text:
    Howard, Appellant, v. Stillwagon.

      Contracts — Rescission—Agreement to sell — Option to declare void,— Duty to refund purchase money already paid.

    By a written agreement the plaintiff agreed to buy and the defendants to sell certain property, the purchase money to be paid partly in cash and partly in installments, payable at stated times, with interest, to secure the payment of which the defendants were authorized to enter judgment against the plaintiff for the sum due or to confess judgment in ejectment against him on his failure to pay; the agreement also provided that on default of any payments the agreement should be void, “as it regards the first parties, at their option.” Subsequently part payments of the principal were made, together with interest, at times when they were considerably past duo, but these were accepted by the appellees without protest. The defendants afterwards without notice to the plaintiff that no further indulgence in making payments would be granted, and without tendering a deed and demanding the balance of the purchase money, entered judgment in ejectment, and were put in possession of the property. The plaintiff brought assumpsit for the purchase money paid by him under the contract. Held, 'that when the defendants rescinded their contract, they could no longer derive any benefit, directly or indirectly, from it and they were bound to place the plaintiff in statu quo by returning the purchase money which they had received from him.
    Argued May 8, 1911.
    Appeal, No. 150, Jan. T., 1910, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1908, No. 238, for defendant n. o. v. in case of Leslie A. Howard v. Anna M. Stillwagon et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Reversed.
    Assumpsit for purchase money paid under a rescinded contract of sale.' Before Umbel, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for the plaintiff for $3,078.60. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante verdicto.

      H. S. Dumbauld, with him Robinson & McKean, for appellant.
    — The entering of judgment rescinded the contract: Seanor v. McLaughlin, 165 Pa. 150; Campbell Printing Press & Mfg. Co. v. Hickok, 140 Pa. 290; Scott v. Hough, 151 Pa. 630.
    A verdict and judgment for plaintiff in ejectment decides that plaintiff is entitled to the premises and no more: Stevenson v. Kleppinger, 5 Watts, 420; Enyard v. Enyard, 190 Pa. 114; Schwan v. Kelly, 173 Pa. 65; Piro v. Shipley, 33 Pa. Superior Ct. 278.
    Having seen that the judgment confessed is not conclusive, and that defendants by entering it under the circumstances, rescinded and made void the contract, this case is ruled by Feay v. DeCamp, 15 S. & R. 227, and Jacoby v. Stettler, 8 Sadler, 31.

      W. J. Sturgis, with him S. J. Morrow, for appellees,
    cited: Youst v. Martin, 3 S. & R. 423; Power v. North, 15 S. & R. 12; Jones v. Scott, 209 Pa. 177.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

There is no fact in dispute in this case. By an agreement in writing, dated April 18, 1904, the appellees agreed to sell to the appellant and he agreed' to buy from them a lot of ground in the borough of Connellsville for $5,800. The property was encumbered by a mortgage for $2,100, which he agreed to assume, and the balance of the purchase money was to be paid as follows: $600 cash upon the signing of the agreement, $400 within two weeks, $1,350 in three months and $1,350 in six months, the deferred payments bearing interest. The contract provided that, “on failure of the second party to pay the purchase money, or any part thereof or the interest and taxes as above mentioned, then this agreement to be void, as it regards the the first parties, at their option.” By the terms of the agreement the appellees were authorized to enter judgment against the appellant for the purchase money, and a further provision authorized any attorney to confess judgment in ejectment against Mm upon Ms faiMre to pay it. The last installment was due on October 18, 1904, but up to that time the appellant had paid only $1,777 and some interest. Subsequently he paid the appellees $664.42 and interest. So far as can be gathered from the records, these payments were accepted by the appellees without complaint or protest, and the appellant was justified in believing that they would not insist upon strict compliance with the terms of the agreement so far as the times of payment were concerned. Up to June 12, 1906, he had paid them $3,005.36, which included $553.94 interest.

The appellees had two remedies under the agreement for the appellant’s default in paying the purchase money. In affirmance of their contract with him they could have entered judgment against him and enforced payment out of any property which he might have owned, including that which was the subject of the agreement. This they did not do, but, in accordance with the option which they had reserved to themselves in the agreement, they treated it as void, and on November 13, 1906, without giving the appellant notice that no further indulgence in making payment would be granted, and without tendering him a deed and demanding the balance of the purchase money, they entered a judgment m an amicable action of ejectment to recover possession of the property. Upon tMs judgment a writ of habere facias possessionem was duly executed and the appellees were put in possession of the property. The stipulation in the agreement that on the default of the appellant in paying the purchase money, or any part thereof, the appellees might, at their option, treat it as void, gave them the authority to rescind, and their action in summarily repossessing themselves of the property was a rescission of the contract between them: Campbell v. Hickok, 140 Pa. 290; Scott v. Hough, 151 Pa. 630; Seanor v. McLaughlin, 165 Pa. 150. If the appellees elected to treat the agreement as void, as they did, notMng is to be found in it, and nothing was developed at the trial, to justify their keeping the appellant’s money. The moment they exercised their option- to treat the agreement as void and to rescind their contract with the appellant, he was, in the absence of anything shown to the contrary, entitled to get back what he had paid. When they rescinded the agreement they could no longer derive any benefit, directly or indirectly, from it: Sanders v. Brock, 230 Pa. 609; and they were bound to place the plaintiff in statu quo by returning the purchase money which they had received from him.

In contending that the entry of judgment against the appellant in the amicable action of ejectment was a complete adjudication of the rights of the parties to the contract, and that he cannot, therefore, recover back what he paid on account of the purchase money, counsel for appellees overlook the plain terms of the agreement signed by them. They had the right, as already observed, to enforce payment of the balance of the purchase money, but they expressly reserved to themselves another right— to treat the agreement as void — with no right, however, if they should so treat it, to keep what the appellant had paid them on it. The rights of each of the parties must be found in the agreement, and, in the absence of anything therein authorizing the appellees to treat as forfeited to them the purchase money which the appellant paid them, and which they accepted from him before they undertook to rescind after they had the right to do so, their claim to retain it is no more favored by the law than in equity. Even if they had resold the property at a loss, they could not have retained out of the moneys paid them by the appellant more than sufficient to reimburse them for the loss sustained.

After directing a verdict for the plaintiff the court entered judgment for the defendants under the Act of April 22, 1905, P. L. 286, and cited Jones v. Scott, 209 Pa. 177, as authority for doing so. A very different question was presented in that case, and it has no bearing upon the question which was before the court below and is now before us on this appeal. All that was there decided was that the court below had not erred in opening a judgment entered against Scott in an amicable action of ejectment and restoring to him possession of the premises upon his paying the balance of the purchase money, counsel fees and costs. In the opinion of Mr. Justice Dean the reasons are stated which justified the equitable interference by the court. This appellant asked for no relief from the judgment and execution against him in the amicable action of ejectment. He acquiesced in what the appellees did under their right to treat the agreement as void; and he was bound to do so, for such was the agreement between them. All that the appellant now asks is that, as the appellees elected to treat as void their agreement to sell him the lot of ground, they return to him what he paid them on .account of the purchase money; and to this he is entitled. The assignments of error are sustained, the judgment is reversed and the record remitted, with direction that judgment be entered for plaintiff on the verdict.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Riffert, Appellant, v. Lehigh Valley Coal Company.

      Sheriff’s sale — Irregularities—Parties—Executors and administrar tors — Ejectment—Record—Evidence—Sheriff’s deed.

