text:
    Lightcap, Appellant, v. Nicola.

      Practice, C. P. — Motion for judgment non obstante veredicto — Evidence —Act of April 22,1905, P. L. 286.
    The Act of April 22, 1905, P. L. 286, is not intended to change the relative functions of court and jury, so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do.subsequently on review of the whole case what it then appears it would have been proper to do by a binding direction at the trial.

      Principal and agent — Serving two masters — Commissions—Vendor and vendee — Fraud—C ontract — Rescission—Notice.
    Where the seller of land, or his agent in the transaction, has knowledge that there exists between the purchaser and another such a relation that it would be a breach of duty on the part of that other person to enter into a similar relation with the seller, the same principle of law which forbids him to do so while still acting for the purchaser, must forbid the seller to enter into that relation with the purchaser’s agent or employee, without the knowledge and consent of his principal or employer.
    The rule being not merely remedial of actual wrong, but preventive of the possibility of it, it may be invoked not only against the unfaithful agent or employee in an action involving his commissions, or other form of compensation, but also against the seller as the foundation of a right in the purchaser to rescind the contract of sale upon discovery of the constructive fraud.
    The vendee’s right to rescind is not affected by the fact that a part of the commission paid by the vendor to the vendee’s agent was for services previously rendered by such agent to the vendor in prior transactions.
    Where a vendor of land gives secret commissions to the vendee’s agent, and knowledge of the fraud is discovered by another of the vendee’s agents three months after the transaction, and after the expiration of such agent’s employment, the notice to such agent is not notice to the vendee.
    To visit the principal with constructive notice, it is necessary that the knowledge of the agent or attorney should be gained in the course of the same transaction in which he is employed by his client.
    The act of a vendor in giving secret commissions to the vendee’s agent, although contrary to good faith and the policy of the law, does not make the contract of sale absolutely void. Either ratification or rescission at the election of the vendee is permissible; and omission to repudiate within a reasonable time, unless explained, is conclusive evidence of an election to affirm. The election to rescind must be communicated to the other party. Where it is not declared in judicial proceedings, prompt repudiation and restitution as far as possible must be made by the vendee.
    Where discovery of the fraud is not made by the vendee until after a suit has been brought for the balance of the purchase money, the vendee has a right to set up the fraud as a ground for rescission, and as a defense to the suit; and he may do this where there is a delay of only two months and a half after the discovery of the fraud, if there has been no such change of conditions in the meantime as to make the rescission inequitable.
    Argued April 9, 1907.
    Appeal, No. 93, April T., 1907, by-plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 243, for defendant non obstante veredicto in ease of Gilson Lighteap, Executor of William Walker, deceased, etal. v. Frank F. Nicola.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover the balance of purchase money due under a contract for the sale of land. Before Evans, J.
    The facts appear by the opinion of the Superior Court.
    Verdict for plaintiff for $36,150.50. Subsequently on motion for judgment non obstante veredicto the court entered judgment for defendant for $1,240, the hand money paid by the defendant at the execution of the contract.

      Error assigned -was in entering judgment for defendant non obstante veredicto.

      Matthew Lowrie, with him Robert F. Graham, for appellant.
    —The question of fraud was for the jury: Ehrisman v. Roberts, 68 Pa. 311; Loucheim v. Henszey, 77 Pa. 305; Highlands v. R. R. Co., 209 Pa. 286; Zineman v. Harris, 6 Pa. Superior Ct. 303.
    The evidence of the fraud must be clear and decisive: Southern Development Co. v. Silva, 125 U. S. 247 (8 Sup. Ct. Repr. 881) ; Grymes v. Sanders, 93 U. S. 55; Fulton v. Hood, 34 Pa. 365 ; Clark v. Everhart, 63 Pa. 347; Nolte v. Hulbert, 37 Ohio, 445.
    The maxim that “ no man shall serve two masters ” does not prevent the same person from acting as agent, for certain purposes, of two or more parties to the .same transaction when their interests do not conflict, and where loyalty to the one is not a breach of duty to the other: 1 Clark & Skyles on the Law of Agency, p. 931; Mehaffey v. Ferguson, 156 Pa. 156.
    Omission to repudiate within a reasonable time is evidence, and may be conclusive evidence of an election to affirm the contract. Election to rescind must be communicated to the other party: Howard v. Turner, 155 Pa. 349; Mehaffey v. Ferguson, 156 Pa. 156.

      John M. Freeman, of Watson Freeman, for appellee.
    The testimony is undisputed that Walker was the authorized agent of the plaintiff, Lightcap, for the sale of this property, and that Cooley was in the employ of and represented Nicola in the transaction, and that Walker, without Nicola’s knowledge, agreed to pay a commission to Cooley, and was therefore guilty of constructive fraud.
    The principal is liable for the fraud of his agent perpetrated while acting within the scope of the agency, although the principal was innocent of any actual fraud and had no knowledge thereof: Franklin Fire Ins. Co. v. Bradford, 201 Pa. 32; Wolfe v. Pugh, 101 Ind. 293 ; Haskell v. Starbird, 152 Mass. 117 (25 N. E. Repr. 14) ; Fish v. Leser, 69 Ill. 394 ; Krumm v. Beach, 96 N. Y. 398; Busch v. Wilcox, 82 Mich. 315.
    But leaving Walker out of the transaction and conceding that Lightcap innocently agreed to pay the money to Cooley for services as his agent in procuring a purchaser, then the double agency of Cooley, without the knowledge of Nicola, entitled the latter to rescind at once on discovery thereof, and this, whether Lightcap had any knowledge whatever that Cooley was acting as Nicola’s agent: Rolling Stock Co. v. R. R. Co., 34 Ohio, 450 ; New York Cent. Ins. Co. v. Ins. Co., 14 N. Y. 85; Carr v. Natl. B. & L. Co., 167 N. Y. 375 (60 N. E. Repr. 649); Empire State Ins. Co. v. American Cent. Ins. Co., 138 N. Y. 446 (34 N. E. Repr. 200) ; Rich v. Black, 173 Pa. 92; Everhart v. Searle, 71 Pa. 256.
    The adoption and ratification of the contract by Lightcap in claiming the fruits thereof and bringing suit to enforce the same, makes him liable for any fraud perpetrated by his agents in securing the contract, precisely as if Lightcap had perpetrated the fraud himself. And this applies not only to any fraud committed by Walker, his authorized agent, but also to any fraud perpetrated by Cooley, whose employment by Walker he, Lightcap, ratified: Penna. R. R. Co. v. Flanigan, 112 Pa. 558; Story on Agency, sec. 211; Jones v. Nat. Bldg. Assn., 94 Pa. 215 ; Meyerhoff v. Daniels, 173 Pa. 555 ; Williams v. Kerr, 152 Pa. 560 ; Organ Co. v. McManigal, 8 Pa. Superior Ct. 632; Mundorff v. Wickersham, 63 Pa. 87; Singer Mfg. Co. v. Christian, 211 Pa. 534; McNeile v. Cridland, 168 Pa. 16; Wojciekowski v. Johnkowski, 16 Pa. Superior Ct. 444.
    October 7, 1907:
    The facts being undisputed, the question of what is a reasonable time for the rescission of a contract is for the decision of the court: Rice v. Davis, 136 Pa. 439 ; Learning v. Wise, 73 Pa. 173 ; Armour v. Produce Co., 28 Pa. Superior Ct. 524.
    It is well settled, however, that where an agent is acting adversely to his principal and assisting in perpetrating a fraud on the principal, the principal is not chargeable with knowledge of the acts of the agent: United Security Life Ins., etc., Co. v. Central Nat. Bank, 185 Pa. 586 ; Sproul v. Standard Plate Glass Co., 201 Pa. 103.
   Opinion by

Rice, P. J.,

This was an action of assumpsit upon a contract entered into in the latter part of January, 1902, between Samuel Gilson Lightcap, executor, acting under a power contained in the will of William Walker, deceased, and Frank Nicola, for the sale to the latter of a tract of land known as the Walker farm. The price stipulated in the contract was $31,000, of which $1,000 were paid when the contract was executed by Nicola and the balance was to be paid not later than June 1, 1902, at which time the deed was to be delivered. The defense set up was that the vendor, without the knowledge of the defendant, entered into a contract with one S. B. Cooley, the defendant’s agent or employee, to pay the latter a commission. The circumstances under which this commission contract was executed will be stated hereafter. It plays such an important part in the case that we quote it verbatim: “ Pittsburg, Pa., Jan., 1902. It is hereby agreed and distinctly understood between the parties hereto, viz., Samuel G. Lightcap, executor, and John Walker and Samuel B. Cooley, that, on the consummation of the sale of the Walker Farm in Baldwin Township, Allegheny County, Pennsylvania, for the sum of thirty-one thousand ($31,000) dollars, the said executor, Samuel G. Lightcap, will pay a commission for negotiating said sale, the sum of twenty-five hundred and sixty ($2,560) dollars in manner as follows: eight hundred fifty-three ($853) dollars to be paid to John Walker, and seventeen hundred six ($1,706) dollars the remainder of said commission to be paid to Samuel B. Cooley on consummation of the sale as above mentioned. Samuel - G. Lightcap (Seal), S. B. Cooley (Seal), John M. Walker (Seal).”

The court having declined the defendant’s point for instruction “ that under all the evidence the verdict must be for the defendant,” and the jury having rendered a verdict for the plaintiffs for $36,150.50, the balance of the purchase money, the defendant moved to have all the evidence certified and filed as part of the record, and for judgment non obstante veredicto upon said record. The court sustained the motion and entered judgment in favor of the defendant in the sum of $1,240, the amount, with interest, paid by the defendant at the execution of the contract. The plaintiffs’ appeal to the Supreme Court was certified to this court.

