text:
    Ebert, Appellant, v. Kaufmann.

      Equity — Sale of business — Agreement not to do business — Estoppel— Laches.

    Where a person sells a business of baking and catering under an agreement not to engage in the same business within -a certain time thereafter and within certain limits, and almost immediately after-wards starts the business of catering within the forbidden limits, the other party to the agreement or his assignee, cannot maintain a bill in equity for an injunction against the seller, where it appears that the latter began the business of catering but not baking shortly after the sale, that the complainant aided and encouraged him in such business, saw him expend money therein, and delayed for a year and a half before filing the bill.
    Argued Oct. 6, 1909.
    Appeal, No. 25, Oct. T., 1909, by plaintiff, from decree of C. P. No. 3, Phila. Co., Sept. T., 1907, No. 3,872, dismissing bill in equity in case of Carl Ebert v. William Kaufmann.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Moschzisker, J., found the facts to be as follows.
    1. William Kaufmann for several years carried on the business of a baker, caterer, confectioner and ice cream dealer at No. 8103 Frankford avenue, in the city of Philadelphia.
    2. On May 3, 1905, William Kaufmann sold said business to Louis Ebert for $3,500, $3,000 in cash and a note for $500, possession to be taken May 20, 1905, and received on account $150, the balance of cash to be paid May 18,1905, the following paper being then signed:
    “Philadelphia, 5-3-05.
    “W. M. Kaufmann,
    “Sold to Louis Eberts Cake Bakery and contents 8103 Frankford Ave., and Mill St., Good-will, stock and fixtures for Thirty-five hundred dollars. Three Thousand dollars cash; Five hundred in 6 mo. at 3% interest; to be taken possession of May 20,1905.
    “ Cash on acct. One hundred and Fifty Dollars.
    “ Cash to be paid May 18, 1905.
    “ Louis Ebert,
    “ Wm. Kaufmann.”
    3. At the time of this sale it was agreed by William Kaufmann that he would not engage in the same business within ten years within five miles of No. 8103 Frankford avenue.
    4. On May 20, 1905, the note was given and the balance of the purchase money paid by Louis Ebert to William Kaufmann, and the agreement restricting Kaufmann was then put into writing by Kaufmann and signed by him, as follows:
    “Philadelphia, Pa., May 18,1905.
    “Received of Mr. Louis Ebert of Philadelphia thirty-five hundred dollars, thirty hundred cash and five hundred on three months’ note for good-will and fixtures, horses & wagons and everything on premises -8103 Frankford Ave. belonging to a Steam Bakery, Confectionery, Ice Cream and Catering Business, and I hereby bind myself under penalty of five thousand dollars not to engage in the same business within ten years within 5 miles of the present location.
    “ (Signed) Wm. Kaufmann.”
    5. On August 1, 1905, Louis Ebert sold the business so purchased by him from the said William Kaufmann to Carl Ebert, the complainant in this case, in which sale was included all the stock and fixtures pertaining to said business, together with the good-will thereof, to the same extent and as fully as the same was then vested in said Louis Ebert by virtue of the sale thereof made to him by the said Kaufmann. At the time of this purchase by Carl Ebert he had full knowledge of the conditions entered into by Kaufmann restricting him from engaging in the same business, as before found.
    6. Carl Ebert paid a full legal consideration for the purchase of the business, and went into possession thereof and is still in possession thereof at the location before mentioned.
    7. The defendant, William Kaufmann, lives at No. 8531 Frankford avenue, which is about four squares from the place of business of the complainant.
    8. On June 1, 1906, the defendant, William Kaufmann, advertised himself as a caterer at No. 8531 Frankford avenue, prepared to serve weddings, receptions, banquets, luncheons, etc., in certain local newspapers and by sending out a circular, as shown on p. 7 et seq., of the notes of testimony.
    9. In March, 1906, William Kaufmann, the defendant, came to the complainant and told him that there was to be a wedding in the neighborhood, and that Mr. Travis, the man who was to give the reception, intended to go to another caterer, and that he, Kaufmann, had secured the contract for the work. Kaufmann said to the complainant, “I thought I would do the work so the work would not go to the city. Will you make the cakes for me?” The complainant testified, “At first I hesitated a moment, and at last I said, ‘Yes, sir,’ and that was all the conversation that took place.” The complainant made the cakes and sold them to Kaufmann, knowing that Kaufmann was to act as caterer in violation of the terms of the written contract made with Louis Ebert on May 18, 1905. The complainant allowed Kaufmann to use his wagon,, china and linen and equipment necessary in carrying out this engagement.
    10. Subsequent to that date William Kaufmann, the defendant, continued to do catering business and gave to the complainant several orders to supply him with goods. The complainant accepted and carried out these orders, knowing that Kaufmann was purchasing the goods from him in order to act as caterer in violation of the terms in the written contract of May 18, 1905. The complainant furnished the defendant with linen and napkins in carrying out one of these engagements.
    11. No objection was made by the complainant to the fact that Kaufmann was acting as caterer for various functions, until about the time of the filing of the bill in equity in November, 1907.
    12. William Kaufmann, the. defendant, has not opened a store at the location No. 8531 Frankford avenue for a baker shop, steam bakery, confectionery or ice cream place, but simply has a sign out in front of his door stating that he is a caterer, and the only business carried on by him is the catering business.
    13. The catering end of the business-purchased by Louis Ebert from William Kaufmann, and sold by Louis Ebert to the complainant, was not the main or principal branch of the business. The principal part of the business was the bakery, and the next most important part was ice cream, the catering part being a minor but substantial branch of the business.
    14. From March 16, 1906, to March 3, 1908, the defendant was engaged in the catering business and filled some twenty catering orders, the profit from which amounted to at least 1150. In these orders were included at least four for which the complainant furnished the supplies and to some of them the equipment, and one other reception where the complainant was present as a guest.
    15. The defendant, Kaufmann, has gone to a considerable-•expense in equipping himself for carrying on the catering bust-. ness, all of which was incurred after March 16, 1906, the date when the complainant first had knowledge of the fact that the defendant was engaging in that business, said defendant having purchased a wagon, linen, plates, etc., as an equipment. After having incurred this expense, the defendant and the complainant became business enemies, and after that the bill was filed.
    CONCLUSIONS OF LAW.
    The court has reached and states the following conclusions of law:
    1. The terms of the written agreement of May 18, 1905, were part of the sale from William Kaufmann to Louis Ebert, consummated May 3, 1905.
    2. The catering business as recently carried on by the defendant would, in the absence of a waiver on the part of the complainant, be a breach of the covenant of the defendant of May 18, 1905, not to engage in the business sold by him on May 3, 1905.
    3. The complainant, by his acquiescence and consent, and by taking an active part in the catering done by the defendant, has waived his right under the contract of May 18, 1905, to have the defendant restrained from continuing in said business, so that he is now estopped from asking the relief prayed for in the bill.
    ' 4. The bill must be dismissed at the costs of the complainant.

      Error assigned was decree dismissing the bill.

      J. S. Freeman, for appellant,
    cited: Patterson v. Lytle, 11 Pa. 53; Beaupland v. McKeen, 28 Pa. 124; Miller’s App., 84 Pa. 391; Hill v. Epley, 31 Pa. 331; Chapman v. Chapman, 59 Pa. 214; Wickham v. Twaddell, 25 Pa. Superior Ct. 188; Com. v. Moltz, 10 Pa. 527; Ryman v. Gerlach, 153 Pa. 197; O’Connor v. Clark, 170 Pa. 318; Rhawn v. Edge Hill Furnace Co., 201 Pa. 637.

      Charles J. Sharkey, with him F. Pierce Buckley, for appellee,
    cited: Fruit Co. v. Roberts & Co., 8 Pa. Superior Ct. 500; Hohenstein v. Perelstine, 37 Pa. Superior Ct. 540; Snyder v. Smyth, 224 Pa. 36; McIntosh v. Ropp, 222 Pa. 606; Tozier v. Brown, 202 Pa. 359.
    March 3, 1910:
   Opinion by

Orlady, J.,

The defendant conducted a business of baker, caterer, confectioner and ice cream dealer, and on May 18, 1905, sold his general business to Louis Ebert and gave the following receipt: “Philadelphia, Pa., May 18, 1905. Received of Mr. Louis Ebert of Philadelphia $3500., $3000 cash, and $500. on three months’ note, for good will and fixtures, horses and wagons and everything on premises 8103 Frankford Ave., belonging to a steam bakery, confectionery, ice cream and catering business, and I hereby bind myself under penalty of $5000 not to engage in the same business within ten years within five miles of the present location. Signed: William Kaufmann.”

Some months thereafter Louis Ebert sold the business purchased as above to his brother Carl Ebert, the complainant in this case. In the spring of 1906, Kaufmann who had removed to 8531 Frankford Ave., commenced to do a catering business and advertised in local newspapers that he was prepared to serve at weddings, receptions, banquets, luncheons, etc. On November 1, 1907, this bill in equity was filed, praying for an injunction to enjoin and restrain Kaufmann from carrying on the catering business and for an accounting. After a demurrer to the bill had been overruled, an answer was filed, testimony was taken, and on final hearing, the bill was dismissed.