    1. Where an administrator d. b. n. c. t. a. is substituted as a defendant in a judgment after a writ of venditioni exponas has been issued and stayed, and thereafter he permits a pluries writ to be issued and the property to be sold by the sheriff, and a sheriff’s deed executed and acknowledged, the substituted defendant will be held to have waived any irregularities that would have affected the innocent purchaser at the sale, such for instance as the fact that the executor of the defendant was the substituted defendant at the time the fieri facias had issued, although prior to such time he had renounced as executor.
    2. A sheriff’s sale cannot be successfully attacked sixty years after its date in an action of ejectment, because the purchaser at the sale had been an assignee for the benefit of creditors of the defendant in the execution, where there is no evidence to show that the purchaser at the sale had ever accepted under the deed of assignment, or ever knew that he was named therein.
    3. In an action of ejectment where the defendants rely on a sheriff’s deed executed and recorded sixty years prior to the date of the action, it is immaterial that one of the writs of execution cannot be found, where the record shows that the writ was issued.
    4. Where a sheriff’s deed was recorded in the sheriff’s deed book in 1840, it is immaterial that no minute of the acknowledgment of the deed appeared in the common pleas minutes of that year.
    Argued May 8, 1911.
    Appeal, No. 326, Jan. T., 1911, by plaintiffs, from judgment of C. P. Northumberland Co., May T., 1908, No. 62, on verdict for defendant in case of John R. Riffert et al. v. Lehigh Valley Coal Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Mt. Carmel township. Before Savidge, P. J.
    At the trial the court charged as follows.
    The plaintiffs in this case, numbering nearly a hundred, are the heirs of Valentine Brobst, deceased. Valentine Brobst lived in the early part of the last century and up to his death, which occurred on March 18, 1837, in the city of Reading, Berks county, this state, and owned large tracts of land in several counties, among others the tract of land for which this action of ejectment has been brought. He owned that tract of land from 1816 up to the time of his death.
    On October 26, 1835, one William Silvis, entered in this court a judgment, by confession, against Valentine Brobst, which judgment was for $4,500, real debt. No steps were taken towards the collection of this judgment by execution prior to the death of Valentine Brobst.
    February 15, 1837, three days more than a month before his death, Valentine Brobst made an assignment for the benefit of creditors to William Silvis and another. Although proceedings were subsequently had under the deed of assignment, as shown by the records of the Berks county courts, this assignment made in Berks county and there recorded (Berks county having jurisdiction of their accounts), etc., yet it nowhere appears that William Silvis ever accepted the trust under this assignment, or that he ever knew that he was one of the assignees named therein. William Silvis, the plaintiff in the judgment, about which I have just spoken, lived in Northumberland county, many miles distant from Reading and in those days a long journey.
    Valentine Brobst died testate, and one of the executors of his will was a man by the name of Keim. Keim never took out letters testamentary, as appears from the records of the orphans’ court of Berks county but, by a paper dated April 18, 1838, renounced the trust. When this paper was filed does not appear, but one Samuel S. Jackson was granted letters de bonis non cum testamento annexo, on May 23,1838. Notwithstanding Keim had never taken out letters testamentary, on April 23, 1838, he was substituted as executor in the case of William Silvis v. Valentine Brobst, the judgment I spoke of a few moments ago. This substitution was by agreement of one Dunn, acting as attorney for Keim executor, and is dated April 16, 1838, the agreement for substitution antedating the renunciation by two days. The judgment then stood William Silvis v. Keim, executor of Brobst.
    On May 10, 1838, a writ of fieri facias was issued; that writ was stayed. On May 17, 1838, an alias writ of fieri facias was issued and under that writ condemnation and inquisition proceedings were had and the land condemned. On September 10, 1838, a writ of venditioni exponas was issued, which was stayed by plaintiffs’ attorney. On September 25, 1839, a pluries venditioni exponas issued, an alias in the meantime having been issued and stayed. Up to this time the judgment stood and all the proceedings thereon, Silvis v. Keim, executor. On November 30,1839, Samuel S. Jackson, administrator, etc., was, by agreement, substituted. January 29,1840, the third pluries venditioni exponis was issued, the second having, in the meantime, been stayed and under this the lands levied upon were sold (among which was the land in suit in this case), to William Silvis for the sum of $9,800. The sheriff’s deed was duly acknowledged. This sheriff’s title to Silvis became and is now vested in the defendant in this case.
    It is contended by the plaintiffs that this sheriff’s sale was void, first, because there was, as they allege, no personal representative of the dead defendant on record. He had not been brought into court and was not upon the record at the time the fieri facias issued and at the time of the inquisition and condemnation of the land. The record itself is regular. We only know from proof, introduced here upon the trial de hors the record, that Keim had never accepted the trust imposed upon him by the will of Valentine Brobst. He was named in the will as one of the executors of Valentine Brobst. He was substituted by an agreement of an attorney acting for him, but there is nothing in the case to show that there is any irregularity in this record which was brought to the knowledge of Silvis, the purchaser at the sheriff’s sale, and we believe that the irregularity cannot affect his title.
    But subsequent to the condemnation proceedings before the sale, namely, before the second and third pluries writs of venditioni exponas issued, Jackson, the duly appointed administrator with the will annexed, was substituted and came upon the record as defendant by agreement. He was a party to the record, etc., at the time of the sheriff’s sale and the acknowledgment of the deed by the sheriff.
    We are of the opinion that under the authorities cited, especially, Diese v. Fackler, 58 Pa. 109; Spragg v. Shriver, 25 Pa. 282, he will be held to have waived any irregularities that would affect an innocent purchaser, if there were any that had theretofore taken place in the proceedings. ,He could have taken a rule and have had the sheriff’s sale set aside on account of the irregularities that are now here alleged and no doubt if he had done so the sale, would have .been set aside. If he stood by and permitted the sale to go on and the sheriff’s deed to be acknowledged, the title, taken by an innocent purchaser, cannot be affected by these irregularities, which should have been taken advantage of before and which the acknowledgment of the sheriff’s deed cured.
    There is complaint, on the part of the plaintiffs, that Silvis became a purchaser at this sale. They say that was in fraud of the rights of their ancestors, the then heirs of Valentine Brobst, because he was one of the assignees named in the deed of assignment, about which I have spoken. The party who alleges fraud must prove it. There is not a particle of evidence, as I have said, that he ever accepted under this deed of assignment or even knew he was named therein, and courts and juries are not permitted to lightly infer fraud, and in this case you would have to find it without any evidence, which is not permitted.
    Another complaint is, that one of the writs of execution cannot be found. Very naturally the papers, in a case where they were so multitudinous as in this case, would be lost in such a long lapse of time and it is no surprise that they are not to be found. The record shows that they were issued and that is sufficient.
    Another complaint is, that there is no minute of the acknowledgment of the deed in the common pleas minutes of April Term, 1840. There is a minute of the acknowledgment of the deed contained in the book called the sheriff’s deed book and the minute is in due form, signed by the prothonotary. We know of no law that will compel a prothonotary to keep his minutes all in one book or that will prevent him keeping the minutes of the court in a book which may be termed and labeled on the back thereof “Sheriff’s Deed Book.” Some fifteen or sixteen deeds were acknowledged that April Term, as shown by the minutes and record of the acknowledgment contained in this sheriff’s deed book, or this so-called sheriff’s deed book, and very few, if any of them, are minuted in the regular common pleas minute book of that date. We think that the law has been complied with in the minute contained in the sheriff's deed book.
    We have come to the conclusion that this sale was regular on its face; that there was no notice to bidders and buyers of any irregularity and that Silvis took a good title to these lands. Silvis and those who claim under him have paid the taxes on these lands from 1840, from the time of this sheriff’s sale, down to the present time. They took possession of the lands back in the fifty’s or sixty’s and even earlier than that, built some houses on them as the evidence shows and collected rents. The houses have been occupied from 1854 to the present time and the rents have been paid over to the Lehigh Valley Coal Company,' the present owners. They have, during all these years, been collecting the royalties for sand and stone, and other improvements have been put upon the property.
    Even though it were to be determined that the Silvis title was void, yet we believe that the plaintiffs at this late day, after the lapse of more than sixty years, would not be permitted to come in and assert title. However that may be, we feel confident that Silvis took a valid title and, of course, it is admitted that this sheriff’s sale was regular and the sheriff’s vendee took good title and therefore the plaintiffs cannot recover. The only thing for you to do, gentlemen of the jury, is to return a verdict in favor of the defendant.
    Verdict and judgment for defendant. Plaintiffs appealed.

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

      George B. Reimensnyder, with him James Scarlet, George M. Lutz and George H. Neff, for appellants.
    — A sheriff’s deed is not valid to pass the title of real estate, without acknowledgment in open court and a record of the acknowledgment entered on the minutes of the court: Bellas v. McCarty, 10 Watts, 13; Lee v. Newland, 164 Pa. 360; Duff v. Wynkoop, 74 Pa. 300; Chambers v. Carson, 2 Whart. 437; DeHaven’s App., 38 Pa. 373.
    The execution was void when issued against owner who died without notice to legal representatives: Wood v. Colwell, 34 Pa. 92; Cadmus v. Jackson, 52 Pa. 295; Taylor v. Young, 71 Pa. 81; Sheetz v. Wynkoop, 74 Pa. 198; Wallace v. Holmes, 40 Pa. 427; Taylor v. Savage, 42 U. S. 282; Meredith v. Scallion, 51 Ark. 361 (3 L. R. A. 812).
    The assignee could take no title to himself individually, to property purchased at sheriff’s sale on his own judgment, but would hold in trust as assignee for assignor or his heirs: Wilt v. Franklin, 1 Binn. 502; Sheerer v. Lautzerheizer, 6 Watts, 543; Eyrick v. Hetrick, 13 Pa. 488; Marks’ App., 85 Pa. 231; Golden’s App., 110 Pa. 581; Heckman v. Messinger, 49 Pa. 465; Seal v. Duffy, 4 Pa. 274; Klapp v. Shirk, 13 Pa. 589; Dallam v. Fitler, 6 W. & S. 323; Scull v. Reeves, 3 N. J. Eq. 84; McKinney v. Rhoads, 5 Watts, 343; Reamer v. Lamberton, 59 Pa. 462.
    It was a fraud upon the part of the assignee to sell assigned property on his judgment and become the purchaser at such sale: Mellon’s App., 32 Pa. 121; Vandyke v. Christ, 7 W. & S. 373; Rigler v. Cloud, 14 Pa. 361; Campbell v. McLain, 51 Pa. 200; Musselman v. Eshleman, 10 Pa. 394; Chronister v. Bushey, 7 W. & S. 152.

      D. W. Kaercher, with him S. P. Wolverton, Jr., and F. W. Wheaton, for appellee.
    — The certificate of Samuel D. Jordan, prothonotary, shows that the sheriff’s deed poll was acknowledged in open court on April 9, 1840, and duly recorded in book B, page 201. The deed was also recorded in the recorder’s office in deed book F F, page 577. This was sufficient: Strimpfler v. Roberts, 18 Pa. 283.
    The proceedings were regular, and were not excepted to by the heirs or creditors of Valentine Brobst, and led up to a public sale by the sheriff, and vesting of the title by a sheriff’s deed poll, acknowledged and recorded, in Silvis, under whom the defendant claims: Bear Valley Coal Co. v. Dewart, 95 Pa. 72; Read v. Goodyear, 17 S. & R. 350.
    Admitting that there was fraud on the part of Silvis in purchasing the property at sheriff’s sale, that could not affect an innocent purchaser from him, without proof of notice of existing equities: Critchlow v. Critchlow, 8 Sadler, 304; Chorpenning’s App., 32 Pa. 315; Fisk v. Sarber, 6 W. & S. 18.
    July 6, 1911:
   Per Curiam,

The facts developed at the trial fully appear in the charge of the learned trial judge and they warrant his direction of a verdict for the defendant.

