author: Mb. Justice Mestbezat,

text:
    McClintock v. Young Republicans of Philadelphia, Appellants.

      Mandamus—Clubs—Political club—List of members.

    The list of membership of a political club should, at proper times, be open to the inspection of all members, thereby affording to each member an opportunity to aid in carrying out the object of the organization as set forth in its charter.
    Where the directors of a political club and the officer who is the custodian of the list of members of the club have refused to grant to a member an opportunity to inspect the list of membership, such member has a standing to petition the court for a mandamus to enforce his right to an inspection of the list, and the prayer of the petition will be granted, if it appears that the purpose of the inspection was to institute measures to promote the objects for which the club was organized, to prevent the club from being used to further the private political ambitions of any member or group of members, and to oppose the election or re-election of incompetent public officials.

      Mandamus—Parties—Act of June 8, 1893, P. L. 345.
    Where an alternative writ of mandamus has been issued against a corporation and two of its officers to compel the performance of an act which would afford to a member his rights under the charter and by-laws, and it appears in the course of the proceedings that one of the officers named had no power to act in connection with the subject of the controversy, and that such power was vested in the other officer, the peremptory writ may issue against the corporation and the other officer.
    Argued Oct. 12, 1904.
    Appeal, No. 183, Jan. T., 1904, by-defendant, from order of C. P. No. 1, Phila. Co., March T., 1904, No. 1525, granting peremptory mandamus in ease of John McClintock, Jr., v. Young Republicans of Philadelphia, Philip H. Johnson, President, and George L. Harvey, Corresponding Secretary.
    Before Mitchell, C. J., Dean, Fell, Brown, Mesteezat, Potter and Thompson, JJ.
    Affirmed.
    Petition for mandamus. Before Brégy, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was in issuing the writ of peremptory mandamus.

      O. E. Bartlett, with him Robert Brannon, for appellants.
    The petition and reasons set out therein are insufficient. Phoenix Iron Co. v. Com., 113 Pa. 563; Com. v. Phila. & Reading R. R., Co., 3 Pa. Dist. Rep. 115; Rex v. Merchant Tailors’ Co., 2 Barn. & Ad. 115; Com. v. Empire Pass. Ry. Co., 134 Pa. 237; James v. Commissioners of Bucks County, 13 Pa. 72; Commonwealth. v. Rosseter, 2 Binney, 360 ; Smith v. Commonwealth, 41 Pa. 335; Commonwealth v. School Directors, 4 Pa. Dist. Rep. 314; Mercur v. Electric Light, etc., Co., 19 Pa. Superior Ct. 519; Commonwealth v. Henry, 49 Pa. 530.
    The returns of the Young Republicans of Philadelphia, of George L. Harvey, corresponding secretary, and of Philip H. Johnson, president, set up that the relator has not exhausted his remedies under the constitution and by-laws of the association: German Reformed Church v. Seibert, 3 Pa. 282; People v. Baker, 34 Barb. 150; Miller v. Canal Commissioners, 21 Pa. 23.
    The court cannot mould the peremptory writ, and in the absence of an amendment by the relator the court cannot omit from the direction of the peremptory writ a party to the alternative writ: Hopper v. Board of Freeholders, 52 N. J. L. 313 (19 Atl. Repr. 383) ; Domina Regina v. Mayor of Hereford, 2 Salk. 701; Ricker v. Lancaster, 1 Lanc. 92.

      William MacLean, Jr., for appellee,
    cited : Com. v. Phoenix Iron Co., 105 Pa. 111; Com. v. Philadelphia & Reading R. R. Co., 3 Pa. Dist. Rep. 115.
    December 31, 1904:
   Opinion by

Mb. Justice Mestbezat,

■ The association known as the Young Republicans of Philadelphia, one of the defendants in this proceeding, was incorporated by a decree of the court of common pleas No. 1 of Philadelphia county in 1881. The object of the corporation as set forth in its charter is : “ To unite in a social and political organization the young men of Philadelphia; to foster and promote a love for, and a knowledge of, the principles of the republican party ; to educate the young men to a loftier appreciation of their relations to the national, state and municipal governments ; to encourage them to an active participation in the nomination and election of honest and capable public officers by and through the republican party.”

The plaintiff is and has been for several years a member in good standing of the association. In February last, he requested the defendant Harvey, the corresponding secretary of the corporation, to permit him to inspect the list of members and make a copy thereof at a time and place convenient for the purpose. This request being refused, the plaintiff informed the defendant Johnson, the president of the corporation, of the refusal and requested him to authorize Harvey, the corresponding secretary, to allow the inspection to be made. This was also declined, and on March 5, 1904 the plaintiff presented a written communication to the board of directors of the corporation requesting the board to take such action as would afford him an opportunity to inspect the list of members of the association. The board took no action towards granting the request.

Having failed to obtain permission of the directors and officers of the corporation to inspect its list of membership, the plaintiff presented his petition to the court below praying for a mandamus commanding the corporation, its president and corresponding secretary to allow him to inspect the list and make a copy of it. Among the purposes for which the inspection was desired, as averred in the petition, are the following : (a) To institute measures and advocate policies which may tend to promote the objects for which the corporation was organized; (b) to prevent the affairs and property of the corporation from being used to further the private political ambitions of any member or group of members; and (c) to oppose the election or re-election of incompetent officials and to aid in the election of officers who will be faithful to the best interests of the members, and who will administer the affairs of the corporation and control its property in accordance with the purposes for which the corporation was organized.

Separate returns denying the right of the plaintiff to the relief asked were filed by the three defendants. These returns show that the corresponding secretary is an officer elected by the association and subject to the direction of the board of directors; and that one of his duties is “ to keep an accurate roll of the active, non-resident, and honorary member of the association, containing, in the case of the active members, the wards and divisions in which they reside.” It further appears by the return of the president that neither the constitution nor the by-laws of the association empowers him to authorize the corresponding secretary to permit an inspection of the list of members.

The plaintiff filed demurrers to the returns of the association and corresponding secretary which were sustained by the court below and a peremptory mandamus was directed to issue against the association and secretary. No further action was taken against the president of the corporation.

The appellants contend (1) that the reasons set forth in the petition do not warrant the court in granting a mandamus ; (2) that the plaintiff failed to exhaust his remedies under the constitution and by-laws of the association; and (8) that the court could not omit from the peremptory writ a party to the alternative writ.

We do not understand the appellants to controvert the right of a stockholder, under proper circumstances disclosed by his petition, to inspect the records and books of a private corporation. But in this case they deny the sufficiency of the reasons assigned for an inspection of the list of the members of the defendant company by the plaintiff. We are, however, of opinion that the plaintiff is entitled to have furnished him by the appellants a list of the members of the defendant association for the purposes set forth in his petition. These purposes have been quoted above and it is manifest that they are legitimate and lawful and if carried out will promote the best interests of the associátion. It is not only the right but the duty of each member of this organization “ to institute measures and advocate policies” beneficial to the organization, “to prevent.the affairs of the association from being used to further the private political ambitions of a group of members,” and “ to oppose the election or re-election of incompetent officials.” It is for these purposes that the plaintiff demands the right to inspect the list of members of this social and political organization and it is apparent that they are not improper nor hostile to the interests of the association.

