text:
    John McClosky and Izett McClosky, his Wife, for the use of Izett McClosky, v. Dubois Borough, Appellant.

      Negligence — Defective sidewalk — Question for jury.

    Where a case presented questions of fact as to the conditions of a foot-walk, and the conduct of the plaintiff and of the officers of the borough: Was the walk safe or out of repair ? Had the borough authorities actual or constructive notice of its alleged defects, and were they negligent in failing to keep it in proper repair? Was the plaintiff injured because of the negligence of the borough officers having charge of the walk and without fault on her part? If so, to what extent, and what was reasonable compensation therefor? There being sufficient evidence to raise these questions the case was properly submitted to the jury.

      Negligence — Boroughs—Sideioalks—Evidence.
    In an action against a borough to recover damages for personal injuries caused by a fall on an alleged defective sidewalk, it is proper to admit evidence of the condition of the sidewalk six weeks after the accident, where it appears that there was no change in its condition from the time of the accident to the time of the examination by the witnesses.

      Practice, C. P. — Improper remarks of counsel — Record—Review.
    Remarks of counsel which are not only in exceedingly bad taste but which grossly violate professional ethics should not be indulged in nor permitted. When such remarks moreover assume the aspect of a threat they should not be tolerated, and a new trial should be granted as a deserved rebuke to counsel for employing such tactics.
    In the case at bar the appellate court held that while there was nothing on the record which justified a reversal, the matters objected to deserved notice and rebuke.

      Negligence — Boroughs—Sidewalks—Notice—Evidence.
    The case is properly for the jury where there was evidence tending to show that a plank sidewalk on a borough street was rotten and had been patched in places, and that this had been observed by various persons for periods ranging from six weeks to one year preceding the accident.
    Argued Feb. 10, 1897.
    Appeal, No. 25, Feb. T., 1897, by-defendant, from judgment of C. P. Clearfield Co., Deo. T., 1894, No. 118, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for injuries resulting from a defective sidewalk. Before Gordon, P. J.
    This was an action of trespass brought by John McClosky and Izett McClosky, liis wife, for the use of Izefct McClosky against the borough of Dubois to recover damages for an alleged injury caused by the plaintiff falling or breaking through a foot-walk in said borough about the 10th of April, 1894.
    There was evidence tending to show the bad condition of the sidewalk, and that it had been in that condition for some weeks or months, and that the bad condition was obvious and had been noticed by a number of people.
    Verdict and judgment for plaintiff for $825. Defendant appealed.

      Errors assigned were (1) refusing to strike out evidence of John Nale, a witness for plaintiff. The evidence of Nale being to the effect that he had assisted in building the walk between the 19th and 26th of May, 1894, that its condition was bad at the time, that the walk was patched and rotten and that from the appearance there had not been any immediate change in that walk in the last four or six weeks previous to the repair. Defendant moved to have this evidence stricken from the record as incompetent; (2) in not affirming the defendant’s third point which point and ruling thereon was as follows: That the evidence of the plaintiff in this case-is not sufficient to charge the defendant with constructive notice of the footwalk being out of repair on which the alleged accident occurred, and the verdict should be for the defendant. Answer: By this point we are asked to say to the jury that there is no evidence in the cause entitling plaintiff to recover; that there is no evidence of such notice to the borough authorities of the alleged defective sidewalk, and not sufficient evidence to amount to a constructive notice such as to make the borough liable or satisfy the jury in so finding. This is a legal question which we reserve. We therefore refuse the point and submit the case to the jury to render such verdict under the evidence subject to our opinion on said reserved question; (8) in entering judgment in favor of the plaintiff on the reserved question of law in the f olio wing opinion: “ As to the reserved question, I am convinced it would have been error to take the case from the jury and direct a verdict for the defendant- as requested in the third point, which was refused with the legal question contained therein reserved. Whether the evidence was sufficient to establish constructive notice to the.borough of the defect in the sidewalk causing the injury in question, was for the jury. There was sufficient evidence to make its submission necessary. The motion for judgment non obstante must therefore be refused; ” (4) the court erred in not granting defendant relief from the misbehavior of the plaintiff’s counsel in the argument of the case to the jury, which misconduct and the opinion of the court thereon i§ as follows: “ The counsel for plaintiff misbehaved himself in making the following statements to the jury in his argument, which were not borne out by the evidence, (a) ‘ Referring to the street commissioner’s appearance on the stand, counsel stated: He enjoys it more than the people. The borough of Dubois enjoys paying damages to every term of court by reason of his enjoyment.’ (b) ‘ Wayne swore he bought the plank to build that walk before he went home that day (meaning the day he purchased the property.) ’ (c) ‘ If you can find from this testimony, that this walk was good, we will have this testimony engrossed and put your names to it and bang it up in the courthouse and call the attention of every person to it and say to them that that is the kind of a walk you must have and that kind of a walk you must walk over.’ (cl) ‘ This is not the first time the borough has been in this court, and this is not the first time that this kind of a defense has been set up.’ (e) ‘ When you put a man on the witness stand as narrow between the eyes as Dr. _ Ross, who will hang onto a little doctor bill because his son-in-law is on the other side of the case.’ (/) Referring to the borough, counsel said: ‘it has a taxable valuation of 13,000,000 and I don’t believe there is anybody in the borough of Dubois that wanted to set up this kind of a defense. No person has asked this kind of a defense to be made and .... we know the people over there do not want this land of a defense.’ (,^) ‘ You should not insult this woman by giving her a little verdict of five or six hundred dollars. I say that if you give a verdict of five or six hundred dollars it would be an insult to this plaintiff.’ (/¿) ‘ Plaintiff’s counsel read to the jury part of a decision of the Supreme Court on which he put his own construction.’ “ The strongest ground for new trial is the alleged misconduct of plaintiff’s counsel in the closing address to the jury. He made statements therein not warranted by the evidence, which was highly improper, yet, inasmuch as it was stopped upon attention of the court being called to it, I do not think the jury were influenced by it to the prejudice of defendant’s cause. The rule for new trial is discharged, the motion for judgment non obstante is refused and the prothonotary is directed to enter judgment upon the verdict. Exception noted for defendant; ” (5) error in the general charge in not pointing out to the jury the character of a defect of which notice will be imputed.

      W. G. Pentz, for appellant.
    — As to the borough’s measure of duty in supervision of the sidewalk, see Lohr v. Philipsburg, 156 Pa. 246.
    As to the character of the defective condition necessary to impute notice to the borough, see Burns v. Bradford, 137 Pa. 361; Rapho v. Moors, 68 Pa. 404.
    As to the improper remarks of counsel, see Bullard v. R. R., 5 Atl. 838; People v. Dane, 26 N. W. Rep. 781; Campbell v. Maher, Ind. 4 N. E. Rep. 911; Porter v. Throp, 11 N. W. Rep. (Mich.) 174.
    As to the neglect of the court to point out the character of a defect of which notice will be imputed, see Duncan v. Phila., 173 Pa. 550.

      March 17, 1897:

      A. L. Cole, with him D. S. Herron, for appellee.
   Opinion by

Smith, J.,

The plaintiff recovered a verdict for damages because of personal injuries alleged to have been received by falling through a plank sidewalk in the borough of Dubois.

The case presented questions of fact as to the condition of the footwalk, and the conduct of the plaintiff and of the officers of the borough. Was the walk safe, or was it out of repair and dangerous ? Had the borough authorities actual or constructive notice of its alleged defects, and were they negligent in failing to keep it in proper repair? Was the plaintiff injured because of the negligence of the borough officers having charge of the walk, and without fault on.her part? If so, to what extent, and what was reasonable compensation therefor ? There was sufficient evidence in relation to these questions to warrant the submission of the ease to the jury, and this was done with proper instructions for their guidance.

The evidence complained of and made the basis of the first assignment of error was properly admitted, accompanied as it was by testimony that there had been no change in the condition of the footwalk'where the plaintiff was injured between the time of the accident and the time at which it was repaired bjr the witness: Lohr v. Philipsburg Borough, 165 Pa. 109; Davidson v. Sanders, 1 Pa. Superior Ct. 432.

The defendant’s second point, the refusal of which forms the second assignment, asked the court to declare the evidence insufficient to charge the borough with constructive notice of the dangerous condition of the walk. There was evidence-that the planks were rotten and had been patched in places, and that this had been observed by various persons, for periods ranging from six weeks to one year preceding the accident. With such testimony in the case, it would have been error to withdraw the question of notice from the jury. The facts of this case differ materially from those in Lohr v. Borough, supra. In that case there was no obvious defect in the sidewalk, and from the plaintiff’s evidence it was clear that none could be observed in the exercise of a reasonable supervision by the borough officers. The defect shown was one which was discovered only after a special examination, and the witness who made this testified that it could not be otherwise seen. In the present case there was testimony to the effect that the walk was elevated some two feet from the ground, and that its defective condition was obvious to those passing over it, without special examination. Under this evidence, it was for the jury to determine whether the sidewalk should not have received closer attention as its decay progressed. What was observable to the casual pedestrian should also be observable to those who were required by law to give it attention, and we cannot say that the jury erred in holding the borough to a measure of duty commensurate with the existing conditions.

