author: Endlich, P. J., Head, J.,

text:
    Brandenburg, Appellant, v. Brooke.

      Contract—Sales agent—Commissions—Corporations-—Insolvency.

    1. Where a contract between a manufacturing corporation and its sales agents, a partnership, provided that the agents should receive as a compensation for their efforts ten per cent commission upon the aggregate price of all goods sold by the company during the continuance of the contract whether sold by the agents or not, payable monthly on statements furnished by the company, with a further provision that the contract was to continue to a certain date unless the parties became insolvent, when it was to terminate as soon as all payments then due shoukhhave been made, the sales agents are entitled on the insolvency of the company to recover only the monthly percentages due at the time of the appointment of a receiver, and not to any percentages on shipments made by the receiver on orders previously procured by the sales agents.
    2. If after the receiver is appointed the sales agents bring two suits, one for commissions on shipments up to the date of the receivership, and one for commissions on shipments made thereafter on the orders of the agents, and it recovers a judgment in the first suit, but fails to recover a judgment in the second suit, the agents are not entitled to claim anything from the fund in the hands of the receiver, over and above what was adjudicated in the first suit because, (1) the claim is res adjudicata by that suit, and (2) they are not entitled to anything beyond their monthly percentages up to the date of the receivership.

      Argued Nov. 17, 1910.
    Appeal, No. 248, Oct. T., 1910, by plaintiffs, from decree of C. P. Berks Co., Equity Docket, 1907, No. .946, sustaining exceptions to auditor’s report in case of C. G. Brandenburg et al., trading as Brandenburg & Company, v. George Brooke, Jr., Trustee.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to report of D. N. Schaeffer, Esq., auditor.
   Endlich, P. J.,

filed the following opinion:

Brandenburg & Company had a contract with the Keystone Wagon Works, running from February 1, 1907, to July 1, 1910, constituting the former sole agents for the latter for the sale of automobile bodies, etc., at a commission to be figured at ten per cent upon the aggregate net price of all automobile bodies, etc., sold, manufactured and shipped by the company during the continuance of the contract. The company was to furnish to the agents monthly, between the fifth and fifteenth, a statement of the bodies, etc., shipped during the preceding month, and between the tenth and twentieth to pay them the percentage figured thereon. It was provided that the contract should be binding unless either of the parties became insolvent, in which case it might be terminated as soon as all payments then due should have been made. On November 29, 1907, the company, having become insolvent, went into the hands of a receiver, who under authority from this court proceeded to complete the bodies, etc., for which orders were on hand, and shipped them, when completed, to the persons to whom they had been sold. At the date of the appointment of the receiver the company was in arrears in the payment of the stipulated percentage past due and becoming due to the agents, and no further payments were made to them by the receiver. The agents brought two suits for the recovery of what they considered themselves entitled to,—one to No. 36, Nov. T., 1908, against the company for payments due on shipments up to the date of the receivership, and one to No. 37, Nov. T., 1908, for payments claimed to have become due to them on shipments made since its commencement. In the former a verdict was rendered for plaintiffs for $1,451.98 and judgment entered thereon. In the latter, a verdict having been rendered for plaintiffs, judgment was subsequently entered, notwithstanding the same, in-favor of defendant, which was affirmed upon appeal: Brandenburg v. Coxe, 228 Pa. 212. The ground of the decision was that there was no cause of action against the receiver, the plaintiffs’ claim, if they had any, being against the company, because any indebtedness to them arising by virtue of the contract was the company’s debt at the date of the appointment of the receiver. Says the Supreme Court:

“. . . . there was not an adoption by the receiver of the contract between the plaintiffs and the Keystone Wagon Works, as a continuing contract, but merely the use by him of orders received by the corporation before his appointment. The plaintiffs’ claim for orders procured for and accepted by the corporation was complete at the time of the appointment of the receiver, and for it they have the same remedies as other creditors.”

After this decision Brandenburg & Company presented before the auditor appointed to distribute the fund in the hands of the receiver, as a claim against the Keystone Wagon Works, the claim they had made against the receiver for pro rata allowance out of that fund. To his allowance of it these exceptions have been filed. They are in substance (1) that the recovery by Brandenburg & Company in No. 36, Nov. T., 1908, must be treated as having been in full of their demand against the company and precludes them from making any further claim,—and (2) that under the contract they are not entitled to percentages on shipments made subsequently to the commencement of the receivership.

1. The decision in Brandenburg v. Coxe, 228 Pa. 212, conclusively settled that whatever claim Brandenburg & Company had under their contract with the Keystone Wagon Works was a claim against that company, complete at the time when the receiver was appointed. Though the precise amount of the claim was not then ascertained, it was ascertained, or capable of ascertainment before the institution of the suits referred to. As a whole it comprehended all that was sought to be recovered in both of them, and might have been included, and in so far as recoverable at all, recovered, in the action against the company to No. 36, Nov. T., 1908. It is inexorable law, as laid down, among many cases, in Schwan v Kelly, 173 Pa. 65, 71, and as lately as Stradley v. Cement Co., 228 Pa. 108, 114, that—

“The rule that what has been judicially determined shall not again be made the subject of controversy extends to every question in the proceedings which was legally cognizable, and applies where a party has neglected the opportunity of trial, or has failed to present his cause or defense in whole or in part under the mistaken belief that the matter would remain open and could be made the subject of another proceeding.”

In their action against the Keystone Wagon Works, Brandenburg & Company asserted that they had a claim for so and so much against the company, and as the ground for that assertion alleged the existence and provisions of the contract of February 1, 1907; performance of then-duties under it, involving numerous sales between March 1 and November 29, 1907; their right to percentages according to it amounting to a certain sum; a designated expenditure at defendant’s request for a designated purpose; the fact that adding this expenditure to the aggregate of the percentages coming to them, and giving defendant the credits it was entitled to, their claim was as stated. For it they got and accepted a verdict and judgment. In the words of Mr. Justice Moschziskek, in Stradley v. Cement Co., 228 Pa. 108, 115:

“The entry of the judgment judicially ascertained these facts, and as that judgment stands unreversed and unappealed from, those facts are in law absolute and cannot be gainsaid in another proceeding.”

That is to say, Brandenburg. & Company having stated their claim under the contract as measurable upon such and such a basis, and as amounting to such and such a figure, and all this having been adjudicated as being the fact, they cannot now be permitted to say that it was not the fact, but that their claim under the- contract was to be measured on a broader footing and amounted to so and so much more. They had the opportunity in that action of including all that was coming to them under the contract and payable at the time the suit was brought. It is not necessary to say that the contract was an entire one in the sense that but one action could be maintained upon it for what became due to Brandenburg & Company under it. It may be regarded as more consonant with the intention of the parties, in view of the subject-matter they were dealing with (and such is the controlling consideration: see Phœnix Silk Mfg. Co. v. Reilly, 187 Pa. 526, 534, and cases there cited), that the failure of the company at any appointed period during the running of the contract to pay what up to that time had become due-would entitle the agents from time to time to sue therefor. The point is that after the contract had come to an end, all that then remained payable to the agents under it constituted one entire claim, which, under the rule stated and its application in such cases as Buck v. Wilson, 113 Pa. 423; Raisig v. Graf, 17 Pa. Superior Ct. 509, could not be split up into distinct demands for so much due up to such a date, so much up to another, and so on, and proceeded for separately; and that therefore, when the agents came to sue upon the contract and alleged that under it their present claim was such and such, and a judgment to that effect was entered, they became estopped from alleging thereafter that at that very time their claim under the contract was something different and greater. Of course there is nothing in the language of the Supreme Court in Brandenburg v. Coxe, 228 Pa. 212, which can be understood as deciding or intimating that the demand there made upon the receiver might still be made upon the company. When it was said of that demand that “for it they have the same remedies as other creditors,” it was simply intended to say that their remedy was not against the receiver with the effect of obtaining a preference over other creditors, but that, if they had a remedy, it was the same as that of other creditors of the company against the latter. The language of a judicial opinion is always to be understood with reference to the question presented for adjudication: Erie Ry. Co. v. Com., 66 Pa. 84, 88. The question presented in Brandenburg v. Coxe, 228 Pa. 212, was solely whether the particular claim there made was one against the receiver or against the company. Whether or not its assertion against the latter was still permissible in view of the suit to No. 36, Nov. T., 1908, was not involved. The effect of that proceeding, not being in the case, was not in any way passed upon.

The conclusion thus appears unavoidable that this first ground of exception to the auditor’s allowance of Brandenburg & Company’s claim is well taken. It may be confessed that this conclusion has been reached with reluctance and with a disposition to escape from it if possible; not only because it contravenes the opinion of the learned auditor which is entitled to great respect, but also because its effect is, by the interposition of a rigid rule of the law, to bar a claim without reference to its merits and equities. Lest this might appear to operate harshly against a claimant who has acted in good faith, it is proper not to rest the decision upon this ground only, but to discuss also the remaining contention of the exceptant.

2. This contention does not hang upon the formal circumstance that the shipments subsequent to the appointment of the receiver were made by him and not by the company. It is that after and by reason of the company’s insolvency and the commencement of the receivership there was no further right in Brandenburg & Company to claim the payments provided for by the contract, or any payments whatever.