We can see no good reason why the officers of this corporation should withhold from any of its members the information desired by the plaintiff. If the purposes of the association, which' are social and political, are to be accomplished and made effective it is necessary that the members should know and communicate with each other. Hence each member should have access to the list of members of the organization, and to deprive him of it is to prevent him from assisting in carrying out the very object for which the corporation was created. Nor is there any sufficient reason shown hero why the officers of the association should, have access to the roll of members of the organization to the exclusion of the other members. All the members are presumed to be equally interested in promoting the welfare of the association and all should be accorded equal privileges in the association for these purposes. To deny the plaintiff the relief he seeks here is, however, to give the officers of the corporation, the custodians of the list of membership, the opportunity to control the association and to use the list, in the language of the plaintiff’s petition, to further the private political ambitions of any member or group of members.” It is, we think, manifest that the list of membership of associations of this character should, at proper times, be open to the inspection of all members, thereby affording to each member an opportunity to aid in carrying out the object of the organization as set forth in its charter.

There is nothing in the contention that the plaintiff failed to exhaust his remedies under the constitution and by-laws of the association to secure the information desired. The petition and returns show that the directors, on written application, failed to furnish the information and that the corresponding secretary, who by the provisions of the constitution is required to, and did, keep a list of the members, refused to permit the plaintiff to inspect it. Having demanded and been refused the information by the board of directors and the corresponding secretary, whose duty required him to keep a list of the membership and who had the list in his possession, the plaintiff laid sufficient ground for the application for this writ. The fact that other, officers were required by the constitution to keep a list of the membership of the association is immaterial, as it is not alleged that it required the joint action of all the officers having possession of the list to give the plaintiff permission to inspect it. The corresponding secretary was the proper custodian of the list of membership and refused the plaintiff an inspection and copy of it because, as alleged in his return, he was not, “ authorized by the board of directors so to do,” As the directors had also refused the plaintiff the information he desired, it is clear that the latter had made such demand upon the corporation and its officer having the custody of the list as would warrant the court in issuing a mandamus.

The name of the president of the corporation was properly omitted from the peremptory writ. This proceeding is regulated by the Act of June 8,1893, P. L. 345. The twenty-seventh section of the act provides that “ the peremptory ' writ shall be directed to the same person as the alternative writ save as herein authorized.” The'seventh section of the act is as follows: “ When the writ is sought against a private corporation .... the alternative writ shall be directed against the corporation by name, and also against any particular person or body of persons connected therewith whom it may be sought to coerce. . . . The peremptory writ may be directed to the said corporation, or to the person or body of persons who have the power and whose duty it is to do the act required, or to such superior officer as would be expected to execute the order.” It will be observed that the court below followed the provisions of this section of the act in issuing both writs. The alternative writ went out against the corporation and the particular persons connected therewith whom it was sought to coerce. A return to the writ having been made by each of the defendants, it appeared that the corresponding secretary was required by the constitution to keep a list of the membership, but that the president of the corporation had no power to authorize the secretary to permit the plaintiff to inspect and make a copy of the list. It is therefore clear that the corporation, by its directors, and the corresponding secretary are the only parties named in the alternative writ, who, in the language of the seventh section of the statute, had “ the power and whose duty it is to do the act required.” This being true, the court below very properly directed the peremptory writ to the corporation and corresponding secretary.

The assignments of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Titus, Appellant, v. Bindley.

      Title—Disputed title—Beal estate—Act of June 10, 1893, P. L. 415— Ejectment.

    On a petition under the Act of June 10, 1893, P. L. 415, entitled “An act to provide for the quieting of titles to land,” the court cannot summarily determine the title to the property on the application for the issue, whether the dispute is over facts or the law arising upon the construction of a written instrument.
    Whenever the adverse claimant relies upon possession, actual or constructive, to oust the jurisdiction of the court under the act, he must establish it without requiring the court on the application for the issue to first adjudge and sustain the validity of his title.
    Where the petition sufficiently avers the petitioner’s claim of title and right of possession, and the respondent’s denial thereof, and the parol testimony shows that the petitioner and those under whom he claimed title had exclusive possession of the land for many years, the court should grant the issue prayed for by the petition.
    Argued Oct. 18, 1904.
    Appeal, No. 152, Oct. T., 1904, by plaintiff, from order of C. P. Greene Co., Sept. T., 1902, No. 11, refusing an issue in case of L. C. Titus v. Edwin" Bindley et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Petition for an issue under tbe Act of June 10, 1893, P. L. 415. Before Craweord, P. J.
    Tbe facts appear by tbe opinion of tbe Supreme Court.

      Error assigned was the order refusing the issue.

      3. O. Staggers and James Inghram, for appellant.
    Time does not begin to run against a privilege reserved in a deed, until some default, negligence or acquiescence is shown, or may be fairly presumed in the party in whose favor such reservation is made: Butz v. Ihrie, 1 Rawle, 218; Nitzell v. Paschall, 3 Rawle, 76.
    Twenty-one years occupation of land adverse to a right of way and inconsistent with it, bars the right: Yeakle v. Nace, 2 Wharton, 123; Price on Limitations and Liens, 118.
    An abandonment by the tenant of demised premises is such a relinquishment as amounts to an implied surrender, and justifies an immediate resumption of the possession by the landlord : McKinney v. Reader, 7 Watts, 123; Kiester v. Miller, 25 Pa. 481.
    A contract in writing for the sale and purchase of land may be abandoned by the vendee, and when his acts and conduct are relied upon as evidence of abandonment it is a question of fact referable to the jury: Colt v. Selden, 5 Watts, 525 ; Grove v. Donaldson, 15 Pa. 128; Read v. Goodyear, 17 S. & R. 350.
    An entry upon a tract of land which had been previously appropriated by warrant, survey and patent, a possession for twenty-one years, and the payment of taxes during that time, is a good title to the whole tract: McCall v. Neeley, 3 Watts, 69.

