text:
    Germania Refining Company et al., Appellant, v. Alum Rock Gas Company.

      Corporations — Natural gas companies — Surrender of franchises■ — Directors.

    Where a natural gas company organized under the Act of May 29, 1885, P. L. 29, through its directors, surrenders its franchises over a portion of the territory occupied by it, without objection by stockholders, creditors, or the state, landowners within the territory surrendered, and previously served by the company, have no standing to question the action of the company.
    Argued Oct. 26, 1909.
    Appeal, No. 6, Oct. T., 1910, by plaintiff, from decree of C. P. Venango Co., Aug. T., 1909, Equity Docket No. 1, dissolving preliminary injunction in case of Germania Refining Company, Penn Refining Company et al. v. Alum Rock Gas Company et al.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    On motion to dissolve the preliminary injunction, Criswell, P. J., filed the following opinion:
    Considering first the motion to continue the preliminary injunction until final hearing, it is stated that, for the purposes of the motion, the plaintiffs have not sustained with that degree of proof necessary to warrant a finding to that effect, their contention that there was a renewal of the contracts between the plaintiffs respectively and the Alum Rock Gas Company, by the terms of which the company agreed to continue supplying natural gas to plaintiffs for a further term of two years from and after the expiration of "the original contract, or that in force in July, 1909, relative to the furnishing of such gas to the plaintiffs by the company. The plaintiffs contend, however, that the company, being a public service corporation, organized under the Act of May 29, 1885, P. L. 29, entitled, “An act to provide for the incorporation and regulation of natural gas companies,” for the supply of natural gas to consumers within the particular district, having laid its line and supplied gas to such consumers, is under legal duty, irrespective of any formal contract to so do, to furnish gas to such consumers as may desire to use the same; that this duty depends only upon the question whether or not the company has an adequate supply of such gas which it can, at fairly remunerative rates, and under reasonable regulations, supply to such consumers, and, that in case of such supply, equity will enforce performance of such duty, and by injunction prevent its violation in the first instance, or, after violation, restore the status quo. But, this contention assumes that the plaintiffs are persons, corporations and associations desirous of using such gas and located within convenient connecting distances of the lines of pipe of the gas company in a district in which the company is authorized by its charter to supply gas. If the charter of the gas company remained as originally granted this would appear to be warranted. But in reply to this contention and assumption it is shown on the part of the defendant that by certificate, under its common seal, bearing date of August 14, 1909, deposited in the office of the secretary of the commonwealth on August 21, 1909, and recorded in the office of the recorder of deeds of said county, the said Alum Rock Gas Company altered its territory or supply for consumption “by surrendering and relinquishing for use in the transportation of natural gas so much of the right of way of said company as extends from a point near the bank of Sandy Creek, on the Martin or Wick lands, near the Whippoorwill road, in the Township of Cranberry, Venango County, Pennsylvania, to a point at or near the works of the Germania Refining Company, in the Borough of Rouseville, County of Venango, State of Pennsylvania.” By the same certificate the territory of supply is further altered by providing for the construction of a line “from a point near the bank of Sandy Creek, on Martin or Wick lands, near the Whippoorwill road, in the Township of Cranberry, Venango County, Pennsylvania, in an easterly direction to a point at or near what is known as the Strong Pump Station of the United Natural Gas Company, of Oil City, in said township.”
    In reply to this the plaintiffs deny that the gas company could thus alter its territory of supply for consumption or surrender and relinquish for use in the transportation of natural gas the right of way mentioned and described in the said certificate, leading from the point, near the bank of Sandy Creek referred to, to Rouseville, and being the same from which the plaintiffs have heretofore received their supply of gas from the company, and the only line of the company within convenient connecting distance of their works, since it appears that the change indicated by the said certificate was not made or authorized by the stockholders of the gas company, but by the directors at a meeting thereof, as appears by the minutes of the board.
    A question is thus raised, not as to the rights and duties of the gas company as expressed in the language of the charter, but as to the validity of the alleged change in the charter, as evidenced by the certificate referred to and the territory within which it is now legally authorized to furnish and supply gas to consumers.
    That the gas company may change not only the territory from which its gas is produced, but also that in which it is to be consumed appears clear from the language of the fifth section of the act under which it is incorporated, which provides: “When and as often as any such corporation shall be desirous of enlarging or altering its territory of production or of supply for consumption, both or either of them, and its line or lines and branches, it shall thereupon make, under its common seal and deposit in the office of the secretary of the commonwealth a certificate setting forth the particulars of such enlargement and alteration and shall record in the office of the recorder of deeds of the county or counties to which the enlargement or alteration applies, a copy of the certificate and thereupon and thereafter the rights, powers and duties of the corporation shall be, as to the extension of its business and lines, as if the same had been originally provided for and embodied in its charter.” The latter clause of this section, of course, applies and refers only to extensions. It is inapplicable to an alteration which involves a surrender of territory or lines.
    Generally, corporations may surrender their franchises without legislative authority. “ Corporations, like individuals, die by the decay or loss of their vital functions, and this effectually defies authority to render them perpetual. A surrender of a franchise is the voluntary death of the corporation and is one mode by which it may cease to exist. If anyone ever did dispute the right of a corporation to surrender its franchises, of its own mere motion, it is not likely that such a contest about the question could be long maintained, when both parties, the State and the corporation, the grantor and the grantee, consent to it absolutely or on condition. This I take to be incapable of dispute:” Houston v. Jefferson College, 63 Pa. 429. And where the activities of a corporation cover an extent of territory or field, and the nature of its business, like the natural gas business, is such as to necessarily and inevitably decline, and finally cease, there would appear to be an imperious necessity for a curtailment of the field of operations. But, since, by the terms of the act referred to, this is expressly authorized, there would appear to be no room for questioning the power and right of the company to do so. That such a company is under no obligations to let its pipe remain indefinitely in the ground and that it may, when no longer required for its uses, abandon an easement acquired under the right of eminent domain and remove the pipe therefrom, is ruled in Clements v. Philadelphia Co., 184 Pa. 28. The only question that can apparently arise is whether or not the action taken was such as to effect in law, a limitation of thb field as shown by the certificate filed.
    If such action had been authorized directly by the stockholders of the company at a meeting called for that purpose, or at which such a resolution might properly have been offered, the act would probably have gone unchallenged. But this course was not pursued. The directors of the company first entered into a contract with the United Natural Gas Company whereby it agreed to sell and deliver to the latter company, at its pump stations, viz., Hampton Station in Pinegrove township and Strong Station in Cranberry township, all of its surplus gas which might reach such stations, not exceeding 6,000,000 cubic feet per day. This action of the directors was subsequently ratified by the stockholders of the company at a meeting called for the purpose, the votes cast in favor of the ratification being 2,673, while but 392 votes were cast against it.
    Since the Alum Rock Gas Company could not comply with the terms of this contract and at the same time furnish gas to its former customers in Sugar Creek and'Cornplanter townships and Rouseville borough, the execution and ratification of the contract was in effect a determination by the company to no longer furnish gas to patrons through the company’s lines leading north from Sandy Creek. A few days thereafter the directors, by formal resolution, authorized the filing in the office of the secretary of the commonwealth, and the recording of the certificate hereinbefore referred to, surrending. its right of way north of said point, the certificate being recorded and filed August 21, 1909.
    To this action on the part of the corporation, acting through its directors, there has been no objection by the state, the directors, the stockholders or creditors, and by the terms of the certificate upon its face, as it appears .upon the records of the commonwealth and the county, Sugar Creek and Cornplanter townships and Rouseville borough, within which the works of the several plaintiffs are situated, no'longer constitute a part of the territory within which the Alum Rock Gas Company is authorized to furnish gas. Objection is made only by the plaintiffs whose only relation to the company is that their manufactories are located within the charter limits as originally defined of the territory within which the company was authorized to furnish gas to those desiring it.
    Conceding that ordinarily any change in the charter rights and duties of a corporation should be authorized by the shareholders thereof, it is at least not clear that action taken by the directors of the Alum Rock Gas Company is not now, under the circumstances, binding upon the company. The certificate is prima facie in conformity with the act and therefore regular: Penna. Gas Co., 1 Pa. C. C. Rep. 181. Action by the stockholders on such a change is not required by the terms of the act. It is expressly required on a proposition to increase the capital stock or indebtedness of the company. Had the legislature intended that the adoption of the resolution in question should be attended with the formality of a stockholders’ meeting the fact would probably have been indicated in the act.
    Another question arises: What right have the plaintiffs to question the regularity of the proceedings by which the stockholders and officers of the Alum Rock Gas Company undertook to limit the field of its operations? The act of 1871 confers no such right. “It contemplates nothing more than that it shall be made to appear from the charter that the corporation has the power to do the particular act in controversy, and which involves some right of the contestant, but when we get beyond this we assume something with which we have no business in a collateral proceeding. We assume to assert the rights of a third party, the commonwealth, who may or may not, at her own option, insist upon the observance of those rights:” Western Penna. R. R. Co.’s App., 104 Pa. 399. “In general, after a charter is once shown, the subject is only open to further inquiry at the direct suit of the commonwealth itself. This act (that of 1871) enables the private suitor to demand that the charter right to do the thing complained of shall be shown. But it does not put him in the commonwealth’s place or clothe the court at his instance with the commonwealth’s general powers of inquiry. The inquiry is limited to the nature and extent of the franchise prima facie conferred by the charter and does not extend to the validity of the charter itself. This is the plain limit of the language of the act, 'and if such franchise has not been conferred,’ etc. ... If the power is there given the authority of the court to interfere is at an end. The further questions of good faith in obtaining the charter or acting under it can only be raised by the commonwealth:” Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    This bill brings in question the charter rights and duties of the gas company as affected by the change made by the certificate referred to. “We have uniformly held that the validity of a charter for a public purpose cannot be determined in a collateral proceeding by a private suitor. It can be done only in a direct proceeding to which the commonwealth is a party. . . . Whether a right or franchise claimed by a corporation is conferred by its charter may be inquired into in a proceeding at law or in equity by a party injured, as provided by the Act of June 19, 1871, P. L. 1360; but whether'for any reason the charter of a corporation was originally invalid or has been forfeited is a question which the commonwealth only can raise Olyphant Sewage Co. v. Otyphant Boro., 196 Pa. 553. “Failure to distinguish between an attempt to exercise a right or franchise which a corporation does not, in fact, possess, to the injury of the private rights of the complainant and its mere misbehavior in the exercise of an undoubted right or franchise is responsible for this fruitless litigation. The inquiry which the appellant would have had the court make under this bill was not into the rights conferred by the charter of the water company, but into its conduct under the same. This can be done only at the instance of the commonwealth:” Bland v. Tipton Water Co., 222 Pa. 285. - -
    Since, therefore, the act of 1871 confers upon the plaintiffs no right of inquiry into the regularity of the proceeding by which the company undertook to alter and further limit the scope and field of its activities, the court in this collateral proceeding at the instance of the plaintiffs, has no jurisdiction to determine the regularity of such proceeding. Unless in the case of fraudulent conduct involving the rights of creditors, it can be determined only in a proceeding instituted in the name of the commonwealth, involving a direct attack upon the corporate action taken either by the commonwealth or someone having a charter contract relation with the company whose interests are affected or rights violated. The appropriate process for this purpose would appear to be quo warranto._ Possibly mandamus might be available for the purpose, depending upon the nature of the relief sought.
    The conclusions thus indicated render it unnecessary to consider the other rules and question .pending, except to say that the demurrer, which has relation only to the averments of the bill itself, must be overruled.