The judgment is affirmed.


text:
    Bollinger v. Crystal Sand Company, Appellant.

      Negligence — Master and servant — Contributory negligence — Burden of proof — Death—Statutory duty.

    1. Plaintiff in a negligence suit cannot make out a ease by proof that an injury was caused by one or more of a number of equally probable causes, some of which show negligence on the part of the defendant, and others do not. He is required to prove that the defendant was negligent, and that his negligence caused the injury. He is not required, however, to disprove contributory negligence, but only to make out a case clear of it.
    2. In an action against an employer to recover damages for death of an employee, the case is for the jury where the plaintiff produces proof that the defendant had failed properly to guard a shaft, and that the deceased was killed by coming into contact with the shaft while engaged in his usual work. In such a case the failure to guard the shaft was the neglect of statutory duty against the consequence of which nothing but the contributory negligence of the employee would relieve the defendant.
    Argued May 9, 1911.
    Appeal, No. 21, Jan. T., 1911, by defendant, from judgment of C. P. Mifflin Co., Aug. Term, 1909, No. 80, on verdict for plaintiff in case of Elizabeth V. Bollinger v. Crystal Sand Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Shull, P. J., specially presiding.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned was in overruling motion of defendant for judgment non obstante veredicto.

      W. W. Uttley, of Uttley & Son, with him Rufus C. Elder, for appellant.

      J. Howard Neely, with him J. C. Houser, for appellee.
    July 6, 1911:
   Per Curiam,

The plaintiff’s husband was employed in a building in which sand rock was crushed and sand was washed and dried and prepared for shipment. His work was to oil the machinery and watch the conveyors and bins and it took him to all parts of the building. While alone in an upper room his clothing was caught on the line shaft at a point where the rough edge of a key way projected an eighth of an inch and his body was wound around the shaft and he was killed. No one witnessed the accident.

At the trial different theories were advanced as to what the deceased was doing when his clothing was caught. It is contended by the defendant that the accident must have happened in one of three ways: by the clothing of the deceased coming into contact with the shaft when ■he was oiling the machinery while it was in motion, in violation of his instructions; by his attempting for his own convenience to pass through a narrow space under the shaft in going from one platform to another, instead of using a ladder furnished for the purpose, or by his falling against the shaft while walking near it on a way provided and that as' the first two of these suppositions would make him chargeable with contributory negligence, the jury was permitted to select from probable causes one that would impose liability on the defendant. This argument overlooks the burden of proof. A plaintiff cannot make out a case by proof that an injury was caused by one or more of a number of equally probable causes some of which show negligence on the part of the defendant and others do not. He is required to prove that the defendant was negligent and that his negligence caused the injury, but he is not required to disprove contributory negligence, but only to make out a case clear of it. The jury in this case was not left to conjecture as to anything the plaintiff was required to prove. She established a prima facie case by proof that the defendant had failed to properly guard the shaft, and that her husband was killed by coming into contact with it while engaged at his usual work. The failure to guard the shaft was the neglect of a statutory duty against the consequence of which nothing but the contributory negligence of an employee would relieve the defendant: Jones v. American Caramel Co., 225 Pa. 644. The presumption of care was in her favor and the burden of proof of contributory negligence was on the defendant. It follows that there was no error in refusing to enter judgment non obstante veredicto.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Griffiths v. Monongahela Railroad Company, Appellant.

      Equity — Injunctions—Diversion of water course — Waters.
    1. A court of equity will generally grant relief by way of injunction to prevent the continued wrongful diversion of a water course, and such relief may be granted though the complainant has suffered no material damage by reason of the diversion as otherwise the continued diversion might ripen into a prescriptive right, or require a multiplicity of suits.

      Appeals — Preliminary decree — Quashing appeals.

    2. Where in an equity suit an appeal is taken without a final decree having been entered, the appeal will be quashed.
    Argued May 9, 1911.
    Appeal, No. 25, Jan. T., 1911, by defendants, from decree of C. P. Fayette Co., No. 578, in equity, granting permanent injunction in case of John S. Griffiths v. Monongahela Railroad Company, a corporation, and M. J. McMename and L. F. Sims, partners doing business as McMename & Sims.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Appeal quashed.
    Bill in equity to restrain diversion of a water course. Before Van Swearingen, J.
    The opinion of the Supreme Court states the case.

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

      W. J. Sturgis, with him E. H. Reppert and S. J. Morrow, for appellants.

      D. W. McDonald, with him Frank P. Cottom, Harry A. Cottom and James R. Cray, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Potter,

The record in this case shows that no final decree has ever been entered. The findings of the trial judge were filed June 15, 1910, with a decree annexed awarding a permanent injunction. On June 23,1910, exceptions were filed to the finding and decree. On January 10, 1911, an order was made by which the exceptions were “overruled and dismissed.” The former decree, which under the equity rule must be regarded as a decree nisi, was not confirmed, and no other decree was entered. When an •appeal is taken without a final decree having been entered, the rule is to quash the appeal. See Watkins v. Hughes, 206 Pa. 526; Kenworthy v. Trust Co., 218 Pa. 286. The proper practice is, for the trial judge to report a form of decree with his findings, which will be entered nisi under the rule. Then, if exceptions are filed, a final decree should be formally entered when the exceptions are disposed of, whether they are sustained or overruled.

It would have been better, if in this case, the trial judge had followed the approved practice of setting forth his findings of fact and his conclusions of law in separate and numbered paragraphs. See Pittsburg Stove & Range Co. v. Penna. Stove Co., 208 Pa. 37; Gaynor v. Quinn, 212 Pa. 362.

This appeal will have to be quashed because there is no final decree. But upon the facts as found by the court below, we have no doubt as to the case being a proper one, for the exercise of equitable relief. “The diversion or obstruction of a water course has been the subject of frequent equitable interference by way of injunction:” Gould on Waters, sec. 534. “A court of equity will generally grant relief by way of injunction to prevent the continued wrongful diversion of a water course, and such relief may be granted though the complainant has suffered no material damage by reason of the diversion, as otherwise the continued diversion might ripen into a prescriptive right, or require a multiplicity of suits:” 30 Am. & Eng. Ency. of Law (2d ed.), 369. Where water has been •wrongfully diverted from its proper channel, a mandatory injunction may be granted to restore it: Bispham’s Equity, sec. 400; 1 High on Injunctions, sec. 804; Gould on Waters, sec. 553.

For the reason above noted, the absence of a final decree, the appeal is quashed.


text:
    Shambach, Appellant, v. Middlecreek Electric Company.

      Negligence — Death—Widow—Compromise of suit by widow — Acts of April 15,1851, P. L. 669, and April 26,1855, P. L. 309.