The contract is a peculiar one. It was pointed out in the decision of Brandenburg v. Coxe, 228 Pa. 212, that the payments to be made by the wagon works to Brandenburg & Company monthly were not a percentage “upon the price of this or that particular body, etc., or of all the bodies, etc., they had found purchasers for, but a sum equal to ten per cent upon the aggregate sales of bodies, etc., shipped by the company during the preceding month, no matter by whom sold,—and so on until the termination of the contract by its expiration or of the business of the company by its insolvency.” As shown by the specified dates of the beginning and ending of the contract, and the apparent understanding and practice of the parties under it: see Bower v. Walker, 220 Pa. 294, the “preceding” month was that running from the first of one month to the first of the next in which the payment therefore became due. In consideration of these payments Brandenburg & Company were to render certain continuing services in the effecting and promoting of sales for the company and to abstain from any attempts to sell the product of any competing manufacturer. In other words, we have here a contract whereby, for a period beginning February 1, 1907, and ending July 1, 1910, Brandenburg & Company agree to render certain continuing services and to maintain a certain relation to the company in exchange for certain periodical payments to be made by it to them, which payments are not to be measured by the services rendered to it by Brandenburg & Company during the preceding interval, but by the aggregate of the business done by the company during the same. The payment, therefore, falling due in any given month was not a compensation for specific services rendered in any preceding period. It was an installment of the compensation stipulated in return for the services contemplated by the contract as continuing from the inception to the termination of the contract,—services already and still being and still to be rendered. The obvious analogy is that of an employment of a person for a designated period at a salary to be paid in periodical amounts, their quantum and therefore their aggregate being in this instance left to determination by a measure to be applied as they fell due. Under such an arrangement it is manifest that the moment the contract comes to an end, the liability of the one party to make payment to the other under it ceases, regardless of the question whether the former is still benefiting by the latter’s past services or not. It is written that the soundness of a proposition is often best tested by looking at the results to which it leads: Mayer v. Walter, 64 Pa. 283, 286, taking an extreme case: Philadelphia v. Scott, 81 Pa. 80, 88. Suppose the company to have prospered in its business, the contract between it and Brandenburg & Company to have run to its contemplated expiration on July 1, 1910, all the monthly payments accruing upon shipments up to that date to have been made, and yet the company then to have had on its hands and under construction any quantity of bodies, etc., under orders sent in previously by Brandenburg & Company,—could it be contended that they, having ceased performing any services to the company,—having perchance become the sales agents for a competing concern,—could go on demanding monthly accountings and payments from the company upon the basis of its entire output, partly, it.may be, on orders from other agents, until every one of the orders sent in by Brandenburg & Company had been worked up and filled? Assuredly the contract does not so say, nor would there be any equity in such a view of it. On the other hand, to hold Brandenburg & Company in the event indicated entitled to further payment of percentages calculated, not upon the basis of the entire output, but on that portion of it traceable to the particular orders sent in by them, would be to introduce into the contract something it nowhere contains, something alt igether inconsistent with what it does contain,—in a word, to that extent to make a new contract for the parties ex sequo et bono, which cannot be done: Weaver v. Shenk, 154 Pa. 206, 208. Yet one or the other of these things necessarily, logically flows from the position presently taken by Brandenburg & Company. This contract came to an end on November 29, 1907, by virtue of its own terms and the failure of the receiver to continue it. Thereupon the claim of Brandenburg & Company was for “all payments then due,”—i. e., for the monthly payments provided for by the contract which were past due and became due in December, 1907, on shipments made up to the first of that month. Beyond that they had no claim. Any further liability on the part of the company to them could arise only on the theory that Brandenburg & Company were still rendering the continuing services in contemplation of which, as an essential and integral part of their undertaking, the continuing compensation was by the contract made payable. In truth, with the contract those services were at an end, and with them the right and liability to further compensation.

It would appear, therefore, that, as these. parties in their contract fixed their mutual rights and liabilities, there is nothing inequitable or unfair in rejecting the demand now made by Brandenburg & Company as one not supported by the contract. And upon this point again, there is nothing to the contrary to be gathered from the decision in Brandenburg v. Coxe, 228 Pa. 212. The question there was as to who were to be deemed parties to the contract sued upon. Here it is as to the construction and effect of the contract between the ascertained parties to it. When it was there said that, the contract being between the company (and not its receiver) and Brandenburg & Company, the latter’s claim under it was “perfect,” “complete” at the date of the commencement of the receivership, the reference was of course to such claim as upon a proper construction of the contract might be found to exist against the company. It was not declared whether the precise claim asserted by Brandenburg & Company did or did not so exist. For the purposes of the case it was assumed that it might, and upon that assumption, the most favorable possible one to them, it was held that there was no right to recover against the receiver. Whether in truth there was anything due to Brandenburg & Company by the company, under the contract, was not a question in the case, and hence remained undiscussed and undecided in, and in no way concluded by that decision.

Errors assigned were in sustaining exceptions to auditor’s report.

Cyrus G. Derr, for appellants.

Joseph B. Dickinson, with him J. Bennett Nolan, for appellee.

March 3, 1911:

It follows that, whilst upon the ground first discussed, standing alone, we should be compelled to negative the right of Brandenburg & Company to share in the distribution beyond the judgment recovered by them in No. 36, Nov. T., 1908, the second ground equally precludes them therefrom. It is thus apparent that they lost nothing' by splitting their claim into two, and bringing separate actions, in one of which they failed. Had it been presented as a whole in No. 36, Nov. T., 1908, there could have been no recovery beyond what was actually there recovered. As to the remainder (the part now before us) they would have been bound to fail.

The exceptions to the auditor’s report are sustained and the distribution made by him is directed to be revised and modified accordingly.

Opinion by

Head, J.,

After due consideration of the record and briefs of counsel, we are all convinced that the decree entered by the learned judge of the common pleas was the correct one. The reasons supporting the conclusion he reached are so well stated by him in the opinion he filed that we do not deem it necessary to attempt to restate or elaborate them. We therefore affirm the decree.

Decree affirmed.


source: Caselaw Access Project

author: Butlek, J., Oklady, J., Morrison, J.,.

license: Public Domain

text:
    Commonwealth v. Reeder, Appellant.

      Criminal law—Larceny—Receiving stolen goods—Indictment—Verdict.

    Where an indictment contains two counts, one charging larceny of a dog, the other charging the receiving of stolen goods, knowing that they were stolen, and the jury returns a verdict of “guilty of receiving stolen goods,” a judgment upon the verdict will be sustained, although •the jury did not find in express terms that the prisoner received the goods knowing them to have been stolen.
    Submitted Nov. 17, 1910.
    Appeal, No. 222, Oct. T., 1910, by defendant, from judgment of Q. S. Chester Co., Aug. T., 1910, on verdict of guilty in case of Commonwealth v. Harry Reeder.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for larceny and for receiving stolen goods.
    From the record it appeared that the first count of the indictment charged the larceny of one hunting dog. The second count of the indictment was as follows:
    And the inquest aforesaid, upon their oaths and affirmations aforesaid, do further present that the said Harry Reeder, afterwards, to wit: On the day and year aforesaid at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., the goods and chattels aforesaid, by some ill-disposed person (to the jurors aforesaid yet unknown), then lately before feloniously stolen, taken and carried away feloniously, did receive and have (the said Harry Reeder then and there well knowing the goods and chattels, moneys, and property last mentioned, to. have been feloniously stolen, taken and carried away), contrary to the form of the act of general assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.
    The jury found the following verdict: “Guilty of receiving stolen goods.”

      The defendant filed a motion in arrest of judgment for the following reasons:
    1. The verdict of the jury which was, “Guilty of receiving stolen goods,” was neither a conviction of larceny or of receiving goods knowing them to have been stolen or feloniously taken.
    2. The verdict as rendered and recorded on the records of the court does not convict the defendant of any crime of which he was indicted in this case.
    3. There was no evidence in the case to show that the defendant knew that the dog in question was stolen at the time it was purchased by the defendant.
   Butlek, J.,

filed the following opinion:

The bill of indictment contained two counts, one charging larceny of a dog, the other charging the receiving of stolen goods. The jury was fully informed by counsel for the defendant, as to what constituted this offense, that the stolen property must be received with knowledge that it was stolen, and was so instructed by the trial judge. There is no reason, we think, to apprehend that the jury ignored this feature of knowledge that the dog was stolen, because they found him “Guilty of receiving stolen goods.” They would not have found him guilty, if they believed he received the stolen dog, innocently. They by their verdict, designated the offense, as it is commonly designated—receiving stolen goods. We think that there was evidence in the case upon which the jury could find that defendant knew, was familiar with the prosecutor’s dog, and could thus conclude that he bought him with guilty knowledge. The prosecutor made a strong and convincing witness, and his testimony positive and circumstantial as to various, two at least, efforts of the defendant to buy his dog, all of which was denied as to fact, and circumstance by the defendant—was calculated to satisfy the jury that defendant knew his dog. In view of the fact, that according to the defendant, the man from whom he bought the dog not only said that he came from North-brook, but gave defendant certain news of the place, which defendant subsequently ascertained was true, it was proper for the jury to consider, as bearing upon the question, whether he did buy the dog innocently of the stranger, the circumstances that instead of going to Northbrook and vicinity in earnest quest of the stranger, he according to his statement, made some inquiry through other people. This feature of the case was discussed by counsel for the defendant, and commonwealth, and the trial judge without expressing any opinion upon its significance, referred it to the jury for what it was worth.

Error assigned was in refusing motion in arrest of judgment.

W. S. Harris, for appellant,

cited: Com. v. Poots, 18 Phila. 477; Com. v. Zacharias, 181 Pa. 126; Kilrow v. Com., 89 Pa. 480.

There was no appearance or printed brief filed for appellee.

March 3, 1911:

The rule for new trial is dismissed.