      January 3, 1910:
    And now, September 29, 1909, this cause came on to be heard at this term upon motion to dissolve the preliminary-injunction, a motion to continue the same until final hearing of the cause, and upon demurrer by the Alum Rock Gas Company to the plaintiffs’ bill of complaint, and was argued by counsel and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit: That the demurrer of the Alum Rock Gas Company to the plaintiffs’ bill of complaint be and the same is hereby overruled; the motion to continue the preliminary injunction until final hearing of the cause is refused, and the motion to dissolve the preliminary injunction is granted.

      Error assigned was the decree of the court.

      P. M. Speer and W. M. Parker, with them J. D. Trax and Breene & Breene, for appellants.

      Eugene Mackey and J. S. Carmichael, with them John L. Nesbit and Cornelius D. Scully, for appellee.
   Per Curiam,

The order of the court dissolving the preliminary injunction is affirmed on the opinion of Judge Criswell.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Monongahela National Bank, Appellant, v. Harmony Land Company.

      Corporations — Promissory notes — Officers—By-laws.
    In the absence of any provision in the by-laws of a corporation the president and secretary of the corporation have no power to execute promissory notes in the name of the company, and the company cannot be held liable on such notes, unless it has directly benefited from them.
    Argued Oct. 26, 1909.
    Appeal, No. 162, Oct. T., 1909, by plaintiff, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 971, refusing to take off nonsuit in case of Monongahela National Bank of Brownsville v. Harmony Land Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Swearingen, J., filed the following opinion on motion to take off nonsuit. ' -
    This abtion was brought by the Monongahela National Bank of Brownsville against the Harmony'Land Company to recover the balance of a promissory note) of which the following together with the indorsements thereon is a copy:
    “$5,000.00 Pittsburgh, Pa., Aug. 11, 1905.
    “ Four (4) Months after date we promise to pay to the order of W. H. Say Five thousand dollars at Monongahela National. Bank, Brownsville, Pa. Without defalcation for value received.
    Harmony Land Company,
    W. PL Say, President.
    Percy Seddon, Treasurer.
    “indorsements.
    “W. H. Say, Harmony Land Company, W. PI. Say, President. Percy Seddon, Treasurer. March 21 /06 — by cash on within, Five Hundred ($500) Dollars.”
    It was alleged that the Harmony Land Company had received the benefit of the moneys borrowed from the plaintiff on said note. It was also alleged that the note had been duly protested for nonpayment.
    It was not denied that, at the time said note was given and at the time the original of which the note in suit was a renewal was given, the said W. H. Say was president and said Percy Seddon was treasurer of the Harmony Land Company, which is a corporation under the laws of Pennsylvania. It was expressly denied in the affidavit of defense that either the said president or treasurer had, jointly or'severally, any authority from said defendant, expressed or implied, to make the note upon which suit was brought. It was also denied that the note was made in the business of the defendant, and further denied that the defendant received any benefit from the moneys loaned by the plaintiff upon said note.
    The plaintiff was unable to prove, at the trial, that there was any express authority given by the defendant to W. H. Say and Percy Seddon to either borrow this money or make the note in question. The by-laws of the defendant did not authorize these officers to make and issue commercial paper of the defendant corporation. It was not pretended that there had been any course of dealing between the parties, in which these officers acted on behalf of the defendant in the making and issuing of commercial paper, whereby the plaintiff could have been misled. The only ground upon which the plaintiff sought to hold the defendant liable was that it had received the benefit of the proceeds of the note in controversy.
    After the proofs were submitted, the plaintiff offered in evidence the note in suit. We were of opinion that the plaintiff had failed to establish the allegation, that the defendant had received the benefit of the proceeds of the note, and accordingly the offer of the note in evidence was rejected. Thereupon, at the close of the testimony on the part of the plaintiff, upon motion of counsel for the defendant, judgment of compulsory nonsuit was entered. The plaintiff has made this motion to take off the judgment of compulsory nonsuit.
    It has been ably argued by the counsel for the plaintiff that we committed error, in making the aforesaid rulings. He has pointed out that the note was duly signed by two officers of the defendant, that it was regular upon its face, and that it was purchased by the plaintiff before maturity and without notice of any defect; that the proof showed that the plaintiff dealt .with the officers of the defendant, not as individuals, but as officers of the defendant, which was a corporation created for the purpose of buying and selling land, and believed that the money advanced was to be used in the purchase of land, which was in fact afterwards conveyed to the defendant; and that the defendant was in fact the real purchaser of the land in question.

      It appeared from the evidence that the defendant was organized as a corporation for the purpose of buying and selling land. W. H. Say applied to C. L. Snowden, president of the plaintiff bank, for a loan of $5,000. Before Mr. Snow-den made the loan, -he had been solicited to take some stock in the defendant corporation and had gone to see certain lands which the defendant afterwards acquired. Mr. Snowden gave his check to Mr. Say for $5,000, and received a note dated June 11, 1905. This note was in the same form as the note in suit — the latter being a renewal of the former. Mr. Say deposited this money to his own account in his own bank. A part of the money he used for the purchase of a tract of land from Henry Burkman, and the remainder of the money he used in paying for certain improvements upon this land. Subsequently Mr. Say conveyed this land to the defendant corporation. It was, therefore, claimed by the plaintiff that Mr. Snowden understood he was loaning this money to the defendant and that the defendant actually received the benefit of the loan.
    It appeared from the evidence that Mr. Say had a contract with the defendant, whereby he undertook to convey certain lands to it in consideration that the stock of the corporation was to be issued to him and that he, Mr. Say, was to expend the sum of $5,000 in the improvement of said land. This contract was not in evidence, but Mr. Say testified to these facts in response to questions by plaintiff’s counsel. He also testified that he had performed the said contract and that the corporation had issued to him the said stock. Mr. Say further testified that the proceeds of the note in question were used by him in paying for said land and in making the improvements thereon. There was no contradiction of this testimony.
    The plaintiff alleged that said arrangement between the defendant and Mr. Say was a mere sham, that Mr. Say was but a conduit, used by the defendant for the purpose of getting out its stock as full paid and nonassessable. It is not claimed that there is any direct evidence to support this argument. It is only an inference, and we do not think it is a fair inference, from the evidence. In our opinion, the evidence showed, and showed nothing else than, that the defendant corporation contracted with W. H. Say for the purchase from him of certain lands with certain improvements which he was to make thereon, and that the moneys advanced upon the note in question were used by Mr. Say in purchasing said land and in making said improvements. If this be true, it cannot be said that the defendant was the real purchaser of said land, or that it received the benefit of the loan. The benefit, which will opezate to bind a corporation, in such a controversy as this, must be a benefit, direct and in a legal sense. It cannot be said that the defendant received any direct benefit from this loan. The money did not go into its treasury. The money was used by Mr. Say to complete his own contract with the defendant. Surely this was not a benefit to the defendant in a legal sense.
    January 3, 1910:
    The plaintiff received the note of the defendazit, made by Mr. Say, its president, and Mr. Seddon, its treasurer, and to the order of the said W. H. Say. The plaintiff was therefore bound to inquire what the authority of these officers was to make the note and bind the defendant corporation. Failing to make the inquiry, the plaintiff cannot now hold the defendant liable upon a contract which it never authorized. We think this case is ruled by the principles of the case of Worthington v. Railway Co., 195 Pa, 211.
    And now, to wit, July 8, 1909, after argument and upon consideration, the motion to take off nonsuit heretofore granted is refused.

