text:
    Philadelphia v. Smith.

      Municipal lien — Scire facias — Registered owner — Devise—Registry Acts— Philadelphia — Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600.
    Where, after a scire facias on a municipal lien has been issued, the owner of the land dies having devised it to another, judgment may be taken on the scire facias without notice to the devisee, if the latter has failed to register his title as provided by the Acts of March 14, 1865, P. L. 320, and March 29, 1867, P. L. 600, in force in Philadelphia.
    Argued Oct. 5, 1905.
    Appeal, No. 122, Oct. T., 1905, by Frances Ledwith, from order of C. P. No. 4, M. L. D., Phila. Co., Dec. T., 1891, No. 85, discharging rule to strike off judgment in case of City of Philadelphia v. Michael Smith.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to strike off judgment.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order discharging rule to strike off judgment.

      Charles H. Downing, -for appellant.
    A judgment will be set aside when it is shown that the defendant was dead before the day on which judgment was entered: Lanning v. Pawson, 38 Pa. 480; Dellone v. Wagner, 2 York, 41; Tobias v. Dorsey, 2 W. N. C. 15 ; Gordon v. Bartley, 4 W. N. C. 37.

      The principle that a judgment for want of an affidavit of defense cannot be taken against a dead man is in no way overruled by the fact that a municipal claim is generally regarded as a proceeding in rem, and not in personam: Philadelphia v. Dungan, 124 Pa. 52; Delaney v. Gault, 30 Pa. 63; White’s Estate, 45 Legal Int. 394.

      Mayne It. Longstreth, with him James Alcorn, assistant city solicitor, and John L. Kinsey, city solicitor, for appellee.
    The judgment is in rem against the land only and imports no personal liability on the part of the defendant named in the writ : Northern Liberties v. Coates, 15 Pa. 255 ; Delaney v. Gault, 30 Pa. 63; Wistar v. Phila., 86 Pa. 215; Emrick v. Dicken, 92 Pa. 78; White v. Ballantine, 96 Pa. 186.
    It is unnecessary for the city of Philadelphia to serve or even join the owner of land in any proceedings upon a city claim against the land unless such owneris also the registered owner in the registry bureau : Phila. v. Peyton, 25 Pa. Superior Ct. 350, citing: Wistar v. Phila., 86 Pa. 215; Emrick v. Dicken, 92 Pa. 78 ; Northern Liberties v. Coates, 15 Pa. 215; Delaney v. Gault, 30 Pa. 63; Soullier v. Kern, 69 Pa. 16; White v. Ballantine, 96 Pa. 186 ; Phila. v. Unknown Owner, 148 Pa. 536; Phila. v. Unknown Owner, 20 Pa. Superior Ct. 203.
    That the heir or devisee must register is expressly decided in Funk v. Harkness, 3 Pa. Dist. Rep. 423.
    November 21,1905:
   Opinion by

Beaver, J.,

The city of Philadelphia filed a municipal lien December 31, 1891, against Michael Smith, owner or reputed owner and registered owner, or whosoever may be owner “ against all that certain lot or piece of ground situate on the west side of Alder street and north side of Norris street in the twentieth ward of the city of Philadelphia, containing in front or breadth on the said Alder street seventy-five feet, and extending of that width in length or depth westward along the north side of said Norris street fifty feet; for work done and materials furnished by the said city in laying sewer in front of said lot in Alder street, and duly assessed and charged, as follows,” etc.

A scire facias was duly issued upon this lien December 3, 1896, upon which the return of the sheriff was “ made known to Michael Smith, owner, etc., and registered owner, residing at 1015 Norris street, by leaving, December 16, 1896, a true and attested copy of the within writ at his dwelling house, with an adult member of his family.”

June 4, 1901, a judgment in the said scire facias was taken for want of an affidavit of defense. March 16, 1905, a rule to strike off this judgment was allowed, upon the petition of Frances Ledwith who alleged, first, that Michael Smith, the defendant above named, died on or about April 1, 1899; setting forth also the various dates of the issuing of the sci. fa., and the talcing of judgment for want of an affidavit of defense and that “ Your petitioner further says that she is the owner of said premises by devise under the will of said Michael Smith, deceased.”

Upon hearing, the rule to strike off the judgment was discharged, and from that decree this appeal is taken.

Assuming that the dates herein set forth were all correct, an affidavit of defense was due and judgment might have been taken in the scire facias long before the death of Michael Smith.

It would seem from the petition for the rule to show cause that the petitioner had not registered her title and that seems to be admitted in the discussion of the ease. What are known as the registry acts, the first of which is entitled “ An act to promote the more certain and equal assessment of taxes in Philadelphia,” passed March 14, 1865, P. L. 320, and the supplement thereto March 29,1867, P. L. 600, seem to impose the duty of registration upon seller or buyer, devisee or heir. In the latter act it is provided : “ That the duty of registering real estate in the city of Philadelphia shall hereafter devolve upon the purchaser, devisee by will, the person to whom an allotment in partition shall have been made, or their agent, and they shall be required to present their deeds or title papers at the registry bureau, so that the same may be indorsed in accordance with the act of assembly to which this is supplementary,” etc. It was, therefore, incumbent upon the devisee to have registered her title, if she expected to receive notice of any proceedings had upon the mechanic’s lien which was filed, not against her father but against the lot of which he was the owner or reputed owner and registered owner at the time when the lien was filed and the scire "facias issued.

It must be remembered that this is a proceeding in rem and, whilst the registered owner is entitled to notice, it is only because his or her title is registered and not because notice to an owner is essential to the validity of .the proceedings upon a municipal lien, in case there is no registered owner, because, as we have said in the city of Philadelphia v. Peyton, 25 Pa. Superior Ct. 350: “ When the title has not been registered at the time the claim accrues as a lien of record, the mention of the name of the owner in connection with the assessment of the land is only required as descriptive of the land and, when the assessment and the claim within themselves clearly and absolutely identify the land, that is all that is required. The owner of land who has not registered his title is left in the same position which he would have occupied if these statutes (the registry acts above referred to) had never been enacted. His property may be sold under proceedings to which he is not made a party and of which he has no notice: Phila. v. Unknown Owner, 148 Pa. 536; Phila. v. Unknown Owner, 20 Pa. Superior Ct. 203. This was strictly a proceeding in rem from its inception, and the subsequent and long belated registration of the title had no effect upon its character, for to it the registration acts have no application.”

Although the facts are somewhat different here, the same reasoning applies. The lien was properly filed, the scire facias properly issued and properly served. It appearing that no affidavit of defense had been filed, we cannot see why, the proceeding being strictly one in rem, the judgment should not have been taken at the time it was entered, for the want of it. If the present appellant had registered her title prior to that time, she might, with some reason, have complained that this should have been done without notice to her, or possibly without an alias scire facias, so as to give her notice of the claim, but she is not in a position, having failed to register her title, to complain of want of notice.

The authorities cited by the appellant and upon which she relies, as to the necessity of serving the heirs or representatives of a deceased owner, all relate to cases in which the actions were in personam and do not, therefore, here apply. The case of Scranton v. Manley, 18 Pa. Superior Ct. 439, has no application here, first, for the reason that the judgment therein was irregularly entered, without service upon the defendant who was dead, within the ten days required by the statute; and, secondly, because the registry laws relating to Philadelphia do not apply to the city of Scranton.

Upon a review of the whole case, we see nothing erroneous in discharging the rule to show cause.

Order affirmed and appeal dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Portee., J.,

license: Public Domain

text:
    Daniel v. Lance, Appellant.

      Partnership — Promissory notes — Action—Evidence.
    In an action on promissory notes against a partnership where plaintiff proves that one of the defendants, who was the only defendant served, represented at the time the notes were given that he was a member of the firm, and the plaintiff also testifies that the defendant had transacted business for the firm with him, the notes are properly received in evidence.

      Partnership — Registration—Action—Act of April 14, 1851, sec. 13, P. L. 612.
    Where a partnership has not registered in accordance with the provisions of section 13 of the Act of April 14, 1851, P. L. 612, it cannot complain in a suit against it that the name of one of the members was omitted or that the names of persons not members were included as parties defendant.

      Partnership — Promissory notes — Notice—Evidence.
    In an action upon promissory notes against a partnership, the only defendant who was served admitted that he had been a member of the firm at the time the dealings with the plaintiff had their inception, and that he continued to be a partner until a certain date, that he then sold out his interest in the partnership and notified the plaintiff of that fact, and that he subsequently carried on and managed the business of the firm as the attorney in fact of his former partners. It appeared that there was no change of names under which the partnership carried on its business. The plaintiff denied that he had any notice that the defendant had sold out his interest. Held, that the liability of defendant Was dependent upon whether the plaintiff had been notified, and that this question was for the jury.
    In the above case plaintiff testified that he saw the defendant who was served, sign the notes in suit, and that he received them from him. The defendant offered to prove that the notes had: been signed by another partner, and delivered to the plaintiff. Held, that this offer should have been admitted as bearing both upon the main question, and upon the credibility of the plaintiff, and the accuracy of his recollection.

