text:
    Heide v. Baltimore & Ohio Railroad Company, Appellant.

      Malicious prosecution — Malice—Want of probable cause — Evidence— Case for jury.

    In an action to recover damages for malicious prosecution the case is for the jury where the evidence for the plaintiff although contradicted in its essentials by the evidence of the defendant, tends to show that the plaintiff was not guilty of the offense charged against him, that when he was brought before the magistrate by the constable who arrested him, no witnesses were called against him, and that he was discharged without a hearing.
    Argued May 12, 1909.
    Appeal, No. 9, June T., 1909, by defendant, from judgment of C. P. Butler Co., June T., 1909, No. 9, on verdict for plaintiff in case of Jacob Heide v. The Baltimore & Ohio Railroad Company.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for malicious prosecution.
    The opinion of the Superior Court states the case.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $300. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      R. P. Scott, for appellant, cited:
    Teal v. Fissel, 18 W. N. C. 71; Fry v. Wolfe, 43 W. N. C. 124.

      J: D. Marshall, for appellee, cited:
    Coyle v. Shellenburg, 30 Pa. Superior Ct. 246; McClung v. Dearborne, 134 Pa. 396; Barhight v. Tammany, 158 Pa. 545; Fry v. Wolf, 8 Pa. Superior Ct. 468.
    October 11, 1909:
   Opinion by

Henderson, J.,

To sustain the plaintiff’s action it was necessary that he show malice and want of probable cause. This he proceeded to do by offering evidence tending to prove that he was not guilty of the offence charged in the complaint and that when he was brought before the magistrate by the constable who arrested him no witnesses were called against him and he was discharged without a hearing. Evidence was also offered from which it might be inferred that the prosecutor and other employees of the defendant co-operating with him caused the arrest of the plaintiff to enable them to take possession of the premises claimed by him, in his absence, and remove the fence and trees at a place where construction work of the defendant was in progress. As the case stood then, at the close of the plaintiff’s evidence, there was a denial of the commission of the offence, proof of the discharge of the defendant without hearing by the magistrate and evidence of an unlawful motive for the prosecution. This testimony took the case to the jury, for want of probable cause is evidence of malice and there was not only the defendant’s denial of reasonable ground for believing him guilty, but the discharge by the examining magistrate, which is prima facie evidence of want of probable cause and as a general rule casts the burden of proof of probable cause on the defendant: Bernar v. Dunlap, 94 Pa. 329; Barhight v. Tammany, 158 Pa. 545; Fry v. Wolf, 8 Pa. Superior Ct. 468. The defendant introduced evidence tending to justify the arrest and to show that the discharge by the magistrate was the result of a negotiation between the prosecutor and the plaintiff, the latter agreeing to permit the workmen of the defendant to occupy the land claimed by him and try the question of trespass in a civil proceeding. 'There was a clear issue of fact presented, therefore, and whether the burden of proof as to probable cause was on the plaintiff or on the defendant there was evidence by the plaintiff on that subject to be submitted to the jury. As the only error alleged is that the court should have given binding instructions for the defendant the assignment must be overruled. It was for the jury to determine under the evidence whether the complaint was made in a well grounded belief of the guilt of the defendant and if the jury found there was not this probable cause they were at liberty to infer malice. As the verdict was for the plaintiff it is evident that the plaintiff established his case to the satisfaction of the jury both on the subject of malice and want of probable cause. The defendant’s point was properly denied.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Hill v. Freeport Waterworks Company, Appellant.

      Negligence — Water companies — Defective plug — Contract with borough.

    Where a water company had a contract with a borough to control and repair a fire plug in a street for a term of years, and the company after the term specified had expired continues with the consent of the borough to control the plug as before, and permits it to fall into disrepair and a neighboring owner’s property is injured by water flowing through the plug, the question of the liability of the water company for the injuries sustained is for the jury.
    Argued May 10, 1909.
    Appeal, No, 20, April T., 1909, by defendant, from judgment of C. P. Armstrong Co., June T., 1907, No. 25, on verdict for plaintiff in case of Jeff. Hill v. Freeport Waterworks Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to real estate. Be-Patton, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $45.00. Defendant appealed.

      Error assigned among others was refusal of binding instructions.

      R. A. M’Cullough, with him George M. Hill, for appellant.

      R. L. Ralston, with him Rush Fullerton, for appellee.
    October 11, 1909:
   Opinion by

Henderson, J.,

The plaintiff’s action was for damages resulting from the use by the defendant of a water plug which it knew to be in a defective condition when so used. That the fire plug was in a defective condition is admitted and the evidence leaves little room for doubt that the plaintiff’s injury was caused by the action of the water flowing through the plug. The case might well have been submitted to the jury on the evidence tending to show co-operation of the defendant and a paving contractor in the use of the plug in delivering water on the street for their mutual advantage. The learned trial judge, however, held that liability for the injury depended on the question whether the defendant or the borough was bound to make repairs on the fire plugs in the borough. Bearing on this question a contract was produced by the defendant on notice, according to which the defendant agreed to furnish water to supply all fire plugs that the borough might place within the borough limits, for a period of five years from the second day of March, 1896, the borough to pay for the fire plugs and the cost of attaching the same to the mains, the said fire plugs to be under the control of the defendant and subject to all provisions and rules that it might make to prevent waste, and to be used only for fire purposes. This contract expired by its terms before the injury to the plaintiff, but evidence was introduced from which the jury might infer that the parties acted in accordance with it after the limitation fixed therein. There was also evidence that repairs were made from time to time by the defendant and bills presented to the borough for the cost thereof which were paid and as it does not appear from any evidence introduced that these repairs were made pursuant to any action of the borough council a jury might well conclude that the water company made them at its own initiative in accordance with the continued operation of the contract putting the fire plugs under its control. In that case the contract relation of the defendant and the borough existed in parol in part at least and it was not the duty of the court to interpret the contract. The construction of a written instrument is for the court, but where it is supplemented by evidence of pertinent facts not within the writing and necessary to its proper understanding the jury is to dispose of the whole evidence. It was relevant to the inquiry to know what construction the parties to the contract had put upon it during the period which it covered and also whether it had in effect been extended by the conduct of the parties, and parol evidence was offered on these points in connection with the contract. The defendant was given all the opportunity to which it was entitled to show its relation to the borough and to the control and use of the fire plugs and the facts were found against it under a charge of which the appellant can not successfully complain. It is not necessary to separately consider the numerous assignments of error.

The judgment is affirmed.


author: Porter, J.,

text:
    Wallace’s Estate.

      Executors and administrators — Appeals—Decree of distribution.

    1. An executor in his official character has no standing to maintain an appeal from a decree distributing the fund in his hands.

      Husband and wife — Marriage—Proof of marriage — Presumption— Widow’s exemption.

    2. Where a woman claiming the widow’s exemption from the estate of a decedent, had been formally married to the decedent, and swears that she has never been married to any other man, the fact that she had cohabited with another man, had been reputed his wife, and had borne an illegitimate child to him, raises no such conclusive presumption of her marriage to such man, as will invalidate her marriage with the decedent; and if it appears that she had maintained the family relation with the decedent until he became so ill that he had to be removed to a hospital, she will be entitled to her exemption.
    Argued May 13, 1909.
    Appeal, No. 53, April T., 1909, by Chester W. Wallace, from decree of O. C. Lawrence Co., March Term, 1908, No. 25, dismissing exceptions to report of auditor in Estate of Isaac J. Wallace, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Richard F. Dana, Esq., auditor.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing exceptions to auditor’s report.

      J. Clyde Gilfillan and Robert K. Aiken, for appellant.
    Unequivocal and frequent admissions of marriage accompanied by long continued cohabitation and reputation are frequently most satisfactory evidences of marriage: Richard v. Brehm, 73 Pa. 140; 2 Greenleaf’s Evidence, sec. 462; Thorndell v. Morrison, 25 Pa. 326; Greenawalt v. McEnelley, 85 Pa. 352; Lehigh Valley R. R. Co. v. Hall, 61 Pa. 361.
    There is no evidence that Lauretta Wallace ever visited Isaac J. Wallace during his illness in the hospital or ever saw him again from the time she left his home in company with her former husband, or that she even attended the funeral: Reel v. Elder, 62 Pa. 308; Coates’s Est., 6 W. N. C. 367.
    It has always been held in this commonwealth that desertion or misconduct on the part of the wife deprives her of the right to a widow’s exemption: Odiorne’s App., 54 Pa. 175; Nye’s App., 126 Pa. 341.