We have carefully gone over the testimony and agree fully with the conclusions reached by the court below. The course of business between the parties, the acquiescence and consent by Ebert that Kaufmann should solicit business, and in his effectually aiding him in complying with his contracts, the expenditures incurred by Kaufmann with the knowledge of Ebert in operating the catering business, taken with his delay in asking for equitable relief, fully warranted the court in finding that the plaintiff was chargeable with such laches, and that he was estopped from asking the relief prayed for in the bill.

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


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Moore v. Third National Bank of Philadelphia, Appellant.

      Banks and banking — Check—Set-off—Bankruptcy of depositor.

    Where a bank accepts a check for collection, and receives the proceeds on the following day without having paid out in the meantime anything on account of the deposit, it cannot apply the proceeds of the check towards a debt due by the depositor, where it appears that on the day the check was deposited for collection, but at a subsequent hour, a petition in bankruptcy was filed against the depositor.
    Argued Oct. 7, 1909.
    Appeal, No. 66, Oct. T., 1909, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,760, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John L. Moore, Trustee of the Estate of Henry E. Sealey & Co., Inc., Bankrupt, v. Third National Bank of Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit to recover money had and received.
    Rule for judgment for want of a sufficient affidavit of defense.
    Moschzisker, J., filed the following opinion:
    On January 16,1908, at 3:45 p. m., a petition was filed, praying that Henry E. Sealey & Co., Inc., be adjudged bankrupt. In due course they were so declared, and John L. Moore, the plaintiff herein, was appointed trustee. On the day that the petition was filed, but before 3 p. m., Henry E. Sealey & Co., deposited in their bank account with the defendant bank sundry checks aggregating $335.03, and received the usual credit in their pass book therefor, which checks were collected in due course on the following day by the bank. On the date of the deposit in question, Henry E. Sealey & Co. were debtors to the bank as indorsers on certain commercial paper, and the bank claims the right to retain the greater part of the deposit to cover this indebtedness. The substantial question in dispute relates to the ownership of a deposit made on the day the petition in bankruptcy was filed but at an earlier hour. The question is, Has the bank the right to retain this deposit as against the trustee of the bankrupt estate?
    The plaintiff contends that the bank has no such right, and in support of its contention two reasons are assigned: First, that the law will not recognize fractions of a day, and, hence, the act of bankruptcy relates back to the very beginning of the day on which the deposit was made, and the title to the money covered by the deposit was in the trustee and not in the bankrupt. This being so, it is argued the deposit in question cannot be considered in adjusting the mutual credits between the bankrupt and the bank. The second ground is, even assuming that fractions of a day will be recognized, the bank held the checks for collection only and the proceeds thereof were not received by it until the day after the filing of the petition.
    We have reached the conclusion that the plaintiff’s first contention must be sustained, and, therefore, it becomes unnecessary to consider or discuss the second.
    Collier on Bankruptcy (6th ed.), 1907, at p. 332, states: “The rule seems to be that fractions of a day will be disregarded. This doctrine is the composite of an ancient controversy. Cases under the present law and its predecessor cited in the footnote will, therefore, lead the investigator into the domain of history. There can now, however, be no question about the rule being as stated.”
    In Long’s App., 23 Pa. 297, several writs of foreign attachment were issued and served on the same day against a person who was in failing circumstances. The question was whether the creditor owning the first writ should take the whole fund or whether the proceeds of the sale should be distributed pro rata among the several attachments in proportion to the amount of the judgment obtained in each case. It was decided that the money should be distributed pro rata. Mr. Justice Lewis said in considering this question: “It is a principle of the common law, that in judicial and other public proceedings, there are no fractions of a day, and that all transactions of the same day are, in general, regarded as occurring at the same instant of time. ... To prevent gross injustice, the order of events will always be investigated. But neither necessity nor justice requires that one creditor should be aided in seizing all the assets of his debtor, to the entire exclusion of others equally meritorious. For this reason, where judgments are entered on the same day, the law will not inquire into the order of their entry, but all will be regarded as having been entered at the same time, and the money raised by the sale of the debtor’s property will be divided pro rata between them. . . . The presumption is that the debts are all equally just/and if so, the principle of equity requires that they should all participate equally in the remnant of their debtor’s property. So that the introduction of the fractional principle, so far from being justified by unavoidable necessity for the purpose of doing justice, would be productive of the gross injustice of giving a monopoly of the assets to one creditor, to the total exclusion of other claims equally just. Thus the wholesome principle of the common law would be departed from for a purpose which a chancellor would never lend his aid to accomplish.”
    The rule is well stated by Thayer, P. J., in Simpson v. Mancill, 17 Phila. 265: “It is a general rule that the law will not take notice of a fraction of a day except in cases where it is necessary for the purpose of justice to do so, the reason being, according to Sir Edward Coke, ‘the uncertainty which is always the mother of confusion and contention.....’ There are undoubtedly many cases in which the rule which ignores fractions of a day will not be applied. Where it is necessary in order to prevent a manifest injustice the exact hour or minute at which acts were done may be shown, but the ancient rule laid down that the law will take no notice of fractions of a day unless where it is to prevent a great mischief or inconvenience, 3s still the general rule. ”

      Is there any reason in the present instance why we should depart from the rule as stated in the above cases? Would injustice be done to anyone by adhering to the rule? It appears that the bank held the note upon which the bankrupt was indorser for some time prior to the filing of the petition in bankruptcy. It in no way changed or altered its position or extended credit in reliance upon the deposit made a few hours before the petition in bankruptcy was filed. We see no reason why the bank should be preferred or why it has any greater equitable claim to the money covered by the deposit than the other creditors of the bankrupt, and therefore we see no reason why the general rule that the law will not take note of a fraction of a day should be departed from for the benefit of the bank.
    Two rules are before the court: One for judgment for the part of the claim as to which the affidavit of defense is insufficient; the other for judgment generally. The first is marked withdrawn and the second is made absolute.

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

      Humbert B. Powell, for appellant.
    Where justice of the case demands it, the law will take cognizance of a fraction of a day: Louisville v. Savings Bank, 104 U. S. 469; Bank v. Burkhardt, 100 U. S. 686.
    A bank may, under the bankruptcy act, offset against a deposit of the bankrupt in its hands the bankrupt’s liability to the bank as indorser of paper discounted by the bank, although the date of the maturity of the paper is subsequent to the filing of the petition in bankruptcy, where that date is within the year after the bankruptcy adjudication: Matter of Phillip Semmer Glass Co., Lim., 11 Am. B. R. 665.

      A. S. Weill, with him L. S. Oliver, for appellee,
    cited: In re Charles Lewis & Bros., 1 Am. B. R. 458; In re Billing, 17 Am. B. R. 80; In re Appel, 4 Am. B. R. 722; In re Pekin Plow Co., 7 Am. B. R. 369; In re Warner, 16 Am. B. R. 519; Dutcher v. Wright, 94 U. S. 553; In re Stoner, 5 Am. B. R. 402; Long’s App., 23 Pa. 297; Leidigh Carriage Co. v. Stengel, 2 Am. B. R. 383; Baldwin’s App., 86 Pa. 483; McClure v. Roman, 52 Pa. 458; Cascade Overseers v. Overseers, 148 Pa. 333; Duffy v. Ogden, 64 Pa. 240; Bradshaw Electro Sanitary Odor Co. v. Bradshaw, 27 Pa. Superior Ct. 196; Western Nat. Bank v. Cotton Oil, etc., Co., 35 Pa. Superior Ct. 47; Mechanics’ Bank v. Gorman, 8 W. & S. 304; Patterson’s App., 96 Pa. 93; Collins v. McKee, 3 Sadler, 213; Bank v. Burkhardt, 100 U. S. 686; Taylor v. Brown, 147 U. S. 640 (13 Sup. Ct. Repr. 549).
    March 3, 1910:
   Opinion by

Porter, J.,

The statement filed by the plaintiff averred the following facts which the affidavit of defense admitted to be true. On January 16, 1908, before 3 o’clock p. m., Henry E. Sealey & Co., incorporated, deposited in their account with the defendant bank sundry checks aggregating $335.03, for collection, and received the usual credit in their bank book therefor, which checks were collected in due course by the bank on January 17, 1908. The bank paid nothing and incurred no liability upon the faith of the deposit of the checks in question. Upon the same day on which this deposit was made, at 3:45 o’clock p. m. a petition of creditors was filed praying that Henry E. Sealey & Co., incorporated, be adjudged bankrupt, and in that proceeding they were subsequently duly so adjudged, and John L. Moore, the plaintiff herein, was appointed trustee. At the date of the making of the deposit of the checks in question and the filing of the petition in bankruptcy and for some time prior thereto Sealey & Co. had been liable to the bank as indorsers upon certain promissory notes, not yet due, amounting in the aggregate to $900. There was a balance due Sealey & Co. upon their open account with the bank, on January 15, 1908, of $687.12. It is admitted that the bank had the right to set off this $687.12, the balance on January 15, 1908, against the liability of Sealey & Co. as indorsers upon the notes not yet due. The question raised by the affidavits involves the right of the bank to apply in the same manner the proceeds of the checks, which were deposited for collection, on the day the petition in bankruptcy was filed and the proceeds of which were by the bank received on the day following. The bank having paid to the plaintiff the amount in excess of the sum for which Sealey & Co. were liable as indorsers, the plaintiff brought this action to recover that part of the proceeds of the checks in question which had not been thus paid by the bank. The court below entered judgment for want of a sufficient affidavit of defense and the defendant appeals.