      A. F. Silveus, with him Willis F. M' Cook, for appellee.
    A grant of a mine right under which the grantee is authorized to remove and sell for his own benefit all the coal contained in a tract described, is a sale of the coal, and not a lease of it, even though the instrument by which the grant is made be drawn in the form of a lease : Kingsley et al. v. Hillside Coal & Iron Co., 144 Pa. 613; Montooth et al. v. Gamble, 123 Pa. 240 ; Lillibridge et al. v. Lackawanna Coal Co., 143 Pa. 293 ; Timlin v. Brown, 158 Pa. 606.
    Where an agreement relating to coal or minerals gives the right to mine and remove all the coal, it constitutes a sale of the coal and operates as a severance of the coal from the surface : Sanderson v. City of Scranton, 105 Pa. 469; Lehigh, etc., Coal Co. v. Wright, 177 Pa. 387; Finnegan v. Stineman, 5 Pa. Superior Ct. 124; Hosack v. Crill, 18 Pa. Superior Ct. 90; Hosack v. Crill, 204 Pa. 97.
    The adverse possession of a mine by the owners of the surface for the statutory period would give title ; but it must be distinct from the possession of the surface. It is unaided by surface rights or occupancy, and the possession must be actual, exclusive, continued, peaceable and hostile : Plummer v. Hillside Coal & Iron Co., 160 Pa. 483; Armstrong v. Caldwell, 53 Pa. 284; Finnegan v. Stineman, 5 Pa. Superior Ct. 124; Del. & Hudson Canal Co. v. Hughes, 183 Pa. 66.
    Constructive possession follows the legal title and every owner is presumed to be in possession until ousted by an actual entry: Kreamer v. Voneida, 24 Pa. Superior Ct. 347; Fallon on Conveyancing, 30; Armstrong v. Caldwell, 53 Pa. 284.
    Where a severance has taken place and the owner of the minerals lias recorded his deed, he does not lose his right or his possession by any length of nonuser: Armstrong v. Caldwell, 53 Pa. 284 ; Kingsley et al. v. Hillside Coal & Iron Co., 144 Pa. 613; Bear Valley Coal Co. v. Dewart, 95 Pa. 72.
    A statement that the petitioner is in possession is one of the facts required to appear in the petition as a condition precedent to his right to become a petitioner, and is one of the facts which the court shall find to be true upon the hearing of the rule, before it shall become the duty of the court to frame an issue: Delaware and Hudson Canal Co. v. Genet, 169 Pa. 343; Huntzinger v. Helfenstein, 10 Pa. C. C. Rep. 576; Welch’s Petition, 29 Pa. C. C. Rep. 161.
    December 31, 1904 :
   Opinion by

Mr. Justice Mestrezat,

This is a proceeding under the Act of June 10, 1893, P. L. 415 entitled “ An act to provide for the quieting of titles to land ” in which the petitioner requested the court below to frame an issue between him and the respondents “ to settle and determine their respective rights and title in and to ” the coal and other minerals in and underlying a tract of land in Dunkard township, Greene county, of which the petitioner alleges he is the owner in fee. The petitioner avers that he and those under whom he claims title have been in possession of said coal and other minerals and have been mining the coal every year since 1864 without being interrupted in their rights of possession and ownership of the same by anyone; that in 1864 Solomon Elliott, then owner of the premises, demised and leased to Charles S. Seaton and G. W. K. Minor, respondents’ predecessors in title, the right of prospecting and searching for coal and other minerals and for salt, oil, carbon and other substances in and upon a tract of land, a part of which is the land above referred to and now owned by the petitioner, but that the search for oil and gas and other minerals under said lease was abandoned in 1878 ; that since that date the petitioner’s right to the coal and other minerals in and underlying said land has not been interrupted or interfered with by the lessees in said lease or their successors in title or by any other person, “ but on the contrary your petitioner has been in the exclusive possession of the said coal and other minerals from that date to the present time. ” A rule was granted on the respondents to show cause why an issue should not be framed to settle and determine the rights of the parties to the coal and other minerals in dispute. The respondents filed an answer in which they aver that under the terms of the lease of 1864 they are the owners and in possession of the coal, oil, minerals and other substances in and under the petitioner’s land and “ are advised and believe that they, and those under whom they claim, have been in the peaceable, notorious and public possession of said leasehold estate from the 4th day of June 1864, down to the present time, with deeds on record; and they deny the petitioner’s claim of possession, and aver that petitioner has no possession, or right of possession to the aforesaid leasehold estate by their deed or adverse possession. ” The answer further avers that the petitioner “ never owned, and was never in possession of the coal, minerals, oil and other mineral substances, nor of the rights and privileges set out in the deed from Solomon Elliott to - Charles S. Seaton and G. W. K. Minor, ” and denies that the petitioner and those under whom he claims have been mining the coal since 1864 without interruption or objection as alleged in the petition. The respondents, therefore, deny the jurisdiction of the court to frame an issue under the provisions of the act of 1893.

The petitioner took testimony to support the averments of the petition, and the case was heard on the testimony, the petition and the answer. The learned trial judge was of opinion that “ upon the facts before us we are obliged to hold that the constructive possession of the coal is in the respondents under the title they have shown here, ” and for this reason discharged the rule for an issue.

The case was thus determined by the trial judge on the merits of the titles of the respective parties and it has been argued here by counsel of both parties as though an issue had been framed and tried in the court below and this was an appeal from the judgment entered on the verdict. The title and rights of the parties to the minerals in dispute are not involved in this controversy and cannot be determined by an interlocutory decree on the rule issued in this proceeding. The only question presented for consideration here is the right of the petitioner to have an issue framed under the statute “to settle and determine their (the parties) respective rights and titles in and to said land. ” Wo are clearly of opinion that under the facts presented to the trial court, the petitioner’s application for an issue should have been granted.

The act of June 10, 1898, provides substantially that when any person shall be in possession of lands, claiming to hold or own possession of the same by any right or title whatsoever, which right or title of possession shall be disputed or denied by any person “and such claim of title and right of possession and the denial thereof ” shall be made to appear to the court, an issue shall be framed in such form as the court shall deem proper between the parties “ to settle and determine the right and title of the respective parties to said land.”

The deed from Elliott to Levi Titus placed in the latter the fee in the tract of land which included the minerals, “subject to such restrictions and leases as are now held on said premises.” The title thus vested in Titus gave him, subject to those restrictions, the right of possession which, as we understand, was followed by actual possession in 1870, when lie received his deed. This possession was held by Titus until his death and was thereafter continued until the present time in his son, the petitioner, his successor in title to the premises. The respondents do not deny these facts but aver that by virtue of the grant or lease of June 4, 1864, by Elliott to Seaton and Minor, the legal title to the minerals in the land became vested in them and through them in the respondents, which gives the latter the constructive possession of the minerals. For this reason the court held that it had no jurisdiction to award an issue under the act of 1893. But to arrive at this conclusion, the learned judge was compelled to assume the functions of the court and jury on the trial of an issue. Whether the respondents have constructive possession of the minerals necessarily depends upon whether they have title and that is the very question which the statute directs shall be determined by the court and jury on an issue framed for the purpose. The court cannot summarily determine the title to the property on the application for the issue, whether the dispute is over facts or the law arising upon the construction of a written instrument: Del. & Hudson Canal Co. v. Genet, 169 Pa. 343. If the court is clothed with the authority to determine the validity of the adverse title on the preliminary question as to whether a rule shall be granted or not, there would be no occasion for an issue in any case. Whenever the adverse- claimant relies upon possession, actual or constructive, to oust the jurisdiction of the court under this act, he must establish it without requiring the court on the application for the. issue to first adjudge and sustain the validity of his title.