The allegation that the court failed to point out to the jury the character of the defect of which notice will be imputed to borough officers, as complained of in the fifth assignment of error, is not borne out by the facts. The court told the jury that: “ The question is not merely whether the sidewalk was defective but whether the defects' in it were noticeable to all passers by, because if the defect was latent or hidden and not observable by those who used the sidewalk, the borough cannot be held liable for it,” and the learned judge repeated the instruction that “ the defect must be so notorious as to be evident to all passers,” and quoted from opinions of the Supreme Court to the same effect.

While there is nothing on the record which would justify us in ruling upon and giving effect to the fourth assignment; the matters there objected to deserve to be noticed. References by counsel to the physical infirmities or personal peculiarities of witnesses, having no connection with the matters involved in the issue, are in exceedingly bad taste and grossly violate professional ethics. These, however, are matters which are to be regulated mainly in the forum of honor by an observance of the proprieties. But the statement to the jury that if they should find that the “ walk was good, we will have this testimony engrossed and put your names to it and hang it up in the court house and call the attention of every person to it,” has the aspect of a threat, and for that reason should not be tolerated. In his opinion discharging the rule for a new trial the learned judge, in referring to the closing address of the plaintiff’s counsel, said: “ He made statements not warranted by the evidence, which was highly improper, yet inasmuch as it w;as stopped upon attention of the court being called to it, I do not think the jury were influenced by it to the prejudice of the defendant’s cause.” But whether the jury were influenced by the objectionable language or not, it was impossible for the learned judge to know, and as they were not told that the threat which it contained was not to be carried into effect, it is quite possible that it may have secretly influenced them. For this reason, and as a deserved rebuke to counsel employing such tactics, the court should have granted a new trial.

Jurors should be absolutely free to discharge their duties undeterred by fear of personal consequences of any description,, and it is the duty of courts under all circumstances not only to protect them from every form of intimidation but to promptly punish any attempt at intimidation, or any other improper influence.

The specifications of error are all overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Reeder, J.,

license: Public Domain

text:
    Commonwealth of Pennsylvania v. Richard W. Bell, Appellant.

      Courts — Power to call in judges from another district — Constitutional law.

    There is no question as to the right of the president judge of any court of this commonwealth to call for the services of another judge of any court of common pleas of this commonwealth to try causes or to transact any business which may come before such courts at any regular or adjourned court or in vacation. The presumption is where no record is made, that the visiting judge was called in pursuance of, in conformity with, and for the purposes designated by the several acts of assembly conferring such powers upon the judges of the lower courts.
    The Act of March 24,1887, P. L. 14, is constitutional; this question was virtually determined in Re Application of Judges, 64 Pa. 33.

      Constitution of Pa. — Substitution of judges.

    Another judge learned in the law can be substituted for the president of oyer and terminer and general jail delivery under the power contained in art. V. see. 4, of the constitution of Pennsylvania.

      Constitutional law — Terms of oyer and terminer — Act of 1881.
    The Act of June 10, 1881, P. L. 113, is constitutional and can properly be construed to extend a term of criminal court beyond one week.

      Evidence — Criminal law — Tictim of abortion not an accomplice.

    A woman upon whom an abortion has been committed is not a particeps eriminis subject to the restrictions and caution which govern and control the testimony of an accomplice.

      Evidence — Criminal law — .Proof of bias and haired on cross-examination.

    A party may always put such questions to a witness in cross-examination as tend to show his favor or bias toward the parly calling him. Proof of an attempt to blackmail, in connection with the very case being tried, on the part of a witness is proper to be submitted to the jury as it may affect the witness’ credibility
    Argued Feb. 15, 1897.
    Appeal, No. 137, April T., 1897, by defendant, from judgment and sentence of Q. S. Lawrence County, September Sess., 1896, No. 51, on verdict of guilty.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Indictment for abortion. Before S. H. Miller of the 35th judicial district, specially presiding.
    Verdict of guilty and sentence thereon to pay a fine of 1500 cost of prosecution and undergo imprisonment in the western penitentiary for four years and two months.

      Errors assigned among others were (1) in rejecting the offer of defendant in cross-examination of Mrs. Floyd Lawman, as per bill of exceptions following:
    “Defendant’s counsel propose, in further cross-examination of witness, Mrs. Floyd Lawman, to ask whether, after the premature birth, and before the commencement of the prosecution in this case, and while the fact of the miscarriage was known only to the witness, her sister, Mrs. W. B. Wood, Daisy Barker and Dr. Covert, she, in company with Mrs. W. B. Wood, did not go to the office of Dr. Bell and together there demand of him two thousand dollars, or other sum, to settle this alleged crime, and then and there threatened to prosecute him, or that he would be prosecuted if he did not pay; and also to further ask the witness whether in the same conversation they did not tell the defendant, as inducement to him to pay or settle the case, that the fact of the miscarriage was known only to themselves, their sister Daisy, and Dr. Covert.”
    This for the purpose of affecting the credibility of the witness, if she answers in the affirmative and also for the purpose of affecting her credibility by contradicting her if she answers 'U the negative.

      Objected to by counsel for commonwealth for the reason that the witness and Mrs. W. B. Wood are not interested in this case, the father being the prosecutor. That the offer is not part of the res gestee, and is in reference to a matter subsequent to the commission of the offense; that it is not cross-examination, the witness named having been examined in chief in reference to the delivery of the children and without reference to defendant or any connection he had with the offense alleged in the indictment; that the offer is irrelevant, immaterial and incompetent, and in reference to such matter that cannot be used for the purposes offered. Also, that the offer charges two witnesses named with a criminal offense, to wit: the compounding of a felony.
    By the Court: In view of the testimony given by the witness, Mrs. Floyd Lawman, and her sister, Mrs. W. B. Wood, the court is of opinion that the proposition or offer of defendant would not be competent; that it would throw no light on the issue involved in this ease, and the offer is therefore overruled, the objection sustained and an exception sealed for defendant.
    (2.) In its charge to the jury in not instructing them that Daisy Kirker was, under all the testimony, an accomplice, and that it was unsafe for the jury to convict upon her uncorroborated evidence, and that her testimony should be corroborated in some material part to affect defendant and connect with the offense.
    (3.) In making no comment whatever upon the subject of the credibility of Daisy Kirker, in view of her relation to this crime as shown by her testimony.
    (6.) The court of quarter sessions, at which the defendant was tried, was unlawfully held, and was without jurisdiction to try the defendant for the following reason:—
    By the standing order of court made in pursuance of the act of assembly of March 18,1875, P. L. 28, authorizing the judges “ to make an order fixing the number of the regular terms of the said several courts, and establishing the time of holding the same,” one of the regular terms for holding the courts of Lawrence county was to commence on the first Monday of December and to continue for a period of two weeks; that the two weeks during which the courts for the December term, 1896, in said county, would be lawfully held had expired on Saturday, December 19, 1896; that on Saturday, December 19, 1896, the court, Hon. W. D. Wallace presiding, made an order as follows, to wit: “In Re Continuing, Dec. Sess., etc., for one week. Now Dec. 19, 1896, the court being of opinion that the same is necessary, do order that the present term and sessions of the court of oyer and terminer and general jail delivery, and court of quarter sessions of the peace of Lawrence county be and the same are hereby continued during' the next succeeding week, commencing Monday, December 21,1896, at 10 A. M., and it is further ordered, that the general panel of jurors now in attendance at the present regular term and sessions of said court be, and the same are hereby detained during said one week, and all parties, defendants, prosecutors and witnesses, are required to attend during, said week without further order unless sooner discharged.”
    There is no statute or law known to defendant’s counsel authorizing such enlargement of the said December term, unless it be the act of the 10th June, 1881, in which there is a proviso that “ the provisions of the act should not apply to cities of the first class.” The trial was not commenced until December 23, 1896, nor the verdict taken thereon until the 28th, being Monday of the following week.
    (7.) The court at which defendant was tried was unlawfully held for the following reason :■ — ■
    The county of Lawrence constitutes a separate judicial district — the 53d, having one judge learned in the law. Hon. Wm. D. Wallace was duly elected and commissioned as such, his term of office commencing on the first Monday of January, 1895. The court in which defendant was tried, during the whole of the trial, was held and presided over by Hon. Samuel H. Miller, the duly elected and commissioned judge of the 35th judicial district, composed of the county of Mercer. That the records of the courts of Lawrence county contain no order or anything whatever showing by what right or for what reason, or by what authority the said Hon. S. H. Miller came to preside at this time over the court of quarter sessions of Lawrence county. No reason of interest or relationship or sickness existed which would have prevented the Hon. Wm. D. Wallace from trying the case. If it should hereafter appe'ar that the said Samuel H. Miller was requested by the president judge of the 53d district to try the case in order to assist, under the provisions of the act of 1887, because of the opinion of the latter that the proper dispatch of business required it, then the' said act of 1887 is unconstitutional and void.
    April 12, 1897:

      S. W. Dana of Dana Long, with him D. B. § L. T. Kurtz, S. P. Emery and A. J. Gillespie, for appellant.

      Robert K. Aileen, district attorney, for appellee.
   Opinion by

Reeder, J.,

There can be no question of the right of the president judge of any court in any district of this commonwealth to call for the service of another judge of any court of common pleas of this commonwealth to try causes or to transact any business which may come before such courts at any regular or adjourned court or in vacation. The presumption is where no record is made that he was called in pursuance of, in conformity with, and for the purposes designated by, the several acts of assembly confering such powers upon the judges of the lower, courts. Hence the nunc pro tunc order made by the president judge of Lawrence county was unnecessary. That order was however made and indicates that Judge Miller was called to hold the court of quarter sessions of Lawrence county at which this case was tried because in Judge Wallace’s opinion the proper dispatch of the business of that court required it. The order indicates that he held this court by virtue of the Act of March 24,1887, P. L. 14. This act appellant argues is unconstitutional. He claims that as the constitution provides that as the election of judges is to be by the qualified electors of each district over which they are to preside, there is no authority in the legislature to delegate to any one the selection of a judge1 to hold court in a district in whose election the electors of that district had no voice. If this contention were sustained by us it would render nugatory every act of assembly upon our books of statutes relative to the holding of courts by judges in any district save their own; and in the event of disability because of illness or from any other cause would effectually stop the ‘ administration of the law through the courts until the recovery of the judge of the district from such inability. A result to be deplored. But yet if there is no power tinder the constitution to enact such legislation no matter what the result might be, it would be our duty to declare the law. This question was virtually determined by the Supreme Court of this state in Re Application of the Judges, 64 Pa. 83. The question there arose under the Act of April 2, 1860, P. L. 552, which provided that “In case of sickness of a president judge in any judicial district in Pennsylvania, or of sickness in his family or of his disability to hold the regular terms of his court in any county from any cause whatever it shall be lawful for him to call upon any other president judge of the commonwealth to hold said regular terms of court, and said president judge so called upon is hereby authorized and empowered to discharge the duties appertaining to said office as fully as the regularly commissioned president judge of said district could do if present,” etc. Justice Ag-new says: “Is this act within constitutional power? We think it is, whether the act be a reorganization or the creation of a new court for special purposes. If anything can be considered settled by judicial determination it is that another judge learned in the law can be substituted for the president of the court of oyer and terminer and general jail delivery under the power contained in the 3d section of the 5th article of the constitution. . . . The power to organize the courts differently has been considered clear. Hence the number of judges may be changed and associates learned in the law constituted with the same powers as the president. The only limitations are those contained in the 9th section of the 5th article of the constitution which is in these words: ‘ The judges of the court of common pleas in each district shall by virtue of ■their offices be justices of the oyer and terminer and general jail delivery for the trial of capital and other offenders therein; any two of said judges the president judge being one, shall be a quorum.’ But who the judges of the common pleas in the particular county shall be and who the particular president judge shall be who must be of the quorum will depend on the organization of the court of common pleas by the legislature. The constitution does not say that they shall be the judges for the county but the judges in the county. . . . But that the president judge of the common pleas is not unalterably the president judge of the particular county is clear, otherwise there would be no special court of common pleas to try causes in that county where the proper president is disqualified.” See also Zephon’s Case, 8 W. & S. 382; In re Pennsylvania Hall, 5 Pa. 204; Kilpatrick v. Commonwealth, 31 Pa. 198; Foust v. Commonwealth, 33 Pa. 338; Commonwealth v. Green, 58 Pa. 226. Article 5, section 9 omits the words “in the county” referred to in the above case and the limitation referred to by Justice Agnew has been eliminated from the constitution of 1874. These decisions are all under the constitution of 1838 and its several amendments. Has the constitution of 1874 any provision which bréales the force of these decisions of the Supreme Court under the earlier constitution? We think not. The same power is reserved to the legislature “ to create such other courts as they may from time to time deem necessary.” The provision in the constitution of 1874 “that the judges shall be elected by the qualified electors of the districts over which they shall preside ” is in effect the provision of the amendment of 1850 to. the constitution of 1838. I have for brevity spoken of the amendments of 1838 as the constitution. These amendments were before the Supreme Court when the constitutionality of those acts were considered by them in the cases I have just referred to, and those decisions are therefore conclusive upon that question.

It is also claimed that the court at which the defendant was convicted was held without legal authority and therefore the defendant was illegally and improperly convicted. The defendant claims that the act of June, 1881, is unconstitutional and second, it cannot properly be construed to extend a term of criminal court beyond one week. As to the latter part of the proposition we are clearly of the opinion that was the very purpose of the act and is clearly written within its terms. This is so manifest from a reading of the act as to require no discussion. The act is also clearly constitutional. The claim that the proviso excepting cities of the first class from its application renders the entire act unconstitutional because it is special legislation, is absolutely without merit. It is unnecessary for us to elaborate our opinion upon this question when the con stitution itself makes a special and distinct class of the courts of cities of the first class.

Was Daisy Kirker, the woman upon whom the defendant was convicted of committing an abortion a particeps criminis and was her testimony to be received with the same restrictions and caution as governs and controls the testimony of an accomplice ? We might well rest our discussion of this question upon the facts corroborating her testimony as sufficient to carry her testimony to the jury. The Supreme Court has repeatedly said that while it is not good practice to submit a case to the jury upon the uncorroborated testimony of an accomplice, yet when the court below does so it will not reverse for that reason. Here there was abundant evidence of corroboration so that it was the duty of the court to submit her testimony to the jury even though she was an accomplice? But was she an accomplice? We can find no decision in Pennsylvania of this question, but the decisions of all the other states where this question has been directly decided, is that she is not: People v. Com., 87 Ky. 487; State v. Pearce, 56 Minn. 226; Com. v. Wood, 77 Mass. 85; Com. v. Follansbee, 155 Mass. 274; People v. Vedder, 98 N. Y. 630; State v. Hyer, 39 N. J. L. 598. We are constrained to follow these decisions and decide that the testimony of Daisy Kirker was to be governed by the ordinary rules of evidence and not those of an accomplice in so far as they relate to corroboration.

This brings us to the first assignment of error in which we find much merit. After Mrs. Floyd Lawman was examined in chief the defendant proposed to ask her in cross-examination for the purpose of affecting her credibility or for the purpose of contradicting her if she answered negatively “ whether after the premature birth and before the commencement of the prosecution and while the fact of premature birth was known only to the witness Mrs. Wood, Daisy Kirker and Dr. Covert she in company with Mrs. Wood did not go to the office of Dr. Bell and together there demand of him $2,000 to settle this alleged crime, and then and there threaten to prosecute him or that he would be prosecuted if he did not pay; and also to further ask the witness whether in the same conversation they did not tell the defendant as . inducement to him to pay or settle the case that the fact of the miscarriage was known to themselves, their sister Daisy and Dr. Covert.” This offer was improperly refused by the learned judge of the court below. It was an inquiry going to the credibility of the witness. The motives, interest, feeling, prejudices and bias of a witness are all proper subjects of cross-examination and the testimony relating thereto should be submitted to the jury in connection with the testimony in order to enable them to determine what weight to give it. In Cameron v. Montgomery, 13 S. & R. 127, the Supreme Court says: “ A party against whom a witness is produced has a right to ask him everything which may in the slightest degree affect his credit.”

“ A party may always put such questions to a witness in cross-examination as tend to show his favor or bias toward the party calling him: ” Ott et al. v. Houghton, 30 Pa. 451. See also, Hopkinson v. Leeds, 78 Pa. 396; Fulton v. Bank, 92 Pa. 112.

“ Questions proper and relevant to show the capacity or intelligence of the witness are "admissible: ” Huoncker v. Merkey, 102 Pa. 462. See also Greenleaf on Ev., sections 446, 455 and 456.

The appellee declares that because the offer did not declare the purpose to show interest, hatred or ill-feeling, it does not fall within the ruling of the above cases. Proof of hatred, ill-feeling or malice are only admissible as it may affect the witnesses’ credibility. Proof of an attempt at blackmail in connection with the very case being tried on the part of a witness is surely proper to be submitted to a jury in connection with the witnesses’ testimony to enable the jury to determine tire witnesses’ credibility. We do not say that this offer was a complete offer to prove an attempt at blackmail, but it was sufficient to go to the jury as affecting the credibility they would give to her testimony. This is not a question collateral to the issue, it goes to the root of her testimony by having the testimony offered go. to the jury to have them determine whether or not under the circumstances she is worthy of credence. This assignment of error must therefore be sustained.

Judgment reversed and a venire facias de novo awarded.


author: Rice, P. J.,

text:
    James Snyder and George E. Snyder, trading and doing business under the firm name of Snyder Brothers v. S. B. Boring and W. S. Blair, Appellants.

      Landlord and tenant — Illegal distraint — Trespass.
    As the proceedings by which a landlord can lawfully sell goods dis-trained for rent are statutory the direction of the statute must be strictly followed or its protection will be lost. If the seizure is irregular it is trespass; if the seizure is regular but the subsequent steps are not in accordance with the statute the landlord becomes a trespasser ab initio.

      Conditions precedent to a valid sale of goods distrained.

    The following conditions precedent are essential to a lawful sale of goods distrained: Appraisement by two reputable freeholders. Before appraisement lawfully can be made, five full days must intervene after distress taken and notice thereof. Notice should be in writing and must be sufficient to inform the tenant or owner what are the goods taken and the amount of rent in arrear.

      Judicial sales — Evidence—Presumption of fairness.