      W. D. Wallace, with him David N. Keast, for appellee.
    Reputation and cohabitation are not marriage, but only facts from which marriage can be presumed; nor does a relation shown to have been illicit at its commencement raise any presumption of marriage: Grimms’ Est., 131 Pa. 199; Hunt’s App., 86 Pa. 294; Hine’s App., 10 Pa. Superior Ct. 124.
    Actions of the wife are immaterial so long as she remains a part of his family at the time of his death: Reilly’s Est., 28 Pa. C. C. Rep. 544; 12 Pa. Dist. Rep. 326; Hill v. Hill, 42 Pa. 198; Carpenter’s Est., 170 Pa. 203; Johnson’s Est., 29 Pa. Superior Ct. 255.
    October 11, 1909:
   Opinion by

Porter, J.,

This is an appeal from a decree of distribution; the appellant alleging that the court below erred in awarding the $300 exemption to Lauretta A. Wallace, the alleged widow of the decedent. The appeal is by Chester W. Wallace, the executor of the will of decedent, and so far as disclosed by the record as printed in the paper-book of the appellant his only connection with the case is in his character as executor. That an executor, in his official character, has no standing to maintain an appeal from a decree distributing the fund in his hands is too well settled to require discussion. This appeal might be dismissed upon that ground alone, but we will briefly consider the single question raised by the specifications of error. The appellant contends that the court erred in awarding to the widow the exemption of $300, under the Act of April 14, 1851, P. L. 612, for the reason that she was not the lawful wife of the decedent. The consideration of this question involves a brief reference to the testimony material to its determination.

There can be no doubt under the evidence that Isaac J. Wallace, the decedent, and Lauretta A. Wallace, the alleged widow, had been the parties to a marriage ceremony in all respects regular and formal, but the appellant contends that the marriage was invalid, for the reason that the woman then had another husband in full life. Evidence was produced before the auditor which, if believed, established that there had existed an intimate relation between one Thomas McNerney and Lauretta A. Strack, who now claims to be Lauretta A. Wallace, the widow of Isaac J. Wallace, deceased. The evidence clearly indicated that this relation was at its inception meretricious. An illegitimate child was born of the body of the woman and took the name of McNerney. The woman with the child and in company of McNerney went from Washington county, Pennsylvania, to visit her family who resided in the state of Delaware and she and McNerney told her family that they were married; McNerney remained there for a short time and then departed, leaving the woman and child at the house of her father and mother, where she continued to live until the death of her father some time afterwards; upon the death of the father the mother removed with the other members of the family to Beaver, Pennsylvania; this was some fifteen years ago. After that time the woman and McNerney cohabited for periods of more or less duration at many different places, and were reputed to be man and wife, and there was evidence that they had stated themselves to be such. McNerney has always provided for the child, and visits her wherever she may be with her mother at intervals of a month or two. The woman and Mc-Nerney had been separated for some time when the former was employed by Isaac J. Wallace, the decedent, as a housekeeper, and went to live at the house of Wallace, taking her daughter with her. Some time after she had been keeping house for Wallace they went to Youngstown, Ohio, on July 11, 1903, and were there married. There was evidence which established that Wallace knew all about her previous relations with Mc-Nerney and of the birth of the child. The widow appeared before the auditor and testified. She admitted that she had borne an illegitimate child to McNerney and positively denied that she had ever been married to him.

Testimony upon which the appellant relied to establish a marriage between McNemey and this woman was that which established cohabitation of the parties, the repute that they were husband and wife, and their declarations that they were husband and wife. There was no attempt made to show that there had ever been any marriage ceremony or contract, nor is there anything in the evidence to indicate when and how this couple became man and wife. Cohabitation and reputation, are not marriage; they are simply evidence, giving rise, when conjoined, to a presumption of marriage which, however, is rebuttable and wholly disappears in the face of proof that no marriage in fact has taken place; nor does a relation shown to be illicit at its commencement raise any presumption of marriage: Yardley’s Estate, 75 Pa. 207; Hunt’s Appeal, 86 Pa. 294; Grimm’s Estate, 131 Pa. 199; Hines’s Estate, 10 Pa. Superior Ct. 124. The appellant relied upon parol testimony which established facts from which he contended that the presumption of another fact arose. Even if the facts which were proved be conceded to be true, the presumption which he seeks to draw from them is a rebuttable presumption, and there was direct and positive testimony rebutting that presumption. Had this been a case in which the question of fact was to be passed upon by a jury, the evidence was such that a verdict finding that the woman never had been married to McNerney could have been sustained. The auditor having so found upon that question and that finding having been confirmed by the court, we cannot say that it is so manifestly erroneous as to justify us in reversing the finding.

The appellee having been the lawful wife of Isaac J. Wallace, as found by the court below, and having cohabited with him as such until it became necessary to take him to a hospital during his last illness, she was presumably entitled to the widow’s portion of his estate. The finding of the auditor and the court below that the family relation existed between them at the time of his death is sufficiently supported by the evidence, and we do not feel warranted in disturbing the decree.

The decree of the court below is affirmed and the appeal dismissed at cost of the appellant.


author: Beaver, J.,

text:
    Stoner v. Pennsylvania Fuel Supply Company, Appellant.

      Negligence — Natural gas company — Explosion of gas — Evidence—Contributory negligence — Case for fury.

    1. In an action against a natural gas company to recover damages for injuries arising from an explosion of gas in plaintiff’s cellar, the case is for the jury where there is evidence tending to show that the gas could only have come from one of defendant’s gas lines, and that it could have escaped from a break in such line.
    2. In such a case the plaintiff’s contributory negligence is also for the jury where the evidence shows that the plaintiff lighted a match in the cellar; that the service pipes in the cellar were in a good condition; that there was a large amount of cubic air therein; that there were five open windows, an open cellar door and an outside door full of cracks; that there was an open gaslight burning in the cellar a few feet from the point of explosion; and that plaintiff’s method of ascertaining the source of the leak was a proper one according to expert testimony.
    3. In such a case an employee of the defendant is not competent to express an opinion that it was impossible for gas to escape from defendant’s line into plaintiff’s cellar, where he gives no facts upon which such an opinion may be stated.
    Argued May 10, 1909.
    Appeal, No. 129, April T., 1909, by defendant, from judgment of C. P. Armstrong Co., June T., 1908, No. 151, on verdict for plaintiff in case of John B. Stoner v. Pennsylvania Fuel Supply Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries sustained from an explosion of natural gas in plaintiff’s cellar. Before Patton, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned were various rulings on evidence and instructions.

      Orr Buffington and C. E. Harrington, for appellant.
    There is no presumption of negligence from the explosion of gas: McKenna v. Gas Co., 193 Pa. 633.

      Plaintiff was guilty of contributory negligence: Monongahela City v. Fischer, 111 Pa. 9; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Lynch v. Erie City, 151 Pa. 380; Butler v. R. R. Co., 126 Pa. 160; Mitchell v. Stewart, 187 Pa. 217; Kibele v. Philadelphia, 105 Pa. 41; Hartman v. Gas Co., 210 Pa. 19; Plonk v. Jessop, 178 Pa. 71; McCoy v. Gas Co., 213 Pa. 367.

      E. O. Golden, for appellee.
    The case was for the jury: Shirey v. Gas Co., 215 Pa. 399; Mose v. Gas Co., 4 Fost. & F. 324.
    October 11, 1909:
   Opinion by

Beaver, J.,

This case was clearly for the jury. It bristled with facts seriously disputed. Was the defendant guilty of negligence? This, as the court below clearly intimated in its reply to one of the plaintiff’s requests for charge, could not be presumed. It must be established by competent evidence, and as to it there was, as we view it, abundant testimony from which the jury could legitimately find the negligence of the defendant, without which it was impossible for the plaintiff to recover.

The action was for damages arising from the explosion of gas in the plaintiff’s cellar, which, from the very nature of the case, must have come from one of three distinct and several sources. Defendant attempted to show that it was impossible for the gas which unquestionably collected in the cellar of the plaintiff’s house to have escaped from its line of pipe. On the other hand, the plaintiff attempted to show that there was no other source from which the gas could have escaped, except the line of pipe belonging to the defendant, the Karns line being, as was alleged, practically new and in thorough repair, and the Pew line, as it was called, having no gas in it near the plaintiff’s hotel, being what is called in gas parlance a dead line. If these facts were true, these last two sources were eliminated and it left the defendant’s line the only one from which the gas could escape and collect at the place where the explosion occurred. There was evidence of a broken X on the defendant’s line and that, after it was removed, no gas escaped. It is, therefore, manifest that there was testimony relating to the necessary facts from which the jury could legitimately reach a conclusion as to the defendant’s negligence.

Was the plaintiff guilty of contributory negligence? This question also depended upon the finding of the jury as to disputed facts. When the defendant descended to the cellar to make an examination in reference to the escape of gas, was the cellar open? Was it a fact, as testified by the plaintiff’s witnesses, that a door and five windows, through which any gas which might have collected there could escape, were open? Was it a fact that there was a gas jet burning in the cellar, so that, if the gas was there in quantity, it would have necessarily exploded? Was it true, as alleged by the plaintiff, that the smell of gas was more noticeable on the second floor of the hotel than in the cellar? Was he, therefore, justified in lighting a match, in order to ascertain whether or not there was a small leak of inconsiderable amount which could only be ascertained by bringing a light in close contact with the place at which the leak occurred? These were questions upon which the jury alone could pass, and it seems to us clear that, under the circumstances, the court would not have been justified in determining either that the defendant wds not negligent or that the plaintiff had contributed in any way by negligence to the accident which occurred by reason of the explosion of the escape of gas under the pavement into the cellar of his house.