The petition in this case sufficiently avers, as required by the statute, the petitioner’s claim of title and right of possession and the respondents’ denial thereof. Under the pleadings and facts presented, the court should, and doubtless would, have found these jurisdictional averments to be true. The decision of the case, however, turned on the question of petitioner’s possession which, as we have seen, the trial judge held to be constructively in the respondents under the lease of 1864, and for that reason denied the jurisdiction of the court to award an issue. This ruling ignored the parol testimony on the subject of the actual possession of the minerals in dispute. In the opinion, the court says: “ The evidence submitted fails to disclose such facts as would amount to actual notice of an adverse holding of the coal since drilling operations were discontinued on the land in 1878 or thereabouts. The taking of coal from veins already opened at irregular periods for domestic use or even for the purpose of sale has- been held insufficient to amount to notice of adverse holding even where it is possible for the statute to run under a hostile entry upon land.” . The learned judge misconceived the purpose of the testimony which he thought was offered to establish title by an adverse tenure. That question, as we have attempted to show, could not be determined on the application for an issue.’ The testimony was competent and relevant, however, for the purpose of establishing the jurisdictional fact that the petitioner was in possession of the coal and other minerals claimed by the respondents and the title to which is in dispute between the parties.

We have read and carefully considered the testimony of the witnesses, all of whom were called by the petitioner. This testimony, if credible, shows that the petitioner and those under whom he claims title have had exclusive possession of the minerals in dispute, except at the intervals during which the lessees and their grantees operated for oil under the lease of 1864 until the operations ceased in 1878 or 1879. This is the concurrent testimony of all the witnesses. Without referring in detail to the testimony, it shows that after the execution of the lease the lessees began operations for oil, which were continued at intervals till about 1879, when the owners of the lease removed their machinery and abandoned the leased territory. The Pittsburg or River vein of coal outcropped on the land and during the period of the oil operations one opening was made into it and coal was mined and removed by the lessees and used in operating the machinery at the oil wells being drilled by them. But during the same period the coal was also mined and removed from the same opening by the owner of the land and he “ was using it for himself and delivering some to oil wells in that country at that time.” With the exceptions noted, the uncontradicted testimony shows that the holders of the lease never exercised any acts of ownership over the land or the minerals in the land now owned by the petitioner. It further appears that since the abandonment of the leased territory by the lessees in 1879, Elliott’s successors in title have claimed the minerals in the land and have “ off and on ” mined and removed the coal from the opening made during the oil operations. The minerals were never assessed separately, but the land was assessed as an entirety to the petitioner and his predecessors in title and the taxes were paid by them.

We are therefore of opinion that the testimony, taken in connection with the fact that the petitioner is the owner of the whole body of land except such rights therein as the respondents acquired under the lease of 1864, is sufficient to show such possession of the property in dispute as will confer jurisdiction on the court under the act of June 10, 1898. Regarding the testimony as verity, there was no actual possession taken of any of the minerals in the land by the holders of the lease of 1864, except such as resulted from drilling for oil on the premises. The only other act which tends to show a claim of title and actual possession of the minerals by the lessees was the mining of coal during the oil operations. But in considering this fact as bearing on the question of possession and, possibly, title, it must be observed that the lease itself confers this authority on the lessees by providing that they shall have “ the free use of as much wood and coal as may be required to operate the machinery in sinking or pumping any and all wells that may be sunk by the said parties (Seaton and Minor), their heirs, etc.”

We express no opinion on the merits of the title of either party or on the questions suggested by the pleadings and for the consideration of the court and jury on the trial of the issue. We only decide that on the facts disclosed in the court below an issue should have been framed as prayed for in the petition to determine the titles of the parties to the minerals in dispute.

The order discharging the rule and refusing an issue is reversed, and it is now ordered and decreed that the court below frame an issue as provided by the statute to settle and determine the titles of the respective parties to the coal and other minerals in and underlying the land described in the petition. The costs of this appeal to be paid by the appellees.


author: Mr Justice Potter,-

text:
    Durham v. Wick, Appellant.

      Vendor and vendee—Purchase money—Parol contract.

    A buyer can recover from the seller for breach of a parol contract to sell and convey land so much of the purchase money as was actually paid.

      Vendor and vendee—Purchase money—Parol contract—Bankruptcy.

    The refusal by a vendor in a parol contract for the sale of land to execute and deliver a deed, excuses the vendee from the necessity of tendering payment in order to recover the money paid.
    In an action by a trustee in bankruptcy to recover money paid by the bankrupt on account of a parol contract for the purchase of land, the plaintiff is entitled to recover where it appears that the defendant had refused to make a deed for the land to the trustee, and that after the suit was brought, but before the trial he had leased the land to another party.
    Argued Oct. 19, 1904.
    Appeal, No. 171, Oct. T., 1904, by defendant, from judgment of 0. P.. Butler Co.,. Sept. T., 1908, No. 12, on verdict for plaintiff in caso of E. A. Durham, Trustee in Bankruptcy of Estate of Amos Steelsmith v. L. C. Wick.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit for money had and received. Before Gal-lee ath, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,690.93. Defendant appealed.

      Errors assigned were various instructions and particularly the refusal of binding instructions for defendant.

      J. D. Marshall, with him W. Z. Murrin, for appellant.
    The plaintiff must offer the balance of the purchase price, before he can maintain his action to recover the part of the purchase money paid. He has no standing in court until he has made a tender of the balance of the purchase money: Allison v. Montgomery, 107 Pa. 455; McGrew v. Foster, 113 Pa. 642; Power v. North, 15 S. & R. 12; 2 Parsons on Contracts, 5th ed., 679; Irvin v. Bleakley, 67 Pa. 24 ; Bell v. Clark, 17 W. N. C. 44.
    Where a person has paid money upon a parol contract for the purchase of lands which is void or voidable by the statute of frauds, he cannot maintain an action to recover back the money so paid, so long as the other party to whom the money has been paid is willing on his part to perform the contract: Collier v. Coates, 17 Barbour (N. Y.), 471; Dowdle v. Camp, 12 Johnson (N. Y.), 451; Abbott v. Draper, 4 Denio (N. Y.), 51; Coughlin v. Knowles, 48 Mass. 57; Shaw v. Shaw, 6 Vermont, 69; Duncan v. Baird & Co., 8 Dana (Ky.), 101; Richards v. Allen, 17 Maine, 296; Lane v. Shackford, 5 N. H. 130.

      T. C. Campbell, with him W. D. Brandon, for appellee.
    Under the authorities it is not necessary that Durham, as trustee, should make a formal tender of the purchase money and demand a deed; it is only necessary that the plaintiff should show Wick’s inability or unwillingness to carry out his contract by making the deed: Allison v. Montgomery, 107 Pa. 455; Gillet v. Maynard, 5 Johnson (N. Y.), 85; Coughlin v. Knowles, 48 Mass. 57; Cobb v. Hall, 29 Vt. 510; Galway v. Shields, 66 Mo. 313; Day v. Wilson, 83 Ind. 463.
    December 31, 1904:
   Opinion by

Mr Justice Potter,-

The appellant, L. C. Wick, prior to 1899, was the owner of a planing mill property in Butler, Pennsylvania. On or about January 10, 1899, he entered into a parol contract with Amos Steelsmith to convey to the latter a one-half interest in this property for $4,500. In pursuance of this contract Steel-smith gave Wick three promissory notes, payable in six, twelve and eighteen months, for $1,500 each. Wick retained possession of the entire property. Subsequently Steelmith paid one of the notes in full, and $500 on account of another, in all $2,000.