    The legal presumption that a judicial sale was fair, continues until overcome by sufficient proof that it was collusive or fraudulent.
    Argued Feb. 10, 1897.
    Appeal, No. 27, Feb. T., 1897, by defendants, from judgment of C. P. Clearfield Co., Sept. T., 1893, No. 343, on verdict for plaintiff.
    Before Rice, P.e J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass. Before Gordon, P. J.
    The action was brought to recover damages sustained by reason of the seizure and sale of certain personal property claimed to be owned by plaintiff by virtue of a landlord’s warrant issued by S. B. Boring and directed to W. S. Blair, constable.
    On May 8, 1893, the constable made his levy in writing and gave a copy of it to the tenant and told him that unless rent was paid he would proceed to sell according to law. On May 25, the constable gave a written notice that an appraisement would be held on the 30th day of May, on which day an appraisement was made by three appraisers, no one of whom was a freeholder. The sale of the goods was made about June 11 or 12.

      It further appears from the evidence that the plaintiffs in the case claimed to have become the owners of the goods distrained by virtue of a previous sheriff’s sale, but left them upon the premises in the possession of Schettig the tenant.
    Verdict and judgment for plaintiffs for $568.77. Defendants appealed.

      Errors assigned were (1) in answering the defendants’ first point, which point and answer are as follows:
    “ 1. That under the law and the evidence in this case the plaintiffs are not entitled to recover. Answer: We decline so to instruct you.”
    (2) in answering the defendants’ second point, which point and answer are as follows:
    2. That if the jury find from the evidence in the case that actual notice of the distress was given to H. J. Schettig by W. S. Blair, constable, at least six days before appraisement and that the appraisement would be held unless the matter was settled, then you are instructed that such was a sufficient notice as there is nothing in law requiring notice of distress and appraisement to be in writing. Answer: We decline so to instruct you. It is true there seems to be a dearth of authority upon this question as to the character of the notice required, but a reading of the act of assembly would seem to mean that the notice contemplated is a notice in writing. It reads:
    “ And notice thereof, with the cause of such taking, left at the mansion-house or other most notorious place on the premises charged with the rent distrained for.”
    Now, it would seem that when the act provides that a notice shall be left on the premises that it contemplates a written notice that can be left there after the party giving it has departed; and we also find it laid down in 16 A. & E. E. of L. page 789 under the head Statutory Notice, — “The rule is well settled, that where a notice is required or authorized by statute, in any legal proceeding, it means written notice.”
    And to sustain that proposition a number of cases are cited but none of them are Pennsylvania cases. I also find a case in 4 Clark, 181, Trustees of St. Michael’s Church v. The County of Philadelphia; in the syllabus of that case is this sentence: “ Wherever notice is required under a statute, written notice is to be understood.”

      And it seems to be tbe law that where a notice is required and' the act is entirely silent upon that, as a rule a verbal notice is sufficient; yet, we are of the opinion that in this case the notice contemplated by act of assembly should be in writing and the evidence, the uncontradicted evidence in the case, is that the only notice in writing that was given in this case was that served on the 25th of May, 1893, and there was no other notice, not even a parol notice, given prior to that time, such as would comply with the act even if a parol notice would be sufficient; so we decline to affirm that second point.”
    3. In answering the defendants’ third point, which point and answer are as follows: (3) If you find that the proceedings under the warrant and distress were regular and legal, then the plaintiff cannot recover, as the goods were hable to levy and distress if they were on the premises whether they belonged to the tenant or to Snyder Brothers. Answer: That is a correct proposition of law; if the proceedings in distress were legal the goods on the premises would be liable to the distress; but we say to you and have already said to you, that in our opinion the proceeding of distress was illegal, that therefore the officer and the person issuing the warrant were not protected by it.
    4. In answering the defendants’ fourth point, which point and answer are as follows: “ (4) If you find that the sheriff’s sale of Schettig’s goods to Snyder Brothers was fraudulent and intended to hinder and delay other creditors of Schettig, then they would acquire no such title as would enable them to recover in this case, and your verdict should be for the defendants whether the proceeding on the landlord’s warrant was regular or not. Answer : That would follow if there was sufficient evidence in this case to warrant a finding that the sale was fraudulent; because it is true that if the plaintiffs must show that they are the owners of the property and also that the proceeding by distress was illegal, the burden is upon them to show both in this case, but as we have already instructed you in our opinion there is no evidence in this case such as would justify a jury in finding that there was fraud resorted to in this sale, and we therefore are compelled to withdraw that question from your consideration.”
    5. In charging the jury as follows: “ The evidence here shows the date when this warrant of the justice of the peace was issued when the levy was made. It is claimed on the part of the defendants that the levy was made on. the 18th day of May, 1893, and it is also in evidence that the written notice to the tenant that the appraisement would be made was served upon him on the 25th day of May, 1893, and we say to you that there is not any evidence of prior legal notice of appraisement given in this case. It is true W. S. Blair, constable, testifies to having had conversation with the tenant prior to that time that he would proceed to execute the landlord’s warrant if the money was not paid and that he would make an appraisment unless the matter was fixed up, or words to that effect, but in our opinion of the law, what he said prior to the service of the written notice was not a com'pliance with the act of assembly requiring five days notice of the making of any appraisement. There is no pretense or claim in this case that in any of these prior conversations the time was fixed when the appraisement would be made, and the notice in writing served on the 25th of May, having fixed a time when the appraisement was to be made, it would seem that that was notice which the parties adopted as the notice required by the act of assembly.”
    April 12, 1897:

      A. L. Dole, with him H. A. Moore, for.appellants.
    — The appellants contend that the construction put upon the act of March 21, 1772 is not justified by the language thereof, nor by the decisions of the courts: Whitton v. Milligan, 153 Pa. 376; Furbush v. Chappell, 105 Pa. 187; Davis v. Davis, 128 Pa. 100.

      Roland JD. Swoope, with him William P. Patton and W. C. Arnold, for appellees.
   Opinion by

Rice, P. J.,

Before a landlord can lawfully sell goods distrained for rent he must “cause the goods and chattels so distrained to be appraised by two reputable freeholders.” An appraisement by three persons was irregular. Besides that, it affirmatively appears that two of the appraisers were not freeholders, in any sense of the term, and that one of those was a minor. There was, therefore, no such appraisement as the law prescribes as a condition precedent to a lawful sale of the tenant’s goods or of goods of a third person found upon the demised premises. “ As the proceeding is statutory, the direction of the statute must be foR (owed or its protection will be lost. If the seizure is irregular, it is a trespass. If the seizure is regular, but the subsequent steps are not in accordance with' the statute, the landlord becomes a trespasser ab initio by his departure from the directions of the law under which he must justify, and may be sued in the same manner as any other trespasser : ” Esterly Machine Co. v. Spencer, 147 Pa. 466. The curative provisions of the 19th section of the act of parliament of the 11 Geo. II. Ch. 19, were not extended to Pennsylvania, and the law is imperative that before a sale can be lawfully made the wholesome provisions of the act of 1772 must be strictly complied with: Kerr v. Sharp, 14 S. & R. 399; Brisben v. Wilson, 60 Pa. 452; Richards v. McGrath, 100 Pa. 389, 399; Murphy v. Chase, 103 Pa. 260; Davis v. Davis, 128 Pa. 100; Wyke v. Wilson, 173 Pa. 12.

Before an appraisement can be lawfully made five clear days must intervene after the “ distress taken and notice thereof, with the cause of taking, left at the mansion house, or other most notorious place on the premises charged with the rent distrained for” etc. We are of opinion that this notice should be in writing (Wilson v. Nightingale, 8 Ad. & El.; 55 E. C. L. Rep. 1034), and be sufficient to inform the tenant or the owner what are the goods taken and the amount of rent in arrear: Kerby v. Harding, 6 Exch. 234. A mere schedule of the goods levied on, which does not contain notice of “ the cause of taking ” is not a compliance with the statute. It is not claimed that any other written notice was given until May 25th. The wording of this notice proves eoncffisively that it was intended as the notice prescribed by the statute, and the plaintiffs were entitled to five full days from the service thereof within which to replevy the goods. It follows that in any view of the case an appraisement on May 30th was premature: Brisben v. Wilson, 60 Pa. 452; Davis v. Davis, 128 Pa. 100.

Even if it was competent for the defendant to prove in defense to an action of trespass that the sheriff’s sale by virtue of which the plaintiffs got title to the goods subsequently distrained was fraudulent as to creditors, the court was right in holding that there was not sufficient evidence of fraud to warrant the submission of the question to the jury. The legal presumption that a judicial sale was fair continues until overcome by sufficient proof that it was collusive or fraudulent. Leaving the property with the former owner is not, of itself, sufficient evidence of collusion, “ nor does it warrant an inference that the purchaser made an absolute gift or sale of it to him. In absence of affirmative evidence to the contrary the inference is that such leaving was an act of benevolence: ” Maynes v. Atwater, 88 Pa. 496. Moreover, as the goods were left on the premises and were liable to seizure for the rent due to Boring (the landlord, and the defendant in the present case) we fail to see how the sale could have been fraudulent as to him.

Judgment affirmed.


author: Willard, J.,

text:
    H. C. Snyder v. Edward R. Loy and James R. Loy, trading as Loy Bros., Appellants.