The conclusion at which the court below arrived is so fully vindicated by the opinion of Judge Yon Moschzisker, which appears in full in the report of this case, that it is not necessary for us to discuss at length the question presented. The general rule in judicial proceedings is that fractions of a day are not to be regarded, and that all transactions of the same day are to be regarded as occurring at the same instant of time. The exception to the rule is that when the application of the general principle would result in manifest injustice the exact hour or minute at which acts were done may be shown, in order to prevent a great mischief or inconvenience. In Long’s Appeal, 23 Pa. 297, cited in the opinion of the court below, it was held that: “Neither necessity nor justice requires that one creditor should be aided in seizing all the assets of his debtor, to the entire exclusion of others equally meritorious,” and in that case fractions of a day were disregarded. The same conclusion was arrived at in Baldwin’s Appeal, 86 Pa. 483. In bankruptcy, “The day of cleavage, both as to provable and dischargeable debts, and as to property with which to pay those debts, is the day when the petition is filed;” In re Yukon Woolen Company, 2 Am. B. R. 805; In re Pease, 4 Am. B. R. 578; State Bank v. Cox, 16 Am. B. R. 32. The rule in bankruptcy, as in other judicial proceedings, is that as to the general doctrine the law does not allow fractions of a day, and that such fractions will only be considered when substantial justice so requires: Dutcher v. Wright, 94 U. S. 553; Taylor v. Brown, 147 U. S. 640. The deposit of these checks was not a deposit of money; the bank took the checks for collection only; it advanced no money upon them and parted with nothing upon the faith of the deposit; it was not the holder of the checks for value: National Bank of Phœnixville v. Bonsor, 38 Pa. Superior Ct. 275.

The judgment is affirmed.

Head, J., dissents.


author: Head, J.,

text:
    Philadelphia to use v. Street, Appellant.

      Road law — Municipal liens — Contract—Act of June 4, 1901, P. L. 364.
    1. Where a city ordinance provides for the paving of three blocks of a street, the work to be begun on one block which was ready and to progress as the others were made ready, “ the intent being that the completion of the pavement on each square shall be the completion of the improvement as authorized by ordinance,” the contractor has a right to a lien for the paving of the first block as soon as the block is finished, and he is not deprived of such lien by the fact that before he did the work he required the property owners in the block each separately to agree that they would not interpose any defense to assessments against their property based on the ground that the whole of the three blocks had not been finished.
    2. Under the Act of June 4, 1901, sec. 10, P. L. 364, where the proper officer of the proper department of the city certifies as to the date of the completion of the paving of the street, the property owner cannot resist the payment of an assessment, on the ground that the lien was not filed “within six months after the completion of the improvement,” where the date of completion stated in the certificate, showed that the lien was filed within the six months.
    Argued Oct. 7, 1909.
    Appeal, No. 68, Oct. T., 1909, by defendant, from order of C. P. No. 1, March T., 1908, No. 923, M. L. D. making absolute rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia, to use of The Barber Asphalt Paving Company, v. Harris Nelson Street, former owner, and William Wilfong, present registered owner.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      March 3, 1910:
    Scire facias sur municipal lien.
    The facts are stated in the opinion of the Superior Court.

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

      William White, Jr., and Charles Henry Jones, for appellant.

      Walter Biddle Saul, with him E. O. Michener, for appellee.
   Opinion by

Head, J.,

The improvement on account of which the lien in this case was filed was begun and completed in the fall of 1907. Unless the city had lost or waived its ordinary right to assess the abutting properties with the cost thereof to the extent of the special benefits derived therefrom, it had the further right under the Act of April 4, 1907, P. L. 40, to enforce the payment of such assessment “by lien or by action of assumpsit.”

The improvement was the paving of Chestnut street between Fifty-eighth and Fifty-ninth streets in the city of Philadelphia. The appellant, Wilfong, one Michaelson and Snellenberg owned all of the land on both sides of Chestnut street in the block designated. As early as 1904 the city councils had enacted an ordinance authorizing the paving of Chestnut street from Fifty-sixth to Fifty-ninth streets. It may be conceded for the sake of argument that under this ordinance the improvement contemplated covered the entire three blocks of Chestnut street. It further appears from the record that up until 1907 nothing had been done in pursuance of this ordinance because the preliminary work that necessarily preceded the paving had not yet been done along the entire distance covered by the ordinance. The block, however, between Fifty-eighth and Fifty-ninth streets was ready, and the property owners on that block were anxious that the work should proceed. Accordingly, on October 29, 1907, the city councils enacted an ordinance, amending that of 1904, reciting the conditions which had caused the delay and ordaining that the proper department should proceed to pave each square in Chestnut street between Fifty-sixth and Fifty-ninth streets “as soon as the underground structures are completed in a given square, and the bureau of surveys is hereby authorized to make measurements and furnish bills for the paving of each square immediately after the completion of the paving, the intent being that the completion of the pavement on each square shall be the completion of the improvement as authorized by ordinance.”

No argument is made, nor is any authority cited which would warrant us in adopting the conclusion that the city was in any way lacking in power to enact this ordinance. If it had such power, it seems clear enough that the.improvement, upon which the city could found a valid municipal claim against the property owner, was the paving of a single square.

Notwithstanding the passage of this ordinance, the use plaintiff, to whom a contract had been given for the paving of the entire three squares under the original ordinance, was reluctant to proceed for fear that the abutting property owners on any one square paved would resist the right of the city to collect any assessments until the entire work contemplated by the original ordinance had been completed.

With matters in this condition, and for the purpose of inducing the paving company to proceed promptly with the work on the block bounded by Fifty-eighth and Fifty-ninth streets, the defendant and the other two persons named, being all of the abutting property owners on both sides of the street in that block, entered into written agreements, on the strength of which the paving company, the use plaintiff, began and promptly completed the paving of that square. These several agreements, as we understand the facts, were identical in terms. The one executed by Snellenberg has been made part of the record before us. It recites the existing conditions already adverted to and provides that said Snellenberg “does hereby covenant, promise and agree to and with the said company that in case the said work shall be done by the company he will not interpose any defense to the collection of the sum which may be assessed against his property for the cost of said paving by reason of the fact that the whole of the work from Fifty-sixth street to Fifty-ninth street has not been done, but only so much of it has been done which lies between Fifty-eighth street and Fifty-ninth street.” He further agreed that upon the presentation of a proper bill at a specified rate per square yard “ against his property, made out and certified by the proper officials authorized and empowered so to do, he will forthwith pay the amount of said bill to the paving company without delay.”

At some time between the date of the execution of this agreement and. the filing of the lien in suit, Snellenberg sold and conveyed a portion of his property fronting on this block to Harris Street, who in turn sold and conveyed it to Wilfong, one, of the original owners who had signed an agreement identical with the one quoted. Snellenberg did not pay to the paving company the portion of the cost of paving that would be properly assessed to the frontage which he had sold, and the paving company, the use plaintiffs, filed this lien.

To the scire facias issued thereon the appellant filed an affidavit of defense and sets up therein in the first place that the filing of the lien was premature because, as he avers, the work was done under the ordinance of 1904, and the act of June 4, 1901, sec. 10, provides that the lien must be filed “within six months after the completion of the improvement.” The lien filed by the city declares that the work was done under the ordinance of 1904 and the amending ordinance of 1907. As already stated, no reason has been urged nor authority cited to show' that the ordinance of 1907 was not effective in determining the improvement for which a lien could be filed. But apart from this the lien further recites that the proper officer of the proper department of the city of Philadelphia had duly certified that the improvement was completed December 20, 1907. Section 10 of the act of June 4, 1901, P. L. 364,.already cited, provides, “The certificate of the surveyor, engineer or other officer supervising the improvement, filed in the proper office, being conclusive of the time of completion thereof (of the improvement), but he being personally liable to any one injured by any false statement therein.” This legislative provision seems to leave no room whatever for tne interposition of the defense mentioned, and the learned court was therefore right in declining to regard it as sufficient to prevent judgment.

It is alleged further in the affidavit that because of the fact that agreements were signed by the property owners in which each bound himself personally to pay his proper share of the cost of the improvement, and because the paving company, on the strength of these agreements, proceeded to do the work, the city and its assignee, the use plaintiff, have waived or lost any right to file a lien, but must depend solely on these agreements and seek payment from those who signed them. This theory seems to us to be wholly untenable. The agreements conferred no new right upon the city which, by virtue of the act of assembly, could have charged either the property or the person of the owner at pleasure, nor did they impose any new or additional responsibility upon those who signed them. A glance at the language of the agreements is sufficient to show that the main purpose of the paving company in demanding such contracts was to estop the property owners from asserting a possible defense to the liens that might thereafter be filed, and subject the paving company to the costs and délay of litigation. We can see no evidence in the agreement filed that the city or the use plaintiff intended to relinquish the right of lien, or that the property owners demanded or expected any such relinquishment. On this ground also we think the learned court below was right in determining the affidavit of defense insufficient to prevent judgment.