“ The Act of April 22, 1905, P. L. 286, is not intended to change the relative functions of court and jury, so as to permit the judge to decide questions of conflicting evidence, but only to allow him to do subsequently on review of the whole case what it then appears it would have been proper to do by a binding direction at the trial: Dalmas v. Kemble, 215 Pa. 410; ” Bond v. Penna. R. R. Co., 218 Pa. 34. See also Murphey v. Greybill, in which we herewith file an opinion (post, p. 000). Therefore, the question before us is whether the court would have been justified in giving binding instruction for the defendant. The proper decision of that question necessarily involves review and analysis of the evidence, not for the purpose of deciding disputed questions of fact, but for the purpose of ascertaining what facts are admitted, or are established by evidence of such a nature, having regard to the source from which it came, that they may be regarded as uncontroverted.

1. The defendant testified that he and Charles Donnelly were building a railroad, and preparing to go into mining operations; that it became necessary to buy surplus land for mine openings; that James H. McRoberts was their engineer, whose duty it was to designate what land was necessary to properly place the mines; that McRoberts advised them that the Walker farm (the land in question) was important, if not absolutely essential, for their purposes; that Cooley gave similar advice; that Cooley was employed by them at a salary; and as such employee it was his duty to purchase, '.or assist in purchasing, these and other lands, as well as land needed by the West Side Belt Railroad, which was also part of the property owned by Mr. Donnelly and himself. Cooley, who was called and testified in behalf of the plaintiffs, at first denied that he ever was in the employ of the defendant, or ever negotiated any land purchases for him individually. But upon his memory being refreshed by cross-examination, he admitted that, although previously he was employed by McRoberts personally, yet at the time of this transaction McRoberts and he had charge of the purchasing of lands for the defendant and Donnelly necessary to open their coal; that he acted as “outside man,” under the direction of McRoberts, in bringing in the parties, but the deals were usually closed by McRoberts ; and that he assisted in the purchase of this property, but only to the extent of bringing the parties together. It is worthy of notice that Cooley did not deny that he had advised the defendant as to the importance of this land to his employers, as testified by the defendant; nor was he called upon by the plaintiffs to testify as to that specific allegation. It was permitted to rest where the defendant’s testimony had left it. We now turn to the testimony of John M. Walker. As one of the heirs of William Walker, deceased, he had an undivided eighth interest in this land. He is the person to whom part of the commission specified in the paper of January, 1902, was to go. Upon the death of Samuel G. Lightcap, executor, who brought this action, he was appointed one of the administrators d. b. n. of the estate of William Walker, and was substituted as one of the plaintiffs. He testified that two or three months before this transaction Samuel G. Lightcap (who was empowered and directed by the will of William Walker to sell the land) told him he would give him a commission if he would sell the land for $28,000, and that later he wrote to him to the effect that he would give him as a commission the difference between $28,000 and $31,000. As to Cooley’s connection with the sale, he testified that Cooley came to him with the statement that Mclloberts wanted to see him with reference to buying the farm. He, evidently, was not given to. understand that McRoberts personally desired to buy, but only, as Cooley said to him, “ that Mr. McRoberts was the man that was doing the business.” He admits that in reply to Cooley’s inquiry as to the price, he told him it was $28,000. This interview resulted in an arrangement pursuant to which Walker met McRoberts on the following day and with him went to the house of Light-cap, where the contract of sale and the commission contract (each in duplicate) were executed and delivered by Lightcap. On the following day the latter was executed by Cooley and the former by the defendant, but without knowledge on his part of the commission agreement. From the testimony of the plaintiff and' of the plaintiffs’ witness above summarized, taken in connection with such portion of the testimony of the defendant as could have been contradicted by them, if it was not true, and which was not contradicted, we conclude, that the court would have been warranted in instructing the jury that Cooley was the defendant’s employee and agent in the purchase of lands, and acted as such in the negotiations which culminated in the contract of sale upon which this action was brought.

2. In speaking of the relation of John M. Walker to the case we have mentioned incidently his relation to Lightcap, the vendor. As already stated, in effect, he admitted that Lightcap gave him the “ privilege,” or, as expressed later in his testimony, “authorized” him, to sell the land, and promised to give him as a commission for his services the difference between $28,000 and $31,000, if he should be able to find a purchaser who would pay the latter sum. When he accepted this “privilege” or “authority” and proceeded to act under it, he became the vendor’s agent. Accepting his own testimony for verity, it is beyond controversy that he acted in that capacity in the negotiations which culminated in the contract of sale. It being an undisputed and admitted fact, there was no occasion for submitting that question to the jury.

3. It was not proved that Lightcap knew that Cooley was the defendant’s employee or agent; nor was it shown affirmatively that he was ignorant of that fact. But the testimony comes from the plaintiffs’ own witnesses, and is undisputed, that Cooley by direction of McRoberts brought Walker and McRoberts together; that before they met on the day of the making of the contract of sale Walker had the commission agreement typewritten at McRoberts’ office, and took it with him to the home of Lightcap where the negotiations were completed; and that on the way to Lightcap’s McRoberts told him he was buying the land for the defendant. While Walker did not admit, in so many words, that he knew that Cooley was in the employ of the defendant and his associates, he did not deny it, as it would have been natural for him to do if it were not the fact. Moreover, his testimony shows that he was familiar with the office where McRoberts was employed, and that he knew, not only that Cooley was employed in the same office, but also that he was employed with McRoberts. If Walker did not know before, that Cooley was acting for the defendant in this transaction, he must have known it when he learned that McRoberts was not negotiating for the land in his own behalf, but in behalf of the defendant. With this knowledge he was instrumental in having Lightcap, his principal, sign the commission agreement contemporaneously with his execution of the land agreement. A finding that Walker did this in ignorance of the relation in which Cooley stood to the defendant would be unwarranted under his own testimony.

4. It is claimed by the plaintiffs that the testimony shows affirmatively that the commission Cooley was to receive was for services performed before he entered the employ of either the defendant or the West Side Belt Railroad — a commission earned at a time and for work done when he was the agent not of the defendant or of the railroad, but of the Walker brothers and Lightcap. In support of this contention the plaintiffs’ counsel cite the following testimony of Cooley: “ Q. When you went out to see Mr. Walker, you asked him the price of the property, did you ? A. I knew the price of the property; I had been trying to sell the farm for a year or more, I had an option with the Walker boys to sell that farm before ever being employed by the West Side Belt Railroad. Q. Was the option in writing? A. No, sir, a verbal option, it was'a verbal agreement. Q. You had that before you went into the employ of the West Side Belt Railway? A. Yes, sir, and I had sold it at one time, but the party backed out. Q. And did you, when you went out to talk with Mr. Walker, •call his attention to the agreement that you had to sell this property ? A. I told Mr. Walker if the farm was sold, that I expected to get my commission. He said all right that he would see that I would get the commission. Q. He said that he would see that you got the commission? A. Yes, sir.” It is impossible to reconcile this testimony, so far as it relates to an oral promise, with the testimony of Walker, that no conversation as to the payment of a commission took place between him and Cooley prior to the execution of the commission agreement by Lighteap. But accepting this testimony of Cooley for verity, it is to be noticed: first, that it does not establish all of the facts essential to the creation of a legal obligation on the part of Lighteap to compensate Cooley for what he did in negotiating the sale to the person who backed out; secondly, that, even if it is sufficient for that purpose, it furnishes no basis upon which the amount of compensation he was entitled to can be computed; thirdly, that when the defendant’s counsel interrogated the witness as to the commission he was to get under that agreement with Walker, the objection was made and sustained that it was not proper cross-examination ; fourthly, that the testimony as to Walker’s oral promise does not clearly show that the commission to be paid was for Cooley’s services in trying to sell the land to other parties, and not for his services in negotiating the sale that was about to be made, as the paper says it was. But further, while Walker partially corroborates Cooley as to the previous efforts of the latter to sell the land, his testimony forbids the conclusion that the sum of $1,706 stipulated to be paid him in the commission agreement was exclusively for services rendered independently of the sale to the defendant. Being asked, “Why did you make an arrangement with Mr. Lighteap that Mr. Cooley was to get a commission? ” he answered, “ Because he helped to bring about the sale.” We quote further from his testimony: “ Q. How did you agree on the amount with Mr. Lighteap? A. Well, I told Mr. Lighteap that I would give Mr. Cooley that amount, and I would take the balance, because he had more to do with the sale, that is, than I had. Q. You told Mr. Lightcap you were giving this two-thirds of the commission to Cooley? A. Yes, sir. Q. Because Cooley had more to do with the sale than you had ? A. Yes, sir, that is what I said.” Being interrogated as to what Cooley did in connection with the sale of the farm, he testified as follows : “ Q. What did Mr. Cooley do now, in connection with the sale of this farm ? A. Why, I don’t know just what he did, but he brought about the sale, and sent for me to come in, that Mr. McRoberts wanted to see me, he was trying to sell it; I can’t just say what work he did at all. Q. You say all he did to you was to tell you to come in ? A. At that time, yes, sir. Q. And for that service you gave him two-thirds of the commission? A. That is not the only service he did. Q. What else did he 'do in connection with the sale of the farm? A. He was trying to sell it, trying to get a purchaser. Q. For some time before? A. Yes, sir. Q. Sir? A. I don’t know how long, but for some time. Q. And who employed Cooley to secure a purchaser for the farm ? A. I don’t think he was employed at all, only I told him to try to see if he could bring about a sale, or get a purchaser; I told him that.” It is apparent from this and other testimony of the plaintiff that compensation for the services of Cooley in bringing about the very sale in question entered into the consideration for the stipulation to pay him $1,706. To sum up: the paper furnishes very clear evidence that the commission was to be paid Cooley for services rendered by him for the vendor in the negotiations which led up to the sale in question; the testimony of Walker, one of the plaintiffs, is in harmony, to the extent above stated, with this documentary evidence; and the testimony of Cooley as to the oral promise is not in irreconcilable conflict with it. So far as the legal question before us is concerned, it is immaterial whether the stipulated commission -was to be paid Cooley for his services to the vendor in bringing about the sale to the defendant exclusively, or for those services and others that he had rendered before he became the. defendant’s employee and before the negotiations for the sale were begun.