      Partnership — Registration—Amendment of record — Perjury—Evidence.
    When a partnership has not registered the names of its members, it is often very difficult to ascertain the persons of. which it is composed, and a plaintiff is not to be subjected to the imputation of perjury because later information warrants him in amending his record.
    In an action against a partnership, plaintiff, in his original statement, verified by affidavit, alleged the defendant firm to be composed of the defendant who was served and certain other persons, and he subsequently presented a petition verified by affidavit, averring that the names of two persons had been improperly included as partners, and that another name had been improperly omitted, and moved for an amendment of the record. The affidavits were made upon information and belief, but there was nothing to show that they had been corruptly made. Held, that the court committed no error: (1) in refusing to send out the two affidavits for the alleged purpose of discrediting the testimony of the plaintiff by showing that in the original statement there had been a mistake as to the persons who constituted the defendant firm; (2) in refusing to charge that if the jury found from the evidence “that the plaintiff has sworn falsely in this case, his testimony, where it is contradicted by other witnesses, should be disregarded, applying the rule that a witness false in one is false in all.”

      Evidence — Promissory notes — Comparison of signatures.

    In an action against a partnership on promissory notes, it is not error to refuse to submit to the jury the signature of the only defendant served to his affidavit of defense, for comparison with the firm's signatures to the notes in suit.
    Argued Oct. 9, 1905.
    Appeal, No. 70, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1899, No. 88, on verdict for plaintiff in case of Charles A. Daniel v. Charles D. Lance.
    Before Rice, P. J., Beaver, Orlad y, Porter, Morrison and Henderson, J J.
    Reversed.
    Assumpsit on promissory notes. Before Wilt bank, J.
    At the trial the court under objection and exception by defendant admitted in evidence the notes in suit. [1]
    ■The court refused to permit a witness for the defendant to testify that the notes were signed by Joseph P. Lance. Exception. [2]
    Defendant presented the following points :
    1. ,That before the plaintiff can recover the jury must find from the evidence that Charles D. Lance was a partner in a firm composed of himself, Joseph P. Lance and Walter W. Lance, trading as Lance Sons, and if they do not so find, the verdict must be for the defendant, Charles D. Lance. Answer: That point I refuse. [3]
    2. That if the jury find from the evidence that the plaintiff, Charles A. Daniel, has sworn falsely in this case, his testimony, where it is contradicted by other witnesses, should be disregarded, applying the rule that a witness false in one is false in all. Answer : For answer to that point I refer to my general charge. [4] That part of the charge is as follows:
    I am required, in view of a certain point that counsel for defendant has presented to me as a subject of part of my charge, to call your attention to statements in the statement of claim made by the plaintiff when he came into court, and demanded his money. It has been argued by counsel for defendant, that' as there have been disclosed several inaccuracies (we will call them untruths ; that is to say, several statements inconsistent with the actual fact) in the statement of claim, you must condemn the plaintiff as not telling you judicially the truth under oath as a witness, and as I am obliged to decline that point it is necessary, in justice to both sides, that I should give you some explanation of my view of that aspect of the case. The statement originally filed says that “ at the time of the happening of the matters herein complained of the defendants were copartners trading as aforesaid ” and it names William Lance, Jr., Deliaven Lance, Charles Lance and Joseph Lance, “ now or late,” and so forth. The affidavit attached to that statement avers that the plaintiff believes the statements are true to the best of his knowledge, information and belief. Now, you will observe, that when this knowledge, information and belief were enlightened further by the affidavit of the defendant, and he made his correction, he does not stand at all convicted of a deliberate untruth. A.man avers such and such is the fact, “ to the best of my knowledge, information and belief,” and he may come forward later and say, “ Since then, I have acquired fuller knowledge, or other knowledge, other information and other belief, and I beg leave accordingly to amend that statement,” and if he obtains the warrant of the court for the amendment, he is purged of all imputation of perjury. The court says, averring then, according to your information, and coming in now with fuller information, we allow you to correct your averment. So that you will observe that there is nothing serious in that aspect of the case as against the plaintiff when he comes in and asks of you a verdict against the defendant. With regard to the statement of amount, the averment in the original- statement is that “ the whole of the principal of said notes, with interest thereon from the dates of their maturity, still remains justly due and payable by said defendant to said plaintiff,” and the defendant came in and claimed that he had paid the sum of $265 in behalf of Lance Sons, and that averment having been put of record, the plaintiff has gone into the account and finds that credit is to be allowed, but not that amount, and he allows a credit of some $95.00. You will remember the amount and will have it out with you when you examine the claim. Therefore, as I say, the real point is as I have presented it to you. Did the defendant represent, when he was dealing with the plaintiff at the time these two notes were given, that he was of the concern of Lance Sons ?
    B. That if the jury find from the evidence that the plaintiff was told by Charles D. Lance and Thomas A. Gummey, in 1888, that he, Charles D. Lance, had sold out his interest in the old firm of Lance Sons to Walter W. Lance, and was no longer a member of the firm of Lance Sons, the verdict must be for the defendant. Answer : That point I refuse. [5]
    4. The recording of the letter of attorney of W. W. and J. P. Lance, in 1891, was notice to the plaintiff of the authority of Charles D. Lance to act in the premises. Answer: That point I refuse. [6]
    5. That if the jury find from the evidence that the indebtedness, for which the notes in suit were given, was for a debt contracted by Walter W. and J. P. Lance, trading as Lance Sons, the verdict must be for defendant. Answer : That point I affirm, providing you find that Charles D. Lance did not at that time represent himself as also of the firm. [7]
    6. That the verdict must be for the defendant. Answer: That point I refuse. [8]
    The court charged in part as follows:
    [It is hardly material who signed the notes. That is to say, it is not necessary that the defendant should sign the notes. Mr. Daniel was sure that he did. He says he had seen him often sign notes, there were long transactions between them, he saw him sign these and he delivered the obligations to him. Mr. Joseph P. Lance says that he signed those two notes on the two several occasions. It is hardly material, if you find that Charles D. Lance represented at the time that he was of the concern, who in point of fact did actually make the signatures “ Lance Sons.”] [9]
    The court refused to permit the defendant to send out with the jury the affidavit to the statement of claim, the affidavit to amend the record, and the affidavit of Charles D. Lance as to who were members of the firm. [10]
    The counsel for the defendant, in addressing the jury, exhibited the affidavits of defense of Charles D. Lance which were filed in the case and were offered in evidence, and the notes upon which suit was brought and called attention to the signatures that they were not in the same handwriting, as was apparent on the face.
    The judge stated that it was improper to submit them to the jury and ordered that it be stopped. To this the counsel for the defendant excepted and asked that it might be taken down by the stenographer and the exception noted. [11]
    And now, to wit: July 18,1904, it is ordered that the foregoing statement of counsel for defendant be filed as of May 17, 1904; and further, it appearing to the court that the papers referred to in the said statement, to wit: the affidavits of defense of Charles D. Lance and the notes upon which this suit was brought, were not competent for the use proposed in submitting them to the inspection of the jury, to wit: a comparison of the signatures, Lance Sons, in order to secure from the jury a finding of fact that the defendant, Charles D. Lance, did not sign the notes in suit, and that the use of the same for this purpose was unwarranted by leave of the court, it is ordered that the action of the court in the premises be affirmed and that an exception be allowed the defendant.
    Verdict and judgment for plaintiff for $1,132.26. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3-11) above instructions, quoting them.

      David C. Harrington, for appellant.

      James Collins Jones, for appellee.
    November 21,1905:
   Opinion by

Portee., J.,

The plaintiff had proved that the two notes in question had been given for a debt of Lance Sons, and that Charles D. Lance had from 1886 to the time the notes were given represented that he was a member of the firm doing business under that style, and that said Charles D. Lance had for said firm transacted the business with the plaintiff; after this preliminary. proof the notes were properly received in evidence, and the first specification of error is without merit.

Charles D. Lance was the only defendant served and the issue was tried as to him alone. The plaintiff had declared against the defendant as a partner in a firm composed of himself, Joseph P. Lance and Walter W. Lance, trading as Lance Sons, the firm of Lance Sons had not registered in accordance with the provisions of the 13th section of the Act of April 14, 1851, P. L. 612, and the right of the plaintiff to recover could not he defeated by “ the omission of the name of any member of the partnership, or the inclusion of the names of persons not members of said partnership: ” Tilli v. Vandegrift, 18 Pa. Superior Ct. 485; Daniel v. Lance, 21 Pa. Superior Ct. 474. Under the issue being tried it was only necessary for the plaintiff to prove that the notes had been given for a debt of Lance Sons; by some person authorized to sign the paper of that firm, and that Charles D. Lance was a member of the firm, or had held himself out to be such. The defendant in his testimony admitted that he had been a member of the firm at the time the dealings with the plaintiff had their inception and that he continued to be a partner until October 5, 1888, that he then sold out his interest in the partnership and notified this plaintiff of that fact, and that he subsequently carried on and managed the business of the firm as the attorney in fact of his brothers. There was no change of the name under which the partnership carried on its business. The defendant having been a member of the partnership at the time the course of dealing with the plaintiff had its inception, having personally, as a member of the firm, transacted the business of the partnership with the plaintiff for a considerable period, and having after his alleged withdrawal from the firm still continued, in the same partnership name, to transact business with the plaintiff, the latter would, under the circumstances, be justified in still considering him a partner, unless he, the plaintiff, had notice that the defendant had withdrawn from the partnership. The defendant did not deny that the notes were given for the debt of the firm of Lance Sons, but asserted that these particular notes had been signed by Joseph P. Lance. The learned judge of the court below was, therefore, correct in holding that the liability of the defendant in this action was, under the evidence, dependent upon whether the plaintiff had been notified, as testified by the defendant and another witness, that Charles D. Lance had retired from the firm and was merely acting as the representative of his brothers. The third, sixth, seventh, eighth and twelfth specifications of error are dismissed.