Finally, it is averred that the filing of this lien is the offspring of an unlawful or fraudulent confederation between the use plaintiff and Snellenberg to compel the appellant to pay a portion of the assessment which Snellenberg originally bound himself to pay. It is difficult to see how the exercise of a clear legal right by the use plaintiff should be restrained even if the consequences should be the payment of a sum of money by Wilfong, which, as between him and Snellenberg, the latter ought in equity to pay. Manifestly the reason why these property owners sought to advance the prosecution of the improvement in front of their properties was the enhancement in value that would result therefrom to these properties. Each was to pay in proportion to the frontage owned by him which would thus be benefited. When one of these owners, during the progress of the work, parted with a portion of his property which would thus be benefited, we can see npthing illegal or immoral in the proposition that the purchaser who took the benefited property should pay, pro tanto, the cost of the improvement in relief of the seller. How this was arranged between Snellenberg and Street, to whom he sold, the record does not disclose, nor is it material. But when Wilfong came to buy he knew all of the conditions under which the improvement had originated. He lcnew that if the owners of the property did not voluntarily pay, the city could enforce such payment by filing a lien against the property. He could have perfectly protected himself by making such inquiry as the facts then within his knowledge’ necessarily invited. He seems to have made such inquiry of his immediate vendor and rested content with such information as he received. But neither the city nor the use plaintiff could thereby lose an existing right. An.inquiry directed to either of them would have elicited the true state of the facts, and the appellant cannot well blame anyone but himself if he did not thoroughly inform himself on this subject before purchasing.

We are all of the opinion that the appeal is without merit and that the learned court below was right in entering judgment for the plaintiff for want of a sufficient affidavit of defense.

Judgment affirmed.


author: Henderson, J.,

text:
    Vansant, Appellant, v. McMenamy.

      Negligence — Steam engine — Escape of steam — Fright of horse— Question for jury.

    1. In action to recover damages for personal injuries cáused by the fright of a horse, the case is for the jury where it appears that the defendant used on a highway a steam machine for pumping water from a creek into a water wagon; that the engine was equipped with a safety valve which worked automatically at a pressure of 100 pounds, at which pressure steam escaped with a sharp, shrill noise; that the man in charge of the engine had it in his power to reduce the pressure or give timely warning of danger, but that neglecting to do so he permitted a violent explosion of steam without warning the plaintiff, thus causing the fright of plaintiff’s horse.
    2. In such a case it is not an excuse that the work in which the defendant was engaged was in itself lawful, or that it was done in the exercise of a right, if the injury resulted from the negligent manner in which the work was performed.
    3. Where the duty of care is not fixed but varies with the circumstances the ease is for the jury, and where inferences may arise from facts proved or admitted where there is no established standard of judgment it is the province of the jury to draw such inferences.
    Argued Oct. 7, 1909.
    Appeal, No. 72, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 3,358, for defendant non obstante veredicto in case of James M. Vansant and Addie K, his wife, v. John Mc-Menamy.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ralston, J.
    In addition to the facts stated in the opinion of the Superior Court it appeared that the defendant at the time of the accident was constructing a public road in the course of which work he used a stationary upright steam boiler and pump to pump water from a neighboring creek into a water wagon. The boiler had been placed on the side of the road. The circumstances of the accident are stated in the opinion of the Superior Court.

      March 3, 1910:
    Verdict for James M. Vansant for $200, and for Addie K. Vansant for $300.
    The court subsequently entered judgment for defendant non obstante veredicto. Plaintiffs appealed.

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

      Henry Budd, with him Franklin Gilkeson and Howard I. James, for appellants.
    A man doing a legitimate piece of work, in a place where he has a right to be, must perform that work with due regard to the protection of the rights of others, and it is for the jury to say whether, under all the circumstances, such regard has been had: Menner v. D. & H. Canal Co., 7 Pa. Superior Ct. 135; Fisher v. Ruch, 12 Pa. Superior Ct. 240; Louisville, etc., Ry. Co. v. Schmidt, 147 Ind. 638 (46 N. E. Repr. 344); Knight v. Goodyear’s India Rubber Glove Mfg. Co., 38 Conn. 438; Weller v. R. R. Co., 225 Pa. 110.
    ' Andrew C. Wylie, for appellee,
    cited: Duvall v. R. R. Co., 73 Md. 516 (21 Atl. Repr. 496); Macomber v. Nichols, 34 Mich. 212; Drayton v. R. R. Co., 10 W. N. C. 55; Joyce v. Penna. R. R. Co., 5. Pa. C. C. Rep. 392; Fouhy v. Penna. R. R. Co., 17 W. N. C. 177.
   Opinion by

Henderson, J.,

The verdict of the jury acquitted the plaintiff of contributory negligence and charged the defendant with liability for the injury complained of. The only question for our consideration is the sufficiency of the evidence to establish the defendant’s negligence. Did the defendant owe any duty to travelers driving horses along the highway to safeguard them against accidents resulting from the fright of their horses excited by steam escaping from the boiler? Conceding that' the defendant had a right to place his machinery in the public highway while engaged in the work under his charge, was his duty performed if he provided a boiler of a usual type which was equipped with a suitable steam gauge and safety valve? The boiler was located within a few feet of the place where the plaintiff came onto the highway through the lane leading down from her home, and was on the roadside eight or ten feet from the vehicle tracks. The safety valve operated automatically at a pressure of 100 pounds, and when that pressure was reached steam escaped through the open valve with a sharp, shrill noise. The boiler supplied steam for an engine used in pumping water- from a nearby creek into a water wagon used in sprinkling the road. One of the defendant’s servants had charge of the boiler and was familiar with its management. The propriety of the use of a safety valve cannot be questioned, but we think the plaintiff’s case is not answered by showing that it is a usual and necessary device on steam boilers. If it were not only indispensable but beyond control of the person in charge of the machinery and there were no means of knowing when there was a liability to the escape of steam from the valve and the consequent danger to a passing traveler, the defendant’s argument would be convincing, but the evidence of the defendant’s own witnesses discloses the fact that the steam pressure could be controlled not only by the amount of fire, but by opening and closing the fire door and that it was usual for the person in charge to open the door to lower the pressure; and it appeared that immediately before the occurrence of the accident one of the defendant’s employees seeing Mrs. Vansant driving down the lane to the road called out to the fireman that she was approaching and that he should open the fire box door to prevent the escape of steam through the safety valve. This action apparently was not taken in time, for when Mrs. Vansant was opposite the boiler there was a violent discharge of steam which frightened her horse and thereby caused the injury shown to have been received. It is a familiar rule that negligence is the-absence of care under the circumstances, and that where the duty of care is not fixed but varies with the circumstances the case is for the jury, and where inferences may arise from facts proved or admitted where there is no established standard of judgment it is the province of the jury to draw such inferences. Many acts lawful in themselves and of an ordinary character may become actionable because of the circumstances attending their performance. The care to be exercised in the conducting of a particular operation is to be regulated by the circumstances and conditions. The defendant knew that the boiler was located on one of the most frequently used highways in the county, and that an escape of steam would occur when the pressure exceeded 100 pounds. He was also chargeable with knowledge that a horse passing within a few feet of the boiler was likely to be frightened by the sudden explosion of the safety valve. It was, therefore, his duty to adopt such precautions, if any were practicable, as would prevent the escape of steam when travelers were passing by or to warn them of the imminence of such an occurrence, thereby affording them an opportunity to avoid the danger. There was nothing in the appearance of the machinery to enable anyone traveling the road to observe the lurking peril or to give notice that an explosion was about to occur. But the man in charge had such knowledge and it was apparently within his power to reduce the pressure or to give timely warning of the danger. Public highways are primarily for the use of travelers, and where they are subjected to an exceptional use the right thus to do must be exercised so as not to injure others lawfully on the road. The legislation regulating the use of traction engines and motor vehicles expresses the public judgment on that subject. The use of self-propelling machines is permitted, but subject to the restriction that the safety of other travelers be regarded. The Act of June 30, 1885, P. L. 251, makes it the duty of any person in charge of a machine propelled by steam on any public road not only to stop his machine on the roadside when any traveler with a horse or horses shall have arrived within 300 feet of the machine, but also to assist such passing team until it is safely by the danger. And the Act 'of April 27, 1909, P. L. 265, requires the operator of any motor vehicle on a public highway when signaled so to do by the driver of any horse or horses to stop his machine and if circumstances demand it to stop his engine also until the danger has been avoided. It is true, the defendant was not using a machine of either of the classes described in these statutes, but he should be held to a like degree of care when using a steam machine on the highway which was likely under certain conditions to frighten teams. The safety of travelers is the object aimed at and this can only be secured by the exercise of due care. It is' not an excuse that the work in which the defendant was engaged was in itself lawful or that it was done in the exercise of a right if the injury resulted from the negligent manner in which it was performed. The cases on which the defendant relies grew out of the use of locomotives on railroads and in each is involved the principle that such a company using its locomotives in the usual and ordinary way is not responsible for the consequences of the noises caused by the ringing of the bell or the escape of steam through the whistle or safety valve. The bell and whistle are well-known means of warning'and are intended to attract the attention and alarm persons and animals liable to be in thé way of the engine. They are essential to the secure operation of the road and are used on the right of way of the company. The mere fact of the noise is not sufficient, therefore, to charge the company with negligence. There may be cases, however, as was shown in Penna. R. R. Co. v. Barnett, 59 Pa. 259, where even in the use of a locomotive whistle the company may inflict an injury for which it will be liable. In that case the whistle was blown under a bridge over which the plaintiff was passing with his team as a result of which his horses took fright and ran away, injuring him seriously. The sounding of the alarm whistle as the train was passing under the bridge was held to be the cause of the injury and an act of gross negligence. To the same effect is Indianapolis Union Ry. Co. v. Boettcher, 131 Ind. 82, in which it was held that-the negligent or careless sounding of a whistle at a public crossing causing a horse to take fright is an actionable wrong. In the case of Duvall v. B. & O. R. R., 73 Md. 516, cited in support of the judgment, the plaintiff’s horse was frightened by an escape of steam from an automatic valve, but in that case there was an engine to which were attached twenty-eight freight cars-going up a bigb grade and requiring a full pressure of steam. The train had reached the station and was waiting to move at a moment’s notice. To have slackened the fire would have been to deprive the engine of the steam absolutely necessary to its movement, and in such a case the escaping steam was considered a noise necessarily incident to the movement and operation of the engine. The case of Louisville, etc., Ry. Co. v. Schmidt, 134 Ind. 16, involved principally the right of a railroad company to make noises usual in operating locomotives and necessarily incident thereto, and the decision turned on the proposition that there was no evidence that the noises complained of could be practically avoided. The case was therefore reversed and on a second trial after a change of the pleadings charging a failure of the company to use the means within its power to avoid the injury a verdict for the plaintiff was sustained. And that was done on evidence that while the steam escaped automatically from the locomotive when it had reached a certain pressure, still the fire which produced the steam was under the control of the engineer and fireman' and the jury was permitted to find that the increase of the steam could have been prevented by regulating the fire or by opening the door of the furnace or by closing the dampers. In Drayton v. North Penna. R. R. Co., 10 W. N. C. 55, the plaintiff was driving along the public highway on the brow of a hill and the defendant’s locomotive was on the track twelve or fifteen feet below the public highway. The report of the case shows that “A slight noise of escaping steam” frightened the horse. There was nothing to show that the locomotive was in a place where the defendant had no right to have it, nor was there anything unusual in the escape of the steam. The company was therefore only in the ordinary and legitimate use of its own property. Upon similar reasoning, Fouhy v. Penna. R. R. Co., 17 W. N. C. 177, was decided. There a bell was rung while a train was passing along the track on Trenton avenue in the city of Philadelphia in a thickly built up portion of the city. A horse was frightened, as was claimed, by the ringing of the bell. In disposing of the case it was said the omission to ring the bell might have been evidence of negligence considering the locality in which the train was moving. The distinction was made in Knight v. Goodyear’s India Rubber Glove Mfg. Co., 38 Conn. 438, between the use of a whistle on a locomotive and on a factory. In the former case it was justified because of the necessity of giving warning and exciting fright. But in the case of its use on a manufactory it was held that it must be so used as not to endanger others.