5. There is no evidence that the defendant had actual knowledge of the commission agreement prior to July 1, 1903. It is true, John S. Lightcap, a witness for the plaintiffs, testified that when he and Mr. Warden, one of the present plaintiffs, tendered the deed on May 28, 1903, the defendant said “he understood the entire matter.” Mr. Warden, on the other hand, testified that the defendant’s remark was that “ he knew all about the Walker farm and that they wanted it in their deal.” But as the first witness admitted, and the second witness did not assert the contrary, that nothing was said about the commission agreement, the defendant’s remark, accepting either version of it, cannot be regarded as an admission that he knew of it at that time.

6. It is suggested that the defendant recéived constructive notice of the commission agreement, and hence of the alleged fraud, in the latter part of April or early part of May, 1902, in the following manner: John S. Lightcap testified that he and his associate, Mr. Warden, acting as attorneys for Samuel G. Lightcap, sought out Cooley at McRoberts’ office, for the purpose of securing, if possible, the cancellation of this commission agreement. To quote his language: “We explained the situation, that Gilson Lightcap, executor’, had been placed in by entering into an agreement of that kind — of having contracted, as an executor of that estate, to pay a commission of $2,560, that he would be paying more than twice as much as he would be entitled to for his services as executor in settling up the estate, and that the heirs, undoubtedly, at the time of distribution, at the time of filing the account of distribution of the estate, would have him surcharged. . . . We told him that we hadn’t seen Mr. Walker yet, at this time he wasn’t there, but that if the orphans’ court would permit a commission for tire selling of that real estate, in proportion to the services rendered, that we would not object. If they would cancel that agreement, and place in our hands a bill, at the time of the distribution, as attorneys for the estate, we would see that it is presented to the court. . That in case the court allowed the commission, in proportion to the services rendered, it was a matter he would have to prove himself in person. We would not object to it.” He says that Cooley,- assenting to the proposition, then and there burned the duplicate copy of the agreement he held, and subsequently sent a bill for their commission. He testified further that McRoberts was present and heard part of this conversation; but he was unable to say that he heard all of it. Assuming that a jury could find that he heard enough of the conversation to inform him as to the existence of the commission agreement, the time when it was entered into and its provisions, how was the. defendant affected with the knowledge thus acquired by MeRoberts? This was three months or more after the contract of sale had been made. Although MeRoberts was. still in the employ of the defendant and his associates, his authority to act for them in the purchase of this- particular piece of land was at an end when the contract of sale was executed. In short, the knowledge acquired by MeRoberts at this interview was not gained in the transaction in which he was employed. “To visit the principal with constructive notice, it is necessary that the knowledge of the agent or attorney should be gained in the course of the same transaction in which he is employed by his client: ” Hood v. Fahnestock, 8 Watts 489. “ It is only during the agency that the agent represents and stands in the shoes of the principal. Notice to him twenty-four hours before the relation commenced is no more' notice than twenty-four hours after it ceased would be. Knowledge can be no better than direct actual notice : ” Houseman v. Girard Mut. B. & L. Assn., 81 Pa. 256; Lohr v. Philipsburg, 156 Pa. 246; Langenheim v. Anschutz Bradberry Co., 2 Pa. Superior Ct. 285, 291; Sitler v. Spring Garden Fire Ins. Co., 18 Pa. Superior Ct. 148, 156; Chester v. Schaffer, 24 Pa. Superior Ct. 162. Applying this principle, the knowledge of Cooley’s relation to the defendant, which Walker, the vendor’s agent, gained in the course of the negotiations which terminated in the contract of sale, was notice to the vendor, while the knowledge of the'commission agreement, which MeRoberts may have gained after his agency in the acquisition of this property had ceased, was not equivalent to notice of that fact to his principal. But further, and apart from the uncertainty of the testimony of John S. Lightcap as to MeRoberts’ knowledge of the material provisions of the commission agreement, it is to be noticed that the plaintiffs called MeRoberts in rebuttal and and elicited from him the testimony in unequivocal terms, that he had “ no knowledge of any agreement of any character passing between Mr. Cooley, Mr. Walker and Squire Lightcap.” To charge the defendant with constructive notice of the commission agreement in April or May, 1902, the plaintiffs must necessarily take tbe position that the testimony thus elicited by them was untrue; which is inconsistent, to say the least, with the position taken by them on the trial. Upon the whole, we conclude that there is no competent evidence that the defendant had either actual or constructive notice of the commission agreement prior to July 1, 1903.

7. The summons in the case was served on June 24,1903, and on September 4, following, judgment was entered against the defendant for want of an affidavit of defense. The default was subsequently explained to the satisfaction of the court upon the ground, inter alia, of his illness and absence from the city from about July 1; the judgment was opened, and the defendant permitted to defend. , The petition to open was presented on September 15, 1903, and, so far as appears, the first express notice to the vendor of the defendant’s election to rescind was contained in this petition. The fact of the defendant’s illness is not controverted. It is claimed further by his counsel, in which contention they are sustained by the report of the evidence sent up with the record, that the defendant never took possession of the land, and that there is no evidence whatever that between July 1, 1903, when he discovered the fact that the vendor had contracted to pay Cooley a commission, and September 15, 1903, when he asserted the right to rescind, any change of circumstances, of the condition of the parties, or of the property, occurred, which would make rescission inequitable.

The two legal questions which arise upon the foregoing facts, are: first, whether the defendant had a right to rescind the contract of sale, and recover the $1,000 he had paid upon its execution by him ; second, whether he exercised the right within a reasonable time. By whatsoever name it may be called, whether that of principal and agent or of employer and employee, the relation which existed between Cooley and the defendant imposed on Cooley the duty to act with fidelity and the utmost good faith toward the defendant in purchasing or assisting to purchase this land. When one under such obligation to the purchaser enters into such relation with the seller as is evidenced by the commission agreement in this case, without the knowledge and consent of the purchaser, he puts himself in the position of attempting to serve two masters whose interests are opposed. This is against the policy of the law, and that, too, irrespective of the mode of compensation. A fortiori is it so, if the amount of the commission to be received from the seller depends upon the price the purchaser can be induced to pay for the land. “ The ground for the disqualification,” said Chief Justice Thompson, quoting from 8 Tomlin’s Brown, 72, “ is no other than that principle which dictates that a person cannot be both judge and party. No man can serve two masters. He that is intrusted with the interests of of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is instrusted. The danger of temptation from the facility and advantage for doing wrong which a particular situation affords, does, out of the mere necessity, work a disqualification: ” Everhart v. Searle, 71 Pa. 256. In the same case, speaking of the argument that as the seller was not injured by the arrangement which his agent made with the purchaser, there was nothing wrong in making that arrangement, he said: “ This is specious, but not sound. The transaction is to be regarded as against the policy of the law, and not binding upon a party who has a right to object to it. ‘ It matters not,’ it is said, p. 210 of Hare and Wallace’s Notes, 1 Lead. Cases in Eq., ‘ that there was no fraud meditated and no injury done; the rule is not intended to be remedial of actual wrong, but preventive of the possibility of it.’ This was said of anyone who acts representatively, or whose office is to advise or operate not for himself but for others.” Among the numerous cases wherein the rule has been invoked against the agent no authoritative Pennsylvania case can be found where its enforcement was made to depend in any degree upon the question whether the agent was actuated by a dishonest motive, or the question whether his principal was actually defrauded : Penna. R. R. Co. v. Flanigan, 112 Pa. 558; Rice v. Davis, 136 Pa. 439; Cannell v. Smith, 142 Pa. 25; Finch v. Conrade’s Executor, 154 Pa. 326 ; Addison v. Wanamaker, 185 Pa. 536 ; Linderman v. McKenna, 20 Pa. Superior Ct. 409 ; Marshall v. Reed, 32 Pa. Superior Ct. 60; Evans v. Rockett, 32 Pa. Superior Ct. 365. See also Rich v. Black et al., 173 Pa. 92; Wilkinson v. McCullough, 196 Pa. 205. Having regard to the principle upon which it rests, it cannot be said that the rule can only be invoked against the unfaithful agent or employee. Where the seller of land, or his agent in the transaction, has knowledge that there exists between the purchaser and another such a relation that it would be a breach of duty on the part of that other person to enter into a similar relation with the seller, the same principle of law which forbids him to do so while still acting for the purchaser, must, if it is worthy to be called a rule, or policy or principle of law, forbid the seller to enter into that relation with the purchaser's agent or employee without the knowledge and consent of his principal or employer. To hold that the seller, without any risk to himself, can thus be a party to the agent’s or employee’s breach of duty, and have the benefit of his active service, great or small, in selling the land, or the benefit of the diminution of the diligence he owes to the purchaser, would be contrary to sound principle ; it would open the door to fraud of the most mischievous character, and as difficult to detect and prove as it is mischievous. The rule being, not merely remedial of actual wrong, but preventive of the possibility of it, it may be invoked not only against the unfaithful agent or employee in an action involving his commission or other form of compensation, but also against the seller; and under such a state of facts as we have set forth above it must be regarded as the foundation of a right in the purchaser to rescind the contract of sale upon discovery of the constructive fraud.