Opinion by

Oklady, J.,

The indictment under which this defendant was convicted charged him in the first count with the larceny of one hunting dog, and the second count with receiving, etc., to which the defendant entered a general plea of not guilty.

The practice of joining the counts for larceny and receiving was in vogue long before the passage of our criminal procedure Act of March 31, 1860, P. L. 427, and all doubt that theretofore existed, was set at rest by sec. 24 of that statute which particularly authorized it to be done; and that the court of quarter sessions had jurisdiction to try this indictment is settled by the authorities referred to in Commonwealth v. Goldberg, 4 Pa. Superior Ct. 142.

The verdict received by the court and recorded was “guilty of receiving stolen goods,” which was a sufficient identification of the crime set out in the second count and is in effect a finding of guilty on the second count and of not guilty on the first count: Girts v. Commonwealth, 22 Pa. 351; Henwood v. Commonwealth, 52 Pa. 424; Solliday v. Commonwealth, 28 Pa., 13; Brown v. Commonwealth, 78 Pa. 122; Commonwealth v. Huston, filed this day. There was abundant testimony to warrant this verdict, and the case was fairly submitted in a clear and adequate charge.

The judgment is affirmed, and the record is remitted to the court of quarter sessions of Chester county, with directions that the judgment be fully carried into effect, and to that end it is ordered that the defendant forthwith appear in that court and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.

Morrison, J.,.

dissenting:

The Act of March 31,1860, sec. 109, P. L. 410, provides, “If any person shall buy or receive any goods, chattels, moneys or securities, or any other matter or thing, the stealing of which is made larceny by any law of this commonwealth, knowing the same to be stolen or feloniously taken, such person shall be guilty of felony,” etc. The very essence of this offense is knowing the same to be stolen or feloniously taken.” The defendant was indicted for larceny in the first count and for receiving goods knowing the same to have been stolen or feloniously taken in the second count. The evidence was insufficient to warrant a conviction of larceny, but there was evidence from which the jury might have convicted under the second count. The appellant has not printed the charge of .the court and therefore it ought to be assumed that the learned court correctly charged the jury as to what was necessary to warrant a conviction under the second count. The record shows that the jury found the defendant guilty of receiving stolen goods.” Assuming that the court correctly instructed the jury that the defendant could not be convicted under the second„ count unless they found that he received the property knowing the same to be stolen or feloniously taken, it seems clear to me that the jury was not convinced that the defendant knew the property was stolen.

If the verdict had been guilty in manner and form as charged in the second count no question could be fairly raised as to the sufficiency of the finding. But the jury did not so find. They were only willing to find that the goods had been stolen. This, I think, did not warrant the court in assuming that the jury meant to find a verdict of guilty of receiving goods knowing them to have been stolen or feloniously taken. The burden is on the commonwealth to convict a defendant beyond a reasonable doubt, and neither court nor jury is permitted to guess that a defendant is guilty of a felony.

The jury seems to have found a special verdict that the defendant was guilty of receiving stolen goods.” Suppose a case had been stated and submitted to the court averring that the defendant had received stolen goods, would it be contended by any lawyer that the court would have been justified in holding the defendant guilty of receiving the goods knowing the same to be stolen or feloniously taken? I think not and in my opinion this illustration convicts the court below of error.

Several cases have been cited in the majority opinion, but I do not see anything in these cases sustaining the court below in entering judgment against the defendant.

The defendant’s counsel moved the court in arrest of judgment and this motion was refused and an exception allowed. In my opinion the judgment ought to have been arrested.

Porter, J., concurs in dissent.


author: Head, J.,

text:
    Rockwell, Appellant, v. Silvara.

      Attachment execution—Checks—Banks and banking—Assignment.

    Where an attorney at law collects a sum of money for a client, deposits the fund in his own bank account, and draws a check in favor of his client for the amount collected and sends the check by mail, and after the check has been mailed, but before it has been received a judgment creditor of the client attaches the fund, naming the attorney and his bank as garnishees, the attaching creditor is entitled to the fund, although the client immediately after receipt of the cheek delivers it to a creditor of his own who has no knowledge of the attachment, and who accepts it in payment of an antecedent debt.
    Argued Nov. 21, 1910.
    Appeal, No. 243, Oct. T., 1909, by plaintiff, from judgment of C. P. Bradford Co., Sept. Term, 1905, No. 427, for defendant on case tried by the court without a jury in suit of A. Lloyd Rockwell, administrator c. t. a. of Isabella Rockwell, deceased, v. J. K. Silvara & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Attachment execution.
    Issue to determine ownership of a fund paid into court. Before Fanning, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in awarding the fund to the defendant.

      J. C. Ingham, for appellant.
    If Silvara & Company desired to set up the defense to the attachment that DeWitt on account of his check had assumed some liability from which he needed protection, or that the check in their hands possessed some quality as a negotiable instrument that would exempt the fund from attachment, the proper and the exclusive method to have done so was through DeWitt as garnishee, and not as intervening claimants to the fund itself: Thistle Mills v. Watson, 2 Pa. C. C. Rep. 271; Elberman v. Bloom, 10 Pa. C. C. Rep. 413.
    Equity will follow a fund through any number of transactions and preserve it for the owner so long as it can be identified, no matter in whose name the legal right stands: Farmers’ & Mechanics’ Nat. Bank v. King, 57 Pa. 202; First Nat. Bank v. Bache, 71 Pa. 213; Stair v. Bank, 55 Pa. 364; Frazier v. Bank, 8 W. & S. 18.
    This money so deposited by Mr. DeWitt in his own account could not have been attached for his debts: Frank v. Kurtz, 4 Pa. Superior Ct. 233; Farmers’ & Mechanics’ Nat. Bank v. King, 57 Pa. 202.
    But as this money belonged to Haverly it was subject to attachment for his debts.
    Moneys deposited in a bank by one person may be shown to be the property of another, either by the depositor, or by his attaching creditors: Hemphill v. Yerkes, 132 Pa. 545; First Nat. Bank v. Mason, 95 Pa. 113; Sweigart v. Bank, 8 Montg. County Law. Repr. 203.
    The service of the attachment worked an assignment of the fund to the plaintiff: Roig v. Tim, 103 Pa. 115; Fessler v. Ellis, 40 Pa. 248; Rushton v. Rowe, 64 Pa. 63; Develin v. Ford, 19 Pa. Superior Ct. 381; Kuhn v. Bank, 20 W. N. C. 230; Malvin v. Sweitzer, 1 Kulp, 5.
    This check could make no title whatever or claim of any kind to the fund in court: Kuhn v. Bank, 20 W. N. C. 230; Jordan’s & Porter’s App., 10 W. N. C. 37; Florence Mining Co. v. Brown, 124 U. S. 385 (8 Sup. Ct. Repr. 531) ; Loyd v. McCaffrey, 46 Pa. 410; First Nat. Bank v. Higbee, 109 Pa. 130; Roberts v. Boyle, 8 York Legal Record, 13; First Nat. Bank v. Shoemaker, 117 Pa. 94; Maginn v. Bank, 131 Pa. 362; First Nat. Bank v. McMichael, 106 Pa. 460; Saylor v. Bushong, 100 Pa. 23.
    Haverly turned out the check of a third person to apply entirely on what was pre-existing indebtedness. Such an indorsee is not a purchaser for value: Royer v. Bank, 83 Pa. 248; Maynard v. Bank, 98 Pa. 250; Mechanics’ Nat. Bank v. Kielkopf, 22 Pa. Superior Ct. 128; Holmes v. Briggs, 131 Pa. 233.

      M. E. Lilley, of Lilley & Wilson, for appellee.
    A check is a negotiable instrument: Wisner v. First National Bank, 220 Pa. 21; Provident Securities & Banking Co. v. First Nat. Bank, 37 Pa. Superior Ct. 17; National Bank of Phœnixville v. Bonsor, 38 Pa. Superior Ct. 275.
    A pre-existing debt is valuable consideration: Bardsley v. Delp, 88 Pa. 420; Carpenter v. National Bank of the Republic, 106 Pa. 170; Beckhaus v. Nat. Bank, 9 Sadler, 292; Shepherd v. Busch, 154 Pa. 149; Hart v. Boller, 15 S. & R. 162; Collins v. Busch, 191 Pa. 549; United States v. Hegeman, 204 Pa. 438; Seltzer v. Coleman, 32 Pa. 493; Brown v. Scott, 51 Pa. 357; Kemmerer’s App., 102 Pa. 558.
    The attaching creditor, the appellant, acquired the rights of LeRoy Haverly only, and that subject to the equity and rights of J. K. Silvara & Company: Kieffer v. Ehler, 18 Pa. 388; Hill v. Kroft, 29 Pa. 186; Day v. Zimmerman, 68 Pa. 72; Bell v. Binding & Mailing Co., 10 Pa. Superior Ct. 38.
    Where property attached is claimed adversely to the defendant, the proper practice is for the claimant to intervene in the attachment and not to move to dissolve: Hildreth v. Kepner, 11 Pa. Dist. Rep. 789; Moore v. Spackman, 12 S. & R. 287; MacNutt v. Bushman, 21 Lanc. Law Rev. 345; Brubaker v. Bryan, 6 Lanc. Law Rev. 201.
    March 3, 1911:
   Opinion by

Head, J.,

It is important in every case, but it seems to be of special importance in the one before us, to keep clearly in view the exact questions presented by the record for our determination. The proceeding we are now about to review was an attachment execution. By the various steps we shall hereafter describe a certain fund was paid into court by one of the garnishees named in the attachment. With the production in court of that fund the garnishees named have disappeared from the proceeding. The contest was fought out in the court below between the attaching creditor and a third party, who upon their own petition were permitted to intervene. The question for determination was and is the true ownership of that fund thus attached and thus paid into court by the garnishee. The learned court below having awarded it to the intervening party, the attachment creditor appeals.