      Error assigned was refusal to take off nonsuit.

      Samuel McClay, of Reed, Smith, Shaw & Beal, with him Wm. M. Robinson, for appellant.

      C. C. Dickey, with him Pier Dannals, for appellee.
   Per Curiam,

The judgment is affirmed for the reasons stated in the opinion of the learned judge of the common pleas.


author: Mr. Justice Elkin,

text:
    Donaldson Iron Company v. Howley Construction Company, Appellant.

      Practice, C. P. — Verdict—Special verdict — Contradictory verdict — ■ Setting aside verdict.

    1. It is the province of the jury to find the facts and return a verdict according to the facts so found, and when the jury makes a return in the nature of a special verdict containing contradictory findings it is not for the court to say that one part of the return is correct and another part not correct. The verdict as returned must stand or fall as it is made. It cannot be split up so that one part may stand and another part be ineffective.
    2. A verdict finding an amount stated for the plaintiff, and also finding that such amount will not be due until the happening of a certain event, is contradictory in its terms, and must be set aside. It cannot be sustained by striking out as surplusage the part relating to the time of payment.
    Argued Oct. 26, 1909.
    Appeal, No. 163, Oct. T., 1909, by defendant, from order of C. P. No. 4, Allegheny Co., First Term, 1908, No. 60, striking out portion of verdict in case of Donaldson Iron Company v. Howley Construction Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule to strike out as surplusage a part of a verdict. Before Carnahan, J.
    The opinion of the Supreme Court states the case.

      Error assigned was order striking out portion of the verdict and permitting the remainder of the verdict to stand.

      W. A. Hudson, for appellant.
    The court erred in striking from the record a part of the verdict: Standard Sewing Machine Co. v. Ins. Co., 201 Pa. 645; Wallingford v. Dunlap, 14 Pa. 31; Vansyckel v. Stewart, 77 Pa. 124; Tuigg v. Treacy, 104 Pa. 493; McCormick v. Ins. Co., 163 Pa. 184.

      Alvin A. Morris, with him William A. Way and Albert J. Walker, for appellee.
    The jury found the issue, and the verdict amounts to a general verdict: Morgan v. McKee, 77 Pa. 228; Learning v. Wise, 73 Pa. 173; Plymouth Cordage Co. v. Penna. Wood Co., 203 Pa. 206.
    January 3, 1910:
    The court has power to amend a verdict by striking out surplusage: Bruck v. Mausbury, 102 Pa. 35; Keen v. Hopkins, 48 Pa. 445; Pittsburg v. McKnight, 91 Pa. 202; Cavene v. McMichael, 8 S. & R. 441; Watkins v. B. & L. Assn., 97 Pa. 514; Bickman v. Smith, 62 Pa. 45.
   Opinion by

Mr. Justice Elkin,

The question involved in this case is the right of the court to strike from the record part of the finding by the jury in the nature of a special verdict. The suit was brought to recover the amount claimed to be due for materials sold and delivered to appellant. The defense attempted to be set up at the trial was that at the time of the purchase it was agreed between the parties that payment was not to be made until the final estimate on the contract between the state and the defendant on account of the construction of certain state roads, in the performance of which the materials purchased were to be used, had been made. The offer of testimony to sustain this contention was refused on the ground that under the pleadings it could not be introduced for the purpose stated, but it was admitted for the purpose of affecting the credibility of the witness, Bursner, and for.no other purpose. The court finally prepared and submitted three forms of verdicts with instructions to the jury as to their duties under the law and the evidence. The jury returned the following verdict: “And now, to wit, April 3d, 1909, we, the jurors empanelled in the above entitled case find for the plaintiff for the sum of $1,652.40 and we further find that the time for payment agreed upon was the date of the final estimate on the contract between the state and defendant in the performance of which these goods were to be used and that said estimate has not yet been given to defendant.” As the case then stood plaintiff had a verdict for the amount claimed to be due, but a finding that the amount so fixed was not due until the final estimate on the contract between the state and defendant had been made, and that the estimate had not yet been given defendant. Of course such a verdict being contradictory in its findings cannot be sustained. If the amount involved was due the verdict should have been in favor of plaintiff for the entire amount and judgment should have been entered thereon. If the amount claimed was not due, suit was prematurely brought, and the verdict should have been for the defendant. To meet this situation counsel for appellee filed three motions, namely, one for a new trial; another for reformation of the verdict by striking out as surplusage the special finding as to the time of payment; and the third for judgment non obstante veredicto. The court overruled the motion for a new trial, refused the motion for judgment non obstante, but allowed the motion to strike out as surplusage that part of the verdict relating to the time of payment. This appeal, which we think must be sustained, challenges the correctness of these rulings. It is the province of the jury to find the facts and return a verdict according to the facts so found, and when the jury makes a return in the nature of a special verdict containing contradictory findings it is not for the court to say that one part of the return is correct and another part not correct. The verdict as returned must stand or fall as it is made. It cannot be split up so that one part may stand and another part be ineffective. No doubt the learned court below acted upon the theory that substantial justice would be done by the course taken, but the precedent would be dangerous and if orderly and correct practice is to be maintained, such a doubtful expedient must not be resorted to. It was within the power of the court to set aside the verdict and enter judgment upon the whole rec'ord non obstante, but this was not done. Considerable confusion has arisen on account of the complicated state of the record, and we think a new trial should be granted in order that the merits of the defense, if there be any, may be passed upon by a jury, or at least be determined in a proper manner by the court.

Judgment reversed and a venire facias de novo awarded.


text:
    Adrian, Appellant, v. Fink.

      Trusts and trustees — Equity—Accounting—Finding of fact — Responsive answer — Evidence.
    1. On a bill in equity to declare a trust and for an accounting where the court below finds on sufficient evidence that no trust in fact existed, a decree dismissing the bill will not be reversed in the absence of manifest error. The Act of June 7, 1907, P. L. 440, has no application to such a case.
    2. A responsive answer to a bill in equity must be overcome by the testimony of two credible witnesses, or one witness and such corroborating facts and circumstances as to amount to another witness.
    Argued Oct. 26, 1909.
    Appeal, No. 16, Oct. T., 1909, by plaintiffs, from decree of C. P. No. 4, Allegheny Go., Second Term, 1908, No. 722, dismissing bill in equity in case of John Adrian and Christian Adrian, his wife, v. John Fink.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a trust, and for an accounting. Before Swearingen, P. J.
    The opinion of the Supreme Court states the case.
    The third conclusion of law was as follows:
    “The defendant did receive some rents of the plaintiffs and part of the purchase money from the sale of the plaintiff’s store, in the manner and for the purpose set forth in findings of fact 8. It, therefore, became his duty to distribute these moneys in accordance with the purpose for which he received them. He appears to have done this, as the evidence indicates that these matters were all settled from time to time, as they occurred. But, if there be any amount due the plaintiffs on account of these transactions they have an adequate remedy at law to recover the same.”

      Error assigned was decree dismissing the bill.

      L. C. Barton, for appellants.

      Peter M. Lippert, for appellee.

      January 3, 1910:
   Opinion by

Mr. Justice Elkin,

This bill was filed for the purpose of having appellee declared a trustee of appellants, and for an accounting. The answer denied all the material averments of the bill including the alleged trusteeship of appellee. The learned court below sitting as a chancellor has found that appellee was not and is not a trustee for appellants or for either of them; and that he was not and is not their agent to attend to their financial matters, collect their rents, make payment of insurance, interest and dues on certain mortgages and to otherwise attend to their business affairs. If these findings be correct there is no jurisdiction in equity to decree an accounting. They come before this court with the force and effect of a verdict of a jury and will not be disturbed except for manifest error. We are not convinced that there is any error manifest or otherwise in the conclusions reached by the learned court below. The answer filed was responsive and unless overcome by the testimony of two credible witnesses, or of one witness and such corroborating facts and circumstances as to amount to another witness, a decree should not be entered. To say the least it is very doubtful whether this burden was met, and the court might have been warranted in dismissing the bill on technical grounds. This was not done, and the case was heard on its merits with the result that the bill was dismissed. The case was very intelligently considered and the facts carefully stated by the learned court below, and we find nothing in the opinion about which appellants should justly complain. It is contended that the facts upon which the third conclusion of law is based showed or tended to show the right to equitable relief and that the same were substantially proved at the trial, by reason of which it became the duty of the court under the Act of June 7, 1907, P. L. 440, to proceed to a final determination of the case with the same effect as if upon a hearing before the court without a jury upon agreement filed. It is true this act provides that when a bill in equity has been filed, if the defendant desires to question the jurisdiction of the court, upon the ground that the suit should have been brought at law, he must do so by demurrer, or answer so stating, or by praying the court to award an'issue to try the questions of fact; otherwise the right of trial by jury shall be deemed to have been waived by both parties. The proviso to the first section of this act, however, expressly provides that the' chancellor shall dismiss the bill if the facts averred therein showing or tending to show the right to relief be not substantially proved at the trial. The right to equitable relief in the present proceeding depended upon the fact whether appellee was a trustee, which fact appellants not only did not substantially prove but failed to prove at all as the court has found. For this reason the act of 1907 has no application to the facts of this case.