      Practice, C. P. — Trial—Qualified answer to points.

    Where points contain a proposition of law which depends for its proper application upon the determination of the question of fact, regarding which there is material dispute, it is not error for the trial judge to qualify his affirmance of the points by pointing out to the jury the duty imposed upon them of determining the disputed facts.

      Contracts — Joint and severable contracts defined.

    Where there is a purchase of different articles, at different prices, at the same time, the contract is severable as to each article, unless the taking of the whole was rendered essential, either by the nature of the subject-matter or by the acts of the parties.

      Practice, C. P. — Charge of court — Opinion of judge.

    While the judge may not decide a disputed question of fact when the affirmance of the points in its support or denial is sustained by reasonable proof, he may express his opinion respecting the evidence, and at times it is his duty to do so.
    A charge will not be considered inadequate or biased when the comments upon the testimony do not appear one-sided or argumentative, and where the testimony of the defendants is carefully presented, together with the testimony of each witness in corroboration thereof and where the jury is positively instructed that if the theory of the defendants as.stated was correct, the plaintiff could not recover.
    Argued March 10, 1897.
    Appeal, No. 16, March T., 1897, by defendants, from judgment of C. P. Perry Co., on verdict for plaintiff..
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Assumpsit to recover damages for alleged breach of parol contract. Before Lyons, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.

      Errors assigned were: (1.) Answer to the second point of defendant: “ 2d. That the time is an essential element in the contract and to observe the time of performance was equally obligatory on the plaintiff and defendants as to the whole contract and if the jury believe that the plaintiff did not attempt to, or did not remove the thirty head of cattle on or before the 20th day of June, 1895, the said plaintiff cannot recover for any loss on said thirty head of cattle. Answer: That would be true if the contract was a divisible contract. But if you find that this contract was an entire contract and the plaintiff was to receive the whole of the fifty-five head of cattle, he was not bound to take the thirty head when the defendants failed to deliver' him the first part of the cattle.”
    (2.) Answer to the third point of defendant: “ 3d. That the contract alleged by the plaintiff is severable and if the jury believe that the plaintiff did not comply with that part of the contract requiring him to remove the thirty head of cattle on or before the 20th day of June, 1895, then no recovery can be had for the loss on the said thirty head of cattle. Answer: We cannot affirm this point. As to whether this was an entire or divisible contract, or severable contract, depends upon the intentions of the parties at the time it was entered into and we submit the question to you to determine whether it was an entire contract, or whether it was a divisible contract, under all the evidence in the case, and if the contract is found by you to be a divisible, or severable contract, then this point would be correct.”
    (3.) Answer to the fourth point of defendant: “ 4th. The time being of the essence of the contract, if the jury believe that the plaintiff’s failure to remove the thirty head of cattle at the time alleged, namely, on or before the 20th day of June, 1895, and that the defendants sold them at a loss, and said loss being certainly ascertained, can be set off as against any loss sustained by the plaintiff on the twenty-five head sold on the 3d day of June, 1895, to Aarons. Answer: We say to you, that the answer to this point depends upon whether this was an entire or a severable contract, and if yon find that it was an entire contract then this point would not be correct. If, on the other hand, the contract was a divisible one, then the law is correctly stated in the point.”
    (4.) Answer to the fifth point of defendant. 44 5th. That the plaintiff having failed to show under the statement that he was ready and willing to take the thirty head of cattle to be removed the 20th of June, 1895, and no averment in the said statement that the said defendants failed to keep and feed said cattle for the plaintiff until the 20th of June, 1895, there can be no recovery for any losses on said thirty head of cattle. Answer: Refused, unless you find that the contract was a severable contract.”
    (5.) In the following paragraph of the charge: “ The first question, therefore, for you to determine in this case is, what was the contract between these parties ? Did the plaintiff buy all of the fifty-five head of the said cattle? Was the contract an entire one, or was it a divisible contract ? By an entire contract I mean, did the plaintiff agree to purchase the fifty-five head of cattle as one contract for one round consideration, although it was to be determined by the weight of the cattle, and did the defendants agree to sell the whole of the fifty-five head of cattle ? Was that the intention at the time the contract was made between the parties? The plaintiff contends that it was and the defendants have not seriously denied .this contention.”
    (6.) In the following paragraph of the charge : “Then, on the other hand, take this fact into consideration, that Mr. Loy learned that the cattle had been sold by Snyder to Walter and the price he was to get for them and he did not deny that he asked Mr. SnjMer to increase the contract price of the cattle, when he was there looking at them in May, 1895, that he said to him : 4 You have done well by these cattle, you made money on them and you ought to give me more money,’ how much more I don’t recollect, but the fact is there was something said about that; you recollect how much that was, that the contract at that time was talked over between them. Then again, consider the fact that he wrote a letter to Mr. Snyder on the first day of June, which came on Saturday, the last day of the first week in June, wanting to know when he was going to take these cattle. The letter was written on Saturday, the first day of June, 1895, in which he wanted an immediate answer whether he was going to take the cattle or not; that letter by due course of mail reached its destination; I do not know whether there is a route across the mountain or not, you may know about that, but take into consideration the probability whether or not Mr. Snyder, living in Newville, would receive it, or could by any possibility have received it in time to have replied before Mr. Loy sold these cattle. Mr. Aarons appeared on the scene and purchased these cattle on Monday, I forget the exact hour, you will recollect it, but before night, and they were shipped away in the cars the day before Mr. Snyder came to receive them under his contract. Now what was the motive for making this sale so quickly ? He knew that the time of the contract was claimed by Mr. Snyder and Mr. Walter to be the first week in June. The sale was quick, and he says he got no more money than he was to get from Mr. Snyder. What motive was there in doing that ? Did he "think that by selling the cattle in that way that Mr. Snyder had forfeited the $110 he had paid and he could keep it? Take all these things into consideration. Was he attempting to make a strict construction of a contract and thus reap the benefit of that $110 and keep it in his pocket, or was he acting honestly in accordance with the terms of the contract? Under all these circumstances you will weigh the evidence and look for the motives that actuated the parties one way and the other. Was there any motive for Mr. Snyder not to live up to his contract? Had he sold the cattle to Mr. Walter, as it is alleged he had, and as Mr. Walter testified he had, and that he had been paid the earnest money on account of that contract, and by reason of his failure to get the cattle from Loy he was sued for the money and had to pay it back? Take all these tilings into consideration and determine how the truth of this matter is.”
    (7.) In the following paragraph of the charge: “ If the contract was, that Mr. Snyder was to take those cattle away during the week in which the first day of June occurred, then he did not comply with the contract on his part and he cannot recover. But if on the other hand, under the evidence in the case you find that the contract was, that these cattle were to be delivered in the first week of June and that Snyder came for the cattle in that time, the latter of which is not disputed, then Mr. Snyder is entitled to recover the loss and damage which he sustained by reason of the failure of the defendants to deliver the cattle at that time, and if the contract was an entire one, and that is a question of intention which you must find from the evidence in the case, if you find that this was an entire contract, that Mr. Snyder bought the entire lot of cattle, although the price was to be measured by their weight at the time of delivery, and the defendants agreed to sell the entire lot of cattle and then failed to comply with their agreement to deliver them in the first week of June, the plaintiff is entitled to recover whatever damages he sustained by reason of the failure to perform the contract, and he would not be obliged to accept the thirty head of cattle which remained there on the terms of the contract. If the contract was an entire one, the defendants must perform their part, and if they failed to do it they could not ask the plaintiff to accept at their hands the remaining cattle which he alleges were inferior in quality and were not to him as valuable and profitable as those that were sold. So that you will consider all the evidence in the case, and if you find, as I have instructed you, that the contract was that the first lot of cattle were to be delivered in the week in which the first day of June occurred, then the plaintiff not having accepted them at that time, taken them away, cannot recover in this action.”

      J. W. Wetzel, with him Charles A. Barnett, for appellants.—
    A contract is severable when the part to be performed by one party consists of several distinct and independent items, and the price to be paid is apportioned to each item: 2 Parsons on Contracts, 517; 3 Am. & Eng. Ency. of Law, 925; Oil Co. v. Brewer, 66 Pa. 351. See also Fullmer v. Poust, 155 Pa. 275; McLaughlin v. Hess, 164 Pa. 570.
    It is clear that the case was inadequately and unfairly submitted to the jury, and for the reasons assigned the case should be reversed with a new venire: Lerch v. Bard, 177 Pa. 197; Larzelere v. Tiel, 3 Pa. Superior Ct. 109.

      James M. Barnett and Chas. H. Smiley, for appellee.
    — The contract was in parol and its construction was properly left to the jury: Holmes v. Oil Co., 138 Pa. 546; Hull v. R. R. Co., 1 Pa. Superior Ct. 651.