While the right of the plaintiff to recover was not dependent upon whether Charles D. Lance had actually signed the notes in suit, that fact was one material for the jury to consider in passing upon the question upon which the right of the plaintiff to a verdict ultimately depended. Did the defendant hold himself out as a member of the firm, or did the plaintiff have notice that the defendant had withdrawn from the partnership ? The plaintiff testified that he saw Charles D. Lance sign these particular notes and received them from him. This evidence was material to the issue and was properly received. The testimony, offered on the part of the defendant, that these notes were signed by Joseph P. Lance and were by him delivered to the plaintiff, directly contradicted this material allegation of the plaintiff and tended to establish that the course of dealing had been different from that which the latter asserted; in this view it bore directly on the main question, and it was certainly proper for the jury to consider in passing upon the credibility of the plaintiff and the accuracy of his recollection. The second and ninth specifications of error are sustained.

The fourth specification of error is not worthy of serious consideration. Counsel for the defendant requested the court to instruct the jury that if they found from the evidence “ that the plaintiff, Charles A. Daniel, has sworn falsely in this case, his testimony, where it is contradicted by other witnesses, should be disregarded, applying the rule that a witness false in one is false in all.” This point was predicated upon the fact that the plaintiff had in his original statement, verified by-affidavit, alleged the firm of Lance Sons to be composed of this defendant and certain other persons and that he subsequently presented a petition, verified by affidavit, averring that the names of two persons had been improperly included, as partners, and that another name had been improperly omitted, and moved for an amendment of the record. Each of these affidavits was upon its face asserted to be made from information and belief, and there was no evidence in the case from which a jury ought to have been permitted to find or infer that the statements were corruptly made. When a partnership has not registered the names of its members it is often very difficult to ascertain the persons of whom it is composed, and a plaintiff is not to be subjected to the imputation of perjury because later information warrants him in amending his record.

The third point submitted by the defendant might have been affirmed with proper explanation. The mere fact that two witnesses testified that the plaintiff had been told that Charles D. Lance had retired from the firm was not conclusive of that question. The jury may have been satisfied that such a representation had been made to the plaintiff, but they may also have been satisfied that the representation was not true and that Charles D. Lance never had in fact retired from the firm or they may have been convinced that Charles D. Lance had subsequently represented to the plaintiff that he was a member of the firm.

The learned judge of the court below was right in refusing to permit defendant’s counsel to send out with the jury the affidavit to the statement of claim and- that to the petition for the amendment of the record, for the alleged purpose of discrediting the testimony of the plaintiff by showing that in the original statement there had been a mistake as to the persons who constituted the defendant firm. . The zeal of defendant’s counsel misled him into invoking a principle for which the evidence in this case afforded no foundation. The refusal of the court to permit the defendant’s counsel to submit the signature of the defendant to his affidavit of defense to the jury for comparison with the signatures to the notes in suit was proper. The signatures were not the same, that to the affidavit was Charles D. Lance and that upon the notes was Lance Sons. The controlling reason for holding such a comparison improper, however, was that the signature to the affidavit was made in this very proceeding and after the controversy had arisen, and there was no evidence that the signature of Charles D. Lance, to the affidavit, was made in the way in which he ordinarily wrote it; see American & English Ency. of Law (2d ed.), vol. 15, page 274, and cases there cited. The tenth and eleventh specifications of error are dismissed.

The judgment is reversed and a venire facias de novo awarded.


author: Beaver, J.,

text:
    Mothes’ Estate.

      Appeals — Findings of fact — Conclusiveness of — Orphans’ court.

    A finding by an auditing judge that a gift of personal property was actually made by a husband to his wife in the former’s lifetime, will not be reversed on appeal, where the finding is based on competent evidence and is confirmed by the court in banc.

      Evidence — ■Witness—Party dead.

    Where a party to a suit, otherwise incompetent by the death of another, is called for cross-examination by the adverse party, and examined as to matters occurring in the lifetime of the decedent, he is thereby rendered a competent witness for himself on all relevant matters.
    Argued Oct. 10, 1905.
    Appeal, No. 130, Oct. T., 1905, by Bertha Mothes, from decree of O. C. Phila. Co., Jan. T., 1905, No. 465, dismissing exceptions to adjudication in Estate of Alfred H. Mothes, deceased.
    Before Rice, P. J., Beaver, Orlad y, Porter, Morrison and Henderson, J J.
    Affirmed.
    Exceptions to adjudication.
    Dallett, J., filed the following opinion:
    The accountant in this case, Emma Mothes, the widow and administratrix of the decedent, refused to account for #1,666.67 paid to her after her husband’s death on account of his interest in the Meehan-Mothes Company. This interest was represented by stock certificates of the face value of $5,000, worth at the dissolution of the company $1,666.67.
    The accountant claimed that the stock was a gift to her by her husband during his lifetime and that the money received therefor was her own. The exceptions filed on behalf of Bertha Mothes, decedent’s mother, are to the refusal of the auditing judge to surcharge the administratrix with the amount received for the stock.
    The decedent was the manager and vice president of the Meehan-Mothes Company up to the time of his death, on December 7, 1903.
    On the evening of February 7, 1903, he brought certificates for this stock to his home and in the presence of a niece, Emma Boyd, then fourteen years old, and a frequent visitor at the house, gave them to his wife, telling her that she should keep them and not leave them out of her hands, that they were hers. This occurred in the decedent’s bed-room, and the wife took the certificates and put them in a tin box in which the decedent kept small sums of money. They were never transferred to her because, according to her testimony, the decedent could not have remained as manager had he not held the stock in his name.
    In Hafer v. McKelvey, 23 Pa. Superior Ct. 202, Oblady, J., citing Com. v. Compton, 137 Pa. 138, says : “ It is now well settled that a valid gift of non-negotiable securities may be made by delivery of them to the donee without assignment or indorsement in writing. This principle has been applied to notes, bonds, stock and deposit certificates and life insurance policies.”
    And in Hani v. Ins. Co., 197 Pa. 276, McCollum, J., said: “ That while formerly the doctrine was that a gift of a chose in action requiring an assignment had to be actually executed it was then held with substantial unanimity that a written assignment was not necessary, and that a delivery of a chose of action under such circumstances as would constitute a gift of property in possession amounted to an equitable assignment of the property represented which the courts would recognize.”
    If, therefore, the testimony in this case is competent there is no doubt but that the gift of this stock by the delivery of the certificates to the wife was valid.
    There were two witnesses — the niece, a young girl who testified as to all the circumstances in relation to the delivery of the certificates, who was disinterested and certainly competent.
    And the accountant, the widow, who testified as to the decedent’s relations with the Meehan-Mothes Company, his gift of the stock and his reasons for continuing it in his name. Primarily incompetent this witness was made competent by the adverse party when called for cross-examination and asked as to decedent’s membership in the firm at the time of his death, the name in which the stock was held at that time, to whom it belonged, etc.: Watkins v. Hughes, 206 Pa. 526.
    The exceptions are dismissed and the adjudication confirmed absolutely.

      Error assigned was the decree of the court.

      Charles F. Linde, for appellant.

      G. E. Schlegelmilch, for appellee.
    November 21, 1905 :
   Opinion by

Beaver, J.,

The effort here Avas to surcharge the administratrix, the widow of the decedent, Avith the proceeds of certain stocks alleged by her to have been a gift from her husband in his lifetime. Under the testimony of a disinterested witness, who was present when the gift was made, there Avas an actual delivery, accompanied by words which indicated a gift. The adjudicating judge, who heard the testimony, who saw the witness upon the stand and who had the opportunity for judging whether or not her testimony was inspired, found as a fact that a gift of the stock in question had been actually made. We have a careful opinion on this question from President Judge Hanna of the orphans’ court, covering the entire subject. Subsequently, upon exceptions to the finding of the auditing judge, Judge Dallett delivered the opinion of the court dismissing the exceptions. In a clear opinion, quoting controlling authorities, he satisfactorily disposes of both questions raised by the assignments of error.

The assignments of error here are not in accordance with our rules XV. and XVI. The appellee, however, does not object to them and we do not, therefore, dispose of the case on the ground of their insufficiency. If the testimony of the witnesses was believed, there were ample grounds upon which to find, as a matter of fact, that there was a gift, inter vivos, from the husband to his wife : 8 P. & L. Dig. of Dec. 12,856.

As to the testimony of the administratrix, she was the ap-. pellant’s witness. The grounds for her cross-examination wére laid in her examination in chief, and it is too late now for the appellant to try to exclude the testimony which her counsel rendered competent by his examination of the witness in chief: Watkins v. Hughes, 206 Pa. 526.

Upon a careful examination of the whole case, we see nothing erroneous in the findings of the auditing judge, or in the opinion of the judge who delivered the opinion of the court dismissing the exceptions to the adjudication..