    A widow with minor children, who has brought an action in her own name for the benefit of herself and her children who are named in the statement of claim, has a right to compromise and settle the case for a valuable consideration when she does so in good faith, and is not overreached or defrauded, and this she may do without consent of a guardian of the children. After such a settlement the children have no standing further to prosecute the suit.
    Argued May 9, 1911.
    Appeal, No. 114, Jan. T., 1911, by plaintiff, from judgment of the Superior Court, March Term, 1910, No. 23, affirming judgment of C. P. Snyder Co., Oct. T., 1907, No. 59, for defendant n. o. v. in case of Ida Shambach v. Middlecreek Electric Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before McClure, P. J.
    The case turned upon the question whether the widow had the right to settle the suit. See report of same case in 45 Pa. Superior Ct. 300.
    The following opinion was filed by Morrison; J.
    This is an action of trespass based on the death of Henry Shambach, caused, as alleged, by the negligence of the defendant. The verdict of the jury has settled the question of the defendant’s negligence and the lack of contributory negligence by the deceased, and these questions are- not raised in this appeal.
    The deceased was survived by his widow, Ida Shambach and nine children, named in the declaration, all, or nearly all, of them minors. By the act of April 15,1851, P. L. 669 (see sec. 19, page 674), an action is given for the death of a person when caused by unlawful violence or negligence; and by the Act of April 26, 1855, P. L. 309, the persons entitled to recover are the husband, widow, children or parents of the deceased, the sum recovered going to them in the proportion they would take the personal estate of the deceased in the case of his or her intestacy. These acts determine the right to recover, which does not exist at common law and has no existence outside of them. It has been decided that these acts are in pari materia. And it is conclusively established by a line of decisions of our Supreme Court that when there is a husband or widow, children are not only not necessary, but not even proper parties, but it is necessary to name them in the declaration: Huntingdon & Broad Top Railroad Co. v. Decker, '84 Pa. 419; Haughey v. Pittsburg Rys. Co. (2), 210 Pa. 367; Black v. B. & O. R. R. Co., 224 Pa. 519. The right of said action cannot be assigned by the widow to the child, so as to enable suit to be brought in her name for its benefit: Marsh v. Western New York & Penna. R. R. Co., 204 Pa. 229, and by the plain terms of the act of 1855 the children cannot bring suit for themselves in their own names while the widow is living.
    In the present case, after the widow had brought the action to recover damages for herself and the nine children of the deceased, and had named the latter- in the declaration, as required by the act of 1855, she, on December 10, 1907, in Consideration of $750 paid to her by the defendant, executed and delivered, under her hand and-seal, a release and discharge of the defendant from all claims and demands of any kind for or by reason of, or in any way growing out of the accident, or death of said Henry Shambach. Thereafter it was sought at the trial of the ■case to recover, notwithstanding this release, the proportion of the damage claimed by the children, to wit, two-thirds of such sum as might be allowed by the jury. It is conceded that the widow favored such recovery. The defendant’s counsel offered said release in evidence and claimed that it ended the suit; in substance, that the widow having the statutory right to bring and carry on the suit, and recover damages allowed by the court and jury, necessarily had the right to compromise and settle the suit for a good and valuable consideration. The trial judge admitted the release in evidence, notwithstanding the objection of plaintiff’s counsel, and noted an exception and sealed a bill for plaintiff, reserving the question of the effect of the release, and submitted the case to the jury, and the result was a verdict in favor of the plaintiff for $1,320.80 for the use of the children. Thereupon defendant’s counsel moved the court for judgment non obstante veredicto, and upon argument and consideration, the court subsequently granted such judgment for the defendant. To this judgment the plaintiff excepted and the court sealed a bill of exceptions as required by the Act of April 22, 1905, P. L. 286.
    We do not understand that any question is raised as to the sufficiency of the release to end the case, provided the widow, plaintiff, had the power to compromise the claims of the children and release their rights. It thus appears that the single question now raised for decision is, Was the court right in holding that the widow, plaintiff, had the power to compromise and settle the case without the consent of a guardian of the minor children, and without the approval of the court whose wards the said minors were? It is conceded that this exact question has not been decided by either of the appellate courts of this state. At the argument and on first consideration of this question ■we were inclined to think the court érred in granting judgment, for the defendant non obstante verdicto. But on more careful consideration of the acts of assembly, the authorities, the opinion of the court, and the arguments of the able counsel representing both sides of the case, we are forced to the conclusion that the judgment is right. It having authoritatively been decided in many cases by our Supreme Court that the widow is the proper party to sue in her own name and carry the suit to judgment and collection, it is difficult to see why she may not compromise and settle the case for a valuable consideration when she is not overreached or defrauded.
    The able counsel for plaintiff cites and relies with much apparent confidence on the following cited and other cases: Lewis v. Turnpike Co., 203 Pa. 511, where Mr. Justice Mitchell said: “The act first gives the right of action and then prescribes the mode of distribution of the sum recovered, but that necessarily means distribution among those entitled to sue. It would be absurd to suppose that in the same sentence the statute meant to give part of the damages to those to whom it had denied the right of action. We think the counsel draws an erroneous conclusion from this language. It refers mainly to the question of distribution and what is said about the right to sue refers to those who under certain conditions have that right. If the widow be dead, the children have a right to sue. A • portion of the damage belongs to them and they are interested in the distribution. But the language of Mr. Justice Mitchell does not mean that the children are parties to the suit of the widow except that they are to be named in the declaration for the purpose of distribution.
    We also think the language of Mr. Justice Sterrett in Birch v. Ry. Co., 165 Pa. 339, does not bear the construction put upon it by plaintiff’s counsel. Counsel argues from that authority that even where the widow survives, the children have the right to maintain an action. This view is in conflict with the act of 1855 and with the adjudicated cases thereon. The children do not have the right to sue and carry on an action while the widow is alive. Counsel also cites Lehigh Iron Co. v. Rupp, 100 Pa. 95, but we do not think that case sustains plaintiff’s contention. On page 99, Mr. Justice Trunkey, speaking for the Supreme Court, said: “When a husband or wife recovers damages, and there are children of the deceased, the provisions of the statute for distribution under the intestate law applies, and strictly accords with the main object of the statute, which is a remedy for the loss to the family. That case concedes that the suit is to be brought and earned on by the husband or wife but that the children are interested in the distribution, and it does not sustain the proposition that the children are necessary parties to the action. The learned counsel also cites a number of cases where the widow and children were joined as plaintiffs, but they must and do concede that the authoritative decisions of the Supreme Court are that the suit should be brought in the name of the widow while she survives. Counsel cite and urge upon our consideration a decision by the late Judge Simonton in Styles v. Steel Co., 2 Dauphin County, 257, and 7 Del. County, 456. That case is not binding upon us although we entertain great respect for a decision of that able judge. The case is not well reported, but it seems to have been an attempt on the part of the widow to discontinue an action brought to recover damages caused by the death of the husband and father. What Judge Simonton really decided was that the widow could not discontinue the suit. It must be borne in mind that when the action is pending it is always within the discretion of the court whether or not the plaintiff shall be allowed to discontinue it. There may have been strong reasons why that case was not allowed to be discontinued. The widow might have been moved by improper motives. It must be and is conceded that the children have an equitable right or title to their shares of the damages recovered by the widow and if she does not recognize their rights, she will be declared a trustee of the fund upon a proper application to a court of equity having jurisdiction of the parties: Allison et al. v. Powers, 179 Pa. 531; Lewis v. Turnpike Co., 203 Pa. 511.
    In support of the judgment of the court below we do not see that much can be added, with profit, to the lucid opinion of Judge McClure in support of his decision. In that opinion he refers to and cites a large number of cases from courts of other states arising under statutes more or less similar to ours. The great weight of those authorities in Tennessee, Rhode Island, Minnesota, Mississippi, etc., are in support of the conclusion that the widow in the present cáse had the power to make the compromise and settlement in question. As showing the view of another common pleas judge the case of Toole v. Jones, 32 Pitts. Leg. Jour. 387, is cited. In that case the court said: “The statute having invested the widow with the power to bring suit for herself and children, she could compromise and settle the claim without suit when it is done fairly. In which case she would be accountable to the children for two-thirds of the amount received just as though she had recovered at the end of a suit. Much importance is attached by appellant’s counsel to some cases decided by the Supreme Court of Texas and also cases under a similar statute of the territory of Arizona. These cases held that the widow could not remit any portion of a verdict in favor of the beneficiaries: Southern Pacific Co. v. Tomlinson, 163 U. S. 369. The Texas cases holding that the widow had no power under the statute of that state to compromise or release the, rights of her minor children. As we understand the statutes, referred to, they require a specific finding by the jury in favor of each beneficiary, and that distinguishes them from our statutes which authorize a general verdict.for the widow or husband plaintiff.
    We have been referred to an interesting opinion by District Judge Archibald in Paolo v. Laquin Lumber Co., in the circuit court of the United States for the middle district of Pennsylvania. That was an action to recover damages under our acts of 1851 and 1855, and we are much impressed with the reasoning of that able judge, and he reaches a conclusion, expressed as follows: “The right to compensation for the death of a person rises no higher than that of the one who is authorized to sue for it; and the right to sue being given by the statute to the widow who is living, no other is qualified. The children have no interest except in the damages which she recovers, and only after she has recovered them. There is no sever-able share which entitles either of them by himself, as here, to a direct and separate cause of action. It is true that in Toole v. Jones, 32 Pitts. Leg. Jour. 387, a suit was sustained in the name of the wife for the use of the children, after she had settled and released her individual damages, but if that is to be taken as opposed to the views which are here expressed, it is contrary to what was decided in Marsh v. Western New York & Penna. R. R. Co., 204 Pa. 229, and is therefore no authority. In the Marsh case also, the widow refused to prosecute, which would seem to present as strong a ground for allowing the child to sue for itself, as where she herself is qualified; and yet it was held insufficient to do so.”.
    District Judge Rand in the circuit court of the United States for the southern district of New York in the case of Conover v. Penna. R. R. Co., 176 Fed. Repr. 638, held as follows: ‘ ‘ It is quite clear under the law of Pennsylvania that the widow alone is the person in whom the right of action is vested. (Citing several Pennsylvania authorities.) All the proceeds she holds in trust for herself and children; but there is no provision anywhere in the statute by which the interest of the children may be apportioned in the action, and the proceeds are to be turned over to her for distribution. I think that payment to her, or settlement with her, was effective bar just as it is in the case of any other trustee, and that the person who deals with her need not follow the application of the proceeds.” The judge then refers to the case of Southern Pacific Co. v. Tomlinson, 163 U. S. 369, and points out why that decision does not apply under the Pennsylvania statutes. “In the first place they were all parties to the record, a procedure which was permitted by the statute. The widow, was, therefore, in the position of trying to compromise the interests of other parties to the record than herself. In addition, as permitted by the statute, the jury has assessed separately the recoveries for each of the parties plaintiff, and it is obvious that the widow, being only one of the parties plaintiff, had no right to interfere with the rights of any other than herself. In view of the fact that the Pennsylvania courts do not admit the children as parties plaintiff at all, that case has no bearing upon the Pennsylvania statutes.” •
    . It is argued with much earnestness that the view taken by the court below upholding the right of the widow to compromise and settle the claim might result in the children losing their two-thirds of the recovery. This is true. But it is a legislative rather than a judicial question. Under the act of 1855, as construed by our Supreme Court, the children are not parties to the suit, but are only required to be named in the declaration for distributive purposes. It does seem that the statutes which allow the person who is only entitled to one-third of the recovery, to settle and adjust the claims of those entitled to the other two-thirds, is faulty, but this can only be remedied by the legislature.
    Notwithstanding the very able and earnest argument and reargument of this case on the part of the able counsel for the appellant, we are not convinced that the court below erred in entering judgment for the defendant non obstante veredicto.
    The assignments of error are dismissed and the judgment is affirmed,
    Henderson, Oblady and Beaver, JJ., dissent.