In Hartman v. Citizens’ Natural Gas Co., 210 Pa. 19, the rule, as laid down by the court below, quoted with approval by the Supreme Court, was: “The rule .... is that natural gas companies are held to a degree of care which is commensurate with the dangerous character of the agency which is handled. The measure of care is not that of an insurer to every one who sustains loss by reason of gas escaping and exploding, but it is liable for an explosion where it knew or by the exercise of ordinary care should have known of the defect in its pipes or mains. That, gentlemen, briefly defines the position of the law, or the rules to which the defendant must be held, not to be an insurer against every accident, because there are many contingencies which might arise where a defendant by the exercise of the best care that human effort could give under certain circumstances could not possibly avoid accident, and the law does not require the highest possible degree of care, but-that ordinary care and prudence demanded by the character of the agency handled:” Koelsch v. Philadelphia Co., 152 Pa. 355; Heh v. Gas Co., 201 Pa. 443.

In Plonk v. Jessop, 178 Pa. 71, Mr. Justice Mitchell, delivering the opinion, said: “The knowledge of the explosive character of gas certainly may be presumed to be general among persons who have it in their houses, and plaintiff admitted such knowledge. But how far a smell of gas indicates a leak that may safely be searched for with a match or candle, and at what point it means danger of explosion in so doing, is a question requiring judgment and some experience. Plaintiff had seen indications of a leak, had seen it searched for by defendant’s men with matches and a light, and had then been told that everything was right. When after that he smelled gas it could not be said as a conclusion of law that he necessarily had reason to suppose he would find anything more than a leak that might be safely searched for with a light as he had seen done by the defendant’s men earlier in the day. He may have been negligent in going into the attic as he did, but we think it is for a jury and not the court to say so.”

In the case under consideration, the question of the plaintiff’s contributory negligence was quite as much for the jury as in that above cited. There was here evidence that the service pipes in the plaintiff’s cellar were in good condition; that there was a large amount of cubic air space in the cellar; that there were five open windows and an open cellar door, with the outside door full of cracks, giving abundant vent for any accumulation of gas which may have found its way from the gas main in front under the pavement into the cellar. It was also in evidence that there was an open gas light burning in the cellar a few feet from the point of explosion. Expert plumbers also testified that the manner in which the plaintiff sought to ascertain the source of the leaks in the pipe was a proper one. It seems to us clear, therefore, that the question of contributory.negligence, as.the court instructed the jury, was not for the court but for the jury. It follows that the answer of the court to the defendant’s first point, that “Under all the evidence in this case, a verdict must be directed for the defendant,” which was refused, was entirely proper. And so of all the points of the defendant which were refused, in which the defendant sought to secure the affirmance of a point which made it incumbent upon the jury to find for the defendant. The court affirmed none of these points in the form stated, but did qualify the refusal in such a way as to affirm the general principles of the law relating to negligence and contributory negligence on the part of the defendant and plaintiff, respectively.

The defendant called as a witness H. J. Crawford. After a preliminary question as to his hearing of the testimony previously offered in the case, he was asked: “Q. State whether or not, from your own knowledge of the Pennsylvania Supply Company’s line, in your judgment, whether it is possible for gas to escape from the main line of the Pennsylvania Fuel Supply Company’s line and seek its way in the cellar of the Globe Hotel?” This was objected to as incompetent and irrelevant, and the objection was sustained. In this we think the court was clearly right. It was not a question upon which the opinion even of an expert was competent. The jury could draw their conclusions from the facts of the case quite as fully and completely as could a person engaged in the gas business, as this witness had been in previous years. Although he had been a superintendent of the defendant company and had a general knowledge of its lines, he could not, in the nature of the case, have given an opinion based upon the facts without an examination of the lines, which in front of the defendant’s hotel were covered to a considerable depth by stone and dirt. He was, of course, competent to testify as to facts but not as to his opinion based upon facts of which he had no direct and immediate knowledge. The testimony of witnesses as to the condition of affairs in the immediate vicinity of the locus in quo and of the manner in which leaks in service pipes are ordinarily ascertained, objected to by the defendant, was, in our opinion, properly admitted.

We have read with care the charge of the court and the answers to points for charge of both plaintiff and defendant and are at a loss to discover anything therein of which the defendant can fairly complain. The case was fully covered in the charge, the testimony of plaintiff and defendant being rehearsed in such a way as to recall the main facts to the attention of the jury. The rights of the defendant were carefully guarded and the duty of the plaintiff as to the necessity for showing by a preponderance of the testimony the negligence of the defendant and that his case was clear of contributory negligence fully explained. Although there are twenty-one distinct assignments of error, they are argued under four general propositions to which we have alluded in such a way as to cover the entire case.

The case was fairly tried and adequately presented to the jury, the verdict was reasonable in amount, and we can see no sufficient reason for any interference on our part.

Judgment affirmed.


text:
    Arthurs, Appellant, v. Wilson.

      Land, law — Surveys—Boundaries—Instructions.
    1. On an issue to determine the location of a particular line of a survey it is reversible error to affirm without qualification a point which leaves out of view entirely one of the principal facts upon which the location of the tract in controversy is necessarily based; and this is the case although the court in its general charge has correctly laid down the law as to the controlling effects of the marks upon the ground, and of the courses and distances of a survey in the absence of the marks or of the evidence of their previous existence.
    2. The correct statement of the law in the general charge does not counteract the effect of the affirmance of an erroneous principle contained in a prayer for specific instructions or a point for charge.
    Argued May 3, 1909.
    Appeal, No. 34, April T., 1908, by plaintiff, from judgment of C. P. Jefferson Co., Jan. T., 1904, No. 3, on verdict for defendants in case of Samuel B. Arthurs v. Annie L. Wilson et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass vi et armis to recover damages for an alleged illegal taking of lime from the property of the defendants. Before Reed, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for defendants. Plaintiff appealed.

      Errors assigned were (1, 2) the instructions quoted in full in the opinion of the Superior Court.

      Charles Corbet, with him Clark & Stewart, for appellant.

      Cadmus Z. Gordon, for appellees.
    October 11, 1909:
   Opinion by

Beaver, J.,

The court below clearly and correctly, in the general charge, instructed the jury as to the facts and the law relating thereto by which they were to determine the location of the eastern line of a survey, based upon a warrant known as No. 3,927. The original survey in pursuance of this warrant was made on September 27, 1793, but having been found to interfere with prior surveys it was finally located by William P. Brady, deputy surveyor, upon an order from the Board of Property, between January 13, 1795, the date of the order, and February 3, 1795, when the survey was returned to the land office. According to this survey, as returned, the southwest corner was a white oak, the northwest corner a chestnut, the southeast corner a cucumber and the northeast corner a maple. The western line of the survey does not seem to have been in dispute, being well known and located. At about the proper place there was a dead cucumber in such a state of decay that it could not be definitely determined from the remains of the tree whether or not it was the original southeast corner of the tract. It seems, however, to have been regarded by both sides as fixed by repute and general consent as the original corner and is so assumed by the defendants.

The principal question of fact in dispute between the plaintiff and defendants was the location of the maple corner, as called for, as to which the surveyors of the plaintiff and defendants differed. The tree had disappeared. The plaintiff’s surveyors located the point at which it had grown and been located by the surveyor as the northeast corner of the tract by general repute and the consent of the people of the immediate vicinity. If the true east line of the survey made upon warrant No. 3,927 was a line connecting the cucumber and the maple, as located by the plaintiff’s surveyors, the land in dispute belonged to the plaintiff. If, however, the maple corner was not at the point designated by plaintiff’s surveyors and could not be located, the line, as pointed out by the court, would be the one starting from the cucumber and running north one degree west, as of the date of the survey, which, as the court below said, with a proper variation of the magnetic needle, would now be about four degrees and thirty minutes east.

The court below in its charge to the jury from the paragraph beginning: “The survey calls for a maple at the northeast corner and for a cucumber at the southeast corner of the tract; and, if these trees were standing on the ground and it could be determined that they were the trees called for as marking these comers, all that would be necessary to establish the east line of the tract would be to run a straight line from one tree to the other, thus connecting the two corners,” to and including the paragraph: “If, after a fair and impartial, as well as careful, consideration of all the testimony, you are convinced that the line to which the plaintiff claims is the true line run on the ground for the purpose of closing warrant No. 3,927 and, therefore, the true east line of that warrant, then you will return a verdict in his favor for the value of the limestone which the defendant took from the land in question and converted to her own use. If you are not so convinced, but are satisfied that the line to which the defendant claims is the true east line of warrant No. 3,927, then you will find for the defendant,” correctly lays down the law as to the controlling effect of the marks upon the ground, as established by the surveyor and called for in the return of survey, and the character of the evidence by which the existence of such marks at the time of the survey can be determined, and also correctly states the law as to the controlling effect of the courses and distances of a survey in the absence of the marks or of evidence of their previous existence.