We are unable to agree with the conclusion of the learned court below that the defendant might subject the traveling public on the highway in question to danger from fright of their horses caused by the explosions from the boiler used by Mm without liability for the consequences. In our judgment it was for the jury to say whether under all the circumstances the defendant exercised that care which he ought to have exercised and the jury having found against him on the question as clearly and fairly presented by the trial judge, the verdict ought to stand.

The judgment is, therefore, reversed and judgment is now entered in favor of the plaintiff on the verdict.


text:
    Bowser, Appellant, v. Philadelphia.

      Municipalities — Sewei's—Connection of sewers — Ordinances of the city of Philadelphia — Act of May 16, 1891, P. L. 75.
    1. The Philadelphia ordinance of March 9, 1867, p. 68, imposing a charge of $7.50 for a permit to connect with the sewer was repealed by the ordinance of March 30, 1889, p. 142, which imposed a charge of $4.00 for such permit, and the latter ordinance was in turn repealed by the ordinance of March 30, 1895, p. 61, providing charges regulated according to various kinds of paving, and imposing a charge of $1.00 for a permit where the street is unpaved.
    2. The Philadelphia ordinance of March 9, 1867, which imposes a charge of $7.50 for a permit to connect with a sewer, where the party applying had not contributed to the original construction of the sewer, and a charge of $3.00 where the party had contributed to the construction, is invalid either as an exercise of the police power, or of the taxing power, inasmuch as it involves an unfair and-improper classification.

      3. If a property has been benefited by the construction of a sewer it may be compelled to contribute to such construction by special assessment in the manner provided by the Act of May 16, 1891, P. L. 75, but the city cannot arbitrarily assume that the property has been benefited and exact for such benefit an excessive charge from the owner for the privilege of connecting with the sewer.
    Argued Oct. 5, 1909.
    Appeal, No. 238, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1908, No. 4,035, for defendant on case stated in suit of Seward L. Bowser v. City of Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Case stated to determine liability for charges for permit to connect with sewer.
    The facts are stated in the opinion of the Superior Court.

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

      A. U. Bonnard, with him Wm. E. Caveny, for appellant.
    The liability for public work is prima facie with the public. Without the special benefit there can be no special tax: Phila. to use v. Market Co., 161 Pa. 522; West Third Street Sewer, 187 Pa. 565; City of Erie v. Russell, 148 Pa. 384.
    There was no liability aside from the assessment and the lien: City v. Matchett, 116 Pa. 103; Lawrence v. City, 14 W. N. C. 421; Com. ex rel. Taylor v. Wagner, 24 W. N. C. 171; Miller v. Meadville, 14 Pa. Dist. Rep. 27.

      Ernest Lowengrund, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
    No one can read the terms of the ordinance of 1895 without being convinced that the charges prescribed were for the breaking of the street alone, together with such incidental services, in supervising the connection, etc., as had theretofore been the subject of separate charges: Gilham v. Real Estate Trust, etc., Co., 203 Pa. 24.
    The difference between assessments or taxes and such a charge as is here in question is manifest. Such taxes or assessments operate in invitum. They must be paid by the person or property against which they are assessed, whether willingly or not: Borough of McKeesport v. Fidler, 147 Pa. 532; Fisher v. Harrisburg, 2 Grant, 291; Erie v. Church, 105 Pa. 278; Olive Cemetery Co. v. City, 93 Pa. 129.
    March 3, 1910:
    Charges like the present one have often been sustained by the Supreme Court of this state, and by the county courts, as valid and proper regulations: Gilham v. Real Estate Trust, etc., Co., 203 Pa. 24; Com. v. Wagner, 24 W. N. C. 171; Boswell v. City, 15 W. N. C. 169; Opinions City Solicitor, Phila., 1884, pp. 80, 84; 1887, p. 45; 1889, p. 45.
    That an owner desiring gas, water or sewer connections must conform to reasonable regulations with respect to payment therefor is decided among other cases in Altoona v. Shellenberger, 6 Pa. Dist. Rep. 544; Bower v. U. G. I. Co., 37 Pa. Superior Ct. 113; Miller v. Gas Co., 206 Pa. 254; Reading v. Shepp, 13 Pa. C. C. Rep. 634; Com. v. Phila., 132 Pa. 288; Girard Life Ins. Co. v. Phila., 88 Pa. 393; Brumm’s App., 22 W. N. C. 137.
    Ordinances allowing an abatement to those who have paid assessments upon municipal improvements* from their taxes on the same property, are valid and constitutional if duly authorized: Franklin v. Hancock, 204 Pa. 110; Erie v. Griswold, 5 Pa. Superior Ct. 132.
    In many cases outside of this state similar regulations have been sustained, requiring contribution to the cost of sewers upon connection therewith, irrespective of any right to levy a municipal assessment upon the laying of the sewer, or in addition to such assessment. See Carson v. Brockton Sewerage Commission, 182 U. S. 398 (21 Sup. Ct. Repr. 860); Hill v. St. Louis, 159 Mo. 159 (60 S. W. Repr. 116); Hermann v. State, 54 Ohio, 506 (43 N. E. Repr. 990); Ranlett v. Lowell, 126 Mass. 431; 2 Dillon, Municipal Corp. (4th ed,), secs. 805 et seq.
   Opinion by