One Leroy Haverly begun an action against the county of Bradford for the recovery of money. Before the case came to trial it was amicably settled. To complete this settlement the county commissioners, on August 11, 1905, gave their check for $500.00, the amount agreed upon, to W. C. DeWitt, Esq., the attorney of record for the plaintiff, Haverly. The attorney had been directed by his client to pay out of this sum various claims, fees, etc., amounting to $156.72, after the payment of which there remained in the hands of DeWitt $343.28, due to his client Haverly.

Promptly on the morning of August 12, DeWitt deposited the check for $500 in his own account in the First National Bank of Towanda, and immediately drew his check for the above stated amount due his client and mailed the same with a proper statement of the transaction to Haverly at New Albany, Pa.

The present appellant was a judgment creditor of .Plaverly. Having learned of the collection by him of the money already referred to, he on August 12, issued an attachment execution on his judgment in which DeWitt and the First National Bank of Towanda were made garnishees. The writ was served on DeWitt about half past ten of that morning, shortly after he had mailed the letter referred to, and on the bank about noon. What was the situation at that moment? There was undoubtedly on deposit in the First National Bank the sum named, which in fact belonged to Haverly, the judgment debtor. Certainly, as between him and DeWitt, the latter had no longer any claim on or against that fund. He made none. His deposit of it in his own name was but a convenient means to enable him to discharge his obligation of placing his client’s money promptly in his hands. So far as the bank was concerned, it would owe that money prima facie to DeWitt who had deposited it. But, on a showing of the facts already stated, it would clearly be bound to recognize the paramount right of the real owner Haverly. This proposition is so well sustained by the authorities that we need not stop to cite them.

There was therefore nothing thus far visible which would or could have prevented the grasp of the attachment from fastening upon the fund of the judgment debtor located in the hands of the garnishee summoned, and yet this is the exact question we have to deal with. To get before us, however, the contention of the intervening party, who up to this time had no interest whatever in the transaction, we must recite some additional facts. Later, on the same day, after the attachment had been served, Haverly came to Towanda and had an interview with his counsel. What he learned as to the mailing of the check, the issue of the attachment and its service, the record does not disclose. He returned home the same evening, lifted the letter containing his check and took it to the place of business of Silvara & Co., the intervening party. It appears that he owed them an account. He also owed two promissory notes, for the payment of which they were responsible, either as sureties or guarantors. It was there agreed that they would take the check, satisfy their own claim or book account, and take up the two notes of Haverly for which they were responsible, and they then gave to him their check amounting to something over $80.00 to cover the difference and complete the transaction.

After the garnishees had filed their answers setting up simply the facts first named, they seem to have made no further contention and to have practically disappeared from the case. Silvara & Co. filed their petition asking leave to intervene which was granted. They then asked for a rule on one or both of the garnishees to pay into court the fund admitted by the answers to have been in the bank when the attachment was served, and at their instance an order was made directing the garnishees to "pay into court the fund with reference to which this controversy arises to await the judicial determination as to whom the same of right belongs.” This was accordingly done and the contest for the possession of that fund proceeded between the attaching creditor and Silvara & Co.

We are not concerned with the rights, if any there now be, which Silvara & Co. may have, either against their original debtor, Haverly, or against DeWitt. No such questions are fairly raised or could properly be disposed of in this proceeding. We are to determine only whether or not (a) by the service of the attachment execution it grasped the fund now in court, and (b) if it did, has that grasp been loosened by anything that appears in the record?

We are wholly unable to discover any reason upon which we could conclude that the fund was not reached by the attachment.' That money undoubtedly belonged to Haverly. The attaching creditor had a judgment against him. He issued his writ and he named as garnishees therein those who had the custody and control of that fund belonging to Haverly, against which neither of them had or pretended to have any adverse claim. It is true, of course, that before the service of the writ, DeWitt had drawn a check and mailed it to Haverly. Unless it can be successfully asserted that the drawing of that check was an assignment of that fund, it is difficult to see how it can have any effect whatever upon the transaction. But upon this proposition again the authorities in Pennsylvania are so numerous and so uniform that even a citation of them seems like a useless parade of learning. As we have already said, we do not feel called upon to consider what remedy Silvara & Co. may now have against Haverly or any other individual, but we are clearly of the opinion that they have established no right to take this fund as against the attaching creditor whose right to it had become fixed before Silvara &' Co. had any knowledge of its existence or any possible interest in it whatever. So far as the present issue is concerned, at least, they have voluntarily staked their right on their ability to take away this fund from the attaching creditor. As we view the case they have failed in this respect, and we must conclude that the learned court below fell into error in awarding the fund to them and entering judgment against the attaching creditor for costs.

The judgment is reversed and the record is now remitted to the court below with direction to award the fund to the attaching creditor and enter judgment accordingly.


author: Morrison, J.,

text:
    Ridley v. McKinley Mutual Beneficial Society, Appellant.

      Justice of the peace—Judgment—Appeals—Acceptance of service—Sci. fa. sur recognizance—Bail.

    1. Where an appeal from a judgment of a justice of the peace is submitted to arbitrators and affirmed on their award, and subsequently a scire facias is issued to the same term and number against the sureties on the appeal, the legality of the proceedings before the justice cannot be inquired into in proceedings under the scire facias, and the fact that the scire facias was issued to the same term and number as the appeal is no ground for reversing a judgment against the sureties.
    2. Where in such a case an appeal is taken to the Superior Court by the sureties under the judgment against them on the scire facias, and there is nothing of record to show that the defendant in the judgment took a separate appeal to the Superior Court, the latter court will not recognize the defendant as an appellant.
    3. When" an appeal from a judgment of a justice of the peace is perfected and judgment obtained in the common pleas, it is in that court, and not before the justice that a scire facias sur recognizance against the bail must b.e sued out.
    4. It seems that a defendant in a case before a justice of the peace may accept service of a summons in person or by counsel with the same effect as if personally served on him by the constable.
    Argued Nov. 21, 1910.
    Appeal, No. 250, Oct. T., 1910, by defendants, from order of C. P. Delaware Co., June T., 1905, No. 266, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William H. Ridley v. McKinley Mutual Beneficial Society, defendant, and W. S. Sykes and George Nugent, sureties.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from a judgment of a justice of the peace.
    Scire facias sur recognizance.
    The facts appear by the opinion of the Superior Court.

      Errors assigned were as follows:
    1. The court erred in making plaintiff’s rule for judgment for want of a sufficient affidavit of defense on the part of the sureties, absolute.
    2. The court erred in not making the rule of the defendant, the McKinley Mutual Beneficial Society, to strike off the appeal, award of arbitrators, and judgment thereon, absolute.
    3. The court erred in permitting a judgment upon the sci. fa. sur recognizance to be entered against the defendant and the sureties thereon.
    4. The court erred in not filing an opinion setting forth wherein the affidavits of defense filed by the sureties were not sufficient to prevent judgment.
    5. That the suit on the recognizance is not properly brought in the common pleas.

      W. S. Sykes, for appellants.

      William II. Ridley, for appellee.
    March 3, 1911:
   Opinion by

Morrison, J.,

We have in this case a lawyer for plaintiff and one of the defendants is also a lawyer and they have presented for our consideration a very peculiar record. It appears .that the appellee obtained a judgment before a justice of the peace against McKinley Mutual Beneficial Society and that defendant appealed to the common pleas of Delaware county, and W. S. Sykes and George Nugent became bail absolute for debt, interest and costs, to be paid on affirmance of the judgment. The case appears to have been put at issue in the common pleas and after some skirmishing between the plaintiff and the defendant, a rule of reference was entered and both parties were represented at the selection of arbitrators and thereafter duly appeared before them and offered evidence, and on June 3,1909, the arbitrators awarded in favor of plaintiff and against defendant the sum of $135.60 and the award was, on the same day, filed in the prothonotary’s office and no appeal being taken therefrom, judgment was entered thereon June 26, 1909. A fi. fa. was then issued on June 28, 1909, for the collection of debt, interest and costs and the same was duly returned by the sheriff “nulla bona.” Then on July 2, 1909, a writ of sci. fa. was issued in the common pleas against the bail and this writ was duly served and on October'27, 1909, judgment was entered against the bail, by the court below, for want of a sufficient affidavit of defense. And as we understand the record it is from the latter judgment that this appeal is taken.

■ It appears from the record that the appeal from the justice of the peace, was docketed and tried at No. 266, June Term, 1905, in the common pleas of Delaware county. The action was William H. Ridley v. McKinley Mutual Beneficial Society. In the present case instead of issuing a sci. fa. against the bail from that judgment to a new number it is issued and grafted into the suit against McKinley Mutual Beneficial Society in the manner indicated by the caption of this appeal. This is irregular but we cannot see that it furnishes any ground for the reversal of the judgment against the bail. By reason of the original judgment and the judgment on the sci. fa. being entered under the same number and term, the defendant lawyer conceives that he can in this appeal thresh over again all questions as to the legality of the judgment against McKinley Mutual Beneficial Society. We think this is a mistake. The judgment against that defendant was entered on June 26,1909, and we cannot discover from this peculiar record that it was ever appealed from. The present appeal, as we understand the record, is that of the bail from the judgment against them on the sci. fa. sur recognizance entered on October 27, 1909.