The decree is affirmed and the appeal dismissed at the costs of the appellant.


text:
    Moody v. McTaggart, Appellant.

      Contract — Sale—Repudiation—Damages—Freight.
    Where coke is sold at the ovens for a price stated, and is delivered to the carrier by the seller, who thereupon becomes liable for freight, and subsequently, when the coke arrives at the purchaser’s yard, it is wrongfully rejected by the latter, and the seller thereupon sells it to other parties, the seller is not obliged to sue for the entire purchase price of the coke, but he may claim and recover the difference between the price at which the coke was originally sold and that for which it was subsequently resold, deducting freight and charges.
    Where a contract of sale has been repudiated and the goods rejected by the vendee in toto, it is violated in every part, and the vendee becomes hable for whatever actual damages the vendor may suffer.
    Argued Oct. 11,1905.
    Appeal, No. 150, Oct. T., 1905, by' defendant, from, judgment of O. P. No. 4, Pbila. Co., March T.,. 1908, No. 1647, on verdict for plaintiff in case of Carlton F. Moody, trading as William F. Moody & Son, v. Hugh Mc-Taggart et al., trading as Bell Coal Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit on a contract for the sale of coke.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for 1442.23. Defendant appealed.
    The verdict was rendered on May 16, 1905. Subsequently the defendant made the following motion :
    “ And now, May 31, 1905, the defendant by Smithers & Lank, its attorney, moves the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for the judgment non obstante veredicto upon the whole record.
    “ Smithers & Lank,
    “ Attorney for defendants.”
    DECREE.
    “ And now to wit: May 31, 1905, the court after due consideration grant leave to the attorney for the defendant to file the above motion, and the said motion is hereby made a part of the record in the above case.
    “ W. W. C.,
    “ Judge.”
    The court dismissed the motion.

      Errors assigned were (1) in refusing defendant’s point as to binding instructions for defendant; (2) in dismissing defendant’s motion for judgment non obstante veredicto on the whole record.

      Edgar W. Lank, of Smithers $ Lank, for appellant.
    The coke being delivered to defendants as stated above, there remained nothing to be done under the contract by plaintiff, hence the contract was executed and not executory. Plaintiff, then, could only sue for the price if the contract had been well performed: Foster v. Dawber, 6 Exch. 839; Philadelphia & Reading R. R. Co. v. Wireman, 88 Pa. 264; Heiskell v. Bank, 89 Pa. 155; Fire-Works Co. v. Polites, 130 Pa. 536; Rickey v. Tutelman, 19 Pa. Superior Ct. 403; Werner Sawmill Co. v. Ferree, 201 Pa. 405; Com. v. Fleming, 130 Pa. 138; Dannemiller v. Kirkpatrick, 201 Pa. 218; Reynolds v. Callender, 19 Pa. Superior Ct. 610.

      Thomas 8. Williams, with him Joseph T. Bunting, for appellee.
    Where goods are sold at public auction on a credit, and the vendee afterwards refuses to take them, the owner may, before the expiration of the credit, maintain an action in his own name against the vendee for a breach of the contract: in which the measure of damages generally is, the difference between the price agreed to be paid for the goods and their value when the vendee refused to take them. This may be ascertained by a resale at the risk of the vendee ; but the jury are not bound by this mode of estimation, if they can find another more agreeable to truth : Girard v. Taggart, 5 Sergeant & Rawle, 19; Andrews v. Hoover, 8 Watts, 239; McCombs v. McKennan, 2 Watts & Sergeant, 216; Guillon v. Earnshaw, 169 Pa. 463 ; Hooper Seving & Co. v. Bromley Bros. Carpet Co., 11 Pa. Superior Ct. 634.
    November 21,1905 :
   Opinion by

Beaver, J.,

The disputed facts in this case were all found by the jury against the defendants. The assignments of error, although two in number, really involve but a single question. The defendants at the trial asked for binding instructions, which request was denied. After the verdict they moved for judgment, non obstante veredicto, under the provisions of the Act of April 22, 1905, P. L. 286. The latter motion was also disallowed and judgment entered upon the verdict. The question, therefore, is, was there any evidence upon which the plaintiffs had a legal right to recover ?

The evidence, practically undisputed, was that the plaintiffs sold the defendants two cars of coke upon their siding at Uniontown, the numbers of the cars being given. When the coke reached its destination several days thereafter’, the defendants refused to take it, on the ground that the delivery by the carrier was too late and that it was a size different from that which they purchased. The grounds upon which the refusal to accept was based were, however, denied.

The disputed questions were fairly left to the jury and, as already intimated, were all found for the plaintiffs. It was, therefore, simply a question of what the plaintiffs should have done under the circumstances. The defendants claim that the contract being executed, that is, the coke having been delivered to them on the siding, on the day of the sale, the plaintiffs were bound to sue for the entire purchase price of the property so delivered and could not claim the difference between the price at which the coke was originally sold and that for which they subsequently re-sold it, deducting freight and charges. This is a somewhat extraordinary position to be taken by a defendant who had repudiated the contract entirely, and depends, to some extent, upon what an executed contract is.

Bouvier, vol. 1, 425, says: “ Executed contracts are those in which nothing remains to be done by either party and where the transaction has been completed, or was completed at the time, the contract or agreement was made : as where an article is sold and delivered and payment therefor is made on the spot.” In 9 Cyc. 244, such a contract is described as follows: “ An executed contract is a contract which has been fully performed since it was made, or which was performed at the time it was made, so that nothing remains to be done on either side, and an. executory contract is one which is either wholly unperformed, or in which there remains something to be done on both sides, or on one side. A contract may be executed on one side and executory on the other.”

However this may be, the present case is not dependent upon definitions. Whether the contract was executed or executory, the defendants repudiated it entirely, as the jury have found, without good grounds. What were the plaintiffs to do ? They were liable for the freight. It is true the consignees were also liable, “ but the remedy against the consignee is not exclusive, although he may be the owner of the goods. It is held not to be obligatory upon the carrier to collect the freight of him, ■ even when the bill of lading contains the usual clause ‘ he paying the freight thereon.’ Such provision, it has been decided, is intended for the exclusive benefit or accommodation of the freighter or shipper of the goods, and imposes no duty upon the carrier to collect the freight of the consignee; but he. may even waive his lien upon the goods by delivering them to the consignee, without requiring payment of the freight, and still hold the shipper or consignor liable for the contract of shipment:” Hutchinson on Carriers, sec. 451. If the plaintiffs had allowed the carrier- to make sale of the coke in order to secure the freight, the defendants would doubtless, in a suit for the value of the consignment, have made the point that it was the plaintiffs’ duty to make the best of the goods sold for their benefit.

In Girard v. Taggart, 5 Sergt. & Rawle, 19, which was an action for a breach of contract for goods sold 'but not actually delivered, Mr. Justice Gibson said: “ Where goods are sold and delivered on a credit and the vendee has violated the contract only in one particular, the damages will be commensurate only with the actual breach. But the present is a very different case from that of a contract partly executed by the vendee, and broken only as to a condition incidental or collateral to the principal thing he was bound to perform. Here the defendant rejected the contract in toto and, therefore, violated it in every part. The damages recovered are not the price of the goods sold but a compensation for the disaffirmance of the contract, and the difference on the re-sale is merely the measure of the damages actually suffered.” We see no difference in principle whether the goods had been delivered to a carrier and constructively to the vendee, or whether there had been no such delivery. Where the contract has been repudiated and the goods rejected by the vendee in toto, it is violated in every part, and he becomes liable for whatever of actual damages the vendor may suffer. See also Andrews v. Hoover, 8 W atts, 239; Guillon v. Earnshaw, 169 Pa. 463; Hooper, Seving & Co. v. Bromley Bros. Carpet Co., 11 Pa. Superior Ct. 634,

What the plaintiffs did was evidently in the interest, and for the benefit, of the defendants, and we know of no legal ground or principle of equity on which they will be heard to successfully claim that the plaintiffs should have sued them for the entire purchase price of the cargo of coke rather than for the amount which remained after deducting the amount for which they were enabled to sell it in the best market, at the'best price obtainable.

The case was well tried and the defendants were not called upon to pay more by the verdict than, under the well-settled rules of law, they were bound to pay, in view of their repudiation of the contract.

Judgment affirmed.


text:
    St. James Building & Loan Association of West Philadelphia v. Kelly, Appellant.

      Judgment — Opening judgment — Building and loan associations — Discretion.
    The Superior Court will not review the discretion of the lower court in refusing to open a judgment entered upon a bond accompanying a mortgage given to a building and loan association, where the question between the parties is one entirely of fact as to credits allowed, and no manifest error is shown in the conclusion reached.
    Argued Oct. 13, 1905.
    Appeal, No. 170, Oct. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 1918, discharging rule to open judgment in case of St. James Building and Loan Association of West Philadelphia v. Robert Kelly.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to open judgment.
    The facts appear by the opinion of the Superior Court.

      Error assigned was the order of the court discharging rule to open judgment.

      Henry A. Hoefler, for appellant.

