in itself a valid obligation, and the warrant on it was no longer authority for the confession of judgment.
    January 2, 1912:
    2. As a general rule a judgment, regular on its face, will not be stricken off, but when jt is entered wholly without authority it may be stricken off, for it is no judgment at all, so far as it affects the rights of the defendant.
    Argued Oct. 10, 1911.
    Appeal, No. 139, Oct. T., 1911, by defendant, from order of C. P. Lawrence Co., Sept. T., 1910, No. 204, discharging rule to strike off judgments in cases of The Citizens’ National Bank of New Castle, Pa., v. E. E. Hileman.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition to open and strike off judgment entered on warrant of attorney. Before Porter, P. J.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in discharging the rules.

      Robert K. Aiken, with him Akens, Wilkison, Lockhart & Chambers, for appellant.

      James A. Gardener with him E. T. Kurtz, for appellee.
   Opinion by

Mr. Justice Potter,

On September 3, 1907, the defendant in this case executed and delivered to plaintiff a collateral note under seal for the sum of $6,000, payable sixty days after date, and containing a warrant of attorney to confess judgment for the amount of the note. The note contained the statement that the maker had pledged with it as collateral security $18,000 par value of the bonds of The Hileman Company. The collateral was to cover another note of like amount. These bonds were secured by a mortgage which was supposed to be a lien upon certain leasehold estate belonging to the company. In the meantime the name of the company had been changed to The Emporium Company, and it had become bankrupt. After the adjudication in bankruptcy, defendant made an arrangement with the bank whereby it was to sell the collateral and buy in the bonds, and make claim upon them as owner against the funds arising from the sale of the leasehold upon which it was supposed that the mortgage securing the bonds was a first lien. In pursuance of the arrangement so made, defendant and his brother gave the bank a written agreement under seal, dated October 28, 1907, which provided that, in consideration of the bank selling the bonds which it held as collateral and making proof against the bankrupt’s estate as their owner, the obligors guaranteed to the bank the payment of the bonds to the amount of the two notes, with interest, and bound themselves, in the event of a failure to collect the amount of the notes or any part thereof, over and above expenses, to pay the bank the debt, interest and costs or any part thereof, remaining uncollected. The paper also contained a stipulation that suit might be brought on it at any time without exhausting the bonds, and a waiver of stay, exemption and inquisition. The transfer was made November 4, 1907, and the claim in the bankruptcy proceedings was filed on November 6, counsel for defendant representing the bank in pursuance of an agreement by which his attorneys were to prepare, file and prosecute the claim. Upon the transfer of the bonds the bank entered them on its books in the account of “stocks and securities,” and stamped on the face of the note “Paid Nov. 4,1907, Citizens National Bank of New Castle, Pa.” The claim on the bonds was not allowed by the bankruptcy court, (1) because the mortgage purporting to secure them was not and never had been a lien on the real estate or leasehold mentioned in it, and (2) because the claim was made too late to participate in the distribution of the general estate of the bankrupt, having been filed more than a year after the adjudication in bankruptcy.

Upon learning the decision of the bankruptcy court, the bank, about May, 1910, some two and a half years after the date when the note had been stamped paid, undertook to reverse its action, and wrote upon the face of the note at the lower margin, "Erroneously stamped paid. Not paid in fact. The Citizens National Bank of New Castle, Pa.,” and drew lines through the words "Paid Nov. 4,1907. The Citizens National Bank of New Castle,Pa.” And later, upon August 19, 1910, the bank caused judgment to be entered upon the note. Execution was issued upon the judgment, and on September 5, 1910, a petition was filed by the defendant praying that the judgment should be opened and at the same time a motion was made to strike off the judgment. The court made an order staying the execution and directed rules to issue to show cause why the prayer of the petition and the motion should' not be granted. Answers were filed and testimony taken, and on June 5, 1911, both rules were discharged. Defendant has appealed and assigns for error the order discharging the rules.