The bail in this appeal argue that the court never had jurisdiction of the McKinley Mutual Beneficial Society because one of the bail, the lawyer defendant, accepted service of the summons issued by the justice of the peace the same day it was served. The justice’s record shows: “July 10, 1905. Summons issued and on same day constable returns service accepted by W. S. Sykes, Esq., attorney for defendant society. So answers Joseph McKniff, constable. Sworn before me this 10th day of July a. d. 1905. F. F. Williamson, Justice of the Peace.” The bail now seeks to avoid their liability by contending, through the lawyer defendant, who does not deny that he was attorney for the original defendant, that the court never had jurisdiction of the McKinley Mutual Beneficial Society by reason of his acceptance of the service as above stated. It is conceded that the original defendant was a foreign corporation and so far as we can gather from the record no one has ever denied the authority of the counsel to accept said service, except himself. An attempt was made in the court below by the same counsel to have the appeal and judgment against the corporation stricken off and on August 7, 1909, the court granted a rule to show cause on the plaintiff why that should not be done, but from the record we cannot ascertain that said rule was ever disposed of by the court. Therefore, it appears that there is a judgment yet standing on the records of the court below against the corporation and it would appear that said judgment until stricken off or reversed is sufficient to support a sci. fa. in the present case.

But if we are wrong in the conclusion that no appeal was •in fact taken to the judgment against McKinley Mutual Beneficial Society, and that appeal is in fact before us, it must be quashed for the reason that the printed record furnished us shows that a rule procured by defendant’s counsel is still pending in the court below to strike off that appeal and judgment. We will not of course pass on the merits of that judgment till said rule shall be disposed of by the lower court. That court may yet strike off that judgment.

While we do not consider the question of the proper service of the original justice of the peace summons properly raised for decision, yet we remark that it is not at all clear that the defendants’ contention is sound as to that service. Section 14, Act of July 9, Í901, P. L. 614, provides that “The defendant named in, or added to any writ, may accept service thereof, in person or by counsel, with the same effect as if personally served therewith by the sheriff.” Section 16 of the same act provides: “Writs issued by any magistrate, justice of the peace or alderman, shall be served in the county where they are issued, by the constable or other officer therein to whom given for service, in the same manner and with like effect as similar writs are served by the sheriff when directed to him by the proper court.” Query, why may not a defendant in a case before a justice of the peace accept service of the summons in person or by counsel, with the same effect as if personally served on him by the constable? Under the law the learned counsel may have had more authority than he was aware of when he accepted service for the McKinley Mutual Beneficial Society. But the summons and acceptance of service are not printed and we could not say, if the question were properly before us for decision, whether or not the acceptance is in legal form. The counsel admits that said corporation is a foreign one and under the law it is clear that in appealing from the judgment of the justice of the peace it was bound to give bail absolute and bail was given in proper form: Young v. Colvin, 168 Pa. 449.

A question raised by an assignment of error is that the recognizance should not have been sued in the common pleas. This is a mistake. When the appeal is perfected and judgment obtained in the common pleas there is the place to sue out a sci. fa. sur recognizance, and the plaintiff's claim thereon will be supported by the recognizance and the original judgment: Young v. Colvin, 168 Pa. 449.

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

Judgment affirmed and appeal dismissed at costs of appellant.


text:
    Springfield Water Company v. Philadelphia & Garrettford Street Railway Company, Appellant.

      Road law—Streets and highways—Change of grade—Street railways— Water companies—Franchises—Cost of lowering pipes—Ordinances—■ Act of April 29,1874, P- L. 73.

    1. A water company created under the Act of April 29, 1874, P. L. 73, and its supplements exercises its franchise and maintains its property in the streets of any borough subject to the paramount right of such municipality to change the grade of the street in which its lines are located, and the fact that a municipality may be induced to some extent to adopt such a change of grade at the instance of a street railway company does not reheve a water company forced thereby to lower its pipes, from its charter obligations.
    . 2. Where a borough in consideration of its assent to the entry upon its streets of a street railway company and its authorization of a change in grade of one of such streets obtains from the railway company an agreement that it will “bear the entire cost and expense of all changes in the grades, of the macadamizing and repairing of the streets or avenues, and shall indemnify the said borough from all damages recovered by property owners for said change of grade,” the agreement imposes upon the railway company only such obligations as are in relief of the borough and its taxpayers and does not give rise to any obligation on the part of the railway company upon which a water company maintaining its pipes in such street can ingraft a right to recover the cost of lowering such pipes occasioned by the change of grade.
    Argued Nov. 22, 1910.
    Appeal, No. 11, Oct. T., 1910, by defendant, from judgment C. P. Delaware Co., March Term, 1908, No. 170, for plaintift on case tried without a jury in case of Springfield Water Company v. Philadelphia & Garrettford Street Railway Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover the cost of lowering a water main. Before Broomall, J., without a jury, under the act of April 22, 1874.
    The facts appear in the opinion of the Superior Court.

      Error assigned among others was in not entering judgment for the defendant.

      William I. Schaffer, with him, John J. Stetser for appellant.
    As between the water company and the borough, the water company could not recover damages from the municipality resulting from its being compelled to move its pipes by reason of the change of grade: Scranton Gas & Water Co. v. Scranton, 214 Pa. 586.
    As no damages could be recovered against the municirpality, obviously no damages could be recovered against a contractor changing the grade in its behalf, where such contractor proceeded with the work in accordance with the ordinance authorizing the change and without negligence, and in this regard the fact that the authorized agent of the borough in making the change of grade was a street railway company can make no difference unless it was subject to liability to the water company by virtue of the terms of the ordinance authorizing it to alter the grade. A reading of the ordinances will show that no such liability was imposed by the borough upon the street railway company; that the only purpose of the ordinances was to relieve the borough from liability for those things which it would have been liable for as a result of the change of grade and that there was no intention upon the part of municipalities -to do anything but to relieve themselves from costs and damages. A third party to a contract cannot recover thereon when the contract is not made for such third party’s benefit: Morgan Engineering Co. v. McKee, 155 Pa. 51.

      E. H. Hall, for appellee.
    This being a claim for resulting injuries, the action was properly brought in trespass: Penna. R. R. Co. v. Duncan, 111 Pa. 352; Chester County v. Brower, 117 Pa. 647; Riddle v. Delaware County, 119 Pa. 159; Atlantic & Birmingham Ry. Co. v. McKnight, 125 Ga. 328 (54 S. E. Repr. 148).
    The defendant company’s charter, with its right of entry upon the streets by municipal consent, is subject to the implied reservation that it shall not be so used as to injure others: Com. v. Penna. Canal Co., 66 Pa. 41; Penna. Canal Co. v. R. R. Co., 203 Pa. 282.
    March 3, 1911:
   Opinion bt

Head, J.,

The plaintiff water company is a corporation duly created under the general act of April 29, 1874, P. L. 73, and its supplements. By virtue of the authority conferred upon it by the creative act and the necessary subsequent municipal assent, it had entered upon a certain street known as Springfield avenue, which was common to the two adjoining boroughs of Clifton Heights and Alden, and constructed therein a portion of its pipe line system which was buried beneath the surface of the ground. As the relations of the parties hereto with both of the boroughs named are identical, we shall for convenience treat the question as if but a single borough were concerned.

The thirty-fourth section of the act referred to authorizing corporations created under it to enter upon the streets of boroughs and cities, after obtaining municipal consent, declares that such entry and the maintenance of their pipe lines therein shall remain “subject to such regulations as the councils of said borough, town, city or district may adopt in regard to grades or for the protection and convenience of public travel over the same.” There was therefore written in the very charter which gaye to the plaintiff its existence its obligation to thereafter exercise its franchise and maintain its property in the streets of any borough, subject to the paramount right of such municipality to change the grade of the street in which its lines were located. It must be conceded therefore, as it is, that when a lawful change of the grade of a street, in which said property had been located, had been duly ordained, the water company was bound by the fundamental law of its being to recognize the right of the municipality to make such change and to adjust its property accordingly. The provision of the statute quoted was but declaratory of the general law, and the right of the municipality and the obligation of the corporation using its streets would have been the same without such provision: Scranton Gas & Water Co. v. Scranton, 214 Pa. 586.

The effect of the provision quoted in the statute was not by any means to vest in the water company any right to determine when such change of grade should be made or to challenge the propriety of the action of the municipal authorities in making it. It is clear then that if the municipality, under ordinary conditions, had ordained a change in the grade of Springfield avenue, and if, as an incident to such change, the plaintiff water company had been compelled to lower its pipes, it could not maintain any proceeding against the borough to recover the cost thereof. To do that very thing at its own expense was one of the conditions on which it began its corporate life.

Now the grade of Springfield avenue was changed. This was done, as the court below finds, in pursuance of an ordinance duly enacted by the borough. The agency that was selected by the borough to do the physical work necessary to effectuate that change was the defendant railway company. No question is raised but that the work was done according to the plans and specifications furnished by the borough engineers, as the ordinance provided it should be, and the new grades shown on these plans and specifications were formally, and in terms approved and adopted by the municipality. This change in grade so far lowered the surface of the street along a portion of Springfield avenue that as a consequence the plaintiff company was obliged to bury its water pipes somewhat deeper in order to protect them from the action of frost. To recover the costs and expenses of that work this action of trespass was brought against the defendant railway company.

"Whilst it is conceded, as we have said, that if the work had been done directly by the borough, no such claim could be successfully urged against it, yet it is argued that because the borough was induced to some extent to adopt the ordinance at that time, at the instance of the defendant railway company, and because the latter would derive some benefit from the change of grade, the water company is relieved from its charter obligation already referred to; •that the defendant has become in some way a tort feasor, and that it must answer in damages for the expenses occasioned to the plaintiff by the change of grade.