Assignments of error overruled and decree affirmed at the cost of appellant.


author: Mr. Justice Stewart,

text:
    McCreery v. National Surety Company, Appellant.

      Principal and surety — Building contract — Architect—Certificate of default — Notice to surety.

    Where a building contract denies all interference by the owner with the work, except as he is furnished with a certificate from the architect that there had been default on the part of the builder, the surety of the builder cannot be relieved of his liability on his bond of which the building contract was made a part, by reason of the failure of the owner to notify the surety of the builder's default as required by the bond, where it appears that the owner never received from the architect any certificate of default.
    Argued Oct. 26, 1909.
    Appeal, No. 102, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 378, on verdict for plaintiff in case of J. Rodgers McCreery v. National Surety Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond of suretyship. Before Cohen, J.
    From the record it appeared that the bond was given as surety for the performance of a building contract, the material portion of which was as follows:
    “Article V. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architects, or either of them, the owner shall be at liberty, after three days’ written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architects, or either of them, shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for said work and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work such expense shall be paid by the owner to the contractor, but if such expense shall exceed such unpaid balance the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, or either of them, whose certificate thereof shall be conclusive upon the parties.
    “Article VI. The contractor shall complete the whole of the work comprehended in this agreement on or before the 15th day of March, 1907. In event that said dwelling is not completed and ready for occupancy on said date the contractor shall forfeit and pay to the owner, as liquidated damages, the sum of ten dollars for each day’s delay thereafter for twenty days, and for each additional day thereafter the sum of five dollars.

      “ In case of default of the owner, of the architects, or of any other contractor employed by the owner upon the work, or by any damage caused by fire or other casualty for which the contractor is not responsible, or by general strikes or lockouts caused by acts of employees, then the time therein fixed for the completion of the work shall be extended for a period equivalent to'the time lost by reason of any or all causes aforesaid, which extended period shall be determined and fixed by the architects, or either of them, but no such allowance shall be made unless a claim therefor is presented in writing to.the architects within forty-eight hours of the occurrence of such delay."
    The bond contained the following provision:
    “3. If said principal shall in any manner default in the performance of any matter or thing in said contract specified to be by said principal performed, or in the event of said principal abandoning the work provided by said contract to be done by said principal, the obligee shall immediately so notify the company, and thereafter the company shall have the right at its option to assume and sub-let said contract and to proceed thereunder as if no default or abandonment had occurred; and if the company elect to assume said contract, all moneys agreed therein to be paid said principal and which at the time of the default be due the principal shall thereupon become payable to the company, and shall be paid to it, anything to the contrary in said contract notwithstanding.”
    The surety claimed that it had not been notified by the owner of the default of the contractor. There was no evidence that the owner had ever received any certificate of default from the architects.
    Verdict and judgment for plaintiff for 12,091.54. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      W. K. Jennings, with him D. C. Jennings, for appellant.—
    The surety was discharged: National Surety Co. v. Long, 125 Fed. Repr. 887; Streeter v. Streeter, 43 Ill. 155; Moore v. Paine, 12 Wend. 123; Bauschard Co. v. Fidelity & Casualty Co. of New York, 21 Pa. Superior Ct. 374.
    January 3, 1910:

      Joseph Stadtfeld, with him W. B. Rodgers, for appellee.—
    The fact that the contractor was unable to complete the building on March 15 effected no breach of the contract. So long as the work was prosecuted with reasonable diligence he was not in default. •
    Time was not of the essence of the contract: Hunn v. Penna. Institution, 221 Pa. 403; Folsom v. McDonough, 60 Mass. 208; Farnham v. Ross, 2 Hall (N. Y.), 187.
    The failure to complete on March 15 was not a default within the meaning of the provision in the bond: In re Young, 31 L. R. Ch. Div. 168; Van Buren County v. American Surety Co., 137 Iowa, 490; Fink v. Farmers’ Bank, 178 Pa. 154; Alexandria Water Co. v. Surety Co., 225 Pa. 1.
   Opinion by

Mr. Justice Stewart,

This case was properly ruled. The contract between owner and builder was made part of the contract of suretyship on which the present action was based; and it is only by reference to the former that we can know what was in contemplation of the parties to the latter, when they stipulated that in case the builder should in any manner default in the performance of any manner or thing specified in his contract to be performed, the owner should immediately notify the surety. Under the building contract it was solely for the architects to determine whether default of any kind had been committed. That contract denied all interference by the owner, except as he was furnished with a certificate from the architect that there had been default on the part of the builder. It was not for the owner to decide whether there had been failure to perform even in the matter of time. Contingencies were specified upon the happening of which the time for the completion could be extended by the architects; and possible failure to complete within the time specified through want of diligence on the part of the builder was contemplated as well; this, however, was to be at the expense of the builder, at a per diem rate. Failure, for any such reason as the latter, to complete within the time specified, was not made a breach which the owner could assert by any interference whatever with the builder. If the owner could not interfere, certainly the surety could not. The contract provided that in case the builder failed “in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architects, or either of them, the owners should be at liberty after three days’ written notice to the contractor, to provide any such labor or material and deduct,” etc. However much the owner might have complained that the work was not being pushed with diligence, he could not be heard to say that it was failure on the part of the builder, even though it clearly indicated a certain failure to complete by the appointed time, except as he had a certificate to that effect from the architect. And so when the. appointed time was past, had there been no provision in the contract with respect to further delay, the owner could not have asserted a default without such certificate. The builder in such case could have stood on his rights and remained in absolute control until the certificate had been obtained. The surety must be held to have known that the contract left it with the architects alone to decide by their certificates what was default; and that when it stipulated that the obligee should give notice of any default, the stipulation had regard to such failure only as the architects by their certificate would declare to be default. This view of the case makes discussion as to the sufficiency of the notice given to the appellant, unnecessary. The assignment is overruled and the judgment is affirmed.


author: Mr. Justice Brown,

text:
    Yost v. Coyle, Appellant
    (No. 1).

      Mortgage — Covenants—Payment of taxes — Judgment—Execution— Attorney’s commission.

    Where a bond with warrant of attorney accompanying a mortgage for $10,000 provides for the payment of taxes by the mortgagor when due, and that upon default of such a payment the whole principal shall become due and execution may issue for the collection of the same together with costs and expenses including an attorney's commission of five per cent, the mortgagee may upon such default enter up judgment on the bond and issue execution forthwith; and he may recover not only principal and interest but also the five per cent, commissions, if it appears that he had notified the mortgagor of the default and had insisted upon payment within a time stated, and the mortgagor made no offer to pay the principal and interest, but started proceedings to open the judgment for inadequate reasons.
    Argued Oct. 26, 1909.
    Appeal, No. 113, Oct. T., 1909, by defendants, from order of C. P. No. 3, Allegheny Co., May T., 1909, No. D. S. B. 427, discharging rule to open judgment in case of Fidelity Title & Trust Company, Executor under the will of William Yost, deceased, v. Reed B. Coyle and Arminta M. Coyle.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order discharging rule to open judgment.

      Galen C. Hartman, for appellants.
    No demand was made for the principal due on this bond, except for May 9; nowhere does the plaintiff himself claim to have done so, and the cases are numerous holding that no attorney’s commissions can be claimed on a judgment obligation unless a demand for payment be first made: Moore’s App., 110 Pa. 433; Johnson v. Marsh, 42 Legal Int. 92; Lindley v. Ross, 137 Pa. 629; Imler v. Imler, 94 Pa. 372; Warwick Iron Co. v. Morton, 148 Pa. 72.

      January 3, 1910:

      George E/Alter, of McKee, Mitchell & Alter, for appellee.
   Opinion by

Mr. Justice Brown,

The judgment which the court below refused to open was entered on a warrant of attorney in a bond accompanying a mortgage to secure to William Yost the payment of $10,000, with interest, on May 9, 1909, One of the conditions of the bond was that the obligors should pay, as soon as due and payable, all taxes, municipal assessments or charges assessed against or upon the mortgaged premises, and upon their default in paying such taxes, municipal assessments or charges the whole of the principal debt or sum secured by the bond and mortgage, and interest then unpaid, should become due and payable, with the right to issue execution for the collection of the same, together with all fees, costs and expenses of collection, including an attorney's commission of five per cent. On April 15, 1909, Yost called the attention of Reed B. Coyle, one of the appellants and the husband of the other, to the fact that certain taxes against the mortgaged property, amounting to $395.89, though due, had not been paid, and insisted upon their immediate payment. This interview took place in the' afternoon of the day, and, according to the admission of Coyle, Yost insisted upon the payment of the taxes not later than the next morning. They were not paid by that time and on the afternoon of April 16, judgment was entered on the bond and execution issued for the collection of the amount due, including an attorney’s commission of five per cent.