      Thomas H. McCaffrey, for appellee.
    November 21,1905 :
   Opinion by

Beaver, J.,

The defendant, a member of the plaintiff association, borrowed from it $900,-giving a second mortgage upon four houses, upon which there were mortgages for $1,800 each. He had four and a half shares of the stock of the plaintiff company. As a member he was, therefore, bound to pay monthly dues of $4.50 and interest of a like amount. He defaulted in the payment of monthly dues and interest, his shares were forfeited and the property was sold, subject to the first mortgages, for $50.00, which was applied to costs and taxes, water rents, etc., which greatly overran the amount. The plaintiff’s mortgage was accompanied by a judgment bond, upon which judgment was entered and damages assessed in accordance with a statement of the secretary of the plaintiff association. An application was made to the court below to open the judgment. A rule was entered and, after testimony taken and a consideration of the same, the rule was discharged.

The detailed statement upon which judgment was entered was as follows:

To loan — 4|- shares, series 47, being the amount of the mortgage debt, .... $900.00

“ 23 months’ dues at $4.50 per month . . 103.50

“ 234- months’ interest at $4.50 105.75

“ fines....... 4.24

Total $1,113.49

Cr.

By dues 81 months at $4.50 per month $364.50 “ interest $10.98 per share — 4|- shares ' 49.41 413.91

Balance ........ $699.58

Add attfirney’s commission for collection, at 10^5 69.96

Damages to be assessed.....$769.54

Judgment entered accordingly.

The defendant claims that the charge of twenty-three months’ dues should not be made ; but, inasmuch as he gets credit for them on the other side of the account, the charge is entirely correct, unless there should be a like deduction from the credits or he should be credited with additional payments thereon. In other respects the statement, he practically admits, is correct.

There is some difference as to payments. The defendant claims, and, in fact, shows a greater amount paid in checks than the amount for which he is credited, but it does not clearly appear that these payments were on this account and, inasmuch as there is another account for which defendant was liable prior to the sale on the scire facias, arising from taxes, water rents, etc., the payments may have been on that account, as well as on account of dues and interest upon his stock. The claim made by the defendant is also apparently erroneous in that he claims credit, both for the checks and for the several amounts admitted to be paid by the secretary of the association, these amounts in a number of instances being identical and the dates at or about the same time. The amount with which defendant is credited in the statement is the full withdrawal value of his stock at the time of the forfeiture, made up of dues for the entire time of his membership and interest thereon.

After reading the whole of the testimony and analyzing the accounts, we cannot convict the court of abuse of judicial discretion in refusing to open the judgment.

The question is one entirely of fact which seems to have been carefully considered by the court and, although no opinion is filed, it is not difficult to see, in a careful consideration of the testimony, the grounds upon which the court based its ruling. The order discharging the rule to show cause why the judgment should not be opened is, therefore, affirmed, and the appeal dismissed, at the costs of the appellant.


text:
    Burnet v. Smith, Appellant.

      Judgment — Foreign judgment — Judgment of justice of the peace — Exemplification filed of record — Suit on foreign judgment.

    Where the statutes of another state provide that the exemplification of a judgment of a justice of the peace, filed in a court of record, shall become a judgment of that court, such exemplification may be the basis of an action in Pennsylvania for the recovery of the judgment therein specified.
    Submitted, Oct. 18, 1905.
    Appeal, No. 133, Oct. T., 1905, by defendant, from judgment of C. P. No. 5 Phila. Có., Dec. T., 1904, No. 2781, on demurrer to statement in case of Philip Burnet, Jr., and George E. Saulsbury, trading as Burnet & Saulsbury, v. Carl E. Smith.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.. '
    Demurrer to statement.
    The opinion of the Superior Court states the case.
    The court entered judgment for plaintiff on the demurrer.
    ' Error assigned was the judgment of the court.

      E. Sunn, Jr., for appellant.
    The. forum of a justice is not a court of record, and therefore not within the meaning of the act of congress: Snyder v. Wise, 10 Pa. 157 ; Warren v. Flagg, 19 Mass. 448.

      Paul P. I. Maier and Thomas Qahall, for appellees.
    And while it is true that a simple record of a judgment obtained before a justice of the peace was held in Snyder v. Wise, 10 Pa. 157, not to be within the act of congress directing the mode of authentication of the records and judicial proceedings of the courts of the several states, yet in Rowley v. Carron, 117 Pa. 52, it was held that when by the laws of another state the transcript of a judgment of a justice of the peace filed in a court of said state was to be treated as a judgment of such court, the duly authenticated record of said court, when sued upon in this state, is entitled to the same faith and credit as though judgment had been originally obtained in the said foreign «ourt.
    November 21,1905:
   Opinion by

Beaver,-J.,

This case was submitted upon the paper-books, without argument. The sufficiency of the plaintiffs’ statement of claim, raised upon demurrer, is the only question presented by the record. It is essential, therefore, to ascertain just what, the statement avers, the facts averred being, of course, admitted by the demurrer. These are :

1. That a suit was instituted by plaintiffs against defendant before a justice of the peace in the county of Sussex and state of Delaware.

2. That the justice had jurisdiction of the premises.

3. That a summons was duly issued and served upon the defendant.

4. That, after a hearing in the justice’s court, a judgment was duly entered against the defendant and in favor of the plaintiffs for the sum of $152.11.

5. That the judgment was, by transcript, duly entered and docketed in the office of the prothonotary of the superior court of the state of Delaware, a court of record in and for Sussex county.

6. Said judgment still remains in full force and effect, not in anywise satisfied, reversed or annulled.

7. That a true and full exemplification of said judgment is brought into this court, and

8. That a true copy is annexed to and made part of the statement.

It appears by the revised code of the state of Delaware, 1893, page 754, sec. 23 of chapter 99, that “If it shall appear, by the return to an execution, that no goods can be found sufficient to satisfy the same, or any balance thereof exceeding five dollars, besides interest and costs, the creditor may file a duly certified transcript of the docket entries of the judgment and execution with the prothonotary of the Superior Court in the county where such judgment was given; and the prothonotary shall enter in his judgment docket the names of the parties, the amount of the judgment and by what justice rendered, the time from which the interest runs, and the amount of the costs, with the true date of such filing and entry; and such judgment so transferred shall from that date become and be a lien on all the real estate of the debtor in the county, in the same manner and as fully as judgments rendered in said Superior Court are liens, and may be executed and enforced in the same way as judgments of the said court.”

The exemplification of the record of the superior court of Delaware for the county of Sussex affirmatively shows that the requirements of the law of the state of Delaware have been complied with. The record is certified, in accordance with the act of congress, by the certificate of the prothonotary of the said court, the certificate of the chief justice thereof and the certificate of the prothonotary that the chief justice who made the attestation was, at the time of making thereof, and still is, chief justice of the state of Delaware and, as such, the presiding judge of the superior court of the said state, etc. The provisions of law have, therefore, been fully complied with.

The demurrer is directed solely to the alleged insufficiency of the record in the superior court of Delaware but the statement of claim, taken in connection with the record and the law of the state of Delaware above referred to, supply all the alleged deficiencies contained in the demurrer. The statement is to be taken as a whole. How its averments were to he maintained, in case of a defense made by the defendant, is another question and need not be here discussed. It is true that in Snyder v. Wise, 10 Pa. 157, it was held that “A judgment before a justice of the peace in another state is not within the act of congress directing the mode of authentication of the records and judicial proceedings of the courts of the several states; and, if it were, a copy of the proceedings, not certified to be attested according to the form used in such state, is not evidence.” That, however, was an exemplification of a record of a judgment before a justice of the peace which had not been entered in a court of record. The case has no application whatever to the one now under consideration. It is more nearly ruled by Rowley v. Carron, 117 Pa. 52, in which Mr. Chief Justice Gordon said:

“ The argument on part of the plaintiff in error assumes that the entry of the justice’s transcript, in accordance with the Ohio statute, did not make it a judgment of that court; for it seems to be conceded that if, under the laws of that state, it is to be treated as a judgment of the common pleas, it must, under the fourth article of the constitution of the United States, be so treated in this state. We must give ‘full faith and credit ’ to the public acts, records and judicial proceedings of the state of Ohio. What, then, was the credit given to these proceedings in the courts of that state ? Did the entry of the transcript give it the force of a judgment.of the common pleas ? If so, it is beyond the reach of collateral inquiry either in that state or this. But to determine this question we need go no farther than the Ohio statute itself.' That statute provides for the entry of the transcript in the common pleas, and by force of such entry it becomes a lien on the defendant’s real estate. It further provides, sec. 5379: ‘ Execution may be issued on such judgment at any time after filing the transcript as if the judgment had been rendered in court; but the lien to remain as provided in the preceding section.’ From this it follows that the ‘ credit ’ given to an entry of this kind in Ohio is the same as if the judgment had been rendered in the court of common pleas. This determines its status in this state; hence, the court below was right in refusing to sustain the defendant’s objection, and in admitting the transcript in evidence.” In that case, it is true, it was a question of the admission of the exemplification of the record in evidence. Here it is a question of making the exemplification the basis of an action for the recovery of the judgment therein certified, but the principle is precisely the same in both cases.

We have no opinion of the court below in the case, but it is to be presumed that the statutes of Delaware were considered by that court in the consideration of the demurrer to the sufficiency of the statement. This statement in our view fills all the requirements of a good cause of action, and the demurrer was properly overruled.

Judgment affirmed.


author: Orlad y, J.,

text:
    McAllister, Appellant, v. Morgan.