      April 12, 1897:
    The question as to whether the contract is entire or severable depends upon the intention to the parties, such intention must be ascertained from the language employed and the subject-matter of the contract: Mining Co. v. Jones, 108 Pa. 55; Shaw v. Badger, 12 S. &. R. 275; Larkin v. Heckshur, 3 L. R. A. 137; Norrington v. Wright, 115 U. S. 188,
    Where a contract of sale includes different items, if the agreement embraced the whole at the time it was made, although different prices were to be paid therefor, the contract is entire: Quigley v. De Haas, 82 Pa. 267; Shaw v. Badger, 12 S. & R. 275; Fessler v. Love, 43 Pa. 313.
    While a judge may not decide a disputed question of fact, when the averments of the parties in its support or denial are sustained by reasonable proof, he may express his opinion respecting the evidence, and at times it is his duty to do so: Price v. Hamscher, 174 Pa. 73.
    Appellants cannot complain of the inadequacy of the charge of the court below upon a point to which they do not see fit to direct the attention of the court, nor can the court be convicted of error in not giving instructions that were not requested by the defendants: Balph v. Bank, 179 Pa. 430; Com. v. Boschino, 176 Pa. 103.
   Opinion by

Willard, J.,

This was an action of assumpsit in the court below by H. C. Snyder against Edward R. Loy and James R. Loy, trading as Loy Brothers, to recover damages for an alleged breach of parol contract.

At the trial it was alleged on the part of Loy Brothers that in March, 1895, they had on hand for sale fifty-five head of cattle, thirty of which were in a barn near their house, fifteen at their lower barn and ten at a barn known as the Stein barn. That they sold to Snyder the cattle at the lower and Stein barns, twenty-five in number at $4.50 per hundred pounds, to be delivered “ the week in which the 1st of June comes ” (the 1st of June came on Saturday). That Snyder paid $110 on the contract. For the .remaining thirty head they were to receive from Snyder $4.20 per hundred pounds for twenty thereof, and $4.50 per hundred pounds for ten thereof, the last lot to be delivered on or before June 20, 1895. That the week in which the 1st of June came went by and Snyder did not come for the twenty-five cattle, and on Monday, the 3d day of June they were sold by them to another party at the same price. That they offered to deliver the remaining thirty head on or before the 20th of June. Snyder refused to accept the remaining cattle on the terms named.

On the other hand it was alleged by Snyder that he purchased from Loy Brothers fifty-five head of cattle under one contract, the consideration to be paid as follows : $100 cash down, the balance on delivery of all the cattle after being weighed at Loy’s scales, $4.50 per hundred pounds to be paid for thirty-five oE the best or higher grade, and $4.20 per hundred pounds for the balance. That he was to receive and Loy Brothers were to deliver one carload of the cattle during the first week in June which ended on the 7th. That the number constituting a car load was not specified, nor was there any agreement as to the. grade of cattle to be taken first. That he paid $110 on the contract and soon afterwards sold the entire lot to Charles P. Walter at $5.25 per hundred pounds to be delivered at the time specified in his contract with Loy Brothers. That they were informed of the sale to Walter, and on June 5th in company with Walter he went to Loy Brothers for his first carload and was informed by them that twenty-five of the cattle had been sold and he, Snyder, could not have them but could have the remaining thirty, but must forfeit the $110 paid on the first lot. On these terms Snyder refused to take them.

The facts were found by the jury as alleged by Snyder.

From the evidence in this case on the part of the plaintiff it is apparent that he tried at first to purchase twenty-five of the very best of the cattle and did not want the whole lot. To this the defendants objected, refusing on their part to make the deal unless it included the entire lot. To this the plaintiff finally agreed resulting in the contract as found by the jury. The evidence is explicit that the defendants who made the bargain said “ we would not sell them separate at all, but would sell the whole together.” It is evident from this testimony and other testimony in the case that the jury was warranted in finding that the plaintiff undertook to buy and the defendants to sell the fifty-five cattle as one herd, to be delivered in part during the first week of June and the balance on or before the twentieth of that month. The consideration was to be paid on delivery of the whole except as to the immediate payment of $100, and the amount of the consideration was to be computed at so much per hundred weight of the entire live weight of the whole lot when properly ascertained on scales. Thirty-five were graded higher than the remaining twenty, and in arriving at the total price, each hundred weight of the former was to be multiplied by $4.50 and the latter by $4.20.

It is alleged that the learned trial judge submitted to the jury the abstract question whether the contract was entire or severable, when he should have declared the law himself. This he could not have done under the circumstances of the case for the reason, as the facts were found on the one side or the other, so must the character of the contract be determined. Had the jury found the facts as testified to by Edward R. Loy that the cattle in the lower and Stein barns, twenty-five in number, were sold for $4.50 per hundred weight, to be delivered on or before June 1, and the cattle in the home barn, thirty in number, at another price, to be delivered on or before June 20th without further explanation than that given in his testimony, the jury would have been warranted under the charge of the court in finding a severable contract. But under the plaintiff’s theory, which they evidently believed and adopted, the jury were fully warranted in finding the transaction an entire contract. Under the conflicting testimony in the case the trial judge committed no error in saying to the jury: “The first question for you to determine in this case is, what was the contract between the parties? Did the plaintiff buy all of the fifty-five head of the said cattle? Was the contract an entire one or was it a divisible contract? By an entire contract I mean, did the plaintiff agree to purchase the fifty-five head of cattle as one contract for one round consideration, although it was to be ascertained by the weight of the cattle, and did the defendants agree to sell the whole fifty-five head of cattle ? ” This was a fair presentation of the case to the jury and they were fully instructed as to what was meant by an entire contract. The second, third, fourth and fifth points put by the defendants to the court were properly answered. Without the aid of the jury the court could not determine the facts upon which the points were predicated. In Hull & Co. v. R. R. Co., 1 Pa. Superior Ct. 651, this court held: “ where points con^ tain a proposition of law, which depends for its proper application on the determination of questions of fact, regarding which there is a material dispute, it is not error for the trial judge to qualify his affirmance of the points by pointing out to the jury the duty imposed upon them of determining the disputed facts.”

The cattle in question were of different sizes and grades, some good and some inferior. To take the whole at the agreed price might have been desirable, but to separate the inferior would tend to render them undesirable and unsalable. “ The contract may be entire or severable according to the circumstances of each particular case ; it has been said in speaking of contracts of sale, the criterion is to be found in the question whether the whole quantity — all of the things as a whole — is of the essence of the contract. If it appears that the purpose was to take the whole or none, then the contract would be entire; otherwise, it would be severable. It is sometimes difficult to determine whether the contract is entire or severable, in such cases, and there is great diversity of decision on the subject; but, on the whole, the weight of opinion and the more reasonable rule would seem to be that, where there is a purchase of different articles, at different prices, at the same time, the contract would be severable as to each article, unless the taking of the whole was rendered essential either by the nature of the subject-matter. or by the act of the parties: ” Clark on Contracts, page 657. The rule above stated is sustained by the decisions in Pennsylvania, among which are: Shaw v. Badger, 12 S. & R. 275; Quigley v. DeHaas, 82 Pa. 267; Carmalt v. Platt, 7 Watts, 318.

After a careful review of all the testimony in connection with the judge’s charge, we cannot say the charge was inadequate or biased. The comments upon the testimony do not appear one-sided or argumentative. The testimony of the defendants is carefully presented, together with the testimony of each witness in corroboration of the defendants. The jury were positively instructed that if the theory of the defendants as stated was correct, the plaintiff could not recover.

It is said by appellants’ counsel that the learned trial judge misquoted to the jury the alleged conversation between Edward Loy and Snyder. Such misquotations, if made and are material, should be corrected, and we have carefully examined the record and find the quotation as follows: “You have done well by these cattle, you made money on them, and you ought to give me more money.” The evidence was as follows: (Evidence of Snyder.) “ He (Loy) says, couldn’t you make them cattle in the stable $4.25 which you have bought at $4.20 ? And I says, I can’t do that.” (Evidence of C. P. Walter.) “ Loy said to Snyder, I hear you have done well on these cattle and you ought to give me five cents a hundred for doing so well, and Mr. Snyder .said, “No, I can’t do that, or I couldn’t do that, but if you want more money on the cattle I will pay you some more money.” The language quoted, when compared with the testimony is not open' to the harsh criticism of appellants’ counsel that “ no witness so testified, nor is there any testimony which would justify this quotation.” The fact that on Saturday, the 1st day of June, Loy Brothers wrote to Snyder as to what he intended to do -with tlje cattle, demanding a reply by wire at a place where there was no regular telegraph station, followed by a sale on the following Monday to another party was a circumstance that ought to have been called to the attention of the jury, and the judge committed no error in so doing. Comments of the judge upon the testimony of the plaintiff and his witnesses perhaps occupied more time than was devoted to the appellants and their witnesses. But we discover no unnecessary or uncalled for comments upon the whole testimony, and the charge taken as a whole is not open to the criticism of being argumentative or biased. It is within the rule of Price v. Hamscher, 174 Pa. 73, and cases there cited.

The specifications of error are all overruled and the judgment affirmed.


text:
    Waymart Water Company, Appellant, v. Borough of Waymart.

      Municipal law — Borough—Contracts—Assent by councils.

    The validity of a contract with a borough binding the latter to pay an annual water rent for a period of years depends on the assent of the borough councils and without such assent the borough is not bound although the paper is executed with all due formality.
    A body of this kind should exercise its powers by joint action as a board; loose discussions without any motion or united action are not sufficient.

      Municipal contract — Assent of councils — Evidence—Parol evidence.