The defendants presented to the court in their third point for charge, this proposition: “3. If the jury find from the evidence that the cucumber stub represented on the maps of the plaintiff and defendants as at the southeastern corner of tract No. 3,927, and the northeastern corner of tract No. 2,930, is the original corner of said tracts at that point, then, in the absence of any evidence of other marks bearing the date of 1795, upon the lines of tract No. 3,927, the eastern line of said tract must be ascertained by running a line from the cucumber corner north one degree west (as of the magnetic bearing of 1795), 320 rods in accordance with the official return of the deputy surveyor, which fine, so run, will cast the land in dispute in this case in tract No. 3,927.” This was affirmed without qualification and is assigned for error and is relied upon as the principal error in the case.

The point itself, in view of the charge of the court which correctly stated the principles which must govern the location, was confusing and misleading. It apparently purposely ignores the previous existence and location of the maple comer, as called for by the survey of 1795, the location of which was, in the opinion of the plaintiff’s surveyors, definitely fixed. The point speaks of the absence of any evidence of other marks bearing the date of 1795 upon the “lines” of tract No. 3,927, but the court had said in its charge that, if the places of the cucumber and maple corners were fixed, the eastern line would necessarily be established by connecting these two corners, and it seems to us that the affirmance of this point should have been guarded by a qualification which would have called the attention of the jury to the true principles of location, as laid down by the court in its charge. The plaintiff, therefore, has good reason to complain of the unqualified affirmation of this point, inasmuch as it leaves out of view entirely one of the principal facts upon which the location of the tract in controversy was necessarily based. As has been often held in both of our appellate courts, the correct statement of the law in the general charge does not counteract the effect of the affirmance of an erroneous principle contained in a prayer for specific instructions or point for charge.

The second assignment of error is based upon a rather hypercritical view of the language of the court below in reference to the mental state of the jury, as influenced by the testimony of the plaintiff and defendants respectively. The language complained of is as follows: “ If, after a fair and impartial, as well as careful, consideration of all the .testimony, you are convinced that the line to which the plaintiff claims is the true line run on the ground for the purpose of closing warrant No. 3,927, and, therefore, the true east line of that warrant, then you will return a verdict in his favor for the value of the limestone which the defendant took from the land in question and converted to her own use. If you are not so convinced but are satisfied that the line to which the defendant claims is the true east line of warrant No. 3,927, then you will find for the defendant.” We can see little, if any, difference between the language used by the court as to the mental state of the jury in reaching a conclusion in favor of the plaintiff and in favor of the defendants. To be convinced is to be “satisfied by evidence in respect to truth or falsity.” To be satisfied is “to be free from uncertainty or doubt.” We confess that we are unable to see that the claim of the plaintiff that a higher standard of evidence was laid down by the court for him than for the defendants is well founded. The second assignment is, therefore, not sustained.

Believing as we do that the jury may have been misled by the unqualified affirmance of the defendants’ third point, which constitutes the first assignment of error, we are compelled to send the case back for a new trial, in accordance with the law, as clearly laid down by the court in its general charge.

Judgment reversed, with a new venire.


text:
    Barnesboro Borough v. Speice, Appellant.

      Road law — Personal action against owner — Assessment—Act of April 4, 1907, P. L. 40.
    1. The Act of April 4, 1907, P. L. 40, providing “that hereafter all municipalities of the commonwealth of Pennsylvania may proceed for the recovery or collection of any municipal claim or claims whatsoever by lien or by an action of assumpsit,” has no retroactive effect, and does not apply to the cases in which a road improvement had been completed and benefits assessed prior to the enactment of that statute.
    2. A statute must always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intention of the legislature.
    3. The Act of April 4, 1907, P. L. 40, imposes upon the owner of property a personal liability to which he was not subject before, and therefore affects rights and not merely the remedy.
    Argued May 3, 1909.
    Appeal, No. 192, April T., 1909, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1908, No. 540, overruling demurrer to statement of claim in case of Barnesboro Borough V. Martha Speice.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit under the Act of April 4,1907, P. L. 40, to recover an assessment against property for road benefits.
    The court in an opinion by O’Connor, P. J., overruled demurrer to statement of claim.

      Error assigned was the judgment of the court.

      M. D. Kittell, for appellant.
    An assessment by a municipality for paving a street is a tax, and cannot be collected as an ordinary debt by a common-law action, unless such remedy is given by statute: McKeesport Borough v. Fidler, 147 Pa. 532; Crafton Borough v. Richards, 17 Pa. 835.
    A municipal lien for street improvement is a proceeding in rem. It is filed against the abutting or adjacent property and involves no personal liability on the part of the owner: Emrick v. Dicken, 92 Pa. 78.
    An act imposing new liabilities will not be construed to-have a retroactive effect: Commonwealth v. Bessemer Co., 207 Pa. 302; Horn & Brannen Mfg. Co. v. Steelman Co., 215 Pa. 187; Smith v. R. R. Co., 36 Pa. Superior Ct. 584; Fahnestock v. Wilson, 95 Pa. 301; Tarentum Borough v. Moorhead, 26 Pa. Superior Ct. 273.

      Beuel Somerville, for appellee.
    The act affects merely the remedy: Krause v. P. R. R. Co., 2 Pa. C. C. Rep. 60; McFarland v. Township, 12 S. & R. 296; Penrose v. Erie Canal Co., 56 Pa. 46; Long’s App., 87 Pa. 114; Towamencin Road, 23 Pa. C. C. Rep. 113; Kille v. Iron Works, 134 Pa. 225; Lane v. White, 140 Pa. 99; Byers v. R. R. Co., 26 P. L. J. (N. S.) 447; Bolton v. Johns, 5 Pa. 145; Clark v. Herring, 5 Bin. 33; Greeves v. McAllister, 2 Bin. 591.
    When a right exists without a remedy, the legislature may rightfully provide one: Lycoming County v. Union County, 15 Pa. 166; Schenley v. Com., 36 Pa. 29; Miller’s Est., 18 Pa. Dist. Rep. 225.
    October 11, 1909:
   Opinion by

Porter, J.,

The plaintiff borough, upon petition of the requisite number of owners .of abutting property, graded, paved and curbed a street, under the provisions of the Act of April 23, 1889, P. L. 44, which authorizes an assessment upon abutting property under the foot front rule. The work was completed on November 26, 1906, and the borough engineer on January 3, 1907, made an assessment against the property of the defendant for the sum of $516. The statute under which the work was done did not authorize an assessment against the owner of the property personally, and the borough did not file a lien against the property under the authority conferred by that statute. The Act of April 4, 1907, P. L. 40, provides: “That hereafter all municipalities of the Commonwealth of Pennsylvania may proceed for the recovery or collection of any municipal claim or claims whatsoever by lien or by an action of assumpsit.” The plaintiff borough, on September 2, 1908, brought an'action of assumpsit against the appellant for the recovery of the amount of the assessment which had been made against her property in January, 1907. The defendant filed an affidavit of defense, averring that upon the facts hereinbefore stated she was not personally liable, in this action, for the amount of said assessment. The court below entered judgment for want of a sufficient affidavit of defense, and the defendant appeals. The only question raised by the specifications of error, and argued in this court, was whether the act of 1907 should be given a retroactive effect and held to apply to cases in which the improvement had been completed and the assessment of benefits, alleged to have resulted from it, made prior to the enactment of that statute. The view which we take of the case renders it unnecessary to consider whether the Act of April 4, 1907, P. L. 40, applies to assessments made under the Act of April 23,1889, P. L. 44, or what defenses a defendant may make to an action of assumpsit brought upon a municipal claim under the provisions of the statute first mentioned.

The plaintiff is not entitled to recover in this action unless the statute of 1907 is to be given a retrospective effect; for at the time the work was done and until long after the assessment for it was made the defendant was not liable personally to be called upon to pay this charge. An assessment by a municipality for improving a street is a tax and cannot be collected as an ordinary debt by a common-law action, unless such remedy is- given by statute: McKeesport v. Fidler, 147 Pa. 532; Philadelphia v. Merklee, 159 Pa. 515; Philadelphia v. Bradfield, 159 Pa. 517; Franklin v. Hancock, 18 Pa. Superior Ct. 398; s. c., 204 Pa. 110. It is within the legislative power of the commonwealth to grant to municipalities a remedy for the collection of taxes against property by a personal action against the owner: Weber v. Reinhard, 73 Pa. 370; In re Centre Street, 115 Pa. 247; Vacation of Howard Street, 142 Pa. 601; Com. v. Mahon, 12 Pa. Superior Ct. 616. The legislation under which the borough proceeded to make this improvement authorized only an assessment upon the property benefited, to be enforced by a proceeding in rem against that property; it imposed no personal obligation or duty upon the owner to pay. The property might be sold for the assessment, but the owner was free from any personal liability. Did the act of 1907 operate retrospectively, and impose on the defendant a personal liability growing out of transactions which had been completed before the statute was enacted?