On March 25, 1901, Steelsmith filed a petition in bankruptcy in West Virginia, where he resided, was adjudicated a voluntary bankrupt, and E. A. Durham was appointed trustee of his estate. This suit was brought by Durham, as such trustee, to recover from Wick, the $2,000, paid by Steelsmith on account of the notes, with interest. In defense, Wick averred that he had always been willing to execute and deliver to Steelsmith, or to anyone designated by him, upon payment of the balance of the purchase money, a proper and legal deed for an undivided one-half interest in the mill property, and had so notified the plaintiff. He further claimed that the failure of Steelsmith or his trustee, to tender at any time the unpaid balance of the purchase money, would prevent the recovery by either of them of the amount actually paid. After the appointment of the trustee in bankruptcy, there was some correspondence between his attorneys, Merrick & Smith of Parkersburg, West Virginia, and Wick. On November 4, 1902, they wrote him a letter in which they referred to a previous letter, containing a suggestion that he should buy Steelsmith’s interest- in the property and in the meantime pay a reasonable rent for the use of the one-half interest, and requested an answer. On November 6, 1904, J. D. Marshall, an attorney of Butler,' wrote to Merrick & Smith, saying that Wick had handed him their letter of the 4th inst., that Steelsmith had no interest in Wick’s property; that there was a verbal agreement by which Wick agreed to convey to Steelsmith an undivided one-lialf interest upon payment of a certain sum, of which only a small part had been paid; that upon payment in full of the purchase money and interest, Wick would keep his word with Steelsmith and convey to him the property, but to no one else; and that Wick would not accept any pro rata of the purchase money, nor convey to any other person than Steelsmith, as the latter had no interest that could be conveyed or taken for debt.

It appears from the evidence that on March 25, 1904, after suit brought and before the trial, which began April 21,1904, the defendant leased the property in question to the Iceless Refrigerator Company for the term of one year.

Upon the trial the court declined to give binding instructions for the defendant and instructed the jury (1) that if they believed that the letter from Marshall to Merrick & Smith, dated November 6, 1902, was authorized by Wick, it was a refusal by Wick to recognize the interest of the plaintiff in the property or to make a deed to him, and entitled the plaintiff to recover from Wick the purchase money paid by Steel-smith ; and (2) that if they found that, under the parol contract, the title of the property was to be in fee simple, free of all incumbrances, the lease to the Iceless Refrigerator Company was inconsistent with the tender of the deed by defendant, and placed defendant in a position where he could not carry out his contract. The jury found for the plaintiff for the full amount of his claim with interest.

The first and controlling question to be determined, is whether or not tine letter of November 6, 1902, written in behalf of Wick, was such a refusal to carry out the terms of the contract of sale on the part of the vendor, as would enable the vendee, or his trustee, to rescind, and sue for the purchase money paid on account. Of course, if the vendor had in no way repudiated the contract, the vendee would be obliged to tender the entire amount of the purchase money, before he would be entitled to disaffirm, and sue for the amount already paid on account. But, on the other hand, the refusal of the vendor to perform his part of the contract, would discharge the vendee from further responsibility and entitle him to claim at once repayment of the part of the purchase money previously paid. In Milligan v. Dick, 107 Pa. 259, Justice Trunkey said (p. 265 ) : “No principle is better settled than that the buyer can recover from the seller, for breach of a parol contract to sell and convey land, so much of the purchase money as was actually paid. ”

Was there then a breach in this case upon the part of the vendor? Turning to his letter of November 6, 1902, we find that Wick, through his attorney, declared explicitly that Steel-smith had no interest whatever in the property. And while admitting the verbal agreement for the sale to him of a half interest, stated that he would only convey to Steelsmith personally and to no one else; and refused to make a deed to any other person. The trustee could only have understood this letter as a flat and specific refusal to convey the interest in the property to him, and he was we think justified in regarding it as a breach of the contract, by the vendor, and a relinquishment of his right to further performance by the vendee. The intention upon the part of Wick to ignore the contract, in so far as making under it a deed to the plaintiff is concerned, could hardly have been more plainly stated. The letter expressed a determination to prevent the trustee, and through him the creditors, from obtaining any interest in the property, upon the theory that the contract, not being in writing, could not be enforced in law. Refusal to convey to the trustee under such circumstances was a repudiation of the agreement to convey to Steelsmith for “stated broadly, the rule is that the trustee takes all the property of the bankrupt, whether in possession or in action, at the time the petition was filed: ” Collier on Bankruptcy, 4th ed., 509. Having refused to convey to the trustee, the defendant ought not to complain that he was taken at his word. By his action, he relieved the plaintiff of the necessity of tendering the full amount of the purchase money. The present action is in disaffirmance of the contract, by reason of the failure of the vendor to perform. As was said by this court in Bell v. Kennedy, 100 Pa. 215, 221: “ If this action were in affirmance of the contract, it would be necessary to show a readiness or willingness on the part of the vendee to perforin, but it is in disaffirmance thereof by reason of the inability and failure of the vendor to perform. His performance was a condition precedent to his right to require any payment from the vendee. The latter therefore had the right to recover the money which he paid under a misapprehension, and which the vendor was not entitled to receive: Moore v. Shelly, 2 Watts, 256; Robison v. Tyson, 46 Pa. 286 ; Crossgrove v. Himmelrich, 54 Pa. 203.”

In the last cited case, Justice Thompson said (p. 209): “ The defendants contend that there was not (a proper case for rescission shown) because the plaintiffs did not tender at the time they claimed to rescind the contract, an entire performance on their part. An offer of a readiness or willingness to pay for the hay would have been material if the action had been in affirmance of the contract: Robison v. Tyson, 46 Pa. 286. But this is an action in disaffirmance of the contract, to recover back the price paid. A tender or offer of the money which would be due on the completion of the contract, was not essential, when it appeared otherwise that the plaintiff had fully complied with his part of the contract up to the time of electing to rescind it... . Here was a failure to complete the contract by the defendants, and under these circumstances the plaintiffs were entitled to rescind and to recover so much money as they had advanced on the contract beyond the hay received.”

So in Forsyth v. North American Oil Co., 53 Pa. 168 (174), it was held that a refusal by the vendors, in a contract of sale, to deliver the goods agreed to be sold excused the vendees from the necessity of tendering payment, in order to recover the money paid.

In the present case, our conclusion is that the vendor was in default, by reason of his refusal to convey to the trustee, and that this default rendered unnecessary a tender of the full amount of the purchase money by the vendee, before rescinding the contract. Then again the conduct of the vendor in leasing the property to a third party, prior to the trial, was evidence not only of his unwillingness but of his inability to carry out at that time the original contract. The lease constituted an incumbrance upon the title : Cross v. Noble, 67 Pa. 74 ; Wilson’s Appeal, 109 Pa. 606.