Under the warrant of attorney contained in the bond judgment could have been entered by the obligee at any time before the obligation had matured, though payment could not have been enforced before May 9, 1909, unless it became due sooner for a breach of one of the conditions in the bond. Default in the payment of taxes was admitted by the obligors, and the right of the obligee was thereupon not only to immediately enter judgment upon the warrant of attorney, but to enforce collection of the principal and accrued interest. In clear and express terms the bond provided that if the taxes were not paid as soon as due and payable the right of the obligee was to demand and collect principal and interest, and the execution issued on the same day that judgment was entered was to collect money due according to the express condition of the obligation. A stipulation which the obligors knew was binding upon them had not been complied with, and what they might not have been compelled to pay before May 9, 1909, became by their default due and payable on April 16, 1909. In entering the judgment and issuing execution upon it Yost did nothing more than the appellants agreed that he should do if they should fail tó keep one of their covenants with •him. Nothing more need be said as to his right to his judgment and execution upon it. The only matter to be considered is his right to an attorney’s commission of five per cent.

If upon issuance of the execution the appellants had promptly paid or offered to pay the principal and interest due, the relief which they ask from paying the commission would undoubtedly have been afforded them by the court below, for it may be conceded that no demand had been made upon them for the payment of the amount secured by the bond before it was entered and the execution issued, though, on the other hand, it is fairly contended that notice to them that the taxes would have to be paid not later than the morning of April 16, was notice that if the same were not paid the obligee would insist upon payment of the sum secured to him by the bond and mortgage. Instead of promptly paying or offering to pay the amount due when execution was issued, the appellants presented their petition to court, asking that the judgment be opened, mainly on the ground that there had been an agreement between them and Yost that the loan should be extended to May 9, 1911. This reason is not pressed here. On May 5, 1909, the rule to open the judgment was discharged, but even then there was no offer by the appellants to pay the amount which had become due by their default. Two days later, in their continued resistance of the claim which was unquestionably due, they took this appeal, involving the obligee in further litigation. If demand had not been made before the execution issued, it became a demand which they disregarded and resisted, and they are not, therefore, within the rule as laid down in Johnson v. Marsh, 21 W. N. C. 570; Warwick Iron Co. v. Morton, 148 Pa. 72, and other cases cited by them.

Appeal dismissed at appellants’ costs.


text:
    Yost v. Coyle, Appellant
    (No. 2).

      Sheriff’s sale — Setting aside sale — Inadequacy of price — Misdescription of property.

    1. Mere inadequacy of price is not in itself a sufficient reason for setting aside a sheriff's sale, but where there is in addition a misdescription of the property sold, plainly misleading bidders, the appellate court will review the proper exercise of the lower court’s discretion in passing upon the application to set the sale aside.

      Sheriff’s sale — Setting áside sale — -Misdescription—Sale in Allegheny county — Act of April 6,1871, P. L. 476.
    2. A sheriff’s sale of property situated in a portion of the city of Pittsburg in which real estate commands high prices will be set aside on account of inadequacy of price and misdescription of property, where the advertisement fails to disclose that the width of the rear of the lot was more than double the width of the front; that the description in the advertisement did not follow the description in the levy as required by the local Act of April 6, 1871, P. L. 476, and that the quantity of the land stated in the advertisement was about 4,000 square feet, while the actual quantity was about 6,000 square feet.
    Argued Oct. 26, 1909.
    Appeal, No. 137, Oct. T., 1909, by defendants, from order of C. P. No. 3, Allegheny Co., May T., 1909, No. 214, refusing to set aside sale of sheriff’s sale of real estate in case of Fidelity Title & Trust Company, Executor under the will of William Yost, deceased, v. Reed B. Coyle et al.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to sheriff’s sale of real estate.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to set aside sheriff’s sale of real estate.

      January 3, 1910:

      Galen C. Hartman, for appellants.
    This serious misdescription taken in connection with the inadequacy of price, which is not seriously denied, should move the conscience of a chancellor to set aside this sale: Krause v. Neidig, 3 Montg. 132; Stroup v. Raymond, 183 Pa. 279; Kutz’s App., 4 Pa. Superior Ct. 292; Wells v. Pfeiffer, 4 Yeates, 203; Kenderdine v. McClintock, 2 Phila. 224; Yeakel v. Hawkins, 13 Montg. 53; Neafie v. Conrad, 6 W. N. C. 303; Carlin v. Leng, 1 Phila. 375; Hoeflich v. Hoeflich, 12 Pa. C. C. Rep. 370; Felton v. Felton, 175 Pa. 44; Westmoreland Guarantee B. & L. Assn. v. Nesbit, 21 Pa. Superior Ct. 150.

      George E. Alter, of McKee, Mitchell & Alter, for appellee,
    cited: Miller v. Kipple, 2 Pearson, 118; Felton v. Felton, 175 Pa. 44.
   Opinion by

Mr. Justice Brown,

The sheriff’s sale which the court below refused to set aside was on an execution issued upon the judgment which is the subject of the preceding appeal. Gross inadequacy of price and misdescription of property in the sheriff’s advertisements were the main reasons urged for setting the sale aside and are the only ones to be considered on this appeal. The property, was sold to the appellee for $11,600, subject to a mortgage of $13,000 and accrued interest, making the actual price which he bid for it about $25,000. In support of the allegation of inadequacy of price a number of witnesses testified that the property was worth from $35,000 to $40,000 and that it would have brought from $5,000 to $7,000 more than the price at which it was knocked down if the description had been adequate. The inadequacy of the price was in itself no reason for disturbing the sale. When, however, there is not merely inadequacy of price, but a misdescription of the property sold, plainly misleading bidders, the proper exercise of the court’s discretion in passing upon the application to set the sale aside must be reviewed.

. The following is the sheriff’s advertisement: “ Lot of ground in Fourth Ward, formerfy Fourteenth Ward, Pittsburgh. Beginning on southeasterly corner of Bellefield avenue and Bayard street. Fronting 40 feet on Bellefield avenue, and extending back on one side 101.65 feet and on the other side along Bayard street 106.06 feet, and having thereon a two story brick dwelling.” The width of the lot on the rear is 83.93 feet, or more than double the front, but this does not appear in the advertisement. The lot is located in a portion of the city of Pittsburg in which real estate commands high prices, and the more than double width of the lot on the rear was a most valuable incident to it. It fronted not only on Bellefield avenue, but on Bayard street, its frontage on that street being more than two and one-half times the frontage on Bellefield avenue, and the frontage on Bayard street had a depth at the rear of the lot of more than twice the depth of the front on Bellefield avenue. All this was concealed in the advertisement. A number of witnesses testified that from the advertisement they would have been led to believe that though the lines along Bayard street and on the opposite side were of unequal lengths, the lot was of uniform width throughout, for there wate nothing in the advertisement to show that the line on Bayard street did not meet Bellefield avenue at right angles. The Act of April 6, 1871, P. L. 476, relating to sheriff’s sales in Allegheny county, requires that the notice to be.given by the sheriff of all judicial sales made by him shall be by printed handbills “fully describing the property to be sold according to the levy, with its improvements,” and also by advertisements published in two daily newspapers three times before the day of sale, once in each consecutive week, designating briefly the locality and quantity of the property to be sold. The levy described the property as “beginning on the southeasterly corner of Bellefield avenue and Bayard street; thence south 15° 30' east along Bellefield avenue forty (40) feet to the northerly line of land of Jennie E. Palmer; thence north 74° 30' east along said line 101.65 feet to a pin; thence north 18° 57' west 83.93 feet to Bayard street and thence south 50° 7' west along Bayard street 106.06 feet to Bellefield avenue, at the place of beginning.” If this description in the levy had been followed, as the act requires, there would have been no complaint about misdescription. The description of the property in the advertisement is not only insufficient and inadequate, but plainly misleading, and it may well be that the inadequate price shown to have been bid for it was due to its misdescription. The description given in the advertisement was in plain disregard of the statutory requirement, for it did not describe the property to be sold according to the levy, nor did it give the quantity. The quantity according to the advertisements was about 4,000 square feet. The actual quantity is about 6,000 square feet, or one-half more. Under the circumstances, it was the plain duty of the court below to have set the sale aside. The decree confirming it is, therefore, reversed and the sale is set aside.


author: Mr. Justice Potter,

text:
    American Structural Steel Company v. Annex Hotel Company, Appellant.

      Practice, C. P. — Rules of court — Set-off—Evidence—Notice—Building contract — Delay.
    1. A rule of court which requires a defendant who files a specification of set-off to notify the plaintiff thereof Within fifteen days after filing the same, applies to a claim by a defendant for damages resulting from the plaintiff’s delay in completing the building contract on which the suit was brought.

      Rules of court — Construction—Review.
    2. A court is the best exponent of its own rules, and an appellate court will not reverse the construction by a lower court of its own rules, unless such construction is manifestly erroneous and injurious.

      Contract — Building contract — Ambiguity—Duty of architect — Evidence.