The general rule undoubtedly is that legislation which affects rights will not be construed to be retroactive unless it is explicitly so declared in the statute. But where it concerns merely the mode of procedure it is applied, as of course, to litigation existing at the time of its passage: Kille v. Reading Iron Works, 134 Pa. 225. Retrospective laws may be supported when they impair no contract and disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, and do not vary existing obligations contrary to their situation when entered into and when prosecuted: Shonk v. Brown, 61 Pa. 320. “Retrospective laws generally, if not universally, work injustice, and ought to be so construed only when the mandate of the legislature is imperative:” Taylor v. Mitchell, 57 Pa. 209. “There is no canon of construction better settled than this, that a statute shall always be interpreted so as to operate prospectively and not retrospectively unless the language is so clear as to preclude all question as to the intention of the legislature:” Neff's Appeal, 21 Pa. 243; McCabe v. Emerson, 18 Pa. 111. These well-settled principles have never been departed from and have been recognized and reaffirmed in a long line of cases: Smith v. Railroad Company, 36 Pa. Superior Ct. 584; Com. v. Bessemer Company, 207 Pa. 302; Horn & Brennan Mfg. Co. v. Steelman, 215 Pa. 187; Lewis v. Pennsylvania Railroad Company, 220 Pa. 317. The principle established by these decisions rules this case. The act of 1907 contains no language which would warrant the construction that it was the legislative intention that the statute should have a retrospective effect.

The argument of the appellee, that the statute affects the remedy exclusively, is not well founded. The act imposes upon the owner of property a personal liability for claims against his property which, as to assessments of the character of that with which we are now dealing, had not existed. At common law not even the property was liable to a local assessment for benefits resulting from the grading and paving of a street; statutes had made the property chargeable on account of benefits resulting from such work, but no general statute had made the owner personally liable for benefits to his property resulting from the grading, paving and curbing of a street. Assessments on property peculiarly benefited by local improvements, is taxation, founded on the benefits peculiar to the property because of its location, and upon that ground have been sustained. As the peculiar benefit to the property is the foundation for the power to make local assessments, it follows that the amount of the benefits should fix the limit to the exercise of the power. Let it be assumed that ordinarily when a property is benefited by a local improvement, the owner is also peculiarly benefited to the full amount of the increase in value of the property, and that an assessment against the owner personally is the exact equivalent of an assessment in the same amount against the property. Yet it is manifest that in many cases this is not true. The title to a lot of ground may by the death of an ancestor be cast upon his heir, who enters into possession. The ancestor may have been a man apparently in prosperous circumstances; the heir may have believed him to have been such and may be entirely ignorant of the existence of any debts; but there may be in existence debts, not of record, which are liens upon the land to more than its full value. While affairs, are in this condition a municipal improvement is made which would benefit the property to a very large amount, and the property be properly chargeable for such benefits. Now under the law as it existed prior to the act of 1907 if the owner, the heir who had succeeded to the title, discovered that there were debts, not of record, owing by his ancestor, the lien of which rendered his ownership of the property but an empty name, he would have had the right to abandon the property and could not have been called upon personally to pay the municipal claim with which the property had become charged during his ownership. Since that act became the law an heir caught in this situation would not only lose the land, but find himself burdened with a personal liability to the municipality. Take the case of one who has long been the owner of an unimproved lot not favorably located. When a street upon which such a lot abuts is graded the property may be left far above or below the grade. The presumption is, certainly, that the assessment made upon the lot for benefits supposed to have resulted from such a work will not be more than the property is actually worth after the improvement is made, but that presumption is by no means conclusive. There have been cases in which it was sought to hold owners personally liable for assessments beyond the value of their lots. Justice Sharswood refers to such cases in his opinion in Hammett v. Philadelphia, 65 Pa. 146. The owner in all cases of this kind under the law as it formerly stood was fixed with no personal liability; the value of the lot, or of his estate in it, fixed a limit to any loss which he might suffer. Had the act of April 4,1907, merely provided a new remedy for enforcing the claim of the municipality against the property assessed and confined the remedy to that particular property, it might without violating any recognized principle have been held to be purely remedial and been given a retrospective effect. The statute, however, went far beyond that and imposed upon the owner of property a new and distinct obligation and duty and rendered him liable to answer in a personal action, as if upon an implied promise to pay. Any construction which would hold this statute to operate retrospectively would violate principles too well established to be disregarded.

The judgment is reversed and the record remitted with a procedendo.


author: Porter,, J.,

text:
    Barnesboro Borough v. Lampman, Appellant.
    Argued May 3, 1909.
    Appeal, No. 201, April T., 1909, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1908, No. 617, overruling demurrer to statement in case of Bafnesboro Borough v. H. G. Lampman, Jr.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      October 11, 1909:
   Opinion by

Porter,, J.,

This record presents only the same question which has been considered in the opinion this day filed in the case of this same plaintiff against Martha Speice, ante, p. 609, and for the reasons in that opinion stated the specifications of error are sustained.

The judgment is reversed and the record remitted with a procedendo.


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    Newton v. Smith, Appellant.

      Land law — Consentable line — Adverse possession — Estoppel.
    A consentable line may be established by parole, which will, under certain circumstances, bind the parties to an assent thereto. In order, however, to make such a line binding, it is necessary that there should be first, a dispute; second, the establishment of a line settling the dispute; third, the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith. If the parties to such consentable line take possession to the line and hold such possession for twenty-one years, the title becomes complete by adverse possession. Where such a line has been clearly established and the parties on each side take possession or surrender possession already held up to that line it becomes binding under the application of the doctrine of estoppel.
    Argued May 4, 1909.
    Appeal, No. 176, April T., 1909, by defendants, from judgment of C. P. Jefferson Co., Aug. T., 1908, No. 233, on verdict for plaintiff in case of George W. Newton v. Kate M. Smith et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Ejectment for acres of land in Washington township. Before Reed, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in refusing binding instructions for defendants.

      A. L. Cole, with him C. C. Benscoter, for appellant.

      W, L. Calkins, with him W. C. Pentz and Charles Corbett, for appellee.
    October 11, 1909:
   Opinion by

Beaver, J.,

Plaintiff brought his ejectment against defendant, who was a married woman, and her husband for a piece of land bounded on the one side by the land described in his deed and on the other by a parallel line, alleged to be a consentable line established and agreed to by them, as run by a surveyor who fixed the same as the boundary between their respective adjoining tracts of land. At the trial the defendant asked for binding instructions and subsequently for judgment for the defendant, non obstante veredicto. The point was refused and subsequently the motion for judgment denied. The action of the court as to both of those requests of the defendant is assigned for error.

That a consentable line may be established by parol which will, under- certain circumstances, bind the parties who assent thereto, is clearly established in Pennsylvania. In order, however, to make such a line binding, it is necessary that there should be, first, a dispute; second, the establishment of a line settling the dispute; third, the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith. If the parties to such consentable line take possession to that fine and hold such possession for twenty-one years, the title becomes complete by adverse possession. It has been held, however, that where such a line has been clearly established and the parties on each side take possession or surrender possession already held up to that line, it becomes binding, under the application of the doctrine of estoppel.

In the present case, there was little doubt as to a dispute between the parties to this suit — not perhaps a dispute as to the lines of the land conveyed to the plaintiff by his deed from John W. Smith, a brother of one of the defendants. The plaintiff, however, claimed that the lines in his deed did not embrace all the land intended to be conveyed to him and that there was a debatable strip between the line of his deed and the line to which the defendants had the right' to claim. This claim, however, was stoutly resisted by the defendants, and'a surveyor was called to compose the difficulty and settle the dispute. This was finally claimed to be accomplished by a rather circuitous method which sought to determine where the line of the plaintiff’s property, as it was intended to be conveyed, really was. It was asserted by the plaintiff, and borne out by his testimony, that such a line was established, and that he and the husband of the defendant, who was the owner of the land, assented to it. There is an- entire absence of testimony, however, as to the assent of the owner of the land. Plaintiff, in his cross-examination, referring to the survey and the establishment of the line referred to, in answer to the question, “You never talked to Mrs. Smith about this at all, did you?” said, “No, sir.” It is not alleged that she ever saw the line or that she and the plaintiff ever saw each other in regard to the establishment of the line. The most that is attempted on the' part of the plaintiff is to show that the surveyor who established the line pointed it out to her on the draft which he made of his work on the ground, but the surveyor does not say, and specifically declines to say, that she assented to it in any way. It is scarcely necessary to say that, under the plaintiff’s testimony, as thus described, there was no consentable line established between the plaintiff and the defendant owner.