We find nothing in the specifications of error which would justify us in sustaining any of them. They are all overruled, and the judgment is affirmed.


author: Mb. Justice Fell,

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

      Married woman—Agreement to sell land—Option—Acknowledgment—Act of April 4,1901.
    Since the Act of April 4, 1901, P. L. 67, a married woman may make a binding contract or option for the sale of her real estate by a written agreement in which her husband joins, without acknowledgment.
    Argued Oct. 12, 1904.
    Appeal, No. 15, Oct. T., 1904, by plaintiff, from decree of O. P. Somerset Co., Equity Docket 1908, No. 7, dissolving an injunction in case of Mary A. Jenkins v. Pittsburg & Connellsville Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Kooseb, P. J.
    From the record it appeared that the plaintiff, a married woman, on November 6, 1901, entered into a written option, in which she was joined by her husband, giving the defendant company a right to purchase five acres of her land for a stated price within sixty days. The option was accepted by the defendant within the time named, and entry upon the land was made. Subsequently disputes arose as to the terms of the deed to be executed by the plaintiff, and plaintiff repudiated her agreement of option on the ground that she had not acknowledged it.
    The court granted a preliminary injunction which it subsequently dissolved.

      Error assigned amongst others was decree dissolving the injunction.

      W. 3. Muppel, with him A. 3. Ooffroth, for appellant.
    Numerous cases are to be found in which the deed was set aside, or entirely ignored because of a mere defect in the acknowledgment, and no case can be found in which the deed of a feme covert was supported without a proper acknowledgment: Watson v. Bailey, 1 Binn. 470; Kirk v. Dean, 2 Binn. 341; Wonder v. Phelps, 109 Pa. 172.

      The same rule has been applied as to articles of agreement to convey: Clark v. Thompson, 12 Pa. 274; Miltenberger v. Croyle, 27 Pa. 170.
    Positive acts of encouragement that sometimes operate to estop one sui juris, will not affect one under a legal disability: Glidden v. Strupler, 52 Pa. 400; Stivers v. Tucker, 126 Pa. 74 ; Kaiser’s Est., 14 Pa. Superior Ct. 155.

      W. S. Koontz, with him J. Gr. Ogle, for appellee.
    December 31, 1904:
   Opinion by

Mb. Justice Fell,

Prior to the Act of April 4, 1901, P. L. 67, it was uniformly held that the interest of a married woman in real estate could be divested only in the way prescribed by the Act of February 24, 1770, l’Sui. L. 307, and that in relation thereto she was not affected by acts or declarations which in the case of a feme sole would operate as an estoppel. Without a separate acknowledgment her agreements touching her land were void, and could not be enforced at law nor in equity. It was decided in Bingler v. Bowman, 194 Pa. 210, that the Act of June 8, 1893, P. L. 344, did not alter the established rule and that the unacknowledged contract of a married woman for the exchange of her real estate could not be enforced. The ground of the decision is that, while the act enlarged the powers of a married woman, the mode of their exercise as to the conveyance of land as prescribed by the act of 1770 was left undisturbed, and that an essential part of this was the separate examination and acknowledgment of the wife. It was said in the opinion: “ The purpose of the act of 1770 was twofold, first, to prevent the wife from selling her land without the husband’s consent, secondly, to prevent compulsion on her to make sale against her real willingness. The first object was secured by her husband’s joinder in the deed, the second by the separate examination and acknowledgment of the wife. Both are parts of the system established by the act, and both are necessarily exempted from change by the clear intent of the later acts to preserve the system intact.”

The reason on which the decision is based, that the act of 1893 made no change in the prior law as to the requirement of separate examination and acknowledgment, no longer exists because a change has been made by subsequent legislation. The Act of April 4, 1901, P. L. 67, provides that acknowledgments of a married woman shall be taken in the same manner and form as though she were a feme sole, and gives to such an acknowledgment “ The same force and effect as if taken separate and apart from the husband of said married woman.” The Act of 1893 gives a married woman the same power that a feme sole has to sell her real estate except that she may not make a valid conveyance unless her husband joins in the deed. The act of 1901 dispenses with the requirement that there should be a separate acknowledgment. She is therefore empowered to make a binding contract for the sale of her real estate by a written agreement in which her husband joins, without acknowledgment.

The plaintiff on November 6, 1901, entered into a written agreement in which she was joined by her husband, which gave the defendant company the option to purchase five acres of her land for an agreed price within sixty days. The option was accepted by the company within the time mentioned and at her request, made by her husband acting as her agent, it entered upon the land and marked out the lines of the proposed extension of its road. A dispute arose as to some of the terms of the deed tendered for execution. Concessions were made by the company, and while negotiations as to the terms of the deed were pending and after the company had completed a third of a mile of the road on the land, the plaintiff repudiated her agreement and demanded a larger price. The agreement gave the company an equitable estate in the land, and the injunction was properly refused. The decree is affirmed at the cost of the appellant.


author: Mb. Justice Thompson,

text:
    Citizens Natural Gas Company, Appellant, v. Waynesburg Natural Gas Company.

      Affidavit of defense—Practice, C. P.—Affidavit by stranger.

    When a defendant puts in a stranger’s affidavit of defense, it must show upon its face sufficient reason why it is not made by the defendant himself; and that a real disability existed which prevented him from making it; and the circumstances giving rise to the disability.
    Where a party on the record is unable to make the affidavit of defense by reason of sickness or absence, his clerk, or anyone who has knowledge, may make the affidavit, and a stranger who is interested in the defense of a suit may make the affidavit of defense.
    In an action against a corporation affidavits of defense made by strangers to the record will bo sustained, where it appears on the face of the affidavits that the affiants were stockholders of the corporation, that they were consequently parties in interest, that they were the only persons having knowledge of the facts, that there were no corporate officers, and that in making the affidavits they acted as agents of the defendant.
    Argued Oct. 18, 1904.
    Appeal, No. 107, Oct. T., 1904, by plaintiff, from order of C. P. Greene Co., Peb. T., 1904, No. 68, discharging rule for judgment for want of a sufficient affidavit of defense in case of Citizens Natural Gas Company to use of A. A. Purnam, Jr., v. Waynesburg Natural Gas Company and The Manufacturers Light and Heat Company.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense. Before Cbaweobd, P. J.
    The material averments of the affidavit of defense are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      James J. Purnam, with him Joseph Patton, D. O. Oumpston and J. W. Pay, for appellants.
    Affiants aver that they and the defendants have a defense but no facts are stated which would at all show that they are directly interested in the event of the suit, without which the defendants cannot interpose a stranger’s affidavit, in the absence of the averment of sickness or absence : Potts v. Crabb, 2 Wharton, 177; Cowperthwait v. Roney, 10 W. N. C. 482, 483; City, to use, v. Gross, 2 W. N. C. 429; Clymer v. Fitler, 1 W. N. C. 626; Blew v. Schock 1 W. N. C. 612; City, to use, v. Devine, 1 W. N. C. 358; Stollaker v. Lardner, 1 W. N. C. 169.
    Again plaintiffs’ statement charges that defendants are corporations and, therefore, plaintiffs are entitled to have the affidavit of the corporate officers, under the corporate seals: Erie Boot & Shoe Co. v. Eichenlaub, 127 Pa. 164; Smith v. Theatrical Assn., 5 Pa. Dist. Rep. 326; Felker v. Wise, 6 Northampton, 137; City to use of Miller v. Peterson, 3 W. N. C. 292; Snyder v. Hass, 7 Northampton, 205; Albright v. Fritz, 21 Pa. C. C. Rep. 444.