    3. Where a building contract prepared by the owner’s architects has been revised, and the building has been erected according to the revised plans, and the work has been approved by the architects, the owner cannot in a suit against him to recover a balance due on the contract show that the new plans required less steel, and that the architects were not authorized to draw the plans in that way.
    Argued Oct. 27, 1909.
    Appeal, No. 142, Oct. T., 1909, by defendants, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 159, on verdict for plaintiff in case of American Structural Steel Companj^ v. Annex Hotel Company, and Herman Straub et al.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a building contract.
    At the trial defendant made the following offer:
    Mr. Griffith: We now offer to prove by the witness on the stand that at a meeting held in the office of Lyon, McKee & Mitchell, on March 31, 1905, there were present the witness and Herman Straub, Sr., the building committee of the defendant company, and Charles Franson, A. M. Stuart, representing James Stuart & Company, the building managers, and Walter Lyon, of the firm of Lyon, McKee & Mitchell, and Mr. Mc-Collum, of the firm of McCollum & Dowler, architects for the defendant company, and Mr. Blicldie, of the Fort Pitt Bridge Company, and Mr. Brown, the witness who testified for the plaintiff, and at that time Mr. Brown, representing the plaintiff company, was informed of the changes that were to be made in the original plans and that these changes did not involve any change whatever in the weight of the steel to be furnished and erected hr the building, and that upon the changes to be made, as he was informed, he made his bid, which was accepted at that meeting, and with the understanding that the building managers would prepare the written contract for signatures; for the purpose of showing that under the contract as made and under the written contract and the words, “revised plans,” as used, no change in the weight of steel was to be made or was contemplated by the contract, these negotiations being had right at the time and immediately before the contract was let.
    Objected to as incompetent and irrelevant. Objection sustained. Exception noted and bill sealed. [3]
    Counsel for defendants proposes to prove by the witness on the stand that the architects for defendant company, Mc-Collum & Dowler, had no authority whatever to approve any plans showing any change in the weight of the structural steel to be placed in the building.

      Objected to by counsel for plaintiff, as the contract itself shows that they had authority. Objection sustained. Exception noted and bill sealed. [4]
    A witness for defendants was asked this question:
    “Q. Please state whether there were any delays on the part of the plaintiff in the performance of this contract in this case.”
    Counsel for plaintiff objected to going into the question of delay, for two reasons: in the first place, the architect who was to decide it has never decided it; and in the second place, the matter is not in issue in this case, as no notice was given to the plaintiff as to any set-off; on that account I object that under the pleadings it is not competent.
    Objection sustained for the last reason. Exception allowed and bill sealed for defendant. [12]
    The court gave binding instructions for plaintiff for the full amount claimed.
    Verdict and judgment for plaintiff for $18,060.45. Defendants appealed.

      Errors assigned among others were (3, 4, 12), rulings on evidence, quoting the bill of exceptions, and (16) in giving binding instructions for plaintiff.

      William A. Griffith, with him Cornelius D. Scully and David E. Mitchell, for appellants.
    Attention is called to the fact that the defendants in offering to introduce evidence of the delay and the causes thereof are not setting up a new contract, but are resting their case entirely upon the provisions of the contract set forth in plaintiff’s statement of claim. Defendants are not by any means asking to prove a set-off. They aré not proving a counterclaim to the demand of plaintiff, but are offering to prove that the plaintiff did not complete the contract, which plaintiff itself sets up, in one important particular, which was of the essence of the contract. It is pure matter of defense, and there is no doubt whatever that under the decisions in this state testimony offered by the defendants was admissible under the plea of non assumpsit: Scott v. Coal Co., 89 Pa. 231; Blessing v. Miller, 102 Pa. 45; Heck v. Shener, 4 S. & R. 249; Gogel v. Jacoby, 5 S. & R. 117; Bayne v. Gaylord, 3 Watts, 301; Gaw v. Wolcott, 10 Pa. 43.
    January 3, 1910:
    Treating the architects as the agents for the owner, it would follow that they had the right to bind the owner as to anything within the scope of their agency and as to anything which would come reasonably within, the scope of their authority; but if their powers, as agents, were limited by the owner and the plaintiff had knowledge of those limitations, then we submit the plaintiff is bound by all the limitations upon those powers: Dubois v. Bigler, Young & Co., 95 Pa. 203; Oliver v. Oliver, 4 Rawle, 141; Campbell v. McClenachan, 6 S. & R. 171; Caulk v. Eberly, 6 Whart. 303; American Home Savings Bank Co. v. Trust Co., 210 Pa. 320; Rearich v. Swinehart, 11 Pa. 233; Lardner’s Est., 16 W. N. C. 51; Langenheim v. Anschutz-Bradberry Co., 2 Pa. Superior Ct. 285; Malone v. R. R. Co., 157 Pa. 430.

      R. A. Balph, with him James Balph, for appellee.
    The offer to prove an amount for delay in reduction of the claim of plaintiff, is clearly a matter of set-off or defalcation: Bair v. Hubartt, 139 Pa. 96; Higgins Carpet Co. v. Latimer, 165 Pa. 617; Carl Barckhoff Church Organ Co. v. Ecker, 184 Pa. 350.
    Every court is the best judge of its own rules: Blessing v. Miller, 102 Pa. 45.
   Opinion by

Mr. Justice Potter,

Counsel for appellants in this case say that the assignments of error raise two questions:

1. Was the offer of defendants to introduce testimony of delay on the part of plaintiff in completion of the Annex Hotel building, competent under rule 8 of the Allegheny county courts, requiring notice prior to the trial in case defendant proposes to introduce proof of set-off or counterclaim?

2. Had the defendants a right to explain what they claim to be ambiguous provisions of the contract sued upon, and the right to define and limit, by parol testimony, the powers of their architects in the approval of what was known as the “revised plans”?

With regard to the first question, the trial judge based his ruling, excluding evidence of the claim for damages on account of delay in the completion of the work, upon the failure of defendant to comply with the provisions of rule 8 of the Allegheny county common pleas courts. Section 3 of the rule provides: “This rule shall apply to a specification and statement of set-off filed by defendant who shall within fifteen days after filing the same, notify the plaintiff thereof, and the plaintiff shall, within fifteen days after notice thereof, file his reply thereto, verified by affidavit.”

The provision of the rule here in question has been before this court in at least three cases. In Bair & Gazzam v. Hubartt, 139 Pa. 96, the suit was upon a contract, and in the affidavit of defense it was alleged that the work had been done in a way that increased the cost, and impaired the value to the defendant, and a deduction was claimed upon that account. It was held that sec. 3 of the rule applied to a counterclaim of the kind set up.

On appeal, the judgment was affirmed by this court, Justice Mitchell saying (p. 99): “It is argued that this part of the defense was not set-off, but failure of consideration, admissible in evidence under the general issue, and therefore that the rule of court was not applicable. But whether it was a technical set-off, or a defalcation under the broader practice of this state, or merely failure of consideration resulting in an overpayment, which defendant sought to get back, is not at all material. In any aspect, it was a counterclaim by defendant against plaintiffs. The object of the rule of court is manifestly to reduce the contest at the trial to the points actually in dispute, and whenever any matter sought to be introduced at the trial, called by whatever name it may be, is such as to require notice to the other side, the object of the rule would seem to demand its application. The defense, as already said, was a counterclaim, which certainly in substance partook of the nature of a set-off, and might well be held to be within the meaning of the term as used in the rule. Whether or not it should be so construed was peculiarly for the court below; and all our cases agree, that upon a question of the construction or application of its own rules, a court can be reversed only for manifest and material error.”

And in Higgins Carpet Co. v. Latimer, 165 Pa. 617, Chief Justice Sterrett said (p. 623): “It is not a sufficient answer to say that the defense was not set off and therefore the rule was not applicable. The first item of defense, as we have seen, is clearly a counterclaim for damages resulting from refusal to deliver certain pieces of carpet, etc. It may be that in the technical sense of the word the other items are not strictly 'set off/ but the rule was never intended to have any such restricted meaning. It was meant to embrace every species of counterclaim that under our more liberal practice may be legally or equitably interposed as a defense.” And on p. 624: “As a means of promoting justice and expediting the trial of causes, the rule under consideration has proved to be most valuable; and its usefulness and efficacy should not be impaired by neglecting to enforce its provisions on all proper occasions.”

In Organ Company v. Ecker, 184 Pa. 350, in answer to the suggestion that filing the statement of set-off, without more, was notice to the plaintiff, it was pointed out that the rule positively and plainly requires both filing of the statement and notification thereof to the plaintiff. We need add nothing further to these citations of authority. The rule in question has been tried and tested, and found to work well in the courts of the county from which this appeal comes. The exclusion of evidence by means of a general rule, may in particular instances work injustice, but any such occasional result is overbalanced by the stability which the general operation of the rule maintains. As to the interpretation and application of the rule in this instance, we see no reason to interfere. As our Brother Mestrezat said in Webster v. Coal & Coke Co., 201 Pa. 278 (281): “We have repeatedly said that a court is the best exponent of its own-rules, and that this court will not reverse for any construction, unless it is manifestly erroneous and injurious.”

As to the second question raised by appellants, under the assignments of error, with respect to the rejection of offers of parol testimony to explain an alleged ambiguity in the written contract, we do not see that there was any ground for the admission of the proposed evidence. It seems that plans and specifications had been prepared, upon which plaintiffs submitted an estimate. The estimated expense of building according to the original plans being greater than the company desired, certain alterations were made to reduce the cost, and' revised plans and specifications were prepared by the architects. The contract contemplated the erection of the building according to these revised plans, and it was so erected, and the work was approved by the architects. The offer of defendants practically was to show that the new plans required less steel; that the architects were not authorized to draw the plans in that way, and that plaintiff should be compelled to make an abatement of the contract price, to the extent of the lessened amount of steel needed. We do not see that the evidence offered explains any ambiguity in the contract. There was no question between the parties as to the meaning of the term “revised plans and specifications.” It referred to the new plans, etc., to be prepared by the architects, employed by the hotel company. The allegation is that the architects did not prepare such plans in the way their employers directed and authorized. But if so, it was not the fault of the plaintiff. The steel company had a right to rely upon the plans given to it by the architects who represented the hotel company. The contract provided that this work should be done according to the revised plans, and to the satisfaction of the architects and building managers. The work was so done, and the plaintiff was apparently entitled to receive the stipulated price. We can see no reason why the plaintiff should have supplied more steel than the contract, called for, or why it should have departed in any way from the plans, in erecting the building. It was entitled to rely upon the apparent authority with which the defendant had clothed the architects.