The act of Cooley, in which the vendor must be held to have responsibly participated, though contrary to good faith and policy of the law, did not make the contract of sale absolutely void. Either ratification or rescission at the election of the defendant was permissible ; and it must be conceded that omission to repudiate within a reasonable time, unless explained, would be conclusive evidence of an election to affirm. See Dunn v. Columbia Nat. Bank, 204 Pa. 53, and cases therein cited. Speaking of cases depending upon the election of one of the parties, it has been declared: “ Election to rescind must be communicated to the other party. One way of doing that is to institute proceedings to have the contract judicially set aside; or, if the other party is the first to sue on the contract, the rescission, if not too late,- may be set up as a defense. Where rescission is not declared in judicial proceedings, no further rule can be laid down than that there should be ‘ prompt repudiation and restitution as far as possible : ’ ” Howard, Receiver of Newtown Nat. Bank, v. Turner, 155 Pa. 849. In the present case the ground for rescission, although known to the plaintiffs, was not discovered by the defendant until about July 1,1903, which was after the suit was brought. Hence, he had a right to set it up as a defense. There is no dispute as to the facts to be considered in the determination of the question whether he exercised the right within a reasonable time; nor is there any room for difference of opinion between reasonable men as to the inferences to be drawn from the relevant and undisputed facts. There was simply a delay of two months and a half, and no evidence of such change of conditions in the meantime as would make rescission inequitable. Nor was anything necessary to be done by the defendant to restore the status quo. What would be unreasonable delay in electing to rescind a contract relative to perishable goods or of other property, which, as a matter of common knowledge, are subject to frequent and sudden fluctuation in value, would not be in the case of a contract for the sale of land, particularly where the seller’s possession of the land has not been surrendered, and there is no proof of change of value, or other conditions. There are numerous cases in which the view has been expressed that, what is a reasonable time within which to exercise the right of rescission is, when the facts are undisputed, a question to be determined by the court. Many of these cases are cited in Armour v. Beaver Valley Produce Co., 28 Pa. Superior Ct. 524. And even in those cases in which the view is expressed that, in general, it is a mixed question of law and fact — which is true, if the relevant facts are in dispute, or if different inferences of fact may be drawn from the facts proved — it is conceded that the time may be so short or so long that the court will declare it to be reasonable or unreasonable as matter of law. See Portland Ice Co. v. Connor, 32 Pa. Superior Ct. 428. Without entering into a discussion of the abstract question, we conclude that under all the facts to which we have alluded the learned judge below was right in holding that the defendant’s right to rescind was not forfeited by unreasonable delay.

Upon the whole record we conclude that a binding direction for the defendant would have been proper; therefore, the judgment is affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Sylvester v. DeWitt.

      Execution — Judgment—Lien—Testatum fi. fa. — Scire facias to r&oive —Acts of June 16,1836, P. L. 755, and May 19,1887, P. L. 132.
    By operation of the Act of June 16,1836, P. L. 755, a writ of testatum fieri facias entered by the prothonotary in another county becomes a lien in that- county on the real estate of the defendant from the date of such entry unless sooner paid, and that, whether the lien of the original judgment is continued or not. The lien so obtained expires at the end of five years, although the judgment upon which it was issued may .continue to be a lien in the county where it was entered.
    The Act of May 19, 1887, P. L. 132, which authorizes the issue of execution against personal property under a judgment which has lost its lien upon real estate, without a previous writ of scire facias to revive, does not repeal the Act of June 16, 1836, sec. 80, P. L. 755, declaring the effect of a testatum fi. fa. as to lien on real estate.
    If it be conceded that a judgment must be revived before a testatum fi. fa. may issue, the restriction is in favor of the defendant, and is one which he may waive. An execution creditor has no standing to object to the testatum writ because it was issued before the revival of the judgment.
    Argued Feb. 25, 1907.
    Appeal, No. 8, Jan. T., 1907, by Elizabeth J. Reed, from order of C. P. Luzerne Co., Feb. T., 1905, No. 190, sustaining exceptions to auditor’s report incase of Sylvester, Hilton & Co., Assigned to J. B. Young, v. Jacob W. DeWitt.
    Before Rice, P. J., Porter, Henderson, Or-lad y, Head and Beaver, JJ-.
    Affirmed.
    Exception to report of Paul Bedford, Esq., auditor.
    The auditor found the facts to be as follows :
    1. The fund for distribution, amounting to $1,000,- is in the hands of Jonathan R. Davis, sheriff of Luzerne county.
    2. The fund was derived from a sheriff’s sale of the real estate of Jacob W. DeWitt, defendant, on a writ of alias testatum fieri facias from Wyoming county, and entered in Luzerne county as No. 190, February Term, 1905.
    8. Sheriff made the sale March 11, 1905.
    4. The certified list of liens for five years previous to March 11,1905, received from the prothonotary of Luzerne county contains the following statements :
    Sylvester, Hilton & Company, assigned to J. B. Young, v. Jacob W. DeWitt. No. 187, March Term, 1904. Judgment February 19, 1904. Debt, $395.95.
    Elizabeth J. Reed v. Jacob W. DeWitt. No. 331, October Term, 1904. Judgment July 14, 1904. Debt, $10,020.65.
    (This judgment is a revival by amicable scire facias of judgment No. 49, October Term, 1905. The original judgment was entered June 10, 1904, to bio 49, October Term, 1905, on an exemplification from the court of common pleas of Wyoming county.)
    Sylvester, Hilton & Company, assigned to J. B. Young v. Jacob W. DeWitt. No. 190, February Term, 1905. Alias testatum fieri facias from Wyoming' county. Filed January 23, 1905. Debt, $584.99.
    5. No. 137, March Term, 1905, is a testatum fi. fa. from Wyoming county, issued to the sheriff of Luzerne county on Februaryl9,1904, on a judgment entered in Wyoming county on February 19,1887, as of No. 35, April Term, 1887, and said judgment had not been revived by scire facias or otherwise prior to the issuing of the said writ of testatum fi. fa. (February 19, 1904), nor prior to the filing of the same in Luzerne county (February 19, 1904). The sale under said No. 137, March Term, 1904, was set aside by the court of common pleas of Wyoming county upon rule taken by the defendant alleging (1) inadequacy of price, (2) at time of sale the said testatum fi. fa. was not a lien upon real estate.
    No. 190, February Term, 1905, is an alias testatum fi. fa. from Wyoming county and is the same obligation as No. 137, March Term, 1904.
    The auditor awarded the fund to Elizabeth J. Reed on her judgment No. 331, October Term, 1904.
    Exceptions to the auditor’s report were sustained by the court.

      October 7, 1907:

      Error assigned was in sustaining exceptions to auditor’s report'.

      Asa >$. Keeler, for appellant,
    cited: Ross’s App., 106 Pa. 82; Ramsey v. Ramsey, 29 Pa. C. C. R. 417; 3 Trickett on Liens, 512; Com. v. Walter, 99 Pa. 181; Miller v. Miller, 147 Pa. 548; Beck v. Church, 113 Pa. 200; Bucher v. Pringle, 16 Montg. 106 ; Harmony B. & L. Assn. v. Berger, 14 W. N. C. 499.

      Ernest K. Little, with him W. E. Little, for appellee,
    cited ; Nelson v. Guffey, 131 Pa. 273; Brandt’s App., 16 Pa. 343; Hinds v. Scott, 11 Pa. 19; McElree v. Fockler, 1 Pearson, 536; Second Nat. Bank’s App., 85 Pa. 528; Neil v. Colwell, 66 Pa. 216 ; Knauss’s App., 49 Pa. 419,
   Opinion by

Henderson, J.,

Section 80 of the Act of June 16, 1836, P. L. 755, provides that “Every testatum writ of fieri facias shall be a lien upon the real estate of the defendants named in such writ, within the county where it shall be so entered of record, during five years from the date of such entry, unless the debt, or damages and costs, be sooner paid.” By operation of the statute a writ of testatum fieri facias entered by the prothonotary in another county becomes a lien in that county on the real estate of the defendant from the date of such entry unless sooner paid, and that, whether the lien of the original judgment is continued or not. The lien so obtained expires at the end of five years, although the judgment upon which it was issued may continue to be a lien in the county where it was entered. Such a writ was issued upon the appellee’s judgment in Wyoming county and regularly docketed in Luzerne county. The sale of real estate had thereon was set aside on the application of the defendant and a resale had on an alias testatum fi. fa. after the judgment had been revived. On the same day that the original testatum writ was issued a scire facias to revive was also issued. The writ was, therefore, authorized by the Act of May 19, 1887, P. L. 132, which provides that execution may issue upon any judgment of record in any o'f tKe courts of this commonwealth, notwithstanding such judgment may have lost its lien upon real estate, without a previous writ of scire facias to revive the same, provided that such execution shall be confined or restricted to the personal property of the debtor and provided further that at the same time execution is issued a scire facias shall be issued to revive the judgment. While this act confines the operation of the writ to the personal property of the debtor it does not repeal the act of 1836 declaring the effect of the testatum fi. fa. as to liens on real estate. The sheriff, of course, would not be authorized to sell the real estate of the defendant on such writ, but the right of execution and the lien are entirely different. The existence of a lien as provided by the act of 1836 is not so incompatible with the provisions of the act of 1887 that we are called upon to hold that the latter act impliedly repeals the former as to the writ under consideration. The docketing of the writ by the prothonotary and the lien resulting therefrom are entirely apart from the operation of the writ as execution process, and the lien may exist after the writ has lost its vitality. The effect of lien on real estate given to the writ of testatum fi. fa. distinguishes it from other writs of execution and as the act of 1887 applies to executions generally we think it was not in legislative contemplation that this quality of the testatum writ should be taken away bjr that act. The court out of which the writ issued had control of the sheriff with reference to the character of the property to be sold and the first sale of the real estate was properly set aside, but the writ was not set aside and survived with its legal incidents.

• The other view of the case would create confusion and uncertainty in regard to testatum liens and make necessary an examination of the records of the counties in which the judgments were recorded out of which the executions issued.