    Where in order to prove the assent of the borough council to the written contract sued on, the plaintiff can show no resolution or ordinance authorizing the contract but must depend upon parol evidence of what was said and done at the council meeting at which it was signed. She has no reason to complain of the admission of evidence tending to show that assent was given conditionally and that the writing does not embody the whole action of council in the matter, or of the submission of such evidence to the jury to determine what was the agreement which the council made or authorized to be made.

      Contract subject to vendee's satisfaction — Bight of rejection.

    When an agreement is to make and deliver an article to the satisfaction of the person for whom it is made, the latter, acting in good faith, and not from mere caprice, may refuse to accept if, for any reason, it is really not satisfactory to him, but such refusal cannot be made before an actual bona fide inspection of the article.
    Argued Jan. 21, 1897.
    Appeal, No. 1, Jan. T., 1897, by plaintiff, from judgment of C. P. Wayne Co., Deo. T., 1894, No. 40, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit to recover the price of six hydrants and for certain water rent. Before Purdy, P. J.
    The plaintiff company brought suit upon a written contract to recover the cost of six hydrants and for water furnished to the defendant to January 1, 1895, with interest. The cost of the hydrants being $185.38 and the water rent $144.20 making the total claim $329.58.
    The evidence tended to show as a defense that the written contract executed by the chief burgess was in excess of the authority granted by the borough council. Also that even if the agreement were binding there had been a failure in the performance of conditions to the satisfaction of councils as had been agreed upon.
    Parol evidence was admitted as to what took place at the meeting of councils where it was alleged that the contract was authorized.
    These facts and others will be found more fully set out in the opinion of the Superior Court.
    The jury found for the plaintiff for the six hydrants, rejecting the claim for water.
    Verdict and judgment for plaintiff for $185.38. Plaintiff appealed.

      Errors assigned were: (1) In refusing to affirm plaintiff’s fifth point, which point and its answer are as follows : “ Fifth: There is no evidence offered by the defendant of such clear, precise and indubitable character as to vary the terms of the written contract of August 5,1893, and the verdict must be for the plaintiff, for a sum to cover the claim for water rents, or $140, with interest on the same from January 1, 1895, to date. Answer: That is refused. We think the evidence in this case is for the jury and not for the court to pass upon.”
    (2) In affirming the defendant’s second point, which point and its answer are as follows: “ Second: The fair construction of said contract requires the water company to furnish a supply of water of sufficient force and volume to be reasonably effective for the purposes of extinguishing fires; and the plaintiff cannot recover on said contract unless such supply was furnished before the commencement of this suit, December 11, 1894. Answer: This is affirmed.”
    (3) In its answer to the defendant’s third point, which point and answer are as follows: “ If a verbal agreement that the Waymart Water Company should supply water and force sufficient to throw an unbroken stream of size and force enough to put out fires, over any building in Waymart, was made at the meeting held August 5, 1893, before the written contract was signed, and that contract was assented to and signed on the part of the borough on the faith of this verbal agreement, the plaintiff cannot recover on the written contract unless the terms of the verbal agreement were complied with by the water company before the commencement of the suit, December 11, 1894. Anmer: That is affirmed, with this qualification: the water company are not required to do impossibilities. With the explanation or with the testimony relative to what was contemplated by the term ‘any building in Waymart,’ we affirm the point. The jury to take into consideration the testimony relative to what was contemplated by the parties with respect to that term, if they should find that the oral contract or agreement alleged by the defendant to have been made at that time in this particular were actually so made.”
    (4) In its answer to defendant’s fourth point, which point and its answer are as follows: “ Fourth: If a verbal agreement that a test of the water supply should be made, and that if it was not satisfactory to the town council the borough would have nothing to pay, was made at the meeting held August 5, 1893, before the written contract was signed, and that contract was assented to and signed on the part of the borough, on the faith of the verbal agreement, the plaintiff cannot recover without proving that such test was made and was satisfactory to the town council. Answer: This is affirmed, unless it should appear from all the evidence that the council acted in bad faith with reference to such test.”
    (5) In leaving it to the jury to determine if there was any such agreement as answers the requirement of the law, to change or add to this written contract, which it did in the following-language: “You will take all of these facts into consideration in determining what weight is to be given to the entry at the bottom of that page. Does the evidence satisfy you that this memoranda was made at the time and was read to George Patterson or the agents of the water company who were present, and assented to by them ? If not, then what was the understanding or agreement between the parties at that time, if there was any such agreement as answers the requirements of the law to change or add to this written contract ? ”
    (6) In misstating the measure of damages for nonfulfilment of contract where it used the following words: “It seems that a test was made. The result of that test you have heard described in the evidence, and we do not intend to review it. Did it answer the requirements or did it. not? If it did, and if it was to be satisfactory to the borough authorities and was satisfactory to them, the plaintiff is entitled to recover. If not then the plaintiff is not entitled to recover.”
    (7) In admitting as evidence the footnote at the bottom of page 139 of the minute book of borough council which reads as follows: “ The above agreement on file to be void and of non-effect unless the water company fulfil their verbal agreement with the burgess and council to erect a reservoir that will contain water and force sufficient to throw an unbroken stream of water of size and force enough to put out fires over any build-' ing in Waymart. No water furnished according to said agreement, no pay to be demanded of the borough.” The offer and and ruling being as follows:—
    The Court: Do you offer to show that this additional note here was a part of the contract between the parties at that time.
    Mr. Wilson: Certainly; a part of the contract set down on the minutes, and a part of the minutes, too.
    The Court: For the present we admit this evidence. To this ruling plaintiff excepts. Bill sealed for plaintiff.
    Mr. Kimble: We object to this that it contradicts the minutes and the written instrument, and contains matter not pertinent to the issue and is not within the province and the duty ■of the clerk to record. Objection overruled. Plaintiff excepts. Bill sealed for plaintiff.
    The Court: It is contended by the defendant that this entry was made or the parol agreement was given to the water company before this was signed. Bill sealed for plaintiff.
    (8) In admitting parol evidence to vary the written contract between the parties, the offer, objection and ruling being as follows :—
    Mr. Wilson: The defendant offers to prove by the witness on the stand and others that the contract for hydrants and water under which the plaintiff claims was by a verbal agreement hereinafter mentioned made subject to the condition that it was to be void and of noneffect unless the water company fulfilled their verbal agreement with the burgess and council, “to erect a reservoir that will contain water and force sufficient to throw an unbroken stream of water of size and force enough to put out fires over any building in Waymart. No water furnished according to this agreement, no pay to be demanded of the borough.” That such verbal agreement was made at the meeting of the town council of Waymart, August 5,1898, at which said contract was signed, and before the contract was signed that it was then and there entered on the minutes of the town council by the cleric of the council, at the suggestion of George M. Patterson, who represented the plaintiff at that meeting and acted there in its behalf, and from his dictation. That after being so written it was read aloud by the secretary and assented to by said Patterson and by Frank Hollenbaek, a director of said water company, also present in behalf of said company and representing it in the premises. That said verbal agreement was the inducement that led to the signing of the said contract on the part of the defendant. That said contract was executed on the part of the defendant solely on the faith of the said verbal agreement placed on the minutes as aforesaid, and would not have been signed without it. To be followed with evidence that said condition and agreement have not been performed by the plaintiff and that water has not been furnished as thereby required.
    Mr. Patterson: We object to the offer on the ground that it contains matter which has already been contradicted by this witness upon the stand, and that it is incompetent, irrelevant and immaterial and not the best evidence, and that it contains no offer to show fraud, accident or mistake, and also that it relates to more than one subject-matter.
    The Court: Under this offer I do not see how we can exclude the evidence, because it alleges that what is offered to be proven was the consideration for the execution of this agreement. There can be no doubt that parol evidence of agreements or evidence of parol agreements, and negotiations made by the parties at the time of the execution of a written contract, which were in part the consideration or the moving cause for the execution of the written contract, may be given in evidence, and that seems to be the offer in this case, and so understanding it, we admit this evidence. Objection overruled. Plaintiff excepts. Bill sealed for plaintiff.
    (9) In overruling the objection of plaintiff’s counsel to the cross-examination of George M. Patterson as to the result of the hydrant tests, the offer and ruling being as follows: “ Q. AVhat examination did you make and what did you find on any of those occasions ? A. I made the examination by taking some-hose there which we borrowed from the City Fire Department of Carbondale, and attached the hose to the hydrants and tried to see what the effect would be on the buildings. Q. Did any water come out of the hose ? A. Yes. Q. How far could you throw it? ” Objected to. “ Q. Flow much water? ” Objected to. Objection overruled. Plaintiff excepts. Bill sealed for plaintiffs. “ Go on and state how far the water was thrown by that hose at any time before the suit was brought. A. Do you mean in feet? Q. Yes, sir, in feet. A. I didn’t have any balloon and I didn’t go up to see. But it went over the buildings and what we tested it on. I have a record of the buildings.”
    April 12, 1897:

      Frank P. Kimble and William A. Wilcox, with them Roswell H. Patterson, for appellant.
    ' ff. Wilson, with him A. T. Searle, for appellee.
   Opinion by

Rice, P. J.,

By resolution adopted July 18, 1893, the borough council granted to the plaintiff company the exclusive privilege of laying and maintaining water pipes in the borough streets. At a meeting of the council on August 5, 1893, before the reservoir was built or the pipes were laid, officers of the company presented a contract previously prepared, providing, inter alia, as follows : “ That the said first party in consideration of the rents to be paid and the agreements hereinafter to be kept and performed by and on the part of the second party, doth hereby grant and lease unto the said second party a supply of water, unless temporarily ¡erevented by accident or unavoidable casualty, for six fire hydrants, to be used for the purpose of extinguishing fires and for no other purpose, through three inch taps to be made in the mains of the first party by said first party into service pipes laid by second party to connect with hydrants to be erected by said second party near the mains of the first party upon locations in said borough of Waymart to be agreed upon by said parties, for and during the term of ten years from the 1st day of September, A. D. 1893, at a rent of $20 per annum, for each hydrant: to be paid quarterly in advance on the first days of January, April, July and October in each year during the term and continuance of this agreement, and every lawful renewal, holding over or increase in the number of hydrants shall be subject to the provisions of this agreement.” After some discussion, to which we shall hereafter refer, the burgess and clerk signed the contract and affixed the borough seal. This was an action to recover the cost of six fire hydrants, furnished and put in place by the plaintiff, and water rent from November 1, 1893, to January 1,1895, at the annual rate stipulated in the writing. The plaintiff obtained a verdict for the cost of the hydrants, but as to the other branch of the claim there was a verdict and judgment for the defendant, from which the plaintiff appealed.