When the original offer was made by the plaintiff, supposed to cover the case, it was objected that there had been no holding to the line established by the surveyor, claimed to be a consentable line, since its survey, and the court then said, “If their proof does not measure up to the offer as you say it is, then their case falls, but we cannot anticipate that.”

That there was no actual holding by the plaintiff to the so-called consentable line, is apparent from several considerations: first, the fact of his ejectment necessarily admits possession by the defendants; second, in his testimony in chief, he distinctly admits that one of the defendants, the husband of the owner, gave notice of his determination to back out, as he expresses it. He says: “I cleaned out a fence row through and got my material out on the ground to build the fence and about a week after the line was surveyed then he sent me word that he was going to back out. Q. You had gotten ready to build the fence, you say? A. I had gotten ready to build the fence. Q. What material had you on the ground? A. I had posts and wire, and mauls to drive the posts with.” And, third, on cross-examination, in answer to the question: “ Since you claim that ’Squire Kirk established this line, there has been no holding up to it by you and her by consent on each side, has there?” he said, “This new line? No, sir.”

The appellee, the plaintiff below, in his- argument, practically admits that the plaintiff and the real defendant never had any agreement between them and never discussed the question of a consentable line, but it is argued that S. J. Smith, the husband of the defendant, acting for her and in her behalf, assented to the final establishment of the line, to which the plaintiff claims. It is admitted by the plaintiff, however,, that, before any fence was built upon this line and before he took possession thereof, the said S. J. Smith repudiated it and refused to be bound by it. We cannot find in the testimony, however, anything which can, by any possibility, be construed into a delegation of authority by Kate M. Smith to her husband, Samuel J. Smith, to act for her in the settlement of the dispute which undoubtedly existed between the plaintiff and the defendants. On the contrary, when the plaintiff endeavored to establish an agency or authority from the wife to the husband, after giving considerable testimony showing that the husband acted for the wife in the farming operations and in their general business, the court refused to allow that testimony to stand as an authority for the husband to act for the wife in regard to the real estate, had it stricken from the record and directed the jury to pay no attention whatever to it. There is no other evidence which we can find which tended to establish an agency or to give the husband authority on behalf of the wife to consent to a line other than that established by the plaintiff’s deed. It seems to us, therefore, that the plaintiff wholly failed to establish any title to the land which he claimed. It was outside of his deed and he had no shadow of consent on the part of the owner, unless her husband acted for her and by her authority, and this the plaintiff failed to show affirmatively, and indeed failed to show any facts from which the jury could infer such authority.

After a careful reading of the testimony, we are of opinion that the defendants were entitled to a nonsuit at the close of the plaintiff’s testimony, and, inasmuch as both defendants absolutely denied any authority by the wife to the husband to act for her, and the wife denied any assent of any kind, either to the plaintiff, the surveyor or any other person, to the line as established on the ground by the surveyor, the request for binding instructions for the defendants should have been granted.

The principles which underlie the establishment of what is known as a consentable line in Pennsylvania are laid down very clearly by Mr. Justice Gibson in Perkins v. Gay, 3 S. & R. 327. It was also held in Adamson v. Potts, 4 Pa. 234, referring to Perkins v. Gay, 3 S. & R. 327, that, “To establish a consentable line between owners of adjoining tracts, knowledge of and assent to the line as marked must be shown in both parties.” See also Grogan v. Leike, 22 Pa. Superior Ct. 59.

Having failed to show any assent on the part of the defendant, Kate M. Smith, the owner of the land, or any authority given by her to her husband to act for her, or facts from which, such authority could be inferred, the plaintiff, we think, failed to establish any 'One of the essentials of a consentable line or in any way his right to the land for which the ejectment was brought.

Judgment reversed.


text:
    New Jersey Tile Company, Incorporated, v. Sharpless & Watts Company, Incorporated, Appellant.

      Contract — Sale of goods — Construction of contract — Discount.
    1. In an action to recover for goods sold and delivered, it appeared that plaintiff’s offer accepted by the defendant was as follows: “We hereby agree to furnish and ship to Philadelphia 18,000 sq. ft. of 2" Hexagon white floor tile. Price twenty-two (.22) cents sq. ft. packages thirty cents (.30) f. o. b. Trenton; 15%, 5% for cash 30 days, with 10 days’ grace "allowed for bill to be audited, passed and paid by the city authorities of Phila.” Held, that the fifteen per cent referred to was a discount from the gross price, and not merely a part of the discount for cash.
    2. The meaning of the offer was, price twenty-two cents square foot, less fifteen per cent; five per cent of the net bill off for cash thirty days, with ten days’ grace, etc.
    Argued Dec. 17, 1908.
    Appeal, No. 214, Oct. T., 1908, by-defendant, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 3,886, making absolute rule for judgment for want of a sufficient affidavit of defense in case of New Jersey Tile Company, Incorporated, v. Sharpless & Watts Company, Incorporated.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      M. Dos Passos, with him R. O. Moon, for appellant.

      William H. Shoemaker, for appellee.
    October 11, 1909:
   Opinion by

Beaver, J.,

Plaintiff claimed in the court below for certain merchandise, specifically described in its statement of account, delivery of which and the gross price of which are admitted by the defendant. Defendant, in its affidavit of defense, claims two distinct items of set-off specifically set forth therein: (1) A deduction of fifteen per cent from the purchase price of the goods, as contained in the plaintiff’s offer accepted by the defendant, which offer is: “We hereby agree to furnish and ship to Philadelphia 18,000 sq. ft. of 2" Hexagon white floor tile. Price twenty-two (.22) cents sq. ft. packages thirty cents (.30) f. o. b. Trenton; 15%, 5% for cash 30 days, with 10 days’ grace allowed for bill to be audited, passed and paid by the city authorities of Phila.” It is claimed by the defendant that the fifteen per cent mentioned herein means a discount of that amount from the gross amount of the bill. If there be any ambiguity in regard to this part of the offer of the plaintiff, which may be claimed, it was the subject of explanation on the part of the defendant by parol testimony. The court below for reasons which do not appear, no opinion having been filed, did not allow this' discount, judgment having been entered for the full amount of the claim.

As to this item, we are of opinion that the affidavit is good. The fifteen per cent referred to was evidently a discount from the gross price of the articles contained in the bill and was not, as apparently construed by the court, a part of the discount for cash. If it had been so intended, the figures fifteen per cent and five per cent should have been connected by the conjunctive “and.” As it is, they are separated by a comma. The plain meaning of the bill, therefore, was, price twenty-two cents square foot, less fifteen per cent; five per cent of the net bill off for cash thirty days, with ten days’ grace, etc.

The second item of set-off claimed by the defendant was under an article of agreement between David H. Watts, Jr., trading as Sharpless & Watts, under which the party of the first part, the plaintiff, “hereby appoints, selects and engages the said party of the second part,” Sharpless & Watts, “as its sole and exclusive agent in and for the city of Philadelphia and for a radius of thirty miles therefrom, with the sole and absolute right, liberty and privilege of handling, purchasing and dis-. posing of its first and second class vitreous floor tiles, numbered or in sizes 3x3, 3x1 J, 2-|x2£ and 2 hexagon, upon the terms hereinafter mentioned.

“That the said party of the first part shall not, and will not, sell or agree to sell, or enter into any agreement, compact or understanding with any other person or persons, individuals or corporations, as agent, contractor or purchaser, to furnish, supply or sell him or them, either directly or indirectly, in the city of Philadelphia, or within a radius of thirty miles therefrom, any of the aforesaid tiles, or tiles similar thereto, under any pretense whatever, nor do any act, matter, cause or thing that will in any manner interfere with or affect the validity of this agreement or the terms hereof.

“That the said party of the second part shall and will make return or pay for the said tiles as furnished to him from time to time by the second party during the continuance of this agreement, within sixty days or sooner after the same are delivered to him by the said party of the first part at such place or places as may be designated by the said party of the second part, subject, however, in every case to a discount of fifteen per cent on the price of the said tiles.”

It appears from the affidavit that Sharpless & Watts, as a partnership, subsequently incorporated and, as a partnership, assigned to the incorporated company this agreement. The plaintiff, as alleged, was notified of the incorporation and continued to deal with the defendant after such notice, on the same terms as it had dealt with the partnership. The affidavit sets forth specifically the sales made by the plaintiff within the exclusive territory granted to Sharpless & Watts by this agreement, assigned to the defendant as aforesaid, the names of individuals being given and the amount of sales made. It is claimed in the affidavit that the discount from these sales claimed by the defendant and the discount from the bill, for which recovery is here sought, exceeds the.amount of the claim of the plaintiff by the sum of $67.03, for which it is claimed a certificate will be asked.