The trial judge was right in rejecting the offers of evidence intended to vary the terms of the written contract, and in directing a verdict for the plaintiff.

The judgment is affirmed.


text:
    Hays v. Carter, Appellant.

      Contract — Compensation for sale of real estate — Case for jury.

    Where a plaintiff makes out a prima facie case, in substantial accord with the allegations of his statement of claim, he is entitled to go to the jury, and if a verdict and judgment goes for him, the defendant cannot request the appellate court to review the testimony and to determine from aP of it whether the judgment should stand.
    Argued Oct. 27, 1909.
    January 3, 1910:
    Appeal, No. 170, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 955, on verdict for plaintiff in case of Milton D. Hays. v. Robert A. Carter.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover compensation for sale of real estate. Before Swearingen, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for 12,773.52. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      A. M. Neeper, for appellant.

      Henry A. Davis, for appellee.
   Per Curiam,

The plaintiff alleged in his statement of claim that he was employed to purchase a rolling mill for the defendant, and was to receive for his services a sum agreed upon. At the trial there were two questions of fact: (1) Whether a contract had been made as alleged: (2) whether at the time the plaintiff was engaged in the real estate business, in which event, not having paid a license, he could not recover. There was a conflict in the testimony as to the terms of the contract, and the argument for the appellant is in effect a request that we review the testimony and determine from all of it whether the judgment should stand. It is not the province of an appellate court to do this. The plaintiff’s testimony made out a case in substantial accord with the allegations of his statement of claim. He was entitled to go to the jury, and the case was properly submitted.

The judgment is affirmed.


text:
    Callery’s Estate.

      Marriage — Contract — Ceremony — Presumption — Cohabitation and reputation.

    1. Occasional cohabitation after an express but unfulfilled promise .to have a marriage ceremony performed does not constitute a common-law marriage.
    2. Cohabitation and reputation conjoined are the essential facts from which a presumption of common-law marriage arises.
    Argued Oct. 27, 1909.
    Appeals, Nos. 127 and 128, Oct. T., 1909, by Anna Callery, from decree of O. C. Allegheny Co., Dec. T., 1908, No. 97, dismissing exceptions to adjudication in Estate of William V. Callery, deceased.
    Before Fell, Brown, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The auditing judge, Hawkins, P. J., filed the following adjudication :
    statement.
    The controversy in this case grows out of an alleged marriage of the decedent.
    The material features developed by the evidence are these:
    About midnight on October —■, 1903, three men picked up two girls standing on the sidewalk whom they had never seen before, in the East End, and drove them to a sporting house in the old city. All the members of the party, including the girls, had been drinking before, drank on their arrival at the sporting house, danced and sang in drunken style for an hour or two, when the girls were sent home in a cab, two of the men went to the street cars, and the third was not in a condition to leave the sporting house.
    The last mentioned was W. V. Callery, member of a wealthy and prominent family, and himself a man of affairs, and one of the girls, Annie Clinton, then recently divorced, appears as the present claimant. The acquaintance thus begun between those two was resumed a day or two afterwards, flowers and candies were sent from time to time, and intimacy grew apace.
    About two weeks after the first meeting Callery began, according to the claimant, to talk about getting married. “He asked me,” she testified, “to come and live with him as his wife. I told him I was divorced. Of course he was a Catholic and I was a Catholic, and he didn’t want to get married by a squire, a rabbi or preacher. He also stated that he had some business with his brother, J. D. Callery; after he would have a ceremony performed — he didn’t want his brother to know we were living as man and wife.”
    When he asked her to live with him as his wife she told him she “would if he would have a ceremony performed. He said he would have that done later; that he was under obligations to his brother, J. D. Callery, and after that was past he would have a ceremony performed; but he said it didn’t make a particle of difference; he said, you know thousands and thousands of people are married without a ceremony.’”
    The discussion was renewed again and again and continued two weeks, she insisting on a proper ceremony, and he that the ceremony should be later, and she finally agreed to live with him as he had proposed. The subject of a ceremony was renewed by her again after they began to live together, but he always postponed the matter. In pursuance of this alleged agreement Callery took her two or three nights a week to what she said he called a lodging house; but which she soon learned, if she had not known, was a house of assignation; and yet with that knowledge continued these visits until June, 1904. The purpose was, not to establish a home, but, to use claimant’s own expression, “to have relations” with each other. In the meantime he used his rooms at the Schenley hotel, or resorted to the house of Mrs. White, whom he “kept”; while this claimant continued at her mother’s residence. In June, 1904, claimant moved to a parlor which Callery had secured for her in the Colonial hotel; and at that hotel she remained, with the exception of two or three months while she was residing in a flat, until Mr. Callery died in September, 1906. While Mr. Callery made daily visits during this period he and she assumed and were known by the name of Mr. and Mrs. Phillips, she on several occasions introducing him as her “husband, Mr. Phillips,” to persons who came to the room; he acknowledged his paternity of the child born to him, and paid all the expenses of living there; yet he still kept his rooms at the Schenley, divided his nights between her and Mrs. White, never introduced her as his wife, nor used the words husband or wife in his conversations nor in the many notes and telegrams which he sent her. His place of registration continued in the Schenley district as before his acquaintance with her. On the other hand, this claimant repeatedly stated that her relations with Mr. Callery were illicit, was on visiting terms with Mrs. White, though knowing her illicit relations with Callery, and when Callery was dying at his brother’s she not only made no effort to assert the rights of a wife to be with him and care for him, but entered into negotiations for pecuniary settlement, which ended after his death in her signing, under the advice of her counsel, Mr. Dicken, a release in which the existence of the illicit relations was recited. True, she says that she was misled by her counsel into signing, and this is admitted by him; but there was afforded ample opportunity of informing herself of the contents and recalling the release before its delivery, and she failed to do so. And it is conclusive of her knowledge of the recital that on the delivery of the release she resumed her maiden name of Clinton. Mr. Callery’s relations never heard of any claim of marriage until he was on his deathbed.
    There is evidence that in the meantime she had relations with other men than Callery and visited restaurants without an escort late at/night.
    OPINION.
    Assuming that claimant and Callery came together in pursuance of an express contract, failure of fulfillment of its condition of a marriage ceremony rendered the contract nugatory: Gross’s Estate, 9 Pa. Dist. Rep. 76.
    Claimant took the risk of fulfillment, and could only find a remedy in the event of failure in the criminal court. The fact that she again and again importuned Callery to have a ceremony of marriage performed shows that she regarded this as the one thing needful, but the weight of the evidence negatives the existence of an express contract of marriage.
    The only direct evidence in support of its existence is that of claimant; and this is completely answered by her own attitude during the period covered by the controversy. The inception of her acquaintance with Callery in a “sporting house,” their visits to an assignation house knowing its character, continued long after the date of the alleged contract, her friendly relations with Mrs. White, her repeated admissions that she was Callery’s mistress, her importunities for the performance of a marriage ceremony, her negotiations and settlement on the basis of illicit relations, and her resumption of her maiden name after the settlement, utterly discredit her story.
    Resting the case on the theory of a common-law marriage, claimant fell far short of the legal measure of proof required. Cohabitation and reputation conjoined are the essential facts from which a presumption of common-law marriage arises.
    “The legal idea of cohabitation” (said Agnew, G. J., in Yardley’s Estate, 75 Pa. 207), “is that which carries with it a natural belief that it results from marriage only. To cohabit is to live or dwell together, to have the same habitation; so that where one lives and dwells, there does the other live and dwell always with him. The Scotch expression conveys the true idea perhaps better than our own, ‘the habit and repute’ of marriage. Thus when we see a man and woman constantly living together where one is dwelling, there the other constantly dwells with him, wo obtain the first idea or step in the presumption of marriage; and when we add to this that the parties so constantly living together are reputed to be man and wife, and so taken and received by all who know them both, we take the second thought or second step in the presumption of the fact of marriage. Marriage is the cause, these follow as the effect. When the full thought contained in these words, cohabitation and reputation of marriage, is embraced, we discover that an inconstant habitation and a divided reputation of marriage, carry with them no full belief of an antecedent marriage as the cause. The irregularity in these elements of evidence is at once a reason to think there is irregularity in the life itself which the parties lead, unless attended by independent facts which aid in the proof of marriage, without concomitant facts to prove marriage, such an irregular cohabitation and partial reputation of marriage availed nothing in the proof of marriage.”
    Tested by this principle it will be seen that the relations of claimant and Callery were lacking in “habit and reputation” of marriage. They were not “constantly living together.” The fact of Callery’s retention of his rooms at the Schenley and his division of his nights between this claimant and Mrs. White are ample evidence of this.
    There was a “repute” prevailing in the Colonial hotel of their marital relations as “Mr. and Mrs. Phillips,” but there was no pretense that this “repute” extended to Callery’s family and acquaintances until a short time before his death. Even if this view were doubtful, claimant’s admission of her illicit relations with him, her negotiations and settlement on this basis, and her resumption of her maiden name, would put it beyond question. There was nothing in the conduct of Callery inconsistent with this conclusion.
    “A man,” says Sharswood, J., in Bidding’s Appeal, 2 Brews. 202, “may live with his kept mistress in such a way as to create a kind of repute of marriage among some persons; he may even, to gratify her, allow himself to be held out or hold himself out to her friends and acquaintances as her husband; may be a constant visitor, sleep and often eat at her house; may recognize the fruit of the connection as Ms children and manifest affection and tenderness for them; yet the evidence falls far short of that wMch ought to satisfy the mind, that there was an actual agreement to form the lawful relation of husband and wife.”
    January 3, 1910:
    An acquaintance begun in a brothel requires more change than mere observance of the proprieties of a hotel to convert it into the sacred relation of marriage. Evidence of so radical a change must obviously be positive and unmistakable in character. The assumption of a fictitious name, irregular cohabitation and repute, restricted to a hotel, and the absence of voluntary use of the title wife, are the circumstances suggestive only of continuance of illicit relations. If the case were in doubt, the birth of issue would raise the presumption of legitimacy suggested by claimant’s counsel, but the facts leave no room for doubt.
    conclusion.
    The court therefore finds that there was neither an expressed nor an implied contract of marriage between this claimant and William V. Callery.