■ The plaintiff seems to have assumed the right to determine that this municipal action was not intended to sub-serve the public convenience or welfare, but merely to promote the interest of another corporation, and that, as a consequence, the injury to its property was not of the character which it had covenanted with the state it would itself repair. On what ground the plaintiff corporation thus assumes the right to review the municipal action and attribute to it improper purposes or objects, we are at. a loss to perceive. Let it be granted, for the sake of the •argument, that one of the chief purposes of the municipal authorities, in determining upon the change of grade at that time, was the fact that it would thereby secure the Construction and operation, in the community of a new ■means of transportation. If so, does that warrant the plaintiff's conclusion that there was no element of public convenience and welfare entering into the question? It is a matter of common observation that effective means of transportation have become practically a necessity of modern urban life, only less important perhaps than the furnishing of an adequate supply of pure water. We do not think therefore it was competent for the plaintiff to urge, nor that it can urge with success, that the adoption of .the ordinance authorizing the change of grade was only intended for the defendant’s purposes and not to subserve the public convenience, welfare and comfort.

The act of the borough authorizing this change of grade was a lawful exercise of its municipal power. In the exercise of that power it had a right to secure for itself, as far as it could, indemnity against the costs and expenses of the improvement or of any damages it would incur thereby. This it appears to have done. The defendant company was seeldng from the borough not only a franchise to operate its cars, inter alia, along Springfield1 avenue, but was desirous of having the grade of that street changed so that it could give to the citizens of that community the service they had a right to expect from it.

The borough then gave its assent to the entry upon its .streets of the defendant company and determined to change the grade of Springfield avenue. In consideration of the exercise by the borough of these two undoubted municipal.rights, it obtained from the defendant company an agreement that it would “bear the entire cost and expense of all changes in the grades, of the macadamizing and repaving of the streets or avenues as herein (in the ordinance) provided, and shall indemnify the said borough for all damages recovered by property owners' for said change of grade.” How did the fact that the borough exacted and received from the street car company an undertaking to relieve it of the burdens that would have otherwise fallen on it as a result of this change of grade convert the municipal act and what was done pursuant to it. into a tort against the plaintiff company? How did it give to the latter the right to question the object and purposes of the municipal act and strip it of those characteristics which are presumably incident to it? How did it change the relation of the water company to the municipality and relieve the former of its charter obligation to adjust its pipe line to the future grades of the street whenever the borough should determine that the grade should be changed.

It seems to us clear enough that we must regard the change of the grade of the street in this case as but the ordinary and lawful exercise of a municipal power. The borough by ordinance authorized and directed it. The borough, by its officers, determined the nature and extent of the change that should be made. The borough approved, ratified and adopted the plans prepared by its officers for such change of grade, and. the borough is not claiming that any one usurped its rights, its functions, or its powers, nor is it disclaiming any responsibility which the law would impose upon it following a change in the grade of one of its streets. The act of changing the grade was then, in every essential feature, a municipal act, and the defendant company was but the hand through which the necessary physical work was performed. We must therefore conclude that the defendant is in no respect a tort feasor and that it has committed no act of trespass against the plaintiff.

The defendant then having done nothing except the physical work on the ground, authorized and contemplated by the ordinance which had been duly enacted, incurred no liability to any one except the liability to faithfully discharge the covenants undertaken in its contract with the borough. The nature and extent of this obligation is to be ascertained from an examination of the ordinance because, when formally accepted by the defendant, it became the measure and the evidence of its contractual undertaking. It is, of course, conceded that the plaintiff company was no party to that contract. Unless it appears therefore that somewhere in that contract the defendant bound itself to pay to the plaintiff, or for its use and benefit, the money which the latter now seeks to recover, no cause of action exists in its favor.

We have already quoted the language of the ordinance in this respect. In the first clause of the section quoted the defendant undertook to “bear the entire cost and expense of all changes in the grade.” Can this language in a contract between the borough and the deféndant company be fairly construed to cover the expenditure of money by the plaintiff company for which the borough would be in nowise liable, and which, as to it, would certainly not be any part of the costs and expenses of a change in the grade of one of its streets? Suppose the borough had contracted with the defendant to do the same work for compensation and had provided that the measure of that compensation should be “the entire cost and expense of all changes in the grade” plus ten per cent. Could the water company, in such case, have any standing to assert that the cost of adjusting its lines to the new grade was a part of the entire cost and expense of changing the grade within the meaning of the contract? We think not. What difference then could it make in the construction of the same language that the defendant instead of the borough was to pay the same thing, to wit, the costs and expenses of the grading? The costs and expenses which would naturally be in the contemplation of the borough officials in making such contract would be those, and those only, which the borough would have to bear, unless by its contract it could transfer those burdens to another. And it ought not to need argument to reach the conclusion that the defendant company was not contemplating the assumption of any burdens which were not in relief of the borough.

Besides, when we view the entire section of the ordinance quoted, it seems to us plain that it was the intention of the parties to that contract to impose upon the defendant only such obligations as would be in relief of the borough and the taxpayers thereof. It was there specified that the defendant should pay certain enumerated sums, to wit, (a) the cost and expense of all changes in the grades, (b) all macadamizing and repaving the streets named in the ordinance, and (c) the costs of advertising and engrossing the ordinance, and then,—as if to show the light in which the foregoing should be read—the section concludes with the requirement that the company shall indemnify the borough for all damages recovered by property owners on account of the change of grade.

When we view this provision as a whole we cannot escape the conclusion that a fair construction of the undertaking of the defendant obliged it to pay only such costs and expenses as the borough itself would have been required to pay had it done the work directly. We can find therefore no act of trespass committed by the defendant which could be the foundation of an action against it sounding in tort. But waiving any question as to the form of the action, as we have been urged by the appellant to do, we are equally satisfied that there does not exist in the contract between the defendant and the borough any obligation on the part of the defendant upon which the plaintiff can successfully engraft a right to recover the money here sued for. The learned court below should therefore have entered judgment in favor of the defendant.

Judgment reversed.


text:
    Philadelphia, Baltimore & Washington Railroad Company v. Walker, Appellant.

      Accord and satisfaction—Payment—Consideration—Check—Counterclaims.

    1. An agreement to accept a smaller sum in satisfaction of a larger one, presently due, is without consideration and cannot be enforced.
    2. In an action by a railroad company to recover a freight bill of $56.00 the validity of which was not disputed, it appeared that the defendants had an unsettled claim against the plaintiff amounting to $45.98. The evidence showed that before the suit was brought the plaintiff sent its bill to the defendant, and the defendant returned it with a letter in which they stated that they had deducted their own bill of $45.98, leaving a balance due of $10.02, for which they inclosed their check,, which was in the ordinary form without any statement as to any terms or conditions attached to its receipt. Subsequently the plaintiff wrote a letter in which it was stated that the check was returned and demanding a payment of the bill as rendered. By a mistake the check was not inclosed. Subsequently the defendants wrote calling attention to the fact that the check was not inclosed and saying “We will return it to you if it arrives.” The letter further said that the settlement was final unless the plaintiff preferred to pay defendant’s claim of $45.98, and then have the defendant pay the freight bill of $56.00. The plaintiff finally retained the check, credited.the amount on the freight bill and brought suit for the balance. Held that a verdict and judgment for plaintiff for $45.98 should be sustained.
    Argued Nov. 23, 1910.
    Appeal, No. 124, Oct. T., 1910, by defendants, from judgment of C. P. Chester Co., Aug. Term, 1909, No. 113, on verdict for plaintiff in case of Philadelphia, Baltimore & Washington Railroad Company v. S. C. Walker & Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover the amount of a freight bill. Before Hemphill, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $45.98. Defendants appealed.

      Error assigned amongst others was in giving binding instructions for plaintiff.

      J. Frank E. Hause, for appellants.
    If, pending the adjustment of a disputed liability, the debtor transmit money to his creditor as a payment in full of the demand, the creditor may not receive and retain the money as a credit upon a larger sum claimed by him, without discharging the debtor as to the whole: Washington Natural Gas Co. v. Johnson, 123 Pa. 576; Ziegler v. McFarland, 147 Pa. 607; Christman v. Martin, 7 Pa. Superior Ct. 568; West Point Mills v. Blythe, 29 Pa. Superior Ct. 642.

      A. M. Holding, for appellee.
    There was no accord and satisfaction: Hosler v. Hursh, 151 Pa. 415; West Point Cotton Mills v. Blythe, 29 Pa. Superior Ct. 642; People v. Courtland County Board of Supervisors, 40 How. Pr. 53; Miller v. Holden, 18 Vt. 337; Nassoiy v. Tomlinson, 65 Hun, 491 (20 N. Y. Supp. 384); Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289 (51 N. E. Repr. 986).
    March 3, 1911:
   Opinion by

Head, J.,

It is agreed in the case stated that on January 22, 1908, the defendants were indebted to the plaintiffs in the sum of $56.00 for freight on an interstate shipment delivered by the latter to the former. There is no dispute whatever as to the amount of this bill and the fact that it was then due and owing. At the same time it appears that defendants had an unsettled claim against the plaintiff arising out of other transactions for alleged shortage on coal and damages to goods shipped amounting to $45.98. This claim was under investigation, but its correctness had not been and is not in the present record conceded.