Moreover, the objection here to the effect of the writ comes not from the defendant but from an execution creditor. The appellee’s writ was docketed in Luzerne county long before the entry of the exemplification of the appellant’s judgment. Conceding that there should have been a revival of the judgment before a testatum fi. fa. was issued, that is a restriction in favor of the defendant and one which may be waived. In Hinds v. Scott, 11 Pa. 19, it was held that while it was irregular to issue an execution without a scire facias to revive in case of a judgment which had ]ost its lien, such irregularity was insufficient to avoid the sheriff’s sale and could not be taken advantage of in a collateral proceeding; that the defendant alone could object and only then in proper time or he could waive the issuing of the scire facias and permit the land to be sold on the execution. And in Bailey v. Wagoner, 17 S. & R. 827, it was said a fieri facias post annum et diem is not void, but voidable; the plaintiff is required to issue a scire facias that the defendant may have an opportunity to show that the debt is paid, but he may dispense with the writ either by express agreement or by conduct which amounts to a waiver; where an irregularity has occurred it is the duty of the opposite party to take advantage of the defect at the earliest opportunity, otherwise he will be decreed to have waived every advantage arising from it. See also Blair v. Greenway, 1 Browne, 218, and Sherred v. Johnston, 193 Pa. 166. It does not appear that the defendant in the execution made any effort to set aside the writ or to avoid the effect of the lien of the judgment and it has not been shown to our satisfaction that the appellant has any standing to object that the testatum writ was prematurely issued. The case is with the appellee, therefore, and the judgment is affirmed.


text:
    Reynolds Street Sewer
    (No. 1).

      Sewers — Benefits—Land damages — Assessment.
    On exceptions to a report of viewers assessing benefits and damages growing out of the construction of a sewer, where it appears that a large sum was assessed against the city, it will be assumed that such assessment included the land damages, inasmuch as there can be no assessments of benefits in sewer cases to individual owners to pay land damages.
    Where an ordinance provides for a trunk sewer with lateral branches, and it appears that the work was undertaken as a whole and let to one firm of contractors, a property owner whose property has been assessed for benefits, cannot object on exceptions that separate juries of view were not appointed for the trunk sewer and its respective lateral branches.

      Where a jury of view assesses certain landowners with benefits for the construction of a sewer, and also allows the same owners special damages, another landowner has no ground to complain because he did not receive special damages. The fact that there were special damages allowed, and a separate assessment of benefits to certain owners, leads to the belief that the viewers did not consider the other owner’s property damaged by the improvement.
    Argued April 8, 1907.
    Appeal, No. 5, April T., 1907, by Joseph Wood well, from order of C. P., No. 1, Allegheny Co., Deo. T., 1908, No. 44, dismissing exceptions to report of viewers In re Petition of the City of Pittsburg in the Matter of Construction of Sewers on Reynolds Street with branches.
    Before Rice, P. J., Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of viewers.
    The exceptions were as follows:
    1. The report of the viewers shows that it embraces a trunk sewer on Reynolds street and branch sewers on all the cross streets, numbering a dozen or more. The viewers improperly assessed the cost of the whole improvement, including damages allowed private property owners through whose property the trunk line sewer ran, upon all the properties abutting on the main sewer and all the branch sewers. The viewers erred in this method of making assessments; the cost of each sewer should have been ascertained separately and the proper amount assessed against the property benefited by each separate sewer; especially is this true since the different branch sewers were all constructed by different contractors two years before the main sewer was constructed, and the work was let by the city to different contractors for the construction of each sewer separately. The main sewer was also constructed by a different contractor and under a different contract from any of the branch sewers. Exceptants claim that a separate board of viewers should have been appointed for each sewer, or, if one board of viewers be appointed for all the sewers, then a separate report should have been made for each sewer.
    2. The viewers erred in including the damages allowed for the taking of private property in the total damages, costs and expenses, which were assessed upon the property owners.
    3. The assessment of benefits against exceptants is excessive.

      October 7, 1907 :

      Error assigned was the order of the court.

      F. G. McGirr, of Marrón McGirr, for appellants.
    Under the Act of May 16, 1891, P. L. 71, the viewers must report the two matters of damages and benefits separately, to give the court primarily, and the parties finally, more information as to the steps by which the net result was reached and better opportunities to have it examined and verified: Dawson v. Pittsburg, 159 Pa. 317 ; Park Avenue Sewers, 169 Pa. 433; Beechwood Avenue Sewers, 179 Pa. 490.
    That there can be no assessment of benefits in sewer cases to pay' land damages is decided in Mill Creek Sewer, 196 Pa. 183; Barnett’s Case, 28 Pa. Superior Ct. 361.

      T. D. Carnahan, with him W. B. Rodgers, for appellee.
   Opinion by

Henderson, J.,

Under an ordinance approved October 2,1900, the city of Pittsburg constructed a sewer on Reynolds street with lateral branches on intersecting streets. After the completion of the work, viewers were appointed on the petition of the cityr to ascertain the cost, damages and expenses and assess the benefits growing out of the improvement. Exceptions were filed by the appellant which were overruled by the court — hence, this appeal. Two objections are made to the action of the viewers : (1) that the exceptor was charged with benefits for the purpose of paying land damages to other property owners ; and (2) the viewers should have assessed benefits and damages for the sewer oh each street as a separate improvement. The exceptions were dismissed without prejudice to the right of the ex-ceptor to raise the same question on appeal. A third exception was filed alleging that the assessment was excessive, but its dismissal is not assigned for error and we may assume that it is not maintained by the facts. No testimony was taken and the questions involved must be determined by the record presented. We do not find anything which furnishes a sufficient basis to sustain the first exception. The whole cost of the sewer as shown by the report of the viewers was $96,517.58. There was the additional cost of $16,851 for damages, apart from special benefits, making the entire cost of the improvement $113,868.58. Of this sum more than $48,000 was assessed against the city of Pittsburg. In the face of this showing it cannot be successfully alleged that the appellant was charged with any part of the land damages allowed other property owners. The city was clearly made liable not only for these damages, but for a large part of the cost of the construction of the sewer. As there can be no assessment of benefits in sewer cases to pay land damages (Mill Creek Sewer, 196 Pa. 183; Barnett’s Case, 28 Pa. Superior Ct. 361) it will be assumed that the assessment against the city included the land damages. Neither does there appear to be any warrant for the allegation in the exception that the work on the branch sewers was let by the city to different contractors for the construction of each sewer separately, and that the main sewer was constructed by a different contractor and under a different contract from any of the branch sewers. The ordinance under which, the work was done provides for a trunk sewer with lateral branches as a system of sewers, and the petition for the appointment of viewers, and especially the final estimate approved by the city authorities attached as an appendix to the appellee’s argument, show that the work was undertaken as a whole and was let to one firm of contractors. No complaint is made that a smaller sewer or one less expensive would have met the requirements of the situation, and no persuasive reason is suggested why the report of the viewers should not have covered the whole of the undertaking. The multiplication of boards of viewers and the submission of numerous reports on the several branches of the sewer would have complicated rather than simplified the proceeding, and it certainly has not been made to appear that the appellant was prejudiced because of the manner in which the viewers proceeded. The improvement was undertaken and carried through as a whole, the viewers were appointed to take into consideration the entire construction and it was considered in that light by them. The abutting properties are charged upon the basis of the cost of the branch sewers, and no apparent advantage would result either to the city or the landowners if a view were had for each branch apart from the main sewer.

The exceptions do not raise the questions presented in Park Avenue Sewers, 169 Pa. 433, and Beech wood Avenue, 179 Pa. 490. The first case held that the cost of constructing a sewer can only be assessed on property abutting upon the line of improvement and that an owner could riot be assessed with the cost of a fifteen inch main sewer when the facts agreed upon by counsel show that a ten inch local sewer would have been sufficient to give the property all the benefits it derives from the improvement. The second ease decided that owners of property not abutting on a sewer cannot be assessed for benefits even where a water course which before had furnished drainage was turned into a closed and covered sewer. The assessment here complained of was made against abutting property and is not within the class of assessments considered .in the cases above cited.

The arguments of the counsel included a consideration of the question whether the viewers should have set forth in the report the damages sustained by an abutting owner where the special benefits exceeded the damages. This question does not appear to have been raised by the assignments of error, however, and it may not have been taken into consideration by the court. Conceding the effect of Dawson v. City of Pittsburg, 159 Pa. 317, to be as claimed by the appellant, we are not shown that the viewers made a mistake in their report. Special damages are allowed in several cases in favor of owners where assessments are made against the same owners for special benefits. It does not necessarily follow that the construction of the sewer through the property of the appellant resulted in damage to him. The fact that there were special damages allowed, and a separate assessment of benefits in the instances referred to, leads to the belief that the viewers did not consider the appellant’s property damaged by the improvement. In our consideration of the case we have not found a substantial basis for the appellant’s exceptions. The merits of his case on questions of fact can be fully considered in his appeal pending in the court of common pleas.

The assignments are overruled and the decree affirmed.


text:
    Reynolds Street Sewer
    (No. 2).
    October 7, 1907 :
   Opinion by

Henderson, J.,

The appellants own property affected by a sewer constructed by the city of Pittsburg on Reynolds street and other intersecting streets as provided for in an ordinance approved October 2, 1900. The present appeal was heard in connection with that of Joseph Woodwell at No. 5, April Term, 1907, in which an opinion has this day been filed, ante, p. 209. The conclusion in that case was adverse to the appellant’s contention. For the reasons there given the assignments in this case are overruled and the decree affirmed.


text:
    Reynolds Street Sewer
    (No. 3).
    October 7, 1907:
   Opinon by

Henderson, J.,

The appellants own property affected by a sewer constructed by the city of Pittsburg on Reynolds street and other intersecting streets as provided for in an ordinance approved October 2, 1900. The present appeal was heard in connection with that of Joseph Woodwell at No. 5, April Term, 1907, in which an opinion has this day been filed, ante, p. 209. The conclusion in that case was adverse to the appellant’s contention. For the reasons there given the assignments in this case are overruled and the decree affirmed.


text:
    Throckmorton v. Thompson, Appellant.

      Wills — Construction of — Devise—Fee simple — Estates—Life estate— Rules of construction.