Porter, J.,

The parties agreed upon a case stated which set forth the following facts material to the determination of the question involved : Bowser is the owner of a tract of land at the corner of Wingohocking and North Sixteenth streets in the city of Philadelphia. He erected upon this property, in 1906, thirteen houses fronting on Wingohocking street and twenty-nine houses fronting on North Sixteenth street; no one of said forty-two properties had a frontage exceeding sixteen feet. The city in the exercise of its police power had ordained that these houses, respectively, must be connected with the public sewer in the street upon which they fronted. The plaintiff, on August 16, 1906, applied to the city authorities for permits to make the sewer connections for said forty-two houses, thirteen of the connections to be made with the Wingohocking street sewer and twenty-nine with that on North Sixteenth street. He tendered to the proper officers the sum of $42.00, contending that the sum of $1.00 for each permit was all that he could lawfully be required to pay; the streets being unpaved. The officer of the city asserted that the amount which the plaintiff was by the law required to pay for said permits was $357, that is $8.50 for each permit, the said amount being made up of $1.00 charged for opening the street and $7.50 charged for making the sewer connection; and refused to issue the permits unless that amount was paid. The plaintiff would have been liable to a penalty if he had failed to connect the houses with the sewer, and he would have been liable to a penalty if he had made the connections without obtaining the permits. It was thereupon agreed between the plaintiff and the city that if the plaintiff would pay the $357 which the officer of the city demanded, such payment should not be considered voluntary, and the plaintiff should be entitled to sue for and recover any part of the charge which was excessive. The plaintiff then paid the amount under protest, and the permits were issued. It was further agreed, in the case stated, that the sewer in Wingohocking street had been constructed by the city in the year 1899, that the entire cost thereof had been paid by the city, and that no abutting property had been assessed for said construction, the same being then rural property. The sewer in North Sixteenth street had been constructed, in 1884, by William F. Shaw, the owner of a property to the south of that now owned by plaintiff; that Shaw had constructed this sewer at his own expense, under the provisions of sec. 8 of an ordinance of May 12,1866, p. 142, by force of which the sewer became a public one after the lapse of ten years, which period expired in 1894. The ordinance of the city approved March 9, 1867, p. 68, provided: “That from and after May 1st, 1867, any person who shall be the owner or lessee of premises, desiring to connect with any of the sewers in a street, shall make application at the Department of Surveys, upon a book prepared for that purpose, and shall pay for such privilege of connection the sum of $7.50 for all premises not exceeding sixteen feet in width, .... except they shall have paid proportionately for the construction of said sewer, in which case the sum of $3.00 shall be paid.” The second section of the ordinance of the city approved March 30, 1895, provided that no roadway of any street shall be opened, nor any street tunneled “ for the purpose of making connection with or repairing any underground service laid thereunder until a permit to do so shall have been obtained” by application to the bureau of highways. The chief of said bureau is thereupon required to furnish the applicant with a certificate setting forth the charges and costs of permit as provided in sec. 3. Upon payment of the sum, “and upon the presentation of a receipt therefor, duly signed by the receiver of taxes, the applicant shall be entitled to receive a permit from the bureau or bureaus having charge of the particular part or parts of the underground service desired to be connected with or repaired, which permits, duly signed by the chief of the bureau shall be full and sufficient authority for such applicant to break the street, subject only to the supervision of the various bureaus as provided by law.” By sec. 3 of this ordinance the charges are regulated according to the various kinds of paving laid in the streets in which the connection is to be made, which is to be repaved by the city authorities, and the charge for a permit where the street is unpaved is fixed at $1.00. Both Wingohocking street and North Sixteenth street at the location in question, are unpaved. The city bases its right to retain the amount which it compelled the plaintiff to pay upon the provisions of the ordinances above recited, contending that applicants for permits must pay the aggregate of the amounts fixed as the charge for a permit under each ordinance. The plaintiff acquired the property in question long after the city had constructed and paid for the sewer in Wingohocking street and after the sewer constructed by Shaw in North Sixteenth street had become a public sewer. He had not contributed to the cost of the construction of either of these sewers, nor had any of his predecessors in title so contributed. The court below, being of opinion that the city was entitled to exact the entire amount paid by the plaintiff entered judgment in favor of the city, and the plaintiff appeals.

The case stated, while particularly reciting the provisions of the ordinances hereinbefore quoted, specifically agreed that all acts of assembly and all other ordinances of the city bearing upon or relating to the question involved should be taken to be a part of the case stated, as if the same had been set forth at length. The counsel for both parties have, under this provision of the case stated, referred to and commented upon the effect of the provisions of an ordinance approved March 30, 1889, which ordained that thereafter “all persons desiring to connect with any water-pipe, sewer, drain or conduit, or desiring to open any public highway for any other purpose, shall pay four dollars for a permit therefor .... which payment shall include all privileges of connections, all services to be rendered by any officer of the city, the ferrules supplied by the Bureau of Water, and for repaving over such connections when required.” The seventh section of the ordinance approved March 30, 1895, above referred to, repealed all ordinances or parts of ordinances inconsistent therewith. The appellant contends that the ordinance of March 9, 1867, was repealed by the ordinance of March 30,1889, which was in turn repealed by the ordinance of March 30, 1895, and that, therefore, the exaction by the city officers of $7.50 as a charge for each sewer connection, under the alleged provisions of the ordinance of 1867, was without lawful authority. The appellant further contends that even if the ordinance of March 9, 1867, has not been repealed by the later ordinances, the ordinance is invalid, as applied to the sewers in question, -for the reason that it is an attempt by the municipality to impose upon the owner of property a part of the cost of constructing the sewers, under circumstances and in a manner not authorized by any statute. The reply of the learned counsel for the city to the first contention of the appellant is that the ordinance of 1895 prescribed charges for the breaking of the pavement of the street alone, and has no bearing upon the charges for a permit to make connection with the sewer; and, as to the second ground of objection by the appellant, asserts that the charge of $7.50 imposed by the ordinance of 1867, for a permit to make connection with a sewer, is a charge for the use of the sewer and not an imposition upon the owner for a part of the original cost of the construction of the sewer.

The ordinance of 1867, assuming for the present that the charges thereby imposed might lawfully have been held applicable to the sewers with which the appellant desired to connect his property, related to sewers alone and charges for the privilege of making connection therewith, leaving upon the parties making the connection the duty to restore the street to its former condition. The ordinance of 1889, above quoted, changed the pre-existing system, fixed a flat charge of $4.00 for a permit to do any of the things in the ordinance designated, and relieved the party of the obligation to repave the street, which duty the city expressly assumed. What did the permit provided for by this ordinance authorize the person receiving it to do? The language of the ordinance is very broad: “All persons desiring to connect with any water-pipe, sewer, drain or conduit, or desiring to open any public highway for any other purpose, shall pay four dollars for a permit therefor.” The manifest purpose of this ordinance was to require a person to take out a permit to do the thing which rendered the opening of the highway necessary; if he desired to connect with a sewer or do any other thing of which the opening of the highway was a necessary incident he must take out a permit, for which he must pay $4.00. The ordinance is not silent as to the rights which vested in the person receiving the permit; those rights included “all privileges of connections, all services to be rendered by any officer of the city, .... and for repaving over such connection.” The purpose and effect of this ordinance was to fix a uniform charge for permits to make connections with sewers, etc., or opening any public highway for any other purpose, and at the same time to provide for the preservation of the surfaces of streets in proper condition, by making the charge for a permit sufficient to restore the paving over the connection, which duty the city assumed. There can be no question that the ordinance of 1889 repealed all prior ordinances, including that of 1867, which imposed different charges and provided other regulations than those established by the later ordinance. The city thus assumed' the exclusive right to repair its own streets; withdrawing, very properly, the right which it had formerly delegated to irresponsible parties. The uniform rate established by this ordinance for the right to make connection with a sewer, or do anything which involved opening a public highway, applied to all streets, without regard to whether they were paved or unpaved. The development of the city and the vast increase of traffic upon the streets rendered necessary the introduction of new kinds of pavement, the cost- of repairing openings in which necessarily was greatly increased. The expense of restoring pre-existing conditions in an unpaved street is necessarily very much less than that involved in a street paved with sheet asphalt, after an opening has been made in the highway. This consideration no doubt led to the enactment of the ordinance of 1895, which established a scale of prices for the permits which it authorized, based upon the character of the surface of the street to be opened. The purpose for which, in nearly all cases, an owner desires to open a street is that he may connect Ms property with a public sewer or some other underground utility to which the land within the lines of the streets of a city may properly be subjected. The purpose is a lawful one, but its exercise is subject to proper regulation by the mumcipality, under its police power. In the exercise of this power the city enacted the ordinance approved March 30, 1895. Any careful reading of this ordinance can only lead to the conclusion that its purpose was to regulate the “making connection with or repairing any underground service” laid under any street. The ordinance prohibits the opening of the highway until a permit to do so shall have been obtained; it bases the charges for a permit upon the character of the surface of the street; it requires the application to be made, primarily, to the bureau of highways, presumably because the officers of that bureau know whether the street is paved and, if so, the character of the pavement; it requires the chief of that bureau to furnish the applicant with a certificate setting forth the charges and costs of the permit, but it does not authorize that bureau to issue the permit. The applicant must pay the amount, which the chief of the bureau of highways has certified to be chargeable for the permit, to the receiver of taxes, who is required to sign a receipt for same. The applicant, upon presentation of this receipt, is “entitled to receive a permit from the bureau or bureaus having charge of the particular part or parts of the underground service desired to be connected with or repaired, which permit, duly signed by the chief of the bureau shall be full and sufficient authority for such applicant to break the street, subject only to the supervision of the various bureaus as provided by law;” and the city assumes the duty and reserves the right to repair the street. The ordinance repeals all prior inconsistent ordinances. The applicant, upon payment of the charges, is entitled to receive a permit from the bureau or bureaus having charge of a particular part of the underground service desired to be connected with or repaired. The applicant desires to connect with a particular part of the underground service, the ordinance requires him to pay the charge fixed and declares that upon presentation of a receipt for that payment he shall be entitled to receive a permit from the bureau having charge of that particular part of the underground service. A permit to do what? Manifestly the permit thus provided for is a permit to do the thing which he has been required to declare that he desired to do; make connection with or repair the underground service. The ordinance then provides that the permit thus secured shall be full and sufficient authority for such applicant to break the street. The permit has been issued by the bureau having charge of the underground service, and the bureau of highways is required .to respect that authority and permit the street to be opened. The applicant, having obtained his permit, is, in accomplishing the purpose of his desire, connecting with or repairing the underground service, “subject only to the supervision of the various bureaus as provided by law.” The conclusion that this ordinance repealed all prior ordinances fixing different charges for permits of this character cannot be avoided. The appellant, under the ordinances of the city, could not lawfully be required by the city officers to pay more than $1.00 for each of the forty-two permits involved in this transaction.