Counsel for defendant contend that the judgment should be stricken off, because the note bears evidence upon its face of payment and cancellation. They contend further that if not stricken off, the judgment should be opened, because the evidence shows that the note was fully paid by the transfer of the bonds to the bank and their acceptance as payment, as shown by the words, "Paid Nov. 4, 1907” stamped on the face of the note, and also because the agreement of October 28, 1907, constituted a novation and superseded the original contract. The liability of the defendant for the debt, that is, for the amount of the loss incurred through the purchase of the bonds, is not here in question, The right to sue upon the agreement is admitted. But it is strongly urged that this particular note in question, which was the evidence of the indebtedness, when it was given, was canceled and extinguished by the deliberate and intentional act of the bank on November 4, 1907. This conclusion seems to be unavoidable. The bank admits that it did take over, as its own property, the bonds which had been held by it as collateral, and did in consequence stamp the note as paid; and that it credited the payment upon its books. There is no suggestion that it was not intended to make these entries at the time, or that they were the result of clerical error. And they were not; for the entries were entirely consistent with the deliberate action of the bank. It fully intended that the proceeds of the bonds should pay the debt which had been evidenced by the note. The testimony shows that the consideration paid by the bank for the bonds, was the face of two notes and interest; one of them being the note in suit. It also appears from the agreement in writing made between the bank and defendant and his brothers, that the bank was to be made whole to the amount of the debt, as evidenced by the amount of the notes, without regard to what might be realized from the bonds. All parties in interest then supposed that the lien of the mortgage securing the bonds was good. As it turned out, the lien was not good. Whether this was owing to the failure to record the lease,, or from some other cause, does not appear; but evidently it was in this connection that the mistake occurred. It was in the supposition that the bonds were secured by a valid lien, that the bank was misled; and its error in this respect was not discovered apparently for more than two years after it had taken title to the bonds in its own name, and had stamped the note paid, and so credited it on its books. Obviously the rule which permits the correction of a mere clerical mistake, such as stamping one note paid, when another was intended to be so marked, cannot be held to apply to a case like this, where the facts show that no clerical mistake was made, but that the error was one of judgment in relying upon a supposed lien which did not exist. Here the entry of credit for the note upon the books of the bank, and the cancellation of the note by stamping it as paid, were deliberate and intentional. The note then ceased to be in itself a valid obligation, and the warrant in it was no longer authority for the confession of judgment, and the attempt to' use it for that purpose, more than two years later, was without validity. “As a general rule a judgment, regular on its face, will not be stricken off, but when it is entered wholly without authority it may be stricken off, for it is no judgment at all, so far as it affects the rights of the defendant:” Long v. Lemoyne Boro., 222 Pa. 311.

The evidence clearly shows that the written agreement of October 28, 1907, was substituted for the note, and the remedy of the plaintiff is upon the covenants therein set forth. The bank did not agree to rely entirely upon the bonds, but acquired them, with the understanding that it was to present them in the bankruptcy court, and upon the further understanding that it was to be saved from loss up to the amount represented by the notes referred to in the agreement. The liability of defendant under this agreement' is not denied. We cannot doubt that this new contract superseded the former agreement set forth in the collateral note. The same parties were interested, and it involved the same subject-matter.

The order of the court below is reversed, and it is ordered that the judgment be stricken off.


author: Me. Justice Pottee,

text:
    Western Allegheny Railroad Company's Petition.

      Railroads — Connection of one railroad with another — Incidental crossing of switches, etc. — Proceedings—Certiorari—Constitution, sec. 1, art. XVII — Act of April 4,1868, sec. 11, P.L. 62.

    1. Proceedings under the Act of April 4, 1868, sec. 11, P. L. 62, which provides for the fixing of terms upon which one railroad may
    "justly and properly connect with another under the right conferred by sec. 1, art. XVII, of the constitution, are entirely statutory, and no appeal being allowed, the Supreme Court can on certiorari look into the record only so far as may be necessary to see if the court below exceeded its jurisdiction or abused its discretion.
    2. Where in such a case it appears that the proceedings were entirely regular and the decree made permitting connection was within the power of the court, and there is nothing in the record to indicate that the connection as authorized will be an unusual source of danger, .or will constitute an unreasonable interference with the property rights of the objecting company, the action of the court in permitting such connection will not be reversed because the connecting track is so located that it will cross at grade a siding and a yard track.
    3. The fact that such a connection involves the crossing of a siding or switch, merely incidentally to the securing of a connection, does not make it a crossing case or necessarily bring it within the provisions of the Act of June 19,1871, P. L. 1360.
    Argued Oct. 10,1911.
    Appeal, No. 192, Oct. T., 1911, by respondent, from order of C. P. Lawrence Co., March Term, 1911, No. .86, In re Petition of Western Allegheny Railroad Company for connection with the Pittsburg & Western Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Proceedings under the act of April 4, 1868, for connection of tracks of railroad companies. Before Porter, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to report of jury and in approving said report.