On the date named the defendants wrote a letter to the plaintiff company enclosing their own bill. Whether it was receipted or not the letter does not show. After complaining of the tardiness of the plaintiff company in adjusting their claim, the defendants’ letter states: “We therefore enclose your freight bill of $56.00, being the freight on P. R. R. Car No. 14,390, and after deducting our bill of $45.98, it leaves a balance due you of $10.02, and we herewith enclose you check for same.” • The check inclosed was in the ordinary form and contained no statement of any terms or conditions attached to its receipt. On February 25,1908, the plaintiff company wrote a letter to the defendants stating that their check referred to was therewith returned and adding “Our bills are payable as rendered, and I would therefore be obliged if you will send us your check for the amount due.” Through some mistake, for which the record offers no explanation, the check was not inclosed. Two days later, on February 27, the defendants acknowledged the receipt of that letter, calling attention to the fact that the check was not inclosed and stating: “We will return it to you if it arrives.”’ This letter again voiced the dissatisfaction of the defendants at what they alleged to be the undue delay in adjusting their claim, and then added, “and this settlement is final unless you prefer to pay us our claim of $45.98 and then have us pay the freight bill of $56.00.” The plaintiff company finally retained the check for $10.02, credited the amount thereof on the freight bill owing by the defendants and brought this action to recover the balance thereof. The learned court below directed a verdict in favor of the plaintiff and the defendants appeal.

In Martin v. Frantz, 127 Pa. 389, Mr. Justice Mitchell said: “It is too well settled to admit of discussion that an agreement to accept a smaller sum in satisfaction of a larger one, presently due, is without consideration and cannot be enforced: Brockley v. Brockley, 122 Pa. 1; and the actual acceptance of such smaller sum is not a good discharge of the debt, even as accord and satisfaction: Mechanics’ Bank v. Huston, 11 W. N. C. 389.” It is clear therefore that the retention by the plaintiff of the defendants’ check will not enable the latter to successfully plead an accord and satisfaction of the larger sum admitted to be due.

The defendants do not, however, rely merely on the fact that the plaintiff received and retained their check, but they argue that tlie retention of that check, after their statement in their letter of February 27, “This settlement is final unless you prefer to pay us our claim of $45.98 and then have us pay the freight bill of $56.00,” brings this case within the principle declared in Washington Natural Gas Co. v. Johnson, 123 Pa. 576. In that case there was a dispute between the parties as to the construction of certain covenants in a gas lease. The amount legally due to the lessor was dependent on the proper construction of the instrument. With matters in that state the gas company sent a check to the attorney of the lessors which was expressly stated to be in full for the Johnson lease for a certain year named. A receipt was returned stating that the check had been received for the rental of a particular well on the lease. The treasurer of the company promptly returned the receipt, saying that the check had been sent, and so stated, in full for the Johnson lease, and requesting its return if not accepted as sent. It was not returned. Mr. Justice Williams, speaking for the court, said: "The party paying money has the right to direct its appropriation. It was the plain duty of the lessor to accept theyheck for the purpose for which it was offered, or to return it. Attention was again drawn to the subject by the treasurer in a note dated July 21st, asking the return of the check unless accepted as in full payment of all rents due on the lease. The refusal to return it after this explicit direction ought to be regarded as an election to accept it for'the purpose for which it was offered.”

The distinction between that case and the one presented by this record seems to us to be evident. The check in the present case contained no memorandum of any kind, indicating that it was to be accepted on any particular' terms. Nor did the defendants’ letter of January 22, in which it was inclosed, make anything like a specific declaration that an acceptance of the check would be regarded as a payment in full of their account, or that unless so accepted it should be returned. That letter merely exhibited a statement of a cross demand of the defendant showing a balance of $10.02 due the plaintiff and declaring that a check was inclosed for the balance due. Had the correspondence ended there, we do not think it could possibly be urged that the retention of the check operated in any way as a bar to a collection of the remainder.

But the plaintiff company’s reply of February 25 repudiated the idea of any intention on its part to accept the check as a payment in full. It is true the check was not returned. Even then, had the defendants in their letter of February 27, declared that they intended their check with the satisfaction of their account, as a payment in full of the plaintiff’s bill, and that if not so accepted by the latter the check should be returned, a different question would arise.

So far from doing this, however, the defendants expressly notified the plaintiff company that it would be useless to return the check, because if it did so they would immediately send it back. Under these.circumstances it seems to us it is vain for the defendants to claim that' the plaintiff company was bound to return their check before it could maintain an action for the balance of its undisputed claim. As was said by our Brother Henderson in West Point Cotton Mills v. Blythe, 29 Pa. Superior Ct. 642, a case much like the present: “The plaintiff received the check and used it. It was accompanied.by another paper containing a statement of the defendant’s account with the plaintiff in which a credit was claimed for damages on account of the failure of the plaintiff to deliver yarn in accordance with a contract which the defendant alleges was entered into. No notice was given to the plaintiff when the check was sent that its acceptance would amount to a payment in full of the plaintiff’s claim, or that it would be treated as a satisfaction of all demands.” This language is precisely applicable to the facts presented by the record before us. No such statement as indicated by the language quoted was contained either in the check or in the defendants’ letter inclosing it. That being so, it might well be questioned whether the defendants could attach such conditions by their letter of subsequent date. But even conceding for the sake of the argument that in view of the plaintiff’s letter of February 25 indicating its intention to return the check, the question was still open, the defendants, by their letter of the twenty-seventh, distinctly declared that to return it would be useless. In the face of their attitude, thus exhibited, it is not possible they can have brought about the extinguishment or satisfaction of the balance of the claim because the plaintiff retained and used the check. The defendants can complain of no injustice. They have credit for all of the money they paid, and the judgment from which they appeal represents but the balance of a debt, the validity of which they never denied.

The learned judge below, in his opinion refusing judgment n. o. v. for the defendants, points out that the defense offered could not be successfully maintained because of certain provisions of the acts of congress on the subject of freight rates and the decisions of the Interstate Commerce Commission construing them. As the reasons we have already indicated, however, seem to us to furnish satisfactory ground for the judgment rendered, we see no necessity to enter upon a discussion of this question, and accordingly express no views concerning it.

Judgment affirmed.


author: Orlady, J.,

text:
    Long, Appellant, v. McHenry.

      Deeds—Delivery—Evidence—Recording—Husband and wife.

    1. The delivery of a deed may be consummated by words alone, or by acts alone, or by both together; no formality is essential, and the question.is to be determined by the intention of the parties as evidenced by their acts and declarations. The actual manual investiture of it need not be proved. The signing, attestation and acknowledgment by the grantor, and the recording of a deed are prima facie evidence of delivery, but there must be enough to indicate the intention of the parties to pass the title.
    2. Where a husband purchases land and takes title in his wife’s name without her in any way contributing to the purchase money or participating in the transaction, and subsequently the husband and wife convey the land to another whose deed is placed on record, and thereafter the grantee executes a deed of an undivided one-half of the land 'to the wife and delivers it to the husband, who places it on record six months thereafter, the delay in recording being for a sufficient reason, the court will hold that the delivery to the wife was sufficient as against the creditors of the person to whom the land was conveyed by the husband and wife, and who in turn conveyed the half interest to the wife.

      Practice, C. P.—Judgment n. o. v.—Points—Harmless error—Appeals.

    3. On an appeal from a judgment for defendant non obstante veredicto, where the appellant states in his argument that he had presented a point for binding instructions, and that this was affirmed by the court, and this is not denied by the appellee although the printed record did not show such a point, and it also appears that the defendant’s point for binding instructions was withdrawn, and the court below stated that it was agreed by counsel that the legal question should be disposed of on a motion for judgment n. o. v., the appellate court will not reverse the judgment, but will consider the irregularity as a consentable one that was waived at the time.
    Argued Nov. 23, 1910.
    Appeal, No. 130, Oct. T., 1910, by plaintiff, from judgment of C. P. Chester Co., April T., 1909, No. 57, for defendants non obstante veredicto in case of R. E. Long, trustee in bankruptcy of Harry P. Little, v. Laura T. McHenry et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beavee and Porter, JJ.
    Affirmed.
    Ejectment for land partly in West Grove borough and partly in London Grove township. Before Hemp-hill, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the jury returned, under the instructions of the court, a verdict for the plaintiff. Subsequently the court entered judgment for defendants n. o. v.

      Error assigned was the order of the court.
    J. Frank E. Hause, with him John R. Scholl, for appellant.
    It is perfectly apparent that there was at no time a delivery, or pretended delivery, of the deed to Laura T. McHenry: Eckman v. Eckman, 55 Pa. 269; Stinger v. Com., 26 Pa. 422; Ingles v. Ingles, 150 Pa. 397; Connor v. Bell, 152 Pa. 444; Galbraith v. Zimmerman, 100 Pa. 374; Sears v. Trust Co., 228 Pa. 126; Bauer v. Martin, 226 Pa. 45.
    The judgment non obstante was entered by the court below in favor of the defendants, but they had presented no “point requesting binding instructions,” and the court reserved no question of law for them and declined none. They were not therefore in position to ask for judgment in their favor notwithstanding the verdict, and the court was without authority to grant it: Dalmas v. Kemble, 215 Pa. 410; Hardoncourt v. North Penn Iron Co., 225 Pa. 379; Chatham Nat. Bank v. Gardner, 31 Pa. Superior Ct. 135.
    While there is no necessity, since the act of 1905, to formally reserve questions of law, nevertheless it is incumbent on the party who seeks to have judgment entered in his favor in the face of the verdict, that he should request binding instructions in his favor at the trial: Murphy v. Greybill, 34 Pa. Superior Ct. 339.