With regard to the second contention of the appellant, that the discrimination in the ordinance of 1867 between those who had contributed to the construction of a sewer and those who had not so contributed, imposing a greater charge for sewer connection upon the latter, renders the excessive charge invalid, as to the sewers with which we are now dealing, we are convinced that the discrimination attempted by the city cannot be sustained. The argument on behalf of the city that the charge of $7.50 for each permit issued to a party who had not contributed to the original construction of the sewer is merely a charge for the use of the sewer, and not an imposition by the city of a part of the cost of the original construction, is not well founded. The ordinance does not designate this charge as one made for the use of the sewer, nor does anything in the ordinance warrant an implication that it was so intended by the city authorities. If it be assumed that the city may impose a yearly, or other periodical charge, for the use of the sewer, that charge must be imposed in a manner which fairly indicates its character. An ordinance imposing a charge for the use of a sewer, annually or for any other period, must be uniform as to all who use the sewer in the same manner and to the same extent. There might, possibly, be a classification imposing varying charges upon different classes of sewer connections, but that classification must have some relation to the use; the extent or character of the burden which the connection places upon the public sewer. A classification based upon whether or not an owner had contributed to the cost of the original construction of a public sewer has no relation to the extent or character of the burden which any connection places upon the public sewer, cannot sustain a discrimination in charges for the use of the sewer, and is invalid. If the ordinance of 1867 be considered as an exercise of police power on the part of the city for the purpose of regulating the streets and sewers and connections made-therewith, it at once becomes apparent that the charge of $7.50 for a permit to a person who had not originally contributed to the construction of the sewer, while a person who had so contributed received the same permit upon the payment of only $3.00, is a discrimination against the former not permissible in an ordinance of this character. An ordinance imposing charges in the exercise of the police power must be uniform, the charges upon all who exercise the right or acquire the privilege, under circumstances precisely similar, must be the same. There may, it is true, be a proper classification in such charges, but that classification must have some relation to the thing done or the burden imposed upon the public. No classification can be sustained which is founded upon something entirely unconnected with the act done or exercise of police supervision required or public burden at present imposed. If the ordinance of 1867 be considered as an attempted exercise of the power of taxation, it is invalid for the reason that it imposes unequal burdens upon persons who desire to connect with the sewer, and the municipality was without statutory authority to impose a local tax in this manner. That the property was rural at the time the. sewers were constructed was agreed upon in the case stated, and it is conceded by counsel for the city that the Acts of April 8, 1864, P. L. 324; March 27, 1865, P. L. 791, and March 30, 1866, P. L. 354, which authorized the city to assess property for benefits resulting from construction of a sewer according to the foot-front rule, did not warrant an assessment in that manner in these cases. The sewer on North Sixteenth street was constructed and paid for by Shaw, the cost and expense of such construction not having been contributed to by the city to any extent whatever. The power of the legislature to authorize the imposition, by the municipality, of a local tax upon property peculiarly benefited by a public improvement is well recognized and firmly established. When the character of the property is such as to warrant it the tax may be imposed according to the foot-front rule, and in other cases according to the benefits, the effect upon the market value of each particular property, to be assessed by viewers, or in some cases by a jury. Whichever system of assessment is adopted, the foundation upon which the imposition rests is the right of the city to be reimbursed for an expenditure made for an improvement which has resulted in a benefit peculiar to the property assessed, as distinguished from that accruing to the general public. The principle upon which taxation of this nature rests is not to be expanded so as to permit the imposition of a special local tax upon property for benefits alleged to have resulted from a work which has cost the municipality nothing. No local special assessment for benefits alleged to have resulted from the construction of the North Sixteenth street sewer, which was built and paid for by Shaw, could, therefore, be sustained. The sewer in Wingohocking street was, in 1899, built and paid for by the city; the property was then rural, and if it was peculiarly benefited by the construction of the sewer the Act of May 16, 1891, P. L. 75, and its supplements afforded a means, and the only means, of imposing and collecting a special local tax to the amount of those peculiar benefits. The right of the city to exact and the liability of the property to pay, such special assessment, must be determined under the provisions of the statute referred to and its supplements. It cannot be arbitrarily assumed, under that statute, that property has been benefited because a sewer has been constructed in the street upon which it abuts, nor, even assuming that it has been benefited, can the amount of the benefits be determined in any other manner than that by the statute provided. The construction of a sewer may benefit or it may injure abutting property; the determination of the question may be dependent upon the nature of the soil, whether the property is above or below grade and other facts peculiar to each case: Fyfe v. Turtle Creek Borough, 22 Pa. Superior Ct. 292. With regard to this particular sewer it was not within the power of the city to determine arbitrarily, by ordinance, that the property had been benefited by the construction of the sewer and exact an arbitrary charge, as a compensation for such benefits, by requiring the appellant to pay more for a permit to connect with the sewer because he had not contributed to the cost of the original construction.

The only charge which the officers of the city could lawfully exact for the forty-two permits issued to the appellant was that provided for by the ordinance of March 30, 1895, which, the streets being unpaved, was $1.00 for each permit, and he is entitled to judgment for the excessive amount collected.

The judgment is reversed and judgment is now entered in favor of the plaintiff and against the defendant for $315, with interest from August 16, 1906, and costs.


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    Staten Island Rapid Transit Railway Company, Appellant, v. Hite.

      Practice, C. P. — Case stated — Insufficiency of statement as to facts.

    1. In the consideration of a case stated it is necessary that all of the facts essential to the determination of the question be agreed upon. The court cannot go outside of the case stated for its facts, nór can it assume them by way of inference. What is not set forth as admitted must be taken not to exist.
    2. Where the parties to a cause agree that the court shall pass upon a statement of claim and the affidavits of defense, as a case stated, a judgment thereon will be reversed and the case stated quashed, if the appellate court on inspection of the documents finds that they did not exhibit a concurrence of the facts material to a determination of the case.
    Argued Oct. 7, 1909.
    Appeal, No. 70, Oct. T./1909, by plaintiff, from judgment of O. P. No. 2, Phila. Co., Sept. T., 1908, No. 4,727, for defendant on case stated in suit of Staten Island Rapid Transit Railway Company v. John Y. Hite and Louis Rafeto, Copartners.
    Before Rice, P. J., Hekdeeson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    March 3, 1910:
    Reversed.
    Assumpsit to recover demurrage charges on cars. Before WlLTBANK, J.
    The opinion of the Superior Court states the case.
    The court entered judgment for defendant. Plaintiff appealed.

      Error assigned was in entering judgment for defendant.