    When a devise is of a fee absolute in the first instance, and the gift is immediate, words of survivorship will be referred to the death of testator, and not to death generally, whenever it may happen.
    The construction of a will will be in favor of the first rather than of the second taker, of an absolute or vested estate, rather than of a defeasible or contingent one, of a general or primary intent, rather than of a particular or secondary one.
    October 7, 1907:
    After directing that his personal property be sold for the payment of his debts and if that be insufficient for the purpose that his land be rented until his debts are paid, testator devised as follows: “then the land to be divided between my three children my son George to have the Loar farm that I now live on by keeping me while I live and pay my funeral expenses, and my two daughters Elizabeth S. and Louie to have the upper farm share and share alike, and if my daughter Louie dies without any living children her share to be paid back to all my grandchildren, Elizabeth's and George's children, share and share alike.” Held, that the daughter Louie took an estate in fee in the land devised to her.
    Argued April 15, 1907.
    Appeal, No. 170, April T., 1907, by J. Y. Thompson, from judgment of C. P. Greene Co., Feb. T., 1906, No. 94, on case stated to determine the marketable title to real estate in suit of Louie Throckmorton and Charles Throckmorton v. J. Y. Thompson.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Af-
    firmed.
    Case stated to determine the marketable title to real estate. Before Taylor, J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    The court entered judgment, for plaintiff on the case stated.

      Error assigned was in entering judgment for plaintiff on case stated.

      James J. Pvrman, with him Thomas 8. Crago, for appellant,
    cited: Taylor v. Taylor, 63 Pa. 481; Hoover v. Krick, 1 Walker, 117 ; Porter v. Bradley, 3 T. R. 143 ; Cameron v. Coy, 165 Pa. 290; Thompson’s App., 100 Pa. 478; Woelpper’s App., 126 Pa. 562.

      A. E. 8iheus, with him John 8. Carter and Charles 8. Carter, for appellee,
    cited: Eichelberger v. Barnitz, 9 Watts, 447 ; Stoner v. Wunderlich, 198 Pa. 158; Lawrence v. Lawrence, 105 Pa. 335; Nes v. Ramsay, 155 Pa. 628.
   Opinion by

Henderson, J.,

The question presented for determination grew out of. that part of the will of David W. Frye, devising a portion of his real estate to his daughter, Louie Throckmorton. After directing that his personal property be sold for the payment of his debts and if that be insufficient for the purpose that his land be rented until his debts are paid, the testator devised as follows: “ then the land to be divided Between my three children my son George to have the Loar farm that I now live on by keeping me while I live and pay my funeral expenses, and my two daughters Elisabeth S. and Louie to have the upper farm share and share alike, and if my daughter Louie dies without any living children her share to be paid back all my grandchildren, Elisabeths and Georges children, share and share alike.” The appellant contends that Mrs. Throckmorton took a life estate only and that she could not, therefore, transfer a title to the coal which she contracted to sell to the appellant. The question is, then, what is the nature of Mrs. Throckmorton’s estate? We find nothing in the will which excepts it from the operation of the rule that when the devise is of a fee absolute in the first instance and the gift is immediate, words of survivorship will be referred to the death of the testator and not to death generally whenever it may happen. The construction of a will should be in favor of the first rather than of the second taker, of an absolute or vested estate rather than of a defeasible or contingent one, of a general or primary intent rather than of a particular or secondary one. Under the first clause estates of the same character were given to the testator-’s two daughters. There is nothing in the language of the will to indicate that a less estate was intended to be given to Louie than to Elizabeth. The provision in case of the death of the daughter, Louie, was apparently intended to be substitutionary. The contingency of Louie’s death without issue evidently occurred to the testator ; hence, the alternative devise to the grandchildren. The will was written by an illiterate person and its language should be interpreted in its common understanding. The testator doubtless had no knowledge of the nature of a limitation over, but it would readily occur to him that a daughter who had no children at the time the will was written might die before she came into possession of her estate, in which case he would provide against a lapse. This view is in harmony with many authorities : Smith on Executory Interests, 662; Clayton v. Lowe, 5 Barn, and Ald. 636 ; Biddle’s Estate, 28 Pa. 62; Mickley’s Appeal, 92 Pa. 514 ; McCormick v. McElligott, 127 Pa. 230; King v. Frick, 135 Pa. 575; Mitchell v. Railway Co., 165 Pa. 645; Jackson’s Estate, 179 Pa. 77; Richards v. Bentz, 212 Pa. 93. The first taker is entitled to the benefit of every implication and his estate will not be cut down unless the intention to do so clearly appears: Richards v. Bentz, supra. The provision in the will for the payment of the decedent’s debts does not postpone the vesting of the estate. It sets aside the personal estate for the payment of the debts and provides for the contingency of a deficiency of personal assets, but such deficiency did not exist and the estates taken by the testator’s children vested immediately. Nor do we attach significance to the direction that in case of Louie’s death without any living children her share be “ paid back ” to all the testator’s grandchildren. The subject of the devise was land which in the nature of things could not be “ paid back.” These words were used, therefore, in the sense of “shall be given to ” or “ become the property of ” the grandchildren. The devise under consideration is not distinguishable from that in McCormick v. McElligott, supra, and King v. Frick, supra, in the former of which the testator devised and bequeathed the remainder of his estate to his daughter, Hannah. In the next clause of his will he provided that should his daughter, Hannah, “ die without child or children ” his estate should be equally divided between his brothers and sisters. In the latter the devise was to the testator’s son with the further provision, “ If my said son should die without children, grandchildren or wife living, then his portion of his estate under this will, and any increase thereof, I bequeath and devise as follows: ” In each of these cases it was held that the contingency of the devisee’s death had reference to death in the lifetime of the testator. To the same effect is Hogg’s Estate, 27 Pa. Superior Ct. 428. In Stoner v. Wunderlich, 198 Pa. 158, relied upon by the appellant, the case turned on the interpretation given to the will by the court that it was not in the testator’s contemplation that the first taker’s death would occur prior to his own death. The first limitation over was to the wife of the first taker for life and it was held to be clear that the testator contemplated a failure of issue before her death. So also in Hoover v. Krick, 1 Walker, 117, where the devise was to the son and in case of his death without lawful issue then to the son’s wife for life, in which case the court held that a devise over of a life estate showed that the testator meant that the estate should go over on a failure of issue within a fixed period. They are not controlling authorities, therefore, in the ease under consideration and are not inconsistent with McCormick v. McElligott, King v. Frick, Hogg’s Estate, Mitchell v. Railway Co. and Potts v. Kline, 174 Pa. 513. We conclude that Louie Throckmorton took an absolute estate in fee in the land devised to her.

The judgment is, therefore, affirmed.


text:
    Huffman v. Thompson, Appellant.
    October 7, 1907:
    Argued April 15, 1907.
    Appeal, No. 171, April T., 1907, by J. Y. Thompson, from judgment of C. P. Greene Co., Feb. T., 1906, No. 95, on case stated-to determine the marketable title to real estate in suit of Elizabeth S. Huffman and Joseph Huffman v. J. V. Thompson.
    Before Rice, P. J., Henderson Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Henderson, J.,

The same question arises in this case which was considered and determined in an opinion this day filed in the case of Louie Throckmorton and Charles Throckmorton v. J. V. Thompson, ante, p. 214. We there held that Louie Throckmorton took an estate in a fee under the will of her father, David W. Frye, as a result of which she had capacity to convey a good title to the defendant. It follows that the title of the plaintiffs set forth in the case stated is a valid title.

The judgment is, therefore, affirmed.


text:
    Commonwealth ex rel. v. Best.
    October 7, 1907:

      Criminal law — Sentence—Imprisonment—Supersedeas.
    Where a prisoner is convicted of a misdemeanor, is sentenced to fine and imprisonment, and immediately enters a bond for his appearance without surrendering himself, and thereafter takes an appeal without securing an order of supersedeas, he cannot, after his appeal has been non-prossed, object to an order of the quarter sessions directing that the sentence be carried into effect, either on the ground that the appeal had not been made a supersedeas, or on the ground that the order was made after the end of the term in which the sentence was imposed.
    Argued May 6, 1907.
    Petition for writ of habeas corpus.
    Miscellaneous Docket, Superior Court, April T., 1907, No. 14.

      G. F. Whitmer and Bon C. Oorhett, with them G. G. Sloan and II. E. Hugh, for relator.
    The power to imprison does not exist after the term has passed: Com. v. Mayloy, 57 Pa. 291; Beale v. Com. 25 Pa. 11; Com. v. Keeper of Workhouse, 6 Pa. Superior Ct. 420.

      Wm. J. Geary, district attorney, with him W. A. Hindman and A. A. Geary, for the commonwealth.
    No harm was done the relator by treating the entry of the recognizance as a supersedeas and no additional advantage would have accrued to him had the following been added to the recognizance: “ This to be a supersedeas.” The commonwealth is not complaining and the relator has no just cause for complaint: Schwamble v. Sheriff, 22 Pa. 18; Com. v. Heiffer, 2 Woodward, 311; Haggerty v. The People, 53 N. Y. 476; Com. v. Hill, 185 Pa. 385.
    At common law when a prisoner, after conviction and sentence, escapes, and it is merely a question of reimprisonment, no new award of judgment is necessary; but he may at any . time be retaken and confined under the original sentence.
   Opinion by