      James Inghram, with him S. M. Smith, for appellees.
    All courts of record have power to make rules of practice, not in violation of the law of the land; and they are the most proper judges of the extent and application of their own rules : Snyder v. Bauchman, 8 S. & R. 336; Umberger v. Zearing, 8 S. & R. 163 ; Wickersham v. Russell, 51 Pa. 71; Frank v. Colhoun, 59 Pa. 381; Coleman v. Nantz, 63 Pa. 178; Gannon v. Fritz, 79 Pa. 303.
    An affidavit of defense made by a third person interested in the event of the suit, is sufficient to prevent judgment by default, tinder the- Act of March 28, 1835, P. L. 88, relating to the district court, and it seems that where the party on the record or in interest is unable to make such affidavit by reason of sickness or absence, his clerk, or any person who has knowledge of the transaction, may make the affidavit: Sleeper v. Dougherty, 2 Wharton, 177.
    Under the Act of April 21, 1852, P. L. 386, a stranger to the record, who is interested in the defense of the suit, is competent to make affidavit of defense so as to prevent judgment by default: Hunter v. Reilly, 36 Pa. 509; Griel v. Buckius, 114 Pa. 187.
    December 31, 1904:
   Opinion by

Mb. Justice Thompson,

A court without doubt is the best interpreter of its own rules and its constructions of them ought to be authoritative. The court below made the following rule: “ All affidavits on the part of the plaintiff or defendant may be made either by the party or his agent, but when made by an agent, the character of such agency, and his means of knowledge of the facts alleged in his affidavit must be set forth, and also the reason why the affidavit is not made by the party himself.” The effect of this rule is involved in the compliance with it of certain persons making affidavits of defense in the present case, growing out of a contract between appellant company and the Waynesburg Natural Gas Company, one of the appellees.

The affidavits were made by J. B. F. Iiinehart et al. The original affidavit set up a defense to the action and the supplemental one was directed solely to the authority to make the affidavit in question. In the supplemental affidavit they aver that they made the original affidavit for themselves and as agents for the appellee company and that the reason for making the same is “that they are the only persons having any knowledge of the facts set forth in plaintiff’s statement, or the answers filed by them; that no answer is filed by the said Waynesburg Natural Gas Company by its corporate officers, for the reason that there are no corporate officers, of said company, as the same has been mei’ged by letters patent, issued by the commonwealth of Pennsylvania, into the Manufacturers Light and Heat Company; that no answer has been filed by the Manufacturers Light axxd Heat Compaxxy, by its corporate officers, under its corporate seal, for the reason that said company or its officers have no knowledge whatever of the matters embraced in this action or with any of the matters set out ixx plaintiff’s statement or the answer heretofore filed. That the answer is filed by these affiants at the request of the officers of the Manufacturers Light and Heat Company, for the reason that they are the only persons having any interest in the Waynesburg Natural Gas Company, at the time the contract referred to was entered into, and the only persons who could answer the matters set out in plaintiff’s statement.” They also aver that they were the owners of all the capital stock of the Waynesburg Natural Gas Company at the time the agreement sued upon was executed and are directly interested in the event of this suit. Upon the affidavit the learned judge below held that under the rule of court the affiants were competent to make the affidavit and he said: “ The affidavits in this case fully show upon their face the character of the agency of the affiants and that they are the only persons who have knowledge of the facts involved in the issue raised. This not only meets the requirements of our rule of court, but conforms to what Mr. Justice Paxson, in the case of Griel v. Buckius, 114 Pa. 187, states as the correct rule of law on the subject:

“ The correct rule would seem to be that when a defendant puts in a stranger’s affidavit, it must show upon its face sufficient reason why it is not made by the defendant himself; that a real disability existed which prevented him from making it and the circumstances giving rise to the disability.”

The supplemental affidavit avers that the affiants acted as the agents of the appellees and that they filed the affidavits at their request; that they were the only persons who had knowledge of the defense and that they were directly interested in the event of the suit. It therefore shows a sufficient reason for the failure of the appellees to make the affidavit; that the affiants are not interlopers and have an interest in the suit; that a legal reason is given therein by the appellees for not making the affidavit by the corporate officers and that a disability does exist. Clearly therefore the supplemental affidavit shows that affiants were competent and authorized to make the original affidavit of defense and the supplemental one. It may be said that where a party on the record is unable to make the affidavit by reason of sickness or absence, his clerk or anyone who has knowledge may make the affidavit; that a stranger who is interested in the defense of a suit may make the affidavit of defense : Sleeper v. Dougherty, 2 Wharton, 177; Hunter v. Reilly, 86 Pa. 509.

The learned trial judge was guilty of no error in discharging the rule for judgment for want of a sufficient affidavit of defense and the order discharging the rule is affirmed.


author: Mb. Justice Feel,

text:
    Olive Stove Works v. Fort Pitt Gas Company, Appellant,

      Negligence—Natural gas—Explosion—Question for jury.

    In a case against a gas company to recover damages for destruction of a building and machinery by lire resulting from the explosion of natural gas, it appeared that when the fire in the building subsided, gas was seen burning along the basement wall three feet from the ground for a distance of twenty feet and in such quantities that the flames extended six feet in height. This gas came from the defendant’s high-pressure line of pipes, which was under the surface of the public street and within six feet of the basement wall. Opposite the place where the gas was burning, the defendant had constructed a gate to control the flow of gas. The gate was inclosed in a box which was covered with a cast-iron lid. The gas escaped through a crack in the gate about a foot in length and was forced through the intervening ground under the cement pavement into the plaintiff’s building. Whether the crack was old and the gate had been repaired by placing cement around it, or whether it was new and had been caused by the explosion, whether there was a sufficient number of holes in the lid of the box, whether the holes were open or plugged, and whether it was necessary to provide perforated lids to permit the escape of gas which might leak at the gate or escape at other places along the line and find its way into the box, were all disputed questions at the trial. Held,, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 19, 1904.
    Appeal, No. 110, Oct. T., 1904, by defendant, from judgment of C. P. Beaver Co., June T., 1903, No. 255, on verdict for plaintiff in case of Olive Stove Works v. Fort Pitt Gas Company.
    Before Mitchell, C. J., Dean, Fell, Blown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for tbe destruction of a building and machinery by an explosion of natural gas. Before Wilson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $37,796.93. Defendant appealed.

      Error assigned amongst others was in submitting the case to the jury.

      William B. Rodgers, with him Weyand Moorhead, for appellant.