      Error assigned was the judgment of the Superior Court.

      Grant Herring, with him F. S. Wagenseller, for appellant.

      C. E. Sprout, of Sprout & Cupp, and Charles P. Ulrich, for appellee.

      July 6, 1911:
   Per Curiam,

The judgment is affirmed on the opinion of the Superior Court.


author: Mr. Justice Mestrezat,

text:
    Shepherd & Sons v. First National Bank of Wilkes-Barre, Appellant.

      Contract — Building contract — Ambiguity—Modification of specification — Acceptance of bid — Estoppel.
    Where the specifications of a building contract are ambiguous as to whether the roof shall be constructed of slag or of copper, and a contractor in submitting his bid in writing incorporates in his bid the words “Main roof estimate slag,” the owner must either reject these words, or if he fails to do so, and accepts the bid without objection, and the acceptance is incorporated into the contract, he cannot afterwards object to the right of the contractor to construct the roof of slag, and not of copper.
    Argued May 10, 1911.
    Appeal, No. 98, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., Oct. Term, 1908, No. 1,194, on verdict for plaintiff in case of W. H. Shepherd & Sons v. First National Bank of Wilkes-Barre.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover the balance alleged to be due on a building contract. Before Garman, J.
    The facts are stated in the opinion of the Supreme Court.
    The defendant presented the following points:
    The contract, plans and specifications, being in writing, and there being no ambiguity in the language used in the same, which is open to explanation by parol evidence, the construction of the same is exclusively for the court. Answer: This point, in the form in which it is drawn, is denied. We are of the opinion that the actions of the parties in connection with this proceeding, as represented, shows a certain ambiguity; and that, at any rate whether there be ambiguity or not, the contract is between the parties and that the bid and acceptance in the form in which one made and the other accepted are read into the contract. [1]
    The plaintiffs’ bid so far as the same refers to slag estimate, under the terms of the contract, is no part of the contract and was not made a part of the same. Answer: That is denied. [2]
    The contract taken in connection with the plan and specification calls for a copper roof over the “ main roof,” and was not an extra, but a portion of the work to be paid for and out of the cost of the construction of the building, namely, $112,983, and the plaintiffs are not entitled to recover. Answer: That is denied. [3]
    Under all the evidence in the case the verdict should be for the plaintiffs for $207.54 the amount of the tender, without interest or costs. Answer: That is negatived. [4]
    Verdict and judgment for plaintiff for $2,400.06. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      William S. McLean, with him William S. McLean, Jr., for appellant.

      S. J. Strauss, with him John McGahren, for appellees.
    July 6, 1911:
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit brought to recover the difference between the cost of covering the main roof of the defendant's bank building with a slag and a copper roof.

At the request of the defendant’s architect, the plaintiffs tendered a bid or proposal for the erection of a bank building for the First National Bank of Wilkes-Barre, Pennsylvania. The proposal was in writing and contained several paragraphs, each making a different and conditional bid for the work to be done and the materials to be furnished. By paragraph four, the plaintiffs offered to construct the building for $112,983. In paragraph six, the plaintiffs bid $663 on the clock frame, and stated that they included cornice of granite in place of concrete for alley in No. 4 estimate. This paragraph concluded with the words: “Main roof estimate slag.” A few days after the bid, the secretary of the building committee of the defendant bank advised the plaintiffs that the committee had accepted their bid “as set forth in paragraphs four and six of same.” The parties entered into a contract for the construction of the building in pursuance of the bid and its acceptance, by the ninth article of which the owner was to pay the contractor $112,983, “as stipulated in proposition or paragraph four and $663 as stipulated in proposition or paragraph six of the bid of contractors a copy of which is hereto attached.”

Among the specifications was the following: “The roofs (excepting the front portion and main roof which is copper), shall be covered with a five-ply slag covering of the Warren-Ehret, or Owen D. Jones, manufacture.” The contract provided for three roofs on the building of different altitudes, the front roof, the main roof, and a third roof over the directors’ room. During the construction of the building a dispute arose between the contractor and the owner in regard to the covering for the main roof. The contractor claimed that the main roof was to be covered with slag; the owner, that it was to be covered with copper. It was agreed that the contractor should furnish a copper covering and that the dispute should be adjusted by an action of law. This suit was brought to recover the difference between the cost of the slag and copper covering of the main roof. The learned court below instructed the jury to find a verdict for the plaintiffs and the defendant has taken this appeal.

The defendant bank contends that the contract required the plaintiffs to erect the building according to the plans and specifications of the architect, and that the specification above quoted required the main roof to be covered with copper. Its contention is that the front and main roofs were to be covered with copper and only the roof over the directors’ room was to be covered with slag. It is further claimed by the defendant that the words, “main roof estimate slag,” added to paragraph six of the plaintiffs’ bid are without effect and do not change the specification providing for the roofing.

We do not agree with the defendant’s contention. The specification in question was ambiguous and was so regarded by bidders and architects, even by Mr. Kipp, defendant’s architect, who prepared the plans and specifications for the building. Mr. Shepherd, observing the ambiguity in the specification, attempted to communicate with the architect before he submitted the plaintiffs’ bid but was unable to do so by reason of Mr. Kipp’s illness. He then submitted to the architect through the latter’s wife certain questions as to the proper construction of the specification but received no definite answer, the architect replying “you better figure on copper roof.” This occurred on the morning the bids were to be submitted, and Shepherd testifies that he could not estimate the cost of a copper covering without a specification, and the time was too short for him to get a bid on a copper roof basis. Another bidder communicated with the architect on the subject in the same way. The first reply he received was that the main roof was to be of slag, but on his suggestion that the roof was too steep for slag, the architect replied again through his wife: “You better figure copper.” Another architect was called and he testified that there was nothing on the drawings to show the character of the roof, and that as there were three roofs he would interpret the specifications to cover the portion over the main bank room with slag.

The specification being ambiguous and open to different interpretations, it was proper for the plaintiffs in submitting a bid to specify the character of covering of the main roof on which they made their estimate. This relieved the bid of any uncertainty and distinctly notified the defendant and its architect of the construction placed upon the specification by the plaintiffs. This bid, as will be observed, was accepted by the building committee. The resolution adopted by the committee and communicated to the plaintiffs, accepted the bid as set forth in paragraphs four and six, the latter of which contains the notice to the owner that the plaintiffs made their bid on the basis of a slag covering for the main roof. The contract provides that the owner should pay the sums stipulated in the two paragraphs and copies of those paragraphs were attached to the contract. The bid was, therefore, made and accepted upon the distinct notice by the contractor to the owner that it was upon the basis of a slag covering for the main roof. The proposal distinctly notifies the owner that the roof is to be slag, the building committee accepts the proposal including this notice, and the contract specifically provides that the sums named in the two paragraphs, one of which contains this notice, will be paid by the owner to the contractor for the construction of the building. This is a construction of the specification providing for the material for the roofing by both parties, and neither is at liberty to reject it now. When the building committee accepted the proposal, including the plaintiffs’ construction of the specification, and subsequently wrote it into the contract, both parties were bound by it, irrespective of the true interpretation of the specification. If the defendant intended the main roof to have a copper covering, it should have at once rejected that part of the proposal which disclosed the fact that the plaintiffs’ bid was made on a basis of a slag covering. The bank not only did not reject this part of the proposal, but in terms accepted the sixth paragraph of the proposal which included the slag estimate. The sixth paragraph in its entirety became a part of the contract for the construction of the building. The bid of $112;983 was on the basis of a slag covering for the main roof, and it is manifest that if it had been made on the basis of a copper covering for the roof it would have been increased by the difference between the cost of a slag and a copper covering. It was, therefore, the duty of the defendant bank when it received the proposal notifying it that the contractor had made his estimate on a slag roof to reject that part of the proposal and give notice that the roof was to have a copper covering. In the absence of such action by the bank, it cannot now assert that the bid for the work was made on the basis of a copper covering for the main roof.

The learned court below was right in directing a verdict for the plaintiffs, and the judgment entered thereon is affirmed.


text:
    Land Title & Trust Company, Appellant, v. Connolly.

      Corporations — Bonding company — Ten per cent deposit — Insufficient capital — Defective incorporation — Liability of officers and directors— Equity — Remedy at law.

    A creditor of a bonding company cannot for himself and other creditors maintain a bill in equity to enforce a personal liability against the officers and directors of the company because they permitted the company to begin business without having ten per cent of its stock paid in cash at the time the certificate was sworn to, and without having $125,000 of the capital paid in when it started in business, as required by law in case of title insurance companies, when there is no averment that the acts of the defendants caused loss to the corporation or brought about its insolvency, and the claim advanced is for moneys due by the defendants to the plaintiffs directly, and not through the corporation.
    Argued May 10, 1911.
    Appeal, No. 347, Jan. T., 1910, by plaintiffs, from decree of C. P. No. 4, Phila. Co., Sept. Term, 1908, No. 3,911, dismissing bill in equity in case of The Land Title & Trust Company, for itself and all other creditors of Keystone Bonding Company v. Paul V. Connolly et al.
    Before Pell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.