The motion was for judgment for the whole amount of the plaintiff's claim and the rule was made absolute for said amount. Inasmuch as the plaintiff’s claim for the discount of fifteen per cent from the gross amount of the bill, as contained in its affidavit, has been considered by us as being proper, the judgment must be reversed. It is, therefore, unnecessary to pass upon the other question in the case. Upon the trial, the offer of evidence will determine whether or not the defendant should be allowed to show that the agreement with Sharpless & Watts as a partnership, for an exclusive agency and special terms, etc., was continued with the corporation, to which it was assigned as alleged. It may be that the defendant may be able to show such a condition as would warrant the submission of that question to the jury, but we do not determine that in advance of the offer.

Judgment reversed and record remitted with a procedendo.


text:
    Mellon v. Ohio German Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Construction of policy — Manufacturing establishment — Running plant at night.

    1. In determining what a contract of insurance means, the circumstances surrounding the making of it, and affecting the subject to which it relates may be taken into consideration in ascertaining the meaning of its provision as the parties understood it. Such a contract should have a reasonable interpretation, and when its words are susceptible of two interpretations that should be adopted which will sustain a claim to the indemnity to secure which it was entered into.
    2. Where the subject of fire insurance is a manufacturing establishment for the slaughter of live stock and the manufacture and cure of meat products, and the plant contains refrigerating appliances and electric light apparatus, a stipulation in the policy that the plant is not to be operated in whole or in part at night later than ten o’clock, is not to be construed as prohibiting the running of the electric light and cold storage plant after the hour named.
    3. In such a case it was not in contemplation of the parties that the daily product of the plant should be spoiled from lack of refrigeration, or that there should not be any light about the premises after ten o’clock or that all steam should be withdrawn from the boiler or all smoke blown out of the smokehouse before ten o’clock. Such an interpretation of the contract would permit the insurer to close the plaintiff’s manufactory or forfeit the indemnity secured by the policy.
    Argued April 22, 1909.
    Appeal, No. 51, April T., 1909, by-defendants, from judgment of C. P. Westmoreland Co., May T., 1907, No. 337, on verdict for plaintiffs in case of Blose & Mellon, a copartnership, v. Ohio German Fire Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Doty, P. J.
    The facts are stated in the opinion of the Superior Court.
    Defendants presented this point:
    -1. Under the law and all the evidence the verdict should be for the defendants. Answer: We cannot affirm this proposition because we conceive that the case necessarily turns on the question of fact which has been submitted to you for your determination. [1]
    The court charged in part as follows:
    [It is not provided that the fires in the boilers should be extinguished and, therefore, the mere fact that these remained, or that lard remained in the kettle or smoke in the smokehouse, would not necessarily make this policy void, because these matters must have, been in contemplation of the parties at the' time.] [2]
    [All that is provided is that the plant shall not operate and we understand by that is meant that they shall not go on carrying out the purpose of the establishment in the manufacturing of sausage, slaughtering live stock and making and curing ham or manufacturing lard.] [3]
    [We do not regard the mere fact that the electric light plant ran as within the strict terms of this provision; nor do we regard as invalidating the policy the fact that the cold storage plant was in operation, because it being a packing house for the preparation of meat products for the market it must necessarily have been in contemplation of the parties at that time that the usual means employed for the preservation of such products would be continued during the whole period, therefore the parties simply provided that they should cease manufacturing after ten o’clock at night.] [4]
    Verdict and judgment for plaintiffs for $1,000. Defendants appealed.

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

      W. K. Jennings, with him Gaither & Whitten, and D. C. Jennings, for appellants, cited:
    Alspaugh v. British-American Ins. Co. of Canada, 121 N. Carolina, 290; Lonzer v. R. R. Co., 196 Pa. 610; Holland v. Kindregan, 155 Pa. 156.

      John E. Kunkle and Edward E. Bobbins, for appellees, cited:
    Frick v. United Firemen’s Ins. Co., 218 Pa. 409; Graybill v. Fire Ins. Co., 170 Pa. 75; Machine Co. v. Ins. Co., 173 Pa. 53; Roe v. Dwelling House Ins. Co., 149 Pa. 94; Caldwell v. Fire Assn., 177 Pa. 492.
    October 11, 1909:
   Opinion by

Henderson, J.,

The controversy in this case arises over the application of a clause in the policy of insurance to the facts connected with the subject of the risk. The part of the policy referred to is in these words: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void .... if the subject of the insurance be a manufacturing establishment and if it be operated in whole or in part at night later than ten o’clock.” The plaintiffs were engaged in slaughtering live stock and manufacturing and curing meat products and the policy covered their plant which contained among other appliances refrigerating and electric light apparatus. The defense set up was that the establishment was operated later than ten o’clock at night between the date of the policy and the time of the fire. Two questions arose at the trial, one of which was determined by the court as a matter of law and the other submitted to the jury as a question of fact. The jury was instructed that the running of the electric light and cold storage plant after the hour named was not in violation of the contract; that taking into consideration the character of the business the parties must have contemplated that the usual means employed for the maintenance of the business would be continued through the night if necessary and that the policy was intended to apply to manufacturing only. The matters of fact alleged by the defendant in addition to the use of the electric light and refrigerating equipment were that lard was rendered by the plaintiffs’ employees after ten o’clock at night and the smokehouse was continued in operation. The contract between the parties was intended to indemnify the plaintiff against loss by fire of the insured premises while it was used and occupied by them as a meat packing establishment. The insurer is chargeable with knowledge of the customary methods of conducting the business in which the property insured is used: McKeesport Machine Co. v. Fire Ins. Co., 173 Pa. 53. This means that the contract is to be liberally construed in furtherance of the indemnity for which the parties contracted. In determining what the contract means the circumstances surrounding the making of it and affecting the subject to which it relates may be taken into consideration in ascertaining the meaning of its provisions as the parties understood it: Bole, Assignee, v. Ins. Co., 159 Pa. 53; Graybill v. Ins. Co., 170 Pa. 75. Such a contract should have a reasonable interpretation and when its words are susceptible of two interpretations that should be adopted which will sustain a claim to the indemnity to secure which it was entered into: Doud v. Citizens’ Ins. Co., 141 Pa. 47; Western & Atlantic Pipe Lines v. Ins. Co., 145 Pa. 346; Frick v. United Firemen’s Ins. Co., 218 Pa. 409. The parties contracted with the knowledge that the plant insured was a going concern with the usual appliances and facilities employed in that business. It is reasonable, therefore, to conclude that it was not the intention of either party that the contract should have the effect of closing up the business or prevent the owners from prosecuting it in the only way which was practicable as disclosed by the evidence. It was not in contemplation of the parties that the daily product of the plant should be spoiled from lack of refrigeration or that there should not be any light about the premises after ten o’clock or that all steam should be withdrawn from the boiler or all smoke blown out of the smokehouse before ten o’clock. Such an interpretation of the contract would permit the insurer to close the plaintiffs’ manufactory or forfeit the indemnity secured by the policy. It should very clearly appear that such was the understanding of the parties before so strict and unreasonable a construction should be given to their contract. If the insurer intended to prohibit the presence of lights on the premises after ten o’clock or required a nightly cessation of the meat smoking process or a stoppage of refrigeration it should have said so in unmistakable terms. It was not disputed by the plaintiffs that they were prohibited from slaughtering stock or manufacturing sausage or rendering lard after the hour stipulated. These were manufacturing operations and clearly covered by the prohibition of the policy. The other acts complained of were not operations of manufacturing within the meaning of the contract as understood by the parties, the nature of the business being taken into consideration.

The questions of fact were clearly and fairly submitted to the jury by the court. Only two witnesses were called by the defendant and the most important of them admitted that he had had difficulty with the plaintiffs. There was contradiction to some extent of their testimony by the witnesses called in rebuttal and the court would not have been justified in declaring that the facts set up by the defendant wem established. The verdict of the jury is conclusive against the defendant on the allegation that the plant was operated after ten o’clock and the instruction to the jury on the construction of the contract was in accordance with the authorities cited and many others.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Volk v. Beatty, Appellant.

      Appeals — Assignments of error — Points—Answers to points.

    1. A party is entitled to a clear and distinct statement of the law in answer to every point properly drawn that is material and applicable to the case and warranted by the facts and the evidence, if not covered in the general charge.

      Contract — Building contract — Time limit — Parol agreement.

    2. In an action to recover a balance alleged to be due on a building contract where the defendant sets up a contemporaneous verbal contract that the house was to be completed by a certain time, and that it was not so completed, the defendant is bound to show either that the alleged agreement was omitted from the written agreement by fraud, accident or mistake, or he must show by definite and sufficient evidence that the alleged oral agreement was in fact a contemporaneous parol agreement, and that it was the inducement for the execution of the writing. If he fails to do this the appellate court will sustain a verdict and judgment against him.