      W. M. S. Thompson, with him J. R. Martin and J. 0. Martin, for appellee.
    December 31, 1904 :
   Opinion by

Mb. Justice Feel,

The main question argued and the only one that need be considered is whether there was sufficient evidence of the defendant’s negligence to warrant the submission of the case to the jury. The plaintiff’s works were destroyed by an explosion of natural gas, which blew down a part of the walls and set fire to the buildings, machinery and stock. When the fire in the building subsided, gas was seen burning along the basement wall three feet from the ground for a distance of twenty feet and in such quantities that the flames extended six feet in height. This gas came from the defendant’s high-pressure line of pipe which was under the surface of the public street and within six feet of the basement wall. Opposite the place where the gas was burning, the defendant had constructed a gate to control the flow of gas. The gate was inclosed in a box which was covered with a cast-iron lid. The gas escaped through a crack in the gate about a foot in length and was forced through the intervening ground under the cement pavement into the plaintiff’s building. Whether the crack was old and the gate had been repaired by placing cement around it, or whether it was new and had been caused by the explosion, whether there was a sufficient number of holes in the lid of the box, whether the holes were open or plugged, and whether it was necessary to provide perforated lids to permit the escape of gas which might leak at the gate or escape at other places along the line and find its way into the box, were all disputed questions at the trial. They were all however questions of fact, which the court could not decide without assuming the functions of the jury. The objections to the parts of the charge which allowed a recovery for rental value in addition to the value of the property destroyed and an allowance equivalent to interest thereon, are all eliminated by the verdict, since it appears from the record that it included only the loss of buildings and personal property.

The judgment is affirmed.


text:
    Weist v. Wuller, Appellant.

      Contracts—Obligation of contract—Remedy—Constitutional law—Act of June 4, 1901, P. L. 404.
    The legislature may modify or suspend for a definite and reasonable time a remedy it has given, but it may not by acting on the remedy impair the obligation of a contract. Remedies which affect the interests and rights of the parties and are made the subject of contracts for the purpose of enforcing it become an essential part of the obligation, and a right of the creditor which cannot be impaired by subsequent legislation.
    Where a defendant in a confessed judgment has waived any stay of execution, his assignee for creditors has no standing under subsequent legislation, such as the Act of June 4, 1901, P. L. 404, to ask for a stay.
    Argued Oct. 19, 1904.
    Appeal, No. 75, Oct. T., 1904, by defendant, from order of C. P. Butler Co., Dec. T., 1903, No. 54, discharging rule to stay and set aside execution in case of Joseph Weist v. Mary Wuller, Johanna Wuller and John J. Kohler, Assignee for creditors.
    Before Mitchell,C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Rule to stay and set aside execution. Before Galbreath, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the order discharging the rule.

      Lev McQuiston, with him J. C. Vanderlin and Thomas Robinson, for appellant.
    The legislature has the power to enact a law which changes the method of enforcing contracts existing at the time such a law is passed: Breitenbaeh v. Bush, 44 Pa. 313 ; Coxe v. Martin, 44 Pa. 322; Koshkonongv. Burton, 104 U. S. 668; Terry v. Anderson, 95 U. S. 628; Musser y. Brindle, 23 Pa. Superior Ct. 37; Zacharias y. Imperial Stain, etc., Co., 11 Pa. Dist. Rep. 171.

      T. C. Campbell, with him F. J. Forquer, W. Z. Murrin and John Murrin, for appellee.
    The act of 1901, as to the claims of Joseph Weist, is unconstitutional as impairing the obligation of his contract: Pannebaker v. Bitting, 11 Pa. Dist. Rep. 537 ; Smith’s Est., 13 Pa. Dist. Rep. 80; Smith v. Speakman, 10 Pa. Dist. Rep. 699; Shonk’s Insolvency, 11 Pa. Dist. Rep. 298; McMullen’s Petition, 26 Pa. C. C. Rep, 157; Louisiana v. New Orleans, 102 U. S. 203 ; Bronson v. Kinzie, 42 U. S. 311; Green v. Biddle, 21 U. S. 1; Deichman’s App., 2 Whart. 395; Bunn v. Gorgas, 41 Pa. 441; McCracken v. Hayward, 43 U. S. 608; Gantly v. Ewing, 44 U. S. 707; Howard v. Bugbee, 65 U. S. 461; Phinney v. Phinney, 81 Me. 450 (17 Atl. Repr. 405).
    A law passed after the contract is made exempting additional property from sale is unconstitutional as impairing the obligation: Edwards v. Kearzey, 96 U. S. 595.
    December 31, 1904:
   Opinion by

Mb. Justice Fell,

The defendants in a judgment confessed in 1892 “ without stay of execution,” having failed in an application to the court to set aside a writ of execution against their real estate, made an assignment for the benefit of their creditors. The assignee obtained a rule to show cause why the writ should not be stayed, which after hearing was discharged. This appeal is from the order discharging the rule. The sole ground for the first application for a stay was that an advantageous sale could not then be made because of uncertainty as to the title to the real estate, and the sole purpose in making an assignment, the debt being admittedly due and the debtors solvent, appears to have been to secure another and possibly better chance to gain time by having the assignee invoke the provisions of sections 16 and 19 of the Act of June 4, 1901, P. L. 404, which authorize the court on application to vacate and set aside all legal proceedings not wholly completed, and to stay executions in order that a sale may be made by the assignee or a receiver.

This was not a legitimate use of the act, and it is at least doubtful whether such a use could be sustained if the application of the assignee was in other respects free from objection. It is, however, unnecessary to consider this feature of the case or the constitutionality of the act, or whether if constitutional it is operative when in conflict with the federal bankrupt law, because the order of the court was made on the ground that, the defendants having waived any stay of execution, their assignee had no standing under subsequent legislation to ask for a stay. On this ground we sustain the action of the court.

The legislature may modify or suspend for a definite and reasonable time a remedy it has given, but it may not by acting on the remedy impair the obligation of a contract. Remedies which affect the interests and rights of the parties and are made the subject of contract for the purpose of enforcing it become an essential part of the obligation, and a right of the creditor which cannot be impaired by subsequent legislation. The Act of April 18, 1861, P. L. 408, staying civil process against persons in the service of the government was held to be constitutional, the stay being for a definite and reasonable time: Breitenbach v. Bush, 44 Pa. 313. But the proviso of the 1st section of the Act of May 21, 1861, P. L. 770, which granted a stay of executions on judgments on which the right to a stay had been expressly waived by the debtor in the original obligation, was held unconstitutional in Billmeyer v. Evans, 40 Pa. 324, and Lewis v. Lewis, 47 Pa. 127; White v. Crawford, 84 Pa. 433, arose under the Act of February 17, 1876, P. L. 4, which authorized the court, when an order of sale of an assigned estate is made, to stay executions on liens that may be discharged. While the decision is based on an abuse of discretion by the judge in allowing the purchaser an unreasonable time in which to make payments, the foregoing cases are cited with approval and the doctrine on which they rest is reasserted and affirmed.

The order of the court discharging the rules is affirmed at the cost of the appellant.