      Bill in equity to impose a personal liability on the officers and directors of a corporation.
    The sixteenth and seventeenth paragraphs of plaintiff’s bill were as follows:
    That said Keystone Bonding Company never had a legal and valid existence as a corporation, but the pretended incorporation thereof was a fraud upon the law of the commonwealth of Pennsylvania in that ten per cent of the capital stock was not paid in cash to the treasurer at the time application was made for its charter, or at any time subsequent thereto.
    That defendants unlawfully engaged in the bonding business under the title of Keystone Bonding Company for the reason that $125,000, the minimum amount of capital stock required by law to be paid up before such company could become authorized to engage in business, was never so paid. The total amount of cash received for the stock of the said Keystone Bonding Company during the entire period it was in existence was only $21,500, which said sum included the sum of $7,500 paid by the purchasers of 150 shares of stock on account of surplus at the rate of $50.00 per share.
    On demurrer to the bill, Audeneied, J., filed the following opinion:
    Our reasons for sustaining the demurrers to the bill in this case may be put quite briefly. The bill avers that the plaintiff is a creditor of a corporation, whose officers and directors, the defendants herein, embarked it in business without first complying with certain prerequisites therefor established by law,* and upon false representations to the officials of the commonwealth that such prerequisites had in fact been complied with. It avers also that the corporation’s business has been discontinued, that steps looking to the settlement of its affairs have been taken, and that certain of its assets have been so disposed of as to work a preference in favor of another of its creditors. Upon these averments the plaintiff, on behalf of itself and all other creditors of the corporation, prays the court to decree that the defendants are hable as partners for all losses caused to it and others through the business transaction carried on by the corporation in violation of law, and to appoint a referee before whom its claims and the claims of all others damnified by such unlawful transactions may be proved.
    The bill contains no averment that the acts of the defendants caused loss to the corporation, or brought about its insolvency.
    If the corporation had sustained a loss at the defendants’ hands, its claims against them might have been enforced by the corporation itself. So long as it was solvent, no right on the part of its creditors to move in the matter would be recognized. If the corporation has become insolvent, its creditors may ask for the appointment of a receiver to collect for distribution among those entitled to participate therein, all the assets that it owns, including whatever claims it may have against its directors, and this is the usual and more orderly method of procedure, although, under certain circumstances, proceedings may be instituted directly against the directors by a corporate creditor acting on behalf of all concerned, to compel the payment of debts or damages demandable from the former by the corporation. The present cause, however, is not one in which the plaintiff is endeavoring to enforce the payment of anything due by the defendants to the corporation. The claim advanced in the bill is for moneys due by the defendants to the plaintiff directly, and not through the corporation.
    If it be conceded that because, under the guise of a corporation, the defendants engaged jointly in a business which the corporation had no legal right to carry on, they have become personally responsible as partners for the debts incurred in the name of the corporation, there is no reason why the plaintiff should not proceed against them at law. The legal remedy for the collection of a debt is ample, even when the debt is owed by several partners.

      The allegation that the plaintiff’s debt was fraudulently contracted in the name of the corporation through false representations that the corporation had a lawful right to engage in business does not serve to justify the intervention of a court of equity, since the redress afforded by law in such a case is as efficacious as any relief that equity can grant.
    The fact that the plaintiff’s bill is filed on behalf of all other creditors of the corporation, as well as its own, far from strengthening the case in equity, may open it to objection on the ground of multifariousness. The claim of each party who gave credit to the corporation stands on its own bottom. Whether any particular creditor of the corporation may enforce a claim for damages against all or any of these defendants depends not only on the making of false statements touching the finances of the corporation, but also on whether the creditor was actually deceived thereby and on other conditions, not all of which were necessarily present in the case of every debt contracted by the corporation.
    Prior to the enactment of the national bankrupt law and the insolvency act of Pennsylvania, the preference of one of its creditors by an insolvent corporation, if there was no fraud in the contracting of the debt or in the trans; fer of the corporation’s assets in payment of it, was entirely lawful, and neither at law nor in equity gave rise to a liability on the part of the corporation’s directors in favor of the remaining creditors. While the legislation referred to has declared that all preferences given by an insolvent corporation, shall, under certain circumstances, enure to the benefit of its creditors generally, it imposes no new liability to the corporate creditors upon the directors or officers concerned in a preferential disposition of the corporate assets. The bill, therefore, cannot be sustained upon the theory that the reinsurance of its risk on its surety bond held by the United States government was a breach of trust by those of the defendants concerned therein for which equity will hold them to account. ■

      July 6, 1911.

      Error assigned was decree dismissing the bill.

      John G. Johnson, with him Guy H. Davies and J. Claude. Bedford, for appellants.
    There was not a bona fide attempt to incorporate the Keystone Bonding Company; the pretended incorporation was fraudulent and based on perjured affidavits, and the company did not obtain a de jure or a de facto existence as a corporation. The corporation being illegally and fraudulently formed, the directors acting or contracting in its name, rendered themselves personally liable as partners for its debts: Guckert v. Hacke, 159 Pa. 303; New York Nat. Exch. Bank v. Crowell, 177 Pa. 313; Patterson v. Franklin, 176 Pa. 612; Mandeville v. Courtright, 142 Fed. Repr. 97.

      Ira Jewell Williams, of Simpson & Brown, for Charles G. Rapp; with him J. B. Colaban, 3d, for Charles H. Wolf, Frank B. Savidge, for William G. Halkett, Edwin O. Michener, for W. L. D’Olier, Boy M. Livingston, for Wm. H. McCormick, and Ormond Bambo, with him William B. S. Ferguson, for Joseph M. Smith, Alfred Y. D. Watterson, John L. Burns, Thomas E. Brehony and John V. McCann.
   Per Curiam,

The decree is affirmed at the cost of the appellants on the opinion of Judge Atjdenried.


text:
    Kinter, Receiver, v. Connolly.

      Corporations — Bonding company — Ten per cent deposit — Insufficient capital — Defective incorporation — Liability of officers and directors— Equity — Jurisdiction—Receivers—Bankruptcy acts.

    1. The receiver of a bonding company has no standing to maintain a bill in equity-to enforce on behalf of creditors of the company a personal liability against the officers and directors of the company because of false representations made by them and because they permitted the company to begin business without having ten per cent of its stock paid in cash at the time the certificate was sworn to, and without having $125,000 of the capital paid in when it started in business, as required by law in case of title insurance companies.
    2. While the national bankrupt law and the insolvency act of Pennsylvania declare that, under certain conditions, any preference given by an insolvent corporation shall enure to the benefit of all its creditors generally, it imposes no personal liability upon the directors or officers of the company concerned in the preferential disposition of the corporation’s assets, to answer to it for such action as a breach of trust.
    Argued May 10, 1911.
    Appeal, No. 348, Jan. T., 1910, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. Term, 1908, No. 3,912, dismissing bill in equity in case of William L. Kinter, Receiver of Keystone Bonding Company v. Paul V. Connolly et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Bill in equity to impose a personal liability on the officers and directors of a corporation. See Land Title & Trust Co. v. Connolly, ante, p. 1.
    On demurrer to the bill Audenried, J., filed the following opinion:
    There are several reasons why the bill filed in this case cannot be sustained, but these are all embodied in the objection that the plaintiff has shown no right to invoke the equitable relief for which he prays.
    The plaintiff is the receiver of the Keystone Bonding Company. As súeh it is his sole duty to hold and administer for the benefit of its stockholders and creditors any property or rights of action that belong to that corporation. He has authority to assert in appropriate proceedings whatever rights of action the corporation had or has against its directors or officers, who are the defendants herein. In the bill before us, however, there is no averment that any act or omission of those of the defendants who demur caused loss or injury to the Keystone Bonding Company. No claim is asserted against them on behalf of the corporation. If the defendants published statements which they knew, or ought to have known, to be false, with the result that their company gained a fictitious credit at the expense of those thus encouraged to do business with it, the wrong was suffered by the latter, and not by the corporation, and gave rise to no liability on the part of the defendants that the corporation or its receiver can enforce. Each person deceived by the statements referred to in the bill, or involved in loss through being induced to deal with a corporation which may have failed to comply with the requirements of the corporation laws, sustained an injury entirely distinct from that suffered by every one else in other transactions. Those deceived by the false statements referred to in the bill have no joint action against even such of the defendants as may have been involved in the frauds perpetrated upon them, and they cannot combine their claims against the defendants in the hands of a trustee, and enforce them in the same proceeding, either in law or in equity. The receiver, who figures as the plaintiff in this case, was not appointed by the court to act as the representative of a syndicate composed of all those who, by reason of false representations made or authorized or negligently permitted by the company’s directors, or some of them, sustained losses, and he has no standing in equity to maintain a bill against the latter as partners to enforce, as a collective liability, all claims for damages in respect of the separate and distinct wrongs which the several parties, who have had dealings with the corporation, have sustained.
    The averment that the reinsurance by the Keystone Bonding Company of its risk on its surety bonds to the United States government was a breach of trust for which the defendants are answerable to that corporation, establishes no right to relief against them on the part of its receiver. Prior to the enactment of the national bankrupt law and insolvency act of Pennsylvania, the preference of one of its creditors by an insolvent corporation, provided there was no fraud in the contracting of the debt, or in the transfer of the company’s assets in payment of it, was entirely lawful, and did not create a liability on the part of the corporation’s directors to answer to it as for a breach of trust. While the legislation referred to has declared that, under certain conditions any preference given by an insolvent corporation shall enure to the benefit of all its creditors generally, it imposes no new liability upon the directors or officers concerned in the preferential disposition of the corporate assets.
    July 6, 1911:

      Error assigned was decree dismissing the bill.