As this is at the foundation of the plaintiff’s case we quote, in this connection, from the minutes, the only recorded evidence of the action of council relative to this matter: “Waymart, August 5, 1893. Meeting of council on call .of the burgess at the house of James Staples to consider the matter of purchasing fire plugs of the Waymart Water Company. Present, the full board, viz: L. E. Stanton, burgess,” (here follow names of councilmen). “ On organization and consideration of the matter, it was resolved by the burgess and council to purchase six fire plugs at $25.00 each, and an agreement with the Water Company of Waymart was signed by the burgess and clerk of the council to that effect: See agreement on file. Attest J. B. Tuthill, clerk.” Immediately below this entry appears the following memorandum, which, although not strictly part of the official record, the defendant claimed and gave evidence to show was written, read and assented to by the plaintiff’s officers before the contract was signed: “ The above agreement on file to be void and of non-effect unless the water company fulfill their verbal agreement with the burgess and council to erect a reservoir that will contain water and force sufficient to throw an unbroken stream of water of size and force enough to put out fires over any building in Waymart. No water furnished according to said agreement, no pay to be demanded of the borough.”

It will be observed that the meeting of August 5th was called for a single purpose, namely, to consider the matter of the purchase of fire plugs, that not a word is contained in the resolution relative to any other matter, and that not a word is contained in the contract in evidence relative to that matter. In short, the resolution was to purchase fire plugs, while the written contract offered in evidence was to furnish to the borough for the purpose of extinguishing fires a supply of water for six fire hydrants, for the term of ten years, for which the borough was to pay a rent of $20.00 a year for each hydrant. When’ this contract was offered in evidence the defendant’s counsel objected to its admission upon the ground that it was broader than the authority given. The plaintiff’s counsel, appreciating the force of the objection, met it, in the only way it could be met, as follows : “It-is to be followed by parol evidence that the written contract embodies the entire action of the town council at that meeting in which it was drawn, notwithstanding the written minutes may not show it.” The contract was then admitted in evidence, but the only attempt to make good the offer was to prove a verbal agreement relative to the price to be paid for the hydrants (really contradictory of the minutes) and what may be implied in the following question put to the plaintiff’s secretary and his answer: “ What else is there that is not on the minutes ? A. The contract for the water service.” The only other witness for the plaintiff who was present at the meeting testified that, so far as his knowledge went, nothing was discussed but the question of the hydrants and where they were to be located. We refer to these details for the purpose of showing, not merely that the plaintiff opened the door to the ádmission of parol evidence of the unrecorded action of the borough council relative to the water supply, but that without such evidence it could not have proceeded a step in the case. It was incumbent on the plaintiff to prove the assent of the borough council to the contract executed by the burgess ; for without that the borough would not be bound although the paper was executed with all due formality. But the plaintiff was unable to show such assent by any ordinance or resolution entered on the minutes or, indeed, by any formal action of the borough council. A body of this kind, ordinarily, must exercise its powers by joint action as a board: School Dist. v. Fuess, 98 Pa. 600; Nason v. Poor Directors, 126 Pa. 445. Loose discussions without any motion or united action are not sufficient: Butler et al. v. School Dist., 149 Pa. 351. Moreover, even if the assent of the council could be proved by evidence of what was said at the meeting when the contract was signed, the great preponderance of the parol testimony as to what took place was to the effect that the councilmen gave assent — such as it was — to the contract proposed by the plaintiff’s officers only upon condition that the company would build a reservoir of sufficient capacity to throw an unbroken stream of water over any building in Waymart and of size and force enough to put out fires, and that before the borough should be bound a test should be made which would be satisfactory to the council. Instead, therefore, of the parol testimony showing that the paper embodied the entire action of the council, it shows the contrary. The burgess had no power to bind the borough beyond the authority given by council. Strike out the parol testimony, and the plaintiff’s case fails for want of proof that the council authorized the contract. Admit it, and it proves that the writing does not embody the whole action of the council regarding the matter. If the entire action of the council, as far as it can be gathered from the testimony of the councilmen, had been put in the form of a resolution, and entered on the inmutes, no one would contend that the borough would be bound to pay the stipulated rent without proof of compliance, on the part of the plaintiff, with the conditions and agreements upon the faith and in consideration of which their consent was expressly given. The same is true where the plaintiff’s case depends upon parol testimony of what the unrecorded action of council was. It cannot rely upon such evidence to prove assent of council and object to that part of it which goes to show that it was given conditionally.

The learned judge submitted the case to the jury upon the theory that, presumptively, the written instrument embodied the agreements of the parties as made at the time, and that the principle that the parol evidence to reform a written instrument must be clear, precise and indubitable was applicable to the case. This was presenting the case in quite as favorable a light as the plaintiff could ask; and even upon that theory we are not to be understood as saying that the evidence was incompetent or was insufficient to sustain a verdict for the defendant. See School Furniture Co. v. Warsaw, 130 Pa. 76, and cases there cited. But as we look at the case the controlling question is, not whether a written agreement of a borough, duly executed by the proper officers pursuant to an ordinance or resolution of the council authorizing it, may be reformed or explained by parol evidence of promises made by the other party at the council meeting, but whether the burgess was unconditionally authorized to execute the agreement sued upon, and if not, what was the agreement which the council made or authorized. Looking at the case from this point of view the plaintiff has no reason to complain of the submission of the question to the jury or of any of the rulings specified in the first, third, fourth and eighth assignments. They are all overruled.

By the written contract the plaintiff agreed to furnish a “ supply ” of water for six fire hydrants, to be used for the purpose, and no other, of extinguishing fires. A primary meaning of the term is, “ an amount sufficient for a given use or purpose,” and it was evidently used in that sense in this connection. The clause, fairly construed, not only restricted the use of the water, but clearly implied that the supply to these hydrants should be of sufficient force and volume to be reasonably effective for the purpose for which the company agreed to supply it. This seems to us too plain to require discussion or a citation of authorities. The second assignment is overruled.

The instruction complained of in the sixth assignment, read with the context and the answer to the defendant’s fourth point was free from error. “ It is undoubtedly true, when the agreement is to make and deliver an article to the satisfaction of the person for whom.it is made, the latter, acting in good faith, and not from mere caprice, may refuse to accept if, for any reason, it is really not satisfactory to him: Singerly v. Thayer, 108 Pa. 291; Seeley v. Welles, 120 Pa. 69. But when the refusal to receive is made before an actual, bona fide inspection of the article or before an opportunity is had to judge of its quality or merits, no such rule could obtain; for it would be impossible, in such a case, to decide whether the article is satisfactory or not: ” School Furniture Co. v. Warsaw, 180 Pa. 76-93. The learned judge submitted the question as to the test and as to the result of the same, and as to the bona fides of the council in declaring it unsatisfactory, hr exact accord with the principles enunciated in the cases above cited. If the assent of the council was given upon condition that the borough should not be compelled to pay the rent until after a test, satisfactory to them, should be made, and if the council acted in good faith, and without delay in expressing their dissatisfaction it was not for the court or jury to say that the borough would be bound if the test was or ought to have been partially satisfactory. The sixth assignment is overruled.

The seventh assignment relates to the admission in evidence of the memorandum entered on the minute book immediately after the regular minutes of the meeting of August 5th. This, it is true, was no part of the minutes, and it was not admissible as such, but only as a written memorandum 'which was read in the hearing of, and assented to by, the plaintiff’s officers before the contract was signed. This was fully and clearly explained to the jury by the court, and there was ample evidence to warrant its submission to them as part of the deliberations which took place in connection with the signing of the contract. This assignment and the fifth, which relates in part to the same subject, are overruled.

We see no error in permitting the cross-examination complained of in the ninth assignment. The witness had testified, in chief, that water was being supplied to the hydrants and that the supply was ample. It was clearly competent upon cross-examination to inquire as to his means of obtaining a correct and certain knowledge that the supply was ample.

The judgment is affirmed.