Henderson, J.,

The relator was convicted of wantonly pointing a gun, and on September 29, 1906, was sentenced to pay a fine of $100 to the commonwealth, the costs of prosecution and to undergo imprisonment in the county jail for a period of thirty days and to stand committed until the sentence be fully complied with. Afterwards, on the same day, he entered into his recognizance with surety in the sum of $500 conditioned that he be and appear in his proper person at the further order of the court of quarter sessions of Clarion county, there to answer such matters and things as shall be objected to him on behalf of the commonwealth. On October 15, 1906, a certiorari from the Superior Court was filed in the court of quarter sessions at the instance of the relator. The appeal was not prosecuted, however, and on March 14, 1907, a judgment of non pros was entered in the Superior Court. The defendant was not committed to jail pending the,- appeal, but on April 2, 1907, on motion of the district attorney, the court issued an order directing that the sentence theretofore made in the case be fully carried into effect and that the defendant appear forthwith and undergo the full term of imprisonment and that, a commitment be issued to the sheriff. The fine and costs were paid by the defendant, but it is not alleged that he served any part of the imprisonment. The relator now contends that he is not subject to imprisonment under - the sentence of September 29, 1906, for the reason that his appeal was not made a supersedeas; that the order of the court of quarter sesssions of April 2, 1907, imposed a new sentence or a modification of the previous sentence; that it was made after the end of the Term in which the sentence was imposed; that it is, therefore, void and that the relator is unlawfully restrained of his liberty. There can be no doubt that the recognizance of September 29, 1906, was entered with a view to securing a supersedeas. The sentence was in strict conformity to the requirements of the law and when' it was pronounced the duty of the court was discharged. The defendant was then constructively in the custody of the sheriff. The recognizance subsequently entered did not modify, nor was it a part of, the sentence. The sheriff might have imprisoned the defendant at once. He was permitted to be at large, however, presumably because of the beliéf, of that officer that the entry of the recognizance was a supersedeas. That it accomplished the purpose of securing the liberty of the relator until his appeal was finally disposed of in the Superior Court, is apparent. This situation was brought about by the relator’s own act. He did not surrender himself' to the sheriff when the sentence was imposed but immediately gave bail in anticipation; as we may assume, of the appeal which he afterward took. The appeal, as taken, did not stay the execution of the sentence, but the relator did stay it by his own conduct. If the execution of the sentence was not suspended because of the appeal the defendant should have been in jail during the term imposed and was liable to be apprehended at any time by the sheriff, without process, and committed: Schwamble v. Sheriff, 22 Pa. 18. In any view of the case the relator has not served his term of imprisonment, nor has he been legally relieved from so doing. The order of the court of quarter sessions of April 2,1907, was not a new sentence nor an amendment of the sentence imposed. It was not necessary and did the defendant no harm. It merely directed the sheriff to do that which he was at liberty to do without other authority than that created by the original sentence. We are of the opinion that the relator was in the lawful custody of the sheriff and he must, therefore, be remanded, to the end that the sentence of imprisonment imposed by the court of quarter sessions of Clarion county be carried into full effect for such time as the relator has not been in prison thereunder.


author: Rice, P. J.,

text:
    Williamsport, Appellant, v. Lycoming County.

      Bridges — County bridges — Cities—Duty to repair — Toll bridges.

    Where the duty of maintaining highways is imposed on cities, townships and boroughs, and the duty of maintaining bridges is imposed on the county, the question as to what constitutes an approach to the bridge, in other words, where the duty of the county begins and the duty of the city, borough or township ends, must generally depend for its determination upon the facts of the particular case, and not upon any arbitrary rule relative to the distance from the bridge structure.
    A company was incorporated under the act of 1874 for the purpose of constructing and maintaining a toll bridge over the west branch of the Susquehanna river from the foot of Maynard street in the city of Williamsport to a point opposite in Armstrong Township; the foot of Maynard street was 1,985 feet distant from the river, and in the following year the company acquired title to a strip of land sixty feet wide extending from that point to the river; in the meantime it constructed a bridge over the river, a bridge over a log basin which lay between the river and the foot of Maynard street, and an artificial roadway about 700 feet long extending from the river bridge to the basin bridge of an average width of thirty feet, and varying in height from three to fifteen feet above the natural level of the land; for twenty-five years this roadway was kept open continuously for public travel, and was used as a public highway by all persons who desired to cross the bridge, as well as by those who desired access to the river and the fields lying on either side of the roadway; in 1891 the county acquired the bridge in proceedings under the act of 1876. Held, in a case stated between the city and the county to determine whether the former or the latter 'was liable for an accident to a pedestrian, that, assuming that the duty of repairing county bridges and their approaches devolved upon the county, it did' not extend to the whole of the highway connecting the two bridges, and that it was incumbent on the plaintiff to show that the place of the accident was within the limits of the approach necessary to make the bridge accessible physically from that highway.
    Distinction between an approach to a bridge and a way provided for reaching the bridge from another highway considered.
    Under the Act March 30, 1859, P. L. 309, extended to the county of Lycoming by the Act of March 12,1860, P. L. 144, the city of Williams-port was bound to keep in repair a county bridge located within its limits, and this was the case, although Williamsport was not a city when the act of March 12,1860, was passed.
    In Pennsylvania there is no common-law duty of counties to repair highways, or bridges or sidewalks and highways; such duty, and consequent liability for negligence in the care thereof, must be imposed by statute, or be held not to exist.
    Prior to the Acts of March 30, 1905, P. L. 75, 81, the duty of the city of Williamsport to repair county bridges situated within the municipal limits, applied not only to bridges built at the expense of the county, but also to toll bridges which had been freed from tolls, and acquired by the county in proceedings instituted under the Act of May 8, 1876, P. L. 131.

      Case stated — Facts set forth — Material facts — Practice, C. P.

    It is essential to a case stated that all the material facts be agreed upon, so that the court may have nothing to do but to pronounce the law arising out of them. As in a special verdict, the facts must be distinctly and expressly agreed upon and set forth as admitted,’ and not left to be inferred from mere evidence; whatever is not so set forth will be taken not to exist.
    Argued March 6, 1907.
    Appeal, No. 19, March T., 1906, by plaintiff, from judgment of C. P. Lycoming Co., March T., 1905, No. 107, for defendant on case stated in suit of City of Williamsport v. Lycoming Comity.
    October 7, 1907:
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine tbe liability for a payment of $250 made by the plaintiff to Charles M. Shooter as compensation for personal' injuries sustained by him as the result of a defective condition of a highway within the municipal limits of the city of Williamsport. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant.

      W. D. Crocker and F. P. Cummings, city solicitor, forappellant, cited:
    Howev. Crawford Count}’-, 47 Pa. 361; Humphreys v. Armstrong County, 56 Pa. 204; Penn Twp. v. Perry County, 78 Pa. 457 ; Westfield Borough v. Tioga County, 150 Pa. 152; Francis v. Franklin Twp., 179 Pa. 195; Erie County v. Com., 127 Pa. 197; Shadier v. Blair County, 136 Pa. 488; Whit-mire v. Muncy Creek Twp., 17 Pa. Superior Ct. 399. .

      J. F. Striehy, for appellee.
   Opinion by

Rice, P. J.,

The Maynard Street Bridge Company was incorporated in July, 1875, under the provisions of the general corporation act of 1874, for the purpose of constructing and maintaining a toll-bridge over the West Branch of the Susquehanna river “from the foot of Maynard street ” (in the city of Williamsport) “ to a point opposite in Armstrong township.”

At the date of the company’s charter, the foot of Maynard street was at Filbert or First street — 1,985 feet distant from the river — and in August of the following year the bridge company obtained a conveyance of a strip of land sixty feet wide extending from this point in Filbert street to the river. It is set forth in the case stated that this was conveyed to the company as an approach to the bridge from the highway on the north, and the deed contains this pertinent recital: “ The same covering and being the way, approach and street from the line of Filbert street by an extension of Maynard street to the south line of the north abutment of the bridge aforesaid.”

In the meantime the company constructed: (a) a bridge across the river; (b) a bridge across a log basin which lay between the river and the foot of Maynard street; (c) an artificial roadway extending from the river bridge to the basin bridge of an average width of thirty feet, and varying in height from three to fifteen feet above the natural level of the land. Upon the completion of these structures and this roadway in the spring of 1876, the bridge was opened to the public as a toll-bridge. Since that time, it is admitted, the strip of land above described leading from Filbert or First street to the bridge has been kept open continuously for public travel, and has been used as a public highway by all persons who desired to cross the bridge as well as by those who desired access to the river at or near the northern terminus of the bridge, and by such other persons as might have occasion to visit and use the fields lying on either side of the strip of land. But it seems from the admissions of the case stated that it never was formally accepted or adopted as a city street by the corporate authorities.

In 1891, residents and taxpayers of the county instituted and carried to successful termination, proceedings under the Act of May 8, 1876, P. L. 181, to have the bridge taken as a county bridge. It was described in the petition as being erected “ across the West Branch of the Susquehanna River at and opposite to the foot of a public highway in the city of Williamsport, known as Maynard street; the said river crossing the said highway and the public road leading to said bridge at its southerly end in Armstrong township.” Damages in the sum of |41,522 “ by reason of the taking of the same, including the value of the bridge, franchises and toll houses,” were awarded to the bridge company, and paid by the county, and since the termination of these proceedings in December, 1891, it is admitted, the county kept both the basin bridge and the river bridge in repair, and restored both bridges after the flood of May 20,1894, which practically destroyed them. It is also admitted that since that flood, which injured the embankment between the two bridges, the county commissioners have several times repaired the roadway, the slopes leading therefrom to the north end of the river bridge and to the south end of the basin bridge, and also a plank walk for pedestrians which was laid on the west side of the roadway before the condemnation proceedings.

In December, 1901, one Charles M. Shooter was injured by a fall occasioned by the defective condition of the sidewalk at a point described in the case stated as being “ upon the slope leading to the north end of the river bridge, and within one hundred feet of the wing walls.” He brought separate suits against the county of Lycoming and the city of Williamsport, which were compromised by payment to him by the city of a certain sum, under an agreement between the city and the county which stipulated for the present suit and case stated. The controlling question for decision is, whether the county was charged with the duty to maintain and keep in repair the highway between the two bridges, and particularly the slope to the north end of the river bridge at the place where the accident occurred; for without the duty of repair no liability rests on the county: Elliott on Roads and Streets, sec. 53 ; Rapho v. Moore, 68 Pa. 404. The learned judge below held in a well-considered opinion that the county was not liable and in that conclusion we concur.