      John G. Johnson, with him Guy H. Davies and J. Claude Bedford, for appellant.

      Ira Jewell Williams, of Simpson & Brown, for Charles G. Rapp, J. B. Colaban, 3d, for Charles H. Wolf, Frank B. Savidge, for William G. Halkett, Edwin O. Michener, for W. L. D’Olier, Boy M. Livingston, for Wm. H. McCormick and Ormond Barrido, for Joseph M. Smith and Alfred Y. D. Watterson.
   Per Curiam,

The decree is affirmed at the cost of the appellants on the opinion of Judge Audenried.


text:
    Drake’s Appeal.

      Taxation — Classification of territory — Appeals—Philadelphia—Act of March 24, 1868, P. L. 448.

    Under the Act of March 24, 1868, P. L. 443, relating to the taxation of real estate in Philadelphia county, no appeal lies from the action of the board of revision of taxes classifying the territory or district in which-real estate is located. An appeal lies to the common pleas from an assessment or valuation, but not from classification.
    Argued May 10, 1911.
    Appeal, No. 58, Jan. T., 1911, by Marian W. Drake, from order of C. P. No. 1, Phila. Co., Dec. T., 1909, No. 2,663, dismissing appeal from Board of Revision of Taxes in the case of Marian W. Drake.
    July 6, 1911:
    Before Brown, Mestrezat, Potter, and Moschzisker, JJ.
    Appeal quashed.
    Appeal from action of the board of revision of taxes in classifying real estate for the purposes of taxation. Before Magill and Kinsey, JJ.
    The court dismissed the appeal after hearing upon the merits.

      Error assigned was in dismissing the appeal.

      John Weaver and John G. Johnson, with them Joseph B. Bhoads and John S. Gerhard, for appellant.

      James Alcorn, city solicitor, with him Mayne B. Longstreth, assistant city solicitor, for appellee.
   Per Curiam,

The appeal heard in the court below was not from the assessment or valuation of the appellant’s real estate, but from the classification of the territory or district in which it is located. By the Act of March 24,1868, P. L. 443, it is made the duty of the board of revision of taxes of the. county of Philadelphia, “immediately after the annual assessment in each year, to classify the real estate so assessed in such a manner and upon testimony adduced before them, as to discriminate between the rural and built up portions” of the city of Philadelphia. The classification required by the act divides real estate in the city of Philadelphia into built up portions, rural or suburban property and agricultural and farm land, and this leads to three rates of .taxation. The tax upon the rural or suburban portion of the city is not to exceed two-thirds of the highest rate of tax required to be assessed, and that upon agricultural and farm land is to be one-half of the highest rate. The act of 1868 has conferred upon the board of revision of taxes the authority to classify real estate within the city of Philadelphia for the purpose of determining what proportion of the general tax rate is to be paid by two of the classes, and no statute allows an appeal from the decision of that tribunal. If the authority conferred upon it should be abused, the power of a court of equity would be adequate to restrain the perpetration of a palpable wrong: Erie v. Reed, 113 Pa. 468. Under the Act of April 19, 1889, P. L. 37, an appeal lies to the common pleas from an assessment or valuation by county commissioners or a board of revision of taxes, but this is very different from classification. Of the assessment or valuation of his property the appellant is not complaining. Appeal quashed.


author: Mr. Justice Potteb,

text:
    Commonwealth v. Comporto, Appellant.

      Criminal law — Murder—Confession—Evidence.
    1. On the trial of an indictment for murder a confession of the prisoner is propérly admitted in evidence where such confession fairly justifies an inference that the prisoner and another man were jointly concerned in the perpetration of a robbery, and that although the killing was done by the other man inside of a building while the defendant was outside, the defendant had knowledge beforehand of the plan.
    2. Where a confession is offered in evidence, and the court strikes out, at the request of the defendant, a portion of it which relates to the defendant’s criminal record, the latter cannot then demand that the whole of the confession should be stricken out on the ground that when a confession is offered it must go in as a whole. In such a case the defendant cannot complain on appeal of the action of the court in excluding, at his own instance, a portion of the confession.
    3. On the trial of an indictment for murder a verdict of guilty of murder of the first degree will be sustained where the evidence tends to show that the defendant and a confederate went to a house in the nighttime for the purpose of robbery, and that according to the defendant’s confession the confederate went inside and did the killing, while the defendant remained on the outside, although the proof of the commonwealth, apart from the confession, did not indicate which of the two did the killing.
    Argued May 10, 1911.
    Appeal, No. 42, Jan. T., 1911, by defendant, from judgment of O. & T. Phila. Co., Nov. Sessions, 1909, No. 213, on verdict of guilty of murder of the first degree in case of Commonwealth v. Michael Comporto.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Carr, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned were in the following form:
    1. That the learned court erred in overruling the objection of counsel for the defendant in the admission of the confession in evidence.
    2. The learned court erred in overruling the motion of counsel for defendant to strike out the portion of the confession that has been admitted in evidence.
    3. The learned court erred in charging the jury as follows :
    Now, therefore, we pass to the next questions of fact. There are two involved; whether the defendant did the shooting, or whether he was there, aiding and abetting; either one thing or the other; either he did the shooting, if you find that fact, or he was there, aiding and abetting.
    4. The learned court erred in refusing to charge the jury as requested in the second point presented by counsel for the defendant as follows:
    It is incumbent upon the commonwealth to prove beyond a reasonable doubt that the deceased was killed by De Massi in the perpetration or attempt to perpetrate a robbery, and also that Comporto was a party to said robbery before it can ask for a verdict of guilty of murder in the first degree.
    5. The learned court erred in refusing to charge the jury in the sixth point as presented by counsel for the defendant as follows:
    July 6, 1911:
    If the jury is not convinced beyond a reasonable doubt that De Ma,ssi killed deceased in the perpetration or attempt to perpetrate a robbery, then they cannot find this defendant guilty as indicted.
    6. The learned court erred in refusing to charge the jury as requested in the tenth point presented by counsel for defendant as follows:
    Under all the evidence in this case the jury cannot find a verdict of guilty of murder in the first degree.

      Charles J. Roney, Jr., and C. Stuart Patterson, Jr., for appellant,
    cited: Com. v. Clark, 130 Pa. 641; Com. v. Greene, 227 Pa. 86; Buck v. Com., 107 Pa. 486.

      Wm. A. Gray, assistant district attorney, with him Samuel P. Rotan, district attorney, for appellee.
   Opinion by

Mr. Justice Potteb,

The appellant, Michael Comporto, was charged with the murder of James F. Quinn during the perpetration of a robbery. He was convicted of murder of the first degree and sentenced therefor. In this appeal his counsel allege in the first assignment of error, that the court below erred in admitting in evidence against their objection, a confession made by defendant. They contend that the confession does not show such knowledge of the criminal design as to make it inculpatory. But with this suggestion we cannot agree. Our examination of the confession, shows that defendant stated that early on the day of the murder, he met the man Frank, otherwise known as De Massi, who said he was going out to do something and get some money; that they were drifting around and drinking together all day; that together they entered Quinn’s saloon in the afternoon and saw a man there counting money; that in the evening they went together to the vicinity of Quinn’s saloon, and hid under cover of a stone wall until about 10:30; that then defendant’s companion went into the saloon; shots were heard almost immediately, and his companion came out with a pistol in his hand and told defendant that he had killed one man, and probably two.; that he had shot one with a revolver in each hand, and had stolen $30.00; and that they went away together in a Germantown car, the murderer saying, “I have money to ride on the car now; come on.” It is plain that the defendant sought to put the blame upon his companion, but the statement was properly admitted as evidence for the consideration of the jury. It fairly justified an inference that the two men were jointly concerned in the perpetration of the robbery, and that defendant had knowledge beforehand of the plan. It also explained his presence at the place of the robbery at the time, and gives his version of the part which he took in the affair.

From the notes of testimony it appears that the commonwealth offered the confession in evidence, and it was admitted against objection. Then defendant’s counsel moved to strike out a portion of the confession, which recited the criminal record of defendant. The commonwealth did not object to this motion, and it was granted. The defendant’s counsel then moved to strike out the remainder of the confession, on the ground that after a portion had been omitted, even though it was at defendant’s request, the remainder was not admissible, as it did not include the whole of the statement. The refusal of this motion is made the ground of the second assignment of error. The portion of the confession which was excluded, admitted defendant’s previous conviction of crime on two different occasions, and his service in prison. On his last sentence he had been released from the penitentiary less than three weeks before the murder for which he was being tried. This would certainly have tended to prejudice the jury against the defendant, and its exclusion was of course to his advantage. It would be mere trifling to accede to his request to exclude a portion of the confession, and then permit him to make the favor a ground of objection against the admission of the remainder of the confession, because it no longer contained the whole of it. When he was permitted to object successfully to the admission of a portion, he must be regarded as having waived his right to the application of the general rule which requires the whole of a confession to go in. We dp not say that there was any error in excluding a portion of the confession at the instance of the defendant, but if there was, the defendant’s counsel cannot complain of it: Pantall v. Coal & Iron Co., 204 Pa. 158; Bigham’s App., 123 Pa. 262.