      Practice, C. P. — ■New trial — Evidence—Paper-book.
    3. Where an assignment of error is to the discharge of a rule for a new trial, and the depositions submitted on the argument of the rules are not printed in the appellant’s paper-book, the appellate court will assume that the facts are as stated in the opinion of the lower court discharging the rule.
    Argued May 6, 1909.
    Appeal, No. 23, April T., 1909, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1909, No. 23, on verdict for plaintiff in case of Justus Volk v. A. K. Beatty.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover amount claimed to be due on a building contract. Before O’Connor, P. J.
    At the trial the plaintiff alleged as a defense that there had been a contemporaneous parol agreement that the house should be finished before cold weather, and that it had not been so finished.
    The defendant presented this point:
    1. That if the jury shall find from the evidence that the plaintiff had contracted to finish the house by the time cold weather came in the fall of 1904, ready for occupancy by defendant’s family, and that he was to do the work and use the material called for in the specifications; and if they should further find that plaintiff did not prosecute the work with reasonable diligence and did not do the work in the manner provided for and used defective and inferior material, against the protests of the defendant, and when the time came that the house was to be ready for occupancy it was barely half completed, defendant had a right to rescind and have the work completed by other parties. Answer: We think we have fully covered the point in our general charge and, because of the assumption of certain facts in it which are for the jury, we feel it is not proper to affirm it as drawn.
    Verdict and judgment for plaintiff for $1,023.30.
    On motion for a new trial O’Connor, P. J., filed the following opinion:
    Upon the trial of this cause defendant asserted that he had discovered then for the first time that the specifications filed with the plaintiff’s statement as part of the contract upon which plaintiff was seeking to recover were substituted, and were not the specifications upon which the plaintiff bid and which were made a part of the contract between the parties. It was further urged on behalf of the defendant that he was unable to secure the attendance of one Clark as a witness, for the reason that he was then beyond the court’s jurisdiction. The trial of the cause proceeded to verdict, which was in favor of plaintiff, but counsel for defendant was assured by the court that if it were made to appear that deception had been practiced by plaintiff, as asserted, or that defendant had been hampered upon the trial in obtaining justice by reason of the absence of a material witness, the court could and would grant a new trial.
    A motion for a new trial was entered and by virtue of a rule issued out of this court the evidence of the absent witness Clark was taken. From his testimony it is clear he first modified the specifications drawn by Volk, the plaintiff, before bidding and assumed that Mr. Volk bid upon the specifications as changed by the witness, but he states in positive terms that he does not know that Mr. Volk, the plaintiff, bid upon these specifications, thus leaving Mr. Volk, who swore he never saw the changes, uncontradicted in this particular. The testimony of Clark in other particulars does not seem so strongly favorable to defendant as that of witnesses upon the trial and relates to facts which were submitted to the jury so sufficiently favorable to defendant as to leave him without grounds for complaint in this behalf.
    Upon argument of the motion for a new trial counsel for plaintiff suggested that he was not averse to an order sustaining the motion, for the stated reason that he expected to be able to secure a verdict more favorable to his client in such an event. This statement, of itself, would not be sufficient warrant to sustain the motion. In the absence of an express agreement there should exist some sufficient grounds to sustain the court’s decision,' but in the case at bar we can discover no such grounds underlying defendant’s contention. In fact, no legal ground whatever for granting a new trial in this cause presents itself, or has been presented, and we are constrained, therefore, to enter the following order:
    And now, May 9, 1908, motion for new trial is overruled and judgment is directed to be entered against the defendant and in favor of the plaintiff upon the verdict for the amount thereof, with interest and costs, according to the prevailing practice.

      Errors assigned were (1) answer to above point, quoting it; (2) in not sustaining the motion of defendant’s counsel to continue the cause on the ground that the specifications as filed are not the true specifications, but that the true or correct specifications are now in court, specifying that genuine A-No. 1 Bangor slate, sheathing, and building paper were to be used. Answer: We will proceed with the case as we have it and let this matter be taken up on a motion for a new trial if there is a verdict for the plaintiff; (3) in not sustaining defendant’s motion for a new trial.

      J. A. Berkey, with him Clarence L. Shaver, Fred W. Biesecker, A. L. G. Hay, Valentine Hay and Virgil R. Saylor, for appellant.

      W. H. Ruppel, for appellee.
    October 11, 1909:
   Opinion by

Rice, P. J.,

As shown by the first assignment of error, the learned trial judge gave two reasons for refusing to affirm the defendant’s third point: first, because he had fully covered the point in his general charge; second, because the point assumed certain facts which were for the jury. The rule is that a party is entitled to a clear and distinct statement of the law in answer to every point properly drawn that is material and applicable to the .case, and warranted by the facts and'the evidence, “if not fully covered in the general charge:” Schomacker Mfg. Co. v. Yankee Club, 30 Pa. Superior Ct. 162. A point which assumes facts in dispute under the evidence is not properly drawn and may be refused for that reason alone. But it was not strictly accurate to construe the point under consideration as assuming any of the facts. It was so worded as to leave the determination of the questions of fact to the jury, and to require them to apply to the case the rule of law relative to -fhe rescission of such contracts only in the event of their determination of the questions of fact in a certain way. But we cannot, agree with appellant’s counsel that the assignment of the second reason for refusing the point was in itself prejudicial to the defendant. The effect of the answer as a whole was to refer the jury to the general charge for the legal instructions that should guide them in the event of their finding or not finding certain facts alleged by the defendant. These were fair, adequate and quite as favorable to the defendant as he had a right to ask. The learned judge said to the jury: “It is entirely competent for one seeking the erection of a building to place in the contract a time limit, and it may be made as of the essence of the contract; and if in such case the contractor failed to do the work within the time fixed, unless delayed by the owner or his progress is impeded by what is known as an act of God, he may be deprived of everything. ... If this house was so constructed as to warrant the conclusion from the evidence that the work was not a substantial compliance with the contract, then it is the same as if he had not complied with it in any degree. Therefore, if you find from the weight of the evidence that the plaintiff failed to substantially comply with the terms of this contract you would find for the defendant. . . . Now, did the plaintiff substantially comply with his contract? If there is evidence here which satisfies the jury from its weight that this plaintiff did not comply with his contract in any particular, that the material used was defective, and if he had been permitted to go on and complete the work it would not be such a house as the contract called for, then he would not be entitled to anything.” These and other instructions of the same tenor, taken in connection with the unqualified affirmance of the defendant’s first, second and fourth points, covered all the questions raised in the third point unless it be that as to the time limit. Upon this subject the learned judge said: “It is alleged by the defendant there was a time limit, not set out in the written contract, but provided for by contemporaneous parol agreement that this work was to be completed before cold weather set in in the fall of 1904. The plaintiff says there was no such agreement. The defendant, who says there was, called a witness named Lepley who testified that he had been one time in the meat market of the defendant in Boswell, some time in September, 1904, and Mr. Volk, the plaintiff, came in and exhibited some plans and specifications, saying he was to erect a house for the defendant; and the witness made inquiry whether or not it was contemplated to erect the building that fall and Mr. Volk answered that the building would be completed that fall ready to go into before cold weather. Mrs. Beatty on the witness stand testified to the same conversation. When she was asked to fix the time of the occurrence she was not able to do so, but when asked whether or not this conversation was before the work had commenced upon the house, she answered that it was after the work had commenced. Now, if that was all there was in the nature of a contract on that point, then the time element in this contract is immaterial.” This was a fair statement of the substance of the testimony of Lepley and Mrs. Beatty, and a more favorable view as to the time the alleged promise or representation was made than the testimony of the defendant himself required, as will be seen by the following extract: “Q. Please state what your parol agreement was as to the time the house was to be finished? A. The house was to be finished before cold weather. He had plenty of time, he said, and could finish the house before cold weather. And the reason of my hurry was that I was living in a stable. By Mr. Ruppel: We object to this. A. And Mr. Volk promised me, in the presence of people, he would have it done long before cold weather — he would put on ten good men. And I kept my part going, that it wouldn't delay him one hour.” While it was alleged in the affidavit of defense and in the notice of special matter that by a parol contemporaneous agreement between the parties the house was to be completed before cold weather set in, and to be ready for occupancy at that time, it was not alleged, and no evidence was given to show, that this was omitted from the written agreement by fraud, accident or mistake. Moreover, the evidence as to the time of making the alleged promise is indefinite and wholly insufficient, under the well-established rule relating to the subject, to sustain a finding that there was a contemporaneous oral agreement which induced the execution of the writing. It follows that there was no error in refusing the point.

The second assignment of error is not sustained by an exception, and besides that, as shown by the opinion of the learned judge discharging the rule for new trial, no abuse of discretion or harmful error was committed in overruling the motion for continuance.

The third assignment of error is to the discharge of the rule for new trial. The depositions submitted on the argument of the rule are not printed in the appellant's paper-book. Assuming as we may in their absence that the facts are as stated in the opinion discharging the rule, the discretion vested in the trial court was properly exercised.

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