      January 2, 1912:

      Wylie McCaslin, for appellant.
    The provision in the constitution that every railroad company shall have the right to intersect, connect with or cross any other railroad, does not change the policy of the statute as embodied in the act of June 19, 1871, to prevent railroad crossings at grade where that is reasonably practicable: Northern Central Ry. Co.’s App., 103 Pa. 621; Pittsburg Junction R. R. Co.’s App., 122 Pa. 511; Lake Shore & Michigan So. Ry. Co. v. N. Y., etc., Ry. Co., 8 Fed. Repr. 858; Pitts. & Lake Erie R. R. Co. v. Lawrence County, 198 Pa. 1; Pittsburg Junction R. R. Co. v. Ft. Pitt Pass. Ry. Co., 192 Pa. 44; Perry County R. R. Extension Co. v. Newport & Sherman’s Valley R. R. Co., 150 Pa. 193.
    The petitioner has the constitutional right to connect with the respondent railroad subject to the control of a court of equity under the provisions of the act of 1871: Smethport R. R. Co. v. Pittsburg, Shawmut & Northern R. R. Co., 203 Pa. 176.
    The act of 1871 applies to a crossing over a branch road or siding: Pennsylvania R. R. Co. v. Conshohocken Ry. Co., 4 Pa. Dist. Rep. 12; Pennsylvania Schuylkill Valley R. R. Co. v. P. & R. R. R. Co., 160 Pa. 232; Pensylvania Co. v. R. R. Co., 204 Pa, 356.
    • J. H. Beal, of Reed, Smith, Shaw & Beal, with him J. Norman Martin, for appellee.
   Opinion by

Me. Justice Pottee,

The right of one railroad to connect with or cross the line of another railroad is conferred by sec. 1, art XVII, of the constitution, and in the Act of April 4,1868, sec. 11, P. L. 62, provision is made for fixing the terms upon which the connection may be justly and properly made. In case of failure to agree, either party in interest may apply to the proper court of common pleas, for the appointment of a jury of three disinterested men, who are to determine and fix the terms of the connection; and these terms, when approved by the court, are to be conclusive. The present case is a proceeding of that nature. The court appointed a jury, and after due investigation, it reported that a connection was necessary, and should be made at a designated place upon certain specified terms. The petitioning company was required to pay for and maintain proper safety devices to guard the use of the connection, and was also required to pay the wages of a watchman, or signal man. Exceptions were filed to the report upon the sole ground that the connecting track as authorized by the viewers would cross a siding, and a yard track, at grade. The court below dismissed these exceptions, and approved the report.

The proceeding is entirely statutory, and no appeal from the judgment of the court of common pleas is given by the statute. The case is before us on certiorari, and we can look into the record only so far as may be necessary to see if the court below exceeded its jurisdiction, or abused its discretion. We find nothing to indicate that it has done either. The proceedings were entirely regular and the power of the court to make the decree in question must be conceded. The only objection raised by appellant is that the connecting track is so located that it will cross at grade a siding and a yard track. Evidently the jury of view and the court must have concluded that under the circumstances this was not an important matter. The jury were on the ground and viewed the premises, and were familiar with the needs of the situation and its diffculties, if any there were; and, in the discharge of their duty, must be presumed to have acted for the best interest of all concerned. The constitutional provision above quoted, and sec. 10 of the act of 1868, confer the right to construct railroads so as to cross at grade the track or tracks of any other railroad. The legal right of the petitioner to cross the tracks of appellant at grade, cannot, therefore, be questioned. We find nothing in the record to indicate that the jury exceeded its power when, in the exercise of its judgment in fixing the point of connection, it incidentally permitted the crossing of a side track and a switch. Presumably the location chosen was the best and most available place for the connection, under the circumstances. Nor can we say that the court below erred, or abused its discretion, in confirming the report of the jury of view in that respect. It is true that under the Act of June 19, 1871, P. L. 1360, a court of equity has the power to regulate the mode in which one railroad shall cross the tracks of another, and “if in the judgment of such court it is reasonably practical to avoid a grade crossing,” to prevent the same. But these proceedings were not brought under the act of 1871. They were, on the contrary, clearly under the act of 1868, which, as we have seen above, expressly provides that the terms of connection when fixed by the jury, and approved by the court, shall be conclusive. This is not a crossing case. The fact that the connection involved the crossing of a siding or switch, was merely incidental to the securing of a connection. The important right which it was desired to exercise was that of making the connection between the two lines of railroad. We find nothing in the record to indicate that the connection, as authorized to be made, and operated, will be an unusual source of danger, or will constitute an unreasonable interference with the property rights of the appellant company.

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