      W. B. Linn, for appellant.

      William A. Glasgow, Jr., with him D. Stuart Robinson, for appellee.
   Opinion by

Henderson, J.,

The plaintiff’s claim is for demurrage charges growing out of the alleged neglect of the defendants to receive coal shipped to them on cars consigned to St. George, Staten Island, Coal Piers. An affidavit of defense was filed and when the case came on for argument on a rule for judgment for want of a Sufficient affidavit of defense it was agreed by the counsel for the respective parties that the statement of claim and the affidavit of defense and amendment thereof be treated as a case stated for the judgment of the court, all facts therein set forth being admitted to be true for the purposes of the case, and judgment was afterward entered for the defendants thereon. The arguments presented on the hearing of this appeal show that the litigants are not agreed as to the facts, and that their contentions are more appropriate to the consideration of a rule for judgment for want of a sufficient affidavit of defense than to a case stated. The declaration avers that the plaintiff is a common carrier of bituminous coal and coke engaged in interstate commerce, and that in the course of business it received from its connecting carrier for transportation over its line of road cars containing coal and coke received for the account of the defendant and consigned for transshipment by water at St. George, Staten Island, Coal Piers on the line of the plaintiff’s road; to which declaration is annexed a statement showing the numbers of the cars and the respective dates of their arrival at the piers and also the dates of unloading or re-consignment of the cars for the calculation of the amount due for detention. A copy of the defendant’s demurrage rules is also set forth in the declaration, together with an agreement in writing of the defendants with the plaintiff for “an average basis” for settlement for detention. The declaration contains, therefore, an averment of complete performance of the contract of transportation by delivery of the cars at the piers, and it is with reference to this feature of the case that the failure of the parties to agree on the facts appears, for while the affidavit of defense does not expressly deny the arrival of the cars at the piers it does allege that the plaintiffs have charged them with demurrage beginning with the day of the arrival of the cars in the yards of the plaintiffs and it is alleged in the argument that these yards are miles away from the terminus agreed upon in the contract and set forth in the declaration. If we were considering the case on the rule for want of a sufficient affidavit of defense it might be argued with great confidence by the appellant that inasmuch as the declaration sets forth that the cars arrived at the piers the failure of the defendant to deny that allegation specifically would render the affidavit of defense insufficient without an averment that the piers and. the yards were not in fact the same place. But in the consideration of a case stated it is necessary that all of the facts essential to the determination of the question be agreed upon. The court cannot go outside of the case stated for its facts, nor can it assume them by way of inference. What is not set forth as admitted must be taken not to exist: Berks County v. Pile, 18 Pa. 493; Com. v. Howard, 149 Pa. 302. The arguments of the counsel on the respective sides indicate that it might be an important matter of fact whether the cars arrived at the piers or at a storage yard of the plaintiff remote from the point where the delivery of the coal was to be made and to which the contract of transportation obligated the plaintiffs to take it. Rule 2 of the plaintiff’s demurrage rules makes the “date of arrival of the cars” the starting point for the computation of demurrage, and the important question in the ease is, When did the cars arrive? and that question could only be determined by knowing whether the arrival at the yards of the plaintiff at which time the defendants say the plaintiff's computation commenced was practically at the piers to which the freight was consigned. The opinion of Judge McPherson in Cent. R. R. Co. of N. J. v. Hite et al., 166 Fed. Repr. 976, and the opinion of Judge Gray in the judgment of the United States circuit court of appeals in the same case on the consideration of the demurrage rule with particular reference to the words “date of arrival” are authorities of weight and well reasoned on the facts there presented. No contract of freightage or bill of lading was shown in that case, however, and the understanding was that the obligation of the carrier was to deliver the coal at tide water at Elizabethport. It further appeared from the testimony that the universal custom and practice in the conduct of the business at that port was that on the arrival of a shipment of coal from any shipper or consignor the cars containing the same were placed in the yard of the defendant company within convenient reach of its pier in the harbor and that when the company received notice that a vessel was placed alongside the pier by the shipper the cars were shunted onto the pier. It was accordingly held that when the cars were delivered in the yard of the company at the pier they had “arrived” within the meaning of the demurrage rules. This conclusion was reached as will be noted, however, on proof of the practice in the conduct of the business at that place and without evidence by bill of lading or other writing of the precise terms of the contract of shipment. It may be that the facts susceptible of proof in the appellant’s case bring it within the reasoning of the opinions referred to, but we are unable to find in the affidavit of defense an agreement that an arrival at the yards of the company was an arrival at the pier. The appellant urges that the appellee by uniting in the stipulation for a case stated has admitted all the averments of the declaration. In like manner it may be replied the appellant admits the averments of the affidavit of defense and unless these documents exhibit an agreement on the facts material to a determination of the case there is no harmony of the parties as to what the facts are. We are of the opinion that the declaration and affidavit of defense and the supplemental affidavit of defense do not show an agreement on the facts as to a material feature of the case.

The judgment is therefore reversed, the case stated quashed and the record remitted to the court below with a procedendo.


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    Parke’s Case.

      Lunacy — Act of May 28, 1907, P. L. 292 — Receiver—Appointment of receiver — Allowance to wife.

    Under the Act of May 28, 1907, P. L. 292, it is within the sound discretion of the court of common pleas to appoint a temporary receiver of the estate of an insane or feeble-minded person, and to direct that out of an estate of $240, $3.00 a week should be paid to the wife of the lunatic, and $1.75 per week to the poor district responsible for his support in an insane asylum.
    Argued Oct. 11, 1909.
    Appeal, No. 108, Oct. T., 1909, by the managers for the Relief and Employment of the Poor of the Township of Germantown, from order of C. P. No. 5, Phila. Co., March T., 1909, No. 2,805, appointing temporary receiver and decreeing allowance in Re Francis H. B. Parke, a Lunatic.
    Before Rice, P. J., Henderson, Morrison, Or-lad y, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition for appointment of temporary receiver.
    Petition for allowance.
    From the record it appeared that Francis H. B. Parke, a lunatic, committed to the State Hospital for the Insane at Norristown at the expense of the Germantown Poor District, had an estate of about $240 in cash.
    The court entered the following decrees upon the respective petitions:

      And now, to wit, April 23, 1909, upon consideration of' the foregoing petition, it is ordered and decreed that Paul Reilly, temporary receiver of Francis H. B. Parke, a lunatic, do deliver possession of a small gold watch and fob in his possession to Cora W. Parke, the wife of said Francis H. B. Parke, and that the sum of 11.75 per week be paid to the managers for the Relief and Employment of the Poor of the Township of Germantown, after payment of the expenses of the temporary receivership.
    And now, to wit, April 23, 1909, upon consideration of the foregoing petition, on motion of Charles A. Chase, Esq., attorney for petitioner, the court do order and decree that the sum of 13.00 per week be paid by the temporary receiver to the said petitioner, Cora W. Parke, wife of the said Francis H. B. Parke, for the maintenance and support of herself and her said minor child until further order of the court.

      Errors assigned were the decrees of the court.

      T. Truxtun Hare and Henry B. Hodge, for appellant.
    The appeal in this case is not taken simply for the purpose of recovering the small fund on hand, though that remedy is sought, but for the purpose of having authoritative decision upon the subject of the personal estate of indigent lunatics.
    The act of 1907 is aimed to protect the property of lunatics.
    The act of 1836 takes away from a lunatic charged on a poor district his personal property, and, therefore, such lunatic has no personal property for the act of 1907 to operate upon. Such personalty is the poor district’s property.

      Paul Rielly, with him Charles A. Chase, for appellee.
    In Misselwitz’s Lunacy Case, 177 Pa. 359, and cases therein cited, it was held by the Supreme Court that it is a matter of sound discretion of the court below whether or not it will appoint a temporary custodian or receiver pendente lite to prevent mismanagement or waste of a lunatic’s property.
    As to the right of the court to enter the decree from which the appeal is taken, we depend upon the provisions of the Act of assembly of May 28, 1907, P. L. 292. Under the provisions of this act, the power is expressly given to the court to make orders for the support of the wife and children of a lunatic.
    March 3, 1910:
   Opinion by

Henderson, J.,

The record does not disclose any facts which require a reversal of the order appealed from. The case originated under the Act of May 28, 1907, P. L. 292, providing for the appointment of a guardian for insane, feeble-minded or epileptic persons unable to care for their property, on the petition of the wife of the alleged lunatic. Pending a hearing on the primary order the court appointed a temporary receiver of the estate. Whether this should be done or not was a matter resting in the sound discretion of the court having jurisdiction of the case. The principal object of the proceeding is to provide for the care of the estate and it may be the exercise of a wise discretion to make such temporary provision. It would be necessary to make out a very clear case of abuse of discretion to warrant a reversal by this court of such an order: Misselwitz’s Case, 177 Pa. 359. The receiver having been invested, then, with the custody of the property it became subject to the control of the court. The sixth section of the statute gives full power to the court appointing such guardian to make an allowance for the support of the lunatic or feeble-minded person and his wife and children. Under this authority the court made the provisional order complained of. It is not suggested that it is unreasonable or excessive, and the very moderate amount allowed would refute any such allegation. The appellant only contends that under the thirty-third section of the Act of June 13, 1836, P. L. 589, the directors are authorized to sue for and recover any real or personal property belonging to any poor person who has become chargeable to their district. Their case is made up of a petition not supported by the record of any proceeding nor is it set forth that an order of relief had been issued in favor of the alleged lunatic or that any emergency had arisen which subjected the district to liability for his care. It was held in Kennedy v. Poor District, 15 Pa. Superior Ct. 1, that there is no liability to furnish relief without an order except in cases of emergency, and that without such order no action would lie against the district. If the case were disposed of on the line of the appellant’s argument, therefore, its appeal must fail from lack of evidence showing its liability, but the subject of the appointment of a guardian has not been disposed of by the court in which it is pending, and no good reason is shown why the action of the court ought not to be sustained. When we consider the small amount of the estate which went into the hands of the receiver and the order providing for the payment of the expense of maintaining the lunatic in the event that he be committed to the asylum the intervention of this appeal can hardly be looked upon as promotive of the welfare of the ward, of his family or advantageous to the appellant. We have thought it advisable to thus dispose of the case without discussing the objection raised by the appellee that the appellant has no standing to take an appeal.

The decree is affirmed at the cost of the appellant.