In the third assignment, counsel for appellant argue that the trial judge, in submitting the facts, practically instructed the jury to find that defendant did the shooting, or was there, aiding and abetting, thus excluding the possibility of his presence at the time with an innocent purpose. But the context shows that, immediately- after using the language complained of, the trial judge charged at length upon the evidence on these points, reminding the jury several times that the conclusions to be drawn from the testimony were entirely for them. Finally he said: “Now, I say those are the questions of fact for you to pass upon. I express no opinion on them whatever. They are for you and for you distinctly.” The sentence of which complaint is made is not as clear in itself as it should have been, but when taken in connection with the context, and with the charge as a whole, we see no room for any misunderstanding on the part of the jury.

In the fourth and fifth assignments complaint is made of the refusal of defendant’s second and sixth points for charge. These points required the jury to find, as an essential to the conviction of defendant, that the shooting was done by De Massi, in the attempt to perpetrate a robbery, and that defendant was a party to the robbery. But the evidence upon the part of the commonwealth, aside from the confession, did not indicate which man did the shooting.-' It indicated that it was done by one or the other. Defendant by his own statement accused De Massi of doing it. The trial judge submitted to the jury the question whether the defendant had done the shooting, or was present, aiding and abetting. This was a proper submission under the evidence.

In the general charge the jury were expressly instructed that in order to convict defendant they “must find that there was a robbery committed, or an attempt to commit a robbery.” The judge further said that, whether a robbery was committed was one of the first facts for the jury to settle and determine. “You will determine whether or not the shooting was with intent and in the attempt to commit a robbery. Because, if you find that the shooting was done in the perpetration of a robbery, or in the attempt to perpetrate a robbery, then you would be warranted in finding the contention of the commonwealth to be correct, that there was a murder committed here by some one in the attempt to perpetrate a robbery.”

The judge also affirmed, without qualification, the first point submitted by defendant, which was: “The mere presence of the defendant at the scene of the crime is not sufficient to charge him with a guilty knowledge of the alleged robbery, and the jury must be satisfied beyond a reasonable doubt that he actually participated in some manner in the said robbery before they would be justified in rendering a verdict of murder in the first degree.”

There was evidence, sufficient if believed by the jury, to warrant the finding that the defendant and De Massi went together to Quinn’s saloon on the evening of the murder, for the purpose of robbing it, and that when De Massi went inside, defendant remained on the outside. It was not material who fired the fatal shot, if the men were united in the common purpose of robbery.

We find no merit in any of the assignments of error, and they are all dismissed.

It is ordered that the judgment be affirmed, and the record remitted to the court below, that the sentence may be executed.


text:
    Commonwealth v. Lee, Appellant.

      Criminal law — Murder—Insanity—Evidence—Presumption of sanity — Preponderation of evidence.

    1. Evidence of insanity set up in defense of one charged with a crime must be preponderating when weighed against the presumption of sanity and the evidence of the commonwealth in support of it.
    2. In a murder case the trial judge cannot be convicted of error in charging as follows: "It is the duty of the prisoner, or some one in his behalf, his counsel, to satisfy you by evidence and by appropriate argument that this man was in such a state of mind at the time the act was committed that he is not to be held responsible for what he did. He is bound to show you by such amount of evidence, a preponderating amount of evidence, that is, an overbalancing amount of evidence, when taken in connection with the evidence on the other side and taken in connection with the presumption of sanity, as will satisfy you, as reasonable men, as intelligent men, that this man did not know what he was about.”
    Argued May 15, 1911.
    Appeal, No. 116, Jan. T., 1911, by defendant, from judgment of O. & T. Phila. Co., Sept. Sessions, 1908, No. 445, on verdict of guilty of murder of the first degree in cáse of Commonwealth v. George Lee.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Willson, P. J.
    At the trial it appeared that the prisoner, a Chinaman, on July 14, 1908, shot and killed Lee Chit, another China-man. The defense was insanity. A large number of experts were called both by the prisoner and the commonwealth, and their testimony was conflicting.
    Verdict of guilty of murder of the first degree upon which judgment of sentence was passed.

      Error assigned was the portion of the charge quoted in the opinion of the Supreme Court.

      A. S. L. Shields, with him Cornelius Haggarty, Jr., for appellant.
    The charge was erroneous: Com. v. Molten, 230 Pa. 399; Coyle v. Com., 100 Pa. 573; Ortwein v. Com., 76 Pa. 414; Brown v. Com., 78 Pa. 122; Pannell v. Com., 86 Pa. 260; Meyers v. Com., 83 Pa. 131; Com. v. Lee, 226 Pa. 283.
    July 6, 1911:

      Wm. Findlay Brown, assistant district attorney, with him Samuel P. Potan, district attorney, for appellee.
   Per Curiam,

The defense of insanity was made for the prisoner, and it was unavailing. The sole assignment of error, asking for a reversal of the judgment passed upon him, is to that portion of the charge of the learned trial judge in which, in commenting on the defense of insanity, he said: “It is the duty of the prisoner, or some one in his behalf, his counsel, to satisfy you by evidence and by appropriate argument that this man was in such a state of mind at the time the act was committed that he is not to be held responsible for what he did. He is bound to show you by such amount of evidence, a preponderating amount of evidence, that is, an overbalancing amount of evidence, when taken in connection with the evidence on the other side and taken in connection with the presumption of sanity, as will satisfy you, as reasonable men, as intelligent men, that this man did not know what he was about.” This was a strictly correct instruction. Evidence of insanity set up in defense of one charged with a crime must be preponderating when weighed against the presumption of sanity and the evidence of the commonweálth in support of it. While we have repeatedly held that it is error to instruct the jury that the evidence of insanity must clearly preponderate, that insanity must be clearly proved, and the jury fully satisfied of it, we have as often said, and as late as Com. v. Lee, 226 Pa. 283, that it must preponderate, and, when it preponderates, it overbalances the presumption and proof of sanity. The words are synonymous. Without overbalancing evidence of insanity, the presumption of sanity stands. The assignment of error is overruled, the judgment is affirmed and the record remitted for the purpose of execution.


text:
    Ehrhart v. Esbenshade, Appellant.

      Landlord and tenant — Distress — Premature appraisement — Trespass — Act of March 21, 1772, 1 Sm. L. 370..

    1. If an appraisement of goods distrained by a landlord for rent be made before the lapse of five full days after the seizure, and be followed by a sale, the landlord is a trespasser and liable in damages.
    2. Where the last day for the replevying of goods levied on under a distress for rent falls on Sunday the tenant has all of Monday in which to replevy them and no appraisement can lawfully be made until Tuesday.
    Argued May 15, 1911.
    Appeal, No. 239, Jan.. T., 1910, by defendant, from judgment of C. P. Lancaster Co., Jan. Term, 1909, No. 40, on verdict for plaintiff in case of Alexander Ehrhart v. Christian B. Esbenshade.
    Before Beown, Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Affirmed.
    Trespass for an alleged wrongful distress. Before Hasslee, J.
    The court charged in part as follows:
    The act of assembly requires the landlord to give notice to the tenant that he must replevy the goods within five days after the levy on the landlord’s warrant has been made. In this case the sheriff, who was the defendant’s bailiff, made the levy on December 8, which was on a Tuesday, and at the same time he gave notice to the plaintiff, Mr. Ehrhart, that he must replevy the goods on or before December 14, which was six days afterwards, as you will observe, or they would be sold in order to raise money to pay the rent. Now it so happened that the fourteenth day of December fell on Monday, and the thirteenth day was on Sunday. In other words, that in order to give the tenant five days in which to replevy these goods he would have until Sunday evening to replevy them. But the courts further hold that where the last day falls on Sunday, the- tenant shall be given the whole of the next day in which to replevy the goods. [In other words, in this case the last of the five days having fallen on Sunday, there could be no appraisement under the law until the fifteenth. Not on the fourteenth, as was done in this case. And, as the goods were appraised on the fourteenth, they were appraised one day sooner than the law allows, and, therefore, the landlord was a trespasser from the very beginning. Any act done under these proceedings was a trespass against the rights of the plaintiff, and any act done subsequently amounted to the same thing.] [4] Nor does it make any difference that the plaintiff suffered no injury in not having been given that full day in which to replevy the goods. In other words, it does not make any difference whether he intended to replevy them or not. The courts hold the landlord to a strict compliance with all the provisions of the law, and as the landlord failed in this particular in this ease, the plaintiff is entitled to recover damages in this proceeding. Of course, this depends upon your believing the testimony, but as that is the testimony on both sides that the appraisement was made on Monday, December 14, which I told you is a day sooner than the law permitted it to be [you can have no difficulty in coming to the conclusion that the plaintiff is entitled to recover.] [5] So that the only question really for your consideration is, what is he entitled to recover.
    The law says in such case the tenant shall recover the value of the goods taken and sold at the time they were taken, and such other injury as he may sustain by reason of having been deprived of their use. Now there is no proof there was any injury sustained here by reason of having been deprived of their use. So the plaintiff can recover nothing on that item. [He can recover the value of the goods, and your verdict should be for the value as you ascertain it from the evidence.] [6]
    Verdict and judgment for plaintiff for $2,350 as damages and $150 for loss and inconvenience. Defendant appealed,

      July 6, 1911:

      Errors assigned among others were (4-6) above instructions, quoting them.

      W. Ü. Hensel, with him W. M. Franklin, for appellant.

      C. E. Montgomery, for appellee.
   Per Curiam,

The goods of the tenant were appraised a day toó soon and the landlord was a trespasser: Davis v. Davis, 128 Pa. 100. A verdict against him was unavoidable, and, though harsh as it seems to be, there is nothing in the assignments of error that would justify us in disturbing it.

Judgment affirmed.