      Sale — Contract—Warranty.
    To constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty itself, nor evidence of it. In con- ■ nection with other circumstances, it certainly may be taken into consideration; but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation.

      Sale — Contract—Warranty—Principal and agent — Evidence—Question for jury.

    In an action to recover the price paid for a horse which had failed to fulfill a warranty, the plaintiff offered evidence which tended to show that he had bought the horse at a sales stable belonging to defendants, that the price was fixed by a person in apparent authority, and its payment was made directly to the defendant firm, who gave their personal receipt on their prepared blank form for the price paid. While they were yet in the midst of the deal, the man in apparent authority to receive and receipt for the purchasS>price, stated, “the horse has got to be as represented, or you can return him.” The horse proved to be unsound and plaintiff subsequently complained to one of the defendants that the horse was unsound, and the' latter said “come out and he will give you another horse.” Defendants offered testimony tending to show that the.person who sold the horse did not represent them; that the transaction was with him as an individual; that the acceptance of the check and giving the receipt were merely formal in their way of doing business; and that the defendant firm did not receive any share of the price paid, or any commission or profit from the sale. Held, that the case was for the jury.
    Argued Ocfc. 18, 1905.
    Appeal, No. 185, Oct T., 1905, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1903, No. 3724, on verdict for defendants in case of Richard McAllister v. David C. Morgan and Michael M. Sullivan, co-partners, trading as Morgan & Sullivan.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit to recover back the purchase price of a horse. Before Davis, J.
    The facts are stated in the opinion of the Superior Court.
    . The court gave binding instructions for defendant. Plaintiff' appealed.
    • Error assigned was in giving binding instructions for de-. fendant.

      Charles Knittel, for appellant.

      Alex. Simpson, Jr., for appellees.
    November 20, 1905:
   Opinion by

Orlad y, J.,

The plaintiff selected a horse at the defendants’ sales stables through bargaining with one Burrows. The plaintiff’s testimony was as follows : “ I looked at the horse and asked him1 what he wanted for it, and he said $200. I said, ‘Is he. sound?’ He said ‘Yes, lie is sound.’ I said I wanted a horse for a family horse, and I want him free of being afraid of engines or anything, perfectly fearless of every object, and he said he was. I said ‘ I will give you $185 for the horse,’ and he said, ‘ All right you can have it.’ Then he walked into the office of Morgan & Sullivan. I didn’t have a check-with me and asked a clerk to give me a blank check, which he did, I said, ‘ Who shall I make the check to ? ’ and he said ‘ Morgan & Sullivan,’ I made out the check and he gave me a receipt. I turned to the man who gave me the receipt, and said, ‘ If the horse is not as represented you will take him back ? ’ He said, ‘Yes; he has got to be as represented or you can return the horse.’ ” After a trial, the horse was found to be wind broken and heavy so as to be unfit for use, which condition appears to be conceded. When Burrows was informed that the horse was not as represented, he stated, “We will give you another horse” and, when Mr. Sullivan of the defendant firm was informed that the plaintiff had been there several times and wanted another horse or his money, he stated to the plaintiff, “ You come out, and he will give you another horse.” The check given, was to the order of Morgan & Sullivan, who indorsed it and received credit therefor in their bank. The receipt given was signed, “ Morgan & Sullivan ” by their duly authorized clerk. After three efforts to secure a horse the plaintiff withdrew from further efforts in that direction and demanded his money, for which he brought this suit. The defense was that Burrows did not in any manner represent the defendants; that the transaction was with him as an individual; that the acceptance of the check and giving the receipt were merely formal in their way of doing business ; that the defendant firm did not receive any share of the price paid or any commission or profit from the sale. The court below directed a verdict for the defendant, for the reason that there was no evidence to show that Burrows had any authority or right to warrant the horse, if the horse had been the property of the defendants. Was the proof sufficient to have the question of warranty and ownership of the horse submitted to the jury ?

In McFarland v. Newman, 9 Watts, 55, the rule is laid down by Judge Gibson, which has not been departed from, as follows : “To constitute a warranty requires no particular form of words, the naked averment of a fact is neither a warranty itself, nor evidence of it. In connection with other circumstances, it certainly may be taken into consideration; but the jury must be satisfied from the whole that the vendor actually, and not constructively, consented to be bound for the truth of his representation. Should he have used expressions fairly importing a willingness to be thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis ; but, a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it for not to have exacted a direct engagement, had he desired to buy on the vendor’s judgment, must be accounted an instance of folly.”

On review of the whole evidence, the business methods of the defendant were, to put it in the mildest form, so very exceptional, that, without explanation, a reasonable inference to be deduced from the whole transaction, would be, that they were the owners of the horse, and that they stood ready to redeem the pledge and representation inducing the sale which had been made by Burrows, to wit: that the horse was sound and safe. On the one side, we have the facts that the horse was in their sales stable, the price was fixed by Burrows, its payment was made directly to the firm who gave their personal receipt on their prepared blank form for the price paid. While they were yet in the midst of the deal, the man who was placed by them in authority to receive and receipt for the purchase price stated, “ the horse has got to be as represented or you can return him; ” Sullivan’s statement, “ come out and he will give you another horse ” the proffer of a second and a third horse in substitution of the condemned one, all of which reasonably indicated a community of interest and concert of purpose in effecting the sale. On the other hand, the defendants offered a full explanation of the whole affair which they claimed relieved them of all liability. The evidence was conflicting in the inferences to be drawn from it, and whether the defendants’ theory should be accepted as satisfactory would depend upon the credence to be given to it. The intended meaning and effect of' the words used and the conduct of the parties was for a jury to determine and not for the court as a matter of law: Jackson v. Wetherill, 7 S. & R. 480; McFarland v. Newman, 9 Watts, 55; Maynes v. At-water, 88 Pa. 496; Holmes v. Oil Co., 138 Pa. 546; Holmes v. Tyson, 147 Pa. 305; Speers v. Knarr, 4 Pa. Superior Ct. 80; Herman v. Brinker, 17 Pa. Superior Ct. 177. The action was founded upon a warranty and its existence depended upon the interpretation of conflicting oral testimony, so that the question should have been submitted to the jury under proper instructions.

The assignment of error is sustained, the judgment is reversed arid a venire facias de novo awarded.


author: Beavee, J.,

text:
    Keats v. Gas Company of Luzerne County, Appellant.

      Waters — Damages—Evidence.
    In an action to recover damages for injuries to property caused by the damming up of a stream, where the plaintiff describes the condition of the property immediately after the injury, a witness for the plaintiff may be permitted to testify as to the costs of the repairs necessary to restore the property to its former condition, although the estimate was made two years after the flood. SucH testimony although incompetent taken by itself, becomes competent when taken in connection with the testimony of the plaintiff.
    In such a case where it appeared that the injuries were caused during an extraordinary flood by the accumulation of debris against defendant’s gas pipe which crossed the stream beneath a bridge, the defendant may show that during extraordinary floods prior to the placing of the gas pipe across the stream, the banks overflowed and injured plaintiff’s property.
    In a doubtful case, it is better to admit testimony offered that may be competent and-relevant from any point of view, and determine later whether or not the testimony meets the requirements of the offer. This is particularly true when offers have been amended a number of times, in order to meet objections raised by counsel or by the court in ruling them out.
    In an action to recover damages for injuries to property by reason of a flood, it is proper to admit testimony as to the general character of the flood, as to the amount of rainfall and snow, and the condition of the temperature at the time of the flood.

      Waters — Damages—Measure of damages — Charge of the court.

    In an action to recover damages for injuries caused by flooding the banks of a stream, the court refused the following point: “The measure of damages to plaintiff’s premises, the injury not being shown .to be permanent, is the cost of restoring it to its former condition, together with compensation for the loss of its use.” All that the court said in its general charge on the question of damages was that “the cost of remedying the injury to the real and personal property is the true measure of damages.” Held, that the refusal of the point was error and that the instruction as to damages was wholly inadequate.
    Where an injury to a house is not of a permanent character the measure of damages is the cost of restoring the property to its former condition, together with compensation for the loss of its use, unless such costs should exceed the value of the building, in which case such value would be the measure of damages.
    In an action to recover damages to land by the flooding of a stream, if it appears that the negligence of the defendant conspired with the act of God to cause the injury, and that the injury was due primarily to the negligence of the defendant, the latter is liable.
    Argued Jan. 12, 1905.
    Appeal, No. 67, Jan. T., 1905, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1902, No. 889, on verdict for plaintiff in case of Martha Keats v. Gas Company of Luzerne County.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Reversed.
    Trespass to recover damages for injuries to real estate. Before Lynch, P. J.
    At the trial it appeared that on December, 1901, plaintiff’s property was flooded during an extraordinary flood, and injuries sustained for which this suit was brought.
    The plaintiff claimed that the injuries were due to the blocking up of a stream by the gas pipe of defendant company.
    When H. B. Emory was on the stand, he was asked this question:
    Q. State what it would cost, what you estimate it would cost, to restore this building as you have figured it there ?
    Defendant’s Counsel: Q. When did you examine the building? A. December 1, 1908. Q. That is the first time you examined it? A. Yes, sir.
    Defendant’s Counsel: We object.
    The Court: Objection overruled, exception noted, bill sealed for the defendant.
    A. $228, that is what it would cost to put the building in proper order again.
    Q. What, in your judgment, would have been the fair value for replacing that, or for putting in that new wall that you saw ?