Inasmuch as the approaches necessary to make a bridge accessible are generally held in Pennsylvania to be included within the meaning of the term, it follows that the duty to repair such approaches is upon the county, if under the statute it is the duty of the county to repair the bridge : Francis v. Franklin Township, 179 Pa. 195; Penn Township v. Perry County, 78 Pa. 457 ; Westfield Borough v. Tioga County, 150 Pa. 152. Where the duty of maintaining highways is imposed on cities, townships and boroughs, and the duty of maintaining bridges is imposed on the county, the question as to what constitutes an approach to the bridge, in other words, where the duty of the county begins and the duty of the city, borough or township ends, must generally depend for its determination upon the facts of the particular case, and not upon any arbitrary rule relative to the distance from the bridge structure. There is an obvious distinction between the way, concededly a highway, leading from Filbert street to the bridge in question and the approach necessary to convenient access from that highway to the bridge proper. A similar distinction between an approach to a bridge and a way leading to a bridge was recognized in Commonwealth v. Loomis, 128 Pa. 174, where Justice Green said: “ The obligation of the county to build proper approaches is clearly established in the case of Penn Twp. v. Perry County, 78 Pa. 457, but neither that nor any other case decides that the county must also open and construct roads over adjacent private property with which to connect the approaches. It would be a highly strained construction of the duty to build approaches to extend it to laying out, opening and construction of public roads. It is enough to say that the law does not clothe county commissioners with such power. A stretch of 850 feet over the private property of a citizen cannot be regarded in any point of view as a mere approach to a bridge. When it is to be used as a means of public passage, it must be appropriated to that end as a road or highway ; and when this has been done in a lawful manner there will be no difficulty in securing the construction of proper approaches by proceedings against the county commissioners, if they shall fail to voluntarily perform their duty in that respect.” So here, assuming that the duty to repair the bridge at the time the cause of action accrued was on the county, it was not sufficient for the plaintiff to show that the place of accident was within the highway leading from Filbert street to the northern end of the bridge superstructure. It was incumbent on the plaintiff to show further that it was within the limits of the approach necessary to make the bridge accessible physically from that highway. The case stated contains no distinct admission that it was upon the approach to the bridge, but we are asked to infer that it was so from the admitted facts that it was “ upon the slope leading to the north end of the river bridge and within 100 feet of the wing walls of the river bridge.” We do not say that the approach to a bridge is confined to that part of the embankment which is within the wing walls, but neither is it clearly apparent as matter of law that the. slope here referred to was necessarily a part of the approach to the bridge. In many cases the determination of the question of how much of the embankment constitutes the approach, so as to be a part of the bridge, is for the jury-: 5 Cyclopedia of Law and Procedure, 1058. It is essential to a case stated that all the material facts be agreed upon, so that the court may have nothing to do but to pronounce the law arising out of them. As in a special verdict, the facts must be distinctly and expressly agreed upon and set forth as admitted, and not left to be inferred from mere evidence ; whatever is not so set forth will be taken not to exist. But we deem it advisable not to put our decision upon the indefiniteness of the case stated upon this particular question of fact, but to consider the broader question whether the duty of repairing the. bridge devolved upon the county.

In Commonwealth v. Commissioners of Monroe County, 2 W. & S. 495 (1841), it was declared upon review and consideration of our legislation from the year 1700 to the year 1836, that “ when a county bridge has been once legally built, such ordinary repairs as are necessary to preserve it fit for use, are to be made by the supervisors of the townships, as in the case of roads.” Of course the court was not speaking of bridges over streams on the line of adjoining counties. There is a dictum in Howe v. Crawford County, 47 Pa. 361, decided in 1864, to the effect that the duty to keep in repair a county bridge established by judicial proceedings prior to the act of 1836 devolved upon the county; but in Erie County v. Commonwealth, 127 Pa. 197, this was declared to in conflict with Commonwealth v. Monroe, and was expressly disapproved, and the general rule, as declared in that case, was reaffirmed as to counties excepted from the operation of the Act of April 13, 1843, P. L. 221. This general rule is not affirmatively expressed in so many words in the act of 1836, but as the bridge when completed becomes part of the highway, the duty of repair must necessarily devolve upon the township or other municipal division of the state on which rests the duty of repairing the highway of which it forms a part, if no statute, either expressly or by clear implication, imposes the duty upon the county. This we understand to be the doctrine of Commonwealth v. Monroe County and Erie County v. Commonwealth. Shortly after the former case was decided, and, it may be surmised, because of what was said in that case as to the duty of repair, the act of 1843 was passed. This act made it the duty of the county commissioners, except in Washington and some other counties, to repair “ all bridges erected by the county,” and to pay the expenses of such repairs out of the county treasury in the usual manner. The bridge in question was not originally “ erected ” by the county. But as the act of 1876, relative to the acquisition of such bridges and the abolition of tolls thereon, provides that upon approval of the report of viewers the damages shall be payable out of the county treasury, and “ the said bridge .... shall be taken possession of by the county commissioners, and shall thenceforth be declared a county bridge,” we entertain no doubt that it was the intention of the legislature that the statute governing the repair of county bridges in the county wherein the bridge is situated should apply to a bridge so taken and converted from a toll bridge to a free county bridge. As to the bridge in question this would be the act of 1843, unless that act has been modified or repealed as to Lycoming county. By the second section of the Act of April 26,1850, P. L. 615, 616, the provisions of the act of 1843 were extended to the county of Washington, which, as has been stated, was originally excepted out of the latter act. By the Act of March 30, 1859, P. L. 309, entitled, “ An act relating to roads and bridges in Washington county,” which was extended to the county of Lycoming by the Act of March 12, 1860, P. L. 144, it was provided in the sixth section, “ that it shall be the duty of the supervisors of the several townships, and the street commissioner, or other person having charge of the highways in incorporated boroughs, to keep in repair all bridges built, or that may hereafter be built, by the county commissioners, at the charge of the county, and they shall be subject to the like penalties for neglect as they are now liable to in the case of roads and bridges built at the expense of the township or borough.” The succeeding section prescribes the contingencies in which it shall be the duty of the county to repair or rebuild, and it is declared in the last section, “ that all acts inconsistent with the foregoing are hereby repealed, so far as they relate to the county of Washington.” The sixth section came before this court for construction in Whitmire v. Muncy Creek Township, 17 Pa. Superior Ct. 399, and later before the Supreme Court in Smith v. Muncy Creek Township, 206 Pa. 7. It was held in both cases that .the township’s supervisors were not agents of the county commissioners in making repairs to a county bridge, and that the duty of inspecting and repairing was primarily on the township within which the bridge was located. These decisions are not questioned, but it is contended that the county of Lycoming is relieved oonly from the duty of repairing county bridges in townships and boroughs, but not in cities. If there had been a city or cities in the county of Washington at the tipie the local law of 1859 was enacted, or in the county of Lycoming when it was extended to that county, there would be plausibility in this construction of the act, but even in the supposed case it is not clear that the act would not apply to the whole of a county bridge, one end of which was in a city and the other end in a township or borough. In the ease of Pottsville Borough v. Norwegian Township, 14 Pa. 548, an action was brought by the borough to recover from the township one-half the cost of a bridge built upon a public highway over a creek which was the boundary between the two. The defens.e -was urged and sustained in the court below that no valid contract was shown which would bind the township; but the judgment was reversed, the court saying, “it is the law which throws the burden on the township of Norwegian, and not the contract of the supervisors, and it must redeem the legal obligation.” The relevancy of this decision in the construction of the act of 1859, consists in this, that the 34th section of the act of 1836, which speaks only of bridges over streams on the boundary or on the division line of townships, and provides that such bridges “ shall be built and maintained at the joint and equal expense of the said townships,” was held, to apply to a bridge over a stream on the division line of a township and a borough. Other illustrative cases in which, in order to carry out the obvious intention of the legislature, certain road and bridge laws have been held to apply in boroughs, although townships only are mentioned, are, Road in Milton, 40 Pa. 300, and Westfield Boro. v. Tioga County, 150 Pa. 152.

But whatever be the significance that the omission to mention cities in the act of 1859 would have in the supposed case, it can have none in the determination of the question before us, in view of the fact that there was no city in either county at the time the act was passed or extended. .This being remembered, it is plain that the primary object of the law was not to regulate the affairs of boroughs and townships as distinguished from cities, but to reinstate in the particular county the law as to the repair of county bridges as it existed prior to the act of 1843. The purpose of the legislature being to relieve the county from the duty of repair imposed by the act of 1848, and to subject it to that duty only in certain contingences mentioned in the next section, it was very natural that the legislature should express in words what would have been implied in law upon the abrogation of the act of 1848, namely, that the primary duty of repair devolved upon the boroughs and townships. The act relates to county bridges in general, not merely to county bridges located in particular subdivisions of the county. At the time of its enactment it applied to every part of the county, and completely supplanted the act of 1843. There is no stable ground upon which to base a conclusion that a subsequent conversion of part of the territory of the county into a city would revive the act of 1843 as to the portion of a county bridge which might happen to be in that territory, and leave the portion of the same bridge that might happen to be in a township or borough under the act of 1859, or would revive the act of 1843 as to the whole bridge and its approaches, and devolve the duty of repair upon the county. And if, as to that portion of the county, the act of 1843 was not revived when Williamsport became a city, neither was it revived when the bridge in question became a county bridge. Apart from the act of 1843, we know of no statute in force when this accident occurred which can be claimed to have the effect of imposing the duty of repairing the highway between the river bridge and the basin bridge upon the county of Lycoming. The fact that it made repairs created no obligation to continue to make them as occasion might arise: Francis v. Franklin Township, 179 Pa. 195. Nor in Pennsylvania is there any common-law duty of counties to repair highways, or bridges or sidewalks in highways ; such dutjq and consequent liability for negligence in the care thereof, must be imposed by statute, or be held not to exist. This general proposition is fully sustained, we think, by the opinion of Mr. Justice Potter in the recent case of Bucher v. Northumberland County, 209 Pa. 618. It is applicable to the facts of the present case, and is a conclusive bar to recovery from the county for an accident which occurred prior to the Acts of March 30, 1905, P. L. 75, 81.

Judgment affirmed.