      Walter S. Talbot, with him Jos. H. Baldwin, for appellees.
    The delivery was sufficient: Blight v. Schenck, 10 Pa. 285; Cummings v. Glass, 162 Pa. 241.
    On the trial of the cause, after all the material testimony was in, Judge Hemphill said: “Because, my own impression now is I can give binding instructions for the defendant.” Counsel for the defendant immediately prepared a point for binding instructions and, when the testimony closed, presented the same to the court for action. Mr. Hause, of counsel for the plaintiff, then suggested to the court that as a matter of practice, it would be better not to act on the defendants’ point, and that he would submit a point for the plaintiff, and that, upon defendants' exception to the ruling on the point and on motion for judgment n. o. v. the matter could be disposed of at argument court. This course, by agreement of the court and counsel on both sides, was acted upon. Judge Hemp-hill’s opinion clearly states this in the following language, “It appearing upon the trial that no facts were in dispute, it was agreed that binding instructions should be given for the plaintiff and the legal question be argued and disposed of, upon exception thereto and motions for new trial and judgment non obstante veredicto, which were made accordingly.”
    Under the circumstances the court committed no reversible error in entering judgment for defendant n, o. v.

      March 3, 1911:
   Opinion by

Orlady, J.,

The delivery of a deed may be consummated by words alone, or by acts alone, or by both together; no formality is essential, and the question is to be determined by the intention of the parties as evidenced by their acts and declarations. The actual manual investiture of it need not be proved. The signing, attestation and acknowledgment by the grantor, and the recording of a deed are prima facie evidence of delivery, but there must be enough to indicate the intention of the parties to pass the title: Rigler v. Cloud, 14 Pa. 361; Dayton v. Newman, 19 Pa. 194; Stephens v. Rinehart, 72 Pa. 434; Cameron v. Gray, 202 Pa. 566; Savits v. Speck, 21 Pa. Superior Ct. 608.

The uncontradicted facts in this case show that while the title was taken in the name of the wife, Laura T. McHenry, and, that she did not furnish any of the purchase money, or participate in the transaction in any way, the husband contracted and paid for a tract of twenty-two acres of land and took title in the name of his wife. That he negotiated the sale of four small parcels of this larger tract (for a price representing nearly the whole of the original purchase money), and ponveyed the title thereto by deeds in which his wife joined. This left about sixteen acres of the property, with the title in the wife. The husband and wife then joined in a deed for these sixteen acres to one Little, who on April 1, 1907, with his wife, conveyed the undivided one-half thereof to Laura T. McHenry. The deed for this interest was properly executed by Little and wife, and was delivered by Little to Mark B. McHenry the husband, who retained it until October 17, 1908, when by the husband’s direction it was placed on record. The reason given for not placing it more promptly on record was to facilitate and simplify certain expected conveyances. On November 28, 1908, Little was adjudged a bankrupt, and his trustee instituted this action of ejectment against the wife to recover the one-half interest on the land, on the theory that there was no effective delivery of the deed to the wife.

The testimony shows that the method adopted in securing, holding and transferring the title to this land was well understood between the husband and wife. She was a mere figurehead, investing no money, and with her consent, her husband was acting for her. When the deed was delivered to McHenry by Little it was not necessary for McHenry to declare that he received it for her, nor for the wife to make any declaration in regard to a title that was absolute on its face. The title to the land passed to her at that time and the rights of McHenry’s creditors can rise no higher than his own, and as he cannot challenge her title, neither can they. Little could not have recalled the deed after the delivery to the husband and the transaction as to Little was complete, so that the delivery became effective for the grantee named in the deed.

The sufficiency of the physical delivery of this deed to the husband for the wife was the only question urged by the appellant, save a second proposition that was raised in regard to a matter of practice. The record shows that during the progress of the trial the court was disposed, and so stated, to give binding instructions for the defendant. The printed record does not show that a point, at plaintiff’s instance, was presented requesting binding instructions in favor of the plaintiff, but that this was done, is stated by appellant in his argument, and also that such a point was in fact affirmed by the court. A point of like nature was presented by the defendant and subsequently withdrawn, so that, by the affirmance of the plaintiff’s point and an exception thereto, on a motion for judgment non obstante veredicto, the legal question involved could be disposed of on argument. That such was the fact is averred by the appellee and is not denied either in printed or oral arguments. Further the court states it was so agreed by counsel, and we are not disposed to consider this phase of the case as a reversible error, it being considered a consentable irregularity that was waived at the time.

The judgment is affirmed.


author: Per Curiam,

text:
    Geddis v. Samsel, Appellant.

      Negligence—Animals—Death of mule—Contributory negligence.

    In an action of trespass to recover damages for the loss of a mule by drowning in a canal, in a collision with another team going in an opposite direction, the plaintiff cannot be charged with contributory negligence as a matter of law because he permitted his team of three mules to be driven at night on the towpath by a boy thirteen years of age of slight build. In such a case where the evidence is conflicting as to the contributory negligence of the boy the case is for the jury.
    Argued Nov. 23, 1910.
    Appeal, No. 147, Oct. T., 1910, by defendant, from judgment of C. P. Bucks Co., Dec. T., 1909, No. 11, on verdict for plaintiff in case of Howard Geddis v. Jordan P. Samsel.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Aifirmed.
    Trespass to recover the value of a mule. Before Stout, P. J.
    The opinion of the Superior Court states the case.
    The defendant presented the following point:
    The plaintiff having suffered a boy of thirteen of slight physical build to drive his team of three mules upon and along the towpath after dark, it being the duty of said team under the custom or rule prevailing among boatmen upon said canal to turn to the left and stop when it met boats and teams coming from the opposite direction to enable such teams to pass, and the accident happened in consequence of plaintiff’s team’s failure ,to turn to the left and stop, the plaintiff was guilty of contributory negligence in intrusting his team to a child of such years and strength, under the circumstances, and cannot recover. Answer: Refused. [1]
    Verdict and judgment for plaintiff for $138.' Defendant appealed.

      Errors assigned were (1) answer to point as above, quoting it; (2) refusal of binding instructions for defendant.

      Wm. C. Ryan, with him J. Kirk Leatherman, for appellant.

      W. Grim, of Grim & Grim, for appellee.
    March 3, 1911:
   Per Curiam,

The appellant contends that the plaintiff was guilty of contributory negligence in intrusting the direction and control of his team of three mules on a dark night to a boy thirteen years of age and of slight build, who, when the emergency arose which resulted in the drowning of one of the plaintiff’s mules, was unable to control the team and discharge the duty which was then and there chargeable to the plaintiff; that this contributed to, if it was not wholly the cause of the accident, and that therefore the plaintiff was^not entitled to recover. If all the facts stated in this proposition were admitted or undisputed it may be conceded that the court ought to have affirmed the defendant’s points for binding instructions. But they were not all undisputed, and we cannot agree that the mere fact that the driver of the plaintiff’s mules was1 but thirteen years of age was sufficient, standing alone, to warrant the court in declaring, as matter of law, that the plaintiff was guilty of negligence which contributed to the accident. There was a conflict of evidence as to some of the other material facts, which is clearly and fairly set forth in the following portion of the judge’s charge: “As said before, the negligence of the defendant consists in letting his mules go upon the towpath unattended or without a driver. The alleged contributory negligence under which the plaintiff seeks to avoid liability in this case consists in the fact that the boy left in charge or put in charge of the three mules was but thirteen years old, and of slight build, and as the defendant alleges he did not stop his mules. On the other hand, the plaintiff claims and argues to you that there is evidence in this case from which you can find that he did stop the mules. If you believe the testimony óf Mr. Geddis, who claims to have seen what transpired upon the bank when those mules came together, as well as the little boy who was in charge, the rule.of the canal of mules to the left and boats to the right was strictly observed so far as they were concerned. The boy states that he took his mules when they came together and led them to the very edge of the towpath away from the water, giving the road or that part of the towpath which the up-going mules were entitled to, to them; but when they came up, instead of the mules taking the inside or the water side of the towpath as they should have done, turned to the right and got down beyond the edge of the towpath in order to get around them; that he stopped his mules as he claims, and attempted to stop the other mules. Whether he actually took them by the head I do not recollect, but he did testify that he tried to stop the mules but could not, and that they persisted in going to the right and passed his mule in that way, and by doing so the towline of the up-going boat caught the mule under the neck, and as they went along and the boat drew up close to the mules it drew the mule over into the canal. Now the defendant claimed that this boy was too young and not of sufficient strength, and that he did not' perform his duty. Now I do not see that as a matter of law the court can say that a boy of thirteen years of age is too young to drive mules on a canal. If that boy performed the duties that were incumbent upon him, I take it it makes no difference whether or not he was thirteen years old or twenty years old. It will be for you to determine under the facts as testified to whether or not he observed the rules of the traffic, that is, in keeping his mules to the left, boat to the right, and whether or not he stopped his mules about the time when the mules came together and the boats were being put in shape for passing. And if he performed all his duties that a driver of those mules should have done, I take it it makes no difference even if he was thirteen years old or of slight build. Whether or not he is an intelligent witness is for you to determine. You saw him on the stand, his physique and his intelligence, and whether or not he would be a boy likely to be capable of performing such duties as were imposed upon him in that kind of work is for you. If he in any way failed to perform what a mule driver under those circumstances ought to have done, and by such failure to perform such a duty he contributed to the accident that did occur, then of course the plaintiff cannot recover.” This is a fair presentation of the respective contentions of the parties under the evidence, and nothing further need be said in support of the conclusion that the question of contributory negligence could not have been withdrawn from the jury-and decided by the court as matter of law.

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