      Defendant’s Counsel: We object.
    Plaintiff’s Counsel: I propose to show by the witness what it was reasonably worth.
    Defendant’s Counsel: We object to this because the witness is not familiar with the wall at the time it was built or rebuilt, and don’t know to what extent it was necessary to rebuild it or refix it.
    The Court: Objection overruled, exception noted for the defendant, bill sealed. [1]
    Q. What in your judgment would be a fair estimate of the cost of rebuilding that wall that you say you saw rebuilt there ? A. The size of the kitchen, I think, is twelve by fourteen and thirty-eight feet around, $46.50.
    When Ira Hartwell was on the stand the following offer was made :
    Defendant’s Counsel: I propose also to prove by the witness that extraordinary floods were there for the last time in 1880, and that there was no gas pipe or gas main under any of the bridges, and that at that time the banks overflowed and inundated, among others, the property in question.
    Plaintiff’s Counsel: Objected to for the same reason.
    The Court: Objection sustained, exception noted for the defendant, bill sealed. [4]
    Verdict and judgment for plaintiff for $443. Defendant appealed.

      Errors assigned were (1-17) various rulings on evidence, quoting the bill of exceptions ; (18) portions of charge quoted in the opinion of the Superior Court; (20) refusal of defendant’s second point quoted in the opinion of the Superior Court.

      James L. Moms and John T. Lenahan, for appellant.
    The court erred in permitting a witness, Howard B. Emory (who first saw the damaged property in December, 1903, two years after the occurrence and when the damages had been repaired), to give an estimate of the amount of damages and the cost of the repairs that had been made: Michael v. Pipe Line Co., 159 Pa. 99.
    Error in refusing to allow the defendant to show fully all the particular and peculiar circumstances and surroundings of the stream whose overflow caused the alleged damages, and to establish that these and the admitted extraordinary flood would have caused the plaintiff’s injuries independently of any negligence on the part of the defendant: Michael v. Cresent Pipe Line Co., 159 Pa. 99; Brown v. Railway Co., 183 Pa. 38; Livezey v. Philadelphia, 64 Pa. 106; B. & O. R. R. Co. v. Sulphur Spring Independent School Dist., 96 Pa. 65; Helbling v. Allegheny Cemetery Company, 201 Pa. 171.
    There was error in the court’s instruction to the jury as to defendant’s negligence and the measure of damages.

      James L. Lenahan, for appellee.
    November 21,1905:
   Opinion by

Beavee, J.,

The plaintiff brought her action of trespass against the defendant to recover for damagesto her dwelling house and lot occasioned, as she alleged, by the overflow of a stream across which a dam was formed by the debris carried down the stream against the gas pipe of the defendant which crossed the stream beneath a bridge which spanned it.

The situation is graphically described by a witness of the plaintiff who said, in answer to queries : “ Q. What did you see ? A. I saw an old tree stuck in there against the pipe and against them braces, and a lot of old doors from the Ashley shops and rubbish and briars and everything, right in there tight up against the pipe. Q. Was the water passing under the bridge then or going out the other side above the bridge ? A. Going out the other side. There was a little going through, but not much. Q. How was the creek on the lower side of the bridge with reference to the channel being full or not ? A. It was not overflowing the banks on the lower side of the bridge.”

The jury having found for the plaintiff, the conditions described have been found to have existed and the responsibility of the defendant is thereby established.

We have twenty-one assignments of error, which are discussed under three distinct propositions by the appellant.

1. The first is as to the admission of the testimony of a witness of the plaintiff who testified as to the damages sustained by the plaintiff, based upon the cost of the repairs necessary to restore the property to its former condition. The testimony of this witness would of itself have been incompetent, inasmuch as he made the estimate after the repairs had been made and two years from the time of the flood had elapsed. Taken in connection, however, with the testimony of the plaintiff, we think it was competent. The testimony was submitted in connection with that of the plaintiff. The jury could, therefore, first determine whether the testimony of the plaintiff as to the condition of the property after the flood was credible and, assuming it to be true, whether or not the testimony of the witness, based upon information furnished by her, was to be believed. Full opportunity for cross-examination was given and upon a careful examination of the testimony, we can see no error in its admission.

2. In a number of offers, running through various assignments of error, the defendant finally made the following offer: “I propose now to prove by the witness that in 1879 and 1880 this creek was in the same condition as it was in the flood of 1901, as to the height of the banks and the condition generally of the land adjacent to the creek, including the property in dispute; that in those years there were several extraordinary floods ; that no extraordinary flood has been had there since, until the flood in question, and that during those floods in the later seventies and fore part of eighty, the banks overflowed properties along the creek, among them the property in question, and that at the same time there were no obstructions in the way of gas pipe, or anything of that kind, or any bridge to interfere with the natural flow of the water. I propose also to prove by the witness that extraordinary floods were there for the last time in 1880 and that there was no gas pipe or gas main under any of the bridges, and that at that time the banks overflowed and inundated, among others, the property in question.” If the offer had gone a little further and had offered to prove that the property was damaged as well as overflowed or inundated, there could have been no question as to the admissibility of the offer. Even as the offer was made, it may have had some relevancy from some points of view. Why the defendant should have offered the testimony, however, and why the plaintiff should have objected to it is not clearly apparent, the inference being irresistible, if the offer had been made good, that, if the stream was unable to vent the water without the bridge and the gas pipe, it would certainly have been impossible for it to have done so with these hindrances in the way so that the flood drift lodged as shown by the plaintiff’s testimony. That, however, is a question for the defendant. In a doubtful case it is better to admit testimony offered that may be competent and relevant from any point of view, and determine later whether or not the testimony meets the requirements of the offer. This is particularly true when offers have been amended a number of times in order to meet objections raised by counsel or by the court in ruling them out. We are of opinion that it would have been wiser to have heard the testimony notwithstanding the fact that the conditions in regard to the bed of the stream had been entirely altered by the erection of the bridge and the suspension by the defendants of a gas pipe six inches in diameter, 3.6 feet above the ordinary level of the water, the distance from the top of the pipe to the lower edge of the girder being 4.4 feet. Whilst no one could say as a matter of fact, what the effect of the flood might have been if the bridge and gas pipe had not been there, the facts as proposed if they had been proved would have enabled the jury to draw some inferences which might have been of use in determining the question at issue. These remarks will apply to offers of a similar character as to the testimony of several other witnesses. We therefore conclude that the offer should have been admitted.

The offer relating to the general character of the flood, as to the amount of rainfall and snow and the condition of temperature existing at the time of the flood, were fairly admissible. It seems to us, therefore, that the sustaining of the objections complained of in the 12th, 13th, 14th, 15th, 16th and 17th assignments of error was erroneous, although as to some of them it appears that the court did not sustain the objections on the ground that the evidence was irrelevant and immaterial, but that the facts stated in the offer had already been shown.

3. The defendant presented several points for charge, all of which were practically affirmed, with the exception of the first and second, the second being : “ Second, The measure of damages to plaintiff’s premises, the injury not being shown to be permanent, is the cost of restoring it to its former condition, together with compensation for the loss of its use.” This point was negatived by the court. It is practically admitted by the appellee that it could properly have been affirmed, as containing the proper measure of damages, but it is averred that practically the same rule as to the measure of damages was laid •down in the general charge and that the appellant was not injured, because the point was not read and that, therefore, the jury was not informed in any way as to the character of the ruling. We do not agree with this contention. It is not necessary to argue that the point contained the proper measure of damages, nor is it necessary to cite authorities upon the subject. In his charge the trial judge, in commenting upon the province of the jury, finished the paragraph by saying: “ The cost of remedying the injury to the real and personal property is the true measure of damages.” This is the only reference to the subject which was a vital question and called for specific instructions. Whilst the remark of the trial judge was correct so far as it went, it did not cover the entire subject, nor was it emphasized in such a way as to call the particular attention of the jury to it. The true rule, as laid down in 13 P. & L. Dig. of Dec. 22,773, is, “Where an injury to a house is not of a permanent character, the measure of damages is the cost of restoring the property to its former condition, together with compensation for the loss of its use, unless such costs should exceed the value of the building, in which case such value would be the measure of damages.”

The defendant’s point clearly outlined the true measure of damages.. It was correct in principle and clear and intelligible in form and substance. It was not alleged that the damages sustained exceeded the value of the building and hence the point covered the entire ground. The defendant was, therefore, entitled to have it affirmed, particularly in view of the fact that the rule had not been clearly and fully set forth in the general charge. The general rule of the cases, as gathered in 2 P. & L. Dig. of .Dec. 2600, is that “ An answer may also be by reference to the general charge, if this sufficiently covers the point; and the refusal of a point fully covered in the general charge is not assignable for error. A point may be refused without being read to the jury, if the law applicable to the case has been correctly stated in the general charge, or the reading of the point would tend to mislead the jury; and, when the general charge only indirectly covers points, their refusal, without being read to the jury, except to the extent to which they are covered in general charge, is a sufficient answer.”