      Error assigned was decree dismissing exceptions to adjudication.

      John M. Freeman, with Mm D. T. Watson, George H. Stengel and Ernest C. Irwin, for appellants.

      W. B. Rodgers, with Mm Wilson & Evans, for appellees.
   Per Curiam,

A careful review of the voluminous testimony in this case discloses notMng that would warrant a reversal of the decree entered by the orphans’ court.

The assignments are dismissed, and the decree is affirmed on the opinion of the learned president of that court.


text:
    Sterling Bronze Company, Appellant, v. Syria Improvement Association.

      Mechanic’s lien — Verdict and judgment — Five-year limitation — Loss of lien.

    Where a verdict is not recovered on a scire facias sur mechanic's lien until after five years have expired from the issuance of the scire facias, the lien is wholly lost. In such a case no personal action remains on the contract, inasmuch as the Act of June 4,1901, P. L. 431, giving such an action, is unconstitutional.
    Argued Oct. 27, 1909.
    Appeal, No. 174, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1903, No. 814, arresting judgment in ease of Sterling Bronze Company v. Syria Improvement Association, Owner or Reputed Owner and Contractor.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mechanic's lien. Before Ford, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order arresting the judgment.

      B. A. Balph, with him James Balph, for appellant.
    The act of 1901 provides that a judgment on a scire facias against the person with whom the claimant has contracted has the effect of a personal judgment, although the claim against the building may be defeated.
    We think that the word “ claim” as used in the last sentence of sec. 10, and relied upon by the court below, means and is intended to mean, claim for a lien upon the building.
    The court should have allowed judgment to be entered upon the verdict for the amount thereof; and the claimant should, upon the request of the defendant owner, enter satisfaction upon the record, which satisfaction would forever discharge the lien. This would allow the personal judgment to remain, and relieve the land from the lien of the claim.

      January 3, 1910:

      William A. Jordan, with him Chantler & McClung, for appellee.
    The appellee respectfully submits that the appellant has not complied with the requirements of sec. 10 of the act of 1901, and that therefore his lien is lost: Kountz v. Consolidated Ice Co., 36 Pa. Superior Ct. 639; Meason’s Estate, 4 Watts, 341; Ward v. Patterson, 46 Pa. 372; Hershey v. Shenk, 58 Pa. 382; Hunter v. Lanning, 76 Pa. 25.
    That the mechanic’s lien act of 1901 gives no rights in personam, and that wherein it seeks to do so, it is unconstitutional, has twice been decided by the Supreme Court of this state: Vulcanite Paving Co. v. Transit Co., 220 Pa. 603; Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382.
   Opinion by

Mr. Justice Elkin,

The disposition made of this case by the learned court below is so clearly right under the recent decisions of this court that but little need be said in support of the motion allowed in arrest of judgment. The proceeding is a scire facias sur mechanic’s lien which had expired by lapse of time. The record shows that the lien was filed February 6, 1903; a scire facias was issued thereon the same day; a jury was called, impaneled and sworn November 10, 1908; a verdict for plaintiff was returned November 11, 1908, and the judgment was arrested February 9, 1909. In other words, the verdict was obtained five years, nine months and three days after the scire facias had issued. Section 10 of the act of 1901 requires the scire facias to be issued within two years from the date of filing the claim and provides that a verdict must be recovered or a judgment entered thereon within five years after it is issued,.which was not done in the present case. It is further provided in the same section of the act that if the claim be not filed v/ithin the time required, or if it be not prosecuted in the manner and at the time or times specified it shall be wholly lost. The claimant under a lien of this character has no greater right than the legislature gave him. He is given a preference as a lien creditor against the building and the necessary curtilage for which he furnished labor or materials, but this preference being of statutory origin must stand or fall upon compliance or noncompliance with the conditions and requirements imposed by the act under which the lien is authorized. There can be no doubt of the legislative intention to require reasonable diligence in the prosecution of claims of this character because the act has definitely fixed the period in which such a lien may be filed, a verdict recovered and judgment entered. The act has prescribed the penalty for noncompliance with the statutory requirements by providing that the lien shall be wholly lost by failure to do the things required within the time or times specified. The appellant failed to meet the statutory burden and by reason thereof has lost its lien against the building, including the necessary curtilage for which the materials were alleged to have been furnished.

It is contended for appellant that notwithstanding the lien may have been lost against the building by failure to prosecute the scire facias to verdict or judgment within the five-year period, the proceeding may still be maintained for the purpose of enforcing liability in a personal action under the contract. The ground of this contention is that the act of 1901 provides two remedies, one a proceeding in rem against the building and the other a personal action on the contract. This position cannot be sustained for the reasons given by this court in three recent decisions involving the exact question: Vulcanite Portland Cement Company v. Allison, 220 Pa. 382; Vulcanite Paving Company v. Rapid Transit Co., 220 Pa. 603; and Taylor Lumber Company v. Board of Trustees of Carnegie Institute, 225 Pa. 486. Any new method for the collection of the debt or for the enforcement of the judgment provided by the Act of June 4, 1901, P. L. 431, which gives the right to proceed in a personal action against the owner or contractor, is obnoxious to art. III, sec. 7, of the constitution of 1874 and cannot be enforced by a proceeding in rem to bind the building by a lien properly filed against it.

Judgment affirmed.


text:
    Murtland Street Sewer.

      Sewers — Assessments—Damages.
    Where a viewers’ report shows that assessments for a sewer were based on the special benefits to the several properties, and there is nothing in the record from which the appellate court could find that the assessment exceeded the proper limits, the order confirming the report will not be reversed.
    Argued Oct. 27, 1909.
    January 3, 1910:
    Appeal, No. 175, Oct. T., 1909, by Charles M. Clarke, from order of C. P. No. 2, Allegheny Co., April T., 1909, No. 242, dismissing exceptions to report of viewers In re Murtland Street Sewer.
    Before Fell, Brown, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Exceptions to report of viewers.
    The opinion of the Supreme Court states the facts.

      Error assigned was in confirming viewers’ report.

      A. L. Large, with him Charles Large, for appellant.

      Lee C. Beatty, first assistant city solicitor, with him C. A. O’Brien, city solicitor, for appellee.
   Per Curiam,

This appeal is from an order confirming the report of a board of viewers assessing special benefits for the construction of a sewer. It brings before us only the report of the viewers, the exceptions thereto and the order of confirmation. The city built two fifteen-inch sewers at the sides of each of two streets on which a part of the appellant’s property abutted. All four of these sewers drained into a sewer of equal size built at the same time, thus limiting the capacity of the entire sewer system to a sewer fifteen inches in diameter. The appellant’s contention is that, since a sewer capacity of only fifteen inches was provided, he should be assessed only a pro rata cost of one sewer on each street and that the excess of cost should be paid by the city. His property was liable to assessment only to the extent of the present special benefit conferred by the improvement, irrespective of its cost but not exceeding it: Park Avenue Sewers, Parker’s Appeal, 169 Pa. 433. And since all the drainage was turned into a sewer fifteen inches in diameter, it is evident that in the judgment of the municipal authorities a sewer of that size was sufficient for the purpose of drainage. Presumably there were good reasons, because of the character of the ground or the conformation of the surface, for building two sewers, one on either side of the street, instead of one sewer on the center line. The record throws no light on this subject, nor does it appear from it that the assessment exceeded the cost of a single sewer. More than a third of the total cost was charged to the city, and it appears from the appellant’s history of the case that the viewers upon exceptions to their first report reconsidered it and reduced his assessment one-third. The viewers’ report shows that the assessments were not made by the foot front rule, but were based on the special benefits to the several properties, and there was nothing in the record from which the court could have found that the assessment exceeded the proper limits.

The order is affirmed.