4. The eighteenth assignment of error complains of the language employed by the trial judge in the general charge, in which he says, quoting the entire sentence, of which the defendant assigns for error but a portion : “ If the rise of water and consequent injury to plaintiff’s property, in case it was injured, was due wholly and entirely to the act of God in making a great flood, the company should not pay. But, if the company were partly negligent and its negligence produced injury to this woman’s property, it must pay.” Strictly speaking, the company could not be partly negligent. It was either negligent or it was not so. What the court evidently meant was that if the negligence of the company conspired with the act of God to cause the injury, and the injury was due primarily to the negligence of the company, it was liable. The principle is correct. The form of its statement is perhaps somewhat objectionable, although we would not regard it ground for reversal, if it stood alone.

We regard the refusal of the court to affirm the defendant’s second point as the principal error in the ease. How far the defendant’s case was hurt by the ruling out of the testimony contained in the offers as to which complaint is made there may be a question; but, so far as they were in any way relevant, they should have been received, and, inasmuch as the case goes back for a new trial, we have devoted some space to their consideration.

Judgment reversed and a new venire awarded.


author: Pobteb, J.,

text:
    Porter v. Weightman, Appellant.

      Mechanic’s lien — Character of building — Alteration and repairs — New structure — Act of June 4, 1901, P. L. 431.
    When the facts are ascertained or undisputed, it is for the court to determine what does or does not constitute new buildings.
    Where the new part of the external walls and roof of a building are in precisely the same position which had been occupied by a part of the building torn away, and the interior arrangement remains unchanged, the operation is not a substantial addition to a building within the meaning of the Act of June 4, 1901, P. L. 431, but a work of restoration and repair, the substitution of new work for old in a part of the building which had fallen into decay.
    Argued Oct. 13, 1905.
    Appeal, No. 57, Oct. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1901, No. 85, on verdict for plaintiff in case of Thomas Porter v. William Weightman, deceased, Anne M. Walker, substituted defendant.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Scire facias sur municipal lien. Before Willson, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court refused binding instructions for defendant.
    Yerdict and judgment for plaintiff for 1173.50. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      John Kent Kane, with him Hampton L. Carson, for appellant.
    When the facts are ascertained or undisputed, it is for the court to determine what does or does not constitute new buildings: Norris’s App., 30 Pa. 122; Patterson v. Frazier, 123 Pa. 414; Mehl v. Fisher, 13 Pa. Superior Ct. 330; Caldwell v. Keating, 18 Pa. Superior Ct. 297; Dunbar v. Washington Foundry, 210 Pa. 58.
    The words of the act must mean such a substantial change of a building as practically alters the character of the whole building: Thompson’s App., 3 Pa. Superior Ct. 643; Miller v. Hershey, 59 Pa. 64; Goeringer v. Schappert, 17 Pa. Superior Ct. 293.
    In all cases where work has been held to be a new erection, the alterations were so substantial as to make practically a new building of the entire structure, although part of the original structure may have entered into its construction: Caldwell v. Keating, 18 Pa. Superior Ct. 297 ; Kolb v. Reformed Episcopal Church, 18 Pa. Superior Ct. 477; Hothersall v. Rust, 18 Pa. Superior Ct. 495.

      Francis G. Taylor, for appellee,
    cited: Dunbar v. Washington Foundry, 210 Pa. 58.
    November 21, 1905:
   Opinion by

Pobteb, J.,

This is a scire facias upon a mechanic’s lien. The lien described the building against which it was filed as a two-story brick factory building, “ situate on the east side of Palm street, and extending northwardly and southwardly from the north side of Brown street to the south side of Parrish street and eastwardly and westwardly from the east side of Palm street to the west side of Kessler street and its continuation where it •runs into Ninth street, containing in front or breadth on the south side of Parrish street one hundred feet, and on the north side of Brown street one hundred feet, seven-eighths of an inch, and on the west side of Kessler street, and its continuation where it runs into Ninth street, three hundred sixty-seven feet eight and one-quarter inches.” The defendant filed an affidavit of defense averring that the work was not done in and about the erection of a new or original structure, but merely the alteration and repair of an old building; and that the claimant had not served the written notice upon which his rignt to file a lien for work of this character was dependent.

It was, at the trial in the court below, “ agreed between counsel that the work was done by Thomas Porter, who furnished the labor and materials as set forth in the lien, that the notices required by the act of assembly, if this be a new erection, were given, but if it was merely an'alteration and repair of an old building, the notices required by the act were not given, and that the question here is simply whether or not.this is such a substantial addition to a building as to be a new structure under the act of assembly of 1901.”

The plaintiff produced evidence as to the character of the old building, the extent and details of the new work and its relation to those parts of the old building which remained unchanged, and the effect of the work upon the building as a whole. The defendant offered no testimony; there was no dispute as to the facts, nor could conflicting inferences be drawn from them. The factory, or chemical works, of the defendant occupied the entire block bounded by Brown, Palm, Parrish and Kessler and Ninth streets, there was in the middle an open court to which access was had through a gateway. The operation in which the claimant did the work for which he now asserts the right of lien consisted of tearing down a'section of the building on the Ninth street side and rebuilding it upon the same lines. The east front of the building, along Kessler and Ninth streets, was 367 feet substantially as stated in the lien, and for a large part of that distance was two stories in height, but it did not, as incorrectly stated in the lien, continue of the same height throughout the entire distance, a part next to Parrish street being three stories high. There were windows in the wall of this eastern side, but no openings for entrance to the building, to the various parts of which access was had from the courtyard. The roof over this entire two-story part of the building was continuous and under that roof no division was extended from the ground to the roof. The only manner in which one part of this two-story building was divided from another was by cross-walls, which extended up one story to the joist or tiebeams, upon which some boards were laid but not so closely that they could be called a floor, above this up to the roof the entire two-story building was open through from end to end. One of the rooms into which the building was thus divided was used for the manufacture of acid, which in time so affected the mortar in the walls that they became weakened and unsafe, and to remedy this condition the work in question was undertaken. Fifty-six feet of the wall of the two-story building on the side next Ninth street and the foundation under it were removed, a corresponding section of the parallel wall twenty-five feet to the westward, along the interior courtyard, was torn down to the top of the founda* tion; one of the cross-walls extending from the floor to the joist above the first story was torn down, and fifty-six feet of the roof was removed. The part of the foundation removed on the Ninth street side was replaced with new work, and the part of the brick wall above it which had been removed as well as the part upon the side next the courtyard each of which had formerly been nine inch walls, were replaced by new walls, built upon the same external lines, but each thirteen inches thick; a new cross-wall was built, of the same thickness and height as that which had been torn down, and the part of the roof which had been torn out was replaced by new work, upon the same lines with the old. When the work was completed the entire two-story part of the building was again covered by a continuous roof, precisely as it had been before the work was commenced, the external walls stood upon the identical ground which they had formerly occupied; so far as external appearance was concerned, the only change which had taken place was that a fraction of the wall on the Ninth street side, as well as upon the side next the courtyard, was new., where it had formerly been old. The interior arrangement of the building remained the same, there was no adaptation of an old structure to a new or distinct use, the appliances for carrying on the branch of the business to which the room was devoted, and the brick pavement upon the ground floor, had remained in position during the entire process of replacing the old and weakened part of the building with new and stronger walls.

When the facts are ascertained or undisputed, it is for the court to determine what does or does not constitute new buildings : Norris’s Appeal, 30 Pa. 122; Patterson v. Frazier, 123 Pa. 414; Mehl v. Fisher, 13 Pa. Superior Ct. 330 ; Caldwell v. Keating, 18 Pa. Superior Ct. 297. Had the room in which this manufacture of acid was carried on been situated in a detached building and the walls had become so weakened that it had been necessary to rebuild them and put on a new roof, there could have been no question that the operation was a new erection. That however is not this case; the parts of the roof and walls removed and replaced with new work were structurally incorporated with a much larger building, of which the room in question was a mere fraction. The plaintiff recognized this fact and filed his lien against the building ás a whole, and the evidence clearly established that the new work had become incorporated into a building, which could not be cut into fragments for the purposes of lien: Hothersall v. Rust, 18 Pa. Superior Ct. 495. The evidence clearly established that the entire building had not become new in its main mass, so as to be considered in its entirety a new construction: Miller v. Hershey, 59 Pa. 64; Thompson’s Appeal, 3 Pa. Superior Ct. 643; Caldwell v. Keating, 18 Pa. Superior Ct. 297. The work did not result in the adaptation of an old structure or other improvement to a new or 'distinct use which effected a material change in the interior or exterior thereof,” so as to be deemed an erection or construction, under the provisions of the Act of June 4, 1901, P. L. 431. The learned counsel representing the plaintiff, recognizing the futility of attempting to recover upon any other ground, entered into the agreement, in the court below, “ that the question here is simply whether or not this is such a substantial addition to a building as to be a new structure under the Act of June 4, 1901, P. L. 431, section 3.” The evidence clearly established that the work resulted in adding not one cubic inch of space to -the building. The new part of the external walls and roof were in precisely the same position which had been' occupied by the part torn away, .and the interior arrangement remained unchanged. The operation was not a substantial addition to a building, within the meaning of the statute, but a work of restoration and repair, the substitution of new work for old in a part of the building which had fallen into decay. The request of the defendant for binding instructions ought to have been affirmed.

The judgment is reversed.